author: J^PETTIGREW, J.

text:
    CONCHA CHEMICAL PIPELINE v. E.B. SCHWING, III.
    No. 2001 CA 2093.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.
    Amy D. Berret, James P. Dore’, Baton Rouge, for Plaintiff-Appellee Concha Chemical Pipeline.
    Stan P. Baudin, Patrick W. Pendley, Plaquemine, for Defendant-Appellant Edward B. Schwing, III.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^PETTIGREW, J.

Prior to the institution of this expropriation proceeding, plaintiff pipeline company erroneously believed that it had acquired consent from all of the affected landowners. After construction of its pipeline was nearly complete, the pipeline company learned that it had not secured consent from one landowner. When negotiations to acquire the outstanding interest failed, the pipeline company filed suit for expropriation. From a judgment awarding compensation to the landowner, the landowner has appealed seeking trespass damages. We affirm.

FACTS

Concha Chemical Pipeline Company (“Concha”), plaintiff herein, constructs, operates, 'and maintains (by contract with Shell Pipeline Corporation (“Shell”)) “common carrier petroleum pipelines” for the transmission and transportation of petroleum, its products, and by-products.

During June, July, and August of 1996, Concha Chemical Pipeline Company (“Concha”), plaintiff herein, contacted numerous landowners and secured right-of-way agreements for development of the Lou-Tex pipeline, a 265-mile pipeline stretching from Sorrento, St. James Parish, Louisiana to Mont Belvieu, Texas. In connection therewith, Concha executed Pipeline RighWof-Way agreements with various members of the Schwing family. Said right-of-way agreements granted to Concha a servitude and right-of-way for the construction of a common carrier pipeline across undivided property owned by the individual Schwing heirs and situated in Sections 27 and 28, Township 10 South, Range 11 East, in Iberville Parish, Louisiana.

One of these landowners, Edward B. Schwing, III (“Mr.Schwing”), defendant herein, signed the right-of-way agreement in his capacity as agent and attorney-in-fact for the interests he had previously transferred to his three children. This agreement was ultimately recorded in the conveyance records of Iberville Parish. Mr. Schwing did not mention that he personally retained an interest in the property-

In October of 1996, after the pipeline was constructed and operational, Mr. Schwing contacted a representative of Shell and advised that he owned an undivided hl-319 percent interest in property affected by the pipeline. Mr. Schwing also advised that while he had executed the Pipeline RighNof-Way Agreement on behalf of his children, he had not executed the agreement on his own behalf. Mr. Schwing claimed he was entitled to compensation for Concha’s use of his land.

Thereafter Concha attempted to negotiate with Mr. Schwing for the acquisition of this conventional right-of-way and servitude. When the parties were unable to agree upon the terms and compensation to be paid to Mr. Schwing, Concha filed a Petition for Expropriation on April 18, 1997.

ACTION OF THE DISTRICT COURT

In response, Mr. Schwing filed an answer and reconventional demand on May 19, 1997. Mr. Schwing asserted that Con-cha was a bad faith possessor and that Concha’s construction of the pipeline constituted a trespass that disturbed his peaceful possession of the property. Mr. Schwing sought immediate removal of the pipeline, or in the alternative, for injunc-tive relief during the pendency of this litigation and nonpecuniary damages. Con-cha filed a motion for summary judgment on March 13, 1998, and asserted that Mr. Schwing had acquiesced to the taking of his property and the construction of the pipeline by Concha. Accordingly, Concha asserted that Mr. Schwing was estopped from complaining about the pipeline’s construction.

Following a hearing on June 2, 1998, the district court granted Concha’s Motion for Summary Judgment on January 14, 1999. The district court also held that Concha had the right to expropriate Mr. Sehwing’s property, and further ruled that the only remaining issue was the just compensation due Mr. Schwing.

On October 24, 2000, the district court issued a judgment together with a supporting legal opinion. The court awarded Mr. Schwing a total of $8,106.62, which sum represented the value of his property used for the servitude.

Concha filed a Motion for New Trial on October 30, 2000, requesting that the award of $8,106.62 to Mr. Schwing be vacated. The Motion for New Trial was granted and by judgment dated March 7, 2001, the district court amended its earlier judgment Land awarded Mr. Schwing the sum of $1,846.80, for his 1.319 percent interest in the Schwing family’s 368.74 rods of the pipeline.

From this judgment, Mr. Schwing has appealed.

ISSUE ON APPEAL

The sole issue put forth by Mr. Schwing in this appeal is:

1. Whether the trial court’s failure to award damages for trespass was incorrect and whether an award of trespass damages is appropriate.

DISCUSSION

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const., art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). In an expropriation proceeding, the factfinder’s factual determinations as to value of property and entitlement to any other types of damages will not be disturbed upon review in the absence of manifest error. State, Department of Transportation and Development v. Estate of Davis, 572 So.2d 39, 45 (La.1990). The trial court is granted a great deal of discretion in determining the value of property in expropriation cases. See State, Department of Transportation and Development v. Mayet, 521 So.2d 671, 673 (La.App. 1 Cir.1988).

Expropriation of private property for public purposes is addressed in Article 1, Section 4 of the Louisiana Constitution of 1974, which provides in pertinent part, as follows:

Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss.

In addition, Louisiana Revised Statute 45:254 provides:

| ^Expropriation; telegraph and telephone lines; utilizing streams, highways, etc.

All persons included in the definition of common carrier pipe lines as set forth in R.S. 45:251 have the right of expropriation with authority to expropriate private property under the state expropriation laws for use in its common carrier pipe line business, and have the right to lay, maintain and operate pipe lines, together with telegraph and telephone lines necessary and incident to the operation of these pipe lines, over private property thus expropriated, and have the further right to lay, maintain and operate pipe lines along, across, over and under any navigable stream or public highway, street, bridge or other public place, and also have the authority, under the right of expropriation herein conferred, to cross railroads, street railways, and other common carrier pipe lines by expropriating property necessary for the crossing under the expropriation laws of this state. The right to run along, across, over or under any public road, bridge or highway, as before provided for, may be exercised only upon condition that the traffic thereon is not interfered with, and that such road or highway is promptly restored to its former condition of usefulness, at the expense of the pipe line owner, the restoration to be subject also to the supervision and approval of the proper local authorities, and, provided, that in the exercise of the privilege herein conferred, owners or operators of these pipe lines shall compensate the parish, municipality or road district, respectively, for any damage done to such public road, in the laying of pipe lines, telegraph or telephone lines, along, under, over or across the same. Nothing in this Section shall be construed to grant any pipe line company the right to use any public street or alley of any incorporated city, town or village, except by express permission from the city or other governing authority.

The parties hereto evidently do not dispute Mr. Schwing’s right to recover just compensation for Concha’s expropriation of his land. In this appeal, Mr. Schwing does not take issue with the $1,846.80 that the district court awarded to him as just and adequate compensation for his expropriated property. Accordingly, all issues related to the compensation owed to Mr. Schwing in connection with the expropriation of his property have apparently been waived.

The sole issue raised by Mr. Schwing in connection with his appeal in this matter is whether the district court’s failure to award trespass damages was correct, and whether said damages were appropriate under the facts of this case. Mr. Schwing argues that pursuant to La. Const. Art. 1, § 4, Concha was required, prior to any fonnal expropriation | ^proceedings, to show a public and necessary purpose before it began construction of the pipeline. Mr. Schwing contends that Concha was further required to obtain a judicial determination that the purpose of the pipeline met the requirements of a “necessity” before it began construction of the pipeline across his property. Mr. Schwing complains that even after Concha learned of his outstanding ownership interest, it failed to halt construction of the pipeline. For these reasons, and because he did not give Concha consent to construct its pipeline across his land, Mr. Schwing claims that he is entitled to trespass damages from Concha for its actions as a “bad faith trespasser.”

In response, Concha asserts that although it used Mr. Schwing’s land, it never intended to possess the land as its owner. As such, Concha argues it should not be deemed a possessor of the land. Concha further argues that it is not a trespasser, as said term requires an unauthorized entry onto private property.

Concha asserts that it went on Mr. Schwing’s land under the belief that it had authorization from all landowners. Once Concha learned of Mr. Schwing’s uncompensated interest in the property, it began to negotiate with him in an attempt to secure his consent. Concha further asserts that while the negotiations were taking place, Mr. Schwing never complained about the ongoing pipeline construction and purportedly expressed and implied that construction could proceed. Accordingly, Concha argues that where a landowner silently acquiesces to the placement of items on his property or in the appropriation of his property, the landowner is not entitled to demand demolition or removal of the items, nor is he entitled to trespass damages.

In support of this position, Concha urges this court to apply the St. Julien Doctrine. This court, in Cancienne v. Lafourche Parish Police Jury, 423 So.2d 662, 665 (La.App. 1 Cir.1982), traced the historical development of the St. Julien Doctrine that culminated in the enactment of La. R.S. 19:14. In Cancienne, this court stated:

The St. Julien Doctrine was established in 1879 in the case of St. Julien v. Morgan L. & T.R. Co., 35 La.Ann. 924 (1883). In St. Julien, the defendant railroad company entered onto plaintiffs land without permission and constructed a railway upon the land without purchasing or expropriating the property. The court there said:
“... the landowner did not invoke the arm of the law at the time when it could have been of service to him, but on the contrary acquiesced in the defendant’s taking possession and using his property, encouraged it to prosecute its work by abstaining from any attempt to prevent it and made no complaint in a court of law of the injuries inflicted upon him until the defendant had expended large sums of money in completing its line. Having thus permitted the use and occupancy of his land and the construction of a quasi public work thereof without resistance or even complaint, he cannot afterwards require its demolition, nor prevent its use, nor treat the Company erecting it as his tenant. He is not debarred from an action for damages by reason of the taking of the land and for its value, but having acquiesced in the entry and encouraged it he did not invite it, he cannot after-wards affect to treat it as tortious. Considerations of public policy, not less than the suggestions of natural justice, require that in such case the owner shall not be permitted to reclaim his property free from the servitude he has permitted to be imposed upon it, but shall be restricted to his right of compensation. Goodin v. Cincinnati, 18 Ohio St., 169.”
Therefore, by jurisprudential rule, a new theory was created allowing the creation of servitudes by estoppel. From 1879 until 1976, a public or quasi public corporation with powers of expropriation could acquire a servitude over the land of another without expropriation if the landowner consented or acquiesced in the construction. The landowner could not later reject the occupant, but was relegated to an action for compensation and damages. The theoretical justification of St. Julien was the combined presumed consent of the owner of the land and the public interest. To avoid the needless waste and public inconvenience involved in removing expensive works, the court established the fiction that the owner had granted voluntarily what an expropriation suit otherwise would have compelled him to yield.
St. Julien was re-affirmed in many later cases and remained the rule of law until 1976 when Lake, Inc. v. Louisiana Power & Light Company, 330 So.2d 914 (La.1976) was decided.
The Lake case abolished the St. Ju-lien Doctrine with respect to discontinuous apparent servitudes, but held its decision applied prospectively only. The majority opinion in Lake classified an electrical transmission line as a discontinuous apparent servitude because it required an act of man for its exercise and as such found that under La.C.C. art. 766 it could only be acquired by title. Lake overruled St. Julien and its progeny as to prospective conduct because St. Julien sanctioned a method of creating servitudes contrary to the mandates of the Civil Code. In addition, Lake rejected the policy rationale of St. Julien, finding that although it may have once been justified by public necessity, now it was no longer needed.
Additionally in Lake, Chief Justice Dixon, author of the opinion, stated as follows:
“Plaintiff strongly urges in brief that the application of the ‘St. Julien’ doctrine violates constitutional prohibitions against taking property without due process (U.S. Const., Amendments 5 and 15) and against taking private property for public use without Iscompensation (La. Const.1974, Art. 1, § 4; La. Const.1921, Art. 1, § 2, La. Const.1913; Art. 167; La. Const. 1898, Art. 167; La. Const. 1899, Art. 156). The argument is persuasive, but we decline to rest our opinion on constitutional grounds when there are other reasons which lead to the same result. In re Interest of Toler, 262 La. 557, 263 So.2d 888 (1972); Tafaro’s Investment Co. v. Division of Housing Improvement, 261 La. 183, 259 So.2d 57 (1972).”
Shortly after the decision in Lake, the Louisiana Legislature adopted La.R.S. 19:14 which provides as follows:
“In any case where the state or its political corporation or subdivision has actually, in good faith believing it had authority to do so, taken possession of privately owned immovable property of another, and constructed facilities upon, under or over such property with the consent or acquiescence of the owner of the property, such owner shall be deemed to have waived his right to contest the necessity for the taking and to receive just compensation prior to the taking, but he shall be entitled to bring an action for such compensation, to be determined in accordance with the provisions of Section 9 of this Title, for the taking of his property or interest therein, the just compensation to be determined as of the time of the taking of the property, or right or interest therein, and such action shall proceed as if the state, its political corporation or subdivision had filed a petition for expropriation as provided for in Section 2.1 of this Title.
In the case where any corporation referred to in Section 2 of this Title has actually, in good faith believing it had the authority to do so, taken possession of privately owned immovable property of another and constructed facilities upon, under or over such property with the consent or acquiescence of the owner of the property, it will be presumed that the owner of the property has waived his right to receive just compensation prior to the taking, and he shall be entitled only to bring an action for judicial determination of whether the taking was for a public and necessary purpose and for just compensation to be determined in accordance with Section 9 hereof, as of the time of the taking of the property, or right or interest therein, and such action shall proceed as nearly as may be as if the corporation had filed a petition for expropriation as provided in Section 2.1 of this Title.”
Essentially the above act provides that a landowner who consents or acquiesces to construction on his property by an entity with expropriation powers, thereby waives the right to prior compensation. The owner may thereafter bring an action for just compensation with the amount of recovery fixed as of the time of the taking. Additionally, if the occupation is by a private entity with expropriation powers, the landowner may subsequently challenge the necessity and public purpose of the taking. When the State or its subdivisions are the takers, the act precludes any further challenge of public purpose. For either the State, its subdivisions or a quasi public corporation to enjoy the benefits of the act, it must have proceeded “in good faith believing it had the authority.”
Therefore, the St. Julien Doctrine, created and perpetuated jurisprudentially until the Lake decision in 1976, now has been essentially reinstated legislatively through La.R.S. 19:14 to the status of positive law.

Cancienne, 423 So.2d at 665-667 (footnotes omitted) (underscoring supplied).

3 We note from the record that the district court, in its grant of Concha’s Motion for Summary Judgment on January 14, 1999, gave extensive written reasons in support of its holding that Concha had the right to expropriate Mr. Schwing’s property. The district court found:

Concha did contact a company entitled Sehwing, Inc., through its president, Mr. Charles Sehwing. In turn, as he had done in the past, Charles Sehwing contacted Defendant, Ed Sehwing, to secure his approval for the Concha pipeline. At that time, Mr. Charles Sehwing was under the mistaken belief that any interest Ed Sehwing had in the subject property had been transferred to Ed Schwing’s children. Under that mistaken belief, Charles Sehwing presented to Ed Sehwing the pipeline right-of-way (ROW) agreement, which Ed Sehwing signed on behalf of his children. This took place in July of 1996. At that time, Ed Sehwing said nothing about his interest in the property to Mr. Charles Sehwing or any Concha representative. The agreement described the specific property to be expropriated, along with the names of the presumed owners.
It appears from the affidavits and supporting documents that Ed Sehwing had, some years ago, told Sehwing, Inc., the land manager for Defendant, Ed Sehwing, and all of the Sehwing landowners, that he was transferring his interest in all Sehwing lands to his children, except for a couple of parcels. Pursuant to that request, Sehwing, Inc. began sending all of the income from the Sehwing lands formerly in Ed Schwing’s name to his children, except for the one or two parcels Sehwing Inc. understood Ed Sehwing retained. The income from the property subject to this suit went to Ed Schwing’s children, according to the affidavit of Charles Sehwing, the Sehwing, Inc. president. At no time did Ed Sehwing protest or even comment on this procedure.
When presented with the Concha pipeline ROW agreement by Charles Sehwing, on behalf of Sehwing, Inc., in July 1996, Ed Sehwing signed without comment. He claims he did not read the agreement and that is why he did not comment. Later, in September of 1996, he went out to the subject property and saw the pipeline. At that time, he began a series of negotiations with Concha directly for his interest. At the time Ed Sehwing discovered the pipeline on the property, it was in the ground and ready to be backfilled. Ed Sehwing never demanded Concha stop its construction or cease use of the pipeline, until just before the filing of its recon-ventional demand in April, 1997.
This Court is of the opinion that at the time Ed Sehwing was presented the right-of-way agreement to sign for his children, he became aware of the pipeline across the property in which he held a small interest. Even if this were not the case, in September of 1996, when he claims to have discovered the pipeline on property in which he still held an interest, he did nothing to prevent its completion or use.
Based upon the facts established by the depositions of E[d] Sehwing, Keith Nelson, Don Davis, months of negotiations were carried out with Ed Sehwing to acquire his interest in the pipeline right-of-way. Mr. [Ed] Sehwing admitted that, in his mind, he had Concha “over a barrel” and was going to make the most out of it....
This Court is convinced that Concha acted in good faith. Relying on Sehwing, Inc.’s president, Charles Sehwing, for land ownership of large |intracts, was common practice in pipeline ROW acquisition as stated by Don Davis and Keith Nelson, long time ROW agents, and Charles and Ed Sehwing, who had both done so for Sehwing, Inc. for several decades.
There is little doubt in this Court’s mind that the St. Julien doctrine applies in this case. The affidavits on record clearly show Ed Sehwing was aware, or should have been aware, that the pipeline crossed his property. He certainly acquiesced for several months in the construction and use of the pipeline before any complaint was lodged. Consequently, [Ed Sehwing] may only claim the just compensation due as a result of the taking. [Underscoring contained in original judgment.]

Based upon a thorough review of the record and an examination of the applicable law, we cannot say that the district court erred in failing to award trespass damages to Mr. Sehwing.

CONCLUSION

For the above and foregoing reasons, the judgment of the district court is hereby affirmed. All costs associated with this appeal shall be assessed against defendant, Edward B. Sehwing, III.

AFFIRMED.

      . Louisiana Revised Statutes 45:251(1) states that the term "common carrier” as used in this Section, "includes all persons engaged in the transportation of petroleum as public utilities and common carriers for hire; or which on proper showing may be legally held a common carrier from the nature of the business conducted, or from the manner in which such business is carried on.” Mr. Schwing evidently does not contest Concha’s status as a common carrier,

      . Concha relies upon Black’s Law Dictionary (6th Ed.1990) that defines "trespass” as "[a]n unauthorized interference with one's person, property, or rights.... Any unauthorized intrusion or invasion of private premises or land of another.”


source: Caselaw Access Project

author: |,GUIDRY, J.

license: Public Domain

text:
    Terry Joseph MIRE v. RANGER PLANT CONSTRUCTIONAL COMPANY, INC.
    No. 2001 CA 2247.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      David C. Vidrine, Jonathan B. Andry, New Orleans, Counsel for Plaintiff/Appellant Terry Joseph Mire.
    Frank R. Whiteley, Bradley P. Naccari, Metairie, Counsel for Defendant/Appellee Ranger Plant Constructional Company, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   |,GUIDRY, J.

Claimant appeals a judgment sustaining an exception raising the objection of prescription to his occupational disease claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The claimant in this workers’ compensation suit, Terry Joseph Mire, was hired as a welder by Ranger Plant Constructional Company, Inc. (Ranger) on February 19, 1999, after successfully completing an on-site welding test. His first and only day of actual employment with Ranger occurred the following day, Friday, February 20, 1999, at a construction site in Garden City, Louisiana. On reporting to work on February 20, 1999, Mire was instructed to perform structural welding on a pipe rack, which consisted of welding I-beams, channel iron, and angle irons, and was constructed to hold rows of pipe. In performing this assignment, Mire was obliged to work above ground in a confined space and a mechanical lift was used to maneuver him into position. Mire was instructed to perform the structural welding because the pipe rack, which was made of prefabricated, galvanized (zinc coated) iron that had been bolted together, did not fasten together securely. Mire was required to cut portions of the pipe rack so that structure could be bolted together more securely. While welding the galvanized iron, plumes of chemical smoke were allegedly produced, which caused Mire to cough and choke on the fumes. Mire only wore a welding hood and a cloth facemask that covered his nose and mouth for protection.

By early afternoon, Mire, who had reported to work around 7 a.m., began experiencing severe flu-like symptoms, consisting of coughing, fever, and chills. As a result of his symptoms, Mire decided to quit work early that day because he felt too ill to properly perform his assigned duties. Mire left work and drove straight to his home in Franklin, Louisiana, where he went straight to bed. Mire 1salso called his sister, Vivian Mire, and her boyfriend with whom she resided, Fred Walker, to inform them that he was sick. When Mire’s health did not improve over the weekend, his sister and Walker took him to a doctor in Jeanerette, Louisiana. On examining Mire, the doctor immediately ordered that Mire be transported, by ambulance, to the University Medical Center in Lafayette.

While hospitalized, Mire lapsed into a coma and his condition ultimately required that a tracheostomy tube be placed in his throat and a feeding tube in his stomach. Mire was in a coma for approximately two months. He was diagnosed as having contracted chemical bacterial pneumonia with attendant adult respiratory distress syndrome (ARDS). After regaining consciousness, Mire was first transferred to a nursing home facility in Houma, Louisiana, and later to a nursing home in Franklin, Louisiana where he could be closer to his sister. Mire’s health eventually improved enough for the removal of all life support and feeding apparatus and for him to be released from the nursing home in Franklin to return to his own home. Nevertheless, Mire still suffers from lingering symptoms of his illness, consisting mainly of poor balance, dizziness, nausea caused by loud noises or swift movement, and a slight hoarseness due to the placement of the tracheostomy tube in his throat.

In the week prior to the February 20, 1999 incident, Mire was involved in two, single-car, motor vehicle accidents. The first accident occurred while Mire was driving on a wet roadway and his truck slid into a ditch. After having a wrecker pull his truck out of the ditch, Mire did not observe anything to be wrong with his truck. However, a couple of days later, as Mire was again driving his truck, the steering column broke in half, and the two front tires on his truck split apart causing the truck’s airbag to deploy and the vehicle to again run into a ditch. The airbag did not rupture and Mire only noted some soreness to his hip following the second accident.

On February 18, 2000, Mire filed a disputed claim for compensation alleging the following: “Mr. Mire, despite his specific request was not provided with proper respiratory protective equipment. He was exposed to fumes from cutting and welding on galvanized/coated iron from 8 a.m. to 11:30 a.m. on 2/20/99. After lunch, Mire had to leave work and go home because he was so sick.” Ranger answered Mire’s petition asserting an exception raising the objection of vagueness and generally denying that Mire was due any compensation benefits.

In the course of the proceedings before the workers’ compensation judge (WCJ), a motion for a declaratory judgment was filed by Ranger requesting a finding that Mire’s workers’ compensation claim was for a disability arising from an occupational disease. By a judgment signed on May 4, 2001, the WCJ decreed that “the burden of proof in the workers’ compensation claim of Terry J. Mire shall be governed by the definition of occupational disease as provided by LSA-R.S. 23:1031.1” Thereafter, Ranger filed an exception raising the objection of prescription to Mire’s occupational disease claim. Following a hearing held on June 7, 2001, the WCJ signed a judgment sustaining the exception, and this appeal followed.

ASSIGNMENT OF ERROR

In this appeal, Mire contends that the WCJ committed prejudicial error in finding that a six-month, rather than twelvemonth, prescriptive period applied to his occupational disease claim. Mire also alleges that the WCJ failed to establish the date when Mire knew or had reason to know that his disease was occupationally related.

DISCUSSION

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception, however, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not | ..¡prescribed. Campo v. Correa, 01-2707, p. 7 (La.6/21/02), 828 So.2d 502, 507. The prescriptive period applicable to a claim arising from an occupational disease is found in La. R.S. 23:1031.1(E), as it existed at the time Mire was injured. See Williams v. BET Construction, 00-1765, pp. 6-7 (La.App. 1st Cir.11/9/01), 818 So.2d 21, 25. La. R.S. 23:1031.1(E) then provided:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

Accordingly, in order to determine when prescription began to run on Mire’s occupational disease claim, a determination must first be made as to when all three elements of La. R.S. 23:1031.1(E) were met. Bynum v. Capital City Press, Inc., 95-1395, p. 6 (La.7/2/96), 676 So.2d 582, 586. The record clearly shows and the parties do not dispute that Mire’s disease manifested itself and he was disabled from working on February 20, 1999. Thus, the only element left to be determined is when Mire knew or had reasonable grounds to believe that the disease was occupationally related. Although the WCJ did not state on what date he found that Mire knew or had reasonable grounds to believe the disease contracted by him was occupationally related, the record clearly supports a finding that by mid-May 1999, Mire knew or had reasonable grounds to believe the disease was occupationally-related based on the deposition testimony of Mire.

In his deposition testimony, Mire explained that in May 1999 he understood that his condition was the result of chemical pneumonia. He stated that he related that understanding to the nursing staff at the Houma nursing home. Also in that | ^deposition testimony, Mire emphatically reasoned that he knew the two motor vehicle accidents the week prior to February 20, 1999, did not cause his condition because he had been able to take the pipe test on February 19, 1999. Hence, based on his own testimony, there is proof in the record that Mire knew or had reason to believe that the disease contracted by him was occupationally related as early as May 1999.

Having determined when Mire knew or reasonably should have believed that he had contracted an occupational disease, all that remains to be reviewed is the WCJ’s determination that the six-month prescriptive period found in La. R.S. 23:1031.1(E) applies to Mire’s claim. On appeal, Mire asserts that this determination by the WCJ was erroneous based on Ranger’s failure to prove that it had posted at its place of business the time limitations applicable to an occupational disease claim pursuant to La. R.S. 23:1031.1(I). That provision states:

I. Notice of the time limitation in which claims may be filed for occupational disease or death resulting from occupational disease shall be posted by the employer at some convenient and conspicuous point about the place of business. If the employer fails to post this notice, the time in which a claim may be filed shall be extended for an additional six months.

Mire cites to dicta in the case of Thornell v. Payne and Keller, Inc., 442 So.2d 536 (La.App. 1st Cir.1983), writ denied, 445 So.2d 1231 (La.1984), in which the court observed that no evidence appeared in the record to show that notice required under La. R.S. 23:1031.1(1) had been posted. Nevertheless, the court found that the plaintiffs action had not prescribed, having been filed within the six-month prescriptive period. Thornell, 442 So.2d at 541.

However, another case, Duos v. Evangeline Parish School Board, 499 So.2d 1067 (La.App. 3rd Cir.1986), dealt with an occupational disease claim in which |7the claimant failed to file a claim with her employer within the six-month prescriptive period. In that case, the court expressly found that the plaintiff bore the burden of proving that her employer failed to post the requisite notice based on the general rule that when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. See Duos, 499 So.2d at 1070.

On the face of his petition, Mire’s occupational disease claim had prescribed. Therefore Mire, and not Ranger, had the burden of proving whether the requisite notice provided under La. R.S. 23:1031.1(1) was postea. Failing such proof, we find no error in the WCJ’s determination that Mire’s claim had prescribed.

CONCLUSION

Therefore, based on the foregoing discussion, we affirm the judgment of the WCJ dismissing Mire’s claim as prescribed. All costs of these proceedings are cast to the appellant, Terry Joseph Mire.

AFFIRMED.

      . Subsection (E) of La. R.S. 23:1031.1 was amended by Acts 2001, No. 1189, § 1, effective June 29, 2001, and now provides a one-year prescriptive period for notice of occupational disease claims.

      . We note that Mire did not allege or raise this issue in the proceedings below.


author: J¿GUIDRY, J.

text:
    Phillip J. DAIGLE, Sr. v. SHELBY J. GAUDET CONTRACTORS, INC.
    No. 2001 CA 2052.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      Daniel J. Nail, Napoleonville, Counsel for Plaintiff/Appellant Phillip J. Daigle, Sr.
    Jeffrey J. Warrens, Baton Rouge, Counsel for Defendant/Appellee Shelby J. Gau-det Contractors, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J¿GUIDRY, J.

Claimant, who allegedly suffered a non-disabling, work-related injury while .on navigable waters that developed into a disabling injury following a second work-related accident on land, appeals two judgments sustaining exceptions raising the objections of prescription and lack of subject-matter jurisdiction.

FACTS AND PROCEDURAL HISTORY

In the fall of 1993, Philip J. Daigle, Sr., was employed by Shelby J. Gaudet Contractors, Inc. (Shelby Gaudet) as a welder. While employed by Shelby Gaudet, Daigle was allegedly involved in two work-related accidents. The first accident occurred on October 19, 1993, on a crane barge in the Atchafalya Spillway. Daigle was working on the barge when he fell backwards over an angle iron, injuring his back. The second accident occurred on November 3, 1993 when he attempted to lift a piece of iron while working for Shelby Gaudet in a fabrication shop in Grand Bayou. Shelby Gaudet began voluntarily paying Daigle temporary total disability benefits on November 5, 1993 for the November 3, 1993 accident.

While Shelby Gaudet was voluntarily paying him disability benefits, Daigle filed two suits related to the October 19, 1993 accident. The fust suit was a Jones Act claim filed on November 22, 1994, in the Twenty-third Judicial District Court. Three years later, on June 25,1997, Daigle filed a Longshore and Harbor Workers’ Compensation Act (LHWCA) claim with U.S. Department of Labor. On October 22, 1997, Shelby Gaudet issued its last disability payment to Daigle. On August 23, 1999, Daigle filed a disputed claim for compensation with the Office of Workers’ Compensation against Shelby Gaudet, claiming that he was totally and permanently disabled as a result of both the October 19, 1993, and the November 3, 1993 accidents, and thereby entitled to continued indemnity benefits. In the | adisputed claim for compensation, Daigle averred that both his Jones Act and LHWCA claims were still pending.

Shelby Gaudet answered Daigle’s suit, denying that it owed any further compensation benefits, and later filed exceptions asserting lack of subject matter jurisdiction and prescription, which were sustained by the workers’ compensation judge (WCJ) in separate judgments signed on December 4, 2000. Daigle appeals both judgments.

DISCUSSION

In this appeal, Daigle asserts that the WCJ erred in sustaining the exceptions based on the timely filing of his Jones Act and LHWCA claims and his assertion that the two accidents were interrelated.

Daigle filed his Jones Act claim on November 22, 1994. The suit was deemed abandoned effective September 22, 1998. Louisiana Civil Code article 3463 provides that the interruption of prescription is considered never to have occurred if the plaintiff abandons the action. Thus, the filing of Daigle’s Jones Act claim, which was later abandoned, cannot operate to toll prescription on his state workers’ compensation claim.

The time limitations for filing a state workers’ compensation claim are found in La. R.S. 23:1209A. That statute provides that if the parties do not agree upon payments, a claimant must file a formal claim for compensation within one year Rafter the accident for which claim is made or his claim shall be forever barred. However, La. R.S. 23:1209A also provides that if prior to the running of prescription, the employer voluntarily commences payments, then prescription is interrupted and does not commence to run again until the last payment is made by the claimant’s employer.

We will first discuss the correctness of the WCJ’s judgment sustaining the exception objecting to subject matter jurisdiction. Louisiana Revised Statutes 23:1035.2 provides that “[n]o compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer’s Liability Act, the Longshoremen’s and Harbor Worker’s Compensation Act (sic), or any of its extensions, or the Jones Act.” (Emphasis added). As further discussed, the October 19, 1993 accident is clearly cognizable under the LHWCA.

In order to qualify for coverage under the LHWCA, a claimant must meet a two-part status and situs standard. Bienvenu v. Texaco, Inc., 164 F.3d 901, 904 (5th Cir.1999). The situs test under this standard simply requires a finding that the accident occurred upon the navigable waters of the United States. Bienvenu, 164 F.3d at 904. Whereas, the status test requires that the accident occur while the employee is engaged in the course of his employment on navigable water and that the employee’s presence on the water is neither transient or fortuitous. Bienvenu, 164 F.3d at 908.

The parties to this matter do not dispute that the October 19, 1993 accident occurred on navigable waters of the United States; nor is there any dispute regarding whether Daigle was in the course and scope of his employment at the time his injury was sustained. Furthermore, based on Daigle’s deposition testimony, the work he performed while aboard the crane barge on October 19, 1993, was an essential part of his assigned duties that included helping to install approximately 16,000 feet of three-inch pipe over water and performing | .¡preparatory welding work. Therefore, based on the evidence in the record before us, coverage is provided under the LHWCA for the October 19, 1993 accident. Hence, we find no error in the WCJ’s determination that he lacked subject matter jurisdiction to render an award under the state workers’ compensation act for Daigle’s claim based on the October 19, 1993 accident.

Nevertheless, Daigle argues that the WCJ erred in sustaining the exception objecting to lack of subject matter jurisdiction because the injuries sustained by him in the October 19, 1993 and November 3, 1993 accidents were so “interwoven” as to justify the assertion of jurisdiction by the WCJ. We -will address this argument presently in our review of the judgment sustaining the exception of prescription.

On November 5, 1993, Shelby Gaudet voluntarily commenced payment of benefits to Daigle related to the November 3, 1993 accident and made its last payment on October 22, 1997. Accordingly, excepting any other action by Daigle, his claim for compensation based on the November 3, 1993 accident would have prescribed, by operation of law, on October 22, 1998. See La. R.S. 23:1209A. Daigle maintains, however, that the two accidents are so “interwoven” that the June 25, 1997 filing of the LHWCA claim should suspend prescription as to the November 3, 1993 accident; and likewise, because the November 3, 1993 accident is cognizable, barring prescription, under the state workers’ compensation act, the October 19, 1993 accident should be also. He nevertheless acknowledges that the two incidents were two separate and distinct occurrences.

Because the two accidents were separate and distinct incidents, and finding that the October 19, 1993 accident falls under the LHWCA, we conclude that the October 19, 1993 accident cannot serve to interrupt prescription as to a state workers’ compensation claim based on the November 3, 1993 accident. Daigle cites to the case of Pankratz v. Noble Drilling Corp., 501 So.2d 797 (La.App. 4th | fiCir.l986), to stand for the proposition that a LHWCA claim can suspend prescription on a state workers’ compensation claim. However, that case is factually distinguishable from the case before us in two ways. First, that case was based on an assertion by the claimants that their LHWCA claim interrupted prescription on a state workers’ compensation claim based on the same accident Pankratz, 501 So.2d at 799. Second, at the time of the employee’s accident in Pankratz, the state workers’ compensation act expressly provided that the “filing of a claim or suit pursuant to any federally enacted worker’s compensation plan shall suspend the prescription periods established by R.S. 23:1209.” La. R.S. 23:1225(D) (repealed January 1, 1990) (emphasis added).

Thus, we agree with the WCJ’s determination that the only cognizable claim under the state workers’ compensation act, that being the November 3, 1993 accident, was prescribed.

CONCLUSION

Accordingly, we affirm the judgments of the WCJ sustaining the exceptions urging lack of subject matter jurisdiction and prescription. All costs are assessed to the appellant, Philip J. Daigle.

AFFIRMED.

      . In his disputed claim for compensation, Daigle erroneously stated November 5, 1993, as the date of his second accident. However, because the record shows the correct date to be November 3, 1993, we will refer to that date in this opinion.

      . Shelby Gaudet actually filed two exceptions urging the objection of prescription. The initial filing was denied by the WCJ in a judgment signed April 10, 2000. Shelby Gaudet then filed an exception raising the objection of lack of subject matter jurisdiction. The WCJ sustained the exception objecting to subject matter jurisdiction, but signed a judgment erroneously granting Shelby Gaudet a motion for summary judgment on October 30, 2000. In light of the WCJ’s determination regarding the exception objecting to subject-matter jurisdiction, Shelby Gaudet re-urged its exception of prescription. In written judgments signed December 4, 2000, the WCJ sustained both exceptions.

      . Louisiana Code of Civil Procedure article 561, as amended and made effective July 1, 1998, provides that an action is abandoned if no step has been taken in its prosecution or defense for a period of three years and is operative without forma order. In this case, the last step taken in Daigle’s Jones Act suit occurred on September 22, 1995, the date noticed by counsel for Daigle for the taking of Shelby Gaudet’s deposition.


author: 1 ¡.GUIDRY, J.

text:
    James HEINE v. CITY/PARISH OF EAST BATON ROUGE
    No. 2001 CA 1927.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      Michael L. Hebert, Baton Rouge, Counsel for Plaintiff/Appellant James Heine.
    Michael E. Ponder, Parish Attorney, Eugene A. Booth, Special Asst. Parish Attorney, Baton Rouge, Counsel for Defendant/Appellee City of Baton Rouge/Parish of East Baton Rouge.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   1 ¡.GUIDRY, J.

This matter comes before us on the issue of whether penalties and attorney’s fees should be assessed against the appel-lee, City of Baton Rouge/Parish of East Baton Rouge (City/Parish), for the alleged failure to timely pay a final, nonappealable judgment in violation of La. R.S. 23:1201(G).

The appellant, James Heine, previously filed a disputed claim for compensation against the City/Parish for denial of benefits. The workers’ compensation judge (WCJ) found that Heine was entitled to supplemental earnings benefits, which were then awarded in a judgment signed November 8, 1999. However, the WCJ further found that, under the circumstances, the City/Parish was not arbitrary and capricious for failing to pay Heine the benefits claimed and denied Heine’s request for penalties and attorney’s fees.

Both parties appealed the November 8, 1999 judgment, but while the matter was pending before this court, the City/Parish moved to dismiss its suspensive appeal, which was granted. Heine, who answered the City/Parish’s appeal alleging that the WCJ erred in failing to find the City/Parish arbitrary and capricious, maintained his appeal. In an unpublished opinion rendered on March 28, 2001, this court denied Heine’s answer to the City/Parish’s appeal. See Heine v. City of Baton Rouge/Parish of East Baton Rouge, 00-0383 (La.App. 1st Cir.3/28/01) (unpublished opinion).

While the previous matter was pending before this court, Heine filed a new claim with the Office of Workers’ Compensation seeking penalties and attorney’s fees for the City/Parish’s alleged untimely payment of the November 8, 1999 judgment as a “final, nonappealable judgment” in violation of La. R.S. 23:1201(G). The WCJ denied Heine’s claim in a judgment signed on March 15, 2001. Heine appealed the judgment to this court.

13Oral argument for the appeal was docketed for August 15, 2002. On that date, counsel for Heine filed an ex parte motion to dismiss the appeal as moot based on a settlement and compromise reached by the parties. Since no answer to the appeal or other formal action to amend or modify the March 15, 2001 judgment has been filed, we hereby grant the appellant’s motion to dismiss the appeal. See Uniform Rules, Courts of Appeal, Rule 2-8.4. Costs in the amount of $222.96 are assessed to the appellee, City of Baton Rouge/Parish of East Baton Rouge.

APPEAL DISMISSED.


author: 1 .GUIDRY, J.

text:
    Arlen B. CENAC, Jr. v. PUBLIC ACCESS WATER RIGHTS ASSOCIATION, Jaromy Davaine, John King, Oray Savoie, Jr., Spence Cressionie, Andy Leboef, Gerald Matherne, Bryan Dufrene, Corky Dufrene, Robert Dufrene, Joe Toups, Billy Cressionie, Sr., Billy Cressione, Jr., Norris Sampay, Dally Breaux, Jr., Dean Breaux, Anthony (‘Lil Tony’) Martinez, Cody Martinez and Ron Oncale. Melva Cressionie v. Arlen B. Cenac, Jr.
    Nos. 2001CA1859, 2001CA1860.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.
    Writ Granted Jan. 31, 2003.

      Clayton E. Lovell, C. Berwick Duval, II, William S. Watkins, Houma, Counsel for 1st Plaintiff/Defendant/Appellant Arlen B. Cenac, Jr.
    Timonty C. Ellender, Jr., Conrad S.P. Williams, Houma, Counsel for 3rd Defendant /Appellant Public Access Water Rights Association, Jaromy Davaine, John King, Oray Savoie, Jr., Spence Cressionie, Andy Leboeuf, Gerald Matherne, Bryan Dufrene, Joe Toups, Billy Cressionie, Sr., Billy Cressionie, Jr., Norris Sampay, Dally Breaux, Jr., Dean Breaux, Anthony (‘Lil Tony’) Martinez, Cody Martinez and Ron Oneale.
    Jane Johnson, New Orleans, Counsel for 2nd Plaintiff/Defendant/Appellant Melva Cressionie.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   1 .GUIDRY, J.

Arlen B. Cenac, Jr. (Cenac), Public Access Water Rights Association, et al. (PAWRA) and Melva Cressionie each separately appeal from the trial court’s judgment. Appellant, Cenac, appeals that portion of the trial court’s judgment declaring the canal in question to be burdened by a servitude of use in favor of the public at large by virtue of implied dedication as recognized by Louisiana law. Appellant, PAWRA and appellant, Melva Cressionie, appeal the portion of the trial court’s judgment granting a permanent injunction barring them from launching, parking or otherwise using the boat launch. For the reasons that follow, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

The property at issue in the present case consists of a canal, boat launch, and parking area located on what is known as Golden Ranch Plantation. Cenac purchased the canal, known as Company Canal, and the land on which the boat launch and parking area are located, as well as many additional acres, from the Gheens Foundation on April 4, 2000. Prior to and following this date, the public used the canal and boat launch at issue to access Lake Salvador for commercial and recreational purposes. However, on October 10, 11 and 17, 2000, Cenac attempted to erect a security fence enclosing the boat launch and preventing its use by members of the public. Additionally, Cenac submitted an application to the Army Corps of Engineers on May 23, 2000, seeking a permit to install and maintain a gated structure across the Company Canal.

Members of the Gheens community, designated as PAWRA herein, prevented Ce-nac from completing the above-mentioned fence. Therefore, on October 19, 2000, Cenac filed a petition for injunction and damages against named members of PAW-RA for their continued trespass and interference with Cenac’s use of his property. Thereafter, on November 22, 2000, Melva Cressionie, also a | ¿resident of the Gheens community and living across the highway from the boat launch and canal, filed a petition for possession and for injunctive relief against Cenac. Melva Cressionie claimed possession of a real right in the form of a servitude of right of way and use to cross Cenac’s property and use the boat launch.

Thereafter, on November 29, 2000, Ce-nac filed a motion and order to consolidate the above cases. Also on November 29, 2000, PAWRA filed an answer and recon-ventional demand to Cenac’s petition whereupon it asserted that its members have possession of a real right in the form of a servitude of right of way and use to use the boat launch and to launch'into the canal. PAWRA additionally asserted that the acts of Cenac in attempting to erect the fence constituted a disturbance in fact and in law.

. On January 2, 2001, Cenac filed a first supplemental and amending petition wherein he sought a declaratory judgment that he owns and is in possession of the property at issue and that the members of PAWRA and Melva Cressionie do not own a real right to the property. On January 17, 2001, Melva Cressionie filed an answer and reconventional demand to Cenac’s first supplemental and amending petition whereupon she asserted that Cenac’s ancestors in title expressed plain and positive intent to give the public a servitude to use the launch and canal and sought a judgment declaring that the public has acquired a servitude of use of the boat launch, parking area and canal. Further, in an answer and reconventional demand filed February 16, 2001, Melva Cressionie added that alternatively, the canal is a public canal, has been formally dedicated, or is private but subject to the public use.

PAWRA, on January 30, 2001, also filed an answer and reconventional demand to Cenac’s first supplemental and amending petition seeking judgment declaring the public has acquired a servitude of use to the boat launch, parking area, and canal.

IbA bench trial was held on March 8, 2001. In a judgment rendered in open court on March 15, 2001, and signed on April 17, 2001, the trial court rendered judgment as follows: in favor of Cenac and issued a permanent injunction barring members of PAWRA and Melva Cression-ie from launching, parking or otherwise using the launch; in favor of Cenac declaring him to be the owner of the property in dispute; and in favor of the members of PAWRA and Melva Cressionie declaring Company Canal is burdened by a servitude of use in favor of the public at large by virtue of implied dedication as recognized under Louisiana law.

ASSIGNMENTS OF ERROR

Cenac now appeals the judgement of the trial court and asserts the following assignment of errors:

1. The trial court erred in holding that La. R.S. 9:1251 does not apply to Company Canal.
2. The trial court erred in holding that Company Canal is burdened by a servitude of implied dedication of public use.
3. The trial court erred in excluding Cenac’s Exhibits 18-20 and 24-27, which were introduced as Cenac Proffer No. 1.

Additionally, the members of PAWRA and Melva Cressionie now appeal the judgment of the trial court and assert the following assignments of error:

1. The trial court erred in holding that the public boat launch is not subject to an implied dedication creating a servitude of public use.
2. The trial court erred in holding that, in spite of the long history of public use of the boat launch and permission by the prior owners for public use of the boat launch, there was nonetheless no servitude of public use over the boat launch.
3. The trial court erred in construing LSA 9:1251(A), prohibiting a servitude of passage over land used to access waters for boating, to prevent the establishment of a servitude of public use, and in failing to apply LSA 9:1251(B) to allow such a servitude.
4. The trial court erred in failing to find that the boat launch was dedicated to public use as an extension of the servitude of public use on the Company Canal.
|fi5. The trial court erred in refusing to issue an injunction prohibiting Cenac from blocking use of the Company Canal on the grounds that there was insufficient evidence of Cenac’s attempt to block such use.

DISCUSSION

Standard of Review

Whether property has been dedicated for public use is a question of fact. Winningham v. Hill, 164 So.2d 384, 385 (La.App. 2nd Cir.1964). A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Based on the law as outlined herein, and for the reasons that follow, we find that the trial court was clearly wrong in finding that the canal in question had been dedicated to the public use.

Dedication to Public Use

Louisiana has never enacted a comprehensive statutory scheme of dedication to public use. However, Louisiana courts have recognized four modes of dedication: formal, statutory, implied and tacit. Braxton v. Guillory, 98-379, p. 14 (La.App. 3rd Cir.10/28/98), 721 So.2d 114, 122. In the present case formal, statutory, and tacit dedication are not at issue. Therefore, the determination of whether the boat launch and canal are dedicated to public use rests solely on the issue of whether the requirements for implied dedication have been met.

Implied dedication, in contradistinction with formal dedication, may be accomplished without any express or written act and creates a servitude of public use. Thompson v. State, 94-2610, p. 11 (La.App. 1st Cir.4/23/96), 688 So.2d 9, 29, aff'd, 97-0293 (La.10/31/97), 701 So.2d 952; Collins v. Taylor, 518 So.2d [7602, 606 (La.App. 1st Cir.1987). In Thompson, this court articulated the essential elements and requirements of implied dedication:

The essential feature of implied dedication is the absence of requisite formalities. However, there must be “a plain and positive intention to give and one equally plain to accept.” Thus, the two indispensable elements of implied dedication are: proof of a positive intent to dedicate, frequently qualified as “offer”, and proof of acceptance by the public. The offer may be implied from facts or acts of the owner that exclude any other rational hypothesis except an intent to dedicate and the acceptance may be inferred from actual use of the property by the public.

Thompson v. State, 94-2610 at 11, 688 So.2d at 29-30 (citations omitted).

However, there seems to be some confusion in the case law as to what is sufficient to establish the requisite intent of the landowner to so dedicate his property forever to the public use. Appellants, PAW-RA and Melva Cressionie, rely on our decision in Best Oil Company v. Parish Council of the Parish of East Baton Rouge, 176 So.2d 630 (La.App. 1st Cir.1965), writ refused, 248 La. 365, 178 So.2d 656 (1965) to assert that intent to dedicate can be implied from the acts, conduct or declarations of the landowner, including mere toleration or acquiescence in the public use. (Emphasis added.) However, in Best Oil, in stating that implied dedication requires public use of dedicated property with the assent of the owner, silent or otherwise, we clearly referred to the supreme court decision Wyatt v. Hagler, 238 La. 234, 114 So.2d 876 (La.1959), which dealt only with tacit dedication, which has separate and distinct requirements from those establishing implied dedication. Best Oil Company v. Parish Council of the Parish of East Baton Rouge, 176 So.2d at. 635; see also B.F. Trappey’s Sons, Inc. v. City of New Iberia, 225 La. 466, 73 So.2d 423 (La.1954) and Town of Eunice v. Childs, 205 So.2d 897 (La.App. 3rd Cir.1967), writ refused, 251 La. 937, 207 So.2d 540 (1968) (concerning tacit dedication and stating that assent can be established by silence).

IsOther circuit courts and the supreme court, over time, have recognized acquiescence or silence of the owner in the public use as a factor in establishing the requisite intent. In Collins v. Zander, 61 So.2d 897 (La.App.Orleans 1952), involving dedication of a 15' lawn walk, the court was presented with evidence in addition to the mere acquiescence of the landowner to estabhsh the requisite intent. First, the landowner and developer of the subdivision in which the lawn walk was located, recorded a plan indicating the “15' lawn walk” and reflecting that it was “to be used by the occupants as a medium of ingress and egress.” Additionally, in Zan-der, the court found that this evidence was sufficient to estabhsh not only an implied dedication but also to estabhsh substantial compliance with the then existing basis for statutory dedication. Therefore, the court was clearly presented with clear, unequivocal evidence of intent to dedicate, in addition to mere acquiescence of the landowner.

In Winningham v. Hill, 164 So.2d 384 (La.App. 2nd Cir.1964), quoting United Gas Pipe Line Company v. New Orleans Terminal Company, 156 So.2d 297 (La.App. 4th Cir.1963), writ refused, 159 So.2d 284 (La.1964), the court stated the following regarding intent necessary to estabhsh an implied dedication:

Whether there has been an intent to dedicate property to public use is a question of fact which may be inferred only from acts of acquiescence from the owner that would exclude every hypothesis but that of dedication. Mere silence on the owner’s part and failure to protest against the use of land by the public does not in law amount to an assent to a dedication to public use. (Citations omitted).

The court in Winningham, as the court in Zander, was presented with whether a recorded plat met the requirements of statutory dedication so as to dedicate a twenty-foot strip of property to the public use. In Winningham, the court determined that the requirements for statutory dedication were not substantially complied with due to the failure on the part of the landowner to designate the twenty-foot strip of land as a street, road, etc. on the plat. The court further found 19that “the absence of symbols or marks to designate some use from which may be inferred a public purpose is a strong indication that the owner intended to retain the use of said property for private purposes.” Winningham v. Hill, 164 So.2d at 386.

The decisions of the courts in Winningham and Zander show that while acquiescence and silence may be a factor in determining the landowner’s intent to dedicate, they are not the sole factors considered when making such a determination. In both decisions, other substantial evidence in the form of a recorded map or plat, was present in addition to the silence or inaction of the landowner.

Finally, in Bomar v. City of Baton Rouge, 162 La. 342, 347, 110 So. 497, 499 (La.1926), the supreme court stated that “silence and failure to protest do not in law amount to an assent to a dedication to public use.” See also McCearly v. Lemeunier, 40 La. Ann. 253, 3 So. 649 (La.1888) (finding that 30 years of use by the public of a road by sufferance or tolerance of the owner was insufficient to convert a private into a public road); Torres v. Falgoust, 37 La. Ann. 497 (La.1885) (finding dedication to public use cannot be inferred from the mere use alone). In Bomar, a road had been used by the public for a period of approximately seventy years without protest from the landowner. However, there were no other factors present, besides the landowner’s tolerance and silence, to establish the landowner’s intent to dedicate the road to public use. In finding silence and failure to protest alone insufficient to establish a landowner’s intent to dedicate, the court also articulated other factors which, in combination with the landowner’s silence, might be more indicative of intent. These factors consist of maintenance by public authorities or recorded maps indicating the land in question is for public use. See Bomar v. City of Baton Rouge, 162 La. at 347-348, 110 So. at 499-500; see also Hatton v. Grigar, 66 S.W.3d 545, 554-555 (Tex.App.2002) (listing the following as additional factors to be considered: (1) permitting public authorities to grade, | mrepair, or otherwise improve roadway, (2)selling parcels of land from a plat or plan showing the roadway as a means of access to the parcels, (3) construction of facilities for general public use, (4) an express representation by the owner of the road to a land purchaser that the way is reserved for public use, (5) fencing off the roadway from the remainder of the land, or (6) obtaining a reduction in the purchase price commensurate with the area of the roadway).

Therefore, based on the law as outlined above, we find while silence or acquiescence may be used as a factor in determining a landowner’s intent, it alone is not sufficient to establish the unequivocal and positive intent necessary for an offer to dedicate to the public use. See Bell v. Tycer, 97 So.2d 448, 450 (La.App. 1st Cir.1957) (finding silence and failure to protest does not in law amount to an assent to a dedication to public use); see also Hatton v. Grigar, 66 S.W.3d at 554 (stating that the intention to dedicate must be shown by something more than an omission or failure to act or acquiescence on the part of the owner and that there must be evidence of additional factors that imply a donative intention when considered in light of the owner’s acquiescence in the public’s use of the roadway); Carlson v. Burkhart, 271 Kan. 856, 27 P.3d 27, 32 (2001) (stating that acquiescence of the property owners to use by some members of the public does not conclusively establish its dedication for public use and mere permission on the part of the owner to the public to use the land as a way, without more, will not constitute an intention to dedicate). Rather, other significant factors, such as a recorded map or plat or maintenance by the public authorities must be present in order to establish the landowner’s intent.

Classification of Canal and Susceptibility to Dedication

First, we note that it is clear that the canal is a private thing and as such is susceptible to dedication to public use, as in the case of roads and streets. See 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise § 79 (4th ed.2001). There have _J>ubeen some allegations that the canal is a public thing due to the nature of the ownership at the time of the canal’s construction. However, we find these allegations to be without merit as the State was participating in its private capacity and subsequently was divested of any interest it may have had at the time of construction by a subsequent legislative act and sale to a completely private company.

Additionally, the fact that the canal is navigable in fact does not thereby render it public. In National Audubon Society v. White, 302 So.2d 660, 667 (La.App. 3rd Cir.1974), writ denied, 805 So.2d 542 (La.1975), the court stated that a privately owned canal, though navigable in fact, may not be subject to public use for the same reasons that a private road, though used by commercial traffic, may not be subject to public use. Also, in Brown v. Rougon, 552 So.2d 1052, 1060 (La.App. 1st Cir.1989), writ denied, 559 So.2d 121 (La.1990) this court addressed the issue of use of public funds in the construction of a canal and stated that “the use of public funds in the construction of a navigable canal does not necessarily create a public right to use the canal.” We agree and find that while some State funds were used in constructing the canal at issue, such funds were to be repaid and any outstanding indebtedness was so repaid by a completely private canal company referred to as B & L No. 2.

The Canal and Boat Launch

In the instant case, the evidence adduced at trial showed that the public had been using both the canal and the boat launch for approximately 60 years. During |1gthis time of use, the prior owners of the canal and boat launch, Mr. and Mrs. Gheens and later the Gheens Foundation, never interfered with the general use by the community. Melva Cressionie additionally testified that Pete Taylor, while manager of the Golden Ranch Plantation, told her and her husband that the boat launch was public.

Additionally, PAWRA and Melva Cres-sionie presented evidence regarding maintenance of the boat launch and canal. First, evidence was presented that some members of the community performed minor acts of maintenance on the boat launch such as placing shells where the vehicles and boats entered. Also, evidence showed that the Army Corps of Engineers, a federal institution, sprayed the vegetation in the canal for a period of years. Ray Blouin, an inspector with the Army Corps of Engineers, testified that he has worked the canal and other waterways in La-fourche Parish since he began working for the Corps in 1975, and the spraying was generally from April to December annually. Documents were entered into evidence that particularly showed spraying activity from 1995-1999. While Ray Blouin testified that the Army Corps of Engineers generally does not spray private canals, he did state that if the canals were private, but used by the public or by the oil industry, they would be sprayed unless gated under lock and key.

Finally, PAWRA and Melva Cressionie presented evidence that at some point, the parking area around the boat launch was enlarged by the landowners due to the need for additional space to prevent cars from parking on the side of the highway.

In contrast, Cenac offered evidence and testimony showing efforts of the landowners to assert private ownership over the canal and boat launch. First, the 113record evidences that the prior owners maintained signs indicating that the property was “private property”. Herman Robi-chaux, manager for the Gheens Foundation mineral department, has worked on the property since 1963 and testified that at least since 1968 or 1969, he posted and maintained private property signs on the canal. and boat launch. Mr. Robichaux also testified that these signs were placed at points of entry and exit to the canal. Additionally, Larry Ledet, the property manager for Cenac, and Forrest Travirca, the security manager of Golden Ranch Plantation, testified that they recalled seeing signs posted along the property. Mr. Ledet recalled seeing signs as early as 1987, when he began working on the Plantation. Mr. Travirca testified when he saw the signs stating “private property” he sought permission to use the canal from Mr. Taylor, who advised him to speak with Mr. and Mrs. Gheens in order to obtain permission to use the canal.

Additionally, former and current employees, Mr. Robichaux and Donald Doyle, President of the Gheens Foundation and former attorney of Mr. and Mrs. Gheens, testified their orders from Mr. and Mrs. Gheens were always to keep the canal and boat launch private. Additionally, Mr. Ro-bichaux and Mr. Doyle testified that while the public was given permission to use the boat launch and canal, it was in an effort to be neighborly and was never intended to bé inconsistent with the owners’ private ownership. Rather, the owners retained the right to restrict use of the canal and boat launch, which is evidenced by the testimony of Mr. Robichaux, wherein he stated that he asked members of the public to leave if they were acting inconsistent with the law or with the owner’s desire (ie. hunting or using it for commercial fishing).

Finally, evidence presented at trial showed that Mr. and Mrs. Gheens and the Gheens Foundation entered into various leases with members of the community for hunting or other purposes, allowing those persons to use the canal and use and park at the boat launch. Testimony at trial indicated that when large groups were [ 14involved, or groups using the hunting club facilities, those groups were given a key to the “private boat launch” located across the canal as the boat launch in issue had limited space. Additionally, an agreement with the local Jaycees was admitted into evidence. The agreement granted the Jaycees the right to use the canal and boat launch and stated as part of that agreement, the Jaycees were to monitor and police the use of the canal by the general public.

Based on the foregoing, we find that PAWRA and Melva Cressionie failed to establish the plain and positive intent of the landowners to dedicate the canal and boat launch to public use. The bulk of PAWRA and Melva Cressionie’s evidence concerns the long use by the public of the boat launch and canal, coupled with the acquiescence of the landowners in that use. However, as articulated above, such use and acquiescence alone is insufficient to establish a plain and positive intent to dedicate.

Additionally, we do not find that the remaining evidence of minor maintenance performed by the community members and by the Army Corps of Engineers lends aid in establishing the plain and positive intent of the landowners to dedicate. First, the minor maintenance performed by the community members does not constitute maintenance by “public authorities” as articulated above. Also, the minor occasional spraying performed by a federal institution does not rise to the level of repair or other work performed by public authorities, which together with the landowner’s silence, excludes every hypothesis but that of dedication. This is particularly so when viewed with the remainder of the evidence presented at trial showing the continued efforts and desire of the landowners to retain the private nature of their property.

Therefore, in light of the lack of evidence establishing the landowners’ plain and positive intent to dedicate the canal and boat launch to public use, and considering the evidence presented as to the instructions and efforts of the | ^landowners to secure the private nature of their property, we find that there was no implied dedication of either the canal or the boat launch to the public use.

As our determination of the issue of implied dedication disposes of the appeal, we pretermit a discussion of appellants’ remaining assignments of error.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting a permanent injunction as to the boat launch and we reverse the judgment of the trial court declaring the canal to be dedicated to the public use by implied dedication. All costs of the appeal are to be borne by appellants, PAWRA, et al.

AFFIRMED IN PART AND REVERSED IN PART.

      . A landowner may make a formal dedication of a parcel of property by virtue of a written act, such as a deed of conveyance to the police jury of the parish. Braxton v. Guillory, 98-379 at 14, 721 So.2d at 122.

      . La. R.S. 33:5051.

      . Louisiana Revised Statutes 48:491(B)(l)(a) provides as follows: [a]ll roads and streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property. Although the word "tacit” does not appear in 48:491(B), dedication accomplished under 48:491(B) has become known as "tacit dedication” of a road or street through the jurisprudence.

      . Barataría and Lafourche Canal Company (B & L), comprised of two private individuals, received a charter from the State of Louisiana to build a canal from New Orleans to Morgan City. By legislative acts, B & L was designated as a "political and corporate body” and was given authority to purchase property over which the "Company Canal” was to be built. The property underlying the portion of Company Canal at issue in this case was transferred by a private landowner to B & L in 1829. Additionally, subsequent legislative acts provided for the State to purchase amounts of stock in B & L and to appropriate money, equipment and labor for the building of the canal. However, these legislative acts also provided that the State was to be repaid amounts expended. See 1829 La. Acts 38, 1833 La. Acts 3, 1834 La. Acts 22, 1835 La. Acts 78, and 1848 La. Acts 80.

      . When B & L failed to complete the canal and pay back monies owed, the State, pursuant to a final legislative act, divested itself of its interest in B & L and subsequently sold its interest to a completely private canal company for $25,000.00 as payment of outstanding debt. See 1858 La. Acts 205.


author: JjFITZSIMMONS, J. | ^OWNING, J.,

text:
    Lachelle Gerald WOOD v. William Gerald WOOD.
    No. 2002 CU 0860.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      J. Edward Thompson, Slidell, Counsel for Plaintiff-Appellant Lachelle Gerald Wood.
    Sondra A. Cheek, Bogalusa, Counsel for Intervenors-Appellees Gerald and Rita Wood.
    Before: FOGG, FITZSIMMONS, DOWNING, KLINE  and LANIER, JJ.

      . The Honorable William F. Kline, Jr., Judge, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

      . The Honor Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   JjFITZSIMMONS, J.

This appeal seeks review of a trial court judgment modifying a consent judgment between a domiciliary parent and paternal grandparents. The judgment granted additional visitation between the paternal grandparents and their granddaughter. The natural father is incarcerated. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

In February 1995, appellant, Lachelle Wood, filed a Petition for Divorce in an effort to dissolve her approximately three- and-a-half year marriage to William Wood. Additionally, she sought temporary custody of their minor child, E.M.W. In May 1995, the parties entered into a consent judgment of custody. That judgment awarded joint custody to the parents, La-chelle and William Wood, designated the mother, Lachelle Wood, as the domiciliary parent, and awarded visitation of one weekday to appellees, the paternal grandparents, Rita and Gerald Wood. The judgment further provided the father, William Wood, with visitation in Utah. The same judgment also awarded the mother child support and ordered the father to provide medical insurance. Thereafter, the marital union of Lachelle and William Wood was terminated by a judgment of divorce dated October 9,1995.

In February 1999, the mother filed a rule to change the joint custody arrangement to a sole custody award. The mother alleged that joint custody had become detrimental to the child, E.M.W. As supporting reasons, the mother alleged that the father had a recent | ¡¡history of criminal sexual abuse and was incarcerated in Utah. After a hearing, the trial court issued a judgment on May 24, 1999 that restricted the paternal grandparents’ visitation and ordered the grandparents not to allow the child contact with the incarcerated father. On June 28, 1999, after service was made upon the father, his visitation was suspended, and a judgment awarding the mother sole custody of E.M.W. was granted.

In August 2000, the grandparents filed a Petition for Intervention seeking a modification of the prior orders concerning their visitation with E.M.W. In response, the mother filed an answer and reeonven-tional rule for contempt and for modification of visitation. She contended that the grandparents violated prior court orders by allowing E.M.W. telephone contact with her father and had planned a Utah visit between E.M.W. and her father. For these reasons, the mother sought supervised visitation at the mother’s discretion. On November 6, 2000, the mother and the grandparents entered into a stipulated judgment. The judgment maintained the mother’s sole custody designation and permitted visitation with the grandparents on the first weekend of each month, on one Sunday every other month, and one day and one night on all major holidays. In addition to ordering the grandparents to continue paying $200.00 monthly support, the judgment again prohibited the grandparents from allowing any contact between E.M.W. and her father.

|4On November 29, 2000, the grandparents filed a rule for contempt alleging that the mother refused to comply with the visitation schedule outlined in the November 6, 2000, judgment. The grandparents also prayed that the November 6, 2000, judgment be modified to specify a meeting place for exchange of visitation and to specify times of visitation. On January 12, 2001, the grandparents filed a Motion for Continuance in an effort to arrive at an amicable visitation schedule. In July 2001, the grandparents filed another rule to show cause contending they were unsuccessful in arranging with appellant a specific time for a summer vacation. Thus, they sought a modification of visitation that would designate a specific time for summer vacation. Following a hearing, the trial court granted the grandparents’ request for modification and ordered one week visitation for the summers of 2001 (commencing July 31, 2001) and 2002.

NONPARENT VISITATION

From the ruling granting additional visitation to the grandparents, the mother, Lachelle Wood, has filed the instant devol-utive appeal. The issue is whether the trial court abused its discretion in modifying the consent judgment to permit the paternal grandparents additional visitation with E.M.W.

DISCUSSION

Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), is the most recent authority on this subject-matter from the United States Supreme Court. In Troxel, the Supreme Court recognized that one of the byproducts of the changing infrastructure of society at large, and the family unit in particular, is an accommodation in the law for |Rextending visitation to nonparents. While recognizing many benefits of this practice, the Supreme Court rejected any visitation scheme that trampled upon the sacred and paramount rights of a fit parent to dictate the best interests of his or her children. Troxel, 530 U.S. at 63-67, 120 S.Ct. at 2059-61.

Specifically, Troxel involved a request by paternal grandparents, following the death of their son, for visitation with two granddaughters born of the relationship between their son and a companion whom he never married. Troxel, 530 U.S. at 60, 120 S.Ct. at 2057. The girls’ mother did not oppose all visitation, but objected to the amount sought by the Troxels. Trox el, 530 U.S. at 61, 120 S.Ct. at 2058. The Troxels’ request for visitation was made under authority of a Washington statute. The statute provided that: “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.” Troxel, 530 U.S. at 61-62, 120 S.Ct. at 2057-8. The United States Supreme Court found the Washington statute “breathtakingly broad” and declared it unconstitutional as applied. Troxel, 530 U.S. at 67 & 73, 120 5.Ct. at 2060-61 & 2064. In doing so, the justices placed particular emphasis upon parents’ constitutionally protected fundamental right to make decisions concerning their children, the presumption that parents act in the best interest of their children, and the failure of the Washington statute or court to give some “material” or “special” weight to the parent’s own determination on the issue of visitation. Troxel, 530 U.S. at 65-72, 120 S.Ct. at 2060-63. The Supreme Court noted that the contested statute rendered a custodial parent effectively voiceless in deciding what is in the child’s best interest, while simultaneously extending unfettered discretion to the trial judge to make such a determination. In the opinion of the Troxel court, the Washington statute allowed the trial judge to “disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests.” Troxel, 530 U.S. at 67, 120 S.Ct. at 2061.

Subsequent to Troxel, in Galjour v. Harris, 2000-2696 (La.App. 1 Cir. 3/28/01), 795 So.2d 350, writs denied, 2001-1238 & 1273 (La.6/1/01), 793 So.2d 1230, cert. denied, 534 U.S. 1020, 122 S.Ct. 545, 151 L.Ed.2d 422 (2001), this court confronted the issue of nonparent visitation in the context of Louisiana’s two controlling provisions: Louisiana Civil Code art. 136 and La. R.S. 9:344. One of the issues raised was the constitutionality of La. R.S. 9:344. Galjour, 2000-2696 at p. 9, 795 So.2d at 356. In upholding La. R.S. 9:344, this court concluded that the Louisiana statute was more narrowly drawn than the Washington statute at issue in Troxel. The Louisiana statute limited both the circumstances and applicants for nonparent visitation. Galjour, 2000-2696 at pp. 9-11, 795 So.2d at 356-58.

|7However, on May 24, 2001, after Galj-our was decided, the Louisiana Legislature expressed its concern for protecting the fundamental rights of parents. Out of its concern, the legislature enacted House Concurrent Resolution No. 68 of the 2001 Regular Legislative Session. The resolution directs the Louisiana State Law Institute to study the effect of Troxel on Louisiana’s laws relative to child visitation. Against this backdrop of Troxel and our legislature’s concern, we undertake review of the mother’s challenge to the grant of additional nonparent visitation.

Louisiana Civil Code art. 136 and La. R.S. 9:344 both speak to visitation by non-parents. La. Civ.Code art. 136 provides, in pertinent part:

B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.
C. In the event of a conflict between this Article and R.S. 9:344 or 345, the provisions of the statute shall supercede those of this Article.

Also in pertinent part, La. R.S. 9:344 provides:

|SA. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children. (Emphasis added.)

In Galjour, this court recognized that the legislature eliminated the burden of showing “extraordinary circumstances” when the non-custodial parent is either dead, interdicted, or incarcerated. Galjour, 2000-2696 at p. 7, 795 So.2d at 355. In essence, the legislature made the determination, rather than the court, that the death, incarceration, or interdiction of a parent qualified as “extraordinary circumstances.” Although the nonparent is relieved of one burden, the nonparent must nevertheless show that the requested visitation is “reasonable” and in the “best interest” of the child. La. R.S. 9:344.

When granting or modifying visitation to a nonparent, the trial court must exercise care not to apply either Civil Code art. 136 or La. R.S. 9:344 in a vacuum. Instead, the trial judge must balance these state provisions against a fit parent’s constitutionally protected fundamental right of privacy in child rearing, and remember that any rights of nonparents are ancillary to that of a fit parent. Troxel, 530 U.S. at 65-73, 120 S.Ct. at 2060-64; Reinhardt v. Reinhardt, 97-1889, p. 5 (La.App. 1 Cir. 9/25/98), 720 So.2d 78, 80, writ denied, 98-2697 (La.12/18/98), 734 So.2d 635, cert. denied, 526 U.S. 1114, 119 S.Ct. 1761, 143 L.Ed.2d 792 (1999). The burden of proof is properly placed on the mover, the nonparent, to meet the legislative best interest requirement. It is the court’s responsibility to balance state requirements Lwith constitutional protections. In considering the best interest of the child, the trial court must be aware that as nonpar-ent visitation increases, the infringement and burden on the parent’s fundamental right of privacy in child rearing increases proportionally. Visitation that unduly burdens parental rights would be unconstitutional, regardless of the provisions of statutory law. Reinhardt v. Reinhardt, 97-1889, p. 5 (La.App. 1 Cir. 9/25/98), 720 So.2d 78, 80, writ denied, 98-2697 (La.12/18/98), 734 So.2d 635, cert. denied, 526 U.S. 1114, 119 S.Ct. 1761, 143 L.Ed.2d 792 (1999).

In this instance, the grandparents sought a modification to allow for a two week summer vacation. After listening to the testimony of the grandparents, the mother, and her current husband, Keith Darrell Barber, the trial judge rendered the following pertinent oral reasons in support of his decision to allow one week:

I think the evidence that’s been presented here today is indicative of grandparents who have a very loving relationship with this child, who I think are beneficial to this child for her to have some contact with her grandparents.... [Gjrandparents tend to spoil grandchildren ... oftentimes when grandchildren go off to visit the grandparents.. .there is a little period of time that requires some adjustment....
So I believe that it’s in the best interest of this child to have a continued relationship with her paternal grandparents. There was no evidence presented to me by Ms. Barber [appellant], she said that they’ve done nothing to harm [E.M.W.]. She says that they haven’t violated the November 2000 judgment. .. I don’t see how it’s going to be detrimental for this child for her to spend a week with her grandparents on vacation.... (Emphasis added.)

The nonparent seeking a modification must prove that the proposed change in visitation would be “reasonable” and in the “best |ininterest” of the child. La. R.S. 9:344; Galjour, 2000-2696 at p. 7, 795 So.2d at 355. However, the trial judge in this case, in a manner strikingly similar to the lower court judge in Troxel, placed a burden on the mother to show that summer vacations with the grandparents would be detrimental. By improperly placing the burden on the natural parent and using the wrong analysis, the trial court fell into reversible error.

We again recognize that the fragmentation of the primary family presents cases where the state may have a legitimate and substantial interest in extended family relationships between children and nonparents, such as grandparents. However, the state interest must be compelling, narrowly drawn, and not unduly intrusive of parental rights. Reinhardt, 97-1889 at pp. 4-5, 720 So.2d at 80-81. Thus, before its decision on the reasonableness of the visitation and the child’s best |ninterest, the trial court must consider the presumption that the mother acted in the best interest of the child. Some “special” or “material” weight must be given to the mother’s determination of the best interest of her child. Troxel, 530 U.S. at 70-72, 120 S.Ct. at 2062-63. Under such an analysis, simple disagreements over the amount of visitation would not generally be sufficient to outweigh the rights of the mother to decide what is in the best interest of her child. See Troxel, 530 U.S. at 68-69, 120 S.Ct. at 2061.

CONCLUSION

For the foregoing reasons, the judgment mandating summer visitation is reversed. The matter is remanded to the trial court for reevaluation of its decision in light of this opinion. Upon rendering a new judgment on the issue of additional visitation to the grandparents, the court must provide an articulation of the court’s analysis and reasons for its decision. Reinhardt, 97-1889 at p. 4, 720 So.2d at 80. Costs of this appeal are assessed to Gerald and Rita Wood, Interveriors/Appellees.

REVERSED AND REMANDED.

KLINE, J., dissents and would affirm that court.

DOWNING, J., dissents and assigns reasons.

| ^OWNING, J.,

dissents and assigns reasons.

I respectfully dissent. After hearing the testimony and evidence presented by the parties, the trial court found additional visitation between E.M.W. and her paternal grandparents of one week during the summer to be in E.M.W.’s best interest. The trial court’s comments cited by the majority explain that the child’s parent did not disprove its conclusion that summer visitation was in the child’s best interest. The trial court did not impose the burden on the child’s mother to prove additional visitation was detrimental.

Further, we should not insert constitutional issues that have not been raised at the trial court into our analysis. Even so, this court in Galjour v. Harris, 2000-2696, p. 11 (La.App. 1 Cir. 3/28/01), 795 So.2d 350, 358, writs denied, 2001-1238 and 2001-1273 (La.6/1/01), 793 So.2d 1229 and 1230, cert. denied, 534 U.S. 1020, 122 S.Ct. 545, 151 L.Ed.2d 422 (2001), concluded that LSA-R.S. 9:344 did not violate constitutional protections afforded to parents because “the Louisiana legislature expressly limited the scope of LSA-R.S. 9:344 to the parents of the deceased or absent parent.”

The Galjour court did observe that “the statute’s grant of visitation does not contemplate a significant intrusion upon the child’s relationship with the other parent or interference with said parent’s fundamental right to make childrearing decisions.” Galjour, 2000-2696 at p. 11, 795 So.2d at 358. I do not see how an additional one-week of visitation during the summer would |?be a significant intrusion on the child’s relationship with her mother or an interference with her right to make child-rearing decisions. Nonetheless, the unconstitutional application of LSA-R.S. 9:344, which is not at issue here, is an entirely separate and distinct inquiry from whether the ordered visitation is in the child’s best interest. E.M.W.’s best interest is at issue here. And the trial court concluded that the additional visitation was in E.M.W.’s best interest.

In Galjour, this court explained that “[ejvery child custody case must be viewed within its own peculiar set of facts. The trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court’s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown.” Galjour, 2000-2696 at p. 5, 795 So.2d at 353-354. Further, as an appellate court, we cannot set aside the trial court’s factual findings unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

Here, the trial court concluded in its oral reasons that the additional one-week visitation between E.M.W. and her grandparents was in her best interest because the contact would be beneficial for her and because the additional visitation would help continue the grandparent-grandchild relationship between them. Evidence in the record supports the trial court’s conclusion that this additional visitation is in E.MW.’s best interest including evidence that she visits cousins while at her grandparents’ home, she is happy at her grandparents’ home, and she wants to go on vacation with her grandparents. Evidence also shows that strains have developed in lathe relationship between E.M.W. and her grandparents, from various causes, that additional visitation might ameliorate. Under these circumstances, I cannot conclude the trial court abused its discretion in awarding the grandparents an additional one-week visitation during summers.

Accordingly, I would affirm the trial court.

      . The parent’s last marital domicile was in Salt Lake City, Utah. After the couple separated, the father remained in Utah while the mother returned to Washington Parish in Louisiana.

      . At the hearing, the child's paternal grandmother testified that the child’s father "raped his wife's sister.”

      . From the record, it seems as if the grandparents voluntarily assumed the father’s child support obligation upon his incarceration, and were ordered to continue doing so.

      . In Reinhardt v. Reinhardt, 97-1889 (La.App. 1 Cir. 9/25/98), 720 So.2d 78, writ denied, 98-2697 (La. 12/18/98), 734 So.2d 635, cert. denied, 526 U.S. 1114, 119 S.Ct 1761, 143 L.Ed.2d 792 (1999), rendered prior to the Troxel decision, the constitutionality of Louisiana Civil Code art. 136B was attacked as an impermissible infringement on a parent's fundamental rights. The codal article was found to be narrowly drawn, and was maintained.

      . Without detracting from the applicability of La. R.S. 9:344 to the situation here, the factors listed in Civil Code article 136 B may be of some guidance to the trial court in its best interest review.

      . In Troxel, the United States, Supreme Court found that the trial court put the burden on the parent to disprove that visitation would be in her daughters' best interest. Specifically, the court stated:
      The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville’s determination of her daughters’ best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption. In reciting its oral ruling after the conclusion of closing arguments, the Superior Court judge explained:
      "The burden is to show that it is in the best interest of the children to have some visitation and some quality time with their grandparents. I think in most situations a commonsensical approach [is that] it is normally in the best interest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are some issues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon the children. That certainly isn't the case here from what I can tell.”
      The judge's comments suggest that he presumed the grandparents’ request should be granted unless the children would be "impact[ed] adversely.” In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters. The judge reiterated moments later: “I think [visitation with the Troxels] would be in the best interest of the children and I haven’t been shown it is not in [the] best interest of the children.”
      The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. In that respect, the court's presumption failed to provide any protection for Granville’s fundamental constitutional right to make decisions concerning the rearing of her own daughters.

        Troxel, 530 U.S. at 69-70, 120 S.Ct. at 2062 (citations omitted).

      . While this court would have benefited from a more complete articulation of the trial court’s analysis of E.M.W. 's best interest, and we strongly encourage trial courts to articulate their analyses, where the record supports a determination, the trial court’s failure to articulate such a finding is not legal error. See by analogy Rupert v. Swinford, 95-0395, p. 4 (La.App. 1 Cir. 10/6/95), 671 So.2d 502, 505.