Motty v. BroussardMotty v. Broussard
This is а petitory action in which plaintiffs seek a judgment decreeing them to be the owners of a 6.509-acre, triangular shaped tract of land in Vermilion Parish. The suit was instituted by Paul Motty and others against Mrs. Azelie Broussard. The defendant answered, contending that she has acquired the ownership of the subject property by acquisitive prescription of 30 years. Judgment on the merits was rendered by the trial court dismissing plaintiffs’ suit and recognizing defendant as the owner of the property in dispute. Plaintiffs have appealed.
The present suit is a sequel to the case of Broussard v. Motty,
In the instant suit plaintiffs demand judgment decreeing them to be the owners in indivisión of the same triangular shaped tract of land which was restored to the possession of Mrs. Broussard in the earlier suit. Defendant agrees that plaintiffs have record title to the property here in dispute, but she contends that she and her predecessors in title hаve been in possession of it for more than 30 years. Plaintiffs concede that defendant has possessed the subject property since 1945, but they contend that neither she nor her predecessors in title possessed it prior to that time. The sole issue presented on this appeal, therefore, is whether defendant, together with her predecessors in title, have maintained рossession of the 6.509-acre tract of land in dispute here in such a manner and for a sufficient period of time to entitle her to the ownership of that tract by 30 years acquisitive prescription.
The evidence shows, and it is conceded, that plaintiffs are the owners by record title of the South Half of Section 7, Town-Louisiana Meridian.etaoinetaoiruetaoinetao ship 14 South, Range 1 East of the Louisiana Meridian. Defendant is the owner by record title of the property lying immediately north of and adjacent to plaintiffs’ land. The ideal boundary between the property owned by plaintiffs and that owned by defendant, therefore, is the half section line running east and west through Section 7. The eastern part of both tracts of land is highland, suitable for pasturage purposes, and the western portion of the property is marshland.
Sometime prior to 1920, Valerin Motty, plaintiffs’ predecessor in title, constructed a fence along a line which began at the Northeast corner of the South Half of Section 7, and ran in a southwesterly direction from that point a distance of a little less than one-half mile, across the highland portion of his prоperty, to a point where the fence terminated a few feet west of the eastern edge of the marsh. The west end of that fence was about 300 feet south of the ideal boundary, between the two tracts of land. From the time that fence was constructed, before 1920, until 1934 it was maintained in good condition, a gate in the fence was kept locked and the fence served as a dividing line between a pasture for Motty’s cattle and pigs to the south and a pasture for the cattle, pigs and goats owned by Joseph E. Broussard, defendant’s predecessor in title, to the north. Although neither pasture was completely enclosed by fences, the marsh area along the western edge of those pastures served as a barrier, and except in very dry seаsons the marsh prevented cattle, pigs and goats from roam
In 1934 the United States Government, in carrying out a tick eradication program, constructed a dipping vat north of the above mentioned fence for the joint use of all of the cattle owners in that area. For a period of about eleven years after this dipping vat was constructed, or from about 1934 to 1945, the gate in the above mentioned fence was allowed to remain open and cattle and pigs were pеrmitted to' roam freely from one pasture to the other, except that the cattle were separated one or more times each year for branding or for sale. During the above mentioned eleven year period, ending in 1945, the fence fell into a state of disrepair, and although it remained visible and standing, there vyere gaps in it which were not repaired and it did not рrevent stock from roaming from one pasture to the other.
In 1945 a new fence was constructed by the Broussards approximately along the same line as that occupied by the fence which had been constructed by Motty many years earlier.
In 1962 plaintiffs constructed another fence running east and west along the half section line of Section 7, a distance of approximately one mile from the east to the west lines of that section. That fence, of course, was built along the ideal boundary line between the land owned by plaintiffs and that owned by defendant, according to their record titles. The above mentioned possessory action was instituted by Mrs. Broussard shortly after that fence was constructed; and the judgment which we partially affirmed in that case ordered the Mottys tо remove about one-half of that fence, that is the part of the fence which extended a distance of about 2499 feet, beginning at the eastern edge of the marsh area and running in an easterly direction to the east line of Section 7.
The evidence also shows, and the trial court found, that from 1910 until the present time the Broussards have granted trapping rights on the subject proрerty and that they have sold timber off that tract. One of the witnesses, J. Sulie Broussard, a brother of defendant, testified that he trapped the subject property during the years 1923, 1924 and 1925. We find nothing in the record to indicate that plaintiffs or their predecessors in title have exercised any acts of possession on the subject property, at least since 1920, except that during the period from 1934 to 1945 their cattle were permitted to roam on either side of the fence as were other cattle in that area.
After analyzing the evidence in excellent reasons for judgment, the trial judge concluded “that the defendant and her predecessors in title have maintained continuous, uninterrupted, public, and unequivocal possession of the property for a period in excess of 30 years and the plea of 30 years acquisitive prescription should be sustained.”
Plaintiffs contend that the trial judge erred in concluding that defendant possessed the property prior to 1945. They argue that the fence which Valerin Motty built
There is no dispute as to the applicable law. The plаintiff in a petitory action is required to “make out his title” to the immovable property claimed, if the court finds that the defendant is in possession of that property. LSA-C.C.P. art. 3653(1). The defendant in a petitory action, in asserting title to or the ownership of the property, may rely on the 30-year prescription provided either in Article 852 or in Article 3499 of the Louisiana Civil Code. Abramson v. Piazza,
In the instant suit, since the parties agree that plaintiffs have record title to the property in dispute here, the burden of proof rests on defendant to establish that she, together with her predecessors in title, have maintained uninterrupted possession of the subject property sufficient to entitle her to the ownership of such property by acquisitive prescription of 30 years.
LSA-C.C. art. 852 provides:
“Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one can not prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.”
Under the provisions of the above quoted article of the Civil Code, one who has maintained uninterrupted possession of property within existing visible bounds during 30 years may retain the quantity so possessed by him though it be beyond and more than called for by his title. In order for the possessor to acquire ownership under that article, two conditions must concur: First, there must be a visible boundary, artificial or otherwise; and second, there must be actual and uninterrupted possession, either in person or through ancestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within visible bounds. Sessum v. Hemperley,
“Clearly, the now well-established rule, as a result of our codal provisions and the cited authorities, is that where there is a visible boundary which has been in existence for thirty years or more and the defendant in a boundary action and his predecessоrs in title have, in addition to the land described in the title, actually possessed land extending to that visible boundary, a plea of prescription of thirty years should be sustained. It is our view that for the rule to be applicable two conditions must concur: First, there must be a visible boundary, artificial or otherwise; second, there must be actual uninterrupted possession, either in person or through аncestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within the visible bounds. The lack or failure of consent on the part of the - adjacent owner cannot affect the rights that accrue by operation of law to the possessor under the thirty-year prescriptive plea. We feel that the foregoing conditions have bеen completely met in the instant case.”
It is now well settled that the boundary prescription provided by LSA-C.C. art. 852. may be pleaded not only in boundary suits but also in petitory actions. See Stanford v. Robertson,
The facts in the instant suit are similar to those which were presented in Robertson v. Morgan,
“With regard to plaintiff’s second contention that the adverse possession was not continuous, the cited cases likewise illustrate that corporeal pоssession thus commenced is preserved and presumed to continue (unless interrupted by the possession of another) so long as there remain vestiges of works erected upon the property by the possessor, even though the enclosures themselves deteriorate. See also, LSA-C.C. Arts. 3442, 3501, 3502. (However, the remains of the enclosures should be sufficient to fix the limits of the property possessed. Sattler v. Pellichino, La. App. 1 Cir.,71 So.2d 689 .)”
In Hinckley v. Francisco, supra, the defendant’s predecessors in title built a wire fence supposedly separating defendant’s land from plaintiffs’ property, but
And, in Cox v. White,
We think the evidence in the instant suit establishes that the fence constructed by Valerin Motty prior to 1920 was considered by the owners of the adjacent estates as marking the boundary line between their respective lands. Although plaintiffs describe this fence as a “short pig fence,” the evidence shows that it was at least 2319.4 feet long. We assume that it joined some type of barrier or enclosure on the east, and it extended to the marsh area oh the west, that being as far west as it was necessary to build the fence in order to effectively pen up stock in the pasture south of the fence, since the marsh formed a barrier on the west. Prior to 1934 a gate in the fence remained locked and Mr. Motty kept the key. When the Motty cattle would get on the north side of the fence they would be driven back. We find no evidence in the record to indicate that the Mottys, from 1920 until 1962, ever attempted to possess the property located north of that fence, or that they ever protested the action of the Broussards in pasturing their cattle on the disputed property or in driving the Motty cattle off of it. Apparently no protest was made by the plaintiffs when the fence was rebuilt by the Broussards in 1945. These facts convince us that from and after the time the original fence was constructed by Motty prior to 1920 the adjacent property owners regarded it as marking the boundary line between their estates.
We have considered plaintiffs’ argument that the fact that the Motty cattle were permitted to roam north of the fence from 1934 to 1945 constituted an interruption of defendant’s possession. The evidence shows, however, that during that period the fence remained standing, although in disrepair, and it continued to serve as a visible boundary between the lаnd owned by plaintiffs and that owned by defendant. Also, defendant continued to exercise possession of the property in dispute during that time by granting trapping rights on it and by selling timber from it. As we have already noted, until 1962 neither the Mot-tys nor anyone else attempted to exercise possession over that property at any time, other than to permit their cattle to roam through the fenсe when the gate was left open and the fence was in disrepair. We think the corporeal possession begun by defendant’s ancestors in title prior to 1934 was preserved and is presumed to have continued from that date until a new fence was constructed in 1945. Defendant, of course, has exercised exclusive possession of the property for pasturage purрoses since 1945.
In our opinion the evidence supports the conclusion reached by the trial judge that defendant and her predecessors in title have maintained uninterrupted possession of the subject property for a period in excess of 30 years. We thus find no error in the judgment rendered by the trial court recognizing defendant as the owner of that property.
For the rеasons herein assigned the judgment'’appealed from is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.
Affirmed.
Notes
. Plaintiffs correctly point out that some of the witnesses testified that this new fence was constructed along a line parallel to and about six feet north of the original Motty fence. The trial judge found, however, that it had been constructed “generally along the line occupied by the old fence,” and we agree with that conclusion.