The Louisiana Right of Passage Discussed

Originally published by Charles Sartain.

Posted by Charles Sartain

Co-author Brooke Sizer

Spoiler alert: Don’t expect a post about a weekend of Mardi Gras debauchery.

The owner of a landlocked tract can demand a right of passage over his neighbor’s property to the nearest public road. Does the law require the passage to be on the shortest route? No, says Phillips Energy Partners, LLC v. Milton Crow Ltd. Partnership, et al.

Phillips’ dilemma

Phillips owned a landlocked 160-acre tract. To the west is a Crow and Livingstone tract.  Chesapeake, in order to access wells on the two properties, built a road across the C-L property and on to the Phillips property, connecting both properties to a public road. Phillips dug several ponds on its property in order to sell water for hydraulic fracturing and used the road to access the property until C-L objected.  Landowners to the east allowed Phillips to construct a temporary road to finish the project, but refused to permit a permanent road through their property.

Phillips sued C-L to obtain a right of passage.  Three routes were proposed.

1. Route One, to the east,
2. Route Two, on C–L’s property to the west,
3. Route Three, the Chesapeake road.

Routes One and Two would require construction of a roadway.  Phillips’ first choice was Route Three. Landowners to the east opposed Route One. C–L, opposed Routes Two and Three.

What Does  the Civil Code Say?

Art. 689.  Enclosed estate; right of passage

The owner of an estate that has no access to a public road … may claim a right of passage over neighboring property to the nearest public road … .  He is bound to compensate his neighbor for the right of passage acquired and to indemnify his neighbor for the damage he may occasion.

Art. 692.  Location of passage 

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.

Note “generally” in Art 692. That word indicates exceptions, two of which are recognized by jurisprudence:

1. The shortest route is covered by water or is otherwise not accessible year-round.
2. The costs associated with crossing the estate which is the shortest distance are so exceptional that from a practical standpoint it is economically unfeasible.

Testimony was presented at trial regarding the feasibility of Route One:

• It was frequently muddy and impassable
• It would be located near a where a deer feeder loaded with 150 pounds of corn was tipped over by the water
• It would require a federal wetland mitigation permit
• It would pass through a residential subdivision, and would not be well received by the residents
• A road use permit could be used by the police jury
• It was typically inundated with water and rarely dried out.

The trial court found that Route One presented environmental factors that resulted in the need for an exception. The court of appeal agreed.  Likewise, Route Two could result in safety and maintenance issues.  Route Three was the least injurious.

It’s Not all Good News for Phillips

Because Route Three was a permissible right of passage, Phillips was bound to indemnify C-L for damage the road may occasion.  The burden was on C-L – the servient estate – to prove the amount of damage resulting from the servitude.

For our musical interlude there will be no cute John Denver number. Let’s talk swampy and muddy Louisiana funk and second line.

You have the R&B and the Jazz.  Take your pick. no lyrics necessary.

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