ELIZABETH MAGNER AND MICHAEL MAGNER v. MICHAEL DEAS (2026)

I disagree with the majority decision. On remand, the trial court established a “limited right of use” in favor of the plaintiffs, which is the judicial establishment of a personal servitude. Such relief for the plaintiffs is not allowed under existing jurisprudence or our Civil Code. A trial court may not judicially create a servitude. Rather, our Civil Code confines the court to the task of assessing whether a servitude exists and allows it to define the scope of the servitude. Magner v. Deas, 23-0598, p. 8 (La. App. 4 Cir. 3/27/24), 401 So.3d 43, 49, writ denied, 24-00518 (La. 9/17/24), 392 So.3d 637. Regardless of the limitations placed on the right of use in favor of the plaintiffs, the burden imposed on the defendant's property is unsupported by law. I would therefore grant the writ application.

GUIDRY, J., would grant and assigns reasons.