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Succession of Smith v. Portie

Court of Appeals of Louisiana, Third Circuit

December 30, 2019

THE SUCCESSION OF ALLEN L. SMITH, JR.
v.
KEITH ALAN PORTIE

          ON SUPERVISORY WRIT DIRECTED TO THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2015-4038 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

          Kenneth Michael Wright COUNSEL FOR: Defendant/Appellant - Keith Alan Portie

          Christopher E. John City of Lake Charles Legal Department COUNSEL FOR: Defendant/Appellee - City of Lake Charles

          Timothy O'Dowd Jared W. Shumaker O'Dowd Law Firm LLC Plaintiff/Appellee - Shirley Smith

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

          ULYSSES GENE THIBODEAUX CHIEF JUDGE.

         This case arises out of a dispute between two adjacent landowners regarding a five-foot strip of land which forms a border between the property owned by Plaintiff, Shirley Smith, [1] and the property owned by Defendant, Keith Alan Portie. The strip of land between the two properties was dedicated as a public drainage servitude and accepted by the City of Lake Charles via Resolution Number 366 on February 20, 1952. The strip of land, or five-foot drainage, remained bare land until August 21, 2015, when Mr. Portie purchased Lot 26 and placed drainage pipes, cement barriers, and truck loads of dirt on the strip of land. Ms. Smith alleges that Mr. Portie's actions violated subdivision restrictions, which prohibit certain improvements from being made on the five-foot strip of land. Ms. Smith also alleges that she has a right to the five-foot strip of land and Mr. Portie's actions resulted in drainage problems on her property, which damaged her property and interfered with her enjoyment of her property.

         On December 11, 2018, the trial court granted Ms. Smith's motion for a preliminary injunction and ordered Mr. Portie to stop draining his property onto Ms. Smith's property, to stop interfering with Ms. Smith's drainage across the five-foot strip of land at issue, and to stop increasing the drainage burden on Ms. Smith's property. Mr. Portie appealed that judgment, and the appeal was lodged in this court on March 8, 2019, under this court's docket number CA 19-183.

         Meanwhile, on November 30, 2018, Mr. Portie filed a motion for partial summary judgment. Although that motion for partial summary judgment does not contain a prayer for relief, Mr. Portie apparently sought a partial summary judgment declaring that, because the City had not taken any action to maintain the servitude on the five-foot strip of land, the servitude had thus prescribed by nonuse. On February 5, 2019, the trial court signed a judgment denying Mr. Portie's motion, which was designated as final and appealable pursuant to La.Code Civ.P. art. 1915(B); the notice of this judgment was mailed on February 15, 2019. On February 6, 2019, Mr. Portie filed a motion to appeal the February 5, 2019 judgment, and the record for that appeal was lodged in this court on June 4, 2019, under appeal number CA 19-409. We converted that appeal to a writ in an opinion rendered on July 24, 2019.

         I.

         ISSUES

         We must decide:

         (1) whether the trial court erred in failing to grant the partial summary judgment that the five-foot alleged servitude for drainage reflected on the revised plat of Charles O. Noble Subdivision had lapsed by liberative prescription; and

         (2) whether the trial court erred in finding the five-foot alleged servitude for drainage shown on the revised plat of Charles O. Noble Subdivision was "owned" by the City of Lake Charles by virtue of the dedication in ...


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