Mistric v. Kurtz

610 So. 2d 226, 1992 WL 368849
CourtLouisiana Court of Appeal
DecidedDecember 9, 1992
Docket91-1235
StatusPublished
Cited by8 cases

This text of 610 So. 2d 226 (Mistric v. Kurtz) 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
Mistric v. Kurtz, 610 So. 2d 226, 1992 WL 368849 (La. Ct. App. 1992).

Opinion

610 So.2d 226 (1992)

Daniel S. MISTRIC, et ux., Plaintiffs-Appellees,
v.
Edna KURTZ, et al., Defendants-Appellants.

No. 91-1235.

Court of Appeal of Louisiana, Third Circuit.

December 9, 1992.
Writ Denied February 11, 1993.

*227 Jacque B. Pucheu, Jr., Eunice, for plaintiffs-appellees.

James P. Doherty, Jr., Opelousas, for defendants-appellants.

Before GUIDRY, DOUCET and WOODARD, JJ.

GUIDRY, Judge.

This is a boundary action involving adjoining properties located in downtown Opelousas, Louisiana. Plaintiffs, Daniel S. Mistric and Margie P. Mistric, filed this suit in 1989 to establish the boundary between their property and property of defendants, Edna Riseman Kurtz, Mildred Riseman, Katherine Riseman, Margaret Riseman and Elaine Riseman (the Risemans). The properties are located between Bayou Tesson on the west and Market Street on the east and front Landry Street on the south. The Riseman property lies immediately west of the Mistric property.

The parties trace their respective titles to a common author, Bernard Bennett and Albert Pickett. The defendants' title is the more ancient, having resulted from an October 30, 1905 sale to their father, Ben Riseman, from Bennett and Pickett. In the sale, Ben Riseman acquired a lot of ground measuring 104 feet, six inches east of Bayou Tesson fronting on Landry Street commencing from a fence post located to the east of Bayou Tesson. Bennett and Pickett did not transfer a small strip of land, of unstated width, running north-south which lay between the edge of Bayou Tesson and the fence post.

Plaintiffs trace their title to a sale from Bennett and Pickett to Harriet Siegel and Bertha Bohren executed on November 23, 1905. The Mistric tract measures 94 feet on its south boundary fronting on Landry Street by a depth of 66 feet. In the original conveyance, it is described as being bounded on the west by property of Ben Riseman. After several intervening conveyances, the Mistrics purchased the property from Dr. Edward G. Burleigh, Jr. and Melissa Burleigh on May 11, 1988.

Beginning sometime during the early 1940s, the Risemans commenced leasing their property. The first lessee, John Wilbert, constructed a Dairy Queen ice cream shop with a parking lot adjoining on the east. During the 1950s, Wilbert built a sandwich shop, the "Little Chef", on the northern edge of the parking lot. Thereafter, Wilbert erected a canvas canopy along the eastern edge of the parking lot from *228 the "Little Chef" southward toward Landry Street. The canopy is parallel to and located approximately 50 feet to the east of the Dairy Queen building.

On March 21, 1959, the Risemans leased their property to Queen's Concessions, Inc. which operated both the Dairy Queen and the Little Chef. On June 30, 1961, the Risemans leased the same property to Charles Going, Clifford Ryder, and H.J. Daniel, who then subleased the property to Alex Guidry, who also operated both businesses. Guidry died approximately two months later and, thereafter, the two businesses were owned and operated by his widow, Margaret Guidry, until sometime in 1970. During this period, Mrs. Guidry replaced the canvas parking canopy with a metal canopy which extended approximately two feet east of the paved parking lot. In 1970, Margaret Guidry sold the Dairy Queen and Little Chef to Joe Riley, who has since owned and operated both businesses.

Beginning in 1955, the Risemans' lessees began paying an annual fee to the Mistrics' ancestors-in-title, the Burleighs, for what was regularly noted in the Burleigh financial records as "lot rent", "parking lot rent", "rent of parking lot", "parking space lot rent" and "annual rent for parking space". The rent began at $50 per year in 1955 and increased to $75 per year in 1965. These payments continued until the Burleighs sold their property to the Mistrics in 1988. The record reflects that the Risemans were not aware that their tenants were paying this fee to the Burleighs, owners of the adjoining tract.

The dispute over the boundary began when, upon purchasing the Burleigh tract, Mistric informed Riley that his property extended westward into the Dairy Queen/Little Chef parking lot to include the area under the parking canopy and beyond. Mistric demanded $200 per month in rental payments for Riley's use of this parking area. Riley paid this rent for three months until he was informed by the Risemans that, as far as they were concerned, the entire area upon which the parking lot was located belonged to them. With this information, Riley then stopped paying rent to the Mistrics. The Mistrics then instituted this suit to fix the boundary.

Prior to trial, the Mistrics hired Morgan Goudeau and Associates to survey their tract. According to the results of the survey, the Mistric tract extends westward 32 feet into the Dairy Queen/Little Chef parking lot. Accordingly, Goudeau's survey fixes the western boundary of the Mistric tract near the center of the Dairy Queen/Little Chef parking lot entrance from Landry Street.

At trial, the Risemans argued that the survey was not accurate because the surveyor, Robert Wolfe, relied solely upon the Mistrics' title in formulating the boundaries. The Risemans also contended that the annual fee paid by their tenants to the Burleighs was intended solely to compensate the Burleighs for the two foot encroachment onto the Burleigh tract by Margaret Guidry's extension of the covered parking canopy in the early 1960s. It was the Risemans' position at trial that their tract extended to the eastern edge of the paved section of the parking lot. In the alternative, the Risemans urged that, even if the ideal boundary was correctly located by Goudeau, they had acquired ownership of the disputed area through more than 30 years possession exercised by their lessees.

The trial court fixed the boundary between the two tracts in accordance with the Goudeau survey. The trial judge rejected the Risemans' 30 year acquisitive prescriptive plea, reasoning that, since the Risemans' tenants were also tenants of the Burleighs, the Risemans' tenants could not possess the disputed area in favor of the Risemans and simultaneously adverse to their other lessors, the Burleighs. Judgment was rendered accordingly. Defendants appealed.

This appeal presents two issues for our review: first, whether the trial court erred in setting the ideal boundary according to the Goudeau survey; and, second, whether the trial court erred in rejecting appellants' plea of prescription under La.C.C. arts. 794 and 3486 et seq.

*229 THE IDEAL BOUNDARY

Insofar as a fixing of the ideal boundary is concerned, the parties rely on titles traced to a common author. La.C.C. art. 793 is applicable in this situation. It provides as follows:

When both parties rely on titles only, the boundary shall be fixed according to titles. When the parties trace their titles to a common author preference shall be given to the more ancient title.

See Williamson v. Kelly, 520 So.2d 868 (La.App. 3rd Cir.1987), writ denied, 522 So.2d 562 (La.1988), which discusses the trial court's duty to give preference to the more ancient title.

Defendants claim that, since theirs is the more ancient title, the trial court erred in fixing the boundary according to plaintiffs' survey which relied solely upon the plaintiffs' more recent title. Robert Wolfe, Jr., the surveyor, testified that he relied on the Mistrics' title and a City of Opelousas map in preparing the plat. The starting or reference point for the survey was the corner of Market and Landry Streets.

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Cite This Page — Counsel Stack

Bluebook (online)
610 So. 2d 226, 1992 WL 368849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mistric-v-kurtz-lactapp-1992.