David Ray Robertson and Rhoda Hutchinson Robertson v. Rickie Reese Arledge and Kimberly Kirkland Arledge

Judgment rendered September 22, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,129-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

DAVID RAY ROBERTSON AND Plaintiffs-Appellees
RHODA HUTCHINSON
ROBERTSON

versus

RICKIE REESE ARLEDGE AND Defendants-Appellants
KIMBERLY KIRKLAND
ARLEDGE

*****

Appealed from the
Sixth Judicial District Court for the
Parish of East Carroll, Louisiana
Trial Court No. 22915

Honorable Michael E. Lancaster, Judge

*****

RAYMOND LEE CANNON, L.L.C. Counsel for Appellants
By: Raymond Lee Cannon

COTTON, BOLTON, HOYCHICK & Counsel for Appellees,
DOUGHTY, L.L.P. David Ray Robertson and
By: M. Kyle Moore Rhoda Hutchinson
Robertson

LISKOW & LEWIS, APLC Counsel for Defendant/
By: Matthew David Simone Appellee, Trunkline Gas
Company, LLC

*****

Before PITMAN, GARRETT, and THOMPSON, JJ.

GARRETT, J.

The defendants, Rickie Reese Arledge and Kimberly Kirkland

Arledge, appeal from portions of a trial court judgment that granted a

permanent servitude of passage to the plaintiffs, David Ray Robertson and

Rhoda Hutchinson Robertson, across a small section of the Arledges’

property, while denying the Arledges’ reconventional demand for a

servitude of their own through the front gate of property owned by the

Robertsons. The Robertsons answer the appeal, asserting that the trial court

erred in ordering them to pay a total of $54,000 to the Arledges. We reverse

and vacate the $50,000 portion of the monetary award, amend the total

award to $4,000, and, in all other respects, affirm the trial court judgment.

FACTS

The Robertsons and the Arledges own neighboring tracts of land in

East Carroll Parish which were originally part of the Deborah Plantation.

The Robertsons bought the 47-acre tract at issue here from their son in 2016.

It is bordered on the west by Bayou Macon and on the east and south sides

by property owned by the Arledges; it does not have access to a public road.

The Robertsons, as sole members of Black Gold Production Services, LLC

(“Black Gold”), own another adjoining property known as “Deborah

Farms,” which was also part of the Deborah Plantation.1 The north side of

Deborah Farms is bordered by the south side of the Arledge property while

its south side is bordered by Louisiana Highway 134. The Arledges

acquired their property, which consists of about 440 acres, in 1993; it is

1
Mr. Robertson’s testimony indicates that he and his wife own all of the original
Deborah Plantation property except for the 440 acres owned by the Arledges.

At various points in the proceedings, the names “Deborah Plantation” and
“Deborah Farms” appeared to be used interchangeably.

frequently referred to in the appellate record as “the 440.” It is surrounded

on the east, west, and south sides by property owned by the Robertsons,

while the Crow farm is on its north border. The Arledges and their family

members have established deer stands, duck ponds, and hunting sites on

their property, as well as farm crops and a crawfish farm.

The 47-acre tract purchased by the Robertsons was accepted into the

Wetlands Reserve Program (“WRP”); however, its final acceptance hinged

on the property having written legal access. The Arledges declined to sell

the Robertsons a strip of land required to access the property.

On June 18, 2018, the Robertsons filed suit against the Arledges,

seeking a servitude of passage to their enclosed estate, pursuant to La. C.C.

art. 689, et seq.2 They sought access to the other property they owned on the

south side of the Arledge property as this property had access to a public

road. They alleged that the shortest route to their property from Deborah

Farms that was least injurious to the Arledge property would be a 30-foot

right-of-way along the westernmost border of the Arledge property. The

Robertsons asserted that a portion of the requested servitude, which would

affect a total of 0.78 acres, would utilize an existing right-of-way road

already on the Arledge property. This road was established by Trunkline

Gas Company (“Trunkline”).

The Trunkline Road runs along the boundary between the Arledge

property and Deborah Farms. Then, at the east end of that boundary, it

proceeds south, through Deborah Farms, to Highway 134. The record also

suggests that, at the west end of that boundary, the road curves south a short

2
In their petition, the Robertsons specifically pled that they were the sole
members of Black Gold and, as such, own Deborah Farms.

2

distance onto the Deborah Farms property. In August 2018, the Arledges

filed a peremptory exception of nonjoinder of parties needed for just

adjudication due to the Robertsons’ failure to include Trunkline as a party.

Consequently, the Robertsons added Trunkline as a defendant in their first

supplemental and amended petition for servitude in September 2018.

Attached to this petition was an exhibit showing the proposed eastbound

route on the Trunkline Road known in the proceedings as “Option 1.”

Trunkline filed an answer in November 2018. Later that same month,

the Arledges filed an answer, reconventional demand, and peremptory

exceptions of no right of action and no cause of action. Therein they

asserted that the route sought by the Robertsons was not the shortest access

to a public road and that it would disturb and cause permanent damage to

their established deer stands, hunting sites, and crawfish farm. They

suggested another route which involved Parish Road 6611 and the 80-foot

parish right-of-way less than a mile east of the Robertsons’ property

(referred to as “Option 3” in the proceedings.) In the event that the court

granted the Robertsons a servitude at their requested location, the Arledges

requested that they be granted a permanent servitude in their own favor

along the Trunkline Road, over neighboring Deborah Plantation and through

its main gate, to Highway 134.

In December 2018, the Robertsons responded to the reconventional

demand with an answer and a peremptory exception of partial no cause of

action. They pointed out that the Arledges failed to allege in their

reconventional demand that their property was enclosed with no access to a

public road when they requested a servitude. After a hearing on March 14,

2019, the trial court denied the Arledges’ exceptions of no cause and no

3

right of action, while granting the Robertsons’ exception of partial no cause

of action. The Arledges were given 10 days to file a reconventional demand

to state a cause of action.

The Arledges filed a first amended reconventional demand on

March 22, 2019, in which they asserted that their property was enclosed by

the Robertsons’ property. They claimed that the nearest public road, Parish

Road 6611, and the 80-foot right-of-way connecting to it, have a history of

flooding from October to March, and the flooding makes otherwise passable

ways impassable. In the alternative, they argued that, if the Robertsons got

their requested servitude, then they requested one over Deborah Plantation to

Highway 134. They reiterated their assertion that, if the Robertsons were

entitled to a servitude, it should be Parish Road 6611 through the parish

right-of-way and further stated that it should be used only for purposes

specified by the WRP but not for hunting.

In their April 2019 answer to the first amended reconventional

demand, the Robertsons asserted that the Arledges already had a legal right

of passage to a public road (i.e., Parish Road 6611) and thus their property

was not an enclosed estate. In February 2020, the Arledges filed a motion

for summary judgment contending that they had an enclosed estate. The

motion was denied in June 2020.

On July 15, 2020, Trunkline was dismissed from the suit pursuant to a

consent motion to dismiss. A bench trial was held on July 20 and 21, 2020.

The Robertsons presented the testimony of Jeff Messinger, a licensed land

surveyor, and Elliott Colvin, a farmer and dirt contractor for Northeast Dirt

Works, LLC. Messinger prepared a plat showing the three right-of-way

options under consideration. They were: Option 1, which contained 4.451

4

acres and allowed travel in an easterly direction from the southern border of

the Robertsons’ 47 acres along the Trunkline Road; Option 2, a much shorter

route containing 0.78 acres on the west side of the Arledges’ 440 acres,

which connected to the Deborah Farms property owned by the Robertsons

and thus gave access to Highway 134; and Option 3, which contained 3.496

acres, and went 5,077 feet east across the north boundary of the 440 to an

80-foot parish right-of-way, and then connected with Parish Road 6611.

Colvin provided estimates for the right-of-way road constructions3 that

would be required for Option 2 ($9,041)4 and Option 3 ($63,687.75). Lea

Bass Creech testified as an expert real estate appraiser on behalf of the

Robertsons. In her market analysis appraisal, she came across similar

property priced at $3,000 to $4,278 per acre. She ultimately concluded that

$4,000 per acre would be the value of the right-of-way tracts. Mr.

Robertson testified about the problems he had had with the Arledges,

especially over their past use of the Trunkline Road through the front gate of

Deborah Farms. He stated that Option 2 would be the least injurious route

for the Arledge property, as well as the shortest and least expensive.

Several members of the Arledge family testified. They included the

defendants, Rickie (“Mr. Arledge”) and Kimberly; their sons, Rickie Jr. and

Hardy; and Hardy’s 15-year-old son, Owen. They discussed their farming of

3
Both Option 1 and Option 2 required construction of a 30-foot right-of-way
723.39 feet long from the southern border of the Robertsons’ 47-acre tract south to the
Trunkline Road. Option 1 then went to the east along the Trunkline Road, while Option
2 went southwest before curving southeast.

Option 3 required the construction of a 30-foot right-of-way for 5,077 feet along
the Arledges’ northern border, connecting to an already existing 80-foot right-of-way
which, in turn, would link up to Parish Road 6611.
4
This amount also included the dirt work for Option 1, which primarily involved
an already existing road.

5

the 440 property, Rickie Jr.’s crawfish farm, and their extensive hunting on

the property. Kendall Crow, the president of the East Carroll Parish Police

Jury, testified about the condition of Parish Road 6611 and the 80-foot right-

of-way and the parish’s upkeep of them. A proffer was made of the

testimony of the Arledges’ expert, Don Lockard, a general certified real

estate appraiser. He explained in the proffer that he was not able to prepare

his appraisals for a variety of reasons, including the COVID-19 lockdown

and not seeing the legal descriptions of the three proposed options until the

first day of trial. The trial court excluded his testimony because the letter

received from him during the trial contained no useful information and any

amounts that might have been offered at trial would not comply with the

scheduling order. The Arledges also made proffers of the testimony of two

East Carroll deputies about incidents that occurred on the properties, which

the trial court ruled were irrelevant to the issues of whether the Robertson

property was enclosed or what indemnity might be owed.

On rebuttal to the reconventional demand, Mr. Robertson testified

again. He reiterated that the shortest route was Option 2. Testimony about

the usage and conditions of the existing roads that provided the Arledges

access to their property was given by Dusty Myers, who was leasing

Deborah Farms, and Jimmy Myers, who was retired and lived on Deborah

Farms.

Following submission of posttrial briefs, the trial court issued lengthy

written reasons for judgment on November 9, 2020. It ruled in favor of the

Robertsons on the main demand and granted them a permanent servitude

utilizing Option 2. It noted that the parties agreed that the Robertsons’ 47-

acre tract was an enclosed estate under La. C.C. art. 689. Of the three

6

options, the trial court concluded that Option 2 was the shortest and least

injurious route under La. C.C. art. 692. It would affect the least amount of

the Arledge property and would interfere with the use of only two of the

Arledges’ many existing deer stands. The court found that it was

sufficiently distanced from the Arledges’ commercial crawfish pond and

duck ponds so as not to adversely affect those operations or any of their

other farming activities. As to the compensation due to the Arledges for the

right of passage and to indemnify them for the damage occasioned by the

passageway, the trial court awarded a total of $54,000. The trial court

reasoned that $4,000 was appropriate for the value of the land upon which

the servitude was granted, based upon Creech’s analysis, which was the only

evidence in the record about monetary values. The trial court then reasoned

that $50,000 was “a fair indemnity value” in view of the Arledges’ love of

deer hunting and the loss of use of two deer stands in perpetuity.

As to the reconventional demand, the trial court found that the

servitude requested by the Arledges was originally predicated on the

Robertsons being granted a servitude under Option 1. The trial court

detailed the history of the Arledges’ prior use of the Trunkline Road on the

Deborah Plantation property to access Highway 134, including a prior

agreement between the parties which was cancelled by the Robertsons due to

animosities that included an Arledge relative allegedly shooting at a

Robertson employee. The trial court found that La. C.C. art. 694, which

pertains to gratuitous servitudes, was inapplicable to the instant case. As to

La. C.C. art. 689, the Arledges were required to prove that their property

was enclosed. When they purchased it, their deed gave them an 80-foot

right-of-way from their northeast corner to Parish Road 6611. Thus, they

7

had access to a public road. However, they now claimed in this litigation

that Parish Road 6611 was not passable year-round. In light of conflicting

testimony about whether Parish Road 6611 was impassable and the fact that

the Arledges put forth Option 3, which relied upon the use of that road, as a

solution to the Robertsons’ access issue, the trial court concluded that the

Arledge property was not an enclosed estate.5 Accordingly, the

reconventional demand was dismissed.

Judgment was signed on November 9, 2020, granting the permanent

servitude to the Robertsons and ordering them to pay the Arledges $54,000,

while dismissing the Arledges’ reconventional demand with prejudice. All

court costs, including expert witness fees, were assessed against the

Arledges. On November 20, 2020, the Arledges filed a motion for new trial,

which was denied on November 24, 2020.

The Arledges appeal. They do not contest the trial court’s selection of

Option 2 as the location for the servitude of passage granted to the

Robertsons. The Arledges’ assignments of error challenge the trial court’s

rulings that: (1) the Arledges made an adverse judicial admission; (2) the

Arledge property was not an enclosed estate; (3) La. C.C. art. 694 was

inapplicable; (4) excluded the Arledges’ expert witness from testifying; (5)

denied the Arledges’ motion for summary judgment; and (6) the amount of

$54,000 was adequate compensation for the Arledges. The Arledges claim

the award should be increased to $120,000. They also contend that the trial

5
In its opinion, the trial court stated that, when given the opportunity to withdraw
Option 3 as a solution to the Robertsons’ enclosed estate status, Arledge refused. The
court considered that a judicial admission that Parish Road 6611 is a public road
providing suitable passageway, as contemplated by La. C.C. art. 689.

8

court should have dismissed the plaintiffs’ petition for failure to join

necessary parties.

The Robertsons answered the appeal, asserting that the award of

$54,000 was not supported by the evidence.6

JOINDER OF PARTIES

The Arledges contend that the trial court erred in not dismissing the

Robertsons’ claim for a servitude of passage for failure to join the owners

over whose property the servitude would traverse. Specifically, they

contend that Black Gold, the entity that owns Deborah Farms, and Dusty

Myers, who leases Deborah Farms from Black Gold, should have been made

parties to the instant suit.7 As a result, they assert the adjudication below is

an absolute nullity.

The joinder of parties needed for just adjudication is addressed in La.

C.C.P. art. 641, which states:

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among
those already parties.

(2) He claims an interest relating to the subject matter of the
action and is so situated that the adjudication of the action in his
absence may either:

(a) As a practical matter, impair or impede his ability to protect
that interest.

(b) Leave any of the persons already parties subject to a
substantial risk of incurring multiple or inconsistent obligations.

6
Another issue raised by the Robertsons in their answer to the appeal, which
pertained to an expert witness fee, was not briefed and, consequently, is deemed
abandoned.
7
The Arledges did not file a peremptory exception of nonjoinder of parties below
on this issue. They did file one urging that Trunkline should have been made a party,
which apparently prompted the Robertsons to add Trunkline as a defendant in their first
supplemental and amended petition for servitude.

9

The failure to join a party to an action may be pleaded in the

peremptory exception, or may be noticed by the trial or appellate court on its

own motion. See La. C.C.P. arts. 645 and 927(B).

A person should be deemed to be needed for just adjudication only

when absolutely necessary to protect substantial rights. Courts are to

determine whether a party should be joined and whether the action should

proceed if a party cannot be joined by a factual analysis of all the interests

involved. Tensas Par. Police Jury v. Perritt, 50,123 (La. App. 2 Cir.

9/30/15), 181 So. 3d 143. An adjudication made without making a person

described in La. C.C.P. art. 641 a party to the litigation is an absolute nullity.

Tensas Par. Police Jury v. Perritt, supra.

The Arledges claim in brief that they raised nonjoinder of Black Gold

at a hearing on March 14, 2019, during their argument on their exception of

no right of action. Review of the transcript reveals that they referred to

Black Gold as “one – well, almost required party.” We further note that the

Arledges named only the Robertsons as defendants-in-reconvention,

apparently laboring under the belief that their presence alone was sufficient

for the trial court to award the Arledges a servitude over “neighboring

Deborah Plantation.”

As previously noted, the Robertsons specifically pled in their original

petition for servitude that they were the sole members of Black Gold and

consequently owned Deborah Farms. During the trial, it was not disputed

that the Robertsons were the sole members of Black Gold. Dusty Myers

testified that he had a lease from Black Gold and that he farmed all but 100

acres of the farmable acres. There is no evidence that indicates that any of

the acres he farmed would be affected by the servitudes at issue.

10

In view of the above, we do not find that the trial court erred in failing

to notice on its own motion that Black Gold and Dusty Myers were

necessary parties. Their absence does not frustrate the trial court’s ability to

accord complete relief among those already parties. Furthermore, the

absence of Black Gold and Dusty Myers as parties in this litigation does not,

as a practical matter, impede their ability to protect their interests. La.

C.C.P. art. 641. See Greenway v. Wailes, 41,412 (La. App. 2 Cir. 8/1/06),

936 So. 2d 296.

We find no merit to this assignment of error.

JUDICIAL ADMISSION

The Arledges contend that the trial court erred in finding that they

made a judicial admission that Parish Road 6611 provides a suitable

passageway contemplated by La. C.C. art. 689 and, thus, they were not the

owners of an enclosed estate.

A judicial confession is a declaration made by a party in a judicial

proceeding. It constitutes full proof against the party who made it, is

indivisible, and may be revoked only on the ground of error of law. La. C.C.

art. 1853; Cichirillo v. Avondale Indus. Inc., 04-2894 (La. 11/29/05), 917 So.

2d 424; Blackjack Farms, L.L.C. v. Richmond, 53,986 (La. App. 2 Cir.

6/30/21), — So. 3d —, 2021 WL 2676935. A declaration made by a party’s

attorney or mandatary has the same effect as one made by the party himself.

La. C.C. art. 1853, Revision Comment (b); C.T. Traina Inc. v. Sunshine

Plaza Inc., 03-1003 (La. 12/3/03), 861 So. 2d 156; Burch v. Burch, 51,780

(La. App. 2 Cir. 1/10/18), 245 So. 3d 1138.

11

In its written opinion, the trial court cogently stated:

Ironically, Arledge offered Robertson a route through his
property to Parish Road 6611 as his solution to provide Arledge
access to a public road. When given an opportunity by the
Court to withdraw Option 3 as a solution to Robertson’s
enclosed estate status, Arledge refused; and he maintained that
Option 3 was a viable solution. The Court considers Arledge’s
stance in this regard as a judicial admission that Parish Road
6611 is a public road which provides suitable passageway
contemplated by Article 689. If Option 3 would be a viable
solution for Robertson’s enclosed status, then logically,
Arledge’s access to that same Parish Road 6611 could not
possibly render his 440 acres to be declared an enclosed estate.

In brief, the Arledges argue that they never admitted that Parish Road

6611 and the 80-foot right-of-way were suitable for vehicular traffic in all

seasons. However, review of the record reveals that, in their reconventional

demand, the Arledges proposed a path incorporating Parish Road 6611 and

the 80-foot right-of-way (Option 3) as the shortest route to a public road for

the Robertsons in lieu of Option 1. Mr. Arledge admitted in his testimony

that Option 3 was the one he requested in his reconventional demand. At the

conclusion of the evidence, when the trial court asked counsel for both sides

if there was really an issue about Option 2 being the shortest and least

injurious route for Mr. Robertson, counsel for the Arledges stated that he

still wanted to brief that issue.

We agree with the trial court’s analysis recited above. Throughout the

record, the Arledges repeatedly put forth Parish Road 6611 and the 80-foot

right-of-way as an option which was suitable for the Robertsons.8 In light of

8
In their brief, the Arledges asserted that they offered this passage because the
Robertsons requested the servitude of passage to put their 47 acres in the WRP, a wetland
conservation program. However, Mr. Robertson testified at trial that he was in court to
get access to his 47-acre tract. He further stated that, because he lacked written access,
his contract with the WRP no longer existed.

12

this, we find the Arledges’ argument that these roads were now unacceptable

for them is disingenuous. This assignment of error is without merit.

ENCLOSED ESTATE

The Arledges assert that the 440 is an enclosed estate under Louisiana

law because it lacks year-round access to a public road and the trial court

erred in denying their reconventional demand.

La. C.C. art. 689 provides, in pertinent part:

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 right of passage for the benefit of an enclosed estate shall be

suitable for the kind of traffic or utility that is reasonably necessary for the

use of that estate. La. C.C. art. 690. The owner of the enclosed estate may

construct on the right-of-way the type of road, utility, or railroad reasonably

necessary for the exercise of the servitude. La. C.C. art. 691. An estate will

be considered enclosed where its access is insufficient, as well as when there

is no access. Corley v. C & J Frye Properties, LLC, 49,969 (La. App. 2 Cir.

8/19/15), 176 So. 3d 439, writ denied, 15-1887 (La. 11/20/15), 180 So. 3d

318.

In relevant part, La. C.C. art. 692 states:

The owner of the enclosed estate may not demand the right of
passage . . . anywhere he chooses. The passage generally shall
be taken along the shortest route from the enclosed estate to the
public road . . . at the location least injurious to the intervening
lands.

In addition to the Arledges’ judicial admission pertaining to Parish

Road 6611 and the 80-foot right-of-way discussed supra, we agree with the

trial court’s assessment that the trial testimony was conflicting as to whether

13

Parish Road 6611 was passable year-round. One of the photos relied upon

by the Arledges showed flooding from an atypical episode of record rainfall

that was so severe it closed local schools, a fact brought out only on cross-

examination. While the Arledges’ self-serving testimony painted a dire

picture of the access and the alleged failure of the police jury to make

repairs, other witnesses presented a more balanced view. Mr. Thompson,

the police jury president, discussed work done on the road and the right-of-

way when requested but candidly admitted that they had only one road

grader and a large parish. He also admitted that it could be difficult to work

on the road in winter. Dusty Myers stated that Parish Road 6611 was the

only road he used for farming, and that he used it at least two or three times

per week and every day during farming season. Most times during farming

season, farm equipment could be taken in on that road, but other times not.

He testified he had never seen it completely flooded out. While he could get

back there during winter, he had no need to do so. He said that there were

times he was unable to plant because the fields were saturated, not due to the

condition of the roads. Jimmy Myers testified that he regularly used Parish

Road 6611 and that he could get in and out of it every month of the year,

although he would need four-wheel drive in January. According to his

testimony, farmers use Parish Road 6611 for planting and getting their crops

out. Mr. Robertson testified as to his own use of Parish Road 6611 before he

retired from farming. He stated that he mostly used it to get his crops out

but that everyone else used it year-round.

In Blackjack Farms, L.L.C. v. Richmond, supra, the owner of an

enclosed estate sought a right of passage that provided all-weather, year-

round access. The trial court balanced the interests of all parties and chose a

14

route that was not the one desired by Blackjack. It noted that, as the

property was in a flood plain and subject to seasonal flooding, Blackjack

could not expect all-weather access to its property. In affirming, this court

observed that, even though Blackjack requested an all-weather, year-round

road, it did not have “all-weather property.” A similar situation is present

here, where the record indicates that the property was located in a wetlands

area.

Based on the unique facts presented in the instant case, we find that

the trial court was correct in denying the Arledges’ reconventional demand

on the basis that they failed to prove that their property had insufficient or no

access to a public road and that, consequently, their property was not an

“enclosed estate” as contemplated by La. C.C. art. 689. This assignment of

error lacks merit.

APPLICABILITY OF LA. C.C. ART. 694

The Arledges contend that the trial court erred in finding that La. C.C.

art. 694 was inapplicable in the instant case because the law recognizes a

right of passage, whether forced or gratuitous, where the owner of the

dominant estate has been unreasonably denied access to an existing,

historical service road. They claim that the portion of the Trunkline Road

leading to the front gate of Deborah Farms constituted such a road.9

La. C.C. art. 694 provides:

When in the case of partition, or a voluntary alienation of an
estate or of a part thereof, property alienated or partitioned

9
According to the testimony presented at trial, the Arledges had used this road in
the past. At one point, the parties entered into a written contract allowing the Arledges to
go through the front gate of Deborah Farms; either side could cancel the contract.
Numerous conflicts between the parties ensued. After an incident when a member of the
Arledge family allegedly fired a shot over the head of a Robertson employee, the
Robertsons cancelled the contract. Such incidents arguably demonstrate that the
Robertsons’ refusal to allow the Arledges to use the road was not “unreasonable.”

15

becomes enclosed, passage shall be furnished gratuitously by
the owner of the land on which the passage was previously
exercised, even if it is not the shortest route to the public road
. . ., and even if the act of alienation or partition does not
mention a servitude of passage.

An essential element of asserting the right to have a gratuitous

servitude of passage fixed by the trial court under Article 694 is proof that

the dominant estate is enclosed. Phipps v. Schupp, 2014-0672 (La. App. 4

Cir. 3/18/15), 163 So. 3d 212, writ denied, 15-0778 (La. 6/1/15), 171 So. 3d

265. Because we agree with the trial court’s ruling that the Arledges failed

to prove that their property falls under the definition of an enclosed estate,

we also concur with the trial court’s conclusion that La. C.C. art. 694 is

inapplicable to the instant case.

EXCLUSION OF EXPERT WITNESS

The Arledges contend that the trial court abused its discretion by

excluding the testimony of their expert, Don Lockard, on the right of way

value and associated damages. The Robertsons maintain that the trial court

properly excluded his testimony due to the Arledges’ failure to timely

provide his expert report.

The initial scheduling order, which set trial for July 20 and 21, 2020,

was signed on February 20, 2020. A joint motion for extension of time to

exchange “will call” witness lists was filed on March 13, 2020, and the

parties were ordered to exchange lists on or before April 15, 2020. Due to

the COVID-19 pandemic, on April 16, 2020, a joint motion for extension of

deadlines under the current scheduling order was filed; an order was signed

on April 23, 2020, which required submission of witness lists by May 6,

2020, and completion of discovery and inspection of exhibits by June 5,

2020. Due to the COVID-19 public health emergency and a death in the

16

Arledge family, on July 6, 2020, the Arledges requested that the trial court

extend the delays for exchanging lists of trial witnesses and exhibits until

July 9, 2020. In a phone conference, the Robertsons agreed to an extension

until the week before trial. However, no report from Lockard was

forthcoming.

At the end of the first day of trial, a document was given to the

Robertsons and the judge giving reasons for Lockard’s failure to provide a

report.10 During the second day of the trial, the trial court stated that the

document, alternatively referred to as a letter or report, contained no

appraisal and essentially said Lockard was not able to provide a report for

damages. In light of that, the trial court concluded that it did not see how

Lockard’s testimony would help it decide the issues before it. The trial court

noted that the case had been pending since 2018. As to the Arledges’ claim

that the legal descriptions of the three options were not supplied until the day

trial commenced, the Robertsons asserted that the pleadings included

sufficient descriptions of the paths and that the Arledges had the survey map

since early June. The trial court allowed the Arledges to make a proffer of

Lockard’s testimony.

The abuse of discretion standard applies to the trial court’s ultimate

conclusion as to whether to exclude expert witness testimony. Smart v.

Kansas City S. R.R., 36,404 (La. App. 2 Cir. 11/6/02), 830 So. 2d 581.

Absent an abuse of discretion, the trier of fact’s decision in implementing

and enforcing a pretrial scheduling order will be upheld. Allen v. Bridges,

41,169 (La. App. 2 Cir. 11/1/06), 942 So. 2d 686.

10
Although the trial court stated that it would allow this document to be made
part of the record, it was not included in the appellate record.

17

In light of the many extensions granted in this case, we find the trial

court did not abuse its wide discretion in excluding Lockard’s testimony

when no timely report was furnished to the Robertsons. Furthermore, we

have reviewed the testimony that was proffered. No helpful information was

elicited from the witness, as he had not performed any appraisals or analysis.

AMOUNT OF AWARD

Both sides appeal from the monetary award of $54,000. The Arledges

insist that the trial court’s award of $54,000 for the loss of two deer stands

was inadequate and should be raised to $120,000. On the other hand, the

Robertsons contend that the trial court erred in making an excessive award

without any evidentiary or factual basis.

Pursuant to La. C.C. art. 689, the owner of an enclosed estate awarded

a right of passage over neighboring property to the nearest public road is

“bound to compensate his neighbor for the right of passage acquired and to

indemnify his neighbor for the damage he may occasion.”11 Under an article

689 servitude of passage, the enclosed dominant estate must pay the owner

of the servient estate for the servitude and pay for any damages the enclosed

estate may cause. See Sally Brown Richardson, An Exploration into

11
The language “to compensate his neighbor for the right of passage acquired”
was added by Acts 2012, No. 739, § 1. We note that the primary cases relied upon by the
Robertsons – Dickerson v. Coon, 46,423 (La. App. 2 Cir. 8/10/11), 71 So. 3d 1135, and
Greenway v. Wailes, supra, – were rendered prior to the amendment. The Dickerson
court specifically noted that, at that time, “La. C.C. art. 689 refers to indemnification for
damages that may be occasioned; it does not provide for compensation to the owner of
the servient estate for the right of passage.” Similarly, the Greenway court stated,
“Article 689 speaks of damage. It does not discuss compensation based upon the
appraised value as though the servient estate used for the roadway has been expropriated.
We find that the trial court’s focus on the appraised values of these lake front properties
and the enhancement of the value of the Greenway tract attempted to provide Wailes a
measure of compensation analogous to expropriation, which is not the test of Article 689.
Instead, Article 689 only allows that the property ‘may’ receive ‘damage’ requiring
indemnification by the owner of the dominant estate.” Due to the 2012 amendment,
cases predating the addition of the compensation element are of limited use now.

18

Louisiana Enclosed Estate Doctrine, 94 Tul. L. Rev. 519, 539 (2020), for an

in-depth discussion of the developments in the law.

By filing suit for right of passage, a party effectively alleges

willingness to indemnify the owner of the servient estate for the damages

resulting from use of the servitude. There is no need for the owner of the

servient estate to demand payment of indemnification that was already

admitted. Phillips Energy Partners, LLC 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. The burden is on the owner of the servient estate

to prove the amount of damage resulting from the servitude of passage.

Blackjack Farms, L.L.C. v. Richmond, supra; Phillips Energy Partners, LLC

v. Milton Crow Ltd. P’ship, supra.

The indemnity is for the “damage” caused to the servient estate. That

measure is different from compensation due to a landowner for the value of

the servitude of passage. The amount of the indemnity is fixed in light of

the damage occasioned to the servient estate. Phillips Energy Partners, LLC

v. Milton Crow Ltd. P’ship, supra.

Absent some extraordinary circumstances, the value of a servitude

taken is not the same as the full market value of the land. Hutchison v.

Jackson, 399 So. 2d 1238 (La. App. 3 Cir. 1981). Since the owner of the

property over which a servitude is granted retains certain rights over the

servitude property, it would be error for the trial court to order the person in

whose favor the servitude was granted to pay the full market value of the

property. Hutchison v. Jackson, supra.

We review a trial court’s decision on damages for abuse of discretion

and note that the trial court has vast discretion in determining whether to

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award damages. Altemus v. Boudreaux, 2015-725 (La. App. 3 Cir.

12/23/15), 184 So. 3d 142, writ denied, 16-0157 (La. 3/24/16), 190 So. 3d

1197. A trial judge has wide discretion in determining the amount of

damages occasioned by the party on whose estate the right of passage is

fixed. May v. Miller, 2006-418 (La. App. 3 Cir. 10/11/06), 941 So. 2d 661,

writ denied, 07-0009 (La. 3/9/07), 949 So. 2d 443.

Our review of the trial court’s total award of $54,000 demonstrates

that the trial court gave compensation of $4,000 for the Option 2 right of

passage acquired and then indemnity of $50,000 for the Arledges’ loss in

perpetuity of their two deer stands. As to the Arledges’ claim on appeal that

the award is inadequate and should be raised to $120,000, we note that they

have cited no authority supporting such an increase. Accordingly, that claim

is denied.

The Robertsons seek reduction of the $4,000 portion of the award and

reversal of the $50,000 portion. The $4,000 award was based upon the

evidence presented by Creech, the Robertsons’ own expert witness, who

gave a range of reasonable price per acre of $3,000 to $4,278, with an

average of $4,000. The trial court did not reduce the value of the servitude,

as had been done in Hutchinson v. Jackson, supra. However, given the

range of prices submitted by Creech, we find no abuse of the trial court’s

wide discretion in making this portion of the award.

As to the $50,000 award for indemnity, we observe that the burden

was on the Arledges, as owners of the servient estate, to prove the amount of

damage resulting from the servitude of passage. For reasons discussed

supra, their expert witness was not allowed to testify. Had he been allowed

to testify, he had no helpful information to offer the trial court. Further, the

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evidence adduced at trial shows that the Arledges did not lease any of their

property to any third parties for hunting and thus there was no loss of

income. No evidence was adduced as to the cost to relocate or replace any

deer stands. At trial, Mr. Arledge testified he had no monetary figures to

provide to the court.12 The record before us is completely devoid of any

evidence justifying the trial court’s $50,000 award pertaining to damages for

the loss of use of two deer stands. Therefore, we must reverse and vacate

that portion of the award. See Blackjack Farms, L.L.C. v. Richmond, supra;

Dalton v. Graham, 53,452 (La. App. 2 Cir. 4/22/20), 295 So. 3d 437, writ

denied, 20-00740 (La. 10/6/20), 302 So. 3d 535. We again note that the trial

court’s ruling that Option 2 was least injurious was carefully crafted to not

interfere in any way with the Arledges’ farming activities, crawfish ponds,

duck ponds and blinds. The evidence shows that there are numerous other

deer stands located on the property. Any inconvenience or interference with

the use of the property is minimal.

Accordingly, the total award of $54,000 is reduced and amended to

the sum of $4,000.

MOTION FOR SUMMARY JUDGMENT

The Arledges contend that the trial court abused its discretion in

denying their motion for summary judgment.

12
At trial, Mr. Arledge testified that he did not know and could not “put an exact
dollar” amount on what they spent on hunting which was their “enjoyment during the
winter.” When asked again if he had a price in mind about what the right-of-way should
cost, he said he had “no idea.”

In the section of their posttrial brief addressing indemnity and damages if Option
2 was chosen, the Arledges suggested that the “value of the deer hunt which is
represented in a hunting club membership is at least $5,000 annually.” However, no such
figure was ever discussed, much less established at trial.

21

An appeal may not be taken from a trial court’s denial of a motion for

summary judgment. La. C.C.P. art. 968. Since a trial court’s action in

overruling a motion for judgment on the pleadings, or for summary

judgment, is merely an interlocutory judgment causing no irreparable injury,

it cannot be appealed, except under the appeal from the final judgment

rendered in the case. La. C.C.P. art. 968, Comment D. On appeal of a final

judgment, review may be had of the denial of a motion for summary

judgment by the trial judge, which is based solely upon the resolution of a

legal question. Pittman v. Metz, 47,320 (La. App. 2 Cir. 9/20/12), 109 So.

3d 1; Magill v. Owen Const. Co., 434 So. 2d 520 (La. App. 2 Cir. 1983).

Following arguments, the trial court stated that it had to deny the

Arledges’ motion for summary judgment “because it’s obvious that there are

disputed facts that are before the court.” Additionally, the trial court was

influenced by the Robertsons’ argument that, since the Arledges’ request for

a servitude was an alternative request which hinged on the Robertsons being

granted a right-of-way at the location they requested, the Arledges’ motion

was premature.

Since it was dismissed by the trial court due to the presence of

disputed facts, not a legal issue, review of the Arledges’ motion for

summary judgment is not properly before us on appeal. Accordingly, this

assignment of error is dismissed.

CONCLUSION

Based on the foregoing, we reverse in part, amend in part, and affirm

in part the trial court judgment. The trial court’s award of $50,000 for

indemnification is reversed and vacated. Accordingly, the portion of the

judgment awarding $54,000 for the right of passage acquired and to

22

indemnify for the damage occasioned by the passageway is amended to

$4,000. In all other respects, the trial court judgment is affirmed.

Costs of this appeal are assessed against Rickie Reese Arledge and

Kimberly Kirkland Arledge.

REVERSED IN PART, AMENDED IN PART, AFFIRMED IN

PART.

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