Jack v. Successions of Albert, 090419 LACA1, 2018 CA 1240

Docket Nº:2018 CA 1240
Opinion Judge:HOLDRIDGE, J.
Party Name:MARK W. JACK, SR. AND CATINA JACK v. SUCCESSIONS OF WILBERT ALBERT AND VICTORIA B. ALBERT
Attorney:Michael E. Parks New Roads, Louisiana Attorney for Plaintiffs/Appellees Mark W. Jack, Sr. and Catina Jack Thomas A. Nelson New Roads, Louisiana Attorney for Defendants/ Appellants Successions of Wilbert and Victoria B. Albert
Judge Panel:BEFORE: WHIPPLE, C.J., McDONALD, CRAIN, HOLDRIDGE, AND PENZATO, JJ. McDONALD, J., dissents. CRAIN, J., concurs.
Case Date:September 04, 2019
Court:Court of Appeals of Louisiana
 
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MARK W. JACK, SR. AND CATINA JACK

v.

SUCCESSIONS OF WILBERT ALBERT AND VICTORIA B. ALBERT

No. 2018 CA 1240

Court of Appeals of Louisiana, First Circuit

September 4, 2019

On Appeal from the Eighteenth Judicial District Court In and for the Parish of Pointe Coupee State of Louisiana No. 47, 634, Div. "D" The Honorable Elizabeth A. Engolio, Judge Presiding

Michael E. Parks New Roads, Louisiana Attorney for Plaintiffs/Appellees Mark W. Jack, Sr. and Catina Jack

Thomas A. Nelson New Roads, Louisiana Attorney for Defendants/ Appellants Successions of Wilbert and Victoria B. Albert

BEFORE: WHIPPLE, C.J., McDONALD, CRAIN, HOLDRIDGE, AND PENZATO, JJ.

HOLDRIDGE, J.

Defendants, the Successions of Wilbert Albert and Victoria B. Albert (Alberts) appeal a judgment rendered in favor of plaintiffs, Mark W. Jack, Sr. and Catina Jack (Jacks), awarding the Jacks $8, 500.00 for damage caused to their property by the roots of a water oak tree situated on the boundary between the parties' adjoining properties. The Alberts also appeal a judgment denying their motion for a new trial. We reverse.

BACKGROUND

The Jacks are the owners of Lot 28 on 204 Martin Drive in New Roads, Louisiana. The Alberts are the owners of adjoining Lot 27. A large oak tree, four feet in diameter, is situated on the boundary between Lots 27 and 28. On March 14, 2017, the Jacks filed this lawsuit against the Alberts, seeking to recover for damages caused to their driveway by the root system of the oak tree, which encroached onto the Jacks' driveway. The Jacks alleged that the Alberts are the owners of the tree and sought to have the Alberts pay for the removal of the tree's roots pursuant to La. Civ. Code art. 688. Louisiana Civil Code article 688 gives a landowner the right to demand that the branches or roots of a neighbor's trees that extend over or into the landowner's property be trimmed at the neighbor's expense, provided that the roots or branches interfere with the enjoyment of the landowner's property. The Jacks sought to recover the costs and expenses to repair the driveway, as well as damages for inconvenience and mental anguish.1

At trial, the Jacks' case-in-chief consisted of the testimony of Mr. Jack, the testimony of a witness as to the cost to remove the roots and repair the Jacks' driveway, and 12 photographs depicting the oak tree and the damage to the Jacks' driveway caused by the encroachment of the tree's root system onto and under their driveway. The Alberts offered the testimony of a surveyor who prepared a survey map and who testified that the tree is located on the boundary between the Jacks' and the Alberts' properties. The Alberts argued at trial that this case is governed by La. Civ. Code art. 687. Louisiana Civil Code article 687 provides that trees on the boundary are common unless there is proof to the contrary. It gives an adjoining landowner the right to demand the removal of a tree on the boundary that interferes with the enjoyment of his estate, but he must bear the expense of the tree's removal. The Alberts asserted the tree, located on the boundary of the two properties, is presumed to be the common property of the Alberts and the Jacks, and because the Jacks offered no evidence to rebut the presumption of common ownership, the Jacks must bear the expense of the removal of the tree's roots and the damages occasioned by the encroachment of the roots onto their driveway.

At the conclusion of the trial, the court ruled in favor of the Jacks and against the Alberts. The trial court expressed its belief that the tree originated from Lot 27, the Alberts' property. The court concluded that the absence of evidence as to how the tree got there was not a factor to be considered. Instead, the court found that the photographs submitted by the Jacks showed that a large portion of the tree was on the Alberts' property and only a small portion of the tree was on the Jacks' property, and stated it would be "hard-pressed" to find the tree to be a common one under La. Civ. Code art. 687. Concluding that the tree was originally the Alberts' tree, the court found La. Civ. Code art. 688 applied in this case, and awarded damages in the amount of $8, 500.00 to the Jacks, representing the cost of the removal of the roots impacting the Jacks' property and the repair of that property.

On December 12, 2017, the trial court signed a judgment in favor of the Jacks and against the Alberts awarding the Jacks $8, 500.00. The heirs to the Alberts' successions filed a motion for a new trial, pursuant to which they argued that the court erred in applying La. Civ. Code art. 688 to the case as there was no testimony as to who actually owned the tree in question. In the absence of such testimony, the Alberts insisted that La. Civ. Code art. 687 governed this dispute, pursuant to which the tree on the boundary is the common property of the Alberts and the Jacks.

The trial court denied the motion for new trial, finding that while the survey showed that the tree was located in the middle of the property line, the photographs offered into evidence told another story. Specifically, relying on those photographs, the trial court concluded that the tree originated on the Alberts' property then grew closer to the Jacks' property. The court reached this conclusion from its appreciation that as a tree grows, it grows outward from the center in a fairly equal distance from the center all around, stressing that this was not a lopsided tree and there was nothing strange about the tree's growth. On April 30, 2018, the trial...

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