Roberson v. Chance

182 So. 3d 203, 2015 La. App. LEXIS 2278, 2015 WL 7280562
CourtLouisiana Court of Appeal
DecidedNovember 18, 2015
DocketNo. 50,169-CA
StatusPublished
Cited by3 cases

This text of 182 So. 3d 203 (Roberson v. Chance) 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
Roberson v. Chance, 182 So. 3d 203, 2015 La. App. LEXIS 2278, 2015 WL 7280562 (La. Ct. App. 2015).

Opinion

PITMAN, J.

■ hPlaintiffs, the Succession of Scott B.. Roberson,1 Gloria D. Roberson and Craig E. Roberson, appeal the judgment of the trial court which dismissed Defendant Gary Carlisle from the petitory action regarding certain lots in Claiborne Parish and finding that his tract of land, Lot 1, was not located within the boundaries .of Plaintiffs’ land. Further, Plaintiffs appeal another judgment which found that Defendants, E.W. Chance, III, and mother, Evelyn Chance, were owners of the disputed Lot 2 by virtue of 10 years’ acquisitive prescription.2 For the following reasons, the judgments of the trial court are affirmed.

FACTS

Plaintiffs filed a petitory action against Defendants alleging that they are the owners of a tract of land located in the SW 1/4 of the NW 1/4 of Section 5, Township 20 North,. Range 5 West (and a-portion of Section 6 which is not relevant to this inquiry), which contains 46 acres of land, less and except Lots 1, 2 and 3 of the Willie Moore: Subdivision and a .2-acre servitude. •■Plaintiffs claim their ancestor in title is Charles Williams, who sold the property to Willie Moore in 1941. They attached a cbpy of a plat prepared by Benjamin Winn of Winn Surveying and Engineering, LLC, dated September 8, 2010. Théy also alleged that Defendants were ^trespassing upon their property without a good and valid title and without any right to possession and that they had refused to deliver possession of the property to them without any good or legal cause for such refusal.

Defendants filed an exception of vagueness because Plaintiffs had failed to specify, where the alleged trespass was taking place. After stipulations by the parties, the property in question was determined to be the southeast portion of the property belonging to Plaintiffs. The exception was withdrawn. Defendants filed a joint answer denying the allegations of the petition.

Defendant E.W. Chance filed an exception of nonjoinder of party and claimed that his mother, Evelyn Chance, held an interest in the subject property pursuant to a donation inter vivos executed in 2008 by her husband (Ed Chance, Jr.), donating [206]*206his community interest in the property to her. The Chances1 provided documentation to support this claim and argued that they held just title to the property and that the alleged ownership of the property at issue was derived from a common ancestor with Plaintiffs, Charles Williams, who apparently sold tracts of property to both the Plaintiffs’ ancestor .in title, Willie Moore, and the Chances’ ancestor in title, N.Y. Crawley, who purchased property from Mr. Williams in 1966.3 Mr. Crawley began developing the property by building fences and | .(¡dividing it into seven separate lots. He sold Lot 2 to Shirley and Frances Hughes in 1968. The deed was not recorded until 1971. In 1983, the Hughes-es sold Lot 2 to David and Terry Felker, who held the property until 1992, when they tried to sell it and discovered that there was an error in’ the legal description of the property. As it had been in the deed to the Hugheses, the lot was described as being in the SE 1/4 of the NW 1/4. For that reason, they sued the Hugheses to rescind the sale and a survey was done by James Wooten on April 6, 1994. The Hugheses settled with the Felkers, and the property was returned to them by quitclaim deed dated July 15, 1996. After the sale of Lot 2 to the Felk-ers was rescinded, the Hugheses sold it to the Chances in 2005.

The Chance Defendants alleged that, after Ed Chance, Jr., died, the judgment of possession in his succession erroneously placed his heirs, E.W. Chance, III, and John Dumas Chance, in possession of Lot 2. Based on the foregoing, Plaintiffs amended their petition to include Evelyn Chance as a defendant. In their answer to the amended petition, the Chances pled the affirmative defenses of estoppel' by deed and ten-year acquisitive prescription. They filed a motion for summary judgment claiming the Hugheses had acquired their lot through 10- and 30-year acquisitive prescription. The trial court denied the motion.

The trial began with the testimony of Benjamin Winn, surveyor, who drew the plat dated September 8, 2010, and which shows Lot 2 of the N.Y. Crawley Subdivision located in the southeast corner of Plaintiffs’ property, above the section line, partially within, and partially outside of, Plaintiffs’ L property line on Lake Claiborne. Mr. Winn testified that he performed a “section control retrace survey” to define the section lines into its quarters and quarter-quarters. He stated that he referred to a survey of the Willie Moore Subdivision, prepared by Doyle Sanders, and included the three lots in that subdivision. He admitted that, on the plat he drew, he had reversed the order of the lot numbers. Lot 3 should have been the northernmost lot and Lot 1 the southernmost. He testified that' the lots of the N.Y. Crawley Subdivision were taken from the assessor’s map, the listings with- the metes and bounds descriptions and evidence on the ground, although there was conflicting evidence. He marked on the plat where he found marker pins and plotted the Crawley Subdivision accordingly, even though there was confusion in the deeds he was given and the fact that he would not have plotted them there.

Mr. Winn further testified that he considered a plat of the NY. Crawley Subdivi[207]*207sion he. had obtained froto the Claiborne Parish tax assessor’s office. He stated that he used that plat, and the metes and bounds descriptions and evidence on the ground, including corner marker pins, to achieve his best depiction of where Lots 1, 2 and 3 were located. He further stated that, even though the deeds reflected that the property at issue was located- in the wrong quarter, “I have to do what our board tells us to do, so there was visible indications of somebody acquiring rights right there [.] ”

Plaintiffs questioned Mr. Winn about a map hé had retrieved from the assessor’s office which showed “one more lot,” and Defendants’ |sattorney stated it wás an older map.4 Mr. Winn responded, “that would make sense because we actually found corner pins south of here that I show on my plat that I couldn’t account for at the time.” He stated that he looked for improvements and found mobile homes and buildings, replying, “The building to the south that we tied in was actually in the next Quarter-Quarter.”5

Mr. Winn further testified- that he was able to determine the location of Lot 2 of the N.Y. Crawley Subdivision by using the metes and bounds description and by looking at the map he had from the assessor’s office, which only showed Lots 1 and 2. Regarding the plat he drew, he stated, “there’s two corner pins south of where I show Lot 1. This whole thing could actually be shifted down to where there was a 3 in the place of Lot 2.” Mr. Winn admitted the rnet'es and bounds description of Lot 2 could be followed and Lot 2 could be physi-eally located below Lot 3; which was bordered on the north by Liberty Hill Road, and the starting point for measuring Lot 2 would begin 83 feet south of the southeast corner Of Liberty'-Hill Church Road and along the waterline-of Lake Claiborne. He further stated that he had the lot located in the wrong place on his survey—“I miss plotted (sic )■ them because I didn’t have what you have. I had an older one. Actually, 3 is where 2 is, 2 is where 1 is, and 1 is below that.” Regarding Lot 2, he admitted he had “messed up” and “put it too far north.”

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182 So. 3d 203, 2015 La. App. LEXIS 2278, 2015 WL 7280562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberson-v-chance-lactapp-2015.