Opinion
No. CA 87 1459.
June 20, 1989.
APPEAL FROM THE DISTRICT COURT, PARISH OF POINTE COUPEE, STATE OF LOUISIANA, HONORABLE IAN W. CLAIBORNE, J.
Bernard H. McLaughlin, Jr., Stockwell, Sievert, Viccellio, Clements and Shaddock, Lake Charles, for plaintiff-appellee.
Robert S. Leake, Baton Rouge, for defendant-appellant Landry.
Michael E. Parks, New Roads, for defendant-appellee Chustz.
Before EDWARDS, WATKINS, SHORTESS, SAVOIE and ALFORD, JJ.
From an adverse ruling in the trial court, Landry claimants have appealed. Because we find clear error in assigning the burden of proof and the resolution on the facts presented, we reverse and remand for proceedings consistent with the reasons stated herein.
FACTS AND PROCEDURAL HISTORY
Chevron, U.S.A., Inc., filed a concursus proceeding under LSA-C.C.P. art. 3654 to determine the proper parties entitled to mineral royalties from a disputed tract of land. Named as one set of defendants/claimants were Eric Chustz, Norris Broussard and Eloise Chustz Broussard, Roy Francis Chustz, Charles Louis Chustz, Henry Norris Chustz, and Joseph Preston Chustz and Mary Alice Aucoin Chustz, (collectively, the Chustz claimants).
Named as the second set of defendants/claimants were Edmond J. Landry and Melanie Comeaux Landry, James L. Moore and Jean Harry Moore, E. Sanders Alpaugh and Nancy Thompson Alpaugh, (collectively, the Landry claimants).
James L. Moore and Jean Harry Moore, E. Sanders Alpaugh and Nancy Thompson Alpaugh all claim royalty interests arising out of the Landrys' lands.
In response to Chevron's concursus, the Landrys filed a reconventional demand asking that Chevron be ordered to account for all production from the disputed tract; that Chevron pay to them all unpaid royalties; that double royalties and attorneys' fees be assessed as damages; and that the existing lease be cancelled. Chevron filed an exception of prematurity based upon an allegation that the Landrys had failed to comply with the notice requirements of LSA-R.S. 31:137, which mandates written notice be given to the mineral lessee before any judicial demand can be maintained. After a hearing on the exception, the trial court found that the Landrys had complied with LSA-R.S. 31:137.
"If a mineral lessor seeks relief for the failure of his lessee to make timely or proper payment of royalties, he must give his lessee written notice of such failure as a prerequisite to a judicial demand for damages or dissolution of the lease." LSA-R.S. 31:137.
After trial on the merits, the judge ruled that the land in question belonged to the Chustz claimants; that the Landry claimants had the burden of proof to maintain their claim of thirty (30) year acquisitive prescription; that the Landry claimants had not met that burden; and dismissed the Landry claimants' reconventional demand against Chevron. The Landry claimants then filed this appeal.
The disputed tract of land in question is an island which lies between two branches of Bayou Boidore. On the east side of the east branch of the bayou lies the undisputed property of the Chustz claimants. On the west side of the east branch lies the island. On the west side of the island lies the west branch of the bayou. On the west side of the west branch of the bayou lies the undisputed property of the Landry claimants.
See attached drawing of property (Appendix I).
The island contains access only from the Landry property. On the northwest corner and on the lower west side (i.e., the Landry side), there are two earthen crossings which allow the moving of cattle and farm equipment onto the island. On the south end of the island there used to be a train trestle which provided human access to the island by "jumping" from the trestle onto the south end of the island. The Chustzs' property did not share a boundary with the railroad trestle. In order for the Chustz claimants to access the island by way of the trestle, they would have had to cross the Lorio property which forms the southern boundary of the Chustz claimants' property. To access the island without use of the trestle, the Chustz claimants would have had to cross Landry property to get to the earthen dikes on the western branch of Bayou Biodore. Only one of the dikes was passable year round. The second dike was flooded intermittently during the year. This dike has since been improved by the Landrys. The undisputed portion of the Landry property is fenced and the only way for the Chustzs to access the island over the earthen dikes would be to secure the permission of the Landrys.
The eastern side of the island bordered by the east branch of Bayou Boidore is, in the most part, impassable. The Chustz claimants have never attempted to build a crossing, nor have they ever manifested any intention of building a crossing to the island. The bayou contains much deeper water in the eastern branch than it does in the western branch.
There was testimony by Preston Chustz that once, while the water was low, he had a crazed cow and calf cross the east branch of the bayou, but there was not any "crossing" that was susceptible to regular use.
The Landrys' title derives from a cash purchase by Edmond Landry, Sr. from Prudential Insurance Company of America dated December 27, 1940. The sale describes the property as:
That portion of ground, together with all the buildings and improvements thereon, and all of the rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging or in anywise appertaining, designated as Plot or Lot 1 of the Subdivision of Oakland Plantation in Sections 74 and 76, Township South, Range 10 East, and Sections 2, 37, 41, and 42, Township 6 South, Range ______ East, Southeastern District of La., West of the Mississippi River, in Pointe Coupee Parish, La., as the same is shown on Subdivision map of said Oakland Plantation made by A.G. Mundinger, C.E. S., dated Baton Rouge, La., May 30, 1940 of record in Conveyance Book "Q", Entry No. 2886 of the records of Pointe Coupee Parish, La. Said Unit No. 1 containing 62.47 acres more or less.
Unable to ascertain areas represented by "____".
Less and except a strip of land 100 feet wide to extend 50 feet on each side of the center line of the railroad as conveyed in deed by Phillips Brothers Planting Co. Ltd. to New Orleans Texas Mexico Railroad dated July 8, 1910, recorded under Entry No. 27177 of Conveyance Book 17.
Being part of the land acquired by The Prudential Insurance Company of America under Sheriff's Deed dated April 4, 1931, in the matter entitled "The Prudential Insurance Company of America v. Oakland Planting Company, Incorporated" No. 1089 of the docket of the 18th J.D.C., recorded under Entry No. 680 of Book "5" of the Conveyance Records of Pointe Coupee Parish, La.
Subject to right "to erect spurs and switches to reach the factory of said plantation" in sale made by Phillips Brother Planting Co. Ltd., to New Orleans, Texas Mexico Railroad on July 8, 1910, by act recorded under Entry No. 27177 of Book 17 of the Conveyance Records of Pointe Coupee Parish, La. and subject to permit granted by The Prudential Insurance Company of America to Southern Bell Telephone and Telegraph Company dated May 16, 1940, recorded under entry No. 1957 of Book "Q" of Conveyance Records of Pointe Coupee Parish, La.
Subject also to right of way for roads and easement of drain in favor of the adjoining properties or owners through the bayous traversing the property as shown on plat of survey of A.G. Mundinger, C.E. S. aforementioned.
The Chustzs trace their title from an act of sale dated February 15, 1881 from William G. Vincent to Ernest G. Beuker which describes the property as:
A certain portion of land and improvements thereon, and all right to ways, privileges and appurtenances thereunto belonging or in any way appertaining, by being in the Parish of Pointe Coupee in this State, and located by the lot No. Four (4) on a sketch hereto annexed and made part of these presents. Said portion of land is bounded on one side by property of Grossman on the other side by the bayou and fronting on the public road and ____ from said public road ____ said to contain six acres and thirty three hundredths of an acre (6 33/100 acres). (Emphasis added).
Unable to ascertain areas represented by "____", but relevant portions are emphasized.
The Landrys' title refers to a lot # 1 as shown by the A.G. Mundinger survey of 1940 (hereafter, Mundinger). The Mundinger survey represented a subdivision of the Oakland Plantation which was acquired by Prudential Insurance Co. of America at a sheriff's sale from Oakland Planting Company. The Chustzs' property description places the western border of their property at "the bayou." The Mundinger survey appears to place the eastern boundary of the Landry property on the western edge of the island. The property description on which the Chustzs' claim is based is ambiguous.
The trial judge found as a fact that the Chustzs' title included the disputed tract. While that finding may or may not be correct, because of the way we treat the thirty (30) year acquisitive prescription claim that finding is irrelevant.
LAW
We note at the outset that the burden of proof in concursus proceedings is governed by LSA-C.C.P. art. 3654, which provides:
When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right therein is so presented, the court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or
(2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action. (Emphasis added).
The trial court improperly assessed the burden of proof against the Landry claimants to prove thirty (30) year acquisitive prescription of the disputed tract. Under LSA-C.C.P. art. 3654, the burden of proof in a concursus proceeding is allocated in a specific order of preference. Possession is a preliminary matter which must first be resolved before the issue of ownership can be determined because, otherwise, the possessor's rights are infringed by forcing him to prove ownership. Although a concursus proceeding is not itself a real action, functionally issues of ownership are resolved by concursus. LSA-C.C.P. art. 3654 affords the same protections to the possessor in a concursus proceeding as are afforded him throughout the law, by providing that whoever would prevail in a possessory action will prevail in the concursus proceeding unless the adverse party proves his own title. See LSA-C.C.P. art. 3654, Official Revision Comments; Zengel, The Real Actions — A Study in Code Revision, 29 Tul.L.Rev. 617 (1955).
As between adverse claimants with one party in possession without title, and the other party claiming under title, the party claiming under title must prove his title without reference to the title of the possessor. Pure Oil v. Skinner, 294 So.2d 797 (La. 1974). While the trial judge ruled that the Landrys did not prove thirty (30) year acquisitive prescription, he did not determine whether the Landrys would have in fact been entitled to be maintained in possession in a possessory action.
While the type of possession required for a possessory action is the same as that required to commence the running of acquisitive prescription, Norton v. Addie, 337 So.2d 432 (La. 1976), the legal standard to maintain each is different. In order to be successful in a possessory action, one must prove that he has been in uninterrupted possession for one year and has acquired the right to possess. LSA-C.C. art. 3422 and LSA-C.C.P. art. 3658. On the other hand, in order to maintain the claim of ownership by thirty (30) year acquisitive prescription, a party must prove his possession for thirty (30) years, LSA-C.C. art. 3486. The proper standard to have imposed on the Landrys in this concursus proceeding is only that they show their right to possess. Once the parties have successfully shown their right to possess, they are considered provisionally as owner until the right of the true owner is established. LSA-C.C. art. 3423. The question which the trial court should have addressed is whether the Landry claimants could have maintained a possessory action. If they could have, then the Chustz claimants should have come forth with sufficient proof of their title without reference to the title of the Landry claimants.
Nonetheless, because we find that the facts presented are sufficient to maintain a claim of thirty (30) year acquisitive prescription, we reverse and find that the Landry claimants are owners of the disputed tract. Possession for purposes of a possessory action is defined in LSA-C.C.P. art. 3660 which provides in relevant portion:
A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possess for himself, whether in good or bad faith, or even as a usurper.
Possession for one year gives rise to the right to possess. LSA-C.C. art. 3422. The right to possess arises out of the nature of the facts surrounding the control over the property. LSA-C.C. art. 3422 and Liner v. Louisiana Land and Exploration, 319 So.2d 766 (La. 1975). "The quality of possession required in a particular case depends not only on its classification as good faith or bad faith possession, but also on the type of land in dispute." Liner, 319 So.2d at 772. Further, an individual who claims by corporeal detention alone and without title must show an adverse possession within enclosures. Norton, 337 So.2d at 436. Enclosed does not necessarily mean fenced in but does require:
that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof. (Emphasis added).
Hill v. Richey, 221 La. 402, 59 So.2d 434, 440 (1952). See also City of New Orleans v. New Orleans Canal, Inc., 412 So.2d 975, on rehearing (La. 1982).
The corporeal possession required to institute a possessory action corresponds with the possession necessary for acquisitive prescription of thirty years. Norton, 337 So.2d at 435. Consequently, the possession must be open, continuous, public, unequivocal and uninterrupted. LSA-C.C. art. 3476.
Mr. Landry moved onto the property subject to the Mundinger Survey in 1940. At that time he began farming operations. He cleared land on the disputed tract. He continuously maintained the earthen dikes which provided access to the island. His children began harvesting pecans as a cash crop. He stored his mules on the disputed tract at various times during the years before he purchased tractors. He immediately began grazing cattle on the disputed tract. At the time that he moved upon the land there was a gate across the earthen dike which provided access to the island. Mr. Landry removed the gate and placed a fence along a line bordering his field where his farming operations took place. This line followed the western branch of Bayou Boidore and was for the purpose of keeping cattle on the island and out of his planted field. At other times Mr. Landry planted corn, the rows of which were still visible at the time of trial. At other times he planted rye grass for the cattle to feed upon. His family hunted on the property and his son occasionally used the island as a dump site for construction waste. Mr. Landry, Sr. also maintained all fences which bordered his undisputed tract. These fences prevented any access to the island without his permission. Mr. Landry at one time also sold timber off the disputed tract. He also occasionally cut trees for use as fire wood. The trial judge did not believe that these acts were sufficient to maintain a claim of thirty year acquisitive prescription. We disagree.
We note, as previously discussed, the Landrys need not prove thirty (30) year acquisitive prescription to be successful in this case. If they have proved acts sufficient to support a possessory action, they are presumed as owners until the rightful owner proves out his title. Pure Oil
The land in question is only suitable for the purpose for which it was being used. Mr. Landry unquestionably has used the property since 1940 to graze cattle. The Chustz claimants maintain that the so called "open stock" practice of allowing cattle to roam free makes the fact of cattle grazing on the disputed tract insufficient to prove possession. In this we believe they are in error. While grazing cattle on its own may not be sufficient in all cases, under the facts presented, we believe that it does show the requisite ownership intention to maintain a claim of possession as owner. A close review of the testimony establishes that there was in fact a gate which barred entrance onto the disputed tract at the time that Mr. Landry moved onto the property. There was no access from any other property except that of Mr. Landry. Mr. Preston Chustz testified that even when two of his "crazed cattle" did manage to cross the eastern branch of the bayou onto the island, it was Mr. Landry who retrieved them and returned them to Mr. Chustz.
We find the recent case of Richardson v. Hesser, 516 So.2d 1288 (La.App. 2d Cir. 1987) to be instructive. In Richardson, the trial court had ruled that the acts of the Richardsons were not of a sufficient nature to support the possessory action. The appellate court disagreed and reversed the trial court. The tract of land in dispute was a "Break." In describing the claims, the court stated:
A "Break" is a "rough or marshy land overgrown usually with one kind of plant. [ Webster's New Collegiate Dictionary, copyright 1981].
Since the lower part of the land, the break, floods during parts of the year he farmed primarily on the high ground with only an occasional crop in the break. However, he consistently ran cattle in the break. Alf Richardson and at times Alf Richardson, Jr. and Amos Richardson kept cows on the property shown in P-1. Alf Richardson ran cattle over the entire tract, utilizing cross-fences at the pertinent times to keep them away from his crops. Hector testified that he helped Alf Richardson cut ties from the land in the break, and Amos Richardson testified that he and his father often cut firewood from the break.
Felix Hesser said that in 1971, he, his sister, and their uncle walked over the property they claim. He admitted that he could not describe the exact location of this property, and that he had not been back to the property since. The Hessers do not contend they have physically possessed the property in dispute. (Emphasis added).
516 So.2d at 1289. The appellate court awarded possession to the Richardsons and ordered the Hessers to file a petitory action within sixty (60) days. We find the factual situation clearly analogous. Mr. Landry grazed cattle, hunted, and occasionally planted on the island in question. His possession has always been open, continuous and unequivocal. The land was bounded by natural enclosures and access was only through his property.
On the other hand, the Chustzs have never claimed physical possession of the island. Under the facts presented, the Landrys unquestionably could have maintained the possessory action. Because we find that this possession was continuous for over thirty years, we find that the Landrys are now owners of the disputed tract.
Even had we thought that the possession was not sufficient for acquisitive prescription, it would have been sufficient to be maintained in possession. This would have forced the Chustzs to prove out their title in accordance with Pure Oil. In this case, the Chustzs' title description refers to their western boundary as being "the bayou" and containing 6.33 acres, more or less. If indeed their western boundary was "the bayou" they would have had to prove which bayou, the east or the west branch of Bayou Boidore. If it was in fact the west as they claim, their acreage would have been greater than fourteen (14) acres, or more than double that called for in their title. The Chustzs did try to account for this title error, but we find that their explanation is not convincing.
RECONVENTIONAL DEMAND
Because we find that the land in question does in fact belong to the Landrys by acquisitive prescription, it becomes necessary to address the reconventional demand of the Landry claimants against Chevron. Prior to trial on the merits the trial court held a hearing on an exception of prematurity filed by Chevron. Chevron maintained that the Landry claimants had failed to comply with the notice provisions of LSA-R.S. 31:137. After hearing testimony and receiving memorandum, the trial court ruled that the Landry claimants had complied with LSA-R.S. 31:137. Chevron applied for a writ to this court which was denied, there being adequate remedy on appeal. Chevron has neither answered the Landry claimants' appeal nor have they filed an appeal on their own. Inasmuch as Chevron has neither appealed nor answered the Landry claimants' appeal, the ruling of the trial court has become final. Since the trial court did not reach the question of the setting of appropriate damages which should be assessed against Chevron for not responding in compliance with LSA-R.S. 13:138, we remand for that determination.
See footnote # 2.
"The lessee shall have thirty days after receipt of the required notice within which to pay the royalties due or to respond by stating in writing a reasonable cause for nonpayment. The payment or nonpayment of the royalties or stating or failing to state a reasonable cause for nonpayment within this period has the following effect on the remedies of dissolution and damages." LSA-R.S. 13:138.
Because we feel that the Landrys have presented sufficient evidence to uphold a claim of thirty (30) year acquisitive prescription, and that a contrary ruling under these facts would be clearly wrong, we reverse the trial court. Additionally, we find that the trial court improperly assessed the burden of proof in a concursus suit brought under LSA-C.C.P. art. 3654. We remand to the trial court for the proper setting of damages and mineral royalties due the Landry claimants for production under the disputed tract.
Costs of this appeal are assessed in equal proportions among the parties.
REVERSED AND REMANDED.
WATKINS and SAVOIE, JJ., dissent and assign reasons.
The trial court found that the acts of possession of the Landrys were not sufficient to constitute notice to the record owner of their intent to possess adversely, in view of the nature of the land and the character and extent of the acts of possession. Since the land was of no real value (prior to the discovery of minerals), and other persons were also using it occasionally, it seems reasonable to require the adverse possessor to have exercised more exclusive control of the disputed land to sufficiently apprise the public and the record owner that he is possessing as owner.
Consequently, I do not find the trial court to have been clearly wrong and would affirm. I, therefore, respectfully dissent.
SAVOIE, Judge, dissenting.
I respectfully dissent from the majority opinion. I find that the trial court was correct in placing the burden of proof on the Landrys and in finding that the Landrys did not carry the burden of proving thirty year acquisitive prescription.
BURDEN OF PROOF
Under the provisions of LSA-C.C.P. art. 3654 the first issue that must be determined is the question of current possession. Possession determines who has the burden of proof. When one party claims possession of one year to the exclusion of the other party and the court finds as a matter of fact that one party had possession for one year, the second party pleads his title, then the burden shifts to the one pleading title to make out his title good against the world. LSA-C.C.P. art. 3654(1). A deciding factor as to possession of one year is that the possession must be one year from the date that the claimant under title acquired knowledge of the possession. See Yiannopoulos, Work of the Appellate Courts 1973-74 — Property, 35 LA.L.REV. 266, 277 (1975).
If we assume that Mr. Landry proved his possession of one year from the date the Chustzs had knowledge thereof then the burden of proof shifted to the Chustzs to "make out their title" good against the world. This can be done in a number of ways including title back to the sovereign or to a common ancestor or, through acquisitive prescription of ten or thirty years. Yiannopoulos points out that if there is a break in the owner's chain, this does not prevent him from asserting ownership by acquisitive prescription of ten or thirty years. Id. Literal application of Article 3654(1) precludes recovery from an adverse possessor only in cases in which the other party is not the true owner. Id. at 278. The Chustzs traced their title from an act of sale dated February 15, 1881 and had possession under title to the property from that date until December 27, 1940, which is the earliest date the Landrys claim possession of the property. The Chustzs therefore, had title to and possession of the land in dispute for a period of almost sixty years. It is clear from the record that the Chustzs and their predecessors in title possessed at least part of the land called for by their title. Therefore, under the provision of Article 3426 of the Civil Code, the Chustzs are deemed to have constructive possession of all the land covered by their title. Equally important is the fact that the Landrys do not dispute the Chustzs possession prior to 1940. Therefore, when the trial court held that the Chustzs had proven good title and then transferred the burden of proof to the Landrys to prove title by thirty year acquisitive prescription, the trial court was correct. This apparently was in the majority's mind because it went to great lengths to explain that the Landrys had good and valid thirty year prescriptive title. Had it not been convinced of the validity of the Chustzs' title, there would have been no need to go any further.
In summary, Mr. Landry's initial burden was to prove exclusive possession of one year. The burden then shifted to the Chustzs to make out their title. Having done that the burden then shifted back to Mr. Landry to prove acquisitive prescription of thirty years. LSA-C.C.P. art. 3654.
THIRTY YEAR PRESCRIPTION
Plaintiffs' claim of acquisitive prescription by thirty years possession without title is based on LSA-C.C.P. articles 3486, 3487 and 3488. Judge Lanier of this Honorable Court provided a good summary of the basic principles of thirty year acquisitive prescription in General American Oil Co. of Texas v. Williams, Inc., 441 So.2d 1268, 1270 (La.App. 1st Cir. 1983), writ. denied, 445 So.2d 1230 (La. 1984):
The ownership of immovable property may be acquired by the prescription of thirty years, even in the absence of title or good faith possession. La.C.C. art. 3499. The possession necessary for this prescription must be continuous, uninterrupted, public, unequivocal and with the intent to be owner. La.C.C. art. 3500; Succession of Kemp v. Robertson, 316 So.2d 919 (La.App. 1st Cir. 1975), writ. denied, 320 So.2d 906 (La. 1975). The prescriptive title of thirty years extends only to the property actually possessed by the person pleading it, and what is sufficient possession is determined by the nature of the property. La.C.C. art. 3503; A. Yiannopoulos, Louisiana Civil Law Property, § 212 in 2 Louisiana Civil Law Treatise, 567 (2d ed. 1980). A person claiming this prescription must demonstrate his possession by some external and public sign sufficient to give notice to the public of the character and extent of the possession. Suire v. Primeaux, 363 So.2d 963 (La.App. 3rd Cir. 1978), writ. denied, 365 So.2d 243 (La. 1978). The burden of proving the facts essential to support a plea of thirty year acquisitive prescription rests on the party making the plea. Briggs v. Pellerin, 428 So.2d 1087 (La.App. 1st Cir. 1983); Levatino v. Williams, 396 So.2d 380 (La.App. 1st Cir. 1981). (Footnotes omitted).
Particularly applicable to this case are the corollary principles summarized in the recent leading case of City of New Orleans v. New Orleans Canal, Inc., 412 So.2d 975, 981 (La. 1982):
Further, where an individual claims by corporeal detention alone and without title, he must show an adverse possession within enclosures. Norton v. Addie, 337 So.2d 432 (La. 1976). See also 2 Civil Law Treatise (2 Ed. Sec. 212). 'Enclosed' does not necessarily mean 'fenced in', but does require 'that the land actually, physically and corporeally possessed by one as owner must be established with certainty, where by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof.' Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952). The corporeal possession required to institute a possessory action corresponds with the possession necessary for acquisitive prescription of thirty years. Norton v. Addie, supra; Linear v. Louisiana Land Exploration Co., supra. Consequently, the possession must be open, continuous, public, unequivocal and uninterrupted with the intent to possess as owner. Succession of Kemp v. Robertson, 316 So.2d 919 (La.App., 1975), writ den., 320 So.2d 906. The intent to possess as owner cannot be inferred when the circumstances are insufficient to give reasonable notice to the public and the owner of the property that the possessor is unequivocally possessing as owner. Woodell v. Roberts, 329 So.2d 858 (La. App. 1976), writ ref., 333 So.2d 248 [La. 1976].
These principles are also set forth in the Civil Code:
Art. 3435. Vices of possession
Possession that is violent, clandestine, discontinuous, or equivocal has no legal effect.
Art. 3436. Violent, clandestine, discontinues, and equivocal possession
Possession is clandestine when it is not open or public, discontinuous when it is not exercised at regular intervals, and equivocal when there is ambiguity as to the intent of the possessor to own the thing.
The applicability of the above principles to cases such as this one is discussed in La Caze v. Boycher, 80 So.2d 583, 588 (La.App. 1st Cir. 1955):
But we might further add that the possession should be open and notorious enough to enable the owner to know of a claim adverse to his so that he may take steps to protect his right to the property. 'In short, the rule is that there must be such external signs of possession to indicate clearly that the possessor holds control and dominion over the property.' Martel v. Hunt, 195 La. 701, 197 So. 402, at page 407 [1940]. Thus, a mere survey of boundary lines where they are not plainly and permanently marked does not constitute open and apparent possession, Albert Hanson Lumber Co. v. Baldwin Lumber Co., 126 La. 347, 52 So. 537 [1910], Pierson v. Shepherd, 6 La.App. 333 [1927]. See also Blanchard v. Norman-Breaux Lumber Co., 220 La. 633, 57 So.2d 211.
See also Alford v. Jarrell, 471 So.2d 970 (La.App. 1st Cir. 1985).
In applying these basic principles, the trial judge considered the totality of the evidence presented by plaintiffs. The principal activities of Mr. Landry over this tract were sporadic, equivocal and insubstantial. Hunting, picking pecans and the grazing of cattle belonging to many owners, even on a regular basis, are certainly equivocal activities in this isolated area. Mr. Landry never posted the land. These weak possessory activities failed to give the Chustzes' effective notice that Mr. Landry might be quietly building a claim of acquisitive prescription.
The majority is attempting to substitute its evaluations, inferences and credibility calls for those of the trial court. It may do so if the trial court is clearly erroneous, however, here it is not. For instance, the majority refers to the fact that Mr. Landry farmed the property, yet the record reflects that Mr. Landry farmed part of the island for only one year and that this occurred within two years after his purchase of the adjacent property in 1940. Mr. Landry actually purchased a small portion of the island (according to the Mundinger survey) and it is that portion of the island that was farmed. The record reflects that the fence line on the island which ran north and south, approximated the Mundinger survey line and it was only on Mr. Landry's side of that line that he attempted his farming operations. This farming operation took place in either 1941 or at the latest 1942 and was never repeated.
An adverse possessor without title must possess inch by inch, foot by foot; this being the case Mr. Landry's acts of possession by his farming would extend only to the Mundinger survey line. As to the grazing of cattle on the island, the trial court found that numerous people allowed their cattle to graze on the land. There is conflicting testimony concerning the grazing of cattle, this once again was a credibility call which was properly made by the trial court.
The record does not support a claim of adverse possession for a period of thirty years. The picking of pecans under wild pecan trees does not support such a claim. The alleged planting of winter grass might be a factor in favor of Mr. Landry except that a careful reading of the Landry testimony reflects that the grass was there and that they assume that their father planted it. Likewise the Landry sons testified that their father sold timber off the property but, a careful reading of their testimony reflects that this was pure speculation on their part. They knew of no actual sale by their father, to whom timber was sold, for how much it was sold or when the timber was to be harvested. Their testimony reveals only that there were some trees cut on the island by persons unknown at the request of persons unknown and for purposes unknown.
The trial court in its written reasons for judgment noted that Mr. Edmond J. Landry, Sr. did not testify, however, his children did testify. The trial court stated that "Mr. Landry, Sr. was present in Court throughout the trial and he appeared to be alert and attentive."
The majority states that Mr. Landry continuously maintained the earthen dikes which provided access to the island. While Mr. Landry did maintain to some extent one of the earthen dikes he did not maintain both of them. The majority states that the Landry children began harvesting pecans as a cash crop. Children picking pecans under wild pecan trees is not an act of possession. The majority states Mr. Landry "stored" his mules on the disputed tract at various times during the years before he purchased tractors. The Landry testimony is simply that the mules were free to go on the island. The majority states that Mr. Landry immediately began grazing the cattle on the disputed area. The trial court found that while there were cattle on the disputed area, those cattle belonged to various individuals, not just Mr. Landry. The statement that the Landry family hunted on the property and occasionally used the island as a dump site for construction work overlooks the fact that almost everybody who testified hunted on the property and that dumping garbage is not necessarily an act of possession. The majority states Mr. Landry maintained all fences which bordered his undisputed tract. Does the majority mean that he maintained fences on an area that is not in dispute? This indicates to me that he fenced his own land apart from the land he is claiming. The majority states that Mr. Landry occasionally cut trees for use as firewood; occasional acts will not support acquisitive prescription. The majority states that the trial court did not believe these acts were sufficient to maintain a claim of thirty years acquisitive prescription, and that it disagrees. However, what the trial court actually stated was that it did not believe the testimony of the Landry witnesses and that it did believe the testimony of the Chustz witnesses and thus, it found for the Chustzs. Finally, the majority states that Mr. Landry had a gate which barred entry to the disputed tract from the time Mr. Landry moved onto the property and that there was no access from any other property except that of Mr. Landry's. This proves nothing. Mr. Landry did put a gate on his own property. This is not in dispute; however, Mr. Landry did not testify as to the reason for the gate. Furthermore, it is possible to own land where one has no direct access. Such land is an enclosed estate. It is not necessary that one have access to his land for him to be recognized as owner.
The law is clear that if a party has a title, civil possession is sufficient to maintain possession. If he has no title his possession must be within enclosures. Furthermore if the party has title his possession of a part of the tract maintains his possession of the whole. Whereas, if the party has no title, his possession only extends to the limits of his actual possession. Under the facts of this case Mr. Landry has not proven prescriptive title beyond the Mundinger line.
For the above and foregoing reasons, I dissent.