Crain v. GravesCrain v. Graves
Lead Opinion
This matter is again before us on appeal by defendant from a judgment overruling his plea of acquisitive prescription of ten years to the north half of a piece of woodland described as:
A certain tract of land in Natchitoches Parish, Louisiana, containing 56 acres, more or less, being a strip measuring 14 chains East and West on the west side of the Southwest Quarter of Section 18, Township 11 North, Range 8 West, Louisiana Meridian.
The facts out of which this litigation arose are fully set forth in our previous opinion reported in
The substantial issue is whether defendant Graves’ possession has been sufficient to support this plea of ten years prescription. The facts show (as we held in our prior decision) that Mrs. Virginia Crain, the plaintiffs’ ancestor in title, acquired the north half of this 56-acre tract in an act of partition dated July 30, 1898, this together with a much larger tract of land lying adjacent to and west of the 56-acre tract and that plaintiffs have a valid record title to the property in dispute. Plaintiffs and their ancestors in title have had continuous corporeal possession since 1898 of at least portions of this larger tract, although they have had only constructive possession of the 28 acres of woodland in dispute here.
Defendant acquired his title to the 28 acres in dispute by purchase from the Commercial National Bank of Shreveport in 1937, which deed included the north half of the Southwest Quarter of Section 18, Township 11 North, Range 3 West, Louisiana Meridian, together with other properties lying adjacent to the east side thereof, the properties acquired under this act of sale having an aggregate acreage of approximately 691 acres. Defendant’s vendor did not have a valid title to the property in dispute.
The record discloses that following his acquisition of these properties the defendant cleared a small portion thereof, lying
The facts also show that during the year 1940, a man named Foshee entered into an agreement with defendant, under which, for a period of approximately a year, Foshee removed some timber not only from the property in dispute, but likewise from the south half of the 56-acre tract, which we previously held belongs to plaintiff. In 1955, the defendant again made an agreement with Foshee for the removal of some timber and Foshee proceeded to cut timber on the disputed property until stopped by the plaintiffs, when they learned of the cutting.
There are no fences or other enclosures or boundary markings around the 28 acres in dispute, except that the west line is also the boundary line between Red River and Natchitoches parishes and this line is marked along and for some distance north and south of the subject property.
The applicable law is well established. In the similar case of Smith v. Arkansas Fuel Oil Co.,
“The defendant takes the position that by this possession of a portion of the property it is to be presumed that the possession is to the extent of the defendant’s title. At that time Smith was in possession of the property in controversy. The property could not be possessed by both parties at the same time. The person holding possession under title maintains it as against later alleged constructive possession of the same property by another person. Gilmore v. Schenck,115 La. 386 ,39 So. 40 . The rule that possession of a part of a tract of land under color of title is the possession of the whole cannot prevail over the adverse possession of the other party under a better title. Chicago, St. L. & N. O. Ry. Co. v. Town of Amite City,136 La. 742 ,67 So. 814 .”
See also Ernest Realty Co., Inc. v. Hunter Co., Inc,
Under this jurisprudence, the plaintiffs having prior constructive possession of the property under title, it is clear that defendant did not usurp this possession by subsequent constructive possession under mere color of title. To prevail here, defendant must show that he had more than constructive possession, he must show that he had actual corporeal possession for the requisite period of ten years. For as stated in Ernest Realty Co. v. Hunter Co,
“It is a well settled and established principle of law that where the legal and rightful owner of a tract of land has actual possession of a part thereof, he is in legal and constructive possession of the whole, except such portion thereof that may be in the actual possession and occupancy, by inclosure or otherwise, of a party claiming either by title under article 3478 or thirty years’ adverse possession, article 3499. The reason for the rule is that both cannot have constructive possession.”
The only acts possibly constituting corporeal possession by defendant, were the
What constitutes corporeal possession in any case is a question of fact and each case depends on its own circumstances. Jacobs v. Southern Advance Bag & Paper Co.,
“The law contemplates that the corporeal possession of the thing should be accompanied by external and public signs, announcing the possessor’s intention to preserve the possession of the thing, as the keeping up of roads and levees, the payment of taxes, the erection of works, and other similar acts.”
We find that the defendant has not established his possession of the property sufficient to support the prescription of ten years and, accordingly, the judgment of the lower court is affirmed.
Affirmed.
Rehearing
On Application for Rehearing.
En Banc. Rehearing denied.