As a Civilian lawyer, the words of the law have meaning. It is nice to know that the Louisiana Courts still apply the words as having the intended meaning and not some urban dictionary of anomalous meaning. In Davis v. Ramsey, Suit Nos. 730399 and 748992 (19th JDC – East Baton Rouge), Plaintiffs attempted to enjoin defendants from constructing a fence on Defendants lands lying outside the servitude of passage, because the plaintiffs would be limited to use the actual servitude acreage and not cut across Defendants’ land.
A predial servitude is a charge on the servient estate for the benefit of a dominant state.[1] Personal servitudes are different from predial servitudes in that they confer upon a person, rather than a dominant estate, a specified use of an estate less than for enjoyment.[2] However, insofar as they affect immovables, both are treated alike in that the rules, regulating predial servitudes also regulate personal servitudes affecting immovables.[3] In this respect, the landowner whose immovable property is burdened by the servitude of passage, falls under the classification of the servient estate and the owner of the servitude is classified as the dominant estate in the code articles relating to predial servitudes. A right of passage is an example of a predial servitude.[4]
La. Civil Code article 748 states that “the owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude”. At least one Louisiana court has touched upon the term “tending” in Louisiana Civil Code article 748.[5] The court in Hymel stated that “the word tend means to move or extend in a certain direction or to be disposed or inclined”. The court stated that the construction (within the servitude) at issue in the case did not have to completely interfere with or substantially make inconvenient the use of the servitude, but that the said construction merely had to cause the use of the servitude to be interfered with or made more inconvenient. Building a fence outside of the servitude tract could not make the use of the servitude more inconvenient unless the dominant estate owners were attempting to use property outside of said servitude.
Accordingly, the owner of the servient estate may use his property as he sees fit, but he may do nothing to diminish or make more inconvenient the use of a servitude. Whether the ownerof the servient estate has diminished or made more inconvenient the use of the servitude is a question of fact, and for resolution of this question courts take into account all of the circumstances, including the situation of the estates, agreements of the parties, and the prejudice that the owner of the dominant state has sustained.[6] Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.[7] According to the recorded plat creating the servitude of passage, building of the fence, outside of the servitude tract, is not an infringement of the use by Plaintiffs.
The entire petition failed to contain any allegation which might entitle Plaintiff to the injunctive relief sought. Plaintiffs pled that they are entitled to a servitude of passage based on a recorded plat. The plat is recorded in East Baton Rouge at Original 424, Bundle 10548 and the existence and location of the servitude is not disputed by Defendants. Plaintiffs also pled that Defendants are constructing a fence along the boundary of the servitude line. The injunctive relief sought by Plaintiffs requests that Defendants refrain from constructing a fence on their own lands lying outside of the exterior geographic boundaries of the servitude tract. One cannot simply enjoy the use of another person’s land without some legal basis.
The public records doctrine does not create rights in a positive sense, but rather has the negative effect of denying the effectiveness of certain rights unless they are recorded.[8] Third persons are not allowed to rely on what is contained in the public records but can instead rely on the absence from the public record of those interests that are required to be recorded.[9] Any reliance on the factual allegations in the Petition outside of the public record would be an improper submission of evidence.[10] The Petition alleges uses of the property by Plaintiffs and their ancestors-in-title outside of the defined servitude area. Any use of lands lying outside of the servitude on the plat outside the Public Record is immaterial and impertinent to the Preliminary Injunction.[11] There are no allegations that the fence is to be constructed within the servitude tract, and as such, the Petition was insufficient to warrant injunctive relief as prayed for. The Court inboth cases issued an injunction, then dissolved same after review of the law and facts at a hearing for injunctive relief.
Under La. C.C.P. art. 3608, Defendants are entitled to damages for the wrongful issuance of a temporary restraining order on a motion to dissolve, including attorney’s fees for the services rendered in connection with the dissolution of the restraining order or injunction. C.C.P. art. 3608 provides that a court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.[12]
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[1] La. Civil Code art. 646.
[2] La. Civil Code art. 534 and art. 639.
[3]Parkway Development Corporation v. City of Shreveport, 342 So. 2d 151 (La. 1977).
[5]Hymel v. St. John the Baptist Parish School Board, 303 So. 2d 588 (La. App. 4Cir. 1974).
[6]Yiannopoulos, Louisiana Civil Law Treatise No. 4 (1983), Section 158; and see Louisiana Power and Light Company v. Roberts, 408 So. 2d 49 (La. App. 3Cir. 1981), writ denied 412 So. 2d 1111 (La. 1982).
[7]La. Civil Code article 730; see comment (b) to article 730; “the Louisiana Supreme Court has repeatedly declared that “servitudes are restraints on the free disposal and use of property, and are not, on that account, entitled to be viewed with favor by the law.”
[8] Camel v. Waller, 526 So.2d 1086, 1089-1090 (La. 1988).
[9] Id. at. 1090. See also, Succession of Horn, 02-430 (La.App. 5 Cir. 9/30/02) 827 So.2d 1241, 1246.
[10] Griffin v. Abshire, 04-0037 (La.App. 3 Cir. 6/2/02) 878 So.2d 750. [1] Palomeque v. Prudhomme, 95-0725, (La. 11/27/95), 664 So. 2d 88, 93.
[11] Palomeque v. Prudhomme, 95-0725, (La. 11/27/95), 664 So. 2d 88, 93.
[12] Hewitt v. Lafayette City-Parish Consol. Gov’t, 2016-0629 (La. 05/27/16); 193 So. 3d 149, 151.
