May v. Miller

941 So. 2d 661, 6 La.App. 3 Cir. 418, 2006 La. App. LEXIS 2254, 2006 WL 2873262
CourtLouisiana Court of Appeal
DecidedOctober 11, 2006
DocketNo. CA 2006-418
StatusPublished
Cited by11 cases

This text of 941 So. 2d 661 (May v. Miller) 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
May v. Miller, 941 So. 2d 661, 6 La.App. 3 Cir. 418, 2006 La. App. LEXIS 2254, 2006 WL 2873262 (La. Ct. App. 2006).

Opinion

SAUNDERS, Juáge.

|! This litigation arises from a property owner petitioning the court for a right of passage to its eneloseá estate. Motions for summary juágments were granteá removing several áefenáant lanáowners from the suit baseá on a fináing that their laná woulá not be subject to the eventual choice of route the court woulá make.

After a two áay trial aná post trial mem-oranáa were fileá on the issues, the trial court ruleá in favor of the plaintiffs by granting a twenty foot right of passage along a route it founá least injurious to the servient estate. The trial court also awaráeá taking áamages of twenty-five thousaná áollars aná severance áamages [664]*664of twenty-five thousand dollars to the ser-vient estate landowner.

Plaintiffs appealed the judgment of the trial court. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On January 25, 2000, Kevin M. May and Patricia K. May purchased a 65.57 acre tract of land (“May property”) from Amoco Production Company (“Amoco”) for four hundred thousand dollars. The property is an enclosed estate as it has no access to a public road. The tract is located within the city limits in south Lake Charles, Louisiana and is contiguous with the Stream Family Limited Partnership (“Stream”) residential and golf course development, “Graywood.”

The southern portion of the May property consists of approximately twenty-seven acres of high land. The northern portion of the May property consists of approximately thirty-eight acres below sea-level that is generally called Kara Bay. Various pipelines span east and west between the May property and Stream’s Graywood property. The Mays plan to build a house and a barn on their land and, in the future, to build homes for their children.

| p.Prior to the Mays’ purchase from Amoco, the May property was part of a larger, eighty-two acre tract. In 1995, Amoco sold a 16.5 acre tract situated north of Kara Bay that had access to Lisle Peter Road, a public road. This sale created an enclosed estate as the remaining tract had no access to a public road.

About one year after their purchase, on or about February 13, 2001, the Mays filed a Petition for a Right of Passage based upon Louisiana Civil Code Article 689 et seq., naming as defendants, landowners of intervening lands lying east of the May property towards Big Lake Road. The Mays originally sought a twenty foot right of passage from the south east corner of their property traversing from west to east, crossing several defendant landowners’ properties, to the end of an existing Stream private road that connects to Big Lake Road. The Stream private road is used by defendant, Thomas Miller, in accordance with a terminable personal servitude.

On several different occasions the trial court considered various exceptions, motions, allegations, testimony and exhibits in court including a Peremptory Exception filed by Stream of No Right of Action and No Cause of Action.

Through the disposal of these various exceptions, etc., property owners to the north of the May property were dismissed even though the closest route to a public road was in the northern direction to Lisle Peters Road. Through summary judgment, the trial court dismissed these defendants because this route was not acceptable as a body of water, Kara Bay, was between the May property and Lisle Peters Road. The trial court then looked to the east or south to find the location of the right of passage to grant to the Mays.

The trial occurred on January 20th through 21st, 2005. Sixteen witnesses testified. After 'the trial, the trial court gave the parties time to submit post-trial | ^memoranda on findings of fact and law. After the parties extensively briefed the issues, the trial court took the matter under advisement.

Written reasons for judgment were given on December 27, 2005. The trial court decided that since the Graywood Traffic Circle or cul-de-sac was the closest public road to the May property that didn’t require traversing Kara Bay, Stream must bear the entirety of the servitude. After it was determined that the Stream property was to be the servient estate, the trial court considered several routes and per[665]*665formed a balancing test to help determine the route least injurious to the servient estate.

The Mays proposed four routes to the south. Stream proposed that, if a right of passage was to be granted, then the least injurious route would be an east/west route along the northern border of its estate so as not to hinder its future plans for the development of the property.

The trial court granted the Mays a twenty foot right of passage that took an easVwest route along the northern border of the Stream property to Big Lake Road. The trial court opined that the route was the least injurious to the servient estate. The trial court also found that the Mays owed Stream a total of fifty thousand dollars. The Trial court also found that the Mays owed Stream a total of fifty thousand dollars, twenty-five thousand dollars for the right of passage property taken and twenty-five thousand dollars for severance damages.

The Mays appealed this judgment alleging that the trial court erred in three ways: (1) by selecting a route for the their right of passage that necessitated the building of a bridge, (2) by finding that Stream was entitled to twenty-five thousand dollars for right of passage property taken and twenty-five thousand dollars for disseverance damages from the Mays, and (3) by granting the Mays a twenty foot wide right of passage rather than a thirty foot wide right of passage.

Stream raised the issue on appeal that their Peremptory Exception of No Right of Action and No Cause of Action should have been granted pursuant to Louisiana Civil Code Article 693 because Amoco had created the enclosed estate though its own accord and the Mays were its successors, and as such, their neighbor, Stream, were not bound to furnish a right of passage to them. The Appellee advised the court at oral arguments they had abandoned that argument. Accordingly, this court will not address this issue.

We affirm in part and reverse in part.

ASSIGNMENTS OF ERROR:

1. Was the trial court manifestly erroneous or clearly wrong in granting the Mays a right of passage by selecting a route that necessitated the building of bridge?
2. Was the trial court manifestly erroneous or clearly wrong in finding that Stream was entitled to fifty thousand dollars from the Mays for the right of passage property taken and severance damages?
3. Was the trial court manifestly erroneous or clearly wrong in granting the Mays a twenty foot wide right of passage rather than a thirty foot wide right of passage?

ASSIGNMENT OF ERROR # 1:

Plaintiff/Appellant contends that the trial court erred in granting the Mays a right of passage by selecting a route that necessitated the building of bridge. We disagree.

The standard of review for a finding of fact such as this is that of manifest error. A trial judge’s findings of fact will not be disturbed unless he/she is manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Thransp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury |sor trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co.,

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Bluebook (online)
941 So. 2d 661, 6 La.App. 3 Cir. 418, 2006 La. App. LEXIS 2254, 2006 WL 2873262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/may-v-miller-lactapp-2006.