Bendich v. Scobel

Statement. The opinion of the court was delivered by Monroe, J. In 1859, Marco Bendich established a camp for the fishing of oysters upon a point of swamp land, in the Parish of Plaque-mines, owned by the State, and lying between Bayou LaChute, on the east, and Bay Bastian, on the west. Since that time, other persons have established similar camps, and there are, now, in that vicinity, ten or twelve such camps, consisting of small houses, built on piles driven into the marsh, in which the fishermen and their families make their homes. A short distance to the north of Bay Bastian, in Bay Adam, out of the east side of which Bayous Cherie and Longue flow, in a southerly direction, until, meeting together, they form Bayou LaChute, the general course of which is, also, southerly, a few hundred feet to the eastward of, and, approximately, parallel with, the shore of Bay Bastian, until it empties into that bay, upon the southeast side, the land between the Bayou and the bay and upon the shores of the bayou being that upon which the plaintiff, Bendich, is established, and the bayou, itself, near its mouth, being the site of his, and of the other plaintiffs,’ oyster beds. There have, also, been, 'for a number of years, other camps and other oyster beds established on Bayou LaChute, higher up the stream, the occupants and owners of which were, formerly, in the habit of getting into Bay Bastian through the mouth- of the bayou, hut, in 1888, they made a canal, or- “cut off,” across the strip of land between the Bayou and-the bay at a point near their camps and beds, which are, probably, less than a mile to the northward from the Bendich settlement; the purpose, as we conclude, from all the [244] testimony, being; to enable them to pass, more conveniently, from their oyster beds in the bayou to their other beds in the bay; to facilitate the loading of luggers anchored in the bay; and, also, possibly, to obtain more .salt water for their oysters, bedded in the bayou. The “cut off,” when first made, was eleven feet wide, and not more than two feet deep, and, in that condition, would have inflicted no injury upon the fishermen below. They were, nevertheless, apprehensive, and closed it, within two months, or less time, after it was opened. It was, however, soon reopened by those who had made it, and, thereafter, remained open, increasing in width and depth, until May, 1900, when it was again closed, by the men from the Bendich settlement, who were, thereupon, arrested and committed for trial before the criminal Court, at the instance of their upstream neighbors. It was at this time that the plaintiffs, fourteen in number, brought the present action, the prayer of the petition in which reads as follows: “Wherefore your petitioners respectfully pray that a writ of injunction herein issue, directed to the said defendant, Luke Scobal, and others, forever enjoining and restraining them from opening the said canal, or crevasse, and in any (manner) otherwise do (?) any action calculated to injure, damage, or destroy, your petitioners’ property, or disturb them in the possession of their rights, or obstruct, change, or alter the course of Bayou LaChute, a navigable stream, and that they be duly cited to appear and answer hereto, and that, after due proceedings had, there be judgment in favor of your petitioners, and against the said defendants, perpetuating the injunction herein issued, and condemning defendants to pay all costs.” Upon the petition, as thus filed, a preliminary injunction was issued, purporting to restrain the defendants from opening the “cut off.” A3 a matter of fact, the “cut off” was, at that time, open, but some of the plaintiffs proceeded to close it, after the issuance of the injunction. The defendants, through their counsel, took a rule to dissolve, the writ, which was made absolute, as to all the plaintiffs except Bendich (who had not participated in closing the “cut off”), upon the ground that they had neither made affidavit, nor given bond; and they, then, took a rule ordering Bendich to show cause why the status, as it existéd prior to the institution of the suit, should not be restored, which was referred, by the trial judge, to the merits. Thereafter, the defendants answered, and the case was tried upon its merits, with the result, that there was judgment for the defendants, dissolving the [245] injunction, in toto, dismissing the suit, and awarding damages, in favor of the defendant, Scobal, and against the plaintiffs, in solido, in the sum of $500; and from this judgment the plaintiffs have appealed. It appears, from the evidence, that Fay Bastían is an estuary, opening into the Gulf of Mexico, across the mouth of which there is a small island, known as “Shell Island,” and that, upon each side of this island', there is, or was, a passage to the gulf. It further appears that when Bendich established himself in his present camp, more than forty years ago, the tide passed through the, then, existing channel, to the eastward of Shell Island, and that there was considerable current, and fairly good navigation, for fishing boats, in said channel, along the eastern shore of the bay and in front of the mouth of Bayou LaChute. In the course of years, however, whether by reason of particular storms, or of the prevalence of winds, blowing in a particular direction, or because the bayous entering the bay upon the west side carry more water, and have stronger currents, or, because the “cut off,” which is here complained of, has diverted the water of Bayou LaChute, so that less of it passes through its lower reach, and mouth, or, from these, and other, causes, combined, the fact is, that a change has taken place, and the tide now ebbs and flows almost entirely through the channel to the westward of Shell Island, which, at this time, is known as “Grand Bayou Pass,” and is the only practicable pass from the bay to the gulf, whilst in the pass to the eastward, there is dry land, at low tide; the water upon the eastward shore of the bay in that vicinity is shallow; the bar at the mouth of the bayou obstructs the entrance thereto; and the lower reach of the bayou is filling up with mud, which threatens the destruction of the oyster beds there situated. Our conclusion, upon this subject, is, that the filling up of the bayou, between its mouth and the “cut off,” may, fairly, be attributed, in part, to the change resulting from natural causes, which has taken place in the movement of the water, between the bay and the gulf, and, in part, to the larger percentage of water which is diverted from the •bayou, by the “cut off,” which is now forty-two feet wide, and quite deep; and, whilst we are unable to say in what precise proportions these causes respectively, produce the effect thus mentioned, we are convinced that the withdrawal of the volume of water now .diverted by the “cut off,” is a potent influence, whereas the “cut off,” considered with refer • ence to its dimensions in 1888; was comparatively, harmless. [246] It further appears, from the evidence, that Bayou LaChute has it* source and runs its course entirely within the body of the parish of Plaquemines, and is navigable, when navigable at all, for very small craft; that the adjacent swamp land and i-he bed of the bayou, itself, belong to, and are under the control of, the State of Louisiana; and that, as between the State and the parties to this litigation, whatever legal rights the latter may possess, whether with respect to the occupancy of the land, upon which their camps are established, or to the bottoms, in which their oyster beds are planted, are, and must be, derived from the State, or its representatives, the Parish of Plaque-mines. It further appears that the “cut off” in question, had been open, continuously, for more than eleven years before the plaintiffs undertook to close it, in May, 1900, and that, during that time, neither the State of Louisiana, nor the Parish of Plaquemines, nor the plaintiffs herein, made any complaint of it; but that, on the contrary, the plaintiffs have, within that period, leased the bottoms upon which they are now bedding their oysters from the Parish of Plaquemines, with full knowledge of the existence of the “cut off,” whilst the defendant, Scobal, has leased his oyster beds from the same authority, by a contract in. which the “cut off” is not only mentioned,- but included. The evidence as to the cause and extent of the inquiry to the defendant, Scobel’s oyster beds, as to traveling expenses incurred by him, and as to loss of time sustained, is inconclusive and unsatisfactory, whilst-that in support of the claim for attorney’s fees relates to fees for ‘ services rendered in connection with the closing and opening of the “cut -off” in May, 1900, and the subsequent prosecution of the plaintiffs, resulting in their being compelled to pay fines and costs to the amount -of $287.00. On the Motion to Dismiss the Appeal. The defendants, through their counsel, move to dismiss the appeal, on the grounds: (1) That all the evidence adduced and filed is not included in the transcript; and (2) that it does not sufficiently appear, from the motion and bond, by which of the plaintiffs the appeal was taken. Concerning the first ground; we find 'the following in the transcript: “Defendant offers the affidavit, warrant and commitment, and bonds to the District Court, in the case of the State of Louisiana vs. John [247] Hihar et als., also,- the record No. 40, and verdict and sentence therein, in the case of State of, Louisiana vs. Anthony Tonkovitch et als. “It is admitted that the defendants in the above judgment referred to paid their fines and costs, which amounted to $287 and filed as Exhibit No. 7 D. “And also the proceedings of this suit from the minutes.” The complaint is, that the clerk had included in the transcript, only the affidavit and warrant, in the one prosecution, and the information, in the other, and this complaint is sustained by the facts. There is no doubt, therefore, that the transcript is defective, as alleged. We are unwilling, however, on that account, to dismiss the appeal, in view of the admission as to the result of the one prosecution, and of the information offered by the affidavit and warrant, as to the other; since nothing else, in either record, could affect the merits of this case. As to the second ground; it is true that the counsel by whom the appeal was taken appear to have styled themselves “attorneys for plaintiff,'' at one place, in the motion, and, also, in signing the appeal bond; but, in both motion and bond, the title of the suit is given, the judgment, from which the appeal is taken, is described, as having been rendered against the plaintiffs (in the plural), and the parties appealing «are referred to as the "moversf’ and, as “Marco Rendich et als," respectively, so that, there can be no reasonable doubt as to'the purpose of either motion or bond. “The fact that the appeal bond is signed by only one of several appellants does not vitiate the appeal, inasmuch as, under the settled jurisprudence of the State, such bond is valid, even i f not signed by the appellant.” Murrell vs. Murrell, 33rd Ann. 1233. The motion is, therefore, denied.