Platt v. Rimmer

203 So. 3d 553, 16 La.App. 3 Cir. 223, 2016 La. App. LEXIS 1878
CourtLouisiana Court of Appeal
DecidedOctober 12, 2016
Docket16-223
StatusPublished
Cited by2 cases

This text of 203 So. 3d 553 (Platt v. Rimmer) 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
Platt v. Rimmer, 203 So. 3d 553, 16 La.App. 3 Cir. 223, 2016 La. App. LEXIS 1878 (La. Ct. App. 2016).

Opinion

GREMILLION, Judge.

| , The plaintiff, Carol Platt, appeals the judgment in favor of her brother, the defendant, Madison Rimmer, finding that a servitude existing on Rimmer’s property was personal to Platt. For the following reasons, we affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

In 1983, five siblings including Platt and Rimmer, signed an Act of Partition partitioning approximately 1,000 acres located in Acadia Parish. In December 2013, Platt filed a petition for declaratory judgment arguing that the right of passage on Rim-mer’s adjoining property was predial and requesting that the rights of passage be determined for herself and future purchasers of the property, that an injunction be issued requiring Rimmer to cease and desist the interruption of the peaceful passage over the property, and for damages occasioned by the denial of passage. However, Platt subsequently removed the request for damages due to the summary nature of the proceeding requested by the parties.

Following a hearing on October 19, 2015, the trial court rendered judgment in favor of Rimmer finding that “the language used for the servitude in the 1983 Rimmer Family Partition creates a personal servitude and not a predial servitude.” Platt now appeals and argues that the trial court erred in finding that the servitude was personal rather than predial.

DISCUSSION

A party can seek a declaratory judgment to clarify her rights under a contract. La. Code Civ.P. arts. 1871 and 1872. This case raises issues of law pertaining to the nature of the servitude created in the contract and possibly existing on the land; therefore, we review it de novo. See Ranger Ins. Co. v. Shop Rite, Inc., 05-452 (La. App. 5 Cir. 1/17/06), 921 So.2d 1040.

|aIn her petition, Platt states:

10.
Petitioner CAROL PLATT maintains that the road is transferable and acts as servitude of passage to all of the estate.
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12.
The petitioner prays for a Declaratory Judgment wherein the rights of passage are defined for the petitioner and future purchasers of the property.

[555]*555The 1983 Act of Partition signed by the five siblings states in pertinent part:

There is also reserved for the use and benefit of all of the parties hereto a right of way or right of passage over and across any and all of the land here-inabove described on the plat of survey attached hereto and made a part hereof. In the event that it becomes necessary in the future to abandon the existing roads and/or passages, then, in that event, each party agrees to provide to every other party reasonable access to his or her respective property.

In 2012, Platt attempted to have an “Act of Correction” confected by the siblings, which essentially would have made the servitude predial; however, it was' never signed by any of the siblings.

At the declaratory judgment hearing, Platt’s counsel phrased the issue as:

[S]hould Ms. Platt sell the bottom third of her property, would Ms. Platt owe a servitude in the passage that has previously existed, or would she be obliged to construct a new road through her other two portions of property. ... I feel that the servitude is owed to the estate, ... property that is landlocked is entitled to a portion, or the servitude that historically existed under Civil Code 646. So the question becomes1 whether the alienation by partition is such that this particular tract of land because it is landlocked ...

In closing, Platt’s counsel said the issue was whether “potential purchasers' would have the right to ask for that [the farm road] means of ingress.” In brief, Ucounsfel phrases the issue as whether “the vendees in title will be able to access the road and whether her agents for the purpose of sale or 'showing will be allowed to venture on and use the road to evaluate whether or not they want to purchase.”

Rimmer argues in brief that Platt offered no evidence whatsoever at the hearing other than the Act of Partition, and that the only issue can be interpretation of it. It is true that there is little evidence in this case from which to base our decision. We have the partition, brief testimony of Rimmer, and a black’ and white photocopy of a map that is difficult to decipher and does not even clearly identify the road in question.1 It appears that both Rimmer and Platt have portions of land that abut the road in question (identified as the access road). It is unknown where the access road leads to or how ingress and egress from the road is accomplished. The map further seems to establish that there is access to a public road (White Oak Highway) that traverses both Rimmer’s and Platt’s land with Rimmer’s land being the portion accessed from the. road and the remaining larger portion cutting through Platt’s land. Further, Rimmer testified that Platt had already sold a twelve-acre portion of land that fronted White Oak Highway which is. the highway that had given her direct contiguous access to all of her land, but which, due to a flooding problem, was removed by the drainage board. Nevertheless, Rimmer testified that none of the property owned by Platt is landlocked.

It is clear from the plain language of the Act of Partition that the servitude was personal. “A personal servitude is a charge on a thing for the benefit of a person.” La,Civ.Code art. 534. “The personal servitude of right of use confers in favor of a person a specified use of an estate' less than full enjoyment.” ULa.Cov.Code art. 639. Moreover, “[t]he [556]*556right of use is transferable unless prohibited by law or contract.” La.Civ.Code art. 643. The servitude created in the Act of Partition created rights in favor of all of the siblings over all roads and passages on the property. All of the siblings were granted the same broad rights over all of the roads and passageways. This is contrary to a predial servitude, which creates a charge on the servient estate in favor of a dominant estate. La.Civ.Code art. 646. The Act of Partition contains none of the language of La.Civ.Code art. 646 indicating that it would be a predial servitude in which a dominant estate receives benefit from a servient estate. We affirm the trial court’s finding that the Act of Partition created a personal servitude in favor of the siblings. This finding, however, did little to define Platt’s right to the use of the road as a party with a personal servitude over it.

Therefore, the issue before us is the extent of Platt’s right of use and the transferability of her right of use. Rimmer testified that he places chains on the access road to prevent hunters from illegally hunting on their land and young kids from trespassing. However, he allows his tenant farmers to use the road and also allows Louisiana Department of Wildlife and Fisheries employees and pig hunters to access the road in attempts to control a wild boar problem. He readily admitted that he has refused to allow real estate agents to use the road, stating that the road is not meant to be traveled by ordinary vehicles.

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Bluebook (online)
203 So. 3d 553, 16 La.App. 3 Cir. 223, 2016 La. App. LEXIS 1878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/platt-v-rimmer-lactapp-2016.