STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-629
GARY ROLAND BAILEY, ET AL.
VERSUS
NEIL DOUGLAS McNEELY, ET UX.
************ APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT, PARISH OF SABINE, NO. 55,991 HONORABLE CHARLES B. ADAMS, DISTRICT JUDGE
************
JAMES T. GENOVESE JUDGE
Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese, Judges.
AFFIRMED.
Kenneth N. Simmons Post Office Drawer 490 Many, Louisiana 71449 COUNSEL FOR PLAINTIFFS/APPELLEES: Gary Roland Bailey, et al.
George E. Harp 610 Marshall Street, Suite 619 Shreveport, Louisiana 71101 COUNSEL FOR DEFENDANTS/APPELLANTS: Neil Douglas McNeely, et ux. GENOVESE, Judge.
Defendants appeal various judgments of the trial court finding that Plaintiffs’
immovable property was enclosed, fixing the location of the servitude of passage over
Defendants’ property, and denying Defendants’ claim for indemnification. Plaintiffs
have answered the appeal objecting to the location of the servitude of passage fixed
by the trial court and seeking attorney fees for frivolous appeal. For the following
reasons, we affirm.
FACTS
Plaintiffs, Gary Roland Bailey, Wanda Sue Bailey Stahl, Donna Bailey Chance,
Michael Wayne Bailey and Scott Dwayne Bailey (“Baileys”), and Defendants, Neil
and Martha McNeely (“McNeelys”), are the owners of contiguous property located
on Toledo Bend Lake in Sabine Parish, Louisiana. Plaintiffs’ ancestor in title,
Continental Can Company, Inc., owned approximately forty acres of land which,
except for the approximate two acres presently owned by Plaintiffs, was expropriated
in 1966 by the Sabine Parish River Authority for the creation of Toledo Bend Lake.
Prior to the expropriation and flooding of the property, there was access through the
forty acre tract to Red Hill Road, which was a public road running north and south
bisecting said tract. The expropriation of property and creation of the lake left the
two acres, presently owned by Plaintiffs, without access to Red Hill Road. This
property was accessible only by virtue of a navigable waterway, Toledo Bend Lake,
which was created by the damming of the Sabine River, a navigable river, running
through it.
Defendants are the owners of the contiguous property to the east of Plaintiffs’
property, which, when considered together, form a peninsula. Defendants have
access to a public road, Louisiana Highway 191, east of these properties, by virtue of
1 a servitude through property owned by International Paper Company and Toledo
Bend Resort.
Plaintiffs filed a Petition for Servitude of Passage and Way against Defendants.
Plaintiffs subsequently filed a motion for partial summary judgment on the sole issue
of whether or not Plaintiffs’ property was an enclosed tract of land. The trial court
ruled that Plaintiffs’ property was enclosed and that Plaintiffs were entitled to a
servitude of passage across Defendants’ property.
Trial on the merits was then held on the remaining issues of the location of the
servitude of passage and Defendants’ claim for indemnification. The trial court fixed
the location of the servitude across Defendants’ property and denied Defendants’
claim for indemnification.
ISSUES
The following issues are presented by Defendants for our review:
1. Whether Plaintiffs’ property is enclaved;
2. Whether Defendants, or the Sabine River Authority, have a duty to provide Plaintiffs with a servitude of passage to the nearest public road;
3. Whether Plaintiffs met their burden under Civil Code Article 689 of proving that the location of the servitude of passage sought and granted was the shortest route from Plaintiffs’ property to the nearest public road;
4. Whether the servitude of passage was granted over a route other than the one to the nearest public road;
5. Whether Plaintiffs’ action should have been dismissed for failure to join as party defendants landowners over whose property the servitude of passage would traverse to access the nearest public road;
6. Whether the trial court erred in granting a servitude of passage under Civil Code Article 689 without granting some amount of indemnity to owners of the burdened estate; and
2 7. Whether the granting of a 30 foot (25 foot) wide servitude of passage was excessive for the projected use of the property as a camp by Plaintiffs.
Additionally, Plaintiffs raise the following issues in their answer to appeal:
1. Whether the trial court erred in the placement of the servitude of passage across the Defendants’ property; and
2. Whether the appeal by Defendants is frivolous thereby entitling Plaintiffs to attorney fees incurred in processing this appeal.
LAW AND ARGUMENT
Enclosure of Plaintiffs’ Property
Plaintiffs filed a motion for partial summary judgment on the issue of whether
or not their property was enclosed as a matter of law. The trial court found that the
subject property was enclosed under La.Civ.Code art. 689 and granted a partial
summary judgment in favor of Plaintiffs. We agree.
Appellate courts review summary judgments de novo using the same criteria
that govern the trial court’s consideration of whether summary judgment is
appropriate. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131; Goins v.
Wal-Mart Stores, Inc., 01-1136 (La. 11/28/01), 800 So.2d 783. The appellate court
must determine whether “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to material fact, and that mover is entitled to judgment as a matter of law.”
La.Code Civ.P. art. 966(B).
The right of the landowner whose estate is entirely enclosed by the lands of his
neighbor to acquire a passageway to the nearest highway is based upon La.Civ.Code
art. 689, which currently provides, in pertinent part, that “[t]he owner of an estate that
has no access to a public road may claim a right of passage over neighboring property
to the nearest public road.”
3 It is not disputed that Plaintiffs’ property has no direct access across land to a
public road. Defendants contend, however, that Plaintiffs’ property is not enclosed
by virtue of a conventional servitude of passage granted to Plaintiffs’ ancestor in title
which provided access to a water course. In so concluding, they rely on La.Civ.Code
art. 699, as it existed in 1966, as opposed to the codal provision currently found in
La.Civ.Code art. 689.
Louisiana Civil Code Article 699 historically provided for a right of passage
to the owner of an estate which was enclosed “and who [had] no way to a public road,
a railroad, a tramroad or a water course. . . .” Louisiana Civil Code Article 699 was
amended by 1970 La. Acts No. 672, § 1, which deleted the reference to water
courses.1 It is Defendants’ position that La.Civ.Code art. 699, as it existed in 1966,
determines whether or not Plaintiffs’ property is enclosed.
At the time of expropriation, Plaintiffs’ ancestor in title, Continental Can
Company, Inc., entered into a leaseback and servitude agreement with the Sabine
River Authority. By virtue of this agreement, Continental Can Company, Inc.
acquired a conventional servitude of passage between the expropriation taking line
and the edge of the water. Since, in 1966, article 699 did not consider an enclosed
estate one which had access to a waterway, Defendants conclude that the subject
property, although lacking access to a public road, is not enclosed. They, therefore,
assert that Plaintiffs are not entitled to the servitude of passage sought in the instant
litigation. We find this argument to be without merit.
Under the express provisions of La.Civ.Code art. 689, Plaintiffs’ property is
enclosed as a matter of law since it has no access to a public road. The enclosure of
the property gives rise to a servitude imposed by law granting Plaintiffs passage over
1 Additionally, in 1977, the terms “railroad” and “tramroad” were deleted and the article was renumbered as La.Civ.Code art. 689.
4 Defendants’ property to the nearest public road. We do not find it relevant that
Plaintiffs’ ancestor in title had access to a water course under the law as it existed
when the expropriation occurred.
Although not directly on point on this issue, we find this court’s opinion in
Bouser v. E. Earl Morgan, 520 So.2d 937 (La.App. 3 Cir. 1987) to be instructive. In
Bouser, the plaintiffs’ property became enclosed as a result of the Red River
Waterway District’s project in diverting the channel of the Red River. This court held
that the plaintiffs’ property was enclosed notwithstanding a servitude agreement in
favor of the Red River Waterway District granted by the plaintiffs or their ancestors
in title.
This court also notes subsequent jurisprudence involving landlocked estates
and the policy issue surrounding same. For example, the supreme court in LeBlanc
v. Thibodeaux, 615 So.2d 295, 299 (La.1993) recognized the “the strong public policy
of this state which is to discourage landlocking.” The court, quoting Rockholt v.
Keaty, 256 La. 629, 237 So.2d 663, 688 (1970) went on to note that “[a]s land
becomes less available, more necessary for public habitation, use, and support, it
would run contrary to public policy to encourage landlocking of such a valuable
asset and forever removing it from commerce and from public as well as private
benefit.” LeBlanc, 615 So.2d at 299 (alteration in original). This court, in Lafayette
Airport Commission v. Roy, 265 So.2d 459, 464-65 (La.App. 3 Cir. 1972) stated as
follows:
We quote approvingly from La.Law Rev. 315 where it is noted that:
‘Today, even a property with access to a watercourse could well be considered as ‘enclosed’ with need for access to a public road.’
This statement embodies the idea that the provisions of LSA-C.C. Art. 699 as amended in 1916 provided by implication that access to
5 Either [sic] a public road, railroad, tramroad or a watercourse was sufficient to deny landowner the right to passage on the estate of another was outdated. This may have been the reason for the 1970 amendment to LSA-C.C. Art. 699 which, among other things, deleted reference to water access or watercourse. The purpose of the 1916 amendment was ‘ . . . to allow construction of the proper facility needed in a particular case according to the circumstances and the exigencies of the case.’ Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1979). The implication of these amendments is not only that the needs of the particular estate must be taken into account in determining whether the ‘access’ available to it is indeed access sufficient to prevent the application of Art. 699, but also, that water access is insufficient per se to prevent application of Art. 699.
In this case, Plaintiffs’ land is presently enclosed with no access to a public
road. Louisiana Civil Code Article 689 grants to the owner of an estate that has no
access to a public road, the right to claim a right of passage over neighboring property
to the nearest public road. The fact that Plaintiffs’ ancestor in title had access to a
water course in 1966 does not change the result. Therefore, we affirm the granting
of the summary judgment by the trial court finding Plaintiffs’ property to be enclosed.
Duty Owed To Provide Plaintiffs With A Servitude Of Passage To The Nearest Public Road
Defendants assert that access to the public road should be provided to Plaintiffs
by the Sabine River Authority, since it was the entity that originally caused the
enclosure, and not a neighboring estate. We find this assertion to be without merit.
The legal duty to provide a servitude of passage arises from the application of
La.Civ.Code art. 689 cited above. That article places the duty on the neighboring
property to provide access to the nearest public road. The Sabine River Authority
does not own the neighboring property which would provide access to a public road
and has no legal authority to accomplish same. To the contrary, it owns (subject to
“leaseback”) only that property which abuts Toledo Bend Lake between the 175 foot
and the 172 foot contour line. Defendants’ assertion, if accepted, would yield the
absurd result of a servitude of passage being granted in favor of Plaintiffs running
6 along the perimeter of the lake to the nearest public road.
Defendants, as the owners of neighboring property, are required by
La.Civ.Code art. 689 to provide Plaintiffs with a servitude of passage across their
property to the nearest public road. The limited ownership of property by the Sabine
River Authority does not negate the legal servitude owed Plaintiffs by Defendants.
Location Of The Servitude Of Passage
Both parties appeal the placement of the servitude of passage by the trial court.
Defendants contend that Plaintiffs failed in their burden of proving that the servitude
of passage sought and granted was correctly placed so as to be the shortest route to
the nearest public road. In their answer to appeal, Plaintiffs also assert that the trial
court erred in placing the servitude across the Defendants’ property. For the
following reasons, we affirm the judgment of the trial court establishing the location
of the servitude of passage.
The dispute on the placement of the servitude centered on whether it should
cross Defendants’ property to provide access to Toledo Resort Road to the south, or
to Highway 191 to the east. The evidence at trial focused on three possibilities. One
proposed location was for the servitude to run from Highway 191, westerly across
property owned by International Paper and Toledo Bend Resort, along the present
driveway of Defendants, then across the southern portion of Defendants’ property
along the base of the hill, where an old road bed exists. However, Defendants argue
that this placement would destroy the most valuable portion of their property, the lake
view side. The second possibility was for the servitude to run from Highway 191,
westerly across property owned by International Paper and Toledo Bend Resort,
along the existing driveway of Defendants, and across Defendants’ property on the
top of the hill, directly behind Defendants’ house. The flaw of this placement is that
7 it would require construction of a road where none now exists. The third possibility
was for the servitude to traverse Defendants property to the south, then to cross
property owned by Toledo Bend Resort, and then to access Toledo Resort Road.
However, Plaintiffs argue that this proposal would require the construction of a road
where none now exists and would present drainage problems.
The law governing the placement of the servitude of passage is found in
La.Civ.Code art. 692, which provides that “[t]he 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.”
Interestingly, despite the placement of the servitude by the trial court in the
precise location of Defendants’ stated preference, Defendants argue on appeal that
this is not the shortest route to a public road. However, even if Defendants’ assertion
is correct, it is well established that a literal application of La.Civ.Code art. 692 is not
required. This issue was also discussed in Bouser, 520 So.2d at 940, wherein this
court stated:
We do not understand La.[Civ.Code] art. 692 to require the court in every instance, regardless of the circumstances present, to select the “shortest route” from the enclosed estate to the public road. As stated by our Supreme Court in Vermilion Parish School Board v. Broussard, 270 So.2d 523 (La.1972):
In Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970), we recognized the importance of this servitude for the benefit not only of the landowner by permitting full utility of his land but also of the public by keeping valuable property in commerce. More important to this case, we acknowledged in conformity with the Code articles that the nature of the passage was to be governed according to the circumstances and as the exigencies of the case might require, and that the right of passage was to be to the nearest public road.
Article 700 clearly provides that the owner of the
8 landlocked estate cannot choose from which of his neighbors’ estates he will exact a right of passage, but that it “shall be” where the distance is the shortest from the enclosed land to the public road. The mandatory language of that article is modified by the term “generally” as an acknowledgment of certain exceptions, . . . .
Plaintiffs complain on appeal that the location of the servitude is erroneous and
that it will require an entirely new road to be constructed at a considerable expense
to Plaintiffs. They contend that the appropriate location is that proposed by William
L. Hayman, an expert in civil engineering and land surveying, who testified that the
preferable passageway would be along the southern portion of Defendants’ property
where an old road bed exists. However, this route would, according to Defendants,
destroy the most valued portion of Defendants’ property, the lakeside view. After
considering the record in this matter, although the placement of the servitude by the
trial court may not be the shortest route to the nearest public road, or the most
economical passage, the trial court’s judgment takes into account all the particular
circumstances of the subject property, as well as existing servitudes, and provides the
most practical, feasible and aesthetic resolution possible. Accordingly, we find, as
the trial court did, that the most appropriate route of passage is “located down the
existing driveway right through on the top of the crest of the hill . . . .” For these
reasons, the judgment of the trial court is affirmed.
Additional Landowners As Party Defendants
Defendants contend that the trial court erred in failing to dismiss Plaintiffs’
action due to their failure to join all of the landowners over whose property the
servitude would have to cross in order to connect to the nearest public road. We find
this assertion to be without merit.
Plaintiffs already have a written servitude of passage from another property
owner, Sustainable Forest, for that portion of the access road that connects to
9 Defendants’ property. Given this servitude that already existed, it would have been
pointless for Plaintiffs to have named Sustainable Forest as a party to the instant
litigation. Since the servitude of passage granted by the trial court need not burden
the property of landowners who were not a party to the lawsuit, we find that the trial
court was correct in not dismissing Plaintiffs’ action for their failure to name
additional party defendants.
Claim For Indemnity
Defendants assert that the trial court erred in not awarding them indemnity
pursuant to La.Civ.Code art. 689. We disagree.
Although the code does provide a claim for indemnity to the owners of the
burdened estate, Defendants failed in their burden of proving the amount of damage
resulting from the servitude of passage.
The only evidence introduced on the issue of indemnification was the
testimony of Mr. George Thibodeaux, an expert real estate appraiser, who testified
that the access provided to Plaintiffs’ property by the servitude of passage would
increase the value of the property by $18,000.00. Mr. Thibodeaux did not provide
testimony regarding the damage to Defendants’ property that would be occasioned
as a result of the servitude of passage. The trial court, in discussing Defendants’
contention, correctly reasoned that “the proof that because the [Plaintiffs’] property
is increased in value is no grounds for indemnity.” Moreover, having reviewed the
record, we agree that “there has been no other evidence of diminished value” to
Defendants’ property. For these reasons, we conclude that the trial court was correct
in denying Defendants’ claim for indemnification.
Width Of The Servitude Of Passage
Defendants assert that the twenty-five foot width of the servitude of passage
10 granted by the trial court is excessive. We disagree.
Louisiana Civil Code article 690 provides that “[t]he right of passage for the
benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably
necessary for the use of that estate.”
The only evidence introduced at trial on this issue was the testimony of the
expert, William L. Hayman. It was Mr. Hayman’s opinion that thirty feet is the
minimum width required in order to have the roadway and necessary drainage.
Considering this expert testimony, we find that the servitude of passage with a
twenty-five feet width is “suitable for the kind of traffic that is reasonably necessary
for the use of [Plaintiffs’] estate.”
Damages For Frivolous Appeal
In their answer to appeal, Plaintiffs also seek attorney fees for the filing of a
frivolous appeal.
Pursuant to La.Code Civ.P. art. 2164 this “court may award damages for
frivolous appeal. . . . ” However, frivolous appeal damages are allowed only when
it is obvious that the appellant took the appeal solely for the purpose of delay or that
counsel was not sincere in the view of the law he advocates. Broussard v. Union Pac.
Res. Co., 00-1079 (La.App. 3 Cir. 1/31/01), 778 So.2d 1199, writ denied, 01-0589
(La. 4/27/01), 791 So.2d 118.
On this issue, we do not find that Defendants took the present appeal for the
sole purpose of delay, nor do we find that defense counsel was insincere in the view
of the law advocated. There were legitimate legal issues raised by Defendants in their
appeal. This assignment of error lacks merit.
CONCLUSION
This court finds that the trial court correctly determined that Plaintiffs’ property
11 is enclosed and that Defendants are legally obligated to provide Plaintiffs with a
servitude of passage across their property. We further find that Plaintiffs need not
have named any additional landowners as party defendants, since the judgment of the
court does not encumber their property. We conclude that the location and width of
the servitude of passage granted by the trial court is appropriate under the law and
facts of this case. With respect to Defendants’ claim for indemnity, this court finds
that Defendants failed in their burden of proving damages allegedly sustained.
Finally, Plaintiffs’ claim for damages arising from a frivolous appealed are denied.
Costs for this appeal are assessed against Defendants/Appellants.