Gary Roland Bailey v. Neil Douglas McNeely, Et Ux.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-629

GARY ROLAND BAILEY, ET AL.

VERSUS

NEIL DOUGLAS McNEELY, ET UX.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT,
PARISH OF SABINE, NO. 55,991
HONORABLE CHARLES B. ADAMS, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese,
Judges.

AFFIRMED.

Kenneth N. Simmons
Post Office Drawer 490
Many, Louisiana 71449
COUNSEL FOR PLAINTIFFS/APPELLEES:
Gary Roland Bailey, et al.

George E. Harp
610 Marshall Street, Suite 619
Shreveport, Louisiana 71101
COUNSEL FOR DEFENDANTS/APPELLANTS:
Neil Douglas McNeely, et ux.

GENOVESE, Judge.

Defendants appeal various judgments of the trial court finding that Plaintiffs’

immovable property was enclosed, fixing the location of the servitude of passage over

Defendants’ property, and denying Defendants’ claim for indemnification. Plaintiffs

have answered the appeal objecting to the location of the servitude of passage fixed

by the trial court and seeking attorney fees for frivolous appeal. For the following

reasons, we affirm.

FACTS

Plaintiffs, Gary Roland Bailey, Wanda Sue Bailey Stahl, Donna Bailey Chance,

Michael Wayne Bailey and Scott Dwayne Bailey (“Baileys”), and Defendants, Neil

and Martha McNeely (“McNeelys”), are the owners of contiguous property located

on Toledo Bend Lake in Sabine Parish, Louisiana. Plaintiffs’ ancestor in title,

Continental Can Company, Inc., owned approximately forty acres of land which,

except for the approximate two acres presently owned by Plaintiffs, was expropriated

in 1966 by the Sabine Parish River Authority for the creation of Toledo Bend Lake.

Prior to the expropriation and flooding of the property, there was access through the

forty acre tract to Red Hill Road, which was a public road running north and south

bisecting said tract. The expropriation of property and creation of the lake left the

two acres, presently owned by Plaintiffs, without access to Red Hill Road. This

property was accessible only by virtue of a navigable waterway, Toledo Bend Lake,

which was created by the damming of the Sabine River, a navigable river, running

through it.

Defendants are the owners of the contiguous property to the east of Plaintiffs’

property, which, when considered together, form a peninsula. Defendants have

access to a public road, Louisiana Highway 191, east of these properties, by virtue of

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a servitude through property owned by International Paper Company and Toledo

Bend Resort.

Plaintiffs filed a Petition for Servitude of Passage and Way against Defendants.

Plaintiffs subsequently filed a motion for partial summary judgment on the sole issue

of whether or not Plaintiffs’ property was an enclosed tract of land. The trial court

ruled that Plaintiffs’ property was enclosed and that Plaintiffs were entitled to a

servitude of passage across Defendants’ property.

Trial on the merits was then held on the remaining issues of the location of the

servitude of passage and Defendants’ claim for indemnification. The trial court fixed

the location of the servitude across Defendants’ property and denied Defendants’

claim for indemnification.

ISSUES

The following issues are presented by Defendants for our review:

1. Whether Plaintiffs’ property is enclaved;

2. Whether Defendants, or the Sabine River Authority, have
a duty to provide Plaintiffs with a servitude of passage to
the nearest public road;

3. Whether Plaintiffs met their burden under Civil Code
Article 689 of proving that the location of the servitude of
passage sought and granted was the shortest route from
Plaintiffs’ property to the nearest public road;

4. Whether the servitude of passage was granted over a route
other than the one to the nearest public road;

5. Whether Plaintiffs’ action should have been dismissed for
failure to join as party defendants landowners over whose
property the servitude of passage would traverse to access
the nearest public road;

6. Whether the trial court erred in granting a servitude of
passage under Civil Code Article 689 without granting
some amount of indemnity to owners of the burdened
estate; and

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7. Whether the granting of a 30 foot (25 foot) wide servitude
of passage was excessive for the projected use of the
property as a camp by Plaintiffs.

Additionally, Plaintiffs raise the following issues in their answer to appeal:

1. Whether the trial court erred in the placement of the
servitude of passage across the Defendants’ property; and

2. Whether the appeal by Defendants is frivolous thereby
entitling Plaintiffs to attorney fees incurred in processing
this appeal.

LAW AND ARGUMENT

Enclosure of Plaintiffs’ Property

Plaintiffs filed a motion for partial summary judgment on the issue of whether

or not their property was enclosed as a matter of law. The trial court found that the

subject property was enclosed under La.Civ.Code art. 689 and granted a partial

summary judgment in favor of Plaintiffs. We agree.

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131; Goins v.

Wal-Mart Stores, Inc., 01-1136 (La. 11/28/01), 800 So.2d 783. The appellate court

must determine whether “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to material fact, and that mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(B).

The right of the landowner whose estate is entirely enclosed by the lands of his

neighbor to acquire a passageway to the nearest highway is based upon La.Civ.Code

art. 689, which currently provides, in pertinent part, that “[t]he owner of an estate that

has no access to a public road may claim a right of passage over neighboring property

to the nearest public road.”

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It is not disputed that Plaintiffs’ property has no direct access across land to a

public road. Defendants contend, however, that Plaintiffs’ property is not enclosed

by virtue of a conventional servitude of passage granted to Plaintiffs’ ancestor in title

which provided access to a water course. In so concluding, they rely on La.Civ.Code

art. 699, as it existed in 1966, as opposed to the codal provision currently found in

La.Civ.Code art. 689.

Louisiana Civil Code Article 699 historically provided for a right of passage

to the owner of an estate which was enclosed “and who [had] no way to a public road,

a railroad, a tramroad or a water course. . . .” Louisiana Civil Code Article 699 was

amended by 1970 La. Acts No. 672, § 1, which deleted the reference to water

courses.1 It is Defendants’ position that La.Civ.Code art. 699, as it existed in 1966,

determines whether or not Plaintiffs’ property is enclosed.

At the time of expropriation, Plaintiffs’ ancestor in title, Continental Can

Company, Inc., entered into a leaseback and servitude agreement with the Sabine

River Authority. By virtue of this agreement, Continental Can Company, Inc.

acquired a conventional servitude of passage between the expropriation taking line

and the edge of the water. Since, in 1966, article 699 did not consider an enclosed

estate one which had access to a waterway, Defendants conclude that the subject

property, although lacking access to a public road, is not enclosed. They, therefore,

assert that Plaintiffs are not entitled to the servitude of passage sought in the instant

litigation. We find this argument to be without merit.

Under the express provisions of La.Civ.Code art. 689, Plaintiffs’ property is

enclosed as a matter of law since it has no access to a public road. The enclosure of

the property gives rise to a servitude imposed by law granting Plaintiffs passage over

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Additionally, in 1977, the terms “railroad” and “tramroad” were deleted and the article
was renumbered as La.Civ.Code art. 689.

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Defendants’ property to the nearest public road. We do not find it relevant that

Plaintiffs’ ancestor in title had access to a water course under the law as it existed

when the expropriation occurred.

Although not directly on point on this issue, we find this court’s opinion in

Bouser v. E. Earl Morgan, 520 So.2d 937 (La.App. 3 Cir. 1987) to be instructive. In

Bouser, the plaintiffs’ property became enclosed as a result of the Red River

Waterway District’s project in diverting the channel of the Red River. This court held

that the plaintiffs’ property was enclosed notwithstanding a servitude agreement in

favor of the Red River Waterway District granted by the plaintiffs or their ancestors

in title.

This court also notes subsequent jurisprudence involving landlocked estates

and the policy issue surrounding same. For example, the supreme court in LeBlanc

v. Thibodeaux, 615 So.2d 295, 299 (La.1993) recognized the “the strong public policy

of this state which is to discourage landlocking.” The court, quoting Rockholt v.

Keaty, 256 La. 629, 237 So.2d 663, 688 (1970) went on to note that “[a]s land

becomes less available, more necessary for public habitation, use, and support, it

would run contrary to public policy to encourage landlocking of such a valuable

asset and forever removing it from commerce and from public as well as private

benefit.” LeBlanc, 615 So.2d at 299 (alteration in original). This court, in Lafayette

Airport Commission v. Roy, 265 So.2d 459, 464-65 (La.App. 3 Cir. 1972) stated as

follows:

We quote approvingly from La.Law Rev. 315 where it is noted that:

‘Today, even a property with access to a watercourse could
well be considered as ‘enclosed’ with need for access to a
public road.’

This statement embodies the idea that the provisions of LSA-C.C.
Art. 699 as amended in 1916 provided by implication that access to

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Either [sic] a public road, railroad, tramroad or a watercourse was
sufficient to deny landowner the right to passage on the estate of another
was outdated. This may have been the reason for the 1970 amendment
to LSA-C.C. Art. 699 which, among other things, deleted reference to
water access or watercourse. The purpose of the 1916 amendment was
‘ . . . to allow construction of the proper facility needed in a particular
case according to the circumstances and the exigencies of the case.’
Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1979). The implication
of these amendments is not only that the needs of the particular estate
must be taken into account in determining whether the ‘access’ available
to it is indeed access sufficient to prevent the application of Art. 699, but
also, that water access is insufficient per se to prevent application of Art.
699.

In this case, Plaintiffs’ land is presently enclosed with no access to a public

road. Louisiana Civil Code Article 689 grants to the owner of an estate that has no

access to a public road, the right to claim a right of passage over neighboring property

to the nearest public road. The fact that Plaintiffs’ ancestor in title had access to a

water course in 1966 does not change the result. Therefore, we affirm the granting

of the summary judgment by the trial court finding Plaintiffs’ property to be enclosed.

Duty Owed To Provide Plaintiffs With A Servitude Of Passage To The
Nearest Public Road

Defendants assert that access to the public road should be provided to Plaintiffs

by the Sabine River Authority, since it was the entity that originally caused the

enclosure, and not a neighboring estate. We find this assertion to be without merit.

The legal duty to provide a servitude of passage arises from the application of

La.Civ.Code art. 689 cited above. That article places the duty on the neighboring

property to provide access to the nearest public road. The Sabine River Authority

does not own the neighboring property which would provide access to a public road

and has no legal authority to accomplish same. To the contrary, it owns (subject to

“leaseback”) only that property which abuts Toledo Bend Lake between the 175 foot

and the 172 foot contour line. Defendants’ assertion, if accepted, would yield the

absurd result of a servitude of passage being granted in favor of Plaintiffs running

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along the perimeter of the lake to the nearest public road.

Defendants, as the owners of neighboring property, are required by

La.Civ.Code art. 689 to provide Plaintiffs with a servitude of passage across their

property to the nearest public road. The limited ownership of property by the Sabine

River Authority does not negate the legal servitude owed Plaintiffs by Defendants.

Location Of The Servitude Of Passage

Both parties appeal the placement of the servitude of passage by the trial court.

Defendants contend that Plaintiffs failed in their burden of proving that the servitude

of passage sought and granted was correctly placed so as to be the shortest route to

the nearest public road. In their answer to appeal, Plaintiffs also assert that the trial

court erred in placing the servitude across the Defendants’ property. For the

following reasons, we affirm the judgment of the trial court establishing the location

of the servitude of passage.

The dispute on the placement of the servitude centered on whether it should

cross Defendants’ property to provide access to Toledo Resort Road to the south, or

to Highway 191 to the east. The evidence at trial focused on three possibilities. One

proposed location was for the servitude to run from Highway 191, westerly across

property owned by International Paper and Toledo Bend Resort, along the present

driveway of Defendants, then across the southern portion of Defendants’ property

along the base of the hill, where an old road bed exists. However, Defendants argue

that this placement would destroy the most valuable portion of their property, the lake

view side. The second possibility was for the servitude to run from Highway 191,

westerly across property owned by International Paper and Toledo Bend Resort,

along the existing driveway of Defendants, and across Defendants’ property on the

top of the hill, directly behind Defendants’ house. The flaw of this placement is that

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it would require construction of a road where none now exists. The third possibility

was for the servitude to traverse Defendants property to the south, then to cross

property owned by Toledo Bend Resort, and then to access Toledo Resort Road.

However, Plaintiffs argue that this proposal would require the construction of a road

where none now exists and would present drainage problems.

The law governing the placement of the servitude of passage is found in

La.Civ.Code art. 692, which provides that “[t]he 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.”

Interestingly, despite the placement of the servitude by the trial court in the

precise location of Defendants’ stated preference, Defendants argue on appeal that

this is not the shortest route to a public road. However, even if Defendants’ assertion

is correct, it is well established that a literal application of La.Civ.Code art. 692 is not

required. This issue was also discussed in Bouser, 520 So.2d at 940, wherein this

court stated:

We do not understand La.[Civ.Code] art. 692 to require the court in
every instance, regardless of the circumstances present, to select the
“shortest route” from the enclosed estate to the public road. As stated
by our Supreme Court in Vermilion Parish School Board v. Broussard,
270 So.2d 523 (La.1972):

In Rockholt v. Keaty, 256 La. 629, 237 So.2d 663
(1970), we recognized the importance of this servitude for
the benefit not only of the landowner by permitting full
utility of his land but also of the public by keeping valuable
property in commerce. More important to this case, we
acknowledged in conformity with the Code articles that the
nature of the passage was to be governed according to the
circumstances and as the exigencies of the case might
require, and that the right of passage was to be to the
nearest public road.

Article 700 clearly provides that the owner of the

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landlocked estate cannot choose from which of his
neighbors’ estates he will exact a right of passage, but that
it “shall be” where the distance is the shortest from the
enclosed land to the public road. The mandatory language
of that article is modified by the term “generally” as an
acknowledgment of certain exceptions, . . . .

Plaintiffs complain on appeal that the location of the servitude is erroneous and

that it will require an entirely new road to be constructed at a considerable expense

to Plaintiffs. They contend that the appropriate location is that proposed by William

L. Hayman, an expert in civil engineering and land surveying, who testified that the

preferable passageway would be along the southern portion of Defendants’ property

where an old road bed exists. However, this route would, according to Defendants,

destroy the most valued portion of Defendants’ property, the lakeside view. After

considering the record in this matter, although the placement of the servitude by the

trial court may not be the shortest route to the nearest public road, or the most

economical passage, the trial court’s judgment takes into account all the particular

circumstances of the subject property, as well as existing servitudes, and provides the

most practical, feasible and aesthetic resolution possible. Accordingly, we find, as

the trial court did, that the most appropriate route of passage is “located down the

existing driveway right through on the top of the crest of the hill . . . .” For these

reasons, the judgment of the trial court is affirmed.

Additional Landowners As Party Defendants

Defendants contend that the trial court erred in failing to dismiss Plaintiffs’

action due to their failure to join all of the landowners over whose property the

servitude would have to cross in order to connect to the nearest public road. We find

this assertion to be without merit.

Plaintiffs already have a written servitude of passage from another property

owner, Sustainable Forest, for that portion of the access road that connects to

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Defendants’ property. Given this servitude that already existed, it would have been

pointless for Plaintiffs to have named Sustainable Forest as a party to the instant

litigation. Since the servitude of passage granted by the trial court need not burden

the property of landowners who were not a party to the lawsuit, we find that the trial

court was correct in not dismissing Plaintiffs’ action for their failure to name

additional party defendants.

Claim For Indemnity

Defendants assert that the trial court erred in not awarding them indemnity

pursuant to La.Civ.Code art. 689. We disagree.

Although the code does provide a claim for indemnity to the owners of the

burdened estate, Defendants failed in their burden of proving the amount of damage

resulting from the servitude of passage.

The only evidence introduced on the issue of indemnification was the

testimony of Mr. George Thibodeaux, an expert real estate appraiser, who testified

that the access provided to Plaintiffs’ property by the servitude of passage would

increase the value of the property by $18,000.00. Mr. Thibodeaux did not provide

testimony regarding the damage to Defendants’ property that would be occasioned

as a result of the servitude of passage. The trial court, in discussing Defendants’

contention, correctly reasoned that “the proof that because the [Plaintiffs’] property

is increased in value is no grounds for indemnity.” Moreover, having reviewed the

record, we agree that “there has been no other evidence of diminished value” to

Defendants’ property. For these reasons, we conclude that the trial court was correct

in denying Defendants’ claim for indemnification.

Width Of The Servitude Of Passage

Defendants assert that the twenty-five foot width of the servitude of passage

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granted by the trial court is excessive. We disagree.

Louisiana Civil Code article 690 provides that “[t]he right of passage for the

benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably

necessary for the use of that estate.”

The only evidence introduced at trial on this issue was the testimony of the

expert, William L. Hayman. It was Mr. Hayman’s opinion that thirty feet is the

minimum width required in order to have the roadway and necessary drainage.

Considering this expert testimony, we find that the servitude of passage with a

twenty-five feet width is “suitable for the kind of traffic that is reasonably necessary

for the use of [Plaintiffs’] estate.”

Damages For Frivolous Appeal

In their answer to appeal, Plaintiffs also seek attorney fees for the filing of a

frivolous appeal.

Pursuant to La.Code Civ.P. art. 2164 this “court may award damages for

frivolous appeal. . . . ” However, frivolous appeal damages are allowed only when

it is obvious that the appellant took the appeal solely for the purpose of delay or that

counsel was not sincere in the view of the law he advocates. Broussard v. Union Pac.

Res. Co., 00-1079 (La.App. 3 Cir. 1/31/01), 778 So.2d 1199, writ denied, 01-0589

(La. 4/27/01), 791 So.2d 118.

On this issue, we do not find that Defendants took the present appeal for the

sole purpose of delay, nor do we find that defense counsel was insincere in the view

of the law advocated. There were legitimate legal issues raised by Defendants in their

appeal. This assignment of error lacks merit.

CONCLUSION

This court finds that the trial court correctly determined that Plaintiffs’ property

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is enclosed and that Defendants are legally obligated to provide Plaintiffs with a

servitude of passage across their property. We further find that Plaintiffs need not

have named any additional landowners as party defendants, since the judgment of the

court does not encumber their property. We conclude that the location and width of

the servitude of passage granted by the trial court is appropriate under the law and

facts of this case. With respect to Defendants’ claim for indemnity, this court finds

that Defendants failed in their burden of proving damages allegedly sustained.

Finally, Plaintiffs’ claim for damages arising from a frivolous appealed are denied.

Costs for this appeal are assessed against Defendants/Appellants.

AFFIRMED.

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