Pace v. TownsPace v. Towns
Jesse Pace appeals a judgment fixing a boundary between adjacent tracts and declaring the defendant, Leonard Towns, the owner of the disputed 1.3-acre strip of land. For the reasons expressed, we affirm.
Facts
Pace and Towns own adjacent tracts of land in Union Parish (specifically, the W ½ of the NW ¼ of Sec. 7, T23N, R3E). Pace‘s tract lies to the west, and Towns‘s lies mostly to the east.1 They lived in relative harmony until 1995, when Towns attempted to cut timber off the disputed area. Pace obtained a temporary restraining order, claiming that there was a boundary fence which marked this property (the disputed strip, containing 1.3 acres) as his own. While Pace was out of state, Towns moved the fence approximately 12 feet to the west.
Upon his return, Pace noticed this and filed the instant petition, seeking to fix the boundary according to metes and bounds, and to have the disputed strip declared his own by acquisitive prescription. The basis of the prescription claim was that Pace, or his ancestors in title, had corporeally possessed the property as far east as the fence for over 30 years. Towns contended that the fence was not a boundary fence but merely a “cross fence,” and that according to Pace‘s own metes and bounds, the true boundary was where Towns had recently relocated the fence.
Trial was held in October 1997. The parties presented extensive evidence concerning their respective chains of title. Various witnesses described how the disputed strip had been used over the years, as well as the nature of the old fence. Mr. Jerry Rugg, an expert surveyor retained by Towns, testified that according to the metes and bounds recited in Pace‘s deed, the true boundary was where Towns had recently placed the fence. Rugg admitted, however, that utilizing Towns‘s deed, he could not determine who owned the disputed strip, though under the circumstances he felt it belonged to Towns.
In August 1998 the District Court ruled that Towns—the defendant—had established the boundary by title instead of by possession, and that it lay along the new fence line; and that Pace—the plaintiff—had failed to prove continuous and uninterrupted possession sufficient to prove acquisitive prescription of the disputed strip. Pace has appealed suspensively.
Applicable Law
“The court shall render judgment fixing the boundary between the contiguous lands in accordance with the ownership or possession of the parties.”
The court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession.
Immovable property may be acquired by thirty years acquisitive prescription.
The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.
To prove ownership of immovable property when another is in possession of the property, an individual must prove that he has acquired ownership from a previous owner.
Whether or not disputed property has been possessed for 30 years without interruption is a factual issue and will not be disturbed on appeal absent a showing of abuse of discretion, or manifest error. Id.; Bennett v. La. Pacific Corp., supra; Lowe v. Jones, supra. Additionally, boundary location is a question of fact and the determination of its location by the trial court should not be reversed absent manifest error. Mistric v. Kurtz, 610 So.2d 226 (La.App. 3d Cir.1992), writ denied 612 So.2d 102 (La.1993).
Discussion: Scope of boundary action
By his first assignment of error, Pace urges the District Court committed legal error in that the judgment “clearly goes beyond any relief requested by the defendant or to which the defendant is entitled because the defendant never in any of his pleadings claimed or asserted title or ownership in himself.” Pace argues that his petition is, strictly speaking, a possessory action, not a petitory action; and that Towns‘s answer similarly seeks only the fixing of the boundary, without asserting ownership of the disputed strip. Pace concedes that the court may grant any relief to which the parties are entitled,
Proof of ownership
By his second assignment, Pace urges the District Court committed manifest error in finding that Towns proved ownership to the disputed strip. His premise is that any party who is not in corporeal possession of the land, but asserts the ownership of it, must make out his title “good against the world.”
The title history adduced at trial is difficult. Both parties trace their title to a common ancestor, George E. Dollar. According to the joint exhibit, George E. Dollar‘s 1927 deed describes the NW ¼ of the NW ¼ of Sec. 7, less and except a specifically described three-acre tract that begins 70 yards east of the NE corner of the NW ¼ of the NW ¼. Jerry Rugg, the surveyor, testified that this description was obviously in error, because the “less and except” portion, if platted verbatim, would fall in the NE ¼ of the NW ¼. He therefore interpreted the “less and except” portion as beginning 70 yards west of the same corner; this way, the excluded portion falls entirely in the NW ¼ of the NW ¼, as described, and the total 45 acres recited in the deed is attained. The District Court explicitly accepted Rugg‘s opinion of the 1927 deed.
Subsequent deeds in Pace‘s chain of title —from George E. Dollar to his son, Odys Dollar in 1935 (conveying only 38 acres), from Odys Dollar to Clifton Perkins in 1949 (conveying only 15 acres), from Clifton Perkins to John and Billy Ruth Reynolds in 1968 (conveying only four acres), and finally from Mr. and Mrs. Reynolds to Pace in July 1973—all confirm that the property conveyed therein lies completely in the W ½ of the NW ¼ of Section 7.
Towns‘s title derives from a 1951 donation and partition deed from Odys Dollar and heirs of George E. Dollar to Maggie Dollar Deggs, conveying 64 acres described as the NE ¼ of the NW ¼ the N ½ of the SE ¼ of the NW ¼, one acre in the NE corner of the SW ¼ of the NW ¼, and three acres on the east side of the NW ¼ of the NW ¼, all in Sec. 7. Ms. Deggs conveyed these 64 acres to Towns in December 1973. On the basis of this chain of title, Pace conceded in post-trial brief that Towns has title to roughly one-third of the disputed strip, the portion lying south of the “40 line.”2
Jerry Rugg, the surveyor, admitted that Towns‘s direct title was ambiguous about
Acquisitive prescription
By his third assignment of error, Pace urges the District Court committed manifest error in concluding that he failed to prove possession of the disputed strip. He contends that since he was in possession of the strip, he was entitled to tack on the possession of prior owners to prove acquisitive prescription.
We will not belabor the testimony concerning the fence, which Towns conceded at trial had probably been in place since prior to 1965. Pace argues, and the District Court found, that for much of the time they owned the property, Mr. and Mrs. Reynolds raised pigs and horses on the disputed strip. The Reynoldses’ son, however, testified that before they actually sold the property to Pace in July 1973, they moved to Arkansas, taking their livestock with them. This occurred in July 1972. Notably, Pace testified that the Reynoldses actually lived on the tract during this period, and kept only a “residence” in Arkansas. The District Court, hearing both of these accounts, found a one-year interruption of the Reynoldses’ possession. Under the circumstances, we cannot declare this plainly wrong.
Pace finally argues that even if the Reynoldses’ possession was disturbed for a year, this short interruption is “irrelevant.” In support he cites Livingston v. Unopened Succession of Dixon, supra. Livingston, however, is distinguished in that the defendant therein proved a 30 years’ acquisitive prescription before the minor disturbances occurred. We specifically stated that prescription accrued in 1974; the disturbance arising when the plaintiffs moved the fence in 1979 did not defeat the defendant‘s title.
In sum, we perceive no manifest error in the finding that Pace did not prove 30 years of continuous and uninterrupted, peaceable, public and unequivocal possession.
Conclusion
For the reasons expressed, the judgment is affirmed. Costs are assessed to the appellant, Jesse A. Pace.
AFFIRMED.