
    Nicholas P. GIAMBELLUCA and Michael J. Giambelluca v. The PARISH OF ST. CHARLES, the Lafourche Basin Levee Board, Leander Petit and Sal Saia.
    No. 93-CA-297.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 1993.
    
      J. Mac Morgan, New Orleans, for plaintiffs-appellants.
    R.O. Lewis, Director of Legal Services, Luling, for defendant-appellee.
    Leon C. Vial, III, Hahnville, for defendant Leander Petit.
    Marvin Gros, Donaldsonville, for defendant Lafourche Basin Levee Bd.
    Before GAUDIN, GOTHARD and CANNELLA, JJ.
   GAUDIN, Judge.

This is an appeal by Nicholas P. and Michael J. Giambelluca from an April 1, 1993 judgment of the 29th Judicial District Court dismissing the Giambellueas’ petition. We (1) set aside this judgment, (2) order the issuance of a preliminary injunction and (3) remand for further proceedings.

Initially, we note that the April 1, 1993 judgment in effect decides this case on its merits. The only issue then before the district court was whether a preliminary injunction should or should not issue. There was no procedural authority for the trial judge to render a judgment dismissing petitioners’ claims.

Petitioners have alleged that the subject roadway over the Mississippi River levee, the Morgan Street extension, has been and still is in public use. Affidavits and photographs which are part of this record indicate that plaintiffs have at least made out a prima facie showing that they will prevail on the merits and that they will suffer irreparable harm if a preliminary injunction is not issued.

The Giambellueas, in the alternative, ask that another right of passage be established if the Morgan Street extension has been permanently closed by St. Charles Parish Ordinance No. 92-5-20.

Accordingly, the named defendants should be and they are hereby preliminarily enjoined from abandoning or in any way destroying the Morgan Street extension as a public roadway pending the outcome of this litigation. We remand for further proceedings, including a trial on the merits.

JUDGMENT SET ASIDE; PRELIMINARY INJUNCTION ISSUED; REMANDED.  