NORTON v. THORNE | No. 83-599. | La. Ct. App. | Judgment | Law

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Docket Number

No. 83-599.

Attorney(S)

Irving Ward-Steinman, Alexandria, for plaintiff-appellant. William E. Skye, Alexandria, for defendant-appellee.

Judges

LABORDE, Judge.

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Smart Summary

Factual and Procedural Background

This case concerns a dispute over a servitude of passage. Plaintiff-appellant Roy J. Norton filed a petition seeking to compel defendant-appellee Alton Thorne to remove a fence obstructing a road over which Norton claimed a right of use by acquisitive prescription of thirty years. The district court initially granted Norton’s motion for summary judgment. On appeal, this court reversed and remanded for further proceedings. Subsequently, the defendant filed an exception of no cause of action, which the trial court granted. Norton appeals that ruling.

Legal Issues Presented

Whether the trial court erred in granting the exception of no cause of action by applying the servitude articles of the Louisiana Civil Code of 1870 rather than the revised articles of 1977.
Whether a discontinuous servitude such as a right of passage can be acquired by prescription under the applicable law.
Whether the plaintiff sufficiently established a servitude of passage by title as required under the applicable legal framework.

Arguments of the Parties

Appellant's Arguments

The trial court erred by applying the older 1870 Civil Code provisions rather than the revised 1977 articles governing servitudes.
The plaintiff contended that he acquired the servitude of passage by acquisitive prescription over thirty years.
On appeal, the plaintiff attempted to show title by submitting a plat of servitude and a homestead exemption, arguing these established the servitude.

Appellee's Arguments

The defendant argued that under the law applicable at the time, a discontinuous servitude such as a right of passage could only be established by title, not prescription.
The defendant maintained that the plaintiff failed to allege or prove title to the servitude.
The trial court properly excluded the documents attached to the appellate brief as they were not part of the trial record and did not constitute evidence of title.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Norton v. Thorne, 412 So.2d 716 (La.App. 3rd Cir. 1982)	Prior appellate decision reversing summary judgment and remanding for further proceedings.	Referenced as procedural history of the case.
LSA-C.C. art. 740; Boothe v. Department of Public Works, 370 So.2d 1282 (La.App. 3rd Cir. 1979)	Establishment that under 1977 Code, a right of passage can be acquired by prescription.	Used to explain why the 1977 Code is not retroactive and thus not applicable to this case.
Crader v. Casualty Reciprocal Exchange, 417 So.2d 101 (La.App. 3rd Cir. 1982)	Exhibits attached to appellate briefs are not evidence and cannot form part of the appellate record.	Supported refusal to consider documents attached to plaintiff’s appellate brief.
Blouin v. Loyola University, 325 So.2d 848 (La.App. 4th Cir. 1976)	Same principle regarding inadmissibility of evidence attached only on appeal.	Reinforced exclusion of plaintiff’s documents.
Cutright v. Wilson, 410 So.2d 1274 (La.App. 3rd Cir. 1982)	Trial court’s discretion in evidentiary rulings will not be disturbed absent manifest error.	Supported affirmance of trial court’s exclusion of evidence.
LSA-C.C. art. 708; Harthcock v. Hurst, 413 So.2d 636 (La.App. 1st Cir. 1982)	Establishment of predial servitude by title governed by laws of alienation of immovables; acts of sale convey servitudes.	Distinguished plat and homestead exemption from valid acts of title conveying servitude.

Court's Reasoning and Analysis

The court reasoned that under the Louisiana Civil Code of 1870, a discontinuous servitude such as a right of passage could only be established by title, not by prescription. Although the 1977 revision of the Civil Code allows acquisition of a right of passage by prescription, the legislature explicitly provided that this change would not have retroactive effect and would only apply from January 1, 1978, onward. Since the servitude at issue arose before that date, the older law governs.

The plaintiff failed to allege or prove title to the servitude, relying instead on acquisitive prescription, which was not permissible under the applicable law. The trial court properly granted the exception of no cause of action on this basis.

Moreover, the plaintiff’s attempt to introduce evidence of title via a plat of servitude and a homestead exemption on appeal was rejected because such documents are not evidence and cannot be considered when attached only to an appellate brief. The trial court’s exclusion of this evidence was within its discretion and was not manifestly erroneous.

Finally, the court noted that the documents offered did not constitute valid acts of alienation or conveyance of the servitude, which is required to establish title under the relevant Civil Code provisions.

Holding and Implications

The trial court’s judgment granting the exception of no cause of action is affirmed.

The plaintiff does not have a cause of action because he failed to establish title to the servitude under the law applicable at the time the servitude arose. The decision confirms that the 1977 revisions to the Civil Code do not apply retroactively to servitudes established before January 1, 1978. Costs are assessed against the plaintiff-appellant. No new precedent was established; the ruling applies the existing statutory framework and evidentiary principles to the facts of this case.

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ROY J. NORTON, PLAINTIFF-APPELLANT, v. ALTON THORNE, DEFENDANT-APPELLEE.

LABORDE, Judge.

This case involves a dispute over a servitude of passage which was previously before this court. In Norton v. Thorne, 412 So.2d 716 (La.App. 3rd Cir. 1982), plaintiff, Roy J. Norton, filed a petition asking that the defendant, Alton Thorne, be compelled to remove a fence from a road on which the plaintiff claimed a right of use by the acquisitive prescription of thirty years. The district court granted the plaintiff's motion for summary judgment. We reversed that decision and remanded the matter for further proceedings. Defendant then filed an exception of no cause of action. The trial court granted the exception of no cause of action and the plaintiff appeals. We affirm.

The appellant, Roy J. Norton, contends that the trial court erred in granting the exception of no cause of action by applying the servitude articles of the Louisiana Civil Code of 1870 rather than the revised articles of 1977. We hold that the application of the older provisions was proper.

Article 766 of the Louisiana Civil Code of 1870 stated that a discontinuous servitude such as a right of passage could only be established by title. In 1977 this article and the distinction between discontinuous and continuous servitudes was abolished. A right of passage can, therefore, now be acquired by prescription. LSA-C.C. art. 740; Boothe v. Department of Public Works, 370 So.2d 1282 (La.App. 3rd Cir. 1979).

The legislature, however, specifically stated that a servitude that was discontinuous under the prior law would not give "rise to prescriptive rights except from the effective date of new legislation," January 1, 1978. Comments under LSA-C.C. art. 740. Since the new articles do not have a retroactive effect, the servitude articles of the Louisiana Civil Code of 1870 should govern this case.

According to the older provisions, the plaintiff could have acquired the servitude of a right of passage only by title. In this instance, plaintiff argues that he acquired the servitude by means of prescription. He fails to allege the establishment of the contested servitude by title. A peremptory exception of no cause of action was, therefore, properly granted by the trial court.

Plaintiff now tries to show title by attaching to the appellate brief a plat of servitude and a homestead exemption which the trial court refused to accept. This court cannot consider those documents. Exhibits attached to the plaintiff's appellate brief are not evidence and cannot form part of the record on appeal. Crader v. Casualty Reciprocal Exchange, 417 So.2d 101 (La.App. 3rd Cir. 1982); Blouin v. Loyola University, 325 So.2d 848 (La.App. 4th Cir. 1976).

The decision not to admit that evidence was within the sound discretion of the trial court and will not be disturbed on appeal in the absence of manifest error. Cutright v. Wilson, 410 So.2d 1274 (La.App. 3rd Cir. 1982). According to Article 708 of the Civil Code, the establishment of a predial servitude by title is governed by the laws dealing with the alienation of immovables. In Harthcock v. Hurst, 413 So.2d 636 (La.App. 1st Cir. 1982) an immovable as well as a servitude were conveyed by means of an act of sale. The plat and homestead exemption are not acts conveying or creating a servitude. They only refer to a servitude. The trial court, therefore, did not err in refusing to accept these documents as evidence of title.

As the trial court stated, the plaintiff can acquire the right of passage only by title. Since he did not show title, the plaintiff does not have a cause of action.

For the above and foregoing reasons, the trial court's decision is affirmed. Costs are assessed against plaintiff-appellant, Roy J. Norton.

AFFIRMED.