FROM THE 14TH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, No. 2017-1480 HONORABLE ROBERT L. WYATT, DISTRICT
A. Roach Larry A. Roach, Inc. COUNSEL FOR
DEFENDANT/APPELLANT: Guillory Investments, Inc.
Myers Myers Law Firm LLC CO-COUNSEL FOR DEFENDANT/APPELLANT:
Guillory Investments, Inc.
Arabie Arabie Law Firm LLC COUNSEL FOR PLAINTIFF/APPELLEE:
composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W.
JONATHAN W. PERRY JUDGE
case focuses on a predial servitude created by destination of
the owner and involves a residential water line. We affirm
but remand to allow the trial court to amend the judgment in
accordance with this opinion.
E. Carpenter and Susan R. Carpenter ("Carpenters")
own residential rental property at 703 Murbelle Road
("Murbelle property") in Calcasieu Parish. They
acquired this property in September of 2013 from Moffett
Realty. Guillory Investments, Inc. ("Guillory
Investments") owns a much larger eighteen-acre tract
(the "Common Street" property) to the north and
adjoining the Murbelle property.Two water meters are located
on the northwest corner of the Common Street property-meter
number 07101188 and meter number13801239.
direct testimony, Gerald Lee Guillory ("Guillory"),
an officer of Guillory Investments, explained that at one
time "Mr. Cole" owned the Common Street property
and the Murbelle property as one estate. Later, the record
does not show exactly when, Mr. Cole put a water line to the
residence at 703 Murbelle where family member lived; that
water line is serviced by meter number 13801239 on the Common
Street property. Guillory further testified that at the time
of Mr. Cole's death, the Murbelle property remained
connected to one of the Common Street meters.
Carpenters' property at 703 Murbelle receives its water
supply from the city of Lake Charles through water meter
number 13801239, located at the northwestern corner of
Guillory Investment's Common Street property. At the time
of their purchase, the Carpenters formally transferred the
billing on this water meter with the Lake Charles Water
Department ("Water Department") into their personal
names. Their water line runs approximately 1, 100 feet from
the meter parallel to the northern boundary of the Common
Street property and across the width of that property to the
Carpenters' rental house on Murbelle. From the time of
their purchase of the property the Carpenters have paid a
water bill to the city of Lake Charles for the minimum usage
every month based on the water meter registered to 703
the existence of this water meter, in early 2014 the
Carpenters, when remodeling the Murbelle residence, learned
from an employee of the Water Department that the Murbelle
property's water supply had been reconnected to another
water meter, number 07101188, just south of the Murbelle
property water meter; that meter was registered to Guillory
Investments. When confronted with this fact, Guillory
Investments informed the Carpenters that prior to the
Carpenters' purchase of the Murbelle property, the city
had disconnected water service to their water meter. At that
time, Guillory Investments disconnected the line for the
Murbelle property water meter, located north of its meter,
and connected it to its meter, when it learned that the water
line connected to the Murbelle meter also supplied water to
cattle and chickens located on Guillory Investments'
property. Guillory Investments explained its actions by
stating that when the water service to this other water meter
was disconnected, the animals on the Common Street property
occasions after the Carpenters' purchase, one on July 4,
2016 and again on March 27, 2017, the continuous flow of
water to the Murbelle property was interrupted; the former
for approximately one day and the latter precipitated the
Carpenters' lawsuit against Guillory Investments because
the water to the Murbelle property remained disconnected.
April 1, 2017, the Carpenters filed suit against Guillory
Investments, seeking a preliminary injunction, a permanent
injunction, and declaratory judgment.After conducting a hearing on
April 21, 2017, the trial court granted the preliminary
injunction and ordered Guillory Investments to immediately
restore the water service to the 703 Murbelle Road property,
burdening Guillory Investments' Common Street property.
The trial court further ordered the Carpenters to pay
Guillory Investments $40.00 per month for the water provided.
15, 2017, the trial court conducted a hearing on the
Carpenters' request for a permanent injunction. After
hearing testimony from Phillip Carpenter and Guillory, the
trial court, relying upon Wagner v. Fairway Villas
Condominium Associates, 01-0734 (La.App. 3 Cir.
3/13/02), 813 So.2d 512, found that the common predecessor in
title of these two estates created a predial servitude, that
by virtue of the presence of the water meter on the Common
Street property this servitude was apparent under La.Civ.Code
art. 741, that the common owner never disavowed the existence
of this predial servitude, and thus, Guillory
Investments' Common Street property was burdened with a
water utility service servitude in favor of the Murbelle
property. Accordingly, the trial court granted the permanent
injunction, enjoining Guillory Investments from "further
interruption of the water service to the Murbelle
Investments appeals, contending the trial court erred when
it: (1) misapplied Wagner, finding there was a
predial servitude in favor of the Carpenters; and (2) found a
predial servitude in favor of the Carpenters when the former
common owner of the Guillory Investments and Murbelle
properties had not filed a "formal declaration
establishing the destination" sufficient to establish
the servitude as required in La.Civ.Code art. 741.
courts "review judgments regarding servitudes under the
manifest error standard of review." Allen v.
Cotton, 11-1354, p. 3 (La.App. 3 Cir. 5/2/12), 93 So.3d
681, 683. More particularly, whether an apparent servitude
has been created by destination of the owner is a factual
determination reviewed under the manifest error-clearly wrong
standard of review. Naramore v. Aikman, 17-1621,
17-1622 (La.App. 1 Cir. 6/4/18), 252 So.3d 935. "An
appellate court may not set aside a trial court's
findings of fact unless they are manifestly erroneous or
clearly wrong." Allen, 93 So.3d at 683.
"To reverse under the manifest error rule, an appellate
court must find ...