Don t Fence Me In: Louisiana s Fourth Circuit Expands

• Author: Scott D. Huffstetler
• Pages: 111-126

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This comment is dedicated to the memory of Lee Hargrave, Wex S. Malone Professor Emeritus, Louisiana State University. Professor Hargrave died recently after a short battle with cancer. I am honored that this paper was advised by a true Louisiana legal legend who influenced the development of our civil law system in so many different capacities. His greatest gift to me was his style of writing-clear, short, and concise. It is a style that I will carry with me throughout my legal career.

IIntroduction

In Petrovich v. Trabeau,¹² the fourth circuit court of appeal held that a landowner whose estate became enclosed due to a sheriff's seizure and sale was not entitled to a legal servitude of passage because the enclosure was caused by the landowner's voluntary act or omission under Louisiana Civil Code article 693.³ This holding expands upon a consistent line of Louisiana jurisprudence that limited article 693 "voluntariness" to instances in which an owner caused his dilemma by selling his own property and becoming landlocked without reserving passage.⁴ Essentially, article 693's application was limited to enclosures resulting from juridical acts. If Petrovich is followed, article 693 may apply to situations in which the landowner's enclosure results from juridical facts, i.e., debts arising from the fault of the landowner, which are ultimately remedied with the sheriff's sale. Thus, Petrovich v. Trabeau has changed the way that future courts will interpret Louisiana Civil Code article 693.

The facts of Petrovich are presented in Part II, Section A. Part II, Section B analyzes the past influences of article 693 and interpretations that Louisiana courts previously gave this article. Part II, Section C presents the court's analysis in Petrovich, and demonstrates that it is a derogation from previous interpretations of article 693. Finally, Part III examines the potential results and flaws of Petrovich v. Trabeau and concludes that an ambiguity has been created on how to interpret Louisiana Civil Code article 693.

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IIPetrovich V. Trabeau

AFactual and Procedural Background

In Petrovich v. Trabeau,⁵⁶ Luke Petrovich sought a right of passage over Karen Trabeau's property.⁷ In 1965, Petrovich bought a large tract of land that included a thirty-foot right of passage over an adjacent tract of land giving him access to a parish highway from his mother.⁸ In 1993, Petrovich and Trabeau acquired the remaining interest in the property surrounding these tracts resulting in Petrovich now having access to a state highway. After this transaction, Petrovich and Trabeau executed a partition giving Petrovich ownership of the land fronting the state highway and Trabeau ownership of the land fronting the parish highway. In this agreement, Petrovich specifically abandoned the right of passage that originally encumbered Trabeau's property because he now had access to the state highway.⁹

In 1997, Petrovich lost ownership of part of his land to a creditor in a sheriff's sale.¹⁰ Consequently, Petrovich was left only with a landlocked parcel of land abutting the Trabeau property.¹¹ Petrovich filed a petition requesting passage over Trabeau's property.¹² The trial court determined that Petrovich was not entitled to a right of passage because he had become landlocked by his own "voluntary act or omission."¹³ Petrovich appealed, and the fourth circuit upheld the trial court's finding.¹⁴ The Louisiana Supreme Court subsequently denied writs.¹⁵

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BRelevant Law

1. Article 693 and Prior Law That Influenced Article 693

Louisiana, like other civil law jurisdictions, grants a legal servitude of passage across neighboring lands to an enclosed estate.¹⁶There are two types of legal servitudes for a right of passage in Louisiana: the indemnified right of passage and the gratuitous right of passage. Louisiana Civil Code article 689 defines the indemnified right of passage and provides that "[t]he owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road."¹⁷ The enclosed estate must utilize the shortest route to exercise passage, and the estate burdened by the passage must be indemnified.¹⁸

The gratuitous right of passage is defined in Louisiana Civil Code article 694, which provides that:

When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.¹⁹

Unlike article 689, article 694 does not require that the passage be exercised along the shortest route or that the burdened estate be indemnified. Also, only the vendee in an alienation of property or the recipient of an enclosed estate in a partition may exercise the gratuitous right of passage.²⁰

While articles 689 and 694 are mechanisms for granting passage to public roads, article 693 precludes passage. It states that "[i]f an Page114 estate becomes enclosed as a result of a voluntary act or omission of its owner, the neighbors are not bound to furnish passage to him or his successors."²¹ Article 693 was added during the 1977 revision, and is derived from other jurisdictions' laws as well as existing Louisiana jurisprudence.²² In discussions prior to enacting article 693, the redactors contemplated that the article and accompanying comment should put a seller on notice that he should retain a right of passage when alienating and encumbering his land.²³ Article 693 is based on Greek Civil Code article 1014, which provides that "[a]n obligation of the neighbours to grant a right of way shall not exist if the communications between the immovable and the public road have ceased by means of a wilful act or omission of the owner of the immovable."²⁴ Other civil codes provide for such an exception as well. For example, German Civil Code article 918(1) provides that: "[t]he obligation to tolerate the right of way does not arise, if the prior connection of the piece of land with the public road has been eliminated by an arbitrary act of the owner."²⁵

Article 693 is also similar to the way that common law jurisdictions interpret their equivalent to the right of passage, a servitude by necessity. A servitude of necessity is implied by law whenever the landowner would be deprived of reasonable use of his property without the servitude.²⁶ However, the servitude by necessity is often denied when the estate's enclosure was a result of a voluntary alienation of property by the estate's owner²⁷ or the landowner had notice that voluntary acts on his behalf would create his enclosure.²⁸

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Finally, article 693 draws from prior Louisiana jurisprudence that denied passage to estates that were enclosed because of their owners' acts. For example, in English Realty Co., Inc. v. Meyer,²⁹ the plaintiff sought passage over the defendant's property claiming it was the most convenient route. The plaintiff's passage to the public road was limited because the plaintiff had sold parts of his land to various persons and retained only a distant portion of the tract for himself.³⁰Because the plaintiff had caused his own predicament, the court denied the plaintiff passage.³¹ The same rationale behind article 693 was reflected when the court stated:

[I]f plaintiff, by reason of the various property sales it has made, now finds itself in the position of holding acreage fronting that part of the overpass approach to which [defendant] might be justified in refusing to grant it access from its property, it is nevertheless not entitled to claim passage over defendants' property as the situation respecting access of which it now complains was wholly created by its own act.³²English Realty indicates that Louisiana employed a rationale towards the right of passage similar to its civilian and common law sisters before article 693 was enacted.³³

2. Criticism of Article 693

Article 693 is poorly drafted because the "voluntary act or omission" standard it sets is both vague and ambiguous. The article's broad language lacks any reference to specific situations or examples to which its interpreters could apply article 693 to.³⁴ Articles 689 and Page116 694 are extremely generous in granting passage to enclosed landowners, even when the enclosure was created by a partition. However, article 693's exception is so broad that it gives any landowner trying to resist an action for passage at least one defense. If the adverse landowner goes far enough down the chain of title, he is probably going to find some action that could be classified as a "voluntary act or omission." The result is that article 693 serves as a "road-block" to all claims made under articles 689 and 694, an effect clearly contrary to the Louisiana Supreme Court's prerogative "of favoring the right of passage." Because of this effect, courts should interpret article 693 narrowly.³⁵

3. Application of Article 693

Once article 693 was enacted, Louisiana courts had to reconcile it with the existing jurisprudence that favored granting a right of passage to enclosed estates. This policy was first established in the Louisiana Supreme Court decision of Rockholt v. Keaty,³⁶ in which the court explained:

While [the right of passage] has been generally accepted as designed to benefit the landowner so he could produce profit for himself and...