Energy Law

Acquisitive Prescription and Predial Servitudes

In Davis v. Provost, 2007-1519 (La. App. 3 Cir. 4/2/08), -- So. 2d --, the Louisiana Court of Appeal for the Third Circuit reinforced an earlier holding that 1977 La. Acts No. 514 § 1, which allowed the acquisition of a predial servitude through acquisitive prescription, was not retroactive. In Davis, the plaintiffs filed a Petition for Declaratory Judgment seeking access to their property by crossing over a bridge that the defendants had allegedly locked. One of the defendants filed a reconventional demand, alleging that he had exercised for over thirty years a right-of-way over the bridge to gain access to his sugarcane field. The trial court agreed and ruled in favor of the defendant.

            The court of appeals vacated and remanded. The court of appeals first noted that the Louisiana Civil Code of 1870 explicitly disallowed the acquisition of a predial servitude through acquisitive prescription. Not until January 1, 1978, when 1977 La. Acts. No. 514 § 1 became effective, could someone obtain a predial servitude through acquisitive prescription. Relying on its earlier holding in Griffith v. Cathey, 99-923 (La. App. 3 Cir. 2/2/00), 762 So. 2d 29, the court held that 1977 La. Acts No. 514 § 1 was not retroactive. Because the defendant filed his reconventional demand on May 17, 2006, the court held that thirty years had not passed, and the trial court had erred in ruling in favor of the defendant. The court remanded for further factual findings.

            The ruling may have a significant impact on pipeline servitudes and their ownership. 

            To read the full opinion, click here.

Full post as published by The Energy Law Blog on April 30, 2008 (boomark / email).