Carol Platt v. Madison Rimmer

• Court: Louisiana Court of Appeal
• Decided: October 12, 2016
• Docket: CA-0016-0223
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

16-223

CAROL PLATT

VERSUS

MADISON RIMMER

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 2013-11313 “B” HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

SHANNON J. GREMILLION JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and D. Kent Savoie, Judges.

AFFIRMED AS AMENDED.

John F. Craton Barousse & Craton, LLC 211 North Parkerson Avenue P. O. Box 1305 Crowley, LA 70527-1305 (337) 785-1000 COUNSEL FOR DEFENDANT/APPELLEE: Madison Rimmer

J. Clay Lejeune Attorney at Law P. O. Box 1919 Crowley, LA 70527 (337) 788-1505 COUNSEL FOR PLAINTIFF/APPELLANT: Carol Platt GREMILLION, Judge.

The plaintiff, Carol Platt, appeals the judgment in favor of her brother, the

defendant, Madison Rimmer, finding that a servitude existing on Rimmer’s

property was personal to Platt. For the following reasons, we affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

In 1983, five siblings including Platt and Rimmer, signed an Act of Partition

partitioning approximately 1,000 acres located in Acadia Parish. In December

2013, Platt filed a petition for declaratory judgment arguing that the right of

passage on Rimmer’s adjoining property was predial and requesting that the rights

of passage be determined for herself and future purchasers of the property, that an

injunction be issued requiring Rimmer to cease and desist the interruption of the

peaceful passage over the property, and for damages occasioned by the denial of

passage. However, Platt subsequently removed the request for damages due to the

summary nature of the proceeding requested by the parties.

Following a hearing on October 19, 2015, the trial court rendered judgment

in favor of Rimmer finding that “the language used for the servitude in the 1983

Rimmer Family Partition creates a personal servitude and not a predial servitude.”

Platt now appeals and argues that the trial court erred in finding that the servitude

was personal rather than predial.

DISCUSSION

A party can seek a declaratory judgment to clarify her rights under a contract.

La.Code Civ.P. arts. 1871 and 1872. This case raises issues of law pertaining to

the nature of the servitude created in the contract and possibly existing on the land;

therefore, we review it de novo. See Ranger Ins. Co. v. Shop Rite, Inc., 05-452

(La.App. 5 Cir. 1/17/06), 921 So.2d 1040. In her petition, Platt states:

10.

Petitioner CAROL PLATT maintains that the road is

transferable and acts as servitude of passage to all of the estate.

....

12.

The petitioner prays for a Declaratory Judgment wherein the

rights of passage are defined for the petitioner and future purchasers

of the property.

The 1983 Act of Partition signed by the five siblings states in pertinent part:

There is also reserved for the use and benefit of all of the parties hereto a right of way or right of passage over and across any and all of the land hereinabove described on the plat of survey attached hereto and made a part hereof. In the event that it becomes necessary in the future to abandon the existing roads and/or passages, then, in that event, each party agrees to provide to every other party reasonable access to his or her respective property.

In 2012, Platt attempted to have an “Act of Correction” confected by the

siblings, which essentially would have made the servitude predial; however, it was

never signed by any of the siblings.

At the declaratory judgment hearing, Platt’s counsel phrased the issue as:

[S]hould Ms. Platt sell the bottom third of her property, would Ms. Platt owe a servitude in the passage that has previously existed, or would she be obliged to construct a new road through her other two portions of property. . . . I feel that the servitude is owed to the estate, . . . property that is landlocked is entitled to a portion, or the servitude that historically existed under Civil Code 646. So the question becomes whether the alienation by partition is such that this particular tract of land because it is landlocked . . .

In closing, Platt’s counsel said the issue was whether “potential purchasers

would have the right to ask for that [the farm road] means of ingress.” In brief,

2 counsel phrases the issue as whether “the vendees in title will be able to access the

road and whether her agents for the purpose of sale or showing will be allowed to

venture on and use the road to evaluate whether or not they want to purchase.”

Rimmer argues in brief that Platt offered no evidence whatsoever at the

hearing other than the Act of Partition, and that the only issue can be interpretation

of it. It is true that there is little evidence in this case from which to base our

decision. We have the partition, brief testimony of Rimmer, and a black and white

photocopy of a map that is difficult to decipher and does not even clearly identify

the road in question.1 It appears that both Rimmer and Platt have portions of land

that abut the road in question (identified as the access road). It is unknown where

the access road leads to or how ingress and egress from the road is accomplished.

The map further seems to establish that there is access to a public road (White Oak

Highway) that traverses both Rimmer’s and Platt’s land with Rimmer’s land being

the portion accessed from the road and the remaining larger portion cutting through

Platt’s land. Further, Rimmer testified that Platt had already sold a twelve-acre

portion of land that fronted White Oak Highway which is the highway that had

given her direct contiguous access to all of her land, but which, due to a flooding

problem, was removed by the drainage board. Nevertheless, Rimmer testified that

none of the property owned by Platt is landlocked.

It is clear from the plain language of the Act of Partition that the servitude

was personal. “A personal servitude is a charge on a thing for the benefit of a

person.” La.Civ.Code art. 534. “The personal servitude of right of use confers in

favor of a person a specified use of an estate less than full enjoyment.”

1 In testimony, the map is referred to by colored lines, which are not identified. The inclusion of a color copy of the map would have been helpful.

3 La.Cov.Code art. 639. Moreover, “[t]he right of use is transferable unless

prohibited by law or contract.” La.Civ.Code art. 643. The servitude created in the

Act of Partition created rights in favor of all of the siblings over all roads and

passages on the property. All of the siblings were granted the same broad rights

over all of the roads and passageways. This is contrary to a predial servitude,

which creates a charge on the servient estate in favor of a dominant estate.

La.Civ.Code art. 646. The Act of Partition contains none of the language of

La.Civ.Code art. 646 indicating that it would be a predial servitude in which a

dominant estate receives benefit from a servient estate. We affirm the trial court’s

finding that the Act of Partition created a personal servitude in favor of the siblings.

This finding, however, did little to define Platt’s right to the use of the road as a

party with a personal servitude over it.

Therefore, the issue before us is the extent of Platt’s right of use and the

transferability of her right of use. Rimmer testified that he places chains on the

access road to prevent hunters from illegally hunting on their land and young kids

from trespassing. However, he allows his tenant farmers to use the road and also

allows Louisiana Department of Wildlife and Fisheries employees and pig hunters

to access the road in attempts to control a wild boar problem. He readily admitted

that he has refused to allow real estate agents to use the road, stating that the road

is not meant to be traveled by ordinary vehicles. Rimmer said that one party

interested in Platt’s land “got stuck[;] he drove straight into the rice fields.”

“A right of use includes the rights contemplated or necessary to enjoyment

at the time of its creation as well as rights that may later become necessary[.]”

La.Civ.Code art. 642. Platt has as much right to use the road as any of her other

siblings. Rimmer grants permission for various persons to access the road for

4 farming. The question is whether Platt can permit others to use the road in a

manner for which the uncontroverted testimony established it had not been

historically used (i.e. use by real estate agents and potential buyers to access her

property as opposed to use as a farm road). Louisiana Civil Code article 645 states:

“A right of use is regulated by application of the rules governing usufruct and

predial servitudes to the extent that their application is compatible with the rules

governing a right of use servitude.” Since the use and extent of the servitude was

not set forth in the partition, La.Civ.Code art. 705 addresses the servitude of

passage as follows:

The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate.

If the contract is silent “as to the extent and manner of use of the servitude,

the intention of the parties is to be determined in light of its purpose.”

La.Civ.Code art. 749; Thiels v. Dennis, 09-957 (La.App. 3 Cir. 2/3/10), 29 So.3d

715. The purpose of a right of passage is to allow “persons, animals, utilities, or

vehicles” to pass over the estate. La.Cov.Code art. 705. It is reasonable for Platt to

allow real estate agents to traverse the road in order to see and show the property

she wishes to sell. This is a necessary utilization of the road in order to exercise the

right to alienate her property as she sees fit, which is undisputed. If the siblings

did not wish to allow any vehicles other than farming equipment to access a road,

the partition should have stated as such. It is uncontroverted that the passage in

question is a “muddy farm road” used for farming purposes. Whether the road will

be damaged, and who will be required to maintain and repair it, are not at issue

5 before us (although Platt’s counsel suggested in argument before the trial court that

it would be her responsibility to repair damages caused by a vehicle on the road at

her behest). The only issue we need to address is whether Platt has a right to the

use of the road. Pursuant to La.Civ.Code art. 705, Platt has a right under her

personal servitude to traverse the road and to allow others to traverse the road in

the course of its ordinary and reasonable use. Moreover, by the clear language of

La.Civ.Code art. 643, Platt’s right of use is transferable to any subsequent buyers

of her property.

Servitude For Future Buyers

Platt essentially argues that the issue is whether the partitioning of her

property into separate tracts requires that the Rimmer property must provide a

predial servitude in her favor because the partitioning creates a landlocked portion.

However, Platt admits that she could construct a road through her remaining

portions:

That is perfectly accurate, that she could, in fact, construct a road or have a road constructed for – for – at that point in time. The question is whether because there is an existing roadway that already exists and that was part of the estate, whether she has a – that gratuitous right enures to her benefit and any other subsequent purchasers of the property.

Platt claims that the “land in question became landlocked by the partition of

property between the heirs of the estate” and refers to La.Civ.Code art. 694 which

states:

When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road or utility, and even if the act of alienation or partition does not mention a servitude of passage.

6 Platt further argues that regardless of the Act of Partition, future owners

would be entitled to the right of passage, citing Spruell v. Dudley, 03-2697

(La.App. 1 Cir. 10/29/04), 897 So.2d 144 and Spotsville v. Herbert & Murrell, Inc.,

97-188 (La.App. 3 Cir. 6/18/97), 698 So.2d 31. In Spruell, the defendant tried to

create a right of way over a covenant-restricted neighborhood to some land he

bought adjacent to the property. The appellate court found that the vendor of the

adjacent property owed a gratuitous passage via the route previously exercised to

defendant. In Spotsville, the plaintiff-vendor sold a portion of her property to the

defendant-vendee and subsequently enclosed herself without a right of way. Based

on La.Civ.Code art. 693, which states that “If an estate becomes enclosed as a

result of a voluntary act or omission of its owner, the neighbors are not bound to

furnish a passage to him or his successors[,]” the appellate court found that the

plaintiff did not have a right of access because she was the cause of her own

dilemma.

We are unable to determine from the limited evidence before us what the

legal rights of any subsequent purchasers would encompass based on this map. It

is impossible for us to determine whether a predial servitude of a gratuitous right

of passage pursuant to La.Civ.Code art. 694 would exist and to what road it would

apply. There are too many variables to consider, for which we have no definitive

evidence, since the manner of the division of the property and its relationship to the

surrounding roads are unclear. Accordingly, we cannot address the issue of the

rights of subsequent buyers of Platt’s property.

7 CONCLUSION

The declaratory judgment finding that Platt’s servitude is personal is

affirmed. We amend the judgment to clarify that Platt has the right to use the road

and to allow others to use the road in order to sell her property. We are unable to

define the rights of any subsequent buyers of the property due to a lack of evidence.

The costs of this appeal are assessed equally between the parties.