Entrada Company, L.L.C. v. Tony Cassels, Connie L. Cassels, Marc Shannon Conerly and Rickie Conerly

Judgment rendered April 8, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,387-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
ENTRADA COMPANY, L.L.C. Plaintiff-Appellee

versus

TONY CASSELS, CONNIE L. Defendants-Appellants
CASSELS, MARC SHANNON
CONERLY AND RICKIE
CONERLY

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 20161635

Honorable Daniel Joseph Ellender, Judge

*****

HALLACK LAW FIRM, APLC Counsel for Appellants,
By: William H. Hallack, Jr. Tony Cassels, Connie L.
Dennis W. Hallack Cassels, Jimmy O.
Holsomback, Jr., Trustee,
Carl B. Shockley, Sherry
J. Shockley, Louis Joe
Giovingo, Nell M.
Giovingo, Ronald
William Rogers, Steven
Earl Hatten, Rebecca
Lynn Prysock Rogers,
Cynthia Browder Hatten,
Donald Wesley Sebren,
Stacey Bice Sebren,
Monika May, Billy T.
Coats Boone Trust, and
Reagan Alan Boone

DOUGLAS L. STOKES, JR. Counsel for Appellee,
Entrada Company,
L.L.C.

MIXON, CARROLL & FRAZIER, APLC Counsel for Appellees,
By: James Eugene Mixon Scott Andrew
James Linus Carroll Soignier and Taryn
Brian E. Frazier Phythian Soignier

KRISTEN BROWN PLEASANT Counsel for Appellees,
Gail Rae Reed and
Daniel Evan Kirsch

*****

Before MOORE, McCALLUM, and THOMPSON, JJ

McCALLUM, J.

Owners of tracts of immovable property located in Ouachita Parish

appeal a judgment decreeing that a neighboring landowner, Entrada

Company, LLC, has the right to use a public road as described in a 1974 act

entitled “Servitude of Way for Public Road” to reach the southwest corner of

its 15-acre tract.

We reverse the judgment, grant the alternative relief sought by

Entrada, and remand.

FACTS

The property at issue is located in Eros, Louisiana, or more

specifically, in Section 13, Township 17 North, Range 1 East, Ouachita

Parish. On December 5, 1974, this property became burdened by a recorded

“Servitude of Way for Public Road.” This Act declared that the grantors

dedicated to the public, for the establishment and maintenance of a public

highway, a servitude and right of way over a 60-foot wide strip which began

at Leckie Road, ran north for 1100 feet, then continued in a northeasterly

direction for 84 feet, then ran north for 568 feet, before turning east and

running for 1590 feet, more or less, until it reached the west line of Jerry

Donahoe’s property. Although all of the individuals named in the Act

granted the servitude, the Act reflected that $1,000 was paid by four grantors

to the others as consideration for the servitude. The Act further declared and

acknowledged that the Ouachita Parish Police Jury (“Police Jury”) “may

establish and maintain a public highway” on the 60-foot wide strip without

further authorization of the grantors. Although the Police Jury never

established or maintained a public highway on the servitude, a road that

followed the contours of the servitude would eventually become known as

Squirrel Ridge Road.

Entrada first acquired an undivided interest in a 15-acre tract in the

Northeast ¼ of Section 13 in 2010. Entrada acquired full ownership of that

tract in 2016. Jerry Donahoe, one of the grantors of the servitude, is an

ancestor-in-title of this 15-acre tract. Donahoe acquired his interest by cash

deed on April 10, 1974. Donahoe and his wife sold the north half of their

interest on October 10, 1975. Squirrel Ridge Road measures approximately

3321 feet in length from where it begins at Leckie Road to where it reaches

the corner of Entrada’s 15-acre tract.

Entrada’s 15-acre tract is bordered on the west by property owned by

Tony Cassels and Connie Cassels. Mr. and Mrs. Cassels acquired their

property (“Cassels tract”) in 1998. The servitude more or less bisects part of

the Cassels tract. In 1999, Mr. and Mrs. Cassels sold approximately six

acres of their property to Marc Conerly and Rickie Conerly. The servitude

runs along the southern border of the Conerly property (“Conerly tract”),

which is to the north and to the west of the Cassels tract. Glenn Calk, one of

the grantors of the servitude, is an ancestor-in-title of the property owned by

the Casselses and the Conerlys. Calk acquired his interest by cash deed on

April 10, 1974. His interest was transferred by judgment of possession in

his succession on September 12, 1979.

Ronald Rogers and Rebecca Rogers own a tract of land (“Rogers

tract”) that is to the west of the Conerly tract. The servitude runs along the

southern border of the Rogers tract after the servitude makes a 90-degree

turn to the east.

2

Entrada’s 15-acre tract is bordered to the south by property (“Hatten

tract”) owned by Steven Hatten and Cynthia Hatten. The servitude runs

along the western border of the Hatten tract from Leckie Road. Entrada’s

15-acre tract is bordered to the north by a 40-acre tract which is also owned

by Entrada.

Procedural history

On May 24, 2016, Entrada filed a petition for a right of passage from

its 15-acre tract over the Cassels tract and the Conerly tract. A default

judgment was entered and confirmed. By judgment rendered on July 25,

2016, the trial court ruled that the Entrada estate was enclosed, had no access

to a public road, and was entitled to a servitude of passage across the Cassels

and Conerly tracts that was to be 60 feet in width.

On October 10, 2016, Mr. and Mrs. Cassels filed the exception of

nonjoinder, which the trial court sustained. Entrada was ordered to amend

its petition to name as defendants the owners of the tracts of immovable

property under Squirrel Ridge Road from its origin at Leckie Road to where

it ended.

Entrada filed an amended petition on December 29, 2016, naming the

additional defendants. For the first time, Entrada sought a declaratory

judgment that it was entitled to use Squirrel Ridge Road to travel from its

property to Leckie Road. In the alternative, Entrada sought a right of

passage over the defendants’ property to Leckie Road, with the right of

passage covering property identical to that described in the 1974 Act.

On January 4, 2017, a joint motion to amend the July 25, 2016,

judgment was filed so that the judgment would affect only the Conerly tract.

The amended judgment provided that Entrada’s tract was enclosed as
3

defined by law, had no access to a public road, and was entitled to a

servitude of passage across the Conerly tract.

Entrada filed a second amended petition on April 10, 2017, after

exceptions of vagueness and no cause of action were sustained. Entrada

sought a declaratory judgment that the burdened property in the servitude

was a public road and that Entrada was entitled to use it to reach Leckie

Road from its 15-acre tract. Entrada alleged in the alternative that it was

entitled to a right of passage over the Cassels tract to Squirrel Ridge Road

because its 15-acre tract was an enclosed estate, Squirrel Ridge Road was

the nearest public road, and the shortest and most convenient route from the

Entrada tract to Squirrel Ridge Road was over the Cassels tract.

Trial on the merits

Trial in this matter was held on September 6, 2018. Ronald Rogers

and Rebecca Rogers testified that they began building a home in 1998 on

their property, which has Squirrel Ridge Road as part of its southern

boundary for approximately 660 feet. The Rogers family moved into their

home the following year, and listed their address as being on Squirrel Ridge

Road.

Mrs. Rogers testified that it was just woods beyond their property

when they moved there, and the only other person around was a Carmela

Ethington, who apparently lived west of the servitude and had sold ten acres

to Mr. and Mrs. Rogers. Mrs. Rogers described what she called a “trail” or

“path” that came north from Leckie Road and was utilized by Ms. Ethington.

It was a cleared area, but she would not have called it an actual road. She

referred to it as just two tire tracks. The path ended near the corner of where

the Rogers tract started, so they continued it to the back of their property.
4

Mrs. Rogers testified that no other people were driving past their home when

they first moved there.

Mr. Rogers did not think what became known as Squirrel Ridge Road

was a road when they first moved there, but thought it was more akin to a

“deer trail.” Mr. Rogers remarked that woods and maybe a pig trail or a deer

trail were to the east of their property. Mr. Rogers testified that he and his

neighbors occasionally placed sand, gravel, or concrete in holes in the road

until eventually they decided to use crushed asphalt as a road surface.

Mr. Rogers recalled that Squirrel Ridge Road basically ended at his

property. He extended it somewhat farther east because he had a shop that

was almost on the corner of his property line. However, he did not extend it

beyond that point.

Tony Cassels and Connie Cassels purchased their property in 1998

and moved into their home in July of 2000. Their address is on Squirrel

Ridge Road. Mrs. Cassels remembered there were four homes on Squirrel

Ridge Road at the time. Mr. Cassels recalled that their tract was completely

undeveloped when they acquired it. According to Mrs. Cassels, they could

not get back there because it was densely wooded, so they had to stop at a

nearby fenced area.

Mrs. Cassels testified that while the north-south portion of Squirrel

Ridge Road existed when they acquired their property, it was a dirt road that

she likened to a “turn row” in a cotton field. She also testified that only a

short length of Squirrel Ridge Road ran east-west at the time. According to

Mrs. Cassels, that length of road was in poor shape. Mrs. Cassels recalled

that there was a mobile home in a fenced area where the road made its 90-

degree turn and that was as far as the road went. Mrs. Cassels testified that
5

they had to create a stretch of Squirrel Ridge Road to the location where

they eventually built a north-south driveway from the road to their home.

Tony Cassels testified that anyone who traveled east past the point

where Squirrel Ridge Road ended at his driveway would have encountered

woods. In order to access a hunting spot to the east, he cut a four-wheeler

trail along the servitude, but that trail did not reach Entrada’s 15-acre tract.

Mr. Cassels also stated that a person had to cross two creeks in order to

reach the 15-acre tract from where Squirrel Ridge Road ended at his

driveway, and he stopped his trail at the second creek.

Ronald Rogers testified that after increased development commenced

in the area, the landowners met and decided to approach the Police Jury

about maintaining Squirrel Ridge Road. However, the landowners balked at

the $150,000 it would cost to improve the road to meet parish specifications.

Tony Cassels testified that the landowners twice tried to convince the Police

Jury to maintain the road, but the Police Jury refused to do so unless the

landowners paid for the upgrade.

The Hattens, who own the tract south of Entrada’s 15-acre tract, do

not use Squirrel Ridge Road to access their property. Instead, they use

Leckie Road, which serves as their address.

James Steele is one of two managing members of Entrada. He

testified that the recorded servitude was discovered after the original petition

was filed in this matter. Steele testified that he was never told not to use

Squirrel Ridge Road to reach Entrada’s 15-acre tract. Steele described

Squirrel Ridge Road as no longer being maintained once it passed the

driveway on the Cassels tract. Steele estimated there was a distance of 660

feet between Entrada’s property and where the road was no longer
6

maintained. He thought that part of the road, which had a couple of cement

culverts, looked like an old existing road.

Some of the defendants who testified gave various reasons for not

wanting Entrada to use Squirrel Ridge Road. Tony Cassels desired for his

property to remain undisturbed. He thought it would change the character of

his property since it was at the end of the road. Connie Cassels was worried

about additional traffic and crime, as well as the cost of road upkeep. She

enjoyed the privacy of their location. Ronald Rogers also cited privacy as a

concern. Rebecca Rogers worried about more wear and tear on the road.

Steele testified that Entrada intended to do nothing with the property

at the moment, but it just wanted to be able to access its property. Steele

planned on having the timber on Entrada’s property thinned in the future,

which would require access of a suitable width for any trucks engaged in

that process.

After the case was submitted for decision, the defendants filed the

exception of prescription. They argued that the evidence presented at trial

did not show use of the servitude by anyone between the date that the Act

was executed and the 1990s, thereby barring Entrada’s claims to the extent

they arose from the servitude. Steele testified at the prescription hearing.

Satellite images of the area and ground-level photographs taken of the

Cassels tract near Entrada’s 15-acre tract were introduced at the hearing.

The exception was denied.

In a judgment rendered on May 21, 2019, the trial court ruled that

Entrada had the right to use the public road described in the 1974 “Servitude

of Way for Public Road” and sometimes known as Squirrel Ridge Road.

Most of the defendants, including Mr. and Mrs. Cassels, have appealed.
7

DISCUSSION

Prescription of nonuse

The appellants argue the trial court erred in not finding that the

servitude was extinguished by the accrual of nonuse prescription. They

assert that prescription could not be renounced or waived, and that the

servitude was not revived by an implied dedication.

A predial servitude is extinguished by nonuse for ten years. La. C.C.

art. 753. Prescription of nonuse begins to run for affirmative servitudes

from the date of their last use. La. C.C. art. 754.

When the prescription of nonuse is pleaded, the owner of the

dominant estate has the burden of proving that he or some other person has

made use of the servitude as appertaining to his estate during the period of

time required for the accrual of the prescription. La. C.C. art. 764.

Steele contended that he could see visible evidence of a road to the

west boundary of Entrada’s 15-acre tract, and that he could walk down this

road onto the Entrada tract. Steele took a photo of a broken concrete culvert

across a creek at a location along the servitude that was approximately 200

feet east of the driveway on the Cassels tract. What appears to be a path can

be seen well into the distance while looking east from that culvert. Steele

did not know the age of the culvert. The earliest satellite images introduced

into evidence at the hearing were taken in February of 1998. These images

show a significant clearing which follows the contours of the servitude from

Leckie Road to a short distance east of where the servitude makes a 90-

degree turn.

Steele observed that eight homes and four barns or shops have access

from Squirrel Ridge Road. Tony Cassels testified that there are some homes
8

and barns that can only be reached from Squirrel Ridge Road. The road is

also used for deliveries to the property owners. While Mr. and Mrs. Cassels

use a post office box, some of their neighbors have mailboxes on Squirrel

Ridge Road, and Mr. Cassels has seen mail being delivered to them. Mrs.

Cassels explained that they have a post office box because the person

delivering their mail had refused to drive that far along the road because of

the condition of the road.

Rebecca Rogers testified that while they did not own the cleared area

from Leckie Road, they had access to it when they first moved there.

Eventually, others started building along the sides of the cleared area that the

Rogers family had used as a road. Mr. and Mrs. Cassels used this road to

view the property before they purchased it.

Steele asserted that he never saw a sign prohibiting anyone from using

the road or alerting anyone that it was a private road. According to Mrs.

Cassels, the homeowners had purchased two street signs from the Police

Jury that said Squirrel Ridge Road, a name that was chosen by the property

owners. Those signs were installed where the road begins at Leckie Road,

but were not replaced after the signs were stolen. Squirrel Ridge Road was

never maintained by the Police Jury, and it was not on the road inventory list

for Ouachita Parish.

Squirrel Ridge Road was also used by visitors to homes along the road

as well as by a school bus for children who lived there. Complete strangers

also traveled along the road. Mr. Cassels testified that he would stop

strangers that he found on the road because they had no business being there.

He occasionally found strangers on the road as far as his driveway.

9

Mr. Cassels testified that nobody used Squirrel Ridge Road to access

the 15-acre tract between 2000 and 2010. He knew Pam Simpson, the owner

of the 15-acre tract at the time, because they worked at the same school, and

he never saw her going back and forth to the tract. He recalled that Simpson

gave him permission to hunt on the tract.

Despite the presence of the culverts, Mr. Cassels disagreed there was

any evidence of an old road within the 60-foot wide strip from the location

of his driveway to the western boundary of Entrada’s tract. Mr. Cassels

conceded there were other four-wheeler trails around there in addition to the

one that he had cut, and that some type of vehicle had used the portion of the

servitude that ran from his driveway to the western border.

We note that when Mr. Cassels was in the process of buying his land,

he asked his attorney if his family would have access to the land, and his

attorney confirmed that they would after looking into it. Mr. Cassels

explained that he inquired about access because the area was heavily

wooded and there was no real road. Mrs. Cassels testified that she did not

know about the servitude when they purchased the property, but they

assumed based on what their attorney told them that there was access to the

property by using Squirrel Ridge Road. Mrs. Rogers denied awareness of

the 1974 servitude when they moved there, and her husband stated that he

was not familiar with it.

When evidence is introduced at the hearing on the peremptory

exception of prescription, the district court’s findings of fact are reviewed

under the manifest error-clearly wrong standard of review. Cooksey v.

Heard, McElroy & Vestal, L.L.P., 44,761 (La App. 2 Cir. 9/23/09), 21 So.

3d 1011.
10

To reverse a fact finder’s determination, the appellate court must find

from the record that a reasonable factual basis does not exist for the finding

of the trial court and that the record establishes that the finding is clearly

wrong. Stobart v. State through Dept. of Transp. & Dev., 617 So. 2d 880

(La. 1993).

Steele admitted at the prescription hearing that he had no evidence

other than the photographs to show use of the servitude between 1974 and

1984. Entrada’s attorney also conceded at the hearing that there was no

evidence of use between those years. Furthermore, when asked if there was

approximately 24 years of nonuse, Entrada’s attorney replied, “Yes. I would

say that’s probably right.”

We are mindful that appeals are taken from the judgment, not the

reasons for judgment. See Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61

So. 3d 507. Nevertheless, in this instance, the trial court’s reasons for

judgment are instructive in reviewing this judgment.

The trial court believed that public use of the servitude for the past 20

years had waived the claim of prescription as it related to the years prior to

1984. That belief was in error. A predial servitude extinguished by nonuse

for ten years cannot be revived except by following the formalities of

creating it anew. See footnote 3 in Church v. Bell, 00-0286 (La. App. 1 Cir.

3/28/01), 790 So. 2d 82, writ denied, 01-1214 (La. 6/15/01), 793 So. 2d

1247. There was no formal renewal of the 1974 servitude, and there is no

evidence in the record of use of the servitude before 1984. Thus, the trial

court was manifestly erroneous in concluding that the 1974 servitude was

not extinguished because of ten years of nonuse.

11

The trial court also concluded that implied dedication was applicable

to the facts of the case. Entrada argues that even if it is assumed that the

1974 servitude prescribed by nonuse, it was revived by implied dedication of

Squirrel Ridge Road to public use from at least its beginning at Leckie Road

to as far as the location of the driveway built by Mr. and Mrs. Cassels. The

appellants counter that any intent to dedicate Squirrel Ridge Road to public

use was not unequivocal, but was clearly conditioned on the Police Jury’s

acceptance and maintenance of the road.

Implied dedication is one of the four modes of dedication of property

to public use recognized by Louisiana courts. Cenac v. Public Access Water

Rights Ass’n, 02-2660 (La. 6/27/03), 851 So. 2d 1006. Implied dedication

does not disturb the ownership of the roadbed of a dedicated road, but grants

a servitude of passage to the public. U.S. Silica Co. v. Wooldridge, 34,763

(La. App. 2 Cir. 10/31/01), 799 So. 2d 693. Louisiana courts have

demanded two indispensable elements for an implied dedication because

implied dedication lacks the formalities and safeguards of the other modes of

dedication. Cenac, supra. An unequivocally manifested intent to dedicate

on the part of the owner and an equally clear intent to accept on the part of

the public are required. Id. At least one of these indispensable elements is

absent from this record.

With the 1974 servitude removed from consideration, it cannot be

stated that the actions of the defendants unequivocally manifested an intent

to dedicate Squirrel Ridge Road to public use. The property owners

apparently approached the Police Jury twice about taking over maintenance

of Squirrel Ridge Road, but those efforts proved to be fruitless because of

the considerable cost to be borne by the property owners in getting Squirrel
12

Ridge Road to a suitable condition. We cannot discern any benefit to the

property owners that would have been achieved by impliedly dedicating

Squirrel Ridge Road to public use.

Accordingly, we conclude that the trial court was manifestly

erroneous in finding that Entrada had the right to use Squirrel Ridge Road as

a public road. However, our inquiry does not end there as Entrada, in the

alternative, sought a right of passage over the defendants’ property to Leckie

Road along the property described in the 1974 servitude.

Right of passage

The right of passage for an enclosed estate is set forth in La. C.C. art.

689, which states:

The owner of an estate that has no access to a public road or
utility may claim a right of passage over neighboring property
to the nearest public road or utility. He is bound to compensate
his neighbor for the right of passage acquired and to indemnify
his neighbor for the damage he may occasion.

The appellants contend that for purposes of this analysis, Entrada’s

contiguous 15-acre and 40-acre tracts must be considered as one tract. We

agree with this contention. See Roberson v. Reese, 376 So. 2d 1287 (La.

App. 2 Cir. 1979). However, neither tract has access to a public road. Thus,

the 15-acre tract is enclosed and entitled to a right of passage.

The owner of an enclosed estate does not have discretion to choose

which estate should be burdened with a legal right of passage. Davis v.

Culpepper, 34,736 (La. App. 2 Cir. 7/11/01), 794 So. 2d 68, writ denied, 01-

2573 (La. 12/14/01), 804 So. 2d 646. The right of passage “generally shall

be taken along the shortest route from the enclosed estate to the public road

or utility at the location least injurious to the intervening lands.” La. C.C. art.

692.
13

Leckie Road is the nearest public road to the 15-acre tract. Don

Antley, a professional land surveyor, testified that Leckie Road is 2263 feet

from the 15-acre tract. W.B. Nelson Road is the public road nearest to the

40-acre tract, with a distance measuring 1619 feet from the 40-acre tract.

W.B. Nelson Road is 2940 feet from the 15-acre tract. While Leckie Road is

closer to the 15-acre tract, the two tracts are considered as one tract for

purposes of this analysis. Thus, W.B. Nelson Road becomes the public road

closest to Entrada’s property.

Myron Toft, a real estate title examiner, testified that situated directly

north of Entrada’s 40-acre tract is a tract owned by the Cayden Lane

Homeowners’ Association. Toft believed that Steele was president of that

association. There is a road named Cayden Lane which originated at W.B.

Nelson Road and reaches two tracts to the north of Entrada’s 40-acre tract.

However, Cayden Lane is a private road.

As recognized by the legislature by its use of the word “generally” in

La. C.C. art. 692, there are situations that allow a servitude of passage to be

imposed on an estate that does not provide the shortest route. Davis v.

Culpepper, supra.

The first exception recognized by the jurisprudence is when the estate

which provides the shortest route is covered by water or is otherwise not

accessible year-round. The second derogation from the general rule is when

the costs associated with crossing the estate which is the shortest distance

from the public road are so exceptional that from a practical standpoint it is

economically unfeasible to build. The party arguing that the servitude

should instead be imposed on another estate bears the burden of establishing

that one of the two exceptions is applicable. Phillips Energy Partners, LLC
14

v. Milton Crow Ltd. P’ship, 49,791 (La. App. 2 Cir. 5/20/15), 166 So. 3d

428, writ denied, 15-1396 (La. 10/2/15), 186 So. 3d 1148. Entrada concedes

that no evidence regarding the second exception was presented at trial.

Steele testified that Entrada decided not to seek a route to the north

because the area is very low and is home to a swamp and Wilder’s Creek.

Steele explained that the creek will get out of its banks and go across the

swamp. Steele also explained that while the 40-acre tract was not

underwater at the time of trial, flooding from the creek will cover quite a bit

of land. Tony Cassels described Wilder’s Creek as maybe 15 feet wide. He

agreed that the creek floods in places, but did not believe that it would be a

condition that prevented someone from going across it.

Steele testified that since 2010, he has reached the 15-acre tract either

by Squirrel Ridge Road or on a four-wheeler trail from his property farther

east if the trail is not underwater or in a swamp-like state. He would also use

that trail to reach the 40-acre tract. This shows the effect that flooding can

have on access to the tracts.

Based upon our de novo review of this record, we conclude that the

first exception to taking the shortest route is applicable as the northern route

is not accessible year-round. Thus, the right of passage will be to Leckie

Road. The least injurious route to Leckie Road is along the path of the

servitude described in the 1974 Act. Accordingly, we remand this matter to

the trial court to determine the cost to Entrada for its right of passage.

CONCLUSION

We reverse the judgment finding that Entrada had the right to use the

public road as described in the “Servitude of Way for Public Record” that

was executed in 1974 and recorded in the conveyance records of Ouachita
15

Parish. However, we find that Entrada is entitled to its alternative demand

for a right of passage along the path of the 1974 servitude. We remand this

matter to the trial court for a determination of the cost to Entrada for this

right of passage. Each party is to bear its own costs of this appeal.

16