answer as to the ownership of the lake. A literal reading of Article 450 woulcLrequire 

 that ownership of the bed must go to the State, but this view has been criticized. 



Bank Erosion of Rivers, Bayous, and Streams 



Deltaic river systems are much more dynamic than lakes and different laws govern 

 the ownership effects of erosion on private property adjacent to rivers, bayous, and 

 streams. Navigability is still important, but the "immutable line" concept of lakeshore 

 erosion does not apply in the riverbank erosion situation. Rather, the courts adhere to 

 the concept implicit in the Code that navigabUity and its relationship to property law 

 must reflect the nature of Louisiana's rivers.^ Generally, the courts apply the same 

 navigability tests for rivers as for lakes and if a river is deemed navigable, the equal 

 footing doctrine grants title of the bed to the State. But unlike lakes, portions of rivers 

 can rapidly become navigable, while other segments may become non-navigable. Because 

 of this, the concept of navigability as applied to rivers must more accurately reflect the 

 changing nature of Louisiana's rivers. 



If a river is determined to be navigable. State law limits the state-owned bed to 

 such lands covered by mean low water as measured on both banks. If the river is found 

 to be non-navigable, the bed may be held in private ownership.^' 



The critical question that governs the Louisiana courts' inquiry into the legal 

 consequences of riverbank erosion is not navigability, but rather the nature of change 

 brought about by erosive forces. If the change is gradual and imperceptible, erosion 

 creates one set of legal consequences, but if erosion is sudden and avulsive, another set 

 of consequences arise. 



There are four imperceptible changes on navigable rivers that are specifically 

 recognized under Louisiana law: erosion, accretion (or alluvion), dereliction and the 

 creation of islands and sandbars. As a general rule, the riparian landowner loses to the 

 State any land that is eroded by a navigable river, but gains from th&.State any alluvion 

 that is deposited on his bank which causes his property to accrete. This rule is h^t 

 summed up by the Louisiana Supreme Court in Succession of Delachaise v^ Maginnis ; 



"In ... [a] . . . sense it may be said that rivers give or take away, 

 like change or fortune. If it takes away the owner must bear the 

 loss; if it gives, justice affords him the gain.""^^ 



The Louisiana courts have determined that since the Civil Code dictates that the 

 beds of navigable rivers are insusceptible to private ownership, erosion creating new 

 riverbed must work in favor of the State because "once a body of water is found to be 

 navigabJe, it follows that the bed or bottom must be held to be the property of the 

 State."-^' 



•JO 



The Civil Code specifically sets out the rules for accretion or alluvion.-^^ Article 

 499 simply states that "the alluvion belongs to the owner of the bank . . ." It must be 

 noted, however, that although the banks of navigable streams may be held in private 

 ownership, Article 499 reserves to the public the right to occupy such banks for 

 necessary purposes (e.g., wharfs, boat landing, drying of nets). 



Dereliction, the imperceptible drying up or retreat of a navigable river, is treated 

 similarly to accretion. Ownership of newly exposed land belongs to the riparian, 



131 



