Thompson v. Hemphill
438 So. 2d 1124 (1983)
Rule of Law:
A court abuses its discretion when it grants a predial servitude for an encroachment if the encroaching structure is not permanent and can be moved without undue expense or impairment of its utility.
Facts:
- Brothers-in-law William D. Thompson and Lamar Hemphill owned adjoining commercial tracts of land.
- Hemphill's parents previously owned both tracts, with Tract 1 containing gas pumps and Tract 2 containing the underground storage tanks that serviced them.
- Thompson purchased Tract 1 in 1976 and later purchased the adjacent Tract 3 in 1979.
- Hemphill purchased Tract 2 in 1978 and placed an old truck body on a concrete slab or blocks on his property to use as a workshop.
- A 1980 survey revealed that Hemphill's permanent store building slightly encroached on Thompson's Tract 3.
- The survey also revealed that at least one-half of Hemphill's truck body workshop was encroaching on Thompson's Tract 3.
- A dispute arose when Hemphill prevented Thompson from using the underground gasoline storage tanks located on Hemphill's property.
- Hemphill also tore down a fence that Thompson had erected along the property line between Tract 1 and Tract 2.
Procedural Posture:
- William D. Thompson sued Lamar Hemphill in a Louisiana district court (trial court), seeking removal of encroachments and damages.
- The trial court issued a temporary restraining order against Hemphill, which later lapsed.
- Following a trial on the merits, the court granted Hemphill a predial servitude for the encroachment of both his permanent building and the trailer.
- The trial court awarded Thompson $150 in compensation for the servitude and made other rulings regarding damages and attorney's fees.
- Thompson (as appellant) appealed the trial court's judgment to the Louisiana Court of Appeal, Second Circuit.
- Hemphill (as appellee) did not appeal or answer the appeal.
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Issue:
Does a trial court abuse its discretion by granting a predial servitude for the encroachment of a truck trailer used as a workshop when the trailer is not permanently affixed and can be easily relocated?
Opinions:
Majority - Hall, Judge
Yes. The trial court abused its discretion in granting a servitude for the trailer encroachment. Louisiana Civil Code Article 670 is intended to provide an equitable remedy to avoid the harsh result of forcing a good-faith landowner to demolish a permanent building that slightly encroaches on adjacent property. This equitable discretion does not extend to structures, like the truck trailer in this case, that are not permanent, substantially encroach on the adjoining property, and can be moved without undue expense or loss of utility. Because the trailer could be easily relocated onto Hemphill's own property, encumbering Thompson's land with an indefinite servitude was not a warranted or equitable solution.
Analysis:
This decision clarifies the scope of a court's equitable discretion under Louisiana Civil Code Article 670 regarding encroachments. It establishes that the remedy of granting a predial servitude is reserved for permanent buildings where removal would be destructive or excessively costly. The ruling prevents the expansion of this remedy to non-permanent, movable structures, thereby protecting the rights of the burdened landowner. Future cases involving encroachments by sheds, trailers, or other movable objects will likely result in orders for removal rather than the creation of a servitude, as courts must now weigh the feasibility and cost of moving the encroaching object.
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