Lisa T. Scrantz, et al.
Marvin L. Smith
Landowners dispute right to cross over property
This case involved a dispute between neighboring landowners, over the issue of whether one neighbor had a right to cross over the other neighbor’s land.
The original landowners, not parties to this lawsuit, were a husband and wife who together owned a 119 acre parcel of land. They divorced, and the court split the land into three parcels, giving the wife a 19 acre parcel which contained the family home, and the husband two larger parcels on either side of her 19 acres, one 20 acre parcel and one 80 acre parcel. In order to allow the husband convenient access to both of his parcels, the court’s judgment of partition established a servitude of passage over an area of the wife’s parcel, which was sandwiched in between both of the husband’s properties. This judgment was then recorded in the parish records.
Over time, the husband sold his 80 acre parcel to his brother, and his 20 acre parcel was eventually inherited by his daughter upon his death. The wife sold her parcel to an unrelated couple, who are the current owners of the 19 acre parcel.
The dispute arose when the current owners of the two outside tracts attempted to cross the middle parcel of land with the home on it, to go in between their two bordering properties, an action to which the new owners of the middle parcel objected.
The relatives and owners of the two outside tracts filed suit, claiming that the right created by the judgment of partition was a predial servitude, granting to the husband and then to them a continual right of passage over the land.
The homeowners took the position that the servitude was in fact a personal servitude, granted only to the husband, and thus the right to cross over the land was attached to a particular person, not to the estate, and was extinguished when the husband no longer owned the land.
Louisiana law and its interpretation
In Louisiana, when there is a dispute between landowners involving a specific use of land or a parcel of land, often times the words “dominant estate,” “servient estate” and “servitude” are used. In simple terms, a dominant estate is real, immovable property that has an easement, or in Louisiana legal terms, a servitude, over another parcel of immovable property, which is called the servient estate. A servitude is a right to cross over or otherwise use another person’s land for a specific purpose.
Louisiana law breaks down the types of servitudes that exist over property into two basic classifications: a personal servitude and a predial servitude. A personal servitude is a charge on a thing for the benefit of a specific person only. La.Civ.Code art. 534. A predial servitude is a charge on a servient estate (land) for the benefit of a dominant estate (land rather than person). La.Civ.Code art. 646.
The classification of a servitude over land as personal or predial determines whether that servitude attaches to the person or to the land. This distinction is critical. If the servitude is personal, the right granted by the servitude attaches to the particular person, and is extinguished when that person’s ownership of the land ends. If the servitude is predial, the right granted attaches to the property, and is thus transferable via sale and can exist through multiple owners.
When it is not clear from the text of the act granting the servitude whether the right granted is for the benefit of a person or an estate, the nature of the right is interpreted based on whether the right confers an actual advantage to an estate, in which case it is predial, or whether the advantage conferred is for the convenience of a particular person, in which case it is classified as a personal servitude. La.Civ.Code art. 732-34. If it is a predial servitude, “any doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.” La.Civ.Code art. 730.
In the instant case, the court found that following the divorce, the judgment of partition conferring the servitude was ambiguous as to whether the right of passage was granted for the benefit of the estate or for a particular person. However, the judgment specifically stated that the servitude of passage across the 19 acres was granted “to provide the husband access to the eighty (80) acres that were allocated to him.” (Scrantz v. Smith, 15-214 La.App. 3rd Cir. 2015, 8). Though the act creating the servitude did not identify which type of servitude it granted, it did identify a particular person it was meant to benefit. The text was clear that the servitude was intended to benefit the husband.
As such, pursuant to the Louisiana Civil Code, the court resolved any doubt as to the type of servitude created in favor of the servient estate. The court determined that the servitude established in the judgment was created specifically to provide the husband access to his 80 acre parcel, and was not established for the benefit of the land owner or for the estate generally.
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