Judgment rendered February 25, 2026. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 56,642-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
RICHARD DALE NEILL AND Plaintiffs-Appellees GLORIA NEILL
versus
TOM D. CODAY AND AMANDA Defendants-Appellants ROCHELLE CODAY
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 166845
Honorable Douglas M. Stinson, Judge
SINCLAIR LAW FIRM, LLC Counsel for Appellants By: Scott C. Sinclair
CARL HENRY FRANKLIN Counsel for Appellees
Before STONE, STEPHENS, and ROBINSON, JJ. STONE, J.
This civil appeal arises from the Twenty-Sixth Judicial District Court,
the Honorable Doug Stinson presiding. The parties own adjoining tracts of
land and are in dispute over the location of the boundary between their
respective lots. On March 2, 2022, the appellees,1 Richard Neill (“Richard”)
and Gloria Neill (collectively, “the Neills”), filed a petition to fix boundary
and for an injunction requiring the appellants, Tom Coday (“Tom”) and
Amanda Coday (collectively, “the Codays”), to remove fences that encroach
on the Neills’ property. The Codays reconvened demanding that the Neills
be ordered to pay half the cost of removing the fence in the event the court
granted the Neills’ injunction. For the reasons stated herein, we affirm in
part, reverse in part, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
The trial court held a bench trial that began on August 10, 2022.
Following is a summary of the evidence adduced that day.
In 1976, Richard Neill purchased the above tract, which is located in
Benton. The Neills built a house thereon and later, in 1998, subdivided the
tract into multiple lots and named it Neill Acres subdivision. The Neills
used the assistance of John Bowman, Jr. (“Bowman”), a land surveyor, in
subdividing the property. Below is a copy of the recorded plat map of the
Neill Acres subdivision:
1 They are the plaintiffs and defendants-in-reconvention. .
The Neills’ ownership includes lots 1, 3, and 6. The Codays own lot
2. 2 After subdividing, the Neills built cyclone fences apparently meant to
separate the lots but placed them short of the property line of lot 1, i.e.,
several feet on the Neills’ side of the property line.
The Codays bought lot 2 in 2018 and reside there. The Neills’ current
home is on lot 3. Lot 1 is a rental property owned by the Neills.
2 Addresses: lot 1: 406 5th Street; lot 2: 410 5th Street; and lot 3: 412 5th Street. 2 The parties had a dispute which led to the Codays constructing the
“privacy fence” around lot 2.3
In his testimony, Richard accused Tom of having moved the stakes
onto the Neills’ side of property lines and building fences in accord with the
newly misplaced stakes. Richard admitted, however, he did not see anyone
move the stakes and the trial court explicitly rejected these accusations.
Richard also stated that he did not have any problem with the location of the
Coday fence at the rear (i.e., north end) of lot 2.
Tom testified that he located the lot pins marking each corner of lot 2
and denied that he ever moved them. Tom built the subject fences himself,
as he is in the business of building fences. He testified that, while he was
building “fence 1”4 (the north-south fence along the east side of lot 2/west
side of lot 3), Richard stood five to ten feet away — on his own property —
and stared at Tom the entire time, but never said anything. Tom admitted
that fence 2 (running east and west at the back of lot 2/ part of the front of
lot 6) is about six inches onto the Neills’ property in the corner marked by
“pin 2” because he had to work around the overhang of a garage adjoining
that location.
Testimony of Bowman. The court accepted Bowman as an expert land
surveyor. Bowman recounted that he assisted with the subdivision of Neill
3 We note a contradiction in the record. It contains at least two exhibit lists asserting that certain exhibits were introduced at trial, one handwritten and one with the minutes of court; however, the court reporter’s exhibit list (which is part of the transcript for each respective day of trial) indicates that those certain exhibits were not introduced at trial. The transcriptions of the proceedings themselves prove the correctness of the court reporter’s exhibit list over the others.
4 At trial there was a convention of terminology established: “fence 1” refers to the Coday fence running north and south approximating the eastern boundary of lot 2/ western boundary of lot 3; “fence 2” refers to the Coday fence running east and west, approximating the northern boundary of lot 2; fence 3 refers to the Coday fence running north and south approximating the eastern boundary of lot 1, which it shares with lot 2. 3 Acres in 1998 (whereas Richard said it was in 1988). In August 2021,
before the subject fences were built, at the Neills’ request, Bowman
attempted to re-mark the corners of lot 2 as established in the 1998
subdivision. Bowman could not find pins for the northeast or southeast
corners of lot 1, so he put new pins. He explained:
The first time Mr. Neill owned all the property, so he picked where the lot lines were placed. And then we sent it to the MPC to be approved and only made one adjustment to that Lot 1 on the east line on my original survey. The MPC wanted a little more width in that lot. And then we went back in 2021 I found the original corners except for the east line of Lot 1, had to reset [pins for] those points [approximately five feet further to the east in accordance with the MPC’s setback requirements].5
Bowman went back to the property again in June 2022 to re-mark the
corners with the Neills and their attorney after the Coday fence was built.
Bowman described his activities as follows:
Q. So the work that you did in June of this year …2022, was simply to go out and — and relocated the pins that you had previously located and observe where the fence was in relationship to those pins; is that correct? A. Right. … So I agreed to show Carl and Mr. Neill what I could find of the corners. Q. Okay…your testimony is based on those observations, finding those pins and observing the fence relationship to those pins; right? A. Yes, sir. Q. And without any new survey work, no new measurements, no nothing more technical than that; is that correct? A. Nothing more than that…Schonstedt locator.
After both parties had rested, the trial court correctly found that, based
on the evidence submitted, it was impossible for him to determine where the
property lines were or where the fences were in relation to the property lines.
5 Bracketed material is at R. 108. 4 However, the trial court did not dismiss the plaintiffs’ claims for failure to
meet the burden of proof. Instead, the trial court announced that it was
going to appoint Charles Coyle (“Coyle”), a land surveyor, to provide the
evidence needed to reach a conclusion — i.e., an “up to date” survey
showing the lot lines and the locations of the fences. The court asked if
either side had an objection to the appointment, and neither side objected.
Two and a half years later, on January 9, 2025, the parties returned to
court and resumed the bench trial. Coyle, Richard, and Tom testified. By
stipulation of the parties, Coyle was accepted as an expert in land surveying.
Likewise, the parties jointly introduced Coyle’s exhibits (Coyle 1, 2, 3, and
4), which he used in his presentation of his findings.
Testimony of Coyle. Coyle began his analysis with the recorded plat
map of Neill Acres. He found that the plat map itself did not contain error
on its face, i.e., the bearings and distances form a closed figure. He also
explained the hierarchy of evidence of boundaries.
Coyle conducted a multi-step field survey, wherein he obtained a plat
map and attempted to find the artificial monuments (i.e., pins or stakes) for
the corners of the property. In conducting the survey, Coyle initially found
pins as reported in attachment 2 to his report. However, the pins on the
southwest, northwest, and northeast corners of lot 2 were not located
consistently with the plat map. Coyle added pins at locations which he
determined were consistent with the plat. Based on the pins Coyle set, he
determined that the Codays’ fences encroach onto the Neills’ property in
extending beyond the north and west boundaries of lot 2, and in fence 1
making a slight bulge into Neill territory.
5 However, in effect, Coyle also testified that the pins he found were
apparently the original pins Bowman set in 1998, that there was no evidence
that they had been moved, and that the Coday fence was consistent with
those pins. Therefore, Coyle agreed, if the original pins had been placed
correctly, the Coday fences would be on the property line, not encroaching
onto the Neills’ property.6
Tom testified that he, as a professional fence builder, would charge a
customer $37 per foot to demolish and rebuild the fence. He also reaffirmed
the wholesale cost figures from his earlier testimony, i.e., $6,524 for fence 1
and $4,475.96 for fence 2.
The trial court adopted Coyle’s conclusions and rendered judgment
accordingly:
IT IS ORDERED, ADJUDGED AND DECREED that the Court accepts the conclusions of Charles G. Coyle, III and declares that the boundaries for Lot 2, Neill Acres, as recorded in Book 808, Page 749 of the Conveyance Records of Bossier Parish, Louisiana, are as shown and depicted in Exhibit Coyle 4, a copy of which is attached hereto. (Emphasis added.) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the wood fence erected by the Codays at the north boundary of said Lot 2 (between monument #17 and #31) encroaches on the property owned by the Neills, and the Codays are hereby directed to remove that fence, at their expense, on or before January 9, 2026. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the wood fence erected by the Codays at the east boundary of Lot 1 (between monument #38 and #32) encroaches on the property owned by the Neills, and the Codays are hereby directed to remove that fence, at their expense, on or before January 9, 2026. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiffs and Defendants are cast with half each of the fees of the court appointed expert, Charles G. Coyle, III.
6 That is, with the exception of fence 1 making a slight bulge into Neill territory.
6 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all other claims of the plaintiffs and defendants are dismissed with prejudice.
However, Coyle exhibit 4 is not attached to the judgment.
The Codays now appeal, enumerating the following assignments of
error: (1) the trial court erred in appointing an expert after the case had been
“submitted”; (2) the trial court erred in not dismissing the Neills’ actions
once it found, after the first day of trial, that the Neills failed to carry their
own the burden of proof; (3) the trial court erred by not finding that the
subject properties are “enclosed” for purposes of La. C.C. art. 685; and (4)
therefore, if the Coday fences encroach, the trial court erred in not assessing
any responsibility for removing the fences to the Neills.
LAW
Boundary action. Three real actions to determine ownership or
possession of immovable property are the possessory action, the petitory
action, and the boundary action. A boundary action is a nominate real action
under the Code of Civil Procedure that is distinct from a possessory and a
petitory action. Hooper v. Hero Lands Co., 15-0929 (La. App. 4 Cir.
3/30/16), 216 So. 3d 965, 972, writ denied, 16-0971 (La. 9/16/16), 206 So.
3d 205.
“A boundary is the line of separation between contiguous lands. A
boundary marker is a natural or artificial object that marks on the ground the
line of separation of contiguous lands.” La. C.C. art. 784. “The fixing of
the boundary may involve determination of the line of separation between
contiguous lands, if it is uncertain or disputed; it may also involve the
placement of markers on the ground, if markers were never placed, were
7 wrongly placed, or are no longer to be seen.” La. C.C. art. 785. “The
boundary may be fixed upon the demand of an owner or of one who
possesses as owner.” La. C.C. art. 786. “The court shall fix the boundary
according to the ownership of the parties; if neither party proves ownership,
the boundary shall be fixed according to limits established by possession.”
La. C.C. art. 792. “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.” La. C.C. art.
793.7 “When visible markers have been erroneously placed by one of the
contiguous owners alone, or not in accordance with a written agreement
fixing the boundary, the error may be rectified by the court unless a
contiguous owner has acquired ownership up to the visible bounds by thirty
years possession.” La. C.C. art. 796.
A boundary action is brought as an ordinary proceeding by the owner
or possessor of one of two (or more) contiguous tracts of land to compel the
fixing of the boundary between the adjacent tracts of land. La. C.C.P. art.
3691. In a boundary action, the court may appoint a surveyor to inspect the
lands and to make plans in accordance with the prevailing standards and
practices of his profession indicating the respective contentions of the
parties. La. C.C.P. art. 3692. “After considering the evidence, including the
testimony and exhibits of a surveyor or other expert appointed by the court
or by a party, the court shall render judgment fixing the boundary between
7 “When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.” La. C.C. art. 794.
8 the contiguous lands in accordance with the ownership or possession of the
parties.” La. C.C.P. art. 3693. Accordingly, questions of title and ownership
may be determined in an action of boundary.8
Meyer v. Comegys, 147 La. 851, 86 So. 307 (1920) also sets forth a
hierarchy of principles controlling the determination of a boundary:
[T]he legal guides for determining a question of boundary, or the location of a land line, in the order of their importance and value, are: (1) Natural monuments; (2) artificial monuments; (3) distances; (4) courses; and (5) quantity. … Monuments of the character mentioned are allowed to control, for the reason that in cases where the line is uncertain, but approximately in a given location, these guides are more permanent and possess less of the possibilities of error incident to courses, distances, and area; but when the basis for the rule ceases, as where, admittedly, the monument does not meet the calls of the deeds, then it cannot control, and must give way to the weaker guides. There being no courses or distances given in this case, the acreage or quantity prevails, and both parties receive thereby all that their deeds call for.
Finally, “all final judgments which affect title to immovable property
shall describe the immovable property affected with particularity.” La.
C.C.P. art. 1919. Alston v. Moore, 55,296 (La. App. 2 Cir. 11/15/23), 374 So.
3d 277, 287, held that a judgment which twice used the word
“approximately” in its property description nonetheless complied with La.
C.C.P. art. 1919 because it also referenced and had attached as an exhibit “an
assessor’s map with [the subject] property outlined in yellow.” This court
reasoned that “the public, litigants, title examiners, officials charged with
executions of judgments, and surveyors can read the property description
8 If neither party proves ownership, the boundary shall be fixed according to limits established by possession. La. C.C. art. 792; Hooper v. Hero Lands Co., supra.
9 provided in the judgment and review the attached assessor’s map and
accurately deal with the immovable property.”
Review; related principles. “[T]he location of a boundary line is a
question of fact, and the determination of its location by the trial court
should not be reversed absent manifest error.” Marcello v. Jo-Blanche
Corp., 20-1113 (La. App. 1 Cir. 6/4/21), 330 So. 3d 632, 639, writ denied,
21-01666 (La. 1/19/22), 331 So. 3d 330.
La. C.E. art. 103 states:
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and when the ruling is one admitting evidence, a timely objection…appears of record, stating the specific ground of objection
A party is judicially estopped from repudiating a previous position he
has clearly taken before the court if the court has already accepted that
previous position. Thomas v. Econ. Premier Assur. Co., 50,638 (La. App. 2
Cir. 5/18/16), 196 So. 3d 7, 11, writ denied, 16-1169 (La. 10/28/16), 208 So.
3d 377, and writ denied, 16-1177 (La. 10/28/16), 208 So. 3d 378; Godfrey v.
GoAuto Ins. Co., 55,824 (La. App. 2 Cir. 8/28/24), 400 So. 3d 147, 155, writ
denied, 24-01162 (La. 2/19/25), 400 So. 3d 934.
Cost-sharing regarding common fences
La. C.C. art. 685 mandates cost-sharing between neighbors in regard
to common fences, to the following extent:
A fence on a boundary is presumed to be common unless there is proof to the contrary. When adjoining lands are enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences by which the respective lands are separated.
10 When adjoining lands are not enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences only as prescribed by local ordinances.
For purposes of La. C.C. arts. 673 through 688, “enclosed” means physically
enclosed by a wall, fence, ditch, or by vegetation (e.g., a hedge). The owner
of an unenclosed estate cannot be forced to contribute to the expense of a
common wall, except by local ordinance. Bouchereau v. Guilne, 116 La.
534, 40 So. 863 (La. 1906).
La. C.C. art. 685 is the basis for the Codays’ reconventional demand
for one-half the cost of removing the fence, the denial of which they assign
as error.
ANALYSIS
Assignments 1 and 2
The Codays argue that the trial court erred in appointing a land
surveyor after both parties rested and after finding that the Neills had failed
to carry their burden of proof. From that premise, the Codays conclude that
the trial court was obliged to dismiss the Neills’ action at that time.
La. C.C.P. art. 3692 authorizes the court in a boundary action to
“appoint a [professional] surveyor to inspect the lands and to make
plans…indicating the respective contentions of the parties.” This article
states no restrictions on the timing of the appointment — nor any other
limitations. The Codays’ attorney consented to the appointment of Coyle
and his admission as an expert and the introduction of Coyle’s exhibits into
evidence. Therefore, the Codays are judicially estopped from repudiating
any of these positions. Thomas, supra; Godfrey, supra. Additionally, an 11 appellate court cannot find that a ruling admitting evidence was erroneous
unless the party asserting error made a timely objection and stated the
specific ground thereof. La. C.E. art. 103(A)(1). These assignments are
without merit.
Assignments 3 and 4
The Codays alternatively argue that, if the trial court was correct in
determining the boundary, it erred in not requiring the Neills to pay for half
the cost of removing the fence pursuant to La. C.C. art. 685.
The Neills intended that lot 2 be separated from lot 1 and 3 by their
cyclone fences (which significantly predate the Coday fences). Therefore,
lots 1 and 3 were, at least at the time Coday built the encroaching fences,
enclosed adjoining lands within the meaning of the second paragraph of La.
C.C. art. 685: “When adjoining lands are enclosed, a landowner may compel
his neighbors to contribute to the expense of making and repairing common
fences by which the respective lands are separated.”
The Codays intended that their fence be placed on the boundary
between lots 1 and 2. Additionally, considering the testimony of Bowman
and Coyle, the Codays reasonably believed that they had erected their fence
on the common boundary. Both the Neills and the Codays attempted to
enclose their respective lots by erecting fences, but both were mistaken as to
the location of the boundary. The Coday fences, when moved to the proper
boundary in accordance with the trial court’s judgment, will be common
fences pursuant to the second paragraph of La. C.C. art. 685. The expenses
of moving and resetting the Coday fences separating lot 2 from lot 1 and lot
12 3 are all subject to that provision — i.e., the expense of “making” a common
fence.
Tom’s testimony provides a retail price-per-foot for moving the fence;
however, the Codays’ recovery, if any, must be limited to wholesale cost.
The number of feet of fence to be moved was necessarily indeterminable
until the trial court rendered its judgment. It remains indeterminable now
because the judgment provides no basis for making that measurement, as the
trial court implicitly found La. C.C. art. 685 inapplicable. Moreover, the
judgment neither includes a property description nor actually attaches Coyle
exhibit 4 and thus is noncompliant with La. C.C.P. arts. 1918 and 1919.
CONCLUSION
The provision of the trial court’s judgment fixing the boundary and
ordering removal of the fence is AFFIRMED but must be AMENDED on
REMAND for the inclusion of a legal description in compliance with La.
C.C.P. art. 1919 and 1951 and the attachment of Coyle exhibit 4. The
provision of the trial court’s judgment dismissing the Codays’
reconventional demand is REVERSED. The trial court is instructed to
allow the Codays the opportunity to prove the expenses of moving and
resetting the fences separating lot 2 from lots 1 and 3 and to render judgment
accordingly. The costs of this appeal are taxed equally to the parties.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.