Himel v. Bourque

• Decision Date: 11 December 2015
• Docket Number: No. 2014 CA 1811.,2014 CA 1811.
• Parties: Gregory Scot HIMEL and Todd P. Gautreau v. Thomas BOURQUE, Sr., Thomas Bourque, Jr. and Ascension Parish Public Works Department.
• Court: Court of Appeal of Louisiana — District of US

185 So.3d 42

Gregory Scot HIMEL and Todd P. Gautreau
v.
Thomas BOURQUE, Sr., Thomas Bourque, Jr. and Ascension Parish Public Works Department.

No. 2014 CA 1811.

Court of Appeal of Louisiana, First Circuit.

Dec. 11, 2015.

185 So.3d 43

Donnie L. Floyd, Prairieville, LA, and Gregory Webb, Baton Rouge, LA, for Plaintiffs/Appellants Gregory Scot Himel and Todd P. Gautreau.

Erin Wiley Lanoux, Robert Ryland Percy, III, Matthew Ian Percy, Gonzales, LA,

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for Defendant/Appellees Thomas Bourque, Sr., and Thomas Bourque, Jr.

O'Neil Parenton, Gonzales, LA, for Defendant/Appellee Ascension Parish Public Works Department.

Before PETTIGREW, McDONALD, McCLENDON, WELCH, and THERIOT, JJ.

McDONALD, J.

This is an appeal from a judgment declaring a predial servitude to have been dedicated to public use and granting a landowner full access to his property from that predial servitude. For the following reasons, we amend the judgment in part and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1992, owners of unimproved property in Ascension Parish, Louisiana, executed an agreement to establish a forty-foot wide servitude of passage basically running north-south from Louisiana Highway 74, consisting in relevant part of "the east twenty (20) feet of Lots 1, 2, and 3[,] and the west twenty (20) feet of Tract A, and [running] to the north boundary of Tract A and [Lot 3,]" as shown on an attached survey plan (the 1992 servitude). Sometime in 1994, the then owners on either side of the servitude shared the cost to put in a gravel road, and in 1999 or 2000, at the owners' request, Ascension Parish paved the road. However, the paved portion of the servitude, now known as Hanson Road, does not extend the full length of the 1992 servitude; that is, it begins at Highway 74 and runs north, but stops short of what was described in the 1992 servitude agreement as "the north boundary of Tract A and [Lot] 3."¹

Todd Gautreau currently owns Lot 3 on the west side of the 1992 servitude, and Gregory Scot Himel currently owns the northernmost two lots of Tract A on the east side of the 1992 servitude. The Gautreau and Himel properties are bounded on the north by property owned by Thomas Bourque, Sr. As stated, Hanson Road is paved to a point just past the Gautreau and Himel driveways, but it dead ends there, and does not extend all the way to the boundary line separating the Gautreau and Himel properties from the Bourque property. The respective properties and Hanson Road are depicted on an Ascension Parish Assessor's map, Joint Exhibit J–13, an enlarged partial copy of which is attached to this opinion as Appendix A.

In December 2013, Mr. Bourque, Sr. contacted several officials in Ascension Parish regarding his desire to use the "Hanson Road servitude" to access the southern portion of his property, that part contiguous to the Gautreau and Himel properties. He explained that the southern portion of his property was isolated from the remainder of his acreage by Bayou Narcisse and that the bridge formerly used to cross the bayou had become unusable from disrepair. Mr. Bourque, Sr. was advised to submit an application to install culvert pipes in a ditch so that he could access Hanson Road, and an Ascension Parish drainage engineer later provided him the specifications for the appropriate materials to use.

In early January 2014, Messrs. Gautreau and Himel filed a petition for injunctive relief and damages against Mr. Bourque, Sr.; his son, Thomas Bourque, Jr.;

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and the Ascension Parish Public Works Department, seeking to prohibit the construction of Hanson Road beyond its current paved portion. In late January 2014, Messrs. Gautreau and Himel had a map drawn up for the purpose of seeking a revocation of the last forty feet of the 1992 servitude, the most northernmost portion of the servitude contiguous to the shared border among the Gautreau, Himel, and Bourque properties. Because of the pending litigation, Ascension Parish officials took no action on the revocation request.

The Bourques answered the suit and later filed a reconventional demand against Messrs. Gautreau and Himel, seeking declaratory relief regarding their rights to access the 1992 servitude and/or Hanson Road and for damages. The record contains no answer filed by the Ascension Parish Public Works Department. The matter proceeded to a bench trial, where the parties jointly introduced several exhibits, a list of established facts, and witness testimony. At trial, the parties also agreed to dismiss all claims against Thomas Bourque, Jr. and any claims for damages. At the conclusion of the trial, the trial court took the matter under advisement.

On July 18, 2014, the trial court signed a judgment in the Bourques' favor, declaring that: (1) Hanson Road is a public road; (2) the forty-foot right of way shown on a 2009 map signed by Mr. Himel was dedicated to the public; (3) the forty-foot right of way extends from Highway 74 to the northern property boundary of Gautreau and Himel, which is contiguous with the southern property boundary of Thomas Bourque, Sr.; (4) the right of way has not lost its status as a public road by virtue of nonuse; (5) there has been no clear evidence of intent to abandon the right of way from the end of the paved portion of Hanson Road to the property line; and (6) Thomas Bourque, Sr., and all future owners of the tract at issue herein shall have free, full, and uninterrupted access to their property from Hanson Road.

Messrs. Gautreau and Himel appeal from the adverse judgment, generally challenging the trial court's determinations regarding the proper characterization of the 1992 servitude and/or Hanson Road as public rights of way. Although we do not address each assignment of error individually, this opinion adequately disposes of all issues raised. See Pike v. National Union Fire Insurance Company, 00–1235 (La.App. 1 Cir. 6/22/01), 796 So.2d 696, 698 n. 6.

DISCUSSION

The dedication of property for public use may be accomplished in four ways: statutory dedication, formal dedication, implied dedication, and tacit dedication. See Stonegate Homeowners Civic Ass'n. v. City of Baton Rouge/Parish of East Baton Rouge, 01–2883 (La.App. 1 Cir. 12/20/02), 836 So.2d 440, 443, writ denied, 03–0786 (La.5/9/03), 843 So.2d 407–08; Melancon v. Giglio, 96–2507 (La.App. 1 Cir. 3/13/98), 712 So.2d 535, 539. The trial court determined that the entirety of the 1992 servitude was statutorily dedicated. We conclude the trial court erred in making this classification, and we instead conclude that the entirety of the 1992 servitude has been tacitly dedicated as a public road. This distinction is noteworthy because the classification of a dedicated road determines its ownership—that is, generally, a statutory dedication vests ownership of the land under the streets in the public, whereas a tacit dedication creates a servitude of passage in favor of the public, but the ownership of the land remains with the adjoining landowners. See generally, A.N. Yiannopoulos, 2 Louisiana Civil Law Treatise, Property, Ch. 6. Dedication to Public Use:

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Highways, Roads, and Streets (4^th ed. Oct 2014). We dispose of the statutory dedication issue first.

A statutory dedication requires compliance with LSA–R.S. 33:5051, which imposes on subdividers of land certain duties, including the filing of plats and the recordation of a formal dedication of all the streets to public use. Melancon, 712 So.2d at 539. A statutory dedication vests ownership of the land under the streets in the public, unless the subdivider indicates otherwise. Id. The intent to dedicate a street is generally presumed from the act of filing a subdivision plat containing public dedication language. Cavaness v. Norton, 96–1411 (La.App. 1 Cir. 5/9/97), 694 So.2d 1174, 1178. However, the plat must be given a rational construction. 6444 Associates, L.L.C. v. City of Baton Rouge, 02–1779 (La.App. 1 Cir. 5/9/03), 851 So.2d 1169, 1172, writ denied, 03–2681 (La.12/12/03), 860 So.2d 1164. When a rational construction negates the intent of the subdividing landowner, the fact that a reference to a street appears on a map does not, of itself, effect a dedication of that street to public use. Id.

The trial court determined the entire length of the 1992 servitude was statutorily dedicated by Mr. Himel in 2009 when he purchased a tract of land from Mark Gonzales adjacent to his existing lots on Hanson Road. At the time of the 2009 purchase, a map signed by Messrs. Himel and Gonzales was submitted to Ascension Parish authorities for approval. The map clearly showed the north end of the servitude for Hanson Road extending all the way to the northern boundary line of the Gautreau and Himel properties. The map also included public dedication language stating, "[t]he street[s] and rights of way shown hereon, if not previously dedicated are hereby dedicated to the perpetual use of the public for proper purposes."

However, the evidence indicates that Mr. Gonzales was not developing a subdivision when he sold the tract of land to Mr. Himel. The 2009 map was prepared for the limited...