Opinion
2016 CA 1274
11-01-2017
MARK H. FOSHEE AND SANDRA FOSHEE v. JOHN Y. MAY AND BRADY PAILLE
Joseph S. Manning William C. Rowe, Jr. Baton Rouge, Louisiana Counsel for Plaintiffs-Appellants Mark H. Foshee and Sandra Foshee Kim Segura Landry Gonzales, Louisiana Counsel for Defendants-Appellees John Y. May and Brady Paille
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
NUMBER 101,268, DIVISION A, PARISH OF ASCENSION
STATE OF LOUISIANA HONORABLE JASON VERDIGETS, JUDGE Joseph S. Manning
William C. Rowe, Jr.
Baton Rouge, Louisiana Counsel for Plaintiffs-Appellants
Mark H. Foshee and Sandra Foshee Kim Segura Landry
Gonzales, Louisiana Counsel for Defendants-Appellees
John Y. May and Brady Paille BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Plaintiffs-appellants, Mark Foshee and Sandra Foshee, appeal the trial court's judgment declaring the southern boundary line of Lot 27-A, which they own, and the northern boundary of Lots 3 and 4, owned by defendants-appellees, John Y. May and Brady Paille, respectively, and setting the boundary at the iron markers as indicated in the 1978 surveys conducted by J.C. Kerstens and as revised in 1980. We affirm.
Because the appealed judgment failed to describe the immovable property affected with particularity, see La. C.C.P. art. 1919, on December 28, 2016, this court issued an interim order, remanding the matter to the trial court to supplement the record with a judgment describing the property affected. On February 6, 2017, the trial court signed an amended judgment, setting forth the requisite property descriptions, which we review in this appeal. --------
In this appeal, the Foshees do not dispute that the J.C. Kerstens' surveys establish the boundary line. Instead, they urge that the J.C. Kerstens' surveys show that the boundary was set at the line that divides Sections 38 and 39. The Foshees contend that because neither the J.C. Kerstens' surveys nor any other survey admitted into evidence show the exact location of the line dividing Sections 38 and 39, the trial court's determination failed to resolve the boundary dispute. As such, they claim the parties are entitled to the appointment of an independent surveyor to locate the section line and that the trial court erred when it failed to do so.
In its judgment, the trial court declared that the boundary between the Foshees' property to the north and the defendants' properties to the south "shall be set at the iron markers as indicated in the J.C. Kerstens['] survey admitted [into evidence] as Exhibits D7 and D8 dated August 21, 1978 and revised [on November 30,] 1980." The Foshees suggest that because the two J.C. Kerstens' surveys indicate that the dividing line between Sections 38 and 39 is an "old ½ x 4" bar," it is unclear where J.C. Kerstens located the iron markers.
Initially, we note that the J.C. Kerstens' surveys also denote that as to the northern boundaries of each of the six depicted southern lots, "all corners [are] marked with pipe." In his testimony, referencing the J.C. Kerstens' surveys, Paille described that his property was marked on all four corners with iron pipes which had been in place since 1978. Relying on the various surveys admitted into evidence, expert land surveyor Clint Cointment's testimony was in conformity with Paille's. Additionally, although Mark Foshee testified that, at the time this dispute arose, only remnants of a fence that had separated his property from defendants' remained, Paille and Mays each indicated that the J.C. Kerstens' markers delineating the two lots that comprise their properties were located on that fence line. Utilizing the surveys admitted into evidence, Cointment agreed that the location of the J.C. Kerstens' markers was on the fence line dividing the Foshees' property from defendants' properties. Moreover, close scrutiny of the J.C. Kerstens' surveys show that only one "old ½ x 4" bar/on section line" is depicted and that was located well east of the parties' three lots, whereas "all corners marked with pipe" show at least six designations marking the northern line of the lots at issue herein that J.C. Kerstens surveyed. This includes three designations for Lots 3 and 4, which are owned by defendants. Thus, inasmuch as the trial court determined that the location of the boundary between the northern and southern properties was "the iron markers as indicated in the J.C. Kerstens' survey admitted [into evidence] as Exhibits D7 and D8 dated August 21, 1978 and revised [on November 30,] 1980," it clearly resolved the dispute between the Foshees and the defendants.
The determination of a disputed boundary is a question of fact which should not be disturbed on appeal in the absence of manifest error. See Sellers v. Sinegal , 607 So.2d 1073, 1075 (La. App. 3d Cir. 1992). In light of the two J.C. Kerstens' surveys and the testimonial and photographic evidence demonstrating that a fence exists along the same line as that set "at the iron markers ... indicated in the J.C. Kerstens' survey[s]," a reasonable factual basis exists to support the trial court's placement of the boundary. Thus, the trial court placement of the boundary between the Foshees' property (Lot 27-A) and the defendants' properties (Lots 3 and 4) is not manifestly erroneous.
La. C.C.P. art. 3692 states that "[t]he court may appoint a surveyor to inspect the lands and to make plans in accordance with the prevailing standards and practices of his profession indicating the respective contentions of the parties." The decision whether to appoint such a surveyor is left to the discretion of the court. See Williams v. Peacock , 441 So.2d 57, 61 (La. App. 3d Cir. 1983). Since the record contains sufficient evidence to support the trial court's determination setting the boundary between the Foshees' property to the north and defendants' properties to the south, we find no abuse of discretion in the trial court's implicit rejection of the Foshees' claim to have an independent surveyor appointed.
DECREE
For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed against plaintiffs-appellants, Mark Foshee and Sandra Foshee.
AFFIRMED.