h The enclosed estate in this action was surrounded on three sides by a lake. The only access to a public road was across lands previously subdivided by defendants for lake front development. The roads laid out for the subdivision ended at a dead end at plaintiffs enclosed property, yet the roads were not dedicated public roads. Before the trial, the parties stipulated that plaintiffs tract was enclosed and that the existing roads provided plaintiff with the least injurious access through the subdivision to the nearest public road. Plaintiff was also allowed by consent judgment before trial to gravel the last portion of the road leading to his tract. The trial addressed the defendants’ reconventional claims for indemnification to the servient estate under Civil Code Article 689 and their claims for trespass for plaintiffs initial unauthorized use of the roads. The trial court judgment recognized the servitude in favor of plaintiffs property, awarded indemnification to defendants and addressed other matters regarding plaintiffs use of the roads in the subdivision. Both parties appeal the rulings. We affirm in part and reverse in part.
Facts
On May 20, 2005, Kenneth A. Greenway (“Greenway”) purchased about 7 acres of land on Grand Bayou Lake in Red River Parish for $50,000 cash. The peninsular-shaped tract was surrounded by the lake on three sides. On the west side of Green-way’s property was Grand Bayou Subdivision, originally platted in 1987. The west
The parties further declare that the roads shown on said plat are not dedicated to the public, however, the owners of any lots of the Grand Bayou Subdivision are granted a perpetual right of use for said roads.
Because of the creation of the public lake around his property and the nonpublic nature of Elm Street, Greenway’s land is an enclosed estate. Six weeks after purchasing his property, Greenway sued the Grand Bayou developers for a right of passage, alleging that his property was an enclosed estate pursuant to La. C.C. art. 689. Greenway’s petition alleged that Mary S. Wailes, Minnie Belle Gilcrease, Judy Marshall Dickson and James Troq-uille (hereinafter collectively “Wailes”
On July 20, 2005, Wailes reconvened, and alleged ownership of 70 acres, subdivided into Grand Bayou Subdivision and Grand Bayou Subdivision Unit No. 2. Wailes further alleged that “they have sold a variety of the lots ... however the roads in Grand Bayou Subdivision are all | ^privately owned as more fully set forth in the public records of Red River Parish.”
At the eventual trial of this case, the parties’ stipulations included Greenway’s ownership of his property and Wailes’ ownership of the subdivision roads. The parties further stipulated that the location of the shortest and least injurious route to access the public road was along Elm and Oak Streets.
Greenway testified that he knew about the problem with access before he bought his parcel. Over the weekend immediately following the Friday when his deed was recorded, Greenway had 80 or 90 percent of his land cleared with a bulldozer. On cross-examination, he described his initial entry to the land through the subdivision as follows:
Q Mr. Greenway, tell me, before we had this limited agreement of access, what — tell me, explain to me what rights you had in this road? What rights you had to use it or rights you had in it?
A Before we had the July 22 agreement?
Q Yes, sir.
A I was — there were no — -there are not any no trespassing signs posted. They’re actively trying to sell lots. I would assume that I could ride through that neighborhood just like any other person.
Q But, before that you weren’t just riding through, you had brought a dozer out there and you were clearing land, correct?
A That is correct. And, when I was requested to stop we did so immediately.
Thereafter, Greenway hired a contractor to clear the lot and build a road. He spent $4,427 for 452 linear feet of gravel road, 352 feet of which was placed on the existing road (Elm Street) in Grand Bayou Subdivision. This portion of Elm Street apparently extended along the south side of Lots 8, 9 and 10, which formed the base of the peninsula of land before reaching Greenway’s property. Greenway testified about the difference in the condition of the road along Elm Street as it approached his property:
Q What part of the road, condition of the road, was different?
A Well, you can see from the photographs that it was — When the gravel stopped there by Ms. Gilcrease’s driveway it was nothing but a little dirt, pig trail if you will. After we got done, we put 139 tons of gravel on that road. We spent a little bit of money improving it and making it drivable. And we actually dressed up the road in front of Ms. Gil-crease’s house. And the road in the neighborhood is slightly better than it was when we left.
He further testified that the subdivision road was not of “uniform” width. In some places it was about 8 feet wide, and a little wider at the intersections. |sThe road Greenway constructed was “as wide as the road was there at Ms. Gilcrease’s house, and we followed the path of the previous dirt road.”
Mary S. Wailes testified as follows concerning Greenway’s gravel operations on the existing subdivision road:
Q ... As part of this limited access, tell me what your understanding was, about the portion of the road that Mr. Greenway was going to improve, that he was going to put gravel on. What was your understanding?
A That he was — We had a solid base on that road, that you could pass on. It was — -The subdivision is on a sand pile and sand washes. We had graded the roads as low as we could, planted the sides with grass, so that we could pass, and put the gravel on about fourteen — I believe it measures about sixteen feet across those roads, that we fixed. And Mr. Greenway volunteered to put gravel from Ms. Gil-crease’s house down to his lot. What we expected was that he was just going to put gravel, like we did on the front_ Instead of Mr. Greenway going directly to his property, he cut across which was the Troquille property, that now belongs to Mr. Grigs-by....
The testimony suggested that Grigsby was the successor in title to one of the three lots fronting Elm Street formerly owned by Troquille.
After the trial, the trial court ruled from the bench. The judgment, signed on Feb
Pursuant to La. Civil Code art. 690, this judgment is applicable only if Greenway maintains, constructs or allows five (5) or less lots for individual home sites on the property referenced herein. Should Greenway construct or allow more than 5 lots for individual home sites on his property, Wailes shall be entitled to seek further compensation in accordance with applicable law.
Finally, Greenway was ordered to pay his proportionate share of annual maintenance in the same and similar manner as requested of other owners of lots in Grand Bayou Subdivision. Both parties appeal.
Discussion
I.
This enclosed estate dispute is somewhat unique because of two facts which were never in dispute. First, the location of the actual strip of land within the Wailes’ servient estate
17Second and most significant, it is undisputed that the Elm/Oak Corridor was already burdened by the real obligation of an existing right of passage/predial servitude in favor of the subdivision lot owners who, for the most part, are not parties to the suit.
Clearly, by virtue of the recorded covenants, the Wailes’ ownership of the Elm/ Oak Corridor was subject to the perpetual rights of passage in favor of the subdivision lots, which themselves would otherwise be enclosed estates in the absence of the existing rights of passage. Also, from that narrow corridor of land, Wailes could receive no civil fruits and rents for its surface use. Thus, in terms of our civilian concept of the bundle of property rights comprising the ownership of the Elm/Oak Corridor, Wailes’ | ^ownership is virtually a naked legal title
Civil Code Article 689 defines the legal servitude for the right of passage to an enclosed estate. That article provides for a right of indemnification to owners of the servient estate as follows:
“He [the owner of the enclosed estate] is bound to indemnify his neighbor for the damage he may occasion.”
From this principle, the question presented is whether the trial court’s recognition and grant of the right of passage over the Elm/Oak Corridor in favor of Greenway has damaged the Wailes’ naked legal title to that tract? For the following.reasons, we find no damage.
Initially, as indicated above, all of the owners of real rights in the Elm/Oak Corridor were not made parties in this suit.
In recognition of the joint use of the subdivision roads, the trial court’s judgment attempted to regulate the future contingency of road maintenance between Greenway and these absent lot owners as set forth in the following provision:
Greenway shall pay his proportionate share of annual maintenance in the same and similar manner as requested of other owners of lots in the Grand Bayou Subdivision. Greenway’s proportional payment of maintenance is based on the number of lots and/or single family dwellings existing or being constructed on his tract of land and will be increased proportionately as additional single family dwellings and/or lots are added within the Greenway tract.
ImThis judgment, however, is flawed. First, it implies that Wailes, with their naked legal title to the Elm/Oak Corridor, may regulate the predial servitude rights of the lot owners and Greenway by imposition of an undefined annual maintenance charge. The subdivision covenants do not give Wailes such power as the owners of the servient estate.
In Second, because of the nature of the legal servitude which has now been recognized, the Wailes’ naked legal title to the Elm/Oak Corridor has not been damaged, nor has their property been taken from them, like an expropriation. Civil Code Article 659 defines a legal servitude
We find that the trial court’s focus on the appraised values of these lake front properties and the enhancement of the value of the Greenway L ¿tract attempted to provide Wailes a measure of compensation analogous to expropriation, which is not the test of Article 689. Instead, Article 689 only allows that the property “may” receive “damage” requiring indemnification by the owner of the dominant estate. As indicated above, Greenway’s newly recognized use of the Elm/Oak Corridor is not any more burdensome on the Wailes’ ownership of the tract. They were not free in their ownership of the streets to do anything else with the use of the property other than to allow transportation through the subdivision. Greenway’s additional transportation right therefore results in no damage to the ownership of the naked legal title to the streets.
Accordingly, we conclude that the recognition of the right of passage for Green-way’s enclosed estate did not cause damages to the Wailes’ property, which was already subject to conventional and perpetual rights of passage in favor of the lot owners of the subdivision. The trial court’s award of $15,385 is reversed and the quoted provisions of the judgment attempting to address the maintenance expenses for the Elm/Oak Corridor and the future use of Greenway’s property are likewise reversed.
II.
Wailes’ answer to the appeal asserts that the trial court erred in failing to find a trespass because of Greenway’s initial entry through the 1 ^subdivision onto his property before the consent judgment
The evidence reveals that Greenway entered his property after his purchase of the land and immediately began clearing work. There is no evidence that the roads in the subdivision were posted prohibiting the public from using the roads. The contractor who conducted the clearing work for Greenway lived in the subdivision and moved his heavy equipment across the subdivision streets which was his presumed right as an owner in the subdivision. The trial court’s ruling emphasized that the general public would expect to have the use of these subdivision roads. The trial court also found that Greenway’s initial use and his use thereafter had not caused damage to Wailes.
Wailes’ technical urging of a trespass was appropriately rejected by the trial court. The active, unfettered use of the roads by the public was the relevant fact entitled to greater weight than Wailes’ complicated ownership, and even if an intentional tort of trespass occurred, there was no showing of damages.
Finally, the Wailes claim that they will be forced to repair certain damages caused by the manner in which Greenway constructed the last portion of Elm Street near his property. That road grading work was performed pursuant to the initial consent judgment and was never raised as a specific topic in Wailes’ reconventional pleadings. The claim, as indicated above, would involve the real rights of the other lot owners in the subdivision who own the rights of passage to the roads. The Wailes, in their | ucapacity as the owners of the naked legal title to Elm Street, are not responsible for road grading or the appropriate width of the gravel on Elm Street. To the extent that Greenway’s work in any manner affected the property of the adjacent lot owners, those owners may independently assert their claims.
Conclusion
The trial court’s judgment recognizing Greenway’s right of passage and rejecting Wailes’ claims for trespass and related damages is affirmed. The portions of the judgment awarding indemnification to Wailes and addressing annual maintenance expenses and Greenway’s future use of his property are reversed. Costs of appeal are assessed to appellees.
AFFIRMED IN PART, REVERSED IN PART.
Notes
. Ultimately, the parties stipulated that MSW Properties, Inc., Judy Dickson and James Troquille owned the roads, and the record indicates that Mary S. Wailes is an owner of MSW Properties, Inc. It is this group that owns the subdivision streets which will be referred to as Wailes.
. The Elm Street and Oak Street corridor does not actually run through the defendants' surrounding lands along its entire course to a public road. This is because the record indicates that it runs through parts of the subdivision where the lot owners on either side of the street are not members of the Wailes group.
. La. C.C. art. 692 provides: "The owner of the enclosed estate may not demand the right of passage anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands.”
. In the filing of the plats for the subdivision by the original owner(s), it was indicated that no statutory dedication of the streets was made pursuant to La. R.S. 33:5051. However, the covenants for the subdivision designated rights of passage over the streets to all future lot owners, with no gated access restriction into the subdivision placed upon the lot owners or parties interacting with the lot owners. The covenant for the specified use of the roads pursuant to the subdivision plan, if not actually creating true predial servitudes by itself, would fall under our law governing building restrictions. La. C.C. art. 775. The rights created by such covenant are incorporeal immovables and real rights likened to predial servitudes and regulated by application of the rules governing predial servitudes. La. C.C. art. 777.
.The term "naked legal title" is of course not a reference to "naked ownership” as discussed in the Civil Code articles on usufruct. La. C.C. art. 535, et seq. The term will be used herein as it is sometimes figuratively employed in the jurisprudence to indicate property ownership subject to such a significant servitude so as to leave the owner of the servient estate with very little enjoyment and economic value from the property. See De-Sambourg v. Board of Commissioners for Grand Prairie Levee District,
. The appellate court may notice on its own the nonjoinder of indispensable parties and apply the peremptory exception. La. C.C.P. art. 927. However, from our analysis, the absence of the other lot owners from this litigation does not as a practical matter impede their ability to protect their interests. La. C.C.P. art. 641.
. Professor Yiannopoulos notes in his treatise that the indemnification owed under Article 689 "... may also be due to a person having a predial servitude or other real right on the servient estate.” A.N. Yiannopoulos, 4 Louisiana Civil Law Treatise Predial Servitudes § 98, at 288, Note 2 (3d ed.2004).
. The individual members of the Wailes group and/or the group as a whole apparently own certain lots in the subdivision which may allow them to seek reimbursement for maintenance expense as co-owners of the servitude of use for the streets, as discussed infra.
. Article 806 provides, in pertinent part: "A co-owner who on account of the thing held in indivisión has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares.”
. The possibility for joint use of a right of passage by the owners of the dominant and servient estates in this legal servitude setting is a practical reality recognized by the jurisprudence and supported by the "least injurious” principle of Civil Code Article 692. See Cazes v. Robertson,
. In reaching this conclusion, the case of Hutchison v. Jackson,