Harrington v. Abshire

732 So. 2d 677, 1999 WL 182347
CourtLouisiana Court of Appeal
DecidedMarch 31, 1999
Docket98-1651, 98-1652
StatusPublished
Cited by9 cases

This text of 732 So. 2d 677 (Harrington v. Abshire) 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
Harrington v. Abshire, 732 So. 2d 677, 1999 WL 182347 (La. Ct. App. 1999).

Opinion

732 So.2d 677 (1999)

Ruby Abshire HARRINGTON, Plaintiff-Appellee,
v.
Alton ABSHIRE, Defendant-Appellant.
Camilia Abshire Mire, Plaintiff-Appellee,
v.
Alton Abshire, Defendant-Appellant.

Nos. 98-1651, 98-1652.

Court of Appeal of Louisiana, Third Circuit.

March 31, 1999.

*679 Lyle Olen Fogleman, Jr., Crowley, for Ruby Abshire Harrington.

Gary Evans Theall, Abbeyville, for Alton Abshire et al.

Before THIBODEAUX, PETERS, and PICKETT, Judges.

PETERS, J.

In 1981, Clodis Abshire and his wife, Olita Simon Abshire, executed an act of donation in which they transferred ownership of some of their land in Vermilion Parish to their five children, Alton Abshire (Alton), Ruby Abshire Harrington (Ruby), Alice Abshire Foreman (Alice), Hilda Abshire Lege (Hilda), and Camilia Abshire Mire (Camilia). They divided the donated property into five separate tracts and transferred one to each of the five children. The current litigation arose after the death of Clodis and Olita Abshire when Ruby and Camilia each brought an action for injunctive relief against Alton to obtain the removal of levees he had constructed on part of the properties received by them in the donation and to recover damages. Alton, joined by his sisters, Hilda and Alice, reconvened seeking reformation of the donation and reimbursement from Ruby and Camilia for their share of the costs of resurveying the property. The actions were consolidated, and after trial, the trial court rendered judgment in favor of Ruby and Camilia and against Alton, Hilda, and Alice. Alton, Hilda, and Alice appeal this judgment.

DISCUSSION OF THE RECORD

Between 1928 and 1947, Clodis and Olita Abshire purchased approximately 165 to 170 acres of property in Vermilion Parish in three separate acquisitions. The acreage acquired in the acquisitions was contiguous, resulting in a somewhat rectangular-shaped composite tract of land. A fifteen-foot ditch, being the point of contention in this litigation, ran along the eastern boundary of the composite property. However, it is unclear from the record whether Clodis and Olita actually acquired title to the ditch.

At some point, Clodis approached Reule Bourque, an attorney, concerning his desire to divide the tract and donate the property to his five children. Bourque testified that Clodis informed him that he wanted to give his children equal shares of "arable land" or crop land and that he wanted to omit the ditch on the eastern boundary from the donation. Additionally, according to Bourque, Clodis explained to him that Camilia was to have the eastern-most portion of the property adjacent to the ditch. Bourque testified that Clodis specifically stated an intent to leave the ditch out of the donation because he did not wish to include it in Camilia's (or "Meon" as he referred to her) share of the property. Instead, Clodis intended to give Camilia completely viable, arable property similar to that being donated to the other children. When asked about Clodis's intentions concerning the disposition of the ditch, Bourque testified: "The only thing [Clodis] didn't want to do is have the one he called "Meon" get on that ditch." Bourque also explained that Clodis believed he owned a portion of the ditch but that he did not know how much of the ditch he owned, the acquisitions having made no reference to the ditch. In any event, according to Bourque, Clodis thought that the ditch was for public use.

In an attempt to comply with Clodis's instructions, Bourque contacted Clarence Thibodeaux, a registered land surveyor, who surveyed the property and prepared a plat dividing it into five tracts as instructed by Clodis. Thibodeaux testified that Clodis wanted to use the "value part" of the property or the crop land and did not ask him to determine his eastern boundary. Instead, Clodis told Thibodeaux where he wanted the eastern boundary to fall for the survey. Specifically, Thibodeaux explained that Clodis wanted the eastern line of the donated property to be *680 the western side of the ditch. Thibodeaux established the eastern line accordingly.

Thibodeaux prepared a plat dated February 21, 1981, which divided the property into five tracts numbered one through five, with two smaller tracts carved from Tract 1 and designated Lots 1A and 2A and one smaller tract carved from Tract 5 and designated Lot 5A. Bourque testified that once he obtained the plat, he and Clodis inspected it and that Clodis expressed his satisfaction with the proposed division.

On April 27, 1981, Clodis and Olita executed the act of donation transferring Tract 1 to Alton, containing 32.66 acres, which when combined with Lot 1A, which he had apparently previously acquired from his parents, totaled 33.35 acres; Tract 2 and Lot 2A to Alice, containing 32.35 acres and one acre respectively; Tract 3 to Ruby, containing 33.35 acres; Tract 4 to Hilda, containing 33.35 acres; and Tract 5 to Camilia, containing 32.66 acres, which when combined with Lot 5A, being her previous acquisition from her parents, totaled 33.35 acres. Thibodeaux's plat is attached to the act of donation. The plat reflects that Tract 1 is the western-most tract, and that the remaining tracts run sequentially from west to east. All the children viewed the plat and accepted the donation without objection.

Apparently no complaints or disagreements concerning the donation were expressed by any party while Clodis and Olita were alive. However, in 1995, after both parents had passed away, Ruby's son, Lovelace Harrington, Jr., contacted Wilbert Guidry to conduct a new survey. The testimony is in dispute regarding the scope of the intended survey. Lovelace, Ruby, and Camilia testified that Guidry was contacted to survey only Ruby's and Camilia's tracts in anticipation of dividing their property among their children. Guidry, Alton, Hilda, and Alice asserted that Guidry was retained to resurvey the whole estate in anticipation of reapportioning the property equally among the five children. However, Guidry did testify that at some point Ruby and Camilia had asked if he would partition their tracts of land.

In any event, Guidry surveyed the entire estate and prepared a new plat dated October 18, 1995. In preparing this plat, Guidry did not determine the original boundaries according to the titles creating them. He simply accepted the east side of the ditch as the eastern boundary based on Alton's instructions and his observation of old fence posts located on the eastern side of the ditch. The inclusion of the ditch had the effect of increasing the size of each tract by .49 acres. However, it also had the effect of changing the eastern boundary line of all the tracts. Alton's eastern boundary moved three feet east, thereby taking three feet of Alice's property as described in the donation deed; Alice's eastern boundary moved six feet east, thereby taking six feet of Ruby's property as described in the donation deed; Ruby's eastern boundary moved nine feet east, thereby taking nine feet of Hilda's property as described in the donation deed; Hilda's eastern boundary moved twelve feet east thereby, taking twelve feet of Camilia's property as described in the donation deed; and Camilia's eastern boundary moved fifteen feet to the east side of the ditch.

Alton then constructed levees on the six-foot and twelve-foot encroachment areas now claimed by Alice and Hilda but belonging to Ruby and Camilia according to the donation deed. Neither Ruby nor Camilia gave Alton permission to construct the levees. Despite a demand that he remove the levees, Alton refused.

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Cite This Page — Counsel Stack

Bluebook (online)
732 So. 2d 677, 1999 WL 182347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrington-v-abshire-lactapp-1999.