Odom v. Elliott

452 So. 2d 315, 1984 La. App. LEXIS 8976
CourtLouisiana Court of Appeal
DecidedJune 6, 1984
DocketNo. 16301-CA
StatusPublished
Cited by3 cases

This text of 452 So. 2d 315 (Odom v. Elliott) 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
Odom v. Elliott, 452 So. 2d 315, 1984 La. App. LEXIS 8976 (La. Ct. App. 1984).

Opinion

SEXTON, Judge.

Plaintiff filed suit seeking to have the boundary between his property and that of defendant judicially fixed according to plaintiff’s title. The trial court granted judgment in defendant’s favor, fixing the boundary between the parties’ property in accordance with the boundary agreement entered into by the parties’ ancestors in title. We affirm.

Plaintiff in this cause is Ervin K. Odom, Sr., who owns property along the east [317]*317shore of the Toledo Bend Reservoir in De-Soto Parish. The defendant is Robert L. Elliott, who owns the property immediately to the north of Mr. Odom’s land.

The plaintiff owns a five plus acre tract along the east shore of Toledo Bend Reservoir. Defendant owns two small contiguous lots located immediately to the north of plaintiffs property. Defendant’s lots constitute part of the Pleasure Port Subdivision, and border directly on plaintiff’s property. Plaintiff’s and defendant’s properties thus share a common border, this common border forming the northern boundary of plaintiff’s property and the southern boundary of defendant’s property. The relative geographical location of the parties’ tracts may be graphically represented as follows:

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Plaintiff filed suit on August 4, 1980, essentially seeking to having the boundary between his property and that of the defendant judicially fixed in accordance with the title description contained in plaintiff’s deed. The defendant’s answer pled, among other defenses, acquisitive prescription. The parties’ claims were tried July 25, 1983. In a judgment rendered September 30, 1983, the trial court rejected plaintiff’s petition to judicially fix his northern boundary according to his title. The trial court instead rendered judgment fixing the boundary in accordance with a boundary agreement confected by both parties’ ancestors in title in 1973.

The most important factor in this case is the fence which forms the northern boundary of plaintiff’s property and the southern boundary of defendant’s property. It was along this fence line that the parties’ ancestors in title fixed the boundary between the respective properties in 1973. It was this fence line that the trial court decreed to be the boundary between the tracts of the plaintiff and the defendant. The record reveals that the fence was in place in 1927. The record reveals, moreover, that remnants of the same fence have continued in existence until the present date, with the fence currently serving as the boundary between the Pleasure Port Subdivision— which includes defendant’s property — and the plaintiff’s property.

The record shows that defendant’s property was conveyed from Tom McKay to David Boyd in 1948. David Boyd farmed the property, pastured a horse on it, and testified that a net wire fence formed the southern boundary of his property. Remnants of this same fence presently separate the property of plaintiff and defendant. The property was subsequently sold by David Boyd to his brother, Willard W. Boyd in 1955. Willard Boyd continued to farm the property, as his brother had before him. The property was sold from Willard Boyd to J.L. Nunley in 1958. Neither Willard Boyd nor J.L. Nunley, Sr. were available to testify. However, David Boyd testified that the wire fence continued to exist during the ownership of these two men. A portion of the property was sold by J.L. Nunley, Sr., to his son, J.L. Nunley, Jr., in 1963. The property retained by J.L. Nunley, Sr. was conveyed to land developer M.L. Bussey in 1968. J.L. Nun-ley, Jr. also sold his share of the property to M.L. Bussey in 1969. Thus, both J.L. Nunley, Sr. and his son conveyed their interest in the tract, of which the wire fence forms the southern boundary, to M.L. Bus-sey. Bussey developed this tract into what is now Pleasure Port Subdivision. Mr. Bussey sold a lot out of this subdivision to the defendant, Mr. Elliott, in 1974. Mr. Bussey sold another lot in Pleasure Port Subdivision to the defendant in 1975. The defendant has performed numerous posses-sory acts on these contiguous lots, placing a trailer home there, and erecting a wooden [318]*318fence approximately one foot north, or just inside of the wire fence line.

In 1973, a boundary agreement was entered into between M.L. Bussey and Howard Fisher which set the boundary between their properties along the above mentioned wire fence. M.L. Bussey, as discussed above, is the ancestor in title of the defendant, Mr. Elliott. Howard Fisher is the ancestor in title of the plaintiff, Mr. Odom, having conveyed the tract to Mr. Odom in 1974.

Although the fence was substantially removed in 1974 by Mr. Elliott, portions of it remained in place. Some posts were left standing, and some wire was left nailed to trees that had served as fence posts in the fence line. Thus, although the structural integrity of the fence was substantially obliterated, it retained its viability as a visible wire boundary. It is significant in this respect that Mr. Odom unequivocally testified that he had not performed any possessory acts north of the fence line. It thus appears that the dilapidated fence line functionally served as the de facto boundary between the property of the plaintiff and defendant.

In a judicial fixing of boundaries, the court shall fix boundaries according to the ownership of the parties. LSA-C.C. Art. 792. When both parties rely on title alone, the boundary shall be fixed according to title. LSA-C.C. Art. 793. In cases where both parties rely on title, the title of both parties encompasses the same real property, and the parties trace their titles to a common author, “preference shall be given the more ancient title.” LSA-C.C. Art. 793. However, acquisitive prescription may be pled in a boundary action. Fruge v. Lyons, 373 So.2d 220 (La.App. 3d Cir.1979). Moreover, where either party proves acquisitive prescription, “the boundary shall be fixed according to limits established by prescription rather than titles.” LSA-C.C. Art. 794. Simply stated, prescriptive ownership eclipses title ownership. Where neither party proves ownership by title or acquisitive prescription, boundaries are fixed according to the parties’ possession — rather than ownership. LSA-C.C. Art. 792.

Defendant’s legal claim to the ownership of the property north of the fence line is palpably justified by any of three theories of prescription. Defendant could arguably establish his title by thirty years possession, by ten years possession with good faith and just title, or by boundary prescription. However, it is sufficient, for the purposes of this appeal, that defendant’s claims be analyzed solely in terms of thirty year prescription.

A party may acquire ownership of immovable property when he and his ancestor in title have corporeally possessed it for thirty years, or commenced corporeal possession of it and thereafter sustained civil possession thereof — the intent to possess as owner. In order to confer prescriptive title, possession must be underlied by the intent to possess as owner, and such possession must be continuous, uninterrupted, peaceable, public and unequivocal. The title conferred by acquisitive prescription extends only to that property which has actually been possessed, unless one possesses under title, in which case possession of 'part of an immovable under title is deemed to be constructive possession to the limits of title. Furthermore, thirty years acquisitive prescription confers ownership on the possessor without need of good faith or just title. LSA-C.C. Arts. 3421, 3424, 3426, 3431, 3446, 3476, 3485, 3486, 3488.

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Bluebook (online)
452 So. 2d 315, 1984 La. App. LEXIS 8976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odom-v-elliott-lactapp-1984.