STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-1354
NAN L. ALLEN
VERSUS
LEON B. COTTEN, ET AL.
**********
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 30,898 HONORABLE JIMMY WAYNE WILEY, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
AFFIRMED.
Donald Wilson Richard Joseph Wilson Wilson & Wilson P. O. Box 1346 Jena, LA 71342 Telephone: (318) 992-2104 COUNSEL FOR: Defendants/Appellees - Leon B. Cotton, et al.
Eugene Allen P. O. Box 432 Columbia, LA 71418 Telephone: (318) 758-1456 COUNSEL FOR: Plaintiff/Appellant - Nan L. Allen THIBODEAUX, Chief Judge.
Plaintiff, Nan Allen, owns twenty acres in Caldwell Parish. She filed
suit, seeking a right of passage across the Defendants’ property (the “Cotten
property”) located to the south, in LaSalle Parish. The trial court held that, prior to
her ownership, Ms. Allen’s property became enclosed through a “voluntary alienation
or partition,” as defined by La.Civ.Code art. 694. Accordingly, she was entitled to
request gratuitous passage across the property on which passage was previously
exercised. The trial court found that the Cotten property did not contain the previous
point of passage. Specifically, the trial court held that Ms. Allen had no right of
passage across the Cotten property, reasoning that the existence of a gratuitous right
of passage is mandatory in nature, and no right of predial servitude should be
judicially decreed. Instead, the trial court opined that Ms. Allen may have a
gratuitous right of passage across the property located to her east, on which passage
was previously exercised. Ms. Allen appeals.
I.
ISSUES
We shall consider whether:
(1) the trial court committed manifest error by finding that the Allen property was enclosed as a result of voluntary partitions in 1972;
(2) the trial court committed manifest error by rendering a ruling affecting property outside the jurisdiction of the court; and,
(3) the trial court committed manifest error by failing to find the remedy for Ms. Allen was across the Cotten estate. II.
FACTS AND PROCEDURAL HISTORY
The southern line of Ms. Allen’s twenty acres is adjacent to the northern
line of the Cotten property. The chain of title to the two respective properties does not
indicate a common ancestor in title.
Ms. Allen’s property was carved out of a larger 160-acre tract, originally
partitioned into two, eighty-acre tracts in 1912. Irvin Washington owned the northern
eighty-acre tract, and Harriet Washington owned the southern eighty-acre tract. The
record reveals that three roads existed on Irvin’s tract, and one road existed on
Harriet’s tract. Harriet’s tract was acquired by mesne conveyances by Travis S. Gore,
Dr. R.E. King, and Citizen’s Progressive Bank. By operation of law, a right of
gratuitous passage was created for the access of Harriet’s road by the subsequent
partition of the South one-half of the Southeast Quarter between Gore, King, and
Citizen’s Progressive Bank.
In 1972, Gore, King, and the Bank partitioned their eighty-acre tract,
with King receiving the South one-half of the Southwest Quarter of Section 14,
Township 11 North, Range 2 East, now owned by Ms. Allen.
The trial court found that the 1972 partition resulted in the enclosure of
Ms. Allen’s property. 1 Applying the mandatory provisions of La.Code Civ.P. art.
694, the trial court held that it could not decree a right of predial servitude across the
Cotten property. Instead, the trial court held that Ms. Allen was entitled only to a
gratuitous right of passage over the land on which passage was previously exercised,
even if it is not the shortest distance to a public road. In dicta, the trial court opined
that Ms. Allen may have a gratuitous right of passage across the Gore property,
located to the east of her property.
1 Ms. Allen testified that she knew of the enclosed nature of her property. She previously contacted and received permission for limited access to her property. 2 III.
LAW AND DISCUSSION
Standard of Review
We review judgments regarding servitudes under the manifest error
standard of review. Griffith v. Cathey, 99-923 (La.App. 3 Cir. 2/200), 762 So.2d 29,
writ denied, 00-1875 (La. 10/6/00), 771 So.2d 85. An appellate court may not set
aside a trial court’s findings of fact unless they are manifestly erroneous or clearly
wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse under the manifest
error rule, an appellate court must find from the record that there is no reasonable
basis for the trial court’s finding and that the record shows the finding to be
manifestly erroneous. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880
(La.1993).
Discussion
Applicability of La.Civ.Code Art. 694
Ms. Allen asserts that the trial court erred in finding that her property was
enclosed through the 1972 partition and finding that La.Civ.Code art. 694 applies.
We disagree. Louisiana Civil Code Article 694 provides that in the case of a partition,
or a voluntary alienation of an estate or of a part thereof, if property alienated or
partitioned 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. La.Civ.Code art. 694.
A neighbor, however, is not required to provide passage to the owner of
an estate which became enclosed by the voluntary act or omission of its owner.
La.Civ.Code art. 693. The right to demand gratuitous passage is still available to a
purchaser who acquires an estate enclosed as a result of a voluntary alienation of
3 property, even though that right is not available to the seller who voluntarily enclosed
the estate. Spotsville v. Herbert & Murrell, Inc., 97-188 (La.App. 3 Cir. 6/18/97), 698
So.2d 31.
It is clear that Ms. Allen did nothing to enclose her property. Her
dilemma was created prior to her ownership of the property. We agree with the trial
court’s finding that the 1972 partition resulted in the enclosure of the King tract,
which is now owned by Ms. Allen. After the partition, the Bank received the northern
twenty acres, and Gore received the forty acres east of Ms. Allen’s twenty-acre tract.
The Cotten property was never a part of the original tract that was partitioned in 1972.
Though Ms. Allen would prefer passage across the Cotten property, the
law mandates that gratuitous passage shall be furnished by the owner of the land on
which the passage was previously exercised, even if it is not the shortest route to a
public road. That land is not the Cotten property. Indeed, the trial court weighed
public records against Ms. Allen’s testimony, and concluded that the Gore property
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-1354
NAN L. ALLEN
VERSUS
LEON B. COTTEN, ET AL.
**********
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 30,898 HONORABLE JIMMY WAYNE WILEY, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
AFFIRMED.
Donald Wilson Richard Joseph Wilson Wilson & Wilson P. O. Box 1346 Jena, LA 71342 Telephone: (318) 992-2104 COUNSEL FOR: Defendants/Appellees - Leon B. Cotton, et al.
Eugene Allen P. O. Box 432 Columbia, LA 71418 Telephone: (318) 758-1456 COUNSEL FOR: Plaintiff/Appellant - Nan L. Allen THIBODEAUX, Chief Judge.
Plaintiff, Nan Allen, owns twenty acres in Caldwell Parish. She filed
suit, seeking a right of passage across the Defendants’ property (the “Cotten
property”) located to the south, in LaSalle Parish. The trial court held that, prior to
her ownership, Ms. Allen’s property became enclosed through a “voluntary alienation
or partition,” as defined by La.Civ.Code art. 694. Accordingly, she was entitled to
request gratuitous passage across the property on which passage was previously
exercised. The trial court found that the Cotten property did not contain the previous
point of passage. Specifically, the trial court held that Ms. Allen had no right of
passage across the Cotten property, reasoning that the existence of a gratuitous right
of passage is mandatory in nature, and no right of predial servitude should be
judicially decreed. Instead, the trial court opined that Ms. Allen may have a
gratuitous right of passage across the property located to her east, on which passage
was previously exercised. Ms. Allen appeals.
I.
ISSUES
We shall consider whether:
(1) the trial court committed manifest error by finding that the Allen property was enclosed as a result of voluntary partitions in 1972;
(2) the trial court committed manifest error by rendering a ruling affecting property outside the jurisdiction of the court; and,
(3) the trial court committed manifest error by failing to find the remedy for Ms. Allen was across the Cotten estate. II.
FACTS AND PROCEDURAL HISTORY
The southern line of Ms. Allen’s twenty acres is adjacent to the northern
line of the Cotten property. The chain of title to the two respective properties does not
indicate a common ancestor in title.
Ms. Allen’s property was carved out of a larger 160-acre tract, originally
partitioned into two, eighty-acre tracts in 1912. Irvin Washington owned the northern
eighty-acre tract, and Harriet Washington owned the southern eighty-acre tract. The
record reveals that three roads existed on Irvin’s tract, and one road existed on
Harriet’s tract. Harriet’s tract was acquired by mesne conveyances by Travis S. Gore,
Dr. R.E. King, and Citizen’s Progressive Bank. By operation of law, a right of
gratuitous passage was created for the access of Harriet’s road by the subsequent
partition of the South one-half of the Southeast Quarter between Gore, King, and
Citizen’s Progressive Bank.
In 1972, Gore, King, and the Bank partitioned their eighty-acre tract,
with King receiving the South one-half of the Southwest Quarter of Section 14,
Township 11 North, Range 2 East, now owned by Ms. Allen.
The trial court found that the 1972 partition resulted in the enclosure of
Ms. Allen’s property. 1 Applying the mandatory provisions of La.Code Civ.P. art.
694, the trial court held that it could not decree a right of predial servitude across the
Cotten property. Instead, the trial court held that Ms. Allen was entitled only to a
gratuitous right of passage over the land on which passage was previously exercised,
even if it is not the shortest distance to a public road. In dicta, the trial court opined
that Ms. Allen may have a gratuitous right of passage across the Gore property,
located to the east of her property.
1 Ms. Allen testified that she knew of the enclosed nature of her property. She previously contacted and received permission for limited access to her property. 2 III.
LAW AND DISCUSSION
Standard of Review
We review judgments regarding servitudes under the manifest error
standard of review. Griffith v. Cathey, 99-923 (La.App. 3 Cir. 2/200), 762 So.2d 29,
writ denied, 00-1875 (La. 10/6/00), 771 So.2d 85. An appellate court may not set
aside a trial court’s findings of fact unless they are manifestly erroneous or clearly
wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse under the manifest
error rule, an appellate court must find from the record that there is no reasonable
basis for the trial court’s finding and that the record shows the finding to be
manifestly erroneous. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880
(La.1993).
Discussion
Applicability of La.Civ.Code Art. 694
Ms. Allen asserts that the trial court erred in finding that her property was
enclosed through the 1972 partition and finding that La.Civ.Code art. 694 applies.
We disagree. Louisiana Civil Code Article 694 provides that in the case of a partition,
or a voluntary alienation of an estate or of a part thereof, if property alienated or
partitioned 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. La.Civ.Code art. 694.
A neighbor, however, is not required to provide passage to the owner of
an estate which became enclosed by the voluntary act or omission of its owner.
La.Civ.Code art. 693. The right to demand gratuitous passage is still available to a
purchaser who acquires an estate enclosed as a result of a voluntary alienation of
3 property, even though that right is not available to the seller who voluntarily enclosed
the estate. Spotsville v. Herbert & Murrell, Inc., 97-188 (La.App. 3 Cir. 6/18/97), 698
So.2d 31.
It is clear that Ms. Allen did nothing to enclose her property. Her
dilemma was created prior to her ownership of the property. We agree with the trial
court’s finding that the 1972 partition resulted in the enclosure of the King tract,
which is now owned by Ms. Allen. After the partition, the Bank received the northern
twenty acres, and Gore received the forty acres east of Ms. Allen’s twenty-acre tract.
The Cotten property was never a part of the original tract that was partitioned in 1972.
Though Ms. Allen would prefer passage across the Cotten property, the
law mandates that gratuitous passage shall be furnished by the owner of the land on
which the passage was previously exercised, even if it is not the shortest route to a
public road. That land is not the Cotten property. Indeed, the trial court weighed
public records against Ms. Allen’s testimony, and concluded that the Gore property
contained the last access road and may be subject to Ms. Allen’s gratuitous right of
passage in accordance with La.Civ.Code art. 694. We find no error in the trial court’s
judgment.
Venue of the Trial Court
Ms. Allen asserts that the trial court acted outside its “jurisdiction” by
rendering judgment on property located in Caldwell Parish. Ms. Allen’s argument
fails for two reasons. First, Ms. Allen confuses the terms “jurisdiction” and “venue.”
Jurisdiction relates to the power of a court to act. Indisputably, the trial court had
jurisdiction. The proper question is that of venue. Ms. Allen chose the venue of
LaSalle Parish, and she chose it properly. Louisiana Code of Civil Procedure, Article
80 states:
4 A. The following actions may be brought in the parish where the immovable property is situated or in the parish where the defendant in the action is domiciled:
(1) An action to assert an interest in immovable property, or a right in, to, or against immovable property, except as otherwise provided in Article 72;
...
B. If the immovable property, consisting of one or more tracts, is situated in more than one parish, the action may be brought in any of these parishes.
La.Code Civ.P. art. 80.
Here, Ms. Allen asserted an interest in the Cotten property, located in LaSalle Parish.
Venue, therefore, was proper in LaSalle Parish.
Second, the trial court’s conclusions regarding Ms. Allen’s rights to
passage across the Gore property are decidedly dicta and in no way affect the trial
court’s judgment that Ms. Allen does not have rights to passage across the Cotten
property.
IV.
CONCLUSION
For the reasons articulated above, we affirm the judgment of the trial
court. Costs of this appeal are assessed against appellant, Nan Allen.