## Facts

- Dian Coleman Winingder owned and lived in an 80-year-old home in New Orleans that was constructed within roughly two to four inches of the common boundary with the adjacent lot.
- Utility and maintenance components (including electrical, air-conditioning, and water-heater access) on that side of the home could only be reached by entering the neighboring lot.
- Sue Ann Frances Balmer purchased the adjacent lot in 1988, cleared prior structures, and developed the property.
- Negotiations to purchase a narrow strip along the boundary failed.
- Balmer built a solid six-foot wooden fence on the property line, at points only four to six inches from Winingder’s house.
- Winingder alleged the fence blocked necessary access and created hazards and damage; evidence supported drainage restriction, increased moisture and pest risk, and a fire hazard caused by the minimal gap between the fence and the house.

## Issues

1. Whether Balmer’s fence, constructed inches from Winingder’s home, constituted an excessive or abusive exercise of ownership that damaged or substantially interfered with Winingder’s enjoyment of her property under La. Civ. Code art. 667.
2. Whether Winingder was entitled to a legal servitude over part of Balmer’s property to permit necessary maintenance and safe enjoyment of the home under La. Civ. Code art. 670.
3. Whether the servitude’s scope (2.7 feet) and the remedies (compensation to Balmer and fence relocation at Winingder’s expense) were proper.

## Decision

- The court affirmed the judgment recognizing a legal servitude in Winingder’s favor over a 2.7-foot strip along the common boundary under La. Civ. Code art. 670.
- The court affirmed that the fence’s placement and effects violated La. Civ. Code art. 667 as an excessive and abusive use that caused damage and deprived Winingder of safe and reasonable enjoyment of her property.
- The court affirmed the remedial allocation: Balmer received $18,000 compensation; Winingder bore the cost of relocating the fence to accommodate the servitude; each party bore her own court costs.

## Legal Principles

- Under La. Civ. Code art. 667, an owner may use property freely, but may not create works that cause damage to a neighbor or deprive the neighbor of the liberty of enjoying the neighbor’s property; substantial interference and safety hazards exceed mere inconvenience.
- Under La. Civ. Code art. 670, when a building is constructed so near the boundary that necessary repairs or maintenance cannot reasonably be made without entry onto neighboring land, a legal servitude of passage/access may be imposed to the minimum extent necessary.
- A court may require compensation to the servient estate owner and may structure remedies (including relocation of obstructing works) to provide necessary access while limiting the burden to what is reasonably required.

## Conclusion

The court upheld a narrow, compensated servitude to provide essential access for maintenance and safety where a boundary-line fence erected inches from an existing home caused damage and hazards, and it treated the fence as an abusive exercise of ownership that unlawfully interfered with a neighbor’s enjoyment of property.


Winingder v. Balmer, 632 So. 2d 408 (La. Ct. App. 4th Cir. 1994)