All Arguements Are Unlawful - La CC Article 694

Citizens Against Legal Abuse, Inc.
A Non Profit Organization
P.O. BOX 51386
New Orleans, Louisiana 70151

July 18, 2011

An Open Letter Seeking Justice!

These cases are clear and prove that ROBA INC. cannot use any other route to access its property by law. All other arguments and possibilities are unlawful, see CC Article 694, which makes it mandatory and required that ROBA use the existing route previously exercised which is now blocked by a gate denying ROBA Access. Please see survey and the predial servitude of passage below. Click the survey to enlarge. 

"Passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road...." 
(La CC Article 694) 

 

Below you will find the survey and description of the existing road/right of way for ROBA INC. 

Established by Notarial Act 

February 12, 1974 

By: Edwin C. Schilling, Jr. A Notary Public 

All the previous and present court actions are frivolous and unlawful. The surveys and CC article 694 cannot be overruled in any shape, form or fashion.

The whole case is a cover-up of the criminal acts of the seller, notaries, and surveyor.  Attorney Clifton T. Speed violated the public trust and violated his oath of office which is different from the civil case and it does not prescribe due to the on-going cover up.

The facts of the case clearly show: deed forgery, false surveys, falsified title opinions, injury to public record, malfeasance, obstruction of justice, conspiracy and fraud. We have provided more definitions and information that supports the ongoing conspiracy.

Laws, Definitions and Case Law Excerpts

LAW 

CC 694
Art. 694.  Enclosed estate; voluntary alienation or partition.

When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.
Acts 1977, No. 514, §1.

Case Law Excerpts

DONALD JOSEPH SCEROLER, JR. AND PASHA MCDONALD SCEROLER
v.
VARDIE L. RANCHER, JR. AND SHEILA RANCHER CONSOLIDATED WITH LARRY BENARD MCDONALD AND PASHA MCDONALD SCEROLER
v.
VARDIE L. RANCHER, JR. AND SHEILA RANCHER

Appealed from the 21st Judicial District Court
In and for the Parish of Livingston State of Louisiana Suit Numbers: 79,893 c/w 85,434 Honorable William F. Kline, Jr., Judge Ad Hoc

PREDIAL SERVITUDE OF RIGHT OF PASSAGE

The intention of the Civil Code articles allowing for the grant of a right of passage was to allow those people whose land is enclosed through no fault of their own to obtain a servitude of passage.

Article 694 is mandatorily applied when land becomes enclosed as a result of a voluntary alienation such as a sale, exchange, donation, subdivision or any other transaction that involves transfer of ownership. See A. N. Yiannopoulos, Predial Servitudes § 103, at 297-298, 4 Louisiana Civil Law Treatise (2d ed. 1997). Yiannopoulos observes, "[i]n all cases, the right to demand a gratuitous passage is accorded to one who acquires an enclosed estate as a result of a voluntary alienation ... of property." Yiannopoulos, Predial Servitudes § 103, at 297-298.

Although plaintiffs would clearly prefer to access the much closer public road (Rancher Drive) through the Ranchers' property, Article 689 only applies if the owner of the enclosed estate "has no access to a public road." If the owner of the enclosed estate is entitled to a gratuitous servitude of passage over "the land on which passage was previously exercised, even if it is not the shortest route to the public road," under Article 694, then technically Article 689 does not apply. The "access to a public road" is available over the land on which the passage was previously exercised. Thus, where a gratuitous passage is available under Article 694, an enclosed landowner is not entitled to an Article 689 servitude across a neighbor's land.

Furthermore, the obligation of the McDonalds to furnish a gratuitous passage to Henderson Road arises as a result of a legal servitude in favor of the land on which the passage was previously exercised.

Thus, the Scerolers, as owners of property burdened with a legal servitude of passage, are also obligated to grant Ben McDonald a gratuitous passage over their property to the McDonald's tract in order to access Henderson Road.

The trial court correctly concluded that unless the plaintiffs could show an exception to the general rule that they must avail themselves of the gratuitous right of passage over the McDonalds' property to Henderson Road, they may not compel their neighbors (the Ranchers) to provide them with access to the closer Rancher Drive, thereby burdening the Ranchers' property.

Article 694 dictates that where a passage has been exercised in the past, the owner of the land upon which the right of passage was previously exercised is bound to furnish a gratuitous passage.

We conclude, as did the trial court, that plaintiffs must avail themselves of the gratuitous right of passage under Article 694 to Henderson Road through their donor's property. Thus, plaintiffs' first three assignments of error are without merit.

Case Law Excerpts

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-732
BESSIE MAE TYLER, ET AL.
VERSUS
LUTHER HOLLOWAY, ET AL.

********** APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 22,899A HONORABLE CHARLES A. TRAYLOR, II, DISTRICT JUDGE ********** J. DAVID PAINTER JUDGE
 

Public Road

With regard to the dedication of public roads, La.R.S. 48:491 provides, in pertinent part, that:

(1)(a) All roads and streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority within its parish, or by the authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property.

In order to establish public maintenance of the road under the statute, it is necessary to show definitively that work was performed on 5the road by a public entity and approximately when that work was performed.

Even where the road serves only as a driveway for one person or tract of land, public maintenance creates a right of use in the nature of a predial servitude for the benefit of the public. Gatson v. Bailey, 39,835 (La.App. 2 Cir. 6/29/05), 907 So.2d. 859. “In such cases, the tacitly-dedicated roads provide rights tantamount to actual predial servitudes protecting the dominant estate owners at the end of these roads, whose property might otherwise be enclosed.” Id. at. 863.

Law

RS 14:26
SUBPART E.  INCHOATE OFFENSES
§26.  Criminal conspiracy

A.  Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other.
B.  Whoever is a party to a criminal conspiracy to commit any crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; provided, however, whoever is a party to a criminal conspiracy to commit a crime punishable by death or life imprisonment shall be imprisoned at hard labor for not more than thirty years.
C.  Whoever is a party to a criminal conspiracy to commit any other crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; but such fine or imprisonment shall not exceed one-half of the largest fine, or one-half the longest term of imprisonment prescribed for such offense, or both.
Amended by Acts 1977, No. 538, §1.
                   

 Law

RS 14:134
CORRUPT PRACTICES
§134.  Malfeasance in office

NOTE:  §134 eff. until Aug. 15, 2011.  See Acts 2010, No. 811, §1.

Malfeasance in office is committed when any public officer or public employee shall:
(1)  Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2)  Intentionally perform any such duty in an unlawful manner; or
(3)  Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee.  The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.
Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars or both.
NOTE:  §134 as amended by Acts 2010, No. 811, §1, eff. Aug. 15, 2011.

A.  Malfeasance in office is committed when any public officer or public employee shall:
(1)  Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2)  Intentionally perform any such duty in an unlawful manner; or
(3)  Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
B.  Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee.  The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.
C.(1)  Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars, or both.
(2)  In addition to the penalty provided for in Paragraph (1) of this Subsection, a person convicted of the provisions of this Section may be ordered to pay restitution to the state if the state suffered a loss as a result of the offense.  Restitution shall include the payment of legal interest at the rate provided in R.S. 13:4202.
Amended by Acts 1980, No. 454, §1; Acts 2002, 1st Ex. Sess., No. 128, §6; Acts 2010, No. 811, §1, eff. Aug. 15, 2011.