DUPRE v. DUPRE (2025)

Appellant, Tommy Dupre, appeals a judgment wherein the trial court recognized a servitude of passage but limited his use of the servitude by prohibiting commercial and/or public use. For the following reasons, we amend in part, render judgment, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

This matter arises from a dispute regarding a servitude of passage and involves several parcels of contiguous property located in Lafourche Parish.¹ The appellant, Tommy Dupre, and the appellee, David Dupre, are brothers. David and his wife Shirley, also named a defendant, own a 24.284-acre parcel of property identified as Tract 1-B. The adjacent 24.284-acre parcel, Tract 1-C, is owned by Tommy. A limestone road extends east from Louisiana Highway 316, becomes Weatherby Lane, and turns into Jewell Street Extension. Jewell Street Extension, the passage at issue, runs through David and Shirley's Tract 1-B and continues into Tommy's Tract 1-C.²

Tommy leases the rear portion of Tract 1-C to a commercial skeet shooting range. Jewell Street Extension is the only perceivable roadway that can be used to access the shooting range—by driving through David and Shirley's Tract 1-B via Jewell Street Extension onto Tommy's Tract 1-C. The use of Jewell Street Extension, and the nature and extent of any servitude of passage corresponding thereto, is the origin of the dispute between the parties.

All of the above property (collectively, the “Dupre family property”) was previously owned by the parties’ grandfather, David T. Dupre, who acquired it in 1939. In 1967, he sold the property in its entirety to Edwin and Dula Dupre, the parents of Tommy and David. Beginning in 2004, Edwin and Dula began subdividing and transferring the Dupre family property to their descendants.³ They donated Tract 1-B to David and Shirley on August 16, 2004.⁴ Edwin and Dula donated Tract 1-C to Tommy on September 9, 2005.

It is undisputed, that the Dupre family—along with their friends, guests, and tenants—used Jewell Street Extension for over fifty years to access and traverse the Dupre family property. Pertinent to the instant matter, the rear portion of Tommy's Tract 1-C has historically been used as a skeet shooting range accessible via Jewell Street Extension. Prior to donating Tract 1-C to Tommy, Edwin and Dula leased a portion of that tract to a skeet shooting club, Tri Parish Sporting Clays, L.L.C from approximately April 1, 2004, to April 1, 2016.

When the lease with Tri Parish Sporting Clays, L.L.C. ended in 2016, Tommy leased that same portion of Tract 1-C as a commercial skeet shooting range to Bayou Country Sporting Clays. The Dupre family and their friends, guests, and tenants used Jewell Street Extension to access the Dupre family property without any significant incidents until November 2021, when David and Shirley completed construction on and moved into their new family residence on Tract 1-B located next to the Jewel Street Extension. On September 28, 2022, David installed a gate across Jewell Street Extension to eliminate traffic and dust caused by patrons of the shooting range driving past his family residence. Since the erection of the fence, Tommy was forced to close his business operation.

In response, Tommy filed a petition for injunctive relief and for damages against David and Shirley on October 6, 2022, to judicially establish his right to a servitude of passage over Jewell Street Extension. Tommy argued that when he acquired Tract 1-C from his parents, he also acquired a predial servitude of passage over Jewell Street Extension, which has been used for over fifty years to access Tract 1-C, and more specifically, to access the shooting range leased to Bayou Country Sporting Clays.

Tommy also claimed that in 2021, David and Shirley subdivided a portion of Tract 1-B into lots. The Lafourche Parish Planning Commission (the “Commission”) approved a “Family Subdivision” designation on the subdivided lots, meaning the property was not serviced by public utilities maintained by the partish and was owned wholly by the members of the family. Tommy alleged as part of the Family Subdivision approval process, David and Shirley executed a Road and Drainage Maintenance Agreement on September 29, 2021, (sometimes referenced as “the Agreement”) which acknowledged the existence of “a servitude of passage and/or right of ingress and egress ․ in perpetuity” over Jewell Street Extension. (Emphasis in original). Under the terms of the Agreement, Tommy contended that a conventional servitude of passage existed over Jewell Street Extension. Tommy also argued, in the alternative, that he acquired a servitude of passage over Jewell Street Extension by acquisitive prescription pursuant to La. C.C. art. 742.⁵

Accordingly, Tommy sought a judgment establishing his right to a servitude of passage; a mandatory injunction requiring David and Shirley to remove all fences and barriers from the roadway; a preliminary injunction enjoining David and Shirley from placing any additional fences or barriers across the roadway; a preliminary injunction enjoining any future owner from placing a fence or barrier across the roadway; and an order that David and Shirley pay Tommy damages and attorney fees, together with all costs of the proceedings and interest from the date of judicial demand.

David and Shirley opposed Tommy's request for injunctive relief. First, David and Shirley argued that any conventional servitude that Tommy claimed existed under the Road and Drainage Maintenance Agreement executed by David and Shirley or by Tommy actually limited the servitude of passage corresponding to Jewell Street Extension and its use to “private among the landowners” of the lots comprising the family subdivisions. In addition to the Agreement executed by David and Shirley on September 29, 2021, David and Shirley argued that Tommy also subdivided Tract 1-C, and another tract owned by him, Tract 1-E, into lots that were also given “Family Subdivision” designations by the Commission, with identical Road and Drainage Maintenance Agreements corresponding thereto—executed on October 29, 2013,⁶ and February 23, 2021, respectively.⁷ As such, they argue that Tommy's tracts were also limited in use by the designation by the Commission.

Second, David and Shirley argued that Tommy may not expand the servitude corresponding to Jewell Street Extension to the general public or anyone else who is not a landowner of lots comprising the Dupre family subdivisions based on acquisitive prescription. To the extent that Tommy claimed that the shooting range patrons or the general public acquired a servitude of passage corresponding to Jewell Street Extension through acquisitive prescription, David and Shirley argued that any use of the roadway on Tract 1-B prior to the erection of the gates was done with their permission. That made Tommy, the shooting range patrons, and/or the general public precarious possessors.⁸ David and Shirley argued that acquisitive prescription cannot run when possession is precarious based on La. C.C. art. 3477 which states, “[a]quisitive prescription does not run in favor of a precarious possessor or his universal successor.”

The trial court held a hearing on December 19, 2022, on Tommy's request for a preliminary injunction. On January 18, 2023, the trial court entered a preliminary injunction in Tommy's favor that decreed: David and Shirley shall not prohibit Tommy from accessing Tract 1-C through Jewell Street Extension; David and Shirley shall open all barriers across Jewell Street Extension three days a week between the hours of 1:00 p.m. and 4:00 p.m. to allow shooting range patrons access to the shooting range located on Tract 1-C; and no person traveling on Jewell Street Extension shall exceed ten miles per hour.

David and Shirley filed an answer, affirmative defenses, and a reconventional demand against Tommy. David and Shirley alleged that prior to building their family residence on Tract 1-B, David and Tommy verbally agreed that Tommy would build a separate roadway on Tommy's own property (Tract 1-C) to allow patrons to access the shooting range and discontinue use of Jewell Street Extension. David and Shirley alleged they detrimentally relied on Tommy's concession to discontinue use of Jewell Street Extension and build a roadway on his own property when they decided to build their family residence on Tract 1-B. David and Shirley also alleged that Tommy fraudulently, intentionally, and negligently misrepresented that he would relocate the roadway onto Tract 1-C when David and Shirley built their family residence on Tract 1-B.

A bench trial was held on August 15, 2023. Several witnesses testified, all of whom had traversed Jewell Street Extension.⁹ After taking the matter under advisement, the trial court reconvened court the next day to give oral reasons for its ruling. As to Jewell Street Extension, the trial court held:

It is a predial servitude created with limitations[,] which appear to the [c]ourt to be very consistent with the fact that it sits on a family subdivision[,] which limits ownership of property in that subdivision to only family members. And it quite consistently restricts the use of the roadway to family members.

The trial court found “there was a servitude created and made part of ․ the plat map ․ and it was done with some restrictions. These restrictions appear to be consistent with the fact that there [has] also been created a family subdivision[,] which limits the sale of the property to only family members.” The trial court cited four cases demonstrating that limitations may be placed on a servitude to be used exclusively by family members or landowners of property comprising a subdivision. See Welch v. Planning & Zoning Commission of East Baton Rouge Parish & 2590 Associates, LLC, 2018-0197 (La. App. 1 Cir. 05/09/19), 280 So. 3d 204, writ denied, 2019-01276 (La. 10/21/19), 280 So. 3d 1169; Claitor v. Brooks, 2013-0178 (La. App. 1 Cir. 12/27/13), 137 So. 3d 63 8, writ denied, 2014-0198 (La. 04/04/14), 135 So. 3d 1182; Ventura v. McCune, 2014-95 (La. App. 5 Cir. 10/15/14), 184 So. 3d 46, writ denied, 2014-2576 (La. 02/27/15), 160 So. 3d 985; and McLure v. Alexandria Golf & Country Club, Inc., 344 So. 2d 1080 (La. App. 3 Cir. 1977);

Next, the trial court held that because the servitude was to be exclusively used by landowning Dupre family members, no servitude was created in Tommy's favor by acquisitive prescription. The trial court held that there was no period during which the servitude was adversely possessed. The trial court found that any use of Jewell Street Extension was done with either direct permission or implied consent of the predecessors-in-title, Edwin and Dula, and later, David and Shirley. Furthermore, the historic use of Jewell Street Extension to access the shooting range by Joseph “Petie” Dupre was done during a period of time when a shooting club leased a portion of Tract 1-C from Edwin and Dula. Upon termination of that lease, the trial court found that the operations of the shooting club continued on a month-to-month reconduction of the lease, in which case “it was still not an adverse possession.”

The trial court signed a judgment on October 27, 2023, that decreed: Tommy possesses a servitude of passage over Jewell Street Extension; that the use of Tommy's servitude is limited—commercial and/or public use is prohibited; denied any other relief sought by Tommy in his petition for injunctive relief and for damages; and denied all claims raised by David and Shirley in their reconventional demand and are not an issue on this appeal.

Tommy now appeals.¹⁰

STANDARD OF REVIEW

Injunctive Relief

The standard of review for the issuance of a permanent injunction is the manifest error standard. The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence. Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 2003-2220 (La. 04/14/04), 875 So. 2d 22, 29; ¹¹ Davenport v. Chew, 2023-0036 (La. App. 1 Cir. 09/15/23), 375 So. 3d 973, 976. Furthermore, judgments regarding servitudes are reviewed under the manifest error standard of review. W&T Offshore, L.L.C. v. Texas Brine Corp., 2017-0574, 2017-0575 (La. App. 1 Cir. 05/10/18), 250 So. 3d 970, 976, writs granted, 2018-0956, 2018-0950 (La. 10/08/18), 253 So. 3d 788, 788, aff'd in part, rev'd in part (on other grounds), 2018-0950, 2018-0956 (La. 06/26/19), 319 So. 3d 822 (per curiam), rehearing granted, 2018-00950 (La. 10/15/19), 280 So. 3d 605, rehearing recalled, 2018-00950, 2018-00956 (La. 01/29/20), 347 So. 3d 629 (per curiam).

The primary purpose of injunctive relief is to prevent the occurrence of future acts that may result in irreparable injury, loss, or damage to the applicant. See La. C.C.P. art. 3601. The writ of injunction is a harsh, drastic, and extraordinary remedy, which should only issue in those instances where the moving party is threatened with irreparable loss or injury and is without an adequate remedy at law. Davenport v. Chew, 375 So. 3d at 976. Irreparable injury means the loss cannot be adequately compensated through money damages or measured by a pecuniary standard. Id. However, a petitioner is entitled to injunctive relief without the requisite showing of irreparable injury when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right. Id.

An appellate court may not set aside a trial court's findings 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 that there is no reasonable basis for the trial court's finding and that the record shows the finding to be manifestly erroneous. W & T Offshore, L.L.C., 250 So. 3d at 976.

Predial Servitude of Passage

Whether an apparent servitude has been created is a factual determination reviewed under the manifest error, clearly wrong standard of review. Hope Holdings, Inc. v. Modern American Recycling Services, Inc., 2023-0921, 2023-0922 (La. App. 1 Cir. 03/13/24), 385 So. 3d 337, 349. Under the Louisiana Civil Code, servitudes are either personal or predial. La. C.C. art. 533. A personal servitude is a charge on a thing for the benefit of a person. See La. C.C. art. 534. In contrast, predial servitudes are established on, or for the benefit of distinct, corporeal immovables. La. C.C. art. 698; see also La. C.C. art. 646. A predial servitude is a charge on a servient estate for the benefit of the dominant estate, and the two estates must belong to different owners. La. C.C. arts. 646 and 648.

The estate burdened with a predial servitude is designated as the servient estate; the estate in whose favor the servitude is established is designated as the dominant estate. See Comment (d), Revision Comments—1977 to La. C.C. art. 646. Here, David and Shirley's Tract 1-B is the servient estate; Tommy's Tract 1-C is the dominant estate. Pursuant to La. C.C. art. 651, predial servitudes may impose on the owner of the servient estate the duty either “to abstain from doing something on his estate or to permit something to be done on it.”

A servitude of passage is just one example of a predial servitude. See La. C.C. art. 699. The 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. 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. La. C.C. art. 705. A servitude of passage is either apparent or nonapparent. See La. C.C. art. 707. Apparent servitudes are those that are perceivable by exterior signs, works, or constructions such as a roadway. La. C.C. art. 707. An apparent servitude may be established by title, by destination of the owner, or by acquisitive prescription. La. C.C. art. 740.

LAW AND DISCUSSION

Was there an Establishment of a Servitude of Passage?

On appeal, Tommy argues the trial court erred in finding that the Road and Drainage Maintenance Agreements did not confirm the existence of a conventional predial servitude of passage corresponding to Jewell Street Extension in favor of the land “owners and their invitees[.]”¹² Tommy further argues that through the Agreements, David and Shirley acknowledged that a conventional predial servitude of passage already existed “over Jewell Street Extension.”

Because Jewell Street Extension is perceivable roadway, it would be classified as an apparent predial servitude.¹³ See La. C.C. art. 707. As stated above, apparent servitudes of passage may be established by title. See La. C.C. art. 740. While the word “title” has many meanings, it is used synonymously with “juridical act” and includes a contract, testament, or other act intended to create a predial servitude. See Comment (b) Revision Comments—1977 to La. C.C. art. 740. Predial servitudes may be created by testament as well as by means of any contract translative of ownership, such as a sale, exchange, or donation. See Comment (b) Revision Comments—1977 to La. C.C. art. 722.

When a predial servitude is created by title, the intention of the parties to place a charge on one estate for the benefit of another estate, and the extent of the charge, must be expressed on the face of the title document and cannot be inferred or implied from vague or ambiguous language. The title document must also reasonably identify the dominant estate and the servient estate. Mardis v. Brantley, 30,773 (La. App. 2 Cir. 08/25/98), 717 So. 2d 702, 704, writ denied, 1998-2488 (La. 11/20/98), 729 So. 2d 563. This requires enough specificity to overcome Louisiana's disfavor toward encumbrances. Textron Financial Corp. v. Retif Oil & Fuel LLC, 342 F.App'x 29, 33 (5th Cir. 2009).

In this case, the only documents contained in this record that could be purported to have established—or which demonstrate the existence of—a predial servitude of passage by title corresponding to Jewell Street Extension are the following: the August 16, 2004 act of donation; the September 9, 2005 act of donation; the September 29, 2021 Road and Drainage Maintenance Agreement; the October 29, 2013 Road and Drainage Maintenance Agreement;¹⁴ and the survey attached to the September 29, 2021 Road and Drainage Maintenance Agreement subdividing Tract 1-B by plat of survey.

On August 16, 2004, Edwin and Dula donated Tract 1-B to David and Shirley. On September 9, 2005, Edwin and Dula donated Tract 1-C to Tommy. The two acts of donation were recorded in the public record.¹⁵ The two acts of donation do not expressly mention any servitude, nor do the acts reasonably identify a dominant or servient estate. Furthermore, neither a limestone road, Jewell Street Extension, nor a predial servitude of passage is expressly described in either act of donation. The two Road and Drainage Maintenance Agreements—the September 29, 2021 Agreement executed by David and Shirley in conjunction with the family subdivision of Tract 1-B, and the October 29, 2013 Agreement (collectively “Agreements”) executed by Tommy in conjunction with the family subdivision of Tract 1-C ¹⁶ —are identical in form and content, were drafted by the Commission, and provide, in pertinent part:

The parties did further declare and acknowledge that there exists a servitude of passage and/or right of ingress and egress as well as drainage over said tract and/or the adjacent and contiguous tracts. The parties did further declare and acknowledge that for and in consideration of the mutual benefits and advantages to be derived thereby, the parties agree that any drainage as well as any and all right of ingress and egress is and shall remain private among the landowner(s) and that they will each permit and assist in the maintenance and costs of the servitude(s) of ingress and egress as well as any and all drainage thereon in perpetuity. Appearers did further acknowledge and declare that they do, by this act, hold the Lafourche Parish Government harmless (including, but not limited to, attorney's fees and costs) from any and all liability and responsibility with regard to the right of ingress and egress as well as all drainage. In accordance herewith, the herein named owners agree to maintain any and all drainage and roadway/access and/or any other servitude, drainage and right of ingress and egress by making the necessary repairs and/or improvements, and that each will take the responsibility for same and will obligate themselves to maintain the road/servitude[,] not only for the safety of their homes and property, but also for all who travel same, so that its condition will not prevent emergency vehicles such as ambulance, fire trucks[,] and police vehicles from entering and [exiting] safely. It shall be each of the owner(s) responsibility, jointly, severally[,] and [in solido], for upkeep, surfacing, and so forth of said road/servitude, and upkeep for any drainage upon the property, and the Lafourche Parish Government will not be liable for maintenance and/or improvements made to this road or for any drainage upon the property.

The foregoing agreement shall run with the land and shall be deemed to be for the benefit of the land of each of the Lot owner(s) and each and every person who shall at any time own all or any portion of the property referred to herein.

***

The parties further authorize and direct the Clerk of Court of Lafourche Parish, Louisiana, to make an inscription on said plat with regard to this Agreement.

(Emphasis in original).

Pertinently, the Agreements “declare[d] and acknowledge[d]” the existence of a “servitude of passage and/or right of ingress and egress” over Tracts 1-B and 1-C “and/or the adjacent and contiguous tracts.” The parties agreed to maintain the “roadway/access” for the “safety of their homes and property” and “for all who travel same[.]” The parties agreed to perform the necessary “upkeep” on the “road/servitude[.]” Finally, the parties agreed that the existing servitude of passage and/or right of ingress and egress “shall remain private among the landowner(s)[.]”

There is also a plat of survey attached to the September 29, 2021 Road and Drainage Maintenance Agreement executed by David and Shirley in conjunction with the family subdivision of Tract 1-B and recorded in the Lafourche Parish conveyance records. This plat of survey was prepared by Keneth L. Rembert, dated September 14, 2021, and titled “Family Division” “Plat Showing Tracts ‘A’ Thru ‘K’, A Redivision of Tract l-B-2-B[,] Property Belonging to David Dupre & Shirley A. Dupre[.]” The survey shows Jewell Street Extension labeled as a limestone road. Running below, along the road is “utility, passage & drainage servitude” with a designation of “width varies.” Running above, along Jewell Street Extension is a designated eight-feet-wide “swale ditch.” At one point on Tract 1-B (at a point located on the newly subdivided Tract “E”), Jewell Street Extension then branches off and runs onto Tract 1-C. Corresponding thereto is a designated twenty-five-foot-wide “servitude of passage in favor of Tract 1-C-2.”

By implication of the servitude of passage notation on the survey, the definition of a predial servitude under La. C.C. art. 646 is satisfied. The survey designates that it is a servitude of passage, i.e. a charge; that the servitude is on a servient estate, Tract 1-B-2-B (subdivided as Tract “E”); and that the servitude is “in favor of” a dominant estate, Tract 1-C-2. Furthermore, the extent of the charge—twenty-five-feet-wide—is expressed on the plat of survey, as is the servient estate, Tract 1-B-2-B, and the dominant estate, Tract 1-C-2, which are reasonably identifiable. See Mardis, 717 So. 2d at 704.

As previously explained, Edwin and Dula acquired the Dupre property in 1967. Edwin and Dula subdivided that property on December 3, 2003, and thereafter, donated two or more tracts of that subdivided land to their children—the donation of Tract 1-B to David and Shirley and the donation of Tract 1-C to Tommy are relevant here. We do not know if the act by which Edwin and Dula acquired the Dupre family property established a servitude of passage on Jewell Street Extension, nor if the plat of survey by which Edwin and Dula subdivided the Dupre family property designated a servitude of passage on Jewell Street Extension, because neither document is a part of the record before us. The record does however, contain the plat of survey described hereinabove by which David and Shirley further subdivided Tract 1-B by re-dividing Tract 1-B-2-B into eleven parcels comprising approximately one-acre each (tracts “A” through “K”).¹⁷ That plat of survey designates a twenty-five-feet-wide “servitude of passage in favor of Tract 1-C-2” corresponding to Jewell Street Extension.

A servitude of passage is created when one subdivides property by plat of survey that designates a right-of-way or servitude of passage and thereafter transfers one or more tracts of land by reference to said survey, regardless of whether or not the instrument in question specifically describes or refers to the servitude. See Smart v. Amond, 2023-0413 (La. App. 1 Cir. 02/08/24), 2024 WL 483713, at *4 (unpublished); Brehm v. Amacker, 2019-1452 (La. App. 1 Cir. 09/21/20), 314 So.3d 58, 63, writ denied, 2020-01224 (La. 01/26/21), 309 So.3d 343. Where an act is silent as to a servitude, but the plat of survey referred to in the property description, which was attached to a previous act that was recorded in the conveyance records, indicated that there was servitude, a servitude is created. See Smart, 2024 WL 483 713 at *4; Brehm, 314 So.3d at 63. “A servitude by implication can only be found where the servitude is shown on a recorded survey map ․, and the language ․ on the survey map clearly expresses the intention to establish a servitude for the benefit of owners of neighboring property, by use of words such as ‘common,’ ‘public,’ or such other designation.” Templeton v. Jarreau, 2018-0240 (La. App. 1 Cir. 09/24/18), 259 So.3d 356, 361-62.

Based on the two Road and Drainage Maintenance Agreements, as well as the survey attached to the September 29, 2021 Agreement subdividing Tract 1-B by plat of survey, we conclude that a servitude of passage exists corresponding to Jewell Street Extension. See e.g., Smart, 2024 WL 483713 at *6 (“[T]he survey plat ․ recorded in the conveyance records created a servitude.”). See also Brehm, 314 So. 3d at 63; Templeton, 259 So. 3d at 361-62.

We find that the trier of fact could reasonably conclude from the facts set forth in the record, as well as those gathered at trial from the evidence and testimony, that David and Shirley, as developers of a family subdivision on Tract 1-B, intended to perpetuate that existing apparent servitude of passage along Jewell Street Extension for all of the lots in the proposed family subdivision. The servitude of passage connected those lots with Weatherby Lane and Jewell Street Extension. More importantly, without a servitude of passage on Jewell Street Extension extending through Tract 1-B and connecting Tract 1-B to the contiguous tracts of the Dupre family property (i.e., Tract 1-A owned by Petie and Tract 1-C owned by Tommy), it would be impossible to access the lots of David and Shirley's family subdivision, further develop the family subdivision, or access the contiguous parcels of the Dupre family property. Thus, we find no manifest error in the trial's court ruling to the extent it found that a servitude of passage exists over Jewell Street Extension.

However, to the extent the trial court's October 27, 2023, judgment decreed that “Tommy ․ possess[es] a servitude of passage over Jewel Street Extension[,]” the trial court erred. The trial court mis-classified the predial servitude of passage as personal. Tommy himself cannot possess a servitude of passage. See La. C.C. arts. 534, 543, 549. Therefore, we must amend that portion of the trial court's October 27, 2023 judgment to read as follows:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court finds in favor of Tommy Dupre, and against David Dupre and Shirley Dupre, that a conventional, apparent predial servitude of passage corresponding to Jewell Street Extension, charged on Tract 1-B for the benefit of Tract 1-C, whereby persons, animals, utilities, or vehicles are permitted to pass through Tract 1-B, exists and was established by title.

What is Reasonable Use of Predial Servitude of Passage?

Tommy also argues that there is no recorded title document restricting the use of Jewell Street Extension to private use among landowning Dupre family members only. He contends that the trial court erred in interpreting the purpose of the Road and Drainage Maintenance Agreements. Tommy argues the trial court failed to recognize that the Agreements are “maintenance” agreements drafted and required by the Commission for the approval of a family subdivision. Such maintenance agreements, according to Tommy, do not prohibit a landowner's invitees from using any existing servitudes of passage. Tommy avers that the title of the Agreements reveals the purpose—that the Dupre family members, not Lafourche Parish, must pay for the maintenance of a private road and its drainage. The Agreements “make it clear that Jewell Street Extension is not a publicly dedicated street maintained by the Parish that would allow anyone without an owner's permission to traverse the road[,]” according to Tommy.

As the owners of Tract 1-B and Tract 1-C, David, Shirley, and Tommy may alienate their property; encumber their property with a mortgage, easement, or restrictive covenant/building restriction; or lease their immovable property. Here, the parties encumbered, i.e., restricted the use of their property via the Road and Drainage Maintenance Agreements. The extent of the right of passage 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, unless the title provides otherwise. See La. C.C. art. 705. The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude. La. C.C. art. 748; La. C.C. art. 477; see also Ogden v. Bankston, 398 So. 2d 103 7 (La. 1981)). The Agreements were drafted by the Commission, and provide, in pertinent part:

The parties did further declare and acknowledge that there exists a servitude of passage and/or right of ingress and egress as well as drainage over said tract and/or the adjacent and contiguous tracts. The parties did further declare and acknowledge that for and in consideration of the mutual benefits and advantages to be derived thereby, the parties agree that any drainage as well as any and all right of ingress and egress is and shall remain private among the landowner(s) and that they will each permit and assist in the maintenance and costs of the servitude(s) of ingress and egress as well as any and all drainage thereon in perpetuity.

(Bolded/underlined emphasis added; Italicized/bolded/underlined emphasis in original).

While we agree that parties may limit the extent and mode of using a servitude of passage through contract, see McLure, 344 So. 2d at 1096, the Agreements at issue herein appear to constitute building restrictions pursuant to La. C.C. art. 776. Accordingly, we find that the limitations are not restrictions on the existing predial servitude. Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable or in favor of the owner whose property was allegedly restricted. See La. C.C. art. 783 and Comment (b), Revision Comments—1977 to La. C.C. art. 783. On appeal, to determine the extent of the restrictions imposed on the subdivided property, we look to the trial testimony to shed light regarding the intention of the parties.

Trial Testimony

At trial, David, then aged fifty-nine, testified that the Jewell Street Extension has existed as long as he could remember, and that at the time his parents donated Tract 1-C to Tommy, the servitude of passage existed. He stated that Jewell Street Extension was historically used to access the Dupre family property by a variety of persons for many different activities: Dupre family members, guests of the family with permission of family members, school bus drivers, hunters, cattle men, fishermen, craw fishermen, and dog trainers.

Earl Cavalier, sixty-one years old at the time of trial, has known David and Tommy for approximately forty-two years. Earl indicated that he knew Edwin and Petie as well. Earl testified that he would visit the Dupre family property to hunt, shoot sporting clays, and engage in “a lot of stuff[/]activities” on the property. He would “purchase hunts” from Petie and usually visit the Dupre family property with the permission of Petie; however, Earl indicated that when he visited the property, “everyone was back there ․ [t]he dad, the brothers.”

Ronnie “Roscoe” Triche, a friend of David and Tommy for approximately twenty years, leases the rear portion of Tract 1-C from Tommy for the operation of Bayou Country Sporting Clays, a commercial skeet shooting range. Ronnie testified that he visited the property to shoot skeet at the shooting range when it was operated by Petie. He also baled hay on the Dupre family property for other family members. When Ronnie began leasing the property from Tommy in 2019, he began maintaining Jewell Street Extension by putting down loads of crushed limestone to cover the road. Ronnie has observed people using Jewell Street Extension to access Petie's property, noting that Petie has tenants living on his property. Ronnie testified that he has never used Jewell Street Extension without the permission of a Dupre family member.

Petie, fifty-seven years old at trial, confirmed that he operated a skeet shooting range on Tract 1-C from around 2004 to 2016, called Tri Parish Sporting Clays. Prior to his ownership of Tract 1-A, any use of the Dupre family property was done with his father, Edwin's, permission. When Edwin was still alive, Petie held paid hunts on the Dupre family property, sometimes with seventy-five to a hundred people attending the hunt. Edwin also had visitors to the property to help round up cattle. Petie indicated that he currently has a tenant living on his property, without the permission of any of his other family members. He stated that a school bus drives on Jewell Street Extension every weekday during the school year and also parks on the roadway with Petie's permission. Petie testified that until this litigation began, he did not know his property was part of a family subdivision and that he could not sell his property unless it was to a family member. Petie indicated that his understanding is that the family subdivisions require him to ask permission of each person owning tracts of land comprising the Dupre family property to use Jewell Street Extension; however, he does not ask his siblings for their permission—“I just go.”

Tommy, fifty-nine years old at the time of trial, testified that, Jewell Street Extension is used by many people—“Everybody that visits anybody [who's] back there plus the relatives that live on the back side of Weatherby. All their people go in and out constantly, friends, family, everybody.” Until David erected the gate across the roadway, Tommy was not aware of anyone ever being stopped from using Jewell Street Extension. Tommy testified that Jewell Street Extension has been used by whoever wanted to use it for as long as he could remember. He recalled that his uncle sold dove hunts and that a deer hunting club used to meet on the Dupre family property. Tommy testified that Jewell Street Extension has definitely been open to the public since 2004—when his brother Petie operated the shooting range pursuant to a least that had been signed by their father, Edwin. When specifically asked, “But the road itself has been used for your entire lifetime[,] which is about 60 years[,] by whoever needed to get to the back portions of the property? Your uncles, your patrons, your brother Joseph's patrons?” Tommy answered, “Yes.” Tommy confirmed that anyone that needed access to Jewell Street Extension was able to use the roadway.

Shirley, married to David for thirty-three years, testified that after she and David moved into their family residence on November 16, 2021, they began experiencing problems with patrons of the shooting range using Jewell Street Extension, including dust from the speeding cars and traffic. One weekend, Shirley testified that David counted one hundred eight vehicles accessing the shooting range for a tournament, with thirty-nine of those vehicles carrying golf carts. Shirley and David attempted to get the shooting range patrons to slow down by placing speed bumps, in the form of rope, across the roadway, but the patrons did not slow down. Shirley and David erected a six-foot high fence for privacy, placed “private property” signs along the roadway, and installed security cameras. Shirley would ask the patrons in person to slow down. She testified the drivers would “give [her] the [middle] finger.” Although Shirley was aware that Jewell Street Extension was located on that tract when she and David acquired Tract 1-B, she testified that “it would be fair” for every Dupre family member owning property to build their own road to access their tract.

Although the parties “declare[d] and acknowledge[ed]” in the Agreements executed in conjunction with the family subdivisions, that “all right of ingress and egress is and shall remain private among the landowner(s)[,]” the testimony at trial established that Jewell Street Extension has been used by non-family members for a variety of purposes with permission of the landowning family members, and at no point in the last fifty years has the roadway been exclusively used privately by the Dupre landowning family members. The trial court noted that, historically, persons accessing the Dupre family property did so with permission of the parties’ predecessors-in-title, Edwin and Dula, either explicitly or implicitly. The trial court stated: “While there were one or two witnesses that did state that they used it without permission, the Court is not at all convinced that that is correct. And [all that] use was done with either direct permission or implied consent of the owner[,] who [was] y'all[’s] father at that time.” We agree with the trial court that Jewell Street Extension has been used for a variety of purposes with permission of the landowning family members.

Furthermore, through the facts, evidence, and testimony submitted at trial, there is nothing in the record to indicate that, in limiting the servitude of passage to “private among landowner(s),” the parties intended to prohibit commercial and/or public use of the servitude by any tenant leasing the rear portion of Tract 1-C to operate the skeet shooting range. The record is clear that the rear portion of Tract 1-C has historically been leased from the Dupre family as a skeet shooting range—first by a skeet shooting club leasing the property from Edwin; and currently, by a commercial skeet shooting range leasing the property from Tommy. In fact, even after Edwin and Dula donated Tract 1-B to David and Shirley in 2004, and donated Tract 1-C to Tommy in 2005, operation of the skeet shooting range continued under a lease signed by Edwin. Shortly thereafter, Tommy began operation of another lease with a commercial skeet shooting range that continued without incident until 2022, when David erected a gate across the roadway. The testimony is clear that David and Shirley were aware that Jewell Street Extension was located, in part, on Tract 1-B, and that family members, friends, guests, and patrons regularly used Jewell Street Extension to access the Dupre family property.

We agree with the trial court's findings that at all times use of the Jewel Street Extension was with permission of the landowning family members. It is clear from the record that access has never been “unfettered” and the “reasonable use” of the servitude has always included allowing patrons to access the skeet shooting complex located on Tract 1-C, with permission.¹⁸ Further, as noted, the servitude of passage is not personal to Tommy and therefore any purported discussion between Shirley, David, and Tommy about limiting its use is not dispositive. Therefore, we find that the trial court erred in limiting use of the servitude of passage over Jewell Street Extension. We further find that Tommy is entitled to permanent injunctive relief prohibiting the erection of any gate, fence, or barrier across Jewell Street Extension that impairs, limits, or prohibits the use of the predial servitude of passage corresponding to Jewell Street Extension.

Finally, based on our finding that the trier of fact could reasonably conclude that a conventional, apparent predial servitude of passage was established by title, we pretermit discussion of Tommy's remaining assignments of error regarding the establishment of a servitude.

DECREE

Based on the foregoing, we amend the portion of the trial court's October 27, 2023 judgment regarding the existence of a predial servitude of passage to read as follows:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court finds in favor of Tommy Dupre, and against David Dupre and Shirley Dupre, that a conventional, apparent predial servitude of passage corresponding to Jewell Street Extension, charged on Tract 1-B for the benefit of Tract 1-C, whereby persons, animals, utilities, or vehicles are permitted to pass through Tract 1-B, exists and was established by title.

We reverse that portion of the trial court's October 27, 2023 judgment prohibiting commercial and/or public use of Jewell Street Extension by Tommy Dupre. We render judgment granting permanent injunctive relief in favor of Tommy Dupre, and against David Dupre and Shirley Dupre, enjoining the erection of any gate, fence, or barrier across Jewell Street Extension that impairs, limits, or prohibits the use of the predial servitude of passage corresponding to Jewell Street Extension.

We reverse that portion of the trial court's October 27, 2023 judgment that denied damages sought by Tommy Dupre in his petition for injunctive relief and damages and found in favor of David Dupre and Shirley Dupre on those causes of action. We remand to the trial court for proceedings consistent with this opinion.

All appeal costs are divided equally among the parties.

AMENDED IN PART; JUDGMENT RENDERED; REVERSED IN PART; REMANDED.

I agree with the majority's decision affirming the trial court's finding that a predial servitude of passage was created by title, based on the Road and Drainage Maintenance Agreements and the survey attached to the September 29, 2021 Road and Drainage Maintenance Agreement. However, I disagree with the majority's conclusion that there is no reasonable factual basis for the trial court's determination that the parties intended to limit the use of the servitude of passage over the Jewell Street Extension.

Unless the title provides otherwise, the extent of the right and the mode of the exercise of a servitude of passage shall be suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate. See LSA-C.C. art. 705. In this matter, as recognized by the majority, the servitude was limited to the private use among landowners. Specifically, the Road and Drainage Maintenance Agreements executed by David and Shirley and the Road and Drainage Maintenance Agreements executed by Tommy provide that “any and all right of ingress and egress is and shall remain private among the landowner(s).” Additionally, any doubt or ambiguity as to the existence, extent, or manner of exercise of a predial servitude must be resolved in favor of the servient estate. See LSA-C.C. art. 730.

In 2004, Edwin and Dula leased part of what became Tommy's Tract 1-C to Tri Parish Sporting Clays, L.L.C., a skeet shooting club. This lease was entered into prior to the donation to Tommy of Tract 1-C and prior to the establishment of the Family Subdivision. In 2016, when the lease with Tri Parish Sporting Clays, L.L.C. ended, Tommy entered into a lease on the same part of Tract 1-C to Bayou Country Sporting Clays, a commercial skeet shooting range. At this point in time, David and Shirley gave permission to Tommy for the shooting range patrons to use the Jewell Street Extension. Historically, and as correctly found by the trial court, the use of the Jewell Street Extension, other than for the private use of the landowners, had always been with the consent of the landowners.

After the creation of the Family Subdivision, the record establishes that Tommy and David had several discussions regarding the use of the Jewell Street Extension. Further, there is evidence in the record that Tommy and David agreed that upon David and Shirley building their home, Tommy would move the road onto his property, and the use of the extension would cease. These actions are consistent with the limitations that were created by title as to the servitude of passage.

In summary, the documents establish that the predial servitude was limited to the private use among the landowners. Further, under our manifest error standard of review, it is clear that the trial court had a reasonable factual basis for finding that the servitude of passage was limited and that said limitation prohibited commercial and public use. Accordingly, I respectfully dissent in part.

I agree with the majority's finding of no manifest error in the trial court's ruling that a servitude of passage exists over the Jewell Street Extension. I also agree with the majority that the servitude is predial and not personal, and that the judgment should be amended to reflect this fact.

However, I must respectfully dissent from the majority's decision, which appears to grant unfettered commercial and/or public use of the servitude. I agree with the dissenting opinion of Chief Judge McClendon that the trial court had a reasonable basis for finding that the servitude was limited.

FOOTNOTES

1.   The appendix is an excerpt from a plat of survey prepared by Keneth L. Rembert, dated September 14, 2021. The plat survey was recorded as an attachment to a September 29, 2021 “Road and Drainage Maintenance Agreement” filed by David Dupre in conjunction with the family subdivision of Tract 1-B on November 30, 2021, in the conveyance records of Lafourche Parish as Instrument No. 1327083 at MOB 2214, Page No. 800.

2.   Jewell Street Extension also extends from Terre Haute Place and runs through Tract 1-A, which is owned by the parties’ brother, Joseph “Petie” Dupre, onto Tract 1-B, owned by David and Shirley. See Keneth L. Rembert plat of survey dated September 14, 2021.

3.   The descendants include Joseph “Petie” Dupre, David and Shirley Dupre, Edith Dupre Talbot, and Robert Dupre.

4.   Two months after the lease for Tri Parish Sporting Clays, L.L.C. was signed.

5.   “The laws governing acquisitive prescription of immovable property apply to apparent servitudes. An apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and by just title; it may also be acquired by uninterrupted possession for thirty years without title or good faith.” La. C.C. art. 742.

6.   The October 29, 2013 Road and Drainage Maintenance Agreement called for a Family Subdivision, “Survey of Tract 1-C-3 & Revised 1-C-2, A Redivision of Tract 1-C-2[,] Property Belonging to Tommy P. Dupre” and was recorded on May 21, 2014, in the conveyance records of Lafourche Parish as Instrument No. 1178027 at MOB 1966, Page No. 733.

7.   The February 23, 2021 Road and Drainage Maintenance Agreement governed “Tracts 1-E-1 & 1-E-2, A Redivision of Tract 1-E, Property Belonging to Tommy P. Dupre” and was recorded on March 4, 2021, in the conveyance records of Lafourche Parish as Instrument No. 1311980 at MOB 2191, Page No. 497.

8.   “The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious possession.” La. C.C. art. 3437.

9.   Witnesses included David Dupre, Earl Cavalier, Ronnie Triche, Joseph “Petie” Dupre, Edith Dupre, Tommy Dupre, and Shirley Dupre.

10.   Although David and Shirley named their action against Tommy a “counterclaim,” it is a reconventional demand. See La. C.C.P. art. 1061. Similar to the requests made by Tommy in his petition for injunctive relief, the claims raised by David and Shirley in their reconventional demand appear to be improperly cumulated. See La. C.C.P. art. 1036(B) (“The mode of procedure employed in the incidental action shall be the same as that used in the principal action, except as otherwise provided by law.”) Ultimately, the trial court held a trial on the merits and granted the petition for permanent injunction, in part, thus rendering the improper cumulation issues involved with the hearing on the preliminary injunction moot. See Hoffman v. Butler, 2020-1330 (La. App. 1 Cir. 06/30/21), 328 So. 3d 1177, 1182.

11.   Rehearing was granted in this matter on July 2, 2004, for the limited purpose of remanding the case to the trial court for a hearing on the plaintiffs’ constitutional challenge to the Board's statutory powers over campaign finances. Mary Moe, 875 So. 2d at 32 (on rehearing) (per curiam).

12.   Assignment of Error No. 2.

13.   Conventional servitudes may be established by any juridical act sufficient to establish a real right in immovable property. See La. C.C. arts. 654 and 708.

14.   We pretermit any discussion of the February 23, 2021 Road and Drainage Maintenance Agreement executed in conjunction with the family subdivision of Tommy's Tract 1-E, since Tract 1-E is not at issue in this appeal.

15.   The act of donation of Tract 1-B to David and Shirley was signed on August 16, 2004, and recorded on August 17, 2004, in the conveyance records of Lafourche Parish as Instrument No. 965602 at MOB 1579, Page No. 513. The act of donation of Tract 1-C to Tommy was signed on September 9, 2005, and recorded on September 14, 2005, in the conveyance records of Lafourche Parish as Instrument No. 989222 at MOB 1621, Page No. 211.

16.   The October 29, 2013 Road and Drainage Maintenance Agreement called for a Family Subdivision, “Survey of Tract 1-C-3 & Revised 1-C-2, A Redivision of Tract 1-C-2[,] Property Belonging to Tommy P. Dupre” and was recorded on May 21, 2014, in the conveyance records of Lafourche Parish as Instrument No. 1178027 at MOB 1966, Page No. 733.

17.   Unlike Tracts “A” through “J,” we note that Tract “K” comprises 13.463 acres.

18.   See La. C.C. art 705.

BALFOUR, J.

McClendon, C.J. dissents in part and assigns reasons. Miller, J dissents in part assigns reasons