Tilley v. Lowery
511 So. 2d 1245 (1987)
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Rule of Law:
A predial servitude of passage is created upon the execution of the agreement, and the 10-year prescriptive period for nonuse begins to run from that date, even if the agreement provides for the future designation of the servitude's exact location.
Facts:
- The parties' predecessors in title owned adjacent tracts of land separated by a bayou.
- In 1974, they executed a 'Right of Way' agreement and a counter letter.
- The agreement granted one party (Kemmerly) a 60-foot servitude of passage over a 200-foot portion of the other party's (Lowery's) land to build a bridge for access to Foster Road.
- The agreement stipulated that the parties would, 'at a future date, stipulate the exact location' of the servitude within the 200-foot area.
- Kemmerly paid adequate consideration for this right of way.
- Subsequently, B. Joe Tilley and others (plaintiffs) acquired the right of way from Kemmerly.
- For more than ten years following the 1974 agreement, neither Kemmerly nor his successors ever requested that the exact location of the servitude be designated.
- The servitude was never used, and no bridge was ever built.
Procedural Posture:
- B. Joe Tilley and other plaintiffs filed an action in a Louisiana trial court against Anna B. Lowery and other defendants to construe a 1974 'Right of Way' agreement.
- The parties stipulated to the facts of the case.
- The trial court issued a judgment declaring that the 1974 agreement created a predial servitude of passage which had been extinguished by the 10-year liberative prescription of nonuse.
- The plaintiffs, as appellants, appealed the trial court's judgment to the Court of Appeal of Louisiana, Second Circuit.
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Issue:
Does a right-of-way agreement that provides for the future designation of the servitude's exact location create the servitude upon execution, thereby starting the 10-year prescription for nonuse, even if the location is never specified and the servitude is never used?
Opinions:
Majority - Marvin, J.
Yes. A right-of-way agreement creates a servitude upon its execution, initiating the 10-year prescriptive period for nonuse, even if the exact location has not yet been designated. The court reasoned that an obligation is not considered suspensive unless the contract's express language compels such a construction. The language in the 1974 agreement, such as 'the granting of the servitude' and 'the servitude created herein,' clearly indicated the parties' intent to create a servitude immediately, not merely an obligation to create one in the future. The uncertainty of the servitude's precise location within the 200-foot area did not prevent its creation, as the dominant estate owner (Tilley) had the legal right to compel the servient estate owner (Lowery) to designate the location or could have fixed it through use. Since the servitude's exercise was possible from 1974 and it was never used, it was extinguished by 10-year liberative prescription.
Analysis:
This decision solidifies the principle that liberative prescription for nonuse of a servitude begins immediately upon its creation, not when its logistical details are finalized. It places the onus on the owner of the dominant estate to actively use or formalize the servitude to avoid its extinguishment. The ruling discourages the indefinite encumbrance of land with unused rights, thereby promoting clarity and certainty in property titles. Future cases involving ambiguously located servitudes will likely follow this precedent, emphasizing the dominant estate owner's duty to act rather than allowing rights to lie dormant indefinitely.
