Dupont v. Hebert

• Decision Date: 20 February 2008
• Docket Number: No. 2006 CA 2334.,2006 CA 2334.
• Citation: 984 So.2d 800
• Parties: Joseph B. DUPONT, Sr. v. Carl HEBERT.
• Court: Court of Appeal of Louisiana — District of US

984 So.2d 800

Joseph B. DUPONT, Sr. v. Carl HEBERT.

No. 2006 CA 2334.

Court of Appeal of Louisiana, First Circuit.

February 20, 2008.

Writ Denied May 9, 2008.

Joseph B. Dupont, Jr., Dupont, Dupont, & Dupont, Ltd., Plaquemine, LA, for Plaintiff-Appellant, Joseph B. Dupont, Sr.

C. Jerome D'Aquila, New Roads, LA, for Defendant-Appellee, Carl Hebert.

Before PARRO, KUHN, and DOWNING, JJ.

PARRO, J.

This suit involves a petition by a property owner to enforce a servitude so as to prohibit a neighboring property owner from interfering with the use of a servitude of passage. Following a new trial, the trial court dismissed both the main demand and a reconventional demand. Only the petitioner appealed. For the following reasons, we reverse and render judgment in favor of the petitioner.

Factual Background and Procedural History

Joseph B. Dupont, Sr. (Dupont) was a co-owner of multiple rural lots, including Lot 20, of the Edison Berthelot Partition. Dupont had a camp located on his property. In 1977 or 1978, dirt from a pond that was dug on Dupont's property was used by him to form a road running in an easterly direction between Lot 20 and the adjacent lot to the south (Lot 19 of the Edison Berthelot Partition). The western boundary of Lots 19 and 20 fronted Louisiana Highway 75 (Hwy. 75). At that time, Lot 19 was owned by Oswald J. Vaughn and his wife.

The Vaughns sold portions of Lot 19 and other lots of the Edison Berthelot Partition to Carl j. Hebert (Hebert) by an act of cash sale dated August 4, 1994. In this act, the Vaughns disclosed that the property was subject to a "40 foot servitude of passage of which 20 feet is dedicated by vendor for servitude of passage along Parcel 19 in a East West direction" from Hwy. 75. Hebert resided on part of his property and used other portions for the operation of a turtle farm and a crawfish farm. At the trial of this matter, Hebert acknowledged the existence of a 20-foot servitude on his property. Although no further documentation was offered relative to the creation of this servitude, the parties do not dispute that the other 20 feet of the 40-foot servitude burdened the southern, adjacent portion of Lot 20.¹

In a "Servitude Agreement" dated November 6, 1996, a 50-foot servitude over portions of Lots 19 and 20 was granted to the Iberville Parish Police Jury (Police Jury) by adjacent property owners, including Dupont and Hebert. The agreement provided for the creation of a right-of-way servitude for the construction, improvement, and maintenance of a roadway, L & L Road, extending in an easterly direction from Hwy. 75 for approximately 900 feet. Thus, the 50-foot servitude overlapped the 40-foot servitude for a distance of 900 feet from Hwy. 75, burdening the northern portion of Hebert's property by an additional five feet. The servitude agreement authorized the Police Jury to enter the properties beyond the limits of the right-of-way for the purpose of excavating, constructing, and maintaining lateral drains and/or channel changes required for the proper and adequate drainage of the roadway. The Police Jury constructed and maintained an asphalt roadway down the center of the 50-foot servitude.

In 1997, Hebert filed an application with the United States Army Corps of Engineers (Corps of Engineers), seeking permission to construct a turtle pond in the low-lying area behind his home. After receiving permission and constructing the turtle pond, he later built a crawfish pond, which extended across the rear or easterly portions of Lots 19, 20, and 21. A portion of each of these projects encroached on the 40-foot area on which the servitude of passage existed. Subsequently, with the permission of the Police Jury, Hebert put up a wooden fence near his home site adjacent to the asphalt roadway and within the Police Jury's 50-foot servitude.

When their friendship turned sour, Dupont filed suit against Hebert to enforce the two servitudes. Dupont alleged that Hebert caused or allowed to be constructed a fence, levee, building, and pond within the servitudes of passage that encumbered Lot 19. Dupont averred that despite demands to remove these encroachments, Hebert failed to do so. In his answer, Hebert made a general denial of the allegations in Dupont's petition and reconvened, seeking the removal of a carport, overhang, and pond that had been constructed by Dupont within the servitudes of passage that burdened Lot 20. In his answer to the reconventional demand, Dupont averred that the carport and pond were constructed before the existence of the servitudes.

In opposing a motion for a summary judgment that had been filed by Dupont, Hebert indicated that his encroachment on the servitude was a result of the construction of a turtle farm to which Dupont had consented in a letter dated October 22, 1997, to the Corps of Engineers. Dupont noted that the letter simply indicated that he had no objection to the construction of the proposed turtle farm requested by Hebert. He urged that the letter in no way expressed or implied consent to an encroachment on the servitude. Hebert contended that the encroachment, which was part of the turtle farm, neither impeded or encroached on the traveled portion of the roadway that extended from Hwy. 75 nor interfered with Dupont's enjoyment of his property. Finding that certain improvements, including the turtle pond, encroached on the servitude and that Dupont had acquiesced in the construction of the turtle pond, the trial court denied Dupont's motion for a summary judgment, as well as a crossmotion for a summary judgment that had been filed by Hebert relative to Dupont's alleged encroachments.

After the original trial of this matter, the trial court found that 10 years had not elapsed since the 1996 granting of the 50-foot servitude to the Police Jury. Accordingly, the trial court concluded that it was impossible for the servitude to have been extinguished by nonuse under LSA-C.C. art. 753 as urged by Hebert. However, the trial court found that Dupont had agreed to the encroachments and had requested that Hebert build the levee around the rear of Dupont's property in connection with an alligator farm that never materialized. Nonetheless, the trial court concluded that because this agreement was not reduced to writing, there was no express written renunciation of the predial servitude by Dupont as required by LSA-C.C. art. 771. Accordingly, judgment was rendered, ordering both parties to remove the encroachments from the servitude.

In light of the trial court's failure to consider the issue of nonuse relative to the older 40-foot servitude, Hebert filed a motion for new trial, which was granted. After considering the evidence presented at the new trial, the trial court concluded that the assertion of Dupont's rights was barred by the doctrine of equitable estoppel. The trial court stated:

The property at issue is at the end of a rural street, beyond which it can be described as the heartland of Southern Louisiana's swampland. There was no evidence presented suggesting the commercialization of the swamp on which the servitude extends only on paper. In reality, for this Court to [order] either party to remove their respective encroachments would be contra non valentum and an injustice to both parties. The encroachments impair neither party from access to their properties, nor to the swamplands beyond.

Accordingly, the court signed a judgment dismissing Dupont's petition and Hebert's reconventional demand with prejudice. Dupont appealed, contending that the trial court erred in allowing the doctrine of equitable estoppel to be raised by Hebert and in applying it in this case. Furthermore, Dupont asserts that the 40-foot servitude was not extinguished as a result of nonuse for ten years.

Discussion

A. Predial Servitude

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. LSA-C.C. art. 646.² The two estates must belong to different owners. Id. There must be a benefit to the dominant estate.³ LSA-C.C. art. 647. There is no predial servitude if the charge imposed cannot be reasonably expected to benefit the dominant estate. Id. The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something on his estate or to permit something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. LSA-C.C. art. 651.

Predial servitudes may be established by an owner on his estate or acquired for its benefit. The use and extent of such servitudes are regulated by the title by which they are created. LSA-C.C. art. 697. In the absence of such regulation, they are governed by the rules set forth in LSA-C.C. arts. 698 through 774. See LSA-C.C. art. 697. Predial servitudes are established on, or for the benefit of, distinct corporeal immovables. LSA-C.C. art. 698. A right of passage is an example of a predial servitude. See LSA-C.C. art. 699. The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate. LSA-C.C. art. 705. A right-of-way is an affirmative servitude in that it gives the right to the owner of the dominant estate to do a certain thing on the servient estate. See LSA-C.C. art. 706.

The establishment of a predial servitude by title is an alienation of a part of the property to which the laws governing alienation of immovables apply. LSA-C.C. art. 708. Predial servitudes are established by all acts by which immovables may be transferred. LSA-C.C. art. 722. A predial servitude may be established on a certain part of an estate, if that part is sufficiently described....