Judgment rendered April 8, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,387-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA ***** ENTRADA COMPANY, L.L.C. Plaintiff-Appellee
versus
TONY CASSELS, CONNIE L. Defendants-Appellants CASSELS, MARC SHANNON CONERLY AND RICKIE CONERLY
*****
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 20161635
Honorable Daniel Joseph Ellender, Judge
HALLACK LAW FIRM, APLC Counsel for Appellants, By: William H. Hallack, Jr. Tony Cassels, Connie L. Dennis W. Hallack Cassels, Jimmy O. Holsomback, Jr., Trustee, Carl B. Shockley, Sherry J. Shockley, Louis Joe Giovingo, Nell M. Giovingo, Ronald William Rogers, Steven Earl Hatten, Rebecca Lynn Prysock Rogers, Cynthia Browder Hatten, Donald Wesley Sebren, Stacey Bice Sebren, Monika May, Billy T. Coats Boone Trust, and Reagan Alan Boone DOUGLAS L. STOKES, JR. Counsel for Appellee, Entrada Company, L.L.C.
MIXON, CARROLL & FRAZIER, APLC Counsel for Appellees, By: James Eugene Mixon Scott Andrew James Linus Carroll Soignier and Taryn Brian E. Frazier Phythian Soignier
KRISTEN BROWN PLEASANT Counsel for Appellees, Gail Rae Reed and Daniel Evan Kirsch
Before MOORE, McCALLUM, and THOMPSON, JJ McCALLUM, J.
Owners of tracts of immovable property located in Ouachita Parish
appeal a judgment decreeing that a neighboring landowner, Entrada
Company, LLC, has the right to use a public road as described in a 1974 act
entitled “Servitude of Way for Public Road” to reach the southwest corner of
its 15-acre tract.
We reverse the judgment, grant the alternative relief sought by
Entrada, and remand.
FACTS
The property at issue is located in Eros, Louisiana, or more
specifically, in Section 13, Township 17 North, Range 1 East, Ouachita
Parish. On December 5, 1974, this property became burdened by a recorded
“Servitude of Way for Public Road.” This Act declared that the grantors
dedicated to the public, for the establishment and maintenance of a public
highway, a servitude and right of way over a 60-foot wide strip which began
at Leckie Road, ran north for 1100 feet, then continued in a northeasterly
direction for 84 feet, then ran north for 568 feet, before turning east and
running for 1590 feet, more or less, until it reached the west line of Jerry
Donahoe’s property. Although all of the individuals named in the Act
granted the servitude, the Act reflected that $1,000 was paid by four grantors
to the others as consideration for the servitude. The Act further declared and
acknowledged that the Ouachita Parish Police Jury (“Police Jury”) “may
establish and maintain a public highway” on the 60-foot wide strip without
further authorization of the grantors. Although the Police Jury never
established or maintained a public highway on the servitude, a road that followed the contours of the servitude would eventually become known as
Squirrel Ridge Road.
Entrada first acquired an undivided interest in a 15-acre tract in the
Northeast ¼ of Section 13 in 2010. Entrada acquired full ownership of that
tract in 2016. Jerry Donahoe, one of the grantors of the servitude, is an
ancestor-in-title of this 15-acre tract. Donahoe acquired his interest by cash
deed on April 10, 1974. Donahoe and his wife sold the north half of their
interest on October 10, 1975. Squirrel Ridge Road measures approximately
3321 feet in length from where it begins at Leckie Road to where it reaches
the corner of Entrada’s 15-acre tract.
Entrada’s 15-acre tract is bordered on the west by property owned by
Tony Cassels and Connie Cassels. Mr. and Mrs. Cassels acquired their
property (“Cassels tract”) in 1998. The servitude more or less bisects part of
the Cassels tract. In 1999, Mr. and Mrs. Cassels sold approximately six
acres of their property to Marc Conerly and Rickie Conerly. The servitude
runs along the southern border of the Conerly property (“Conerly tract”),
which is to the north and to the west of the Cassels tract. Glenn Calk, one of
the grantors of the servitude, is an ancestor-in-title of the property owned by
the Casselses and the Conerlys. Calk acquired his interest by cash deed on
April 10, 1974. His interest was transferred by judgment of possession in
his succession on September 12, 1979.
Ronald Rogers and Rebecca Rogers own a tract of land (“Rogers
tract”) that is to the west of the Conerly tract. The servitude runs along the
southern border of the Rogers tract after the servitude makes a 90-degree
turn to the east.
2 Entrada’s 15-acre tract is bordered to the south by property (“Hatten
tract”) owned by Steven Hatten and Cynthia Hatten. The servitude runs
along the western border of the Hatten tract from Leckie Road. Entrada’s
15-acre tract is bordered to the north by a 40-acre tract which is also owned
by Entrada.
Procedural history
On May 24, 2016, Entrada filed a petition for a right of passage from
its 15-acre tract over the Cassels tract and the Conerly tract. A default
judgment was entered and confirmed. By judgment rendered on July 25,
2016, the trial court ruled that the Entrada estate was enclosed, had no access
to a public road, and was entitled to a servitude of passage across the Cassels
and Conerly tracts that was to be 60 feet in width.
On October 10, 2016, Mr. and Mrs. Cassels filed the exception of
nonjoinder, which the trial court sustained. Entrada was ordered to amend
its petition to name as defendants the owners of the tracts of immovable
property under Squirrel Ridge Road from its origin at Leckie Road to where
it ended.
Entrada filed an amended petition on December 29, 2016, naming the
additional defendants. For the first time, Entrada sought a declaratory
judgment that it was entitled to use Squirrel Ridge Road to travel from its
property to Leckie Road. In the alternative, Entrada sought a right of
passage over the defendants’ property to Leckie Road, with the right of
passage covering property identical to that described in the 1974 Act.
On January 4, 2017, a joint motion to amend the July 25, 2016,
judgment was filed so that the judgment would affect only the Conerly tract.
The amended judgment provided that Entrada’s tract was enclosed as 3 defined by law, had no access to a public road, and was entitled to a
servitude of passage across the Conerly tract.
Entrada filed a second amended petition on April 10, 2017, after
exceptions of vagueness and no cause of action were sustained. Entrada
sought a declaratory judgment that the burdened property in the servitude
was a public road and that Entrada was entitled to use it to reach Leckie
Road from its 15-acre tract. Entrada alleged in the alternative that it was
entitled to a right of passage over the Cassels tract to Squirrel Ridge Road
because its 15-acre tract was an enclosed estate, Squirrel Ridge Road was
the nearest public road, and the shortest and most convenient route from the
Entrada tract to Squirrel Ridge Road was over the Cassels tract.
Trial on the merits
Trial in this matter was held on September 6, 2018. Ronald Rogers
and Rebecca Rogers testified that they began building a home in 1998 on
their property, which has Squirrel Ridge Road as part of its southern
boundary for approximately 660 feet. The Rogers family moved into their
home the following year, and listed their address as being on Squirrel Ridge
Road.
Mrs. Rogers testified that it was just woods beyond their property
when they moved there, and the only other person around was a Carmela
Ethington, who apparently lived west of the servitude and had sold ten acres
to Mr. and Mrs. Rogers. Mrs. Rogers described what she called a “trail” or
“path” that came north from Leckie Road and was utilized by Ms. Ethington.
It was a cleared area, but she would not have called it an actual road. She
referred to it as just two tire tracks. The path ended near the corner of where
the Rogers tract started, so they continued it to the back of their property. 4 Mrs. Rogers testified that no other people were driving past their home when
they first moved there.
Mr. Rogers did not think what became known as Squirrel Ridge Road
was a road when they first moved there, but thought it was more akin to a
“deer trail.” Mr. Rogers remarked that woods and maybe a pig trail or a deer
trail were to the east of their property. Mr. Rogers testified that he and his
neighbors occasionally placed sand, gravel, or concrete in holes in the road
until eventually they decided to use crushed asphalt as a road surface.
Mr. Rogers recalled that Squirrel Ridge Road basically ended at his
property. He extended it somewhat farther east because he had a shop that
was almost on the corner of his property line. However, he did not extend it
beyond that point.
Tony Cassels and Connie Cassels purchased their property in 1998
and moved into their home in July of 2000. Their address is on Squirrel
Ridge Road. Mrs. Cassels remembered there were four homes on Squirrel
Ridge Road at the time. Mr. Cassels recalled that their tract was completely
undeveloped when they acquired it. According to Mrs. Cassels, they could
not get back there because it was densely wooded, so they had to stop at a
nearby fenced area.
Mrs. Cassels testified that while the north-south portion of Squirrel
Ridge Road existed when they acquired their property, it was a dirt road that
she likened to a “turn row” in a cotton field. She also testified that only a
short length of Squirrel Ridge Road ran east-west at the time. According to
Mrs. Cassels, that length of road was in poor shape. Mrs. Cassels recalled
that there was a mobile home in a fenced area where the road made its 90-
degree turn and that was as far as the road went. Mrs. Cassels testified that 5 they had to create a stretch of Squirrel Ridge Road to the location where
they eventually built a north-south driveway from the road to their home.
Tony Cassels testified that anyone who traveled east past the point
where Squirrel Ridge Road ended at his driveway would have encountered
woods. In order to access a hunting spot to the east, he cut a four-wheeler
trail along the servitude, but that trail did not reach Entrada’s 15-acre tract.
Mr. Cassels also stated that a person had to cross two creeks in order to
reach the 15-acre tract from where Squirrel Ridge Road ended at his
driveway, and he stopped his trail at the second creek.
Ronald Rogers testified that after increased development commenced
in the area, the landowners met and decided to approach the Police Jury
about maintaining Squirrel Ridge Road. However, the landowners balked at
the $150,000 it would cost to improve the road to meet parish specifications.
Tony Cassels testified that the landowners twice tried to convince the Police
Jury to maintain the road, but the Police Jury refused to do so unless the
landowners paid for the upgrade.
The Hattens, who own the tract south of Entrada’s 15-acre tract, do
not use Squirrel Ridge Road to access their property. Instead, they use
Leckie Road, which serves as their address.
James Steele is one of two managing members of Entrada. He
testified that the recorded servitude was discovered after the original petition
was filed in this matter. Steele testified that he was never told not to use
Squirrel Ridge Road to reach Entrada’s 15-acre tract. Steele described
Squirrel Ridge Road as no longer being maintained once it passed the
driveway on the Cassels tract. Steele estimated there was a distance of 660
feet between Entrada’s property and where the road was no longer 6 maintained. He thought that part of the road, which had a couple of cement
culverts, looked like an old existing road.
Some of the defendants who testified gave various reasons for not
wanting Entrada to use Squirrel Ridge Road. Tony Cassels desired for his
property to remain undisturbed. He thought it would change the character of
his property since it was at the end of the road. Connie Cassels was worried
about additional traffic and crime, as well as the cost of road upkeep. She
enjoyed the privacy of their location. Ronald Rogers also cited privacy as a
concern. Rebecca Rogers worried about more wear and tear on the road.
Steele testified that Entrada intended to do nothing with the property
at the moment, but it just wanted to be able to access its property. Steele
planned on having the timber on Entrada’s property thinned in the future,
which would require access of a suitable width for any trucks engaged in
that process.
After the case was submitted for decision, the defendants filed the
exception of prescription. They argued that the evidence presented at trial
did not show use of the servitude by anyone between the date that the Act
was executed and the 1990s, thereby barring Entrada’s claims to the extent
they arose from the servitude. Steele testified at the prescription hearing.
Satellite images of the area and ground-level photographs taken of the
Cassels tract near Entrada’s 15-acre tract were introduced at the hearing.
The exception was denied.
In a judgment rendered on May 21, 2019, the trial court ruled that
Entrada had the right to use the public road described in the 1974 “Servitude
of Way for Public Road” and sometimes known as Squirrel Ridge Road.
Most of the defendants, including Mr. and Mrs. Cassels, have appealed. 7 DISCUSSION
Prescription of nonuse
The appellants argue the trial court erred in not finding that the
servitude was extinguished by the accrual of nonuse prescription. They
assert that prescription could not be renounced or waived, and that the
servitude was not revived by an implied dedication.
A predial servitude is extinguished by nonuse for ten years. La. C.C.
art. 753. Prescription of nonuse begins to run for affirmative servitudes
from the date of their last use. La. C.C. art. 754.
When the prescription of nonuse is pleaded, the owner of the
dominant estate has the burden of proving that he or some other person has
made use of the servitude as appertaining to his estate during the period of
time required for the accrual of the prescription. La. C.C. art. 764.
Steele contended that he could see visible evidence of a road to the
west boundary of Entrada’s 15-acre tract, and that he could walk down this
road onto the Entrada tract. Steele took a photo of a broken concrete culvert
across a creek at a location along the servitude that was approximately 200
feet east of the driveway on the Cassels tract. What appears to be a path can
be seen well into the distance while looking east from that culvert. Steele
did not know the age of the culvert. The earliest satellite images introduced
into evidence at the hearing were taken in February of 1998. These images
show a significant clearing which follows the contours of the servitude from
Leckie Road to a short distance east of where the servitude makes a 90-
degree turn.
Steele observed that eight homes and four barns or shops have access
from Squirrel Ridge Road. Tony Cassels testified that there are some homes 8 and barns that can only be reached from Squirrel Ridge Road. The road is
also used for deliveries to the property owners. While Mr. and Mrs. Cassels
use a post office box, some of their neighbors have mailboxes on Squirrel
Ridge Road, and Mr. Cassels has seen mail being delivered to them. Mrs.
Cassels explained that they have a post office box because the person
delivering their mail had refused to drive that far along the road because of
the condition of the road.
Rebecca Rogers testified that while they did not own the cleared area
from Leckie Road, they had access to it when they first moved there.
Eventually, others started building along the sides of the cleared area that the
Rogers family had used as a road. Mr. and Mrs. Cassels used this road to
view the property before they purchased it.
Steele asserted that he never saw a sign prohibiting anyone from using
the road or alerting anyone that it was a private road. According to Mrs.
Cassels, the homeowners had purchased two street signs from the Police
Jury that said Squirrel Ridge Road, a name that was chosen by the property
owners. Those signs were installed where the road begins at Leckie Road,
but were not replaced after the signs were stolen. Squirrel Ridge Road was
never maintained by the Police Jury, and it was not on the road inventory list
for Ouachita Parish.
Squirrel Ridge Road was also used by visitors to homes along the road
as well as by a school bus for children who lived there. Complete strangers
also traveled along the road. Mr. Cassels testified that he would stop
strangers that he found on the road because they had no business being there.
He occasionally found strangers on the road as far as his driveway.
9 Mr. Cassels testified that nobody used Squirrel Ridge Road to access
the 15-acre tract between 2000 and 2010. He knew Pam Simpson, the owner
of the 15-acre tract at the time, because they worked at the same school, and
he never saw her going back and forth to the tract. He recalled that Simpson
gave him permission to hunt on the tract.
Despite the presence of the culverts, Mr. Cassels disagreed there was
any evidence of an old road within the 60-foot wide strip from the location
of his driveway to the western boundary of Entrada’s tract. Mr. Cassels
conceded there were other four-wheeler trails around there in addition to the
one that he had cut, and that some type of vehicle had used the portion of the
servitude that ran from his driveway to the western border.
We note that when Mr. Cassels was in the process of buying his land,
he asked his attorney if his family would have access to the land, and his
attorney confirmed that they would after looking into it. Mr. Cassels
explained that he inquired about access because the area was heavily
wooded and there was no real road. Mrs. Cassels testified that she did not
know about the servitude when they purchased the property, but they
assumed based on what their attorney told them that there was access to the
property by using Squirrel Ridge Road. Mrs. Rogers denied awareness of
the 1974 servitude when they moved there, and her husband stated that he
was not familiar with it.
When evidence is introduced at the hearing on the peremptory
exception of prescription, the district court’s findings of fact are reviewed
under the manifest error-clearly wrong standard of review. Cooksey v.
Heard, McElroy & Vestal, L.L.P., 44,761 (La App. 2 Cir. 9/23/09), 21 So.
3d 1011. 10 To reverse a fact finder’s determination, the appellate court must find
from the record that a reasonable factual basis does not exist for the finding
of the trial court and that the record establishes that the finding is clearly
wrong. Stobart v. State through Dept. of Transp. & Dev., 617 So. 2d 880
(La. 1993).
Steele admitted at the prescription hearing that he had no evidence
other than the photographs to show use of the servitude between 1974 and
1984. Entrada’s attorney also conceded at the hearing that there was no
evidence of use between those years. Furthermore, when asked if there was
approximately 24 years of nonuse, Entrada’s attorney replied, “Yes. I would
say that’s probably right.”
We are mindful that appeals are taken from the judgment, not the
reasons for judgment. See Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61
So. 3d 507. Nevertheless, in this instance, the trial court’s reasons for
judgment are instructive in reviewing this judgment.
The trial court believed that public use of the servitude for the past 20
years had waived the claim of prescription as it related to the years prior to
1984. That belief was in error. A predial servitude extinguished by nonuse
for ten years cannot be revived except by following the formalities of
creating it anew. See footnote 3 in Church v. Bell, 00-0286 (La. App. 1 Cir.
3/28/01), 790 So. 2d 82, writ denied, 01-1214 (La. 6/15/01), 793 So. 2d
1247. There was no formal renewal of the 1974 servitude, and there is no
evidence in the record of use of the servitude before 1984. Thus, the trial
court was manifestly erroneous in concluding that the 1974 servitude was
not extinguished because of ten years of nonuse.
11 The trial court also concluded that implied dedication was applicable
to the facts of the case. Entrada argues that even if it is assumed that the
1974 servitude prescribed by nonuse, it was revived by implied dedication of
Squirrel Ridge Road to public use from at least its beginning at Leckie Road
to as far as the location of the driveway built by Mr. and Mrs. Cassels. The
appellants counter that any intent to dedicate Squirrel Ridge Road to public
use was not unequivocal, but was clearly conditioned on the Police Jury’s
acceptance and maintenance of the road.
Implied dedication is one of the four modes of dedication of property
to public use recognized by Louisiana courts. Cenac v. Public Access Water
Rights Ass’n, 02-2660 (La. 6/27/03), 851 So. 2d 1006. Implied dedication
does not disturb the ownership of the roadbed of a dedicated road, but grants
a servitude of passage to the public. U.S. Silica Co. v. Wooldridge, 34,763
(La. App. 2 Cir. 10/31/01), 799 So. 2d 693. Louisiana courts have
demanded two indispensable elements for an implied dedication because
implied dedication lacks the formalities and safeguards of the other modes of
dedication. Cenac, supra. An unequivocally manifested intent to dedicate
on the part of the owner and an equally clear intent to accept on the part of
the public are required. Id. At least one of these indispensable elements is
absent from this record.
With the 1974 servitude removed from consideration, it cannot be
stated that the actions of the defendants unequivocally manifested an intent
to dedicate Squirrel Ridge Road to public use. The property owners
apparently approached the Police Jury twice about taking over maintenance
of Squirrel Ridge Road, but those efforts proved to be fruitless because of
the considerable cost to be borne by the property owners in getting Squirrel 12 Ridge Road to a suitable condition. We cannot discern any benefit to the
property owners that would have been achieved by impliedly dedicating
Squirrel Ridge Road to public use.
Accordingly, we conclude that the trial court was manifestly
erroneous in finding that Entrada had the right to use Squirrel Ridge Road as
a public road. However, our inquiry does not end there as Entrada, in the
alternative, sought a right of passage over the defendants’ property to Leckie
Road along the property described in the 1974 servitude.
Right of passage
The right of passage for an enclosed estate is set forth in La. C.C. art.
689, which states:
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 appellants contend that for purposes of this analysis, Entrada’s
contiguous 15-acre and 40-acre tracts must be considered as one tract. We
agree with this contention. See Roberson v. Reese, 376 So. 2d 1287 (La.
App. 2 Cir. 1979). However, neither tract has access to a public road. Thus,
the 15-acre tract is enclosed and entitled to a right of passage.
The owner of an enclosed estate does not have discretion to choose
which estate should be burdened with a legal right of passage. Davis v.
Culpepper, 34,736 (La. App. 2 Cir. 7/11/01), 794 So. 2d 68, writ denied, 01-
2573 (La. 12/14/01), 804 So. 2d 646. The right of passage “generally shall
be taken along the shortest route from the enclosed estate to the public road
or utility at the location least injurious to the intervening lands.” La. C.C. art.
692. 13 Leckie Road is the nearest public road to the 15-acre tract. Don
Antley, a professional land surveyor, testified that Leckie Road is 2263 feet
from the 15-acre tract. W.B. Nelson Road is the public road nearest to the
40-acre tract, with a distance measuring 1619 feet from the 40-acre tract.
W.B. Nelson Road is 2940 feet from the 15-acre tract. While Leckie Road is
closer to the 15-acre tract, the two tracts are considered as one tract for
purposes of this analysis. Thus, W.B. Nelson Road becomes the public road
closest to Entrada’s property.
Myron Toft, a real estate title examiner, testified that situated directly
north of Entrada’s 40-acre tract is a tract owned by the Cayden Lane
Homeowners’ Association. Toft believed that Steele was president of that
association. There is a road named Cayden Lane which originated at W.B.
Nelson Road and reaches two tracts to the north of Entrada’s 40-acre tract.
However, Cayden Lane is a private road.
As recognized by the legislature by its use of the word “generally” in
La. C.C. art. 692, there are situations that allow a servitude of passage to be
imposed on an estate that does not provide the shortest route. Davis v.
Culpepper, supra.
The first exception recognized by the jurisprudence is when the estate
which provides the shortest route is covered by water or is otherwise not
accessible year-round. The second derogation from the general rule is when
the costs associated with crossing the estate which is the shortest distance
from the public road are so exceptional that from a practical standpoint it is
economically unfeasible to build. The party arguing that the servitude
should instead be imposed on another estate bears the burden of establishing
that one of the two exceptions is applicable. Phillips Energy Partners, LLC 14 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. Entrada concedes
that no evidence regarding the second exception was presented at trial.
Steele testified that Entrada decided not to seek a route to the north
because the area is very low and is home to a swamp and Wilder’s Creek.
Steele explained that the creek will get out of its banks and go across the
swamp. Steele also explained that while the 40-acre tract was not
underwater at the time of trial, flooding from the creek will cover quite a bit
of land. Tony Cassels described Wilder’s Creek as maybe 15 feet wide. He
agreed that the creek floods in places, but did not believe that it would be a
condition that prevented someone from going across it.
Steele testified that since 2010, he has reached the 15-acre tract either
by Squirrel Ridge Road or on a four-wheeler trail from his property farther
east if the trail is not underwater or in a swamp-like state. He would also use
that trail to reach the 40-acre tract. This shows the effect that flooding can
have on access to the tracts.
Based upon our de novo review of this record, we conclude that the
first exception to taking the shortest route is applicable as the northern route
is not accessible year-round. Thus, the right of passage will be to Leckie
Road. The least injurious route to Leckie Road is along the path of the
servitude described in the 1974 Act. Accordingly, we remand this matter to
the trial court to determine the cost to Entrada for its right of passage.
CONCLUSION
We reverse the judgment finding that Entrada had the right to use the
public road as described in the “Servitude of Way for Public Record” that
was executed in 1974 and recorded in the conveyance records of Ouachita 15 Parish. However, we find that Entrada is entitled to its alternative demand
for a right of passage along the path of the 1974 servitude. We remand this
matter to the trial court for a determination of the cost to Entrada for this
right of passage. Each party is to bear its own costs of this appeal.