Those of us in the New Orleans metropolitan area think of the Mississippi River’s course as static, hemmed in by the federal levee system. The River meandering—or somehow changing course—is far from mind. However, one of Louisiana’s other major rivers, the Red River, was not contained by a comprehensive levee system as recently as the middle of the last century. Changes in the Red River’s course 80 years ago still manage to spawn present-day litigation that can be instructive to riparian landowners throughout the state, especially where minerals and mineral rights may be involved.
Hall Ponderosa, LLC v. State of La., through the La. State Land Office
The Haynesville shale formation is a layer of sedimentary rock in northwestern Louisiana, southwestern Arkansas, and eastern Texas. Some of the formation stretches well across the northern central portion of Louisiana. Although producing natural gas from “the Haynesville” once was considered too costly, rising energy costs and newer technology and processes (like fracking) changed that, leading to a rush of activity as energy exploration companies began to lease property in north Louisiana in preparation for possible drilling and production. As a result, the amounts that landowners could get for selling mineral leases rose sharply. One obvious way to cash in was to own a lot of land.
In Hall Ponderosa, LLC v. State of La., through the La. State Land Office, Hall Ponderosa, LLC (“HP”) apparently sought to do just that when it filed suit in 2012 in Red River Parish against the State of Louisiana, through the Louisiana State Land Office and through the Louisiana State Mineral and Energy Board, and against several landowners.
HP owned property with title acreage of approximately 48 acres that it acquired in 1926 and 1952. However, HP claimed that its property’s acreage had grown to over 310 acres as a result of changes in the Red River’s path and the deposition of large amounts of alluvion or accretion on HP’s property. HP claimed that its title acreage increased seven-fold through (1) the Red River making an avulsion cut north of HP’s property that caused the Red River to meander away from HP’s property and create a large deposit of alluvion during and after the flood of 1945, and (2) the Red River then slowly migrating south and adding significate alluvion to the southern portion of HP’s property. Hall Ponderosa, LLC v. State of La., through the La. State Land Office, 54,678 (La. App. 2 Cir. 8/10/22), 345 So. 3d 537, writ denied, 2022-01550 (La. 1/11/23).[1]
Key to HP’s claims was that its property was riparian to the Red River and that only one avulsion occurred during the 1945 flood. If so, the land at issue was accretion (or alluvion) that belonged to HP.[2]
Court Rulings
Following a bench trial held from February 20 through March 3, 2018, the trial court ruled against HP on the property dispute. The trial court found that the Red River abandoned its bed in the 1945 flood as a result of two avulsions. Therefore, the property that HP acquired in 1926 lost its riparian status and no further growth through accretion could have occurred. The trial court also agreed with the State’s position that the 1952 property had not been riparian since 1945; thus, it could not have increased by accretion.
The Louisiana Second Circuit Court of Appeal affirmed the decision and the Louisiana Supreme Court denied HP’s request to consider the case.
The central issue in the case was the movement of the Red River in 1945 and whether one or two avulsions occurred. The Louisiana Civil Code does not define avulsion. However, according to the Romanist tradition, avulsion is a violent action of the water of a river that detaches an identifiable part of riparian land and attaches it to other lands on the same or the opposite bank. An avulsion also has been defined as an “overnight cataclysmic change in the river course resulting in remnant water and more particularly a change in course.” When “a navigable river or stream 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.” La. Civ. Code art. 504.
Expert Testimony Was Key
Resolution of the property issue turned on expert testimony. The trial court found the State’s expert, Dr. Frank Willis, more persuasive because of his superior credentials and ability to articulate and explain the complex river movement at issue. The appellate court found that the trial court did not commit manifest error and it was not clearly wrong in accepting Dr. Willis’s testimony.
Dr. Willis testified that two avulsions occurred; he marked the first one in blue and the second in red on one of the State’s trial exhibits:
Dr. Willis testified that prior to 1945, the Red River made a hairpin bend, which was probably as tight as it could have turned considering the soil in the area. He stated that during the flood of 1945, the river jumped its left descending bank, made an avulsive cut across the peninsula, and “roared” across the peninsula created by the hairpin turn in a new riverbed. He testified that because of the momentum going through the first new cut, the river would not have been able to turn after the first avulsion and stay in its existing bank.
Dr. Willis testified that if the second avulsion had not occurred (as HP claimed), the river would have had to make a sudden turn to the northeast to remain in the riverbed. He stated that the only way it could have done that is if it hit rock or some other type of formation, but nothing of the sort was there. He therefore concluded that a second avulsion did occur, south of the first avulsion. As a result, HP’s claim to a seven-fold increase in its acreage failed.
The Lesson for Riparian Landowners
The case shows that riparian landowners who could benefit from an increase in their title acreage should consider historic changes to the path of the river or bayou to which their property is (or was) riparian and whether those changes support a claim for increased acreage. Similarly, if a riparian landowner claims to own property that you believe is yours as a result of historic changes in the path of a river or bayou, the nature of the historic changes should be considered in weighing the validity of the claim.
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[1] The author represented the State agencies at trial.
[2] Accretion “formed successively and imperceptibly on the bank of a river or stream, whether navigable or not, is called alluvion. The alluvion belongs to the owner of the bank. . . .” La. Civ. Code art. 499.