Mire v. Crowe

439 So. 2d 517
CourtLouisiana Court of Appeal
DecidedOctober 11, 1983
Docket82 CA 1079
StatusPublished
Cited by6 cases

This text of 439 So. 2d 517 (Mire v. Crowe) 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
Mire v. Crowe, 439 So. 2d 517 (La. Ct. App. 1983).

Opinion

439 So.2d 517 (1983)

Karl MIRE
v.
Levi L. CROWE, Jr., et al.

No. 82 CA 1079.

Court of Appeal of Louisiana, First Circuit.

October 11, 1983.

*519 Frank M. RePass, III and Dolores Williams, Slidell, for plaintiff, appellee.

William J. Faustermann, Jr., Ron W. Guth, Slidell, for defendant, appellant.

Before PONDER, WATKINS and CARTER, JJ.

CARTER, Judge.

This is a possessory action involving a triangular piece of property located in St. Tammany Parish.

Karl Mire instituted this possessory action on December 10, 1981, against Levi L. Crowe, Jr.[1] claiming that the defendant had disturbed his possession by advising plaintiff's lessee that Crowe claimed ownership of a portion of the property. After trial on the merits, judgment was rendered in favor of plaintiff and defendant perfected this appeal.

On March 16, 1968, Karl Mire bought from Levi L. Crowe, Jr. property located in Slidell, Louisiana described as follows:

"A certain tract or parcel of land, together with all the buildings and improvements thereon, and all rights, ways, advantages, and appurtenances thereunto belonging or in anywise appertaining situated in St. Tammany Parish, Louisiana, and more particularly described as Lot Six (6) of Section Eighteen (18) in Township 8 South, Range 15 East, of the St. Helena Meridian Louisiana, containing two (2) acres and sixteen hundredths of an acre, according to the official plat of survey of the said lands, in file in the General Land Office."

Prior to passage of this act of sale, Mire and Levi Crowe, Jr. walked the boundaries of the property to be conveyed. The area pointed out to Mire by Crowe included an area in Lot 7, which could be generally described as lying east of Lot 6 and bounded on the north and south by an extension of the north and south lines of Lot 6 and on the east by Langston's Bayou.

Crowe does not question Mire's possession of Lot 6. Crowe claims, however, that Mire's title is limited to Lot 6 and does not cover any property in Lot 7. Both parties assert ownership of the disputed land, although the only issue on this appeal is whether Mire is entitled to be maintained in possession of the property. Crowe did not reconvene for possession of the property, but simply denied plaintiff's possession.

Mire's Acts of Possession

Upon acquisition of Lot 6 in 1968, Mire immediately took possession of the disputed property. Mire employed a surveyor and had the property surveyed. Mire and his nephews then walked the property and placed stakes for construction of a fence. A new fence was built along the northern boundary of the property to Langston Bayou and along the southern boundary to a point referred to as the "gully". No fence was erected through the "gully" because the area was under water during parts of the year. Mire also maintained and repaired the fences.

Hunting and fishing activities were also conducted on the disputed area. Family *520 members and friends of Karl Mire often used a portion of the disputed property known as the "hill" to conduct these activities, with Mire's permission.

Several of Mire's nephews (with Mire's consent) raised hogs in the area west of the gully and allowed cattle to graze over the entirety of the area, including the "hill".

Mire erected a barn on the disputed area west of the gully and maintained a garden for several years in the general vicinity of the barn. Grass was clipped and maintained by Mire on the disputed tract.

In July, 1981, Mire leased the property to John Buttrey for the purpose of housing and maintaining horses on the premises.

Crowe's Acts of Possession

Crowe lived on the property in dispute as a child and conducted various activities on the property prior to the sale to Mire in 1968. Crowe now owns a campsite south of and adjacent to the Mire property. The Crowe camp is bounded on the north by the disputed "hill", on the east by Langston Bayou, and on the west by other Mire property. Crowe and his friends have used the disputed tract on several occasions to get to his camp.

The Trial Court's Judgment

The trial court found that Mire was entitled to be maintained in possession of the disputed area and stated:

"... since acquisition of the property, Mr. Mire has been in actual, physical, open, public, unequivocal continuous, and uninterrupted possession of the property with the intent to possess as owner. The Court is also convinced by the evidence that upon execution of the act of sale on March 16, 1968, Mr. Crowe terminated his prior possession of the disputed area. Mire was in possession at the time of Crowe's disturbance and had been so without interruption for more than a year prior to the disturbance. Crowe's disturbance was a disturbance in fact, and the possessory action was instituted by Mire well within a year of the disturbance. The few trespasses upon the property by Crowe and his friends, without knowledge of Mire, are of no significance. These trespasses are inadequate to establish possession by Crowe or his usurpation of the property in dispute. These disturbances—unknown to Mire— are not strong enough to interrupt Mire's right to possess. These activities would in no way bring home to Mire the realization that his possession and control of the property is being challenged by Crowe...."

Defendant has appealed the trial court judgment, contending that the trial judge erred in finding that the plaintiff maintained the necessary possession of the area in dispute.

The Law

This action is governed primarily by LSA-C.C.P. art. 3658, which provides:

"To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right therein at the time the disturbances occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance."

Although Article 3658 lists four requirements for bringing the possessory action, the battle lines are often drawn over the question posed by paragraph (2): Who has the right to possess? This question, in turn, is often decided by a determination of whether any acts of the defendant have sufficiently interrupted the plaintiff's possession so as to strip the plaintiff of his right to possess.

How the Right is Acquired[2]

A person acquires the right to possess immovable property by possessing the *521 property quietly and without interruption for more than a year. LSA-C.C.P. art. 3658(2); LSA-C.C. art. 3454(2), now repealed; see also LSA-C.C. arts. 3449(2), now LSA-C.C. art. 3434, and 3487, now LSA-C.C. arts. 3435, 3436 and 3476. The species of possession required to acquire the right to possess is either corporeal possession or civil possession preceded by the corporeal possession of the plaintiff or his ancestors in title. LSA-C.C.P. art. 3660. In all cases, a person must possess as owner and for himself. Thus, to acquire the right to possess, "one must combine the intention of possessing as owner with the corporeal detention of the thing." Norton v. Addie, 337 So.2d 432, 436 (La.1976). Pitre v. Tenneco Oil Co., 385 So.2d 840 (La.App.

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