Boudreaux v. Cummings

• Decision Date: 05 May 2015
• Docket Number: No. 2014–C–1499.,2014–C–1499.
• Citation: 167 So.3d 559
• Parties: John Walter BOUDREAUX v. Paul Christopher CUMMINGS.
• Court: Louisiana Supreme Court

167 So.3d 559

John Walter BOUDREAUX

v.Paul Christopher CUMMINGS.

No. 2014–C–1499.

Supreme Court of Louisiana.

May 5, 2015.

Rehearing Denied June 30, 2015.

Opinion

CLARK, Justice.^*

We granted certiorari to determine whether the lower courts erred in recognizing the plaintiff as the owner of a predial servitude over land owned by the defendant. For the reasons that follow, we find the laws on acquisitive prescription and precarious possession require reversal of the court of appeal's ruling. Accordingly, we reverse and render judgment in favor of the defendant.

FACTS AND PROCEDURAL HISTORY

The plaintiff, John Boudreaux (hereinafter referred to as “Boudreaux”), filed suit against the defendant, Paul Cummings (hereinafter referred to as “Cummings”). In the lawsuit, Boudreaux sought recognition of a predial servitude/right of way by virtue of acquisitive prescription and a permanent injunction prohibiting Cummings from interfering with his use of the right of way. Specifically, Boudreaux avers that since at least 1948, he and his ancestors in title have been using a pathway and gate to cross the neighboring property that belongs to Cummings and his ancestor in title, the Weills.¹ Testimony established that Boudreaux, his family, and farmers employed by Boudreaux used the right of way to transport farm equipment, to get to and from town for personal errands, and for convenient access to the adjacent road. In 1969, the Weills asked Boudreaux to move the right of way. Boudreaux acquiesced in the request and continued to use the pathway until 2012, when Cummings locked the gate and prevented Boudreaux's use.

Based on the foregoing, Boudreaux alleges that he adversely possessed the predial servitude for thirty years and is entitled to ownership thereof.²

Cummings filed a motion for summary judgment, contending that Boudreaux was a precarious possessor. As such, he argues acquisitive prescription never began to run in Boudreaux's favor. The trial court denied the motion for summary judgment, finding genuine issues of material fact remained. The matter went to trial on July 8, 2013. The trial court found precarious possession was irrelevant to a discussion of ownership of an incorporeal immovable, such as a predial servitude. The trial court rendered judgment in favor of Boudreaux, ruling that the Boudreaux estate acquired a right of way over the Cummings estate by way of acquisitive prescription.

Cummings appealed. The court of appeal affirmed the judgment. Boudreaux v. Cummings, 13–1291 (La.App. 3 Cir. 6/11/14), 138 So.3d 797. In affirming, the majority held that, under the manifest error standard, there was adequate evidence for the trial court to conclude that Boudreaux was using the right of passage on his own behalf, rather than as a precarious possessor. The court of appeal cited to record testimony regarding Boudreaux and his family's use of the right of way for over thirty years and found that the Weills' awareness of the use was “sufficient to show the elements of acquisitive prescription [had] been met.” Judge Amy dissented, finding Boudreaux had permissive use of the passage and, therefore, could not satisfy the requirements to prove ownership by acquisitive prescription.

Cummings filed the instant writ application, contending the lower courts erred. We granted certiorari to determine whether a predial servitude was established by acquisitive prescription. Boudreaux v. Cummings, 14–1499 (La.11/7/14), 152 So.3d 163.

APPLICABLE LAW

When reviewing courts find that a reversible error of law was made in the lower court, appellate courts are required to re-determine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Louisiana Civil Code Article 740 provides: “Apparent servitudes may be acquired by title, by destination of the owner, or by acquisitive prescription.” Louisiana Civil Code Article 742 provides: “The laws governing acquisitive prescription of immovable property apply to apparent servitudes. An apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and by just title; it may also be acquired by uninterrupted possession for thirty years without title or good faith.”

Louisiana Civil Code Article 3437 defines precarious possession as “the exercise of possession over a thing with the permission of or on behalf of the owner or possessor.” “Acquisitive prescription does not run in favor of a precarious possessor or his universal successor.” La. Civ.Code art. 3477. Excluding a co-owner, any precarious possessor or his universal successor may commence to prescribe when he gives actual notice to the person on whose behalf he is possessing that he intends to possess for himself. La. Civ.Code art. 3478.

DISCUSSION

Standard of Review

Despite the court of appeal's statement to the contrary, a review of the record indicates the trial court did not make a factual finding as to whether Boudreaux was a precarious possessor. Rather, the trial court found that precariousness does not apply to incorporeal immovables. However, the Louisiana Civil Code clearly states that the laws of acquisitive prescription of immovable property apply to apparent servitudes. La.Civ.Code art. 742. Precariousness, or the lack thereof, is a legal concept relevant to acquisitive prescription, and is, thus, applicable to apparent servitudes, such as the right of way over Cummings' land. See La.Civ.Code art. 3477. Accordingly, the trial court legally erred, necessitating a de novo review by this court.

Nature of the Possession

In resolving this matter, we must first determine whether Boudreaux was a precarious possessor of the predial servitude. If he was possessing precariously, the second step of the analysis tasks this court with ascertaining whether Boudreaux gave actual notice to the landowner (either Cummings or his ancestor in title) that he (or his own ancestor in title) was beginning to possess on his own behalf so as to commence the accrual of the acquisitive prescription period. See La.Civ.Code art. 3478.

Boudreaux asserts that his possession of the right of passage is presumed to be on his own behalf, pursuant to La.Civ.Code art. 3427, which provides, “[o]ne is presumed to intend to possess as owner unless he began to possess in the name of and for another.” Thus, it is the landowner's duty to show that such use was merely an accommodation. Boudreaux argues that Cummings' failure to object to his use of the right of way does not amount to consent by the landowner, i.e., precarious possession.

Conversely, Cummings contends Boudreaux was merely using the right of way with his or the Weills' permission in a gesture of neighborly accommodation. Thus, acquisitive prescription could not run in Boudreaux's favor absent a showing of actual notice of his commencement of adverse possession.

We disagree with Boudreaux's characterization of the scenario as equating a “failure to object” with “permission.” However, we do find support in the law for implied or tacit permission being the basis of precarious possession. The pre–1982 version of Louisiana Civil Code art. 3490 provided:³

The circumstances of having been in possession by the permission or through the indulgence of another person, gives neither legal possession nor the right of prescribing.

Thus, those who possess precariously, that is, by having prayed the master to let them have the possession, do not deprive him thereof, but, possessing by his consent, they possess for him. [Emphasis added].

Professor A.N. Yiannopoulos, in the Civil Law Treatise on Predial Servitudes, explained that the French article, on which the Louisiana article was based, more accurately translates as “acts that are the exercise of a prerogative, and those of simple tolerance, cannot be the foundation of either possession or prescription.”⁴ (Emphasis added). Yiannopoulos further explained in his discussion of precarious possession:

Such a possessor may acquire neither ownership nor a servitude by prescription.

Thus, one who uses a servitude of passage by virtue of a lease granted to him by the owner of the dominant estate may not acquire by prescription the servitude of passage for himself; and one who uses an aqueduct with the express or tacit permission of the owner of the estate on which the aqueduct is located may not, by prescription, acquire a servitude of aqueduct. The owner of the estate on which the passage of aqueduct is located may tolerate certain invasions in the spirit of good neighborhood or in the pursuit of his own interests; in neither case is he presumed to have consented to a servitude. Moreover, the person who encroaches on the rights of the landowner with his express or tacit permission does not have the intent to acquire a servitude; he implicitly recognizes that the ownership of the estate is unencumbered and prescription does not run in his favor.

Article 3490 of the Louisiana Civil Code of 1870, corresponding with Article 2322 of the French Civil Code, declared that acts of simple tolerance could not be the foundation of either possession or prescription. The purpose of this provision was to maximize the use of immovable property in the general interest. If acts of simple tolerance were to be considered as acts of adverse possession, landowners would be compelled to object to innocent or occasional invasions for fear that their lands would be burdened with predial servitudes.

Id. (Emphasis added).

Yiannopoulos further opined that while Article 3490 was not produced in the 1982 revision of the Louisiana Civil Code, he believed its absence was merely because the provision is “self-evident.” Id. Moreover, Professor Symeon C. Symeonides explained the change in the law on precarious possession as follows:⁵

The articles of the old law dealing with precarious possession were spread out in three different parts of the Code and were quite repetitive. They could be found in the chapter on

...