Boneno v. Lasseigne

589 So. 2d 594, 1991 La. App. LEXIS 2783, 1991 WL 223760
CourtLouisiana Court of Appeal
DecidedOctober 21, 1991
DocketNo. 91-CA-216
StatusPublished
Cited by2 cases

This text of 589 So. 2d 594 (Boneno v. Lasseigne) 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
Boneno v. Lasseigne, 589 So. 2d 594, 1991 La. App. LEXIS 2783, 1991 WL 223760 (La. Ct. App. 1991).

Opinion

WICKER, Judge.

The plaintiffs, Mary Dorothy Boneno, Luke Boneno,1 Richard N. Boneno, Elizabeth Hymel Duhe, Jolyn Duhe Johnson, Allen J. St. Pierre, and Audrey Millet St. Pierre (the Boneno group) appeal the dismissal of their possessory action against defendants George A. Lasseigne, Jr.; Theresa Aycock Madere; Joseph Junius Ory; Doris Lasseigne Carville; Fernand J. Aycock, Jr.; Bernice Ory Fulton (the Lass-eigne group); and St. John Fleeting, Inc. The issues are proof of the Boneno group’s entitlement to possession, the release by the judge of St. John Fleeting, and the admission over objection of a certain deposition. We affirm.

The property at issue is batture land in Garyville, St. John the Baptist Parish, on the river side of the levee from land belonging to the Boneno group. This group claims to have been in possession, evidenced by acts of a possessory nature, since 1941, although it does not claim ownership. The Boneno group sued the Lass-eigne group, lessor, and St. John Fleeting, lessee, for having disturbed its possession of the batture in 1983.

The issue of prescription of the possesso-ry action was resolved in favor of the Bone-no group in two cases out of this circuit: Boneno v. Lasseigne, 514 So.2d 276 (La.App.1987) and 534 So.2d 968 (1988).

Trial on the merits resulted in a judgment dismissing the case because “the plaintiffs did not establish that they ever possessed the property within enclosures sufficient to give definite notice to the public of the extent of their alleged posses-sion_” The judge released St. John Fleeting on his own motion during the trial, believing that nothing had been proven against it.

The Boneno group, in order to maintain a possessory action, must prove (1) it had possession of the property at the time of the disturbance, (2) it and its ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, (3) the disturbance was in fact or in law, and (4) its possessory action was filed within a year of the disturbance. La.C.Civ.P. art. 3658; 2 La. Civ. Law Treat. (Yiannopo-lous) 2d, Section 210 at 563.

What constitutes possession depends largely on the nature of the property.... Further, where an individual claims by corporeal detention alone and without title, he must show an adverse possession within enclosures .... “Enclosed” does not necessarily mean “fenced in”, but does require “that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, where 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.” Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952).
[596]*596The corporeal possession required to institute a possessory action corresponds with the possession necessary for acquisitive prescription of thirty years.... Consequently, the possession must be open, continuous, public, unequivocal and uninterrupted with the intent to possess as owner.... The intent to possess as owner cannot be inferred when the circumstances are insufficient to give reasonable notice to the public and the owner of the property that the possessor is unequivocally possessing as owner....

City of New Orleans v. New Orleans Canal, Inc., 412 So.2d 975, 981 (La.1982) (emphasis added; some citations omitted). This case, involving a claim by New Orleans of possession of a large tract similar to a neutral ground fronting West End Boulevard near the lakefront, was originally resolved in the city’s favor, the Court holding that cutting grass and construction and repair of utilities and streets were apparent to all. The Court reversed itself on rehearing, holding that the lack of boundary markers made the property in dispute indistinguishable from any other in the area of this neutral ground and resulted in the city’s failure to show possession within enclosures and the extent of its claim. The Court cited with approval the language of the appellate court:

“The concept of enclosures is pertinent to the determination of extent of possession.... [W]hen a possessor does not have a title, his claim of possession is limited in extent to that property shown by enclosures (artificial or natural boundaries) and his possession must be proved ‘inch by inch’, so that the possessor must establish actual, physical and corporeal possession over the entire amount of land claimed in the possessory action. Stated otherwise, the possessor without title is entitled to be maintained in possession only to the extent of the boundaries within which he proved actual, physical and corporeal possession. ...”

At 982 (emphasis added; citations omitted). Accord: Chevron U.S.A. Inc. v. Landry, 558 So.2d 242 (La.1990). “[Ijsolated acts of a transitory nature” are insufficient to establish possession. Plaisance v. Collins, 365 So.2d 608, 616 (La.App. 1st Cir.1978). Further, the execution of a lease is insufficient to establish civil possession absent some corporeal possession. Ree Corporation v. Shaffer, 261 La. 502, 260 So.2d 307 (1972).

Allen St. Pierre’s Testimony

Allen St. Pierre, one of the plaintiffs, testified that he moved with his family to the St. Pierre tract as a child in 1944. The ramp which crossed the levee from Jefferson Highway to the batture was already in place. Mr. Boneno, since deceased, acted as spokesman for the nine families occupying adjacent tracts with regard to the bat-ture, which apparently all families believed they owned. Mr. Miaño purchased and hauled riversand from this batture from sometime in the 40’s until the early 70’s. He would make one payment to Mr. Bone-no, who would in turn divide the money in nine equal portions. No one knew exactly where on the batture the sand came from as, for the purpose of selling sand, the families treated the batture as just one piece.

AAA Contractors began hauling sand in the late 40’s and early 50’s. Mr. St. Pierre joined the service and was stationed in Korea from about 1951 through 1953. During this time, he had no personal knowledge of what happened on the batture. Sometime during the 50’s, Broussard’s Beach was established. This was a little area of beach on the batture which Mr. Broussard and others used as a recreational area with the permission of Mr. Boneno.

In the late 50’s through the early 60’s, Mr. Pollet began hauling sand from the batture. The families also leased part of the batture to AAA. Mr. St. Pierre bought the family tract from his father in 1958.

For one-and-a-half years in the early 60’s, Mr. Trosclair hauled sand from the batture. He also renovated the ramp to avoid crossing over the Millet property. The police jury took sand and sand was donated to the church during the 60’s. The families also granted a mineral lease for the batture to Mr. Magruder.

[597]*597The last sales of riversand took place in the early 70’s, and Mr. St. Pierre took over as family spokesman from Mr. Boneno sometime in the early to middle 70’s. At this point, there were only three families for whom he was spokesman — the Bone-nos, the St. Pierres, and the Duhes — since the other families had begun to make their own arrangements.

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Bluebook (online)
589 So. 2d 594, 1991 La. App. LEXIS 2783, 1991 WL 223760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boneno-v-lasseigne-lactapp-1991.