Bradford Land Company, L.L.C. v. Montagnet Properties 2, L.L.C.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

r
Wv 2021 CA 1393

BRADFORDBRADFORD LANDLAND COMPANY,COMPANY, L.L. LC.LC.

VERSUSVERSUS

MONTAGNETMONTAGNET PROPERTIESPROPERTIES
# # 2,2, L.L. L.L. C.C.

Judgment Judgment Rendered:Rendered:
NOVNOV 1717 20222022

OnOn AppealAppeal fromfrom thethe TwentyTwenty
- - SecondSecond JudicialJudicial DistrictDistrict CourtCourt
InIn andand forfor thethe ParishParish ofof St.St. TammanyTammany
StateState ofof LouisianaLouisiana
DocketDocket No.No. 2011-2011- 1534015340

HonorableHonorable ReginaldReginald T.T. Badeaux,Badeaux, III,III, JudgeJudge PresidingPresiding

AllisonAllison C.C. BondurantBondurant CounselCounsel forfor Plaintiff/Plaintiff/ AppelleeAppellee
BrittanyBrittany J.J. WalkerWalker BradfordBradford LandLand Company,Company, L.L. L.L. C.C.
Madisonville,Madisonville, LouisianaLouisiana

ReneeRenee S.S. MelchiodeMelchiode CounselCounsel forfor Defendant/Defendant/ Appellant Appellant
BenjaminBenjamin M.M. Pri-Pri- TalTal MontagnetMontagnet PropertiesProperties
# # 2,2, L.L. L.L. C.C.
NewNew Orleans,Orleans, LouisianaLouisiana

BEFORE:BEFORE: McCLENDON,McCLENDON, WELCH,WELCH, ANDAND THERIOT,THERIOT, JJ.JJ.

McCLENDON, J.

In this case involving a boundary dispute, the defendant appeals the judgment of

the trial court in favor of the plaintiff. The plaintiff answered the appeal. For the

reasons that follow, we amend the judgment in part, affirm as amended, and remand

with instructions.

FACTS AND PROCEDURAL HISTORY

On August 29, 1977, Dayle L. Bradford acquired Lot 290 in Flower Estates

Subdivision in Covington, Louisiana. On December 31, 2003, James L. Bradford, Jr.,

M. D., and Dayle L. Bradford transferred their interest in Lot 290 to Bradford Land

Company, LLC ( Bradford Land) by deed entitled Transfer of Property as Capital

Contribution.' Bradford Land remains the record title holder of Lot 290. On May 22,

1998, Oliver S. Montagnet, Jr. and Monica Cummings Montagnet acquired Lot 289 in

Flower Estates Subdivision by rash sale. On August 26, 1998, the Montagnets sold Lot

289 to Montagnet Properties # 2, LLC ( MP# 2). 2 MP# 2 remains the record title holder of

Lot 289. Lot 289 and Lot 290 are adjacent to each other and share a common

boundary line. Both lots front on Louisiana Highway 21. 3

In early 1999, MP# 2 completed construction of a commercial building, parking

lot, and other improvements on Lot 289, and on January 27, 1999, received a final

inspection certificate from the City of Covington. MP# 2 requested a survey of Lot 289,

and Billy C. Daniels prepared a survey, dated February 10, 1999, of " 1. 00 acre of land

being Lot No. 289 Flowers Estates Subdivision Covington St. Tammany Parish

Louisiana," showing the building within the boundaries of Lot 289. Thereafter, on April

8, 1999, the City notified MP# 2 that it had re -inspected the property and found items

not in compliance with the Covington Code of Ordinances, including a five- foot setback

1 Lot 290 was described as containing " 100 feet on La. State Highway No. 21, by a depth of 400 feet
along its side line common to Lot 289, by a depth of 400 feet along its side line common to Lot 291, and
by a distance in the rear of 100 feet." In the transfer to Bradford Land, Dr. Bradford was identified as
the duly authorized manager for Bradford Land.

z In the sale, Lot 289 was described as " 100 feet front on Louisiana Hwy. No. 21, having a width in the
rear of 100 feet, by a depth of 400 feet on each side line."

3 The transfers to Bradford Land and MP# 2 both reference that the respective lots are described in
accordance with the survey and plan of E. J. Champagne, Surveyor, dated January 22, 1956.

2

requirement. Subsequently, the City and MP# 2 entered into a consent judgment, which

was signed by the trial court on December 19, 2000.

In 2006, in connection with a loan, MP# 2 requested another survey of Lot 289

and hired Joseph M. Marques. The Marques survey, dated December 18, 2006,

indicated that the improvements on Lot 289 were within the boundary lines for Lot 289.

Beginning in 2006, the Louisiana Department of Transportation and Development

DOTD) began a government expropriation of certain property for the widening of a

section of Highway 21. In connection therewith, Louisiana Property Acquisition

Company ( LaPAC) managed the acquisition process for the forty- two parcels that were

procured for the project, including portions of Lots 289 and 290 fronting on Highway

21. 4 During the course of the project, LaPAC hired John E. Bonneau & Associates

Bonneau) to survey the lots. The Bonneau survey, dated May 14, 2007, showed that

the State acquired 6. 97 feet from the boundary between Lot 289 and Lot 290.

Sometime in 2007, Bonneau notified Bradford Land that MP# 2' s improvements

on Lot 289 might be encroaching on Lot 290. Bradford Land did not take any action

regarding the disputed building location or setbacks until it sent a letter, dated August

28, 2009, through its attorney, to MP# 2, alleging that the improvements on Lot 289

encroached onto Lot 290 and demanding equitable rent for the property encroached

upon. The letter also attached a survey performed by Mr. Bonneau, dated June 17,

20097 showing the alleged encroachments.

On September 16, 2011, Bradford Land filed suit against MP# 2, asserting that

MP# 2 constructed parking structures, concrete pads, sewer and drain cleanouts, as well

as piping, across the Lot 289 boundary line and onto Lot 290 illegally and without the

permission of Bradford Land. Bradford Land sought a declaration that the

improvements encroached onto Lot 290, the removal of the encroachments at MP# 2' s

cost, and reasonable rent for the time of the encroachment. Bradford Land also asked

for damages for the encroachments and for the violation of the setback requirements.

4 we note that Dr. Bradford' s son, James L. Bradford, III, was involved in the 2007- 2008 project as
project manager for LaPAC.

3

In response, MP# 2 filed a peremptory exception raising the objections of

prescription, no cause of action, and peremption on January 11, 2012. Bradford Land

opposed the exceptions. Following a hearing, the exceptions were denied, and the trial

court signed a judgment denying same on April 26, 2013.

Subsequently, the trial court held a two- day bench trial on July 22 and 23, 2020.

The parties stipulated that MP# 2 is the record title owner of Lot 289 and that Bradford

Land is the record title owner of Lot 290. Both parties submitted separate surveys and

expert surveyor testimony. Bradford Land offered the surveys of John E. Bonneau and

John Brandon McCain, along with their expert testimony, which showed that the 1999

improvements on Lot 289 extend more than three feet past the boundary between the

properties. 5 Bradford Land also offered the 2012 survey of Michael P. Maillet,

performed for DOTD in connection with a second improvement project along Highway

21.

MP# 2 relied on the Daniels and Marques surveys, and offered the expert

testimony of Mr. Marques, for its position that none of the improvements extended over

the boundary between the two properties. MP# 2 argued that it was the title owner of

the disputed area, but even if it was not, it possessed the land in good faith and with

just title for over ten years and was therefore the owner by acquisitive prescription.

The trial court took the matter under advisement, post -trial briefs were filed, and

on January 8, 2021, the trial court issued its judgment and written reasons, fixing the

boundary as depicted in the surveys of Mr. Bonneau and Mr. McCain. In its written

reasons, the trial court determined that the Bonneau and McCain surveys provided the

most reliable and accurate evidence of the boundary' s location. The court found that

the opinions of Mr. Bonneau and Mr. McCain showed definitive proof of the boundary at

issue since they relied on the record title documents of ownership and the subdivision

plats, after finding that the boundary could not be located based on the subdivision

plats alone. The trial court also determined that Mr. Bonneau and Mr. McCain had the

most reliable data because they surveyed the entirety of Highway 21 corridor from

5
The Bonneau survey, dated June 17, 2009, and revised October 25, 2012, showed the furthest
encroachment at 3. 5 feet. The McCain survey, dated October 27, 2012, and prepared by John S.
Teegarden, surveyor, showed the farthest encroachment at 4.6 feet.

El.

Interstate 12 north to the Tchefuncte River Bridge, and they also properly used the

hierarchy of calls and the data acquired to determine the boundary location. The trial

court determined that the Daniels survey only located the building on Lot 289, with a

vague reference to concrete parking, and did not identify the sewer cleanouts, concrete

pads, concrete retaining wall, fencing, and bounds of the parking concrete.

After fixing the boundary line, the trial court concluded that the building and

improvements on Lot 289 encroached onto Lot 290. 6 The court then found LSA-C. C.

art. 670 applicable and ordered the establishment of a predial servitude. Article 670

provides:

When a landowner constructs in good faith a building that
encroaches on an adjacent estate and the owner of that estate does not
complain within a reasonable time after he knew or should have known of
the encroachment, or in any event complains only after the construction is
substantially completed the court may allow the building to remain. The
owner of the building acquires a predial servitude on the land occupied by
the building upon payment of compensation for the value of the servitude
taken and for any other damage that the neighbor has suffered.

With respect to damages, the trial court found that the only expert opinion was

that given by Bradford Land' s expert, Ashton Ray, a licensed appraiser, who appraised

the fair market value of the portion of Lot 290 used by MP# 2, and found it to be worth

14. 50 per square foot. Mr. Ray also opined that the servitude should have a width of

six feet and be a straight line, as opposed to a jagged or saw-toothed line. This

resulted in a total appraisal price of $ 33, 500. 00. 7 The trial court agreed and awarded

Bradford Land $ 33, 500. 00 for the market value of the predial servitude. However, the

trial court declined to award fair market rent for the property encroached upon by

MP# 2 in the amount of $53, 000. 00, as Bradford Land requested. The court found that

amount to be speculative and pointed out that Bradford Land was not using the land in

question for any purpose and that Lot 290 remains undeveloped.

G We note that Mr. McCain testified that the entire building itself was within the bounds of Lot 289. In its
written reasons, the trial court stated that the building was not in dispute between the parties, but that
what was disputed was the location of the sewer cleanouts, concrete pads, the concrete retaining wall,
fencing, and bounds of the parking lot. The trial court then referred to the building and improvements on
Lot 289 that encroached on Lot 290.

The trial court acknowledged that the farthest encroachment on Lot 290 was 4. 6 feet from the
property boundary line, but agreed with Mr. Ray that a buffer between MP# 2's constructions and
potential future developments on Lot 290 was appropriate.

E

Thus, the January 8, 2021 judgment judicially fixed the boundary as depicted in

the Bonneau and McCain surveys as the conclusive location of the boundary between

the lots; granted a predial servitude over the area of the encroached land with a width

of six feet from the boundary line, running " from the entire boundary of Lot 289 and

onto Lot 290"; awarded the fair market value of the predial servitude in the amount of

33, 500. 00 to Bradford Land from MP# 2; and cast all costs, including expert witness

fees, against MP# 2.

MP# 2 appealed the judgment and assigned the following as error:

1. The trial court committed legal error when it failed to determine that MP# 2 had

acquired the alleged strip of land via acquisitive prescription after MP# 2

established possession for more than ten years in good faith and just title based

on recorded surveys.

2. The trial court committed legal error and utilized the incorrect burden of proof

when determining who had better title to the land in dispute.

3. The trial court committed legal error when it adopted the findings of two

different surveys to determine the boundary line despite the inherent defects in

the surveys and despite their inconsistencies.

4. Alternatively, the trial court manifestly erred when it ruled that the Bonneau and

McCain surveys determined the boundary when the surveyors themselves

removed the original markings and replaced them with others while in Bradford

Land' s employment.

5. The trial court legally erred because Bradford Land' s claim for damages

prescribed or was otherwise preempted as suit was filed more than twelve years

after completion of the improvements and more than one year after Bradford

Land discovered the alleged encroachment.

6. Alternatively, the trial court awarded legally incorrect damages as the City of

Covington preempted this issue when it ruled via Consent Judgment that MP# 2

did not violate any setbacks and no law provided damages to Bradford Land for a

buffer zone beyond the actual encroachment.

0

Bradford Land answered the appeal, seeking modification of the January 8, 2021

judgment, and assigned as error, the following:

1. The trial court erred in failing to grant Bradford Land judicial interest from the

date of judicial demand, although the trial court's Written Reasons for Judgment

correctly provided for judicial interest from the date of demand.

2. The trial court erred in failing to grant Bradford Land fair market rent for the

portion of Lot 290 encroached upon by MP# 2 from the construction of the

encroachment through the date of the January 8, 2021 judgment.

3. The trial court erred in failing to decree that the predial servitude granted to

MP# 2 is limited and does not allow MP# 2 to construct any additional

encroachments onto Lot 290 beyond what existed at the time of the January 8,

2021 judgment.

4. The trial court erred in failing to decree that the predial servitude shall extinguish

in accordance with law.

STANDARD OF REVIEW

It is well settled that a court of appeal may not set aside a trial court's or a jury's

finding of fact in the absence of " manifest error" or unless it is " clearly wrong." Rosell

v. ESCO, 549 So. 2d 840, 844 ( La. 1989). Where there is conflict in the testimony,

reasonable evaluations of credibility and reasonable inferences of fact should not be

disturbed upon review, even though the appellate court may feel that its own

evaluations and inferences are as reasonable. Id. The location of a boundary line is a

question of fact, and the determination of its location by the trial court should not be

reversed absent manifest error. Marcello v. Jo -Blanche Corporation, 20- 1113

La. App. 1 Or. 6/ 4/ 21), 330 So. 3d 632, 639, writ denied, 21- 1666 ( La. 1/ 19/ 22), 331

So. 3d 330.

A legal error occurs when a trial court applies incorrect principles of law and such

errors are prejudicial. Legal errors are prejudicial when they materially affect the

outcome and deprive a party of substantial rights. Evans v. Lungriin, 97- 0541 ( La.

2/ 6/ 98), 708 So. 2d 731, 735.

7

DISCUSSION

The Boundary Location

MP# 2 first argues that the trial court erred in determining a boundary line, since

it has clear title to Lot 289 and owns the land, building, and component parts, by ten-

year acquisitive prescription, based on its surveys and just title. Louisiana Civil Code

article 3475 provides that "[ t] he requisites for the acquisitive prescription of ten years

are: possession of ten years, good faith, just title, and a thing susceptible of acquisition

by prescription." The only requirement at issue before us is just title.

Just title" is defined in LSA -C -C. art. 3483 as " a juridical act, such as a sale,

exchange, or donation, sufficient to transfer ownership or another real right. The act

must be written, valid in form, and filed for registry in the conveyance records of the

parish in which the immovable is situated." Thus, to have just title over particular

property for purposes of ten- year acquisitive prescription, one must have a recorded act

translative of title that contains a description of the property at issue.

The August 26, 1998 sale of Lot 289 to MP# 2 referenced the "survey and plan of

E. J. Champagne, Surveyor, dated January 22nd, 1956" being the same property

acquired by the Montagnets in the " act of sale dated May 22, 1998." However, the

Champagne survey did not describe the boundary between Lot 289 and Lot 290 in

sufficient detail to show whether the improvements are inside the boundaries of Lot

289. 8

The trial court determined that MP# 2 did not have an act translative of title to

the property upon which the alleged encroachments sit, and therefore, MP# 2 failed to

establish the requirement of just title for the purposes of acquisitive prescription. On

appeal, MP# 2 asserts that the consent judgment it obtained in the litigation with the

City of Covington regarding MP# 2' s " setback and boundaries" and the survey by Mr.

Daniels, dated May 21, 1998, filed in the public records, provides just title to the

property at issue.

8
Mr. Bonneau and Mr. McCain testified that the Champagne survey does not detail the original
monuments and is missing curve data, courses, and angles necessary to determine the precise location of
the boundary between Lot 289 and Lot 290.

However, a judgment does not constitute a just title as it is declarative rather

than translative of rights. See LSA- C. C. art. 3483, Revision Comments ( b). Further, the

consent judgment made no finding or judgment regarding the boundary to Lot 289 nor

was it translative of any rights. Additionally, the recordation of the Daniels survey did

not transfer any rights to MP# 2 and did not provide a just title. Accordingly, without

just title, MP# 2 failed to establish that it was the owner of the encroached property

based on ten- year acquisitive prescription, and this assignment of error lacks merit.

MP# 2 next claims that the trial court erred in using the wrong burden of proof in

establishing the boundary. Specifically, MP# 2 argues that the trial court failed to apply
9
the elements of proof set forth in LSA- C. C. P. art. 3654 governing proof of ownership.

MP# 2 avers that Bradford Land must establish " title good against the world" because

MP# 2 is the " presumed owner" of the property containing the encroachments because

it is in possession thereof. MP# 2 contends that Bradford Land failed to show better

title and that the boundary should be placed based on MP# 2' s possession of the

building and its components.

An action to fix the boundary is an ordinary proceeding. LSA- C. C. P. art. 3691.

The boundary may be fixed upon the demand of an owner or of one who possesses as

owner. LSA- C. C. art. 786. After considering the evidence, including the testimony and

exhibits of a surveyor or other expert appointed by the court or by a party, the court

shall render judgment fixing the boundary between the contiguous lands in accordance

with the ownership or possession of the parties. LSA-C. C. P. art. 3693; Presswood v.

9 Louisiana Code of Civil Procedure article 3654 provides:

When the issue of ownership of immovable property or of a real right therein is
presented in an action for a declaratory judgment, or in a concursus, expropriation, or
similar proceeding, or the issue of the ownership of funds deposited in the registry of the
court and which belong to the owner of the immovable property or of the real right
therein is so presented, the court shall render judgment in favor of the party:
1) Who would be entitled to the possession of the immovable property or real right
therein in a possessory action, unless the adverse party proves that he has acquired
ownership from a previous owner or by acquisitive prescription; or
2) Who proves better title to the immovable property or real right therein, when neither
party would be entitled to the possession of the immovable property or real right therein
in a possessory action.

0

Spillman, 04-0145 ( La. App. 1 Cir. 2/ 11/ 05), 906 So. 2d 509, 511, writ denied, 05- 0672

La. 5/ 6/ 05), 901 So. 2d 1098. 10

In the matter before us, the parties stipulated that MP# 2 is the record title

owner of Lot 289 and that Bradford Land is the record title owner of Lot 290. The title

documents for the parties also establish that both Bradford Land and MP# 2 acquired

their properties in accordance with the original subdivision plats for Flower Estates.

However, the title transfers for Lot 289 and Lot 290 contain property descriptions that

include only a lot number and the length and width of the properties. Therefore, the

issue before the trial court was the placement of the boundary between Lot 289 and Lot

290, not the ownership of the properties. The trial court correctly found that LSA-

C. C. P. arts. 3691 through 3693, which provide the rules and law governing boundary

actions, rather than LSA- C. C. P. art. 3654, were applicable to the present matter, and

we find no legal error by the trial court.

MP# 2' s next two assignments of error pertain to the fixing of the boundary line.

MP# 2 contends that the trial court erred when it adopted the findings of two different

surveys to determine the boundary line, despite their defects and inconsistencies.

Alternatively, MP# 2 argues that the trial court erred in using the Bonneau and McCain

surveys to determine the boundary line when the surveyors themselves removed

original markings and replaced them while in Bradford Land' s employment.

The Louisiana Supreme Court has established that in cases where boundary

questions exist, the legal guides for determining the location of a land line in property

descriptions, in order of their importance, are: natural monuments, artificial

monuments, distances, courses, and quantity, with the controlling consideration being

intention of the parties. Skillman v. Harvey, 03- 2724 ( La. App. 1 Cir. 12/ 30/ 04), 898

So. 2d 431, 434, writ denied, 05- 0272 ( La. 4/ 1/ 05), 897 So. 2d 610 ( dt[ng City of New

Orleans v. Joseph Rathborne Land Co., 209 La. 93, 109- 10, 24 So. 2d 275, 281 ( La.

1945); Meyer v. Comegys, 147 La. 851, 857, 86 So. 307, 309 ( La. 1920)). A survey

10 Louisiana Civil Code article 792 provides that in a boundary action, the court shall fix the boundary
according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed
according to limits established by possession. Article 793 also provides, in part, that "[w] hen both parties
rely on titles only, the boundary shall be fixed according to titles."

10

predicated on sound surveying principles should be accepted unless the record shows it

is incorrect. Skillman, 898 So. 2d at 435.

MP# 2 asserts that the Daniels and Marques surveys verify that it is the owner of

the disputed strip of land. The parties agreed that the 1956 Champagne survey did not

refer to natural monuments relative to Lot 289 or Lot 290. MP# 2 argues, however, that

it did contain artificial monuments, being Highway 21 and Marigold Drive. Therefore,

according to MP# 2, Mr. Daniels based his survey on the location of Marigold Drive, and

the survey should be accepted because it is the most ancient and follows the original

ground survey of Mr. Champagne. MP# 2 also contends that the Marques survey

determined the boundaries based on the original intent of the Champagne survey and

utilized original markers that were not considered by Bradford Land' s surveyors.

The record shows that, in connection with their work in 2007 for the State

regarding the widening of Highway 21, Mr. Bonneau and Mr. McCain surveyed all of the

highway from Interstate 12 north to the Tchefuncte River Bridge. They located

monuments along the front and rear property boundaries for all of the lots in the area,

including residences, shopping malls, office buildings, gas stations, and empty lots. Mr.

Bonneau has been a surveyor since 1980 and has surveyed areas of Flower Estates

since 1976. Mr. McCain testified that he has also surveyed a number of areas in the

subdivision. Mr. McCain stated that he has located monuments similar to the 1/ 2 - inch

iron pipes found on Lot 289 and Lot 290 and believes that the 1/ 2 - inch iron pipes he and

Mr. Bonneau used as a basis for their conclusions are the original monuments set by

the original surveyors."

The record also shows that Mr. Bonneau and Mr. McCain established the same

boundary line between Lot 289 and Lot 290, despite MP# 2' s argument to the contrary.

Using the monuments, the surveyors determined the boundary between Lots 289 and
290 to have lengths consistent with the Champagne survey and the revised Robert

Berlin plat of Flowers Estate, dated July 13, 1964, of approximately 400 feet ( there was

11 we note that during the Highway 21 widening project, Mr. Bonneau and Mr. McCain both testified that
they believed that they found what were the original monuments for the lots fronting on the highway, but
they had to be replaced due to the taking by the State.

11

a 7/ 100ths of a foot difference after consideration of the sale of frontage by each of the

parties to the Parish in 2008). 12

The only meaningful discrepancy between the Bonneau and McCain surveys and

the Champagne and Berlin surveys was the length of the rear boundary of Lot 288.

The Champagne and Berlin surveys noted a rear length of 82 feet, whereas the

Bonneau and McCain surveys found a rear length of 80. 5 feet, based on the

monuments found and tying them into the lots on the Highway 21 corridor and

surrounding streets. Mr. Bonneau testified that if the 82 -feet number was used to

measure westward, as suggested by MP# 2, then every other boundary for Lot 289

through Lot 302 would have to be moved over by one and a half feet, creating a

domino effect that would push the rear boundary of Lot 302 into Zinnia Drive, which

would disagree with all of the monumentation that we found within that corridor

there." 13

Additionally, Bradford Land submitted evidence regarding the sale of Lot 288 on

March 4, 2013, with a survey by John G. Cummings, dated February 4, 2013, attached.

Mr. Cummings located the boundaries of Lot 288 in the same place as the Bonneau and

McCain surveys, including fording that southern property line of Lot 288 is 80. 5 feet in

length. 14

Having thoroughly reviewing the record, we find a reasonable basis for the trial

court's factual finding regarding the precise location of the boundary line between Lot

289 and Lot 290. Accordingly, we find no manifest error and cannot say that the trial

court was clearly wrong in its determination.

12 The Bonneau and McCain surveys, performed after the 2008 sale to the Parish, reflect a boundary
length between Lots 289 and 290 of 392. 82 and 392. 89 feet, respectively. Thus, prior to the acquisition
by the Parish of 5. 97 feet of that boundary, the boundary length was 400 feet.

13 The Marques survey, upon which MP# 2 relies, utilized the 82 -feet length for the rear boundary of Lot
288. Mr. Marques testified that he found points that indicated he could move the property over by a foot
and an inch, but he chose not to. He stated that he held to 82 feet because that " is what this plan calls
for." Marques testified that he did not measure any lots west of Lot 290 to see if the length of 82 feet fit
within other monumentation to the west of the lot and based his conclusions using monuments in the
area of Marigold Drive.

14 Also, Mr. Maillet surveyed Lots, 288, 289, and 290 for the 2012 Highway 21 improvement project. Mr.
Maillet's survey, dated July 25, 2412, found the same monumentation as found by Mr. Bonneau and Mr.
McCain and confirms the Bonneau and McCain surveys.

12

Additionally, we note that the judgment of the trial court provides that " the

boundary between lots 289 and 290 is judicially fixed as depicted in the surreys done

by John Bonneau and Brandon McCain." It is clear that the trial court intended to fix

the boundary according to the parties' titles and the Bonneau and McCain surveys " as

the conclusive boundary between the lots." For clarity, we remand to the trial court

with instructions to amend the judgment for the sole purpose of attaching or

incorporating into the judgment the specific surveys referenced in its January 8, 2021

judgment. See Andermann v. Rouillier, 18- 88 ( La. App. 5 Cir. 4/ 25/ 19), 271 So. 3d

384, 413, writs denied, 19- 00971 ( La. 9/ 24/ 19), 278 So. 3d 978, and 19- 00981 ( La.

9124/ 19), 279 So. 3d 935.

Compensation

In its last two assignment of errors, MP# 2 asserts that if we affirm the trial

court's placement of the boundary, any award for damages was incorrect. MP# 2

acknowledged that an action to fix a boundary does not prescribe. LSA-C. C. art. 788

The right to compel the fixing of the boundary between contiguous lands is

imprescriptible' }. However, it contends that Bradford Land' s claim for damages is a

delictual action with a one-year prescriptive period pursuant to LSA- C. C. art. 3493.

As previously stated, the trial court specifically found LSA -GC. art. 670 applicable

to the matter before us. The trial court determined that the encroachments were

placed on Bradford Land' s property in good faith and, pursuant to Article 670, would be

allowed to stay. Additionally, the trial court awarded compensation only, finding that

no " other damage" was due.

Of note, we do not consider whether the predial servitude set forth in Article 670

would apply to the specific encroachments at issue herein. The parties do not contest

the application of Article 670, and this issue was neither assigned as error nor raised in

the parties' briefs. Accordingly, we do not address whether the application of Article

670 was appropriate under the facts before us.

Therefore, because the trial court found Article 670 applicable, we consider the

remedies provided therein. Pursuant to Article 670, MP# 2 will acquire a predial

servitude on the land occupied by the encroachments upon payment of compensation

13

for the value of the servitude taken and for any other damage that Bradford Land has

suffered. The trial court awarded Bradford Land $ 33, 500. 00 as the value of the

servitude, but declined to award any other damages.

Although MP# 2 asserts that any claim for damages has prescribed, its actual

argument regarding the predial servitude is that the valuation is incorrect. Specifically,

MP# 2 argues that no law supports the right to a buffer zone when granting a predial

servitude pursuant to Article 670. According to MP# 2, the actual size of the

encroachment was 526 square feet for the concrete parking and 32 square feet for the

gravel and concrete encroachment, for a total of 558 square feet. Therefore, accepting

Mr. Ray' s valuation of the property at $ 14. 50 per square foot, MP# 2 argues that the

value for the actual size of the encroachment should be $ 8, 091. 00. Alternatively, using

Mr. Bonneau' s farthest encroachment point at 3. 5 feet, and were one to allow a

straight-line boundary, MP# 2 argues that the maximum damages would be $ 19, 919. 69,

not $ 33, 500. 00. However, we note that Mr. McCain found the farthest point of

encroachment to be 4.6 feet, being the top of one of the two sewer cleanout tanks.

A predial servitude is a charge on a servient estate for the benefit of a dominant

estate. LSA-C. C. art. 646. predial servitudes are either natural, legal, voluntary, or

conventional. LSA- C. C. art. 654. The predial servitude contained in LSA- C. C. art. 670 is

a legal servitude. Legal servitudes are limitations on ownership established by law for

the benefit of the general public or for the benefit of particular persons. LSA- C. C. art.

659.

Article 670 was enacted in 1978 to empower the courts with discretionary

authority to grant a predial servitude to landowners who constructed a building in good

faith that encroached on an adjacent estate. This authority is premised on the

provision that compensation be made to the adjoining landowner burdened by

the servitude. Bushnell v. Artis, 445 So. 2d 152, 154- 55 ( La. App. 3 Cir. 1984).

In Bushnell, the defendant's home encroached on the plaintiffs property for

approximately six feet. The trial court awarded the encroaching landowner a predial

servitude to allow a straight- line boundary ( of servitude) on a line three feet east of the

east edge of the defendant's roof from the rear of her lot south to the street.

14

Bushnell, 445 So -2d at 155. In affirming the trial court's judgment, the third circuit

noted the well -reasoned opinion of the trial court that reflected sound reasoning in

fixing the predial servitude, wherein the trial court recognized that the defendant must

be allowed enough room to maintain and repair her building. Id.

In Atwood v. Hylan, 28, 971 ( La.App. 2 Cir. 12/ 11/ 96), 685 So. 2d 450, 453, the

second circuit amended the trial court's judgment and granted the plaintiff a predial

servitude under Article 670 on the land occupied by his encroaching boathouse and

pier. The servitude included an area of four feet extending around the perimeter of the

entire structure of the plaintiff to allow access for repair and maintenance.

Mr. Ray testified that a six- foot buffer was fairly small, considering the 4.6 feet

encroachment as determined by Mr. Bonneau. On our review, we find no error by the

trial court in the granting a six- foot straight- line predial servitude under LSA- C. C. art.

670 and in its calculation of the compensation for the value of the servitude.

Alternatively, MP# 2 makes the argument that damages were illegally awarded

because the consent judgment entered into between it and the City of Covington ruled

that MP# 2 did not violate any setbacks. The consent judgment set forth the

requirements for parking spaces, green spaces, and tree plantings by MP# 2 on Lot 289.

The judgment then provided that "[ t] he City of Covington shall deem the above

obligations sufficient to meet all City Planning and Zoning requirements and all parking

and landscaping requirements for the present zoning classification."

A consent judgment is a bilateral contract between the parties by which the

parties adjust their differences by mutual consent. Its binding force arises from the

voluntary acquiescence of the parties rather than the adjudication by the court. Mayo

v. Hutchinson, 16- 1642 ( La. App. 1 Cir. 9/ 27/ 17), 232 So. 3d 567, 573- 74. The

consent judgment overturned the denial of the variance by the Covington Board of

Adjustments with regard to Lot 289, but made no findings, such as the location of the

boundary line between Lot 289 and Lot 290. Moreover, MP# 2`s argument regarding

peremption based on the law applicable to building restrictions and the application of

zoning requirements is inapplicable as neither issues were before the trial court.
MP# 2' s argument is without merit.

15

The Answer to the Appeal

Bradford Land filed an answer to the appeal raising several arguments and

seeking modification of the judgment of the trial court. Initially, Bradford Land

contends that the trial court erred in failing to grant it judicial interest from the date of

demand, although the trial court' s Written Reasons for Judgment provided for judicial

interest from the date of demand.

The January 8, 2021 judgment is silent regarding legal interest. However, the

grant of judicial interest is governed by LSA- C. C. P. art. 1921, which provides that "[ t] he

court shall award interest in the judgment as prayed for or as provided by law." Since

the word " shall" in Article 1921 is mandatory, the court lacks discretion to deny interest

if interest is prayed for or provided for by law. Quality Design and Const., Inc. v.

City of Gonzales, 2013- 0752 ( La. App. 1 Cir. 3/ 11/ 14), 146 So. 3d 567, 573.

In its petition, Bradford Land prayed for " judicial interest on all amounts due."

Accordingly, we amend the judgment of the trial court ordering the predial servitude to

include an award of judicial interest owed by MP# 2 on the $ 33, 500. 00 amount from the

date of demand, September 16, 2011, until paid.

Bradford Land next asserts that it is entitled to fair market rent for the period of

time MP# 2 improperly encroached upon its property. Bradford Land contends that

although the trial court granted a predial servitude to MP# 2 and compensated Bradford

Land for the value of servitude, the trial court manifestly erred in failing to award

Bradford Land any damages for MP# 2' s past use of Lot 290, in accordance with the

provisions of Article 670. 15

The trial court ordered that Bradford Land be paid $ 33, 500. 00 for the value of

the predial servitude pursuant to Article 670, but the trial court declined to award any

rent. Thus, the trial court implicitly determined that Bradford Land did not suffer " any

other damage." On our review of the record, we find no manifest error by the trial

court in this determination.

is As previously noted, Article 670 provides for the " payment of compensation for the value of the
servitude taken and for any other damage that the neighbor has suffered."

16

In its last two assignments of error, Bradford Land avers that it is entitled to

have the predial servitude limited to prevent MP# 2 from constructing any additional

improvements on Lot 290 as Article 670 does not allow same. Bradford Land also

contends that it is entitled to a decree that the predial servitude granted to MP# 2

extinguishes in accordance with law and, particularly, LSA- C. C. arts. 751 through 774.

As a general rule, an appellate court will not consider issues that

were not raised in the pleadings, were not addressed by the trial court, or are raised for

the first time on appeal. Pinnacle Builders, Inc. v. John, 21- 0335 ( La. App. 1 Cir.

12/ 22/ 21), 340 So -3d 107, 117. Moreover, LSA- C. C. arts. 646 through 774 set forth the

law regarding predial servitudes. We decline to add anything further to the judgment.

CONCLUSION

For the above reasons, the January 8, 2021 judgment of the trial court in favor

of Bradford Land Company, LLC is amended to include legal interest from the date of

judicial demand and, as amended, is affirmed. We remand to the trial court with

instructions to amend the judgment for the sole purpose of attaching or incorporating

into the judgment the specific surveys referenced in its January 8, 2021 judgment. All

costs of this appeal are assessed to Montagnet Properties # 2, LLC.

JUDGMENT AMENDED, AFFIRMED AS AMENDED, AND REMANDED
WITH INTRUCTIONS; ANSWER TO APPEAL GRANTED IN PART, DENIED IN
PART.

17

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 CA 1393

BRADFORD LAND COMPANY, LLC.

VERSUS

MONTAGNET PROPERTIES 42, L.L.C.

THERIOT, J., concurring with reasons.

Louisiana Code of Civil Procedure Articles 1919 and 2089 require that all

final judgments affecting immovable property must describe such property. Because

a predial servitude is an incorporeal immovable, the specificity requirements of

Articles 1919 and 2089 apply to the January 8, 2021 judgment' s description of the

predial servitude running from the entire boundary of Lot 289 and onto Lot 290. See

Clark v. Fazekas, 2019- 1386 (La. App. 1 Cir. 5/ 11/ 20), 303 So. 3d 1066, 1069. The

purpose of these articles is " to insure that the public in general, and title examiners,

successful litigants, officials charged with executions ofjudgments and surveyors in

particular, can accurately deal with the immovable property." Hurst v. Ricard, 558

So. 2d 1269, 1272 ( La. App. 1 Cir.), writ denied, 559 So. 2d 1378 ( La. 1990).

Therefore, I would encourage the trial court to provide an accurate legal

description of the predial servitude and the boundary line in accordance with the

surveys done by John Bonneau and Brandon McCain.