## Facts

- A common owner subdivided a single property into two parcels: 543 Exposition Boulevard (adjacent to Patton Street, a public road) and 541 Exposition Boulevard (fronting Exposition Boulevard).
- Exposition Boulevard functioned as a walkway adjacent to Audubon Park and was not designated for vehicular passage.
- Although 541 Exposition had “frontage” on Exposition Boulevard, it lacked direct vehicular access to a usable public street except by crossing 543 Exposition to Patton Street, making 541 Exposition an enclosed estate for vehicular access purposes.
- At the time of subdivision and sale, a concrete driveway ran from a garage on 541 Exposition across 543 Exposition to Patton Street, and the common owner left the driveway in place.
- Phipps bought 541 Exposition in 1982 and alleged long-term use of the driveway as a passage to Patton Street.
- After Schupp and Cutrer acquired 543 Exposition, they enclosed a carport in 2003 that blocked the driveway and prevented vehicular travel from 541 Exposition to Patton Street; Phipps did not use the route for vehicular passage thereafter.
- In 2006, defendants began erecting a fence that would also block the claimed pedestrian route, fully preventing access to Patton Street from 541 Exposition.
- Phipps sued to have a passage servitude recognized over 543 Exposition and to require removal of the obstructions; defendants obtained summary judgment, which the court of appeal affirmed.

## Issues

1. Whether the existing concrete driveway, present and visible when the common owner divided and sold the parcels, could constitute an exterior sign showing intent to create a predial servitude of passage by destination of the owner.
2. Whether defendants, as summary-judgment movants, carried their burden to show no genuine issue of material fact on the existence of such a servitude.

## Decision

- The Louisiana Supreme Court vacated the summary judgment for defendants and remanded.
- The Court held defendants failed to show the absence of a genuine issue of material fact on whether the driveway evidenced the common owner’s intent to create a servitude by destination of the owner.
- The Court treated the driveway’s visible, permanent, and functional connection from an enclosed estate to the nearest public road as capable of supporting competing factual inferences about intent, making summary judgment improper.

## Legal Principles

- A predial servitude is a charge on a servient estate for the benefit of a dominant estate.
- A predial servitude may be created by destination of the owner when a common owner establishes an apparent and continuous sign of servitude and later alienates one parcel without abolishing that sign.
- “Exterior signs” existing at the time of division may evidence the common owner’s intent to establish a servitude; intent may be negated by eliminating or altering those signs before or at alienation.
- On summary judgment, the movant must demonstrate entitlement to judgment as a matter of law and the absence of a genuine issue of material fact; unresolved factual questions about intent and the legal significance of physical conditions preclude summary judgment.

## Conclusion

Because the record did not eliminate factual disputes over whether the preexisting concrete driveway constituted an exterior sign of a passage servitude created by destination of the owner, the Louisiana Supreme Court vacated the defendants’ summary judgment and remanded for further proceedings.


Phipps v. Schupp, 45 So. 3d 593 (La. 2010)