STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-957
THOMAS F. THIELS, ET UX.
VERSUS
JONAS JERON DENNIS, ET UX.
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 230,817 HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and James T. Genovese, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.
Ricky L. Sooter George I. Fine Provosty, Sadler, deLaunay, Fiorenza & Sobel P. O. Drawer 1791 Alexandria, LA 71309-1791 Telephone: (318) 445-3631 COUNSEL FOR: Plaintiffs/Appellants - Thomas F. Thiels and Virginia Hanes Thiels
James E. Uschold 909 Poydras Street - Suite 2520 New Orleans, LA 70112 Telephone: (504) 525-4361 COUNSEL FOR: Defendants/Appellees - Jonas Jeron Dennis and Helen Winn Dennis Randal Bryan Tannehill Tannehill & Sylvester 2900 Military Highway Pineville, LA 71360 Telephone: (318) 641-1550 COUNSEL FOR: Defendants/Appellees - Jonas Jeron Dennis and Helen Winn Dennis THIBODEAUX, Chief Judge.
Plaintiffs, Thomas and Virginia Thiels, seek to enforce a servitude of
passage and to prohibit a neighboring property owner from interfering with that
servitude. Though the trial court ruled that the neighboring property owners’ gate
crossing the servitude interfered with the right of passage, the trial court allowed the
brick columns erected on the servitude to remain. Mr. and Mrs. Thiels appeal this
portion of the trial court’s judgment because the brick columns unlawfully encumber
the right of passage and, thus, must be removed. For the following reasons, we affirm
in part and reverse in part in favor of Mr. and Mrs. Thiels. The title creating the
servitude is clear regarding the width of the servitude of passage.
I.
ISSUE
We must decide whether the trial court erred in refusing to order the
demolition of the brick columns erected on the servitude of passage.
II.
FACTS AND PROCEDURAL HISTORY
On October 8, 1979, Judy Thiels Snow and James A. Snow conveyed a
twenty-four acre1 tract of land in Rapides Parish to Mr. and Mrs. Thiels. That same
day, the Snows granted a fifty-foot wide predial servitude in favor of the twenty-four
acres acquired by Mr. and Mrs. Thiels. Thereafter, the Snows conveyed to them an
additional tract of land traversed by the aforementioned predial servitude.
In May 1982, James A. Snow and Judy M. Thiels conveyed the five acre
servient estate by cash sale to Hardy LaCour. The survey attached to the sale to
LaCour clearly shows the fifty-foot wide predial servitude at issue. In November
1 Specifically, the Snows conveyed 24.1 acres of land to Mr. and Mrs. Thiels. 2006, the LaCour heirs sold the servient estate to Defendants, Jonas and Helen
Dennis. The legal description in the Act of Cash Sale of the servient estate to Mr. and
Mrs. Dennis specifically refers to the original survey which shows the predial
servitude.
The dominant estate has been farmed since Mr. and Mrs. Thiels’ original
acquisition of the property in 1979. Beginning in 1998, they leased the dominant
estate to Thomas Vanderlick. Vanderlick, his various family members, and vendors
have used the predial servitude of passage to gain access to the dominant estate.
In September 2007, Thomas Thiels discovered that Mr. and Mrs. Dennis
were erecting brick columns and a gate across the servitude of passage. Mr. Thiels
advised the work crew of his servitude, but the work continued. Mr. and Mrs. Dennis
then placed a locked gate on the servitude area.
Mr. and Mrs. Thiels filed a petition for possession and preliminary and
permanent injunction seeking removal of the obstruction. The trial court issued a
preliminary injunction restraining Mr. and Mrs. Dennis, or anyone acting on their
behalf, from maintaining or erecting any fences, gates, or improvements within the
predial servitude of passage. The trial court ordered them to restore access to the
predial servitude within fifteen days.
The trial court held a trial on the permanent injunction. The trial court
entered a permanent injunction directing the removal of the gates but allowing the
servient estate to maintain the brick columns. The court referenced testimony from
Vanderlick regarding his use of the servitude2 and reasoned that the brick columns
did not impair Vanderlick’s current use of the servitude.
2 Specifically, Vanderlick testified that he did not bring large farm equipment through the servitude of passage.
2 III.
LAW AND DISCUSSION
Standard of Review
This case poses a question of law, as it involves the interpretation of
codal articles. Thus, the appropriate standard of review is de novo.
An appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court’s decision was based on its erroneous interpretation or application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.
Domingue v. Bodin, 08-62, p. 2 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657
(citations omitted).
Moreover, under the de novo standard of review, the appellate court
gives no additional weight to the trial court but, instead, conducts a de novo review
and renders judgment on the record. Id. Accordingly, we will review the record in
its entirety to determine whether the trial court’s decision was legally correct.
Use and Extent of the Predial Servitude
Louisiana Civil Code Article 748 governs this servitude of passage,
established by title. This article states, in part, “[t]he owner of the servient estate may
do nothing tending to diminish or make more inconvenient the use of the servitude.”
Moreover, as the Louisiana First Circuit Court of Appeal stated in Dupont v. Hebert,
06-2334, pp. 8-9 (La.App. 1 Cir. 2/20/08), 984 So.2d 800, 807, writ denied, 08-640
(La. 5/9/08), 980 So.2d 695 (citations omitted):
[T]he use and extent of a predial servitude are regulated by the title by which they are created and in the absence of such regulation, they are governed by the rules set forth in LSA-C.C. arts. 698 through 774. It is only where the title does not specify the extent of the right and the mode of its exercise that the extent of the servitude of passage is
3 subject to interpretation based on what is suitable for the kind of traffic necessary for the reasonable use of the dominant estate.
Thus, when a predial servitude is created by contract, courts have found that the title by which the servitude was created regulated the use and extent of such a servitude. Furthermore, only if the title was silent as to the extent and manner of use of the servitude have the courts resorted to an examination of the intent of the parties to determine the purpose of the servitude. When the title provides the exact dimensions of the area affected by the servitude, that contract must be given full effect. The owner of the servient estate may not, by unilateral action, effectively take over the unused areas of the servitude by establishing permanent structures thereon.
Louisiana Civil Code Article 749 explains: “[i]f the title is silent as
to the extent and manner of use of the servitude, the intention of the parties is to be
determined in light of its purpose.” Here, title created the servitude in question. It
is not silent regarding the extent of the servitude.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-957
THOMAS F. THIELS, ET UX.
VERSUS
JONAS JERON DENNIS, ET UX.
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 230,817 HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and James T. Genovese, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.
Ricky L. Sooter George I. Fine Provosty, Sadler, deLaunay, Fiorenza & Sobel P. O. Drawer 1791 Alexandria, LA 71309-1791 Telephone: (318) 445-3631 COUNSEL FOR: Plaintiffs/Appellants - Thomas F. Thiels and Virginia Hanes Thiels
James E. Uschold 909 Poydras Street - Suite 2520 New Orleans, LA 70112 Telephone: (504) 525-4361 COUNSEL FOR: Defendants/Appellees - Jonas Jeron Dennis and Helen Winn Dennis Randal Bryan Tannehill Tannehill & Sylvester 2900 Military Highway Pineville, LA 71360 Telephone: (318) 641-1550 COUNSEL FOR: Defendants/Appellees - Jonas Jeron Dennis and Helen Winn Dennis THIBODEAUX, Chief Judge.
Plaintiffs, Thomas and Virginia Thiels, seek to enforce a servitude of
passage and to prohibit a neighboring property owner from interfering with that
servitude. Though the trial court ruled that the neighboring property owners’ gate
crossing the servitude interfered with the right of passage, the trial court allowed the
brick columns erected on the servitude to remain. Mr. and Mrs. Thiels appeal this
portion of the trial court’s judgment because the brick columns unlawfully encumber
the right of passage and, thus, must be removed. For the following reasons, we affirm
in part and reverse in part in favor of Mr. and Mrs. Thiels. The title creating the
servitude is clear regarding the width of the servitude of passage.
I.
ISSUE
We must decide whether the trial court erred in refusing to order the
demolition of the brick columns erected on the servitude of passage.
II.
FACTS AND PROCEDURAL HISTORY
On October 8, 1979, Judy Thiels Snow and James A. Snow conveyed a
twenty-four acre1 tract of land in Rapides Parish to Mr. and Mrs. Thiels. That same
day, the Snows granted a fifty-foot wide predial servitude in favor of the twenty-four
acres acquired by Mr. and Mrs. Thiels. Thereafter, the Snows conveyed to them an
additional tract of land traversed by the aforementioned predial servitude.
In May 1982, James A. Snow and Judy M. Thiels conveyed the five acre
servient estate by cash sale to Hardy LaCour. The survey attached to the sale to
LaCour clearly shows the fifty-foot wide predial servitude at issue. In November
1 Specifically, the Snows conveyed 24.1 acres of land to Mr. and Mrs. Thiels. 2006, the LaCour heirs sold the servient estate to Defendants, Jonas and Helen
Dennis. The legal description in the Act of Cash Sale of the servient estate to Mr. and
Mrs. Dennis specifically refers to the original survey which shows the predial
servitude.
The dominant estate has been farmed since Mr. and Mrs. Thiels’ original
acquisition of the property in 1979. Beginning in 1998, they leased the dominant
estate to Thomas Vanderlick. Vanderlick, his various family members, and vendors
have used the predial servitude of passage to gain access to the dominant estate.
In September 2007, Thomas Thiels discovered that Mr. and Mrs. Dennis
were erecting brick columns and a gate across the servitude of passage. Mr. Thiels
advised the work crew of his servitude, but the work continued. Mr. and Mrs. Dennis
then placed a locked gate on the servitude area.
Mr. and Mrs. Thiels filed a petition for possession and preliminary and
permanent injunction seeking removal of the obstruction. The trial court issued a
preliminary injunction restraining Mr. and Mrs. Dennis, or anyone acting on their
behalf, from maintaining or erecting any fences, gates, or improvements within the
predial servitude of passage. The trial court ordered them to restore access to the
predial servitude within fifteen days.
The trial court held a trial on the permanent injunction. The trial court
entered a permanent injunction directing the removal of the gates but allowing the
servient estate to maintain the brick columns. The court referenced testimony from
Vanderlick regarding his use of the servitude2 and reasoned that the brick columns
did not impair Vanderlick’s current use of the servitude.
2 Specifically, Vanderlick testified that he did not bring large farm equipment through the servitude of passage.
2 III.
LAW AND DISCUSSION
Standard of Review
This case poses a question of law, as it involves the interpretation of
codal articles. Thus, the appropriate standard of review is de novo.
An appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court’s decision was based on its erroneous interpretation or application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.
Domingue v. Bodin, 08-62, p. 2 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657
(citations omitted).
Moreover, under the de novo standard of review, the appellate court
gives no additional weight to the trial court but, instead, conducts a de novo review
and renders judgment on the record. Id. Accordingly, we will review the record in
its entirety to determine whether the trial court’s decision was legally correct.
Use and Extent of the Predial Servitude
Louisiana Civil Code Article 748 governs this servitude of passage,
established by title. This article states, in part, “[t]he owner of the servient estate may
do nothing tending to diminish or make more inconvenient the use of the servitude.”
Moreover, as the Louisiana First Circuit Court of Appeal stated in Dupont v. Hebert,
06-2334, pp. 8-9 (La.App. 1 Cir. 2/20/08), 984 So.2d 800, 807, writ denied, 08-640
(La. 5/9/08), 980 So.2d 695 (citations omitted):
[T]he use and extent of a predial servitude are regulated by the title by which they are created and in the absence of such regulation, they are governed by the rules set forth in LSA-C.C. arts. 698 through 774. It is only where the title does not specify the extent of the right and the mode of its exercise that the extent of the servitude of passage is
3 subject to interpretation based on what is suitable for the kind of traffic necessary for the reasonable use of the dominant estate.
Thus, when a predial servitude is created by contract, courts have found that the title by which the servitude was created regulated the use and extent of such a servitude. Furthermore, only if the title was silent as to the extent and manner of use of the servitude have the courts resorted to an examination of the intent of the parties to determine the purpose of the servitude. When the title provides the exact dimensions of the area affected by the servitude, that contract must be given full effect. The owner of the servient estate may not, by unilateral action, effectively take over the unused areas of the servitude by establishing permanent structures thereon.
Louisiana Civil Code Article 749 explains: “[i]f the title is silent as
to the extent and manner of use of the servitude, the intention of the parties is to be
determined in light of its purpose.” Here, title created the servitude in question. It
is not silent regarding the extent of the servitude. It is undisputed that the title created
a servitude of passage of fifty feet on the servient estate and that the brick columns
constructed by Mr. and Mrs. Dennis lie within that area. The evidence reflects that
construction of the brick columns narrows the passage from fifty feet to eleven feet.
The law is clear and unambiguous. Mr. and Mrs. Thiels are entitled to
free and unencumbered use of their servitude. Mr. and Mrs. Dennis have no legal
basis for either constructing a gate across the servitude or narrowing the servitude
from fifty feet to eleven feet. Construction of the gate and columns impermissibly
diminishes the use of the servitude by Mr. and Mrs. Thiels.
The trial court required only that Mr. and Mrs. Dennis remove the gate
but allowed the brick columns to remain. The trial court’s reasoning that the current
use of the servitude by Vanderlick did not warrant removal of the columns is
inconsistent with La.Civ.Code arts. 748 and 749. Because the title contract clearly
allowed for fifty-foot wide servitude of passage on the servient estate, the trial court
4 erred by interpreting testimony regarding use of the servitude. Dupont, 984 So.2d
800. No doubt exists that Mr. and Mrs. Thiels are entitled to clear passage for the full
width of fifty feet. Thus, the judgment of the trial court with regard to the brick
columns is reversed, and Mr. and Mrs. Dennis are ordered to remove the columns
within fourteen days of the finality of this judgment.
IV.
CONCLUSION
Based upon the foregoing, we reverse the portion of the judgment of the
trial court regarding the brick columns erected on the servient estate. We affirm the
remaining portions of the trial court’s judgment. Costs of this appeal are assessed to
Jonas Jeron Dennis and Helen Winn Dennis.