Opinion
No. 2002-CA-0863.
February 26, 2003.
APPEAL FROM St. Bernard 34th Judicial District Court NO. 91-523, Division "D" Honorable Kirk A. Vaughn, Judge
Randy S. Nunez, DYSART TABARY, Chalmette, LA, COUNSEL FOR PLAINTIFF/APPELLEE.
Alan Abadie, Chalmette, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Chief Judge William H. Byrnes, Judge Steven R. Plotkin, Judge Miriam G. Waltzer, Judge Michael E. Kirby, Judge Terri F. Love)
Plaintiff, Eugene Leonard Dudenhefer ("Dudenhefer"), brought this action to be recognized as the owner and placed in possession of a parcel of land in Hopedale, Louisiana. Dudenhefer claimed ownership based on acquisitive prescription. Defendant, Meraux Land Development, L.L.C. ("Meraux Land"), claimed ownership of the parcel in dispute based on a written act translative of title and recorded in the public records. The trial court found Dudenhefer was in good faith and possessed the property in question continuously, openly, without interruption for thirty years within a visible boundary. Meraux appeals the judgment of the trial court. For the reasons discussed in detail below, we reverse the decision of the trial court because Dudenhefer cannot prove ownership of the property in question by acquisitive prescription of ten or thirty years.
DISCUSSION OF THE RECORD
Dudenhefer brought suit to be declared owner of and placed in possession of land between the 1921 mean low water line of Bayou LaLoutre and the southern edge of State Highway 624 in Hopedale, Louisiana. Dudenhefer learned Meraux Land was the recorded owner of the property in dispute when he attempted to sell the property in 1999. Meraux Land came into ownership of said property through a chain of transfers of universal and particular titles in subsequent successions and transactions from the original act of sale of Land Investment Company, Inc. Dudenhefer filed suit for ownership based on acquisitive prescription. This matter went to trial on December 12, 2001.
The parties entered into evidence by joint stipulation the following acts of sale:
1. A sheriff's sale dated October 14, 1933, conveying immovable property in St. Bernard parish to Land Investment Company, Inc.; (transferring ownership of the property in dispute)
The act of sale contained the following property description: (1) Section 21, lying North of Bayou LaLoutre; all of Section 16, lying North of Bayou LaLoutre; all of Section 9; all of Section 4, lying South of Bayou St. Malo; Northeast Quarter of Section 19; East Half of Section 18; and the Southeast Quarter of Section 7, containing in all an area of 2242 acres, being situated in Township 14, S.R. 16 East, in the Parish of St. Bernard, Louisiana; (2) Northeast Quarter of Section 30, lying North of Bayou LaLoutre, containing 135 acres, being situated in Township 14, S.R. 16 East, in the Parish St. Bernard, Louisiana; (3) Southeast Quarter of Section 19, containing 160 acres, being situated in Township 14, S.R. 16 East, in the Parish of St. Bernard Parish, Louisiana; (4) Fractional Section 10; the South Half of Section 11; the Southwest Quarter of Section 12; the West Half of Section 13; all of section 14; all of Fractional Section 15, save and except the Fractional Southwest Quarter thereof; all of Section 23, North of Bayou LaLoutre and the West half of Section 24, North of Bayou LaLoutre, containing an area of 1916.38 acres, being situated in Township 14, S.R. 15 East, in the Parish of St. Bernard, Louisiana; (5) North Half of Northwest Quarter of Section 25, all of Fractional Section 24, lying South of Bayou LaLoutre, containing in all an area of 163 acres, being situated in Township 14, S.R. 15 East, in the Parish of St. Bernard Parish, Louisiana.
2. An act of sale dated May 3, 1950, conveying immovable property in St. Bernard Parish from Clifton Joseph Egle to James Monvoisin; (transferring ownership of Lots "Y" and "Z")
The act of sale contained the following property description: Fractional Section 23, North of Bayou Laloutre, in Township 14 South, Range 15 East, of the Mississippi River in the Parish of St. Bernard, Louisiana, and being designated by the Lot Number TWENTY-TWO (22) on a plan of Hopedale Subdivision No. 1 of parts of Sections 14, 15, 23, and 24 north of Bayou LaLoutre in Township 14 South, Range 15 East, made by Victor E. Hawkins, Surveyor, dated October 8th, 1936, and revised February 21, 1941, annexed to an Act before Gladys L. Ziegan, Notary Public in and for the parish of Orleans, dated December 12, 1945, which herein described lot measure two hundred one and seventy-eight hundredths (201.78') feet front on Hopedale Highway right of way, two hundred and ten hundredths (200.10) feet in width in the rear, by a depth of five hundred twenty-five and twenty-one hundredths (525.21') feet along the division line of Lot No. 21 and by a depth of five hundred one and two hundredths (501.21') feet along the lower division line dividing said lot herein from Lot No. 23; LESS AND EXCEPT THEREFROM THE FOLLOWING DESCRIBED PROERTY WHICH WAS PREVIOUSLY SOLD BY CLIFTON JOSEPH EGLE TO HAROLD A. THOMAS, JR., PER ACT BEFORE L.M. VINSANAU, NOTARY PUBLIC, DATED SEPTEMBER 1, 1949, REGISTERED IN C.O.B. 53, FOLIO 119:
A fifty foot strip of ground taken from the side of the above described line between Lot 21 and Lot 22, and running thence, in the direction of Lot 23, ad distance of fifty and thirty hundredths (50.30') feet front on Hopedale Highway, or Bayou LaLoutre, the same width in the rear by a depth of 525.21 feet on the dividing line between Lot 22 and Lot 21 and by a depth of 519.17 feet on the opposite side line.
And the property here conveyed by vendor to purchaser is designated by the Lot No. 22-A on a sketch of survey made by Harry E. Sutch, Surveyor, dated April 16, 1950, a blue print of which is annexed hereto, and, according thereto, the said Lot. No. 22-A is described as follows: Commencing at the pint where the dividing line between the original lots Nos. 22 and 23 (as designated on above mentioned plan of Victor E. Hawkins) meets the Hopedale Highway, the said Lot No. 22-A measures, in the direction of the original Lot No. 21, or in a westerly direction, 151.48 feet front on Hopedale Highway right of way, to the dividing line between Lots 22-A and 22-B; thence, in a northerly direction, along the dividing line between Lots 22-A and 22-B, a distance of 519.17 feet; thence, in an Easterly direction, a distance of 151.10 feet; thence, in a southerly direction, along the dividing line between Lots 22-A and 23, a distance of 501.02 feet, to the point of beginning.
3. An act of sale dated January 13, 1955, conveying immovable property in St. Bernard Parish from James Monvoisin to Harold Thomas, Jr.; (transferring ownership of Lot "Z")
Fractional Section 23, North of Bayou LaLoutre, in Township 14 South, Range 15 East, of the Mississippi River in the Parish of St. Bernard, Louisiana, and being designated as a portion of Lot 22 on a plan of Hopedale Subdivision No. One of parts of Sections 14, 15, 23, and 24 North of Bayou LaLoutre in Township 14 South, Range 15 East, made by Victor E. Hawkins, Surveyor, dated October 8th, 1936, and revised February 21, 1941, annexed to an Act before Gladys L. Ziegan, Notary Public in and for the parish of Orleans, dated December 12, 1945; which Lot No. 22 was subdivided into Lots 22-A and 22-B on a plan of survey made by H.E. Stuch, Surveyor, dated April 26, 1950, a blueprint of which is annexed to an act of sale by Clifton Joseph Egle to James Monvoisin, passed before Robert L. Hickerson, Notary Public for the Parish of Orleans, dated May 3rd, 1950, registered in the Parish of St. Bernard in Conveyance Book 53, folio 456. The portion of the said Lot 22-A here conveyed by vendor to purchaser, is designated by the letter "Z" measures, commencing at the intersection of Hopedale Highway and the dividing line between Lots 22-A and 23, a depth of 501.02 feet on the said side line dividing lot 22-A from Lot 23; and measures, thence, a width in the rear, in a westerly direction, 63.05 feet; and measures thence, in a southerly direction, along a line parallel to the side line dividing Lots 22-A and 23, of approximately 508.57 feet to the Hopedale Highway; and thence, in an easterly direction to the point of beginning, a distance along Hopedale Highway of approximately 63.165 feet.
4. An act of sale dated January 13, 1955, conveying immovable property in St. Bernard Parish by James Monvoisin to Eugene L. Dudenhefer; (transferring ownership of Lot "Y")
Fractional Section 23, North of Bayou LaLoutre, in Township 14 South, Range 15 East of the Mississippi River in the Parish of St. Bernard, Louisiana, and being designated as a portion of Lot 22 on a plan of Hopedale Subdivision No. One of parts of Sections 14, 15, 23, and 24 North of Bayou LaLoutre in Township 14 South, Range 15 East, made by Victor E. Hawkins, Surveyor, dated October 8th, 1936, and revised February 21, 1941, annexed to an Act before Gladys L. Ziegan, Notary Public in and for the Parish of Orleans, dated December 12, 1945; which Lot No. 22 was subdivided into Lots 22-A and 22-B on a plan of survey made by H.E. Sutch, Surveyor, dated April 26, 1950, a blueprint of which is annexed to an act of sale by Clifton Josheph Egle to James Monvoisin, passed before Robert L. Hickerson, Notary Public for the Parish of Orleans, dated May 3rd, 1950, registered in the Parish of St. Bernard in Conveyance Book 53, folio 456. The portion of said Lot 22-A here conveyed by vendor to purchaser is designated by the letter "Y" on a rough sketch which is annexed hereto; and according thereto, the said Lot "Y" commences at a distance of approximately 25.15 feet from the intersection of Hopedale Highway, and the side line dividing Lots 22-B and 22-A, and measures, thence, along the westerly side approximately 516.17 feet to the rear line of said tract; thence, along the rear line, in an easterly direction, a width of approximately 63.5 feet; thence, in a southerly direction, along a line parallel to the line dividing Lots 22-B and 22-A, a distance of approximately 508.57 feet; thence, along Hopedale Highway, in a westerly direction, to the point of beginning, a distance of approximately 63.165 feet.
5. An act of sale dated July 12, 1948, conveying immovable property in St. Bernard Parish by Land Investment Co., Inc. to Lee J. Picou;
The act of sale contained the following property description: Fractional Section 23, north of Bayou La Loutre, in Township 14 South, Range 15 East, of the Mississippi River in the Parish of St. Bernard, State of Louisiana, and being designated by the Lot Number TWENTY-TWO (22) on a plan of Hopedale Subdivision No. 1 of parts of Sections 14, 15, 23, and 24 north of Bayou LaLoutre in Township 14 South, Range 15 East, made by Victor E. Hawkins, Surveyor, dated October 8, 1936, and revised February 21, 1941, annexed to an Act before Gladys L. Ziegan, Notary Public in and for the parish of Orleans, dated December 12, 1945, which herein described lot measure two hundred one and seventy-eight hundredths (201.78') feet front on Hopedale Highway right of way, two hundred and ten hundredths (200.10') feet in width in the rear, by a depth of five hundred twenty-five and twenty-one hundredths (525.21') feet along the division line of Lot No. 21 and by a depth of five hundred one and two hundredths (501.21') feet along the lower division line dividing said lot herein from Lot No. 23.
6. An act of sale dated April 7, 1949, conveying immovable property in St. Bernard Parish by Lee J. Picou to Clifton J. Egle;
Same property description as Footnote 5.
Dudenhefer and his brother-in-law, Harold A. Thomas, Jr. ("Thomas"), testified they purchased Lots "Y" and "Z," respectively, from James Monvoisin ("Monvoisin") as a joint investment for the sole purpose of being able to obtain ownership of the property between the bayou and the highway across from their respective lots. For clarity, the property between the bayou and highway across from Lots "Y" and "Z" will be referred to as "Bayou Y" and "Bayou Z." Neither acts of sale included a description of the property in question. At the time of purchase of Lots "Y" and "Z," "Bayou Y" and "Bayou Z" had a boat shed and pilings in place. Also at the time of purchase, Dudenhefer entered into an agreement with Monvoisin to allow him ninety days after the date of sale to vacate the boat shed located on "Bayou Y" and "Bayou Z."
Dudenhefer and Thomas each testified they made improvements to "Bayou Y" and "Bayou Z." Dudenhefer made improvements to "Bayou Y" between 1955 and 1966 by constructing wharfs around the boat shed, inserting pilings, and constructing a boat hoist. In 1966, Dudenhefer stored pilings on "Bayou Y" that would be used in the construction of his house on Lot "Y" that year. Also in 1966, he began to operate a commercial crabbing and fishing business; this business is now a boat launch and convenience store. Dudenhefer constructed a paved road for access to and on "Bayou Y."
Thomas made improvements to "Bayou Z" by constructing a pier and building bulkheads. Thomas also testified, that in 1966 he gave permission to Dudenhefer to place a forty foot container body (i.e. an ice trailer) for use in Dudenhefer's commercial fishing and crabbing business on "Bayou Z." Thomas constructed a paved road for access to and on "Bayou Z."
Dudenhefer testified neither he nor Thomas erected any type of structure to outline the boundaries of "Bayou Y" or "Bayou Z." He testified a natural boundary line existed.
Dudenhefer contends he purchased Lot "Z" and "Bayou Z" from Thomas in an act of sale dated April 27, 1973. The act of sale contained the same property description as the act of sale dated January 13, 1955. However, this act of sale included an additional clause as follows (hereinafter "1973 Clause"):
Also conveyed herein is any and all rights that Vendor or his predecessors in title have to the bayou frontage on Bayou LaLoutre, including all rights of prescription Vendor declaring that he has continuously since his acquisition exercised full ownership, possession and control over the portion of ground in front of the property hereinabove described from the water's edge of Bayou LaLoutre to the right of way of the Highway Department of the State of Louisiana as had his predecessors in title.
Additionally in support of Dudenhefer's claim, he and Thomas testified that neither of them could remember reading the act of sale in 1955 when they purchased their respective lots, but they thought they had purchased the property in dispute and have acted as if they had full ownership over said property since that purchase. Dudenhefer also testified he sold crabs from his commercial business operated on "Bayou Y" and "Bayou Z" to Joe Meraux. Mr. Meraux was deceased at the time of trial.
In support of its position as owner of the property in question, Meraux Land contends that neither Meraux Land nor its predecessors has ever sold, transferred, or subdivided the original tract along the bayou that Meraux Land's ancestor in title purchased in 1933. Meraux Land has possessed the property by virtue of title since 1933. Meraux Land also introduced testimony from Carol Newman ("Newman"), an expert in title examinations and real estate transactions. Newman testified she had never seen a clause such as the 1973 Clause included in an act of sale. She testified she could not conclude the property as to which the clause was attempting to convey prescriptive rights because the description was inadequate to convey rights in immovable property.
The trial court found Dudenhefer and Thomas were in good faith when they purchased the bayou lots in 1955, and they each openly and continuously possessed the property as owners. This included making extensive improvements and operating a commercial fishing business on said property. The trial court did not make a determination as to whether the property was acquired by acquisitive prescription of ten years, but held that Dudenhefer and his ancestors in title acquired the property by acquisitive prescription of thirty years. The trial court found La.C.C. articles 794, 3424, and 3442 requiring possession to be open, without interruption, and within visible boundaries had been satisfied. The trial court ordered that a survey be conducted post-judgment to fix Dudenhefer's property lines to the water's edge of Bayou LaLoutre.
STANDARD OF REVIEW
A court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (la. 1993), citing, Rosell v. ESCO, 549 So.2d 840 (La. 1989). Questions of law are resolved by determining whether the trial judge was legally correct or legally incorrect. Delacroix Corporation v. Perez, 98-2447, p. 4 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 865, citing, Palmer v. Blue Water Marine Catering, Inc., 95-342 (La.App. 5 Cir. 10/18/95) 663 So.2d 780.
OPINION
On appeal, Meraux Land alleges the trial court committed manifest error by finding Dudenhefer was the owner of the bayou lots by acquisitive prescription of thirty years when he failed to prove possession inch-by-inch. Meraux Land alleges the trial court committed manifest error by not acknowledging that the accrual of prescription was interrupted by the 1973 Clause, which admits that Dudenhefer and Thomas knew someone else owned the bayou lots. Meraux Land further alleges the trial court also erred by ordering a land survey post-judgment, finding plaintiffs were in good faith, and allowing the plaintiffs to tack acquisitive prescription time. Lastly, Meraux Land contends the trial court manifestly erred by depriving them of their right to due process by supplementing the record post-judgment with a court ordered land survey.
In Dudenhefer's original petition and on appeal, Dudenhefer contends he was the owner of the property by acquisitive prescription of ten years. The requisites for acquisitive prescription of ten years are: possession of ten years, good faith, just title, and a thing susceptible of acquisition by prescription. La.C.C. art. 3475. A just title is a juridical act, such as a sale, sufficient to transfer ownership or another real right, which must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated. La.C.C. art. 3483. For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses. La.C.C. art. 3480.
In the acts of sale by Monvoisin to Dudenhefer and to Thomas, there is no description of "Bayou Y" or "Bayou Z." The only reference made in any act of sale, which attempts to convey "Bayou Y" and/or "Bayou Z" to Dudenhefer, is the 1973 Clause contained in the sale of Lot "Z" by Thomas to Dudenhefer.
The 1973 Clause attempted to convey Thomas' rights including his prescriptive rights to "Bayou Z," and stated Thomas had continuously exercised full ownership and possession of "Bayou Z" since his acquisition of Lot "Z." At trial, Meraux Land's expert witness testified that the clause did not convey any rights to "Bayou Z" because the 1973 Clause did not contain an adequate description of the property. The 1973 Clause describes "Bayou Z" only as the bayou frontage on Bayou LaLoutre. It does not describe the dimensions of "Bayou Z" nor make any reference to any landmarks to describe the property that the 1973 Clause purports to convey.
We find that Dudenhefer does not meet the requirement of just title to be able to obtain ownership of "Bayou Y" or "Bayou Z" by prescription of ten years, because at no point did Dudenhefer have possession of an act translative of title that contained a description of "Bayou Y" or "Bayou Z."
Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith. La.C.C. art. 3486. To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. La.C.C. art. 3424. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds. La.C.C. art. 794. The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession. La.C.C. art. 3442.
A person pleading prescription of thirty years bears the burden of proving unequivocal, continuous, uninterrupted, public and adverse possession by a preponderance of the evidence. Gelpi v. Shall, 355 So.2d 1014, 1016 (La.App. 4th Cir. 1978), citing, Bradford v. Thomas, 344 So.2d 717 (La.App. 2d Cir. 1977. Whether a party has possessed property for thirty years without interruption is a factual issue which will not be disturbed on appeal absent a showing of abuse of discretion. Delacroix Corp. v. Perez, 1998, 1998-2447, p. 3 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 865, citing, Rogers v. Haughton Timber Co., Inc., 503 So.2d 1079 (La.App. 2 Cir. 1987).
In William T. Burton Industries, Inc., v. Wellman, the Supreme Court reiterated that:
`(W)here there is a visible boundary which has been in existence for thirty years or more and the defendant in a boundary action and his predecessors in title have, in addition to the land described in the title, actually possessed land extending to that visible boundary, a plea of prescription of thirty years should be sustained. It is our view that for the rule to be applicable two conditions must concur: First, there must be a visible boundary, artificial or otherwise; second, there must be actual uninterrupted possession, either in person or through ancestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within the visible bounds.' (Emphasis added)
343 So.2d 996, 999 (La. 1977), citing, Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957). "In the absence of title, there is no constructive possession: one has possession only of the area he actually possesses. Actual possession must be either inch by inch possession (pedis possessio) or possession within enclosures." Chaney v. State Mineral Board, 444 So.2d 105, 108 (La. 1983), citing, La.C.C. art. 3426 comment (d).
The first part of the test is of greatest concern to this Court. In light of our earlier determination that neither Dudenhefer nor Thomas had just title to "Bayou Y" or "Bayou Z," they must be able to show a visible boundary existed to establish what land on the bayou they actually possessed.
Dudenhefer testified and argued that the highway and the canal of the bayou itself established the boundaries of "Bayou Y" and "Bayou Z." There was no other evidence in the record indicating that Dudenhefer or Thomas erected any fences, walls, markings, or other landmarks that would establish the boundaries of the property they are claiming as "Bayou Y" and "Bayou Z." Dudenhefer testified that when he began using "Bayou Y" and "Bayou Z," a boat shed and pilings were in place. Thomas testified that he repaired some bulkheads and constructed new bulkheads as well. Dudenhefer and Thomas also testified that they made improvements to "Bayou Y" and "Bayou Z" by paving a road, constructing wharfs and a boat hoist, inserting pilings, and operating a commercial crabbing and fishing business. However, neither Dudenhefer nor Thomas ever testified where any of these improvements were located on "Bayou Y" or "Bayou Z" or, particularly, that any of them constituted the sort of boundary contemplated by the Civil Code articles and related jurisprudence. There is only the vague reference that the improvements were located on the bayou lots.
Three photographs were entered into evidence. However, it cannot be determined from the photographs the dimensions of the area possessed, the location of the bayou in relation to the highway, or anything else as to Dudenhefer's activities on the bayou property. These photographs do not assist this Court in determining the dimensions of the land actually possessed or utilized by Dudenhefer or Thomas.
The last piece of evidence introduced into evidence was a property tax report filed by Dudenhefer dated March 7, 1979. The property tax report indicates that taxes were paid on Lot "Y" and Lot "Z," and it references a boat launch and tin sheds on the bayou side. There is also a hand-drawn map on the back of the tax report showing a boat hoist and two tin sheds. However, no other tax reports, surveys, pictures, business records for the commercial business, or the like were entered into evidence showing where improvements were placed or when they were made.
We are only left to guess as to which areas of the bayou lots Dudenhefer and Thomas actually possessed. We must assume they possessed only the land between the highway and the bayou across from Lots "Y" and "Z," however, this falls far short of proving what they actually possessed "inch-by-inch" for a period of thirty years. Dudenhefer and Thomas testified only as to what they did on the respective bayou lots in terms of decades, but their testimony lacked specificity as to where the improvements were made at any particular point in time. Furthermore, it is impossible to determine from the record below if the improvements made were so obvious as to put anyone on notice that Dudenhefer and Thomas possessed the bayou lots as owners. This evidence is insufficient to prove the requirements of inch-by-inch possession within a visible boundary.
Furthermore, the trial court erred by ordering a survey post-judgment to determine the boundaries of the land actually possessed by Dudenhefer and Thomas. Dudenhefer should have submitted a survey or have been able to establish inch-by-inch the land he actually possessed with specificity. The trial court cannot correct a deficiency in the record by ordering a survey post-judgment to determine the actual boundaries the plaintiff should have proven at trial. It is impossible for this Court to evaluate what criteria, if any, the trial court provided the surveyor to use when he conducted the post-judgment survey. We agree with Meraux Land that this post-judgment survey deprived them of an opportunity to refute the survey, thereby depriving them of their right to due process.
The assignments of error relating to Dudenhefer's and Thomas' good faith and whether Dudenhefer should have been allowed to tack his prescription time to that of Thomas are moot, as is the issue raised by Dudenhefer regarding ownership of banks of navigable waters.
DISPOSITION
We find that Dudenhefer is not the owner of "Bayou Y" or "Bayou Z" via acquisitive prescription of ten years, because neither he nor Thomas possessed just title to either of the bayou lots, which is a necessary requirement. We further find that Dudenhefer is not the owner of "Bayou Y" or "Bayou Z" via acquisitive prescription of thirty years, because he cannot establish inch-by-inch possession of the land he actually possessed. Therefore, for the abovementioned reasons, the judgment of the trial court is reversed and judgment is rendered in favor of defendants.
REVERSED AND RENDERED
I would affirm as amended the judgment of the lower court in that I find that the record supports the lower court's finding that plaintiff, Eugene Dudenhefer ("Dudenhefer") acquired the disputed strips of land, "Bayou Y" and "Bayou Z," by thirty-year acquisitive prescription under Louisiana Civil Code Article 794.
I agree with the majority opinion that Dudenhefer is not able to obtain ownership of "Bayou Y" and "Bayou Z" by prescription of ten years because his legal title to Lots "Y" and "Z" do not transfer the adjoining bayou property. Furthermore, the record clearly indicates that Dudenhefer possessed "Bayou Y" as owner and that Dudenhefer and his ancestor in title to Lot "Z," Harold Thomas ("Thomas"), possessed "Bayou Z" as owner.
The majority, however, found that the trial court committed manifest error by finding thirty-year acquisitive prescription on the grounds that, although Hopedale highway and Bayou LaLoutre form visible bounds on the northern and southern boundaries of "Bayou Y" and "Bayou Z" respectively, there was no evidence of visible bounds on the eastern and western boundaries. It is on this specific point that I dissent: I would not interpret the "visible bounds" requirement so stringently under the circumstances of this case and would find this element to be sufficiently supported by the record.
It must be noted at the outset that the record clearly supports the contention that Dudenhefer and his ancestors in title to Lots "Y" and "Z" have possessed the disputed area for the requisite thirty years. The record indicates that Dudenhefer purchased Lot "Y" in 1955 and had exercised possession over "Bayou Y" from that time. At the time of purchase of Lot "Y," a boathouse existed on "Bayou Y," which Dudenhefer used. The record also indicates that, by 1966, Dudenhefer built a boat hoist and a bulkhead on "Bayou Y" and had operated a commercial crabbing business from there. Dudenhefer purchased Lot "Z" in 1973 and exercised possession of "Bayou Z," as owner, from that time. That possession consisted of paving the entirety of "Bayou Y" and "Bayou Z."
Although Dudenhefer possessed "Bayou Z" as owner only from 1973, his ancestor in title to Lot "Z," Harold Thomas ("Thomas"), possessed "Bayou Z" from the time of his purchase of Lot "Z" in 1955. At that time, "Bayou Z" contained pilings for an unfinished bulkhead, which Thomas completed in 1955. Furthermore, a cargo container was placed on "Bayou Z" in 1967 for use in Dudenhefer's crabbing business and remained there until the area was paved in 1973. This possession of "Bayou Y" and "Bayou Z" continued, uninterrupted, until September 22, 2000, when Dudenhefer filed this petitory action. Therefore, the record clearly supports a finding of possession by thirty years. I now turn to the issue of visible bounds.
Although there is no evidence that Dudenhefer's corporeal possession was actually interrupted, the filing of the petitory action by Dudenhefer has the legal effect of confessing possession, thereby effectively interrupting his possession. See La.C.C.P. art. 3657.
Regarding the issue of visible bounds, the record indicates that Hopedale highway runs in an easterly-westerly direction and serves as the southern boundary of Lots "Y" and "Z" and the northern boundary of "Bayou Y" and "Bayou Z." Lot "Y" lies to the west of Lot "Z" along Hopedale Highway. It is not disputed in the record that only the northern and southern boundaries of "Bayou Y" and "Bayou Z" are clearly visible. However, under these circumstances, I do not feel that an absence of technical visible boundaries along the east side of "Bayou Z" and the west side of "Bayou Y" are fatal to Dudenhefer's prescription claim.
According to the jurisprudence, the enclosure requirement for corporeal possession is not a technical requirement, but is "governed by the nature of the land and the use to which it is put." Rathborne v. Hale, 95-1225, p. 5 (La.App. 4 Cir. 1/19/96), 667 So.2d 1197, 1200. To that end, it must first be noted that the disputed portion of land extends from a single boundary line, the southern boundary, and does not extend in any direction beyond the eastern boundary of Lot "Z" and the western boundary of Lot "Y."
Second, it should also be noted that the disputed area is bounded to the south by Bayou LaLoutre. This constitutes a clear and indisputable visible boundary. More importantly, it renders the areas of "Bayou Y" and "Bayou Z" as riparian. The classification of the area as riparian is very important as the Civil Code treats riparian land as a special classification for ownership purposes due to the changing nature of the waterway and the status of the waterway as navigable. See La.C.C. arts. 499- 502.
Finally, the record is clear that Dudenhefer has exercised clear and unequivocal possession of "Bayou Y" from Hopedale Highway all the way to Bayou LaLoutre since he purchased Lot "Y" in 1955 to the time he filed the suit in 1999. Likewise, it is clear that Dudenhefer, and his ancestor in title, Mr. Thomas, exercised such possession of "Bayou Z" from Hopedale Highway all the way to Bayou LaLoutre for the same amount of time. The record also clearly indicates that this possession extended in an easterly direction to the eastern boundary line of Lot "Z" and in a westerly direction to the western boundary of Lot "Y."
As such, under the circumstances of this particular case, the northern bank of Bayou LaLoutre forms a sufficient visible bound to support corporeal possession of the land between it and Hopedale Highway within the extensions of the east boundary of Lot "Z" and the western boundary of Lot "Y." I would therefore find that the record supports thirty-year acquisitive prescription of "Bayou Y" and "Bayou Z," in favor of Dudenhefer, under Article 794.
In addition, because I would find that the record supports the finding that Dudenhefer acquired "Bayou Y" and "Bayou Z" by thirty-year acquisitive prescription, I would further find that the court ordered survey is proper. The Code of Civil Procedure provides for a separate action for determination of boundary, which is separate and distinct from the determination of ownership under a petitory action. Compare La.C.C.P. arts. 3691- 3693 with La.C.C.P. art. 3651. The jurisprudence does, however, permit the trial court to make a determination of boundary in a petitory action where ownership is acquired by acquisitive prescription of thirty years. See Cuthbertson v. Unopened Succession of Tate, 544 So.2d 1236, 1241-42 (La.App. 3 Cir. 1989). Furthermore, in a boundary action, the court is vested with the discretion to appoint a surveyor in making the boundary determination. La.C.C.P. art. 3692. The findings of the court appointed surveyor are presumptively correct where such findings are in accordance with the prevailing standards and practices. Thibodeaux v. Salassi, 331 So.2d 571, 576 (La.App. 1 Cir. 1976). The parties are free to object to the appointment of the surveyor. Allen v. Martino, 529 So.2d 90, 92 (La.App. 1 Cir. 1976). Further, the parties may seek to rebut the findings of the court appointed surveyor by submitting evidence, including the findings of another surveyor. See La.C.C.P. art. 3693.
Based on the law regarding the determination of boundary, I would find that, although Meraux clearly objected to the appointment of the surveyor, there is no abuse of the trial courts discretion and affirm the appointment of the surveyor. However, I would amend the judgment to permit Meraux to submit evidence to rebut the findings of the court appointed surveyor, should it choose to do so. Furthermore, since the determination of boundary is a separate action from the determination of ownership, I would reverse the trial court's assessment of costs of the independent surveyor and would order that the costs be borne equally by both parties.
Therefore, in accordance with the above, I respectfully dissent from the majority and would affirm, as amended, the holding of the trial court.