CV LAND, LLC V. MILLERS LAKE, LLC, (LOUISIANA COURT OF APPEALS, NOV. 2023)
CLAIMS:
The case revolves around a dispute regarding riparian rights and access to the natural flow of running water. A downstream owner of 1,104 acres sued the owner of a 3,000-acre lake called Miller’s Lake to demand the water's release and the levee's removal.
EVIDENCE:
The facts revealed that Defendant’s predecessors in title, through a historical private agreement from the 1930s with the then predecessors of Plaintiff, developed a levee system to capture water for irrigation purposes on Defendant’s property. Plaintiff, which acquired a tract adjacent to Defendant, claimed that the construction of Defendant’s dam had diverted the natural flow of water, negatively impacting its riparian rights for agricultural irrigation. Defendant relied upon the 1933 agreements that were clear that the predecessor of Plaintiff had indeed agreed to the levee system. Evidence showed that the levee had been made even larger in the 1950s, some 80 years earlier, without any objection from downstream owners.
COURT RULING:
The Court focused on the nature of the waters at issue. Namely, “running waters” are specifically identified as a “public thing” and thus, property of the State as follows: “Public things are owned by the state or its political subdivisions in their capacity as public persons. Public things that belong to the state are such as running waters, the waters, and bottoms of natural navigable water bodies, the territorial sea, and the seashore.” Further, the legislature had specifically recognized that: “The waters of and in all bayous, rivers, streams, lagoons, lakes, and bays, and the beds thereof, not under the direct ownership of any person on August 12, 1910, are declared to be the property of the state. There shall never be any charge assessed against any person for the use of the waters of the state for municipal, industrial, agricultural or domestic purposes.” And that “while susceptible of ownership, public things are not susceptible of private ownership.” Therefore, turning aside over 90 years of non-dispute and recorded agreements to the contrary, the Court stated that works built without lawful permit on public things, including the sea, the seashore, and the bottom of natural navigable waters, or on the banks of navigable rivers, that obstruct the public use may be removed at the expense of the persons who built or own them at the instance of public authorities. The neighboring Plaintiff wins.
K CO. REALTY LLC V. PIERRE, (FLORIDA DIST. COURT OF APPEALS, DEC., 2023)
CLAIMS:
A Buyer in a failed real estate transaction in which the Buyer used a Realtor to represent him in the purchase, sued the Realtor and their Broker for negligence and breach of brokerage agreements.
EVIDENCE:
Buyer entered into a real estate contract to buy property through the Realtor, who was affiliated with a Broker, and which Broker’s logo was on the contract document used. Unbeknownst to the Buyer, on the same day of signing the contract through the Realtor, a third-party Company that was owned by the Realtor also entered into a contract to purchase the same property. Buyer had put forth all required deposits and requirements, yet the closing was repeatedly delayed. When Buyer became frustrated and demanded the return of his deposits, Realtor bizarrely claimed the funds were unavailable and had been used for some funeral expenses. Later the Buyer learned that the deposits that he gave to Realtor had been deposited by the Realtor into the Realtor’s third-party Company and not to the escrow agent. Buyer sued both Realtor and their Broker.
COURT RULING:
While Realtor’s liability was clear, the case centered around whether the Broker was also liable through vicarious liability. The Court found that while it was undisputed that Realtor was associated with Brokerage, Realtor’s actions such as putting the deposits in Realtor’s separate company raised questions about whether Realtor was acting within the scope of her authority or in furtherance of Brokerage's interests. The Court also considered the Broker's lack of knowledge about Realtor's actions and the absence of any benefit received by Brokerage from the transaction. The Court ultimately decided there was not enough evidence to find summary judgment against the Broker, as Broker was apparently not aware of Realtor's alleged misconduct until after the fact. Broker wins the reversal of summary judgment.
STEWART DEV., LLC V. 111 VETERANS BLVD., LLC, (U.S. DIST. COURT, LOUSIANA NOV., 2023)
CLAIMS:
The case involves a dispute between an Owner of land and its ground lease Tenant, as to the Tenant’s large 19-story 350,000-square-foot office tower building (Heritage Plaza) and the insurance requirements to be met by the Tenant.
EVIDENCE:
In 2003, the ground lease was amended to require a prior ground tenant to maintain certain levels of insurance. In 2017, a new ground Owner bought the land from the prior ground owner and assumed the obligations of the lessor under the ground lease. In 2023, for the first time, the new ground Owner claimed that Tenant was in violation of the ground lease because it had failed to maintain insurance on the building in the amounts required by the ground lease and failed to maintain maximum deductibles. The Lease provision in question as to insurance stated: “… shall keep same insured … against loss or damage by … casualties …; and flood, if reasonably obtainable, in amounts … not less than 100% of the actual replacement cost of such improvements …, and with not more than a $10,000 deductible…”
COURT RULING:
The Court focused on the ambiguity of the phrase "reasonably obtainable" concerning casualty insurance, and whether the semicolon before “and flood” meant that only the flood insurance was limited by reasonableness, or whether all casualty insurance was limited by reasonableness. Determining that it was ambiguous, the Court then examined the conduct of the parties and found that the ground Tenant had long since procured coverage amounts far less than replacement value (in amounts of $40,000,000 to $62,952,212) without objection by the ground Owner and therefore the Tenant was given the benefit of the ambiguity. However, the Court then determined that the lease also contained a provision stating that “no waiver of any condition or covenant in this instrument contained or any breach thereof, shall be taken to constitute a waiver of any subsequent breach,” and found that Tenant could therefore not be absolved of the requirement. Ground Owner wins on that issue.
