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Naramore v. Aikman

Court of Appeals of Louisiana, First Circuit

June 4, 2018


          On Appeal from The 21st Judicial District Court, Parish of Tangipahoa, State of Louisiana Trial Court No. 2011-0003524 c/w 2013-0001412 The Honorable Charlotte H. Foster, Judge Presiding

          Douglas T. Curet Hammond, Louisiana Attorney for Plaintiffs/Appellees, Jerelean Naramore, Tammie Steib, Craig Steib, Louann Naramore, Carol Martinson, David Martinson, and Julie Martinson.

          Raymond C. Burkart Jr. Covington, Louisiana Attorney for Defendants/Appellants, Baynum Aikman and Kayla Aikman.

          Harvey W. Cook Hammond, Louisiana Attorney for Defendants/ Appellees, Winifred Worley and Lynn Worley.


          CRAIN, J.

         The defendants appeal a judgment recognizing a servitude of passage and permanently enjoining them from interfering with its use. The plaintiffs answered seeking an increase in damages and an award of attorney fees. We affirm.


         This litigation involves several parcels of contiguous property located in Tangiphoa Parish, more particularly depicted in the appendix hereto.[1] Plaintiffs Jerelean Arnold Naramore, Tammie Naramore Steib, and Craig Steib collectively own the 9.46-acre parcel identified on the appendix by Naramore's name.[2] The adjacent 9.52-acre parcel to the east is owned by plaintiffs Carol Arnold Martinson and David Henry Martinson. Defendants Baynum and Kayla Aikman own a 1.767 parcel adjacent to the southwest side of the Naramore parcel. An asphalt road, West Sam Arnold Loop, is adjacent to the west side of the Aikman parcel. A gravel road extends from West Sam Arnold Loop through the southern boundary of the Aikman and Naramore parcels. The gravel road is located within an alleged servitude shown on the Bodin survey as the long rectangular area along the southern boundaries of the Aikman and Naramore parcels, and extending across the Martinson parcel into a tract owned by Ottis S. Arnold. The use of the gravel road, and more specifically the existence of the alleged servitude, is the origin of the dispute between the parties.

         All of the above property (collectively the "Arnold property") was previously owned by Sam and Vivian Arnold, who acquired it in 1956. Although unclear when the gravel road was built, Sam and Vivian, along with their tenants, began using the road as early as 1960 to access the Arnold's home. The road was also used by the Worley family, the owners of property on the south side of the road, to access their property.

         In the early 1980s, Sam and Vivian began transferring the property to their descendants. They first transferred the Martinson parcel to their daughter, Carol Martinson, on March 25, 1980. The act of sale describes the Martinson parcel, along with the following:

[A] servitude 0.45 chains in width in an East-West direction connecting the existing Public Road with servitude on property of Ottis Samuel Arnold in favor of Grace Louise Arnold Mapes, Ottis Samuel Arnold and Jerelean Avis Arnold Naramore as per plat and survey of Leey Mapes of record in COB ___, page ___, dated [.]

         The referenced Mapes survey is dated March 20, 1979, and shows a servitude that is approximately the same in size and location as shown on the Bodin survey. The act of sale was recorded in the public records shortly after its execution, but the Mapes survey was not.

         On April 28, 1982, Sam and Vivian conveyed to Jeffrey and Cynthia Arnold the 1.75 acres ultimately acquired by the Aikmans on August 13, 1993. The 1982 and 1993 conveyances do not mention the disputed servitude. On October 27, 1983, Sam and Vivian transferred the 9.46-acre parcel to Jerelean Naramore. That act of sale does not mention the servitude, but references the Mapes survey. Naramore transferred approximately four acres to her daughter, Tammie Steib, on May 29, 2008. That conveyance contained a survey identifying the gravel road.

         The parties used the gravel road without any significant incidents until late 2010 or early 2011, when log trucks and other heavy equipment used the road in connection with timber operations on the Martinson parcel. Baynum objected and blocked further vehicular traffic beyond his driveway by parking a tractor on the road and pulling a large log across it. He later installed and locked a gate at the entrance to the road near West Sam Arnold Loop. Although he gave a key to some members of the Arnold family, confrontations continued. When efforts to amicably resolve the dispute failed, suit was filed on October 20, 2011.

         The plaintiffs allege Sam and Vivian created a servitude of passage over the disputed strip to access all of the Arnold property, which the plaintiffs have continuously used for that purpose before and after their respective acquisitions.[3]Alleging the Aikmans prevented or interfered with use of the servitude, the plaintiffs requested a declaratory judgment recognizing the servitude, injunctive relief prohibiting the Aikmans from interfering with its use, and damages. Following an evidentiary hearing, the trial court issued a preliminary injunction on January 30, 2012, prohibiting the Aikmans from interfering with plaintiffs' use of the alleged servitude.

         On May 8, 2013, Lynn and Winifred Worley, owners of the property south of the Aikman and Naramore parcels, filed a petitory action seeking recognition of their ownership of the portion of the Worley property allegedly subject to the servitude. The plaintiffs in this proceeding then amended their petition to include the Worleys as defendants. The two proceedings were consolidated, and the Worleys eventually entered a consent judgment recognizing the servitude along the boundaries described in the Bodin survey.

         Responding to a rule filed by the plaintiffs, the trial court found Baynum in contempt of court for violating the preliminary injunction. In a judgment signed September 4, 2013, the trial court declared Baynum, pursuant to his stipulation, "in contempt with no penalty, " ordered him to restore the servitude to its original condition by removing certain modifications, and "reserve[ed] in favor of plaintiffs ... all rights for attorney's fees and costs for prosecuting the rule for contempt and for any damages sustained until the trial on the merits."

         Trial was scheduled for the week of May 8, 2017. On March 14, 2017, about seven weeks before trial and over five years after suit was filed, the Aikmans requested leave of court to file a reconventional demand against the plaintiffs and a third-party demand against the Aikmans' alleged title insurer. Leave was denied, and the matter proceeded to a bench trial.

         Twenty witnesses, including three experts, testified at trial. The parties introduced numerous exhibits, including maps, surveys, and acts of sale reflecting the chain of title for each parcel. After taking the matter under advisement, the trial court ruled in favor of the plaintiffs. Relying, in part, on Louisiana Civil Code article 741 allowing for the creation of a servitude by "destination of the owner, " the trial court found Sam Arnold created a servitude of passage used by the Arnold family to access the property for more than thirty years. In a judgment signed July 17, 2017, the trial court recognized the servitude of passage described in the Bodin survey, permanently enjoined the Aikmans from interfering with its use, and awarded $2, 000.00 plus legal interest to Tammie Steib and Craig Steib, $1, 000.00 plus legal interest to Jerelean Naramore and LouAnn Naramore, and $2, 000.00 plus legal ...

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