Livingston v. Unopened Succession of Dixon

589 So. 2d 598, 1991 La. App. LEXIS 2818, 1991 WL 226589
CourtLouisiana Court of Appeal
DecidedOctober 30, 1991
Docket22964-CA
StatusPublished
Cited by19 cases

This text of 589 So. 2d 598 (Livingston v. Unopened Succession of Dixon) 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
Livingston v. Unopened Succession of Dixon, 589 So. 2d 598, 1991 La. App. LEXIS 2818, 1991 WL 226589 (La. Ct. App. 1991).

Opinion

589 So.2d 598 (1991)

Henry Wallace LIVINGSTON, et al., Plaintiffs-Appellants,
v.
The UNOPENED SUCCESSION OF DIXON, et al., Defendants-Appellees.

No. 22964-CA.

Court of Appeal of Louisiana, Second Circuit.

October 30, 1991.

*599 Tommy Cooper, Jr., Rayville, for plaintiffs-appellants.

William R. Coenen, Rayville, for defendants-appellees.

Before NORRIS, LINDSAY and BROWN, JJ.

LINDSAY, Judge.

The plaintiffs, Henry Wallace Livingston and Doyle Rogers, Sr. appeal from a trial court judgment in favor of the defendants, the unopened succession of J.I. Dixon, Samie Charles Davis, Shirley Dixon Davis, Mrs. J.I. Dixon, James E. Dixon and Nancy Dixon, finding that the defendants had established ownership by 30-years acquisitive prescription of a strip of land located along the east/west boundary of the property *600 owned by the plaintiffs and defendants. We affirm the trial court judgment.

FACTS

The plaintiffs, Henry Wallace Livingston and Doyle Rogers, Sr., are owners in indivision of all of Section 13, Township 17 N, Range 8 E, in Richland Parish. Livingston and Rogers obtained title to this property in 1961.

In 1944, the late J.I. "Sonny" Dixon acquired property adjacent to and east of the plaintiff's property in Section 18, Township 17 N, Range 9 E, in Richland Parish, comprising approximately eighty acres. Mr. Dixon died in the late 1960s and his succession was never opened. His heirs, Mrs. J.I. Dixon, James E. Dixon, Nancy Dixon, Shirley Dixon Davis and Samie Charles Davis are the defendants in the present action[1].

The plaintiffs claim that when they purchased the property in 1961, they discussed with J.I. Dixon that a fence separating the properties was not on the survey line and encroached on the plaintiffs' property. They claim that Mr. Dixon acknowledged this fact and that the parties talked about having a survey made[2]. The relationship of the plaintiffs' and defendants' property and the disputed fence line is illustrated by the following diagram:

*601

It was not until 1978 that the plaintiffs hired Kenneth McKay to make a survey to establish the boundary line. The plaintiffs claim that in 1979 they built a new fence according to this survey. They alleged that the defendants tore down this fence in April, 1980 and reestablished the fence along the old fence line.

The plaintiffs originally filed a boundary action on July 18, 1980, but that suit was dismissed for abandonment on November 16, 1989.

The plaintiffs filed the present suit to establish the boundary on December 15, 1989. On January 8, 1989, the defendants answered and filed a reconventional demand in which they asserted ownership by virtue of 30-years acquisitive prescription.

The case was tried on May 10 and July 19, 1990. The trial court decided in favor of the defendants, finding that they established ownership of the disputed property by 30-years acquisitive prescription.

*602 The trial court found that the disputed fence had been intact from 1944 until a portion was reconstructed in 1965 to straighten out a curvature. The original fence curved out to encompass a slough or watering hole, but in 1965, that portion of the fence was straightened out. The court found that this action did nothing to interrupt the defendants' possession of the property up to the straightened fence line.

The court found that the defendants' possession had been corporeal since its inception. Citing LSA-C.C. Art. 3427, the court found that there was no showing that J.I. Dixon intended to possess for anyone else, therefore he is presumed to have possessed for himself as owner.

The court found that the defendants rebutted the plaintiffs' evidence that the fence did not appear in aerial photos taken in 1941 and 1951 by presenting the testimony of other adjoining land owners who stated that their fences, which they knew were actually in place, did not show up in such aerial photographs.

The court also found that evidence presented by the plaintiffs to show that the disputed fence was constructed in 1952 was rebutted because it was shown that the witnesses were testifying about a fence on the north/south boundary of the plaintiffs' property and not the east/west boundary at issue here.

The court found that the defendants possessed the property as owners from 1944 and acquired ownership by 1974.

The court also found that even though the plaintiffs constructed a new fence on the survey line in February, 1979, the defendants tore this fence down in August, 1979, not April, 1980. Therefore, their possession was not interrupted for a period of more than one year.

The plaintiffs appealed.

POSSESSION WITH INTENT TO OWN

The plaintiffs argue that the trial court erred in finding that the defendants and their ancestor in title, J.I. Dixon, possessed the land with the intent to possess as owners. This argument is meritless.

Regarding acquisitive prescription, LSA-C.C. Art. 3424 provides that to acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. Corporeal possession is the exercise of physical acts of use, detention or enjoyment over a thing. LSA-C.C. Art. 3425. One is presumed to intend to possess as owner unless he began to possess in the name of and for another. LSA-C.C. Art. 3427; Nugent v. Franks, 471 So.2d 816 (La.App. 2d Cir.1985). The intent to possess as owner may be inferred from all the surrounding facts and circumstances. Williams v. McEacharn, 464 So.2d 20 (La.App. 2d Cir.1985). Openly maintaining property to which one does not have record title by raising crops or using the property for pasturage is evidence of intent to possess the property as owner. Williams v. McEacharn, supra.

In this case, the defendants' ancestor in title, J.I. "Sonny" Dixon, purchased property to the east of the plaintiffs' in 1944. The plaintiffs purchased property next to the Dixon property in 1961. A fence was in existence separating the plaintiffs' property and the defendants' property. The plaintiffs claim that after they purchased their property, they had discussions with J.I. Dixon about the fact that the fence did not appear to be on the true survey line, but rather was encroaching on the plaintiffs' property. They alleged that Mr. Dixon acknowledged that he did not know where the true property line was. These discussions allegedly occurred around 1965. The plaintiffs argue that at that time, J.I. Dixon stated that if the plaintiffs got the property surveyed, he would go along with the survey. The plaintiffs further claim that Mr. Dixon once asked them if he could tie onto the fence to continue a new fence to the southwest corner of his property. However, even though the plaintiffs subsequently obtained a survey in 1965 and marked the survey line with red marks on trees, the fence line was not moved and Mr. Dixon continued to possess the property up to the original fence line.

The evidence shows that from the date of purchase of the property by Mr. *603 Dixon in 1944, until his death in 1968 or 1969, he possessed the property as owner up to the fence line, raising cattle and crops on the property and cutting timber from it. Following Mr. Dixon's death and their assumption of ownership of the property, the defendants continued to occupy and use the entire property up to the fence line.

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Cite This Page — Counsel Stack

Bluebook (online)
589 So. 2d 598, 1991 La. App. LEXIS 2818, 1991 WL 226589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/livingston-v-unopened-succession-of-dixon-lactapp-1991.