Hesser v. Richardson

579 So. 2d 1136, 1991 WL 74795
CourtLouisiana Court of Appeal
DecidedMay 8, 1991
Docket22298-CA
StatusPublished
Cited by6 cases

This text of 579 So. 2d 1136 (Hesser v. Richardson) 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
Hesser v. Richardson, 579 So. 2d 1136, 1991 WL 74795 (La. Ct. App. 1991).

Opinion

579 So.2d 1136 (1991)

Felix Alexander HESSER and Sally Hesser Bates, Plaintiff/Appellant,
v.
Alf RICHARDSON, Alf Richardson Jr. and Hewitt Richardson, Defendant/Appellee.

No. 22298-CA.

Court of Appeal of Louisiana, Second Circuit.

May 8, 1991.

*1137 Plummer, Means & Burgess by David B. Means, III, Mansfield, for plaintiff/appellant.

Bethard & Davis by James G. Bethard, Coushatta, for defendant/appellee.

Before LINDSAY, BROWN and STEWART, JJ.

LINDSAY, Judge.

This is a petitory action. The plaintiffs, Felix Hesser and Sally Hesser Bates, appeal a trial court judgment finding that the defendants, Alf Richardson, Alf Richardson, Jr. and Hewitt Richardson acquired ownership by thirty year acquisitive prescription of a tract of land known as the old Chemard Lake Bed in DeSoto Parish. We affirm the trial court judgment.

FACTS

The property in dispute in this case is an irregularly shaped portion of the dry lake bed of Chemard Lake referred to by local residents as the "brake." The property was previously the subject of a possessory action filed by the Richardsons. See Richardson v. Hesser, 516 So.2d 1288 (La. App.2d Cir.1987).

According to this court's opinion in the possessory action, in 1944 or 1945, Alf Richardson built a house on a piece of property to the west of the dry lake bed or brake. He consistently raised crops on the property and ran cattle in the dry lake bed. At some point, at least a portion of the property surrounding Mr. Richardson's house was fenced. Continental Hodge Woodlands Incorporated (Continental) *1138 claimed ownership of the high ground around Alf Richardson's house and bordering the dry lake bed. In October, 1983, Continental instituted a petitory action against Mr. Richardson. This dispute was resolved when Continental quitclaimed to Mr. Richardson three acres of land surrounding his house. Mr. Richardson quitclaimed the remainder of the high ground to Continental. However, this agreement excluded the dry lake bed of Chemard Lake which is the subject of the present litigation.

In 1978, the Hessers executed a coal and lignite lease in favor of CLECO and SWEPCO covering the dry lake bed. In 1985, the Richardsons instituted a possessory action against the Hessers, claiming to be in possession of the dry lake bed. The trial court found that the Richardsons had not proved possession of the lake bed.

This court reversed the trial court judgment. Richardson v. Hesser, supra. We held that the evidence showed the Richardsons had in fact been in possession of the dry lake bed. This court found that the Richardsons had taken corporeal possession of the property "many years ago" and continued that possession at least until 1985. This court further found that the Richardsons possessed within enclosures and that even after Mr. Richardson moved out of his house in the early 1980's, the Richardsons continued to raise cattle, repair fences and cut firewood from the property in question. We recognized the Richardsons' right to possession of the "old lake bed of Chemard Lake known as the break [sic], located in the SW 1/4 of the NW 1/4 and the NW 1/4 of the SW 1/4 of Section 11, Township 11 North, Range 11 West, DeSoto Parish, Louisiana."

As a part of this court's decision, the Hessers were ordered to assert their claim to ownership of the disputed property within sixty days of the date our opinion became final. The present suit, filed by the Hessers, was instituted in response to that order. The Hessers claim to be record owners of the disputed property. The Richardsons answered and claimed ownership of the property by virtue of thirty years acquisitive prescription.

At trial, the Hessers proved they held record title to the lake bed. The Richardsons then sought to establish their claim to ownership of the property by acquisitive prescription. The main factual dispute in this case is whether the property had in fact been fenced along the southern boundary for more than thirty years.

The Richardsons presented several witnesses who testified that the entire property had been fenced for more than thirty years and that the Richardsons lived on the property and raised crops and cattle during that time. On the contrary, the Hessers offered testimony that the fence on the southern boundary was not present in the early 1970's and that the fence which now exists was put up approximately twenty years ago.

The trial court weighed the evidence and found that the Richardsons had proved ownership by acquisitive prescription. In written reasons for judgment, the trial court noted that the fencing on the property had been completed for at least thirty years prior to 1985 and that the Richardsons had acquired title to the dry lake bed by acquisitive prescription. The Hessers appealed.

ADMISSIBILITY OF THE RECORD IN PRIOR PROCEEDINGS

At the trial, the Richardsons sought to introduce the entire record and the exhibits from the possessory action between these parties. The Hessers objected, claiming that the introduction of the record of the prior proceeding would deny them the right of cross-examination "on the issue of the term of possession." The trial court declined to rule on the matter at that time, instead choosing to take the matter under advisement. In reasons for judgment, the trial court stated that the entire record from the prior proceedings was admitted. On appeal, the Hessers assert that the trial court erred in making this ruling. They argue that the trial court failed to follow the proper procedures for introducing the record of the possessory action. They also *1139 argue that the trial court erred in taking this evidentiary matter under advisement because it failed to allow them an opportunity to rebut the record and therefore denied them their right to full cross-examination. The Hessers also argue that there was no showing that the witnesses in the possessory action were not available to testify in the present action, that the issues in the two cases were not the same and that the record of the possessory action would not be the "best evidence." These arguments have merit, but we find that the admission of the prior record constitutes harmless error.

The Hessers argue that the trial court erred in failing to follow the procedure for admission of records set forth in LSA-R.S. 13:3723. Specifically they argue that the trial court erred in taking the matter under advisement and ruling on the issue of admissibility after the conclusion of the trial. LSA-R.S. 13:3723 provides:

Whenever, during the trial of any suit or process, whether civil or criminal, before any of the district courts, either party may desire to offer into evidence any record, paper or document belonging to the file or records of the district court of the parish in which the trial is proceeding, the presiding judge at the request of such party shall direct the clerk of the district court to produce such record, document, or paper, in order that it may be used in evidence. The clerk in any such case shall not have to make a copy of any such record, document, or paper, unless the case in which it is offered is appealed, in which case the transcript of appeal shall be made up from the papers themselves.

However, the jurisprudence holds that LSA-R.S. 13:3723 is designed for the convenience of the parties in the production of evidence but it does not govern the admissibility of such evidence after it is produced by the clerk. Wells v. Allstate Insurance Company, 510 So.2d 763 (La.App. 1st Cir. 1987), writ denied 514 So.2d 463 (La.1987).

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Bluebook (online)
579 So. 2d 1136, 1991 WL 74795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hesser-v-richardson-lactapp-1991.