Fallin v. Pesnell

667 So. 2d 581, 1996 WL 23406
CourtLouisiana Court of Appeal
DecidedJanuary 24, 1996
Docket27814-CA
StatusPublished
Cited by8 cases

This text of 667 So. 2d 581 (Fallin v. Pesnell) 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
Fallin v. Pesnell, 667 So. 2d 581, 1996 WL 23406 (La. Ct. App. 1996).

Opinion

667 So.2d 581 (1996)

Henry Ford FALLIN and Bette Jo Roane Fallin, Appellants,
v.
Leon PESNELL and Annie Lou Pesnell, Appellees.

No. 27814-CA.

Court of Appeal of Louisiana, Second Circuit.

January 24, 1996.
Rehearing Denied February 22, 1996.

*582 Napper, Waltman, Madden & Roger by Thomas W. Rogers, Ruston, for appellants.

Bobby L. Culpepper, Jonesboro, for appellees.

Before MARVIN, SEXTON and GASKINS, JJ.

GASKINS, Judge.

In this petitory/boundary action, Henry Ford Fallin and Bette Jo Roane Fallin appeal from an adverse judgment which set the boundary between their property and that of their neighbors, Leon Pesnell and Annie Lou Pesnell, along an old fence line. For the reasons assigned below, we reverse the judgment of the trial court.

FACTS

The Fallins are the record owners of the West ½ of the SE¼ and the SW¼ of the NE¼ of Section 3, Township 17 North, Range 2 West, in Jackson Parish. They acquired the land in two tracts in 1989 and 1990.

The Pesnells are the record owners of the East½ of the SE¼ and the South 5 acres of the 15 acres of the S½ of the SE¼ of the NE¼ of Section 3, Township 17 North, Range 2 West, in Jackson Parish. They acquired this land from the Simpson family in 1970.

The Pesnells' tract lies contiguous to the east side of the Fallins' property. Thus, the central issue here is the determination of the common boundary between their respective tracts of land, i.e., the eastern boundary of the Fallin property and the western boundary of the Pesnell land. In dispute is a 6.06 acre tract of land.

In May 1991, the Pesnells commissioned a survey by Albert D. Hulett, Jr., to establish the boundary line. Their neighbors, the Fallins, were pleased with the survey results, marked the line established by Mr. Hulett with silver paint, and posted it against trespassers. Shortly thereafter, the Pesnells filed a possessory action under LSA-C.C.P. Art. 3655. The trial court ruled in favor of the Pesnells and recognized their right to the possession of the disputed tract. Pursuant to LSA-C.C.P. Art. 3662, Fallin was ordered to assert any adverse claim of ownership in a petitory action within 60 days.

The Fallins then filed the present petitory/boundary action, contending that the boundary line is the one established in Mr. Hulett's survey. The Pesnells maintain that the boundary is the line shown on a possession survey by William T. Lowe which follows the remnants of an old fence line and is west of the boundary set by Mr. Hulett.

In its written opinion, the trial court found that the Fallins carried their burden of proving record title in the petitory action. The trial court then was required to establish the proper boundary line between the tracts. It relied upon the testimony of Leon Pesnell, his son James Pesnell, and Perry Simpson, the previous owner who sold the property to the Pesnells, to conclude that the boundary between the property was established by the old fence line shown in Pesnell Exhibit # 1, Mr. Lowe's possession survey. Judgment was rendered in favor of the Pesnells.

The Fallins' motion for new trial was denied. In its oral reasons for denying the motion for new trial, the trial court stated that neither Mr. Hulett or Mr. Lowe, the *583 Pesnells' surveyor, had based his survey upon commencement from an "established documented recognized governmental survey point." Because of this failure, the trial court found that it could not rely on either to establish the boundary line. Therefore, the court considered the evidence of possession to the old fence line to be determinative.

The Fallins appealed. They contended that the trial court erred in two respects: (1) apparently finding that the Pesnells had established 30-year adverse possession, and (2) failing to give proper weight to Mr. Hulett's survey.

ACQUISITIVE PRESCRIPTION

The Fallins contend that the trial court erred in finding that the Pesnells proved entitlement to the disputed strip of land by acquisitive prescription of 30 years under LSA-C.C. Art. 794. We agree.

Law

The law in this area was concisely summarized by this court in Odom v. Elliott, 452 So.2d 315, 318 (La.App. 2d Cir.1984):

In a judicial fixing of boundaries, the court shall fix boundaries according to the ownership of the parties. LSA-C.C. Art. 792. When both parties rely on title alone, the boundary shall be fixed according to title. LSA-C.C. Art. 793.... However, acquisitive prescription may be pled in a boundary action. Fruge v. Lyons, 373 So.2d 220 (La.App. 3d Cir.1979). Moreover, where either party proves acquisitive prescription, "the boundary shall be fixed according to limits established by prescription rather than titles." LSA-C.C. Art. 794. Simply stated, prescriptive ownership eclipses title ownership. Where neither party proves ownership by title or acquisitive prescription, boundaries are fixed according to the parties' possession— rather than ownership. LSA-C.C. Art. 792.

Under Civil Code Art. 794, a title holder may acquire more land than his title calls for by possessing property beyond his title for 30 years without interruption and within visible bounds. Such a title holder may attain the thirty year possessory period by "tacking" on the possession of his ancestor in title. LSA-C.C. Arts. 794, 3442. Brown v. Wood, 451 So.2d 569 (La.App. 2d Cir.1984), writ denied, 452 So.2d 1176 (La. 1984).

The party seeking title to a tract of land through acquisitive prescription bears the burden of proof. Owens v. Smith, 541 So.2d 950 (La.App. 2d Cir.1989).

The determination of a disputed boundary is a question of fact which should not be disturbed on appeal in the absence of manifest error. See Barham v. Department of Highways, 431 So.2d 899 (La.App. 2d Cir. 1983), writ denied, 438 So.2d 1111 (La.1983); Leblanc v. Laborde, 368 So.2d 1126 (La.App. 3d Cir.1979), writ denied, 369 So.2d 1377 (La.1979).

Occasional hunting is insufficient to constitute actual corporeal possession. Norton v. Addie, 337 So.2d 432 (La.1976); Tenneco Oil Company v. Pitre, 496 So.2d 502 (La.App. 1st Cir.1986), writ denied, 497 So.2d 1388 (La.1986).

Discussion

If the Pesnells can demonstrate acquisitive prescription of 30 years under LSA-C.C. Art. 794, they can eclipse any title ownership by the Fallins. Since the Pesnells did not purchase their property until 1970, they must tack their possession to that of Mr. Simpson, their predecessor in title, in order to demonstrate acquisitive prescription of 30 years.

The Fallins contend that the trial court gave undue weight to the testimony of Mr. Simpson and Leon Pesnell.[1] They contend that the testimony of these two witnesses was so confused that the trial court should *584 have accorded it little or no weight. They attack the testimony of James Pesnell on the basis that he had insufficient contact with the property to establish any adverse possession.

We find merit in the Fallins' arguments.

On the issue of the Pesnells' possession of the property, Leon Pesnell and his son James testified. Leon Pesnell was 78 years old when his discovery deposition was taken for the possessory action and 79 years old when he testified in the trial of that matter. According to his son, Mr. Pesnell suffered from Alzheimer's disease.

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Cite This Page — Counsel Stack

Bluebook (online)
667 So. 2d 581, 1996 WL 23406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fallin-v-pesnell-lactapp-1996.