Kiran of Monroe v. Gap Farms

381 So.3d 254

55,417 (La.App. 2 Cir. 2/28/24)

KIRAN OF MONROE, LLC, Plaintiff-Appellant

v.GAP FARMS, LLC, Defendant-Appellee

No. 55,417-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment Rendered February 28, 2024

Appealed from the Second Judicial District Court for the Parish of Bienville, Louisiana, Tidal Court No. 43,816, Honorable William R. "Rick" Warren, Judge

AMY MILLER ATTORNEY AT LAW, By: Amy Josephine Miller, Michael Stephen Coyle, Ruston, DIMOS ERSKINE, LLP, By: Robert L. Garner, Counsel for Appellant

WIENER, WEISS & MADISON, APC, Shreveport, By: Roger Joseph Naus, Seth M. Moyers, Counsel for Appellee

Before ROBINSON, HUNTER, and MARCOTTE, JJ.

HUNTER, J.

₁Plaintiff, Kiran of Monroe, LLC appeals a trial court judgment which ruled (1) Kiran lacked authority to construct a driveway across defendant’s, Gap Farms, Inc. property, which is dedicated to the public for utility services, and (2) the Town of Arcadia "improperly and without authority" issued a permit to Kiran for construction of a driveway on Gap Farms property. For the following reasons, we affirm.

FACTS

Plaintiff, Kiran of Monroe, LLC, (hereinafter "Kiran"), is the owner of immovable property in Bienville Parish on which Kiran owns and operates a convenience store. Defendant, GAP Farms, LLC, (hereinafter "Gap Farms"), is the owner of immovable property adjacent to Kiran’s property. The parties stipulated "the Kiran Tract borders along the easterly boundary of Lot 5 of the Gap Farms Tract as well as along a portion of the northerly boundary of Lot 5 as said lot approaches the intersection of Gap Farms Road and Louisiana Hwy. No.151."

Gap Farms dedicated a certain portion of its property to the Town of Arcadia for road and utility services and obtained a permit to build the public road now known as Gap Farms Road. The plat and road dedication were recorded in the conveyance records in December 2009, and the dedication provided:

Pursuant to the provisions of La. R.S. 33:5051(7) and the laws and ordinancesof the Town of Arcadia, Bienville Parish, Louisiana, GAP Farms LLC, Stephen Cloy Gantt, Danny K. Prince, and Lenn D. Prince, as the full fee title owners of the property described hereon, hereby dedicate the road rights of way and utility servitudes shown hereon to public use. This dedication being for the use of said property for road and utility purpose ₂only, reserving unto said owners, its successors and assigns, the full fee of said property in full ownership including, but not limited to, all oil, gas and other minerals on, in under or that which may be produced therefrom

There is a small strip of land between Gap Farms Road and the southern border of Kiran’s property. On December 23, 2015, Kiran filed a petition to fix boundary for declaratory relief and injunctive relief against Gap Farms seeking recognition of its right to use the strip of property at issue to access Gap Farms Road.¹ On March 4, 2022, the parties filed into the record joint stipulations including a consent judgment which settles the boundary. The consent judgment provides the strip of land at issue "is owned exclusively by Gap Farms LLC, subject to a utility servitude."²

On March 5, 2017, Kiran filed for a permit with the Town of Arcadia to build a driveway from their property to Gap Farms Road. On March 14, 2017, the Town of Arcadia issued the permit for Kiran to build the driveway. Gap Farms maintain Kiran is not authorized to do so.

Following a trial on the merits, the trial court found Kiran had no authority to use the utility servitude as a right of way, and the Town of Arcadia lacked authority to permit a driveway across the utility servitude.

Kiran of Monroe, LLC appeals.

DISCUSSION

[1] ₃Kiran contends the trial court erred in denying the authority to construct a driveway over the property which would be in accordance with the purpose of the servitude and in alignment with public policy. Kiran states the dedication creating the servitude does not distinguish between road and utilities use. Instead it states the servitude is for "the use[..]road and utilities purposes."

Additionally, Kiran argues the trial court erred in finding the Town of Arcadia "improperly and without authority" issued a permit for construction of a driveway. Kiran stated the lower court reason was due to the permit describing "Gap Farms Road as running along the southern boundary of the property of Kiran which is incorrect as it runs along the southern boundary of the Gap Farms, LLC property dedicated for a utility easement." The permit instead identifies the utility servitude area – not Gap Farms Road alone – as running along the southern boundary of Kiran’s property.

[2–6] The standard of appellate review for judgments regarding servitudes are re- viewed under the manifest error standard of review. An appellate court may not set aside a trial courts finding of fact unless they are manifestly erroneous or clearly wrong. To reverse under the manifest error rule, an appellate court must find from the record no reasonable basis for the trial courts finding and the record shows the finding to be manifestly erroneous. However, legal errors are reviewed under the de novo standard of review. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.1026 Conti Condominiums, LLC v. 1025 Bienville, LLC, 2015-0301 (La. App. 4 Cir. 12/23/15), 183 So. 3d 724, writ denied, 2016-0144 (La. 3/14/16), 189 So. 3d 1067.

₄In this case, Kiran contends the construction of a driveway over the servitude would be in accordance with its purpose. However, Kiran acknowledges in the consent judgment the strip of land at issue is subject to an utility servitude and owned exclusively by Gap Farms. Under La. C.C.P art. 730, any doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate. 1026 Conti Condominiums, LLC v. 1025 Bienville, LLC, supra. Thus, the manner of exercise would be utility services such as electricity, water, sewer; however, Kiran’s use of the land as a right of way is misuse of the servitude.³

Furthermore, according to La. C.C.P. art. 705 a servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are permitted to pass through the servient estate. Here, Kiran’s misuse of the land to provide vehicles with a right of way onto the servient estate –Gap Farms property—is not permitted as the servitude is for utilities. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate. As stated in the dedication language of the 2009 Plat, "This dedication being for the use of said property for road and utility purpose only." Thus, Kiran cannot expand the use of the servitude. 1026 Conti Condominiums, LLC v. 1025 Bienville, LLC, supra.

Kiran also argues the construction of a driveway is in alignment with Louisiana public policy. Kiran relies on the appellate court decision in ₅Melancon v. Giglio, 96-2507 (La.App. 1 Cir. 3/13/98), 712 So. 2d 535), which granted Melancon the authority to construct a driveway over the entire 60-foot strip of land designated as Westgate Boulevard. The court reasoned in pertinent part:

Since Westgate Boulevard was a 60-foot wide

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