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Whitlock v. Fifth Louisiana District Levee Board

Court of Appeals of Louisiana, Second Circuit

April 15, 2015

DON E. WHITLOCK, Plaintiff-Appellant

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[Copyrighted Material Omitted]

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Appealed from the Sixth Judicial District Court for the Parish of East Carroll, Louisiana. Trial Court No. 21,782. Honorable Michael E. Lancaster, Judge.

LOUIS G. SCOTT, Counsel for Appellant.

JAMES E. PAXTON, APLC, John D. Crigler, Jr., Counsel for Appellee, Fifth LA Dist. Levee Bd.




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[49,667 La.App. 2 Cir. 1] PITMAN, J.

Plaintiff Don E. Whitlock filed a petition seeking a preliminary and permanent injunction and damages against Defendant, Fifth Louisiana District Levee Board (" Levee Board" ), and its lessee, Jamie Isaac, to prevent the lessee from traveling across Plaintiff's property to reach a hunting lease owned by the Levee Board and located west of Plaintiff's property. The Levee Board filed exceptions of no cause of action, nonjoinder of parties and lack of procedural capacity to sue. The trial court denied the request for a preliminary injunction and then sustained the exception of no cause of action and other exceptions and dismissed the suit. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.


Plaintiff is the owner of certain property in East Carroll Parish, some of which he owns individually (Lot 3 of the subject property and an additional large tract of adjacent property), and some of which he owns in indivision (Lots 1 and 2 of the subject property, referred to as the " heir property" ). Plaintiff's ancestor, L. Whitlock, purchased Lots 1, 2 and 3 by deed in 1937, which contains the following language making the lots subject to the following:

A right-of-way twenty feet wide over and across the lands hereinabove described and hereby conveyed for the right of passage and of way across said lands to serve as a road for the use of the public and which right-of-way shall hereafter be located by said vendee.

Thereafter, a public right-of-way was provided, which eventually became known as Parish Gravel Road No. 1205 or 1285, and later known as Whitlock Road. This gravel road runs along the eastern side of the property [49,667 La.App. 2 Cir. 2] and is located entirely within Lot 1, running from north to south. The road does not enter Lots 2 or 3, which are located west of Lot 1. To do so, the road would have to run east to west. Plaintiff is now the sole owner of Lot 3, and is an owner in indivision of Lots 1 and 2.

The Levee Board owns property (known as Swan Lake) to the west of Plaintiff's property and it is burdened by the hunting lease to Mr. Isaac. Swan Lake is located directly behind Lot 3 and other adjacent land owned by Plaintiff. Mr. Isaac began crossing Plaintiff's property, both the heir property and that owned solely by him, to reach the Levee Board's property. Mr. Isaac's traversal of the property allegedly resulted in ruts being gouged in the soil, damaged crop land and a change in the natural flow of water across the property. Plaintiff attempted to address these issues with the Levee Board to no avail.

On January 3, 2012, Plaintiff filed a suit for an injunction and for damages against the Levee Board and its lessee, Mr. Isaac, alleging that he was the landowner and that the Levee Board owned the adjacent property. He alleged that Mr. Isaac, and others with Mr. Isaac's permission, began trespassing on his property by driving vehicles across his land without his permission and against his express instructions not to do so. Plaintiff complained that the route taken by Mr. Isaac was not the shortest route to the leased property, nor was it a route that would cause the least disruption to his property. Plaintiff's petition alleged that, " If a right of passage or

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servitude is due it should be due across the land of an adjoining landowner since such a route would be much shorter and less costly." Plaintiff alleged that, as a [49,667 La.App. 2 Cir. 3] result of this trespass, he was losing approximately 2.2 acres of land use and that Mr. Isaac's trespass was causing damage to the natural flow of water. He also alleged that, although the Levee Board had been leasing out the Swan Lake property for ten years, other lessees had not asked for or claimed a right-of-way. Further, he alleged that no person during his lifetime had used a right-of-way in the location where Mr. Isaac now trespasses. He claimed he was being caused economic injury and damage and asked that the Levee Board and its lessees be enjoined from coming upon, traveling across, using or damaging his property. A hearing on the request for a preliminary injunction was set for February 2, 2012.

On February 1, 2012, the Levee Board filed an answer to Plaintiff's petition, raising exceptions of no cause of action, nonjoinder of a party and lack of procedural capacity. As an affirmative defense, it asserted that Plaintiff was only a minimal owner of the heir property, to which he succeeded while it was already burdened with the servitude or public right-of-way. The Levee Board claimed that Plaintiff is thereby estopped from asserting that no such right-of-way exists. It also asserted that any ingress and egress upon the right-of-way was not a trespass since it is a public servitude, the location of which was agreed upon by the parties.

The Levee Board claimed that Plaintiff's petition failed to state a cause of action because the right-of-way, originally established in 1937, is a public servitude for right of passage which is still in effect and that Plaintiff cannot state a cause of action to prohibit the use by the Levee Board or its lessees. It further claimed that Plaintiff failed to join his co-owners in the suit; therefore, [49,667 La.App. 2 Cir. 4] the petition is subject to the exception of nonjoinder of parties. It also claimed that Plaintiff lacked procedural capacity to sue in a representative capacity for the other landowners because he was not authorized by them to do so and because his authority to seek a remedy that would affect all of the other co-owners of the property had not been established.

At the February 2, 2012 hearing on the preliminary injunction, in a strange turn of events, the trial court admitted both oral and documentary evidence and considered the merits of the request for preliminary injunction prior to ruling on the exceptions filed by the Levee Board.[1] After the evidence was presented, including documents conveying land to Plaintiff's ancestors in title and a map of the subject property, the trial court rendered judgment in open court finding that Plaintiff had not met the required burden of proof of irreparable injury and, therefore, denied the request for preliminary injunction.

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Despite having addressed the merits of the request for preliminary injunction, the trial court then considered the peremptory exception of no cause of action. In deciding to sustain the exception, the trial court considered the language of the ancestor's deed that attempted to establish the right-of-way and then stated:

[49,667 La.App. 2 Cir. 5] It appears to me that there was an intent to establish a twenty foot right-of-way across Lots one, two and three in favor of the public. Where that is, I don't know. So, going to the Exception of No Cause of action. . . there has to be a showing that there was in fact a trespass, and to me, that has not been shown today because there's a possibility that there is in ...

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