Background
In 2002, Marie Brown sold property to John Witham, Sr. and Madeline Witham and entered a road-maintenance agreement granting them a servitude of passage over a private road and a strip of land west of that road for ingress and egress. The agreement bound successors, heirs, and assigns. Pamela Mangham Coke later acquired Brown’s property, and in 2024 the senior Withams donated part of their property to Carrie Beazley and John Witham, Jr.
After the Withams declined Coke’s offer to sell them the servitude strip, Coke placed T-posts, orange tape, and no-trespassing signs near the property boundary. The plaintiffs sought a preliminary injunction requiring removal of the markers and barring interference with their use of the servitude. Coke maintained that the markers delineated the property boundary and did not block the plaintiffs’ existing driveway or access to the private road.
The Court’s Holding
The Second Circuit affirmed the denial of a preliminary injunction. It held that the plaintiffs did not show Coke’s actions disturbed the property rights granted by the servitude: the hearing evidence showed they continued to access their properties and the private road through several routes they had established across the servitude strip.
Because the court found no disturbance of possession or enjoyment of the servitude, Louisiana Code of Civil Procedure article 3663—which can authorize injunctive relief protecting a servitude without proof of irreparable harm—did not apply. Under the general injunction rule in article 3601, the plaintiffs offered no evidence of irreparable injury, loss, or damage. The trial court therefore did not abuse its discretion in denying preliminary relief.
Key Takeaways
- A servitude-based injunction without proof of irreparable harm requires a showing that the claimed real-property right was actually disturbed.
- Boundary markers that do not block established access routes did not, on this record, disturb the plaintiffs’ servitude rights.
- Absent the special protection of article 3663, a preliminary injunction requires proof of irreparable harm under article 3601.
Why It Matters
The decision illustrates the evidentiary distinction between a disagreement over the scope or convenience of servitude use and an actionable disturbance of access. Property owners seeking interim relief must show that the challenged conduct impaired the servitude rights they actually hold, not merely that it limited additional uses they assert.