Carpenter v. Guillory Inv., Inc.
| Decision Date | 27 February 2019 |
| Docket Number | CA 18-571 |
| Citation | 266 So.3d 581 |
| Parties | Phillip Edward CARPENTER v. GUILLORY INVESTMENT, INC. |
| Court | Court of Appeal of Louisiana — District of US |
Barry A. Roach, Larry A. Roach, Inc., 2917 Ryan St., Lake Charles, LA, COUNSEL FOR DEFENDANT/APPELLANT: Guillory Investments, Inc.
Marcus Myers, Myers Law Firm LLC, 2917 Ryan St., Lake Charles, LA, CO-COUNSEL FOR DEFENDANT/APPELLANT: Guillory Investments, Inc.
Brian Arabie, Arabie Law Firm LLC, 1011 Lakeshore Dr., Suite 200, Lake Charles, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Phillip Carpenter
Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.
This case focuses on a predial servitude created by destination of the owner and involves a residential water line. We affirm but remand to allow the trial court to amend the judgment in accordance with this opinion.
Phillip E. Carpenter and Susan R. Carpenter ("Carpenters") own residential rental property at 703 Murbelle Road ("Murbelle property") in Calcasieu Parish. They acquired this property in September of 2013 from Moffett Realty. Guillory Investments, Inc. ("Guillory Investments") owns a much larger eighteen-acre tract (the "Common Street" property) to the north and adjoining the Murbelle property.1 Two water meters are located on the northwest corner of the Common Street property—meter number 07101188 and meter number 13801239.2
On direct testimony, Gerald Lee Guillory ("Guillory"), an officer of Guillory Investments, explained that at one time "Mr. Cole" owned the Common Street property and the Murbelle property as one estate.3 Later, the record does not show exactly when, Mr. Cole put a water line to the residence at 703 Murbelle where family member lived; that water line is serviced by meter number 13801239 on the Common Street property. Guillory further testified that at the time of Mr. Cole's death, the Murbelle property remained connected to one of the Common Street meters.
The Carpenters' property at 703 Murbelle receives its water supply from the city of Lake Charles through water meter number 13801239, located at the northwestern corner of Guillory Investment's Common Street property. At the time of their purchase, the Carpenters formally transferred the billing on this water meter with the Lake Charles Water Department ("Water Department") into their personal names. Their water line runs approximately 1,100 feet from the meter parallel to the northern boundary of the Common Street property and across the width of that property to the Carpenters' rental house on Murbelle. From the time of their purchase of the property the Carpenters have paid a water bill to the city of Lake Charles for the minimum usage every month based on the water meter registered to 703 Murbelle.
Notwithstanding the existence of this water meter, in early 2014 the Carpenters, when remodeling the Murbelle residence, learned from an employee of the Water Department that the Murbelle property's water supply had been re-connected to another water meter, number 07101188, just south of the Murbelle property water meter; that meter was registered to Guillory Investments. When confronted with this fact, Guillory Investments informed the Carpenters that prior to the Carpenters' purchase of the Murbelle property, the city had disconnected water service to their water meter. At that time, Guillory Investments disconnected the line for the Murbelle property water meter, located north of its meter, and connected it to its meter, when it learned that the water line connected to the Murbelle meter also supplied water to cattle and chickens located on Guillory Investments' property. Guillory Investments explained its actions by stating that when the water service to this other water meter was disconnected, the animals on the Common Street property became water-deprived.
On two occasions after the Carpenters' purchase, one on July 4, 2016 and again on March 27, 2017, the continuous flow of water to the Murbelle property was interrupted; the former for approximately one day and the latter precipitated the Carpenters' lawsuit against Guillory Investments because the water to the Murbelle property remained disconnected.
On April 1, 2017, the Carpenters filed suit against Guillory Investments, seeking a preliminary injunction, a permanent injunction, and declaratory judgment.4 After conducting a hearing on April 21, 2017, the trial court granted the preliminary injunction and ordered Guillory Investments to immediately restore the water service to the 703 Murbelle Road property, burdening Guillory Investments' Common Street property. The trial court further ordered the Carpenters to pay Guillory Investments $ 40.00 per month for the water provided.
On June 15, 2017, the trial court conducted a hearing on the Carpenters' request for a permanent injunction. After hearing testimony from Phillip Carpenter and Guillory, the trial court, relying upon Wagner v. Fairway Villas Condominium Associates , 01-0734 (La.App. 3 Cir. 3/13/02), 813 So.2d 512, found that the common predecessor in title of these two estates created a predial servitude, that by virtue of the presence of the water meter on the Common Street property this servitude was apparent under La.Civ.Code art. 741, that the common owner never disavowed the existence of this predial servitude, and thus, Guillory Investments' Common Street property was burdened with a water utility service servitude in favor of the Murbelle property. Accordingly, the trial court granted the permanent injunction, enjoining Guillory Investments from "further interruption of the water service to the Murbelle Property."
Guillory Investments appeals, contending the trial court erred when it: (1) misapplied Wagner , finding there was a predial servitude in favor of the Carpenters; and (2) found a predial servitude in favor of the Carpenters when the former common owner of the Guillory Investments and Murbelle properties had not filed a "formal declaration establishing the destination" sufficient to establish the servitude as required in La.Civ.Code art. 741.
Appellate courts "review judgments regarding servitudes under the manifest error standard of review." Allen v. Cotten , 11-1354, p. 3 (La.App. 3 Cir. 5/2/12), 93 So.3d 681, 683. More particularly, whether an apparent servitude has been created by destination of the owner is a factual determination reviewed under the manifest error-clearly wrong standard of review. Naramore v. Aikman , 17-1621, 17-1622 (La.App. 1 Cir. 6/4/18), 252 So.3d 935. "An appellate court may not set aside a trial court's findings of fact unless they are manifestly erroneous or clearly wrong." Allen , 93 So.3d at 683. "To reverse under the manifest error rule, an appellate court must find from the record that there is no reasonable basis for the trial court's finding and that the record shows the finding to be manifestly erroneous." Id.
Guillory Investments contends the trial court erred and advances a threefold argument: the water lines were not visible; the water meter was not near the common boundary of the two properties; and neither the current owner of the Common Street property nor the Murbelle property knew at the time of their respective purchases that the Common Street meter supplied water to the Murbelle property. For reasons that follow, we find no merit to Guillory Investment's argument.
A predial servitude is either apparent or nonapparent. La.Civ.Code art. 707. An apparent servitude is "perceivable by exterior signs, works, or constructions; such as a roadway, a window in a common wall, or an aqueduct." Id. Nonapparent servitudes have "no exterior signs of their existence; such as the prohibition of building on an estate or of building above a particular height." Id. Apparent servitudes are acquired by "title, destination of the owner, or by acquisitive prescription." La.Civ.Code art. 740. Nonapparent servitudes can only be acquired by title, "including a declaration of destination under Article 741." La.Civ.Code art. 739. Whether a servitude is classified as apparent or nonapparent is dependent on the facts and circumstances of each case. Wagner , 813 So.2d at 512.
Louisiana Civil Code Article 741 describes "destination of the owner":
This codal article recognizes that when there is only one owner, there is no servitude because no one can have a servitude on his own property. See Yiannopoulos and Scalise, 4 La. Civ. L. Treatise, Predial Servitudes § 6:38 (4th ed. September 2018 Update). "But, when the single estate is divided, or two estates cease to belong to the same owner, an apparent servitude comes into existence of right unless the common owner disavows its existence." Naramore , 252 So.3d at 940.
Thus, there is a two-fold requirement for the creation of a predial servitude by destination of the owner: (1) there must be a relationship between two estates or two parts of the same estate belong to the same owner that would be an apparent servitude if there were two different owners; and (2) the ownership of one of the estate or of a part of an estate must be transferred by an act that does not negate, by express provision, the creation of a servitude by destination of the owner.
In the present case, the trial court found that an apparent servitude existed in favor of the Murbelle property. Expressly relying on this court's...
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