Anderton v. Akin

493 So. 2d 795
CourtLouisiana Court of Appeal
DecidedAugust 20, 1986
Docket17929-CA
StatusPublished
Cited by9 cases

This text of 493 So. 2d 795 (Anderton v. Akin) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderton v. Akin, 493 So. 2d 795 (La. Ct. App. 1986).

Opinion

493 So.2d 795 (1986)

Sallie ANDERTON, Plaintiff-Appellant,
v.
Sherwood AKIN, Defendant-Appellee.

No. 17929-CA.

Court of Appeal of Louisiana, Second Circuit.

August 20, 1986.
Rehearing Denied September 18, 1986.

Sherburne Sentell, Minden, for plaintiff-appellant.

Fish, Montgomery & Robinson by John W. Montgomery, Minden, for defendant-appellee.

Before HALL, SEXTON and LINDSAY, JJ.

LINDSAY, Judge.

The plaintiff, Sallie Anderton, appeals the trial court judgment in favor of defendants, Sherwood Akin, Florence Ownby, Ronald and Christina Brandt, dismissing the plaintiff's suit to obtain a right of passage from her enclosed estate to the nearest public road over land owned by the defendants. We affirm the trial court's judgment.

The plaintiff's property consists of approximately eighty acres located in the Southwest Quarter (SW ¼) of the Southwest Quarter (SW ¼) of Section 16; and the Southeast Quarter (SE ¼) of the Southeast Quarter (SE ¼) of Section 17; all in Township 18 North, Range 9 West, Webster Parish, Louisiana. As alleged in the plaintiff's petition, her land is completely enclosed without suitable access to a public road. The plaintiff is seeking access to Louisiana Highway 164 which is located south of her property. Lying between the plaintiff's property and Highway 164 is *796 Gordon Heights Subdivision; the owner of most of the lots in the subdivision being the defendant, Sherwood Akin. Also abutting the plaintiff's property to the south and adjacent to Gordon Heights Subdivision on its western side, is a tract of land owned by individuals not made parties to this suit, the Howell Estate heirs.

In her original petition filed September 25, 1984, the plaintiff sought to obtain a right of passage over vacant lots 10 and 11 located in Gordon Heights subdivision. The plaintiff alleged that this passage was necessary in order to enable her to market the timber growing on her land. At the time the suit was filed, plaintiff had already sold $30,000 worth of timber and had not yet been able to provide her buyer with an access route through which to remove the timber. A 250 foot passage, 50 feet wide over the two vacant lots (referred to throughout this suit as Proposition 1) would enable the plaintiff to use an existing subdivision street, Sherwood Lane, in order to gain access to Louisiana Highway 164. Approximately two months after this suit was filed, Sherwood Akin sold these lots to Mr. Brandt and Mrs. Ownby. The plaintiff then filed an amended and supplemental petition adding these parties as defendants. In this amended petition, the plaintiff also alleged that she intended to develop her land into a residential subdivision at some future date.

Sherwood Akin answered the plaintiff's petition alleging that a right of passage over these two vacant lots would render them useless for residential purposes and that Sherwood Lane would not be suitable for commercial traffic. The defendant asserted that a more suitable right of passage could be located at the western side of Gordon Heights Subdivision. This passage, if granted, would be 815 feet long and would run between the subdivision and the Howell Estate. (This location is referred to as Proposition 3 throughout this suit.) The defendant also asserted that such a passage would provide a more direct access to Highway 164 without burdening the existing subdivision streets.

At trial, both plaintiff and defendants presented expert witnesses who testified concerning the benefits and disadvantages of the several proposed locations for the right of passage from the plaintiff's land to Louisiana Highway 164. Another location, Proposition 2, also running through this subdivision, was eliminated from consideration by the court at the conclusion of the trial. The "Williams proposition," running through the estate of a landowner to the east of the subdivision, was never seriously considered as an appropriate passage by either side.

After considering all of the evidence and testimony presented at trial, the court concluded in its written reasons for decision, that Proposition 3 would provide the necessary access for the plaintiff at a lower overall cost than Proposition 1, considering the cost of the land, inconvenience to the parties involved, and other factors. The court, however, did not grant the plaintiff this right of passage as all the persons owning land covered by this proposed passage were not joined in the suit. The court thus rendered judgment in favor of the named defendants, dismissing the plaintiff's suit at her costs.

The plaintiff has appealed alleging that the trial court made numerous errors in not granting a right of passage over the 250 foot route through the defendant's subdivision known as Proposition 1. Defendants, on the other hand, argue that the evidence presented at trial supported the trial court's decision that Proposition 3 was the most appropriate location as compared to the other proposed routes. We agree with the trial court's decision and affirm the judgment.

LSA-C.C. Articles 689 through 692 provide the statutory basis upon which a determination of the issue at bar must rest.

Article 689. Enclosed estate; right of passage

The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to *797 indemnify his neighbor for the damage he may occasion.
Article 690. Extent of passage
The right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably necessary for the use of that estate.
Article 691. Constructions
The owner of the enclosed estate may construct on the right of way the type of road or railroad reasonably necessary for the excercise of the servitude.
Article 692. Location of passage
The owner of the enclosed estate may not demand the right of passage anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands.

As noted in Rieger v. Norwood, 401 So.2d 1272 (La.App. 1st Cir.1981), writ denied 409 So.2d 618 (La.1981):

The term "generally" in Article 692 has been held to be an acknowledgement that there are exceptions to the general rule expressed therein, and it is recognized that the nature and location of the servitude are governed by the circumstances of the case. Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970); Morgan v. Culpepper, 324 So.2d 598 (La. App. 2d Cir.1975); Finn v. Eoff, 368 So.d 199 (La.App. 1st Cir.1979).

LSA-C.C. Arts. 699 and 700, along with the remainder of the codal sections dealing with servitudes, were amended by La. Acts 1977, Number 514, sec. 1 (effective January 1, 1978). The substance of these articles is presently contained in the aforementioned LSA-C.C. Arts. 689 and 692, as amended respectively. However, it is noted that as the 1977 amendments did not change the law applicable to this case, the jurisprudence enunciated under these articles prior to their amendments dealing with this subject matter is of note as well.

In Wells v. Anglade, 23 So.2d 469 (La. App. 1st Cir.1945), the First Circuit Court of Appeal noted:

In the case of Littlejohn v. Cox, 15 La.Ann.

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Bluebook (online)
493 So. 2d 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderton-v-akin-lactapp-1986.