Harry Bourg Corp. v. Punch

653 So. 2d 1322, 1995 WL 240645
CourtLouisiana Court of Appeal
DecidedApril 7, 1995
Docket94 CA 1557
StatusPublished
Cited by12 cases

This text of 653 So. 2d 1322 (Harry Bourg Corp. v. Punch) 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
Harry Bourg Corp. v. Punch, 653 So. 2d 1322, 1995 WL 240645 (La. Ct. App. 1995).

Opinion

653 So.2d 1322 (1995)

HARRY BOURG CORPORATION
v.
Alex PUNCH.
HARRY BOURG CORPORATION
v.
Walton J. DAISY, Jr.

No. 94 CA 1557.

Court of Appeal of Louisiana, First Circuit.

April 7, 1995.

*1323 Robert J. Prejeant, Houma, for defendants-appellants Walton J. Daisy, Jr. and Succession of Alex Punch.

Dennis John Hauge, Houma, for plaintiff-appellee Harry Bourg Corp.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

LOTTINGER, Chief Judge.

These consolidated cases involve a certain tract of disputed property in Terrebonne Parish. Plaintiff, Harry Bourg Corporation, instituted this boundary action on January 24, 1985, against defendants, Alex Punch[1] and Walton J. Daisy, Jr. In answer, defendants allege that they obtained their land by virtue of an act of partition and an act of sale, respectively, and that they acquired ownership of the disputed property through acquisitive prescription.

The trial court ruled that the disputed property exceeded that which was called for in defendants' titles and, therefore, defendants could establish ownership only through thirty years acquisitive prescription. The court noted that for purposes of acquisitive prescription without title, possession extends only to that which is actually possessed. The court concluded that because defendants did not actually possess the property in dispute, they had not established ownership through acquisitive prescription. The court then set the boundary according to the survey submitted by the court appointed surveyor which established the boundary according to plaintiff's title.

*1324 In contrast, we find that defendants established just title to the disputed property. However, because we find that plaintiff maintained corporeal possession of the disputed property, we affirm the trial court's judgment in favor of plaintiff.

The land in dispute is marshland located in Section 35 of Township 19 South, Range 16 East, Terrebonne Parish. By instrument dated December 14, 1934, Mr. Harry Bourg purchased the following portions of Section 35 from the Charles W. Buckley Trust:

The East-half (E ½) and the East-half of the Southwest quarter (E ½ of SW ¼) also the Southwest quarter of the Southwest quarter (SW ¼ of SW ¼) of Section Thirty-five (35) of Township 19 S., Range 16 East, containing 448 acres, more or less.

This property was sold to plaintiff on April 7, 1955.

Defendant, Daisy, asserts that he acquired the following property by virtue of an act of sale from Eldridge Dehart on January 26, 1968:

One certain lot or portion of ground designated as Lot No. 3 on a plat of survey by J.C. Kerstens, C.E. dated April 7, 1964, in Section 35, T 19 S, R 16 E, Parish of Terrebonne measuring 128.2 feet front on Bayou DuLarge by a depth of 1441.8 feet. Said map attached to partition of property executed on May 15, 1964, between Alex Punch, Alvin Guidry, Eldridge DeHart, Celina DeHart, Alphonse J. Authement, Jr and the heirs of Zedolia DeHart, which partition is duly recorded in Terrebonne Parish.

Defendant, Punch, asserts that he acquired his property in the following manner. On April 26, 1960, Matilda DeHart sold to Punch all of her interest, being an undivided one-sixth, in the following described property:

A certain tract of land in Sec. 35, T-19-S, R-16-E, in the Parish of Terrebonne, Louisiana, about 18 miles below the City of Houma, measuring a front of four (4) arpents on the left descending bank of Bayou DuLarge by depth of survey, the side lines opening to the rear; bounded above by property of John Theriot, formerly Abel Blanchard, and below by property of Anthony Lovell, formerly Ellis Billiot; together with the buildings and improvement thereon, and all rights, ways, privileges, servitudes and prescriptions thereto belonging.

Punch obtained ownership of his property on May 15, 1964, by act of partition with the other DeHart heirs. The property he acquired was described in the partition as:

One certain lot or portion of ground designated as Lot No. 1 on a plat of survey by J.C. Kerstens, C.E. dated April 7, 1964, in Section 35, T 19 S, R 16 E, Parish of Terrebonne measuring 128.2 feet front on Bayou DuLarge by a depth of 1441.8 feet.

Based on these descriptions, defendants contend that Lots 1 and 3 are 1441.8 feet deep. Approximately one-half of this depth overlaps the property claimed by plaintiff. See Appendix A.

ASSIGNMENT OF ERROR

In brief, the defendants assert that the trial court erred as a matter of law and fact "in concluding that [they] had not established title to the entirety of their tracts as described in the Kersten Survey by virtue of ten years' acquisitive prescription."

While this suit began as a boundary action, title prescriptions may be pled in boundary actions, and boundary prescriptions in title suits. Ledoux v. Waterbury, 292 So.2d 485, 487 (La.1974). By pleading prescription, defendants had the burden of proving the four requisites for ten years acquisitive prescription: (1) possession for ten years; (2) good faith; (3) just title; and (4) a thing susceptible of acquisition by prescription. La.Civ.Code art. 3475. The two requirements at issue in this case are just title and possession.

JUST TITLE

In this case, the trial judge concluded that defendants did not have just title to the disputed property.

*1325 A title is just for purposes of acquisitive prescription when the deed is regular in form, is valid on its face, and would convey the property if executed by the owner. O'Brien v. Alcus Lands Partnership Trust, 577 So.2d 1094, 1097 (La.App. 1st Cir.1991); La.Civ.Code art. 3483. The title relied upon by one seeking to establish ten years acquisitive prescription must sufficiently describe the property so as to transfer its ownership. One must be able to identify and locate the property from the description in the deed itself or from other evidence which appears in the public records. O'Brien, 577 So.2d at 1097.

In his oral reasons for judgment, the trial judge stated that "the property as presently claimed by the Punch heirs, and Mr. [Daisy], exceed what is called for in their title." In reaching this conclusion, the trial judge reviewed previous property descriptions contained in defendants' chain of title. The judge stated:

As you look back in the property descriptions, you find that the subject property presently owned by Mr. [Daisy] and the Punch heirs were originally part of the sale by Robert Barrow to a Mr. Billiot and forms Lots 1, 2, 3, 4 and 5 of Section 35. When you view the descriptions, most of the depths and the sales that follow refer to depth of survey. Depths of survey historically has meant the depth by which the governmental original survey showed the property to run normally that is in this area that has been generally at twenty arpents deep or forty arpents deep, depending upon section lines. In this particular case when the governmental survey was done, lots were depicted on that governmental survey and unfortunately for Mr. [Daisy] and the Punch heirs that depth was not anything near twenty arpents or forty arpents, but was relatively close to Bayou Dularge.

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Cite This Page — Counsel Stack

Bluebook (online)
653 So. 2d 1322, 1995 WL 240645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harry-bourg-corp-v-punch-lactapp-1995.