Charles Kennedy, Jr. v. Gerald E. McBride

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-208

CHARLES KENNEDY, JR., ET AL.

VERSUS

GERALD E. McBRIDE

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 72,415
HONORABLE B.C. BENNETT, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and J.
David Painter, Judges.

AFFIRMED.

Elvin C. Fontenot, Jr.
110 East Texas St.
Leesville, LA 71446
Counsel for Defendant-Appellant:
Gerald E. McBride

James R. Mitchell
607 South Fifth Street
Leesville, LA 71446
Counsel for Plaintiff-Appellee:
Charles Kennedy, Jr.

PAINTER, Judge.

The Defendant/Appellant, Gerald E. McBride, appeals a trial court judgment

finding that a road through his property is an apparent continuous servitude

established for the use and benefit of the property owned by Plaintiff/Appellee,

Charles Kennedy. We affirm the trial court’s judgment finding that the road is public

in nature.

FACTS

In 1994, Gerald McBride bought a tract of land on the Sabine River in Vernon

Parish. In 2004, Charles Kennedy bought a tract bordering the property owned by

McBride. Access to Kennedy’s property was through McBride’s property via Miller

Road.1 McBride put a locked gate across Miller Road, blocking access to Kennedy’s

property. Kennedy brought this suit asking that he be awarded a servitude of passage

over the road to the nearest public road and that McBride be prohibited from denying

him access to the road and for damages.

After a trial on the merits, the trial court ruled in favor of Kennedy recognizing

Miller Road as an easement across the property owned by McBride. McBride

appeals.

DISCUSSION

At trial, Kennedy introduced evidence to support both the theory that the road

was public and that a servitude of passage had been established by continuous

existence and use for more than thirty years. The trial court explained its decision in

written reasons for judgment. In those reasons, the court stated that it could not “find

1
While McBride averred that the road through his property was not Miller Road, the majority
of those testifying identified it as Miller Road and it will be so identified for purposes of this
opinion.

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that it is more probable than not the road in question is public.” However, the court

found that “the evidence clearly establishes that the road across the McBride estate

is an apparent continuous servitude established for the benefit of the property

Kennedy now owns.” The court further found that the servitude has existed for in

excess of thirty years.

On appeal, McBride argues that the trial court erred in finding that the Plaintiff

proved that an apparent continuous servitude existed for over thirty years. We do not

reach that issue, finding that Miller Road, as it passed through McBride’s property,

is public.

Louisiana Revised Statutes 48:491 provides, in pertinent part, that:

A. All roads or streets in this state that are opened, laid out, or
appointed by virtue of any act of the legislature or by virtue of an order
of any parish governing authority in any parish, or any municipal
governing authority in any municipality shall be public roads or streets,
as the case may be.

B. (1)(a) All roads and streets in this state which have been or
hereafter are kept up, maintained, or worked for a period of three years
by the authority of a parish governing authority within its parish, or by
the authority of a municipal governing authority within its municipality,
shall be public roads or streets, as the case may be, if there is actual or
constructive knowledge of such work by adjoining landowners
exercising reasonable concern over their property.

There is no evidence of record as to whether Miller Road was ever formally

dedicated. However, there is sufficient evidence to conclude that the road was

maintained by the Vernon Parish Police Jury (VPPJ) for a period of three years or

more.

This court, in Griffith v. Cathey, 99-923, p. 3 (La.App. 3 Cir. 2/2/00), 762

So.2d 29, 38, on rehearing explained the degree of public maintenance which must

be proven in order to allow a court to conclude that the road in question has become

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public, as follows:

In order to establish public maintenance of the road under the
statute, it is necessary to show definitively that work was performed on
the road by a public entity and approximately when that work was
performed. Boynton [v. Bertrand, 309 So.2d 769 (La.App. 3 Cir. 1975)].
Although precise moments of maintenance are not required, the claimant
must present facts which establish acts of maintenance by a public entity
within a narrow margin of time. See St. Charles School Bd. v. P & L
Inv. Corp., 95-2571 (La. 5/21/96); 674 So.2d 218. Accordingly, we
agree with the trial court's judgment that the record does not support the
Defendants' contention that the road has become public under La.R.S.
48:491.

Even where the road serves only as a driveway for one person or tract of land,

public maintenance creates a right of use in the nature of a predial servitude for the

benefit of the public. Gatson v. Bailey, 39,835 (La.App. 2 Cir. 6/29/05), 907 So.2d.

859). “In such cases, the tacitly-dedicated roads provide rights tantamount to actual

predial servitudes protecting the dominant estate owners at the end of these roads,

whose property might otherwise be enclosed.” Id. at. 863.

Norris Smith, a ninety-year-old life-long resident of the area, testified that he

served on the Vernon Parish Police Jury from 1959 through 1968 and from 1972-

1976, representing the area in which the McBride and Kennedy properties are located.

He stated that he was familiar with the properties and with Miller Road. He testified

that Miller Road goes all the way from Highway 111 to the Sabine river at the mouth

of Emerald Creek. He further testified that the VPPJ maintained Miller Road by

grading and working it during both his terms as a police juror, although he did not

know if the VPPJ continued to maintain it after McBride bought the property.

T.K. Craft, Jr., testified that he was sixty-two years-old and had lived in the

area his whole life. He stated that he has been going down Miller Road since he was

a toddler and was familiar with the Kennedy property since that time. He stated that

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the VPPJ had maintained the road and that he had first seen the VPPJ employees there

when he was a teenager.

McBride testified that he had the road built by Mike White and that the road

through his property was not Miller Road. However, the testimony of White indicates

that he did not build a road but worked on an existing road that did not appear to have

been maintained on a regular basis. He testified that he cleaned it up, filled potholes,

and smoothed it.

This testimony establishes both that Miller Road was maintained by the VPPJ

for a period of over three years and the time period within which the maintenance was

performed. See Griffin, 762 So.2d 29. Therefore, Miller Road was public pursuant

to La.R.S. 48:491.

McBride, at trial, seemed to be attempting to establish that the road had been

abandoned by the VPPJ and was no longer to be considered a public road.

Abandonment of a public road may be evidenced by (1) a formal
act of revocation in accordance with LSA-R.S. 48:701; (2) relocation
of the public road by the governing body, or (3) clear and well
established proof of intent by the governing body to abandon. Starnes
v. Police Jury of Rapides Parish, 27 So.2d 134 (La.App.2d Cir.1946);
Stelly v. Vermilion Parish Police Jury, 482 So.2d 1052 (La.App.3rd
Cir.1986), writ denied 485 So.2d 65 (La.1986). Nonuse of a strip of
land as a public road or a street for a period of in excess of ten years may
also result in termination of public use. LSA-C.C. Art. 753; Robinson
v. Beauregard Parish Police Jury, [351 So.2d 113]; Yiannopoulos,
Common, Public and Private Things in Louisiana: Civil Tradition and
Modern Practice 21 La.L.Rev. 696, 736 (1961); Stelly, [482 So.2d
1052].

IP Timberlands Operating Co. v. De Soto Parish Police Jury, 552 So.2d 605, 608

(La.App. 2 Cir. 1989) (emphasis added).

There is no suggestion here that there has been a formal act of revocation of

Miller Road’s public status, nor has the road been relocated. The question, therefore,

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is whether there is clear and well established proof of intent to abandon. Although

there was testimony that the part of the road which passes through McBride’s

property has not been maintained since he bought it in 1994, failure to maintain alone

is not sufficient to strip the road of its public status. Non-use for more than ten years

may be sufficient to establish abandonment. However, even McBride’s son-in-law

and daughter-in-law admitted in testimony that the road was regularly used by

members of the public until McBride put a locked gate across it. Additionally,

Kennedy, Craft, and Tommy McMahon2 all testified that the road has been in

continuous use by the public and the landowners. “Even after a police jury has in fact

abandoned maintenance of a tacitly-dedicated road and refuses to recognize the road

as public, the right of owners along the road to use the road as a servitude may be

upheld.” Gatson, 907 So.2d at 863.

Accordingly, we find that Miller Road is a public road and that a servitude of

use exists to protect the property accessed by it from being enclosed.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are to be paid

by the Defendant-Appellant.

AFFIRMED.

2
McMahon also owns property which is accessed though McBrides property via Miller Road.

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