## Facts

- Land owned by members of the Ciavaglia family was later divided into separate parcels held by George M. McCormick, II (plaintiff) and Donald Harrison (defendant), each tracing title back to the Ciavaglias.
- In a 1993 deed, when the Ciavaglias (and Plum Hill Training Center, Inc.) sold a tract to Danny and Susan Payne (Harrison’s predecessors), the Ciavaglias granted the Paynes a written, non-exclusive servitude of usage over a 5/8-mile horse track located on the Ciavaglias’ remaining land.
- The servitude granted the right to gallop and exercise, at reasonable times, up to fifteen horses stabled at the Paynes’ barn.
- The deed required the Paynes to pay the vendor \$100 per month in “maintenance fees” for any month in which the Paynes’ horses were exercised on the track, but it did not state when payment was due or how it had to be tendered.
- In 1995, the Paynes sold their tract to Harrison and expressly transferred their rights under the track servitude to him.
- Harrison used the track for several years and paid the \$100 fee for months when he exercised horses, though payments were made at irregular intervals.
- In 1999, the track property was sold to Lifeline Nursing Company; Lifeline objected to Harrison’s use, and Harrison stopped using the track.
- In September 2004, McCormick acquired the property containing the track (the servient estate). The deed into McCormick did not list the servitude.
- After McCormick’s purchase, Harrison attempted to use the track in late October 2004. He was able to use it once, but on two later occasions McCormick’s agents ordered Harrison’s employee to leave and prevented further use.
- Harrison did not tender any \$100 monthly payment to McCormick in connection with his attempted use after McCormick acquired the property.
- McCormick filed suit seeking a declaratory judgment that the servitude had been extinguished; Harrison opposed and asserted a reconventional demand for damages based on being denied access.
- Evidence at trial conflicted on the track’s condition: McCormick described it as unsafe and unusable due to plowing and rocks, while Harrison testified it could still be used for limited equine exercise (such as starting young horses).

## Issues

1. Was Harrison’s interest a limited personal servitude (right of use) that could be transferred to him and enforced against McCormick as the current owner of the servient estate?
2. Was the servitude extinguished by ten years of nonuse, given the lapse between Harrison’s use before 1999 and his attempted use in 2004?
3. Did Harrison’s failure to pay the \$100 monthly maintenance fee to McCormick extinguish the servitude, particularly where Harrison was prevented from using the track?
4. Was the servitude extinguished because the burdened portion of the property (the track) was allegedly unusable or destroyed?

## Decision

- Affirmed.
- Held the racetrack right created in the 1993 deed and transferred in the 1995 deed was a limited personal servitude of right of use in favor of Harrison, not a predial servitude.
- Held the servitude was not extinguished by prescription of nonuse because less than ten years had elapsed between Harrison’s last use (before 1999) and his attempted use in 2004.
- Rejected extinction based on the track’s condition because the evidence did not establish permanent and total destruction of the burdened portion of the estate.
- Held Harrison’s nonpayment of the monthly fee to McCormick did not extinguish the servitude, especially where the deed did not specify when payment was due and McCormick’s agents interfered with use during the disputed month.
- Left undisturbed the trial court’s prospective requirement that Harrison pay \$100 per month in advance as a condition of continued exercise of the servitude, and the trial court’s ruling that Harrison did not owe the fee for October 2004.
- Left undisturbed the denial of Harrison’s reconventional demand for damages.

## Legal Principles

- A right granted in favor of identified persons to use another’s immovable for a specific purpose may be classified as a limited personal servitude of right of use under Louisiana law.
- Limited personal servitudes of right of use can be transferable when created and conveyed in writing, and may bind successors who acquire the servient estate.
- A right of use is subject to extinction by prescription of nonuse; the prescriptive period is ten years, and the servitude remains in effect if ten years of nonuse has not accrued.
- A servitude may be extinguished only upon permanent and total destruction of the burdened part of the estate; evidence of deterioration or restricted usefulness is not enough.
- Nonpayment of a fee associated with exercising a servitude does not, without clear contractual language or a Civil Code basis, operate as an automatic extinction of the servitude; it is generally treated as an obligation related to use.
- When the servient owner prevents or materially interferes with exercise of the right of use, that interference may affect whether a fee is owed for the period at issue.

## Conclusion

The Louisiana Second Circuit affirmed that Harrison held a transferable personal servitude of right of use over McCormick’s racetrack property and that the servitude was not extinguished by less than ten years of nonuse, by the track’s disputed condition, or by Harrison’s failure to tender a \$100 monthly fee during a period when McCormick’s agents blocked further access.


McCormick v. Harrison, 926 So.2d 798 (2006)