Opinion
2015 CA 1341 C/W 2015 CA 1342
08-31-2016
BROTHERS, INC. OF OPELOUSAS, ET AL v. LARRY L. JOHNSON, SR., AND CAROL LEGER JOHNSON, ET AL CBC INTERNATIONAL INC., ET AL v. LARRY L. JOHNSON, SR., ET AL
Louis B. Viviano Opelousas, Louisiana and Michael O. Hesse St. Francisville, Louisiana Counsel for Plaintiffs/Appellants CBC International, Inc. and CPCI, Inc. Jordan L. Bollinger Lewis O. Unglesby Baton Rouge, Louisiana Counsel for Defendants/Appellees Larry L. Johnson, Sr. and Carol Ann Leger Johnson
NOT DESIGNATED FOR PUBLICATION On Appeal from the Eighteenth Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana
No. 34,090 c/w No. 34,348 Honorable Alvin Batiste, Judge Presiding Louis B. Viviano
Opelousas, Louisiana
and
Michael O. Hesse
St. Francisville, Louisiana Counsel for Plaintiffs/Appellants
CBC International, Inc. and CPCI, Inc. Jordan L. Bollinger
Lewis O. Unglesby
Baton Rouge, Louisiana Counsel for Defendants/Appellees
Larry L. Johnson, Sr. and Carol Ann
Leger Johnson BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. McCLENDON, J.
In this consolidated case involving a boundary dispute, the plaintiffs appeal a judgment of the trial court in favor of the defendants, declaring that the defendants acquired ownership of a portion of the plaintiffs' property by thirty-year acquisitive prescription. For the reasons that follow, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
The property at issue is located at the intersection of Sections 6 and 7 of Township 7-S, Range 11-E in West Baton Rouge Parish. The property to the north is in Section 6 and is owned by the plaintiff, CBC International Inc. (CBC International). Immediately to the south, in Section 7, is the property owned by the defendants, Larry L. Johnson, Sr. and Carol Leger Johnson. The section line between Section 6 and Section 7 is the reason for the dispute herein. The parties stipulated prior to trial that the correct section line is the one shown on the map of Michael P. Mayeaux dated May 5, 2005. However, prior to the stipulation, there was disagreement as to the location of the section line that resulted in a disputed strip of property bounded by a limestone road to the west, Bayou Chalpin to the east, and the section line to the south. The northern boundary of the disputed property is at issue in this appeal.
On May 5, 2005, after the filing of the petitions herein, CBC International sold the property to CPCI, Inc.
Apparently, the discrepancy regarding the location of the boundary line between Sections 6 and 7 arose as the result of a survey prepared by A.J. Parker in 1967. The Wilkinsons, the Johnsons' ancestors in title, requested the survey. In the survey, Mr. Parker set the north/south boundary on the western side of Section 6 at 77.1 chains rather than at 80 chains. Sometime around 1970 or 1971, based on the Parker survey, the Wilkinsons cleared timber past the stipulated boundary northward to the boundary line shown on the Parker survey map. The clearing extended from the western boundary eastward to Bayou Chalpin. The Wilkinsons also built a barbed-wire fence at the tree line up to where they had cleared and dug a drainage ditch just south of the fence. These improvements were made along what they thought was their northern boundary to the bayou. The Wilkinsons placed cattle on the cleared property for a couple of years and farmed the land in question until it was sold to the Johnsons as part of a larger 223.76 acre tract on June 23, 1999. The Johnsons began subdividing the land shortly after it was acquired. The subdivided land included Acadian Bayou Estates. Meanwhile, the plaintiffs' ancestor in title, Intracoastal Land, Inc., sold the Section 6 property north of the Johnsons' property to CBC International on October 30, 1995.
The sections were created in the 1800s using measurements of 80 chains, or one mile.
We note that the ownership of the property located in Section 7 to the east of Bayou Chalpin is not in dispute.
Intracoastal Land, Inc. sold the property to Thomlinson Realty Co., Inc. who sold the property that same date to CBC International.
In 2000, Mr. Mayeaux, a registered land surveyor, was hired by CBC International to conduct a boundary survey. Mr. Mayeaux's survey indicated that the boundary between sections 6 and 7 was approximately 171 feet south of the fence and ditch line of the Wilkinsons, which fence and ditch were in close proximity to one another.
On May 26, 2004, Brothers Inc. of Opelousas d/b/a Big 7 Hunting Club, CPCI, Inc. (CPCI), Tomlinson Realty Company, Inc., Opelousas St. Landry Realty Company, Inc., and Curtis I. Naquin filed a Petition for Declaratory Judgment against the Johnsons, in Suit Number 34,090, seeking to have a limestone road on the Johnsons' property declared to be a servitude of public use. Thereafter, on September 22, 2004, CBC International filed a petition against the Johnsons, in Suit Number 34,348, requesting that the trial court recognize CBC International's right to possess the disputed property and seeking damages. On May 16, 2005, CPCI filed an amended petition, in Suit Number 34,090, asserting that it acquired the property from CBC International on May 5, 2005. CPCI also added a claim to fix the boundary between its property and the property owned by the Johnsons according to the survey prepared by Mr. Mayeaux. The Johnsons responded to the amended petition by filing a reconventional demand on January 30, 2006, contending that they and their ancestors in title had been in possession of the disputed property for over thirty years. In March 2006, these cases were consolidated for trial.
While other defendants were named in the two lawsuits, they are not pertinent to this appeal.
Following a four-day bench trial, the trial court issued written reasons for judgment on September 3, 2013, ruling in favor of the Johnsons and against the plaintiffs, finding that the Johnsons had proven ownership of the disputed area up to the tree line through thirty-year acquisitive prescription.
The trial court also determined that while the limestone road was not dedicated to public use the Wilkinsons granted a predial servitude to the Cholpe Hunting Club and the Big 7 Hunting Club to access their camps located in Section 6. The plaintiffs have not appealed the trial court's judgment regarding the limestone road.
The trial court signed a judgment on September 26, 2013, setting the boundary between the Johnsons' property and the property of the plaintiffs. Shortly thereafter, the Johnsons and the plaintiffs each filed a motion for new trial. In their motion for new trial, the Johnsons alleged that pursuant to a status conference on September 26, 2013, the trial court stated that its intent was to set the northern boundary line west of Bayou Chalpin as the center of the drainage ditch and that the trial court used the July 21, 2000 Woody Triche survey map to determine the center of the ditch; however, they argued that the trial court erroneously set the boundary fifty feet south of the Triche survey line. The Johnsons further asserted that Mr. Triche's testimony at trial was that the July 21, 2000 survey map was not intended to note the exact location of the ditch, but rather was to subdivide Acadian Bayou Estates. In the plaintiffs' motion for new trial, they alleged that the judgment was clearly contrary to the law and the evidence with respect to the issue of thirty years of continuous and uninterrupted possession by the Johnsons of the disputed property.
The trial court set forth the boundaries as follows:
The WEST boundary commences on the line between Sections 6 and 7 as shown on STIPULATION 1, at a point twenty-five feet East of the center of the limestone road as shown on the Amoco Right of Way Agreement recorded September 17, 1985 in COB 208 Entry 60, West Baton Rouge Parish, Louisiana; thence North parallel to said limestone road a distance of 120.93 feet; thence East 90° until reaching the center line of Bayou Chalpin.
Following a hearing, the trial court granted the motions for new trial to amend the legal description in the judgment and to properly delineate the property in dispute. At the new trial, on July 17, 2014, the trial court reiterated that its intent was to put the boundary at the center of the ditch. It then heard the testimony of Mr. Triche, a licensed professional land surveyor, regarding the appropriate property description. Mr. Triche testified that his map, identified and introduced into evidence at the new trial as Map #2, accurately reflected the centerline of the ditch. Thereafter, the trial court ruled that Map #2 correctly identified the boundary at issue. The parties agreed that Mr. Triche would create and provide to both sides an accurate property description identifying the court's ruling. The trial court signed an amended judgment on October 3, 2014.
CBC International and CPCI appealed, asserting several assignments of error. Specifically, they argue that the possessory acts of the Johnsons and their ancestors in title were not continuous and uninterrupted for thirty years. They also contend that the fence does not extend the entire length of the property and is insufficient to establish an enclosure. Therefore, they maintain that the extent of possession should have been determined on an "inch by inch" basis of actual possession. Lastly, the plaintiffs assert that the amended judgment unilaterally submitted by counsel for the Johnsons was in error, based on information not contained in the record and not approved by counsel for the plaintiffs.
DISCUSSION
In a boundary action, the court shall render a judgment fixing the boundary between contiguous lands in accordance with the ownership or possession of the parties. LSA-C.C.P. art. 3693. The boundary shall be fixed according to ownership of the parties; however, if neither party proves ownership, the boundary shall be fixed according to the limits established by possession. LSA-C.C. art. 792. When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. Kadair v. Hampton, 13-1171 (La.App. 1 Cir. 7/10/14), 146 So.3d 694, 701, writ denied, 14-1709 (La. 11/7/2014), 152 So.3d 177. 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 those lines. LSA-C.C. art. 794. Thus, ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title. Secret Cove, L.L.C. v. Thomas, 02-2498 (La.App. 1 Cir. 11/7/03), 862 So.2d 1010, 1015, writ denied, 04-0447 (La. 4/2/04), 869 So.2d 889.
Under the codal provisions on acquisitive prescription, a possessor lacking good faith and/or just title may acquire prescriptive title to land by corporeally possessing a tract for thirty years with the intent to possess as owner. Hooper v. Wisteria Lakes Subdivision, 13-0050 (La.App. 1 Cir. 9/13/13), 135 So.3d 9, 14, writ not considered, 13-2433 (La. 1/27/14), 130 So.3d 954. Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. LSA-C.C. art. 3425. Thirty years of corporeal possession confers prescriptive title upon the possessor only when it is continuous, uninterrupted, peaceable, public, and unequivocal, and confers title only to such immovable property as is actually corporeally possessed. Kadair, 146 So.3d at 701; Hooper, 135 So.3d at 14.
For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed. LSA-C.C. art. 3487. Actual possession must be either inch-by-inch possession or possession within enclosures. According to well-settled Louisiana jurisprudence, an enclosure is any natural or artificial boundary. LSA-C.C. art. 3426, comment (d); Kadair, 146 So.3d at 701; Hooper, 135 So.3d at 14. The party who does not hold title to the disputed tract has the burden of proving actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. Kadair, 146 So.3d at 701-02; Hooper, 135 So.3d at 14.
The intent to possess as owner may be inferred from all of the surrounding facts and circumstances. Hooper, 135 So.3d at 15; Secret Cove, LLC, 862 So.2d at 1015. One who proves that he had possession at different times is presumed to have possessed during the intermediate period. LSA-C.C. art. 3443. Also, the intent to retain possession is presumed unless there is clear proof of a contrary intention. LSA-C.C. art. 3432.
Under LSA-C.C. art. 794, a title holder may acquire more land than his title calls for by possessing property beyond his title for thirty years without interruption and within visible bounds. Such a title holder may attain the thirty-year possessory period by "tacking" on to the possession of his ancestor in title. LSA-C.C. arts. 794 and 3442. Under LSA-C.C. art. 794, the privity of title between the possessor and his ancestor in title need not extend to the property to which the possessor asserts prescriptive title; under this article, the juridical link, or written instrument that passes to the possessor from his ancestor in title need not encompass or include the particular property to which the possessor claims prescriptive title. Kadair, 146 So.3d at 702; Hooper, 135 So.3d at 15.
Whether a party has possessed property for purposes of thirty-year acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong. Additionally, boundary location is a question of fact, and the determination of its location by the trial court should not be reversed absent manifest error. Kadair, 146 So.3d at 702; Hooper, 135 So.3d at 15. The issue to be resolved on review is not whether the fact finder was right or wrong, but whether the fact finder's conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the fact finder's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990).
In the case sub judice, the trial court determined that the Johnsons and their ancestors in title adversely possessed the disputed property continuously for more than thirty years and therefore acquired ownership of the land through acquisitive prescription. However, the plaintiffs contend that the trial court erred in finding that the Johnsons acquired any portion of the disputed property by acquisitive prescription, specifically arguing that the possessory acts of the Johnsons and their ancestors in title were not continuous and uninterrupted for thirty years.
Several witnesses testified at trial. William Robichaux testified that he was a member of a club that hunted the disputed property and surrounding area beginning in 1969. He stated that he hunted with the club from 1970 to about 2000 and that it was the Wilkinsons who gave the club members permission to drive and hunt on the disputed property. Mr. Robichaux stated that the ditch was present in the fall of 1970. He also stated that the fence and the wood line was always considered the boundary between the Wilkinson property and the Intracoastal property and that the boundary was obvious because the field was cleared and there was a fence and ditch just inside the woods. Mr. Robichaux further stated that there was never any dispute between the hunting club and the Wilkinsons over the boundary between the properties.
Sidney Blanchard testified that he hunted on the Wilkinsons' property with their permission from 1970 to sometime in the 1990s. He stated that the wood line was a clear delineation between the properties and he always believed that the wood line was the boundary. He also stated that he saw farming activity on the disputed property continuously from 1970 into the 1990s and that at one time cattle were on the property. He stated that it was always his understanding, despite the current condition of the fence, that the fence was the boundary and that no one ever disputed that boundary.
Rodney Courville testified that he leased the Wilkinson property and farmed it every year from 1975 until 1980. He stated that one of the elderly Wilkinson family members showed him the boundary line, which was up to the wood line and the fence. He also stated that the barbed-wire fence ran from the northwest corner of the wood line all the way to Bayou Chalpin and that prior to his farming the property, there had been cattle on the property.
Lucius Treuil, Jr. testified that he farmed the Wilkinson property from 1982 to 1987 with Mr. Johnson. Mr. Treuil stated that he put cattle on the property in 1983 and 1984 and planted soy beans the other years. His understanding of the northern boundary of the property was at the fence. He stated that he rode with Horace Wilkinson, Sr., who pointed out the entire perimeter of the property. Mr. Johnson also testified that he farmed the property during this time.
Ernest Overton testified that he leased and farmed the Wilkinson property from 1987 through 1996. He stated that the northern boundary of the property was the ditch and fence where there was a wood line. He stated that he farmed the entire property that the Wilkinsons leased to him. Additionally, Dwayne Coulon testified that he farmed the Wilkinson property for two years, in 1997 and 1998, pursuant to a lease with the Wilkinsons. He stated that he farmed up to the fence line and ditch. In 1999, the Johnsons purchased the property. Mr. Johnson testified that he has continued to maintain, farm, and possess the property up to the wood line.
In order to determine possession by the Johnsons and their ancestors in title, we must first address the plaintiffs' argument that the trial court erred in finding a "continuing boundary" that represented an enclosure. The defendants contend that because neither the barbed-wire fence nor the drainage ditch ran all the way from the eastern boundary to the western boundary, it was not continuous and the Johnsons' extent of possession could only have been determined on an "inch by inch" basis.
Mr. Mayeaux testified at trial that when he conducted the boundary survey in 2005, and again before trial, he walked the fence line and found it to be in "extremely poor condition." He stated it was up in some areas but missing in others. He further stated that most of the fence was on the ground. Mr. Mayeaux also testified that the ditch began approximately 200 feet east from the western boundary, increasing in width as it approached Bayou Chalpin. However, despite the plaintiffs' argument, the tree line was clearly visible as a distinct delineation between the disputed property and that of the plaintiffs, and all the witnesses testifying as to possession stated the same. No evidence was presented to the contrary.
The trial court in its written reasons determined that the Johnsons acquired ownership up to the tree line. However, in its amended judgment, the trial court placed the boundary at the center line of the ditch. While the tree line is slightly north of the center line of the ditch, and the Johnsons may have been entitled to more property than that set forth in the amended judgment, they did not appeal the judgment or answer the appeal as to the placement of the boundary. We find that the tree line was sufficient to constitute a visible boundary for purposes of possession within enclosures. See LSA-C.C. art. 3426, comment (d); Secret Cove, L.L.C., 862 So.2d at 1019. Accordingly, upon our review of the record, we can find no manifest error in the trial court's conclusion that inch-by-inch possession was not required.
Additionally, given that the record supports a finding of possession up to the tree line, the trial court's factual determination that the Johnsons and their ancestors in title possessed the disputed property as owners for thirty years to the center line of the ditch is also reasonably supported by the record. The Wilkinsons, the Johnsons, and the lessees that farmed the property all considered the tree line to be the boundary between the Johnsons property and the property of the plaintiffs. The testimony also established that the Wilkinsons and the Johnsons continuously possessed and exercised rights of possession over the property to the tree line. The Wilkinsons took possession of the disputed property peaceably and openly, using it as owners until their property was sold to the Johnsons, who continued to possess the property. Although there may have been short periods of time where the property was not farmed, the evidence at trial showed a continuous intent on the part of the Wilkinsons to possess the disputed property as owners. Therefore, we conclude that the evidence reasonably supports the trial court's conclusion that the nature and extent of possession by the Johnsons and their ancestors in title satisfied the requirements of acquisitive prescription.
The plaintiffs also argue that the amended judgment was in error as the first judgment signed by the trial court correctly described the boundary line chosen by the court and that the amended judgment was improperly submitted to the court without approval of opposing counsel and signed in error based on survey information not filed in the trial record.
However, the trial court clearly stated that its intent was to set the boundary line at the center of the ditch, and Mr. Triche's testimony at the new trial was that the boundary in the original judgment was incorrect. Map #2 was accepted by the trial court at the new trial as the accurate and controlling map, and it was introduced into evidence during the testimony of Mr. Triche.
Nonetheless, the plaintiffs aver that the amended judgment was unilaterally submitted by the Johnsons and was not approved by counsel for the plaintiffs. However, the record reflects that the trial court was aware of the plaintiffs' contentions regarding the amended judgment. Even so, it signed the amended judgment on October 3, 2014. The signed judgment is supported by the evidence and testimony at trial. Accordingly, we find no merit to the plaintiffs' last assignment of error.
The last page of the amended judgment contains a certification by counsel for the Johnsons that the judgment was forwarded to all counsel of record on September 30, 2014. Additionally, the trial court noted on the amended judgment why counsel's signatures were not affixed. The handwritten notation, initialed by the trial judge, provided: "See attached letters of counsel as to why no signatures affixed." However, the letters have not been made part of the record. --------
Considering the above, we find no manifest error in the trial court's judgment finding that the Johnsons acquired ownership of a portion of the plaintiffs' property by acquisitive prescription. Nor do we find any error in the location of the boundary fixed by the trial court.
CONCLUSION
Therefore, we affirm the October 3, 2014 judgment of the trial court. Costs of this appeal are assessed to the plaintiffs/appellants, CBC International Inc. and CPCI, Inc.
AFFIRMED.