26,060 La.App. 2 Cir. 8/17/94, Williams v. Wiggins
| Decision Date | 17 August 1994 |
| Citation | 641 So.2d 1068 |
| Parties | 26,060 La.App. 2 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Professional Law Corp. by Paul V. Myers-Ringgold, for appellant.
Goff, Caskey, Davis & Fallin by H. Russell Davis, Arcadia, for appellee.
Before NORRIS and WILLIAMS, JJ., and WESTERFIELD, J. Pro Tem.
Landowners appeal a trial court decision finding no predial servitude existed in their favor across their neighbors' land and therefore denying them a permanent injunction and monetary damages. Neighbors appeal the trial court's assessment of all costs to them, such assessment being predicated upon neighbors filing a peremptory exception of no cause of action on the date of trial which the trial court later found meritless. We amend the assessment of costs, and as amended we affirm.
Mr. and Mrs. Stevie Beckham leased portions of their tract of land on Lake Bistineau to others who built fishing camps on the property. After Stevie Beckham died, his son Billy had the property surveyed in July of 1981, intending to subdivide the property and sell the parcels to the lessees. The manner of subdivision gave every parcel access to at least one of two nearby Bienville Parish roads.
Plaintiffs-appellants Charles and Eloise Williams, Larry and Givonna Todd, and Floy Shamburger as well as defendants-appellees Bart and Emogene Wiggins purchased tracts of the land subdivided by Billy Beckham. Plaintiffs-appellants Kermit and Myrna Westmoreland's tract is adjacent to the Beckham lots, but Beckham is not their predecessor in interest. The owners of Lot 12 (Williams), Lot 13 (now Todd), and Lot 14 (Shamburger), as well as the owners of the Westmoreland property, traveled a drive across Lot 10 (owned by Wiggins) to reach their respective properties from before the date of purchase until the Wigginses erected a fence across the drive in January of 1992. Plaintiffs-appellants brought suit in the district court, claiming a predial servitude existed in their favor across the Wigginses' Lot 10. They sought to enjoin the Wigginses permanently from denying them access to the road.
Mr. Wiggins first leased property from his brother-in-law and sister, Mr. and Mrs. Stevie Beckham, in the 1950's. Both parish roads as well as the drive were in existence, but were merely "pig trails." In a two week span in 1981, Billy Beckham sold Lots 10, 12, 13, and 14 to the parties in this action or their predecessors. Mr. Wiggins continued to allow the owners of the lots to the east to use the drive across his land for access. In 1984 or 1985, Mr. Wiggins informed the plaintiff-appellants they could continue to cross his land, but would have to cross in another place. At this time the drive was moved to a steeper area near the property line between Lots 10 and 12. Below is a composite of the maps in the record:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
When plaintiffs-appellants complained about the condition of the drive, the Wigginses told them they were not responsible for maintaining the drive and that whatever was done, plaintiffs-appellants would have to do. Plaintiffs-appellants put shingle tabs on the drive, and later blacktopped part of it one weekend when the Wigginses were gone. In January, 1992, Mr. Wiggins erected a fence across the drive, having given notice of his intent to do so a month earlier.
The drive across the Wigginses' property is not the only access to the plaintiffs-appellants' lots. Each is accessible by a parish road; however, that road is on a bluff. Plaintiffs-appellants' houses are constructed on a lower level near the lake, making the drive a more convenient method of reaching their property.
The trial court held no predial servitude existed, and therefore refused to grant an injunction. However, all costs were assessed to the Wigginses for delaying the trial on the merits by filing a peremptory exception of no cause of action on the date of trial, which the trial court later found to be without merit.
Plaintiffs-appellants raise two assignments of error on appeal. First they argue the trial court erred in failing to find a servitude by title was created in the deed of Lot 10 from Billy Beckham to the Wigginses. Next they assign as error the trial court's failure to grant any relief.
The deed conveying Lots 9 and 10 to the Wigginses contained this language:
Vendees agree that they will not deny free access to adjoining lots and that the drainage ditch will not be altered so as to divert water across neighbors.
Billy Beckham, who drafted all the deeds himself, testified he intended this language to refer to the drive across Lot 10 to Lots 12, 13, and 14, and did not intend to refer to the parish road. Additionally, plaintiffs-appellants argue that the drive across Lot 10 has been used since the 1950's for access to the rear lots, implying an apparent servitude was created by acquisitive prescription or by destination of the owner. The trial court in its reasons for judgment specifically held no servitude by title was created, nor was an apparent servitude by acquisitive prescription created.
The Wigginses testified they believed the language of the restriction referred to the parish roads because the property lines extend to the center of the parish roads and the price of the property was determined by footage. They further assert no servitude by acquisitive prescription was created because the use of the drive was at their pleasure, meant to be used only until each of the owners could build driveways from the parish road to their property.
The Wigginses assign as error the trial court's assessment of all costs to them. They claim the implication of this action is that the Wigginses are to be punished for filing the peremptory exception of no cause of action. They concede no fault for this filing; but even assuming they were somehow at fault, they claim at most they should only have been assessed such costs as the delay caused.
Plaintiffs-appellants assert they are the owners of a predial servitude across the Wigginses' property. A predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners. La.C.C. Art. 646. Servitudes are restraints on the free disposal and use of property, and are therefore disfavored in the eyes of the law. Hence, doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate. La.C.C. Art. 730; Buras Ice Factory, Inc. v. Dept. of Highways, 235 La. 158, 103 So.2d 74 (1958).
An apparent servitude may be acquired in one of three ways: by title, by destination of the owner, or by acquisitive prescription. La.C.C. Art. 740. The trial court found no predial servitude was created by title or by acquisitive prescription.
A predial servitude may be created by title where the grantor sufficiently expresses an intent to create such servitude. Here the deed from Billy Beckham to the Wigginses stated, "Vendees agree they will not deny free access to adjoining lots." We note that the term adjoining means "adjacent to"; therefore, if a servitude were created by title, it is only in favor of the Williamses. If the grantor meant to include the lots farther east now belonging to the Todds, Mrs. Shamburger, and the Westmorelands, he should have used language indicating such.
Servitudes claimed under title are never sustained by implication; the title creating them must be express as to their nature and extent, as well as to the estate that owes them and the estate to which they are due. Buras, supra. Here, the parties to the first deed are not in agreement about the meaning to be given the cited language.
The trial court found, and we agree, that this ambiguity raises a doubt as to whether a servitude existed. This doubt triggered the rule of Article 730, requiring such doubt to be resolved in favor of the servient estate. The trial court correctly found no servitude was created by deed. Thus plaintiffs-appellants have no predial servitude by title.
A predial servitude may be acquired by acquisitive prescription. The one who claims...
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