Alvarez v. Hub City Iron Works, Inc.

405 So. 2d 590, 1981 La. App. LEXIS 5171
CourtLouisiana Court of Appeal
DecidedOctober 7, 1981
DocketNo. 8360
StatusPublished
Cited by1 cases

This text of 405 So. 2d 590 (Alvarez v. Hub City Iron Works, Inc.) 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
Alvarez v. Hub City Iron Works, Inc., 405 So. 2d 590, 1981 La. App. LEXIS 5171 (La. Ct. App. 1981).

Opinion

GUIDRY, Judge.

This is a possessory action.

The record reflects that plaintiffs and defendant own adjoining parcels of land in St. Martin Parish, Louisiana, both of which are bounded west by Louisiana Highway 347 and extend east to a line 40 arpents from Bayou Teche.1 Defendant’s property, hereinafter referred to as the Hub City tract, contains 61 acres and is located immediately north of plaintiffs’ land. That por[591]*591tion of plaintiffs’ land located east of highway 347, hereafter referred to as the Las-seigne tract, contains approximately 122 acres. Both tracts of land are traversed near their eastern extremities by a railroad track which runs generally north and south. For many years prior to the institution of this suit both properties were used for the cultivation of sugar cane. The properties have never been separated by a fence, however, at least since the early 1930s a field drainage ditch, which runs generally east and west and which is located in close proximity to the common boundary of such properties, has remained in existence in the same place.2

Defendant acquired the Hub City tract on April 6, 1978. Thereafter, defendant caused a survey to be made of this property preparatory to converting the land into a residential subdivision. The instant controversy arose when defendant, in furtherance of its plan for development of the Hub City tract, land leveled the field ditch and a strip of ground south thereof. In effect, defendant in its operation incorporated the ditch and five or six rows of sugar cane located south of the ditch in its subdivision development. According to the record, this event occurred on or about June 12, 1979. This suit was filed on July 16, 1979.

The trial court rendered judgment in favor of plaintiffs, recognizing their right to possession of the disputed area, the northern limits of which are defined in the trial court’s judgment as the field ditch, formerly existing between the property of Clerfe Potier and Anaclet Lasseigne, as located on the plat of Clarence Thibodeaux (Defendant’s Ex. 1) and projected on the west to Louisiana Highway 347 and on the east to the Missouri Pacific Railroad right of way. In addition plaintiff was awarded damages in the sum of $1500.00.

Both plaintiffs and defendant have appealed. Defendant assigns as error the trial court’s conclusion that plaintiffs had such possession of the disputed strip sufficient to maintain the possessory action. Additionally, defendant urges that the trial court erred, as a matter of law, in concluding that the field ditch was a visible bound sufficient to delineate the extent of plaintiffs’ possession. On appeal plaintiffs question only the quantum of the trial court’s award of damages.

We first address defendant-appellant’s specifications of error.

The possessory action is one brought by the possessor of immovable property or of a real right to be maintained in his possession of the property or enjoyment of the right when his possession has been disturbed. (LSA-C.C.P. Article 3655). In the possessory action, the ownership or title of the parties to the immovable property or real right is not at issue. (LSA-C.C.P. Article 3661). A plaintiff in a possessory action is one who possesses for himself. A predial lessee possesses for his lessor and not for himself. (LSA-C.C.P. Articles 3656 and 3660). One has possession of immovable property sufficient to maintain the pos-sessory action when he has corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper. (LSA-C.C.P. Article 3660). LSA-C.C.P. Article 3658 provides that in order to maintain the possessory action the possessor must allege and prove the following:

(1) He had possession of the immovable property or real right at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.”

[592]*592In the recent case of Harper v. Willis, 383 So.2d 1299 (La.App. 3rd Cir. 1980) writ denied, 390 So.2d 202 (La.), we discussed the possession necessary for maintenance of the possessory action. In that case we stated:

“. . .LSA-C.C. art. 3436 requires two distinct elements for a person to acquire possession: (1) the intention of possessing as owner and (2) the corporeal possession of the thing. Our jurisprudence usually states that the term ‘corporeal possession’ means the actual, physical, open, public, unequivocal, continuous, and uninterrupted possession of property with the intent of possessing it as owner. Gerrold v. Barnhart, 128 La. 1099, 55 So. 688 (1911); Wm. T. Burton Industries, Inc. v. McDonald, supra [346 So.2d 1333 (La.App.)], Succession of Kemp v. Robertson, 316 So.2d 919 (La.App. 1st Cir. 1975), writ denied, 320 So.2d 906.
It is well established that the ‘corporeal possession’ required to bring a possessory action is identical to that required for acquisitive prescription of thirty years. LSA-C.C. articles 3499-3505; Hill v. Richey, et al., 221 La. 402, 59 So.2d 434 (La.1952); Johnson v. Merritt, 131 So.2d 562 (La.App. 2nd Cir. 1961); Case v. Jeanerette Lumber & Shingle Company, Inc., 79 So.2d 650 (La.App. 1st Cir. 1955); Broussard v. Motty, 174 So.2d 246 (La.App. 3rd Cir. 1965); Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975); Norton v. Addie, 337 So.2d 432 (La.1976); Wagley v. Cross, 347 So.2d 859 (La.App. 3rd Cir. 1977).
It is clear that the intent to possess as owner has to do with the subjective intent of one who professes to possess and does not mean that the possessor must pretend to have valid title rights. The possessor may actually have title, but in the possessory action that factor is significant only in determining intent. The intent may exist without title to the knowledge of the possessor, for as shown above, even our codes permit a person in bad faith or a usurper to maintain the possessory action. LSA-C.C. arts. 3450, 3452, and 3454 and LSA-C.C.P. art. 3660. In as much as the corporeal possession required as a predicate to a possessory action is the same as that required for acquisitive prescription of 30 years, the corporeal possession must be open and notorious and adverse or hostile to the true owner and everyone else.”

We find no merit in defendant’s contention that the field ditch was not a visible bound sufficient to delineate the extent of plaintiffs’ possession. It is well settled that a ditch may be sufficient to serve as a visible bound delineating the extent of possession. Coleman v. Henderson, 353 So.2d 1091 (La.App. 2nd Cir. 1977) and cases therein cited. As set forth in Hill v.

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Related

Alvarez v. Hub City Iron Works, Inc.
410 So. 2d 763 (Supreme Court of Louisiana, 1982)

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405 So. 2d 590, 1981 La. App. LEXIS 5171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvarez-v-hub-city-iron-works-inc-lactapp-1981.