RIVER RENTAL REALTY LLC, AND RIVER RENTAL TOOLS, INC.
DEEP SOUTH LEASING, LLC
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
Michael L. Mullin Betty F. Mullin LAW OFFICE OF MICHAEL L.
MULLIN R. A. "Red" Osborn, Jr. OSBORN & OSBORN
APLC COUNSEL FOR DEFENDANT/APPELLANT.
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Paula A. Brown
A. BROWN, JUDGE
case involves a public servitude. Appellant, Deep South
Leasing, LLC ("Deep South"),  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").
reasons discussed below, we affirm the district court's
AND PROCEDURAL HISTORY
Rental and Deep South operate businesses on property in the
Burmaster Land and Development Co., Inc. Industrial Park
("Industrial Park") in Belle Chasse, Louisiana.
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.
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."
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
South filed an answer and a reconventional demand praying
that the Petition be dismissed.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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 ...