Delgado v. Burns

576 So. 2d 1075, 1991 La. App. LEXIS 464, 1991 WL 33635
CourtLouisiana Court of Appeal
DecidedMarch 13, 1991
DocketNo. 89-974
StatusPublished
Cited by1 cases

This text of 576 So. 2d 1075 (Delgado v. Burns) 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
Delgado v. Burns, 576 So. 2d 1075, 1991 La. App. LEXIS 464, 1991 WL 33635 (La. Ct. App. 1991).

Opinion

KING, Judge.

The sole issue presented by this appeal is whether the trial judge was correct in finding that defendants had acquired property by thirty years acquisitive- prescription.

Alberto Delgado and his wife, Waldtraut K.H. Delgado (hereinafter plaintiffs), filed suit seeking a declaratory judgment annul[1076]*1076ling an exchange deed entered into between defendants, W.A. Burns (hereinafter Burns), and Merle Brack and Marvin Brack (hereinafter the Brack brothers). Part of the property described in the exchange deed, the disputed property, is a part of the same property Burns had earlier conveyed to plaintiffs. Defendants, the Brack brothers, answered and reconvened claiming to have acquired title to the disputed property by acquisitive prescription of thirty years.

After a trial on the merits, the matter was taken under advisement. Written reasons for judgment were rendered by the trial court denying plaintiffs’ declaratory judgment and rendering judgment in favor of defendants and against plaintiffs recognizing defendants’ title to the disputed property by acquisitive prescription of thirty years. A formal written judgment was signed. Plaintiffs timely appeal. We affirm.

FACTS

The disputed property is a strip of land, approximately 68 feet east-west by approximately 22 feet north-south, that runs east-west along the north side of plaintiffs’ property and a strip of land, approximately 190 feet north-south by approximately 28 feet east-west, that runs north-south on the west side of plaintiffs’ property (hereinafter these two strips of property are referred to as the disputed property).

The property north of the disputed property was bought in 1945 by the father of defendants, Marvin and Merle Brack. Upon their father’s death, the Brack brothers were put in possession of their father’s property, subject to their mother’s usu-fruct. Marvin Brack acquired the property west of the disputed property from Ed Mayo in 1956. These two properties are hereinafter sometimes collectively referred to as the Brack properties.

In 1973, Burns acquired the property south and east and contiguous to the Brack properties from Myrtis McNabb Dondero. Burns sold this same property to plaintiffs in 1983. Plaintiffs had actually begun occupying the Burns’ property in 1975 and began paying for it in installments. Plaintiffs made the final payment and received a deed to the property from Burns on August 23, 1983. This deed was subsequently amended by Burns and plaintiffs in 1985 as to an erroneous property description, to correctly describe the property sold.

Marvin Brack testified at trial that there were fences on the disputed property, both north and west of plaintiffs’ property, when he acquired it. Marvin Brack testified that, in 1947, when he “returned from the army,” the fence to the north of plaintiffs’ property was there. Similarly, Marvin Brack testified that there was a fence to the west of plaintiffs’ property, where his predecessor in title, Mr. Mayo, had a cow and horse, when he acquired it in 1956.

A boundary dispute arose between Burns and the Brack brothers concerning the disputed property north and west of the northwest corner of the Burns property, which is now the plaintiffs’ property, and an exchange deed was executed by them in 1987 which was intended to settle the dispute by fixing the property lines at the old existing fence lines.

Plaintiffs argue that when this exchange deed was executed in 1987, a part of the property they bought from Burns in 1983, as described in the 1985 correction deed, was included in the property given to the Brack brothers by Burns in the exchange deed. Plaintiffs allege that when Burns actually executed the exchange deed in 1987, he no longer had record title to the disputed property since Burns had previously sold it to plaintiffs by their original deed in 1983, which was amended and corrected in 1985.

On April 13,1988, plaintiffs filed this suit for a declaratory judgment seeking to annul the exchange deed entered into between the defendants, Burns and the Brack brothers.

The defendants, the Brack brothers, answered and reconvened claiming they had acquired the disputed property by thirty years acquisitive prescription.

Mr. W.R. Burns testified that it was only his intention to sell to plaintiffs his property bounded by the old fences on the north [1077]*1077and west and the Brack brothers property-north and west of these old fences. Mr. Burns testified that he thought his property line only went up to these old fences when he bought his property in 1973. Mr. Burns further testified that he and plaintiffs executed a correction deed in 1985, after plaintiffs had obtained a survey, to correct the description of the property he had sold to plaintiffs. He testified that he thought this correction deed to plaintiffs only included the property he owned south and east of the old fences and the Brack brothers property north and west of these old fences.

At trial, Mrs. Delgado testified that, when she first began possessing the Burns land that she eventually bought, she built a new fence east of the old existing north-south fence line to keep her chickens on her property. In 1985, Mrs. Delgado had her property surveyed and that is when she realized her record title included the disputed property, which is north and west of the original fences. Mrs. Delgado testified that, prior to this survey, she thought all of the land west of her fence (the one she built) and north of the old east-west fence belonged to the Brack brothers.

Johnny Beason, who is 61 years old, testified that the old east-west fence on the disputed northern tract of property was there when he was a “kid,” and that he never saw the property north of that fence look unused because Marvin Brack always mowed it and planted it.

Aliene Mayo Larney, who is 60 years old, testified that for 38 years; every day, twice a day, she would go onto the Brack property, crossing the east-west fence on the disputed northern tract of property, in order to get fresh milk for her baby son who was allergic to formula. Mrs. Larney remembers that the Brack property had a garden there because, in addition to fresh milk, she got fresh vegetables as well. Mrs. Larney also remembers the fence on the disputed property as always being there and the land on the Brack side, all the way up to the fence, as being mowed and “manicured.”

Elmer Mayo, age 54, testified that when his parents bought the land Marvin Brack now owns, he was about 10 years old and he remembers the land having fences on it. Mr. Mayo also remembered Marvin Brack’s father having cattle which grazed to the fence line, and he remembers helping to keep the fences repaired. Mr. Mayo testified he remembers Marvin Brack mowing the property and planting gardens on his side of the fence.

Charles Moore, age 59, testified that he remembers going through the Bracks’ property (which then belonged to the' Wat-sons), when he was 10 or 12 years of age, and climbing the east-west fence to use the Watsons’ telephone because they were the only ones in the area who had one. Mr. Moore remembers when the Bracks bought the property and he recalls that the property was always mowed and that animals and gardens were raised on the Brack property north of the fence.

Marvin Stamps testified that he remembers Marvin Brack having a garden every year and that his property was fenced on its southern side.

Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
576 So. 2d 1075, 1991 La. App. LEXIS 464, 1991 WL 33635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delgado-v-burns-lactapp-1991.