Allbritton v. Powell

389 So. 2d 846, 1980 La. App. LEXIS 4562
CourtLouisiana Court of Appeal
DecidedOctober 8, 1980
DocketNo. 7793
StatusPublished
Cited by1 cases

This text of 389 So. 2d 846 (Allbritton v. Powell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allbritton v. Powell, 389 So. 2d 846, 1980 La. App. LEXIS 4562 (La. Ct. App. 1980).

Opinion

CUTRER, Judge.

This is a possessory action affecting a narrow, rectangular shaped tract of land located along the common boundary of properties owned by plaintiff, Nathan All-britton, and defendant, Bill Powell. Powell’s property is contiguous to Allbritton’s property for a distance of 660 feet. The property in dispute is a narrow strip along this 660 foot boundary which strip measures 44 feet wide on the south end and 74 feet wide on the north end.1

The plaintiff alleges that he is the owner of a 120 acre tract of land, the eastern boundary of which is marked by a historical fence line which separates plaintiff’s property from defendant’s 36 acres. Plaintiff alleges that defendant caused a survey to be made with stakes or markers placed inside the fence line, which stakes delineated the strip described above. Plaintiff alleges that in approximately February 1979, defendant destroyed the fence line and cut timber off the strip in dispute. Plaintiff claims that he and his ancestors in title had possessed the property in dispute for many years and that such possession continued up to the date of the disturbance..

Powell filed an answer of general denial and a reconventional demand alleging that he was the possessor of the disputed property, and asked to be placed in possession thereof by the court.

After trial on the merits, judgment was rendered in favor of the plaintiff, maintaining his possession of the disputed area and ordering defendant to assert any adverse claim of ownership to the property in a petitory action within 60 days. Defendant’s reconventional demand was dismissed. Defendant appeals from this ruling. We affirm.

The principal issue presented on appeal is factual; that is, whether plaintiff has sustained the burden of proof under the law which would entitle him to a judgment of possession.

The elements of proof necessary in pos-sessory actions are set forth by this court in the ease of Broussard v. Motty, 174 So.2d

[848]*848246, 248, 249 (La.App. 3rd Cir. 1965), as follows:

“To maintain the possessory action, the possessor must allege and prove, among other things, that ‘(1) He had possession of the immovable property * * * at the time the disturbance occurred,’ and ‘(2) He * * * had such possession quietly and without interruption for more than a year immediately prior to the disturbance * * LSA-C.C.P. Article 3658.
“The type of possession required of a plaintiff in a possessory action is identical in nature to the possession upon which is based the acquisitive prescription of thirty years. Hill v. Richey, et al., 221 La. 402, 59 So.2d 434; Broussard v. Louisiana Land & Exploration Company, et al., La.App. 1 Cir., 164 So.2d 84 (writs ref.).

“In Hill v. Richey, supra, where the issues raised were similar to those presented here, our Supreme Court said:

‘In the case of Prevost’s Heirs v. Johnson. 9 Mart, O.S., 123, 174, this court for the first time announced the principle that, “* * * When a person claims by possession alone, without showing any title, he must show an adverse possession by enclosures, and his claim will not extend beyond such enclosures.” In Ellis v. Prevost. supra, this rule of law was reiterated and has continued to be reiterated in the jurisprudence since that time.’ (59 So.2d 434, 439)
‘What the court means by “enclosures”, as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof. To say that the term means “enclosed only by a fence or wall” would be giving it a very strict and narrow construction, not justified or supported by the articles of the Code, as we have hereinabove pointed out, and would lead to absurd consequences in some cases.’ (59 So.2d 434, 440)”

Defendant contends that the old fence line was inadequate to show the limits of plaintiff’s possession. Defendant also contends that plaintiff failed to prove possession of the disputed property for one year prior to the disturbance.

THE CONDITION OF THE FENCE LINE

The testimony concerning the condition of the old fence is conflicting. The plaintiff testified that prior to the purchase of the 120 acres in August of 1978, he had leased the property for grazing purposes, beginning in 1974. He stated that the fence was in good condition from the time that he leased the land until the disturbance took place in early 1979. This testimony of plaintiff as to the condition of the fence was corroborated by August Ryberg, the surveyor, and Joe Winn, who was a prior owner of the property.

Defendant and his witness testified that the fence was in a state of disrepair and had gaps in some places where no fence existed at all. Defendant stated that after the survey was made, he cut timber off the disputed property up to the survey line.

The trial court resolved the issue of credibility in favor of the plaintiff, relying heavily on the surveyor, Ryberg. The trial court reasoned as follows:

“Concerning the issue of which party was in possession of the disputed tract, the testimony, as is usual in these types of eases, is conflicting. Of prime significance is the alleged ‘boundary fence’. Defendant contends that it was so run down and neglected as to be invisible in many sections, and therefore not adequate to serve as any indication of a boundary to plaintiff’s possession. On the other hand, plaintiff contends that the fence was standing upright, was clearly visible, confined plaintiff's live[849]*849stock, and was ample to serve as a physical marker to the limits of plaintiff’s possession.
“In resolving this issue, the court is favorably impressed with the testimony of surveyor, August J. Ryberg, who appeared to be the only witness truly disinterested in the outcome of this case.
“In his deposition, Mr. Ryberg testified as follows:
‘Q. When you were out on the ground, Mr. Ryberg, I presume that you personally observed this fence line, and made whatever notations you needed to so that you could show it on the plat as you have done?
‘A. Yes, sir.
‘Q. First of all, tell me what that fence looked like, as best you can remember.
‘A.

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389 So. 2d 846, 1980 La. App. LEXIS 4562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allbritton-v-powell-lactapp-1980.