STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-497
NORRIS CLEMENT, ET AL.
VERSUS
BRENT J. MENARD, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20173639 HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE
CANDYCE G. PERRET JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, John E. Conery, D. Kent Savoie, and Candyce G. Perret, Judges.
REVERSED; PERMANENT INJUNCTION IN FAVOR OF THE MENARDS IS GRANTED; CASE REMANDED FOR FURTHER PROCEEDINGS.
Pickett, J., dissents and assigns written reasons. Conery, J., concurs and assigns written reasons. Savoie, J., dissents and assigns written reasons. G. Andrew Veazey Bradford H. Felder Dona K. Renegar Veazey, Felder & Renegar Post Office Box 80948 Lafayette, LA 70598-0948 (337) 234-5350 COUNSEL FOR DEFENDANTS/APPELLANTS: Brent J. Menard Jamille Menard
Jade Roland Andrus Andrus and Andrus, LLC 1227 Camellia Boulevard Lafayette, LA 70508 (337) 988-2100 COUNSEL FOR PLAINTIFFS/APPELLEES: Norris Clement Barbara Clement Richard, Agent & Attorney in Fact for Norris Clement Gregory Paul Dore PERRET, Judge.
This appeal stems from competing claims for injunctive relief involving an
irrigation canal right-of-way. The trial court rendered judgment in favor of Norris
Clement, Barbara Richard, authorized agent for Norris Clement, and Gregory Paul
Dore (“the Clements”), and against Brent J. Menard and Jamille Menard (“the
Menards”).1 The trial court concluded that the Clements have the right to maintain,
operate, and repair the irrigation canal and permanently restrained, enjoined, and
prohibited the Menards from interfering with the Clements’ rights. The Menards
appeal the judgment and, on appeal, we reverse the trial court’s judgment, grant a
permanent injunction in favor of the Menards, and remand the case to the trial
court for further proceedings as may be necessary in conformity with this ruling.
FACTS AND PROCEDURAL HISTORY:
Most of the facts in this case do not appear to be in dispute. On September
20, 1952, Marcel Guidry, the Menards’ ancestor in title, granted to Willie Clement,
his heirs, and his assigns, a twenty-four-foot predial servitude/right-of-way for an
irrigation canal across his property. The Clements are the heirs and assigns of
Willie Clement, as evidenced by documents admitted into evidence. This
agreement (“the 1952 Agreement”) was recorded in the Lafayette Parish records
under Entry number 280984. In the 1952 Agreement, Mr. Guidry recognized that:
[T]here is an irrigation canal running along the Southern boundary of his said land and lying next to the Public Road, which irrigation canal leads from the irrigation plant which Sidney Constantin sold to Willie Clement on September 19, 1952, . . . to the tract of land consisting of approximately 120 acres, . . . which Sidney Constantin sold to Willie Clement on September 19, 1952.
1 The Menards are the trustees of The Menard Family Revocable Living Trust, which has naked ownership of the property on which the irrigation canal crosses. The 1952 Agreement further states that Mr. Guidry grants Willie Clement the
right-of-way because Mr. Guidry had never granted the former owners of the
irrigation plant the right-of-way described. More specifically, the 1952 Agreement
states that Mr. Guidry:
[D]oes now grant, sell and deliver unto Willie Clement . . . his heirs and assigns, a right-of-way 24 feet in width for the said irrigation canal, said right-of-way to continue for as long a time as the said irrigation well and pumping plant is operated by either the said Willie Clement, his heirs or assigns.
The said Willie Clement binds and obligates himself, his heirs and assigns, to take good and proper care of the canal levies and not permit any water to escape or cause any damage to the growing crops on land of Marcel Guidry, his heirs or assigns.
In 1997 the Clements installed a twelve-inch plastic pipe in the same
location as the open irrigation canal and filled the open canal.
On September 22, 1998, the Menards purchased the subject property
including that property on which the right-of-way was formerly granted. The Act
of Cash Sale of Property transfers the described property to the Menards “with full
and general warranty of title, and with full subrogation to all the rights of warranty
and all other rights as held herein by said Sellers, subject to any easements, rights-
of-way and restrictions of record.” The act of sale did not disclose the presence of
any underground pipeline on the Menard property.
Subsequently, the irrigation pipeline required repairs. After the Menards
allegedly prevented those repairs from occurring, the Clements filed a Petition for
Temporary Restraining Order, and Preliminary Injunction. The Clements asserted
ownership of an irrigation canal right-of-way on the Menards’ property which was,
and is still, used to irrigate rice crops and crawfish ponds. The petition further
alleged that Gregory Dore leases the Clement property for rice crops and that the
2 irrigation canal supplies the property with water. The Clements asserted they
attempted to repair a leak in the irrigation pipe but were prevented from doing so
by Brent Menard. Therefore, the Clements sought a temporary restraining order
preventing the Menards from interfering with the Clements’ maintenance of the
irrigation pipe.
On June 22, 2017, the trial court signed and granted the Clements’
temporary restraining order for ten days. The Menards sought to have the
temporary restraining order deemed expired, and a show cause hearing was set for
July 31, 2017. In opposition to the restraining order, the Menards alleged that the
irrigation canal was abandoned in 1997, when the open irrigation canal was
replaced with an underground irrigation system. The Menards further assert that a
survey done on July 31, 1997, does not indicate the presence of the pipeline on the
Menard property. The Menards allege that their act of sale does not acknowledge
the pipeline and the only attachment to the act of sale was the 1997 survey.
On July 31, 2017, the Menards filed an Answer, Reconventional Demand &
Third-Party Petition for Possession and for Damages alleging that the Clements
cannot meet the requirements for obtaining injunctive relief, that there is no
recorded instrument establishing the Clements’ right to operate an underground
pipeline on the Menard property, and that the Menards were entitled to rely upon
the absence of any instrument in the public records. Furthermore, the Menards
sought injunctive relief to protect their possession of their property and ensure the
removal of the irrigation pipeline, an order requiring the Clements to assert any
adverse claims of ownership in a petitory action, and damages from the disturbance
of their possession, negligence, nuisance, and wrongful issuance of a temporary
restraining order.
3 The Clements responded to the Menards’ reconventional demand with their
own demand for damages allegedly caused by the Menards’ excavation of the
irrigation pipeline area.
At the trial on the competing temporary restraining orders and permanent
injunctions, Gregory Dore, Barbara Richard, and Ronald Richard testified
regarding the use of the irrigation system before and after 1997, as well as the
impact on farming operations that occurred when the irrigation system was not
operational. The parties introduced exhibits including the 1952 Agreement and the
Menard act of sale documents. The trial court ruled in favor of the Clements,
documenting its factual findings in its Findings of Fact and Reasons for Judgment
in addition to the court’s Judgment Granting Final Injunction.
It is from this judgment that the Menards appeal, asserting three assignments
of error:
A. The trial court’s ruling ignores and undermines the public records doctrine because it deprived the Menards of their right to rely on the absence from the public records of an instrument granting title for the Clement Interests to operate a non-apparent underground predial servitude.
B. The trial court erroneously conflated the grant of title of an apparent predial servitude for an irrigation canal as encompassing a non-apparent predial servitude for an underground pipeline.
C. Alternatively, the 1952 Agreement is ambiguous as to whether it grants title to operate a non-apparent predial servitude[,] and the trial court failed to recognize that any ambiguities regarding title must be resolved in favor of the Menards as owners of the servient estate.
DISCUSSION:
“Predial servitudes are either apparent or nonapparent. Apparent servitudes
are those that are perceivable by exterior signs, works, or constructions . . . .
Nonapparent servitudes are those that have no exterior sign of their existence[.]”
4 La.Civ.Code art. 707. Apparent predial servitudes may be established in three
ways, including by title, but non-apparent servitudes may only be acquired by title.
La.Civ.Code arts. 739 and 740. Additionally, to be effective as to third parties, the
instrument establishing “a real right in or over an immovable” must be recorded.
La.Civ.Code art. 3338.
The 1952 Agreement, establishing the right-of-way, was recorded in the
Lafayette Parish conveyance records, and, therefore, the right established in that
instrument is effective against the Menards.2
When established by title, “[t]he use and extent of such servitudes are
regulated by the title by which they are created[.]” La.Civ.Code art. 697.
Therefore, the crux of the issue on appeal is whether the 1952 Agreement for an
“irrigation canal” right-of-way encompasses an underground irrigation pipeline,3
which is addressed in Appellants’ Assignment of Error Number Two.
“Whether a servitude has been used according to the title or possession, or
whether the condition of the servient estate has been aggravated, is a question of
fact.” A.N. YIANNOPOULOS, PREDIAL SERVITUDES §7:5 (4 Louisiana Civil
Law Treatise 2018). “Courts resolve this question according to the circumstances
by taking into account the situation of the estates, the agreement of the parties, the
needs of the dominant estate at the time of the creation of the servitude, and the 2 While the Menards argue in their first assignment of error that the right-of-way was not in the 1997 survey or their act of sale document, that is of no moment in this case. “The servitude need not appear in the act by which the present owner acquired the servient estate nor in his chain of title.” A.N. YIANNOPOULOS, PREDIAL SERVITUDES §6:23 (4 Louisiana Civil Law Treatise 2018) . “[R]eal obligations accompany the land in the hands of subsequent vendees without any mention thereof in the acts of transfer.” Clark v. Reed, 122 So.2d 344, 349 (La.App 2 Cir. 1960). Additionally, the act of sale document specifically states it is “subject to any easements, rights-of-way and restrictions of record.” 3 This case is resolved by addressing the Menards’ Assignment of Error Number Two: whether, the trial court erroneously conflated the grant of title of an apparent predial servitude for an irrigation canal as encompassing a non-apparent predial servitude for an underground pipeline.
5 prejudice sustained by the owner of the servient estate.” Id. See also Sigue v.
Texas Gas Transmission Corp., 154 So.2d 800 (La.App. 3 Cir.), writ refused, 244
La. 1025 (La.1963), cert denied, 379 U.S. 922, 85 S.Ct. 277 (1964), in which this
court applied contract interpretation codal articles to determine that a contract
providing a right-of-way only provided for buried pipelines. Additionally,
“[d]oubt as to the existence, extent, or manner of exercise of a predial servitude
shall be resolved in favor of the servient estate.” La.Civ.Code art. 730.
[T]he intention of the parties to place a charge on one estate for the benefit of another estate, and the extent of the charge, must be expressed on the face of the title document and cannot be inferred or implied from vague or ambiguous language. The title document must also reasonably identify the dominant estate and the servient estate.
S. Amusement Co., Inc. v. Pat’s of Henderson Seafood & Steak, Inc., 03-767, p. 7
(La.App. 3 Cir. 3/31/04), 871 So.2d 630, 634 (quoting Mardis v. Brantley, 30,773,
pp. 2-3 (La.App. 2 Cir. 8/25/98), 717 So.2d 702, 704, writ denied, 98-2488 (La.
11/20/98), 729 So.2d 563).
In this case, the 1952 Agreement sets forth the intention to place a charge on
Mr. Guidry’s estate for the benefit of Willie Clement’s estate by granting a twenty-
four-foot right-of-way for an irrigation canal. The extent of the charge is described
as “a right-of-way 24 feet in width for the said irrigation canal” which was earlier
described as “an irrigation canal running along the Southern boundary of his [Mr.
Guidry’s] said land and lying next to the Public Road, which irrigation canal leads
from the irrigation plant . . . to the tract of land consisting of approximately 120
acres[.]” The 1952 Agreement further requires Willie Clement, his heirs and
assigns, “to take good and proper care of the canal levies and not permit any water
to escape or cause any damage to the growing crops on [the] land of Marcel Guidry,
his heirs or assigns.”
6 The Menards argue that the 1952 Agreement only establishes a right-of-way
for an apparent servitude, an irrigation canal as was in existence at the time that the
1952 Agreement was signed, and that the “nature” of the servitude has been
changed to a non-apparent servitude, a buried irrigation pipeline.
The Clements argue that the current underground pipeline is merely a
permissible modification of the original, apparent servitude and, thus,
encompassed by the 1952 Agreement as it serves the same purpose, irrigation.
The Clements further argue that the buried irrigation pipeline is less onerous,
as it is underground and does not present all the hazards and unpleasant effects of
an open canal. Overlooked by the Clements is the obvious problem of having to
go onto the lands of the servient estate to dig up and repair the pipeline should it
become clogged or inoperable, the very issue that brought the existence of the
pipeline to the attention of the Menards in this case. In determining whether the
“nature” of the servitude has changed, we have considered the Louisiana Civil Law
Treatise on the subject, which provides:
The owner of the dominant estate may not unilaterally change the nature of a servitude, its location, or its purpose. For example, he may not transform a discontinuous servitude into a continuous servitude; he may not relocate the servitude without the consent of the owner of the servient estate; and he may not convert a servitude of passage for the construction of a highway into a servitude for recreational purposes, a railroad right of way into a servitude for the operation of a cotton gin, or an under-the-ground pipe line servitude into a servitude for the maintenance of above-ground facilities. In such cases, the owner of the dominant estate is not using the servitude within the limits of his title or possession, but is attempting to establish a new servitude or to modify the servitude by unilateral action. He may be liable, therefore, to the owner of the servient estate for damages for aggravation of the condition of the servient estate, or even if the condition of the servient estate has not been aggravated.
A.N. YIANNOPOULOS, PREDIAL SERVITUDES §7:6 (4 Louisiana Civil Law
Treatise 2018)(footnotes omitted)(emphasis added).
7 The trial court concluded that although the underground pipeline was
“changed from an open ditch to a subsurface pipe in 1997[,]” “the right of way for
the irrigation canal has been maintained and consistently used for irrigation for
agricultural crops for many years. The subsurface pipe has been utilized for that,
and no other, since 1997.” Additionally, the testimony of the Clements was that
the pipe was in the same location as the prior apparent canal. Furthermore, the trial
court concluded that the term “irrigation canal,” as used in the 1952 Agreement,
encompasses a subsurface pipe for agricultural irrigation in this case.
We disagree with the trial court’s conclusion. The 1952 Agreement
describes an apparent servitude, which is emphasized by the requirement that
Willie Clement maintain the canal levies. Additionally, although the new
underground pipe is in the same location and serving the same purpose as the prior
canal, the nature of the servitude has been unilaterally changed by the Clements.
Thus, when the Clements filled in the apparent servitude in 1997, they ceased to
use the servitude granted to them by the language in the 1952 Agreement.
Considering that any “[d]oubt as to the existence, extent, or manner of exercise of
a predial servitude shall be resolved in favor of the servient estate,” we find the
trial court was manifestly erroneous. La.Civ.Code art. 730.
CONCLUSION:
The trial court’s judgment in favor of the Clements is reversed. A
permanent injunction in favor of Appellants, the Menards, is granted and the case
is remanded to the trial court for further proceedings as may be necessary in
conformity with this ruling. Costs of this appeal are assessed to Appellees, the
Clements: Norris Clement, Barbara Clement Richard, and Gregory Paul Dore.
8 REVERSED; PERMANENT INJUNCTION IN FAVOR OF THE MENARDS IS GRANTED; CASE REMANDED FOR FURTHER PROCEEDINGS.
9 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
BRENT J. MENARD, ET AL
Pickett, J., dissenting with written reasons.
I respectfully dissent.
In 1952, the plaintiffs’ ancestor was granted the right to operate and maintain
an irrigation canal situated on the defendants’ property by the defendants’ ancestor
in title. The act establishing the servitude was recorded in the public records. In
1997, the plaintiffs installed plastic pipe to transport the irrigation waters and
covered the pipe. They have continued to transport irrigation water via this
underground pipe without interruption for twenty-two years since installing the pipe.
The defendants purchased the property on which the irrigation canal is situated after
the plaintiffs installed the plastic pipe and filled the canal. The act of sale
transferring title to the defendants does not mention the irrigation canal/pipeline but
provides that the sale is made “subject to any easements, rights-of-way and
restrictions of record.” The servitude at issue clearly was “of record.” The plaintiffs
filed suit in 2017 seeking an injunction allowing them on the defendants’ property,
alleging that the defendants refused to allow them to repair a leak on a section of the
underground pipe located in the servitude. The trial court found that the plaintiffs
were entitled to a permanent injunction “restraining, enjoining and prohibiting [the
defendants] from harassing or threatening them and from interfering with the
operation, maintenance and repair of the irrigation canal” as described in the 1952
act granting the servitude. 1 The defendants argue that the right of way granted by their ancestor-in-title
was an apparent servitude and that the plaintiffs changed the nature of the servitude
to a non-apparent servitude when they installed plastic pipe where the irrigation
canal was situated and filled the canal. They maintain that the public records do not
reflect that the servitude granted is a non-apparent servitude as required by
La.Civ.Code art. 739; therefore, the trial court erred in granting judgment in favor
of the plaintiffs.
As noted by the majority, the 1952 act granting the right-of-way at issue
provides that Marcel Guidry sold to “Willie Clement, . . ., his heirs and assigns a
right of way 24 feet in width for the said irrigation canal, said right-of-way to
continue for as long a time as the said irrigation well and pumping plant is operated
by either the said Willie Clement, his heirs or assigns.” The act further set forth the
specific location of the canal on Mr. Guidry’s property and obligated Mr. Clement
“to take good and proper care of the canal levies and not permit any water to escape
or cause any damage to growing crops on land of Marcel Guidry, his heirs or
assigns.”
The majority cites Professor Yiannopoulos’ discussion of the limitations of
the dominant estate owner’s rights with regard to changing the nature of a servitude,
its location or its purpose. Professor Yiannopoulos’ examples of unacceptable
changes by a dominant estate owner include changing a non-continuous servitude to
a continuous servitude, complete relocation of a servitude on the servient estate,
changing a railroad right-of-way to a servitude to operate a cotton gin, and
conversion of an underground pipe line servitude to an above ground facility. While
at first glance the last example might appear to support the defendants’ claim, it does
not. The installation of an above ground facility limits the servient estate owner’s
use of his property thereby making the pipe line servitude more onerous on the
2 servient estate. In each of these instances, the changes made by the dominant estate
caused the servitude to be more onerous. In the instant case, the installation of an
underground pipe in the same location of an irrigation canal made the servitude less
onerous. Neither the nature nor the purpose of the servitude was changed. The
installation of the underground pipe actually improved the system for which the
servitude was established by eradicating the need for mosquito and rodent control,
as well as other maintenance issues that accompany an open canal.
The majority also finds that the 1952 Agreement describes only an apparent
servitude because the agreement required Mr. Clement, and now the plaintiffs, to
maintain the canal levies. However, the agreement makes it clear that the purpose
of maintaining the levies is to “not permit any water to escape or cause any damage
to the growing crops or land” of Mr. Guidry. The plaintiffs remain bound by that
requirement such that they must maintain their irrigation pipe to insure that no water
escapes or causes damage to the defendants’ property.
In my view, the plaintiffs’ conversion of the irrigation canal to an irrigation
pipe does not change the nature of the original servitude granted by Mr. Guidry—its
nature remains that of an irrigation canal. Nor does it change the location or purpose
of the servitude. Additionally, the change made the servitude less burdensome on
the servient estate.
The plaintiffs complied with La.Civ.Code art. 739’s requirement that non-
apparent servitudes be recorded and thereby protected the existence of their
servitude. The act establishing the servitude does not define or limit the irrigation
canal to being an apparent servitude; however, it does specifically define the location
and existence of a right of way for an irrigation canal.
I would affirm the judgment of the trial court.
3 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CONERY, J., concurs and assigns reasons.
I join in the majority opinion, but write separately as, in my opinion,
consideration of the issue presented must begin with discussion of La.Civ.Code arts.
729 and 730. It is the application of that framework that reveals the error in the trial
court’s ruling.
Louisiana Civil Code Article 729 provides: “Legal and natural servitudes
must be altered by agreement of the parties if the public interest is not affected
adversely.” There is no indication that an agreement between the Menards and the
Clements, verbal or otherwise, altered the initial servitude. It is instead apparent that
the parties’ dispute stems from the original, 1952 Agreement which called for an
“irrigation canal.” The Clements now wish to expand the scope and meaning of
“irrigation canal” as used in that document to include operation of a replacement
underground irrigation pipeline which they undisputedly installed without the
knowledge or permission of the Menards. Indeed, the survey of the property
purchased by the Menards does not show that there is an underground irrigation
pipeline across their property, and because the pipeline is buried, there is no
indication of its existence on the surface of the property.
In the face of such dispute, La.Civ.Code art. 730 dictates that: “Doubt as to
the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.” Article 730’s foundational nature is apparent in its
comment, which describes this concept as the “cardinal rule of interpretation[,]” and
indicates that “instruments purporting to establish predial servitudes are always
interpreted in favor of the owner of the property to be affected.” La.Civ.Code art.
730 cmt. (b). The comment further references longstanding supreme court
jurisprudence explaining that “‘servitudes are restraints on the free disposal and use
of property, and are not, on that account, entitled to be viewed with favor by the
law.’” Id. (quoting Parish v. Municipality No. 2, 8 La.Ann. 145, 1853 WL 4186
(La.1853), cited with approval in Buras Ice Factory, Inc. v. Dep’t of Highways, 235
La. 158, 103 So.2d 74 (1958))(also citing McGuffy v. Weil, 240 La. 758, 125 So.2d
154 (1960)). See Palomeque v. Prudhomme, 95-0725 (La. 11/27/95), 664 So.2d 88;
Ryan v. Monet, 95-1332 (La.App. 4 Cir. 12/28/95), 666 So.2d 711. See also A.N.
YIANNOPOULOS, PREDIAL SERVITUDES § 6.25 (4 La. Civ. L. Treatise 2018).
It is unquestioned here that the parties’ competing claims arise out of the
change in the nature of servitude from “apparent” to “non-apparent” and the manner
of exercise of the predial servitude contained within the 1952 Agreement. By
reference to La.Civ.Code art. 730, on this latter point, resolution favors the Menards.
In Southern Amusement Co., Inc., v. Pat’s of Henderson Seafood & Steak, 03-
767 (La.App. 3 Cir. 3/31/04), 871 So.2d 630, this court recognized Article 730’s
directive as well as the underlying principle that the intention of parties to place a
charge on the servient estate, as well as the extent of that charge, must be expressed
on the face of the title document creating the purported predial servitude. Reviewing
the matter before it, the panel found “ambiguity in the attempted establishment of a
predial servitude” contested between the parties and found, therefore, “that the issue
must be resolved in favor of [the servient estate.]” Id. at 635. The same type of
2 analysis is applicable in this case as the parties dispute the meaning of “irrigation
canal.”
The trial judge’s well intentioned efforts to resort to equity to “expand” the
meaning of irrigation canal to encompass a buried “irrigation pipeline” is legally
incorrect, and as such, we owe no deference to his decision and must decide the case
de novo. See Chambers v. Village of Moreauville, 11-898 (La. 1/24/12), 85 So.3d
593. In Dautreuil v. Degeyter, 436 So.2d 164, 168 (La.App. 3 Cir. 1983), a panel of
this court rejected such an equitable remedy, instead finding it appropriate to
construe the servitude at issue by the terms of its originating agreement. It
determined that the servitude’s contractual nature controlled and explained that
“[w]hen a servitude of passage is created by contract, that contract regulates the
extent of the servitude” pursuant to La.Civ.Code art. 697, “keeping in mind that
servitudes are limitations on ownership and, as such, are not favored in law; thus,
any doubt as to the existence, extent or manner of exercise of a predial servitude is
to be resolved in favor of the servient estate, [La.Civ.Code] art. 730.”
Similarly, in Dickson v. Arkansas Louisiana Gas Co., 193 So. 246, 247
(La.App. 2 Cir. 1939), the second circuit looked to the language of the instrument
establishing a servitude in which the dominant estate was granted a right-of-way for
the laying of “a gas main for the distribution of natural or artificial gas” through the
servient estate. The court rejected the argument that the subject language
encompassed a right to dig “an entirely new ditch, separate and independent of the
old one” in order to lay a new main. It instead noted that the servitude referenced
the use of land for “a gas main,” not “two or more mains,” and it did not permit the
use of “double the quantity of land for two mains than was required for one.” Id. at
248-49. While recognizing that the width of the right-of-way was not specified in
3 the instrument, it found that “[t]he width necessary to make an excavation adequate
to receive the main originally, determined the limits of the grantee’s right in that
respect, under said instrument.” Id. In doing so, the second circuit returned to a
contractual analysis, explaining that “[i]nstruments of the character of that before us
are strictly construed because rights which would not otherwise have existence are
thereby created. Little or nothing should be inferred in construing or enforcing
them[.]” Id. at 249.
In this case, the 1952 Agreement permitted a right-of-way for an “irrigation
canal.” To the extent that term now seems to be ambiguous in terms of the respective
parties’ interpretation of that term, it is clear by the instruction of Civil Code Article
730 and by reference to jurisprudence such as Southern Amusement, 871 So.2d 630,
that the trial court was required to resolve ambiguity in favor of the servient estate,
the Menards.
Accordingly, I join in the majority’s finding in favor of the Menards and agree
to the disposition outlined in the majority’s decree.
4 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 18-497
Savoie, J. dissenting with written reasons.
I respectfully dissent for the reasons assigned by Judge Pickett, as well as for
the following reasons. In my view, the purpose of the servitude, as made clear by
the 1952 act granting the servitude, was to allow for the passage of water for
irrigation purposes. The 1952 act, as written, encompasses both an apparent and a
nonapparent servitude for that purpose. Therefore, I would affirm the trial court’s
judgment.