Boutte Assembly of God, Inc. v. Champagne

777 So. 2d 619, 0 La.App. 5 Cir. 340, 2000 La. App. LEXIS 3440, 2000 WL 1874051
CourtLouisiana Court of Appeal
DecidedDecember 27, 2000
DocketNo. 00-CA-340
StatusPublished
Cited by2 cases

This text of 777 So. 2d 619 (Boutte Assembly of God, Inc. v. Champagne) 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
Boutte Assembly of God, Inc. v. Champagne, 777 So. 2d 619, 0 La.App. 5 Cir. 340, 2000 La. App. LEXIS 3440, 2000 WL 1874051 (La. Ct. App. 2000).

Opinions

PCHEHARDY, Judge.

This is a suit to determine whether the plaintiff church and its members have the right to use an unpaved portion of Myrtle Street in Boutte, St. Charles Parish, which extends between property owned by the plaintiff and property owned by the defendant. The trial court ruled in favor of the plaintiff. We affirm.

On September 30,1997 Boutte Assembly of God, Inc. filed suit against Gary J. Champagne, alleging that the defendant had blocked the plaintiffs access to its property by erecting a fence across Myrtle Street in 1997. The plaintiff asserted that Myrtle Street runs between lots owned by the plaintiff (Lot C) and the defendant (Lot D) and ends at another lot owned by the plaintiff (Lot 4).

The plaintiff alleged that the acts conveying Lot C to the plaintiff and Lot D to the defendant refer to each property as fronting on Myrtle Street and that all the conveyances in the parties’ respective chains of title were made with specific preference to and in accordance with a 1955 survey that shows both Lot C and Lot D as fronting on Myrtle Street. In addition, the plaintiff stated that it has continuously used Myrtle Street to access Lot C and Lot 4 since it acquired title to them.

The plaintiff further alleged that on December 8, 1953 the St. Charles Parish Police Jury voted to accept Myrtle Street as a public street to be incorporated into the parish road system and to be maintained by the police jury after that date; that Myrtle Street has been used by the public as a street since 1953; and that it has been maintained by the governing authority of St. Charles Parish for more than three years.

The plaintiff sought a declaration that Myrtle Street is a public street, either by reason of the 1953 parish ordinance refer[621]*621ring to it or by tacit dedication or, alternatively, a ruling that a servitude of passage exists in the plaintiffs favor. The plaintiff also sought an order for removal of the fence erected by the defendant, an injunction against erection of any obstructions in the future, and damages.

The defendant responded with a peremptory exception of prescription, asserting that if any servitude ever existed on that portion of Myrtle Street, it prescribed by nonuse for 10 years. After a hearing, the exception was denied. The trial court stated in written reasons for judgment that the defendant had not met his burden of proof, because there was a significant question as to whether the street was ever dedicated to the parish and the defendant also failed to prove that ten years elapsed without public use.

|4The defendant then filed an answer, in which he asserted that the portion of Myrtle Street that is the subject of the lawsuit has been in possession of the defendant and his family since 1945 and that the defendant has acquired it by virtue of 30 years’ adverse possession.

After trial on the merits the district court ruled in favor of the plaintiff, declaring that Myrtle Street is a public street and that it was impliedly dedicated for public use. The court ordered the defendant to remove any obstructions and enjoined him from erecting future obstructions. The court denied any further relief and assessed the parties their own costs.

In written reasons for judgment the court found that Myrtle Street had been impliedly dedicated to the parish because the defendant’s father had divided the land into lots, designated the street on a map, and sold portions of the property with reference to the map. The court pointed out that in each conveyance the properties known as Lot C and Lot D were identified as fronting on Myrtle Street. In addition, the court cited evidence that the parish paved Myrtle Street in both 1977 and 1998 and installed subsurface drainage in 1998 and that Myrtle Street was used as a public street until the defendant installed the fence in 1997.

The defendant appeals. He contends the trial court erred in failing to maintain his exception of prescription, in finding that Myrtle Street was used as a public street, in finding that the parish paved it in 1977 and 1998 and installed subsurface drainage in 1998, and in failing to address the defendant’s claim of acquisition of the extension either by quitclaim deed or by acquisitive prescription of 30 years.

I .EVIDENCE

At trial Pastor Bob Willis testified that he was pastor of Boutte Assembly of God from 1985 to 1994. He testified that Myrtle Street runs from Highway 90 back to the church’s property and stops there, while Breaux Street runs perpendicular to and ends at Myrtle Street. He testified that any time the church had work done, the workmen with heavy equipment would enter the property by the Myrtle Street entrance. They used Myrtle Street four to six times a year.

Willis testified he never asked anyone’s permission to use the street because he did not think there was a need to do so. He said that Myrtle Street is the only access the church has for vehicles to get to the rear of its property. Willis said that the defendant cut grass on the part of the church’s lot next door to his house and Willis gave him permission to park his boat there.

Pastor Steve Marze1 testified he has been pastor of the church since June 1995 and is familiar with Lot C. Currently it is leased out and the lessee has four house trailers on it. He stated the church hires [622]*622someone to cut grass on the property when notices are received that it needs to be cut. He has gone onto the property five or six times a year. He always drove off of it on Myrtle Street or walked down there. Now, however, the way is blocked by the fence erected by the' defendant.

Marze denied that he ever asked the defendant for permission to go on the property, but just went on it. He said the church has no access to its property other than by the extension of Myrtle Street.

IfiThomas J. Champagne testified that he is the defendant’s brother. His father owned all of the land from which the property involved here was taken. The family home was and still is located on what is now known as Lot D, the defendant’s lot. Thomas Champagne bought the house from the estate after his father died in 1966. In 1977 he sold it to his brother, Gary Champagne, the defendant.

Thomas Champagne testified that Myrtle Street was developed before Breaux Street. To get to his father’s house they took Myrtle Street all the way to the dead end. From the dead end straight up was his father’s lot. It dead-ended at the intersection of Breaux Street and straight ahead was the driveway to the house. He testified further that there was never any traffic through that street because there was “nowhere for it to go.” A barbed wire fence originally was on the eastern end, with a field on the other side that is now the church property.

He said that while he owned the house from 1966 to 1977, no one other than the family used that Myrtle Street extension. He testified that before the property was subdivided there was no Breaux Street. His father sold Lot C to the witness’ uncle, Milton Champagne, and gave him a right-of-way, an easement, to get on it. His uncle Milton would come from the end of Myrtle Street and go on to his property.

Thomas Champagne testified that the school bus never comes down Myrtle Street, but turns on Breaux Street, and that delivery trucks do not use it either. He acknowledged that the parish had installed new sub-surface drainage in the area a year or a year-and-a-half before the trial.

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Bluebook (online)
777 So. 2d 619, 0 La.App. 5 Cir. 340, 2000 La. App. LEXIS 3440, 2000 WL 1874051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boutte-assembly-of-god-inc-v-champagne-lactapp-2000.