Court: Louisiana Court of Appeal; January 12, 2016; Louisiana; State Appellate Court
Willow Chute Farms, LLC initiated two separate lawsuits in Bossier Parish: one to quiet title on its property and another to cancel a servitude recorded in 1984. The cases were consolidated, and the trial court ruled that the property boundary between Willow Chute and adjacent landowners, George and Susan McLemore, would follow an old fence line and, where the fence was not visible, adhere to the 1984 act of exchange establishing the servitude. The court upheld the servitude, denying Willow Chute's claim of prescription due to nonuse. Following this judgment, Willow Chute filed a suspensive appeal.
The factual background involves a 40.19-acre tract owned by Willow Chute, adjacent to the McLemores' 104-acre U-shaped property. In 1984, the predecessors of both parties executed an agreement defining their property boundary and recorded an act of exchange that included a .31-acre triangular tract with a servitude for ingress and egress. This servitude provides a gravel road owned by Willow Chute, facilitating access to the southern part of the McLemore property. The McLemores acquired their land in 2012, along with all associated rights and encumbrances, following which Willow Chute filed its lawsuits. The first sought to cancel the servitude on the basis of nonuse exceeding ten years, while the second aimed to establish the boundary along the old fence line, asserting continuous, peaceful possession for over 30 years.
The McLemores initiated a reconventional demand to establish the boundary between their property and that of Willow Chute, leading to the consolidation of two suits for trial. On September 5, 2014, Willow Chute sought summary judgment, arguing no genuine issue existed regarding the servitude's prescription due to nonuse. In October 2014, the Roos sellers executed a quitclaim deed to the McLemores, conveying a servitude/right of use reserved in a 1984 act of exchange. The trial court denied Willow Chute’s summary judgment motion. The consolidated trial occurred on December 12, 2014, and on January 12, 2015, the court ruled the boundary along the visible old fence line, and where not visible, according to the 1984 act of exchange, affirming the servitude's transfer to Armand W. Roos, Jr.'s heirs and assigns. The court concluded the servitude had not prescribed. Following an appeal filed by Willow Chute on January 15, 2015, and an amended judgment on January 30, 2015, Willow Chute contested the court's findings regarding the servitude's transfer, its nonprescription, and the boundary's establishment based on the visible fence line rather than the 1984 boundary agreement. Willow Chute argued that the trial court correctly classified the servitude as personal but erred in determining it was transferred to the McLemores through the cash sale or quitclaim deed. The analysis revealed no legal error by the trial court, as the classification of the servitude was not disputed during the trial. Willow Chute referenced a precedent, asserting the servitude was not transferred since the cash sale deed did not explicitly mention it or the burdened land.
The right of use does not automatically transfer with the sale of the dominant estate, unlike a predial servitude. The court clarified that a right of use can only be conveyed through a deed that identifies the origin of the right or describes the burdened land. In this case, the 1998 deed did not adequately convey the servitude to IP, prompting a remand for the plaintiff to investigate the purchase agreement for any actionable language. The cash sale deed to the McLemores explicitly conveyed the right of way, stating it included "all and singular rights of way, servitudes, easements," and was subject to existing encumbrances. The deed's attachment identified the initial 1984 act of exchange, confirming the conveyance of the personal servitude to the McLemores. The trial court's ruling that the servitude had not prescribed was upheld. Rights of use are managed under the same rules as predial servitudes and usufructs, where nonuse for ten years extinguishes predial servitudes. The burden of proof lies with the dominant estate owner to demonstrate actual use of the servitude. Here, the McLemores must prove its use to counter claims of prescription. Testimonies indicated that the right of way traverses undeveloped land owned by the Simmons family, with past use documented by individuals who hunted and fished there with a lessee from 1982 to 2010. These witnesses confirmed regular use of the right of way, with the last use occurring three years prior to their depositions.
The deposition testimonies of Norred and Rusher indicate that the right of way has been utilized for hunting and hay hauling within the past ten years, supporting the undeveloped character of the land. The trial court found Simmons's testimony unconvincing due to his lack of personal knowledge regarding the claimed nonuse of the servitude, which Willow Chute did not need to prove. Notably, Mr. McLemore's testimony emphasized the servitude's importance for access to his property during high water conditions. The court concluded that the personal servitude had not lapsed due to nonuse.
Regarding boundary disputes, Willow Chute argued that the trial court incorrectly established the boundary based on an old fence line and a 1984 exchange act, claiming the McLemores did not prove the old fence constituted a visible boundary or met the criteria for adverse possession. Boundaries can be fixed either judicially or through mutual agreement (La. C.C. art. 789), which acts as a compromise (La. C.C. art. 795). However, if one property owner disregards a boundary agreement and occupies the land for 30 uninterrupted years, acquisitive prescription may prevail over the agreement. The determination of whether property was possessed for 30 years without interruption is a factual issue, typically not disturbed on appeal unless there is clear error.
The trial court's boundary determination should similarly stand unless manifest error is shown. The parties acknowledged that the "very old fence" has historically marked the boundary between their properties, and Willow Chute's allegations confirmed that the fence had delineated the property lines for over 30 years without interruption.
Willow Chute Farms, L.L.C. sought judicial recognition as the rightful owner of a boundary fence through acquisitive prescription, requesting that the court affirm ownership up to the fence line. However, the court found Willow Chute's claim perplexing, especially since it petitioned to establish the boundary at the old fence line while arguing that the fence was not a visible boundary. The McLemores did not claim ownership by acquisitive prescription but agreed to Willow Chute’s factual allegations regarding the fence line, which had served as the boundary for over 30 years, despite a prior 1984 boundary agreement. The remnants of the fence extended approximately 600 feet, granting the McLemores about five feet of property width. The trial court was upheld in its decision to set the boundary at the visible fence line and, where not visible, in accordance with the 1984 agreement. Willow Chute acknowledged that the 1984 act should partially influence the boundary near the southeast corner but contended the trial court's judgment inaccurately described the servitude area instead of the relevant tract from the 1984 agreement. The court determined that the judgment should be amended to reflect the correct boundary, instructing that it be set by a surveyor. The trial court's ruling was affirmed, and the matter was remanded for the necessary amendments, with costs awarded to Willow Chute Farms, L.L.C. Chief Justice Brown dissented, noting the inseparability of a predial servitude from the dominant estate as per Louisiana Civil Code. The relevant description of the property involved a 31.5-acre tract with a triangular 0.31-acre exception.
