Kizer v. Lilly

• Decision Date: 21 June 1985
• Docket Number: No. 84-CC-1509,84-CC-1509
• Citation: 471 So.2d 716
• Parties: Goldie Hause KIZER v. Fred LILLY, Jr.
• Court: Louisiana Supreme Court

Page 716

471 So.2d 716

Goldie Hause KIZER v. Fred LILLY, Jr.

No. 84-CC-1509.

Supreme Court of Louisiana.

June 21, 1985.

Dissenting Opinion June 25, 1985.

Ronald C. Kizer, Ronald C. Kizer, Jr., Kizer & Kizer, Baton Rouge, Richard Kilbourne, Clinton, for relators.

Ronald G. Coleman, Walton J. Barnes, Law Offices of Walton J. Barnes, Baton Rouge, for respondent.

WATSON, Justice.

Plaintiff, Goldie Hause Kizer, brought this possessory action, alleging possession of a servitude of passage on a twenty foot gravel roadway ¹ located on the northwestern boundary of land owned by defendant, Fred Lilly, Jr. According to her petition, the road offered Kizer's estate its "only access to a public highway," Louisiana Highway 412, and Lilly disturbed her use of the servitude by erecting a fence at the junction of the gravel road and Louisiana Highway 412. ² Kizer began using the servitude in the 1930's and its use by her and her lessees had allegedly been quiet and uninterrupted until defendant's fence was built on May 23, 1984.

The trial court overruled an exception of no cause of action by defendant. The Court of Appeal, First Circuit, granted a writ and ordered that judgment be entered sustaining defendant's exception of no cause of action, citing Broussard v. Booth 446 So.2d 974 (La.App. 3 Cir.1984). ³ A writ was granted to consider the question. 457 So.2d 1 (La., 1984).

LSA-C.C. art. 740 provides:

"Apparent servitudes may be acquired by title, by destination of the owner, or by acquisitive prescription."

The comments under this new article note that it changes the law by allowing prescriptive acquisition of apparent discontinuous servitudes but state that the provision is not retroactive. A right-of-way over a paved roadway was an apparent discontinuous servitude.

Assuming good faith and just title for purposes of the exception, the prescriptive period for the acquisition of an apparent servitude would be ten years. LSA-C.C. art. 742. ⁴ Professor A.N. Yiannopoulas ⁵ has discussed the effect of LSA-C.C. art. 740:

"The 1977 revision broadened the availability of acquisitive prescription by dispensing with the requirement of continuity. According to revised article 740 of the Civil Code, apparent servitudes may be created by prescription, even though they may have been considered discontinuous and therefore insusceptible of creation by prescription under the 1870 Code. Thus, in contrast with the 1870 Code, a right of passage exercised over a railroad track, a paved road, or any other construction regarded as an exterior sign of a servitude may be created by prescription. However, article 740 may not be applied retroactively. Therefore, the possession of a servitude that would be discontinuous under the 1870 Code does not give right to prescriptive rights except from the effective date of the new legislation." 43 La.L.Rev. 58, 59.

Under the 1870 Code, the servitude of passage over the gravel road would be an apparent one. LSA-C.C. art. 728. ⁶ The gravel road would constitute an apparent exterior work. Under the 1870 Code, a servitude of passage is discontinuous. LSA-C.C. art. 727. ⁷ The distinction between continuous and discontinuous servitudes has been criticized. See Yiannopoulas, supra, at p. 60. ⁸ It was nonetheless firmly embedded in the Civil Code until the 1977 revision and LSA-C.C. art. 740 is not retroactive.

Plaintiff's possession was disturbed on May 23, 1984, and her possessory action, alleging quiet and uninterrupted possession for the preceding year, comes within the amended codal articles on occupancy and possession effective January 1, 1983. She and her lessees allegedly exercised a servitude of passage, a quasi-possession, on the road for over a year immediately prior to the disturbance. LSA-C.C. art. 3421 ⁹. According to LSA-C.C. art. 3421, the rules governing possession apply by analogy to the quasi-possession of incorporeals. Thus, the possessory action is available to quasi-possessors.

LSA-C.C. art. 3435 ¹⁰ provides that discontinuous possession has no legal effect. However, the new codal definition of discontinuous possession is that which is "not exercised at regular intervals." LSA-C.C. art. 3436. ¹¹ Plaintiff's petition alleges that she and her lessees have used the gravel road as access to her land "on a regular basis," i.e., at regular intervals. Therefore, her possession has not been discontinuous.

Plaintiff's petition meets the requirements of a possessory action under LSA-C.C.P. art. 3658 as follows:

"To maintain the possessory action the possessor must allege and prove that:

"(1) He had possession [quasi-possession] of the immovable property or real right therein at the time the disturbance occurred;

"(2) He and his ancestors in title had such possession [quasi-possession] quietly without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;

"(3) The disturbance was one in fact or in law, as defined in Article 3659; and

"(4) The possessory action was instituted within a year of the disturbance."

In addition, quasi-possession of a servitude must be exercised "with the intent to have it as one's own." ¹² However, there is a presumption that one intends to possess as owner, ¹³ and intent may be alleged generally, rather than with particularity. ¹⁴ See Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.,1984). Intent to own the servitude can be inferred from plaintiff's petition. Louisiana has fact pleadings and it is not necessary to plead the theory of the case in a petition. Any doubt as to the sufficiency of a cause of action should be resolved in favor of petitioner. Weber v. H.G. Hill Stores Co., 210 La. 977, 29 So.2d 33 (1946). Since plaintiff's petition meets the requirements of LSA-C.C.P. art. 3658, the court of appeal erred in sustaining defendant's exception of no cause of action. ¹⁵

Therefore, the judgment of the court of appeal is reversed, the exception of no cause of action is overruled, and the matter is remanded to the trial court for further proceedings according to law.

REVERSED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

MARCUS, J., dissents for reasons assigned by DIXON, C.J.

DIXON, C.J., dissents with reasons.

BLANCHE, J., dissents and will assign reasons.

LEMMON, J., concurring.

The threshold issue is whether the possessor of a servitude which is susceptible of acquisition by acquisitive prescription may acquire the right to be maintained in possession by the passage of a period of more than one year, but less than the period required for acquisitive prescription. A second issue is whether plaintiff alleged sufficient facts to establish that she qualified as a possessor entitled to use the possessory action. Not at issue at this stage of the proceeding, but a problem underlying the determination of the present issues, is the effect and the value of a judgment which the plaintiff receives in a possessory action to maintain possession of a servitude.

Right to Use Possessory Action to Maintain Possession of a Servitude

Implicit in the recognition of the right to acquire an apparent servitude by prescription is the recognition of the right to possess the servitude. The Code of Civil Procedure, since its adoption in 1960, has authorized the possessory action for the possessor of immovable property or of a real right therein. Article 3655. The possession necessary for a possessory action is corporeal possession, which is the exercise of factual authority with the intent to own the thing. Of course, one cannot exercise true corporeal possession of a servitude because one cannot exercise physical control over an incorporeal. Nevertheless, one may exercise a right of servitude by means of material acts and of constructions such as fences, buildings and roads. 2 Yiannopoulos, Louisiana Civil Law Treatise--Property Sec. 211 (2nd ed. 1980).

The more difficult concept is that of continuous possession which is essential for both acquisitive prescription and possessory protection. Arguably, an apparent servitude is continually possessed when it is used regularly according to the nature of the servitude. See La.C.C. Art. 3436. Professor Yiannopoulos observed:

"Under the 1977 legislation, question may still arise as to the availability of possessory protection of the right to possess a nonapparent servitude or a servitude which under the regime of the Louisiana Civil Code of 1870 would be classified as discontinuous. It is submitted that under the 1977 legislation the possessory action is available for the protection of the right to possess servitudes created by title as well as all servitudes that may be acquired by acquisitive prescription. Thus, apparent servitudes, regardless of their classification as continuous or discontinuous under the prior law, or as affirmative or negative under the 1977 legislation, are susceptible of possession and may be protected by the possessory action. For example, a right of passage evidenced by exterior works may be acquired under the 1977 legislation by ten or thirty years' acquisitive prescription and the owner of the dominant estate may bring the possessory action for the protection of his right to possess such a servitude." 2 Yiannopoulous Sec. 214.

Therefore, a cause of action exists for a possessor of an apparent servitude to protect his right to possess the servitude by means of the possessory action.

Sufficiency of Petition

We granted certiorari principally to decide whether, under any circumstances, a possessor of an apparent servitude may use the possessory action to protect his right to possess the servitude. This is a pure question of law which is properly raised by an exception of no cause of action or a motion for summary judgment. On that issue, the court has ruled unanimously in favor of plaintiff.

The secondary issue involving this particular plaintiff's right to use the possessory action is a mixed question of law and fact which is more...