DeFelice Land Corp. v. Citrus Lands of Louisiana, Inc.

Citation330 So.2d 631
Decision Date13 April 1976
Docket NumberNo. 7377,7377
PartiesDeFELICE LAND CORPORATION v. CITRUS LANDS OF LOUISIANA, INC.
CourtCourt of Appeal of Louisiana (US)

Lemle, Kelleher, Kohlmeyer & Matthews, Vance E. Ellefson and William S. Penick, New Orleans, for plaintiff-appellant.

Porteous, Toledano, Hainkel & Johnson, William W. Miles, New Orleans, for defendant-appellee.

Before GULOTTA and SCHOTT, JJ., and P. C. ST. AMANT, Assigned Judge.

SCHOTT, Judge.

Plaintiff, alleging that it had no means of ingress or egress to its land, which was surrounded by defendant's land, brought this suit for designation of a servitude of passage across defendant's land, pursuant to LSA-C.C. Art. 699 and, alternatively, for maintenance and recognition of a conventional servitude across defendant's property acquired by plaintiff's ancestor in title. Defendant admitted that plaintiff was entitled to a servitude of passage, and the only issue became the proper location of the right-of-way.

The titles of both pieces of property were once held by a common ancestor in title who included in the act of sale to plaintiff's ancestor the following:

'. . . anything in this act of sale to the contrary notwithstanding the vendee, his heirs and assigns, shall have ingress and egress to the herein conveyed property over and across the full depth of the said conveyed property in front of the forty arpent line.'

For many years this right of passage was exercised by plaintiff and its ancestors in title over a shell road running across a piece of defendant's property. This road commenced at a bridge over a drainage canal into plaintiff's property on the southwest and Louisiana Highway 23 on the northeast end of this road. At some point in time after defendant purchased the property to the northeast of plaintiff's, a gate was installed on the southwest side of the road, preventing plaintiff from using it for access to and egress from its property. This is the location which plaintiff championed at the trial of the case for the exercise of the servitude.

Defendant championed another location some distance southeast of the first location which would connect plaintiff's property to Lake Hermitage Road at a point some distance from its intersection with Highway 23.

The evidence shows that the distance between plaintiff's land and Highway 23, at the original location designated as point A, would be 580 feet, while the distance between plaintiff's land and the Lake Hermitage Road, designated as point B, would be 529.84 feet. In either case plaintiff would be required to construct a bridge across the canal dividing its property from defendant's. However, Highway 23 is paved with black-top while Lake Hermitage Road is a shell surfaced road. If the right-of-way were located at point B its use would entail traveling along Lake Hemitage Road for about two miles before reaching Highway 23. Thus, the evidence shows that the location of the servitude at point B would be least injurious to defendant, while location at point B would not be equally convenient to plaintiff as would be location at point A. There is a dispute as to whether the Lake Hermitage Road is a public road or not, with the trial judge finding that it was formerly a private road but was now a public road, made public by use and maintained by the Parish of Plaquemines. While there is no evidence in the record to support this finding, for our purposes here, we will assume that Lake Hermitage Road is a public road in the implementation of the Civil Code articles governing the rights of the parties.

The trial judge decided the case in favor of defendant on the basis of LSA-C.C. Art. 700, which provides as follows:

'The owner of the estate, which is surrounded by other lands, has no right to exact the right of passage from which of his neighbors he chooses.

'The passage shall be generally taken on the side where the distance is the shortest from the inclosed estate to the public road .

'Nevertheless, it shall be fixed in the place the least injurious to the person on whose estate the passage is granted.'

Plaintiff contends that C.C. Art. 777 governs the situation:

'The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient.

'Thus he can not change the condition of the premises, nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance.

'Yet if this primative assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer the owner of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due can not refuse it.'

The nub of the controversy is whether the servitude was already established at point A, in which case plaintiff is entitled to maintenance and recognition of the servitude at that point since point B is not 'a place equally convenient' as...

To continue reading

Request your trial
6 cases
  • U.S. v. DeFelice, 80-3397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 9 Abril 1981
    ......Donald Mileur, U. S. Dept. of Justice, Land & Natural Resources Division, Main Justice, ... Court for the Eastern District of Louisiana. .         Before BROWN, POLITZ and ... only through the property owned by Citrus Lands of Louisiana, the purchase agreement ... a private individual in 1959 by Citrus Lands Inc. When the DeFelices refused to sell their ... Page 1171 . Land Corp. v. Citrus Land of La., 330 So.2d 631 (La.App. ......
  • Holder v. Serodino, M2014-00533-COA-R3-CV
    • United States
    • Court of Appeals of Tennessee
    • 16 Septiembre 2015
    ...Id.; see also Wilson v. DeGenaro, 415 A.2d 1334, 1335 (Conn. Super. Ct. 1979); DeFelice Land Corp. v. Citrus Lands of La., Inc., 330 So. 2d 631, 634 (La. Ct. App. 1976); Taylor v. Solter, 231 A.2d 697, 701 (Md. 1967); Miller v. Snedeker, 101 N.W.2d 213, 215 (Minn. 1960); James v. Chicago Ti......
  • Brian v. Bowlus, 67728
    • United States
    • Supreme Court of Louisiana
    • 15 Diciembre 1980
    ......No. 67728. Supreme Court of Louisiana". Dec. 15, 1980. On Rehearing May 29, 1981.    \xC2"... Robert Bowlus a certain enclosed parcel of land with a "servitude of way and passage" across the ... purchased to an access road through lands owned by a third party so that the Brian estate ...Page 549.         DeFelice Land Corp. v. Citrus Lands of Louisiana, Inc. 9 ......
  • Ogden v. Bankston, 80-C-2281
    • United States
    • Supreme Court of Louisiana
    • 18 Mayo 1981
    ......No. 80-C-2281. Supreme Court of Louisiana. May 18, 1981. Page 1039.         Curtis ... of passage to Greenwell Springs Road over land now owned by defendants, Walter R. Bankston and ... of passage, it would have been enclosed by lands belonging to others, thereby diminishing its ...Alexandria Golf & Country Club, Inc"., 344 So.2d 1080 (La.App. 3d Cir. 1977).     \xC2"... See, e. g., Dixie Electric Membership Corp. v. Jones, 360 So.2d 216 (La.App. 1st Cir. 1978); DeFelice Land Corp. v. Citrus Lands of Louisiana, Inc., ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT