Antis v. Miller

• Decision Date: 06 April 1988
• Docket Number: No. 87-228,87-228
• Citation: 524 So.2d 71
• Parties: David ANTIS, et ux., Plaintiffs-Appellees, v. J.D. MILLER, ex ux., Defendants-Appellants. 524 So.2d 71
• Court: Court of Appeal of Louisiana — District of US

Page 71

524 So.2d 71

David ANTIS, et ux., Plaintiffs-Appellees, v. J.D. MILLER, ex ux., Defendants-Appellants.

No. 87-228.

524 So.2d 71

Court of Appeal of Louisiana Third Circuit.

April 6, 1988.

Rehearing Denied May 5, 1988.

Chambers & Trahan, Noble M. Chambers, Jr., Crowley, for plaintiffs-appellees.

Miller & Miller, Michael B. Miller, Crowley, for defendants-appellants.

Before GUIDRY, DOUCET and KNOLL, JJ.

GUIDRY, Judge.

On October 29, 1984, plaintiffs, David Antis and Gerry Ames Antis (hereafter Antis), filed this suit seeking to compel removal of an encroachment allegedly constructed by defendants, J.D. Miller and Georgia Sonnier Miller (hereafter Miller) on the Antis property. Antis alleges that the building constructed by Miller extended 3.85 feet onto his property. Antis further alleged that the Miller building was constructed in violation of the zoning ordinance of the City of Crowley as well as the building restrictions established for the Country Club Subdivision wherein the Antis and Miller properties are located. Defendants filed an answer setting up several defenses. In response, defendants denied that their building encroached onto plaintiffs' property. Further, defendants urged that the restrictive covenants for the entire subdivision had been abandoned as a result of a series of violations which destroyed the general scheme of the Country Club Subdivision or, alternatively, that the restriction controlling proximity of construction to property lines had been abandoned; plaintiffs are without right to enforce the zoning ordinance of the City of Crowley; and, in the event encroachment is found, defendants are entitled to a legal servitude on the Antis property pursuant to the provisions of La.C.C. art. 670. In a supplemental answer and reconventional demand, defendants asserted a possessory action to the 3.85 foot strip of land in dispute.

The trial court, in its reasons for judgment, concluded that:

1. Miller's construction encroached 3.85 feet over onto the Antis property;

2. Miller did not maintain such possession of the property involved (3.85 foot strip) sufficient to maintain a possessory action;

3. Antis was without right to complain of a violation of the city zoning ordinance or to enforce compliance therewith;

4. the restrictive covenants of the Country Club Subdivision were still viable; and,

5. Miller was not entitled to a legal servitude under La.C.C. art. 670 Servitude.

Pursuant to these findings, the trial court rendered judgment ordering removal of the building constructed by Miller on the Antis property to a point 10 feet from the Antis-Miller property line.

Defendants suspensively appealed urging error in all of the trial court's findings except that regarding their lack of authority to enforce the City of Crowley zoning ordinance. Defendants also urge that the trial court manifestly erred in completely disregarding the testimony of Leslie Hill. ¹

FACTS

Antis purchased Lots 31 and 32 of the Country Club Subdivision in May of 1964. No improvements were ever constructed on these lots. Miller purchased Lot 30 of the Country Club Subdivision, with the home situated thereon, in May of 1977. The plat of the Country Club Subdivision which was introduced in evidence is attached as Appendix A.

The record reflects that, prior to the Miller purchase of Lot 30, his ancestor in title mowed and otherwise maintained a yard area south of his residence to a point marked by two pine trees, one located near Hoyt Avenue in the vicinity of the southeast corner of Lot 30 and the other located at the rear of the property in the vicinity of the southwest corner of Lot 30. The record does not reflect the exact location of these trees, but it can reasonably be determined by reference to a plat of survey of Lots 31 and 32 (attached as Appendix B) photographs introduced in evidence, and testimony of the witnesses that the trees are located on Lot 31, approximately 17 feet south of its north line.

According to Miller, when he purchased Lot 30, there existed three shrubs in line with the pine trees and the lawn had been maintained up to that point. Miller testified that he planted four additional shrubs in a straight line between the two pine trees. These shrubs existed for approximately two and one-half years until they were removed in order to store supplies needed for the remodeling of his home. Two shrubs on each end still remain.

According to Miller's testimony, from the year 1977 through the year 1984, he maintained the lawn and mowed the grass on the south side of his residence up to the pine trees. He also used this strip of land to store pipe and park an automobile he purchased in 1982. The record reflects that the pipes were placed at the rear of the property in line with the pine trees and remained there for approximately two to three years. Additionally, during construction of the Miller addition, roofing materials were stored in the approximate same location.

In June of 1983, Miller began renovation of his residence, including the construction of a garage addition. According to his testimony, Miller always believed that he owned the property upon which the garage was constructed. He stated that when the garage was approximately 80% complete, he began to suspect that there might be an encroachment onto Lot 31 and, at that point, immediately notified Antis. According to Miller, Antis was notified in May of 1984. At the time Miller notified Antis of the possible dispute, the renovations, including construction of the garage, were 80% complete.

The parties virtually concede but, in any event, the record reflects that the encroachment of the garage extension to the Miller home is 3.85 feet across the north property line of Lot 31. Also, there is no question but that the building of the garage extension to the Miller home violates building restriction number 5 of the Country Club Subdivision. Restriction number 5 requires buildings to be built 10 feet from the side or rear lot line.

THE POSSESSORY ACTION ISSUE

In rejecting defendants' reconventional demand to be maintained in possession of the disputed strip, the trial court concluded that the possession exercised by Miller over the disputed strip was not of the quality required for maintenance of a possessory action. We find no error in this conclusion.

In Harper v. Willis, 383 So.2d 1299 (La.App. 3rd Cir.1980), writ denied, 390 So.2d 202 (La.1980), we discussed the possession necessary for maintenance of a possessory action stating:

"... LSA-C.C. art. 3436 requires two distinct elements for a person to acquire possession: (1) the intention of possessing as owner and (2) the corporeal possession of the thing. Our jurisprudence usually states that the term 'corporeal possession' means the actual, physical, open, public, unequivocal, continuous, and uninterrupted possession of property with the intent of possessing it as owner. Gerrold v. Barnhart, 128 La. 1099, 55 So. 688 (1911); Wm. T. Burton Industries, Inc. v. McDonald, supra [346 So.2d 1333 (La.App.) ], Succession of Kemp v. Robertson, 316 So.2d 919 (La.App. 1st Cir.1975), writ denied, 320 So.2d 906.

It is well established that the 'corporeal possession' required to bring a possessory action is identical to that required for acquisitive prescription of thirty years. LSA-C.C. articles 3499-3505; Hill v. Richey, et al., 221 La. 402, 59 So.2d 434 (La.1952); Johnson v. Merritt, 131 So.2d 562 (La.App. 2nd Cir.1961); Case v. Jeanerette Lumber & Shingle Company, Inc., 79 So.2d 650 (La.App. 1st Cir.1955); Broussard v. Motty, 174 So.2d 246 (La.App.3rd Cir.1965); Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975); Norton v. Addie, 337 So.2d 432 (La.1976); Wagley v. Cross, 347 So.2d 859 (La.App. 3rd Cir.1977).

It is clear that the intent to possess as owner has to do with the subjective intent of one who professes to possess and does not mean that the possessor must pretend to have valid title rights. The possessor may actually have title, but in the possessory action that factor is significant only in determining intent. The intent may exist without title to the knowledge of the possessor, for as shown above, even our codes permit a person in bad faith or a usurper to maintain the possessory action. LSA-C.C. arts. 3450, 3452, and 3454 and LSA-C.C.P. art. 3660. In as much as the corporeal possession required as a predicate to a possessory action is the same as that required for acquisitive prescription of 30 years, the corporeal possession must be open and notorious and adverse or hostile to the true owner and everyone else."

In our view, the acts of possession relied upon by Miller, i.e., the mowing of grass on the disputed strip and the occasional storing of building material thereon, standing alone, would not be of the quality required for acquisition of property under the prescription of 30 years and, therefore, will not suffice to support a possessory action.

The record does not establish that Miller mowed the grass or stored materials on the disputed strip with the intent to acquire its ownership. Further, the record does not support a conclusion that the acts relied upon by Miller were notorious and unequivocal acts of possession.

Following Miller's purchase of Lot 30, he merely continued to mow the lawn up to the two pine trees, as his predecessor had done. His obvious intent, like that of his predecessor, was to maintain a neat appearance of his lot which was adjacent to the vacant, unimproved property belonging to Antis. The record reflects nothing which would support a finding of intent on the part of Miller to possess this strip as owner adverse to Antis. Further, the acts of possession relied upon by Miller are equivocal and lack the qualities of hostility and notoriousness. Antis testified that, although Miller never sought permission to store pipe and building materials on the disputed strip, he allowed Miller to do so as a gesture of good...