Mandy Louise Lacroix Perdue v. Danny Doyle Cruse

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1446

MANDY LOUISE LACROIX PERDUE, ET AL.

VERSUS

DANNY DOYLE CRUSE, ET AL.

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 35,573
HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Shannon J.
Gremillion, Judges.

Genovese, J., concurs in the result.

AFFIRMED IN PART, REVERSED IN PART

Ricky L. Sooter
Provosty, Sadler, Delaunay, Fiorenza & Sobel
P. O. Box 1791
Alexandria, LA 71309-1791
(318) 445-3631
Counsel for Plaintiffs/Appellants:
Mandy Louise LaCroix Perdue
Mary Elizabeth LaCroix Parsons
Leven E. LaCroix
Judy Mae LaCroix Craigo

James Eugene Mixon
Attorney at Law
P. O. Drawer 1619
Columbia, LA 71418
(318) 649-9284
Counsel for Defendants/Appellees:
Danny Doyle Cruse
Kathy Ann Meeks Cruse
Christopher Cruse
Joy Cruse

GREMILLION, Judge.

This appeal tests the extent of the right of passage granted the owner of an

enclosed estate under La.Civ.Code art. 689, et seq. Appellants, Mandy Louise

LaCroix Perdue, Mary Elizabeth LaCroix Parsons, Leven L. LaCroix, and Judy Mae

LaCroix Craigo (the LaCroix Heirs), are appealing the trial court’s grant of a right of

passage that includes the right of appellees, Danny Doyle Cruse, Kathy Ann Meeks

Cruse, Christopher Cruse, and Joy Cruse, to install telephone and electrical service

lines over their property, and its order allowing appellees to maintain an existing

water service line that crosses their property and the quantum of damages awarded.

For the reasons that follow, we affirm in part and reverse in part.

FACTS

The LaCroix Heirs own the Northwest Quarter of the Southwest Quarter of

Section 15, T8N, R2E, in LaSalle Parish, less and except property conveyed by

Whitney LaCroix to Whitney Green, Charles Mills, and Elton Brian Mills. The

property conveyed to Elton Brian Mills in January 1968 is approximately one acre

completely enclosed by the land owned by the LaCroix Heirs. That land is situated

approximately 110 feet from North June Road. There exists a passageway that was

fixed by LaCroix and Mills and that is still clearly identifiable. In 1974, Dixie Shell

Homes of America, Inc., caused the property to be seized and sold to satisfy a

mortgage in its favor granted by Mills. Dixie Shell conveyed the property to Herman

Glen and Arleen Masters McCartney in 1975. They, in turn, sold the land to Gary L.

and Gwen Jackson McCartney a little over a month later. Before McCartney

constructed the home he built on the property, he and LaCroix met and LaCroix

designated the route McCartney could take across LaCroix’s property and across

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which he could place electrical, telephone, and water utilities. LaCroix himself

cleared McCartney’s route across the property. All three lines and the passage

followed the same route. This route is the same now followed by electrical and

telephone service lines. The present water line follows a different route outside the

route cleared by LaCroix.

The property was seized from the McCartneys in 1986 to satisfy a judgment

against them in favor of Jim Walter Homes, Inc., which then sold it in 1989 to John

N. and Bonnie J. Powe. The Powes sold the land to Danny and Kathy Ann Cruse in

2002. The LaCroix Heirs inherited the surrounding estate from their father, Whitney

LaCroix, who died in 1985.

Utilities have been present at times through the LaCroix Heirs’ property to the

Cruse’s property. The LaCroix Heirs filed suit in March 2007 alleging that since

acquiring the property, the Cruses have trespassed on their property by installing

water, electrical, and sewer discharge lines, traveling across their property, and

cutting trees. The LaCroix Heirs sought injunctive relief and damages.

On December 6, 2007, the trial court issued a preliminary injunction against

the Cruses, preventing them from entering on, under, or above the Lacroix Heirs’

land; from placing any movable property on, under, or above the land; and from

discharging or disposing of sewer effluent on, under, or above the land. The

injunction specifically allowed the Cruses to maintain the water and electrical lines.

The Cruses were also allowed to continue to access their property across a .66 acre

tract of the LaCroix Heirs’ land as demonstrated on a survey introduced into

evidence.

In June 2008, agents of CenturyTel installed, at Joy Cruse’s request, an

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underground telephone line across the LaCroix Heirs’ property to the enclosed estate.

The LaCroix Heirs filed a rule for contempt against the Cruses for violating the

preliminary injunction. That rule was heard on August 11, 2008. The Cruses were

held in contempt, but were allowed the opportunity to purge the contempt by having

the phone line removed.

Trial was held on January 14, 2009. The trial court found, in its written reasons

for judgment, that the Cruses were trespassing in utilizing the existing passage, as it

had never been fixed by act or judgment. They were, though, entitled to a forced

passage under the terms of La.Civ.Code art. 689 through the existing passage. The

trial court also found that the Cruses, with the exception of Kathy Ann Meeks Cruse,

had trespassed in the installation of the utility lines through the passage, for which the

LaCroix Heirs were awarded $750.00. They received an award of $1,250.00 for the

installation outside the passage of the water line. No damages were assessed for the

installation of the sewer line, as this was a treatment plant wholly located within the

bounds of the one-acre tract, and no evidence established that any run-off had been

discharged onto the LaCroix Heirs’ property.

ASSIGNMENTS OF ERROR

The LaCroix Heirs assign the following errors:

1. The trial court erred by granting a Utilities Servitude for
electricity, water line and phone lines under La.Civ.Code art. 689.

2. Even if La.Civ.Code art. 689 also provides for a servitude for
utilities in a right of passage, the trial court erred by allowing the
Appellees to maintain a separate utilities servitude only for the
water line that is not located within the servitude of passage.

3. The trial court failed to award the proper amount of damages for
two legal servitudes in light of the trespass and the fact that the
Appellees never complied with the courts [sic] orders. Also, the
trial court erred when it treated the trespass of the waterline as

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more egregious than the trespass of the other utilities when
determining the amount of damages.

ANALYSIS

The right of passage is a legal servitude established by law for the benefit of

owners of enclosed estates. The owner of an enclosed estate, i.e., 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 must indemnify his neighbor for the damage this

causes. La.Civ.Code art. 689. The right of passage must be suitable for the kind of

traffic reasonably necessary for the use of the estate. La.Civ.Code art. 690. The

owner of the enclosed estate may construct on the right of way the type of road or

railroad necessary to exercise the servitude. La.Civ.Code art. 691. The servitude is

not available to those who voluntarily enclose their estates. La.Civ.Code art. 693.

However, when the enclosure results from a partition or voluntary alienation that

encloses an estate, the owner is entitled to gratuitous passage by the owner of the land

on which the passage was previously exercised, even if that is not the shortest route

to the public road and even if a servitude of passage is not mentioned in the act of

alienation or partition. La.Civ.Code art. 694. Once the servitude is located, the

owner of the enclosed estate has no right to demand its relocation. The owner of the

servient estate may, however, demand relocation to a more convenient location at his

own expense, provided the new location affords the same facility to the owner of the

enclosed estate. La.Civ.Code art. 695.

The trial court fixed the passage at the location provided by Whitney LaCroix

to McCartney. The evidence demonstrates that this route was not the shortest across

the LaCroix Heirs’ property to the public road. However, La.Civ.Code art. 692

provides that the route “generally shall be taken along the shortest route from the

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enclosed estate to the public road at the location least injurious to the intervening

lands.” While the shortest route is the preferred route, the article qualifies that it be

the route least injurious to the intervening lands. The pre-existence of the route

cleared by LaCroix for McCartney renders this area the least injurious route. The trial

court fixed the location by reference to the survey that was introduced at trial. That

portion of the trial court’s judgment is affirmed.

Article 690 currently provides that the passage must be suitable “for the kind

of traffic that is reasonably necessary for the use of that [enclosed] estate.” The

article was amended by 1977 La. Acts No. 514. Between 1825 and 1977, the article,

originally designated as La.Civ.Code art. 702, read:

A passage must be furnished to the owner of the land surrounded
by other lands, not only for himself, his slaves and workmen, but for his
animals, carts, instruments of agriculture, and every thing which may be
necessary for the use and working of his land.

In 1870, the article was changed to reflect the abolition of slavery by deleting the

reference to slaves.1 All three articles have in common the notion that the right of

passage confers the right to transport people and goods across the servient estate. To

facilitate that movement, La.Civ.Code art. 691 provides, “The owner of the enclosed

estate may construct on the right of way the type of road or railroad necessary for the

exercise of the servitude.” While one may well question the wisdom in allowing the

enclosed estate owners’ right to construct a railroad across the property yet not

allowing them to place utility lines, such considerations are reserved to the

legislature. La.Civ.Code arts. 1 and 2. We are tasked with interpreting laws, and are

bound by conventions of statutory interpretation.

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A passage must be furnished to the owner of the land surrounded by other lands, not only
for himself and workmen, but for his animals, carts instruments of agriculture, and every thing which
may be necessary for the use and working of his land.

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The foremost of the rules of statutory construction is found in La.Civ.Code art.

9:

When a law is clear and unambiguous and its application does not
lead to absurd consequences, the law shall be applied as written and no
further interpretation may be made in search of the intent of the
legislature.

One could conclude that, given the anachronism of a statute that only accounts for the

physical movement across the servient estate in the modern age in which running

water and electricity are taken for granted, and in which telephone lines are almost

obsolete, surely the promulgators of the Civil Code intended the right of passage to

encompass all the necessities for full utilization of the property. However, such intent

must be implied in the statutes themselves.

We, therefore, must look to the Civil Code for further guidance in reaching this

conclusion. Terms of art or technical terms must be given their technical meaning

when the law involves a technical matter; in all other cases, words must be given their

generally prevailing meaning. La.Civ.Code art. 11. These are not technical statutes.

We will therefore examine the language to determine whether the right of passage

allows for the installation of utilities. Article 689 provides for the right of passage

over neighboring property to the nearest public road. Can “road” be interpreted to

mean an access point for public utilities?

We think not. “In determining the common and approved usage of an

undefined word, ‘[d]ictionaries are a valuable source.’ Gregor v. Argenot Great

Central Ins. Co., 2002-1138, p. 7 (La.5/20/03), 851 So.2d 959, 964.” Hopkins v.

Howard, 05-732 , p. 9 (La.App. 4 Cir. 4/5/06), 930 So.2d 999, 1005, writ denied, 06-

1047 (La. 6/23/06), 930 So.2d 984. “Road” means “an open way for vehicles,

persons, and animals; esp. : one lying outside of an urban district.” Merriam-

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Webster’s Collegiate Dictionary, p. 1076 (11th Ed. 2003). The use of “road” implies

a means of physical transportation.

Another means of interpretation is to read statutes on the same subject in pari

materia. La.Civ.Code art. 13. Louisiana Civil Code Article 691, governing

constructions across the servient estate, references the owner of the enclosed estate’s

right to construct the type of road or railroad reasonably necessary for the exercise of

the servitude. Again, the legislature’s employment of words that imply means of

physical transport, “road” and “railroad,” instructs us that the right of passage is for

the physical transport of people, animals, and goods. We also note that 2004 La.Acts,

No. 813 enacted La.R.S. 9:1254 to grant owners of enclosed estates who have no

access to their estates by means other than by waterway a right of passage over

waterways to the nearest navigable waterway. La.R.S. 9:1253 created a right of

passage for public transportation and utilities on roads that become public under

La.R.S. 48:491(B).2 These statutes are instructive in two ways: (1) they inform us

that the legislature is primarily concerned with physical access, and (2) they

demonstrate that when the legislature becomes concerned with utility routes, it

possesses the facility to address that concern. The argument that the Civil Code

provisions should be interpreted in light of their historical purpose would carry far

more weight were it not for the fact that they were revised by the legislature in 1977.

See 1977 La.Acts, No. 514.

This issue has come before this court before. In Aucoin v. Fell, 00-1254

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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.

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(La.App. 3 Cir. 2/7/01), 779 So2d 1087, we held that there was no implied right to

a utility easement or right of way in the right of passage. “Civil Code articles 689 and

705 provide a means for the owner of an enclosed estate to access his property by foot

or vehicle. . . . We find no provision in the Civil Code which grants an enclosed estate

the right of a servitude of passage for utilities.” Id., at 1089. Also, this court, in

Salvex, Inc. v. Lewis, 546 So.2d 1309 (La.App. 3 Cir. 1989), held that the right of

passage afforded a mineral lessee did not extend to placing a pipeline within its legal

servitude of passage. In that case, the right of passage allowed the lessee the right to

pass over the servient estate with tanker trucks.

The trial court and the Cruses cite Rockholt v. Keaty, 256 La. 629, 237 So.2d

663 (1970), and Littlejohn v. Cox, 15 La.Ann. 67 (1860), for the proposition that the

right of passage is intended to facilitate the full utility of the enclosed estate, and we

agree with that proposition. However, we also note that both cases involved disputes

over the physical access to the enclosed estate. The intent of the legislature, as

derived from the statutory language, does not lead to the conclusion that the right of

passage affords the enclosed owner any sort of construction over the servient estate

he deems necessary for his intended use.

The trial court relied heavily on the fact that the property had long been used

as a residence. As this was what the owners of the servient estate deemed the best use

of their land, utility service was necessary for that use. If we could strain the right of

passage to encompass utility service, this would certainly apply to the placement of

the electrical and telephone lines. It would not apply to the placement of the water

service line, which is outside the passage.

We discern no authority in the Civil Code that allows the creation of a predial

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servitude such as that recognized by the trial court for the placement of the water

service line. Such a right is reserved by the Civil Code to those created by

convention or acquired by prescription. No such convention or use was demonstrated

at trial.

The LaCroix Heirs also complain of the quantum of damages for trespass

assessed by the trial court. They specifically contend that the trial court placed too

much emphasis on the damage to the land and not enough on the “continuous

inconvenience caused by the Appellees.” We disagree.

The trier of fact is vested with much discretion is assessing damages.

La.Civ.Code art. 2324.1. However, when legal error interdicts the fact-finding

process, the appellate court must conduct a de novo review of the record to determine

whether there is liability and, if so, the quantum of damages. Touchet v. Hampton,

08-833 (La.App. 3 Cir. 12/11/08), 1 So.3d 729, writ denied, 09-76 (La. 3/27/09), 5

So.3d 141. In the present matter, the trial court’s assessment of damages was not

interdicted by the legal error regarding the Cruses’ right to place the utility lines. The

assessment of damages was confined to the trespasses the trial court found and that

we affirm.

The record reflects that the installation of the electrical, telephone, and water

service lines did cause some damage to the LaCroix Heirs’ property. The emphasis

of the LaCroix Heirs’ testimony was on their sense of frustration at being denied any

input into the placement of the utilities. This arose in part because they insisted that

a survey be done before even discussing the issue of allowing utility lines, while the

Cruses languished in their home that they had to power with a portable generator.

The record as a whole supports the trial court’s assessment of damages, which we

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affirm. The LaCroix Heirs clearly have little to complain about utility lines extending

over the portion of their property already encumbered by the right of passage; the law

is in their favor, but the equities certainly are not.

The trial court included the indemnity owed by the enclosed estate to the

owners of the servient estate in the amount it assessed as damages for trespass.

La.Civ.Code art. 689. Given the testimony regarding the damage to the land by the

minimal clearing that the Cruses performed before moving the trailer onto the site,

we find no error in this assessment.

The utility lines still cross the LaCroix Heirs’ land. Those must be removed.

The trial court denied injunctive relief on the grounds that compensatory damages are

available to the LaCroix Heirs; theirs was thus not an irreparable injury for purposes

of qualifying for injunctive relief. We note, however, that La.Code Civ.P. art. 3663

specifically allows the issuance of a permanent injunction in favor of a person whose

possession of immovable property is disturbed. Trespass constitutes a disturbance

in possession and can be enjoined. Gaumnitz v. Williamson, 36,177 (La.App. 2 Cir.

8/14/02), 824 So.2d 531. Accordingly, the Cruses are ordered to remove the water

line within 90 days of the finality of this decision. They are additionally ordered to

arrange removal of the telephone and electrical lines within 90 days of the finality of

this opinion. The Cruses are permanently enjoined from placing any utility lines of

any nature across the LaCroix Heirs’ property, in the absence of a conventional

servitude allowing such placement.

CONCLUSION

The Cruses are entitled by law to a right of passage over the LaCroix Heirs’

land. The site fixed by the trial court for the passage is the least injurious to the

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LaCroix Heirs’ land. The fixing of that site as the passage is affirmed. The Cruses

did trespass on the LaCroix Heirs’ property. They are thus liable for damages to the

LaCroix Heirs in the amount fixed by the trial court. The Cruses are not afforded the

right to supply their property with utilities by virtue of the right of passage, which is

a right that strictly guarantees the owner of an enclosed estate physical movement

across the servient estate. The damages awarded by the trial court were not interdicted

by its legal error in finding the Cruses were entitled to place utilities within the

passage. The award of damages is affirmed. The issuance of a permanent injunction

is appropriate in cases of trespass under La.Code Civ.P. art. 3663, and such an

injunction is appropriate in the present matter. Costs of this appeal are divided

equally between Appellants, Mandy Louise LaCroix Perdue, Mary Elizabeth LaCroix

Parsons, Leven L. LaCroix, and Judy Mae LaCroix Craigo, and Appellees, Danny

Doyle Cruse, Christopher Cruse, and Joy Cruse.

AFFIRMED IN PART, REVERSED IN PART.

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