William D. Davas v. Lyndon Saia

• Court: Louisiana Court of Appeal
• Decided: October 6, 2023
• Docket: 2023-CA-0090
• Status: Published

Opinion

WILLIAM D. DAVAS * NO. 2023-CA-0090

VERSUS * COURT OF APPEAL

LYNDON SAIA * FOURTH CIRCUIT

* STATE OF LOUISIANA

*

* *******

RLB

BELSOME, J. CONCURS IN PART AND DISSENTS IN PART WITH REASONS.

I concur in all respects with the majority regarding the exception of

prescription. However, I would affirm the district court’s ruling regarding the

injunctive relief for the reasons below.

I agree with the majority that the manifest error rule applies as the proper

standard of review in this case.1 After both sides had rested and the matter was

submitted, the trial judge made the following observations as the basis for his

decision:

After listening to all the evidence, it's readily apparent that the bamboo is extending over [appellee’s] property and into [appellee’s] property and had to be trimmed at the expense of the neighbor, which would be Mr. Saia. Now, the part about does "not interfere with the enjoyment," I think that's been shown that it does. …Now, one thing I also have found, based upon the testimony of Mr. Tubre as well as Mr. Sanders, that these bulbs of Emerald bamboo were probably planted too close to the fence. And if the clump is if it was mature or if it was still maturing, there has been intrusion into Mr. Davas's yard. Trial Tr. pp. 78-79, Oct. 18, 2022. In reviewing the transcript, I find that there is ample evidence to support

each of the trial judge’s conclusions. Because the evidence showed that the

bamboo was planted too close to the fence, and shoots were in fact sprouting in the

1 New Jax Condominiums Ass’n, Inc. v. Vanderbilt New Orleans, LLC, 2016-0643, p. 13 (La.

App. 4 Cir. 4/26/17), 219 So.3d 471, 481. appellee’s yard, it does appear that the only effective remedy is the removal of the

bamboo. Therefore, I would affirm the grant of the injunctive relief afforded by

the district court.