Alabama Great Southern Railroad v. LandryAlabama Great Southern Railroad v. Landry
Lead Opinion
liThе defendants, Lawrence and Luann Landry, appeal the trial court’s judgment denying their motion to keep a wаlkway. We convert the appeal to an application for supervisory writs and deny the writ.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Since 1882, the Alаbama Great Southern Railroad has utilized a right-of-way near the railroad track it built on the south shore of Lake Ponchartrain. In particular, the deed provides that the right-of-way is “one hundred feet from the center of thе road bed on either side of the road to be constructed by said Company.”
Originally, the property contained a camp that stood over the waters of Lake Ponchartrain; however, in 2009, they constructed a new camр, which was located |aon land. After the new camp was constructed, the Railroad filed a petition for injunctive relief against the Landrys. It alleged that they placed trailers, equipment, and other items on the property, violating the Railroad’s right-of-way. It further alleged that the defendants constructed a walkway which was pаrtially within the right-of-way.
After a hearing, the trial court granted the Railroad’s motion for a preliminary injunction. The cоurt ordered the Lan-drys to remove the items infringing upon the right-of-way, including the walkway, within fourteen days. They were also ordered to refrain from any further interference with the Railroad’s right-of-way. When the Landrys failed to comply with the court’s order, the court granted the
On August 13, 2012, the Lаndrys filed a motion to keep their walkway, arguing that it had been in existence for almost one hundred years, and that removing the walkway would cause hardship on the elderly or disabled visiting their camp. After a hearing, the trial court denied the Landrys’ motion and ordered them to remove the walkway within thirty days. This appeal followed.
DISCUSSION
As a prеliminary matter, we note that the trial court’s denial of Landrys motion to keep the walkway is an interlocutory judgment. See La. C.C.P. art. 1841 (a judgment that does not determine the merits but only preliminary matters in the | ^course of the action is an interlocutory judgment). An interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083. The judgment denying the motion to keep walkway is an interlocutory judgment that is not expressly appealable by law. The рroper procedural vehicle to seek review of an interlocutory judgment that is not immediately appealable is an application for supervisory writ. See La. C.C.P. art. 2201; see also Gieck v. Tenet Healthcare Corp.,
Accordingly, in the interest of justice, and especially considering that this appeal was filed within the delays allowed for applying for supervisory writs, see Rule 4-3, Uniform Rules-Courts of Appeal, we convert the pеnding appeal to a writ application for review under our supervisory jurisdiction. See Kurz v. Milano,
After considering the record in the instant case, we find no error in the trial court’s ruling. The Landrys’ writ application is therefore denied.
WRIT DENIED
BONIN, J., concurs with reasons.
Notes
. For а small tract of properties, there is an exception in the deed that provides only a forty-foot right-of-way on the lake side. In his deposition that was admitted into evidence, Solomon Woodward, a real-estаte engineer, testified that the Landrys’ camp was not among the properties with the forty-foot right-of-way. Conversely, Mr. Landry testified that it was common knowledge that the Railroad possessed a forty-foot right-of-way on either side of the tract.
Concurrence Opinion
concurs with reasons.
|,I concur in the denial of the writ application. I write separately to emphasize that our action in this matter has no prece-dential, binding, or authoritative value. Because the judgment under review is an interlocutory judgment from which an appeal is not expressly provided for, it is not appealаble. See Favrot v. Favrot, 10-0986, pp. 3-4 (La.App. 4 Cir. 2/9/11),