Dalton v. Graham
| Decision Date | 22 April 2020 |
| Docket Number | No. 53,452-CA,53,452-CA |
| Citation | 295 So.3d 437 |
| Parties | Ralph Joe DALTON, et al., Plaintiffs-Appellees v. Alan GRAHAM, et al., Defendants-Appellants |
| Court | Court of Appeal of Louisiana — District of US |
SHUEY SMITH LLC, Shreveport, By: Richard E. Hiller, Counsel for Appellants
BETHARD & BETHARD, L.L.P., By: Benjamin T. Bethard, Coushatta, BRENDA F. FORD, Shreveport, Counsel for Appellees
Before PITMAN, GARRETT, and STONE, JJ.
The Daltons (the "plaintiffs") own a tract of land which is not accessible by any public road. Pursuant to La. C.C. art. 689 et seq. , they brought suit against the owners of a neighboring tract (the "Brown tract") demanding a servitude of passage. There are two groups of co-owners of the Brown tract; in this opinion, we refer to them as the "Graham defendants"1 and the "Johns defendants."2 Only the Graham defendants have appealed.
The trial court awarded the plaintiffs a servitude of passage along the southern boundary of the Brown tract (the "southern boundary route"), and authorized the plaintiffs to build a road there. The trial court also denied the appellants' claim for damages for the clearing of timber that will be necessary for constructing the road.
The appellants assign three errors: (1) the trial court erred in failing to consider instead granting passage along the "Hall tract," which adjoins the Brown tract along its southern boundary; (2) the trial court erred in not considering splitting the width of the servitude equally between the Hall tract and the Brown tract; and (3) the trial court erred in denying the appellants' claim for damages resulting from the clearing of their timber to make way for the new road.
In a suit for a right of passage for an enclosed estate, the trial court's factual findings are subject to manifest error review. Dickerson v. Coon , 46, 423 (La. App. 2 Cir. 8/10/11), 71 So. 3d 1135. Thus, the appellate court may reverse the trial court's factual finding only if: (1) there is no reasonable evidentiary basis for the finding, and (2) the record as a whole establishes that the finding is clearly wrong. On manifest error review, the issue is whether the factfinder's conclusion was reasonable based on the entire record. Id.
La. C.C. art. 689, in pertinent part, provides:
The owner of an estate that has no access to a public road...may claim a right of passage over neighboring property to the nearest public road... He is bound to compensate his neighbor for the right of passage acquired and to indemnify his neighbor for the damage he may occasion.
"The right of passage for the benefit of an enclosed the state shall be suitable for the kind of traffic...that is reasonably necessary for the use of the estate." La. C.C. art. 690.
Regarding the location of the passage, La. C.C. art. 692 provides: "[t]he passage generally shall be taken along the shortest route from the enclosed estate to the public road...at the location least injurious to the intervening lands." (Emphasis added). However, our jurisprudence has held that "proper regard should [also] be given to the interest of the parties claiming the right of way." Pittman v. Marshall, 104 So. 2d 230 (La. App. 2 Cir. 1958). The legislature's "use of the word ‘generally’ [in La. C.C. art. 692 further indicates that] there are situations that allow the right of passage to be imposed on an estate that does not provide the shortest route." Corley v. C & J Frye Properties, LLC , 49,969 (La. App. 2 Cir. 8/19/15), 176 So. 3d 439, 443, writ denied , 2015-1887 (La. 11/20/15), 180 So. 3d 318. Thus, the location of the servitude depends on the circumstances of each case. However, the trial court may not depart from the general rule absent "weighty considerations." Corley, supra.
The jurisprudence has recognized two exceptions to the general rule: (1) when the estate which provides the shortest route is covered by water or otherwise not accessible year-round; and (2) when costs associated with crossing the estate which is the shortest distance from the public road are so exceptional that from a practical standpoint it is economically unfeasible to build. Phillips Energy Partners, LLC v. Milton Crow Ltd. Partnership, 49, 791 (La. App. 2 Cir. 5/20/15), 166 So. 3d 428, 434. "The party arguing that the servitude should instead be imposed on another estate bears the burden of establishing that one of the two exceptions is applicable." Id.
"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." Dickerson, supra.
The fixing of a servitude of passage for an estate without access to a public road may require a court to determine whether a road, or a part of a road, is private or public. In that regard, La. R.S. 48: 491(B) pertinently provides:
A road becoming subject to public use by operation of this statutory provision is referred to as a "tacit dedication" in the Louisiana jurisprudence. Cenac v. Public Access Water Rights Ass'n, 2002-2660 (La. 6/27/03), 851 So.2d 1006.
Assignment of error no. 1: The Hall Route. The appellants argue that the trial court erred in not considering granting the right of passage over the Hall tract, which borders both the Brown tract and the Dalton tract to the south. Most of this proposed route would be adjacent and parallel to the southern boundary route, supra. The only difference between this portion of the Hall route and the southern boundary route is that the former would run along the northern boundary of the Hall property, while the latter runs along the southern boundary of the Brown property, i.e., exactly the same except for whether it would run on the Hall side of the boundary or the Brown side of the boundary.
The issue regarding this assignment of error does not involve the portion of the Hall route described in the preceding paragraph. Instead, the issue regards only the part of the Hall Route that diverges from the Southern Boundary Route. The appellants contend that the public portion of Brown Road terminates along the northeastern boundary of the Hall property, i.e. , that the public portion of Brown Road does not go all the way to the gate entering Brown property (the "Brown gate"). In other words, the appellants contend that the Brown gate is not on their property line, but instead, is a significant distance inside their property line, and, therefore, the meeting point of public Brown Road and private Brown Road is not at their gate, but instead, at their property line. From that premise, the appellants conclude that the length of the southern boundary route includes the distance between the Brown gate and the Brown property line, and is thus longer than the Hall route.
The trial court did not adopt the appellants' version of where public Brown Road terminates. Phillip Clark, the roads superintendent for DeSoto Parish, testified that the parish maintains Brown Road all the way to the Brown gate, and has done so for at least the last 10 years. Essentially, if a parish or municipal government maintains or works on a road within its jurisdiction for...
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