Servitudes are tricky things. They are even more tricky when they exist between family members. They are even more tricky when they exist between brothers, where the brothers have divided their property into two parcels, and one brother lives in the house formerly occupied by the other.

The case of Mullenix v. Mullenix, recently decided by the Louisiana Court of Appeal for the Second Circuit, illustrates these points and underscores the need for precision in defining servitudes at the time they are created, rather than leaving them to the vagaries of trying to remember how and where they were used in the past.

Tim and George were brothers. They were co-owners of a large tract of land fronting on Louisiana Highway 848. In 1969, they divided the property into two parcels (a “partition”) by means of a written document (an “act of exchange”) between them. Tim received the parcel of property fronting on Louisiana Highway 848, upon which was situated a house that formerly belonged to George. George received a parcel of property further east, which was landlocked. Under Louisiana law, the landlocked parcel belonging to George was entitled to a legal servitude of passage over Tim’s property, to achieve access to Louisiana Highway 848.

The 1969 act of exchange did not establish or locate the servitude that George’s enclosed parcel would enjoy. That is the first and most important lesson to be drawn from this case. If the written document between the brothers had defined and described the servitude, there never would have been a lawsuit between them over 50 years later.

Instead, after 50 years of history between them concerning the use of these parcels of property, disputes developed and the lawsuit was filed by Tim against his brother George. The lawsuit was tried before a judge in 2021, more than 50 years after the 1969 act of exchange. The trial court rendered its judgment in 2022, there was an appeal, and the appeal was decided in 2023. So, some 54 years after the property was first divided into two parcels, the servitude for the landlocked parcel, which could have been established in the original 1969 act of exchange, was finally determined by a court.

The legal principles governing this case were fairly straightforward. The landlocked parcel owned by George was entitled to a servitude of passage over Tim’s parcel to gain access to Louisiana Highway 848. Louisiana Civil Code Article 694. The fact that the 1969 act of exchange did not mention the servitude passage was of no consequence. The landlocked parcel was absolutely entitled to the servitude of passage.

The route of the servitude of passage must be the route over which passage has been historically exercised by the enclosed estate, if such an historical route exists. Louisiana Civil Code Article 694. If no historically established route exists, the route of the servitude of passage is to be established by the court. Generally the shortest route is preferred, taking into account any injury that might result to the land over which the servitude passes. The court should also take into consideration the degree to which any particular location will interfere with the use of the land over which it passes or will cause any unsafe conditions on that land. Louisiana Civil Code Article 692. The servitude has to be suitable for the kind of traffic or utility that is reasonably necessary for the enclosed land. Louisiana Civil Code Article 690.

In the case between the Mullenix brothers, there was conflicting testimony about the manner in which George had gained access to his property over Tim’s land over the past 50 years. George claimed that he had used a southern route that utilized the private limestone driveway that led to Tim’s house. Tim pointed out that this route would require passage over his grass front lawn, and presented evidence that George had only rarely used the southern route. Tim wanted a northern route that was narrow and unpaved, but which, he said, was the one most often used by his brother.

Herein lies the second lesson of this case: if you physically enjoy passage over another person’s land, realize that your legal rights may be fixed later by a court, and therefore make sure to document the location of your passage and the responsibilities historically undertaken by each party. Establish physical markers, if you can, or document your use in other ways so that a court will not be left with conflicting testimony and hazy memories covering a long span of years.

The trial court found that the parties had never reached any agreement about a route for the servitude of passage and that there was no one route over which passage had historically occurred. Instead, the trial court found that George had used a number of different routes on different occasions. Therefore it was up to the trial court to fix the route, and the trial court pointed to the adverse impact of the southern route in that it would cross Tim’s front lawn and utilize Tim’s home’s driveway. The trial court ruled that the northern route would, with some improvements, give George the same usefulness as the southern route. This finding was upheld by the appeals court.

The northern route, however, would require some improvements. A culvert would likely be needed. The servitude would need to be widened to a standard vehicular width of 30 feet (which was basically the width of Tim’s limestone driveway), and it would have to be rendered “usable” for full passenger vehicles.

Louisiana Civil Code Article 694 requires that in a case like this one, where the enclosed parcel was created by partition or by a voluntary agreement, the passage for the enclosed estate has to be “furnished gratuitously” by the owner of the land over which the passage will take place. The appellate court interpreted this provision to mean that all costs of all improvements necessary to place the northern route into a condition suitable for George’s vehicles had to be borne by Tim, the owner of the land over which the passage would take place. After that, the costs of maintaining and repairing the passage would fall on George, but all of the initial expense of the improvements to initially establish the servitude would fall on Tim. Tim had asked that these costs be borne by George, and the trial court had simply divided the costs 50/50 between them, but the appellate court’s decision put this burden entirely on Tim.

There are grounds for a different result on this issue of the cost of the improvements.  Louisiana Civil Code Article 691 says that the owner of the landlocked property may construct the type of road reasonably necessary for his use of the servitude of passage, thus suggesting (but not making explicitly clear) that the responsibility for roadway improvements should fall on the party using the road. That issue will have to wait to be conclusively resolved at a later time.

For the Mullenix brothers, neither one got exactly what he wanted. If the brothers had spent the time in 1969 to add a couple of paragraphs to their act of exchange, defining the location of the servitude of passage and describing who would pay for what, this entire dispute could have been avoided.

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