Kennedy v. Kennedy

668 So. 2d 485, 1996 La. App. LEXIS 85, 1996 WL 45003
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1996
DocketNo. 27810-CA
StatusPublished
Cited by1 cases

This text of 668 So. 2d 485 (Kennedy v. Kennedy) 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
Kennedy v. Kennedy, 668 So. 2d 485, 1996 La. App. LEXIS 85, 1996 WL 45003 (La. Ct. App. 1996).

Opinions

UMAKVIN, Chief Judge.

In this dispute between the 89-year-old usufructuary and the 68-year-old naked owner of 143 acres of old-growth timberland in Claiborne Parish, not managed as a tree farm in more than 50 years, the naked owner devolutively appeals a judgment which, in part, authorizes the usufructuary to clear cut and replant the trees on 113 acres and to selectively cut trees from the remaining 30 acres, as initially recommended by a forester hired by the usufructuary. The judgment grants to the usufructuary all proceeds from the sale of the timber as well as the proceeds deposited into the court registry, about $32,-000, derived from the sale by the litigants, before trial, of a number of trees infested with pine beetles.

We weigh and balance the respective rights and obligations of the usufructuary and the naked owner as set forth in Civil Code articles 535-629, affirming in part and reversing in part the trial court’s judgment.

We also order the usufructuary to cease timber cutting operations on the 113-acre parcel, if such operations are in progress, and grant the naked owner the right to obtain, by agreement or by further proceedings in the trial court, an accounting and transfer of the funds the usufructuary has received for the sale of any timber cut from the 113-acre parcel after the trial court judgment was rendered. CCP Art. 2164.

Disposition of the $32,000 deposited into the court registry by the litigants is governed by their written stipulation, which we shall later discuss in this opinion.

[488]*488FACTS

hThe facts are largely undisputed. Walter Kennedy, who was the spouse of the usufruc-tuary and a cousin of the naked owner, owned the land for many years before he died testate and without issue in 1988. The plaintiff-spouse, Helena Babin Kennedy, and the defendant-cousin, James Kennedy, acquired their respective interests from Walter Kennedy’s testamentary bequest. At the trial in 1994, Helena was 89 years old and James was 68.

The stand of trees on 113 of 143 acres or about 80 percent of the tract, consists of loblolly pine mixed with hardwood. The trees on this parcel were estimated to be about 60-75 years old by the forestry experts who visited the property in 1992-1993. The remaining 20 percent of the tract, a 30-acre parcel that was once cultivated and farmed, contains a stand of pine trees estimated to be 45-50 years old.

As stated, no part of the 143-acre tract has been managed as a tree farm to produce regular or sustained income. Occasional “bug cuts” were made from time to time to remove a few trees infested with pine beetles, and perhaps one harvest of pine trees for “poles” was made in the late 1970’s, when the favorable market prices persuaded Walter Kennedy to sell a small amount of his timber, contrary to his often stated preference, according to relatives, to “let the timber grow.”

At the time of trial, the value of the timber on the 143-acre tract was estimated at $2,200-2,500 per acre. The value of the land itself, without the trees or planted seedlings, was generally estimated to range from $200-300 hper acre by the several experts. One expert valued the raw land at $475 per acre.

According to this record, James Kennedy has not opposed the selective cutting of timber by Mrs. Kennedy, from some or all of the 143-acre tract, at any time after Walter Kennedy’s death in 1988. James Kennedy testified, however, that when he learned of Mrs. Kennedy’s intention to clear cut the timber in April 1992 and attempted to discuss the selective cutting alternative with her, she refused to consider that option, telling him that “the deal [to clear cut and sell all of the standing timber] had ... been done.” Mrs. Kennedy brought her action for court approval to clear cut a few months later, in October 1992. She did not testify at trial.

All experts agreed that some of the timber should be cut, based on such factors as the age of the trees and the favorable market prices for pine sawlogs. The experts differed, however, as to the extent of recommended cutting: clear or total cutting v. selective cutting or thinning. Clear cutting removes all of the merchantable sawlogs at one time. A selective cut removes only the mature and diseased trees, leaving the younger and healthier trees to reach maximum growth.

Considering the advanced age of these trees, and the absence of any history of periodic timber management of the 143-acre tract, Mrs. Kennedy’s experts, Freshwater and Peters, recommended that most or all of the stand be clear cut. Freshwater, who favored clear cutting the entire tract, opined that little or no additional growth will occur if the stand is merely thinned or selectively cut. Peters, however, considered the 143-acre tract as two |4distinct parcels: 113 acres of mixed pine and hardwood, containing trees that are 60-75 years old, and 30 acres of pine trees that are 20-30 years younger, or about 45-50 years old. Peters favored selectively cutting or thinning the timber on the 30-acre parcel, while agreeing with Freshwater that the old-growth timber on the 113-acre parcel should be clear cut.

Peters and Freshwater recommended that any clear-cut areas be replanted with “genetically improved” or hybrid pine seedlings, to be purchased by Mrs. Kennedy. The replanted land would produce no merchantable timber for approximately the first 15 years, and then only lesser-paying pulpwood and chipping saw wood in years 15-30. The experts explained that 30-40 years of growth was necessary for the seedlings to grow into mature and more valuable pine sawlogs comparable to the trees on the property at Walter Kennedy’s death in 1988.

James Kennedy’s experts, Wade and Patterson, agreed that some trees throughout the 143-aere tract should be selectively cut, [489]*489but opposed clear cutting on any part of the tract. These experts recommended that the entire tract be selectively cut to harvest no more than 50 percent of the standing timber, leaving the rest to continue growing, as they opined it would, and to naturally seed the soil for the formation of new trees. Under a properly managed selective-cut timber plan, harvests of sawlogs are periodically rotated or staggered every few years.

Selective cutting obviously yields less immediate revenue than clear cutting, but does not totally deplete the revenue-producing potential of the property for the 15-year period needed to grow pulp- or chip-wood or for the 1530 or more years needed to grow sawlogs. Selective cutting thus provides a steadier source of income to the property owner over time, albeit in a lesser amount per harvest than the amount obtainable from a clear cut.

The trial court approved the timber management plan advanced by Mrs. Kennedy’s expert, Peters, that would clear cut the 113 acres and selectively cut the 30 acres. James Kennedy’s opposition to the court plan targets the 113-acre clear-cut provision. He does not seriously quarrel with the 30-acre selective cut. Mrs. Kennedy did not appeal or answer Kennedy’s appeal.

APPLICABLE LAW

Usufruct is a real right of limited duration on the property of another. A usufructuary’s rights vary according to the nature of the thing. CC Art. 535. At this juncture we note that the thing subject to the usufruct is simply the land, no distinction being made between the land and timber, the ownership of which may be separated. See CC Art. 491. Considering the nature of the thing subject to this usufruct, we emphasize the codal scheme.

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Related

Kennedy v. Kennedy
699 So. 2d 351 (Supreme Court of Louisiana, 1997)

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Bluebook (online)
668 So. 2d 485, 1996 La. App. LEXIS 85, 1996 WL 45003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-kennedy-lactapp-1996.