Keeley v. Schexnailder

708 So. 2d 838, 1998 WL 146241
CourtLouisiana Court of Appeal
DecidedApril 1, 1998
Docket97-1609
StatusPublished
Cited by8 cases

This text of 708 So. 2d 838 (Keeley v. Schexnailder) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keeley v. Schexnailder, 708 So. 2d 838, 1998 WL 146241 (La. Ct. App. 1998).

Opinion

708 So.2d 838 (1998)

Gerard A. KEELEY, et al., Plaintiffs—Appellants,
v.
Mark R. SCHEXNAILDER, et ux., Defendants—Appellees.

No. 97-1609.

Court of Appeal of Louisiana, Third Circuit.

April 1, 1998.

*839 Glen A. James, Sulphur, for Gerard A. Keeley, et al.

Nicholas Pizzolatto, Jr., Lake Charles, for Mark R. Schexnailder, et ux.

Before YELVERTON, SAUNDERS and PICKETT, JJ.

YELVERTON, Judge.

Plaintiffs, Gerard A. Keeley, Dennis Arnold, William E. Keeley, Sr., and Lora Hoke Keeley, brought an action for injunctive relief to prevent defendants, Mark and Patricia Dee Schexnailder, from interfering with the exercise of their rights under a predial servitude. The trial court granted part but not all of the relief prayed for and issued a mandatory injunction. The trial court reduced and redefined the servitude. Plaintiffs appeal. We reverse the reduction and redefinition of the servitude, amend to grant all of the relief prayed for, and issue a new mandatory injunction.

FACTS

In 1962 Rupert E. West, the owner of all of Lot Ten of JANE SALLIER WEST HEIRS PARTITION, established the servitude by executing and recording a juridical *840 act in Conveyance Book 822 at page 421 of the records of Calcasieu Parish. The title creating the servitude reads in pertinent part as follows:

WHEREAS, appearer has sold and intends to sell various parcels or lots of property in Lot Ten (10) of the Partition of a portion of the property of JANE SALLIER WEST HEIRS....
AND WHEREAS, the only water frontage is at the East end of said Lot Ten (10), and appearer desires that each and every owner of any parcel or lot of property in said Lot Ten (10) have access to said water frontage.
NOW, THEREFORE, appearer does hereby formally subject the hereinafter described property to a servitude of way or passage and dedicates the same in favor of all present and future owners of lots or parcels of property in Lot Ten (10) ..., the part or portion thereof to be burdened with said servitude being described as follows, to-wit:
Commencing at a point eight hundred twenty-four (824) feet East of the Southwest (SW) Corner and on the South line of Lot Ten (10) ... thence East along the South line of said Lot Ten (10) a distance of fifty-three (53) feet, more or less, to the Southeast (SE) Corner of said Lot Ten (10), thence Northeast along the East line of said Lot Ten (10) a distance of two hundred twenty-eight and six-tenths (228.6) feet, more or less, to the Northeast (NE) Corner of said Lot Ten (10), thence West on the North line of said Lot Ten (10) a distance of fifty-three (53) feet, more or less, to a point which is eight hundred twenty-four (824) feet east of the Northwest (NW) Corner of said Lot Ten (10), thence in a Southwesterly direction two hundred twenty-eight and six-tenths (228.6) feet, more or less, to the point of commencement.

A plat of a survey of the 228. 6' × 53' servitude was recorded in Plat Book 13 at page 50 of the records of Calcasieu Parish.

A few days after that servitude was established, West granted a 40 foot right-of-way east and west across the center of Lot Ten to the Police Jury of Calcasieu Parish for a public road. This public road, named Leisure Lane, bisects the 228.6' × 53' servitude area and ends near the edge of a lake, known as Rupert Lake, which is the water frontage referred to in the designation of the servitude. Fronting Leisure Lane on both the north and the south are the lots, the dominant estates, in the subdivision of Lot Ten.

The parties in this case own some of those lots. The servient estate is situated with its long side perpendicular to Leisure Lane on the east end of Lot Ten. There is water frontage on the north, east, and south sides of the servient estate. The lot next to the servient estate on the west, and on the north side of Leisure Lane, is where the Schexnailders live.

The water on which the servitude abuts is navigable, and it is connected to Moss Lake. It is directly affected by the tides of the Gulf of Mexico. Also, there are seasonal changes in the water level. Parts of the 228.6' × 53' area are always under water. The tides, and seasonal water level changes, render uncertain at any given time how much upland area there is. There was evidence that sometimes a combination of rain, winds, and tides cause virtual inundation of the south half of the servitude area. The evidence also showed that the north half (which the trial judge released from the servitude) is three feet higher and that much of the north half is always out of water.

The Schexnailders became property owners in Lot Ten in 1993. Their vendors were the son and widow of Rupert West, who established the servitude. Earl West testified that he and his mother sold the Schexnailders four parcels of property. The sale instrument was not introduced in evidence. We will describe the property sold as it was described in the testimony of Earl West. According to the questions asked of him, and his testimony, the first of the four parcels was the property where the Schexnailders now live; the second was the servitude area, 228.6' × 53'; the third was the road, Leisure Lane; and the fourth was a certain area of water containing about five acres, which Mr. West described as "all the water area in front of Sally Jean's-or Dr. Toniette's camp." *841 It was after the Schexnailders bought this property in 1993 that the owners of the dominant estates began to experience difficulties utilizing their servitude.

What precipitated this lawsuit after the Schexnailders purchased the property in 1993, was their placement of bricks, boat trailers, a cement walkway, a flower garden, some sand, and several recreational items on the servient estate. They forbade the use of the northern part. At one time they blocked Leisure Lane at the entrance of the servient estate with a boat and automobiles and posted it with a "Keep Out" sign. The latter items were removed prior to trial.

Several owners of the dominant estates testified at the trial. According to their testimony, their enjoyment of the servitude before the Schexnailders moved in was without interference. They testified that they used the servitude freely in years past. They used the water frontage to fish, barbecue, walk dogs, stand on the waters' edge, walk their children and grandchildren to the water, and launch boats.

Gerard Keeley, a plaintiff, testified that he had launched his boats on the south water frontage and on the east water frontage of the servitude area. When he tried to use the water frontage on the north side, adjacent to the Schexnailder home, Mr. Schexnailder told him he could not do it because that was private property.

The petition for a mandatory injunction sought the removal of any and all obstructions from the servitude area. It also sought judgment enjoining the Schexnailders from otherwise interfering with the plaintiffs' rights of passage and access to the water frontage. The plaintiffs contended that all of the servitude area was needed for the exercise of their rights. The defendants contended that the rights of the dominant estate owners should be restricted to launching boats on a restricted part of the servitude area, and they asked the trial court to specify that restricted part.

The trial court decided for the defendants.

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Cite This Page — Counsel Stack

Bluebook (online)
708 So. 2d 838, 1998 WL 146241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keeley-v-schexnailder-lactapp-1998.