Opinion
2022 CW 1146
01-03-2023
KAYCI JO HOFFMAN AND ROLAND ANDREW LANDRY III v. HILLARY MOSES AND SITMAN JOSEPH MOSES JR.
Kayci Jo Hoffman and Roland Andrew Landry III, applying for supervisory writs, 18th Judicial District Court, Parish of West Baton Rouge, No. 1047355.
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
WRIT GRANTED. The portion of the district court's October 5, 2022 judgment that sustained the exception of prescription of nonuse filed by Defendants, Hillary Moses and Sitman Joseph Moses Jr., is reversed. A servitude of passage is a predial servitude. See La. Civ. Code arts. 646 &705. A predial servitude is extinguished by nonuse for 10 years. La. Civ. Code art. 753. Prescription of nonuse begins to run for an affirmative servitude from the date of last use. La. Civ. Code art. 754. La. Civ. Code art. 755, however, provides a suspensive period for the prescription of nonuse when the owner of the dominant estate is prevented from using the servitude by an obstacle that he can neither prevent nor remove. That suspension can remain in effect for a period of up to 10 years. Id.
The district court found La. Civ. Code art. 755 applied but then failed to properly apply the suspension period. The evidence introduced at trial demonstrated that the prescription of nonuse was suspended beginning in December 2010 and ending 10 years later in December 2020. Therefore, when Plaintiffs filed suit in April 2022, approximately 15 months of the 10-year prescriptive period had run. Accordingly, the exception of prescription of nonuse filed by Defendants is denied.
JEW
AHP
WIL