The defendant appeals an adverse judgment granting the plaintiff a preliminary injunction. The dispute arose a year after the plaintiff began construction along a public reservoir of a seawall, which is now 90-95% complete. While the defendant granted the plaintiff a permit to construct the seawall, it argues that the permit only granted plaintiff one year to complete the seawall. Additionally, the defendant argues that the seawall was placed in an improper location on defendant's property. After the issuance of the permit for the seawall, as construction began, the parties also executed a boundary agreement that sets forth a boundary line pertaining to the seawall. The defendant, a political subdivision of the state, challenged the boundary agreement and the trial court's granting of a preliminary injunction. We agree with the trial court's ruling and affirm the plaintiff's preliminary injunction.
As developed in the hearing for the preliminary injunction, the facts concern a permit for a seawall and boundary dispute, uniquely situated along a public reservoir. The plaintiff, Longleaf Investments, L.L.C. (hereinafter "Longleaf"), is a lake lot owner with land located on Cypress Lake which is owned and regulated by defendant, Cypress Black Bayou Recreation & Water Conservation District (hereinafter "the District"). The District is a political subdivision with powers addressed in La. R.S. 38:2601, et seq.
On July 7, 1969, the Department of Public Works recorded right of way maps of the Proposed Bayou Cypress Reservoir (hereinafter the "Lake Plat"). The Lake Plat set forth and described the following surveyed lines around the proposed reservoir in relation to mean sea level ("MSL") elevations:
Other than the above quoted language on the Lake Plat describing the three boundary lines (hereinafter the "Contour Line," the "Fee Line," and the "Easement Line," respectively), the Lake Plat gave no explanation for these lines.
On July 31, 1969, several land owners, the predecessors-in-title to Longleaf, conveyed to the District a large tract of land "lying below the fee line" as depicted on the previously recorded Lake Plat. This conveyance included the land adjacent to the lake bed now in dispute. Cypress Lake was thereafter created.
The District has adopted and maintained its "Official Policy and Regulations" (hereinafter the "Regulations"), for the public use of Cypress Lake. The Regulations also identify and address the purpose of the three surveyed lines identified on the Lake Plat. Regarding the 187.5 MSL Easement Line, the Regulations state:
In addressing the Fee Line and the Contour Line, and the use of the land between these lines, the Regulations state:
Accordingly, we will hereinafter refer to the area of land between the Fee Line and the Contour Line as the Access Strip, and it is this boundary area along Cypress Lake that is the focus of this dispute.
Additionally, the District has many other rules and provisions within the Regulations, that may have a bearing upon this dispute. We have reviewed all of the Regulations involved.
In 2010, Longleaf decided to develop its property and create a subdivision. Due to erosion around the Longleaf Tract, Young was not clear on the boundaries with regard to Cypress Lake. Longleaf's surveyor and chief engineer, Joey French, was therefore tasked with establishing the boundary line and constructing a seawall around the Longleaf Tract in order to prevent further erosion. Accordingly,
After meeting with Easterly, French surveyed the Longleaf Tract in order to relocate the 1969 179.6 MSL Contour Line. While erosion made it difficult to ascertain the original shoreline and water's edge, French's best reconstruction plotted the course for the 1969 179.6 MSL Contour Line along the current 177 MSL Contour Line. French outlined the existing 177 MSL contour line in a rough plat that he attached to the District's permit application and noted that Longleaf's proposed seawall would be built at the 177 MSL. The plat did not, however, specifically express his determination that the present 177 MSL was the approximate location of the 1969 179.6 MSL Contour Line.
On December 14, 2010, Longleaf was granted a permit (hereinafter the "Permit") to construct a seawall around their tract. The Permit was written on a District form, authorizing Longleaf as follows:
After receiving the Permit, French testified that he marked posts with pin flags, as Easterly requested, along the course he planned to construct the base of the seawall, at approximately the 177 MSL. French stated that these posts were driven to a depth of 4 feet with 2 to 2-1/2 feet exposed aboveground. Easterly denied making the post request and instead testified to only informing French and Young of the District's Fee Line and Easement Line. French testified that he constructed the seawall so that the top of the seawall would tie in with the top of a neighboring landowner's seawall, located at 180 MSL. French testified that Easterly said as long as fill material behind the seawall "has an insignificant impact on the lake it shouldn't be any problem." Construction on the seawall began in March of 2011.
Coinciding with the initial construction efforts, Longleaf also began trying to obtain a boundary agreement which Longleaf submitted to the District. An April 27, 2011 letter was prepared by Dickie Walden, the District's executive director at that time, to advise that the District's lawyer had reviewed the proposed boundary agreement and that more information, such as surveys and maps, were needed. This letter, however, was apparently never received by Young or Longleaf. Nevertheless, Ralph Whitley, a District Board member, told French to bring the boundary agreement to the District's August meeting of the Board.
At the conclusion of the August meeting of the District's Board, on August 24, 2011, Longleaf and the District, by act of its newly elected President, Michael Webber, executed a boundary agreement (hereinafter the "Boundary Agreement"). The purpose
French testified that a metes and bounds survey (hereinafter the "Seawall Survey") was identified in paragraph 5 as the "Boundary Agreement Line Description" and attached to the Boundary Agreement at the time that it was executed. The Seawall Survey contained 44 calls for distance and direction. French testified that the 44 calls corresponded to the posts that he placed in order to construct the seawall. The Seawall Survey, therefore, contains a more detailed description of the seawall's location than the plat attached to Longleaf's permit application. While French testified that the Seawall Survey was attached when the Boundary Agreement was signed, these written survey calls were not recorded in the conveyance records along with the Boundary Agreement. Instead, only a "Map of Survey" roughly depicting the Longleaf Tract and the Seawall Survey course was attached.
With other Board members serving as witnesses, the District's President Webber executed the Boundary Agreement on the District's behalf. Webber testified that he did not know what exactly was contained in or attached to the Boundary Agreement.
After the Boundary Agreement was signed, Longleaf put up the following sign in various locations on the top its seawall:
As construction of the seawall continued into 2012, neighboring landowners complained about the location of Longleaf's seawall and the amount of fill material being placed on the bed of Cypress Reservoir. These complaints were voiced at the District meeting in March 2012. The District investigated the matter.
On April 6, 2012, the District, through its legal counsel, sent a cease and desist letter to Longleaf informing them of their error in building the seawall. The District's letter stated:
Thereafter, an informal meeting was held with Young, French, Longleaf's attorney, the District's new executive director, Kevin Jeter, and several District commissioners to discuss the situation. Although the seawall was 90 to 95% complete, the District informed Longleaf that it would only be satisfied by the removal of the seawall.
Longleaf halted their construction on the seawall and filed a petition on May 17, 2012. The petition requests a preliminary injunction, permanent injunction, and a declaratory judgment recognizing that the Boundary Agreement is valid and effective between the parties. The defendant answered by denying the plaintiff's allegations and filing a reconventional demand that challenged the validity of the Boundary Agreement and requested a judgment ordering Longleaf to remove their seawall.
After a preliminary injunction hearing and the receipt of the above evidence, the trial court issued its opinion on August 3, 2012. The trial court's opinion thoroughly reviewed the testimony of the witnesses and concluded:
After the trial court's ruling, the parties failed to agree as to the wording and activity by the District meant to be restrained in the preliminary injunction. The trial court held an additional hearing to clarify its position and stated that it "allowed the plaintiff to proceed and [it] restrained the District from interfering with the construction of the seawall." The trial court added "construction of" to its judgment and then signed the following:
The District filed this appeal challenging Longleaf's preliminary injunction.
A preliminary injunction is an interlocutory procedural device designed to preserve the existing status quo pending a
All of the District's assertions of error on appeal pertain to the procedural requisites for injunctive relief, including the necessity for a prima facie showing of plaintiff's claim and irreparable injury. The substantive claim by Longleaf as expressed in its petition and prayer for relief is "[f]or a declaratory judgment that its Boundary Agreement is enforceable and its permit to construct its wall is valid and in force." From the record, the "boundary" dispute underlying this action is most unique. In fact, the title instruments establishing the lake and separating the adjoining ownerships of the District and lake lot owners indicate that the "boundary" involves more than just the so-called "fee line," but also possible use rights extending across the land from the Fee Line to the Contour Line. It is that area of land, the Access Strip, that must be reviewed for an understanding of Longleaf's substantive claim and the District's assertions regarding the judgment for injunctive relief.
Viewed solely from the initial Lake Plat and the original 1969 deed to the District, the evidence within the conveyance records reveals that the division of ownership separating the adjoining tracts was along the line designated as the Fee Line. The Fee Line was located at least 100 feet beyond the Contour Line making the Access Strip at least that wide. Therefore, from these early documents creating the disputed boundary between the District and Longleaf's predecessors-in-title, the Longleaf Tract did not extend to the expected pool stage of the lake which would be the water level at the spillway elevation of 179.6 MSL. Likewise, the 1969 deed to the District does not address in any manner, other than by an unclear implication, that Longleaf's predecessors could gain access to the lake from their property by crossing the Access Strip to reach the water line. In the same manner, the 1969 deed does not discuss the purpose of the Easement Line or make the property retained by Longleaf's predecessors above the Fee Line subject to any high water servitude in favor of the District.
This gap in the meaning for the Contour Line and Easement Line from the parish conveyance records is purportedly filled for the governance of the parties' adjoining ownerships by the District's Regulations. Nevertheless, from our review of the Regulations, the regime of lakeshore use addressed in the Regulations is far from clear. First, while the Regulations allow
Despite these issues, Longleaf's claim is that it has been granted a right to construct the seawall at a location running along the Contour Line. Before any consideration of the Boundary Agreement, Longleaf's prima facie case first rests on the December 2010 Permit. The District's Permit form identifies the original 1969 shoreline at the 179.6 MSL elevation. The Permit was granted to Longleaf to build a seawall at the 179.6 MSL. French interpreted the District's use of 179.6 MSL as the line on the ground that coincided with the Contour Line of 1969. Because of erosion the actual MSL today along the location of the Contour Line is lower. Therefore, from French's own admission, locating the geographic line of the 1969 Contour Line must involve a reconstruction and estimate of the former shoreline.
The Permit as quoted above indicated that a seawall could be constructed at the 1969 Contour Line. It allows for fill material to be placed behind the wall. The rough sketch on French's plat submitted with the application for the Permit does show a red line identified as the "Proposed Wall = 177 +/-." The trial court could accept French's testimony that he had advised Easterly that he proposed to reestablish where the 1969 Contour Line was geographically located. From this evidence, because erosion had obviously occurred over 40 years, French's interpretation and determination of the Contour Line along an elevation less than 179.6 MSL appears reasonable and his construction of the wall along this reconstructed Contour Line was arguably within the authority granted by the Permit. The District's lack of any presentation at the hearing of conflicting data from an on-the-ground survey allowed the trial court to accept Longleaf's prima facie claim.
French's later Seawall Survey is his determination of the geographic location of the former 179.6 MSL elevation, or the Contour Line. Longleaf's submission of this proposed location for the seawall was contained in the August 2011 Boundary Agreement. Regardless of any error affecting the District's consent to the Boundary Agreement which is the subject of its reconventional claim, the trial court could accept the execution of the Boundary Agreement as a further prima facie showing of Longleaf's right to continue construction along the line set forth in the Seawall Survey. To that extent, the Boundary Agreement is at least a clarification and further extension of the Permit allowing for construction to continue for at least another year. Again, there is no clear permitting procedure specifically addressing seawall construction within the Regulations and no one-year limitation was set forth on the Permit. We find disingenuous the District's attempt to enforce a one-year restraint with its ill-defined process for building a seawall, a task which the Regulations attempt to impose on the lake lot owners. Accordingly, we find that Longleaf did establish a prima facie case
Regarding the validity and effect of the Boundary Agreement as a transfer of the District's ownership of the Access Strip to Longleaf, the merits of that controversy framed by the District's reconventional demand await trial on the merits upon remand. Regardless of the outcome of that matter, a declaratory judgment of the ownership and extent of use rights of the parties also appears warranted for this Access Strip made a justiciable controversy in part by certain inadequacies in the title documents and Regulations noted above.
Next, the subject matter underlying this dispute involves a declaratory judgment action for the ownership, use and possession of immovable property. La. C.C.P. art. 3654. This includes the alleged extrajudicial Boundary Agreement which may convey ownership to each party along the designated line. La. C.C. art. 789 and its Revision Comment (c). Therefore, under Article 3663 of the Code of Civil Procedure and the jurisprudence interpreting the allowance for injunctive relief in real actions, a preliminary injunction brought pursuant to Article 3663 does not require a showing of irreparable harm. La. C.C.P. art. 3663; Cason v. Chesapeake Operating, 47,084 (La.App.2d Cir.4/11/12), 920 So.3d 436, writ denied, 12-1290 (La.9/28/12), 98 So.3d 840; Monroe Real Estate & Dev. Co. v. Sunshine Equip. Co., 35,555 (La.App.2d Cir.1/23/02), 805 So.2d 1200.
Finally, the District questions the particularity of the language of the injunction concerning the acts sought to be restrained. La. C.C.P. art. 3605. It is clear from that language and the post-trial proceeding over the scope of injunction that Longleaf was allowed to proceed with finishing the seawall and the District was restrained from taking any action regarding the wall during the pendency of the action. Longleaf's allowance to finish the wall required its posting of a $75,000 bond. The District asserts that since it had never taken action to interfere with the seawall, the judgment is impermissibly vague.
We reject this attack on the injunction. The allowance for Longleaf's finishing of the seawall was not contested timely by supervisory review and may be considered moot. Moreover, Longleaf's bond allows protection for the District in the event it prevails on the merits. Likewise, while the District had taken no prior action on the property affecting the seawall, the trial court's injunctive relief was appropriate to maintain the status quo of the use and occupancy of the controversial Access Strip, including the seawall.
Accordingly, the preliminary injunction is affirmed, and the case is remanded to the trial court for further proceedings. Costs of this appeal are assessed to the District in the amount of $147.50, pursuant to La. R.S. 13:5112.
