Troy Davis v. Willis Provost

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1519

TROY DAVIS AND CYNTHIA DAVIS

VERSUS

WILLIS PROVOST, LINDA PROVOST,
GERALD SONNIER, AND CRYSTAL SONNIER

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, DOCKET NO. 106638, DIVISION “E”
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and James T. Genovese,
Judges.

JUDGMENT VACATED AND REMANDED.

Edmond D. Jordan
Post Office Box 490
Brusly, Louisiana 70719
(225) 413-2467
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Troy Davis and Cynthia Davis

Elton Heron
37218 Audubon Park Avenue
Geismar, Louisiana 70734
(504) 723-8782
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Troy Davis and Cynthia Davis

Stan Gauthier, II
Kristi Husher Oubre
Jonathan D. Mayeux
1405 West Pinhook Road, Suite 105
Lafayette, Louisiana 70503
(337) 234-0099
COUNSEL FOR DEFENDANTS/APPELLEE:
Gerald Sonnier

GENOVESE, Judge.

Troy and Cynthia Davis (the Davises) appeal the judgment of the trial court

granting Gerald Sonnier (Mr. Sonnier) a right-of-way and passage over property

owned by the Davises. For the following reasons, we vacate the judgment of the trial

court and remand this matter to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On January 4, 2006, the Davises filed a Petition for Declaratory Judgment1

against Willis Provost, Linda Provost, Gerald Sonnier, and Crystal Sonnier,2 seeking

access to their property by crossing over a bridge that had been allegedly locked by

one or all of these individuals. On May 17, 2006, Mr. Sonnier filed an Answer and

Reconventional Demand against the Davises. In his reconventional demand, Mr.

Sonnier alleged that “[o]n or about March 13, 2006, the [Davises] barricaded the

sugarcane field owned and cultivated by [Mr. Sonnier].” Mr. Sonnier further asserted

that he had “exercised a right-of-way over the [Davises’ property] in order to gain

access to a sugarcane field cultivated and owned by him for over thirty (30) years.”

According to Mr. Sonnier, he was prohibited from using this right-of-way to access

his property and cultivate his sugarcane crop. As a result, Mr. Sonnier’s demand also

requested “damages reasonable under the circumstances for the loss of the

sugarcane.”

On June 8, 2006, the Davises filed a Peremptory Exception of No Cause of

Action against Mr. Sonnier. In their exception, the Davises argued that “[s]ince thirty

years have not passed from the January 1, 1978 effective date of Louisiana Civil Code

1
This matter was converted to an ordinary proceeding on February 17, 2006 pursuant to an
Exception of Improper Use of Summary Proceeding filed by the Defendants herein.
2
The Davises’ principal demand was eventually dismissed with prejudice on August 8, 2006.

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Articles 740 and 742, it is impossible for [Mr. Sonnier] to have acquired a

right-of-way across the [Davises’] property. [Mr. Sonnier] has failed to state a

justiciable cause of action.”

On July 18, 2006, Mr. Sonnier filed a First Amending and Supplemental

Reconventional Demand. In his amended reconventional demand, Mr. Sonnier

alleged that he has “a right of passage over the property to gain access to a sugarcane

field cultivated and owned by him because the sugarcane field is an enclosed estate3

and has no access to a public road other than through the property owned by [the

Davises].”

A trial in this matter was held on April 13, 2007, after which the trial court

ruled in favor of Mr. Sonnier. The trial court’s judgment,4 signed on June 5, 2007,

ordered, in pertinent part:

[T]hat there be Judgment in favor of Plaintiff-in-Reconvention, Gerald
Sonnier[,] and against Defendants-in-Reconvention, Troy Davis and
Cynthia Davis[,] declaring that Gerald Sonnier has a right-of-way over
property owned by Troy Davis and Cynthia Davis. This right-of-way is
shown on the map admitted into evidence in the above captioned matter
and marked as Plaintiffs’ Exhibit Number 2 and is a right-of-way over
a bridge located on Troy and Cynthia Davis’ property to gain access to
property owned by Plaintiff-in-Reconvention, Gerald Sonnier.

The trial court also awarded $3,093.00 to Mr. Sonnier “for cleanup of the property

and the sugarcane fields located on the property due to in access [sic] [,]” and

“$10,800.00 for loss of sugarcane and profit due to inaccess [sic] to the property

owned by Troy Davis and Cynthia Davis.” The judgment also declared that “the

3
Louisiana Civil Code Article 689 provides, “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.”
4
Because the parties did not request a court reporter for the April 13, 2007 trial, there is no
transcript of the trial in the appellate record. Therefore, our review is based on the exhibits
introduced at the trial, the trial court’s minutes, and the trial court’s judgment.

2

Motion for New Trial requested by Defendants-in-Reconvention, Troy Davis and

Cynthia Davis[,] in open Court[,] was thereby denied on April 13, 2007.” The

Davises appeal.

ISSUES

In their appeal, the Davises present two issues for our review:

1. Whether an apparent discontinuous servitude was susceptible to
ownership through acquisitive prescription under the Louisiana
Civil Code of 1870[,] and whether a servitude for right of passage
would be classified as an apparent discontinuous servitude under
the Louisiana Civil Code of 1870?

2. If an estate is found to be enclosed, to what extent may the owner
of the alleged enclosed estate demand a right of passage under
Louisiana Civil [C]ode Article 6925?

ASSIGNMENTS OF ERROR

In their appeal, the Davises raise four assignments of error:

1. In its ruling, the lower court failed to give due consideration to
the fact that a servitude for right of passage would be classified
as an apparent discontinuous servitude under the Louisiana Civil
Code of 1870.

2. In its ruling, the lower court failed to give due consideration to
the fact that an apparent discontinuous servitude was
insusceptible to ownership through acquisitive prescription under
the Louisiana Civil Code of 1870.

3. In its ruling, the lower court failed to give due consideration to
the fact that rights of acquisitive prescription, as to servitudes
formerly classified as apparent discontinuous servitudes under
the Louisiana Civil Code of 1870, did not begin to run prior to
January 1, 1978.

4. In its ruling, the lower court failed to give due consideration to
the fact that Appellees offered nothing into evidence tending to
establish that the Appellants’ property provided the closest access

5
Louisiana Civil Code Article 692 provides, “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.”

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to the nearest public road from Appellees[’] allegedly enclosed
estate.

LAW AND DISCUSSION

Standard of Review

The standard of review applied to predial servitudes was clarified by this court

in Griffith v. Cathey, 99-923, p. 6 (La.App. 3 Cir. 2/2/00), 762 So.2d 29, 34, writ

denied, 00-1875 (La. 10/6/00), 771 So.2d 85:

Predial servitudes are disfavored by the law and any doubts are resolved
against the creation of the servitude. The Louisiana Supreme Court
articulated this principle in Palomeque v. Prudhomme, 95-725, p. 7
(La.11/27/95); 664 So.2d 88, 93:

Predial servitudes are in derogation of public policy
because they form restraints on the free disposal and use of
property. Therefore, servitudes are not entitled to be
viewed with favor by the law and can never be sustained by
implication. Buras Ice Factory Inc. v. Dept. of Hwys. of
La., 235 La. 158, 103 So.2d 74, 80 (1958); Gravolet v. Bd.
of Commissioners, 598 So.2d 1231, 1234 (La.App. 4th
Cir.1992); see also, 1 DOMAT, THE CIVIL LAW IN ITS
NATURAL ORDER, tit. XII, sec. 1, at 435 (Strahan, trans.,
Cushing ed., 2d ed. 1861). Any doubt as to the existence,
extent or manner of exercise of a predial servitude must be
resolved in favor of the servient estate. La.Civ.Code art.
730; McGuffy v. Weil, 240 La. 758, 125 So.2d 154, 158
(1960).

Although doubts regarding the existence of predial servitudes are
to be decided against the servitude, it is left to the volition of the trial
court to ascertain whether the evidence and testimony are dubious.
Appellate courts give great deference to the trial court’s factual
determinations premised on witness credibility. Rosell v. ESCO, 549
So.2d 840 (La.1989). However, when a trial court makes an error of
law, an appellate court is required to render judgment on the record by
applying the correct law and determining the essential material facts de
novo. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993); Rosell, 549
So.2d 840.

Acquisitive Prescription

The Davises argue that the trial court’s judgment was manifestly erroneous

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because the pathway over which Mr. Sonnier has claimed to have acquired a right-of-

way was an apparent discontinuous servitude and, as such, it could be acquired by

acquisitive prescription. Specifically, the Davises argue, in brief, that:

[E]ven if Appellants were to concede, in arguendo, that Appellees
exercised use of the pathway for a period of thirty (30) years as of
March 13, 2006, Appellees would still fail to satisfy the requirements for
“bad faith” acquisitive prescription set forth under current Louisiana
Civil Code Article 742 by nearly two (2) years.

Alternatively, the Davises assert that because no evidence was adduced at trial on the

issues of whether Mr. Sonnier’s estate is an enclosed estate and, if so, whether the

path across the Davises’ property is the shortest route from Mr. Sonnier’s property

to a public road, this matter should be remanded to the trial court for a determination

of whether Mr. Sonnier is entitled to a servitude of passage.

Mr. Sonnier argues that the trial court correctly based its judgment on the

conclusion that the servitude was an apparent continuous servitude, not an apparent

discontinuous servitude. Mr. Sonnier, in brief, argues that “although Louisiana Civil

Code Articles 740 and 742 are not retroactive, the law prior to 1978 was that apparent

servitudes that were continuous in nature could be acquired through acquisitive

prescription of thirty (30) years.” He also asserts that “[w]hether the servitude was

apparent and continuous is a question of fact to be determined by the trial court and

thus this question of fact should not be overturned as it is not manifestly erroneous.”

Finally, Mr. Sonnier conceded, in brief, that the trial court did not consider the

issue of whether his estate is an enclosed estate and, if so, whether the path is the least

injurious as required by La.Civ.Code art. 692. Therefore, he, like the Davises,

requested that this matter be remanded for a determination of this issue in the event

that this court finds that the trial court’s judgment was manifestly erroneous.

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“A predial servitude is a charge on a servient estate for the benefit of the

dominant estate.” La.Civ.Code art. 646. “Predial servitudes are either apparent or

nonapparent.” La.Civ.Code art. 707. An apparent servitude is a servitude that is

perceived by exterior signs, while a nonapparent servitude has no exterior sign of

their existence. Id. Louisiana Civil Code Article 740 provides that “[a]pparent

servitudes may be acquired by title, by destination of the owner, or by acquisitive

prescription.”

The record does not contain evidence that Mr. Sonnier had just title to a

servitude. The Davises purchased the property at issue herein on March 8, 1994. The

deed translative of title did not indicate that a servitude that burdened the Davises’

property in favor of Mr. Sonnier’s estate.

“Destination of the owner is a relationship established between two estates

owned by the same owner that would be a predial servitude if the estates belonged to

different owners.” La.Civ.Code art. 741. An apparent servitude comes into existence

of right when the estates cease to belong to the same owner. Id. Since the Davises

never owned Mr. Sonnier’s property, there can be no servitude by destination of the

owner. Thus, with no evidence of an apparent servitude being acquired by title or by

destination of the owner, Mr. Sonnier’s only means of acquiring an apparent servitude

is by acquisitive prescription.

Our supreme court, in Nash v. Whitten, 326 So.2d 856, 860 (La.1976)(citations

omitted), stated, “Continuous servitudes are those whose use (by the dominant estate)

is, or may be, continual without the act of man. If man’s intervention is needed in

order for the dominant estate to exercise the servitude, the servitude must be

classified as discontinuous.” The right-of-way which Mr. Sonnier seeks is to access

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his sugarcane field by crossing over a bridge located on the Davises’ property. We

find that the right-of-way which Mr. Sonnier seeks is an apparent discontinuous

servitude.

Louisiana Civil Code Article 742 sets forth the guidelines for acquiring an

apparent servitude by acquisitive prescription:

The laws governing acquisitive prescription of immovable
property apply to apparent servitudes. An apparent servitude may be
acquired by peaceable and uninterrupted possession of the right for ten
years in good faith and by just title; it may also be acquired by
uninterrupted possession for thirty years without title or good faith.

In Griffith, 762 So.2d at 35 (footnote omitted), this court addressed the effects

of 1977 La. Acts No. 514, § 1, which amended the requirements for acquisitive

prescription of servitudes, as follows:

The comments to Articles 740 and 742 indicate that the articles
changed the law by allowing prescriptive acquisition of apparent
discontinuous servitudes; however, the provision is not retroactive.
Quasi-possession of a servitude that would be discontinuous under the
prior law does not give rise to prescriptive rights except from the
effective date of the new article, January 1, 1978. La.Civ.Code art. 740
(Comment (a)); Kizer v. Lilly, 471 So.2d 716 (La.1985).

A right-of-way over a paved roadway was an apparent
discontinuous servitude under the 1870 Civil Code. Kizer, 471 So.2d at
718. That [c]ode provided that discontinuous apparent servitudes could
not be acquired by acquisitive prescription. See Nash v. Whitten, 326
So.2d 856 (La.1976); Lake, Inc. v. Louisiana Power and Light Co., 330
So.2d 914 (La.1976); Schoenrich, Acquisition Of Rights Of Way By
Prescription, 12 Tul.L.Rev. 226 (1938). Since the amendment to Article
740 is not retroactive, prescriptive rights as to formerly discontinuous
servitudes, including servitudes of passage, commence from the
effective date of the revised Article, January 1, 1978. McCann v.
Normand, 97-103 (La.App. 3 Cir. 6/4/97); 696 So.2d 203.

We find that the trial court made an error of law in applying La.Civ.Code art.

740 to a claim of acquisitive prescription of a predial servitude commencing prior to

the effective date of the amendment. Applying the current La.Civ.Code art. 740 to

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the facts of this case, we find that Mr. Sonnier could not have acquired a right-of-way

over property owned by the Davises through acquisitive prescription since thirty

years had not elapsed from the effective date of the amendment, January 1, 1978, and

the filing of his reconventional demand on May 17, 2006.

Accordingly, we vacate the trial court’s judgment. This matter is remanded to

the trial court for consideration of the issue of whether Mr. Sonnier is entitled to a

right of passage afforded an enclosed estate pursuant to La.Civ.Code arts. 689-96,

and for any further proceedings necessary and proper in connection therewith.

DECREE

For the foregoing reasons, the judgment of the trial court is vacated, and the

matter is remanded for further proceedings. Defendant/Appellee, Mr. Gerald Sonnier,

is cast with costs of this appeal.

JUDGMENT VACATED AND REMANDED.

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