Naramore v. Aikman
252 So.3d 935 (2018)
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Rule of Law:
Under Louisiana Civil Code article 741, an apparent servitude, such as a visible roadway, is created by 'destination of the owner' and comes into existence of right when a property under common ownership is divided and sold, unless the common owner expressly disavows the servitude in the act of conveyance. The creation of such a servitude does not depend on it being recorded in the public records or mentioned in the subsequent purchaser's title.
Facts:
- In 1956, Sam and Vivian Arnold acquired a large, single tract of property.
- Around 1960, a gravel road was constructed on the property, which the Arnolds, their tenants, and neighbors used for access.
- On March 25, 1980, the Arnolds sold a portion of the property to their daughter, Carol Martinson. The act of sale mentioned a servitude and referenced an unrecorded survey.
- On April 28, 1982, the Arnolds sold another parcel to Jeffrey and Cynthia Arnold; this conveyance did not mention the servitude.
- On August 13, 1993, Baynum and Kayla Aikman purchased the parcel from Jeffrey and Cynthia Arnold. The Aikmans' act of sale did not mention the servitude.
- The parties used the gravel road without major incident for several decades.
- In late 2010 or early 2011, Baynum Aikman objected to heavy equipment using the road and subsequently blocked it with a tractor, a log, and eventually a locked gate.
- Confrontations over the use of the road continued after Aikman blocked access.
Procedural Posture:
- Jerelean Naramore and other Arnold family members (plaintiffs) filed suit against Baynum and Kayla Aikman in a Louisiana state trial court, seeking a declaratory judgment to recognize a servitude of passage and an injunction.
- The trial court issued a preliminary injunction prohibiting the Aikmans from interfering with the plaintiffs' use of the road.
- The trial court later found Baynum Aikman in contempt of court for violating the preliminary injunction.
- After a bench trial, the trial court ruled in favor of the plaintiffs, finding that a servitude of passage was created by 'destination of the owner.'
- The trial court issued a judgment recognizing the servitude, permanently enjoining the Aikmans from interfering with its use, and awarding damages to the plaintiffs.
- The Aikmans (appellants) appealed the trial court's final judgment to the Louisiana Court of Appeal, First Circuit.
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Issue:
Does an apparent servitude of passage, created by a visible roadway when a property was under common ownership, come into existence by 'destination of the owner' when the property is divided and sold, even if the servitude is not mentioned in the new owner's title?
Opinions:
Majority - Crain, J.
Yes, an apparent servitude of passage comes into existence by 'destination of the owner' when the property is divided, even if not recorded in the new owner's title. The court reasoned that under Louisiana Civil Code article 741, when two estates cease to belong to the same owner, an apparent servitude comes into existence 'of right' unless there is an express provision to the contrary. The visible gravel road established a relationship between the parcels when Sam and Vivian Arnold owned the entire property. When they first divided the property and sold a portion in 1980 without expressly disavowing the servitude, the servitude was legally created. The Aikmans' reliance on the public records doctrine is misplaced because Article 741 does not require a recorded document to create the servitude; rather, it requires an express disavowal from the common owner to prevent its creation.
Analysis:
This case reinforces the strength of the 'destination of the owner' doctrine in Louisiana property law for creating apparent servitudes. It clarifies that this doctrine operates independently of the public records doctrine, meaning a subsequent purchaser can be bound by a visible, unrecorded servitude created when a common owner divided the land. This decision serves as a caution to purchasers of divided tracts to physically inspect the property for signs of apparent servitudes, as they cannot rely solely on a clear title search. The ruling emphasizes that the burden is on the original common owner to expressly negate the servitude upon sale, not on subsequent owners to prove its existence through recorded documents.
