58 So. 153 | La. | 1912
Plaintiffs allege that they are in possession as owners of the W. % of N. E. %, and E. % of N. W. % of section 31, township 10 N., range 1 W., parish of Winn, and have been for more than 30 years, and that the defendant company has disturbed their possession by entering upon said land and cutting and removing timber therefrom, and that thereby they have been damaged in the sum of $2,250 “in being deprived of the possession of the timber cut down and removed from said land, and to which your petitioners are entitled to be restored to the possession of said timber, or of its value in money if it be impossible to restore the actual timber into the possession of your petitioner.” The prayér is for judgment “maintaining and quieting your petitioners in the possession of said land, and restoring your petitioners to the possession of the part of which they have been evicted, viz., the timber growing, standing, and being •on said land, which has been removed by said defendant company, by condemning ■said defendant company to pay your petition- • ers the sum of $2,250, the value of the timber, as it is impossible for the said defendant company to be condemned to restore said timber as a part of the land as it originally •stood before the said disturbance took place.”
What might be the effect of said decision of the Land Department upon this ease if the title were at issue is a matter not now up for consideration, since the suit is distinctly a possessory action in which the title cannot be considered, but only the question of possession vel non.
The objection was properly overruled. Even if said decision had had the effect of ousting the possession theretofore enjoyed by plaintiffs, it certainly could not operate to prevent the plaintiffs from acquiring a new right of possession such as would support the possessory action. Possession need not be in good faith for giving birth to the right of possession. All that is requisite is that it be quiet and undisturbed and as owner, and continue for a year or more. Articles 46, 47, 48, and 49, C. P.
The defendant company concedes that the evidence, if admissible at all, does' show that the plaintiffs have had quiet and undisturbed possession for more than the requisite one year, and under claim of ownership.
To that effect is the common law. Jaggard on Torts, pp. 661, 668, 694, 706, 709, and 711.
“Art. 3450, C. C. Although possession results frequently from a fact, and not from right, it nevertheless confers on the possessor certain rights with regard to the thing possessed, some of which are peculiar to the possessor in good faith, and the others are common to all possessors.”
“Art. 3454, C. C. Rights which are common to all possessors in good or bad faith are:
“(1) That they .are considered provisionally as owners of the thing which they possess, so long as it is not reclaimed by the true owner or person entitled to reclaim it, and, even after such reclamation, until the right of the parties making it is established.
“(2) That every person who has possessed an estate for a year or enjoys peaceably and without interruption of a real right, and _ is disturbed in it, has an action against the disturber, either to be maintained in his possession, or to be restored to it, in case of eviction, whether by force or otherwise.
“(3) That such a possessor may, by prescription, acquire the property of the thing which he thus possesses, after a certain time, which is established by law according as he has possessed in good or bad faith.”
“Art. 3455, O. 0. The action which a possessor for one year has against a person disturbing his possession, to be maintained in it or restored to it, as is said in the preceding article, shall be decided before pronouncing on the question of ownership, and the real owner shall not be allowed to repel it by endeavoring to prove his right.”
“Art. 46, O. P. The possessory action, which is a branch of real actions, may be brought by any possessor of a real estate, or of a real right, who is disturbed either in the possession of the estate or in the enjoyment of the right, against him who causes the disturbance, in order to be maintained in, or restore to the possession, whether he has been evicted or disturbed; provided his possession be accompanied by the qualifications hereinafter required.”
“Art. 53, C. P. The plaintiff in a possessory action needs only, in order to make out his case, to prove that he was in possession of the property in question, in the manner required by this Code, and that he has either disturbed or evicted within the year previous to his suit.
“So that when the possession of the plaintiff, or the act of disturbing him is denied, no testimony shall be admitted, except as to the fact of the possession, or as to the act of disturbance, and all testimony relatiy.e to the property shall be rejected.”
“Art. 55, C. P. Petitory and possessory actions shall not be cumulated or joined together, except by consent of parties.
“Therefore, he who is sued in a possessory action cannot bring a petitory action, until after judgment shall have been rendered in the possessory action, and until, if he has been condemned, he shall have satisfied the judgment given against him.”
It results from the foregoing that quiet undisturbed possession of real estate as owner for a year or more, whether in good 01-bad faith, invests the possessor with a right of possession which can serve as a basis for-an action to be maintained in possession, or, if evicted, to be restored to possession; and that in such an action the question of title-cannot be gone into at all. Now, if the-question of title cannot be gone into, the legal situation is that for all the purposes of' the suit the defendant company has no title — ■ de non apparentibus et de non existentibuseadem est ratio. In other words, that the defendant company is not owner, and the-plaintiff is not demanding anything of the owner, but simply to be restored to possession.
The judgment appealed from condemned the defendant company to pay to plaintiff the value of the timber taken within the 12 months preceding the filing of the suit.
Judgment affirmed.