Select Page

Civil Law Property
Southern University Law Center
Seidemann, Ryan M.

Seidemann (Civil Law Property Spring 2013)

INTRODUCTION: DOMAIN OF PROPERTY LAW

Art 476: One may have various rights in things: ownership; personal and predial servitudes; and, other real rights as law allows

Real rights – confer direct and immediate authority over a thing;

Real rights v. OBL

– connection with a thing à direct and immediate authority; usus (use), fructus (fruits of), and abusus (dispose)

– opposability à right a/g the entire world

– pursuit à right to pursue thing into hands of 3rd party

THINGS

Art 448: Division of Things à Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables

1. Common, public, and private things

a. COMMON V. UNCOMMON THINGS

Art 449: Common Things à 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 conformably with the use for which nature has intended them

– illustrative list (has catch all ejusdem generic); neither the state nor a private citizen may own

– a contrario: when statute says one thing, it excludes another; everything not stated are non-common things

b. PUBLIC V. PRIVATE THINGS

Art 450: Public Things à Public things are owned by the state or its political subdivisions in their capacity as public persons. Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore. Public things that may belong to political subdivisions of the state are such as streets and public squares.

Art 453: Private Things à are owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons.

i. Explication

Art 450, c.C à state acts with a dual personality in ownership: public person and private person; state owns “public property” in one of these capacities…either in its public capacity or private capacity; there are two types of state ownership in public capacity (public things): necessarily or adventitiously

– necessarily: constitutional or legislative provision; making thing inalienable or insusceptible to private ownership;

o Art IX, §3: beds of navigable running waters, seashore, beds of GOM

– adventitiously: currently subject to public use; by nature, it could be privately owned; Landry test, 3 requirements:

1. open to indiscriminate use (yes)

2. free of charge (yes)

3. quasi-commercial purpose (no)

ii. Significance: susceptibility of private ownership

ease of disposal à if private, may be disposed of in any manner (abusus; Art 454); if public, either inalienable or disposal is specifically regulated

vulnerability to prescription à private is susceptible of prescription; public not susceptible of prescription

susceptibility of possession à private susceptible of possession; public never susceptible of possession

iii. Public use

What things are susceptible to public use? 1) Art 452: Public Things and Common Things; 2) Art 455: Private Things subject to Public Use

Art 452: Public Things and Common Things subject to Public Use à Everyone has the right to fish in the rivers, ports, roadsteads, and harbors, and the 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 property of adjoining owners. The seashore within the limits of a municipality is subject to its police power, and public use is governed by municipality.

– note: all things listed are incidental to navigation and/ or the activities related to the nature/character of the water body

Art 455: Private Things subject to Public Use à in accordance with law or by dedication

– all public things are subject to public use; however, this use must be in accordance with Art 452

iv. Exemplary public things

(a) Water bodies and related lands

1/ General à bottoms of natural navigable water bodies (art 450)

– determining navigability: Burns, 2 O’Clock Bayou, Amite Sand

o suitable for commercial use

o size (width, depth, length)

o float a “boat of some size”

o possibility of transporting men/things

o obstructions (possibly impeding)

o historical designation (Equal Footing doctrine)

– in La, commercial use is most important : why? b/c La takes test from the federal government, which is based upon the Commerce Clause in Constitution

2/ Particular Types of water bodies/related lands

A/ SEA

(i) seawater

– art 450, p2: territorial sea is a public thing;

– in La, territorial sea = GOM and any “arms of the sea”

– R.S. 49:3 (GOM is sea)

– Note: if classified as GOM or AOS, then automatically navigable water

(ii) seabottom (seashore)

Art 451: Seashore à space of land over which the water of the sea spread in the highest tide during the winter season

– note: in La, highest tides are in the summer; follow Roman law and adopted for historical purposes

– seashore test = Open Coast test (Buras)

o immediate vicinity of open gulf

o receives direct overflow from tides

B/ INLAND WATER BODIES

(i) Rivers and Streams

– river = body of fresh water with perceptible current that is defined within fixed banks

Navigable Rivers and Streams

– water = natural navigable water bodies are public things; per 450,

– beds = area of land covered by low water; public thing, per 450

– banks = area b/t low and high water stage; private thing, subject to public use (456, 455)

Art 456: Banks of Navigable Rivers or Streams à banks are private things subject to public use. The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water. Nevertheless, when there is a levee in proximity to the water, established according to law, the levee shall form

tached to a bank, formed in the beds of navigable R/S, belong to the state.

– Change in course — R/S “abandons its bed”…as the bed of Nav R/S is a public thing, ownership follows the bed; state acquires ownership of new bed; as compensation, LO is given abandoned bed; in Bourdon LO allowed to take possession of abandoned bed, which had become a navigable lake.

Art 504: Ownership of Abandoned Bed when River Changes Course à when navigable R/S abandons its bed and opens a new one, the owners of the land on which the new bed is located shall take by way of indemnification the abandoned bed, each in proportion to the quantity of land that he lost.

(ii) If Non-navigable

– Subsidence — who owns bed? [private LO] – Alluvion and dereliction — per 499, no change in ownership

– Avulsion — per 503, no change in ownership

– Change in course — ownership moves with river

C/ Lakes

(i) If Navigable

– Subsidence — land that becomes covered becomes public thing owned by the state; it is now considered part of the bed; Miami Corp

– Alluvion and dereliction — state owned in private capacity; art 500

(ii) If Non-navigable

– Subsidence — no change in ownership; private LO

– Alluvion and dereliction — private LO

v. Dedication to public use

– definition à according to 455, private owner may dedicate to public use; private owner is not giving up ownership, instead only giving a servitude

– types: 1] Formal 2] Implied 3] Statutory 4] Tacit

1] Formal à property must be dedicated by written act w/ clear intent to dedicate; (authentic act not required);

2] Implied à must be clear 1) intent to dedicate, and 2) intent to accept

– Cenac – in order to establish clear intent to dedicate, need to exclude all other hypothesis; stricter requirements of intent as there is no written documentation; toleration of public use is not enough to establish dedication; posting signs;

3] Statutory à usually used in developing of neighborhoods/subdivisions; developer must dedicate in writing all things that are public; R.S. 33:5051

4] Tacit à applies only to roads and streets; if road/street is kept up by the state/city for 3 years, it is dedicated to public use; sufficient if private owner has constructive knowledge the property was being “worked”; if owner wants road to stay private, must make request to state/city to stop all work; R.S. 48:491