Avery v. NashAvery v. Nash
This suit originated as a possessory action filed in March 1982 by Larry D. Avery against his neighboring property owner, Aaron Purvis Nash, and involves a strip of land located on the east side of the property to which Nash has record title, containing.19 acres and measuring 913.4 feet in length north and south and from 2 to 11 feet in width. Alleging that he had been in possession of the property for more than one year and that Nash had disturbed his possession by cutting a portion of a fence erected by him, Avery prayed to be maintained in possession of the disputed property. Nash filed an answer and reconventional demand denying Avery‘s allegations and asserting ownership of the disputed strip. Nash alleged that he acquired the property by inheritance from his parents who had owned and possessed it since 1930 and he prayed for judgment recognizing his ownership of the disputed property, thereby converting the action into a petitory action.
After trial the district court held that Nash established a prescriptive title to the ideal boundary between the respective properties by virtue of possession under color of title and that Avery failed to establish a 30-year prescriptive title to the disputed strip of land. From a judgment rejecting Avery‘s demands and recognizing the boundary line between the properties to be the ideal boundary as established by a survey filed into evidence, Avery appealed. For reasons expressed in this opinion, the judgment of the district court is affirmed.
On appeal, the appellant specifies that the trial court erred (1) in finding that Nash sustained his burden of proving ownership by title or acquisitive prescription; (2) in holding that Nash‘s possession was sufficient to establish a prescriptive title considering the fact that Avery had civil or corporeal possession for periods of 10 and 30 years; (3) in concluding that Avery could not tack the possession of his predecessors in title onto his own possession; and (4) in recognizing the boundary line between the properties to be the ideal boundary as established by the survey.
By asserting ownership in answer to Avery‘s possessory action, Nash converted the suit into a petitory action and judicially confessed Avery‘s possession.
Nash, as plaintiff in a petitory action against a defendant in possession of
Nash makes no claim that he established title good against the world or acquisition from a common author in title. The chain of title introduced by him does not stem from the sovereign or a common author and there is also a break in the chain of conveyances. Consequently, if Nash is to prevail he must rely on proof of acquisitive prescription. We conclude, as did the trial court, that Nash established ownership of the disputed strip by 10 years acquisitive prescription based on possession, corporeal, constructive and civil, to the limits of the property described in the deed by which his parents purported to acquire title, which title devolved to Nash by inheritance and a partition with his co-heirs.
The evidence establishes that after obtaining a deed to the property from the record owner, the Nash family moved onto the tract which includes the disputed strip in 1930 and began possession of all of the property described in their title. According to Nash, who was 16 years old at the time, there was at that point in time a 3-strand barbed wire fence along the ideal boundary between the Nash tract and the tract which Avery later acquired. A survey performed by a surveyor named Crowson one or two years after the Nash family moved onto the tract confirmed the barbed wire fence as the ideal boundary.
From 1930 until approximately 1935 the Nash family cultivated their property up to the fence along the ideal boundary. At that time, in connection with their plans to begin running cattle on the property, they erected a combination net and barbed wire fence on their property west of the old barbed wire fence then existing along the ideal boundary. Construction of the net and barbed wire fence was required because the fence along the boundary was in a state of disrepair. Because a thicket of underbrush and trees had grown up around the boundary fence, it was decided as a matter of convenience to place the net and barbed wire fence slightly over onto their property at the edge of the cultivated area rather than to attempt to clear the thicket and rebuild the old fence.
Nash testified that it was not his family‘s intention to abandon the small portion of their property between the two fence lines or to have the new net and barbed wire fence mark the boundary. After 1935, until the time of this dispute, the Nash family allowed the strip outside of the net and barbed wire fence to remain idle, except that Nash did cut some fence posts from timber growing on that strip and crossed it while hunting on his property. The Nash family continued to actively and corporeally possess the balance of their tract of land.
Avery acquired approximately 30 acres east of the Nash property in 1970, and constructed a new fence slightly east of and along the line of the net and barbed wire fence, which he assumed to be the boundary of his property. Avery bulldozed and cleared his property east of the fence, which was wooded until that time, and thereafter used it for pasture.
Although there was testimony by witnesses on behalf of Avery disputing the existence of the old 3-strand barbed wire fence along the ideal boundary line, the preponderance of the evidence is that such
In 1981 the Nash property was surveyed by A.D. Hullet, Jr., in connection with a partition of the Nash property among family members. After the survey and after Nash acquired full title to a part of the Nash property in the partition, he cut the fence which had been built by Avery with the intent of locating a new fence on the ideal boundary line. This litigation ensued.
Ownership of an immovable may be acquired by 10 years prescription when the possessor has been in good faith and held by a just title during that time.
Essentials of possession are the intention of possessing as owner and the corporeal possession of the thing.
In Whitley v. Texaco, Inc., supra, the court held:
“... Actual possession of part of the tract of land, with title to the whole, and intent to possess the whole, is possession of the whole; and when thus commenced, such possession is continued by a mere civil possession unless ousted by a counter actual possession of one year....
“When a person has once acquired actual possession, his intention may serve to preserve the possession, though he may have ceased to have the thing in actual custody; and the intention is always supposed where a contrary intention does not appear....
“A possessor does not lose possession against his consent unless he is forcibly expelled or unless the disturber usurps
possession and holds it for more than a year....”
That Nash had just title and was in good faith is not disputed. Good faith is always presumed.
Avery‘s possession of the disputed strip outside of the fence for 10 or 11 years commencing in 1970 when he built a new fence, did not serve to divest the Nash family of ownership. Since the strip is not contained within Avery‘s title, in order for him to prevail he must show that he and his ancestors in title possessed adversely and as owners beyond their title to a visible boundary continuously for 30 years in accordance with
The trial court was correct in fixing the boundary along the ideal boundary line in accordance with Nash‘s title, thereby implicitly recognizing Nash‘s ownership of the strip of land lying between the fence and the ideal boundary line.
For the reasons assigned, the judgment of the district court is affirmed at appellant‘s costs.
Affirmed.