The Writing's on the Wall: The Intent Requirement in Louisiana Destination Law
| Author | Marshall L. Perkins |
| Pages | 849-882 |
The Writing’s on the Wall: The Intent Requirement
in Louisiana Destination Law
INTRODUCTION
Sometimes, neighbors are a pain. Overhanging tree branches,
unmowed lawns, or loud dogs could get under anyone’s skin.
However, neighbors sometimes go too far. Imagine that your
house’s water supply is piped in from a reservoir on your
neighbor’s property. The pipe connecting your house to the
reservoir is above ground. Some time ago, both your lot and your
neighbor’s lot belonged to a single, “common” owner. In preparing
to sell both lots, the common owner built the reservoir and pipe.
When he sold the properties, however, the common owner
neglected to say anything about the arrangement. Years later, your
neighbor decides that he is sick of looking at the reservoir and
decides that it is time to tear it down. When you complain, he
points out that you and he never contracted to maintain the
situation. Infuriated, you seek a court order trying to stop him from
destroying your access to the reservoir.
If this scenario occurred in any state but Louisiana, you might
be out of luck. Many common law jurisdictions have refused to
recognize “easements by implication”—burdens on an estate
created without an express grant such as the pipeline situation
described above—except in a few narrow circumstances.1 If the
above hypothetical occurred in Louisiana, however, you would
probably have a valid claim. The Louisiana Civil Code recognizes
that, in some scenarios, an estate can be burdened without the
agreement of the owners.2 One of these methods, taken directly
from the French Civil Code, is known as “destination of the
owner.”3 Destination of the owner can arise in two ways: (1) The
owner of an estate creates a burden, or “charge,” in favor of one
Copyright 2013, by MARSHALL L. PERKINS. This Comment relies on
numerous sources in the original French. Unless otherwise indicated, all
translations are by the author.
1. See, e.g., Van Sandt v. Royster, 83 P.2d 698 (Kan. 1938) (reasoning that
an easement by implication by prior use is difficult to justify when the implied
benefit is being claimed by the grantor); Othen v. Rosier, 226 S.W.2d 622 (Tex.
1950) (stating that Texas courts only recognize easements by implication by
strict necessity). See also 28A C.J.S. Easements § 21 (2011). An in-depth
discussion of common-law easements by implication is outside the scope of this
Comment, which is solely concerned with Louisiana property law.
2. See discussion infra Part I.A.
3. Destination is based on the French Civil Code regime of destination du
père de famille or “destination of the father of the family.” See discussion infra
Part I.C–D.
850 LOUISIANA LAW REVIEW [Vol. 73
portion of the estate, then later transfers ownership of one or both
portions; or (2) the common owner of two estates creates a charge
on one in favor of the other, then later transfers ownership of one
or both estates.4 Under Louisiana Civil Code article 741, once the
estates cease to belong to the same owner, a predial servitude—the
civilian counterpart of an easement5—comes into existence unless
the parties expressly agree otherwise.6
Recently, the Louisiana Supreme Court reasoned that a party
who asserts that a predial servitude was created by destination must
prove the “intent” of the common owner to create the servitude.7
According to the court, evidence of the common owner’s intent
consists of exterior signs of the servitude at the time common
ownership ceases.8 The supreme court based its reasoning on the
Louisiana Fourth Circuit Court of Appeal’s earlier application of
this intent requirement.9
This Comment argues that the subjective intent requirement is
highly questionable and should be abandoned in favor of a more
objective standard. Because destination issues arise only in the
absence of an agreement between the parties, destination implies a
fictional agreement between them.10 Because no actual agreement
exists between the parties, the question is whether the parties should
have reasonably believed that a servitude would be created.11 This
determination is based upon the obvious signs of a burden on one of
the estates in favor of the other.12 That objective inquiry efficiently
resolves destination disputes by simply determining whether the
situation was apparent, or “perceivable by exterior works, signs, or
4. See A. N. Yiannopoulos, Creation of Servitudes by Prescription and
Destination of the Owner, 43 LA. L. REV. 57, 77 (1982).
6. LA. CIV. CODE art. 741 (2011). Article 741 provides:
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 existe nce of right and a nonapparent ser vitude 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.
Id.
8. Id.
9. See id.; see also discussion infra Part I.C.
10. See discussion infra Part III.B.
11. See Lee Hargrave, Property—Review of Recent Developments: 1991–
1992, 53 LA. L. REV. 953, 960 (1993).
12. Id.
2013] COMMENT 851
constructions.”13 A requirement that a party provide evidence of the
common owner’s subjective intent invites inefficiency and
uncertainty into this area of the law and should therefore be
eliminated.14
Accordingly, this Comment analyzes the reasoning behind the
jurisprudential intent requirement. Part I provides the relevant codal
and historical background of destination. Part II discusses how the
intent requirement entered into the jurisprudential application of
article 741. Part III analyzes the relevant French doctrine on the
issue. Part IV examines the conceptual and practical difficulties that
the intent requirement presents and concludes that courts should take
an objective approach in applying article 741. The approach should
be framed in terms of a tacit agreement between the parties to
continue the relationship that existed at the time that the estates
ceased to belong to the same owner. If there is any element of
subjective intent in a destination case, it is only a bilateral tacit
intention between the parties at the moment ownership is severed.
I. BACKGROUND
The following discussion defines predial servitudes and explains
how they are created under the civilian idea of “destination of the
13. LA. CIV. CODE art. 707 (2011).
14. Destination claims arise more often than the reader might think. See,
e.g., Huy Tuyet Tran v. Misuraca, No. 2010 CA 2183, 2011 WL 2617382 (La.
Ct. App. 1st May 6, 2011) (holding that a servitude of passage was created by
destination of the owner); Davis v. Provost, 980 So. 2d 821, 826 (La. Ct. App.
3d 2008) (discussing creation of servitudes by destination); Trunk v. Berg, 866
So. 2d 922, 928 (La. Ct. App. 5th 2004) (refusing to apply article 741
retroactively); W.L. Wagner v. Fairway Villas Condominium Assocs., Inc., 813
So. 2d 512, 517 (La. Ct. App. 3d 2002) (holding that because underground pipes
were nonapparent, no servitude of aqueduct was created under article 741);
Jackson v. Jackson, 818 So. 2d 192, 197–98 (La. Ct. App. 1st 2002) (concluding
that an apparent servitude of drain was created the moment that the property was
partitioned); Griffith v. Cathey, 762 So. 2d 29 (La. Ct. App. 3d 2002) (holding
that because plaintiff never owned defendants property, no servitude could be
created by destination); Comby v. White, 737 So. 2d 94, 96–97 (La. Ct. App. 3d
1999) (finding that utility lines constituted evidence of apparent servitude
existing at severance of ownership); McCann v. Normand, 696 So. 2d 203, 206–
07 (La. Ct. App. 3d 1997) (holding that because article 741 is a substantive law,
it cannot be applied retroactively); Williams v. Wiggins, 641 So. 2d 1068, 1073
(La. Ct. App. 2d 1994) (noting that the servitude must be created by an owner,
not a lessee, for destination to apply); Shell Offshore, Inc. v. Kirby Exploration
Co. of Tex., 909 F.2d 811, 814–15 (5th Cir. 1990) (holding that a pipeline
servitude would have been created by destination if Louisiana law had applied);
Travelers Ins. Co. v. Badine, No. 93-4065, 1994 WL 577482 (E.D. La. Oct. 17,
1994) (finding a genuine issue of material fact as to whether common owner
intended to create a servitude of passage).
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