Norris Clement v. Brent J. Menard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-497

NORRIS CLEMENT, ET AL.

VERSUS

BRENT J. MENARD, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20173639
HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
John E. Conery, D. Kent Savoie, and Candyce G. Perret, Judges.

REVERSED; PERMANENT INJUNCTION IN FAVOR OF THE
MENARDS IS GRANTED; CASE REMANDED FOR FURTHER
PROCEEDINGS.

Pickett, J., dissents and assigns written reasons.
Conery, J., concurs and assigns written reasons.
Savoie, J., dissents and assigns written reasons.

G. Andrew Veazey
Bradford H. Felder
Dona K. Renegar
Veazey, Felder & Renegar
Post Office Box 80948
Lafayette, LA 70598-0948
(337) 234-5350
COUNSEL FOR DEFENDANTS/APPELLANTS:
Brent J. Menard
Jamille Menard

Jade Roland Andrus
Andrus and Andrus, LLC
1227 Camellia Boulevard
Lafayette, LA 70508
(337) 988-2100
COUNSEL FOR PLAINTIFFS/APPELLEES:
Norris Clement
Barbara Clement Richard,
Agent & Attorney in Fact for Norris Clement
Gregory Paul Dore

PERRET, Judge.

This appeal stems from competing claims for injunctive relief involving an

irrigation canal right-of-way. The trial court rendered judgment in favor of Norris

Clement, Barbara Richard, authorized agent for Norris Clement, and Gregory Paul

Dore (“the Clements”), and against Brent J. Menard and Jamille Menard (“the

Menards”).1 The trial court concluded that the Clements have the right to maintain,

operate, and repair the irrigation canal and permanently restrained, enjoined, and

prohibited the Menards from interfering with the Clements’ rights. The Menards

appeal the judgment and, on appeal, we reverse the trial court’s judgment, grant a

permanent injunction in favor of the Menards, and remand the case to the trial

court for further proceedings as may be necessary in conformity with this ruling.

FACTS AND PROCEDURAL HISTORY:

Most of the facts in this case do not appear to be in dispute. On September

20, 1952, Marcel Guidry, the Menards’ ancestor in title, granted to Willie Clement,

his heirs, and his assigns, a twenty-four-foot predial servitude/right-of-way for an

irrigation canal across his property. The Clements are the heirs and assigns of

Willie Clement, as evidenced by documents admitted into evidence. This

agreement (“the 1952 Agreement”) was recorded in the Lafayette Parish records

under Entry number 280984. In the 1952 Agreement, Mr. Guidry recognized that:

[T]here is an irrigation canal running along the Southern boundary of
his said land and lying next to the Public Road, which irrigation canal
leads from the irrigation plant which Sidney Constantin sold to Willie
Clement on September 19, 1952, . . . to the tract of land consisting of
approximately 120 acres, . . . which Sidney Constantin sold to Willie
Clement on September 19, 1952.

1
The Menards are the trustees of The Menard Family Revocable Living Trust, which has
naked ownership of the property on which the irrigation canal crosses.

The 1952 Agreement further states that Mr. Guidry grants Willie Clement the

right-of-way because Mr. Guidry had never granted the former owners of the

irrigation plant the right-of-way described. More specifically, the 1952 Agreement

states that Mr. Guidry:

[D]oes now grant, sell and deliver unto Willie Clement . . . his heirs
and assigns, a right-of-way 24 feet in width for the said irrigation
canal, said right-of-way to continue for as long a time as the said
irrigation well and pumping plant is operated by either the said Willie
Clement, his heirs or assigns.

The said Willie Clement binds and obligates himself, his heirs
and assigns, to take good and proper care of the canal levies and not
permit any water to escape or cause any damage to the growing crops
on land of Marcel Guidry, his heirs or assigns.

In 1997 the Clements installed a twelve-inch plastic pipe in the same

location as the open irrigation canal and filled the open canal.

On September 22, 1998, the Menards purchased the subject property

including that property on which the right-of-way was formerly granted. The Act

of Cash Sale of Property transfers the described property to the Menards “with full

and general warranty of title, and with full subrogation to all the rights of warranty

and all other rights as held herein by said Sellers, subject to any easements, rights-

of-way and restrictions of record.” The act of sale did not disclose the presence of

any underground pipeline on the Menard property.

Subsequently, the irrigation pipeline required repairs. After the Menards

allegedly prevented those repairs from occurring, the Clements filed a Petition for

Temporary Restraining Order, and Preliminary Injunction. The Clements asserted

ownership of an irrigation canal right-of-way on the Menards’ property which was,

and is still, used to irrigate rice crops and crawfish ponds. The petition further

alleged that Gregory Dore leases the Clement property for rice crops and that the

2

irrigation canal supplies the property with water. The Clements asserted they

attempted to repair a leak in the irrigation pipe but were prevented from doing so

by Brent Menard. Therefore, the Clements sought a temporary restraining order

preventing the Menards from interfering with the Clements’ maintenance of the

irrigation pipe.

On June 22, 2017, the trial court signed and granted the Clements’

temporary restraining order for ten days. The Menards sought to have the

temporary restraining order deemed expired, and a show cause hearing was set for

July 31, 2017. In opposition to the restraining order, the Menards alleged that the

irrigation canal was abandoned in 1997, when the open irrigation canal was

replaced with an underground irrigation system. The Menards further assert that a

survey done on July 31, 1997, does not indicate the presence of the pipeline on the

Menard property. The Menards allege that their act of sale does not acknowledge

the pipeline and the only attachment to the act of sale was the 1997 survey.

On July 31, 2017, the Menards filed an Answer, Reconventional Demand &

Third-Party Petition for Possession and for Damages alleging that the Clements

cannot meet the requirements for obtaining injunctive relief, that there is no

recorded instrument establishing the Clements’ right to operate an underground

pipeline on the Menard property, and that the Menards were entitled to rely upon

the absence of any instrument in the public records. Furthermore, the Menards

sought injunctive relief to protect their possession of their property and ensure the

removal of the irrigation pipeline, an order requiring the Clements to assert any

adverse claims of ownership in a petitory action, and damages from the disturbance

of their possession, negligence, nuisance, and wrongful issuance of a temporary

restraining order.

3

The Clements responded to the Menards’ reconventional demand with their

own demand for damages allegedly caused by the Menards’ excavation of the

irrigation pipeline area.

At the trial on the competing temporary restraining orders and permanent

injunctions, Gregory Dore, Barbara Richard, and Ronald Richard testified

regarding the use of the irrigation system before and after 1997, as well as the

impact on farming operations that occurred when the irrigation system was not

operational. The parties introduced exhibits including the 1952 Agreement and the

Menard act of sale documents. The trial court ruled in favor of the Clements,

documenting its factual findings in its Findings of Fact and Reasons for Judgment

in addition to the court’s Judgment Granting Final Injunction.

It is from this judgment that the Menards appeal, asserting three assignments

of error:

A. The trial court’s ruling ignores and undermines the public
records doctrine because it deprived the Menards of their right to rely
on the absence from the public records of an instrument granting title
for the Clement Interests to operate a non-apparent underground
predial servitude.

B. The trial court erroneously conflated the grant of title of an
apparent predial servitude for an irrigation canal as encompassing a
non-apparent predial servitude for an underground pipeline.

C. Alternatively, the 1952 Agreement is ambiguous as to
whether it grants title to operate a non-apparent predial servitude[,]
and the trial court failed to recognize that any ambiguities regarding
title must be resolved in favor of the Menards as owners of the
servient estate.

DISCUSSION:

“Predial servitudes are either apparent or nonapparent. Apparent servitudes

are those that are perceivable by exterior signs, works, or constructions . . . .

Nonapparent servitudes are those that have no exterior sign of their existence[.]”

4

La.Civ.Code art. 707. Apparent predial servitudes may be established in three

ways, including by title, but non-apparent servitudes may only be acquired by title.

La.Civ.Code arts. 739 and 740. Additionally, to be effective as to third parties, the

instrument establishing “a real right in or over an immovable” must be recorded.

La.Civ.Code art. 3338.

The 1952 Agreement, establishing the right-of-way, was recorded in the

Lafayette Parish conveyance records, and, therefore, the right established in that

instrument is effective against the Menards.2

When established by title, “[t]he use and extent of such servitudes are

regulated by the title by which they are created[.]” La.Civ.Code art. 697.

Therefore, the crux of the issue on appeal is whether the 1952 Agreement for an

“irrigation canal” right-of-way encompasses an underground irrigation pipeline,3

which is addressed in Appellants’ Assignment of Error Number Two.

“Whether a servitude has been used according to the title or possession, or

whether the condition of the servient estate has been aggravated, is a question of

fact.” A.N. YIANNOPOULOS, PREDIAL SERVITUDES §7:5 (4 Louisiana Civil

Law Treatise 2018). “Courts resolve this question according to the circumstances

by taking into account the situation of the estates, the agreement of the parties, the

needs of the dominant estate at the time of the creation of the servitude, and the
2
While the Menards argue in their first assignment of error that the right-of-way was not
in the 1997 survey or their act of sale document, that is of no moment in this case. “The
servitude need not appear in the act by which the present owner acquired the servient estate nor
in his chain of title.” A.N. YIANNOPOULOS, PREDIAL SERVITUDES §6:23 (4 Louisiana
Civil Law Treatise 2018) . “[R]eal obligations accompany the land in the hands of subsequent
vendees without any mention thereof in the acts of transfer.” Clark v. Reed, 122 So.2d 344, 349
(La.App 2 Cir. 1960). Additionally, the act of sale document specifically states it is “subject to
any easements, rights-of-way and restrictions of record.”
3
This case is resolved by addressing the Menards’ Assignment of Error Number Two:
whether, the trial court erroneously conflated the grant of title of an apparent predial servitude
for an irrigation canal as encompassing a non-apparent predial servitude for an underground
pipeline.

5

prejudice sustained by the owner of the servient estate.” Id. See also Sigue v.

Texas Gas Transmission Corp., 154 So.2d 800 (La.App. 3 Cir.), writ refused, 244

La. 1025 (La.1963), cert denied, 379 U.S. 922, 85 S.Ct. 277 (1964), in which this

court applied contract interpretation codal articles to determine that a contract

providing a right-of-way only provided for buried pipelines. Additionally,

“[d]oubt as to the existence, extent, or manner of exercise of a predial servitude

shall be resolved in favor of the servient estate.” La.Civ.Code art. 730.

[T]he intention of the parties to place a charge on one estate for the
benefit of another estate, and the extent of the charge, must be
expressed on the face of the title document and cannot be inferred or
implied from vague or ambiguous language. The title document must
also reasonably identify the dominant estate and the servient estate.

S. Amusement Co., Inc. v. Pat’s of Henderson Seafood & Steak, Inc., 03-767, p. 7

(La.App. 3 Cir. 3/31/04), 871 So.2d 630, 634 (quoting Mardis v. Brantley, 30,773,

pp. 2-3 (La.App. 2 Cir. 8/25/98), 717 So.2d 702, 704, writ denied, 98-2488 (La.

11/20/98), 729 So.2d 563).

In this case, the 1952 Agreement sets forth the intention to place a charge on

Mr. Guidry’s estate for the benefit of Willie Clement’s estate by granting a twenty-

four-foot right-of-way for an irrigation canal. The extent of the charge is described

as “a right-of-way 24 feet in width for the said irrigation canal” which was earlier

described as “an irrigation canal running along the Southern boundary of his [Mr.

Guidry’s] said land and lying next to the Public Road, which irrigation canal leads

from the irrigation plant . . . to the tract of land consisting of approximately 120

acres[.]” The 1952 Agreement further requires Willie Clement, his heirs and

assigns, “to take good and proper care of the canal levies and not permit any water

to escape or cause any damage to the growing crops on [the] land of Marcel Guidry,

his heirs or assigns.”

6

The Menards argue that the 1952 Agreement only establishes a right-of-way

for an apparent servitude, an irrigation canal as was in existence at the time that the

1952 Agreement was signed, and that the “nature” of the servitude has been

changed to a non-apparent servitude, a buried irrigation pipeline.

The Clements argue that the current underground pipeline is merely a

permissible modification of the original, apparent servitude and, thus,

encompassed by the 1952 Agreement as it serves the same purpose, irrigation.

The Clements further argue that the buried irrigation pipeline is less onerous,

as it is underground and does not present all the hazards and unpleasant effects of

an open canal. Overlooked by the Clements is the obvious problem of having to

go onto the lands of the servient estate to dig up and repair the pipeline should it

become clogged or inoperable, the very issue that brought the existence of the

pipeline to the attention of the Menards in this case. In determining whether the

“nature” of the servitude has changed, we have considered the Louisiana Civil Law

Treatise on the subject, which provides:

The owner of the dominant estate may not unilaterally change
the nature of a servitude, its location, or its purpose. For example, he
may not transform a discontinuous servitude into a continuous
servitude; he may not relocate the servitude without the consent of the
owner of the servient estate; and he may not convert a servitude of
passage for the construction of a highway into a servitude for
recreational purposes, a railroad right of way into a servitude for the
operation of a cotton gin, or an under-the-ground pipe line servitude
into a servitude for the maintenance of above-ground facilities. In
such cases, the owner of the dominant estate is not using the servitude
within the limits of his title or possession, but is attempting to
establish a new servitude or to modify the servitude by unilateral
action. He may be liable, therefore, to the owner of the servient estate
for damages for aggravation of the condition of the servient estate, or
even if the condition of the servient estate has not been aggravated.

A.N. YIANNOPOULOS, PREDIAL SERVITUDES §7:6 (4 Louisiana Civil Law

Treatise 2018)(footnotes omitted)(emphasis added).

7

The trial court concluded that although the underground pipeline was

“changed from an open ditch to a subsurface pipe in 1997[,]” “the right of way for

the irrigation canal has been maintained and consistently used for irrigation for

agricultural crops for many years. The subsurface pipe has been utilized for that,

and no other, since 1997.” Additionally, the testimony of the Clements was that

the pipe was in the same location as the prior apparent canal. Furthermore, the trial

court concluded that the term “irrigation canal,” as used in the 1952 Agreement,

encompasses a subsurface pipe for agricultural irrigation in this case.

We disagree with the trial court’s conclusion. The 1952 Agreement

describes an apparent servitude, which is emphasized by the requirement that

Willie Clement maintain the canal levies. Additionally, although the new

underground pipe is in the same location and serving the same purpose as the prior

canal, the nature of the servitude has been unilaterally changed by the Clements.

Thus, when the Clements filled in the apparent servitude in 1997, they ceased to

use the servitude granted to them by the language in the 1952 Agreement.

Considering that any “[d]oubt as to the existence, extent, or manner of exercise of

a predial servitude shall be resolved in favor of the servient estate,” we find the

trial court was manifestly erroneous. La.Civ.Code art. 730.

CONCLUSION:

The trial court’s judgment in favor of the Clements is reversed. A

permanent injunction in favor of Appellants, the Menards, is granted and the case

is remanded to the trial court for further proceedings as may be necessary in

conformity with this ruling. Costs of this appeal are assessed to Appellees, the

Clements: Norris Clement, Barbara Clement Richard, and Gregory Paul Dore.

8

REVERSED; PERMANENT INJUNCTION IN FAVOR OF THE
MENARDS IS GRANTED; CASE REMANDED FOR FURTHER
PROCEEDINGS.

9

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-497

NORRIS CLEMENT, ET AL.

VERSUS

BRENT J. MENARD, ET AL

Pickett, J., dissenting with written reasons.

I respectfully dissent.

In 1952, the plaintiffs’ ancestor was granted the right to operate and maintain

an irrigation canal situated on the defendants’ property by the defendants’ ancestor

in title. The act establishing the servitude was recorded in the public records. In

1997, the plaintiffs installed plastic pipe to transport the irrigation waters and

covered the pipe. They have continued to transport irrigation water via this

underground pipe without interruption for twenty-two years since installing the pipe.

The defendants purchased the property on which the irrigation canal is situated after

the plaintiffs installed the plastic pipe and filled the canal. The act of sale

transferring title to the defendants does not mention the irrigation canal/pipeline but

provides that the sale is made “subject to any easements, rights-of-way and

restrictions of record.” The servitude at issue clearly was “of record.” The plaintiffs

filed suit in 2017 seeking an injunction allowing them on the defendants’ property,

alleging that the defendants refused to allow them to repair a leak on a section of the

underground pipe located in the servitude. The trial court found that the plaintiffs

were entitled to a permanent injunction “restraining, enjoining and prohibiting [the

defendants] from harassing or threatening them and from interfering with the

operation, maintenance and repair of the irrigation canal” as described in the 1952

act granting the servitude.
1

The defendants argue that the right of way granted by their ancestor-in-title

was an apparent servitude and that the plaintiffs changed the nature of the servitude

to a non-apparent servitude when they installed plastic pipe where the irrigation

canal was situated and filled the canal. They maintain that the public records do not

reflect that the servitude granted is a non-apparent servitude as required by

La.Civ.Code art. 739; therefore, the trial court erred in granting judgment in favor

of the plaintiffs.

As noted by the majority, the 1952 act granting the right-of-way at issue

provides that Marcel Guidry sold to “Willie Clement, . . ., his heirs and assigns a

right of way 24 feet in width for the said irrigation canal, said right-of-way to

continue for as long a time as the said irrigation well and pumping plant is operated

by either the said Willie Clement, his heirs or assigns.” The act further set forth the

specific location of the canal on Mr. Guidry’s property and obligated Mr. Clement

“to take good and proper care of the canal levies and not permit any water to escape

or cause any damage to growing crops on land of Marcel Guidry, his heirs or

assigns.”

The majority cites Professor Yiannopoulos’ discussion of the limitations of

the dominant estate owner’s rights with regard to changing the nature of a servitude,

its location or its purpose. Professor Yiannopoulos’ examples of unacceptable

changes by a dominant estate owner include changing a non-continuous servitude to

a continuous servitude, complete relocation of a servitude on the servient estate,

changing a railroad right-of-way to a servitude to operate a cotton gin, and

conversion of an underground pipe line servitude to an above ground facility. While

at first glance the last example might appear to support the defendants’ claim, it does

not. The installation of an above ground facility limits the servient estate owner’s

use of his property thereby making the pipe line servitude more onerous on the

2

servient estate. In each of these instances, the changes made by the dominant estate

caused the servitude to be more onerous. In the instant case, the installation of an

underground pipe in the same location of an irrigation canal made the servitude less

onerous. Neither the nature nor the purpose of the servitude was changed. The

installation of the underground pipe actually improved the system for which the

servitude was established by eradicating the need for mosquito and rodent control,

as well as other maintenance issues that accompany an open canal.

The majority also finds that the 1952 Agreement describes only an apparent

servitude because the agreement required Mr. Clement, and now the plaintiffs, to

maintain the canal levies. However, the agreement makes it clear that the purpose

of maintaining the levies is to “not permit any water to escape or cause any damage

to the growing crops or land” of Mr. Guidry. The plaintiffs remain bound by that

requirement such that they must maintain their irrigation pipe to insure that no water

escapes or causes damage to the defendants’ property.

In my view, the plaintiffs’ conversion of the irrigation canal to an irrigation

pipe does not change the nature of the original servitude granted by Mr. Guidry—its

nature remains that of an irrigation canal. Nor does it change the location or purpose

of the servitude. Additionally, the change made the servitude less burdensome on

the servient estate.

The plaintiffs complied with La.Civ.Code art. 739’s requirement that non-

apparent servitudes be recorded and thereby protected the existence of their

servitude. The act establishing the servitude does not define or limit the irrigation

canal to being an apparent servitude; however, it does specifically define the location

and existence of a right of way for an irrigation canal.

I would affirm the judgment of the trial court.

3

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-497

NORRIS CLEMENT, ET AL.

VERSUS

BRENT J. MENARD, ET AL.

CONERY, J., concurs and assigns reasons.

I join in the majority opinion, but write separately as, in my opinion,

consideration of the issue presented must begin with discussion of La.Civ.Code arts.

729 and 730. It is the application of that framework that reveals the error in the trial

court’s ruling.

Louisiana Civil Code Article 729 provides: “Legal and natural servitudes

must be altered by agreement of the parties if the public interest is not affected

adversely.” There is no indication that an agreement between the Menards and the

Clements, verbal or otherwise, altered the initial servitude. It is instead apparent that

the parties’ dispute stems from the original, 1952 Agreement which called for an

“irrigation canal.” The Clements now wish to expand the scope and meaning of

“irrigation canal” as used in that document to include operation of a replacement

underground irrigation pipeline which they undisputedly installed without the

knowledge or permission of the Menards. Indeed, the survey of the property

purchased by the Menards does not show that there is an underground irrigation

pipeline across their property, and because the pipeline is buried, there is no

indication of its existence on the surface of the property.

In the face of such dispute, La.Civ.Code art. 730 dictates that: “Doubt as to

the existence, extent, or manner of exercise of a predial servitude shall be resolved

in favor of the servient estate.” Article 730’s foundational nature is apparent in its

comment, which describes this concept as the “cardinal rule of interpretation[,]” and

indicates that “instruments purporting to establish predial servitudes are always

interpreted in favor of the owner of the property to be affected.” La.Civ.Code art.

730 cmt. (b). The comment further references longstanding supreme court

jurisprudence explaining that “‘servitudes are restraints on the free disposal and use

of property, and are not, on that account, entitled to be viewed with favor by the

law.’” Id. (quoting Parish v. Municipality No. 2, 8 La.Ann. 145, 1853 WL 4186

(La.1853), cited with approval in Buras Ice Factory, Inc. v. Dep’t of Highways, 235

La. 158, 103 So.2d 74 (1958))(also citing McGuffy v. Weil, 240 La. 758, 125 So.2d

154 (1960)). See Palomeque v. Prudhomme, 95-0725 (La. 11/27/95), 664 So.2d 88;

Ryan v. Monet, 95-1332 (La.App. 4 Cir. 12/28/95), 666 So.2d 711. See also A.N.

YIANNOPOULOS, PREDIAL SERVITUDES § 6.25 (4 La. Civ. L. Treatise 2018).

It is unquestioned here that the parties’ competing claims arise out of the

change in the nature of servitude from “apparent” to “non-apparent” and the manner

of exercise of the predial servitude contained within the 1952 Agreement. By

reference to La.Civ.Code art. 730, on this latter point, resolution favors the Menards.

In Southern Amusement Co., Inc., v. Pat’s of Henderson Seafood & Steak, 03-

767 (La.App. 3 Cir. 3/31/04), 871 So.2d 630, this court recognized Article 730’s

directive as well as the underlying principle that the intention of parties to place a

charge on the servient estate, as well as the extent of that charge, must be expressed

on the face of the title document creating the purported predial servitude. Reviewing

the matter before it, the panel found “ambiguity in the attempted establishment of a

predial servitude” contested between the parties and found, therefore, “that the issue

must be resolved in favor of [the servient estate.]” Id. at 635. The same type of

2

analysis is applicable in this case as the parties dispute the meaning of “irrigation

canal.”

The trial judge’s well intentioned efforts to resort to equity to “expand” the

meaning of irrigation canal to encompass a buried “irrigation pipeline” is legally

incorrect, and as such, we owe no deference to his decision and must decide the case

de novo. See Chambers v. Village of Moreauville, 11-898 (La. 1/24/12), 85 So.3d

593. In Dautreuil v. Degeyter, 436 So.2d 164, 168 (La.App. 3 Cir. 1983), a panel of

this court rejected such an equitable remedy, instead finding it appropriate to

construe the servitude at issue by the terms of its originating agreement. It

determined that the servitude’s contractual nature controlled and explained that

“[w]hen a servitude of passage is created by contract, that contract regulates the

extent of the servitude” pursuant to La.Civ.Code art. 697, “keeping in mind that

servitudes are limitations on ownership and, as such, are not favored in law; thus,

any doubt as to the existence, extent or manner of exercise of a predial servitude is

to be resolved in favor of the servient estate, [La.Civ.Code] art. 730.”

Similarly, in Dickson v. Arkansas Louisiana Gas Co., 193 So. 246, 247

(La.App. 2 Cir. 1939), the second circuit looked to the language of the instrument

establishing a servitude in which the dominant estate was granted a right-of-way for

the laying of “a gas main for the distribution of natural or artificial gas” through the

servient estate. The court rejected the argument that the subject language

encompassed a right to dig “an entirely new ditch, separate and independent of the

old one” in order to lay a new main. It instead noted that the servitude referenced

the use of land for “a gas main,” not “two or more mains,” and it did not permit the

use of “double the quantity of land for two mains than was required for one.” Id. at

248-49. While recognizing that the width of the right-of-way was not specified in

3

the instrument, it found that “[t]he width necessary to make an excavation adequate

to receive the main originally, determined the limits of the grantee’s right in that

respect, under said instrument.” Id. In doing so, the second circuit returned to a

contractual analysis, explaining that “[i]nstruments of the character of that before us

are strictly construed because rights which would not otherwise have existence are

thereby created. Little or nothing should be inferred in construing or enforcing

them[.]” Id. at 249.

In this case, the 1952 Agreement permitted a right-of-way for an “irrigation

canal.” To the extent that term now seems to be ambiguous in terms of the respective

parties’ interpretation of that term, it is clear by the instruction of Civil Code Article

730 and by reference to jurisprudence such as Southern Amusement, 871 So.2d 630,

that the trial court was required to resolve ambiguity in favor of the servient estate,

the Menards.

Accordingly, I join in the majority’s finding in favor of the Menards and agree

to the disposition outlined in the majority’s decree.

4

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
18-497

NORRIS CLEMENT, ET AL.

VERSUS

BRENT J. MENARD, ET AL.

Savoie, J. dissenting with written reasons.

I respectfully dissent for the reasons assigned by Judge Pickett, as well as for

the following reasons. In my view, the purpose of the servitude, as made clear by

the 1952 act granting the servitude, was to allow for the passage of water for

irrigation purposes. The 1952 act, as written, encompasses both an apparent and a

nonapparent servitude for that purpose. Therefore, I would affirm the trial court’s

judgment.