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United States Court of Appeals,

Fifth Circuit.

No. 95-31057.

BAYOU FLEET PARTNERSHIP, Plaintiff-Appellant/Cross-Appellee,

v.

DRAVO BASIC MATERIALS COMPANY INCORPORATED, DefendantAppellee/Cross-Appellant,

Dravo Corporation, Defendant-Appellee/Cross-Appellant.

DRAVO BASIC MATERIALS COMPANY, INC., Plaintiff-Appellee/CrossAppellant,

v.

BAYOU FLEET, INCORPORATED, Defendant,

and/or

Bayou Fleet Partnership, Defendant-Appellant/Cross-Appellee.

March 5, 1997.

Appeal from the United States District Co urt for the Eastern

District of Louisiana.

Before POLI TZ, Chief Judge, and EMILIO M. GARZA and STEWART,

Circuit Judges.

POLITZ, Chief Judge:

Bayou Fleet Partnership, plaintiff, and Dravo Basic Materials

Company, Inc. and Dravo Corporation, defendants, both appeal a

judgment against Dravo Basic for $25,000 in damages cause d by

Dravo's unauthorized removal of limestone working bases from Bayou

Fleet's property. We conclude that under controlling provisions of

the Louisiana Civil Code the limestone working bases were a

component part of the immovable property belonging to Bayou Fleet.1 Louisiana Materials Co., Inc. actually purchased the property

at the sheriff's sale, but under a prior agreement with Bayou Fleet

it promptly transferred the property.

2 For the reasons assigned, we reverse and render judgment in favor

of Bayou Fleet.

Background

From 1989 to 1993, pursuant to an oral lease, Dravo operated

an aggregate yard in Hahnville, Louisiana on a tract of Mississippi

River batture property owned by Neal Clulee. Dravo established the

aggregate yard to store, stockpile, and sell limestone extracted

from quarr ies in Illinois and Kentucky and transported down the

Mississippi River to the yard.

Dravo established three stockpiles of limestone on the Clulee

property, each of which was placed on a foundation made from

hardened limestone commonly called a "working base." The working

bases were formed by putting a fabr ic liner on the batture and

placing lar ge quantities of loose, saleable, limestone thereon

until the weight compressed the batture and the l imestone became

compacted. Once formed, tons of loose limestone could be stored on

the working bases.

On August 13, 1992, the Sheriff of St. Charles Parish seized

the Clulee property and on January 27, 1993 sold it at a sheriff's

sale. Bayou Fleet 1 acquired ownership and intended to continue to

lease to Dravo or some other aggregate yard operator. Bayou Fleet

and Dravo could not reach a lease agreement and Dravo determined to

vacate the premises but did not do so until the weekend of March 6-2 The parties dispute whether Dravo had Bayou Fleet's

permission to remain on the property from the time of the sheriff's

sale until the weekend of March 6, 1993. Robin Durant, a partner

of Bayou Fleet, contacted Richard Koen, an employee of a company controlled by Dravo, during the last week of February 1993 to ask

why Dravo had not vacated the property. In addition, Durant sent

the president of Dravo two separate faxes, dated March 2, 1993 and

March 8, 1993, requesti ng confirmation that all of Dravo's

materials had been removed. The faxes went unanswered.

3 There is no evidence in the record how many tons of limestone

removed by Dravo constituted loose, saleable limestone from the

sto ckpiles and how many tons constituted hardened, compacted

limestone from the working bases.

4 Fritz John Miller, Jr., an employee of Bayou Fleet,

discovered the damage on March 9, 1993 and reported it to Bayou

Fleet, describing the property as "look[ing] like a bomb had been

dropped [on it]."

3 8, 1993. 2

On March 6, 1993 Dravo began to remove the limestone from the

p roperty, utilizing a Cat 225 Excavator, a backhoe, a bulldozer,

front end loaders, and dump trucks. Over the weekend Dravo removed

all of the loose stockpiles of limestone as well as the three

working bases. In all, Dravo removed approximately 26,000 tons of

limestone. 3 On March 9, 1993 Bayou Fleet learned that Dravo had

removed the stockpiles and the working bases. 4

Dravo filed a declaratory judgment action in state court

seeking to be declared the owner of the limestone removed from the

property. Bayou Fleet then filed this action for damages and

removed Dravo's state court action to federal court. The two

actions were consolidated and tried to the bench. The district

court found that Dravo was entitled to remo ve a majority of the

limestone in the working bases. Dravo was held liable, however,

for the excavation of the portion of the working bases that had5 James v. Hyatt Corp., 981 F.2d 810 (5th Cir.1993).

6 Equibank v. United States Internal Revenue Service, 749 F.2d

1176 (5th Cir.1985).

7 La. Civ.Code art. 448.

8 La. Civ.Code art. 462.

4 bec ome a component part of the property. The court stated that

Dravo's surreptitious removal of the lim estone was "unusual and

u nbusinesslike," and it held Dravo liable for $25,000 in damages

caused by its trespass on Bayou Fleet's property. Both Bayou Fleet

and Dravo timely appealed.

Analysis

The sole issue presented by this appeal is whether Dravo had

the right to remove the limestone working bases and the loose

stockpiles of limestone from Bayou Fleet's property. The

resolution of this issue turns on the classification of the

limestone as either movable or immovable under Louisiana property

law. Findings of fact are upheld unless clearly erroneous. 5 The

classification of the limestone is a matter of law which we review

de novo. 6

The Civil Code classifies things as either movable or

immovable. 7 An immovable is defined as a tract of land with its

c omponent parts. 8 Article 463 of the Civil Code provides that

component parts of a tract of land include, among other things,

o ther constructions that are permanently attached to the ground.

The Civil Code does not, however, speci fically define what

qualifies as an "other construction" under Article 463; that9 Bailey v. Kruithoff, 280 So.2d 262 (La.App.1973); B enoit v.

Acadia Fuel & Oil Distributors, Inc., 315 So.2d 842 (La.App.), writ

refused, 320 So.2d 550 (1975).

10 See Polhman v. De Bouchel, 32 La. Ann. 1158 (1880); Bigler

v. Brashear, 11 Rob. 484 (1845); M onroe Auto & Supply Co. v. Cole,

6 La.App. 337 (La.App.1927); B ailey; I ndustrial Outdoor Displays

v. Reuter, 162 So.2d 160 (La.App.), writ refused, 164 So.2d 352

(1964); American Creosote Co. v. Springer, 241 So.2d 510 (1970).

1 1 Bailey; B enoit; T elerent Lea sing Corp. v. R & P Motels,

Inc., 343 So.2d 267 ( La.App.1977). Although these cases were

decided prior to the 1978 revision of the Louisiana Civil Code,

they remain relevant to the determination of what qualifies as an

other construction under Article 463, a matter not addressed by the

revision. A.N. Yiannopoulous, Property, Louisiana Civil Law

Treatise, § 141, p. 311 (1991).

1 2 See, e.g., McNamara v. Electrode Corp., 418 So .2d 652

(La.App.), writ denied, 420 So.2d 986 (1982) (holding that anodes

that were small in size and could be removed in 15 minutes were

movable because they lacked the required size and degree of

permanency); Telerent Leasing Corp. (holding that an alarm system,

a public address system, and a background music system which were

5 determination is left to the judiciary giving due consideration to

prevailing societa l notions. 9 Louisiana courts have found "other

c onstructions" to include a cistern, corn mill, gas tank, barbed

wire fence, outdoor adv ertising sign, and a railroad track. 1 0 We

now conclude that the limestone working bases at issue herein can

and properly should be classified under Article 463 a s other

constructions permanently attached to the ground.

In determining whether an object is an "other construction"

within the meaning of Article 463, Louisiana courts generally rely

on three criteria: the size of the structure, the degree of its

integration or attachment to the soil, and its permanency. 1 1 If

there is a failure of any of these criteria, an object will not be

deemed to be an immovable. 12easily removed were all movable because they lacked the necessary

degree of permanency).

6 The limestone working bases were massive in size. The volume

of the limestone excavated by Dravo was 26,628.98 cubic yards and

a pproximately 46,721.5 cubic yards of dirt would be required for

fill to restore the land to its prior condition. The working bases

were capable of supporting the weight of tons of loose limestone,

dump trucks, tractor-trailers, and other heav y equipment used in

the operation of the aggregate yard.

The limestone working bases were attached firmly to the

property. The weight of the limestone working bases compressed the

batture property and, having done so, actually formed the surface

level of the property. To remove the working bases Dravo had to

dig them out of the ground, using heavy equipment, including a Cat

225 Excavator, to break loose the compacted limestone.

Finally, the limestone working bases achieved the necessary

degree of permanency, having been placed on the Clulee property in

1989 and continuing thereon undisturbed until Dravo's action. In

i ts regular course of business Dravo did not remove any of the

limestone from the working bases; only loose limestone from the

stockpiles on top of the working bases was sold to customers.

We conclude that the size, degree of attachment, and

permanence of the limestone working bases, all combine to establish

beyond peradventure that the limestone working bases of the

aggregate yard were other constructions permanently attached to the

ground within the intendment of Article 463. The loose stockpiles13 La. Civ.Code arts. 490-506.

14 See La. Civ.Code art 491; Yiannopoulos, § 141, p. 312.

15 American Creosote.

16 La. Civ.Code art. 498.

7 of limestone were not; nor do they qualify as an immovable under

any other applicable provision of the Civil Code. Although the

stockpiles were massive in size, they were neither attached to the

ground nor permanent.

The classification of the working bases as other

constructions does not, however, end our inquiry. The ownership of

the working bases must be determined by reference to Civil Code

articles concerning accession in relation to immovables. 13 Other

constructions, such as the limestone working bases, may belong to

a person other than the owner of the ground to which they are

attached. They are presumed, however, to belong to the owner of

the ground unless separate owner ship is evidenced properly by a

recorded document. Absent such a public recordation, an other

construction is considered to be a component part of the land and

is transferred with it. 14

Dravo was the original owner of the materials composing the

working bases, but it recorded no evidence of its ownership. It

could have protected its interest in the limestone working bases by

recording its lease with Clulee. 15 This was not done and Bayou

Fleet acquired the immovable property free and clear of any claim

Dravo may have had to the land or any constructions thereon. 16

Ownership of the working bases transferred to the purchaser at1 7 See n. 1; C entral Oil & Supply Corp. v. Wilson Oil Co., 511

So.2d 19 (La.App.1987), writ denied, 535 So.2d 747 (1989) (holding

that a purchaser at a sheriff's sale became the owner of equipment

that had become incorporated into immovable property).

1 8 Bail ey

(holding that lessee who removed a fence which had

become a component part of the land was liable to purchaser of land

for the reasonable replacement cost of the fence).

8 the sheriff's sale. 1 7 Dravo had no right to remove the working

bases and is thus liable for their reasonable replacement cost. 1 8

Uncontroverted expert testimony in the record establishes that it

would cost $263,222.22 to restore the property to its former

condition. We therefore REVERSE the judgment of the district court

and RENDER judgment in favor of Bayou Fleet and against Dravo Basic

Materials Company, Inc. and Dravo Corporation in that amount. We

defer to the district court on the matter of interest and return

this matter for entry of an appropriate judgment.

Appellant-cross-appellee's motion to strike cross appellants'

reply brief is DENIED. Appellee-c ross-appellant's motion to file

supplemental briefs is DENIED.