Citation871 So.2d 630
Decision Date31 March 2004
Docket NumberNo. 03-767.,03-767.
CourtCourt of Appeal of Louisiana (US)

C. Eston Singletary, Jr., Scofield, Gerard, Veron, Singletary & Pohorelsky, Russell J. Stutes, Jr., Lake Charles, LA, for Plaintiff/Appellant, the Southern Amusement Co., Inc.

Rudie Ray Soileau, Jr., David Dwight, Lake Charles, LA, for Defendant/Appellee, Pat's of Henderson Seafood & Steak, Inc.

Christopher E. John, Lake Charles, LA, for Intervenor/Appellee, City of Lake Charles.



The plaintiff, Southern Amusement Company, Inc., appeals the judgment of the trial court denying its motion for a new trial on the issue of whether a private and public servitude exists on property owned by the defendant, Pat's of Henderson Seafood and Steaks, Inc. We affirm in part, reverse in part, and render.


On September 30, 1977, Joseph and Shirley McIver, Jr. and Robert and Mary Elam purchased a tract of land containing 28.56 acres, located in Section 3, Township 10 South, Range 8 West, from the Board of Trustees of State Colleges and Universities of the State of Louisiana and McNeese State University. The property, located in Lake Charles, Louisiana, is bordered on the east by the Interstate 210 Bypass, on the south by Avenue "J," on the west by Kayouche Coulee, and on the north by private property. Contained within the Cash Deed is the following language:

As a part of the consideration for this sale, Vendor and Vendee hereby dedicate to the City of Lake Charles, all road rights-of-way shown on the attached plat of survey dated June 7, 1977, Whitaker & Webb, Civil Engineers, for Jacox Lane, Von Blond Drive, and over the North 30 feet and the Easterly 50 feet of the property.

A notation on the attached survey of the property reiterates: "1. Vendor and Vendee hereby dedicates for public use all Right of Ways for roads and streets as shown above." This Cash Deed was filed in the conveyance records of Calcasieu Parish on October 12, 1977. An Act of Correction of Deed was filed in the conveyance records by these same parties on October 19, 1981, whereby a correction was made to the point of commencement of the legal description of the property. Otherwise, the contents of the Cash Deed remained unchanged.

This lawsuit stems from the reservation of a servitude for a proposed road contained in a February 6, 1981 Cash Sale Deed, in which the McIvers and the Elams conveyed a portion of the above tract to Richard and Nancy Perioux. The property sold was located in the southeastern corner of the tract and is bounded on the east by the Interstate 210 Bypass, on the south by Avenue J, and on the north and west by property owned by the Elams and McIvers, which includes a subdivision to the north known as "The Hamlet." The Cash Sale Deed contains the following language:

Thence North 89 57' 30" West 388.25 feet along the South line of Lots 1, 2, and 3 of Block 3 of "The Hamlet" Subdivision to the point of commencement, containing 97,219 square feet of area and subject to a 50 foot wide easement for a proposed road along the East side and a drainage easement along the South side.

(Emphasis added).

On April 26, 1982, the Periouxs executed a Cash Deed in favor of Pat's of Henderson Seafood and Steaks, Inc., which conveyed the above described property to them. The Cash Deed contained the same language reserving the fifty-foot easement for a proposed road.

Southern Amusement also owned property located in Section 3, Township 10 South, Range 8 West, located north of the McIver and Elam tract and bounded north by Broad Street. In 1988, Wal-Mart Properties, Inc. approached Southern Amusement with the intent of purchasing a portion of its property in order to construct a Sam's Club. Southern Amusement was amenable to the proposition, however, it requested that the deal be structured as an act of exchange for tax purposes. As part of the exchange, Wal-Mart agreed to purchase a tract of land from the McIvers and Elams and transfer it, along with a sum of money, to Southern Amusement, in exchange for the property fronting Broad Street. Wal-Mart purchased the property, located just north of "The Hamlet" Subdivision, from the McIvers and Elams, on April 26, 1988. The Cash Deed contained the following language:

[C]ontaining 8.00 acres more or less, together with a servitude and/or road right-of-way 50 feet wide running from the Southeast corner of this property along the West right-of-way line of I-210 By Pass, 440 feet more or less to the North line of Avenue "J". Sellers agree to pay the cost of paving suitable for dedication of that portion of the servitude affecting Lot 1 of Block 2 and Lot 1 of Block 3 of Hamlet Subdivision. Sellers convey to purchaser the joint use of the servitude sellers reserved in that sale recorded in COB 1416, page 488, corrected in COB 1648, page 596.

The Act of Exchange was executed by Wal-Mart and Southern Amusement on April 25 and 27, 1988, wherein Southern Amusement became the owner of the afore described eight acres.

In 1997, Southern Amusement became interested in developing its property and wished to gain access to the southern portion through the servitudes contained in the above described conveyances. In furtherance of this desire, George Crosby, the vice-president and secretary of Southern Amusement, contacted Richard Perioux about executing a document formalizing all of the servitudes listed in the conveyances. Although Perioux agreed to discuss the matter with Crosby, he refused to sign the document, on the advice of his attorney, based upon a belief that the servitude across the easternmost portion of his property had prescribed after ten years of nonuse.

On July 1, 1998, Southern Amusement filed a Petition for Declaratory Judgment seeking a declaration that a servitude granted by the Periouxs, and later Pat's, in favor of the Elams and McIvers, and later Southern Amusement, still exists and has not prescribed through nonuse. In response, Pat's filed a peremptory exception of prescription arguing that the predial servitude had prescribed through nonuse of ten years. Following a hearing, Judge Gregory Lyons sustained Pat's exception of liberative prescription and dismissed Southern Amusement's petition for declaratory judgment with prejudice. Judgment was rendered in this matter on May 10, 1999.

On May 24, 1999, Southern Amusement filed a motion for a new trial alleging evidence of the public servitude granted in favor of Lake Charles by the Elams and McIvers and the Board of Trustees and McNeese in their 1977 Cash Deed and the 1981 correction. It argued that the newly discovered servitude established a formal dedication of the property and transferred ownership of the property to Lake Charles. Thus, it argued that the servitude could not be lost through nonuse. In the alternative, it argued that an implied dedication was created and that use of the road had occurred, as found by the trial court.

On April 24, 2000, Lake Charles intervened in this matter seeking a declaratory judgment that it owned the property over which the public servitude was dedicated, via the 1977 Cash Deed and the 1981 Act of Correction of Deed, or, in the alternative, that the dedication established a servitude of public use, which had not prescribed. Following a hearing on the motion, Judge D. Kent Savoie, sitting for the then retired Judge Lyons, denied Southern Amusement's motion for a new trial and, further, denied Lake Charles' petition in intervention. This appeal by Southern Amusement followed.


On appeal, Southern Amusement raises numerous errors allegedly committed by the trial court. It argues that the trial court erred in finding that both the private and public servitudes had prescribed through nonuse and that the construction of a fence by Pat's did not suspend the running of prescription. It further argues that the trial court committed legal error in finding that the sole purpose of the servitudes was for the construction of a road from Siebarth Drive to Broad Street, in relying on parol evidence to reach that conclusion, and by not applying the public records doctrine to defeat an alleged oral agreement between the Elams and McIvers and the Periouxs. Southern Amusement next argues that the trial court erred in denying its motion of a new trial, without considering its good grounds, and in finding that the 1977 Cash Deed did not formally dedicate full ownership of the subject strip of land, or, in the alternative, that it did not formally dedicate a public servitude. Finally, it argues that the trial court erred in finding that the public servitude had prescribed through nonuse, even though it found that the servitude had been used, but not for the supposed purpose of traveling from Siebarth Drive to Broad Street.


The Louisiana Code of Civil Procedure provides two instances under which a motion for new trial will be granted. Louisiana Code of Civil Procedure Article 1972 provides peremptory grounds under which such a motion will be granted:

1. When the verdict or judgment appears clearly contrary to the law and the evidence.
2. When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
3. When the jury was bribed or has behaved improperly so that impartial justice has not been done.

Louisiana Code of Civil Procedure Article 1973 further provides that a motion for new trial may also be granted "if there is good ground therefore, except as otherwise provided by law." In both instances, the trial court is accorded vast discretion in deciding whether to grant the motion; its decision whether to do so is reviewed pursuant to the abuse of discretion standard of review. Davis...

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