Martin v. Howell

280 So. 2d 358, 1973 La. App. LEXIS 6588
CourtLouisiana Court of Appeal
DecidedJune 20, 1973
DocketNo. 9418
StatusPublished
Cited by1 cases

This text of 280 So. 2d 358 (Martin v. Howell) 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
Martin v. Howell, 280 So. 2d 358, 1973 La. App. LEXIS 6588 (La. Ct. App. 1973).

Opinion

TUCKER, Judge.

Mrs. Lillian F. Martin, sometimes known as Peggy Martin, sued the heirs of George [359]*359Keller and A. S. Tomb, claiming possession as owner of the following 2.74 acre tract of land:

“A certain tract or parcel of land, together with all the improvements thereon and all rights, ways, privileges, servi-tudes and prescriptions appurtenant thereto or in anywise appertaining, lying, being and situated in the Town of Jackson, Parish of East Feliciana, State of Louisiana, and being more particularly described as fronting for a distance of approximately 1,380 feet on the North side of Louisiana Highway No. 10 (Charter Street) and being bounded on the North by Asylum Branch and lands of East Louisiana State Hospital, on the South by Louisiana Highway No. 10 (Charter Street), and on the west by Asylum Branch.”

Mrs. Martin alleged that her late husband, Louis Elmo Palmer, began exercising possession of the aforesaid property in 1927 and continued to do so until his death in 1942, and that, thereafter, she continued his possession of the property. She claims that an act of sale from Frank Herr to George Keller in 1911, and another from Abel T. Norwood to A. S. Tomb in 1881, operate as continuing disturbances of her possession. Plaintiff’s claims to the property in question were rejected in the trial court, and she has appealed reasserting her claims to ownership of the property by thirty years’ acquisitive prescription under Civil Code Article 3499.

During trial in the District Court a survey of the property in question was ordered by the trial judge. The resulting map which was accepted as Joint Exhibit 1, reveals that a substantial part of the property under litigation comprises portions of the streets of the town of Jackson, Louisiana: Paris, Magazine, and Locust Streets. Charter Street, which was claimed by plaintiff as the southern boundary of the property, is also included within the disputed property. Although these streets may become the subject of private ownership if abandoned by the city (C.C. Art. 482), there are no allegations and no proof to that effect. The Town of Jackson was not made a party defendant in this suit. A person claiming possession by thirty years’ acquisitive possession can claim only that which he or she actually possessed (C.C. Art. 3503). Since there is no evidence in this case to show plaintiff’s actual possession of the portion of the property represented as streets in the Town of Jackson, on the map adopted by all parties as the official representation of the disputed land, and since the Town of Jackson was not made a party defendant herein, plaintiff’s claims to these street areas must be rejected as totally unproved.

Plaintiff has claimed possession of the tract of land in question by various acts of possession. She alleges possession of the portion she refers to as “Lot Number One” by its being used as a car parking lot. She contends for “Lot Number Two” by her use of it as a garden, (which part she claims to have fenced), by its use for the pasturing of cattle, for running pigs, the sale of timber, gravel and pine straw, bull dozing, and the payment of taxes.

Two of the Civil Code articles applicable to the facts of this case are as follows:

“Art. 3500 The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal and under the title of owner.
Art. 3501 The possession necessary for this species of prescription, when it has commenced by the corporal possession of the thing, may, if it has not been interrupted, be preserved by external and public signs, announcing the possessor’s intention to preserve the possession of the thing, as the keeping up of roads and levees, the payment of taxes, and other similar acts.”

A primary requirement for successful acquisition by possession under C.C. Art. 3500 is that it be under the title of [360]*360owner. Plaintiff claims title as a successor to her husband who allegedly began his possession of the disputed property in 1927. There is no evidence in the record as to the title under which Louis Palmer claimed possession. Plaintiffs husband’s possession is not even definitely established by the evidence, although there is testimony that he began to operate “Palmer’s Garage” and used Lot No. 1 as a parking area for the business in 1929. Plaintiff was not married to Louis Palmer until 1933; so, any adverse possession he began, if under title the ownership, would have enured to the benefit of his separate estate, if it had resulted in thirty years’ acquisitive possession. The tract in question was not mentioned in Louis Palmer’s succession, however. Plaintiff’s claim to the property under the title of being her husband’s heir is consequently to no avail. On the other hand, if plaintiff is claiming the property solely as a community asset, her acquisition would have to date from the date of her marriage in 1933, and would not be complete until 1963. The fact that the tract was not listed in her husband’s succession as a community asset is equally damaging to her title in this case; but, even if it could be proved that her husband considered the property a community asset, plaintiff’s claim to the tract would be only as an owner of an undivided one-half interest. Under the latter circumstance her husband’s heirs should have been joined in the suit as party plaintiffs. From the point of view of the “title of owner,” as provided in C.C. Art. 3500 we find plaintiff’s claim unrecognizable at the outset.

C.C. Art. 3500 requires “public” and “unequivocal” possession as well. There is no evidence in the record that may be considered as notice to the public of plaintiff’s ownership of the land in question. Certainly it was not unequivocal either. There is evidence that plaintiff’s brother-in-law claimed ownership of the property in question until his death in 1958. Plaintiff explains his actions as “helping her out” as a good brother-in-law, since she had no one else on whom to rely; yet it is significant that he kept part of the money for which he sold timber from the subject tract. His son, Mathew Palmer, Jr., even thought that he had inherited the tract after his father’s death, and executed a lease of a portion of same to Peterson Ford, Inc. We note that the attorney who prepared the lease for Mathew Palmer, Jr., also represents the plaintiff in this case. In all likelihood he would have required plaintiff to sign the lease also, if her claims to the property were as well known to the public and as unequivocal as she now alleges.

The essentials for possession to support prescription are governed by the character, nature, and location of the property possessed, and the use for which it is destined. Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952); Jacobs v. So. Advance Bag and Paper Co., 228 La. 462, 82 So.2d 765 (1955). While complete fencing of the area claimed by acquisitive title has never been required, the jurisprudence of the state does require that the markings of the boundaries whether natural or artificial, must be of such a quality as to give . “definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed and to fix with certainty the boundaries or limits thereof.” Hill v. Richey, cited supra at 221 La. 422, and 59 So.2d 440. The map adopted as Exhibit # 1 indicates that Asylum Creek forms the boundary for a substantial portion of the property claimed.

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Bluebook (online)
280 So. 2d 358, 1973 La. App. LEXIS 6588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-howell-lactapp-1973.