Kevin Michael May v. Thomas H. Miller

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-418

KEVIN MICHAEL MAY, ET AL.

VERSUS

THOMAS H. MILLER, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-842
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED IN PART, REVERSED IN PART.

Joseph R. Ballard
Attorney at Law
P. O. Box 2431
Baton Rouge, LA 70821
(225) 381-5799
Counsel for Defendant/Appellee:
Entergy Services, Inc.

Gary A. Bezet
Kean, Miller, Hawthorne, D’Armond, McCown, & Jarman
One American Place, 22nd Floor
Baton Rouge, LA 70821
(225) 387-0999
Counsel for Defendant/Appellee:
Colonial Pipeline Company

Donald Coleman Brown
Woodley, Williams, Boudreau, Norman, Brown, & Deville, L.L.C.
P. O. Drawer 3731
Lake Charles, LA 70602-3731
(318) 433-6328
Counsel for Defendants/Appellees:
Owen John & Dolores K. Morrissey

Robert William Collings
Collings & Collings
3434 Common Street
Lake Charles, LA 70601
(337) 477-4725
Counsel for Defendant/Appellee:
Geneva Danine Courville

David Frank Dwight
Dwight Law Firm
1400 Ryan St.
Lake Charles, LA 70601
(337) 439-3138
Counsel for Defendant/Appellee:
Kenneth B. & Elizabeth K. Martin

A. J. Gray III
The Gray Law Firm
P. O. Box 1467
Lake Charles, LA 70602-1467
(337) 494-0694
Counsel for Defendant/Appellee:
Stream Family Ltd. Partnership

Carl H. Hanchey
Lundy & Davis, LLP
P. O. Box 3010
Lake Charles, LA 70602
(337) 439-0707
Counsel for Defendants/Appellees:
Wells Talbot Watson
Kerry Ribbeck
Edward A. Ribbeck
Nathan H. Bray, Jr.
Carol J. Bray
Christopher Baggett
Baggett Investors, LLC

Catherine Louise Stagg
Southwest Louisiana Legal Services Society
1011 Lakeshore Drive
Lake Charles, LA 70601
(337) 436-3308
Counsel for Defendant/Appellee:
Succession of Gibson Leboeuf

James L. Trinchard
Hoy Robert Hughes
Trinchard & Trinchard
858 Camp St.
New Orleans, LA 70130
(504) 523-1986
Counsel for Defendants/Appellees:
Bridgeline Gas Distribution, LLC
Concha Chemical Pipeline, LLC
Texaco Petroleum Pipeline, LLC

Kenneth Michael Wright
Attorney at Law
203 West Clarence St.
Lake Charles, LA 70601
(337) 439-6930
Counsel for Plaintiffs/Appellants:
Kevin Michael May
Patricia Kay May

John Ernest Brown
Attorney at Law
P. O. Box 1359
Lake Charles, LA 70602
(337) 433-2361
Counsel for Defendant/Appellee:
Intervivos Trust of Cassie A. Smith

David Bruce Jones
Attorney at Law
700 First Ave.
Sulphur, LA 70663
(337) 528-3314
Counsel for Defendant/Appellee:
Ivan Leboeuf Estate

William Mitchell Redd
Liles & Redd
P.O. Box 3717
Lake Charles, LA 70602-3717
(337) 433-8529
Counsel for Defendant/Appellee:
Thomas H. Miller

Thomas John Gayle
Attorney at Law
P. O. Box 1890
Lake Charles, LA 70602-1890
(337) 494-7171
Counsel for Defendant/Appellee:
Anthony Leonards

James Lawrence Bullen
Strain, Dennis, Mayhall, & Bate
P. O. Box 53319
Lafayette, LA 70505-3319
(337) 237-5900
Counsel for Defendants/Appellees:
Enterprise Lou-Tex NGL Pipeline L.P.
Enterprise Lou Tex Propylene Pipeline, L.P.

Penelope Quinn Richard
Attorney At Law
132 Smith Circle
Cameron, LA 70631
(337) 905-8135
Counsel for Defendant/Appellee:
John Edward Portie

Ike Amos Hobaugh
Wright & Moreno
203 W. Clarence St.
Lake Charles, LA 70601-9431
(337) 439-6930
Counsel for Plaintiffs/Appellants:
Patricia Kay May
Kevin Michael May

Mack A. Hollis
Attorney at Law
3112 Enterprise Blvd.
Lake Charles, LA 70601
(337) 474-6106
Counsel for Defendants/Appellees:
Ivan Leboeuf Estate
Robert Lynn Sonnier, II
Stream Family Ltd. Partnership
Enterprise Lou-Tex NGL Pipeline L.P
Geneva Danine Courville
Carol J. Bray
Edward A. Ribbeck
Thomas H. Miller
Intervivos Trust of Cassie A. Smith
Bridgeline Gas Distribution, LLC
Christopher Baggett
Baggett Investors, LLC
Kerry Ribbeck
Anthony Leonards
Nathan H. Bray, Jr.
Owen John & Dolores K. Morrissey
Succession of Gibson Leboeuf
Dwight Raymond Lemoine
Concha Chemical Pipeline, LLC
John M. Pelafigue
Colonial Pipeline Company
Kenneth Bryant Martin
Kenneth B. & Elizabeth Martin
Enterprise Lou Tex Propylene Pipeline, LP
John Edward Portie
Wells Talbot Watson
Texaco Petroleum Pipeline, LLC
Stephen James Flood
Entergy Services, Inc.
Scott Brandon Brame

Robert Lynn Sonnier, II
In Proper Person
5507 Big Lake Road
Lake Charles, LA 70605

Dwight Raymond Lemoine
In Proper Person
5024 Fernwood Drive
Lake Charles, LA 70605

John M. Pelafigue
In Proper Person
5286 Big Lake Road
Lake Charles, LA 70605

Kenneth Bryant Martin
In Proper Person
102 Windsor Drive
Lake Charles, LA 70605

Stephen James Flood
In Proper Person
5032 Fernwood
Lake Charles, LA 70605

Scott Brandon Brame
In Proper Person
3709 A. Miller Road
Lake Charles, LA 70605
(337) 474-5498

SAUNDERS, Judge.

This litigation arises from a property owner petitioning the court for a right of

passage to its enclosed estate. Motions for summary judgments were granted

removing several defendant landowners from the suit based on a finding that their

land would not be subject to the eventual choice of route the court would make.

After a two day trial and post trial memoranda were filed on the issues, the trial

court ruled in favor of the plaintiffs by granting a twenty foot right of passage along

a route it found least injurious to the servient estate. The trial court also awarded

taking damages of twenty-five thousand dollars and severance damages of twenty-

five thousand dollars to the servient estate landowner.

Plaintiffs appealed the judgment of the trial court. We affirm in part and reverse

in part.

FACTS AND PROCEDURAL HISTORY

On January 25, 2000, Kevin M. May and Patricia K. May purchased a 65.57

acre tract of land (“May property”) from Amoco Production Company (“Amoco”) for

four hundred thousand dollars. The property is an enclosed estate as it has no access

to a public road. The tract is located within the city limits in south Lake Charles,

Louisiana and is contiguous with the Stream Family Limited Partnership (“Stream”)

residential and golf course development, “Graywood.”

The southern portion of the May property consists of approximately twenty-

seven acres of high land. The northern portion of the May property consists of

approximately thirty-eight acres below sea-level that is generally called Kara Bay.

Various pipelines span east and west between the May property and Stream’s

Graywood property. The Mays plan to build a house and a barn on their land and, in

the future, to build homes for their children.

Prior to the Mays’ purchase from Amoco, the May property was part of a

larger, eighty-two acre tract. In 1995, Amoco sold a 16.5 acre tract situated north of

Kara Bay that had access to Lisle Peter Road, a public road. This sale created an

enclosed estate as the remaining tract had no access to a public road.

About one year after their purchase, on or about February 13, 2001, the Mays

filed a Petition for a Right of Passage based upon Louisiana Civil Code Article 689

et. seq., naming as defendants, landowners of intervening lands lying east of the May

property towards Big Lake Road. The Mays originally sought a twenty foot right of

passage from the south east corner of their property traversing from west to east,

crossing several defendant landowners’ properties, to the end of an existing Stream

private road that connects to Big Lake Road. The Stream private road is used by

defendant, Thomas Miller, in accordance with a terminable personal servitude.

On several different occasions the trial court considered various exceptions,

motions, allegations, testimony and exhibits in court including a Peremptory

Exception filed by Stream of No Right of Action and No Cause of Action.

Through the disposal of these various exceptions, etc., property owners to the

north of the May property were dismissed even though the closest route to a public

road was in the northern direction to Lisle Peters Road. Through summary judgment,

the trial court dismissed these defendants because this route was not acceptable as a

body of water, Kara Bay, was between the May property and Lisle Peters Road. The

trial court then looked to the east or south to find the location of the right of passage

to grant to the Mays.

The trial occurred on January 20th through 21st, 2005. Sixteen witnesses

testified. After the trial, the trial court gave the parties time to submit post-trial

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memoranda on findings of fact and law. After the parties extensively briefed the

issues, the trial court took the matter under advisement.

Written reasons for judgment were given on December 27, 2005. The trial court

decided that since the Graywood Traffic Circle or cul-de-sac was the closest public

road to the May property that didn’t require traversing Kara Bay, Stream must bear

the entirety of the servitude. After it was determined that the Stream property was to

be the servient estate, the trial court considered several routes and performed a

balancing test to help determine the route least injurious to the servient estate.

The Mays proposed four routes to the south. Stream proposed that, if a right of

passage was to be granted, then the least injurious route would be an east/west route

along the northern border of its estate so as not to hinder its future plans for the

development of the property.

The trial court granted the Mays a twenty foot right of passage that took an

east/west route along the northern border of the Stream property to Big Lake Road.

The trial court opined that the route was the least injurious to the servient estate. The

trial court also found that the Mays owed Stream a total of fifty thousand dollars. The

Trial court also found that the mays owed Stream a total of fifty thousand dollars,

twenty-five thousand dollars for the right of passage property taken and twenty-five

thousand dollars for severance damages.

The Mays appealed this judgment alleging that the trial court erred in three

ways: (1) by selecting a route for the their right of passage that necessitated the

building of a bridge, (2) by finding that Stream was entitled to twenty-five thousand

dollars for right of passage property taken and twenty-five thousand dollars for

3

severance damages from the Mays, and (3) by granting the Mays a twenty foot wide

right of passage rather than a thirty foot wide right of passage.

Stream raised the issue on appeal that their Peremptory Exception of No Right

of Action and No Cause of Action should have been granted pursuant to Louisiana

Civil Code Article 693 because Amoco had created the enclosed estate though its

own accord and the Mays were its successors, and as such, their neighbor, Stream,

were not bound to furnish a right of passage to them. The Appellee advised the court

at oral arguments they had abandoned that argument. Accordingly, this court will not

address this issue.

We affirm in part and reverse in part.

ASSIGNMENTS OF ERROR:

1. Was the trial court manifestly erroneous or clearly wrong in granting the Mays
a right of passage by selecting a route that necessitated the building of bridge?

2. Was the trial court manifestly erroneous or clearly wrong in finding that
Stream was entitled to fifty thousand dollars from the Mays for the right of
passage property taken and severance damages?

3. Was the trial court manifestly erroneous or clearly wrong in granting the Mays
a twenty foot wide right of passage rather than a thirty foot wide right of
passage?

ASSIGNMENT OF ERROR #1:

Plaintiff/Appellant contends that the trial court erred in granting the Mays a

right of passage by selecting a route that necessitated the building of bridge. We

disagree.

The standard of review for a finding of fact such as this is that of manifest

error. A trial judge’s findings of fact will not be disturbed unless he/she is manifestly

erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617

So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury

4

or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty

Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings

are reasonable in light of the record reviewed in its entirety, the court of appeal may

not reverse, even though convinced that had it been sitting as the trier of fact, it would

have weighed the evidence differently.” Id. at 1112.

The applicable codal articles are as follows:

Louisiana Civil Code Article 689

The 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. He is bound to
indemnify his neighbor for the damage he may occasion.

Louisiana Civil Code Article 690

The 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.

Louisiana Civil Code Article 692

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.

Louisiana Civil Code Article 693

If an estate becomes enclosed as a result of a voluntary act or omission
of its owner, the neighbors are not bound to furnish a passage to him or his
successors.

Louisiana Civil Code Article 694

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

Louisiana Civil Code Article 695

The owner of the enclosed estate has no right to the relocation of this
servitude after it is fixed. The owner of the servient estate has the right to demand

5

relocation of the servitude to a more convenient place at his own expense, provided
that it affords the same facility to the owner of the enclosed estate.

“The term “generally” in La.Civ.Code art. 692 is an acknowledgment that there

are exceptions to the general rule, and it recognizes that the nature and location of the

right of passage are governed by the circumstances of each case.” Pearson v. Theriot,

534 So.2d 35, 36 (La. App. 3 Cir. 1988), citing Anderton v. Akin, 493 So.2d 795 (La.

App. 2 Cir.), writ denied, 497 So.2d 1014 (La.1986).

The trial court in the instant matter looked to Davis v. Culpepper, 34,736, pp/

7-9 (La.App. 2 Cir. 7/11/01), 794 So.2d 68, 73-74, writ denied, 01-2573 (La.

12/14/01), 804 So.2d 646 in discussing the application of these articles:

[A]s noted by the supreme court in Rockholt v. Keaty, 256 La.
629, 237 So.2d 663 (1970), the owner of an enclosed estate does not
have discretion to choose which estate should be burdened with a legal
right of passage. A two-step analysis is required by article 692, former
article 700. First to be determined is which estate owes the servitude of
passage. Vermilion Parish School Board v. Broussard, 263 La. 1104,
270 So.2d 523 (1972); Rockholt, supra; Robertson v. Reese, 376 So.2d
1287 (La. App. 2d Cir. 1979), citing A.N. Yiannopoulas, Enclosed
Estates: Louisiana and Comparative Law, 23 Loy. L.Rev. 343, 367
(1977). Only then should the courts engage in a balancing test to
determine where on the servient estate the passage should be located.
Mitcham v. Birdsong, 573 So.2d 1294 (La. App. 2d Cir. 1991);
Robertson, supra; C. Sherburne Sentell, III, Comment, Fixing the Right
of Passage from an Enclosed Estate: Deciding Where to Break Out
Using Louisiana Civil Code Article 692, 54 La. L.Rev. 1659, 1670
(1994).

The general rule of La. C.C. art. 692 is that the estate providing
the shortest route to the nearest public road must provide the right of
passage. Robertson, supra; Mitcham, supra; Morgan v. Culpepper, 324
So.2d 598 (La. App. 2d Cir. 1975), writs denied, 326 So.2d 377, 378
(La.1976). As recognized by the legislature in its use of the word
“generally” in the article 692, there are situations that allow the
servitude of passage to be imposed on an estate that does not provide the
shortest route. Rockhold, supra; Morgan, supra; Rieger v. Norwood, 401
So.2d 1272 (La. App. 1st Cir. 1981). In the absence of exceptional
circumstances, it is only the estate that provides the shortest access to
the nearest public road that will be burdened with the servitude.
Vermilion Parish School Board, supra; Morgan, supra.

6

The first exception recognized by the jurisprudence is when the
estate which provides the shortest route is covered by water or is
otherwise not accessable year-round. See Morgan, supra; Mitcham,
supra; Morris v. Nesbitt, 9 So.2d 75 (La. App. 2d Cir. 1942); Tessier v.
Medical Center of Baton Rouge, Inc., 93-0075 (La. App. 1st Cir.
03/11/94), 636 So.2d 928; Bouser v. Morgan, 520 So.2d 937 (La. App.
3d Cir. 1987). 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. See Mercer v. Daws, 186 So. 877
(La. App. 2d Cir. 1939) Pearson v. Theriot, 534 So.2d 35 (La. App. 3d
Cir. 1988).

As set forth above, courts should first determine which estate
owes the servitude. Roberson, supra; Sentell, supra at 1682. The shortest
straight line distance to the nearest public road determines which estate
owes the servitude. Id. The party arguing that the servitude should
instead be imposed on another estate bears the burden of establishing
that one or the two exceptions is applicable. See, e.g., Anderton v. Akin,
493 So.2d 795 (La. App. 2d Cir 1986), writ denied, 497 So.2d 1014
(La.1986).

The shortest distance from the May property to a public road was a route due

north from the May property to Lisle Peters Road. The court surmised that this route

would involve a water crossing and the construction of a bridge of considerable

length. Because the route was covered by water and the costs associated with it would

be so exceptional that from a practical standpoint, the crossing would be

economically unfeasible to build, the trial court found this route unacceptable.

The trial court then determined that the southern route from the May property

traversing the Stream property to Big Lake Road was the shortest feasible route. This

led the trial court to determine that the Stream property would bear the entirety of the

servitude.

Once the trial court determined that the Stream property owed the entire burden

to the dominant May property, the trial court found that a route due south would be

the most injurious to the Stream property. This finding was based on the testimony

7

of Gene Dark, general contractor for Stream. Mr. Dark testified that a directly

southern route would be the most injurious to the Stream property by crossing future

fairways and residential lots. The trial court was satisfied that Stream intended to

develop the northern portion of its property into restricted subdivisions and a golf

course much like it had done with the southern portion of their property.

In light of this and other factors, the trial court granted a right of passage to the

Mays that Mr. Dark testified and the court felt was the least injurious to the Stream

property. The route granted by the trial court traversed the northen portion of the

Stream Property and connected the May Property to Big Lake Road. The Mays argue

that the trial court erred in choosing this route as it required the building of an

expensive bridge. We do not agree.

The Appellants point out that the Davis case cited by the trial court found that

the building of a bridge is an exception to La.Civ.Code art. 692's call to grant the

most direct route to a public road when granting a right of passage to an enclosed

estate. While the building of a bridge has been held to be an exception recognized

under Article 692's call for usage of the shortest route, it has not been held that if a

bridge is necessary to use a certain route, then the route must be rejected. The trial

court actually recognized this exception as it rejected the directly shortest route over

Kara Bay because it would necessitate the building of long, expensive bridge.

Here, the route chosen by the trial court necessitates the building of a bridge,

but the actual costs associated with building this bridge is the subject of contention.

Appellants rely on the testimony of Charles Ladner, an expert in the field of civil

engineering. Mr. Ladner testified that the costs associated with building a bridge

along the route the court chose would be one hundred, sixty thousand dollars, plus or

8

minus twenty-five percent. The trial court also heard the testimony of Mr. Tad Martin,

an adjacent landowner. Mr. Martin had a bridge installed spanning the same drainage

canal as the new May bridge would span, and it cost him eighty-three thousand

dollars just a few years before. Therefore, the trial court was presented with evidence

that supported finding a range of eighty-three thousand to two hundred thousand

dollars for the cost of the Mays to build this bridge.

Appellants assert that this cost is not economically feasible. They rely on the

case of Pearson, 534 So.2d 35. In Pearson, the court found that the cost associated

with building a bridge, twenty-five thousand dollars, was prohibitive. Our reading of

the case is that the Pearson court used this cost simply as one factor to reject the

shortest route from an enclosed estate to a public road. Further, the Pearson case is

distinguishable from the present case in the following ways: (1) the parties in Pearson

did not have necessary permits to cross the canal, and there was no guarantee that the

parties in Pearson could get permission to cross the canal from the appropriate

authority; (2) the canal in Pearson was used by boat traffic and would have to be

maintained so as not to prevent any boat traffic; (3) the route that would include a

bridge in Pearson was not the least injurious route to the intervening landowner; and

(4) the land values involved in Pearson were not comparable to those in the present

case.

While the costs associated with building the bridge in this case are

considerably higher than that in Pearson, it is also true that the value of the Mays

property, purchased with the knowledge of its enclosed status, was also considerable.

The Mays paid four hundred thousand dollars, or about fifteen thousand dollars per

acre for approximately twenty-seven acres of dry land for the building of their family

9

home. Moreover, it is also true that the Stream property is also very valuable

property.

The cost associated with building a bridge is one factor for the trial court to

consider. If the trial court would have chosen the route of the right of passage as per

the Appellants’ request, it would necessitate an adjustment of damages owed to

Stream. First, the property taking damages of twenty-five thousand dollars would

have to be raised to reflect the taking of nearly an acre more of land. At the value that

the trial court assigned to the land taken, it would be approximately an extra twelve

thousand dollars in takings damages. However, the land to be taken along the

appellants suggested route would more likely have a higher value than that given to

the land chosen by the court. The land to be taken on the route the trial court chose

is along the northern property line of the Stream property. The land to be taken on the

route the Appellants suggest would cross six proposed residential lots and two

fairways. Arguably, the value of the land to be taken along the route suggested by the

appellants would be closer to the forty-eight thousand dollars per acre as suggested

by Mr. Daniel Plauche, Stream’s expert on property valuation, than that of the ten

thousand dollars per acre as suggested by Mr. Leonard E. Pauley, Jr., the Mays’

expert on property valuation.

Second, the trial court would arguably have had to have made a substantial

award of severance damages to Stream.1 The report of Mr. Plauche states that the

Appellants’ requested route would cross six proposed residential lots and fairways.

With a subdivision development ratio of three lots per acre, and “raw” land value at

1
The trial court granted Stream twenty-five thousand dollars ($25,000.00) in severance
damages, however this court reverses the trial court finding and sets the severance damages to zero.
See discussion in Assignment of Error #2.

10

forty-eight thousand dollars per acre, severance damages “affect” the equivalent of

two acres or ninety-six thousand dollars in land. Further, the “affect” on rerouting the

golf course design so the affected fairways incorporate a twenty foot wide road

easement would also be considerable. Mr. Plauche estimated in his report that a value

of one hundred thousand dollars as minimum compensation to redesign a golf course

route with the least detrimental effect on fairways due to a twenty foot wide easement

that is 2,640 feet or more in length running through the golf course. Appellants’

expert, Mr. Leonard E. Pauley, Jr., asserts that there is no devaluing of Stream’s

property, regardless of the route chosen for the right of passage.

To compare the economic feasibility of the route chosen by the trial court to

that proposed by the appellants, we need to find an approximate cost for each route.

The cost of the route granted by the trial court includes bridge building costs and

takings damages. The cost of building a bridge has a range of eighty-three thousand

to two hundred thousand dollars. This cost, when added to the taking damages of

twenty-five thousand dollars, totals anywhere from one hundred and eight thousand

dollars to two hundred, twenty-five thousand dollars.

The cost associated with the route proposed by the appellants include higher

takings damages and severance damages. The takings damages along the appellants’

proposed route have a range of thirty-seven thousand dollars to seventy thousand

dollars. The severance damages awarded can range anywhere from zero dollars up to

one hundred and ninety-six thousand dollars. Therefore, the range of cost of the

proposed route of the appellants is thirty-seven thousand dollars to two hundred sixty-

six thousand dollars.

11

It is clear from a reading of the record that there is evidence to support the

argument that the cost associated with the route chosen in this case, inclusive of the

costs of building a bridge, are comparable to the costs associated with using the route

requested by the appellants, inclusive of the potential taking and severance damages.

Accordingly, we must conclude that the trial court did not commit manifest error in

determining that the cost of building this bridge is economically feasible. Further,

given that the cost of the two routes is comparable to the Mays, and the trial court

decided to follow the direction of La.Civ.Code art. 692 to locate the route along “the

location least injurious to the intervening lands,” we find that it was not unreasonable

for the trial court to choose the route it chose.

The trial court is given much discretion under the manifest error standard of

review. There is evidence in the record to support the trial court’s decision relating

to the route for the right of passage. We find no basis in Appellants’ assertion that the

trial court’s choice of route is manifestly erroneous or clearly wrong. Accordingly,

we affirm the trial court’s choice of the route for the right of passage granted to

Appellants.

ASSIGNMENT OF ERROR #2:

Louisiana Civil Code Article 689 states that if an enclosed estate claims a right

of passage, “[The owner] is bound to indemnify his neighbor for the damage he may

occasion.”

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. Hutchison v.

Jackson, 399 So. 2d 1238 (La. App. 3 Cir. 1981); Collins v. Reed, 316 So. 2d 134

(La. App. 3 Cir.), writ denied, 319 So.2d 444 (La. 1975).

12

Both Appellants and Appellee used experts to testify as to the value of the

Stream property on a per-acre basis. The expert for Stream, Mr. Daniel Plauche,

testified that the Stream land was worth forty-eight thousand dollars per acre, whereas

the expert for the Mays, Mr. Leonard Pauley, opined that the Stream land was worth

only ten thousand dollars per acre. According to a description ordered by the trial

court, the total acreage of Stream property taken for a twenty foot May right of

passage is about two acres.

The trial court awarded damages to Stream for the property taken in the amount

of twenty-five thousand dollars. Appellants argue that the trial court erred by

awarding excessive damages for use of the right of passage. We do not agree.

This award of twenty-five thousand dollars or twelve thousand, five hundred

dollars per acre is only slightly more than the ten thousand per acre value given by

Mr. Pauley and is substantially less than the forty-eight per acre value given by Mr.

Plauche.

Under the circumstances, the record supports the trial court’s finding that the

Mays owed Stream twenty-five thousand dollars for the taking of the property for the

right of passage and the trial court’s assessment should be upheld. Therefore, we

affirm the trial court’s finding that the Mays owe twenty-five thousand dollars for the

taking of the property for the right of passage.

“Severance damages are ordinarily calculated as the difference between the

market value of the remaining property immediately before and immediately after the

taking. The burden of proving alleged severance damages to the remainder of

property involved rests upon the owner who must establish such damages with legal

13

certainty by a preponderance of evidence.” State, through the Dep’t of Highways v.

Denham Springs Dev. Co. Inc., 307 So.2d 304, (La.1975) [Citations omitted].

Mr. Daniel Plauche, Stream’s expert appraiser, testified that if the route chosen

by the court were to be just south of the Colonial Pipeline traversing the northern

portion of the Stream property, which is the route the court eventually did choose, his

conclusion would be that there would be no severance damages in that taking.

Consistent with this testimony, Mr. Plauche offered no evidence to justify an award

of severance damages.

Given the above noted lack of evidence of severance damages, we find that the

trial court’s assessment of twenty-five thousand dollars for severance damages was

clearly wrong. The record is devoid of any evidence that the Stream property was any

less valuable after the granting of the right of passage than before. Stream failed to

meet its burden of proof and establish that it was due any severance damages. As

such, we reverse the trial court’s ruling related to the assessment of severance

damages.

ASSIGNMENT OF ERROR #3:

Louisiana Civil Code Article 690 states, “The right of passage for the benefit

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

use of that estate.” “The scope of the right of passage granted over neighboring lands

is determined by the actual needs of the enclosed estate.” Davis, 794 So.2d at 71-72.

As before, the standard of review for a finding of fact such as this is that of

manifest error. Appellants assert that the trial court erred by giving a twenty foot right

of passage instead of a thirty foot right of passage which is what is required for the

use of the land. We do not agree.

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Appellants rely heavily on the testimony of Charles Ladner. Mr. Ladner

testified that he concluded a thirty foot wide right of passage was necessary for the

Appellants to use their property. Mr. Ladner reached his conclusion based on sixteen

foot traveling surface. Mr. Ladner stated that sixteen feet was the minimum traveling

surface width needed for two cars to pass simultaneously.

However, on cross examination, Mr. Ladner admitted that two vehicles could

pass one another, albeit with difficulty, on the Stream road. The Stream road has a

traveling surface that is only ten feet in width. Moreover, on appeal, the Appellants

are requesting a route that uses the Stream road.

The court finds La. R.S. 48: 495 to be helpful in deciding this issue. Louisiana

Revised Statute 48: 495 requires that parish and local roads must be twenty-five feet

in width. Parish and local roads carry far more traffic than a single driveway and

suggests that a twenty foot width would not be unreasonable. Moreover, in the

Pearson case cited in Assignment of Error #1, we held that a width of twenty feet was

sufficient for a family dwelling.

Therefore, we find that there is evidence in the record that a twenty foot right

of passage is sufficient for the reasonably intended use of the estate. As such, in that

regard, this court finds that the trial court’s decision to set the width of the right of

passage at twenty feet was not manifestly erroneous or clearly wrong. Accordingly,

we affirm the ruling of the trial court.

CONCLUSION

The judgment of the trial court is affirmed in part, and reversed in part. Costs

of this appeal are assessed equally against the parties.

AFFIRMED IN PART, REVERSED IN PART.

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