THIELS v. Dennis

• Decision Date: 03 February 2010
• Docket Number: No. 09-957.,09-957.
• Citation: 29 So.3d 715
• Parties: Thomas F. THIELS, et ux. v. Jonas Jeron DENNIS, et ux.
• Court: Court of Appeal of Louisiana — District of US

29 So.3d 715

Thomas F. THIELS, et ux. v. Jonas Jeron DENNIS, et ux.

No. 09-957.

Court of Appeal of Louisiana, Third Circuit.

February 3, 2010.

Ricky L. Sooter, George I. Fine, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Plaintiffs/Appellants, Thomas F. Thiels and Virginia Hanes Thiels.

James E. Uschold, New Orleans, LA, Randal Bryan Tannehill, Tannehill & Sylvester, Pineville, LA, for Defendants/Appellees, Jonas Jeron Dennis and Helen Winn Dennis.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.

THIBODEAUX, Chief Judge.

Plaintiffs, Thomas and Virginia Thiels, seek to enforce a servitude of passage and to prohibit a neighboring property owner from interfering with that servitude. Though the trial court ruled that the neighboring property owners' gate crossing the servitude interfered with the right of passage, the trial court allowed the brick columns erected on the servitude to remain. Mr. and Mrs. Thiels appeal this portion of the trial court's judgment because the brick columns unlawfully encumber the right of passage and, thus, must be removed. For the following reasons, we affirm in part and reverse in part in favor of Mr. and Mrs. Thiels. The title creating the servitude is clear regarding the width of the servitude of passage.

I. ISSUE

We must decide whether the trial court erred in refusing to order the demolition of the brick columns erected on the servitude of passage.

II. FACTS AND PROCEDURAL HISTORY

On October 8, 1979, Judy Thiels Snow and James A. Snow conveyed a twenty-four acre¹ tract of land in Rapides Parish to Mr. and Mrs. Thiels. That same day, the Snows granted a fifty-foot wide predial servitude in favor of the twenty-four acres acquired by Mr. and Mrs. Thiels. Thereafter, the Snows conveyed to them an additional tract of land traversed by the aforementioned predial servitude.

In May 1982, James A. Snow and Judy M. Thiels conveyed the five acre servient estate by cash sale to Hardy LaCour. The survey attached to the sale to LaCour clearly shows the fifty-foot wide predial servitude at issue. In November 2006, the LaCour heirs sold the servient estate to Defendants, Jonas and Helen Dennis. The legal description in the Act of Cash Sale of the servient estate to Mr. and Mrs. Dennis specifically refers to the original survey which shows the predial servitude.

The dominant estate has been farmed since Mr. and Mrs. Thiels' original acquisition of the property in 1979. Beginning in 1998, they leased the dominant estate to Thomas Vanderlick. Vanderlick, his various family members, and vendors have used the predial servitude of passage to gain access to the dominant estate.

In September 2007, Thomas Thiels discovered that Mr. and Mrs. Dennis were erecting brick columns and a gate across the servitude of passage. Mr. Thiels advised the work crew of his servitude, but the work continued. Mr. and Mrs. Dennis then placed a locked gate on the servitude area.

Mr. and Mrs. Thiels filed a petition for possession and preliminary and permanent injunction seeking removal of the obstruction. The trial court issued a preliminary injunction restraining Mr. and Mrs. Dennis, or anyone acting on their behalf, from maintaining or erecting any fences, gates, or improvements within the predial servitude of passage. The trial court ordered them to restore access to the predial servitude within fifteen days.

The trial court held a trial on the permanent injunction. The trial court entered a permanent injunction directing the removal of the gates but allowing the servient estate to maintain the brick columns. The court referenced testimony from Vanderlick regarding his use of the servitude² and reasoned that the brick columns did not impair Vanderlick's current use of the servitude.

III.

LAW AND DISCUSSION

Standard of Review

This case poses a question of law, as it involves the interpretation of codal articles. Thus, the appropriate standard of review is de novo.

An appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court's decision was based on its erroneous interpretation or application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.

Domingue v. Bodin, 08-62, p. 2 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 (citations omitted).

Moreover, under the de novo standard of review, the appellate court gives no additional weight to the trial court but, instead, conducts a de novo review and renders judgment on the record. Id. Accordingly, we will review the record in its entirety to determine whether the trial court's decision was legally correct.

Use and Extent of the Predial Servitude

Louisiana Civil Code Article 748 governs this servitude of passage, established by title. This article states, in part, "the owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude." Moreover, as the Louisiana First Circuit Court of Appeal stated in Dupont v. Hebert, 06-2334, pp. 8-9 (La.App. 1 Cir. 2/20/08), 984 So.2d 800, 807, writ denied, 08-640 (La.5/9/08), 980 So.2d 695 (citations omitted):

The use and extent of a predial servitude are regulated by the title by which they are created and in the absence of such regulation, they are governed by the rules set forth in LSA-C.C.

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