Campbell v. Cerdes, 2013 CA 2062.

CourtCourt of Appeal of Louisiana (US)
Citation181 So.3d 41
Docket NumberNo. 2013 CA 2062.,2013 CA 2062.
Parties Elvin A. CAMPBELL, III, and Patti R. Campbell v. Julius W. CERDES, Jr., Melissa Poche Cerdes, and Duke R. Kent.
Decision Date10 August 2015

Scott H. Sledge, Hammond, LA, for Plaintiffs/Appellants, Elvin A. Campbell III and Patti R. Campbell.

Charles V. Genco, D. Mark Valentine, Cory B. Blunk, Amite, LA, for Defendants/Appellees Julius W. Cerdes, Jr., Melissa Poche Cerdes, and Duke R. Kent.

Before McDONALD, CRAIN, and HOLDRIDGE, JJ.

CRAIN, J.

The plaintiffs in this proceeding, which originated as a possessory action, appeal a judgment declaring the defendants to be owners of certain immovable property and denying the plaintiffs' claim for damages. Maintaining the appeal, we find that the defendants failed to prove their ownership of the disputed property, reverse the trial court's judgment, in part, and render judgment recognizing and restoring the plaintiffs' possession of the property, and awarding them damages.

FACTS

The disputed property, located in Tangipahoa Parish, measures 50 feet wide by 275 feet long and is identified in the following survey excerpt as "Assumed 50' R/W Main St.," with the eastern boundary of the parcel not depicted:

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The property is bounded on the north by property owned by the plaintiffs, Elvin A. Campbell, III, and Patti R. Campbell, and to the south by two parcels, one which is owned by the defendants, Julius W. Cerdes, Jr., Melissa Poche Cerdes, and Duke R. Kent (collectively "Cerdes"). The Cerdes parcel is labeled "(Dendinger)" on the above survey and is contiguous with the southern boundary of the disputed property for approximately 144 feet. The disputed property is near the Ponchatoula River and can be used to access the river.

Although the record does not reflect the original ownership of the disputed property, land maps suggest that it was an extension of Wadesboro Road (also identified as "Main St." on some maps) that was never dedicated to public use. Wadesboro Road is a paved road that approaches the disputed property from the east. When the paved roadway reaches the eastern edge of the disputed property, the road turns right (to the north) and runs along the eastern boundary of the Campbell parcel.

The Campbells acquired their property on November 26, 1996. Based on representations from their vendor, Mr. Campbell believed that the disputed property was included in their deed. Shortly after acquiring his property, Mr. Campbell cleaned and cleared the disputed property, which he described as "completely grown up" and littered with discarded items such as water heaters and furniture. Mr. Campbell continued to maintain the disputed property; and, in 2003, he constructed a driveway on it that was used to access his property and residence.

In January of 2011, the Cerdes purchased the Dendinger parcel on the south side of the disputed property from Theodore J. Dendinger, Jr., Kenneth Lee Dendinger, and Barbara Dendinger Acton (collectively "Dendinger siblings"). The act of conveyance included a "quitclaim" of the Dendinger siblings' interest in the disputed property, which, according to the deed, "they, or their ancestors in title, have used ... in excess of thirty (30) years."

Also in 2011, Mr. Cerdes approached Mr. Campbell to inquire about the location of the southern boundary of the Campbell parcel. Mr. Campbell produced a map indicating that his property included the disputed property. Mr. Cerdes then hired a surveyor to locate and mark the southern boundary of the Campbell parcel. That survey revealed that the Campbells' boundary was along the northern boundary of the disputed property, meaning the disputed property was not included in the property conveyed to the Campbells. Shortly thereafter, Mr. Cerdes undertook measures to block the Campbells from using the disputed property. Mr. Cerdes removed a culvert that was a part of the Campbells' driveway, rendering it unusable, and cleared the disputed property all the way to the river, building up the roadbed beyond the Campbell's driveway. The work was undertaken to facilitate access to a boat repair business started by the Cerdes on the property abutting the Ponchatoula River.

The Campbells filed a possessory action against the Cerdes, alleging that the Campbells had possessed the disputed property since 1996 and that the defendants had disturbed their possession. The Campbells requested that they be restored and maintained in possession of the property and be awarded damages. The Cerdes answered and reconvened, claiming they were entitled to be recognized as owners of the disputed property because their ancestors in title had possessed it for thirty years without interruption.

The matter proceeded to a bench trial. In support of their claim of ownership, the Cerdes introduced the 2011 deed containing the quitclaim of the disputed property and the warranty conveyance of the Dendinger parcel south of the disputed property. That deed is the only documentary evidence admitted at trial of any title to either the disputed property or the adjacent Dendinger parcel.

The Cerdes also introduced the discovery deposition of Theodore J. Dendinger, Jr., who testified that he believed the disputed property had always been owned by the Dendinger family. His earliest memory of the use of the disputed property dated back to 1948 or 1949, when his family began using it to access the river with trucks for the purpose of loading and transporting shells delivered by boats. The shells were used by the Dendingers to improve roads on other property owned by them.

At that time, according to Mr. Dendinger, the property was owned by Dendinger, Inc. Mr. Dendinger testified that the property was then acquired by his father in 1961 and was leased for approximately ten years to a tenant who sold the shells commercially. The written leases admitted into evidence contain terms from 1961 to 1964 and included only that portion of the disputed property directly north of the Dendinger parcel. Mr. Dendinger testified that he believed he and his siblings acquired the property by donations from their parents in 1981. He offered little testimony about the use of the property after that time; however, he did acknowledge being informed that Mr. Campbell "had used a machine" to make some changes to the property and was aware that Mr. Campbell was using the property as a driveway.

The Campbells presented testimony from numerous witnesses who stated that they, as well as others, commonly used the disputed property as a boat launch from the 1940s through the 1980s. One witness estimated that he used the property for that purpose on approximately 200 occasions. A member of a family that previously owned the Campbell parcel testified that he and his family accessed their property through a driveway located on the disputed property from the 1940s through 2000.

Mr. Campbell also testified about his use of the disputed property after acquiring his property in 1996. Mr. Campbell believed that the disputed property was included in his deed and that it could be used for access. He cleared the tract and eventually built a driveway on it that was used to access his residence until 2011, when Mr. Cerdes blocked the driveway at its entrance to the Campbell parcel.

After taking the matter under advisement, the trial court issued written reasons finding that the Cerdes had "establish[ed] their ownership of the subject tract and Campbell [had] failed to provide adequate evidence which outweighs the evidence of [the] Cerdes['] ownership." The trial court subsequently signed a judgment that declared the Cerdes to be the owners of the disputed property and denied any damages to the parties. The Campbells now appeal and assign as error the trial court's finding that the Cerdes acquired the disputed property by adverse possession, the trial court's application of the Civil Code article permitting "boundary tacking," and the denial of their claim for damages.1

DISCUSSION

This proceeding is a real action. La.Code Civ. Pro. Art. 422. Although it began as a possessory action, by asserting title and requesting that the court recognize their ownership, the Cerdes converted the matter to a petitory action and judicially confessed the possession of the disputed property by the Campbells. See La.Code Civ. Pro. art. 3657 ; Dickerson v. Davis, 10–0776 (La.App. 1 Cir. 10/29/10), 2010 WL 4273178, *2. The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff's ownership. La.Code Civ. Pro. art. 3651. Because the Campbells are in possession of the disputed property, the Cerdes were required to prove that they acquired ownership of that property from a previous owner or by acquisitive prescription.See La.Code Civ. Pro. art. 3653(1) ; La. Civ.Code art. 531.

The Cerdes contend that they acquired ownership through the quitclaim deed from the Dendinger siblings, who allegedly owned the property by virtue of thirty year acquisitive prescription. As explained hereinafter, this contention requires evidence that (1) the Dendinger siblings themselves possessed the disputed property for thirty years, or (2) the Dendinger siblings and their ancestors in title possessed the disputed property for thirty years. We first review the record to determine whether it reasonably supports a finding that the Dendinger siblings themselves possessed the disputed property for thirty years without interruption.

A possessor lacking good faith or just title may acquire prescriptive title by possessing the immovable property for thirty years with the intent to possess as owner. See La. Civ.Code art. 3486. Such possession confers prescriptive title upon the possessor only when it is continuous, uninterrupted, peaceable, public and unequivocal, and confers title...

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4 cases
  • Williams v. Richardson
    • United States
    • Court of Appeal of Louisiana — District of US
    • November 1, 2017
    ...or to show that the vendee was in reality some other person than the person named in the act of sale. Campbell v. Cerdes, 2013-2062 (La. App. 1st Cir. 8/10/15), 181 So.3d 41, 49, writ denied, 2015-1658 (La. 10/30/15), 180 So.3d 302. Moreover, the parol evidence rule has been applied by our ......
  • Smith v. Felton
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 6, 2017
    ...thirty years with the intent to possess as owner. See La. C.C. art. 3486 ; Campbell v. Cerdes , 13-2062, p. 7 (La.App. 1 Cir. 8/10/15), 181 So.3d 41, 47, writ denied , 15-1658 (La. 10/30/15), 180 So.3d 302. Whether a party has possessed property for purposes of thirty-year acquisitive presc......
  • Denoux v. Grodner
    • United States
    • Court of Appeal of Louisiana — District of US
    • June 3, 2020
    ...such as property damages, including damages to repair and restore the property to its prior condition. Campbell v. Cerdes, 2013-2062 (La. App. 1 Cir. 8/10/15), 181 So.3d 41, 50-51, writ denied, 2015-1658 (La. 10/30/15), 180 So.3d 302. A plaintiff who prevails in a possessory action is also ......
  • Giroir v. Thomas
    • United States
    • Court of Appeal of Louisiana — District of US
    • March 29, 2018
    ...LeBlanc v. Stevenson, 00-0157, p. 6 (La. 10/17/00), 770 So.2d 766, 771-72; Campbell v. Cerdes, 13-2062, p. 15 (La.App. 1 Cir. 8/10/15), 181 So.3d 41, 51, writ denied, 15-1658 (La. 10/30/15), 180 So.3d 302. The Agreement provides that if Thomas becomes 90 days delinquent, Giroir shall have t......

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