Carpenter v. Guillory Inv., Inc.

Citation: 266 So. 3d 581Docket: CA 18-571

Court: Louisiana Court of Appeal; February 26, 2019; Louisiana; State Appellate Court

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A predial servitude involving a residential water line is at the heart of this case. The Carpenters own a rental property at 703 Murbelle Road in Calcasieu Parish, acquired in September 2013 from Moffett Realty. Their property is adjacent to an eighteen-acre plot owned by Guillory Investments. Historically, both properties were owned by Mr. Cole, who had connected a water line from one of Guillory Investments' meters (meter number 13801239) to the Murbelle property. Upon purchasing the Murbelle property, the Carpenters transferred the water meter billing into their names and paid for the minimum usage monthly.

In early 2014, during renovations, the Carpenters discovered their water supply had been switched to another meter owned by Guillory Investments (meter number 07101188). Guillory Investments explained that the city had disconnected the Carpenters' water supply before their purchase, leading to the reconnection of their line to the meter servicing their livestock. Following two interruptions of water service to the Murbelle property in 2016 and 2017, the Carpenters filed a lawsuit on April 1, 2017, seeking injunctive relief and a declaratory judgment. The trial court granted a preliminary injunction on April 21, 2017, ordering Guillory Investments to restore water service to the Murbelle property. The case has been affirmed but remanded for the trial court to amend the judgment accordingly.

The trial court ordered the Carpenters to pay Guillory Investments $40.00 monthly for water service. Following a hearing on the Carpenters' request for a permanent injunction, the court found that a predial servitude had been established between the properties based on the common predecessor's actions, as referenced in Wagner v. Fairway Villas Condominium Associates. The court determined that the presence of a water meter on the Common Street property indicated an apparent servitude, as per La.Civ. Code art. 741, and concluded that Guillory Investments could not disrupt the water service to the Murbelle property. 

Guillory Investments appealed, arguing that the trial court misapplied Wagner and that no formal declaration of the servitude had been made by the prior owner, which is required for nonapparent servitudes under La.Civ. Code art. 741. The appellate court applies the manifest error standard of review for judgments regarding servitudes. Guillory Investments argued against the trial court's findings on three grounds: the visibility of the water lines, the location of the water meter, and the lack of awareness by the current property owners regarding the water service connection.

The court reaffirmed that predial servitudes can be apparent or nonapparent, with apparent servitudes being identifiable by external signs and established by title, owner destination, or acquisitive prescription. Nonapparent servitudes require formal declarations. The classification of servitude is fact-specific, and the court found no merit in Guillory Investments' arguments, upholding the trial court's findings on the existence of an apparent servitude.

When a single owner holds property, no servitude can exist since one cannot hold a servitude over their own land. However, once the property is divided or ownership changes, an apparent servitude arises unless the common owner explicitly denies it. The creation of a predial servitude by destination requires two conditions: a relationship between the two estates that would constitute an apparent servitude if held by different owners, and the transfer of ownership that does not negate the servitude's creation. 

In this case, the trial court determined that an apparent servitude existed for the Murbelle property. Citing a previous ruling, it found that while the water lines themselves were not visible, the water meter served as an obvious indication of their presence. Under Louisiana Civil Code Article 741, a predial servitude was established by the actions of the former common owner. 

Despite the water line being buried and not visible, the water meter servicing the Murbelle property is located on another property and is visible. Guillory Investments claimed ownership of the water meters, but evidence showed that the Carpenters received water bills for the Murbelle property since their 2013 purchase. Testimony confirmed the existence of separate water meters for Guillory Investments and the Murbelle property, with no evidence presented by Guillory that they paid the Murbelle meter's water bill. 

The court noted that Guillory's lack of knowledge regarding the meter's service connection was irrelevant; the focus was on the actions of the former owner, Mr. Cole. The case referenced, Comby v. White, supports this conclusion, as it involved similar circumstances of prior common ownership and the establishment of service lines after property division. The trial court's findings were upheld as not manifestly erroneous.

The Combys incurred significant costs to extend a water line and sued the Whites, claiming a predial servitude over the Whites' estate. The trial court found that such a servitude existed, supported by the presence of a water meter on the servient estate, and awarded damages to the Combys. The appellate court affirmed this decision, stating that the original ownership by Cygnal White, Sr. and his wife would have created a predial servitude if the property had been divided. The visible water meter served as clear evidence of the servitude’s existence, overriding Guillory Investments' argument regarding the distance from the Murbelle property. The court confirmed that a predial servitude is a permanent charge on the servient estate for the benefit of the dominant estate and that it does not require formal registration by the former owner. However, it emphasized the necessity of clearly describing both the dominant and servient estates in the judgment. Consequently, the case was remanded for a hearing to introduce these property descriptions and amend the judgment accordingly. The judgment was affirmed, and costs were assigned to Guillory Investments.

Justice Kyzar dissents from the majority opinion regarding the classification of a servitude related to underground waterlines servicing the Carpenter property, located over 300 yards from the Guillory property. Kyzar argues that the trial court erred in determining the servitude was apparent under La.Civ. Code art. 740, noting that the plaintiff failed to demonstrate this through the trial record. The only testimonies presented were from Mr. Carpenter, who believed his water supply came from the City of Lake Charles, and Mr. Guillory, who had two water meters for his property and was unaware that one meter also supplied water to the Murbelle property. Kyzar emphasizes that there was no indication that a water line running under Guillory's property supplied water to Carpenter's property, questioning whether it constituted an apparent or non-apparent servitude. The majority opinion contends that the existence of a water meter is sufficient to establish the servitude as apparent, regardless of Guillory's lack of knowledge about its connection to Carpenter's property, which Kyzar finds problematic. The distinction between apparent and non-apparent servitudes under La.Civ. Code articles 740 and 741 is central to this disagreement, with implications for Guillory's property rights.

The majority opinion emphasizes the actions of Mr. Cole, the former common estate owner, while the dissent argues that the critical issue is whether Mr. Guillory or similar purchasers were aware of the buried water lines supplying another property. If there is a visible sign of a non-apparent servitude, it becomes apparent and burdens the property; if not, it remains non-apparent unless officially declared. The majority contends that the existence of a water meter indicates a visible sign of servitude, which the dissent disputes, arguing that this alone is insufficient.

The dissent critiques the reliance on two previous cases, Wagner v. Fairway Villas Condo. Assocs. and Comby v. White, asserting that neither case definitively supports the majority's conclusion regarding the water lines as an apparent servitude. In Comby, a water line connected to a residence was at the center of a dispute after the property was sold, leading to significant expenses for relocation due to refusal by the new owner to allow repairs. The court in Comby upheld the existence of an apparent servitude, referencing earlier rulings that established criteria for servitude visibility. The dissent maintains that the current standard under Louisiana Civil Code only requires an apparent servitude, not a continuous one as previously mandated, underscoring the importance of clear signs for property rights.

The court in Comby determined that the water, electric, and cable lines crossing White, Jr.'s property constituted an apparent servitude. However, the specific rationale for this conclusion was not detailed. The existence of a water meter on White, Jr.'s property, which serviced the Comby property after the Comby family took ownership, was not the sole basis for this determination. The visibility of the water lines was acknowledged, particularly as they were exposed under a driveway, which White, Jr. noted when they were cut. Although electric and cable lines were also involved, their visibility remains unclear, with a likelihood they were overhead lines.

The Comby ruling does not support the notion that simply having a water meter indicates an underground water line servitude servicing distant property. The court referenced Wagner, where another panel found that pipes supplying water to condominiums did not constitute an apparent servitude due to insufficient evidence of perceivable exterior works like a meter. The court in Wagner indicated that a distant joint water meter did not serve as a visible sign of a servitude, reinforcing that the water meter in the current case did not signify hidden water lines. The conclusion that the water meter alone indicated hidden lines servicing a property far away was deemed unfounded, as there was no evidence suggesting the defendant should have known the meter served additional properties. The ruling imposes a significant burden on prospective property buyers, requiring them to consider the possibility of hidden servitudes based on the mere presence of a water meter, thus expanding the principle of "caveat emptor" or buyer beware.

The servient estate faces significant burdens, including reduced property valuation, limited development potential due to existing buried lines, and maintenance costs associated with those lines. The dissenting opinion highlights the presence of hearsay testimony in the record, which was not objected to by either party. Key factual elements concerning property ownership, the chain of title, water meters, and payment histories lack documentary support, although they remain undisputed. The creation of servitudes can be evidenced by oral testimony, as established in case law. The record indicates a third water meter on a property adjacent to the disputed tract, which is not part of the current litigation. Testimony from Guillory, who learned about this meter from a barber, also lacks documentary evidence regarding the history of water service to the properties. Although Guillory Investments did not file a formal answer to the Carpenters' petition, the court finds that their memoranda opposing the petition serve the functional purpose of an answer based on the circumstances. The court notes that the seller under Louisiana Civil Code art. 2500 does not have to disclose encumbrances that are apparent or legally non-apparent. To ensure accurate title examination, the court recommends remanding the case to introduce proper property descriptions into the record.