163 So. 3d 212
La. Ct. App.2015Background
- Adjoining Uptown New Orleans lots (541 = Lot F‑1; 543 = Lot F‑2) were once a single parcel owned by Richard Katz; Katz subdivided in 1978 and sold Lot F‑1 to Botnick (then to Phipps), retaining Lot F‑2 which had Patton St. access.
- A concrete driveway historically ran from Patton St. across Lot F‑2 through a carport into Lot F‑1; no written servitude was recorded when Katz sold or later conveyed Lot F‑2.
- Phipps claims (1) an apparent servitude of vehicular passage by destination under La. C.C. art. 741, or alternatively (2) a gratuitous servitude fixed under art. 694 (or, if needed, a judicially fixed indemnified servitude under art. 689) because Lot F‑1 is enclosed.
- Dr. Gonzalez (intermediate owner) remodeled in 2003 enclosing the carport area; Schupps bought Lot F‑2 in 2006, built a fence blocking access; Phipps then sued seeking recognition/restoration of vehicular passage and removal of obstructions.
- Trial court initially granted summary judgment for Phipps under art. 694 ordering removal/alteration; appellate de novo review finds genuine disputes of material fact on art. 741 and holds art. 694 relief is barred against innocent purchasers by the Public Records Doctrine.
Issues
| Issue | Phipps' Argument | Schupps' Argument | Held |
|---|---|---|---|
| Whether a gratuitous servitude under Art. 694 may be fixed against Schupps | Katz’s subdivision enclosed Lot F‑1 so art. 694 mandates gratuitous restoration of the prior driveway location | Art. 694 relief cannot be imposed because dominant estate may not be enclosed and Schupps are innocent purchasers without notice | Summary judgment under art. 694 reversed: genuine fact issue on enclosure and Public Records Doctrine bars imposing art. 694 servitude on Schupps |
| Whether an apparent servitude by destination under Art. 741 arose | The visible driveway, gate/key, and subdivision facts show Katz intended a servitude by destination benefitting Lot F‑1 | Driveway use was sporadic/pedestrian and evidence is equivocal; extent/manner (vehicular vs pedestrian) disputed | Cannot resolve on summary judgment: genuine issues of material fact about intent, visibility, and extent/manner of use; remand for trial |
| Whether Public Records Doctrine defeats unrecorded Art. 694 claim against subsequent purchasers | Art. 694 creates a legal obligation that could be enforced against successors | Schupps stress no recorded servitude and no notice | Held: unrecorded right to demand creation of conventional servitude is unenforceable against innocent third‑party purchasers (Public Records Doctrine) |
| Whether Phipps’ estate is enclosed and, if so, who bears cost of any forced (Art. 689) passage | If no Art. 741 servitude, Lot F‑1 is enclosed and Phipps may obtain a judicially fixed (indemnified) passage; Phipps argues servitude costs should fall on servient owner if they created obstructions | Schupps argue municipal ordinance or Mrs. Phipps’ consent negates enclosure; also relocation under art. 695 | Court rejects ordinance and consent arguments on summary judgment; if art. 689 relief later granted, Phipps (owner of enclosed estate) bears cost of creating passage and must indemnify servient owners for damages, though removal costs for obstructions typically fall on those who created them (e.g., prior owner who enclosed) |
Key Cases Cited
- Dallas v. Farrington, 490 So.2d 265 (La. 1986) (applies Public Records Doctrine to bar enforcement of unrecorded conventional servitude against later purchasers)
- Phipps v. Schupp, 45 So.3d 593 (La. 2010) (Supreme Court ruling that genuine fact issues exist whether an apparent servitude by destination was created; remanded)
- Rockholt v. Keaty, 237 So.2d 663 (La. 1970) (defines enclosure as lack of vehicular access to a public road)
- Vermilion Parish Sch. Bd. v. Broussard, 270 So.2d 523 (La. 1972) (public interest in preventing landlocking; context for servitude law)
- Patin v. Richard, 291 So.2d 879 (La. App. 3d Cir. 1974) (older precedent on judicially fixed servitudes, criticized as inconsistent with later Public Records Doctrine)
- Brian v. Bowlus, 399 So.2d 545 (La. 1981) (treats servitude fixed by judgment as a conventional servitude)