## Facts

- Earl Toups and Wade Jude Abshire and Melinda Ann Regan Abshire owned adjoining parcels of land in Louisiana.
- Toups’s tract was an enclosed estate with no access to a public road.
- Toups benefited from a recorded servitude of passage over the southern edge of the Abshires’ property that was 30 feet wide and 158 feet long, created by a 1974 partition of a larger estate.
- A gravel (crushed limestone) driveway about 17 feet wide ran the length of the servitude and served as the access route to the nearest public road.
- Disputes arose because Toups and his guests used the driveway at excessive speeds and with various vehicles and equipment (including cars, tractors, and trailers).
- The Abshires initially installed speed bumps to slow traffic on the driveway.
- In 2003, the parties entered a stipulated judgment requiring removal of the speed bumps, setting a 10‑mile‑per‑hour speed limit on the driveway, and allowing Toups to widen the road at his own expense only in a southerly direction. The stipulated judgment was not appealed.
- After the speed bumps were removed, Toups and his guests continued to ignore the 10‑mph speed limit.
- The Abshires then installed a fence along the edge of the servitude, dug a drainage ditch along the edge of the driveway, and placed a culvert where the Abshires’ driveway connected to the servitude driveway.
- Toups sued, claiming the fence, ditch, and culvert were unlawful encumbrances that interfered with his servitude right of passage.
- After hearing testimony and viewing the property, the trial court found no interference with Toups’s reasonable use of the servitude and ordered two speed bumps placed at either end of the Abshires’ property to enforce the 10‑mph limit.
- Toups appealed.

## Issues

1. Whether the Abshires’ fence, drainage ditch, and culvert unlawfully encumbered or interfered with Toups’s reasonable exercise of the servitude of passage.
2. Whether the trial court erred by ordering installation of two speed bumps to enforce the 10‑mph speed limit set in the unappealed stipulated judgment.

## Decision

- The court of appeal affirmed the judgment.
- The fence, drainage ditch, and culvert were not prohibited encumbrances because the evidence supported the finding that Toups could still make reasonable use of the servitude for access.
- The trial court’s order requiring two speed bumps at either end of the Abshires’ property was upheld as a reasonable enforcement measure for the existing 10‑mph restriction.
- The appellate court deferred to the trial court’s factual determinations, particularly because the trial judge inspected the property.

## Legal Principles

- A servitude of passage provides the dominant estate a right of access sufficient for its needs, not a right to control or use every portion of the servitude area free of any nearby works.
- The servient estate owner may construct or maintain improvements along or near a right of passage if they do not materially diminish the servitude or make its exercise materially more inconvenient.
- A prior, unappealed stipulated judgment setting conditions on use of a servitude (such as a speed limit) remains binding and may be enforced through reasonable measures.
- Appellate review of a trial court’s fact findings on physical conditions and interference with use is deferential (manifest error/clearly wrong), especially where the trial court has viewed the premises.

## Conclusion

The Louisiana Third Circuit affirmed the trial court’s finding that the Abshires’ fence, drainage ditch, and culvert did not materially interfere with Toups’s reasonable passage over the servitude, and it upheld the order placing speed bumps to enforce the previously established 10‑mph speed limit.


Toups v. Abshire, 979 So.2d 616 (2008)