Trunk v. Berg

• Decision Date: 27 January 2004
• Docket Number: No. 03-CA-1120.,03-CA-1120.
• Citation: 866 So.2d 922
• Parties: Marsha TRUNK v. Patricia Mellen BERG, Carey L. Ernst Lambert, and Mark Lambert.
• Court: Court of Appeal of Louisiana — District of US

866 So.2d 922

Marsha TRUNK v. Patricia Mellen BERG, Carey L. Ernst Lambert, and Mark Lambert.

No. 03-CA-1120.

Court of Appeal of Louisiana, Fifth Circuit.

January 27, 2004.

Gary J. Giepert, Jack A. Ricci, Ricci & Giepert, New Orleans, LA, for Defendants-Appellants, Mark Lambert, Patricia Mellen Berg, and Carey Ernst Lambert.

Raymond B. Landry, Mollere, Flanagan & Landry, L.L.C., Metairie, LA, for Plaintiff-Appellee, Marsha Trunk.

Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE F. McMANUS.

SUSAN M. CHEHARDY, Judge.

This is a suit for declaratory judgment and injunctive relief. Defendants appeal a judgment finding that plaintiff has a servitude of passage over defendants' property and ordering defendants to remove a fence they erected on the property. We reverse.

Marsha Trunk (hereafter "Trunk") owns property at 6610-12 Bellaire Drive. She has owned the property since 1977; prior to that her father, Martial Voitier, owned it since 1958. Trunk's property adjoins property at 6614-16 Bellaire Drive, which is owned by Patricia Mellen Berg, Carey L. Ernst Lambert, and Mark Lambert (hereafter collectively called "Berg/Lambert").¹ Berg/Lambert bought the 6614-16 property in 1999 from Ivan Roby and Kittie Roby.

Each property has a house on it. Each house is approximately five feet from the common boundary. When Berg/Lambert purchased 6614-16 Bellaire, the area between the houses had a paved driveway ten feet wide on it (five feet on each property), which was accessible to both properties. At the time of the Berg/Lambert acquisition, there was a boat parked in the back yard of the Trunk property at the end of the paved driveway, which has remained in the Trunk yard.

On May 4, 2002 Berg/Lambert sent a letter addressed to Lawrence Trunk (plaintiff's son, who is the tenant at 6610-6612), advising him that Berg/Lambert planned to place a retaining wall between the properties, fill the lot, and replace the concrete. The letter stated that once the retaining wall was constructed, its presence would obstruct passage of the boat parked in the back yard of the Trunk property. The letter listed the construction deadline and advised that arrangements should be made to move the boat before it became trapped by the construction changes.

The boat was never moved and Berg/Lambert proceeded with their planned changes. In June 2000 Berg/Lambert removed the portion of the concrete driveway on their side of the property line, poured a retaining wall, and constructed a six-foot wooden privacy fence on the retaining wall that extends from the front yard all the way to the rear of the property.

On June 15, 2000, Trunk filed a suit for declaratory judgment to recognize a right or servitude of passage, for injunctive relief, and for damages. She alleged that the common paved driveway had existed between the properties for over 40 years, since at least 1958, and that the driveway permitted the only access to the rear of the Trunk property. She stated that since at least 1958 the owners of the Trunk and the Berg/Lambert properties, or their ancestors in title, have exercised actual, adverse, corporeal possession over the common driveway, which had been continuous, uninterrupted, peaceable, public, unequivocal, and within visible bounds.

Based on those allegations, plaintiff asserted the owners of both properties had acquired an apparent servitude over the common driveway through acquisitive prescription. She sought a declaratory judgment recognizing her right of passage or servitude of passage so acquired. Further, plaintiff sought an injunction to force defendants to remove the newly-constructed fence, which was trapping the boat owned by plaintiff's tenant (her son, Lawrence Trunk). She also sought to compel defendants to restore the common driveway to its former condition.

In their answer, defendants generally denied the substantive allegations of the petition, except to admit they had erected a fence along the property line established by their legal title to their property and, further, that they had provided notice of their intention to erect the fence by certified mail to both plaintiff and her tenant.

In addition, defendants filed an exception of lack of subject matter jurisdiction and a reconventional demand, while plaintiff filed an exception of no cause of action to the reconventional demand. In their exception defendants asserted that Jefferson Parish lacks subject matter jurisdiction because the property is located in Orleans Parish; their reconventional demand sought to recover attorney's fees, interest, and other damages sustained in defense of the suit. Plaintiff's exception asserted that defendants had no independent cause of action to recover attorney's fees and costs from her. Plaintiff also filed a motion for summary judgment.

The motion for summary judgment and the exceptions were still pending at the time of trial. The court never ruled on either exception and never ruled on defendants' reconventional demand. However, none of those issues have been raised on appeal.²

Prior to trial the parties stipulated to the following facts:

A. Marsha Trunk owns residential property located at 6610-12 Bellaire Drive (the "Trunk property").

B. Patricia Mellen Berg, Carey L. Ernst Lambert, and Mark Lambert (the "Defendants") own residential property located at 6614-16 Bellaire Drive (the "Berg/Lambert property").

C. The Trunk Property abuts the Berg/Lambert Property.

D. The legal description in the document through which the Defendants acquired their property in 1999 encompasses the portion of the pavement between the two properties but closest to the Berg/Lambert Property, including the portion of the pavement beneath the fence at issue.

E. The legal description in the document through which Marsha Trunk (or her family members, who are her ancestors in title) acquired her property in 1958 encompasses the portion of the portion of [sic] the pavement between the two properties but closest to the Trunk Property.

The parties also stipulated to the use of various exhibits, including photographs, surveys of both properties, the deposition of Ivan Roby (former owner of the Berg/Lambert property), and the letter dated May 4, 2000 from Mark Lambert to Lawrence Trunk.

In his deposition Ivan Roby testified he owned and lived at 6614 Bellaire Drive from 1961 to 1999. During that entire time the house next door was owned and occupied by members of plaintiff's family. There was an alleyway between the properties that was paved with concrete, which predated Roby's ownership of the property. When he first moved in the alleyway was used as a walkway by Mrs. Voitier (plaintiff's mother). Roby did not use it as a walkway, because his property had a fence up to the back of his house. Mrs. Voitier had no fence, however, and she used the walkway to access her back yard.

Roby testified he did use the alleyway to park his boat, which he pulled up to his fence, which came up to the back of his house. He never thought he owned the entire alleyway, but only the half of it along the fence line that was already there, but his boat straddled the walkway over onto the Trunk side. At one point Mrs. Voitier requested that he move the boat, so he moved it permanently. This was at some time prior to the late 1970s, because Mrs. Voitier died in the mid-to-late '70s.

According to Roby, plaintiff's family never used the alleyway as other than a walkway until "Young Larry" moved there and began using it to park his boat. Roby said the property was not used as a common driveway because the original fence prohibited passage of a vehicle through to the back yards.

Roby stated he had informed defendants that the alleyway was never used as a driveway. However, he admitted that "Mackey" Voitier, plaintiff's brother, had parked an automobile and motorcycle on it at times. Roby said the parking of his boat and Mackey's car and motorcycle occurred at "all separate times," "spread out... none of it conflicted with anyone else... if you had something to store you put it there as long as it wasn't in the way. Nobody complained about it."

Roby testified that prior to the act of sale, defendants asked him to speak to Lawrence Trunk about moving the boat. However, Roby did not recall ever doing so; Roby said he knew Trunk "was in the process of doing something with it." Roby said Trunk had some concrete work done in front of his house, where he parked his automobile. Roby said there was space in front of the Trunk house for a driveway that would not interfere with the driveway in front of Roby's house.

Asked whether there was any way to access either of the back yards other than by the alleyway, Roby said he had once moved a shed into his backyard by hauling it along the levee that runs behind both properties and removing a portion of the back fence to get it into his yard. However, Roby said, using the levee in that way is "not quite legal." Roby also stated he had seen the new fence placed by the defendants and to his eye it appeared to be in line with the original fence.

At trial the only testimony was from Martial Voitier, Jr., plaintiff's brother, also known as "Mackie." He testified that his parents purchased the house at 6610-12 Bellaire Drive in 1958, when he was in high school. Roby purchased the property at 6614-16 later. Voitier testified he moved away from his parents' home when he got married, in approximately 1967 or 1968. After his parents' death, Voitier owned the property with his sister until he sold his share to her.

Voitier testified there was a common driveway between the houses, just wide enough to put one car down the middle. Voitier said the two houses, 6610-12 and 6614-16, originally were built as four-unit rental property by the person who sold the house to the Voitier's parents. Voitier's parents considered buying both properties, but ultimately decided only to buy the one house. The concrete driveway...