19 La. 251 | La. | 1841
delivered the opinion of the court.
This case was once before this court, and was remanded for a new trial. The judgment then appealed from had been rendered in favor of ffhe defendants, and on the second trial before the court below, the jury having again found a verdict for the said defendants, the plaintiff, without attempting to obtain a new trial, brought up the present appeal.
The facts of this case, so far as it was then necessary to review them, are perhaps sufficiently slated in the report there
The record shows, that on the 28th of June, 1836, plaintiff purchased from one John Hutchings, by a notarial act, a tract of land, containing thirty-six arpents in front, by forty in depth, on the east side of bayou Grand Caillou, and eleven arpents and one-third in front, by forty in depth on the west side of the said bayou; and that Hutchings had acquired the same from P. S. Cocke, by an act of sale executed on the 6th of February, 1829. That in the years 1829 or 1830, Hutchings took possession of the tract as owner, and put an overseer and seven hands upon it, who lived on and cultivated the place for about twenty-two months, built some cabins, girdled the trees on about one hundred and fifty arpents on the east side, raised a crop on said land, nearly opposite where Madame Prevost then and now lives, and that two individuals also cultivated the said land at different times by the permission of Hutchings. The plaintiff never resided there, and after his purchase, he abandoned the improvements made by his vendor. It is also established, that the defendants and their ancestors resided for a long time on the west side of the bayou, and that they occupied and cultivated at different periods an inconsiderable part of the land in controversy on both sides ; it is not shown however, that the portions thus cultivated and which were unenclosed, were ever possessed by metes and bounds, but there is proof resulting from the testimony of the witnesses and from the plat returned by the surveyor, that their enclosures around the house on the west side have existed for a long time, and contain a small tract of four arpents in front, by two arpents and a half in depth, which is the spot which the defendants and
Under the legal principles established in the former decision ©f this cause, which however we are not ready to adopt to the same extent, it is clear, that the plaintiff had a right to institute an action of possession against the defendants by virtue of his civil possession, based on the previous actual and corporeal possession of his vendor. This doctrine, so far as it requires the civil possession to be preceded by an actual and corporeal detention of the thing, and as it allows to the plaintiff the benefit of the previous corporeal possession of his author, appears to us to be correct, and we are not disposed to controvert it; but we cannot accede to the proposition, that our laws recognize but one kind of possession, and that a civil possession will suffice in all cases. We are aware, that the distinction between natural and civil possessions is peculiar to the Roman law, and among the French commentators of the highest authority on the Napoleon Code, there are several who consider it as having no sense or direct meaning. Troplong, prescription, No. 239, says: Ces appellations de possession civile et de possession naturelle soni restées si vagues pour les modernes, que peut-étre aujourd'hui encore Von est indécis sur lew veritable sens. But we are not able to say, that with us it is a distinction without a difference: it is evident from the different provisions contained in our system of legislation, that our laws, on this subject, too clear and too explicit to be disregarded, recognize two species of possession, natural and civil: natural possession, which may be called possession in fact, is, when a man detains a thing corporally, as by occupying a house, cultivating a field ; and civil possession, or pos
This is undoubtedly the meaning of the art. 49 of the Code of Practice, which must be construed in relation to the articles of the Louisiana Code on the subject of possession; this article says : “In order that the possessor maybe entitled to bring a possessory action, it is required : 1st, that he should have had the real and actual possession of the property, at the instant when the disturbance occurred: a mere civil or legal possession is not sufficient.” Now, we understand the expressions, real and actual possession, contained in this law, as used in contradistinction with the possession which is purely civil and legal, that is to say : with the possession, which is entirely devoid of the quality of having its source in or being derived from a previous actual and corporeal one; such possession is not sufficient ; but when it has been preceded hy the corporéal enjoyment of the thing, and the possessor has not ceased to exercise such enjoyment for ten years, the actual possession previously acquired is preserved and maintained, and it continues in the same manner and with the same effect, as if the thing had always been actually and corporally possessed. Pothier, on possession, p. 314, No. 27, says : La possession, lorsqu’elle a été une fois acquise, se conserve plus facilement qu’elle ne s’acquiért; car lo.- nous pouvons reteñir la possession d’une chose sans que nous la tenions, et sans qu'aucun autre la tienne en noire nom. Par. éxemple: lorsque le propriétaire d’une maison qui y loge ordinairement, s’en va passer qicelque terns ailleurs avec son domestique, sans laisser personne dans cette maison, Une laissepas d’en conserver la possession.”
It is clear, therefore, that if the article 49 of the Code of Practice was to be construed strictly and according to its literal
With this view of the question, the plaintiff, under the evidence, would have a right to recover the whole tract, unless he is shown to have suffered a year to elapse after the disturbance, without bringing his possessory action, and unless the defendants have succeeded in establishing an adverse possession to it or to any part thereof during the period prescribed by law. C. of Pr., art. 59; La. Code, art. 3419. It is true, that the defendants have, at various times, occupied and cultivated, for a certain number of years, different inconsiderable parts of the land in dispute; but they have shown no possession according to metes and bounds of the land which was unenclosed, and the testimony is so vague and uncertain as to the extent of the several spots, which they have successively occupied, and of the limits of the fields which they may have cultivated, that it would be impossible to ascertain and indicate the fractions of the plaintiff’s land, upon which they may have exercised their
With regard to the parcel of land possessed by Champagne and Daspit,.with the permission of the defendants, on the east side of the bayou ; it is clear from the evidence, that they had not been in possession of it for one year, atthe'time of the in
It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and proceeding to give such judgment, as, in our opinion, ought to have been rendered in the lower court; it is ordered, adjudged and decreed, that the plaintiff and appellant do recover and be maintained in the possession of the tract of land described in his petition; except, however, of that portion of the said tract on the west side of the bayou Grand Caillou, shown in the surveyor’s map to contain four arpents in front, by two arpents and a half in depth; and that the defendants and ap-pellees be maintained in their possession of the said small tract according to the metes and bounds designated in the said surveyor’s map; the costs in both courts to be borne by the said defendants.