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Davis v. McElroy

Court of Appeals of Louisiana, Third Circuit

October 9, 2019



          Elvin C. Fontenot, Jr. Attorney at Law Counsel for Defendants/Appellants: Robert L. McElroy Clarissa S. McElroy

          Max S. Antony Antony Law Group, LLC Counsel for Plaintiff/Appellee: William T. Davis April D. Davis

          Court composed of John D. Saunders, Phyllis M. Keaty, and Jonathan W. Perry, Judges.


         Defendant[1] appeals a judgment rendered in this dispute involving a right-of-way (ROW) on his property. For the following reasons, we affirm.


         By way of a Grant of Predial Easement (GPE) dated February 16, 2005, Defendant, Robert L. McElroy, [2] as "Grantor," conveyed a twelve by six-hundred-ninety-two-foot (12 x 692) ROW to Roy O. Martin Lumber Company, L.L.C. (Martin) as "Grantee," simultaneously with McElroy's cash purchase from Martin of a tract of land that lies to the south of the ROW. In early 2013, Plaintiff, William T. Davis, bought several acres of land in Vernon Parish from Martin. The sale included Martin's rights to the ROW, which provided the only vehicular access to Davis's otherwise landlocked property. Later in 2013, Davis purchased an additional sixteen-foot (16) strip of land adjacent to the ROW, which, when added to the ROW, resulted in his having a twenty-eight-foot-wide access to his property.

         Davis instituted this action in May of 2018 by filing a Petition for Declaratory Judgment and Injunctive Relief against McElroy regarding Davis's use and enjoyment of the ROW that Davis traverses to get to and from the property on which his home sits. Davis asserted that, on or about April 27, 2018, McElroy had begun constructing a metal fence that completely denied Davis use of the ROW. Davis sought a declaration of his right to use and enjoy the ROW without interference from McElroy, as well as a preliminary, and in due time a permanent, injunction enjoining and preventing McElroy from building a fence or otherwise interfering with Davis's use and enjoyment of the ROW.

         In answer to Davis's Petition, McElroy denied preventing Davis from having use of and access to the ROW. In a reconventional demand, McElroy pointed out that Davis built a road on the sixteen-foot strip of land north of the ROW and dug a ninety-six-foot-long ditch in the middle of the ROW, thus preventing McElroy's use of the ROW. McElroy alleged that he was entitled to damages because, during the building of the road, Davis tore down a fence and two gates that McElroy had previously installed on the ROW. McElroy also requested that Davis be ordered to pay to have the ditch filled in with dirt. Davis answered the reconventional demand, denying that he destroyed any fence or gates on the ROW and denying that the ditch prevented McElroy's access to the ROW.

         A bench trial took place on October 11, 2018. At the close of the evidence, the trial court ruled in open court that it was granting the declaratory judgment sought by Davis declaring his legal real right to fully use and enjoy the ROW and to install drainage ditches running parallel to and outside of the ROW to access his property without interference and disturbance from McElroy. Permanent injunctions were entered barring McElroy from building a fence or otherwise disturbing Davis's use of the ROW and preventing Davis from installing drainage ditches within the ROW. McElroy was ordered to remove his fence from the boundary line of the ROW, Davis was ordered to fill-in the drainage ditch currently located within the ROW with the right to relocate said ditch onto McElroy's property parallel to the ROW, and both parties were ordered to remove all items and debris from the ROW. Finally, Davis was ordered to pay McElroy $250, one-half the value of a gate McElroy previously installed on the west end of the ROW.

         McElroy now appeals, asserting that the trial court erred 1) in "granting injunctions to the Davises that McElroy interfered with the use and exercise of the right-of-way by placing fence posts in the 12 foot right-of-way; and 2) in "not awarding damages to the McElroys for the destruction of fences and gates which previously existed on the right-of-way."


         "A predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners." La.Civ.Code art. 646. "A ROW is a conventional predial servitude, which means it is a predial servitude established by contract." El Paso Field Serv., Inc. v. Minvielle, 03-1293, p. 5 (La.App. 3 Cir. 3/3/04), 867 So.2d 120, 125. "The title creating a ROW regulates its use and the extent to which it is used. According to La.Civ.Code art. 730, any '[d]oubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.'" El Paso, 867 So.2d at 125 (footnote omitted). In this instance, Davis's property is the dominant estate and McElroy's property is the servient estate.

         "Obligations of the owner of the servient estate" can be found in La.Civ.Code art. 651, which ...

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