Robert G. Claitor VS Laurance W. Brooks, Jr.

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STATE OF LOUISIANA COiJRT OF APPEAL FIRST CIRCUIT NO. 2013 CA 0178 ROBERT G. CLAITOR VERSUS LAURANCE W. BROOKS, JR. JudgmentRendered: DE ` On Appeal from 19' Judicial District Court, In and for East Baton Rouge Parish, State of Louisiana Trial Court No. C600913 " 25" The Honorable Wilson E. Fields, Judge Presiding Troy J. Charpentier William L. Caughman, III Attorneys for Plaintiff/Appellant, R.G. Claitor' s Realty Baton Rouge, Louisiana John Stone Campbell, III Attorney for DefendandAppellee, Baton Rouge, Louisiana Laurance W. Brooks, Jr. BEFORE: WHIPPLE, C. J., WELCH, AND CRAIN, JJ. CRAIN, J. In this suit to declare a predial servitude of passage extinguished by prescription of nonuse, the plaintiff appeals fro n a summary judgment granted in favor of the defendant dismissing the claims witl: prejudice. We affirm. FACTS AND PROCEDL'RAL HISTORY The servitude at issue burdens property owned by R.G. Claitor' s Realty in the northeast quadrant of the intersection of Perkins Road and South Acadian Thruway in Baton Rouge. The dominant estate is owned by the defendant, Laurance W. Brooks, Jr., and is located at the corner of the intersection, fronting on both roadways to the south and west and surrounded on the east and north by the Claitor property. The Brooks parcel was carved out of the larger tract in 1968, when the original owners, Mr. and Mrs. Robert G. Claitor, Sr., agreed to sell it to Brooks. The transfer was accomplished through an act of exchange with another party on October 16, 1968, who then conveyed ownership of the parcel to Brooks on October 28, 1968.' In the act of exchange, the Claitors provided that they " do hereby establish and create in favor of the [ Brooks parcel] a servitude of passage for, and use by, vehicles of all descriptions, animals and pedestrians, over and across the following described property...." The boundaries of the servitude are described in detail by a metes and bounds description and an attached piat, vhich is reproduced below and depicts the servitude in the shaded area. 1 The Claitor property was eventually transfened to Claitor' s Realty, and Mr. Claitor is the general partner of that entity. 2 i 41 1. t) i, n y r, x` .. 8 s ti 1 SS i5¢a. Jr',.... y° .. Y` s t H r+ f. g.` f IWBEI u F4 % z$ o`--' a, {nxt - t CSt. J'; i i . il . r . ;:: isu> ->Fa i k: u.,rs{ dz'>'r:. 6 p i I#` A V r t y F .+ . 3sr!/ :. c 5>^' a!&{ Fjr^° i C n r : r; u? . C r a o i . C . w ., .: . , o 1 . . ' . r". .. .. . ' x s e, . nK* a., e i 7 OG GTOSI z(_ XI Y'- 1 . I ' . W i - I. Y Gf. i7 S + ' y . { K` K a i.r W 1.. I ," a y L . I. , 0. ORI Y i .: ' 1$' F 04.. ° n iyf r. ' N t . P w° f t` F.s Y I 1!' y b5 6144.. INV1 N o5, 46eH Y71 3Q N. . 1sLIS_. . lo '? . 3 i s CF 49 I41 y z. a . 1 $. y% 9 s x . g i. Gi Y% y . L V5 O i I y' y6 a j IZ. ef. o if D f. M. R, 4.. is ,. i As illustrated, the servitude is somewhat T- shaped and extends north from Perkins Road approximately 242 feet at a width of 25 feet, and then west to South Acadian Thruway at a width of 30 feet, together with a short length to the east. The Brooks parcel is identified as " TRACT ` A' 1," and all other property to the north ( above) and east ( right) show n on the plat is owned by Claitor' s Realty and is used as access and parking for businesses on other parts of the property not shown on the plat. The servitude is further described as " permanent ... in the nature of a covenant rum ing with the land, [and] is for fhe benefit of said Tract ` A- 1'...." According to his affidavit, Mr. Claitor granted the servitude with the 3 understanding and intent" that it would he used as a drive-through lane for a proposed fast food on restaurant tk e Brooks p rcel, Iowever, Brooks leased the parcel in 1969 to ExxonMobile C; orporatior., who built and opened a gasoline service station at the location in 197Q, I uring the construction, Exxon used fill dirt to raisa the level of the parcel several feet above the servitude and other adjacent property. A set of steps was constructed on the east side of the parcel leading to the servitude to enable pedestrians to walk to and from the service station across the servitude. The servitude was not necessary for vehicular traffic to access the service station because the parcel contained two driveways directly connecting to Perkins Road and Acadian Tl ruway. The service station was demolished in 2001, and the property remained vacant ttu-ough at least 2010. In 2011, Mr. Claitor filed suit against Brooks and alleged that the servitude was extinguished by prescription of nonuse for ten years pursuant to Louisiana Civil Code article 753. 2 Brooks filed a motion for summary judgment asserting that the servitude .was valid and enforceable and that the petition should be dismissed with prejudice. The motion was supported by affidavits and other evidence that indicated repeated use of the servitude by pedestrians to access the Brooks parcel, including Brooks' s-a orn statement that he personally used the servitude to access the parcel on a weekly basis or, at the very- least, several times a year since he acquired the property in 1968. Brooks also attested that a surveyor, realtor, two appraisers, and a representative of a potential tenant used the servitude in his presence to access the property. An attorney, Daniel D. Holliday, III, attested that on multiple occasions in 2002, 2003, and 2004, he used the servitude to access the property in connection with his representation of Brooks in litigation against Exxon; and a groundskeeper confirmed by affidavit that he parked his truck on the servitude to unload and operate equipment that he used to maintain the 2 Claitor' s Realty, the current owner of the Claitor property, was substituted as the plaintiff through an amended petition. 4 Brooks property on at least twv occasions in 2010. Finally, a manager of the service station from 1992 through 1997 attested that he observed patrons and employees of the station often. use the concrete steps leadirag down to the servitude to access PerkirAs R ad and t er busin sses located nearby. Clai stated lane. or' s that he ReaiTy= Upp agreed According xo g Ged ant il e r. oYivra he to Mr. Claitor, sea it ith ' 1.r, itude was ]his r " tl a`;1_ lt' affida ir wherein he purpose of th drive- through andersYanding and intent that the s] ervitude was going to be used as a drive-through lane at a proposed McDonald' s restaurant." However, after Brooks acquired the property, a gasoline service station was constructed on it, and the elevation of the tract and placement of concrete retaining walls during that construction made it physically impossible for any vehicle to travel from the servitude onto the Brooks parcel. To his personal knowledge, no vehicle had ever done so. He further confirmed that the pedestrian and vehicular access to the tract is provided by driveways on the Brooks parcel leading to Perkins Road and Acadian Thruway and that the servitude was never needed for pedestrians to access th.e service staYion. The servitude is not marked by any signs, and Brooks never sought perrnission, nor was any granted, for Brooks or his tenants or invitees to use the park n lot Un the Claitor property. Claitor' s Realty also introduc d excer ts of Brooks' deposition wherein he acknowledged that there was never an enh yway for vehicular traffic from the servitude onto the Brooks parcel. Brooks also knew of only one instance of a vehicle accessing the property from the servitude, which occurred in 2010 when he drove his vehicle onto the property. A ideo of that event showed Brooks' vehicle attempting to climb a side hill of the parcel but apparently unable to crest the hill. Both parties also offered numerou photogr phs depicting the property over the course of several years. 5 The trial court granted ine summary ivagment in favor of Brooks and adopted his suppo=_ting memA randum as reasc ns. A judgment was entered dismissing the claims with preludgce, and Claitor' s Realty appealed assigning as error the trial court' c f nding tnat there were no material zssues of fact that prevented the granting o' the rno; ion fUr sum;rAary jutlgment. LA«% AND A tALYSIS A predial servitude is a charge on a servient estate for the benefit of a dominant estate. La. Civ. Code art. 646.? The use and extent of such servitudes are regulated by the title by which they are created, and, in the absence of such regulation, they are governed by the rules set forth in L.ouisiana Civil Code articles 698 through 774. La. Civ. Code art. 697. A servitude of passage is the right far the benefit of the dominant estate whereby persons, anitnals, ut:lities, or vehicles are perxnitted to pass through the servient estate. La. Civ. Code art. 705. A predial servitude is extinguished by nonuse for ten years. La. Civ. Code art. 753. When the prescription of nonuse is pled, the owner of the dominant estate has the burden of proving that he or some other person has made use of the servitude as appertaining to his estate during the period of time required for the accrual of the prescription, such that no continuous ten- year period of non- use occurred. La. Civ. Code art. 764; Palace Properties, L.L.C., 839 So. 2d at 94. A predial servitude, such as a servitude uf passage, is preserved b3 the use made of it by anyone, even a stranger, if it is used as appertazning to the donninant estate. La. Civ. Code art, 757. The phrase " appertainin to ihe dominant estate" has been 3 The section of the Louisiana Civil Code dealing wiih pzedia' serviiudes w s revised, effective January 1, 1978. See 1977 La. Acts, No. 514, 1. Citations in this opinion are to the code articles after the revision. Unless otherwise indicated, the changes in the law do not affect the issues in this case. See Palace Properties, L.L. C. v. Sizeler Hanamond Square Ltd PaYtnership, 01- 2812 ( La. App. 1 Cir. 12/ 30/ 02), 839 So. 2d 82, 94 n. 16, wrir denied, 03- 0306 ( La. 4/ 4/ 03), 840 So. 2d 1219. 6 interpreted by this court as rec uzring that so e rie must use the servitude far the purpose of going onto the dom=n n estate for some legitimate purpose, either to see the owner or for something connected with the use of that property. See Dupont v. Hebert, Q6- 2334 ( La. App. 1 Cir. 2120,'! 8), 984 So. 2d 800, 806, writ denied, C1-( 2d at 1b40 ( I 94; Latour v. a. Sl9! 08), 984 S4. 2d 695; Palace Properties, . L-.(',, 839 So. Franczs, 417 S, So. 2d 983 ( La. 1982). La. Civ, Code art. 759. 2d 48. A partial us 4f's9 (. a. App 1 Cir., writ denied, 420 of a servitude constitutes use of the whole. Therefore, the use of a part of the area burdened with a predial servitude interrupts the prescription of nonuse as to the entire area. Dupont, 984 So. 2d at 806. A. Intent and Manner of Use of Servitude Claitor' s Realty first asserts that a summary judgment was inappropriate because Mr. Claitor' s intent in granting the servitude is a material fact at issue in the case. 4 Claitor' s Realty contends that Mr. Claitor' s purpose for granting the servitude is relevant for determining what uses are sufficient to interrupt the prescription of nonuse, and Mr. laitor' s affidavit establishes that he granted the servitude with the understanding that it would be used as a drive-through lane for a fast- food restaurant. Therefore, according to Claitor' s Realty, there " is a clear dispute between the parties as to vvhether the aileged assing of pedestrians over the [ s] ervitude constitutes `use' of the servitude." However, as explained hereinafter, the Civil Code articles governing prEdial servitudes permit evidence of the servitude' s purpose to determine its uses only if the servitude agreement does not identify the uses. A fact is material when iis existence or nonexistence map be essential to the plainYiffls cause of actian under the applicable theory of recovery, meaning that the fact potentially insures or precludes recovery, affects a litigant' s ultimate success, or determines the outcome of the legal dispute. Smith v. Du- Lady of the Lake Hosp., Inc., 93- 2512 ( La. 7/ Si94), 639 So. 2d 730, 751. r 7 Predial pertinent part, " Limless the t.r1 i mode of the its are adciress d in Article 705, which provides in servitudes of pas4° exercise shal reasonabfle u e of the be proE- des cafh: r i e, tia extent af Yhe right and the itable for th kind of r ffrc ant dozrii.r. es4 te." 1,. r ai lity necessary for i°a_ Code art. 7Q5, A.ccording to Article 74 3, `' If th tit e is sil aat as io the exten arrid mar er of use of the , ervitude, the intentio c f ti e part' es i is to be determi e l in 1. t f its pu ose." 5 A court should resort to an examination_of t ie nte t of the partie to determine the purpose of the servitude only if the title is silent as to the extent and manner of use of the servitude. Dupont, 984 So. 2d at 807. Doubt 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. Relying on Article 749, Claitor' s Realty argues that the servitude agreement is " silent" as to the " manner of use" of the servitude; so the intention of th.e parties must be determined " in light of its purpose." Claitor' s Realty claims that only the extent of the servitude ( its dimensions) and " mc de of its use" were set forth in the agreement, but " other specifics of how the [ s] ervitude was to be used, its limitations, and its purpose, were not stated." Although summary judgment is generally not appropriate to establish the intent of contracting parties, where the words of a contract are clear, explicit and lead to no absurd consequences, the meaning and intent of the parties must be sought within the four corners of the instr uliexit and cannot be explained or contradicted by parol evidence. Hayden v. Philli s. 94- 0130 (La, App, 1 Cir. 5 Article 749 is based on former Article 780, which provided tha2 if the titla " does not designate the servitude' s] breadth, nor the manr.er in which ; t is to be used," the court could consider evidenca af prior use of the ser itude area; or in the absence theXeof, the intention o£ the parties, and the purpose for which the servitude was granted. "1'herefore, both Article 749 and former Article 780 require that the title be silent as to the extent ( breadth) and manner of use of the servitude to permit evicience of the intenrion of the parties. See Haspital Service District[' o. 2 of Parish of Lafourche v. Cvmmunity Bank of Lgfourche, 00- 1035 ( La. App. 1 Cir. 6.i22/O1), 790 So. 2d 688, 693- 94, Wright v. Department ofHighways, 342 So. 2d 230; 232 ( I.a. App. 1 Cir. 1976), writderied, 343 So. 2d 1075 ( La. 19? 7). 8 11/ i0; 94), 6= fi 291; see o: appropriate. Civ, C'odF a. aeso . interpretation Za : C 14, 1G b, ¢ Sims v. ! art. contrae t is the of a- ra{ Ylulhea r 02 14 ( La. .i;2! 95), 651 So. 2d rders. - :$. nder .? tl ose carc mstances, the mat3er af l w and sumnnary judgment is Fisnera Hom, Iaz.=_, 07p00a4 I,a. 5i22i07), 956 So. 2d 583, 590. Clait r' I alr' s asser` ct:r;,. tktiat . ., a at' s l n, a t-,orizing use of ua the servitude by vehicles, animals. and pedestrians only identifies the servitude' s modes of use" and not its " manner of use" assumes a meaningful difference between those terms. We disagree. The terms " made" and " manner" are not widely used in this context in the Civil Code articles governing predial servitudes. The word " mode" appears once in Article 705, which is applicable to servitudes of passage and addresses the " extent of the right and the mode of its The exercise." word " manner" appears twice, first in Article 730, which provides that doubt as to the existence, extent or " manner of exercise" of a predial servitude is resolved in favor of the servient estate; and a second time in Article 749, which permits evidence of intent of the parties iff the title is silenY as to the extent and " manner of use" of the servitude. Although the current Ciwil Code does not define " mode" and manner" as used in these articles; the t. rms ; an be traced to the L uisiana Civil Code of 1870, v k+,ieh uszd them Anterch ngeab; r to pefer to uses of a servitude: Former Article ' 96 understood the arovidea, manner of ir part; using the " By io ie of servitude, in this case, is servitude as is pzescribed in this title." Thus, mode" was defined as the " rianner" of using the servitude: See also Black' s Law Dictionary (9`' ed. 009) ( defining "mode" as a " manner of doing sornething"). The present Civil Code makes numerous references to the " use" of a servitude without eapressing any significance or distinction as to the " manner" or mode" of use. See La. Civ. Code arts, 697 ( the " use" and extent of predial servitudes are regulated by title and relevant Civil Code articles), 728 ( the " use" of s a predial servitude may be limited to certain times), 743 ( rights necessary for the use" of the servitude are acqeairec ac t e time the se% articles, constxued in aYa mater icx wflth ztude is the uses absence c that are f any f i " man. riers r expressly , st mcavidl. suc a rovisi q use." These Articfles ? 0, ` 73Q and 749, d a not indicate that uses of a servit de snould be di, ided ir? sep rat o modes of uz;" estabIished). legal_ classifications of 1-he ha-ases are sy nar.xl briotis and describe d for _ by the. rel v t seriitude agreernent, ar in the 4 t" ivil Code artieles governing the use of servitudes. See La. Civ. Code arts. 13, 697, 705, 749. Therefore, the resolution of this assignment of error does not turn on a purported distinction between a mode of use and a manner of use. Instead, this assignment of error requires a determination of whether the servitude agreement is silent" as to its extent and use under Article 749, or whether the agreement provides otherwise" by identifying the extent and uses pursuant to Article 705. If the agreement is silent, then, and only then, does lb1r. Claitor' s intent concerning the purpose of the servitude become a material fact that is necessary to determine the pennitted uses of the servitude. T'l e servitude agreement created a " servztude of passage for, and use by, vehicles of all descriptions, animals and pedesu- ic ns, over and across" the Claitor parcel ( emphasis added). Claitor' s Realty doas not dispute that this language established a servitude of passage and that the agreement contains no limitations on the use of the servitude of passage. Any attempY to limit the right of passage only to vehicular traffic to reflect the " purpose" of the servztude under Article 749 cannot be reconciled with he express terms of the servatude agreement which extends the right to " pedestrians." The express terms of the aervitude agreement control the use the servitude. See La. Civ. Code art,. 697 and 705. Adapting the position advanced by Claitors Realty would require this coart to disregard the ward " pedestrian" used to identify one of the permissible uses of the servitude. io When a clause in a contract as l ar and uraa,7itaiguous, the l.etter of that clause should not be disregarded undea tlie j r tea of pursuin its spirat. Clovelly Oil Co., LLC v. Midstates Petroleum Cca., , LC', I2- 2055 I a. 3/ 19/ 13); 112 So. 3d 187, 192. Baaed upon he language of the servitude a re rnent creating a servitude of passage for use iby Yehicles, ani als, and peciestrians, we fi d ihat the servitude agreement " pr servitude by ides otherwis" pedestrians. and therefore i.s noi " silent" as to use of the See La. Civ. Cocie az t3. %05, 749; HarNis v. Darinn Corp., 431 So. 2d 441, 442- 443 nn. 4- 5 ( La. App. 1 Cir. 1983), writ denied, 435 So. 2d 429 ( La. 1983) ( servitude agreement providing that servitude was far vehicular traffic and/ or pedestrians" was not silent as to its manner of use). Our holding is also in accord with this court' s decision in Cate Properties, LLC v. Hepburn, 11- 0515 ( La. App. 1 Cir. l ll9/ 11), 2011 WL 5407898 unpublished), wherein the plaintiff asserted that a general servitude of passage had prescribed because it had not been used for the specific purpose intended by the grantors. The servitude agreement described the extent of the servitude and then generally described the right as a " predial right-of-way or servitude of passage" without further mention or description of its uses. Cate Properties, LLC, at 2. The servienY estate owners argued that the servrtude was established £ar Yhe purpose of removing timber from the dominant estate and was extinguished by the prescription of nonuse beca ase a ten-year perzod elapsed without a legally sufficient use af the servitude. In affirming a ummary audgment in fa or of the dominant estate owners, this court found: By the clear language of the agreeiment, the servitud is one of Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate. La. Civ.Code passage. Ann. art. restricted 705. or The title does not provide that the servitude is limited in any way. In particular, the title does not indicate that the servitude' s purpose is for use in removing timber from the Cate property during periodic logging operations, as suggested by the Hepburns. Rather, the title establishes a general Zi right of passage over [ the servient estatej in favar of the Cate ProPerh' ¢ Cate Properties, LLC, at 2. BasPd upon e idence ihat individuals had used the servitude for access to the dominant estat, this court. 'oand that Yhe servitude had been sufficiently used to p: ev nt its ex inguisYlmenz by ihe prescripti n of nonuse. Cate Proper.> ies; LLC`, at 3. The lang aage of the servitude a reemenx in this case p avides arz even more complete description of the serviYud' s intended use tnan the agreement in Cate Properties, LLC because it not only defines the physical extent of the servitude, but it also provides that the right to use the servitude is extended to " vehicles of all descriptions, The servitude agreement authorizes both animals and pedestrians." vehicular and pedestrian use and places no limitations on those uses. Claitor' s Realty primarily relies upon Palgrave v. Gros, 02-249 ( La. App. 5 Cir. 9/ 30/ 02), 829 So. 2d 579 (" Palgrave I1"), in support of its argument that the court must go beyond the terms of the agreement to identify the purpose of the servitude to determine whether it has been used in a manner that will interrupt the prescription Palgrave v. of nonuse. However, Palgrati e II and its predecessar opinion, Tallieu, 508 So. 2d 97, 98 ( La. App. 5 Cir. 1987) (" Palgrave I"), are factalally distinguishable because the original servitude agreement in that litigation failed to identify Yhe extent (physical dimensionsj of the servitude. The agreement under review in Palgrave I granted the Palgraves the " right to use Lot 1 Square 2 as a means of 98. ingress and egress to Bayou Barataria." Palgrave I, 508 So. 2d at Lot 1 bordered on Bayou Barataria, and the Palgraves needed access to the bayou for boat launching in connection with a contemplated shrimping and crabbing business. Palgrave I, 508 So. 2d at 98. Notably, the agreement made no attempt to idenYify the extent of the servitude creatad on Lot 1. The initial litigation arose after the o vner of Lot 1 sold the property to a third party who then iz to attempted prevent servitude was the P. p rsonal ( gr es frcjaaa asi.a iY. t issue was whather the rid nat vnfiaraeable a air st the new owner of Lot 1) or predial ( enfarcexl le against th n a vw aaer); an 3. th trial court held that the right was a prediai sert iY ade. Fad r c ¢ I, 4 8 Sv. " c at 99. The cQUrE of appeal ff' crn d anel4bse- ved that " che appealed-£ror i judgment does at specify the extert not 100 ( emphasis af the servitud granted . . . ." Palgrave I, 508 So. 2d Given the absence of a description of the size of the added). servitude, the court considered the intention of the parties inferred from the purpose of the servitude to conclude that the Palgraves were " entitled to a servitude sufficient to allow them to bring their boats in and out of Bayou Barataria . . . with the least possible inconvenience and disruprion" to the owners of the seraient estate. Palgrave I, 508 So. 2d at 100. The parties then entered a consent judgment that specifically described the servitude' s boundaries and provided that " additional space may be required near the road to back a trailered boat into" the servient estate. See Palgrave II, 829 So: 2d at 581. Because the servitude agreement was siient as to the extent of the servitude, the court in Palgrave I determined the purpose of the servitude in order to define its extent so that it would be the least burdensome for the servient estate. The admission of evidence of the purpose of the servitude under those circumstances is authorized by Article 749, Claitor' s Realxy does not dispute that the subject servitude agreement contains a detailed e escriptian of the exterat of the servitude throagh a legal description anc an attached piat. Therefore, PaZgrave I provides no support for the p sition that evidence of the purpose of the servitude in this case is admissible. The prescription of nonuse was addressed in the subsequent litigation in Palgrave II. After the passage of ten years, the owner of the servient estate filed a suit alleging that the servitude had prescribed due to nonuse. The court reviewed 13 the prior judgments that modified the terms of the servitude agreement and recognized that the resuiting agreement " granted the Palgraves the right of ingress and egress to the bayou and the right to bring their boats in and out of Bayou Barataria." algrave II, 29 So, 2d at 582- 233. Therefore, the " purpose of the $ servitude uas c allow tt e Pal x v s zngr ss and egress thrc ugh the property to bring their boat to Bayou individuals had zae" araYa P lgr^a II, 829 Sa 2d at 5& 4. lked acrr ss fne ervitud, the c; ourt lneld thaY, such Although ses were not sufficient to interrupt prescription without some attempt to bring a boat across the servitude to access the bayou. Palgrave II, 829 So. 2d at 584. The holding in Palgrave II was dictated by the terms of the servitude granted by the court in Palgrave I(a servitude " sufficient to allow [the Palgraves] to bring their boats in and out of Bayou Barataria"), and the ensuing consent judgment wherein the parties agreed that the servitude included " additional space [ as] may be required near the road to back a trailered boat into" the servient estate. See Palgrave I, 508 So. 2d at 100; Palgr ave II, 829 So. 2d at 581. These express terms identified that the purpose of the servitude was to pern it the Palgraves to launch their boats in the bayou. Consequently, any other u ses = ere not s ff cient to interrupt the prescriptioxi ofnonuse. In contrast, t ie servitude agreera7ent in this case does not suggest in any way that it was granted only for vehicular traffic or a fast-food restaurant drive-through lane. Rather, the agreement expre sly provides that the servitude is one of passage granted for use by " vehicles of all descriptions, animals and pedestrians." Neither Palgrave I nor Palgrave 7I support the use of evidence of the servitude' s purpose to eliminate a permitted use of a servitude when Yfiat use is clearly set forth in the servitude agreement. See La, C?v. Code arts: 697, 705, 749; Cate Properties; LLC, 2011 WLS4p7898 at 2. 14 In the a fnal argument laitor' s servitude, the tim language between th Yhe f pti reement l rkicle zs " iient" as to ihe intended uses of g re vision ,merely tracks the language c f passage in. fc rmer Article ; 22, , shich was in effect jitaade v as : x se*_-, y a ealry : l inzs t ha.rc used to define the s zvitud at hc tha 72, , 2 at d. a nczte distanctic ns betv een the Wkai1 d ihe sud iec± serc itude agreem nt, any similarity t vo d es not nega e xhe 1Fac tha xh.e subject agreezne t ici ntified both tbe extent of the servitude and its inYended use as a servitude of passage by vehicles of all descriptions, animals and pedestrians." If a more restrictive use was intended, the parties were obligated to express those restrictions in the agreement. See La. Civ. Code arts. 697 and 705. The subject servitude agreement establishes a servitude of passage that may be used by vehicles, animals, and pedestrians, The title is not silent as to the extent or the use of the servitude, so the court is not required to resort to the purpose of the servitude to identify the intended uses. Therefore, Mr. Claitor' s intent in granting the servitude is not a material fact that precludes the granting of summary judgment. This argunnent by Claitor' s Realty has no merit. B. Intent of Users of Servitude Claitor' s Realty also asserts that the intent of the users of the servitude is a factual issue and cites comrrient ( b) of Louisiana Civil Code article 757, which states that if one " passes over the land of another considering the way as pnblic, or as belonging to another estate, the owner of the dominant estate may not avail himself of the use thus made of the servitude in arder to prevent the running of prescription." La. Civ. Code art. 757, Official Revi. sion Comments ( b). Claitor' s Realty contends that the court must determine " the intent of any third party that 6 Article 722 of the I870 Louisiana Civil Code provided, in pertinent part, " The right of passage, or of way, is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, on horseback, or in a vehicle, to drive beasts of burden or carts througli the estate of another." 15 walked across the [ s] ex-vituda, and why tihsy did it and what they thought at the time." The comment cited to rticle 757 is based upon former Louisiana Civil Code article 794, repealed : n 19? 7 and xeplaced by Article 75i, which now provides that a predial even a strange. r, i.f it is sarvitude useci as is '` resers- d y th use mac e apperfairding tca th dominant es f it by anyone, te." As previously noted, the phrase " appertaining ta the doniinant estate" has been consistently interpxeted by this court to mean that someone must use the servitude for the purpose of going onto the dominant estate far some legitimate purpose, either to see the owner for something or connected with the use of that property. See Dupont, 984 So. 2d at 806; Palace Properties, L.L.C., 839 So. 2d at 94; Latour, 417 So. 2d at 489. The evidence presented by Brooks established that a number of individuals, including Brooks, have used the servitude on rnultiple occasions to access the Brooks parcel for legitimate purposes connected with the use of that property, including inspecting, surveying, appraising, maintaining and marketing the property. Third parties also used the servitude to pass to and from the Brooks parceL Claitor' s Realty presented no evidence to contradi.ct these u es. All of these uses are sufficiently " appertaining to the dominant estate" to satisfy the requirements of Article 757 without any fi.trther determination of the intent of the users. See Cate Praperties, LLC, 2011 WL5407898 at 3 ( servitude was sufficiently used to prevent its extinguishinent by prescription of nonuse where individuals used the servitude for access ta the d'or iinant estate); Palc ce Properties, L.L. C,, 839 So. 2d at 95- 96 ( real estate broker ar d developer' s' use of servitude of passage to access dominant estate for purposes bf inspecting, listing, and marketing the property, all of which were directly conr ected to the property, appertained to the dominant estate and interrupted prESCriptipn). 1 This argument also lacks merit. C. Brooks' C redibility Cl itc r' 1 o aity ler cha es F3roc k. s' ; red'abilitv and argues that a summary jud rien sho. ld ri t ha- e 1 een ran ed i sed : pon the " self-serving" statements ira l, i t 6/ 25,'f34}, t 76 5. ' with an " uniasaaz presented 64. situation" his " own negligence . . . layYt. catsa i: ac ;, vex. a vhere ia I acoxc z.>sE: h? zne.: ; G^ s rea- i ,>; r. a d i nd ait zraoi r self serving testinnony to C zr ett, 04- Ob06 ( La. rc - as r or.£ ronted for s zmncar overcome judgment a presumption of but that testimony also contain[ ed] significant discrepaneies which would logically be considered by a fact-finder in determining his credibility and in weighing the evidence." Hines, 876 So. 2d at 768. Under those circumstances, the court held that the general rule that a court must accept an a ant' s testimony or affidavit as credible on a motion for summary judgment is not appropriate. Hines, 876 So. 2d at 768- 69. Claitor' s Realty has not identified any significan.t discrepancies in Brooks' affidavit or deposition testimony. Brooks did state, in his deposition and affidavit that he once used the servitude to access his parcel by vehicle, specifying in his affidavit that the area accessed was the " northeast corner" of the property. A video of that event revealed a very limited accessing of that portion of the property when Brooks drove his vehicle onto a sYde hill that apparently could not be crested. Nevertheless, the vehicle did, to that limited degree, " access" the northeast corner of the property, Regardless of whether the video offers any proof o F a use of Yhe servitude sufficient to intemzpt prese.ripti n, i i does not reveal a " significant discrepancy" in Brooks' testimony. We further note that Brooks offered other uncontradicted eviderace of the use of the servitiude that was set forth in affida its from a m nager of the service station, a grot ndskeeper, and Brooks' attorney firc m priar litigation involving the i parcel. The trial court diu nat err in b sing the sunlmary j udgment on Brooks' affidavit and the other evidence suhrnitted in sup ort thereaf. Prescription of Particular Mode ot' L' e s D. Ir a finai alternati e argument; Claitor s Realty asserts that the pa ticular use of the sezvituae for vehicular *xaffie h s prescribed arad r lies upon former rtiele 79 Louisiana Civil Code which provided that a mode of; sing a servitude could prescribe by nonuse, and former Article 798, which stated that if an owner enjoyed a right Iess extensive than is given him by his title, the servituae . . . is redueed to Y,k at which is presezved by possession during the time necessary to establish prescription." 1978 by 428, 436 Ac n. Both of those articles were re ealed ef£ ective January l, 1977, Na 5 14. See Continental Group., Inc. v. Allison, 404 So. 2d 2 ( La. 1981) ( on rehearing), cert. denied, 456 U.S. 906, 102 S. Ct. 1753, 72 L. Ed. 2d 1 63 ( 1982). The substance of former Article 796 was not reproduced in any current article following the 1977 revision; and the partial use of a servitude, addressed in former Article 798, is now governed by Article 759, which contradicts the former article by providing that a " partial use of the servitude constitutes use of the whole." The servitude in the present case was esta+lished on Clctober 16, 1968, 50 the minimum ten-year period of nonuse endeci on October 169 i9?83 approximately ten months after the repeal of Articles 796 nd 79. Given that the articles vere not in effact on Ocfober 1 6; 1y78, they have no applYCation to the loss of any rights by the prescription of rionuse on or after that' date. accruin For these same reasons, the reliance by ClaiTor' c Realty on the holding in Contanental G oup., Inc. 7 See Louisiana Civil Code, Book II, Disposition Table. See also La. Civ. Code art. 759, Comments ( a)-( c); and La. Civ. Code art. Fs (" Laws are repealed, either entirely or partially, by other laws. A repeal may be express or implied. It is express when it is literally declared by a subsequeni law. It is implied when the new law contains provisions that are contrary to, or irreconcilable with, those ofthe former law..."); La. R. S. 24: 176. 18 is misplaced hec use the court t} erein was a nplying the law " in effect when the servitude was rnade irf 1956, arcaF v t r: the z faf Zv st zp- mlrze for lignite under said servitude pr` sVribect i e and 1466," w d ch ovas well before tlie repeal Af Articles 796 SQ 2d 4 798. See; C' vntinent zi Grr up; f.+:.; 4 Claztr support r' s for it l eaPty claitn t a c9:te that a S c ffa i i rki.cular " mc 35 lem hasi: adde), a emrnents fo: ,. r ic, e 759 as revisi n da" <> use can terminate, independently of other uses, by ten years of nonuse eZen a ter the ]. 977 repeal of former Article 798. The cited comments contain no support for that assertion. The comments begin with the statement that the article " is new" and " changes the law but accords in part with Louisiana jurisprudence." La. Civ. Code art. 759, Comment ( a). The ensuing comments explain the history of former Article 798 and its interpretation in the jurisprudence. The explanation contains no suggestion that a particular mode of use is subject to prescription after the repeal of former Article 798. Absent a contrary provision in the title creating the servitude, the concept of prescription of a mode of use ended an Louisiana with the repeal of Articles 796 axid 79 effe ctive January 1, 1978. This conclusion is fixrth r supported by the language of current Article 759, which mandates that a partiai use of a servitude constitutes use of the whole servitude. As explained by Professor A. N. Yiannopoulos: According to Article 759 of the Louisiana Civil Code, a partial use of a servitude " constitutes use of the whole." This provision is an application of the principle of indivisibility of predial servitudes and the maxim servitus per partem retinetur [ servitude by part retained]. Therefore, the use of a part of the area burdened with a predial servitude interrupts the prescription of nonuse as to the entire area, and the use of the servitude in any manner interrt pts the prescription ofnonuse as to all manners pf use. 4 La. Civ. h L. Treatise, Prediad Servitudes § 8.$ ( 4` emphasis added). ed.) ( footnotes omitted and In reco8nitic n that this was a change in the law produced by the 1977 revision, Proiessor Yiannopoulos continued the above explanatian by noYing, 19 The law] i as atherwise u.nder the regime csf tih L,c uisiana Civil Code of 1870," referencing zepealed Arkicies ? 96 and 798 The cg zrxaent that the v h?cular use of the servitude prescribed by noniese has no meri.t.R COl\iCLIJSION For these reasons, we arfrm the October 8, 2 12 judgment of trial court judgment z granting summary Claitor' s Realty , with prejudice. favor of Bre,oks a d dismissing the claims of Costs of this appeal are assessed to Claitor' s Realry. AFFIRMED. 8 We recognize that parties may contractually limit a servitude to an exclusive use and assign a period of time for the exerc se of that use. See La. Civ. Code arts. 697, 705, and 749; Ashland Oil Co., Inc. v. Palo Alto; Inc., 615 So. 2d 971, 974 ( La. App. 1 Cir. 1993) ( pipeline servitude agreement provided exclusive ase of servitude as transportation of carbon dioxide and that servitude would terminate i not used for a period of twelve consecutive months). 20

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