Farmco, Inc. and Brent A. Beauvais VS Robert Ray Morris, Francis Morris, Jacqueline Creer, Zelotes A. Thomas, Keith E. Morris and Ronald B. Morris

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0771 FARMCO INC AND BRENT A BEAUVAIS VERSUS ROBERT RAY MORRIS FRANCES L MORRIS JACQUELINE M CREER ZELOTES A THOMAS KEITH E MORRIS AND RONADA B MORRIS On Appeal from the 18th Judicial District Court Parish of West Baton Rouge Louisiana Docket No 35 Division B 646 Honorable Kenneth L Blanchard Jr Plaquemine LA Robin Free Judge Presiding Attorney for Appellants Plaintiffs Farmco Inc and Brent A Beauvais Antonio M Clayton Tony Clayton and Fruge Port Allen LA Attorney for Appellees Defendants Jacqueline M Creer and 2elotes A Thomas Aquila D Roads LA C Jerome New Attorney for Appellees Defendants Robert Ray Morris Frances L Morris Keith E Morris Ronada B Morris and Sugar West Inc BEFORE PARRO HUGHES AND WELCH JJ udgment rendered APR 1 0 2013 Justice Jefferson D Hughes III is serving as judge ad hoc by special appointment of the Louisiana Supreme Court PARRO J Farmco Inc Farmco and Brent A Beauvais collectively the plaintiffs appeal a judgment recognizing that Robert Ray Morris Frances L Morris Keith E Morris Ronada B Morris Zelotes A Thomas Jacqueline M Creer and Sugar West Inc collectively the defendants have by thirty acquisitive prescription and by destination of year owner acquired a servitude of passage over certain land in West Baton Rouge Parish owned by the plaintiffs For the following reasons we a the judgment in part and rm reverse in part FACTUAL AND PROCEDURAL BACKGROUND The property involved in this litigation is Tract D on a map prepared by Wallace 4 J Hargrave in 1994 when the property was owned by Ashland Plantation Inc Ashland Tract 4 D now owned by the plaintiffs consists of two wide 60 passageways leading north to the back of Chamberlin Subdivision one located between residential Lots 6 and 7 and the other between Lots 11 and 12 and another headland passageway perpendicular to those and running east along the back of all 18 lots west in the subdivision All of the subdivision lots front on Louisiana Highway 620 also known as Section Road The 60 passageways are gravel roads leading north wide from Section Road and connecting with the headland strip These roads are being used by the defendants and were used by their predecessors for access to their title in residences and to the agricultural property north of the subdivision The history of the property at issue is as follows All of the parties trace their ownership interests back to common owners Kenneth H Kahao Mr Kahao J King Woolf r and Charles B Kahao who owned in indivision a 691 tract in West acre 6 Baton Rouge Parish fronting on Section Road On October 30 1969 they transferred all of their ownership interests in the property to Ashland in exchange for Ashland stock In November 1976 Ashland through its President Mr Kahao mortgaged the property to secure a loan to Ashland and Mr Kahao from the Federal Land Bank FLB In 1979 Ashland took out a second mortgage on the property with Farmers Home Administration FHA to secure another loan to Ashland and Mr Kahao In the early s 1980 Ashland decided to develop Chamberlin Subdivision along Section Road 2 To make this development possible in July 1983 the FLB released 71 acres of Tract D including the 18 lots in Chamberlin Subdivision and the two 60 passageways from wide its mortgage The FHA also released each of the Chamberlin Subdivision lots from its mortgage but did not release the two 60 strips In the final plat of Chamberlin wide Subdivision prepared for Ashland on April 2 1984 by John K Laws Jr the two 60 wide strips were designated as reserved for private access Ashland continued to own about 410 acres of the agricultural property adjacent to and north of the subdivision On February 4 1987 Ashland granted a predial servitude over one of the 60 wide strips to Roy G and Irma P Nugent the previous owners of Lot 12 currently owned by Keith E and Ronada Morris and Robert Ray Morris In the early 1990s Ashland and Mr Kahao defaulted on their loans from the FLB and FHA the property securing the debt to FLB was seized and sold by C Inc the V M holder of the first mortgage to Sugar Plantation L in a U Marshal sale on C S s June 19 1997 This properry consisting of agricultural land adjacent to and north of Chamberlin Subdivision was sold by Ashland Plantation L to Robert Ray and C Frances L Morris on December 28 2000 The remainder of the property was seized by the FHA and sold at a U Marshal sale to Farmco and Beauvais on March 25 1997 S s At that sale the plaintiffs acquired five tracts of land consisting of roughly 52 acres fronting on Section Road As shown on the Hargrave map those trads included Tract 4 D the property in dispute consisting of 2 acres 48 On uly 26 2006 the plaintiffs filed a petition for damages and rule for preliminary injunction against the defendants seeking to enjoin them from using Tract 4 D and claiming that the defendants unauthorized use of the property had rendered it Z Various other portions of the Ashland property were released from these mortgages over the years as portions of the property were sold to other buyers Keith and Ronada Morris purchased Lot 12 on March 24 1998 on October 26 2006 they donated an undivided 1 interest in Lot 12 to Robert Ray Morris Lot 7 was acquired by Jacqueline M Creer 2000th Lot 11 was acquired by Zelotas A Thomas whose property was seized and sold at a sheriff sale on s October 27 2011 to Sugar West Inc represented by Keith Morris The note evidencing the debt owed to FLB secured by a first mortgage on the property had been assigned to Farm Credit Bank of Texas and reassigned to C Inc V M 5 Sugar Plantation L later changed its name to Ashland Plantation L C C 6 Although the record dces not show that the headland strip was released from the FLB mortgage but retained in the FHA mortgage that apparently was the case since the sale to the plaintiffs included the headland strip 3 unmarketable and caused financial loss to the plaintiffs After a trial the court granted the defendants motion for involuntary dismissal and dismissed the plaintiffs case That judgment was appealed to this court In a previous opinion Farmco Inc v Morris 08 1996 La App ist Cir 9 21 So 428 writ denied 09 La 12 23 09 4 3d 2165 09 11 3d So 919 this court concluded that the plaintiffs had established that they owned the property at issue which precluded the trial court involuntary dismissal of their action s against the defendants for unauthorized use of their property Therefore this court reversed the dismissal of the plaintiffs claims and remanded the case to the trial court for admission of certain expert testimony as to the plaintiffs alleged damages and to allow the defendants to offer evidence to support their claim that they had acquired a servitude of passage over the property owned by the plaintiffs Following that trial the court ruled in a judgment signed January 5 2012 that the defendants had established that they had each obtained a servitude of passage by thirty acquisitive year prescription and destination of owner This appeal followed APPLICABLE LAW A predial servitude is a charge on a servient estate for the benefit of a dominant estate The two estates must belong to different owners C LSA art 646 A servitude is imposed upon an estate or in favor of an estate it is not imposed on the person or in favor of the person Cazes v Robertson 421 So 423 425 La App 2d lst Cir 1982 A servitude of passage is the right for the benefit of the dominant estate whereby persons animals utilities or vehicles are permitted to pass through the servient estate LSA art 705 This right of passage being in favor of immovable C property is a servitude i a real right which is inseparable from the predial e immovable to which it is attached and one which remains the same regardless of any change of ownership of the estates owing or due the servitude Cazes 421 So at 2d Title IV of Book II of the Louisiana Civil Code of 1870 which formerly contained LSA arts 646 to C 822 relating to predial servitudes was revised amended and reenacted by 1977 La Acts No 514 1 effective January 1 1978 Act 514 to contain LSA arts 646 to 774 In this opinion when referring C to these articles we will be using the wording of the current versions and will note only those amendments that changed the law e The 1977 revision comments to Article 705 state that this provision is new and changes the law in that there is no longer a distinction behveen urban and rural passage the servitude is perpetual unless the title provides othenvise The extent of the right is the same in cities and in the country it is determined by the title creating the servitude Article 705 was further amended by 2012 La Acts No 739 1 to insert utilities in the first sentence and or utility in the second sentence 4 425 The owner of the servient estate is not required to do anything His obligation is to abstain from doing something on his estate or to permit something to be done on it C LSA art 651 Coleman v Booker 46 La App 2nd Cir 6 94 So 890 12 13 3d 174 177 writ denied 12 La 11 100 So 847 1983 12 9 3d A predial servitude is preserved by the use made of it by anyone even a stranger if it is used as appertaining to the dominant estate C LSA art 757 Palace Properties L v C Sizeler Hammond Square Limited Partnershiq 01 La App lst Cir 12 839 2812 02 30 2d So 82 94 writ denied 03 La 4 840 So 1219 0306 03 2d Doubt as to the existence extent or manner of exercise of a predial servitude shall be resolved in favor of the servient estate C LSA art 730 Palomeaue v Prudhomme 95 La 0725 95 27 11 664 So 88 93 2d Predial servitudes are either apparent or nonapparent Apparent servitudes are those that are perceivable by e signs works or constructions such as a erior roadway C LSA art 707 Apparent servitudes may be acquired by title by destination of the owner or by acquisitive prescription LSA art 740 St Charles C Parish School Bd v P L Inv Corp 95 La 5 674 So 218 221 2571 96 21 2d Voluntary or conventional servitudes are established by juridical act prescription or destination of the owner LSA art 654 Coleman 94 So at 177 C 3d An apparent servitude may be acquired by peaceable and uninterrupted 9 The 1977 revision comment to Article 740 states a This provision is new Under the 1870 Code it is continuous and appa ent servitudes that may be acquired by title by destination of the owner or by acquisitive prescription Under Article 756 apparent servitudes may be acquired by prescription or by destination of the owner even though they might be considered discontinuous under the regime of the 1870 Code and thus insusceptible of such modes of acquisition A right of way servitude exercised by means of a railroad treck or a paved roadway may be acquired by prescription and by destination of the owner The provision is not retroactive Thus the quasi of a possession servitude that would be discontinuous under the prior law does not give ryse to prescriptive rights except from the efFective date of the new legislation Prescription however commenced prior to the effective date of the new legislation for the acquisition of a servitude that would be continuous and apparent under the prior law continues to run Upon accrual of the prescription the right acquired will be that of an apparent servitude under the new legislation Bold emphasis added Under Article 727 of the 1870 Code a servitude of passage was discontinuous because its use depended on acts of man In contrast a servitude of drain was continuous because water would continue to flow through such a servitude regardless of the acts of man 5 possession of the right for ten years in good faith and by just title LSA art 742 C A just title is a juridical act such as a sale exchange or donation sufficient to transfer ownership or another real right The act must be written valid in form and filed for registry in the conveyance records of the parish in which the immovable is situated C LSA art 3483 see also Wetrel v Khan 00 La App 4th Cir 9 797 1083 OS 19 2d So 122 130 writ denied 01 La 1 805 So 202 Title refers to 31 2804 02 4 2d the method by which the servitude may be acquired and does not relate exclusively to the conveyance of the servient estate It is a generic term which embraces any juridical act Wetzel 797 So at 131 citin 2d McGuffy v Weil 240 La 758 765 125 So 2d 154 157 1960 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 When the two estates cease to belong to the same owner unless there is express provision to the contrary an apparent servitude comes into existence of right LSA art 741 Article 741 does not require an express provision in order C for a servitude by destination of the owner to exist and once it comes into existence it passes to the new owner of the property unless the former owner disavows the existence of the servitude when both estates cease to belong to him See Phipps v o 2037 Schu 09 La 7 45 So 593 601 10 6 3d An apparent servitude may also be acquired by uninterrupted possession for thirry years without title or good faith C LSA art 742 Under LSA art 742 C which was amended by Act 514 effective January 1 1978 acquisitive prescription of a discontinuous apparent servitude is not retroactive but applies from the amendment s effective date See Griffith v Cathev 99 La App 3rd Cir 2 762 So 29 923 00 2d 35 writ denied 00 La 10 771 So 85 Wetzel 797 So at 129 1875 00 6 2d 2d lo The 1977 revision comments to Article 742 state that this provision is new and legislatively overrules contrary jurisprudence which had held that particular parties acquired without just title or good faith continuous and apparent servitudes by the prescription of ten years under Article 765 of the 1870 Code Article 741 was also reenacted by Act 514 The 1977 revision comments point out that this provision is new Under the new provision an apparent servitude may be acquired by destination of the owner under Article 741 even though it might be regarded as dixontinuous under the regime of the 1870 Code Article 741 was further amended by 1978 La Acts No 479 1 The 1978 changes did not affect the relevant portions of this article 6 ANALYSIS Year Thirtv Acauisitive Prescription Under current Civil Code articles 705 and 707 a servitude of passage is an apparent predial servitude since it is evidenced by a roadway As such according to current Article 740 it may be acquired by title by destination of the owner or by acquisitive prescription related to Griffith However the reenactment by Act 514 of these provisions predial servitudes 762 2d So at 35 effective January 1 1978 was not retroactive See A right over a roadway was a discontinuous way of apparent servitude under the 1870 Civil Code Kizer v Lillv 471 So 716 718 La 2d 1985 The 1870 Code provided that discontinuous apparent servitudes could be established only by a title they could not be acquired by acquisitive prescription See former LSA art 766 1870 see also Nash v Whitten 326 So 856 858 La C 2d 1976 The quasi of a servitude that would be discontinuous under the prior possession law does not give rise to prescriptive rights except from the effective date of the new legislation C LSA art 740 1977 revision comment a Since the enactment of Article 740 is not retroactive prescriptive rights as to formerly discontinuous servitudes including servitudes of passage commence from the effective date of the article January 1 1978 McCann v Normand 97 La App 3rd Cir 6 696 So 103 97 4 2d 203 206 This lawsuit was filed in July 2006 The filing of the lawsuit constitutes an interruption of the defendants possession of the servitude of passage art 3462 See LSA C Therefore in order to establish acquisitive prescription of thirly years the defendants had to prove their possession and use of the servitude of passage since 1976 Since that date pre the current articles and the current articles are not dates retroactive the acquisition of a discontinuous servitude such as a servitude of passage by thirty years possession since 1976 is not available to the defendants Possession of an apparent servitude that would have been discontinuous under Article 766 of the 1870 Code could not begin to produce prescriptive rights except from the January 1 1978 effective date of Act 514 Therefore the defendants in this case could not have acquired a servitude of passage over the plaintiffs property through acquisitive 7 prescription since thirty years had not elapsed between the effective date of Act 514 in January 1978 and the interruption of their possession by the filing of this lawsuit in July 2006 We conclude therefore that the district court erred in applying the current version of Article 740 to establish thirry years acquisitive prescription of a discontinuous apparent predial servitude that commenced prior to the effective date of Act 514 Destination of the Owner or Ten Acauisitive Prescription Year Voluntary or conventional servitudes may be established and apparent servitudes may be acquired by destination of the owner See LSA arts 654 and 740 The C 1984 final plat of Chamberlin Subdivision prepared for Ashland described the two 60 wide passageways that it owned as reserved for private access Thus Ashland which owned both estates at that time had designated the 60 passageways as access wide roads between Section Road and its agricultural land to the north of and adjacent to Chamberlin Subdivision thus creating a of the owner between two areas destination of properry owned by the same owner that would be a predial servitude if those estates belonged to different owners See LSA art 741 Since the two estates ceased to C belong to Ashland when separately seized and sold in 1997 the servitude of passage an apparent servitude came into existence of right because Ashland did not expressly disavow the existence of the servitude before both estates ceased to belong to it All of these actions occurred after the codal articles regarding acquisition of predial servitudes by destination of owner were revised by Act 514 effective anuary 1 1978 Moreover Article 742 provides that an apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and by just title On February 4 1987 in a juridical act duly recorded in the parish conveyance records Ashland granted a predial servitude over the 60 passageway between wide Lots 11 and 12 to Roy G and Irma P Nugent then owners of Lot 12 The Act of Predial Servitude states that the appearers have agreed to the creation and establishment of a road or lane of passage to accommodate automobiles or other vehicular use of the properly by the grantees their heirs successors and assigns for 1z The 1984 map did not have a similar designation for the headland strip 8 the benefit of Lot 12 of Chamberlin Subdivision The Nugents sold Lot 12 to Daniel L Miremont on February 25 1993 and Miremont sold it to Keith and Ronada Morris on March 24 1998 Tract D was not sold to the plaintiffs until March 25 1997 4 The record shows that the Morrises and their ancestors in title peacefully possessed the 60 passageway between Lots 11 and 12 and used this property as wide a servitude of passage in accordance with the provisions of the Act of Predial Servitude from February 4 1987 until March 25 1997 when Tract D was sold to the 4 plaintiffs Because the 1997 sale of Tract D to the plaintifFs was for the enforcement 4 of the mortgage securing the debt owed by Ashland the properry was sold free of all servitudes established after the mortgage See LSA art 721 see also Farmco 21 C 3d So at 432 However the record in the second trial establishes that by 1997 the owners of Lot 12 had peaceably possessed and used the servitude of passage for ten years in good faith and by just title Therefore pursuant to Articles 654 and 742 the Morrises had already acquired ownership of this servitude in favor of Lot 12 before Tract D was sold to the plaintiffs See LSA art 742 4 C Based on the evidence in the record we conclude that all of the defendants acquired a servitude of passage over the 60 passageways between Lots 6 and 7 wide and Lots 11 and 12 of Chamberlin Subdivision by destination of the owner Additionally the Morrises as owners of Lot 12 acquired a servitude of passage over the 60 passageway between Lots 11 and 12 by peaceable possession for ten wide years in good faith and with just title Damages The plaintiffs in this case claimed damages for the defendants unauthorized use of Tract D claiming their use had rendered the properly unmarketable and caused 4 financial loss to the plaintiffs We have concluded that the defendants acquired a servitude of passage over the 60 passageways between Lots 6 and 7 and Lots 11 wide and 12 of Chamberlin Subdivision Therefore no damages are owed for their use of those portions of Tract D and the only damage assessment that could be made 4 13 All of these actions including the Act of Predial Servitude occurred after the effective date of Act 514 14 As previously noted Ms Thomas property Lot 11 has since been acquired by Sugar West Inc s Therefore the servitude of passage in favor of Lot 11 passed to the current owner 9 would pertain to the use of the headland strip In support of their claim the plaintiffs presented testimony from a real estate broker Fred E Stephens who had been involved in real estate transactions in the subject area for at least 33 years and was accepted by the court as an expert in the general knowledge of real estate including land values in that area His first comment when shown the map of Chamberlin Subdivision and Tract D was that it Tract D 4 4 t wouldn be of any value to anybody except the people that own the home He elaborated further stating It just a piece of property thaYs ingress and egress and s thaYs the only thing of value it really worth He acknowledged that when he sold a s full 200 by 200 lot in Chamberlin Subdivision five or six years earlier it sold for about 000 25 But he persisted in saying that property with the configuration of Tract D 4 was not of any value to anybody other than for ingress and egress Mr George W T Ruple the sole officer and director of Farmco stated that he had owned all of the properly fronting on Section Road between Bueche Road and the Chamberlin Subdivision and had been selling frontage lots since 1997 or 1998 for about 21 to 000 000 25 per acre Maps in the record show that normal Chamberlin Subdivision lots have frontage footage on Section Road of 139 to 145 and depths of 298 to 310 each has an area of approximately one acre Tract D consists of approximately 2 acres 4 48 in a unique configuration consisting of strips of land no wider than 60 feet two of which lie perpendicular to Section Road and are interposed between normal subdivision lots Across the back of the subdivision to its north runs another strip of land the headland strip to the immediate north of which is a ditch just beyond the ditch is the agricultural property currently owned and farmed by the Morrises Testimony in the record established that the headland strip had been used since at least the 1950s for access to the agricultural property to the north of what is now Chamberlin Subdivision Based on the evidence we conclude that Tract D including the headland strip never had market value for 4 anything other than the use to which it is currently being put That said however it does not mean that the property has no value at ali since it clearly has value for those who are using it as an access road to their agricultural 10 property However the plaintiffs did not present any evidence of the use value of Tract 4 D Since they have already had two trials at which to present such evidence we will not remand for another trial but find that they failed to meet their burden of proof as to the amount of any damages that might be due for the past or future use of the headland strip portion of Tract D 4 CONCLUSION Based on the above reasons the district court judgment of January 5 2012 is s affirmed as to its finding that Robert Ray Morris Frances L Morris Keith E Morris Ronada B Morris lacque M Creer and Sugar West Inc have acquired a servitude ine of passage in favor of their lots over the 60 passageways between Lots 6 and 7 wide and Lots 11 and 12 of Chamberlin Subdivision comprising a portion of Tract D said 4 property being more particularly described as follows A certain tract or parcel of ground measuring Sixty 60 feet front on Section Road by a depth of Three Hundred Two and 40 302 feet 100 40 on its East boundary by Three Hundred Two and 8Z 302 feet on 100 82 its West boundary and Sixiy 60 feet across the rear said tract bounded on the east by Lot 12 on the west by Lot 11 on the south by Section Road and on the north by property formerly belonging to Ashland Plantation Inc additionally a certain tract or parcel of ground measuring Sixty 60 feet front on Section Road by a depth of Three Hundred Seven and 67 307 feet on its East boundary by Three Hundred Eight 100 67 and 8 308 feet on its West boundary and Sixty 60 feet across 100 08 the rear said tract bounded on the east by Lot 7 on the west by Lot 6 on the south by Section Road and on the north by property formerly belonging to Ashland Plantation Inc all as shown on that map entitled Final Plat of Chamberlin Subdivision First Filing Being a Portion of a Larger Tract of Land Known as Ashland Plantation Located in Section 57 S E 6 12 T R Southeastern Land District West Baton Rouge Parish Louisiana for Ashland Plantation dated April 2 1984 and prepared by John K Laws Jr Registered Land Surveyor a corrected copy of which shows Rand is on file and of record in Map Book 2 Entry No 244 E 11 in the Office of the Clerk and Recorder for the Parish of West Baton Rouge Louisiana We reverse the judgment as to its finding that the defendants also acquired a servitude of passage over the headland strip All costs of this appeal are assessed to Farmco Inc and Brent A Beauvais AFFIRMED IN PART REVERSED IN PART 11

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