Comby v. White

• Decision Date: 03 March 1999
• Docket Number: No. 98-1437.,98-1437.
• Citation: 737 So.2d 94
• Parties: Vicky M. COMBY and Harvey Comby, Plaintiffs-Appellants, v. Cygnal Gale WHITE, Jr. and Deloris Whittington White, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

737 So.2d 94

Vicky M. COMBY and Harvey Comby, Plaintiffs-Appellants, v. Cygnal Gale WHITE, Jr. and Deloris Whittington White, Defendants-Appellees.

No. 98-1437.

Court of Appeal of Louisiana, Third Circuit.

March 3, 1999.

John William Pickett, Many, for Vicky M. Comby, et vir.

Cygnal Gale White, Jr., et al., pro se.

Before DECUIR, SULLIVAN and GREMILLION, Judges.

DECUIR, Judge.

Vicky and Harvey Comby appeal a judgment of the trial court dismissing their claim for damages associated with the relocation of a water line. For the reasons that follow, we reverse.

FACTS

Between May 27, 1974 and September 5, 1975, Cygnal White, Sr. and his wife, Mary, acquired certain real estate adjacent to the Toledo Bend Reservoir in Sabine Parish, Louisiana. All of the property is located in Section 16, Township 6 North, Range 13 West and was acquired under one or more of three deeds. A portion of the property was subdivided as part of Whispering Pines subdivision. The balance of the property comprises that portion of the Southwest ¼ of the Southwest ¼ of the Southwest ¼ of Section 16 not expropriated by the State of Louisiana for the Toledo Bend Reservoir (hereinafter unexpropriated portion). All of this property is contiguous and composed of one piece of land which is comprised of the unexpropriated portion together with Lots 25-33 and Lot 199 in the Whispering Pines Subdivision.

The White, Srs. had a residence constructed partly on Lot 199 and partly on the unexpropriated portion. In conjunction with that construction, a water line, electric line, and cable television line were connected to the residence. These lines originate on Lot 30 of Whispering Pines Subdivision and run across the subdivision property and part of the unexpropriated portion and terminate at the residence.

The public records reveal that the White, Srs. subsequently divested themselves of all of the property in three separate transactions to: 1) Edwin Pousson and his wife, 2) Harvey and Vicky Comby, and 3) Cygnal White, Jr. and his wife. The Combys purchased Lot 199 of Whispering Pines Subdivision and the unexpropriated portion less the property conveyed to Pousson. White, Jr. obtained Lots 25 through 33 and a thirty-foot alley in Whispering Pines. The transfer to White, Jr. took place some seven years prior to the Combys' purchase but was not recorded until a day after the Combys' purchase. After the recordation of the transfer to White, Jr., on April 21, 1995, the public records reflect that the White, Srs. had transferred all of their interest in the property. The water meter located on Lot 30 was originally in the name of White, Sr. but, after the Combys' purchase, it was transferred to the Combys' name.

The water line at issue in this case traverses the driveway of Cygnal White, Jr. and his wife Deloris. Continued use of the dirt driveway eventually resulted in a breakage of the line on or about May 18, 1996. The White, Jrs.' granddaughter turned off the water at the meter and notified the Combys of the break. Vicky Comby called a repairman, Lynn Wooley, who inspected the site and contacted Deloris White and was informed that Mr. White, Jr. did not want the driveway dug up. As this was necessary to facilitate the repair, Wooley contacted the Combys. Vicky Comby then contacted Deloris White who restated her husband's position that they did not want the yard dug up for utility lines. Mr. White, Jr. was in Arizona visiting his mother, so Vicky Comby located the number for Mrs. White, Sr. and attempted to contact Mr. White, Jr., to discuss his position. She was unsuccessful.

Subsequently, the Combys purchased another piece of property and relocated the entire water line on their property. To repair the line in its original location would have cost less than $200.00. Relocating the line increased its length from approximately 200 feet to over 1200 feet and required larger pipe and a new meter. The total cost of relocating the water line came to $4,672.26, excluding the cost of the additional property which the Combys do not seek to recover.

On October 7, 1996, the Combys filed this suit to have their servitude recognized and to recover the cost of building the water line. Trial was held on May 27, 1998, and on June 2, 1998 the trial court issued a letter opinion finding that an apparent servitude existed in favor of the Combys and requesting briefs on damages from both parties. The trial court entered judgment on July 14, 1998 dismissing the Combys' claims at their costs. The Combys lodged this appeal alleging that the trial court erred in declaring that they had abandoned their servitude and in finding that they were unreasonable in their actions to remedy their water problems.

EXISTENCE OF SERVITUDE

La.Civ.Code art. 707 declares, "[p]redial servitudes are either apparent or nonapparent. Apparent servitudes are those that are perceivable by exterior signs, works or constructions; such as a roadway, a window in a common wall, or an aqueduct." There are three methods of obtaining an apparent servitude: 1) by title; 2) by destination of the owner, or 3) by acquisitive prescription. La.Civ.Code art. 740. La.Civ.Code art. 741 provides:

Destination of the owner is a relationship established between two estates owned by the same owner that would be a predial servitude if the estates belonged to the different owners.

When the two estates cease to belong to the same owner, unless there is express provision to the contrary, an apparent servitude comes into existence of right and a nonapparent servitude comes into existence if the owner has previously filed for registry in the conveyance record of the parish in which the immovable is located a formal declaration establishing the destination.

In this case the trial court found that an apparent servitude existed in favor of the Combys. We agree. In Fuller v. Washington, 19 So.2d 730 (La.App. 2 Cir. 1944), the court found that a sewer line running across property constituted an apparent servitude. In Nash v. Whitten, 326 So.2d 856 (La.1976), the supreme court discussed Fuller and similar cases, finding that the courts had improperly applied the test to determine whether a servitude was "continuous" or "discontinuous." The "apparent" nature of the servitude was not disputed by the court. The Louisiana Civil Code of 1870 art. 767 required that for title by destination of owner a servitude be "continuous" and "apparent." Bertrand v. Halley, 460 So.2d 705 (La.App. 3 Cir.1984). As we noted previously, current Louisiana Civil Code art. 741 requires only that the servitude be "apparent." Accordingly, we find that the water, electric and cable lines in this case constitute an apparent servitude. The property at issue in this case was originally owned in its entirety by Cygnal White, Sr. and his wife, and the lines would have constituted a predial servitude had the property been owned by separate parties. Consequently, when the White, Srs.' property ceased to belong to them alone a servitude was created by destination of owner. Because the servitude in question was apparent it came into existence of...