Mitchem v. Soileau

222 So. 3d 143, 17 La.App. 3 Cir. 51, 2017 WL 2267194, 2017 La. App. LEXIS 955
CourtLouisiana Court of Appeal
DecidedMay 24, 2017
Docket17-51
StatusPublished

This text of 222 So. 3d 143 (Mitchem v. Soileau) 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
Mitchem v. Soileau, 222 So. 3d 143, 17 La.App. 3 Cir. 51, 2017 WL 2267194, 2017 La. App. LEXIS 955 (La. Ct. App. 2017).

Opinion

Cooks, J.

|, FACTS AND PROCEDURAL HISTORY

Harley Mitchem (Mitchem) filed a possessory action1 against his neighbors, Lester and Janella Soileau (Soileaus). The Soileaus and Mitchem are contiguous land owners whose respective tracts of land are bordered in part by a drainage ditch/canal (canal) maintained by the Evangeline Parish Police Jury (Police Jury). Although aware that he did not own any part of the canal, which he admits is located entirely on the Soileaus’ property, Mitchem requested the Police Jury perform necessary maintenance of the canal after his property was flooded. Mitchem attributed the flooding to the poor maintenance of the drainage canal.

Without contacting the Soileaus the Police Jury began cleaning the canal and deposited the spoil dirt on Mitchem’s property as he requested. The Soileaus contacted the Police Jury and eventually agreed to allow it to continue dredging the canal with the understanding that the same amount of dirt removed from their property would be replaced on their adjoining property by the Police Jury at no cost to them. The Soileaus also hired J. Ronald Landreneau & Associates, Civil Engineers and Land Surveyors (Landreneau) to resurvey their property and re-mark their property line after the work on the canal was completed by the Police Jury. The land was last surveyed in 1994 by Landreneau. Landreneau placed survey markers on a line east of the canal, approximately two feet from the edge of the canal, between the canal and Mitchem’s hurricane fence that ostensibly marks the edge of Mitchem’s property. Mitchem, believing the survey markers to be ^improperly placed on his property, and thus interfering in his peaceful possession of the disputed triangular piece of property, filed this action to be restored to peaceful possession of what he claims is his property acquired by thirty-years acquisitive prescription.

The trial court found Mitchem’s petition for possession to be without merit. It also found the Soileaus “were in fact in possession of the disputed property within the year prior to the filing of these proceedings and up to the date of trail [sic].” Accordingly, the trial court dismissed Mit-chem’s suit with prejudice and cast all costs on Mitchem. Mitchem appeals asserting two assignments of error:

1. The District Court committed legal error when it misapplied the burden of proof by a preponderance of the evidence; it being obvious that the plaintiff proved his case by a preponderance of the evidence.
2. The District Court committed manifest error when it relied almost exclusively on the testimony of the surveyor, J. Ronald Landreneau, and further misinterpreted the testimony of Mr. Landreneau and virtually ignored other testimony and evidence presented by the plaintiff.

ANALYSIS

We review the trial court’s ruling in a possessory action applying the manifest error standard of review. After a full review of the record we cannot say the trial court manifestly erred in concluding that Mitchem failed to carry his burden to prove that he and his ancestors in title had [146]*146uninterrupted, quiet and peaceful possession of the disputed tract of land, to the boundary he claims, for over a year before his alleged possession was disturbed by Landreneau’s placement of survey stubs.

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A twotiered test must be applied in order to reverse the findings of the trial court:
a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finder’s, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

Allen v. Belgard, 05-1284, pp. 10-11 (La. App. 3 Cir. 4/5/06), 925 So.2d 1275, 1282.

Based on our review of the record we find the trial court’s findings of fact are reasonably supported by the record. This court is Belgard set forth Louisiana law applicable in a possessory action:

The Louisiana Code of Civil Procedure and the Louisiana Civil Code address the possessory action through various articles which provide in pertinent part as follows:
La.Code Civ.P. art. 3655. Possessory action
The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.
La.Code Civ.P. art. 3656. Same; parties; venue
LA plaintiff in a possessory action shall be one who possesses for himself. A person entitled to the use or usufruct of immovable property, and ’ one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor, and not for himself.
The possessory action shall be brought against the person who caused the disturbance....
La.Code Civ.P. art. 3662. Same; relief which may be granted successful plaintiff in judgment; appeal
A judgment rendered for the plaintiff in a possessory action shall:
(1) Recognize his right to the possession of the immovable property or real right therein, and restore him to possession ... or maintain him in possession ..,;
[147]*147(2) Order the defendant to assert his adverse claim of ownership of the immovable property or real right therein in a petitory action to be filed within a delay to be fixed by the court not to exceed sixty days after the date the judgment becomes executory ...; and
(3) Award him the damages to which he is entitled and which he has prayed for.
La.Code Civ.P. art. 3658. Same; requisites
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 disturbance occurred;

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Related

Liner v. Louisiana Land and Exploration Co.
319 So. 2d 766 (Supreme Court of Louisiana, 1975)
Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Allen v. Belgard
925 So. 2d 1275 (Louisiana Court of Appeal, 2006)
Hill v. Richey
59 So. 2d 434 (Supreme Court of Louisiana, 1952)
Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Housley v. Cerise
579 So. 2d 973 (Supreme Court of Louisiana, 1991)
Phillips v. Fisher
634 So. 2d 1305 (Louisiana Court of Appeal, 1994)
Mart v. Hill
505 So. 2d 1120 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
222 So. 3d 143, 17 La.App. 3 Cir. 51, 2017 WL 2267194, 2017 La. App. LEXIS 955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchem-v-soileau-lactapp-2017.