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Dardar v. Lafourche Realty Co.

ELR Citation: 23 ELR 20762
Nos. No. 91-3522, 985 F.2d 824/(5th Cir., 03/15/1993) Aff'd in part, vacated & remanded in part

In an action by commercial fishermen, joined by the state of Louisiana, against a swampland owner seeking the right to use a system of navigable waters thereon, the court holds that a canal dredged on private property with private funds that does not interfere with or obstruct preexisting navigable waterways is not subject to a federal navigational servitude that would grant the public a right to use the waterway. Addressing Louisiana's claim to title of the water bottoms of the canals by virtue of its inherent sovereignty, the court holds that the state's transfers of swampland to private owners, which were valid when made, were not rendered invalid by later navigability of previously nonnavigable inland water bodies. The trial court found that the land, which the state claimed under public trust jurisprudence and the equal footing doctrine, contained no navigable waters when statehood was granted, and that the property transferred from the state to the private owners contained no tidelands or navigable waterways and were valid. The lower court's findings were based on substantial evidence. Turning to the state's and the private plaintiffs' right-of-use claims, the court holds that an artificial canal dredged on private property with private funds that does not interfere with or obstruct preexisting waterways, is not subject to a navigational servitude. The court notes that connecting waterways made navigable through erosion are "naturally" navigable, and thus ordinarily subject to a navigational servitude, even if the erosion was caused by increased water flow from the privately dredged canal, but that connecting waterways initially rendered navigable by private dredging are not subject to a navigable servitude.

[The district court's opinion is published at 17 ELR 20083.]

Counsel for Plaintiff
David Kimmel, Ass't Attorney General
Attorney General's Office
625 N. 4th St., Baton Rouge LA 70802
(504) 342-7900

Counsel for Defendants
William Pitts
Sobol & Pitts
400 Lafayette St., Ste. 130, New Orleans LA 70130
(504) 581-5600

Before HILL,1 KING, and DAVIS, Circuit Judges.