Jackson v. Jackson
| Decision Date | 06 March 2002 |
| Docket Number | No. 2000 CA 2591.,No. 2000 CA 2592.,2000 CA 2591.,2000 CA 2592. |
| Citation | 818 So.2d 192 |
| Parties | Linda Ruth JACKSON v. Theresa JACKSON and Tap-J Industries, Inc. Tap-J Industries, Inc. v. Linda Jackson and Donald Townsend. |
| Court | Court of Appeal of Louisiana — District of US |
Robert H. Harrison, Jr., Denham Springs, Counsel for Plaintiffs-First Appellants Linda Jackson and Donald Townsend.
A. Shelby Easterly, III, Connie M. Eversberg, Denham Springs, Counsel for Defendants-Second Appellants Theresa Jackson and Tap-J Industries, Inc.
Before: CARTER, C.J., PARRO, and CLAIBORNE,1 JJ.
These appeals arise out of a dispute between adjacent landowners in Livingston Parish concerning the exercise, maintenance, and modification of a predial servitude of drain. Each party filed a lawsuit seeking injunctive relief and damages against the other. After an initial hearing regarding injunctive relief, the actions were consolidated for trial, a judgment was rendered, and the parties are now before this court on cross appeals.
These lawsuits involve certain property in Livingston Parish that was all originally owned by a single owner, Thomas C. Jackson. In approximately 1946, Mr. Jackson attempted to provide drainage for his property (the T.C. Jackson property) by digging a series of shallow ditches throughout the property. As part of this drainage plan, Mr. Jackson constructed a ditch that flowed from west to east across his property. The water flowing through this ditch eventually emptied into Colyell Creek.2 Because his property did not extend all the way to the creek, Mr. Jackson obtained an easement from Gaylord Container Company, the adjoining landowner to the east, which allowed him to construct another ditch connecting the west-east ditch on his property to the creek. There is a written agreement establishing this easement on the Gaylord property,3 but no written document exists detailing the drainage plan involving the ditch on what is now lot 4 of Mr. Jackson's former property.
Mr. Jackson died on April 10, 1966. Two years later his property was partitioned among his heirs and his widow. On May 5, 1971, his children partitioned the property allocated to them in indivision in the 1968 partition with their mother. His daughter, Linda Ruth Jackson, obtained lots 4, 5, and 8 of the newly partitioned property. The ditch at issue runs from west to east in the southern portion of lot 4. It is situated about 15 feet north of lot 3 on the west end of lot 4 to about 42 feet north of lot 3 on its east end. All of this portion of the ditch from west to east is contained within lot 4. (The head of the ditch is over 600 feet to the west of lot 4 where it intersects with two ditches—one from the south and one from the north— both of which flow into the subject ditch.)
By virtue of partitions and other acts, Theresa Jackson, the former sister-in-law of Linda Jackson, and Tap-J Industries, Inc., a Louisiana corporation wholly owned by Theresa Jackson, obtained lots 1, 2, 3, 6, 7, 9, 10, and 11 of the T.C. Jackson property. (Tap-J Industries and Theresa Jackson are hereinafter referred to as the developers.)
The T.C. Jackson property subdivision created by partition among the heirs has the following general configuration. On the northernmost portion of the property there is a row of four lots, numbered 9, 10, 11 and 12 from west to east. Immediately south of, and abutting, these lots is another row of four lots, numbered 5, 6, 7 and 8 from east to west. Immediately south of lot 5 is a row of four lots running from north to south and numbered 4, 3, 2 and 1.
Lot 3 belongs to the developers. Lot 4 is the property of Linda Jackson. This litigation is concerned mainly with these two lots. In addition to the lots above mentioned, the developers obtained an additional 20.82-acre tract of land that had also been part of the original T.C. Jackson property and had been allocated to Mr. Jackson's widow in the 1968 partition. This 20.82-acre tract adjoins lots 1, 2, and 3 on their western boundaries.
From the time of its initial construction, the ditch received little or no maintenance. The ditch had not been maintained at all for several years prior to 1995. Throughout this time, the ditch was shallow and only approximately 36 inches wide at the point where it entered the Gaylord property. It was fed by a single 24-inch culvert that ran under Mayer Street to the west of lot 4.4 Due to the many years of neglect, numerous small trees or saplings and shrubs had grown up in the bed of the ditch.
In 1995, the developers took steps to create a subdivision named Madison Oaks on their land. In connection with these plans, the developers hired a contractor to clear the ditch on lot 4 to improve the drainage of their property. The contractor entered lot 4 without prior notification to Linda Jackson and proceeded to clear the trees and shrubs from the existing ditch. In doing this work, the contractor cleared trees and brush in a wide path on Linda Jackson's property, and also significantly deepened and widened the existing ditch. In addition, the contractor left piles of debris and spoil on the property, and survey markers were disturbed. All of this clearing and dumping took place on the north side of the ditch on lot 4, rather than on the south side of the ditch closer to the developers' property.
On August 22, 1995, Linda Jackson filed suit in Livingston Parish against Theresa Jackson seeking damages for these actions, as well as a temporary restraining order (TRO) and a preliminary injunction.5 A TRO was issued ex parte without prior notice to the developers, but it was subsequently dissolved on August 31, 1995.6
In October of 1995, after the dissolution of the TRO, the developers again entered lot 4 to further modify the ditch. Specifically, the developers removed the original culvert that ran under Mayer Street and replaced it with three 36-inch culverts. The developers also dug a new 4 ½-foot by 15-foot ditch along the southwest boundary of lot 4 near Mayer Street, where no ditch had previously existed. This new ditch was placed so that it also drained into the existing ditch. Finally, a new 42-inch culvert was installed in connection with the new ditch.
Almost immediately after these modifications and installations were completed, Linda Jackson began to have problems with flooding and standing water on her property, even after periods of only moderate rainfall. Therefore, in April of 1996, Linda Jackson attempted to restore the ditch to its original condition. To that end, she completely blocked off two of the three 36-inch culverts, and partially blocked the third culvert so that it had only a 24-inch opening. She also purchased 2,448 cubic feet of dirt and used it to fill up the ditch to what she alleged was its original depth.
In response to these actions, Tap-J Industries filed suit against Linda Jackson and her husband, Donald Townsend, seeking damages and injunctive relief. A hearing on the request for the preliminary injunction was held on July 15, 1996. Ultimately, the trial judge determined that a servitude of drain created by destination of the owner existed over lot 4 in favor of the developers' property. The trial court then granted the preliminary injunction preventing Linda Jackson and her husband from obstructing or filling the drainage ditch and further ordered them to remove the fill dirt and any other obstructions to drainage. The remaining issues of damages raised in each of the lawsuits were consolidated for trial.
A trial on these issues was held on February 17, 2000. The trial judge reiterated his finding that a predial servitude of drain created by destination of the former owner existed across lot 4 in favor of the property of the developers. Linda Jackson and her husband were permanently enjoined from obstructing or interfering with that servitude of drain. In addition, the court awarded damages in the amount of $12,500 to Linda Jackson, because "the property was not returned to the same condition prior to the storing of the spoil," but denied any award of damages for trespass or for Linda Jackson's claim that the exercise of the servitude had become more burdensome. Finally, the court awarded damages to the developers in the amount of $2,500 for wrongful issuance of the original TRO, and also awarded them damages in the amount of $10,000 for damage to improvements in the subdivision caused by the blockage of the culverts. Both parties have filed devolutive appeals to this court.
Linda Jackson relies on four assignments of error in attempting to reverse the decision of the trial court. Specifically, she contends, in assignments of error numbers 1 and 2, that the developers' actions with respect to the ditch on lot 4 amounted to an unlawful modification of the existing servitude and rendered the exercise of the servitude more burdensome on the servient estate. She also challenges, in assignment of error number 3, the failure of the trial court to find that the developers had committed a trespass on lot 4 by constructing a new ditch. In assignment of error number 4, she contends the court erred by finding her in violation of the TRO and awarding damages therefor. Actually, the developers did not pray for a TRO. Although the order signed by the court is entitled "Temporary restraining order and rule to show cause," it only orders Linda Jackson and her husband to show cause why a preliminary injunction should not issue restraining, enjoining and mandating various acts. Judgment ordering the preliminary injunction was not rendered until October 2, 1996. Moreover, the trial court did not find her in violation. Finally, she argues that the trial court should not have awarded damages in favor of the developers for the blockage of the ditch.
The developers have also appealed citing two assignments of error, both revolving around the issues...
To continue reading
Request your trial
-
Steven v. Jury
...424 So.2d 348 (La.App. 2d Cir.1982); Duet v. Louisiana Power and Light Co., 169 F.Supp. 184 (E.D.La.1958); Jackson v. Jackson, 00–2591 (La.App. 1st Cir.3/6/02), 818 So.2d 192. The statutory dedication of this right of use servitude was an act transferring an immovable in which the participa......
-
Steven v. Jury
...424 So.2d 348 (La. App. 2d Cir. 1982); Duet v. Louisiana Power and Light Co., 169 F.Supp.184 (E.D. La. 1958); Jackson v. Jackson, 00-2591 (La. App. 1st Cir. 3/6/02), 818 So.2d 192. The statutory dedication of this right of use servitude was an act transferring an immovable in which the part......
-
Carbo v. City of Slidell
... ... They are to be exercised in a way least inconvenient for the property burdened by the servitude. La. C.C. art. 743; Jackson v. Jackson, 2000-2591, p. 10 (La.App. 1 Cir. 3/6/02), 818 So.2d 192, 199. See generally A. Yiannopoulos, 3 La. Civ. Law Treatise, Personal ... ...
-
Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership
...to make all works necessary for the use and preservation of the servitude at his expense. LSA-C.C. art. 744; Jackson v. Jackson, 00-2591 (La.App. 1st Cir.3/6/02), 818 So.2d 192, 198. In order to make use of the unpaved portion of the servitude of passage, Palace has to pave it. As noted by ......
-
The Writing's on the Wall: The Intent Requirement in Louisiana Destination Law
...(holding that because underground pipes were nonapparent, no servitude of aqueduct was created under article 741); Jackson v. Jackson, 818 So. 2d 192, 197–98 (La. Ct. App. 1st 2002) (concluding that an apparent servitude of drain was created the moment that the property was partitioned); Gr......