Boudreaux v. Plaquemines Parish Government ex rel. President

22 So. 3d 1117, 2009 La.App. 4 Cir. 0396, 2009 La. App. LEXIS 1694, 2009 WL 3155094
CourtLouisiana Court of Appeal
DecidedSeptember 30, 2009
DocketNo. 2009-CA-0396
StatusPublished
Cited by6 cases

This text of 22 So. 3d 1117 (Boudreaux v. Plaquemines Parish Government ex rel. President) 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
Boudreaux v. Plaquemines Parish Government ex rel. President, 22 So. 3d 1117, 2009 La.App. 4 Cir. 0396, 2009 La. App. LEXIS 1694, 2009 WL 3155094 (La. Ct. App. 2009).

Opinion

DENNIS R. BAGNERIS, SR., Judge.

| defendant, Boh Brothers Construction, Inc., appeals a judgment of the trial court that found it committed civil trespass on Plaintiffs’, Richard and Diane Barneys’ (hereinafter “the Plaintiffs”), property. For the following reasons, we hereby affirm.

FACTS

In March of 2000, the Plaintiffs granted a right-of-way easement for a utility project to Plaquemines Parish (hereinafter “the Parish”). The Parish hired the engineering firm of Lindfield, Hunter, and Junius, Inc., (hereinafter, “Lindfield”) along with the contractor, Boh Brothers Construction, Inc., (hereinafter, “Boh”) to perform the necessary utility servitude work.

Upon completion of the utility servitude work, the Plaintiffs filed suit against the Parish, Lindfield, and Boh alleging that the work performed for the project resulted in a breach of their contract with the Parish and that the work of Boh was negligent and incompetent, which resulted in damage to their home. |2At the conclusion of a two day trial, the trial court requested that post-trial memoranda address whether Boh had the right to utilize the right-of-way for other purposes such as storage. Thereafter, the trial court dismissed the claims of the Plaintiffs against the Parish, the Parish engineers, and the State. The trial court also found that Boh’s work did not cause any damage to the home of the Plaintiffs. However, the trial court did find that Boh did not have permission to have its equipment at the front of the Plaintiffs’ property and thus committed civil trespass. The trial court awarded the sum of $17,625.66 to each plaintiff, a total of $35,251.32, plus interest and costs. In its well written reasons for judgment, the trial court stated, in pertinent part:

In the case at bar, at no place in the record did Boh get approval to use the right-of-way in front of the Barney property as a storage area for 6 months. Boh was wrong to assume that it could do this and should have notified the Parish of its intent so that the Parish could have contracted for such right.
An act of civil trespass is defined as “the unlawful invasion of the property or possession of another.” Thibodeaux v. Krouse, 2008 WL 2329740, 2002-2557[, 991 So.2d 1126] (La.App. 1 Cir. 6/6/08). The elements of trespass are: intent to enter property that belongs to another (defendant need not know the property belongs to another) and physical en[1119]*1119trance onto the land of another. Because the right-of-way for which the Barneys contracted does not include rights of storage, the Court finds that Boh is liable for its intentional trespass. Because Boh is an independent contractor, the Parish is not vicariously liable for its act. Even if Boh’s act were considered negligent, the Parish has a “hold harmless clause” in its contract with Boh for any of Boh’s negligent acts. Plaintiffs point out that Boh’s foreman testified that the actual installation of the pipes and water lines in front of Plaintiffs’ property took merely “... one day.... ” With no evidence to contradict this, the Court is concerned that Boh continuously accessed the right of way in front of the Barney home for approximately 6 months when the work required in front of the home should have been completed within a few days. Testimony revealed that |sBoh used the right-of-way in front of the Barney home and at times possibly part of the Barneys’ property for storage of pipes, construction equipment, and construction vehicles. The record reflects that during the 6 month period of construction, the Barneys’ water line was broken several times (Mrs. Barney testified to 5 times) with flooding of their front yard, access to the home via the driveway was blocked on numerous occasions (Mrs. Barney testified to once a week), there was the constant noise and vibration from the construction equipment and vehicles, as well as dust and debris in the air as a result thereof. Plaintiffs testified that pictures and a clock fell off the wall on different occasions. A family friend testified that the dishes on the table rattled when he ate dinner with the Barneys. All this despite the fact that the Barneys requested that the equipment be moved and that the continued use of the right-of-way in front of their property cease. Mr. Barney testified that he became frustrated because despite their concerns and complaints, “they seemed like they didn’t care.” Mrs. Barney testified that Boh brought its equipment on her property which was not agreed to in the right-of-way. She testified that she told Boh to get off her property, but they would not. The record reflects significant mental anguish on the part of the Barneys who experienced frustration and feelings of helplessness. Mrs. Barney testified that she experienced hair loss as a result of the stress for which her hairdresser recommended a hair product used by cancer patients. While the Barneys’ concerns regarding damage to their home have been proven unfounded, the fact remains that they suffered constant inconvenience for 6 months. Mrs. Barney stated that she would not have signed the Right of Way document if she had known the duration and extent of the work that was to be done in front of her home.
The fact is, the right-of-way for which the Barneys did contract, does not allow for the duration or type of activities in front of their home. At no place in the Right-of-Way Agreement is there any mention of storage of construction vehicles/equipment or pipes. Contrarily, the Agreement states: “Upon completion of work upon Grantors’ property, Grantee is to return the property to its condition prior to commencement of work.” Again, work in front of the Barney home should have been completed in a matter of days. If Boh wanted to use the right-of-way for an extended period of time (here, 6 months), it should have notified the Parish to contract for this. Boh should not have assumed it had the right to |4store equipment and pipes on the right-of-way for 6 months. At the very [1120]*1120least, the complaints of the Barneys should have made Boh inquire whether it had the right to do such a thing. Instead, the Barneys, understandably upset about the numerous inconveniences and concerns caused by 6 months of activity in front of their home, were ignored; the work activity in front of their home continued for months when it should have ceased within days.
Boh had a positive duty to minimize all damage; and upon completion of their activities, had an additional positive duty to remove their “works and debris”. This positive duty is found in the Louisiana Civil Code in art. 743 and 745:
Art. 743. Accessory rights Rights that are necessary for the use of a servitude are acquired at the time the servitude is established. They are to be exercised in a way least inconvenient for the servient estate.
Art. 745. Right to enter into the ser-vient estate The owner of the dominant estate has the right to enter with his workmen and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude. He may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage and of removing them as soon as possible.

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Bluebook (online)
22 So. 3d 1117, 2009 La.App. 4 Cir. 0396, 2009 La. App. LEXIS 1694, 2009 WL 3155094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boudreaux-v-plaquemines-parish-government-ex-rel-president-lactapp-2009.