Rockholt v. Keaty

In this suit plaintiffs seek a right of passage over the defendant’s property for their land which became landlocked as a result of an expropriation for Interstate 12 in East Baton Rouge Parish by the State of Louisiana through the Department of Highways. The plaintiffs originally owned a 35.521-acre tract, but after the expropriation in full ownership of a 300-foot strip through the tract, their property was. left in two separated segments, a southern portion of 10.308 acres and a northern portion of 17.954 acres. It is the northern portion of the property which is involved in this litigation. This tract, trapezoidal in shape, is surrounded on the west by the lands of the defendant and by Keaty Place Subdivision, on the north by Drusilla Place Subdivision, on the east by the land of Coastal Rentals Corporation, and on the south by the state highway, Interstate 12. (See map which is our composite, not drawn to scale, of maps contained in the transcript.)

*633

*635 Relying upon Civil Code Articles 699 et seq., the plaintiffs alleged that their property was enclosed, and that they were entitled to a right of passage over the estate of their neighbor, the defendant Thomas S. Keaty, to the nearest public road. In their petition they recognized that Interstate 12 is the public road nearest to their property, but because it was a controlled-access highway, part of the National System of Interstate and Defense Highways, access to it had been denied in accordance with state and federal law. The right of passage sought is approximately 50 feet in width and crosses defendant’s land at the corner bordering Interstate 12. This passage would give access not upon a public road but only to other property of plaintiffs at a point about 746 feet from Drusilla Drive, a public road. At the time of the filing of this suit there was no road on this other property to Drusilla Drive. However, this route is urged by plaintiffs to be the “shortest legally permissible and feasible passage to a public road” when cost, convenience, and practicality are considered.

The exception of no cause of action and the motion for summary judgment filed by defendant were sustained by the district court, and plaintiffs’ suit was dismissed. On appeal taken by the plaintiffs the Court of Appeal affirmed the judgment of the district court. 226 So.2d 76. Both courts held that Article 699 of the Code is not applicable. They concluded that property is not “enclosed” within the meaning of the article when that property borders a highway, even though the highway is access-controlled and allows neither ingress nor egress. Both courts cited and relied upon the case of English Realty Company, Inc., v. Meyer, 228 La. 423, 82 So.2d 698 (1955). 1

Article 699 of our Civil Code granting private rights of way for roads of necessity (for authority, see Louisiana Constitution, Article 3, Section 37) reads:

“The owner whose estate is enclosed, and who has no way to a public road, a railroad, a tramroad or a water course may claim the right of passage on the estate of his neighbor or neighbors to the nearest public road, railroad, tramroad or water course and shall have the right to construct a road, railroad or tramway according to circumstances and as the exigencies of the .case may acquire [require], over the land of his neighbor or neighbors for the purpose of getting the products of his said en *637 closed land to such public road, railroad, tramroad or water course, or for the cultivation of his estate, but he shall be bound to indemnify his neighbor or neighbors in proportion to the damage he may occasion.” (Emphasis supplied.)

This article and its predecessors in our earlier Codes are based upon Code Napoleon Article 682. In 1881, however, the French article was amended to allow a right of passage also to the owner of an estate whose way to the public road was insufficient for the exploitation of his land. Planiol makes the following comment about the 1881 amendment: