ML19276H759
| ML19276H759 | |
| Person / Time | |
|---|---|
| Site: | Waterford  |
| Issue date: | 12/26/1979 |
| From: | Irving S IRVING, S.M., LOUISIANA CONSUMER'S LEAGUE, INC. |
| To: | LOUISIANA POWER & LIGHT CO. |
| References | |
| NUDOCS 8001210088 | |
| Download: ML19276H759 (16) | |
Text
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\ N/ .c, i UNITED STATES OF AMERICA I
I fiUCLEAR REGULATORY CCMMISSICfl l
l l Be fo re the Atomic Energy and Licens g Board I
)
l In the Matter of I )
i LOUISI ANA POWER A!ID LIGHT COMPAtlY ) DOCKET FIO. 50-382 i )
i (Waterford Steam Electric Station. )
. )
Unit 3) )
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i
! ANSWER TO INTERRnCATORY OF APPLICATIT, LOUISIAf!A POWFR AND LICHT CO.
InterrogPory on Contention 1:
3-1 which statues and/or judicial decisions form the basis for contention 3(d). Identify statutes by title, date and I
section numbers and provide citations to judic ial decisions.
Contention 3(d) States:
The applicant has not demonstrated that it can cont rol activities in the exclusion area as is requi re d by 10C FR 100.3 in that
- d. Under Louisiana law, the applicant cannot deny use of the banks f
of the Mississippi River that are within the exclusion area for purposes incidental to the navigable character of the waterway.
i l The Legal Authority is found in Louisiana Revised Civil Code
=
i
[of 1870 Articles 450, 452, 455, 4% (ccpies attached). These f
, l j articles generally establish a class of things which are subject to public use even if privatel y owned. Article 456 particularly I
t, deals with the situation descrit2ed in the LCL contention.
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l See S.;ata v. Richardson, 140 La. 329, 72 So. 984 (1916); Lyons v.
l f Hincklay, 12 La. Am 65$ (1866); Chinn v. Petty, 163 So. 735 (La.
)
I App. 2nd Cir. 1935). The cited code articles and cases firmly i
l establish that the applicant'c property is burdened with a servi-l tude for public use which the applicant cannot deny.
}
i
, Before me, the undert gned authority personally came and I
j appeared STEPHEtt M. IRVI?JG who af ter being duly sworn by me did l depose and say that he is counsel for the LCL in this proce rding and that the above answers are true and correct to the best of
, his knowledge and belief. , ' [ ((- p 3TEPHE?! M. I !?lG A hks.faaw DORIS Fi f.KENMEI?iER l NOTARY P-BLIC l
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j j Respectfully submitted, l
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l /A/ /X II J
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I STEPHE!1 M. I RVI t' ;
Counsel for LC' 1601 One Ar.er can Place Baton Rouge, LA 70825 (504) 383-9970 1
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l CERTIFICATF OF SERVICE I
l I certify that a copy of the above and foregoing document.
entitled " Answer to Interrogatory of Applicant, Louisiana Power and Light Co.", has been served by mailing the same to each of
, the following persons by U.S. first class mail, prcperly addressed, postage pre-paid, to the last known address this 26th day of December, 1979.
Sheldon J. Wol fe Docketing and Service Atomic Safety & Licensing Section Board Panel Office of the Secretary U.S. Nuclear Regulatory U.S. Nuclear Regulatory l Commission Commission Washington, D.C. 20555 Washington, D.C. 20555
- Dr. Harry Foreman, Di re c t o r henry J. McGurren, Esq.
j Center for Population Studies Office of the Legal Dir.
Box 395, Mayo U.S. Nuclear Regulatory l University of Minnesota Ccmmission Minneapolis, Minnesota 55455 Washington, D.C.
l anLa5 l
i Dr. Wal ter H. Jordan Lyman L. Jones, J r. , Esq.
881 Wast Outer Drive Gillespie & Jones Oak Ridge, Tenn. 37830 Suite 201 1420 Veterans Memorial Boulevard Chairman, Atomic Safety and Me t ai ri e . LA 70005 Licensing Board Panel U.S. Nuclear Regulatory Commission Luke B. Fontana, Esq.
Washington, D.C. 20555 824 Esplandade Ave.
l New Orl eans ,LA 70116 Chairman, Atomic Safety and Licensing Appeal Board George F. Trowbridge. Esq.
U. S. Nuclear Regulatory Harry H. Glasspiegel, Esq.
l Commission Shaw, Pittman, Potts and Washington, D.C. 20555 T rowb ridge l
Counsel for Applicants 1800 M Street, N.W.
.! Washington, D.C. 20036 l
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l STEPHEN M. IhVING i
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TITI.l?. I TillNGS Chapter Artsele
- 1. Olvision of Things . 448
- 2. Rights in Things 476 Title I of liook ll of the f.onisinnet Civil Code of In~n,0f Thinux, previously rossaisting of Articles ssx to sx7, sens re-rined, amenaleri, anel trennetcel by Arts luix, No. 7.!$, g 1, effcetire January 1.197u, to consist of Articles 448 to s76.
CllA PTEll 1. DIVISION OF TlilNGS t Replacing Articles 118 through and including .176 of the Louisi:ina Civil Code of 1870)
A rt.
' SECTION 1. GENEllAL PRINCIPLES 44H. Division of things.
449. Common things.
450. Public things.
451. Seashore.
452. Public things and common things subject to public use.
453. Private things.
454. Freedom of disposition by private persons.
455. Private things subject to publir use.
45G. Hanks of navigable rivers or . treams.
457. Roads; public or prisate.
458. Works obstructing the public use.
459. Building encroaching on public way.
460 Construction of navigation facilitiew on public places by port com-missions or municipalities. ,
461. Corporeals and incorporeal.s.
SECTION 2. 15!510VA HLES 462. Tracts of land.
463. Component parts of tracts of land.
464. Huildings and standing timber as separate movables.
465. Things incorporated into and immovable.
466. Component parts of buildings or other constructions.
467. Immovables by declaration.
468. De-immobilization.
46D.
Transfer or encumbrance of immovable; rights of other per. sons.
470. Incorporeal immovables.
17
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Art. 448 Tiiiscs SECTION :1. MOVABLES A rt.
471. Corporeal movables.
472. Buildinif materials.
473. Incorporeal movables.
474. Movables by anticipation.
475. Things not immovables.
SECTION 1. GENERAL PRINCIPLES Article 448. Division of things Things are d!vided into common, public, and private; corpal and incorporeals; and movables and immovables.
Acts 1978. No. 728. % 1. ef f. Jan.1.1979.
Comment This provision repro. hares the sulatance of Articien 449, 4t108 l' and 4til of the Louisiana Civil Code of 1870 It does not charm the law.
History and Test of Former Codes Source? 4 8' .o i - i lta, 4e10:11, 46t1.
Title of Act; pruthie for lin* *cveruhility nf tie An urt to res -a n euenei. .niet n+nnel s i-inn % of this Art : to prothic fe Title I of item.i. 11 of 18.. 1...u o.nn t 'h ll effettin e shite of lin- Art ; Hani h' t '<w le of IkTo . ..ne .s un ng A rtie hm i ps s i le for t he npplieninhty of Ilw l ihrungh .i n. . n.. I . .. In g -lM7. Irlattie in winn* uf t his Act. Art
- Itti's. Nu
- Thing , in -nh.I .i .n.. e l.ere r..r in w A rti- " " " " " '" I "I ^ "' " I "I' \
efe* 4 De through tie. e.. pr. ski..f..r Hu. prus hleil ng fnHow-ethision of things . nut righl= in Ihtngs ,
to nmenal unel n* n .. t \senh lhei2eifthe "N+8 0'"' Il- N'rti"n' Il8El. IIH4 8'Ivil f
- ente of 1%7o -. . i n.n . :e; ..f To l.. 1132. lil*l. 5104. SIH". 5321 t hr wid il of tin' Ites t-e . s e ..e nte- ..i 19..n, 5 gn7 inchuling Sl2tl. nuit .~dr.:7, of Titi.-
of Title 18 of the lh ti=.el Menlutes of the !.inaisi. ann Itegiseil santules i.f
!!iSH nnel Mnh-celine. N uf N etinn 71H of are hereby rela uleil. Nttion. Ilisi Title *t2 of 41.. I:. i . .I -1.H ute* of !!i*de "H'l 51801 nf Title !b of t he Ideni in to bring the-c p. ...... ini.. aereenn nt S I*'I S' H!'e* "f I!GO. n re not .ne wit h the ulashi n. . ..a e l.. n. t ..s v of un. nr relu.nh=4 herchy. All other is annval hw hy ele-in.;n m , a ..l E.n l 3,.g.
pa rt a of laws in ninfilet wit h tin-t hen
- litrt. I ti.8 1111. 1812. Il l:1. T.tni, "f" relnnin!.
SliG. 5121 t h. ....gn nanl incineling 51215 " Net inn 4. The article he:nhuetr nuel 58127 s f hele 18 of t he Ib ii-ed Ment. F:Mue 6 de o Motif
- nuil Ilu* (*.unnwa ute* of ItCae in e s cenpt fi.no a mene t- t hi* Act are not intesub il to In. nin *.
inent nr rel= ni N -t nins lisal. 51tr2. naul a* part of the haw nml are not rn 51trl ..f Title 's ni i t.. Ikt i-ed di.itutes into law by virtue of their lucin
- of itGu ; to ref ='ai ull neln r I. inn ur p.in t* tiilm Act, of ha'ww in conflict with thi e Art ; t" If, for nny ren .m "Wttlun 5.
prnt hie t ha t t he .n i n n heniinntes. th" prm i i..n of this Art l* <htinreil
- F:qw.-6 sh.* Mnlif* anni t lic l 'nm ment - seitut h.unl ur invulbl. t he nt her tu incinelett in this Art n re not to la. ru n - provlwinn* hereof shull unt 1. aff widere<l n* puit of the prolwi-.d how ; in therrby 18
m ,,, n - -
l TillNGs Art. 450
- % rt hna ti. The pruil*lon= uf thi Art '%s-t hus 7. All of slu* prnrisinn= uf mhnll apply tu nll thing =, inchullug thn=e thia Art =hnli la. effectlie on Janunry estating on the effes tire ilate of thi As t : 3, It:79 -
but rue prnil= Inn niny in nppliesi tu ehsest ulresuly teatrol right= or to hugusir the obligntinn of esintrnrta.
Article 449. common things Common things may not be owned by anyone. They are such as the air and the high seas that may be freely used by everyone com-formably with the use for which nature has intended them.
Acts 1978, No. 728, i 1, ef f. Jan.1.1979.
Comments
) reals (a) This provision ieproduces the substance of Articles 450 and 482(1) of the Louisiana Civil Code of 1870. It does not change the law.
(b) According to traditional civilian conceptions, common things are not owned by any one, not even by the state or its political subdivinions.
I, (ci Running water and the senshore have been taken out of the category of common things by legislation declaring that these things are owned by the ntate. See, c. g., R.S. 9 :1101, as amended by Acts 1954; No. 443 (declaring tbut the *vaters of all bayoun.
rivern, lagoons, taken, and buyn "not under direst ownership of any -
, p ,,,
person on August 12, 1910" are owned by the ntate); R.S. 49:3 3r the (declaring that the vutern and bed of the Gulf of Mexico within
- o pra- leuiniana boundarau are owned by the state). See also R.S.14:58.
[JM., b 38:216, 5G:3G2,1431,1451.
(d) Congress and the louisiann legislature have enacted lawn designed to protect the purity of the atmosphere. See Clear Air ging, Act. 42 U.S.C.15 1857-1857(1) #1970); Air Control Law, R.S.
h urul 40:2201-16 11964). Hoth acta establish administrative agencien U et charged with the duty to prevent air contaminants frcm reaching H "- harmful levels. See Note,36 La.1..Itev.1090 (1976).
510'J a Re.
ended History and Test of Former Codes
- n or .
. Act Source: s '.t '. n rt =. 4.~a. 4NJi l l.
- a. tlu=
it= In Article 450. Public things Jered
.ct,4 Public things are mvned by the state or its political subdivisions in
)n la their capacity as public persons.
, ,,7 Public things that belong to the state are such as running waters, ncon. the waters and bottoms of natural navigable water bodies, the ter-
'" h3' ritorial sea, and the seashore, ected 19
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Art. 450 Tniscs Public things that may belong to political subdivisions of the.c are such as streets anel puidic squares.
Acts 1978. No. 728,1 1, e f f. Jan.1.1979.
(*ommenix (a) The first two paragraphs of this provision reflect the definition of public things in Article 453 of the Louisiana Civil Code of 1870. The third paragraph reproduces the substance of Article 454 of the same Code. This provision does not change the law.
- b) As to the nature of gmblic things, see City of New Orleans
- v. Carrollton Land Co.,1:11 1.a.1092,1995, 60 So. 695, 696 ( 191:11:
"Such property is out of commerce. It is dedicated to public use.
and held as a public trust, for public uses". Kline v. Parish of Ascension, 3:t !a. 652, 656 ( 18H1): "The parochial authorities are mere trustees for the benefit of the inhabitants of the parish" Slayor of New Orleans v. Sletzinger. :L Start. ( O.S. ) 29G, 'tu:t i12.1M14): "That public pl ace *, such as roads and streets, cannot he appropriated to private use, is one of these principles of public law which erquire not the support of much argument." Certain public things are inalienable and forever insusceptible of private ow nership. See Const., Art. IX,11 :t, 4 81974). For exemption from seizure an,e prescription, arr Const. Arts. Xil.11 lu,1:1 11974:: ef. IX, t is11).
tc) According to eivilian theory, the state and its political sub-divisions have dual personality. At times they act as public per-sons, that is, in a sovereign capacity, and at times as private persons that is, as private citizens or corporations. The relations in which the
- tate and its political subdivsions figure in a sovereign capacity are gmerned by rules of public law, and the relations in which the state and its political subdivisions figure as private persons are governed by private law. See Yiannopoulos, Louisiana Civil Law System, Part I, p. 78 (1977).
The property of the state and its political subdivisions in known as "public property" This property consists of two categories of things: public things, namely, things that the state and its po-litical subdivisions hold in a sovereign capacity, and privete things, dealt with in Article 45:1 (1978). Public things may also be subdivided into two categories. The first category consists of things which according to constitutional and legislative provisions are inalienable and necessarily owned by the state or its political subdivisions. The second category consists of things which, though alienable and thus <usceptible of ownership by private persons, are applied to some public purpose and are held by the state or its political subdivisions in their capacity as public persons.
According to French doctrine and jurisprudence. public property in divided into property of public domain and property of the private domain, This distinction, which corresponds to some 20
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hw,x ,
THINGS Art. 450 of the state extent to the Roman law distinction, between res publican and rrs fisci, has ample foundation in the French as well as in the leuisi-ana Civil Code of 1870. Writers, however, are not in agreement as to which things belong to the public domain and which to the private domain, nor as to the criteria for this distinctha S flect the Yiannopoulos, Civil Law Property, l 30 (1966). The present ~t ina Civil has formally dispensed with the theory of the public domain. The stance of public things are ouned by the state or its political subdivisions, ange the though this ownership may be subject to limitations not present in the case of " private things" which may also be owned by the state or its political subdivisions.
(1913): (di Act No. 62 of 1912, now R.S. 9:5661, provides that " actions, iblic use, including those by the State of Louisiana, to annul any patent
'ariah of issued by the state, duly signed by the governor and the register ities are of the state land office, and of record in the state land office, are parish"; prescribed by six years, reckoning from the day of the issuance 296, 303 of the patent." Courts interpreting this statute have held in the e,cannot past that, in the absence of any constitutional prohibition against
>f public the alienation of navigable water bottoms prior to 1921, state Certain patents meeting the requirementa of the statute are unassailable private even if they purport to conve) to private persons the ownership
.emption f navigable water bottoms. See California Co. v. Price, 225 La.
i 10, 13 706, 74 So.2d 1 (1954). The legislature sought to overrule the California case by Act 727 of 1954, now R.S. 9:1107-1109. The Louisiana Supreme Court overruled California in Gulf Oil Corp.
- I '"
- v. State Mineral Board 317 So.2d 576 ( La.1975). The alienation P"' of navigable water bottoms by patents issued after 1921 is inef-private fectual both under Article IV,5 2 of the Constitution of 1921 and
"" "* under Article IX, X 3 of the 1974 Constitution.
>vereign elations (e) The enumeration of public things is illustrative rather than private exclunive. Thuu, for example, drainage ditches may be "public
>uisiana things" under this article. See Town of Amite City v. Southern United Ice Co. 34 So.2d 60 (La. App. Ist Cir.1948). Further, iknown parks, cemeteries, or even open spaces might, under certain cir-ories of cumstances, qualify as "public things" See Town of Vinton v.
its 'po. Lyons,131 La. 673,60 So 54 (1912); Town of Kenner v. Zito,13 things. Orl. App. 465 (La. App.Orl.Cir.1916); Locke v. Lester,78 So.2d 14 also be ( La. App. 2d ('ir.1955); Collins v. Zander, 61 So.2d 897 (La. App.
iista of Orl.Cir. 1952) : Shreveport v. Walpole, 22 la. Ann. 526 (1870).
(f) The question whether a body of water is a river or a lake, and the question whether it is navigable or not, are contretied by
- Louisiana doctrine and jurisprudence. For literature and deci-sions on point, see Yiannopoulos Civil Law Property, il 32, 38 (1066). The expression " natural navigable water bodies" refers to inland waters the bottoms of which belong to the state either roputy by virtue of its inherent sovereignty or by virtue of other modes of the of acquisition, including expropriation. Artificial watenvays
- located on private property for private purposes may, of course, 21
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Art. 450 TmNGS be private things, for the same reasons that a road built on prr property for private purposes may be a private thing.
(g) Running waters, the sea, and the meashore are public thi by virtue of R.S. 9:1101 and 49:3; see Comments under Art 449 (1978). As to arms of the sea, see Storgan v. Negodich,40 Ann. 246. 3 So. 636 (1888): Burns v. Salinovich,154 La. 495 So. 748 (1923). C/. D'Labora v. Garcia,144 So.2d 911 (14 4th Cir.1962). Lake Pontchartrain has been consistently regats as an arm of the sea. See Brunning v. City of New Orleans.
La. 511.115 So. 733 (1928 t ; Hurns v. Crescent Gun and Rod C 116 La.1038, 41 So. 249 (1906); Zeller v. Southern Yacht 0 34 La. Ann. 837 f 1882). See also 5tilne v. Girodeau,12 La.
(1833) (declaring that the bed of Lake Pontchartrain is insusco bic of private ownernhip and thus, by implication, classifyint Lake as "sen") ; New Orleans Land Co. v. Board of Commission of Orleans Lesee Dist.,171 La. 718,132 So.121, aff'd 515 646, 283 U.S. 809, 75 L.Ed.1427 (1931) (the bed of Lake Po chartrain is owned by the state up to the high water mark).
Following a general trend in the United States, the Louist.
legislature has asserted, by a series of statutes, state ownen' over a variety of living creatures of the land, sea, and air. '
Acts 1920 No. 273; 1932, No. 68: 1918, No. 83; 1926 No. P
- 1932, No. 50; 1932, No. 67; 1918, No.104. In a sense, these.
now public things rather than res nullius. Ownership of wildh however, is a new concept. This form of state ownership.
serted in an effort at conservation of natural resources, confi mainly administrative advantages and stresses the idea that cert, ansets of society are not capable of private appropriation em under regulations that protect the general interest. See Yian:
poulos, Civil Law Property, 1 38 (1966).
History and Text of Former Codes Source: .Ww : rf. I
- t *. u rt i,. 47,:1. 4.~,4, 4.'wC s, 4ml, 4M28"i.
Article 451. seashore Seashore is the space of land over which the waters of the sea-in the highest tide during the winter season.
Acts 1978. No. 728, s I, eff. Jan.1,1979.
Comments (a) This provision reproduces the substance of Article 451 -
the Louisiana Civil Code of 1870. 'It does not change the la.
Accordingly, Louisiana jurisprudence interpreting the source pf vision continues to be relevant.
tb) According to Louisiana decisions seashore is the space '
land in the open coast that is dirretly overflown by the tides. 5' Buras v. Salinovich,154 La. 495, 97 So. 748 (1923); Storgan 22 ll N
i e gness.
.g , <y .
- s* **en-rmm:s Art. 453 s
vate Negodich. 40 La. Ann. .:Is.. :s .%. e.16 1 I M68 ) . See also liuin- Thus, Crescent Gun & Rod Club. I161-i.10:48, 41 So. 241) i 1906 >.
ings not all lands subject to t nial m.1 low are "scashore" tick ic) For doctrinal obwrs.ition concerning Article 451 of the I l'"-
1870 Code. see Yiannue..nhis, Civil Law Property, 1 28 110661.
I' 'I in Roy v. Board of Commission, r i f or l'ontchartrain 1.evee Dis-trict, 238 La. 026. I17 8. 2d r.o . s'. 60), the defendant levee board AN; urged that seashone shoubt be defined as the space of land "nor-The court, though I mally c vered by the high..st tides of the year."
~! b' "c needing defendant's contentions to be sound" refused to accept lub the proposed definition because this would be a rewriting of the .
Civil Code provision "a prerogative that belongs under our sys-
'PI'*
tem of government to th.1.ari-fatore." 117 So.2d 60, G2.
t the History and Test of Former Codes
)Mff8
- source: C.C. a rt . 4.*. I .
Pont-Article 452, Public things and common things subject to public use rehip Public things and common things are subject to public use in ac-See
- i. 80; cordance with applicable laws and regulations. Everyone has the
- 8" right to fish in the rivers, ports, roadsteads, and harbors, and the
'dIII right to land on the seashore, to fish, to shelter himself, to moor ships, to dry nets, and the like, provided that he does not cause injury to the
,I g,"*,'
property of adjoining owners.
m; , The seashore within the limits of a municipality is subject to its
.xcept anno-police power, and the public use is governed by municipal ordirances and regulations.
Acts 1978 No. 728, % 1.ef f. Jan.1.1109 Comments This provision i.prolure* the substance of Article 452 of the Inuisiana Civil s '.... . f Id70 as well as the substance of the ser-It changes the ond paragraph of Aatwie 15:t of the same Code.
.ea spread law as it excludes the right of members of the general public to It does not supersede special legis-build canins on the seashore. See R.S. 56::l:11.
lation governing fishing licenses and permits.
et seq.
History and Tent of Former Codes 151 of
= law. s. m .: c.c. ,in,. ca. ca te pro-Private things Article 453.
Private things are owneit by individuals, other private persons, ,
and by the state or its political subdivisions in their capacity as pri-Tan V. vate persons.
Acts 1978 Nc. 728,1 1, ef f. Jan. I,1979.
23
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Art. 453 THINGS -
Comments aal This provision reproduces the substance of Articles 458(3),159, and 483 of the Louisiana Civil Code of 1870. Ch.
in terminology and structure, made in the interests of clant) simplicity, do not effect a change in the law. As in the 1870i private things form a residuary category.
(b) For the nature of prisate things of the state and of its r cal subdivisions, see, in general, City of New Orleans v. S Brick and Lumber Co.,135 La. 828, 868, 66 So. 237, 251 i t' "The charatter of municipal property and the nature, whether enable or inalienable, must be determined by the putyuse to n the property is dedicated." In Anderson v. Thomas,166 la
$26,117 So. 573,579 ( 1928), the Louisiana Supreme Court inda that private things of political subdivisions, such as "public off police and fire stations, markets, schoolhouses ma dealt with as the muntripality sees fit, subject o<dy to the re-tions imposed by the deed of acquisition or by special laws!'
(c) According to louisiana jurisprudence private things o:
litical nuhdivisions of the state are not exempt from seizur.
prescription. See Hullis v. Town of Jackson, 2031.a. 289,14.'
1 (1943): "A municipality may, of course, own property e is not and can never be needed for strictly municipal or pubhc:
poses; and property which, though once dedi;ated to and used such purposes, is abandoned as a public utility. Such propertr he treated as the private asset of the municipality and sna.
levied on and sold under execution for debts of the corporat ithe court quoting from Town of Farmenille v. Commercial O Co.,173 La. 43,1:tG So. M2, MS, 76 A.L.R. 6M6 a 19311 ). As to scription, see 1.ouisiana liignway Commission v. Randale,12 5 631 f l.a. App. 2d Cir.1943). Private property of the state, '
ever is exempt from seizure or prescription. See Const. 4 IX, 4 4(B); XII, !!s 10(C),13 (1974).
(d) This provision does not deal with property of state agem For example shool property is always exempt from seizure ur R.S. 20:31. llut property of other state agt:ncies may or may be subject to the general law governing prescription. See lla.
Board of Commissioners of Red River, Atchafalaya and IL Boeuf Ixvec District, 2n6 La. 378,19 So.2d 173 i 1944); Boar':
- Commissioners of Port of New Orleans v. Toyo Kisen Kaisha.
La. H65,113 So.127 (1927).
(e) Article 486 of the Louisiana Civil Code of 1870 has t suppressed. This article has no counterpart in the French t' Code. It derives from Dook II, Tit!c I, Article 24 of the Pr' du Gouvernment. The provision refkcts terminological and a ceptual difficulties encountered by the codifiers in France.
Demolombe Traite de la distinc%n des biens 320 (18741-24
. O- l .- - -
^
Taim s Art. 455 Planiol et Ripert. Traits pratique de droit civd franquis 124 (2d ed. Picard 1952).
'ies 449' l Article 486 of the I.noisiana Civil Code of 1870 has not teen Changes rity and ntupreM in any reggted I.nnisiana decision. It contains a
" general definition of things Imlonging to the private domain of 4 Code
- the Mtate, and it must le nece<3arily supplemented by other articles nf the Civil Code and special statuten" Yiannopoulos, l'ivil Law
's politi- i Property X 38 (196G).
Salmen ,
11914); i History and Text of Former Codes
'her ali. Source: (*.C. n rtr. 4 49. 4h:u. 4.*.9. 4vt. f '/. ed, u rt. 4Ns.
'4 which .
. l, Article 454. Freedom or disposition by private persons
' of fices, i Owners of private things may freely dispose of them under modi-may be I fications estabhshed by law.
7stric. i i
Acts 1978. No. 728.1 1. e f f. J an.1.1979.
t iof po. ,
('omments are or sa) The text of this provision in new. It is based on Article
- 4 So.2d 4R4 of the Louisiana Cisil Umle nf 1879 It does not change the
' which g,w, de pur.
i e e wunt " property" in Article 484 of the 1870 Cmie is a Jed for translation of the 1'reta h his nx. See 1972 Compiled Edition of the
,[ay *be Civil C des of I.ouisiana art. 4R4, in Isi West's L.S.A.-Civil Code l ( Dain w ed.). The word " restriction.<" in Article 484 of the 1870 ention..
Code is a tran3tation of the French modificatinnx.
. Credit l
'o pre.
(c) The second paragraph of Article 484 of the louisiana Civil
- So.2d Code of IM70 han not been reproduced imcause it deals with a matter
- how.
of public law. Things belonging to the state, its political subdivi.
A rt s. I Mions. and agencies. may be disposed of in accordance with the ap-plicable laws and regulations.
tncies. History and Text of Former Codes under searce: .ww : . f. e a . are. is s.
ay not uns v Bayou Article 455. Private things subject to public use a ard of l'rivate things may lic . subject to puidie 1.se in accordance with law 4.163 or by dedication.
i Arts 1978. No. 728. s 1. ef f. Jan.1.1979.
s been
' Civil . ('om ments
?mjet i t a s The test of thi., provi ion is new. It . intendest to pave the i con- way for the follownig attirles. It d ra not (nange the law,
,g a; 3 !
Ib) In I.outsiana der:3 ions. private things subiert to public u*e are frequently termed "put.l., trongs", whether they .long tu the
! 25 I
, . T, -
s . ~ . . . . ~ . .
m , ,_
Art. 455 TIIINGS state, its political subdivisions, or to private persons. These thine however, are not necessarily public things in the sense of Artidr-453 and 454 of the Louisiana Civil Code of 1H70, nor in the 3rn-of Article 450 (1978). They are "public" merely in the sen3e thi they are destined or dedicated to public use t res publicar publa usui dcstinatar). Thus, in addition to common things and pubh things under Article 450 (1978) which are subject to public use L definition, private things of the state and its political subdivision-and things belonging to private persons n. - be subject to puhl use as a result of a legal provision oi dedication.
History and Test of Former Codes Saurce: Lw: e /. I ' t '. A r t , UcrJi. r. .n. a mi r68.
Article 456. nanks of navigabic rivers or streams The banks of navigable rivers or streams are private thine are subject to public use.
The bank of a navigable river or stream is the land lying te the ordinary low and the ordinary high stage of the water. N theless, when there is a levee in proximity to the water, establishe cording to litw, the levee shall form the bank.
Acts 197H, No. 728,1 1, ef f. J an.1,1979.
Comments (a) This article reprnduces the substance of Articles 455 am 157 of the louisiana Civil Code of 1870, as interpreted by LouisiaS ju risprudence. Changes in phraseology and structure have nr been intended to rhange the law. Accordingly, leuisiana derision-interpreting Articles 455 and 457 of the leuisiana Civil Code - ,
1870 continue to be relevant.
(b) Article 455i 1) of the feuisiana Civil Code of 1870 declare that "everyone has a right freely to bring his vessels to land then to make fast the same to the trees which are there planted, to ur load hi vessels, to deposit his goods, to dry his nets. 2nd the like' Arcording to well-settled 1.ouisiana jurisprudence, which c ontin'r to be relevant, the servitude of public use under this provision i not "for the use of the public at large for all purposes" but merW for purposes that are " incidental" to the navigable character of th stream and its enjoyment as an avenue of commerce. See State '
Richardson. 140 1.a. :129. 72 So. 984 (1916): Lyons v. II:nche 12 La. Ann.1355 IMM i ; ( hinn v. Petty, lei.5 .wo. e.i.) i t.i. A pp. .
l 'i r. 19.15 i . The right to dry nets is practically meaningles.s tua in most of 1.ouisiana's navigable rivers. Vessels may be temp rarily moored to the banks of navigable rivers, but there is stron.
doubt that this may be done " freely" as Article 455 (1870) 4 clares. The rights of the general public to unload vessels and i deposit goods may be clearly exercised in public landings or oth.-
26
- . -- .I .....
w - ---
Mr.e THINGS Art. 456 facilities, but it is questionable whether these rights may be exer-Under the circumstances, it has been thought cised in all banks.
preferable to suppress the illustrations of public use contained in Article 455 of the 1870 Code. Special laws and regulations gov-g., R.S. 34 :1 ern the extent and incidents of public use. See r.
et seg.
(c) According to both the 1870 Code and the 1978 revision, the banks of navigable rivers are private things which, ordinarily, of he-According to Article 455 2) long to the riparian proprietors.
the 1870 Code, "the ownership of the riverbanks belong to those Article 456 (1978), by declar-who possess the adjacent lands" ing that the banks of navigable rivers are private things, re-it does not change the law.
produces the substance of this article,
, 456 (1978))
(d) The definition of " bank of a river" ( Article follows Louisiana decisions interpretint Article 45741i of the See Wemple v. Eastham,1501.a.
that Louisiana Civil Code of 1870. "The land lying between the edge 247, 90 So. 637, 638 (1922):
of the water at its ordinary low stage and the line which the edge ween of the water reaches at its ordinary high stage that is the highest ever- stage-ia called bank of the stream, and belongs to the owner of "C' the adjacent land". Conversely, the bed of the river is "the Ibid. land that is covered by the water in its ordinary low stage" See also State v. Richardson,140 I.a. 329, 72 So 984 (1916);
19 ( La.1819) ; State v.
Morgan v. Livingston, 6 Mart.(0.S. Article 157< 2)
Cockrell,162 So.2d 361 ( La. App. Ist Cir.1964 ).
"Nevertheless on the Louisiana Civil Code of 1870 declares:
d the borders of the Mississippi and other nsvigable streams, where
- there are levees, established according to law, the levee shall form
' the bank" This provision has been applied by Louisiana courts See Mayer only as to levees located in the proximity to the water.
lsg v. Iloard of Commissioners, 177 1.a. 1119, 150 So. 295 (1933).
Following this jurisprudence, A rticle 4% < 197H) declarea that '
when there is a lever in proximity to the unter,The established change in ac-the
's e,
cording to law, the levee shall form the bank.
definition of banks is relevant only insofar as use theofpowers the banksof 3*
" by members of the general public is concerned; en public authorities to appropriate the use of the banks of navigable is rivers is dealt with elsewhere. See Article GG5.
ly tel Louisiana decisions d ruling with the scope of application of he Article 500 of the Louisiana SeeCivil State Code
- v. Placidof Oil1870 Co.,300establish a distinc.
y, tion between " rivers" and " takes",
,y, So.2d 154 i La.1974 n, 2d The definition of the " hank of a riser" may include, in addi-(f) ay tion to the banks of natural watercourses, artificial navigation canals. Cf. Itarvey Canal & Land Imp. Co. v. Koch-Ellis Marine
'0-ng A navigation Contractors, 34 So.2d GG t I.a. App.Orl.Cir.194H).
le- canal constructed by public authorities on a right of way servitude to If the banks of a public canal or on public lands is a public thing.
.er 27
}~ . -
Art. 456 nuscs are within the right of way nquired by the authorities, the.s e subject to public use uniter Article 4.Ni i1978). If the navigatie canal is built entirely on private property for private purposes.'
if the banks of a public canal belong to private individuals, puhi use of the banks may be extbuted.
History and Test of Former Codes source: i e n ri . 4.u. 4..7.
Article 457. icoads: pubiic or private A road may be either public or private.
A public road is one that is subject to public use. The publa own the land on which the road is built or merely have the rn use it.
A private ro;ul is one that is not subject to public use.
Acts 1978. Nn 72M. s 1. ef f. Jan.1,1979.
Comments
. . . . ~l he text of this provision is new. It is based on ArticlesI t hrough Tsui and 6T>M 21 of the Louisiana Civil Code of 14 li ib.es in.t thunge the law.
.I.i .\.iin hng to leuisiana law, public roads are those that a s ubj. . to public use. l'he public may own the land on which th ari 1.uilt ..r it m.iv merely have a servitude. 1'or detailed disa.
si..n. , i nani.upoulos. Civil Law Property,133 e !!H'G).
History and Test of Former Codes Sou rc e . % s ' e' nrt.. To4 Tint : it".N::1 Article 455. brks obstructing the public use n in ks built without lawful permit on public things, includi:
sea, the seashore, arnt the bottom of natural navigable waters.
the banks of nasigable rivers, that obstruct the public use rr removed at the espense of the persons who built or own theni-instance of the public authorities, or of any person residing state.
The owner of the works may not prevent their removal by ai prescription or possession.
Acts 1976. No. 7.:8, ; I, ef f. Jan.1,1979.
Comments (a) This provincc reproduces the substance of Article M61 of t Louisiana CivP Co te of 1870. It does not change the law.
28
3,,,,,,... _.
-. =~ > . - . .~ r ~
THincs Art. 460
" (b) For detailed discussion of this provision, and its interpreta-
- " tion by Louisiana courts, see Yiannopoulos, The Public Use of the Banks of Naviirable Rivers in Louisiana,31 La.L.Rev. 563,579-585 (1971).
(c) This provision does not supersede special legislation gov-erning the Louisiana Department of Highways.
History and Text of Former Codes Source: It.M. 9:1111 : a T nrt. Nil.
Article 459. Building encroaching on public way 4 may A building that merely encroaches on a public way without pre-venting its use, and which cannot be removed without causing sub-9tht to stantial damage to its owner, shall be permitted to remain. If it is demolished from any cause, the owner shall be bound to restore to the public the part of the way upon which the building stood.
Acts 1978 No. 728. j 1, ef f. Jan.1,1979.
Comment 4 This provision reproduces the substance of Article 862 of the
't Louisiana Civil Code of 1870. It does not change the law.
3 Hislery and Text of Former Codes
,y Source: It.M. D:lll2 ; t.'.I'. n rt. NrJ.
+ Mimilar language wnw funn 1 in former I.M A - It.M. D:lll2 nnel it.WJ7, luish re.
penhgl by I :I of Act* 137N. No. 72M. -
Article 460. construction of navigation facilities on public places by port commissions or municipalities Port commissions of the state, or in the absence of port commis-
' I the sions having jurisdiction, municipalities may, within the limits of ron thei' respective jurisdictions, c9nstruct and maintain on public places, r be in ' xis of natural navigable water bodies, and on their banks or
- the shor s, v orks necessary for public utility, including buildings, the wharves, and other facilities for the mooring of vessels and the load-ing or discharging of cargo and passengers.
nng Acts 1978. No. 728 s 1, eff. Jan. I,1979.
Comment This provision reproduces the substance of Article 863 of the Louisiana Civil Code of 1870. It does not change the law.
29
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