One of the many benefits of owning land in the State of Louisiana, both for residential and commercial purposes, is the proximity to major rivers and their tributaries, such as the Mississippi River. The state’s vast network of rivers and tributaries allow for an alternate mode of intrastate as well as interstate commerce and, as a consequence, renders properties bordering on these rivers and tributaries of increased value.
Such properties, referred to as riparian properties, involve the unique challenge of the identification, ownership, and use of the land between the properties and the water bodies themselves, commonly referred to as the batture. Merely acquiring riparian land adjacent to a navigable water body is only the first step in the pursuit of the acquisition and use of batture.
What is Batture, Legally Speaking?
From a legal perspective, the definition of batture has had a very troubled past in Louisiana. Jurisprudential definitions have ranged from defining batture as the area between the ordinary low and ordinary high water mark of a river, the land formations below the ordinary low water mark of a river (essentially the bed of the river), and the land forming a bottom of sand, stone, or rock mixed together and rising towards the surface of the water.
However, over time, courts in Louisiana have come to define batture as being synonymous with alluvion or accretion, meaning the land formed by the deposits of material or by receding waters on the banks of a river. More recent cases have accepted this definition and noted that the batture comprises all of the land between the ordinary low and high water marks of a river. See Borgenmouth Realty Co., Ltd v. Parish of St. Bernard, 2013-1651 (La. App 4th Cir. 5/21/14), 141 So. 3rd 891.
Based upon this generally accepted definition, one can see the different classifications of riverfront property. The land below the ordinary low water mark is the bed of the river, and is owned by the state. The land above the ordinary high water mark of a river is generally “high and dry,” also known as “fast land,” and is susceptible of ownership just like any other parcel of ground; this is often referred to as “riparian land,” and the owner is often referred to as the “riparian owner.” The land in-between is the usual battleground, the batture.
Who Owns the Batture?
After deciding what exactly the batture is in relation to a parcel of riparian land, the next and perhaps most important question is who, if anyone, is the owner of such batture. Naturally, the owner will have the legal right to use this area, subject to the rights of the state and/or federal government and, in some limited circumstances, the public generally as it pertains to the banks of navigable rivers.
To the extent that batture is considered to be comprised of alluvion deposited by a navigable river, Louisiana law grants the ownership of same to the riparian owner as an accessory right by operation of law under Civil Code Article 499. It is important to note however, that the riparian owner does not have the right of ownership to any alluvion on the shores of the sea, an arm of the sea, or a lake (See Civil Code Article 500).
Since alluvion is an accessory right to the riparian land, ownership is automatically transferred with the riparian land, until the point that the alluvial soil has been built up to the extent that it is susceptible of ownership separate from the riparian land. Although not a hard and fast rule, if the alluvion or batture has formed to the degree that it appears above the water of a river at its ordinary level, then it is likely susceptible of ownership separate from the riparian land. As such, it would be necessary to transfer rights in the batture in any sale of the land, or even separately.
In order to avoid the potentially difficult determination of whether batture is capable of separate ownership, it is advisable in any transaction involving riparian land to specifically mention that not only is the riparian land being sold but also any rights of the seller in and to batture. Moreover, it is also helpful in those circumstances to have the batture area shown on any survey prepared for the sale of the riparian land, and for such survey to be annexed to the act of sale.
One of the potential complications that makes such a survey important is a situation with respect to which the law is unsettled, and which is generally is beyond the scope of this article. Specifically, if the alluvial soil has been built up to the extent that it appears above the high-water mark of the river, then it may be susceptible of separate ownership, in which event it would lie in-between the original riparian land and the batture that was formerly adjacent to it. If this situation exists, careful legal attention needs to be devoted to it. In most cases, this situation will not exist, and the batture will constitute an accessory right to the riparian land. The survey will help show that this simpler and more well-established fact pattern exists.
The Division of Batture Among Adjacent Land Owners
Assuming that one has been careful in an acquisition of riparian land to describe the batture, and is reasonably comfortable with identifying the area that will constitute batture, Louisiana law contains something of a trap lying in wait as it relates to the ownership of batture embodied in Louisiana Civil Code Article 501. In short, this Civil Code Article embodies a public policy under Louisiana law that all of the owners of riparian land should have an equitable or fair use of the batture or alluvion. It is very easy for an unsuspecting purchaser of riparian land to make the assumption that the batture being conveyed with that land would simply be the land encompassed by the extension of the property’s boundary lines out to the water of the river.
However, Civil Code Article 501 gives adjoining land owners who may have less physical frontage on the river the right to invoke a civil proceeding to have a court determine a different proportion of use and ownership of the batture area. In this manner, for example, a parcel of riparian land that, when its boundaries are extended to the river’s waters, may appear to have 200 feet front of batture area may be determined by a court to only have 150 feet front by reason of the adjacent owner only having 30 feet front and thereby needing the extra 50 feet from its neighbor to accomplish the fair and equitable division of the use of the batture.
Although an oversimplification, and certainly a comprehensive discussion is beyond the scope of this article, it appears that the courts have interpreted Civil Code Article 501 as allowing the division of alluvion or batture so as to achieve the basic goals that (1) each owner should receive a fair proposition of the area of the alluvion and (2) each owner should receive a fair proportion of the new frontage on the water.
Buyers Should Exercise Caution
Individual factual circumstances may, however, vary the application of these rules. Therefore, as can be readily seen, merely acquiring rights to batture area does not, in and of itself, end the task for a purchaser needing or desiring such river frontage to conduct commercial operations. Unless a buyer is willing to engage in potentially costly and protracted litigation, the buyer will always be subject to the rights of an adjacent owner to assert the apportionment rights afforded by Louisiana Civil Code Article 501 to reduce what the particular buyer “thought” had been acquired.
Buyers need to exercise caution and make a careful analysis of the suitability of any batture area for a particular purpose.
As indicated previously, ownership of batture does not necessarily implicate exclusive use, apportionment issues aside. Rights of the public to the banks of navigable rivers, under Louisiana Civil Code Article 456, still exist for such uses as mooring of boats, or drying of nets. In addition, and especially in the case of “federal” water ways such as the Mississippi River, the federal government may also exercise legal rights of regulation as to the use of batture in or the public’s right to use same for the construction of ports and related facilities for the public benefit. Accordingly, these other third party rights of use should also be considered when evaluating the suitability of batture for a buyer’s particular purpose.
The Upshot: Ownership of Batture Is Not a Simple Issue
As can be seen from the foregoing discussion, the concept of ownership and use of batture along navigable rivers in Louisiana is not a simple issue, and indeed, may carry pitfalls for an unwary buyer. The temptation to “assume” how ownership of the batture adjacent to riparian land will necessarily flow needs to be resisted, and the advice of an attorney experienced in real estate in general, and batture in particular, should always be obtained as a matter of sound business practice.
While this discussion has attempted to highlight some of the history, aspects, and law surrounding batture property in Louisiana, it is not intended to be exhaustive. For a more thorough treatment of the topic, reference can be made to the Louisiana Land Title Association presentation on Historical Titles found on this firm’s website and through other sources.