Dallas v. Farrington
| Decision Date | 30 May 1986 |
| Docket Number | No. 85-C-0481,85-C-0481 |
| Citation | 490 So.2d 265 |
| Parties | Virginia Hendrix, wife of/and Oren DALLAS v. Robert G. FARRINGTON, Jr., Robert G. Farrington, III, and the Parish of Jefferson. |
| Court | Louisiana Supreme Court |
Michael Baham, Haik and Minvielle, New Iberia, Garland Rolling, Metairie, for plaintiffs-applicants.
Ernest Barrow, II, Grant & Barrow, Gretna, for defendants-respondents.
This action seeks a declaratory judgment recognizing a servitude of passage in favor of plaintiffs' estate across continguous property which had been owned by plaintiffs' vendor at the time of plaintiffs' acquisition and was later sold to the vendor's son. Naming both the vendor and his son as defendants, plaintiffs also seek to enjoin the son from interfering with their use of the servitude. The issues are (1) whether plaintiffs and their vendor established a conventional servitude which plaintiffs are entitled to enforce against the vendor's son and (2) whether plaintiffs are entitled, as owners of an enclosed estate, to demand a forced passage, with or without indemnity, across the vendor's son's land to the nearest public road.
In 1964 defendant Robert Farrington, Jr. owned a parcel of ground situated between La. Highway 30 and Bayou Des Familles and described as Plot 69 of Ida Plantation. Farrington proposed to resubdivide a portion of the property into eight lots which fronted on Roblaine Street, a proposed road extending from the highway to the bayou, as shown in the following survey of May 6, 1964:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Although the parish authorities tentatively approved the proposed resubdivision on February 24, 1965, the proposal was eventually rejected (at a time not disclosed in the record) because of the dead-end street.
On October 18, 1965, plaintiffs signed an agreement to purchase "Lots 2 and 3 of proposed subdivision of Plot 69, Ida Plantation". Farrington accepted the agreement which contained the following condition:
"A further condition is the granting by seller without any restrictions or reservations whatsoever of a perpetual servitude to the buyer of the right to use Rob Lane Street as a means of ingress and egress to the property herein being purchased."
On December 20, 1965, Farrington executed an act of sale conveying Lots 2 and 3 to plaintiffs. The lost were described in accordance with the May 6, 1964 survey, although that resubdivision had never been completed. However, the survey was not attached to the act of sale, and there was no mention in the act of any servitude. Moreover, the act erroneously referred to Lots 2 and 3 as part of original Plot 68 (instead of 69). 1
On December 21, 1965, Farrington sold Lot 1 to James Fish. The act of sale described Lot 1 in accordance with a November 16, 1964 survey which showed only Lot 1 and the highway. The survey showed that the eastern boundary of Lot 1 coincided with the property line between Plots 68 and 69 of Ida Plantation, but did not show Roblaine Street or indicate that there was a street along the western side of Lot 1.
Shortly after the sale, plaintiffs placed a mobile home on the property and built a garage, with both buildings facing Roblaine Street. They immediately began using Roblaine Street for access from their home to the highway.
Several years later, Farrington applied for approval of a plan of resubdivision of his property in Plot 69 of Ida Plantation in accordance with the following survey:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The resubdivision was approved on January 28, 1971. Plaintiffs were never informed of the resubdivision, although they owned a portion of the property which became Lot 69E, and they continued to use Roblaine Street for access to their home. On March 22, 1973, Lots 69C and 69D of the resubdivided plot were rezoned from residential to commercial at Farrington's request.
On April 23, 1980, Farrington sold Lots 69C and 69D to his son, defendant Robert Farrington, III. The lots were described in accordance with the recorded resubdivision plan that had been approved in 1971. The act of sale recited a cash consideration of $5,000, and Farrington's son declared in the act that he was purchasing the lots as his separate property with separate funds derived as a gift from his father to him. On the very next day, Farrington executed an act of correction, amending the incorrect property description (Plot 68 to Plot 69) in the 1965 deed to plaintiffs. 2
After Farrington's son took title to Lot 69D, he constructed a fence across the property and sent a letter through his attorney to plaintiffs, advising them to stop using the property for access to their home. Plaintiffs then instituted this action to obtain a declaratory judgment recognizing their right to a servitude of passage and an injunction restraining the obstruction of the servitude.
The trial court rendered a judgment recognizing the servitude on the mistaken basis that the act of sale had granted such a servitude. The court then granted a motion for a new trial and rendered judgment in favor of defendants, finding that a novation had occurred.
The court of appeal affirmed on other grounds. 465 So.2d 763. The court correctly observed that the record did not support a finding that the plaintiffs and Farrington had intended at the time of the act of sale to extinguish Farrington's obligation in the purchase agreement to grant a servitude to plaintiffs for use of Roblaine Street as a means of ingress and egress. 3 However, the court rejected plaintiffs' claim for enforcement of the conventional servitude allegedly established by the provision in the agreement to purchase, because conventional servitudes affecting immovable property must be in writing and must be recorded in order to affect third parties.
The court further denied plaintiffs' claim for a legal servitude of passage on the basis that the public records, at the time of Farrington's sale of Lot 69D to his son, did not show that Lots 2 and 3 constituted an enclosed estate, because of the error in the plot number (Plot 68 instead of Plot 69) and because of the absence of recordation of the May 6, 1964 survey. The court concluded that since it was impossible to determine from the public records that Lots 2 and 3 constituted an enclosed estate, Farrington's son acquired Lot 69D free of any obligation to recognize a legal servitude of passage in favor of plaintiffs. We granted certiorari, primarily to consider whether Farrington's son had a valid defense to a claim for a legal servitude of passage in favor of an enclosed estate on the basis that the public records did not disclose that the estate was enclosed at the time of the acquisition of Lot 69D. 467 So.2d 528.
No conventional servitude was ever established. In the agreement to purchase, Farrington obligated himself as a condition of the sale to grant plaintiffs a servitude to use Roblaine Street for passage to their property, but the grant was omitted from the act of sale which transferred the property.
Contracts affecting immovable property must be recorded in order to affect third parties. La.R.S. 9:2721 and 2756. The public records doctrine is essentially a negative doctrine declaring that what is not recorded is not effective except between the parties, and a third party in purchasing immovable property is entitled to rely on the absence from the public records of any unrecorded interest in the property such as a sale or a grant of a servitude. Phillips v. Parker, 483 So.2d 972 (La.1986). Because recordation is essential for effectiveness against third parties, actual knowledge by third parties of unrecorded interests is immaterial. McDuffie v. Walker, 125 La. 152, 51 So. 100 (La.1909); Redmann, The Louisiana Law of Recordation: Some Principles and Some Problems, 39 Tul.L.Rev. 491 (1965). This principle of the law of registry applies here so that Farrington's son acquired the property free of any conventional servitude, irrespective of any actual knowledge that the father had obligated himself to grant a servitude, since actual knowledge outside the public records is immaterial. 4 A. Yiannopoulos, 4 Louisiana Civil Law Treatise--Predial Servitudes Sec. 127 (1983).
Moreover, since Farrington is no longer the owner of the property originally...
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