Jackson v. Herring

86 So. 3d 9, 2012 WL 204519, 2012 La. App. LEXIS 49
CourtLouisiana Court of Appeal
DecidedJanuary 25, 2012
DocketNo. 46,870-CA
StatusPublished
Cited by3 cases

This text of 86 So. 3d 9 (Jackson v. Herring) 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
Jackson v. Herring, 86 So. 3d 9, 2012 WL 204519, 2012 La. App. LEXIS 49 (La. Ct. App. 2012).

Opinions

STEWART, J.

^ The plaintiff, Everlee Jackson, appeals a judgment dismissing her suit captioned as a “Petitory Action with Request for Declaratory Relief’ against the defendants, Billy and Edith Herring (“the Herrings”), concerning a small piece of property near Grand Cane in DeSoto Parish. For the reasons explained in this opinion, we reverse the trial court’s judgment and remand for the trial court to fix the boundary in accordance with La. C.C. art. 794.

FACTS

Ms. Jackson’s petition filed on April 22, 2009, asserted that she is the owner of Lot 14, described as follows:

Lot 14, known as the Hobgood residence site,- being the same property as is described in Conveyance Book 4, page 462, records of Desoto Parish, Louisiana and two lots in Grand Cane, Louisiana, being lots No. 1 and 12 of Block 35 of the Town of Grand Cane, LA, as per map of plat thereof and being the same property as is described in Book 6, Page 147, Conveyance Records of Desoto Parish, Louisiana, together with all buildings and improvements thereon. (Being the same property sold by Sheriffs Sale Deed executed under date of August 22, 1984, unto Jessie Lee Ford, bearing Registry # 469,318 and filed in Book 562 at Page 425, Conveyance Records of De-soto Parish, La.)

Ms. Jackson asserted that Jessie Lee Ford sold Lot 14 to her by cash sale deed on July 24, 2007. In November 2008, the Herrings erected a fence that barred Ms. Jackson’s access to part of the property on which a house is located. Ms. Jackson requested that the court order a survey to ascertain the limits of her property, and she prayed for a judgment ordering the Herrings to remove the fence and providing “all other general and equitable relief.”

In an amended and supplemental petition filed after the Herrings’ answer, Ms. Jackson asserted that she has had uninterrupted possession of the property in dispute “in excess of ten years.”

|2In their answer, the Herrings denied the allegations of Ms. Jackson’s petition. They asserted they erected the fence entirely on their own property on the north side of La. Highway 3015 (“the highway”) and that Ms. Jackson’s property, Lot 14, is located entirely on the south side of the highway. The Herrings claimed that the property at issue is part of a 28-acre tract which they purchased in 1994 from Harry L. Calhoun and Sheila L. Smith Calhoun and which is described as follows:

A tract containing 28 acres, more or less, located in and adjacent to the Town of Grand Cane, Louisiana, described as follows: Commencing 6 chains North and 71 degrees West from the Northwest Corner of Lot 13(said Lot 13 being described in the transfer of W.F. Hob-good as recorded in Conveyance Book 2, Page 408), running thence North 73 degrees West 19 chains 87 links; thence North to the line between Southeast Quarter and Northeast Quarter of Section 29, Township 13 North, Range 14 West; then run East with said line to Grand Cane city limits 21 chains 43 links, thence with said line South 22 degrees East 13 chains 85 links, thence South 68 degrees West 2 chains 68 links; [11]*11thence North 71 degrees West 4 chains 74 links; thence South 17 degrees West 3 chains 35 links to place of beginning, containing 28 acres, more or less; being a portion of the property acquired by Moss M. Bannerman from John M. Rogers by deed of March 31, 1911, recorded in Book 26, Page 333, and acquired by John N. Rogers from T.D. Jefferies on January 30, 1906, recorded in Book 19, Page 154, Conveyance Records of Deso-to Parish, Louisiana, together with all buildings and improvements located thereon.
SAID Lot 13 described in the transfer deed to W.F. Hobgood being described as follows, to-wit:
Commencing at the Southwest Corner of Grand Cane, Desoto Parish, Louisiana, thence run West 9 chains 73 links; North 07 degrees West 13 chains; South 83 degrees East 05 chains 98 links to Grand Cane city line; thence run South 22 degrees East to place of beginning, containing 10.32 acres, together with all buildings and improvements located thereon.

The Herrings also pled acquisitive prescription of 10 years.

^Photographs in evidence show the disputed property to be in a rural area. An old red house is set off the highway in a clearing, and a smaller structure is located behind the house. A barbed wire fence affixed with a sign marked “private property” and “no trespassing” runs along the front of the property just beyond the ditch and utility poles.

The matter proceeded to a trial on March 31, 2011.

Trial Testimony

Ms. Jackson, age 78, testified that she purchased Lot 14 from Jessie Lee Ford (“Aunt Jessie”), her 101-year old aunt who was in a nursing home at the time of trial. She related that Aunt Jessie obtained Lot 14 from her aunt, Ruby Lee Ford Johnson (“Aunt Ruby”), and she introduced a sheriff sale deed dated August 22, 1984, evidencing Aunt Jessie’s purchase of Lot 14 belonging to the Succession of Ruby Ford Johnson. Ms. Jackson also introduced the cash sale deed evidencing the purchase of Lot 14 by Aunt Ruby from Myrtis D. Porter, in 1959. Ms. Jackson explained that Aunt Ruby and Myrtis were the daughters of John Ford, her great-great grandfather who purchased Lot 14 of the Hobgood Estate, from S.D. Hobgood in 1890 as evidenced by the cash sale warranty deed which was also introduced into evidence. We note that the property descriptions in both the 1890 deed and the 1959 deed refer to Lot 14 as containing 2.32 acres.

Ms. Jackson stated her belief that the disputed property is part of Lot 14 and related her memories of visiting there from the time that she was a little girl. She dated her earliest memories to when she was seven years old. |4She recalled going there to visit Aunt Jessie and Aunt Ruby and playing under the plum trees on the property. She stated that Aunt Jessie had occupied the house for as long as she could remember. She related that another house, which no longer exists, had also been located “next to the little outer house” and occupied by a cousin named Tim Ford. She recalled going to her cousin’s house, which had been torn down and running “to the other house which was Aunt Ruby Lee Ford across the road.”

Ms. Jackson testified that she would check the house periodically because Aunt Jessie had furniture, clothing, and other items in the house. She stated that the bathroom had been “recently remodeled.” According to Ms. Jackson, Aunt Jessie had maintained utilities at the house and she continued to do so. She explained that she [12]*12was still “paying the light bill.” Ms. Jackson last visited the house two years ago around the time the fence was erected. She believed it was September. She stated that the young man who took care of the yard around the house every two weeks told her that a fence had been erected and a no trespassing sign put up.

When questioned by counsel for the Herrings, Ms. Jackson clarified that there had been two houses on the property north of the highway and one house on the property south of the highway. She also reiterated her belief that the red house is located on Lot 14 property north of the highway. When asked whether anyone had lived in the red house on a regular basis during the last ten years, she stated, “Not on a regular basis, but someone was living there.” She noted that she had been unable to get to the house within Ifithe last two years since the Herrings erected the fence and posted the “No Trespassing” sign.

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Cite This Page — Counsel Stack

Bluebook (online)
86 So. 3d 9, 2012 WL 204519, 2012 La. App. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-herring-lactapp-2012.