Ricko Constr. Inc. v. Dubois

• Decision Date: 09 February 2011
• Docket Number: No. CA 10–1062.,CA 10–1062.
• Citation: 57 So.3d 564
• Parties: RICKO CONSTRUCTION, INC.v.Owen DUBOIS, et al.
• Court: Court of Appeal of Louisiana — District of US

57 So.3d 564

RICKO CONSTRUCTION, INC.

v.Owen DUBOIS, et al.

No. CA 10–1062.

Court of Appeal of Louisiana, Third Circuit.

Feb. 9, 2011.

Norval J. Rhodes, Montgomery, LA, for Defendants/Appellees, Owen Dubois, L.V. Fredieu Bryant.Michael John O'Shee, Randall Lee Wilmore, Gold, Weems, Bruser, Sues & Randell, Alexandria, LA, for Plaintiff/Appellant, Ricko Construction, Inc.Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.EZELL, Judge.

[3 Cir. 1] Ricko Construction, Inc. appeals a trial court judgment dismissing its claim to be recognized as owner of a disputed tract of property in Grant Parish along Sugarhouse Bayou. Ricko filed suit for damages to its property, claiming ownership of the property by thirty-years acquisitive prescription.

FACTS

In 1972, L.V. and Earl Bryant purchased some property in Grant Parish located along Sugarhouse Bayou and Louisiana Highway 8. The Bryants lived in a house located on the property while they built a house on Patterson Road. In 1974, the Bryants sold 0.48 acres to Cassie and O.D. Slayton. This portion of the property contained the house. Mr. Bryant was Mr. Slayton's uncle. The Bryants continued to own the property on the eastern boundary. In 1997, after her husband died, Mrs. Slayton moved out. At the time, their son Charles Slayton continued living in the home. During the years 2000–2002, the house was vacant. Within a year, the house was demolished.

In 2004, another son, Willie Slayton, bought the property from his mother. At that time he would bring a travel trailer to use on the property. In April 2007, Willie leased the property to Ricko and eventually sold the property to Ricko in November 2008.

In September 2007, Owen Dubois, who owned the property across the street and to the west of the disputed tract, erected a fence across the backside of the property owned by Ricko, cutting off access to Sugarhouse Bayou. Mr. Dubois did this at Mrs. Bryant's direction. In October 2008, Mrs. Bryant had Mr. Dubois remove a fence on the eastern boundary of the property and destroy some concrete steps that went down to the water that Willie had built on property.

[3 Cir. 2] Ricko Construction and its president and owner, Roy Bennett, filed suit in December 2008 against Mrs. Bryant and Mr. Dubois seeking damages. A bench trial was held on January 27, 2010.

The trial court issued written reasons for judgment and found that Mr. Bennett had no right of action since Ricko, and not Mr. Bennett, is the owner of the property. The trial court found that the deed conveying the property to Ricko did not contain language transferring title to the land below the “high bank.” The court further found that Ricko had not established adverse possession to establish title by acquisitive prescription of thirty years.

Ricko filed the present appeal claiming that the trial court should have recognized Ricko as the owner of the disputed property by thirty-years acquisitive prescription. In the alternative, Ricko argues that the trial court erred in refusing to rule on the navigability of Sugarhouse Bayou so as to allow Ricko to use the bank as a public thing.

BURDEN OF PROOF

Ricko claims that the action became a petitory action when Mrs. Bryant answered the suit claiming she was owner of the disputed property. Ricko argues that the trial court erred in finding that Mrs. Bryant had established “title good against the world” citing La.Code Civ.P.art. 3657 and Duck v. Guillory, 98–1358 (La.App. 3 Cir. 3/3/99), 737 So.2d 91, writ denied, 99–913 (La.4/30/99), 743 So.2d 210.

Ricko filed an action in trespass. An action of trespass is neither a petitory, nor a possessory, nor a boundary action. Harvey v. Havard, 287 So.2d 780 (La.1973). Therefore, the action is not converted into a petitory action, and the issue becomes who has better title. Id.; Hayward v. Noel, 225 So.2d 638 (La.App. 1 Cir.1969), writ refused, 254 La. 857, 227 So.2d 595 (1969); [3 Cir. 3] Delacroix Corp. v. Dean, 04–899 La.App. 4 Cir. 4/13/05), 901 So.2d 1188. “[T]itle to the land is a pivotal issue simply because it is the foundation for the action and the plaintiff in such action bears the burden of proving his ownership.” Brown v. Bedsole, 447 So.2d 1177, 1181 (La.App. 3 Cir.), writ denied, 450 So.2d 358 (La.1984).

Mrs. Bryant was not required to prove “title good against the world,” and therefore the issue we must address is whether Ricko had better title than Mrs. Bryant.

THIRTY–YEARS ACQUISITIVE PRESCRIPTION

There is no dispute in this case that Ricko and its ancestors in title did not have just title to the disputed property. However, Ricko argues that its ancestors in title exercised acts of adverse possession to the disputed area to establish ownership by prescription.

“Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.” La.Civ.Code art. 3446. “Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.” La.Civ.Code art. 3486. “For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed.” La.Civ.Code art. 3487.

“To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing.” La.Civ.Code art. 3424. “Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing.” La.Civ.Code art. 3425. “One is presumed to intend to possess as owner unless he began to possess in the name of and for another.” La.Civ.Code art. 3427. “In the absence of title, one has possession only of the area he actually possesses.” La.Civ.Code art. 3426.

[3 Cir. 4] “When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles.” La.Civ.Code art. 794. “If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.” Id. Privity of contract or estate is an essential prerequisite to tacking on the possession of an ancestor in title for prescriptive possession purposes. Marks v. Zimmerman Farms, LLC, 44,279, 44,280 (La.App. 2 Cir. 5/20/09), 13 So.3d 768.

The party seeking to establish title to property through acquisitive prescription bears the burden of proof. Brooking v. Vegas, 03–1114 (La.App. 3 Cir. 2/4/04), 866 So.2d 370, writ denied, 04–577 (La.4/30/04), 872 So.2d 491.

The Slaytons bought the property in 1974; so if there were sufficient acts of possession over the disputed area for thirty years without interruption, then ownership of the property would have vested by virtue of acquisitive prescription in 2004.

What constitutes possession depends primarily on the nature of the property. “The quality of possession required in a particular case depends not only on its classification as good or bad faith possession, but also on the type of land in dispute. Liner v. Louisiana Land & Exploration Co., supra [319 So.2d 766] at 772 [La.1975]. The acts of possession required in the case of farm land must be of a greater quality than in the case of woodland; and, a greater quality of possession is required in the case of woodland than in the case of swamp or marsh land. Liner, supra at 772. Further, where an individual claims by corporeal possession alone and without title, he must show an adverse possession within enclosures. Norton v. Addie, supra [337 So.2d 432] at 436 [La.1976]. “ ‘Enclosed’ does not necessarily mean ‘fenced in.’ ” City of New Orleans v. New Orleans Canal, Inc., 412 So.2d 975, 981 (La.1982).

“What the court means by ‘enclosures', as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with [3 Cir. 5] certainty the boundaries or limits thereof....” Hill v. Richey, 221 La. 402, 59 So.2d 434, 440 (La.1952).

Chevron U.S.A. Inc. v. Landry, 558 So.2d 242, 244 (La.1990).

There are clear enclosures in this case that were in existence when the Bryants bought the property. The eastern and western sides of the property were enclosed with fences, with a natural boundary, Sugarhouse Bayou, on the northern side. Highway 8 bounded the property on its southern side. These enclosures remained when the Bryants sold the property to the Slaytons.

Testimony on behalf of Ricko established that it was under the impression it bought the property all the way to the water. To establish corporeal possession, Ricko introduced the testimony of Willie Slayton, whose family acquired the home site in 1974 when he was twelve years old. He testified that the property was bounded on the east and west by barbed wire fences. The fences ran from a concrete marker on the property's boundary with Louisiana Highway 8 to the water's edge behind the house. Mr. Dubois owned the property on the west side of the fence, and the Bryants owned the property on the east side of the fence.

Willie testified that he mowed the bank with a push lawnmower many times as a young boy. His family barbequed in the disputed area, and they fished in the bayou from the bank. Willie testified that, at no time, did either of his parents acknowledge to him that someone had an ownership interest in the property. When he bought the property in 2004, he built some concrete steps on the bank which went close to the water's edge. He also moved a travel trailer on the property since the original house had been demolished around 2...