Secret Cove, LLC v. Thomas

862 So. 2d 1010, 2003 WL 22515752
CourtLouisiana Court of Appeal
DecidedNovember 7, 2003
Docket2002 CA 2498
StatusPublished
Cited by28 cases

This text of 862 So. 2d 1010 (Secret Cove, LLC v. Thomas) 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
Secret Cove, LLC v. Thomas, 862 So. 2d 1010, 2003 WL 22515752 (La. Ct. App. 2003).

Opinion

862 So.2d 1010 (2003)

SECRET COVE, L.L.C.
v.
George Ronald THOMAS and His Wife, Audrey Lee Dykes Thomas

No. 2002 CA 2498.

Court of Appeal of Louisiana, First Circuit.

November 7, 2003.
Rehearing Denied January 22, 2004.

*1013 Ronald W. Guth, Slidell, for Plaintiff-Appellant Secret Cove, L.L.C.

Howard R. Fussell, Jones Fussell, L.L.P., Covington, for Defendants-Appellees George Ronald Thomas and Audrey Lee Dykes Thomas.

Before: CARTER, C.J., PARRO, and GUIDRY, JJ.

PARRO, J.

Secret Cove, L.L.C., the record owner of certain real property, appeals a judgment declaring that George Ronald Thomas and his wife, Audrey Lee Dykes Thomas (the Thomases), acquired ownership of a portion of that property by thirty-year acquisitive prescription. Based on our review of the facts and law, we affirm in part, vacate in part, and remand for amendment of the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 28, 1997, Secret Cove, L.L.C. (Secret Cove), a corporation owned by Dr. Robert M. Hogan and his wife, Deborah Surgi Hogan (the Hogans), bought a tract of rural land in Section 35, Township 5 South, Range 13 East, St. Tammany Parish, containing approximately 216 acres.[1] The property is south of Lock No. 2 and borders the western edge of the Pearl River Navigational Canal (the canal); the southern boundary of the property is the section line between Section 35 and Section 48. At the time of the purchase, a small portion of the property, between one and three acres[2] in the extreme southeastern part of the tract adjoining the canal (the disputed property), was the site of a campground operated by the Thomases. The Thomases were and are the record owners of property in Section 48 that is immediately adjacent to and south of the disputed property. The disputed property, a narrow finger of land alongside the canal, extends perpendicularly from the section line northward into Section 35. After Secret Cove bought the property in Section 35, the Hogans attempted to obtain possession of the disputed property; however, the Thomases refused to leave. Eventually, this litigation between the parties ensued.

Secret Cove filed this suit as a petitory action on October 29, 1999, claiming ownership of and seeking possession of the disputed property, along with damages for trespass and lost revenues. The Thomases reconvened, claiming that they possessed the disputed property and that they and their family had possessed it continuously and openly since about 1957. They claimed that by virtue of thirty-year acquisitive prescription, they had acquired ownership of the disputed property.

*1014 Secret Cove presented evidence of its title, and the parties stipulated at trial that Secret Cove had valid record title to the disputed property. Therefore, the only issues at trial concerned the extent and nature of the Thomases' possession and whether it met the legal requirements for thirty-year acquisitive prescription.[3] Following the trial, the court ruled in favor of the Thomases, finding they had continuous and open possession of the disputed property for thirty years, with the intent to own it and within certain described visible boundaries. The court concluded that although the Thomases' title over their property in Section 48 did not extend to the disputed property in Section 35, the possession of the disputed property by Jack J. Thomas, which began in 1957, could be tacked to that of his son, George Ronald Thomas.[4] By tacking the father's possession to the son's possession, the court concluded the Thomases had reached the thirty years required for acquisitive prescription.

The judgment was signed July 9, 2002, maintaining the Thomases' plea of thirty-year acquisitive prescription and declaring them to be the owners of the disputed property. Secret Cove appealed, assigning as error the trial court's factual findings relative to visible boundaries; its conclusions that the nature and extent of the Thomases' possession satisfied the legal requirements for thirty-year acquisitive prescription; its signing of a judgment in which the eastern boundary line is described differently from the court's findings as set forth in its reasons for judgment;[5] and its credibility determinations with respect to the witnesses who testified at the trial.[6]

APPLICABLE LAW

In Louisiana, the petitory action is available for the recovery of immovable property. A.N. Yiannopoulos, Property § 268, at 540, in 2 Louisiana Civil Law Treatise (4th ed.2001). The petitory action is brought by a person who claims ownership, but is not in possession, of immovable property, against another who is in possession or who also claims the ownership of that property, seeking to obtain judgment recognizing the plaintiff's ownership. See LSA-C.C.P. art. 3651. Acquisitive prescription beyond title by possession to a visible boundary for a period of thirty years may be pleaded as a defense in a petitory action. Cuthbertson v. Unopened Succession of Tate, 544 So.2d 1236, 1239 (La.App. 3rd Cir.1989). In a petitory action, when one party relies on title and the other on acquisitive prescription, the party relying on title will prevail unless the adversary establishes his ownership by acquisitive prescription. Pace v. Towns, 33,071 *1015 (La.App. 2nd Cir.4/5/00), 756 So.2d 680.

Ownership of immovable property may be acquired by the prescription of thirty years without the need of just title or possession in good faith. LSA-C.C. art. 3486. Ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title. Under the general codal provisions on acquisitive prescription, a possessor lacking good faith and/or just title may acquire prescriptive title to land by corporeally possessing a tract for thirty years with the intent to possess as owner. Such possession confers prescriptive title upon the possessor only when it is continuous, uninterrupted, peaceable, public, and unequivocal, and confers title only to such immovable property as is actually corporeally possessed. See LSA-C.C. arts. 3424, 3426, 3476, 3486, 3487, and 3488; Falcone v. Springview Country Club, Inc., 96-0794, 0795, and 0796 (La.App. 1st Cir.3/27/97), 691 So.2d 314, 316.

For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed. LSA-C.C. art. 3487. Actual possession must be either inch-by-inch possession or possession within enclosures. According to well-settled Louisiana jurisprudence, an enclosure is any natural or artificial boundary. LSA-C.C. art. 3426, comment (d), Revision Comments—1982, citing A.N. Yiannopoulos, Property §§ 212-214, in 2 Louisiana Civil Law Treatise (2d ed.1980). The party who does not hold title to the disputed tract has the burden of proving actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. Conway v. Crowell Land & Mineral Corp., 93-1158 (La.App. 3rd Cir.4/6/94), 635 So.2d 544, 549-550, writ denied, 94-1198 (La.7/1/94), 639 So.2d 1166; Hill v. Richey, 221 La. 402, 420, 59 So.2d 434, 440 (1952).

One is presumed to intend to possess as owner unless he began to possess in the name of and for another. LSA-C.C. art. 3427. The intent to possess as owner may be inferred from all of the surrounding facts and circumstances. Livingston v.

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862 So. 2d 1010, 2003 WL 22515752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/secret-cove-llc-v-thomas-lactapp-2003.