Gregory Scot Himel and Todd P. Gautreau VS Thomas Bourque, Sr., Thomas Bourque, Jr. and Ascension Parish Public Works Department

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2014 CA 1811 GREGORY SCOT HIMEL AND TODD P. GAUTREAU VERSUS THOMAS BOURQUE, SR., THOMAS BOURQUE, JR. AND ASCENSION PARISH PUBLIC WORKS DEPARTMENT DEC 11 2015 Judgment Rendered: f APPEALED FROM THE TWENTY THIRD JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ASCENSION STATE OF LOUISIANA DOCKET NUMBER 109, 017, DIVISION - D- HONORABLE JESSIE LEBLANC, JUDGE Attorneys for Plaintiffs /Appellants Donnie L. Floyd Prairieville, Louisiana Gregory Scot Himel and and Todd P. Gautreau Gregory Webb Baton Rouge, Louisiana Attorneys for Defendant / Appellees Erin Wiley Lanoux Robert Ryland Percy, III Matthew Ian Percy Thomas Bourque, Sr., and Thomas Bourque, Jr. Gonzales, Louisiana O' Neil Parenton Attorney for Defendant /Appellee Gonzales, Louisiana Ascension Parish Public Works Department BEFORE: Ni r, /- PETTIGREW, McDONALD, McCLENDON, WELCH, AND THERIOT, 73. L i. 5 WP/,- 7t// McDONALD, J. This is an appeal from a judgment declaring a predial servitude to have been dedicated to public use and granting a landowner full access to his property from that predial servitude. For the following reasons, we amend the judgment in part and affirm. FACTUAL AND PROCEDURAL BACKGROUND In 1992, owners of unimproved property in Ascension Parish, Louisiana, executed an agreement to establish a forty foot wide servitude of passage basically running north -south from Louisiana Highway 74, consisting in relevant part of "the east twenty ( 20) feet of Lots 1, 2, and 3[,] and the west twenty ( 20) feet of Tract A, and running] to the north boundary of Tract A and [ Lot 3,]" as shown on an attached survey plan ( the 1992 servitude). Sometime in 1994, the then owners on either side of the servitude shared the cost to put in a gravel road, and in 1999 or 2000, at the owners' request, Ascension Parish paved the road. However, the paved portion of the servitude, now known as Hanson Road, does not extend the full length of the 1992 servitude; that is, it begins at Highway 74 and runs north, but stops short of what was described in the 1992 servitude agreement as " the north boundary of Tract A and [ Lot] 3. 111 Todd Gautreau currently owns Lot 3 on the west side of the 1992 servitude, and Gregory Scot Himel currently owns the northernmost two lots of Tract A on the east side of the 1992 servitude. The Gautreau and Himel properties are bounded on the north by property owned by Thomas Bourque, Sr. As stated, Hanson Road is paved to a point just past the Gautreau and Himel driveways, but it dead ends there, and does not extend all the way to the boundary line separating the Gautreau and Himel properties from the Bourque property. The respective properties and Hanson Road are depicted on an Ascension Parish Assessor's map, Joint Exhibit 3- 13, an enlarged partial copy of which is attached to this opinion as Appendix A. The exact lengths of the paved and unpaved portions of the 1992 servitude are not clearly established by the record. The numerous maps submitted as joint exhibits by the parties show conflicting measurements, and a finding of the exact length of the paved and unpaved portions is not necessary for resolution of the issues in this appeal. 2 In December 2013, Mr. Bourque, Sr. contacted several officials in Ascension Parish regarding his desire to use the ' Hanson Road servitude" to access the southern portion of his property, that part contiguous to the Gautreau and Himel properties. He explained that the southern portion of his property was isolated from the remainder of his acreage by Bayou Narcisse and that the bridge formerly used to cross the bayou had become unusable from disrepair. Mr. Bourque, Sr. was advised to submit an application to install culvert pipes in a ditch so that he could access Hanson Road, and an Ascension Parish drainage engineer later provided him the specifications for the appropriate materials to use. In early January 2014, Messrs. Gautreau and Himel filed a petition for injunctive relief and damages against Mr. Bourque, Sr.; his son, Thomas Bourque, Jr.; and the Ascension Parish Public Works Department, Hanson Road beyond its current paved portion. seeking to prohibit the construction of In late January 2014, Messrs. Gautreau and Himel had a map drawn up for the purpose of seeking a revocation of the last forty feet of the 1992 servitude, the most northernmost portion of the servitude contiguous to the shared border among the Gautreau, Himel, and Bourque properties. the pending litigation, Ascension Parish officials took no action on the Because of revocation request. The Bourques answered the suit and later filed a reconventional demand against Messrs. Gautreau and Himel, seeking declaratory relief regarding their rights to access the 1992 servitude and /or Hanson Road and for damages. The record contains no answer filed by the Ascension Parish Public Works Department. to a bench trial, The matter proceeded where the parties jointly introduced several exhibits, a list of established facts, and witness testimony. At trial, the parties also agreed to dismiss all claims against Thomas Bourque, Jr. and any claims for damages. At the conclusion of the trial, the trial court took the matter under advisement. On July 18, 2014, the trial court signed a judgment in the Bourques' favor, declaring that: ( 1) Hanson Road is a public road; ( 2) the forty foot right of way shown on a 2009 map signed by Mr. Himel was dedicated to the public; ( 3) the forty foot right of way extends from Highway 74 to the northern property boundary of Gautreau and 3 Himel, which is contiguous with the southern property boundary of Thomas Bourque, Sr.; ( 4) the right of way has not lost its status as a public road by virtue of nonuse; ( 5) there has been no clear evidence of intent to abandon the right of way from the end of the paved portion of Hanson Road to the property line; and ( 6) Thomas Bourque, Sr., and all future owners of the tract at issue herein shall have free, full, and uninterrupted access to their property from Hanson Road. Messrs. Gautreau and Himel appeal from the adverse judgment, generally challenging the trial court's determinations regarding the proper characterization of the 1992 servitude and /or Hanson Road as public rights of way. Although we do not address each assignment of error individually, this opinion adequately disposes of all issues raised. See Pike v. National Union Fire Insurance Company, 00 -1235 ( La. App. 1 Cir. 6/ 22/ 01), 796 So. 2d 696, 698 n. 6. DISCUSSION The dedication of property for public use may be accomplished in four ways: statutory dedication, formal dedication, implied dedication, and tacit dedication. Stonegate Homeowners Civic Assn. See v. City of Baton Rouge / Parish of East Baton Rouge, 01 -2883 ( La. App. 1 Cir. 12/ 20/ 02), 836 So. 2d 440, 443, writ denied, 03 -0786 ( La. 5/ 9/ 03), 843 So. 2d 407 -08; Melancon v. Giglio, 96 -2507 ( La. App. 1 Cir. 3/ 13/ 98), 712 So. 2d 535, 539. The trial court determined that the entirety of the 1992 servitude was statutorily dedicated. We conclude the trial court erred in making this classification, and we instead conclude that the entirety of the 1992 servitude has been tacitly dedicated as a public road. This distinction is noteworthy because the classification of a dedicated road determines its ownership — that is, generally, a statutory dedication vests ownership of the land under the streets in the public, whereas a tacit dedication creates a servitude of passage in favor of the public, but the ownership of the land remains with the adjoining landowners. See generally, A. N. Yiannopoulos, 2 Louisiana Civil Law Treatise, Property, Ch. 6. Dedication to Public Use: Highways, Roads, and Streets ( 4th ed. Oct 2014). dedication issue first. 4 We dispose of the statutory A statutory dedication requires compliance imposes on subdividers of land certain duties, with LSA -R. S. which including the filing of plats and the recordation of a formal dedication of all the streets to public use. So. 2d at 539. 33: 5051, Melancon, 712 A statutory dedication vests ownership of the land under the streets in the public, unless the subdivider indicates otherwise. Id. The intent to dedicate a street is generally presumed from the act of filing a subdivision plat containing public dedication language. So. 2d 1174, 1178. Cavaness v. Norton, 96 -1411 ( La. App. 1 Cir. 5/ 9/ 97), However, the plat must be given a rational construction. 6444 Associates, L. L. C. v. City of Baton Rouge, 02 -1779 ( La. App. 1 Cir. 5/ 9/ 03), So. 2d 1169, 1172, writ denied, 03 -2681 ( La. 12/ 12/ 03), 860 So. 2d 1164. 694 851 When a rational construction negates the intent of the subdividing landowner, the fact that a reference to a street appears on a map does not, of itself, effect a dedication of that street to public use. Id. The trial court determined the entire length of the 1992 servitude was statutorily dedicated by Mr. Himel in 2009 when he purchased a tract of land from Mark Gonzales adjacent to his existing lots on Hanson Road. At the time of the 2009 purchase, a map signed by Messrs. Himel and Gonzales was submitted to Ascension Parish authorities for approval. The map clearly showed the north end of the servitude for Hanson Road extending all the way to the northern boundary line of the Gautreau and Himel properties. The map also included public dedication language stating, "[ t] he street[ s] and rights of way shown hereon, if not previously dedicated are hereby dedicated to the perpetual use of the public for proper purposes." However, the evidence indicates that Mr. Gonzales was not developing a subdivision when he sold the tract of land to Mr. Himel. The 2009 map was prepared for the limited purpose of the sale between Messrs. Himel and Gonzales for land that did not border Hanson Road nor the 1992 servitude. The statutory requirement that a landowner dedicate all streets or alleys between the lots he sells does not necessarily contemplate that a bordering, existing right of way or street is part of that dedication. See Pioneer Production Corporation v. Segraves, 340 So. 2d 270, 274 ( La. 1976). Further, the 2009 map does not show the entire length of Hanson Road, 5 nor does it contain Mr. Gautreau' s signature, a part owner of property underlying the 1992 servitude, nor the signatures of any of the other residents whose property bordered Hanson Road. Also, the dedication statement on the 2009 map applies only to streets or rights of way " dedicated" not previously dedicated." The 1992 servitude was " previously by virtue of the 1992 servitude agreement. The fact that the property at issue was the subject of the 1992 pre- existing conventional servitude is an indication that the 2009 map did not effect a statutory dedication of that property. See Pioneer Production Corporation, 340 So. 2d at 276; 6444 Associates, L. L. C., 851 So. 2d at 1172. Thus, the inclusion on the 2009 map of the dedication language, as required by LSA -R. S. 33: 5051, does not persuade us that the 1992 servitude or the paved portion of Hanson Road was a part of the dedicated property. Rationally construing the 2009 map, we conclude the partial appearance of the 1992 servitude and Hanson Road on that map, as merely a bordering, existing road, which was not the subject of the Gonzales /Himel sale, did not effect a statutory dedication of either. The trial court erred in concluding otherwise. However, our inquiry does not end with a finding that no statutory dedication occurred. The formation of a public road may occur via tacit dedication under LSA -R. S. 48: 491, which provides, in pertinent part: 13)( 1)( a) All roads and streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority within its parish ... shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property. A two- pronged burden of proof exists under LSA -R. S. 48: 491. First, it must be shown that there has been sufficient maintenance; second, it must be shown that the landowner had knowledge of or acquiesced in the public maintenance. Williams, 582 So. 2d 975, 977 ( La. App. 1 Cir. 1991). Moret v. Tacit dedication does not require intent of the landowner to dedicate the property when there has been sufficient maintenance without protest. Lincoln Parish Police Jury v. Davis, 21, 392, 21, 393 La. App. 2 Cir. 1990), 559 So. 2d 935, 939. The underlying rationale of LSA -R. S. 48: 491 C, is protection of the public fisc, guarding against the use of public monies for the benefit of private landowners. Moret, 582 So. 2d at 977. Thus, if landowners accept public maintenance of the road upon which they live without protest, then they cannot protest the characterization of that road as public. It is undisputed that, when the ancestors in title to Messrs. Gautreau and Himel created the 1992 servitude, they intended that it extend all the way to the Bourque property line, as is shown on the map attached to the 1992 agreement. 2 And, in 1993, when a part of Tract A was sold, the map attached to that act of sale also showed the servitude extending all the way to the Bourque property line. Gautreau bought his property in 1994, servitude. 3 However, when Mr. there was no road yet built on the 1992 He and the other owners on either side of the 1992 servitude shared the cost to put down the gravel road that stops short of the north end of the 1992 In May of 1999, pursuant to the landowners' request, Ascension Parish servitude. accepted " Hanson Road" into its parish road maintenance system as Road Number 4820. 4 And, in 1999 or 2000, Ascension Parish paved the gravel road with asphalt. So, not only did the property owners acquiesce in the public maintenance of Hanson Road, they actually requested it. Regarding the extent of Ascension Parish' s maintenance of Hanson Road, the evidence shows that such did occur in excess of the three -year period required by LSAR. S. 48: 491. For example, as early as 1993 and 1994, Ascension Parish maintenance records show it set or moved culverts along Hanson Road on more than one occasion; in 1998 and 1999, Ascension Parish removed a tree and cut a " cross ditch" at Mr. Gautreau' s request; as earlier stated, in 1999 or 2000, Ascension Parish paved Hanson Road; in 2000, Ascension Parish installed signage on Hanson Road; and, in 2001, 2 The 1992 servitude is a conventional predial servitude of passage. LSA -C. C. arts. 654, 699, 705. The use and extent of such servitudes are regulated by the title by which they are created. LSA -C. C. art. 697. 3 Also, Joint Exhibit J -33, a quitclaim deed executed in 1998 for a lot on the right side of Hanson Road, includes a 1993 map showing Hanson Road extending all the way to the Gautreau /Himel property lines. Joint Exhibits J -5, a 2005 map made for the purpose of subdividing Lot 2 on the left side of the 1992 servitude, also shows Hanson Road extending to the northern boundary of Mr. Gautreau's property line. 4 Handwritten notes on the meeting minutes at which the acceptance was made indicate Hanson Road was 1150 feet long, whereas a parish road list and a road inventory also admitted into evidence indicates Hanson Road is 1143 feet long. And, in discovery responses, Ascension Parish stated that it " has accepted the black top portion of Hanson Road into [ its] maintenance system." 7 Ascension Parish approved a culvert installation permit for the property owned by Randy Walker and located at 13074 Hanson Road. Although Messrs. Himel and Gautreau concede that the paved portion of Hanson Road is a public road, they argue that the unpaved portion is not. Mr. Gautreau, Mr. Himel, Mrs. Tracy Himel, and Pamela Ray, a resident at the southern end of Hanson Road, deny ever seeing anyone use the unpaved portion of the servitude. On the other hand, the record contains admissions by Ascension Parish showing that it has used " the unimproved portion of Hanson Road" to access and clean a drainage servitude located between the Bourque property and the Gautreau /Himel property, and that Ascension Parish crews have crossed " the several hundred feet of property that lies between the end of the paved portion of Hanson Road and the [ s] outhern boundary of Mr. Bourque' s property" to access that drainage servitude at least since 2004. As corroboration, Mr. Thomas Bourque, Jr. testified that he has personally seen Ascension Parish personnel drive beyond the paved portion of Hanson Road down to the drainage ditch. Further, Mr. Bourque, Sr., as well as his two sons, Thomas, Jr. and Travis, testified that, ever since Hanson Road was only a gravel road ( before 1999 or 2000), and until access to the unpaved portion was roped off in 2013 or 2014, they had regularly driven onto the unimproved portion of the servitude, " up to the ditch," to check the southern boundary of Mr. Bourque Sr.' s property. And, notwithstanding use of the unpaved portion, use of the paved portion of Hanson Road is sufficient to preserve the entire 1992 servitude. A tacit dedication of a road creates a predial servitude of passage in favor of the public. See Melancon, 712 So. 2d at 539, citin A. N. Yiannopoulos, 2 Louisiana Civil Law Treatise, Property, § 100 220 ( 3rd ed. 1991). A partial use of a servitude constitutes use of the whole. art. 759. at LSA -C. C. Thus, the fact that the Gautreaus and Himels, as well as other Hanson Road residents, regularly use the road to access their respective properties is alone sufficient to preserve the entire 1992 servitude. See Lincoln Parish Police Jury, 559 So. 2d at 940 ( the public status of a road is not lost by prescription when parties to the suit use the road for access to their property). Based on our de novo review of the record, we conclude that the above evidence 8 proves that there has been sufficient maintenance of Hanson Road by Ascension Parish for a period of at least three years and that the adjoining landowners had direct knowledge of and acquiesced to this public maintenance without protest. Such evidence fulfills the requirements of LSA -R. S. 48: 491 and supports the conclusion that a tacit dedication of Hanson Road has occurred. Thus, by virtue of this tacit dedication, a servitude of passage and utility has been created in favor of the public over Hanson Road. Further, because the servitude of passage is a predial servitude, and because partial use of a servitude constitutes use of the whole, we find the evidence also proves that the tacit dedication includes the entire servitude of passage originally created in the 1992 servitude, that being a forty foot wide servitude running from Highway 74 all the way to the northern property boundaries of Messrs. Gautreau and Himel, which boundary separates their properties from that property to the north owned by Mr. Bourque, Sr. 5 CONCLUSION For the foregoing reasons, we amend the July 18, 2014 judgment to read: IT IS ORDERED, ADJUDGED AND DECREED that Hanson Road is a public road that extends from Highway 74 to the northernmost boundaries of the properties currently owned by Todd Gautreau and Gregory Scot Himel, by virtue of a tacit dedication under LSA -R. S. 48: 491. This tacit dedication created a servitude of passage in favor of the public, which affects the forty -oot strip of property as originally f described in the October 10, 1992 Servitude of Passage, known to the parties as Joint Exhibit 3- 1, and attached to this opinion as Appendix B. In all other respects, the July 18, 2014 judgment is affirmed. Costs of this appeal are assessed to Todd Gautreau and Gregory Scot Himel. AMENDED, AND AS AMENDED, AFFIRMED. 5 Because we conclude that the entirety of the 1992 servitude was tacitly dedicated to public use, we pretermit consideration of whether Mr. Bourque's property is an " enclosed estate" entitled to a right of passage under LSA -C. C. art. 689. 9 APPENDIX A O vst n+ rn. z x ouvuirst l ga. .. — - , . li ig 0 aNrt tur br• P AM39W v3tttnro U, M. too Z V Y ihlYl' Y S3'JYDJ00 li VaRvM t 0?v ou bNYtT 7 7 6 i NY12 T r b vYresr b .; 3 x 40001' • N nv3ucnr f NYwtlON p' M : s M R. F t s R 5t It 17 R n L aa© x d EllEll 1313 EQ1131131=EQ1131131= n J-1 4 TCN' Y. t MJ9 v rrsa YNI AULK" wkosA v u T Nf1 0 ?73S1!ld f3. N3 2 led APPENDIX B TILED IN EVIDEN:CE JU % 1 L 01 S DYC E KOF ASCENSION 2914 JA Y - - Bp 9' 3 0 9 • 1 2- ri?lnal Signed by y- n • PA Ck SERVITUDE OF PASSAGE OCT. STATE OF LOUISIANA PARISH 01 ASCENSION 2. 1 zZ ' 9Z ri), a KNOW ALL MEN UY T11ES1 PRESENTS That: ANGELA.- BLIZAVITA LEBLANC CAVEREAU, Born LaUlunc, what dualitrod. that married ona. time and then to Troy Cautroau, with W hom sh; is. oho had be= I:LV: LnS and residing in the Perish of Ascension, whosa permanent inailits addras is declared to ba.40337 Lolls Road, Gonzales, Louisiana 70737 I LISA MARIE LEBLANC OUPLESSIS, bocit LeAlane, who declared that* 4ha has i been married. one time And then to Clark J. Duplessis, with whom she is living i and residing in the Pariah of Ascension, whose permanent mailing addradd in declared to be 41245 Cannon Road, Gonzales, Louisinnsx 70737 PUAaWN LEBLANC LAYNAX, borax LeBlanc, who declared that she has been married one. time And then to WiLliam Layman, with whom she is living and re- siding in the Parish of JolVerson, whose permanent mailing address La, declared co be 163 Mods Lane, River %IdBa, Louinjanp 70123 EAU J. LEBLANC, married to and living with Letters. Want Lalana, borax wost, a resident of the Parish of Ascension. whose permanent mailing ad dress I z", is dolriid to be 39508 Hwy. 74, Gonzales. Louisiana 70737 XtM JOUN LEBLANC, formerly married to Angola Schaponaydor, from whom be to divorced; it resident of the P& Tlxh of A3cansidn, whose permanent mailing address In declared to -be 39089 11wy. 74, Gonzales, Louisiana 70737 WlTt(• SSZTI(: WHEREAS, the first thm-named appearers tire the owners of th a: proper- tied designated as Lois 1, 2 and 3 on the plan of survey prepared by John P. Fazl* 3, 111, Registered Civil Engineer, dated May 9, 1996, and caviadd May 18, 1992, 4 copy 61 which is annexed hereto and made part hereof, and which plan of 9UrVQY shown a rwonty- foot narvltuda of passage lying on the cast aid.* of said Lots 1, 2 and 3, And WHEREAS, Kenny John LeBlanc S.a the owner of Tract D, An shown. on said Plait of survey, which ahowa a servitude of passage of forty feet at the A* Uth- iant corner of said Lot D and going in a northerly direction cc curve. into Lot I referred to above And 40 UhOWA on 44111 plait of survey, And WHEREAS, Earl J. LeBlanc in the owner of Tract A an Ahown on said plan of survey rhowilig a cwantY- toot servituda of pagao4go an the went side of said Lot At and also a servitude of passage over the axorthwast corner of Tract C as shown on said plan of aurvaty, and WIIERPAS, the pa3; tLcu doaira to establish a aarvicud4 of p4anit go from Louisiana Highway. 74 to establish atec4a; to Lots Is 21 and 3 from chc publle road, 4.. and a AR SH 4t... .,. ... . 0 a.. • t•.. .. o.• a• nv..+...... v +.vc. v /.Y tom•!: /. 6:: 7J' L'C ?!. ....... a. aSa Y! i• i...t.: V!• i 4'9 rnrn I WHEREAS, the survey demonetrataa the viahaa of appcarara, I NOW, THEN, the said pnrtiea do hereby create a sorvitudo of paapaga I at the propercies of the appoarare as show on the plan of survey and Mora i i rticularly duacribod an follows: A certain utrip or land situated in tha parish of Asconnian, in tho utheast quaoter of Cho Soutlicaut quarter of Section li, T&wnahip 9 Soutb, aga 3 East, Southanatom District of louisiano), and morn particularly do- i tribal as commencing at the southoaac corner of Tract D an: uhown on Maid plan of survey, then measures vast a distance of forty ( 40) feet, ehon NOrttt to the north boundary of Tract D. curving to Cho East to continuo the forty- foot ± Mervicu4a antoring Lot 1 referred to above and the nortiwa4t turner CC Tract i C refacced to above, and continuing on a forty " foot acrvitudo consisting of ! the aast twenty ( 20) foot of Lots 1, 2 and 3 and the vast taonty ( 20) to of Tract A to the north boundary of Tract A and Tract 3 as shove on said plan; of survey. s IT IS AGIIEED by Cho appeasers heroin that Cho proporciea acquired by them referred to in this act are thou*. proporCioa aoquircd In tho Act of Tarcition among Eorl J. LeBlanc At al recorded May 4, 1976 : in C. O. B. 276, ; i the 0141670 and in the Act of Exchange among ? lrs. Magdalen Tcmplat Laalmne ' i of &Is and Kenny John LaBlanc rocordod October 6, 1983 in C. 0- D. 364, file } 0105525, which aata are incorporated heroin by roforanco, as well as the plan; of survey prepared by 11ollis E. Rushing. RagiMtorad Land Survayor datod April 3, 1976, a copy of which is Annexed to the Act of Partition recorded in C. O. B. 276, i file 0141670. Tha parties further declare that the servitude of paosago created heroin for the respective use of tho properties harainabove described is j predial in nature and binding upon their hairs, suceosuorsiand assigns. IN WITNESS WHEREOF Anggla Elizabath LoElcue Cautraau has affixed her signature on the / 006 day of ja& jWU ^, 1992; Lisa Movie LeBlanc j I Duplesais. hoc affixed bar signature on the zg X day of , 1992• Sharon. LeBlaac Layman has affixed her signature on Cho /()* oCr-0 1G( f 1992; q[, on the & day of rJtO affixed his signature on the presence of the undersigned t4_day 1 i Earl J. LoBlana lima affixed his signotura 0- r/- , 1992, and Kenny John. LnBlanc has 1day of ©Ei) p e-r 1992, in the competent witnasaas. 11 r ff. i 695 4 u• L 47 ` Clark J craau, ' Duple is Caueraau. r r- Sr. Hieneases: argy . y uaucoau, 4 i wienasaas: s vt f ar. R r.YGAi: .: W: d: v. lN •': K. rid.flll: 150. tM : 1 \' x' I A t./+.•. waa.....a: v. • o +•.n.• aur.voNh .. l: \'. tvt..'/.:. D t w4 w. 1 Wj STATE OF LOUISIANA 4P PARISH OF ASCENSION 4 I DEFORE W., the undersigned Authority. personally came And oppoerod: . CLARK J. to me personally known to ba qho identical nUPLUM _ , person whose name to subscribed to the foregoing instrument Al am attesting ; l Thac he subscribed ! iwicnoas,• who being first duly sworn on his oath says: his name to the foregoing instrument as x witness, and brat he knows rho appaarers wba have signed said instrumanc to be the identical persons , rho axe i eutsd' the some And saw them sign the Saint- AS their voluntary acts and doads, r land that fie, I` Clark . T. subscribed his name to , nuslassia , the some at the time as an attasting witness. I 4 the said Sworn t to and subscribed before me, V this 1 1992. day of f1 ay Nocnzy Rublie Su7c or lsaL:: a, forth 41 tr„ lon• n: I dD hJt: • V1r'y t,:14tt :' ` yp I" lotL7 1 4]5 retdr .,d. gild tad ntorded In Dock e:^ ro. 7••-- oflo No. Y of 11. S ROMiHE OR'I'GI'NALOHFILETrs, Zgth M9 _ 2 1 KERMIT N RT 90UR9U gHSIOH TR E PPYY JJA J'__ 7( OUty erk Re' rder ASGEN IAN PARIS.H f' 1 4. Y"! i44 E3`'£ t Y arn5 a C Q tilt triesz EARLES & ASSOCIATES i i L oonsales, loulsihna i w`° REC» REC» DANODANO @a` @a` R,R,MEME HA# HA# AA « « 514514 JAN-JAN- JJ GOL;. : } : } GOL;. 99 ItIt mImI II ¥¥ aGpaGp byby k2k2 JuneJune JrineJrine ss r f A# Rj w Z t PIS U EARLESEARLES & & ASSOCIATESASSOCIATES AA RR YY 77 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2014 CA 1811 GREGORY SCOT HIMEL AND TODD P. GAUTREAU VERSUS THOMAS BOURQUE, SR., THOMAS BOURQUE, JR. AND ASCENSION PARISH PUBLIC WORKS DEPARTMENT lendon, 3., dissenting in part. I respectfully dissent to the extent the majority concludes that " use of the paved portion of Hanson Road is sufficient to preserve the entire 1992 servitude." that there was no statutory dedication of Hanson Road, I agree and I also agree that the blacktop portion of Hanson Road was tacitly dedicated by maintenance. However, the tacit dedication only included the blacktop portion of the roadway and did not include the unimproved portion that extended to Mr. Bourque' s property. Specifically, tacit dedication requires that the road be ' kept up, maintained, or worked" by the Parish for a period of three years. Parish clearly kept up, maintained, LSA -R. S. 48: 491( B)( 1)( While the a). and worked on the blacktop portion, there is insufficient evidence in the record to conclude that it did the same to the unpaved portion. In support of their position, the majority cites Lincoln Parish Police Jury v. Davis, 559 So. 2d 935, 939 ( La. App. 2 Cir. 1990), where it was undisputed that the Parish maintained a roadway, but issues remained regarding " whether the last 30 to 50 feet ... was sufficiently maintained as a public road continuously for a period of at least three years, thereby causing a tacit dedication." The appellate court, noting that the determination was a factual one, concluded that there was no manifest error in the trial court's determination that the disputed portion had been maintained such that the trial court was correct in finding a tacit dedication of the disputed portion. Id. at 940. Specifically, the evidence reflected that Parish maintained the roadway " by grading several times per year, and each time, that the grading and maintenance included the disputed portion of the road." Id. ( Emphasis added.) Moreover, the maintenance occurred from approximately 1971 through 1976, and there was " little difference between the appearance of the undisputed portion of the roadway and [ the disputed portion]." Id. By contrast, there is no evidence in the record before us to establish that the Parish " issue. kept up, maintained, and worked on" the unpaved portion of the roadway at Rather, the majority references the Parish' s use of the roadway to perform other maintenance, including access to clean a drainage servitude. However, accessing the disputed portion is not keeping up, maintaining, or working on the roadway itself and is not sufficient for a tacit dedication under the plain language of LSA -R. S. 48: 491( B)( 1)( a). Accordingly, although use of part of a servitude can preserve an entire servitude, it can only preserve that which has been dedicated. Because the unpaved portion of the roadway at issue was never dedicated ( either statutorily or tacitly), paved portion cannot alter its status. use of the The majority legally errs in concluding that the 1992 servitude, although not sufficient for a statutory dedication, can somehow be used to tacitly dedicate the unimproved portion. Therefore, I respectfully dissent in part. STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2014 CA 1111 GREGORY SCOT HIMEL AND TODD P. GAUTREAU VERSUS THOMAS BOURQUE, SR., THOMAS BOURQUE, JR. AND ASCENSION PARISH PUBLIC WORKS DEPARTMENT THERIOT, J., concurring with reasons. I am in substantiai agreemen3 with the inajority' s opinion, but disagree with the majority' s analysis of the relevance of the pre- existing conventional servitude and its preclusive effect upon a finding of stau:wy dedication The majority cites two cases — Pioneer Production Corp. v. Segraves, 340 So. 2d 270 ( La. 1976), and 6444 Associates, L.L.C. 2002 -1779 ( La. App. 1 Cir. 5/ 9/ 03) v. 851 So. 2d 1169 — in City of Baton Rouge, support of its finding that the existence of property subject to a pre -existing conventional servitude in the 2009 map filed with Ascension Pariah indicates that the map did not effect a statutory dedication of the propem sub ct to the servitude. I find neither of the cases that the majority cites stands for such a broad proposition. Rather, it is clear that the existence of a pre- existing servitude forestalls a finding of statutory dedication only, if the sen)itude groats the pub%c rights in the subject property. In Pioneer Production Corp., the Louisiana Supreme Court found the inclusion of a pre -existing servitude on a map filed with a dedication statement did not effect a "statutory dedication of the property subject to the servitude where the pre -existing servitude had been conveyed '` to the state[.]" 340 So. 2d at 271. The court reasoned that the road subject to , he pro-,- xisting servitude was not statutorily dedicated, despite the inclusion of i de(licat on statement in the filing, because, o] nce the public has gained a c,.)fi %, entionai servitude of use over a highway ... police requirements are fulfilled, and there is really no need for the public to own the land beneath the right of way and/ or highway." 340 So. 2d at 274. Pioneer Production Corp., Similarly, in 6444 Associates, L.L. C., this court found that the City of Baton Rouge, Parish of East Baton Rouge did not gain ownership of a section of property subject to a pre -existing servitude. Once again, the pre- existing servitude in that case had been granted in favor of the public. The pre- existing servitude had been granted in favor of the public body, the " City- Parish," for drainage and 6444 Associates, L.L.C., 851 So.2d at 1170. maintenance purposes. The court reasoned: The dedicatory language contained in the ... map applies only to those right of ways " - not previously dedicated." The [ servitude] was previously dedicated" by virtue of the [ servitude] [ a] greement. Because it was " previously dedicated," the subsequent subdivision of the property did not effect the [ servitude]. Therefore, the City- Parish did not gain a fee interest in the right -of way by the subdivision of the s] ubject [ p] roperty in 1996. 6444 Associates, L.L.C., 851 So. 2d at 1172. In the case at bar, the inclusion of property subject to a pre- existing conventional servitude on the 2009 map submitted to Ascension Parish authorities does not influence my decision regarding whether the filing effected a statutory As in 6444 Associates, L.L.C. and Pioneer Production Corp., dedication. 2009 map included a dedication statement, stating: " The street[ s] and rights the of way shown hereon, if not previot.isly dedicated are hereby dedicated to the Unlike the prior cases, however, perpetual use of the public for public purposes." the servitude at issue here had not been " previously dedicated" to the public. Rather, it is a pre- existing predial servitude that grants a right of passage over subject property in favor of a limited number of dominant estates; it does not inure to the benefit of the general public or the public body, nor has it been otherwise previously dedicated to the public. As the determinative policy considerations in the cited cases conventional are not present ,. servitudes are id disti , ct, as I thy: circumstances of the pre- existing tiikust respectfully disagree with the majority' s discussion of the rele aiice of the pre- existing 1992 conventional servitude. r._ oray' s conclusion that the 2009 filing did a' Nevertheless, I agree with not effect a statutory dedication. ls; . plats must be given a " cc, rational mart, the majority correctly notes that t C, f and that such a construction may negate the intent of a subdividing ! anon),io' Q r to statutorily dedicate a street to public use. i . See 6444 Associates, I_.._ 0 `' "' So. 2d at 1172. Here, the filing did not show the entirety of the r', uL ' Subject servitude, was completed in contemplation of the sale of property not abutting, the servitude, and, most e importantly, was not signetdl by al owners of tl _ property underlying the 1992 servitude. These seminal factors persuade me that the trial court erred by finding that the entirety of the road subject to the 1992 servitude was statutorily dedicated by the submission of the 2009 map. For the foregoing reasons, I respectfully concur.

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