Sustainable Forests, LLC v. Harrison

Louisiana Court of Appeal
846 So. 2d 1283 (2003)

ELI5:

Rule of Law:

A right of passage granted to a specific entity that does not identify a dominant estate in the creating instrument is a personal servitude (a right of use), not a predial servitude. This personal servitude is not an accessory to any nearby land and must be explicitly conveyed in a subsequent act of sale to be transferred to a new owner.

Facts:

In 1963, Olan B. Davis, the Harrisons' predecessor-in-title, granted an easement for a "forest road" across his property in Section 3 to International Paper Company (IP), Sustainable's predecessor-in-title.
The 1963 Servitude Deed described the burdened property (the servient estate) but did not identify a dominant estate that would benefit from the road.
The road provided access to land owned by IP in the neighboring Section 4, which was not contiguous to the Davis property.
In 1998, IP conveyed its land in Section 4, along with other properties, to Sustainable Forests, L.L.C.
The 1998 deed transferring the land from IP to Sustainable did not mention or specifically describe the 1963 servitude of passage across the Harrison tract.
Sustainable leased hunting rights on its Section 4 property to the Grand Bayou South Hunting Club.
The Harrisons, who now owned the Section 3 tract, objected to members of the hunting club using the road to cross their land to access Sustainable's property.

Procedural Posture:

Sustainable Forests, L.L.C. filed a possessory action and sought injunctive relief against Jack Keith Harrison and Leisa Miller Harrison in a Louisiana trial court.
The Harrisons responded by filing several exceptions, including the peremptory exception of no right of action, arguing Sustainable did not own the servitude.
The trial court denied the Harrisons' exception of no right of action.
After a bench trial, the trial court ruled in favor of the Harrisons on the merits, finding the 'forest road' servitude was for timber operations and did not include use by hunters.
Sustainable Forests, L.L.C., as appellant, appealed the trial court's judgment to the Court of Appeal of Louisiana, Second Circuit.

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Issue:

Does a company that purchases land have a right of action to enforce a servitude of passage over an adjacent tract when the original servitude grant failed to identify a dominant estate and the subsequent act of sale for the land did not explicitly convey the servitude?

Opinions:

Majority - Drew, J.

No. The plaintiff does not have a right of action because the right of passage is a personal servitude that was never transferred to it. The court reasoned that the 1963 Servitude Deed created a personal servitude, specifically a 'right of use' under the Louisiana Civil Code, because it failed to identify a dominant estate. Unlike a predial servitude, which is an accessory to the dominant estate and passes with it automatically under Civil Code Article 650, a personal servitude is a transferable right that must be explicitly conveyed. Because the 1998 deed from International Paper to Sustainable conveyed the land but did not mention or describe the servitude, the ownership of the right of use remained with International Paper. Therefore, Sustainable lacks the legal interest to sue to enforce the servitude, and the Harrisons' exception of no right of action should have been granted.

Analysis:

This decision emphasizes the critical distinction between predial and personal servitudes in Louisiana property law and serves as a cautionary tale for transactional attorneys. It clarifies that the failure to identify a dominant estate in a servitude agreement renders the right personal to the grantee, not an accessory to the land. The ruling reinforces the necessity of meticulous drafting and due diligence in property transfers, as rights that are not properly classified and explicitly conveyed may be inadvertently left behind with the seller, divesting the new landowner of expected benefits like access.

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