City of New Orleans v. New Orleans Canal, Inc., 66860

• Decision Date: 16 October 1981
• Docket Number: No. 66860,66860
• Parties: CITY OF NEW ORLEANS v. NEW ORLEANS CANAL, INC., et al.
• Court: Louisiana Supreme Court

Page 975

412 So.2d 975

CITY OF NEW ORLEANS v. NEW ORLEANS CANAL, INC., et al.

No. 66860.

Supreme Court of Louisiana.

Oct. 16, 1981.

On Rehearing March 1, 1982.

Rehearing Denied April 30, 1982.

William J. Wegmann, William J. Wegmann, Jr., of Law Office of William J. Wegmann, New Orleans, for defendants-applicants, A.N. Yiannopoulos, Baton Rouge, of counsel.

Salvador Anzelmo, Acting City Atty., Jack P. Panno, Asst. City Atty., John F. Fox, Jr., New Orleans, Amicus Curiae, for plaintiff-respondent.

WATSON, Justice. ^*

This is a possessory action in which plaintiff, the City of New Orleans, contends that defendants ¹ have disturbed its possession of certain real property. LSA-C.C. art. 3455. ² A trial court judgment in favor of the City of New Orleans was amended and affirmed. City of New Orleans v. New Orleans Canal, 378 So.2d 995 (La.App. 4 Cir. 1979). A writ was granted to review the judgment of the Court of Appeal, 381 So.2d 1221 (La., 1980).

FACTS

The strip of property in dispute is forty feet wide and approximately 7,200 feet long. It is bounded on the south by Polk Avenue and on the north by Robert E. Lee Boulevard. On the east is the right-of-way of West End Boulevard. On the west there is a sixty foot wide strip of land which belongs to New Orleans Canal, Inc., a defendant. There is no line of demarcation between the forty foot and sixty foot strips. Between the sixty foot strip and Pontchartrain Boulevard lies a tract of land two hundred and forty feet wide which belongs to the State of Louisiana. The area between West End and Pontchartrain Boulevards is vacant. The City has mowed the grass and picked up the trash, thereby maintaining it as a neutral zone. The City has also installed cross streets, sewerage and utility lines between the two boulevards. The Court of Appeal concluded that the City's maintenance of the entire area established possession of the lesser included forty foot strip.

ISSUE

The two-point issue is whether the City: (1) intended to possess the property as owner; and (2) exercised corporeal possession. LSA-C.C. art. 3436. ³

CONCLUSION

A municipality has the right to expropriate private property for a public purpose after payment of just compensation to the owner. Art. 1, Section 4, Louisiana Constitution of 1974. However, possession is frequently a matter of fact rather than right. LSA-C.C. art. 3450. ⁴ A private corporation may acquire possession through the agency of those administering its affairs. LSA-C.C. art. 3440. ⁵ Similarly, a municipality can be a bad faith possessor of property without having any color of title. LSA-C.C. art. 3452. ⁶ The question of ownership is not at issue in a possessory action. LSA-C.C. art. 3455, supra. Since ownership is not being decided, defendants' property is not being "taken". There is no violation of the constitutional protections extended to private property.

Defendants contend that this suit, filed in 1964, is governed by the St. Julien doctrine. St. Julien v. Morgan Louisiana & Texas Railroad Co., 35 La.Ann. 924 (1883) "appears to be petitory" in nature. 35 La.Ann. 924. It held that a corporation with the power of expropriation can acquire a servitude by unopposed use and occupancy. St. Julien was overruled prospectively in Lake, Inc. v. Louisiana Power & Light Company, 330 So.2d 914 (La., 1976). The St. Julien doctrine is inapplicable here where the only issue is possession. When the question of ownership is litigated, the extent of any rights acquired by the City under the St. Julien doctrine can be considered.

Defendants also rely on LSA-C.C. arts. 3489 and 3490. Those articles concern the possession necessary for ten years' acquisitive prescription to commence. That possession is tantamount to good faith possession. It requires that the possessor hold the thing "in fact and in right as owner." ⁷ However, even a bad faith possessor, one who has no right or title to the thing, can maintain a possessory action. LSA-C.C. art. 3454. ⁸

The type of possession needed to maintain a possessory action is "factual authority over a thing with the intent to own it." 2 La.Civ.Law Treat. (Yiannopoulas ⁹) 2d Edition 211 at page 564. The showing required to denote an owner's control differs according to the nature of the property. Hill v. Richey, 221 La. 402, 59 So.2d 434 (La., 1952). The question is one of fact in each case. South Louisiana Land Co. v. Riggs Cypress Co., 119 La. 193, 43 So. 1003 (La., 1907). A fenced enclosure is not sacramental as long as the limits of possession are clearly delineated. Hill v. Richey, supra. Cutting grass on a right-of-way shows possession even though a portion of the enclosing fence has been removed. Texas & Pac. Ry. Co. v. Burch, 197 La. 160, 1 So.2d 64 (La., 1941).

The question is not whether the City owns the disputed strip of land, but whether it has exercised an owner's dominion over it. Unquestionably, it has. Construction and repair of streets and utilities are acts of possession. No one opposed these unequivocal and continuous activities by the City. Compare Reymond v. City of Baton Rouge, 145 La. 162, 82 So. 75 (La., 1919). The City has consistently treated the property as its own and has improved it without permission from any other party. In improving the property, the City has manifested the necessary intention to possess as owner. The City's acts of possession were apparent to all. They took place in an extremely public and visible location. Compare Carrere v. City of New Orleans, 162 La. 981, 111 So.2d 393 (La., 1926). To a passerby, the entire area has borne the aspect of a public square or neutral ground. The City has maintained the expanse in a manner appropriate to its nature by mowing the grass and picking up the trash. The tract bounded by West End, Pontchartrain and Robert E. Lee Boulevards and Polk Avenue has been in the possession of the City of New Orleans. The possession of the larger tract necessarily included possession of the lesser strip in dispute.

For the foregoing reasons, the judgment of the Court of Appeal is affirmed.

AFFIRMED.

DIXON, C. J., and DENNIS, J., dissent with reasons.

CALOGERO, J., dissents and assigns reasons.

DIXON, Chief Justice (dissenting).

I respectfully dissent.

The majority opinion concludes on a confusing note: "The tract bounded by West End, Pontchartrain and Robert E. Lee Boulevards and Polk Avenue has been in the possession of the City of New Orleans. The possession of the larger tract necessarily included possession of the lesser strip in dispute."

There was no effort by the City to prove, and no proof adduced, that it possessed the "larger tract" as owner. The only act of possession by the City in the year preceding this suit was apparently the cutting of grass. The City made no distinction among the three tracts involved when it cut the grass. It mowed all three tracts. For mowing the largest tract (the 240 foot tract which is said to be owned by the state) the record indicates that the City probably billed the state for the mowing. Therefore, the mowing of the greater part of this tract of land was never intended as an act of possession. The City mowed, but sought payment from the owner (the state) for the mowing. This error in the majority's opinion might not be fatal to its conclusion, but it is wrong to find that "the possession of the larger tract necessarily included possession of the lesser strip in dispute."

The fundamental error in the majority opinion (which requires a different conclusion) is that the record does not show acts of possession sufficient to support a possessory action. ¹

"To enable one to plead the prescription treated of in this paragraph, it is necessary that the possession be distinguished by the following incidents:

"1. That the possessor shall have held the thing in fact and in right, as owner; when, however, it is only necessary to complete a possession already begun, the civil possession shall suffice, provided it has been preceded by the corporal possession.

"2. That the possession shall have been continuous and uninterrupted, peaceable, public and unequivocal; a clandestine possession would give no right to prescribe; but he who possesses by virtue of a title can not be considered as a clandestine possessor, for his title leads to the supposition that the possession commenced in good faith, and that is sufficient to enable him to plead prescription." C.C. 3487.

"The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner." C.C. 3500.

The land involved here is flat and vacant, and, except for being unoccupied, identical with that across West End Boulevard and Pontchartrain Boulevard, which is completely occupied with buildings.

Acts of possession that are necessary vary with the nature and situation of the thing possessed. Ellis v. Prevost, 13 La. 230 (1839). Cases involving swamp and timber land have held the cutting of trees and construction of roads to be sufficient. See South Louisiana Land Co. v. Riggs Cypress Co., 119 La. 193, 43 So. 1003 (1907) and Long v. Chailan, 196 La. 380, 199 So. 222 (1940). Execution of an oil and gas lease, subsequent drilling and payment to the state conservation commission for care of the marshland were found to be acts of possession in Chamberlain v. Abadie, 48 La.Ann. 587, 19 So. 574 (1896). In Liner v. Louisiana Land and Exploration Co., 319 So.2d 766 (La.1975), plaintiff had trapped and burned the marsh yearly, marked boundaries with stakes, raised cattle and actively prevented dispossession by the defendant. The court found "external and public signs" of possession. The importance of establishing boundaries was noted by the court in Boagni v. Pacific Imp. Co., 111 La. 1063, 36 So. 129 (1904), Leader Realty Co. v. Taylor, 147 La. 256, 84 So. 648 (1920) and Labarre v. Rateau, 210 La. 34, 26 So.2d 279 (1946).

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