Corley v. C&J Frye Props., LLC

• Decision Date: 19 August 2015
• Docket Number: No. 49,969–CA.,49,969–CA.
• Citation: 176 So.3d 439
• Parties: Alvah E. CORLEY and Cathy Corley, Plaintiffs–Appellees v. C & J FRYE PROPERTIES, LLC, Carlton Frye and Jan T. Frye, Defendants–Appellants.
• Court: Court of Appeal of Louisiana — District of US

176 So.3d 439

Alvah E. CORLEY and Cathy Corley, Plaintiffs–Appellees

v.C & J FRYE PROPERTIES, LLC, Carlton Frye and Jan T. Frye, Defendants–Appellants.

No. 49,969–CA.

Court of Appeal of Louisiana, Second Circuit.

Aug. 19, 2015.

Rehearing Denied Sept. 24, 2015.

John C. Campbell, for Appellants C & J Frye Properties, LLC, Carlton Frye, Jan T. Frye.

Kyle McCotter, by Patrick R. Jackson, J. Kyle McCotter, Henry Milling Bernstein, for Appellees Alvah E. Corley, Cathy Corley.

Gilbert R. Sims, Carol Ann Sims, Hallie B. Sims, Pro Se Appellee.

Opinion

LOLLEY, J.

C & J Frye Properties, LLC, Carlton Frye, and Jan T. Frye (the “Fryes”) appeal a judgment by the Twenty–Sixth Judicial District Court, Parish of Webster, State of Louisiana, in favor of Alvah E. Corley and Cathy Corley (the “Corleys”). For the following reasons, we affirm the trial court's judgment.

Facts

This is a right of passage lawsuit. The Corleys own two tracts of land: a tract where they live (the “Corley Home”), and a tract east of the Corley Home consisting of 54 acres (“The 54”). These two tracts of land are not contiguous, and The 54 does not border a public roadway—it is land-locked. The Corley Home and The 54 are separated by two tracts of land: (1) a tract owned by Carol Ann Sims Tabor, Hallie Sims and Gilbert Sims (the “Sims–Tabor Tract”); and, (2) a tract owned by Carlton and Jan Frye (the “Frye Tract”), 110 acres which is immediately adjacent and east of the Corley Home. The Corley Home and the Frye Tract share a boundary which is approximately 564 feet long.

The Frye Tract is not contiguous to The 54. A survey showing the precise tracts in question (and which was introduced into evidence at trial) is made an addendum to this opinion.

Historically, The 54 has been accessed by a gravel road that runs from the public roadway, crossing east through the Corley Home, over the boundary onto the Frye Tract, and continuing east to a pipeline servitude. At that point, the gravel road turns south along the pipeline servitude, traveling through the Frye Tract and the Sims–Tabor Tract until it reaches The 54. The roadway along the pipeline servitude was reserved to the landowners when that servitude was originally granted.

The impetus of this litigation was the placement of a locked gate by Carlton Frye on the boundary between the Corley Home and the Frye Tract, blocking the gravel road. As a result, the Corleys were unable to access The 54 by crossing the Frye Tract as they had been doing for many years. The owners of the Sims–Tabor Tract have given permission to the Corleys to cross that property, but no improved roadway exists.

The Corleys filed suit against the Fryes seeking: (1) a preliminary writ of injunction prohibiting the Fryes from taking any action to deny the Corleys' access across the Frye Tract; (2) a judgment declaring The 54 to be an “enclosed estate” as defined by La. C.C. arts. 689–696; and, alternatively, (3) to find a servitude of passage in favor of the Corleys exists across the Fryes' property as a result of 30 years' acquisitive prescription.¹After a trial of the matter, the trial court entered judgment in favor of the Corleys, determining The 54 to be an enclosed estate, granting them a right of passage across the Frye Tract, and ordering the Corleys to compensate the Fryes $400.00 annually for the right of passage. The Fryes appeal that judgment.

Discussion

Standard of Review

The trial court's factual findings are subject to reversal if the appellate court finds no reasonable factual basis exists for the findings of fact and determines the record establishes the trial court's findings are manifestly erroneous or clearly wrong. Allerton v. Broussard,2010–2071 (La.12/10/10), 50 So.3d 145, recon. denied,2010–2071 (La.01/28/11), 56 So.3d 974; Stobart v. State, Through Dept. of Transp. & Dev.,617 So.2d 880 (La.1993). The appellate court does not determine whether the trier of fact was right or wrong. Rather, the issue to be resolved is whether the trier of fact's conclusion was reasonable based on a review of the entire record. Stobart, supra.If the trier of fact's findings are reasonable in light of the record reviewed in its entirety, then reversal is not warranted. Id.This is so even if the appellate court, sitting as the trier of fact, would have weighed the evidence differently. Id.Where there are two permissible views of the evidence, “the choice between them cannot be manifestly erroneous or clearly wrong.” Id.at 883.

Enclosed Estate

On appeal, the Fryes raise two related assignments of error. First, they argue that the trial court erred in determining that The 54 is an enclosed estate as defined by La. C.C. arts. 689–696. According to the Fryes, The 54 is not an enclosed estate, because the Corleys have permission to access through the Sims–Tabor Tract. The Fryes note that Gilbert Sims testified at trial that the Corleys have permission to traverse his property in order to reach The 54. The Fryes argue that an estate is not enclosed if the owners have access to a public road by means of permission of a neighbor. They maintain that Sims' testimony precludes a finding that The 54 is enclosed, and the trial court's finding to the contrary was in error. We disagree.

As explained by Professor Yiannopoulos:

The legal servitude of passage under Article 689is a limitation on the ownership of lands surrounding an enclosed estate. By virtue of that servitude, the owner of the servient estate is bound to provide to the owner of an enclosed estate a passage for indemnity. The passage, however, must be fixed. That is, the area over which the right of way will be located is to be designated by agreement of the parties or by judicial decision. The area over which the right of way is located, as fixed by agreement or by judicial decision, is a part of the servient estate burdened by a conventional servitude of passage. The burden of the forced passage is the legal servitude, and the fixing of the passageway creates a conventional servitude of right of way. (Citations omitted).

A.N. Yiannopoulos, The Legal Servitude of Passage, 71 Tul. L.Rev. 1, 4–5 (1996).

An estate is “enclosed” if it has no access to a public road. La. C.C. art. 689. An estate will be considered enclosed where its access is insufficient, as well as when there is no access. Rockholt v. Keaty,256 La. 629, 637–38, 237 So.2d 663, 666 (1970). Professor Yiannopoulos also noted:

The Civil Code contemplates a passage that is suitable for access to a public road by vehicular traffic in all seasons. Accordingly, an estate is enclosed if it has access to a public road through a passageway suitable for pedestrians only, or through a road that is unsuitable for vehicular traffic during certain seasons. (Citations omitted).

71 Tul. L.Rev. at 12 (1996).

In Watson v. Scott,324 So.2d 508, 510 (La.App. 2d Cir.1975), this court determined that roads leading to the plaintiff's property were either no longer passable, or impassable during inclement weather, rendering the plaintiff's property an enclosed estate. In Morgan v. Culpepper,324 So.2d 598, 605 (La.App. 2d Cir.1975), writs denied,326 So.2d 377, 378 (La.1976), this court found the plaintiff's property was enclosed because the roads which the defendants alleged provided access to public roads were in low-lying areas and impassable part of the year due to flooding from a nearby bayou.

Here, passage to The 54 through the Frye Tract has historically been provided through agreement of the parties; thus, while the access existed to The 54, although land-locked, it was not an enclosed estate. However, when the Fryes withdrew their permission for the Corleys' passage over the Frye tract, there was no more agreement. While the Corleys might exercise access to The 54 across the Sims–Tabor Tract with the Sims' permission, the evidence presented at trial indicates that this passage is not sufficient access-portions of that access are subject to being inundated with water. The trial court noted:

[T]he cutover from the Sims' property is not an actual road, not developed as a road, and although sufficient to cross at least most times of the year there is a sufficient issue of drainage. It suffices as a natural drain to the south. In wet season can certainly cause problems as access in and out of the property.

These findings by the trial court were reasonable and within its discretion. Thus, passage over the Sims–Tabor Tract to The 54 was insufficient, and Frye's action in blocking Corley from traversing the Frye Tract rendered The 54 enclosed. The trial court's finding that The 54 is an enclosed estate was not in error.

Location of Right of Passage

In their second assignment of error, the Fryes maintain that the trial court erred in its finding that the Corleys were entitled to a right of passage over the Frye Tract. The Fryes argue that passage over the Frye Tract is not the shortest route to the public road as mandated by La. C.C. art. 692, which governs location of the right of passage.

The owner of an enclosed estate may not demand a right of passage at the location of his choice, but rather, the right of passage “generallyshall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands.” La. C.C. art. 692(emphasis added). Thus, as recognized by the legislature in its use of the word “generally,” there are situations that allow the right of passage to be imposed on an estate that does not provide the shortest route. Cash Point Plantation Equestrian Ctr., Inc. v. Shelton,40,647 (La.App.2d Cir.01/25/06), 920 So.2d 974, 977. The circumstances of each case will determine the location of the servitude. Dickerson v. Coon,46,423 (La.App.2d Cir.08/10/11), 71 So.3d 1135, 1139. Upon determining which estate will be burdened with the right of passage, courts usually engage in a balancing test to determine where on the servient estate the right of passage should be located. Davis v. Culpepper,34,736 (La.App.2d...