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River Rental Realty LLC v. Deep South Leasing, LLC

Court of Appeals of Louisiana, Fourth Circuit

June 20, 2018

RIVER RENTAL REALTY LLC, AND RIVER RENTAL TOOLS, INC.
v.
DEEP SOUTH LEASING, LLC

          APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 61-831, DIVISION "A" Honorable Kevin D. Conner, Judge

          Timothy Thriffiley George Pivach II John E. Pivach PIVACH PIVACH HUFFT THRIFFILEY & NOLAN, L.L.C. COUNSEL FOR PLAINTIFFS/APPELLEES.

          Michael L. Mullin Betty F. Mullin LAW OFFICE OF MICHAEL L. MULLIN R. A. "Red" Osborn, Jr. OSBORN & OSBORN APLC COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown

          PAULA A. BROWN, JUDGE

         This case involves a public servitude. Appellant, Deep South Leasing, LLC ("Deep South"), [1] seeks review of the district court's June 14, 2017 judgment which found a general public servitude existed in favor of Appellee, River Rental Realty, LLC, and River Rental Tools, Inc. (collectively "River Rental").[2]

         For reasons discussed below, we affirm the district court's judgment.

         FACTUAL AND PROCEDURAL HISTORY

         River Rental and Deep South operate businesses on property in the Burmaster Land and Development Co., Inc. Industrial Park ("Industrial Park") in Belle Chasse, Louisiana.

         River Rental's property is surrounded by three streets: Derrick Road, Commerce Street, and a street referred to as the Unnamed Roadway (or Oilfield Road). These three streets form a "U" shape, with Derrick Road and Commerce Street running perpendicular to each other, and the Unnamed Roadway connecting the northern ends of the two. Derrick Road and Commerce Street both exit onto Engineers Road.

         In January 2014, Deep South purchased from Burmaster Land and Development Company, L.L.C. ("Burmaster") a tract of property in the Industrial Park. The description of the property was set forth in the Cash Sale of Property, which included a provision that the property was subject to a servitude in favor of the public for Derrick Road and a servitude for ingress and egress for Commerce Street, and Unnamed Roadway "as shown on survey by Hugh McCurdy, III, PLS dated June 18, 2013."[3]

         In August 2014, Deep South began blocking access to Commerce Street and the Unnamed Roadway by constructing gates on these roadways. As a result, River Rental filed in the district court a "Petition to Be Maintained in Possession and for Injunctive Relief" (the "Petition"). In the Petition, River Rental alleged that: (1) it had a right of servitude of ingress and egress over the roadways known as Commerce Street and the Unnamed Roadway; (2) the general public and ancestors in title had used the Unnamed Roadway and Commerce Street for a period in excess of thirty years as a servitude for ingress and egress; and (3) the previous owners of Unnamed Roadway and Commerce Street had implicitly dedicated the roads for public use. River Rental prayed that a temporary restraining order be issued enjoining Deep South from interfering with River Rental's enjoyment of the servitude and requiring Deep South to open or remove the gates it had constructed on the Unnamed Roadway and Commerce Street. Additionally, River Rental prayed that the court grant its application for a preliminary injunction and a permanent injunction consistent with the preliminary injunction.

         Deep South filed an answer and a reconventional demand praying that the Petition be dismissed.

         The district court issued an order granting a temporary restraining order against Deep South, enjoining it from interfering with River Rental's use of the servitude along Commerce Street and the Unnamed Roadway pending a show cause hearing on River Rental's application for a preliminary injunction.

         Following the issuance of the temporary restraining order, the parties entered into a consent judgment wherein they agreed that a preliminary injunction would issue against Deep South, enjoining it from interfering with River Rental's use and enjoyment of the Unnamed Roadway and Commerce Street for ingress and egress pending a trial on River Rental's Petition.

         A bench trial on the permanent injunction was held on March 23 and 24, 2017. At the beginning of trial, Deep South filed a "Motion in Limine and Motion to Strike Certain Claims of the Plaintiffs." The district court deferred ruling on the motion until the conclusion of the trial.

         At trial, one of the main witnesses called by River Rental was Hugh McCurdy III ("Mr. McCurdy"). He was accepted by the district court as an expert, a professional land surveyor, and as the custodian of records for his father, Hugh McCurdy, Jr., also a professional land surveyor.

         Mr. McCurdy testified the February 28, 1968 survey subdivided the tract into numbered lots and showed the dimensions of each lot; and monuments were set at the corners of every lot. The survey contained the Section, Township and Range where the property was located. The proposed streets, with the lengths and widths of the streets, were indicated on the survey. Additionally, Mr. McCurdy testified that the survey showed 50' wide streets, which was a typical size for Plaquemines Parish. Mr. McCurdy indicated the 1968 survey was signed by Hugh McCurdy, Jr., as a licensed civil engineer.

         Mr. McCurdy testified that the March 24, 1971 survey showed a subdivision of property into numbered lots and the dimensions of each lot; and monuments were set at the corners of every lot. The survey contained the Section, Township and Range where the property was located and showed proposed streets with the lengths and widths of the streets. Mr. McCurdy noted that Lots IB-IK, and Lots 2B-2H as shown on this survey do not have access to Engineers Road except by these proposed streets. Mr. McCurdy indicated the 1971 survey was signed by a licensed land surveyor and civil engineer.

         Mr. McCurdy testified the May 21, 1973 survey, which was a re-subdivision plat for Burmaster, showed a layout of subdivided numbered lots with dimensions; and monuments were set at the corners of every lot. The survey also contained the Section, Township and Range where the property was located, and it was signed by a licensed surveyor. The survey showed streets with 50' width. Mr. McCurdy stated that one of the streets, Derrick Road, shown in the 1973 survey was formally dedicated to the public by Burmaster and accepted by Plaquemines Parish in June 1973.

         Mr. McCurdy testified he prepared the survey dated June 30, 2010. On the survey, the streets described in the previous surveys were marked Derrick Road, Commerce Street, and Unnamed Roadway. Mr. McCurdy stated that this survey was referred to in the property description contained in the Act of Sale between Burmaster and Deep South.

         Mr. McCurdy testified the June 18, 2013 survey that he prepared showed a re-subdivision of property into numbered lots and showed the dimensions of the lots; and each lot had monuments at the corners. He explained that the survey showed 50' wide streets. These streets were designated in the survey as Derrick Road, Commerce Street, and Unnamed Roadway. Moreover, the survey contained the Section, Township and Range where the property was located. This survey was signed by a licensed surveyor. Mr. McCurdy testified that this survey showed both gross acreage and net acreage contained in the property being subdivided. The gross acreage took into account all of the property being surveyed. The net acreage showed what was left after Mr. McCurdy took out the property encumbered by the servitudes on Commerce Street, the Unnamed Roadway, and Derrick Road. Mr. McCurdy acknowledged this re-subdivision plan was approved by the Plaquemines Parish Council and filed in the conveyance records, as well as all the surveys he testified about were recorded, in some manner, in the conveyance records of Plaquemines Parish.

         Mr. McCurdy indicated that, in his experience as a licensed land surveyor, when a landowner creates subdivision plans showing proposed streets, existing elevations and surface drainage, and showing paving and sub-surface drainage, it shows an intention on the part of the of the owner of the property to create a subdivision with streets.

         Several witnesses, mainly business owners in the Industrial Park, testified on behalf of River Rental. Andre Amedee, president of River Rental Tools, and Maria Amedee, vice president of River Rental Tools, testified they had conducted business in the Derrick Road area since 1985. Both testified they used Commerce Street and Unnamed Roadway, they saw the public use these roadways, and they thought the roadways were public. Dennis Burmaster testified his father was one of the owners of Burmaster. He testified he helped construct Commerce Street and Unnamed Roadway in the mid-1960s and that the public had continuously used them.

         Gavin Quartana testified his family owned a business on Derrick Road, and his father began developing the property for the business around 1976. He stated he and his employees used Commerce Street and Unnamed Roadway, and he thought these roads were public streets. Arvel H. Gurganus, Jr., testified his family owned a business on Derrick Road since 1985. He recalled he used Commerce Street and Unnamed Roadway, he saw other vehicles use these roads, and he thought they were public roads. Jonathon Choate testified he owned a business on the corner of Engineers Road and Commerce Street since 2007. He stated he used Commerce Street and Unnamed Roadway, he saw other vehicles use these roads, and he thought the roads were public streets. Gary Veron testified he drove his eighteen-wheeler truck on Commerce Street and Unnamed Roadway for eighteen to twenty years, and he thought they were public streets.

         On behalf of Deep South, Douglas LaNasa, Jr., Chief Executive Officer of Deep South Leasing, LLC, testified. He stated Deep South began purchasing portions of Burmaster's property in 2010. He explained the purpose of the construction of the gates on Commerce Street and Unnamed Roadway was to provide security for the equipment stored on Deep South's property.

         After taking the matter under advisement, a judgment was rendered on June 14, 2017, and the district court provided reasons for the judgment. The judgment provided in pertinent part:

• Denied Deep South's motion in limine;
• Ordered Deep South, its agents, employees and/or representatives to recognize the existence of a servitude in favor of the general public along Commerce Street and the Unnamed Roadway (Oilfield Road);
• Entered a permanent injunction against Deep South and in favor of the River Rental, enjoining Deep South, its agents, employees and/or representatives from interfering with River Rentals' or the general public's use of and enjoyment ...

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