Opinion
2023 CA 0921 2023 CA 0922
03-13-2024
HOPE HOLDINGS, INC. v. MODERN AMERICAN RECYCLING SERVICES, INC. MODERN AMERICAN RECYCLING SERVICES, INC. v. TURNKEY OFFSHORE PROJECT SERVICES L.L.C. AND HOPE HOLDING, INC.
George J. Nalley, Jr. Metairie, Louisiana Counsel for Appellees, Hope Holding, Inc., Turnkey Offshore Project Services, Inc., and Offshore Express, LLC Gavin H. Guillot Jacob A. Altmyer New Orleans, Louisiana Counsel for Appellant, Modern American Recycling Services, Inc.
On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Trial Court Docket Number 190452, 190501, Div. B Hon. Jason A. Dagate, Judge Presiding
George J. Nalley, Jr. Metairie, Louisiana Counsel for Appellees, Hope Holding, Inc., Turnkey Offshore Project Services, Inc., and Offshore Express, LLC
Gavin H. Guillot Jacob A. Altmyer New Orleans, Louisiana Counsel for Appellant, Modern American Recycling Services, Inc.
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
PENZATO, J.
These consolidated appeals concern the disputed ownership of certain portions of immovable property in Terrebonne Parish, Louisiana. Modern American Recycling Services, Inc. ("MARS") seeks reversal of two judgments finding that Hope Holding, Inc. owns the disputed property, setting the boundary as prayed for by Hope, ordering MARS to vacate the disputed sections, and finding MARS does not have a servitude by destination of the owner on Hope's property. For the following reasons, we affirm both judgments.
At various times, Hope Holding, Inc. is also referred to as "Hope Holdings, Inc." Because judgment was rendered in favor of "Hope Holding, Inc.," we likewise refer to the entity as "Hope Holding, Inc."
FACTS AND PROCEDURAL HISTORY
Hope and MARS are competitors engaged in businesses concerning removal, installation, and/or recycling of offshore platforms. Both own property on Menard Road, and each claim ownership of two additional sections of land -one is 40 feet wide ("the north 40") and the other is 100 feet wide ("100 ft section"). Between 1971 and 1990, the north 40 and the 100 ft section formed part of Menard Road (now referred to as "old Menard Road").
The property undisputedly owned by Hope and MARS, as well as the disputed sections, are shown on the plat excerpt below. Each tract is identified by its municipal address on Menard Road for ease of reference. Hope owns the tracts marked on the plat below as 115, 231, and 235. MARS owns the tracts marked as 168, 306, and 403. The north 40 lies between 115 Menard Road and 168 Menard Road and encompasses the land from the center line of old Menard Road to the north. The 100 ft section lies between 168 Menard Road and 306 Menard Road. The north 40 and the 100 ft section are identified by black boxes shown below.
The imbedded plat is an excerpt from "Plaintiffs Exhibit 3" introduced into evidence at trial by Hope. The text indicating the municipal addresses (115, 168, 306, 403, 231, and 235) and the word "SLIP" appear on the original exhibit, but the black boxes on the north 40 and the 100 ft section were added by this court for ease of reference. For the same reason, this court enlarged the text "SLIP."
The southern 40 feet of old Menard Road, which is undisputedly within the boundary of 168 Menard Road, encompasses the land from the center line of old Menard Road to the south.
(Image Omitted)
A privately-owned slip lies between Hope's property located at 115, 231, and 235 Menard Road and MARS's property located at 306 and 403 Menard Road. Each party's ownership extends from their respective tracts to the center of the slip. Since Hope owns the tracts that flank the mouth of the slip, which provides access to the Houma Navigation Canal, MARS has no ingress or egress to the Canal, absent Hope's permission or evidence of a servitude in MARS's favor.
In its petitory and boundary action, Hope alleged MARS was "improperly and illegally" using the north 40 and the 100 ft section. Hope prayed for judgment recognizing it as the owner of both areas and ordering MARS to vacate and immediately surrender possession of the property to Hope. Hope additionally sought to have the boundary between Hope and MARS's contiguous properties set in accordance with the ownership of the properties.
In its petition, MARS sought judgment in its favor declaring that it owns the north 40 and 100 ft section and prayed for damages for loss of use of and damage to its property. MARS also sought injunctive relief, preventing Hope from further disturbing MARS's "real right of a predial servitude to pass" through Hope's property, i.e., 115, 231, and 235 Menard Road, for the purpose of accessing the Houma Navigation Canal. MARS named Hope and Turnkey Offshore Project Services, LLC as defendants (collectively, "Hope") as well as Offshore Express, LLC, the one-time owner of all of the Menard Road properties and Hope and MARS's common ancestor-in-title. The suits were consolidated on March 23, 2021.
Hope is an owner of Turnkey. The parties made no distinction between Hope and Turnkey; therefore, neither does this court. Reliant Recycling, Inc. was also named as a defendant in MARS's amended petition but was dismissed without prejudice on December 14, 2021.
The matter proceeded to a bench trial in August 2022. After taking the matter under advisement, the trial court issued oral reasons for judgment and signed two judgments on October 21, 2022, ruling in favor of Hope and Offshore Express and against MARS in all respects. Specifically, the trial court signed a judgment in Hope's petitory and boundary action (docket no. 190,452), recognizing Hope as the legal owner by title of the north 40 and the 100 ft section, setting the boundary between Hope and MARS's property as prayed for by Hope, and ordering MARS to vacate the north 40 and the 100 ft section. The second judgment, which addressed MARS's petition (docket no. 190,501), denied all relief prayed for by MARS. Pertinently, the trial court held that MARS has no legal right or servitude to traverse the portions of the slip owned by Hope.
The judgment issued in docket no. 190,501 states that "Exhibit Judgment A," "Exhibit Judgment B," "Exhibit Judgment C," and "Exhibit Judgment D" are attached. However, each attached document contains two identifications. For instance, "Exhibit Judgment A" is also identified as "Exhibit B." Nevertheless, because each attachment is identified as stated in the judgment, it is clear which exhibit is being cited. Therefore, we find the judgment is sufficiently precise, definite, and certain. See Carter v. Carter, 2021-1173 (La.App. 1st Cir. 5/12/22), 342 So.3d391,394.
MARS filed the instant appeal, asserting the trial court erred by failing to give proper effect to certain evidence and testimony introduced at trial, failing to apply La. R.S. 48:702 and La. R.S. 9:2981, and by concluding that Hope, rather than MARS, owns the north 40 and the 100 ft section. MARS further maintains the trial court erred by failing to find an apparent servitude was created by "destination of the owner" pursuant to La. C.C. art. 741.
ADDITIONAL FACTS ESTABLISHED AT TRIAL
Much of the dispute concerns whether the north 40 and the 100 ft section are encompassed within 168 Menard Road owned by MARS. The record establishes that Walter Land Company previously owned 168 Menard Road. On June 8, 1971, Walter Land constructed old Menard Road and dedicated a right of way and servitude for the road to the Terrebonne Parish Police Jury. The "Grant of a Servitude of Right of Way" expressly stated that Walter Land granted a right of way and servitude and was not conveying full ownership to the Terrebonne Parish Police Jury.
On April 2, 1990, Walter Land sold 168 Menard Road to Offshore Express. The property, comprised of three tracts, was described and depicted on a plat dated March 20, 1990, attached to the act of cash sale between Walter Land and Offshore Express. The March 20, 1990 plat was prepared by Keneth Rembert, who the trial court accepted as an expert in the field of land surveying. An excerpt of this plat appears below, with highlights added by Mr. Rembert at trial.
(Image Omitted)
Mr. Rembert testified that he established the boundaries shown on the March 20, 1990 plat using the legal descriptions found in the public records. Mr. Rembert identified the northern boundary of all tracts comprising 168 Menard Road as the center of (old) Menard Road, stopping immediately before the highlighted section, which is the north 40 (bordered by A-B-F-G). Mr. Rembert further testified that the eastern boundary of 168 Menard Road abutted but did not include any portion of (old) Menard Road (i.e., the highlighted 100 ft section bordered by G-H). Therefore, according to Mr. Rembert's testimony and his March 20, 1990 plat, Offshore Express did not acquire the north 40 or the 100 ft section when it purchased 168 Menard Road from Walter Land. However, Offshore Express eventually acquired all other Menard Road properties.
On May 25, 1990, Offshore Express and the Terrebonne Parish Consolidated Government ("TPG") entered an "Act of Exchange," wherein TPG dededicated, vacated, and abandoned the Menard Road right of way, originally granted by Walter Land in favor of Offshore Express, its heirs, successors, and assigns. Thus, the property that formed old Menard Road reverted to Offshore Express free of any encumbrances. In the same Act of Exchange, Offshore Express granted and dedicated a portion of 168 Menard Road in favor of TPG, where the new Menard Road would later be constructed to the west and south of old Menard Road.
In August 2018, Offshore Express and Epic Companies, LLC entered a master agreement, wherein Epic agreed to perform certain work for Offshore Express, and, in exchange, Offshore Express would convey certain Menard Road properties to Epic. Pursuant to this agreement, Offshore Express transferred 168 Menard Road to Epic on November 19, 2018 and transferred 306 and 403 Menard Road to Epic on January 14, 2019. While the work was being performed, Offshore Express granted a lease to Epic to use all Menard Road properties.
Before completing the anticipated work, Epic entered bankruptcy. Offshore Express subsequently entered the same agreement with Hope as it had with Epic -an exchange of property for completed work. Hope leased the remaining Menard Road properties from Offshore Express while the work was being performed.
In January 2020, MARS purchased 168, 306, and 403 Menard Road from Epic through the bankruptcy court. MARS contends that it acquired the north 40 and the 100 ft section in this purchase. On December 31, 2020, Offshore Express conveyed 115, 231, and 235 Menard Road, as well as the 100 ft section, to Hope. Hope maintains that, through this conveyance, it owns the north 40 and the 100 ft section.
OWNERSHIP OF THE NORTH 40 AND THE 100 FT SECTION
The petitory action is available for the recovery of immovable property and is brought by a person who claims ownership, but who is not in possession, of immovable property, against another who is in possession or who also claims ownership, to obtain judgment recognizing the plaintiff's ownership. La. C.C.P. art. 3651; George M. Murrell Planting & Manufacturing Co. v. Dennis, 2006-1341 (La.App. 1st Cir. 9/21/07), 970 So.2d 1075, 1079. In a boundary action, the court shall render a judgment fixing the boundary between contiguous lands in accordance with the ownership or possession of the parties. See La. C.C. arts. 785 and 786; La. C.C.P. arts. 3691 and 3693; Fabre v. Manton, 2021-1418 (La.App. 1st Cir. 6/28/22), 343 So.3d 821, 826. We review the trial court's factual findings on these issues under the manifest error standard of review. See_ Fabre, 343 So.3d at 827. We consider MARS's arguments concerning the trial court's failure to apply La. R.S. 48:702 and La. R.S. 9:2981 under the de novo standard of review. LPR, L.L.C. v. Naquin, 2020-0847 (La.App. 1st Cir. 2/19/21), 319 So.3d 369, 373-74.
To reverse a fact finder's determination under this standard, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist for the finding and further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Fabre, 343 So.3d at 827 n. 5.
Legal findings of a trial court are assessed by a court of appeal using the de novo standard of review. To the extent a trial court's decision was based on its erroneous interpretation or application of law, such decision is not entitled to deference. Accordingly, a court of appeal is required to determine whether the trial court applied the law appropriately. LPR, L.L.C., 319 So.3d at 373-74.
It is undisputed that MARS was in possession of the north 40 and the 100 ft section prior to trial. Therefore, Hope was required to prove it acquired ownership from a previous owner or by acquisitive prescription. See La. C.C.P. art. 3653. A plaintiff proves his title when he proves ownership either by an unbroken chain of valid transfers from the sovereign or an ancestor in title common with the defendant Egle v. Kidd, 442 So.2d 669, 674 (La.App. 1st Cir. 1983), citing Pure Oil Company v. Skinner, 294 So.2d 797 (La. 1974).
In oral reasons for ruling, the trial court identified the 1990 exchange as the "crux" of the issue of ownership of the north 40 and the 100 ft section, particularly, whether the exchange accomplished the dededication and dedication of rights or was an exchange of ownership. On appeal, MARS asserts the trial court failed to give proper legal effect to the exchange and contends the 1990 exchange transferred ownership of the north 40 and the 100 ft section to Offshore Express and became part of 168 Menard Road. According to MARS, Offshore Express then transferred ownership of these areas to Epic, who transferred them to MARS. Contrary to MARS's argument, Hope asserts the 1990 exchange was an exchange of servitudes, not a transfer of ownership. The trial court agreed with Hope.
After reviewing the record in its entirety, we find no manifest or legal error in the trial court's conclusion that the 1990 Act of Exchange did not transfer ownership of the north 40 and the 100 ft section and neither area became part of 168 Menard Road. The evidence supports the trial court's conclusion that Hope, not MARS, owns the north 40 and the 100 ft section; therefore, the trial court properly set the boundary between Hope and MARS's contiguous properties in accordance with this finding.
The trial court noted that in 1971, Walter Land "clearly and unambiguously dedicated a right and servitude" on old Menard Road in favor of the Terrebonne Parish Police Jury. By May 1990, all of the property included in the 1971 dedication of a servitude of right of way, forming old Menard Road, was owned by Offshore Express.
Remy Donnely, a Louisiana attorney, testified at trial after being accepted as an expert in the field of title opinions and real estate transactions. Mr. Donnely opined that neither the 1971 transaction between Walter Land and the Terrebonne Parish Police Jury nor the 1990 exchange between Offshore Express and TPG transferred ownership. Instead, the 1971 transaction granted a right of way, and the 1990 exchange "flipped" the location the right of way granted in 1971.
Mr. Donnely examined the title to the Menard Road properties owned by Offshore Express in 2017 and again in 2020, when he issued a title opinion in connection with the sale from Offshore Express to Hope. In connection with this work in 2020, Mr. Donnely examined the legal descriptions for adjoining properties to ensure all descriptions were consistent. He confirmed that the legal description of the property purchased by MARS, particularly 168 and 306 Menard Road, found in the public records was consistent with the legal descriptions on the bankruptcy conveyance documents and did not include the north 40 or the 100 ft section. Instead, Offshore Express owned the north 40 as part of 115 Menard Road, which it sold to Hope in 2020. Mr. Donnely confirmed the conveyance documents for 115 Menard Road and 168 Menard Road always had their respective boundaries in the center of old Menard Road.
MARS points out that the north 40 and the 100 ft section were not included in the title policy issued to Hope when it purchased the property from Offshore Express. However, Mr. Donnely issued the title opinion and policy at issue and explained that these areas were not insured due to the known, on-going dispute with MARS.
Mr. Donnely explained that Offshore Express owned the 100 ft section in 1990. After the 100 ft section became part of TPG's right of way, it "got stuck there by itself and was not included in the title for any other property, including 168 or 306 Menard Road. Therefore, Offshore Express owned the 100 ft section when it sold the area to Hope as a separate, distinct tract of land. Mr. Donnely opined that Hope has valid title and legal ownership of both the north 40 and the 100 ft section.
Additional experts called by Hope - Ewell "Corky" Potts, a Louisiana attorney also accepted as an expert in title opinions and real estate transactions, and Prosper Toups, accepted as an expert in the field of land surveying - provided testimony consistent with Mr. Donnely's opinions.
Mr. Rembert, MARS's expert, initially offered opinions contrary to those of Mr. Donnley, Mr. Potts, and Mr. Toups. On direct examination, Mr. Rembert testified that the 1990 exchange transferred ownership of the north 40 and 100 ft section to Offshore Express; consequently, these areas were "absorbed" into 168 Menard Road. Thus, the transfer of 168 Menard Road by Offshore Express to Epic then by Epic to MARS included the north 40 and the 100 ft section. Mr. Rembert opined that MARS owns the north 40 and 100 ft section.
Mr. Rembert acknowledged that the center of old Menard Road was the northern boundary of 168 Menard Road before the 1990 exchange, consistent with the March 20, 1990 plat, and the legal description of 168 Menard Road never included the north 40 or the 100 ft section. However, Mr. Rembert believed this was a "discrepancy" in the description because subsequent drafters failed to take the exchange into consideration. Mr. Rembert opined that, as a result of the exchange, the boundary of 168 Menard Road extended beyond the legal description contained in the bankruptcy conveyance. When Mr. Rembert plotted MARS's property after the bankruptcy purchase, he relied on his interpretation of the 1990 exchange, not the act of sale conveying ownership from Epic to MARS. Believing the 1990 exchange transferred ownership of the north 40 and 100 ft section, he included those areas within the boundary of 168 Menard Road owed by MARS.
On cross, Mr. Rembert agreed with counsel for Hope that the 1990 exchange did not refer to a transfer of ownership and, in fact, said the opposite, referring only to a right of way. Mr. Rembert ultimately conceded that the exchange did not convey ownership, as he initially believed, and that, after the 1990 exchange, Offshore Express continued to "own what's under the road." The trial court described this as an "'ah-ha' moment." In its oral reasons, the trial judge observed, "It was very apparent" to the court "watching and listening to the testimony of Mr. Rembert" on cross-examination that "Mr. Rembert came to a resolution that he made a mistake while he was doing the survey because of his interpretation of the language from the 1990 Act of Exchange."
On appeal, MARS asserts Mr. Rembert "clarified" his opinions on re-direct examination and argues the trial court failed to "credit" Mr. Rembert's opinion that the 1990 exchange affected ownership of the north 40 and 100 ft section. However, it is evident from the record the trial court's findings are based on its observations of witness demeanor, tone of voice, inflection, etc. In these instances, the manifest error standard demands great deference be afforded to the trial court's conclusions. See Knecht v. State Farm Mutual Auto. Ins. Co., 2022-0508 (La.App. 1st Cir. 11/4/22), 354 So.3d 734, 737, writ denied, 2022-01757 (La. 2/7/23), 354 So.3d 668, citing Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where there are two permissible views of the evidence, including conflicting expert opinions, the factfinder's choice cannot be manifestly erroneous or clearly wrong. Adams v. Rhodia, Inc., 2007-2110 (La. 5/21/08), 983 So.2d 798, 806-07; Knecht, 354 So.3d at 738.
In its oral reasons, the trial court acknowledged that MARS "attempted to rehabilitate" Mr. Rembert on re-direct; however, the trial court concluded, through its own examination of the 1990 exchange, that the document did not transfer ownership. The trial court observed that the 1990 exchange "clearly dededicated what was dedicated in 1971" by Walter Land and exchanged the 1971 right of way for the current right of way, where the new Menard Road exists. We agree.
The face of the 1990 exchange clearly and unambiguously reflects the agreement was not an exchange of ownership. For instance, the 1990 exchange stated the TPG Parish Council enacted an ordinance authorizing the abandonment of (old) Menard Road. The referenced ordinance expressly revoking the "dedicated right-of-way" was attached to the Act of Exchange. Additional exhibits attached to the exchange provide a "DESCRIPTION OF DEDEDICATION OF RIGHT-OF WAY ON MENARD ROAD BY [TPG] ON PROPERTY BELONGING TO OFFSHORE EXPRESS, INC." and a "DESCRIPTION OF RIGHT-OF-WAY ON MENARD ROAD FOR [TPG ON PROPERTY] BELONGING TO OFFSHORE EXPRESS, INC." This was also reflected on the April 2, 1990 plat attached to the exchange:
In a formal dedication, the ownership of the property is transferred to the public, unless it is expressly or impliedly retained by the transferor. There is an implied reservation of ownership when the act of dedication expressly conveys to the public a servitude only, or when land is dedicated to public use for designated uses without express transfer of ownership. In either case, the interest that the public acquires is a servitude of public use. A.N. Yiannopoulos & Ronald J. Scalise, Jr., Louisiana Civil Law Treatise: Predial Servitudes §11:19 (4th Ed.); see also Boutte Assembly of God, Inc. v. Champagne, 00-340 (La.App. 5th Cir. 12/27/00), 777 So.2d 619, 624.
(Image Omitted)
Finally, the parties to the exchange acknowledged that "the value of the two servitudes exchanged...[were] of equal value." Mr. Potts cited this language as further indication the exchange intended to relocate the right of way. The trial court similarly found this persuasive, noting full ownership would be of more value than a servitude. Thus, the court was "not convinced" Offshore Express and TPG exchanged the right of servitude for full ownership.
MARS relies, in part, on language in the 1990 exchange, which refers to the dededication and dedication of "tracts of land," to support its assertion that ownership was transferred, not rights of way. We find no merit in this argument. As Mr. Potts noted, the term "tract" does not necessarily refer to ownership. A servitude may also cover a "tract" of land.
On appeal, MARS asserts the 1990 exchange was a "land swap" pursuant to La. R.S. 48:702. It relies on language in the 1990 exchange, which stated that the ordinance authorized the abandonment of old Menard Road pursuant to La. R.S. 48:702. Thus, MARS argues the trial court committed legal error by failing to "give proper legal effect under La. R.S. 48:702 to the abandonment" of old Menard Road under the 1990 exchange.
Louisiana Revised Statutes 48:702 pertinently provides that, when the parish governing authorities desire to construct a road and it appears the construction will make it unnecessary to the public welfare to continue any then-existing road, the parish may, by proper ordinance, revoke and set aside the dedication of the road and exchange it with property owners, so that a new road may be laid out and dedicated to the public use. "The property so exchanged shall become private property." La. R.S. 48:702. For guidance interpreting this provision, we look to La. R.S. 48:701, which, similar to La. R.S. 48:702, provides that a parish may revoke and set aside the dedication of all roads dedicated to public use when said roads have been abandoned or are no longer needed for public purposes. "Upon such revocation, all of the soil covered by and embraced in the roads...up to the center line thereof, shall revert to the then present owner or owners of the land contiguous thereto." La. R.S. 48:701. The court in U.S. Silica Co. v. Wooldridge, 34,763 (La.App. 2d Cir. 10/31/01), 799 So.2d 693, 697 recognized that La. R.S. 48:701 is based on a legislative assumption that the original dedication to public use vested ownership of the land in the parish. Therefore, La. R.S. 48:701 does not apply where the grantor did not relinquish ownership of the dedicated property but, instead, granted only a servitude for public use. Where there is a servitude of public use and the road is abandoned, the land reverts free of any servitude to the landowner who made the dedication or to the subsequent purchaser if the grantor conveyed his fee title interest in the land subsequent to the dedication. U.S. Silica Co., 799 So.2d at 696. See also A.N. Yiannopoulos & Ronald J. Scalise, Jr., Louisiana Civil Law Treatise: Property §6:16 (5th Ed.) (Louisiana Revised Statutes 48:701 may be constitutionally applied only to roadbeds owned by the public, as in the case of formal or statutory dedication. It is inapplicable, despite its broad language, to roadbeds that were merely subject to a servitude of public use.)
MARS does not cite Louisiana jurisprudence interpreting La. R.S. 48:702 on this issue, and this court found none. Because La. R.S. 48:701 and 48:702 relate to the same subject matter, they must be read together. See, Tillman v. Nationwide Mutual Ins. Co., 2020-0250 (La.App. 1st Cir. 2/22/21), 321 So.3d 1017,1021, writ denied, 2021-00429 (La. 5/25/21), 316 So.3d446.
We find La. R.S. 48:702 is likewise based on the legislative assumption that the parish owns the dededicated and abandoned road. Otherwise, this statute would purport to allow the parish to exchange and convey ownership of land it does not own. The plain wording of La. R.S. 48:702 also supports this interpretation, particularly in the sentence relied on by MARS: "The property so exchanged shall become private property." (Emphasis added.) La. R.S. 48:702.Thus, before the dededication and abandonment of the road, the property is owned by the parish. After the "land swap" envisioned by La. R.S. 48:702, the land once owed by the parish becomes private property.
See Champagne v. American Alternative Ins. Corp., 2012-1697 (La. 3/19/13), 112 So.3d 179, 183 (Statutes must be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the legislature had in enacting it. Courts should give effect to all parts of a statute and should not adopt a statutory construction that makes any part superfluous or meaningless if that result can be avoided.)
We agree the north 40 and the 100 ft section were Offshore Express's private property; however, neither area was included within the legal description of 168 Menard Road in the conveyance from Offshore Express to Epic then from Epic to MARS. Offshore Express owned all property encompassing and surrounding old Menard Road, particularly 115, 168, and 306 Menard Road. As Mr. Potts explained, nothing prohibited Offshore Express from selling 168 Menard Road with whatever legal description it chose. The record is clear that Offshore Express chose not to convey the north 40 or the 100 ft section to Epic. Therefore, we find no merit in MARS's argument concerning the application and effect of La. R.S. 48:702.
Finally, MARS argues the trial court failed to apply the conclusive presumption created by La. R.S. 9:2981. Louisiana Revised Statutes 9:2981 pertinently provides that it "shall be conclusively presumed" any transfer of land abutting or contiguous to an abandoned road, the dedication of which has been revoked, shall be held, deemed, and construed to include all of grantor's interest in and to the abandoned road, in the absence of any express provision therein particularly excluding the abandoned property therefrom. MARS contends its title to 168 Menard Road includes the north 40 and the 100 ft section, regardless of whether the conveyance documents included these areas in the legal description of 168 Menard Road, because neither was expressly excluded in the conveyance documents.
As with La. R.S. 48:702, for an abandoned road to be divided between the present adjoining owners pursuant to La. R.S. 9:2981, there must be evidence of a prior dedication vesting the ownership of the roadbed in the public. See Dodds v. Manning, 315 So.2d 907, 909 (La.App. 1st Cir. 1975); A.N. Yiannopoulos & Ronald J. Scalise, Jr., Louisiana Civil Law Treatise: Property §6:16 (5th Ed.). Where, as here, the evidence establishes ownership did not vest in the public, the abandoned roadbed belongs to the owner on whose land it was built. This owner may have conveyed to a successor in title his interest to a roadbed under La. R.S. 9:2981, but if he has not done so, his successor may neither acquire nor convey the ownership of the bed of the abandoned road by virtue of this statute. See A.N. Yiannopoulos & Ronald J. Scalise, Jr., Louisiana Civil Law Treatise: Property §6:16 (5th Ed.). We agree with the trial court that Offshore Express conveyed ownership of the disputed portion of old Menard Road to Hope, not to Epic/MARS. Therefore, MARS did not acquire ownership of the north 40 or the 100 ft section by virtue of La. R.S. 9:2891.
Servitude by Destination of the Owner, Right to Use the Slip
MARS argues the trial court erred by failing to find an apparent predial servitude was created by destination of the owner, permitting MARS to traverse Hope's property to access the Houma Navigation Canal.
A predial servitude is a charge on a servient estate for the benefit of the dominant estate. La. C.C. art. 646. A right of passage is a predial servitude that permits passage through the servient estate. La. C.C. 699 and 705. A servitude of passage may be an apparent servitude, meaning that is evidenced by exterior signs, works, or constructions, such as a roadway. La. C.C. art. 707. If the servitude of passage is apparent, it may be acquired by destination of the owner. La. C.C. art. 740; Huy Tuyet Tran v. Misuraca, 2010-2183 (La.App. 1st Cir. 5/6/11), 2011 WL 2617382, *2 (unpublished).
Louisiana Civil Code art. 741 provides for the creation of a predial servitude by destination of the owner and states:
Destination of the owner is a relationship established between two estates owned by the same owner that would be a predial servitude if the estates belonged to different owners.
When the two estates cease to belong to the same owner, unless there is express provision to the contrary, an apparent servitude comes into existence of right and a nonapparent servitude comes into existence if
the owner has previously filed for registry in the conveyance records of the parish in which the immovable is located a formal declaration establishing the destination.
This article does not require an express provision for a servitude by destination of the owner to exist. Phipps v. Schupp, 2009-2037 (La. 7/6/10), 45 So.3d 593, 601.
It should be evident there is no servitude by destination under Article 741 unless there is proof the two estates belonged to the same owner, and it was he who established the relationship giving rise to the servitude. La. C.C. art. 741, Official Revision Comment (b). See Phipps, 45 So.3d at 598-602 (finding genuine issues of material fact concerning the common owner's intent to create a servitude by destination of the owner.) See also Buy Tuyet Tran, 2011 WL 2617382 at *3 (finding the common owner constructed a concrete roadway connecting the two tracts at issue, which was indisputably apparent and established a relationship between the tracts now owned by the plaintiff and defendant.) Whether an apparent servitude has been created is a factual determination reviewed under the manifest error, clearly wrong standard of review. Henry v. McKinney, 2021-1218 (La.App. 1st Cir. 6/2/22), 342 So.3d 985, 990, writ denied, 2022-01241 (La. 12/6/22), 350 So.3d 872. Here, the trial court concluded that, based upon the evidence, MARS failed to establish the existence of a servitude in its favor.
While the Official Revision Comments are not the law, they may be helpful in determining legislative intent. Arable v. CITGO Petroleum Corp., 2010-2605 (La. 3/13/12), 89 So.3d 307, 312.
MARS contends the trial court applied the wrong law, treating MARS's claim as an enclosed estate issue, pursuant to La. C.C. art. 689. There is no dispute that MARS's property is not an enclosed estate; therefore, this article does not apply. However, the trial court expressly considered MARS's argument concerning destination of the owner and stated, "This is certainly different than a land lock situation." Therefore, MARS's argument lacks merit.
While the record establishes Offshore Express owned all Menard Road properties surrounding the slip immediately before conveying 168, 306, and 403 Menard Road to Epic in 2018, there is no evidence Offshore Express created the slip, which is undisputedly man-made. There is likewise no evidence the slip was created by a different common owner who intended to create a relationship between the Menard Road properties via the slip.
In Phipps, 45 So.3d at 598-602, the Louisiana Supreme Court considered whether an apparent servitude by destination of the owner was created where the owner left a concrete driveway in place when he sold the tracts connected by the driveway. Offshore Express did not have the option to simply remove the slip prior to conveying the land to Epic; therefore, this consideration is not applicable.
Additionally, the evidence does not establish that Offshore Express intended this relationship. Brent Kallop, president of Offshore Express, testified that Offshore Express treated the Menard Road properties as one large yard, but he did not testify concerning the specific use of each tract, particularly those in the interior of the slip (306 and 403 Menard Road). Offshore Express conveyed the interior properties first, effectively cutting off their access to the Houma Navigation Canal, giving Epic access to other portions of the slip through the lease over the remaining Menard Road properties. Due to the size of the barges used in the business conducted on Menard Road, barges docked at the mouth of the slip (at 115, 235, and 231 Menard Road) may block slip access, making it difficult and time-consuming to accommodate a barge seeking passage to or from the interior portion of the slip at 306 and 403 Menard Road. This further demonstrates the slip was not intended to create a relationship between the Menard Road properties.
Mr. Kallop testified that he never gave MARS permission or authority to use portions of the slip it did not own. Although Offshore Express did not stop MARS from accessing the Houma Navigation Canal by traversing 115, 231, and 235 Menard Road, Mr. Kallop explained that Offshore Express was absent from the property and had no local employees by the time MARS took ownership.
This evidence supports the trial court's conclusion that MARS failed to establish the existence of a predial servitude by destination of the owner. See La C.C. art. 730 ("Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.") We find no manifest error in this ruling.
DECREE
The October 21, 2022 judgment rendered in docket number 190,452 in favor of Hope Holding, Inc. and against Modern American Recycling Service, Inc. is affirmed.
The October 21, 2022 judgment rendered in docket number 190,501 in favor of Hope Holding, Inc., Turnkey Offshore Project Services, Inc., and Offshore Express, LLC and against Modern American Recycling Services, Inc. is affirmed.
All costs of this appeal are assessed against Modern American Recycling Services, Inc.
JUDGMENTS AFFIRMED.