State v. Bourdon - 535 So. 2d 1091 (La. Ct. App. 1988)

Rule:

The abandoned bed of a navigable river that changes its bed or course may remain, in fact, a natural navigable water body, as the State contends. If, however, the change in the river bed occurs after 1812, the abandoned bed, even though an oxbow lake that is navigable in fact, as a matter of policy or law for more than 175 years under the specific provisions of Art. 504, loses its identity as a public thing and becomes privately owned.

Facts:

In the current petitory action to determine ownership of the bed of an oxbow lake created by Red River near the Grand Bayou community in Red River Parish, the State appealed a judgment rejecting its demands and decreeing that the 123-acre bed of the lake was privately owned by defendants by virtue of 30 years acquisitive prescription. The State contended that the phrase “abandoned bed” in Article 504, Civil Code, should not be deemed to include the bed of a newly-formed, navigable oxbow lake because the redactors did not use phrases such as "abandoned river" or "abandoned lake," and did not intend to deprive the public of the right to use a natural navigable waterbody which was previously enjoyed. According to the State, the owner who lost land when a meandering river made a new bed was not a “riparian owner” of lands surrounding the newly formed oxbow lake, and thus, the affirmance of the lower court’s judgment would deprive the owners of land around a newly formed oxbow lake the “alluvion and dereliction” rights that were provide riparian owners by the Civil Code.

Issue:

Under the circumstances, was the 123-acre bed of an oxbow lake susceptible to private ownership? 

Answer:

Yes.

Conclusion:

The court noted that the principle expressed in CC Art. 504 was not contingent upon the abandoned bed being wet, dry, navigable or non-navigable in fact or in law, but simply arose out of a navigable river abandoning its bed for a new one after 1812. According to the court, CC Art. 504 was not ambiguous and made no exceptions in conferring private ownership of the abandoned river bed on those whose land has been taken by the new channel. Thus, in this case, the abandoned bed, even though an oxbow lake that was navigable in fact, as a matter of policy or law for more than 175 years under the specific provisions of Art. 504, lost its identity as a public thing and became privately owned. The State did not otherwise contest the judgment or the legal sufficiency or duration of defendants' acts of possession for more than 30 years. Under these circumstances, the judgment of the trial court was affirmed.