STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
r Wv 2021 CA 1393
BRADFORDBRADFORD LANDLAND COMPANY,COMPANY, L.L. LC.LC.
VERSUSVERSUS
MONTAGNETMONTAGNET PROPERTIESPROPERTIES # # 2,2, L.L. L.L. C.C.
Judgment Judgment Rendered:Rendered: NOVNOV 1717 20222022
OnOn AppealAppeal fromfrom thethe TwentyTwenty - - SecondSecond JudicialJudicial DistrictDistrict CourtCourt InIn andand forfor thethe ParishParish ofof St.St. TammanyTammany StateState ofof LouisianaLouisiana DocketDocket No.No. 2011-2011- 1534015340
HonorableHonorable ReginaldReginald T.T. Badeaux,Badeaux, III,III, JudgeJudge PresidingPresiding
AllisonAllison C.C. BondurantBondurant CounselCounsel forfor Plaintiff/Plaintiff/ AppelleeAppellee BrittanyBrittany J.J. WalkerWalker BradfordBradford LandLand Company,Company, L.L. L.L. C.C. Madisonville,Madisonville, LouisianaLouisiana
ReneeRenee S.S. MelchiodeMelchiode CounselCounsel forfor Defendant/Defendant/ Appellant Appellant BenjaminBenjamin M.M. Pri-Pri- TalTal MontagnetMontagnet PropertiesProperties # # 2,2, L.L. L.L. C.C. NewNew Orleans,Orleans, LouisianaLouisiana
BEFORE:BEFORE: McCLENDON,McCLENDON, WELCH,WELCH, ANDAND THERIOT,THERIOT, JJ.JJ. McCLENDON, J.
In this case involving a boundary dispute, the defendant appeals the judgment of
the trial court in favor of the plaintiff. The plaintiff answered the appeal. For the
reasons that follow, we amend the judgment in part, affirm as amended, and remand
with instructions.
FACTS AND PROCEDURAL HISTORY
On August 29, 1977, Dayle L. Bradford acquired Lot 290 in Flower Estates
Subdivision in Covington, Louisiana. On December 31, 2003, James L. Bradford, Jr.,
M. D., and Dayle L. Bradford transferred their interest in Lot 290 to Bradford Land
Company, LLC ( Bradford Land) by deed entitled Transfer of Property as Capital
Contribution.' Bradford Land remains the record title holder of Lot 290. On May 22,
1998, Oliver S. Montagnet, Jr. and Monica Cummings Montagnet acquired Lot 289 in
Flower Estates Subdivision by rash sale. On August 26, 1998, the Montagnets sold Lot
289 to Montagnet Properties # 2, LLC ( MP# 2). 2 MP# 2 remains the record title holder of
Lot 289. Lot 289 and Lot 290 are adjacent to each other and share a common
boundary line. Both lots front on Louisiana Highway 21. 3
In early 1999, MP# 2 completed construction of a commercial building, parking
lot, and other improvements on Lot 289, and on January 27, 1999, received a final
inspection certificate from the City of Covington. MP# 2 requested a survey of Lot 289,
and Billy C. Daniels prepared a survey, dated February 10, 1999, of " 1. 00 acre of land
being Lot No. 289 Flowers Estates Subdivision Covington St. Tammany Parish
Louisiana," showing the building within the boundaries of Lot 289. Thereafter, on April
8, 1999, the City notified MP# 2 that it had re -inspected the property and found items
not in compliance with the Covington Code of Ordinances, including a five- foot setback
1 Lot 290 was described as containing " 100 feet on La. State Highway No. 21, by a depth of 400 feet along its side line common to Lot 289, by a depth of 400 feet along its side line common to Lot 291, and by a distance in the rear of 100 feet." In the transfer to Bradford Land, Dr. Bradford was identified as the duly authorized manager for Bradford Land.
z In the sale, Lot 289 was described as " 100 feet front on Louisiana Hwy. No. 21, having a width in the rear of 100 feet, by a depth of 400 feet on each side line."
3 The transfers to Bradford Land and MP# 2 both reference that the respective lots are described in accordance with the survey and plan of E. J. Champagne, Surveyor, dated January 22, 1956.
2 requirement. Subsequently, the City and MP# 2 entered into a consent judgment, which
was signed by the trial court on December 19, 2000.
In 2006, in connection with a loan, MP# 2 requested another survey of Lot 289
and hired Joseph M. Marques. The Marques survey, dated December 18, 2006,
indicated that the improvements on Lot 289 were within the boundary lines for Lot 289.
Beginning in 2006, the Louisiana Department of Transportation and Development
DOTD) began a government expropriation of certain property for the widening of a
section of Highway 21. In connection therewith, Louisiana Property Acquisition
Company ( LaPAC) managed the acquisition process for the forty- two parcels that were
procured for the project, including portions of Lots 289 and 290 fronting on Highway
21. 4 During the course of the project, LaPAC hired John E. Bonneau & Associates
Bonneau) to survey the lots. The Bonneau survey, dated May 14, 2007, showed that
the State acquired 6. 97 feet from the boundary between Lot 289 and Lot 290.
Sometime in 2007, Bonneau notified Bradford Land that MP# 2' s improvements
on Lot 289 might be encroaching on Lot 290. Bradford Land did not take any action
regarding the disputed building location or setbacks until it sent a letter, dated August
28, 2009, through its attorney, to MP# 2, alleging that the improvements on Lot 289
encroached onto Lot 290 and demanding equitable rent for the property encroached
upon. The letter also attached a survey performed by Mr. Bonneau, dated June 17,
20097 showing the alleged encroachments.
On September 16, 2011, Bradford Land filed suit against MP# 2, asserting that
MP# 2 constructed parking structures, concrete pads, sewer and drain cleanouts, as well
as piping, across the Lot 289 boundary line and onto Lot 290 illegally and without the
permission of Bradford Land. Bradford Land sought a declaration that the
improvements encroached onto Lot 290, the removal of the encroachments at MP# 2' s
cost, and reasonable rent for the time of the encroachment. Bradford Land also asked
for damages for the encroachments and for the violation of the setback requirements.
4 we note that Dr. Bradford' s son, James L. Bradford, III, was involved in the 2007- 2008 project as project manager for LaPAC.
3 In response, MP# 2 filed a peremptory exception raising the objections of
prescription, no cause of action, and peremption on January 11, 2012. Bradford Land
opposed the exceptions. Following a hearing, the exceptions were denied, and the trial
court signed a judgment denying same on April 26, 2013.
Subsequently, the trial court held a two- day bench trial on July 22 and 23, 2020.
The parties stipulated that MP# 2 is the record title owner of Lot 289 and that Bradford
Land is the record title owner of Lot 290. Both parties submitted separate surveys and
expert surveyor testimony. Bradford Land offered the surveys of John E. Bonneau and
John Brandon McCain, along with their expert testimony, which showed that the 1999
improvements on Lot 289 extend more than three feet past the boundary between the
properties. 5 Bradford Land also offered the 2012 survey of Michael P. Maillet,
performed for DOTD in connection with a second improvement project along Highway
21.
MP# 2 relied on the Daniels and Marques surveys, and offered the expert
testimony of Mr. Marques, for its position that none of the improvements extended over
the boundary between the two properties. MP# 2 argued that it was the title owner of
the disputed area, but even if it was not, it possessed the land in good faith and with
just title for over ten years and was therefore the owner by acquisitive prescription.
The trial court took the matter under advisement, post -trial briefs were filed, and
on January 8, 2021, the trial court issued its judgment and written reasons, fixing the
boundary as depicted in the surveys of Mr. Bonneau and Mr. McCain. In its written
reasons, the trial court determined that the Bonneau and McCain surveys provided the
most reliable and accurate evidence of the boundary' s location. The court found that
the opinions of Mr. Bonneau and Mr. McCain showed definitive proof of the boundary at
issue since they relied on the record title documents of ownership and the subdivision
plats, after finding that the boundary could not be located based on the subdivision
plats alone. The trial court also determined that Mr. Bonneau and Mr. McCain had the
most reliable data because they surveyed the entirety of Highway 21 corridor from
5 The Bonneau survey, dated June 17, 2009, and revised October 25, 2012, showed the furthest encroachment at 3. 5 feet. The McCain survey, dated October 27, 2012, and prepared by John S. Teegarden, surveyor, showed the farthest encroachment at 4.6 feet.
El. Interstate 12 north to the Tchefuncte River Bridge, and they also properly used the
hierarchy of calls and the data acquired to determine the boundary location. The trial
court determined that the Daniels survey only located the building on Lot 289, with a
vague reference to concrete parking, and did not identify the sewer cleanouts, concrete
pads, concrete retaining wall, fencing, and bounds of the parking concrete.
After fixing the boundary line, the trial court concluded that the building and
improvements on Lot 289 encroached onto Lot 290. 6 The court then found LSA-C. C.
art. 670 applicable and ordered the establishment of a predial servitude. Article 670
provides:
When a landowner constructs in good faith a building that encroaches on an adjacent estate and the owner of that estate does not complain within a reasonable time after he knew or should have known of the encroachment, or in any event complains only after the construction is substantially completed the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building upon payment of compensation for the value of the servitude taken and for any other damage that the neighbor has suffered.
With respect to damages, the trial court found that the only expert opinion was
that given by Bradford Land' s expert, Ashton Ray, a licensed appraiser, who appraised
the fair market value of the portion of Lot 290 used by MP# 2, and found it to be worth
14. 50 per square foot. Mr. Ray also opined that the servitude should have a width of
six feet and be a straight line, as opposed to a jagged or saw-toothed line. This
resulted in a total appraisal price of $ 33, 500. 00. 7 The trial court agreed and awarded
Bradford Land $ 33, 500. 00 for the market value of the predial servitude. However, the
trial court declined to award fair market rent for the property encroached upon by
MP# 2 in the amount of $53, 000. 00, as Bradford Land requested. The court found that
amount to be speculative and pointed out that Bradford Land was not using the land in
question for any purpose and that Lot 290 remains undeveloped.
G We note that Mr. McCain testified that the entire building itself was within the bounds of Lot 289. In its written reasons, the trial court stated that the building was not in dispute between the parties, but that what was disputed was the location of the sewer cleanouts, concrete pads, the concrete retaining wall, fencing, and bounds of the parking lot. The trial court then referred to the building and improvements on Lot 289 that encroached on Lot 290.
The trial court acknowledged that the farthest encroachment on Lot 290 was 4. 6 feet from the property boundary line, but agreed with Mr. Ray that a buffer between MP# 2's constructions and potential future developments on Lot 290 was appropriate.
E Thus, the January 8, 2021 judgment judicially fixed the boundary as depicted in
the Bonneau and McCain surveys as the conclusive location of the boundary between
the lots; granted a predial servitude over the area of the encroached land with a width
of six feet from the boundary line, running " from the entire boundary of Lot 289 and
onto Lot 290"; awarded the fair market value of the predial servitude in the amount of
33, 500. 00 to Bradford Land from MP# 2; and cast all costs, including expert witness
fees, against MP# 2.
MP# 2 appealed the judgment and assigned the following as error:
1. The trial court committed legal error when it failed to determine that MP# 2 had
acquired the alleged strip of land via acquisitive prescription after MP# 2
established possession for more than ten years in good faith and just title based
on recorded surveys.
2. The trial court committed legal error and utilized the incorrect burden of proof
when determining who had better title to the land in dispute.
3. The trial court committed legal error when it adopted the findings of two
different surveys to determine the boundary line despite the inherent defects in
the surveys and despite their inconsistencies.
4. Alternatively, the trial court manifestly erred when it ruled that the Bonneau and
McCain surveys determined the boundary when the surveyors themselves
removed the original markings and replaced them with others while in Bradford
Land' s employment.
5. The trial court legally erred because Bradford Land' s claim for damages
prescribed or was otherwise preempted as suit was filed more than twelve years
after completion of the improvements and more than one year after Bradford
Land discovered the alleged encroachment.
6. Alternatively, the trial court awarded legally incorrect damages as the City of
Covington preempted this issue when it ruled via Consent Judgment that MP# 2
did not violate any setbacks and no law provided damages to Bradford Land for a
buffer zone beyond the actual encroachment.
0 Bradford Land answered the appeal, seeking modification of the January 8, 2021
judgment, and assigned as error, the following:
1. The trial court erred in failing to grant Bradford Land judicial interest from the
date of judicial demand, although the trial court's Written Reasons for Judgment
correctly provided for judicial interest from the date of demand.
2. The trial court erred in failing to grant Bradford Land fair market rent for the
portion of Lot 290 encroached upon by MP# 2 from the construction of the
encroachment through the date of the January 8, 2021 judgment.
3. The trial court erred in failing to decree that the predial servitude granted to
MP# 2 is limited and does not allow MP# 2 to construct any additional
encroachments onto Lot 290 beyond what existed at the time of the January 8,
2021 judgment.
4. The trial court erred in failing to decree that the predial servitude shall extinguish
in accordance with law.
STANDARD OF REVIEW
It is well settled that a court of appeal may not set aside a trial court's or a jury'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). Where there is conflict in the testimony,
reasonable evaluations of credibility and reasonable inferences of fact should not be
disturbed upon review, even though the appellate court may feel that its own
evaluations and inferences are as reasonable. Id. The location of a boundary line is a
question of fact, and the determination of its location by the trial court should not be
reversed absent manifest error. Marcello v. Jo -Blanche Corporation, 20- 1113
La. App. 1 Or. 6/ 4/ 21), 330 So. 3d 632, 639, writ denied, 21- 1666 ( La. 1/ 19/ 22), 331
So. 3d 330.
A legal error occurs when a trial court applies incorrect principles of law and such
errors are prejudicial. Legal errors are prejudicial when they materially affect the
outcome and deprive a party of substantial rights. Evans v. Lungriin, 97- 0541 ( La.
2/ 6/ 98), 708 So. 2d 731, 735.
7 DISCUSSION
The Boundary Location
MP# 2 first argues that the trial court erred in determining a boundary line, since
it has clear title to Lot 289 and owns the land, building, and component parts, by ten-
year acquisitive prescription, based on its surveys and just title. Louisiana Civil Code
article 3475 provides that "[ t] he requisites for the acquisitive prescription of ten years
are: possession of ten years, good faith, just title, and a thing susceptible of acquisition
by prescription." The only requirement at issue before us is just title.
Just title" is defined in LSA -C -C. art. 3483 as " a juridical act, such as a sale,
exchange, or donation, sufficient to transfer ownership or another real right. The act
must be written, valid in form, and filed for registry in the conveyance records of the
parish in which the immovable is situated." Thus, to have just title over particular
property for purposes of ten- year acquisitive prescription, one must have a recorded act
translative of title that contains a description of the property at issue.
The August 26, 1998 sale of Lot 289 to MP# 2 referenced the "survey and plan of
E. J. Champagne, Surveyor, dated January 22nd, 1956" being the same property
acquired by the Montagnets in the " act of sale dated May 22, 1998." However, the
Champagne survey did not describe the boundary between Lot 289 and Lot 290 in
sufficient detail to show whether the improvements are inside the boundaries of Lot
289. 8
The trial court determined that MP# 2 did not have an act translative of title to
the property upon which the alleged encroachments sit, and therefore, MP# 2 failed to
establish the requirement of just title for the purposes of acquisitive prescription. On
appeal, MP# 2 asserts that the consent judgment it obtained in the litigation with the
City of Covington regarding MP# 2' s " setback and boundaries" and the survey by Mr.
Daniels, dated May 21, 1998, filed in the public records, provides just title to the
property at issue.
8 Mr. Bonneau and Mr. McCain testified that the Champagne survey does not detail the original monuments and is missing curve data, courses, and angles necessary to determine the precise location of the boundary between Lot 289 and Lot 290. However, a judgment does not constitute a just title as it is declarative rather
than translative of rights. See LSA- C. C. art. 3483, Revision Comments ( b). Further, the
consent judgment made no finding or judgment regarding the boundary to Lot 289 nor
was it translative of any rights. Additionally, the recordation of the Daniels survey did
not transfer any rights to MP# 2 and did not provide a just title. Accordingly, without
just title, MP# 2 failed to establish that it was the owner of the encroached property
based on ten- year acquisitive prescription, and this assignment of error lacks merit.
MP# 2 next claims that the trial court erred in using the wrong burden of proof in
establishing the boundary. Specifically, MP# 2 argues that the trial court failed to apply 9 the elements of proof set forth in LSA- C. C. P. art. 3654 governing proof of ownership.
MP# 2 avers that Bradford Land must establish " title good against the world" because
MP# 2 is the " presumed owner" of the property containing the encroachments because
it is in possession thereof. MP# 2 contends that Bradford Land failed to show better
title and that the boundary should be placed based on MP# 2' s possession of the
building and its components.
An action to fix the boundary is an ordinary proceeding. LSA- C. C. P. art. 3691.
The boundary may be fixed upon the demand of an owner or of one who possesses as
owner. LSA- C. C. art. 786. After considering the evidence, including the testimony and
exhibits of a surveyor or other expert appointed by the court or by a party, the court
shall render judgment fixing the boundary between the contiguous lands in accordance
with the ownership or possession of the parties. LSA-C. C. P. art. 3693; Presswood v.
9 Louisiana Code of Civil Procedure article 3654 provides:
When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right therein is so presented, the court shall render judgment in favor of the party: 1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or 2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.
0 Spillman, 04-0145 ( La. App. 1 Cir. 2/ 11/ 05), 906 So. 2d 509, 511, writ denied, 05- 0672
La. 5/ 6/ 05), 901 So. 2d 1098. 10
In the matter before us, the parties stipulated that MP# 2 is the record title
owner of Lot 289 and that Bradford Land is the record title owner of Lot 290. The title
documents for the parties also establish that both Bradford Land and MP# 2 acquired
their properties in accordance with the original subdivision plats for Flower Estates.
However, the title transfers for Lot 289 and Lot 290 contain property descriptions that
include only a lot number and the length and width of the properties. Therefore, the
issue before the trial court was the placement of the boundary between Lot 289 and Lot
290, not the ownership of the properties. The trial court correctly found that LSA-
C. C. P. arts. 3691 through 3693, which provide the rules and law governing boundary
actions, rather than LSA- C. C. P. art. 3654, were applicable to the present matter, and
we find no legal error by the trial court.
MP# 2' s next two assignments of error pertain to the fixing of the boundary line.
MP# 2 contends that the trial court erred when it adopted the findings of two different
surveys to determine the boundary line, despite their defects and inconsistencies.
Alternatively, MP# 2 argues that the trial court erred in using the Bonneau and McCain
surveys to determine the boundary line when the surveyors themselves removed
original markings and replaced them while in Bradford Land' s employment.
The Louisiana Supreme Court has established that in cases where boundary
questions exist, the legal guides for determining the location of a land line in property
descriptions, in order of their importance, are: natural monuments, artificial
monuments, distances, courses, and quantity, with the controlling consideration being
intention of the parties. Skillman v. Harvey, 03- 2724 ( La. App. 1 Cir. 12/ 30/ 04), 898
So. 2d 431, 434, writ denied, 05- 0272 ( La. 4/ 1/ 05), 897 So. 2d 610 ( dt[ng City of New
Orleans v. Joseph Rathborne Land Co., 209 La. 93, 109- 10, 24 So. 2d 275, 281 ( La.
1945); Meyer v. Comegys, 147 La. 851, 857, 86 So. 307, 309 ( La. 1920)). A survey
10 Louisiana Civil Code article 792 provides that in a boundary action, the court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession. Article 793 also provides, in part, that "[w] hen both parties rely on titles only, the boundary shall be fixed according to titles."
10 predicated on sound surveying principles should be accepted unless the record shows it
is incorrect. Skillman, 898 So. 2d at 435.
MP# 2 asserts that the Daniels and Marques surveys verify that it is the owner of
the disputed strip of land. The parties agreed that the 1956 Champagne survey did not
refer to natural monuments relative to Lot 289 or Lot 290. MP# 2 argues, however, that
it did contain artificial monuments, being Highway 21 and Marigold Drive. Therefore,
according to MP# 2, Mr. Daniels based his survey on the location of Marigold Drive, and
the survey should be accepted because it is the most ancient and follows the original
ground survey of Mr. Champagne. MP# 2 also contends that the Marques survey
determined the boundaries based on the original intent of the Champagne survey and
utilized original markers that were not considered by Bradford Land' s surveyors.
The record shows that, in connection with their work in 2007 for the State
regarding the widening of Highway 21, Mr. Bonneau and Mr. McCain surveyed all of the
highway from Interstate 12 north to the Tchefuncte River Bridge. They located
monuments along the front and rear property boundaries for all of the lots in the area,
including residences, shopping malls, office buildings, gas stations, and empty lots. Mr.
Bonneau has been a surveyor since 1980 and has surveyed areas of Flower Estates
since 1976. Mr. McCain testified that he has also surveyed a number of areas in the
subdivision. Mr. McCain stated that he has located monuments similar to the 1/ 2 - inch
iron pipes found on Lot 289 and Lot 290 and believes that the 1/ 2 - inch iron pipes he and
Mr. Bonneau used as a basis for their conclusions are the original monuments set by
the original surveyors."
The record also shows that Mr. Bonneau and Mr. McCain established the same
boundary line between Lot 289 and Lot 290, despite MP# 2' s argument to the contrary.
Using the monuments, the surveyors determined the boundary between Lots 289 and 290 to have lengths consistent with the Champagne survey and the revised Robert
Berlin plat of Flowers Estate, dated July 13, 1964, of approximately 400 feet ( there was
11 we note that during the Highway 21 widening project, Mr. Bonneau and Mr. McCain both testified that they believed that they found what were the original monuments for the lots fronting on the highway, but they had to be replaced due to the taking by the State.
11 a 7/ 100ths of a foot difference after consideration of the sale of frontage by each of the
parties to the Parish in 2008). 12
The only meaningful discrepancy between the Bonneau and McCain surveys and
the Champagne and Berlin surveys was the length of the rear boundary of Lot 288.
The Champagne and Berlin surveys noted a rear length of 82 feet, whereas the
Bonneau and McCain surveys found a rear length of 80. 5 feet, based on the
monuments found and tying them into the lots on the Highway 21 corridor and
surrounding streets. Mr. Bonneau testified that if the 82 -feet number was used to
measure westward, as suggested by MP# 2, then every other boundary for Lot 289
through Lot 302 would have to be moved over by one and a half feet, creating a
domino effect that would push the rear boundary of Lot 302 into Zinnia Drive, which
would disagree with all of the monumentation that we found within that corridor
there." 13
Additionally, Bradford Land submitted evidence regarding the sale of Lot 288 on
March 4, 2013, with a survey by John G. Cummings, dated February 4, 2013, attached.
Mr. Cummings located the boundaries of Lot 288 in the same place as the Bonneau and
McCain surveys, including fording that southern property line of Lot 288 is 80. 5 feet in
length. 14
Having thoroughly reviewing the record, we find a reasonable basis for the trial
court's factual finding regarding the precise location of the boundary line between Lot
289 and Lot 290. Accordingly, we find no manifest error and cannot say that the trial
court was clearly wrong in its determination.
12 The Bonneau and McCain surveys, performed after the 2008 sale to the Parish, reflect a boundary length between Lots 289 and 290 of 392. 82 and 392. 89 feet, respectively. Thus, prior to the acquisition by the Parish of 5. 97 feet of that boundary, the boundary length was 400 feet.
13 The Marques survey, upon which MP# 2 relies, utilized the 82 -feet length for the rear boundary of Lot 288. Mr. Marques testified that he found points that indicated he could move the property over by a foot and an inch, but he chose not to. He stated that he held to 82 feet because that " is what this plan calls for." Marques testified that he did not measure any lots west of Lot 290 to see if the length of 82 feet fit within other monumentation to the west of the lot and based his conclusions using monuments in the area of Marigold Drive.
14 Also, Mr. Maillet surveyed Lots, 288, 289, and 290 for the 2012 Highway 21 improvement project. Mr. Maillet's survey, dated July 25, 2412, found the same monumentation as found by Mr. Bonneau and Mr. McCain and confirms the Bonneau and McCain surveys.
12 Additionally, we note that the judgment of the trial court provides that " the
boundary between lots 289 and 290 is judicially fixed as depicted in the surreys done
by John Bonneau and Brandon McCain." It is clear that the trial court intended to fix
the boundary according to the parties' titles and the Bonneau and McCain surveys " as
the conclusive boundary between the lots." For clarity, we remand to the trial court
with instructions to amend the judgment for the sole purpose of attaching or
incorporating into the judgment the specific surveys referenced in its January 8, 2021
judgment. See Andermann v. Rouillier, 18- 88 ( La. App. 5 Cir. 4/ 25/ 19), 271 So. 3d
384, 413, writs denied, 19- 00971 ( La. 9/ 24/ 19), 278 So. 3d 978, and 19- 00981 ( La.
9124/ 19), 279 So. 3d 935.
Compensation
In its last two assignment of errors, MP# 2 asserts that if we affirm the trial
court's placement of the boundary, any award for damages was incorrect. MP# 2
acknowledged that an action to fix a boundary does not prescribe. LSA-C. C. art. 788
The right to compel the fixing of the boundary between contiguous lands is
imprescriptible' }. However, it contends that Bradford Land' s claim for damages is a
delictual action with a one-year prescriptive period pursuant to LSA- C. C. art. 3493.
As previously stated, the trial court specifically found LSA -GC. art. 670 applicable
to the matter before us. The trial court determined that the encroachments were
placed on Bradford Land' s property in good faith and, pursuant to Article 670, would be
allowed to stay. Additionally, the trial court awarded compensation only, finding that
no " other damage" was due.
Of note, we do not consider whether the predial servitude set forth in Article 670
would apply to the specific encroachments at issue herein. The parties do not contest
the application of Article 670, and this issue was neither assigned as error nor raised in
the parties' briefs. Accordingly, we do not address whether the application of Article
670 was appropriate under the facts before us.
Therefore, because the trial court found Article 670 applicable, we consider the
remedies provided therein. Pursuant to Article 670, MP# 2 will acquire a predial
servitude on the land occupied by the encroachments upon payment of compensation
13 for the value of the servitude taken and for any other damage that Bradford Land has
suffered. The trial court awarded Bradford Land $ 33, 500. 00 as the value of the
servitude, but declined to award any other damages.
Although MP# 2 asserts that any claim for damages has prescribed, its actual
argument regarding the predial servitude is that the valuation is incorrect. Specifically,
MP# 2 argues that no law supports the right to a buffer zone when granting a predial
servitude pursuant to Article 670. According to MP# 2, the actual size of the
encroachment was 526 square feet for the concrete parking and 32 square feet for the
gravel and concrete encroachment, for a total of 558 square feet. Therefore, accepting
Mr. Ray' s valuation of the property at $ 14. 50 per square foot, MP# 2 argues that the
value for the actual size of the encroachment should be $ 8, 091. 00. Alternatively, using
Mr. Bonneau' s farthest encroachment point at 3. 5 feet, and were one to allow a
straight-line boundary, MP# 2 argues that the maximum damages would be $ 19, 919. 69,
not $ 33, 500. 00. However, we note that Mr. McCain found the farthest point of
encroachment to be 4.6 feet, being the top of one of the two sewer cleanout tanks.
A predial servitude is a charge on a servient estate for the benefit of a dominant
estate. LSA-C. C. art. 646. predial servitudes are either natural, legal, voluntary, or
conventional. LSA- C. C. art. 654. The predial servitude contained in LSA- C. C. art. 670 is
a legal servitude. Legal servitudes are limitations on ownership established by law for
the benefit of the general public or for the benefit of particular persons. LSA- C. C. art.
659.
Article 670 was enacted in 1978 to empower the courts with discretionary
authority to grant a predial servitude to landowners who constructed a building in good
faith that encroached on an adjacent estate. This authority is premised on the
provision that compensation be made to the adjoining landowner burdened by
the servitude. Bushnell v. Artis, 445 So. 2d 152, 154- 55 ( La. App. 3 Cir. 1984).
In Bushnell, the defendant's home encroached on the plaintiffs property for
approximately six feet. The trial court awarded the encroaching landowner a predial
servitude to allow a straight- line boundary ( of servitude) on a line three feet east of the
east edge of the defendant's roof from the rear of her lot south to the street.
14 Bushnell, 445 So -2d at 155. In affirming the trial court's judgment, the third circuit
noted the well -reasoned opinion of the trial court that reflected sound reasoning in
fixing the predial servitude, wherein the trial court recognized that the defendant must
be allowed enough room to maintain and repair her building. Id.
In Atwood v. Hylan, 28, 971 ( La.App. 2 Cir. 12/ 11/ 96), 685 So. 2d 450, 453, the
second circuit amended the trial court's judgment and granted the plaintiff a predial
servitude under Article 670 on the land occupied by his encroaching boathouse and
pier. The servitude included an area of four feet extending around the perimeter of the
entire structure of the plaintiff to allow access for repair and maintenance.
Mr. Ray testified that a six- foot buffer was fairly small, considering the 4.6 feet
encroachment as determined by Mr. Bonneau. On our review, we find no error by the
trial court in the granting a six- foot straight- line predial servitude under LSA- C. C. art.
670 and in its calculation of the compensation for the value of the servitude.
Alternatively, MP# 2 makes the argument that damages were illegally awarded
because the consent judgment entered into between it and the City of Covington ruled
that MP# 2 did not violate any setbacks. The consent judgment set forth the
requirements for parking spaces, green spaces, and tree plantings by MP# 2 on Lot 289.
The judgment then provided that "[ t] he City of Covington shall deem the above
obligations sufficient to meet all City Planning and Zoning requirements and all parking
and landscaping requirements for the present zoning classification."
A consent judgment is a bilateral contract between the parties by which the
parties adjust their differences by mutual consent. Its binding force arises from the
voluntary acquiescence of the parties rather than the adjudication by the court. Mayo
v. Hutchinson, 16- 1642 ( La. App. 1 Cir. 9/ 27/ 17), 232 So. 3d 567, 573- 74. The
consent judgment overturned the denial of the variance by the Covington Board of
Adjustments with regard to Lot 289, but made no findings, such as the location of the
boundary line between Lot 289 and Lot 290. Moreover, MP# 2`s argument regarding
peremption based on the law applicable to building restrictions and the application of
zoning requirements is inapplicable as neither issues were before the trial court. MP# 2' s argument is without merit.
15 The Answer to the Appeal
Bradford Land filed an answer to the appeal raising several arguments and
seeking modification of the judgment of the trial court. Initially, Bradford Land
contends that the trial court erred in failing to grant it judicial interest from the date of
demand, although the trial court' s Written Reasons for Judgment provided for judicial
interest from the date of demand.
The January 8, 2021 judgment is silent regarding legal interest. However, the
grant of judicial interest is governed by LSA- C. C. P. art. 1921, which provides that "[ t] he
court shall award interest in the judgment as prayed for or as provided by law." Since
the word " shall" in Article 1921 is mandatory, the court lacks discretion to deny interest
if interest is prayed for or provided for by law. Quality Design and Const., Inc. v.
City of Gonzales, 2013- 0752 ( La. App. 1 Cir. 3/ 11/ 14), 146 So. 3d 567, 573.
In its petition, Bradford Land prayed for " judicial interest on all amounts due."
Accordingly, we amend the judgment of the trial court ordering the predial servitude to
include an award of judicial interest owed by MP# 2 on the $ 33, 500. 00 amount from the
date of demand, September 16, 2011, until paid.
Bradford Land next asserts that it is entitled to fair market rent for the period of
time MP# 2 improperly encroached upon its property. Bradford Land contends that
although the trial court granted a predial servitude to MP# 2 and compensated Bradford
Land for the value of servitude, the trial court manifestly erred in failing to award
Bradford Land any damages for MP# 2' s past use of Lot 290, in accordance with the
provisions of Article 670. 15
The trial court ordered that Bradford Land be paid $ 33, 500. 00 for the value of
the predial servitude pursuant to Article 670, but the trial court declined to award any
rent. Thus, the trial court implicitly determined that Bradford Land did not suffer " any
other damage." On our review of the record, we find no manifest error by the trial
court in this determination.
is As previously noted, Article 670 provides for the " payment of compensation for the value of the servitude taken and for any other damage that the neighbor has suffered."
16 In its last two assignments of error, Bradford Land avers that it is entitled to
have the predial servitude limited to prevent MP# 2 from constructing any additional
improvements on Lot 290 as Article 670 does not allow same. Bradford Land also
contends that it is entitled to a decree that the predial servitude granted to MP# 2
extinguishes in accordance with law and, particularly, LSA- C. C. arts. 751 through 774.
As a general rule, an appellate court will not consider issues that
were not raised in the pleadings, were not addressed by the trial court, or are raised for
the first time on appeal. Pinnacle Builders, Inc. v. John, 21- 0335 ( La. App. 1 Cir.
12/ 22/ 21), 340 So -3d 107, 117. Moreover, LSA- C. C. arts. 646 through 774 set forth the
law regarding predial servitudes. We decline to add anything further to the judgment.
CONCLUSION
For the above reasons, the January 8, 2021 judgment of the trial court in favor
of Bradford Land Company, LLC is amended to include legal interest from the date of
judicial demand and, as amended, is affirmed. We remand to the trial court with
instructions to amend the judgment for the sole purpose of attaching or incorporating
into the judgment the specific surveys referenced in its January 8, 2021 judgment. All
costs of this appeal are assessed to Montagnet Properties # 2, LLC.
JUDGMENT AMENDED, AFFIRMED AS AMENDED, AND REMANDED WITH INTRUCTIONS; ANSWER TO APPEAL GRANTED IN PART, DENIED IN PART.
17 STATE OF LOUISIANA
2021 CA 1393
BRADFORD LAND COMPANY, LLC.
VERSUS
MONTAGNET PROPERTIES 42, L.L.C.
THERIOT, J., concurring with reasons.
Louisiana Code of Civil Procedure Articles 1919 and 2089 require that all
final judgments affecting immovable property must describe such property. Because
a predial servitude is an incorporeal immovable, the specificity requirements of
Articles 1919 and 2089 apply to the January 8, 2021 judgment' s description of the
predial servitude running from the entire boundary of Lot 289 and onto Lot 290. See
Clark v. Fazekas, 2019- 1386 (La. App. 1 Cir. 5/ 11/ 20), 303 So. 3d 1066, 1069. The
purpose of these articles is " to insure that the public in general, and title examiners,
successful litigants, officials charged with executions ofjudgments and surveyors in
particular, can accurately deal with the immovable property." Hurst v. Ricard, 558
So. 2d 1269, 1272 ( La. App. 1 Cir.), writ denied, 559 So. 2d 1378 ( La. 1990).
Therefore, I would encourage the trial court to provide an accurate legal
description of the predial servitude and the boundary line in accordance with the
surveys done by John Bonneau and Brandon McCain.