Hooper v. Hero Lands Co.

• Decision Date: 30 March 2016
• Docket Number: No. 2015–CA–0929.,2015–CA–0929.
• Parties: James H. HOOPER, Jr. et al. v. HERO LANDS COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

216 So.3d 965

James H. HOOPER, Jr. et al.

v.HERO LANDS COMPANY, et al.

No. 2015–CA–0929.

Court of Appeal of Louisiana, Fourth Circuit.

March 30, 2016.

Louis R. Koerner, Jr., Koerner Law Firm, Houma, LA, for Plaintiffs/Appellants.

Pivach, Pivach, Hufft, Thriffiley & Dunbar, L.L.C., Attorneys at Law, George Pivach II, Timothy Thriffiley, Francis J. Lobrano, Brad M. Driscoll, Law Offices of Francis J. Lobrano, Le Verrier Cooley, IV, Special Assistant Parish Attorney, Belle Chasse, LA, for Defendants/Appellees.

(Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN ).

PAUL A. BONIN, Judge.

There are ten lots of equal width. The most westerly one, Lot 26, is owned by Patsy and James Hooper, the plaintiffs. The other nine, Lots 27 through 35, are owned by Hero Lands Company, one of the defendants. According to the titles, the width of each lot is one arpent or 192 feet, which would mean that the total distance should be 1920 feet from the western boundary of Lot 26 to the eastern boundary of Lot 35. But the actual distance between the boundaries is 2040.77 feet, a difference of 120.77 feet.

This difference is the genesis of this controversy. When Allen Hero authorized the Plaquemines Parish Government to dig a thirty-five foot wide drainage canal on the company's property, he directed that it be situated at the most westerly boundary of Lot 27, a boundary line shared with the Hoopers' Lot 26. In situating the proposed canal, Hugh McCurdy III, a professional surveyor, measured to the boundary line for Lots 26 and 27 using the title measurement of 192 feet. Based upon that measurement, Plaquemines Parish entered onto the site and began preparations for digging the canal, including the clearing of trees.

The Hoopers sued the company, the parish, Mr. Hero and the surveyor, claiming that they had trespassed onto the Hoopers' property. In addition to the trespass action, the Hoopers asserted a possessory action and a boundary action along with their request for injunctive relief. Further, the Hoopers argued that all of the canal preparations occurred on their property either because of their title to Lot 26 or because they had acquired some or all of Hero's Lot 27 by ten-year or thirty-year prescription.

The company and Mr. Hero filed a motion for summary judgment by which they sought, among other relief, the judicial fixing of the boundary line for Lots 26 and 27. They also sought a finding that the Hoopers had waived their possessory claims by improperly cumulating a possessory and petitory action. The trial judge denied the motion in part, finding that the Hoopers had not improperly cumulated actions and thus did not waive their possessory claims. The judge granted the motion in part finding that the Hoopers had not acquired the property by either a ten—or thirty-year acquisitive prescription. To set the boundary, the trial judge apportioned the 120.77 feet equally among the ten lots, with 12.077 feet per lot, resulting in each lot having an actual width of 204.077 feet. The trial judge then fixed the boundary between Lots 26 and 27 as 204.077 feet, beginning from the dividing line between Lots 25 and 26 and extending eastward. In partially granting the summary judgment, the trial judge recognized that the canal preparations would have been conducted, to some extent, on the supplemental 12.077 feet of the Hoopers' Lot 26 and, accordingly, reserved the trespass action for a trial on the merits.

The judgment was subsequently amended for the sole purpose of recognizing that the Hoopers had proven a right to possess the property, in light of their demand for relief on the possessory claim. The remainder of the judgment was left unchanged. The Hoopers appealed.¹

We have reviewed de novo the resulting partial summary judgment and conclude that the Hoopers, by cumulating both possessory and petitory claims, converted their suit to a petitory action, thereby waiving their possessory claims. Thus, the trial judge was legally incorrect by finding otherwise, and consequently, his ruling finding the Hoopers proved a right to possess is without effect. In all other respects, we conclude the trial judge was legally correct both in fixing the boundary and in rejecting the Hoopers' alternative contentions that their title or possession trumped Hero's title ownership. Accordingly, we amend the judgment to delete that portion which recognizes the Hoopers' possession and, as amended, affirm the judgment and remand for further proceedings in the trial court.

We explain our decision in considerable detail below.

I

In this Part, considering that we are reviewing a ruling on summary judgment, we describe the undisputed facts, beginning with an historical account of the property.

A

The ten adjacent lots in this case are part of the former plantation of Pierre Cazelar (also spelled Cazalar, Cazalard, and Cazelard in the record). The plantation was subsequently acquired by the City of New Orleans, which commissioned Louis Pilie, a surveyor, to subdivide the property into forty-four lots spanning across Orleans, Jefferson, and Plaquemines Parishes. The Pilie plat does not contain any specific measurements, but, it does indicate that each lot is of equal width. In 1860, the city held a public auction sale, the documentation of which reflects, with reference to the Pilie plan, that each lot was intended to be one arpent, or approximately 192 feet, in width. At the sale, the Hoopers' ancestor in title, Alphonse Camus, purchased Lots 17–26, and Hero's ancestor in title, Pierre Cazelar, Jr., purchased Lots 27–44. In both respective deeds to Camus and Cazelar, the lots are described as "measure[ing] each one arpent front on the public road." In subsequent sales transferring Lot 26 and Lots 27–35 throughout the years, the deeds consistently describe the ten lots in measurements of arpents and refer to the Louis Pilie plat of 1860.

Eventually, Burmaster Land & Development Company ("Burmaster") acquired Lot 26 and Hero Lands Company ("Hero") acquired Lots 27–35. Importantly for our purposes, from 1974 until December 31, 1989, Hero leased to Burmaster property beginning at the dividing line between Lots 26 and 27 and extending up to 150 feet easterly into Lot 27.

Burmaster later subdivided Lot 26, and in 1992, sold tracts B and C of Lot 26 to the Hoopers. The dividing line between these two tracts was the line between Jefferson and Plaquemines Parishes, and the tracts ran the full width of Lot 26. The deed contains no mention of arpents; rather, it states that the width of Lot 26 is 192 feet. The Hoopers, in agreement with Burmaster, declined to request a survey prior to the conveyance. The Hoopers' deed contains a warranty of title as to the tracts of Lot 26, but also conveys without warranty, "all property that Burmaster Land & Development Co., Inc. may own lying easterly" of Lot 26.

Over the years, surveys of the property have revealed that the distance between the western boundary of Lot 26 and the eastern boundary of Lot 35 is actually 2040.77 feet rather than ten arpents (1920 feet), measured by distinct stone monuments at either end, which have been recovered by several different surveyors.

There is, moreover, no boundary agreement between the parties as to the line between Lots 26 and 27. Cf. La. Civil Code arts. 789, 795.²

II

In this Part, in light of the appellants' several complaints about procedural errors, which are more fully discussed in Part VI, post, we begin with a discussion about the nature of this lawsuit, and the intersection between possessory, petitory, and boundary actions and, specifically, how they affect the case herein.

A

As an outset matter, we are impelled to point out that "[t]he ownership and the possession of a thing are distinct." La. Civil Code art. 481. "Ownership exists independently of any exercise of it and may not be lost by nonuse." Ibid. "Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law." La. Civil Code art. 477. "Possession is the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name." La. Civil Code art. 3421.

The Louisiana Supreme Court has emphasized the distinction between real actions for possession and ownership and explained that a possessory action protects possession and a petitory action protects ownership. See Todd v. State, Through Dept. of Natural Res., 474 So.2d 430, 432–33 (La.1985). The rights and burden of proof attendant to a possessory action are distinct and unique from those in a petitory action. See ibid. A plaintiff is thus prohibited from cumulating possessory and petitory actions in the same suit, or pleading them in the alternative, and if he does, then the possessory action is waived and the suit proceeds as a petitory action. See La. C.C.P. art. 3657 ; see also Phipps v. Schupp, 14–0672, p. 30 (La.App. 4 Cir. 3/18/15), 163 So.3d 212, 229, n. 10 (plaintiff filed possessory action; subsequent pleading asserting ownership, even if inadvertent, converted it to petitory action); but see Plaquemines Parish Gov't v. Schenck, 15–0127, 15–0128, 15–0129 (La.App. 4 Cir. 12/9/15), 182 So.3d 1122 (finding legal ownership as the sole issue in appeal from judgment on possessory action), writ denied, 16–0045 (La.2/26/16), 187 So.3d 1004, 2016 WL 903014. Such rules result from the intention to keep the trial of the issues of possession and ownership as separate as possible. See La. C.C.P. art. 3657, Official Revision Comment (a).

In their third amended petition, intended as a substitute for all prior petitions, the Hoopers contended that they alone were in possession of surplus property, resulting from the 120.77–foot differential, and had satisfied the requisites to maintain the possessory action. See La. C.C.P....