Langevin v. Howard
363 So. 2d 1209 (1979)
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Rule of Law:
A conventional servitude of passage created by agreement, unlike a legal servitude of necessity, is extinguished by ten years of non-use. To create a new servitude, there must be a written instrument sufficiently describing the servient estate; a verbal agreement is only enforceable to the extent it is confessed by the grantor under oath.
Facts:
- In 1955, a large property known as the Kent tract was partitioned. The partition created a 50-foot strip of land, held in indivision, to provide access to a public road. At the time, Tract F (which would later contain Langevin's lot) directly bordered the public road on its south side.
- The parties to the partition failed to pay taxes on the 50-foot strip, and it was subsequently lost in a 1960 tax sale.
- In 1969, a man named Turk acquired ownership of Tract F.
- In 1972, James Kenneth Howard acquired ownership of Tracts B, E, and the 50-foot strip lost in the tax sale.
- In 1973, Howard hired Turk to construct a 10-foot driveway on the 50-foot strip to access Howard's new home. Howard paid Turk $1,000 for this work.
- On August 6, 1975, Turk sold a small lot from the northwest corner of Tract F to Robert Lemoine Langevin. This sale rendered Langevin's lot enclosed, without direct access to a public road.
- On August 14, 1975, Turk met with Howard to discuss access for the new lots. Turk gave Howard a $200 check with the notation "use of driveway," which Howard accepted and cashed.
- In July 1977, Howard installed posts along the edge of the 50-foot strip, obstructing Langevin's use of the driveway.
Procedural Posture:
- Robert Lemoine Langevin sued James Kenneth Howard in a Louisiana trial court, seeking a judicial declaration of a right of passage and an injunction.
- The trial court issued a temporary restraining order against Howard, preventing him from obstructing Langevin's access.
- Following trial, the court ruled in favor of Langevin, recognizing a legal predial servitude and granting a permanent injunction.
- Howard, the defendant, appealed the trial court's judgment to the Court of Appeal of Louisiana, Second Circuit, making him the appellant and Langevin the appellee.
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Issue:
Does a valid and enforceable servitude of passage exist over Howard's property in favor of Langevin's property, either through an original partition, a subsequent written agreement, a verbal agreement confessed under oath, or by legal necessity for an enclosed estate?
Opinions:
Majority - Judge Jones
No, a valid and enforceable servitude of passage does not exist over Howard's property. The servitude created by the 1955 partition was a conventional servitude by agreement, not a legal servitude of necessity, because Tract F was not enclosed at the time. This conventional servitude was extinguished by ten years of non-use. The subsequent $200 check transaction failed to create a new servitude because the notation "use of driveway" is an insufficient written description of the servient estate, and parol evidence cannot be used to supply a completely missing description. While a verbal servitude can be created if confessed under oath, Howard's testimony only admitted to a two-year right of use, which had expired by the time of trial. Finally, Langevin is not entitled to a legal servitude of necessity from Howard under C.C. Art. 699, because his lot became enclosed by a sale; therefore, his exclusive remedy is to seek a gratuitous passage from his vendor, Turk, over Turk's remaining land under C.C. Art. 701.
Analysis:
This decision reinforces the strict formal requirements for creating servitudes in Louisiana law, emphasizing that interests in immovable property must be established by a writing that sufficiently describes the property. The court clarifies the distinction between conventional servitudes, which are subject to prescription for non-use, and legal servitudes arising from necessity. The case serves as a crucial precedent for determining the proper remedy for an estate enclosed by sale or partition, directing the enclosed owner to seek passage from the vendor rather than from an uninvolved neighbor. This protects third-party neighbors from bearing the burden of a right-of-way created by a transaction to which they were not a party.
