Judgment rendered September 22, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,129-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
DAVID RAY ROBERTSON AND Plaintiffs-Appellees RHODA HUTCHINSON ROBERTSON
versus
RICKIE REESE ARLEDGE AND Defendants-Appellants KIMBERLY KIRKLAND ARLEDGE
Appealed from the Sixth Judicial District Court for the Parish of East Carroll, Louisiana Trial Court No. 22915
Honorable Michael E. Lancaster, Judge
RAYMOND LEE CANNON, L.L.C. Counsel for Appellants By: Raymond Lee Cannon
COTTON, BOLTON, HOYCHICK & Counsel for Appellees, DOUGHTY, L.L.P. David Ray Robertson and By: M. Kyle Moore Rhoda Hutchinson Robertson
LISKOW & LEWIS, APLC Counsel for Defendant/ By: Matthew David Simone Appellee, Trunkline Gas Company, LLC
Before PITMAN, GARRETT, and THOMPSON, JJ. GARRETT, J.
The defendants, Rickie Reese Arledge and Kimberly Kirkland
Arledge, appeal from portions of a trial court judgment that granted a
permanent servitude of passage to the plaintiffs, David Ray Robertson and
Rhoda Hutchinson Robertson, across a small section of the Arledges’
property, while denying the Arledges’ reconventional demand for a
servitude of their own through the front gate of property owned by the
Robertsons. The Robertsons answer the appeal, asserting that the trial court
erred in ordering them to pay a total of $54,000 to the Arledges. We reverse
and vacate the $50,000 portion of the monetary award, amend the total
award to $4,000, and, in all other respects, affirm the trial court judgment.
FACTS
The Robertsons and the Arledges own neighboring tracts of land in
East Carroll Parish which were originally part of the Deborah Plantation.
The Robertsons bought the 47-acre tract at issue here from their son in 2016.
It is bordered on the west by Bayou Macon and on the east and south sides
by property owned by the Arledges; it does not have access to a public road.
The Robertsons, as sole members of Black Gold Production Services, LLC
(“Black Gold”), own another adjoining property known as “Deborah
Farms,” which was also part of the Deborah Plantation.1 The north side of
Deborah Farms is bordered by the south side of the Arledge property while
its south side is bordered by Louisiana Highway 134. The Arledges
acquired their property, which consists of about 440 acres, in 1993; it is
1 Mr. Robertson’s testimony indicates that he and his wife own all of the original Deborah Plantation property except for the 440 acres owned by the Arledges.
At various points in the proceedings, the names “Deborah Plantation” and “Deborah Farms” appeared to be used interchangeably. frequently referred to in the appellate record as “the 440.” It is surrounded
on the east, west, and south sides by property owned by the Robertsons,
while the Crow farm is on its north border. The Arledges and their family
members have established deer stands, duck ponds, and hunting sites on
their property, as well as farm crops and a crawfish farm.
The 47-acre tract purchased by the Robertsons was accepted into the
Wetlands Reserve Program (“WRP”); however, its final acceptance hinged
on the property having written legal access. The Arledges declined to sell
the Robertsons a strip of land required to access the property.
On June 18, 2018, the Robertsons filed suit against the Arledges,
seeking a servitude of passage to their enclosed estate, pursuant to La. C.C.
art. 689, et seq.2 They sought access to the other property they owned on the
south side of the Arledge property as this property had access to a public
road. They alleged that the shortest route to their property from Deborah
Farms that was least injurious to the Arledge property would be a 30-foot
right-of-way along the westernmost border of the Arledge property. The
Robertsons asserted that a portion of the requested servitude, which would
affect a total of 0.78 acres, would utilize an existing right-of-way road
already on the Arledge property. This road was established by Trunkline
Gas Company (“Trunkline”).
The Trunkline Road runs along the boundary between the Arledge
property and Deborah Farms. Then, at the east end of that boundary, it
proceeds south, through Deborah Farms, to Highway 134. The record also
suggests that, at the west end of that boundary, the road curves south a short
2 In their petition, the Robertsons specifically pled that they were the sole members of Black Gold and, as such, own Deborah Farms.
2 distance onto the Deborah Farms property. In August 2018, the Arledges
filed a peremptory exception of nonjoinder of parties needed for just
adjudication due to the Robertsons’ failure to include Trunkline as a party.
Consequently, the Robertsons added Trunkline as a defendant in their first
supplemental and amended petition for servitude in September 2018.
Attached to this petition was an exhibit showing the proposed eastbound
route on the Trunkline Road known in the proceedings as “Option 1.”
Trunkline filed an answer in November 2018. Later that same month,
the Arledges filed an answer, reconventional demand, and peremptory
exceptions of no right of action and no cause of action. Therein they
asserted that the route sought by the Robertsons was not the shortest access
to a public road and that it would disturb and cause permanent damage to
their established deer stands, hunting sites, and crawfish farm. They
suggested another route which involved Parish Road 6611 and the 80-foot
parish right-of-way less than a mile east of the Robertsons’ property
(referred to as “Option 3” in the proceedings.) In the event that the court
granted the Robertsons a servitude at their requested location, the Arledges
requested that they be granted a permanent servitude in their own favor
along the Trunkline Road, over neighboring Deborah Plantation and through
its main gate, to Highway 134.
In December 2018, the Robertsons responded to the reconventional
demand with an answer and a peremptory exception of partial no cause of
action. They pointed out that the Arledges failed to allege in their
reconventional demand that their property was enclosed with no access to a
public road when they requested a servitude. After a hearing on March 14,
2019, the trial court denied the Arledges’ exceptions of no cause and no
3 right of action, while granting the Robertsons’ exception of partial no cause
of action. The Arledges were given 10 days to file a reconventional demand
to state a cause of action.
The Arledges filed a first amended reconventional demand on
March 22, 2019, in which they asserted that their property was enclosed by
the Robertsons’ property. They claimed that the nearest public road, Parish
Road 6611, and the 80-foot right-of-way connecting to it, have a history of
flooding from October to March, and the flooding makes otherwise passable
ways impassable. In the alternative, they argued that, if the Robertsons got
their requested servitude, then they requested one over Deborah Plantation to
Highway 134. They reiterated their assertion that, if the Robertsons were
entitled to a servitude, it should be Parish Road 6611 through the parish
right-of-way and further stated that it should be used only for purposes
specified by the WRP but not for hunting.
In their April 2019 answer to the first amended reconventional
demand, the Robertsons asserted that the Arledges already had a legal right
of passage to a public road (i.e., Parish Road 6611) and thus their property
was not an enclosed estate. In February 2020, the Arledges filed a motion
for summary judgment contending that they had an enclosed estate. The
motion was denied in June 2020.
On July 15, 2020, Trunkline was dismissed from the suit pursuant to a
consent motion to dismiss. A bench trial was held on July 20 and 21, 2020.
The Robertsons presented the testimony of Jeff Messinger, a licensed land
surveyor, and Elliott Colvin, a farmer and dirt contractor for Northeast Dirt
Works, LLC. Messinger prepared a plat showing the three right-of-way
options under consideration. They were: Option 1, which contained 4.451
4 acres and allowed travel in an easterly direction from the southern border of
the Robertsons’ 47 acres along the Trunkline Road; Option 2, a much shorter
route containing 0.78 acres on the west side of the Arledges’ 440 acres,
which connected to the Deborah Farms property owned by the Robertsons
and thus gave access to Highway 134; and Option 3, which contained 3.496
acres, and went 5,077 feet east across the north boundary of the 440 to an
80-foot parish right-of-way, and then connected with Parish Road 6611.
Colvin provided estimates for the right-of-way road constructions3 that
would be required for Option 2 ($9,041)4 and Option 3 ($63,687.75). Lea
Bass Creech testified as an expert real estate appraiser on behalf of the
Robertsons. In her market analysis appraisal, she came across similar
property priced at $3,000 to $4,278 per acre. She ultimately concluded that
$4,000 per acre would be the value of the right-of-way tracts. Mr.
Robertson testified about the problems he had had with the Arledges,
especially over their past use of the Trunkline Road through the front gate of
Deborah Farms. He stated that Option 2 would be the least injurious route
for the Arledge property, as well as the shortest and least expensive.
Several members of the Arledge family testified. They included the
defendants, Rickie (“Mr. Arledge”) and Kimberly; their sons, Rickie Jr. and
Hardy; and Hardy’s 15-year-old son, Owen. They discussed their farming of
3 Both Option 1 and Option 2 required construction of a 30-foot right-of-way 723.39 feet long from the southern border of the Robertsons’ 47-acre tract south to the Trunkline Road. Option 1 then went to the east along the Trunkline Road, while Option 2 went southwest before curving southeast.
Option 3 required the construction of a 30-foot right-of-way for 5,077 feet along the Arledges’ northern border, connecting to an already existing 80-foot right-of-way which, in turn, would link up to Parish Road 6611. 4 This amount also included the dirt work for Option 1, which primarily involved an already existing road.
5 the 440 property, Rickie Jr.’s crawfish farm, and their extensive hunting on
the property. Kendall Crow, the president of the East Carroll Parish Police
Jury, testified about the condition of Parish Road 6611 and the 80-foot right-
of-way and the parish’s upkeep of them. A proffer was made of the
testimony of the Arledges’ expert, Don Lockard, a general certified real
estate appraiser. He explained in the proffer that he was not able to prepare
his appraisals for a variety of reasons, including the COVID-19 lockdown
and not seeing the legal descriptions of the three proposed options until the
first day of trial. The trial court excluded his testimony because the letter
received from him during the trial contained no useful information and any
amounts that might have been offered at trial would not comply with the
scheduling order. The Arledges also made proffers of the testimony of two
East Carroll deputies about incidents that occurred on the properties, which
the trial court ruled were irrelevant to the issues of whether the Robertson
property was enclosed or what indemnity might be owed.
On rebuttal to the reconventional demand, Mr. Robertson testified
again. He reiterated that the shortest route was Option 2. Testimony about
the usage and conditions of the existing roads that provided the Arledges
access to their property was given by Dusty Myers, who was leasing
Deborah Farms, and Jimmy Myers, who was retired and lived on Deborah
Farms.
Following submission of posttrial briefs, the trial court issued lengthy
written reasons for judgment on November 9, 2020. It ruled in favor of the
Robertsons on the main demand and granted them a permanent servitude
utilizing Option 2. It noted that the parties agreed that the Robertsons’ 47-
acre tract was an enclosed estate under La. C.C. art. 689. Of the three
6 options, the trial court concluded that Option 2 was the shortest and least
injurious route under La. C.C. art. 692. It would affect the least amount of
the Arledge property and would interfere with the use of only two of the
Arledges’ many existing deer stands. The court found that it was
sufficiently distanced from the Arledges’ commercial crawfish pond and
duck ponds so as not to adversely affect those operations or any of their
other farming activities. As to the compensation due to the Arledges for the
right of passage and to indemnify them for the damage occasioned by the
passageway, the trial court awarded a total of $54,000. The trial court
reasoned that $4,000 was appropriate for the value of the land upon which
the servitude was granted, based upon Creech’s analysis, which was the only
evidence in the record about monetary values. The trial court then reasoned
that $50,000 was “a fair indemnity value” in view of the Arledges’ love of
deer hunting and the loss of use of two deer stands in perpetuity.
As to the reconventional demand, the trial court found that the
servitude requested by the Arledges was originally predicated on the
Robertsons being granted a servitude under Option 1. The trial court
detailed the history of the Arledges’ prior use of the Trunkline Road on the
Deborah Plantation property to access Highway 134, including a prior
agreement between the parties which was cancelled by the Robertsons due to
animosities that included an Arledge relative allegedly shooting at a
Robertson employee. The trial court found that La. C.C. art. 694, which
pertains to gratuitous servitudes, was inapplicable to the instant case. As to
La. C.C. art. 689, the Arledges were required to prove that their property
was enclosed. When they purchased it, their deed gave them an 80-foot
right-of-way from their northeast corner to Parish Road 6611. Thus, they
7 had access to a public road. However, they now claimed in this litigation
that Parish Road 6611 was not passable year-round. In light of conflicting
testimony about whether Parish Road 6611 was impassable and the fact that
the Arledges put forth Option 3, which relied upon the use of that road, as a
solution to the Robertsons’ access issue, the trial court concluded that the
Arledge property was not an enclosed estate.5 Accordingly, the
reconventional demand was dismissed.
Judgment was signed on November 9, 2020, granting the permanent
servitude to the Robertsons and ordering them to pay the Arledges $54,000,
while dismissing the Arledges’ reconventional demand with prejudice. All
court costs, including expert witness fees, were assessed against the
Arledges. On November 20, 2020, the Arledges filed a motion for new trial,
which was denied on November 24, 2020.
The Arledges appeal. They do not contest the trial court’s selection of
Option 2 as the location for the servitude of passage granted to the
Robertsons. The Arledges’ assignments of error challenge the trial court’s
rulings that: (1) the Arledges made an adverse judicial admission; (2) the
Arledge property was not an enclosed estate; (3) La. C.C. art. 694 was
inapplicable; (4) excluded the Arledges’ expert witness from testifying; (5)
denied the Arledges’ motion for summary judgment; and (6) the amount of
$54,000 was adequate compensation for the Arledges. The Arledges claim
the award should be increased to $120,000. They also contend that the trial
5 In its opinion, the trial court stated that, when given the opportunity to withdraw Option 3 as a solution to the Robertsons’ enclosed estate status, Arledge refused. The court considered that a judicial admission that Parish Road 6611 is a public road providing suitable passageway, as contemplated by La. C.C. art. 689.
8 court should have dismissed the plaintiffs’ petition for failure to join
necessary parties.
The Robertsons answered the appeal, asserting that the award of
$54,000 was not supported by the evidence.6
JOINDER OF PARTIES
The Arledges contend that the trial court erred in not dismissing the
Robertsons’ claim for a servitude of passage for failure to join the owners
over whose property the servitude would traverse. Specifically, they
contend that Black Gold, the entity that owns Deborah Farms, and Dusty
Myers, who leases Deborah Farms from Black Gold, should have been made
parties to the instant suit.7 As a result, they assert the adjudication below is
an absolute nullity.
The joinder of parties needed for just adjudication is addressed in La.
C.C.P. art. 641, which states:
A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.
6 Another issue raised by the Robertsons in their answer to the appeal, which pertained to an expert witness fee, was not briefed and, consequently, is deemed abandoned. 7 The Arledges did not file a peremptory exception of nonjoinder of parties below on this issue. They did file one urging that Trunkline should have been made a party, which apparently prompted the Robertsons to add Trunkline as a defendant in their first supplemental and amended petition for servitude.
9 The failure to join a party to an action may be pleaded in the
peremptory exception, or may be noticed by the trial or appellate court on its
own motion. See La. C.C.P. arts. 645 and 927(B).
A person should be deemed to be needed for just adjudication only
when absolutely necessary to protect substantial rights. Courts are to
determine whether a party should be joined and whether the action should
proceed if a party cannot be joined by a factual analysis of all the interests
involved. Tensas Par. Police Jury v. Perritt, 50,123 (La. App. 2 Cir.
9/30/15), 181 So. 3d 143. An adjudication made without making a person
described in La. C.C.P. art. 641 a party to the litigation is an absolute nullity.
Tensas Par. Police Jury v. Perritt, supra.
The Arledges claim in brief that they raised nonjoinder of Black Gold
at a hearing on March 14, 2019, during their argument on their exception of
no right of action. Review of the transcript reveals that they referred to
Black Gold as “one – well, almost required party.” We further note that the
Arledges named only the Robertsons as defendants-in-reconvention,
apparently laboring under the belief that their presence alone was sufficient
for the trial court to award the Arledges a servitude over “neighboring
Deborah Plantation.”
As previously noted, the Robertsons specifically pled in their original
petition for servitude that they were the sole members of Black Gold and
consequently owned Deborah Farms. During the trial, it was not disputed
that the Robertsons were the sole members of Black Gold. Dusty Myers
testified that he had a lease from Black Gold and that he farmed all but 100
acres of the farmable acres. There is no evidence that indicates that any of
the acres he farmed would be affected by the servitudes at issue.
10 In view of the above, we do not find that the trial court erred in failing
to notice on its own motion that Black Gold and Dusty Myers were
necessary parties. Their absence does not frustrate the trial court’s ability to
accord complete relief among those already parties. Furthermore, the
absence of Black Gold and Dusty Myers as parties in this litigation does not,
as a practical matter, impede their ability to protect their interests. La.
C.C.P. art. 641. See Greenway v. Wailes, 41,412 (La. App. 2 Cir. 8/1/06),
936 So. 2d 296.
We find no merit to this assignment of error.
JUDICIAL ADMISSION
The Arledges contend that the trial court erred in finding that they
made a judicial admission that Parish Road 6611 provides a suitable
passageway contemplated by La. C.C. art. 689 and, thus, they were not the
owners of an enclosed estate.
A judicial confession is a declaration made by a party in a judicial
proceeding. It constitutes full proof against the party who made it, is
indivisible, and may be revoked only on the ground of error of law. La. C.C.
art. 1853; Cichirillo v. Avondale Indus. Inc., 04-2894 (La. 11/29/05), 917 So.
2d 424; Blackjack Farms, L.L.C. v. Richmond, 53,986 (La. App. 2 Cir.
6/30/21), — So. 3d —, 2021 WL 2676935. A declaration made by a party’s
attorney or mandatary has the same effect as one made by the party himself.
La. C.C. art. 1853, Revision Comment (b); C.T. Traina Inc. v. Sunshine
Plaza Inc., 03-1003 (La. 12/3/03), 861 So. 2d 156; Burch v. Burch, 51,780
(La. App. 2 Cir. 1/10/18), 245 So. 3d 1138.
11 In its written opinion, the trial court cogently stated:
Ironically, Arledge offered Robertson a route through his property to Parish Road 6611 as his solution to provide Arledge access to a public road. When given an opportunity by the Court to withdraw Option 3 as a solution to Robertson’s enclosed estate status, Arledge refused; and he maintained that Option 3 was a viable solution. The Court considers Arledge’s stance in this regard as a judicial admission that Parish Road 6611 is a public road which provides suitable passageway contemplated by Article 689. If Option 3 would be a viable solution for Robertson’s enclosed status, then logically, Arledge’s access to that same Parish Road 6611 could not possibly render his 440 acres to be declared an enclosed estate.
In brief, the Arledges argue that they never admitted that Parish Road
6611 and the 80-foot right-of-way were suitable for vehicular traffic in all
seasons. However, review of the record reveals that, in their reconventional
demand, the Arledges proposed a path incorporating Parish Road 6611 and
the 80-foot right-of-way (Option 3) as the shortest route to a public road for
the Robertsons in lieu of Option 1. Mr. Arledge admitted in his testimony
that Option 3 was the one he requested in his reconventional demand. At the
conclusion of the evidence, when the trial court asked counsel for both sides
if there was really an issue about Option 2 being the shortest and least
injurious route for Mr. Robertson, counsel for the Arledges stated that he
still wanted to brief that issue.
We agree with the trial court’s analysis recited above. Throughout the
record, the Arledges repeatedly put forth Parish Road 6611 and the 80-foot
right-of-way as an option which was suitable for the Robertsons.8 In light of
8 In their brief, the Arledges asserted that they offered this passage because the Robertsons requested the servitude of passage to put their 47 acres in the WRP, a wetland conservation program. However, Mr. Robertson testified at trial that he was in court to get access to his 47-acre tract. He further stated that, because he lacked written access, his contract with the WRP no longer existed.
12 this, we find the Arledges’ argument that these roads were now unacceptable
for them is disingenuous. This assignment of error is without merit.
ENCLOSED ESTATE
The Arledges assert that the 440 is an enclosed estate under Louisiana
law because it lacks year-round access to a public road and the trial court
erred in denying their reconventional demand.
La. C.C. art. 689 provides, in pertinent part:
The owner of an estate that has no access to a public road or utility may claim a right of passage over neighboring property to the nearest public road or utility. He is bound to compensate his neighbor for the right of passage acquired and to indemnify his neighbor for the damage he may occasion.
The right of passage for the benefit of an enclosed estate shall be
suitable for the kind of traffic or utility that is reasonably necessary for the
use of that estate. La. C.C. art. 690. The owner of the enclosed estate may
construct on the right-of-way the type of road, utility, or railroad reasonably
necessary for the exercise of the servitude. La. C.C. art. 691. An estate will
be considered enclosed where its access is insufficient, as well as when there
is no access. Corley v. C & J Frye Properties, LLC, 49,969 (La. App. 2 Cir.
8/19/15), 176 So. 3d 439, writ denied, 15-1887 (La. 11/20/15), 180 So. 3d
318.
In relevant part, La. C.C. art. 692 states:
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.
In addition to the Arledges’ judicial admission pertaining to Parish
Road 6611 and the 80-foot right-of-way discussed supra, we agree with the
trial court’s assessment that the trial testimony was conflicting as to whether
13 Parish Road 6611 was passable year-round. One of the photos relied upon
by the Arledges showed flooding from an atypical episode of record rainfall
that was so severe it closed local schools, a fact brought out only on cross-
examination. While the Arledges’ self-serving testimony painted a dire
picture of the access and the alleged failure of the police jury to make
repairs, other witnesses presented a more balanced view. Mr. Thompson,
the police jury president, discussed work done on the road and the right-of-
way when requested but candidly admitted that they had only one road
grader and a large parish. He also admitted that it could be difficult to work
on the road in winter. Dusty Myers stated that Parish Road 6611 was the
only road he used for farming, and that he used it at least two or three times
per week and every day during farming season. Most times during farming
season, farm equipment could be taken in on that road, but other times not.
He testified he had never seen it completely flooded out. While he could get
back there during winter, he had no need to do so. He said that there were
times he was unable to plant because the fields were saturated, not due to the
condition of the roads. Jimmy Myers testified that he regularly used Parish
Road 6611 and that he could get in and out of it every month of the year,
although he would need four-wheel drive in January. According to his
testimony, farmers use Parish Road 6611 for planting and getting their crops
out. Mr. Robertson testified as to his own use of Parish Road 6611 before he
retired from farming. He stated that he mostly used it to get his crops out
but that everyone else used it year-round.
In Blackjack Farms, L.L.C. v. Richmond, supra, the owner of an
enclosed estate sought a right of passage that provided all-weather, year-
round access. The trial court balanced the interests of all parties and chose a
14 route that was not the one desired by Blackjack. It noted that, as the
property was in a flood plain and subject to seasonal flooding, Blackjack
could not expect all-weather access to its property. In affirming, this court
observed that, even though Blackjack requested an all-weather, year-round
road, it did not have “all-weather property.” A similar situation is present
here, where the record indicates that the property was located in a wetlands
area.
Based on the unique facts presented in the instant case, we find that
the trial court was correct in denying the Arledges’ reconventional demand
on the basis that they failed to prove that their property had insufficient or no
access to a public road and that, consequently, their property was not an
“enclosed estate” as contemplated by La. C.C. art. 689. This assignment of
error lacks merit.
APPLICABILITY OF LA. C.C. ART. 694
The Arledges contend that the trial court erred in finding that La. C.C.
art. 694 was inapplicable in the instant case because the law recognizes a
right of passage, whether forced or gratuitous, where the owner of the
dominant estate has been unreasonably denied access to an existing,
historical service road. They claim that the portion of the Trunkline Road
leading to the front gate of Deborah Farms constituted such a road.9
La. C.C. art. 694 provides:
When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned
9 According to the testimony presented at trial, the Arledges had used this road in the past. At one point, the parties entered into a written contract allowing the Arledges to go through the front gate of Deborah Farms; either side could cancel the contract. Numerous conflicts between the parties ensued. After an incident when a member of the Arledge family allegedly fired a shot over the head of a Robertson employee, the Robertsons cancelled the contract. Such incidents arguably demonstrate that the Robertsons’ refusal to allow the Arledges to use the road was not “unreasonable.”
15 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 . . ., and even if the act of alienation or partition does not mention a servitude of passage.
An essential element of asserting the right to have a gratuitous
servitude of passage fixed by the trial court under Article 694 is proof that
the dominant estate is enclosed. Phipps v. Schupp, 2014-0672 (La. App. 4
Cir. 3/18/15), 163 So. 3d 212, writ denied, 15-0778 (La. 6/1/15), 171 So. 3d
265. Because we agree with the trial court’s ruling that the Arledges failed
to prove that their property falls under the definition of an enclosed estate,
we also concur with the trial court’s conclusion that La. C.C. art. 694 is
inapplicable to the instant case.
EXCLUSION OF EXPERT WITNESS
The Arledges contend that the trial court abused its discretion by
excluding the testimony of their expert, Don Lockard, on the right of way
value and associated damages. The Robertsons maintain that the trial court
properly excluded his testimony due to the Arledges’ failure to timely
provide his expert report.
The initial scheduling order, which set trial for July 20 and 21, 2020,
was signed on February 20, 2020. A joint motion for extension of time to
exchange “will call” witness lists was filed on March 13, 2020, and the
parties were ordered to exchange lists on or before April 15, 2020. Due to
the COVID-19 pandemic, on April 16, 2020, a joint motion for extension of
deadlines under the current scheduling order was filed; an order was signed
on April 23, 2020, which required submission of witness lists by May 6,
2020, and completion of discovery and inspection of exhibits by June 5,
2020. Due to the COVID-19 public health emergency and a death in the
16 Arledge family, on July 6, 2020, the Arledges requested that the trial court
extend the delays for exchanging lists of trial witnesses and exhibits until
July 9, 2020. In a phone conference, the Robertsons agreed to an extension
until the week before trial. However, no report from Lockard was
forthcoming.
At the end of the first day of trial, a document was given to the
Robertsons and the judge giving reasons for Lockard’s failure to provide a
report.10 During the second day of the trial, the trial court stated that the
document, alternatively referred to as a letter or report, contained no
appraisal and essentially said Lockard was not able to provide a report for
damages. In light of that, the trial court concluded that it did not see how
Lockard’s testimony would help it decide the issues before it. The trial court
noted that the case had been pending since 2018. As to the Arledges’ claim
that the legal descriptions of the three options were not supplied until the day
trial commenced, the Robertsons asserted that the pleadings included
sufficient descriptions of the paths and that the Arledges had the survey map
since early June. The trial court allowed the Arledges to make a proffer of
Lockard’s testimony.
The abuse of discretion standard applies to the trial court’s ultimate
conclusion as to whether to exclude expert witness testimony. Smart v.
Kansas City S. R.R., 36,404 (La. App. 2 Cir. 11/6/02), 830 So. 2d 581.
Absent an abuse of discretion, the trier of fact’s decision in implementing
and enforcing a pretrial scheduling order will be upheld. Allen v. Bridges,
41,169 (La. App. 2 Cir. 11/1/06), 942 So. 2d 686.
10 Although the trial court stated that it would allow this document to be made part of the record, it was not included in the appellate record.
17 In light of the many extensions granted in this case, we find the trial
court did not abuse its wide discretion in excluding Lockard’s testimony
when no timely report was furnished to the Robertsons. Furthermore, we
have reviewed the testimony that was proffered. No helpful information was
elicited from the witness, as he had not performed any appraisals or analysis.
AMOUNT OF AWARD
Both sides appeal from the monetary award of $54,000. The Arledges
insist that the trial court’s award of $54,000 for the loss of two deer stands
was inadequate and should be raised to $120,000. On the other hand, the
Robertsons contend that the trial court erred in making an excessive award
without any evidentiary or factual basis.
Pursuant to La. C.C. art. 689, the owner of an enclosed estate awarded
a right of passage over neighboring property to the nearest public road is
“bound to compensate his neighbor for the right of passage acquired and to
indemnify his neighbor for the damage he may occasion.”11 Under an article
689 servitude of passage, the enclosed dominant estate must pay the owner
of the servient estate for the servitude and pay for any damages the enclosed
estate may cause. See Sally Brown Richardson, An Exploration into
11 The language “to compensate his neighbor for the right of passage acquired” was added by Acts 2012, No. 739, § 1. We note that the primary cases relied upon by the Robertsons – Dickerson v. Coon, 46,423 (La. App. 2 Cir. 8/10/11), 71 So. 3d 1135, and Greenway v. Wailes, supra, – were rendered prior to the amendment. The Dickerson court specifically noted that, at that time, “La. C.C. art. 689 refers to indemnification for damages that may be occasioned; it does not provide for compensation to the owner of the servient estate for the right of passage.” Similarly, the Greenway court stated, “Article 689 speaks of damage. It does not discuss compensation based upon the appraised value as though the servient estate used for the roadway has been expropriated. We find that the trial court’s focus on the appraised values of these lake front properties and the enhancement of the value of the Greenway tract attempted to provide Wailes a measure of compensation analogous to expropriation, which is not the test of Article 689. Instead, Article 689 only allows that the property ‘may’ receive ‘damage’ requiring indemnification by the owner of the dominant estate.” Due to the 2012 amendment, cases predating the addition of the compensation element are of limited use now.
18 Louisiana Enclosed Estate Doctrine, 94 Tul. L. Rev. 519, 539 (2020), for an
in-depth discussion of the developments in the law.
By filing suit for right of passage, a party effectively alleges
willingness to indemnify the owner of the servient estate for the damages
resulting from use of the servitude. There is no need for the owner of the
servient estate to demand payment of indemnification that was already
admitted. Phillips Energy Partners, LLC v. Milton Crow Ltd. P’ship, 49,791
(La. App. 2 Cir. 5/20/15), 166 So. 3d 428, writ denied, 15-1396 (La.
10/2/15), 186 So. 3d 1148. The burden is on the owner of the servient estate
to prove the amount of damage resulting from the servitude of passage.
Blackjack Farms, L.L.C. v. Richmond, supra; Phillips Energy Partners, LLC
v. Milton Crow Ltd. P’ship, supra.
The indemnity is for the “damage” caused to the servient estate. That
measure is different from compensation due to a landowner for the value of
the servitude of passage. The amount of the indemnity is fixed in light of
the damage occasioned to the servient estate. Phillips Energy Partners, LLC
Absent some extraordinary circumstances, the value of a servitude
taken is not the same as the full market value of the land. Hutchison v.
Jackson, 399 So. 2d 1238 (La. App. 3 Cir. 1981). Since the owner of the
property over which a servitude is granted retains certain rights over the
servitude property, it would be error for the trial court to order the person in
whose favor the servitude was granted to pay the full market value of the
property. Hutchison v. Jackson, supra.
We review a trial court’s decision on damages for abuse of discretion
and note that the trial court has vast discretion in determining whether to
19 award damages. Altemus v. Boudreaux, 2015-725 (La. App. 3 Cir.
12/23/15), 184 So. 3d 142, writ denied, 16-0157 (La. 3/24/16), 190 So. 3d
1197. A trial judge has wide discretion in determining the amount of
damages occasioned by the party on whose estate the right of passage is
fixed. May v. Miller, 2006-418 (La. App. 3 Cir. 10/11/06), 941 So. 2d 661,
writ denied, 07-0009 (La. 3/9/07), 949 So. 2d 443.
Our review of the trial court’s total award of $54,000 demonstrates
that the trial court gave compensation of $4,000 for the Option 2 right of
passage acquired and then indemnity of $50,000 for the Arledges’ loss in
perpetuity of their two deer stands. As to the Arledges’ claim on appeal that
the award is inadequate and should be raised to $120,000, we note that they
have cited no authority supporting such an increase. Accordingly, that claim
is denied.
The Robertsons seek reduction of the $4,000 portion of the award and
reversal of the $50,000 portion. The $4,000 award was based upon the
evidence presented by Creech, the Robertsons’ own expert witness, who
gave a range of reasonable price per acre of $3,000 to $4,278, with an
average of $4,000. The trial court did not reduce the value of the servitude,
as had been done in Hutchinson v. Jackson, supra. However, given the
range of prices submitted by Creech, we find no abuse of the trial court’s
wide discretion in making this portion of the award.
As to the $50,000 award for indemnity, we observe that the burden
was on the Arledges, as owners of the servient estate, to prove the amount of
damage resulting from the servitude of passage. For reasons discussed
supra, their expert witness was not allowed to testify. Had he been allowed
to testify, he had no helpful information to offer the trial court. Further, the
20 evidence adduced at trial shows that the Arledges did not lease any of their
property to any third parties for hunting and thus there was no loss of
income. No evidence was adduced as to the cost to relocate or replace any
deer stands. At trial, Mr. Arledge testified he had no monetary figures to
provide to the court.12 The record before us is completely devoid of any
evidence justifying the trial court’s $50,000 award pertaining to damages for
the loss of use of two deer stands. Therefore, we must reverse and vacate
that portion of the award. See Blackjack Farms, L.L.C. v. Richmond, supra;
Dalton v. Graham, 53,452 (La. App. 2 Cir. 4/22/20), 295 So. 3d 437, writ
denied, 20-00740 (La. 10/6/20), 302 So. 3d 535. We again note that the trial
court’s ruling that Option 2 was least injurious was carefully crafted to not
interfere in any way with the Arledges’ farming activities, crawfish ponds,
duck ponds and blinds. The evidence shows that there are numerous other
deer stands located on the property. Any inconvenience or interference with
the use of the property is minimal.
Accordingly, the total award of $54,000 is reduced and amended to
the sum of $4,000.
MOTION FOR SUMMARY JUDGMENT
The Arledges contend that the trial court abused its discretion in
denying their motion for summary judgment.
12 At trial, Mr. Arledge testified that he did not know and could not “put an exact dollar” amount on what they spent on hunting which was their “enjoyment during the winter.” When asked again if he had a price in mind about what the right-of-way should cost, he said he had “no idea.”
In the section of their posttrial brief addressing indemnity and damages if Option 2 was chosen, the Arledges suggested that the “value of the deer hunt which is represented in a hunting club membership is at least $5,000 annually.” However, no such figure was ever discussed, much less established at trial.
21 An appeal may not be taken from a trial court’s denial of a motion for
summary judgment. La. C.C.P. art. 968. Since a trial court’s action in
overruling a motion for judgment on the pleadings, or for summary
judgment, is merely an interlocutory judgment causing no irreparable injury,
it cannot be appealed, except under the appeal from the final judgment
rendered in the case. La. C.C.P. art. 968, Comment D. On appeal of a final
judgment, review may be had of the denial of a motion for summary
judgment by the trial judge, which is based solely upon the resolution of a
legal question. Pittman v. Metz, 47,320 (La. App. 2 Cir. 9/20/12), 109 So.
3d 1; Magill v. Owen Const. Co., 434 So. 2d 520 (La. App. 2 Cir. 1983).
Following arguments, the trial court stated that it had to deny the
Arledges’ motion for summary judgment “because it’s obvious that there are
disputed facts that are before the court.” Additionally, the trial court was
influenced by the Robertsons’ argument that, since the Arledges’ request for
a servitude was an alternative request which hinged on the Robertsons being
granted a right-of-way at the location they requested, the Arledges’ motion
was premature.
Since it was dismissed by the trial court due to the presence of
disputed facts, not a legal issue, review of the Arledges’ motion for
summary judgment is not properly before us on appeal. Accordingly, this
assignment of error is dismissed.
CONCLUSION
Based on the foregoing, we reverse in part, amend in part, and affirm
in part the trial court judgment. The trial court’s award of $50,000 for
indemnification is reversed and vacated. Accordingly, the portion of the
judgment awarding $54,000 for the right of passage acquired and to
22 indemnify for the damage occasioned by the passageway is amended to
$4,000. In all other respects, the trial court judgment is affirmed.
Costs of this appeal are assessed against Rickie Reese Arledge and
Kimberly Kirkland Arledge.
REVERSED IN PART, AMENDED IN PART, AFFIRMED IN
PART.