St. John Baptist Church of Phoenix v. Thomas

1 So. 3d 618, 2008 La.App. 4 Cir. 0687, 2008 La. App. LEXIS 1656, 2008 WL 5192336
CourtLouisiana Court of Appeal
DecidedDecember 3, 2008
Docket2008-CA-0687
StatusPublished
Cited by16 cases

This text of 1 So. 3d 618 (St. John Baptist Church of Phoenix 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
St. John Baptist Church of Phoenix v. Thomas, 1 So. 3d 618, 2008 La.App. 4 Cir. 0687, 2008 La. App. LEXIS 1656, 2008 WL 5192336 (La. Ct. App. 2008).

Opinions

DENNIS R. BAGNERIS, SR., Judge.

| j Defendants and Intervenors appeal the judgment of the trial court declaring that the Plaintiff, St. John Baptist Church of Phoenix, Louisiana, (“St. John Baptist Church”) is the owner of the property at issue through acquisitive prescription of thirty years. For the following reasons, we affirm.

FACTS

On February 6, 2007, St. John Baptist Church filed a petition for declaratory judgment alleging that it has acquired ownership of property through thirty (30) years acquisitive prescription. The property at issue is located in Plaquemines Parish, Louisiana, and is legally described in these proceedings as:

A certain tract of land situated in the Parish of Plaquemines, in this State, on the left bank of the Mississippi river, designated by the Number 20 on a plan drawn by Uncas Lewis, Surveyor, dated twenty-first November 1870 and annexed to an act passed in this office on the twenty-fifth day of January 1972; which said tract of land measured one arpent front on the Mississippi River, by forty arpents more or less in depth, between lines closing in the rear as a angle of about sixteen and one-half degrees, bounded above by lot number twenty-one and below by lot number nineteen according to said plan, together with all the rights, ways, privileges, ser-vitudes and advantages thereunto belonging or in wise appertaining.
|2Said tracts of land is part of a larger tract of land formally known as the “Ste. Sophie Plantation” and which was acquired by the late Albin Soulie from H.E. Duconge, per act passed before me, notary, on the thirtieth day of December 1870.

The petition for declaratory judgment avers, in pertinent part:

1.
Made Defendants are the deceased, Cornelius Thomas, Samual Reed, Washington Goodeye and Philip Hill, which pursuant to LSA-CCP Article 734, are sued through their succession representatives. On information and belief, no succession representative has been appointed for Defendants and Petitioner has been unable to locate any heirs and/or legatees of the Defendants. Pursuant to LSA-CCP Article 5091, Defendants should be served through a court appointed attorney.
* * *
4.
On November 25, 1874, Cornelius Thomas, Samual Reed, Washington Goo-deye and Philip Hill, purchased the property described in Exhibit A by act registered in COB 20, folio 24 of the conveyance records of Plaquemines Parish, Louisiana....
* * *
9.
The sole purpose for the purchase of the property described in Exhibit “A” by [621]*621Cornelius Thomas, Samual Reed, Washington Goodeye and Philip Hill was to create St. John Baptist Church of Phoenix, Louisiana.
10.
Since that date St. John Baptist Church of Phoenix, Louisiana, has exercised possession of, control of and used the property described in Exhibit “A”.
11.
St. John Baptist Church of Phoenix, Louisiana, has exercised possession of, control of and used the property | ,¡described in Exhibit “A” for a period of greater than thirty (30) years. (Exhibit omitted)
12.
Accordingly, Petitioner is entitled to a declaratory judgment declaring that Petitioner has acquired ownership of the property described in Exhibit “A” through thirty (30) years acquisitive prescription, and that the Defendants have no ownership interest or other rights in or to the property described in Exhibit “A”.

In consideration of St. John Baptist Church’s motion for appointment of attorney, the trial court appointed attorney Kevin Conner to represent the deceased defendants, Cornelius Thomas, Samual Reed, Washington Goodeye, and Philip Hill. Thereafter, appellants Gertrude Thomas1 and Thea Brocks Manard2 enrolled counsel of record and claimed an ownership in the property.

A bench trial in this matter was held on March 3, 2008. Thereafter, the trial court signed a judgment in favor of St. John Baptist Church finding that it has openly possessed Lot 20 as owner and acquired ownership of the property through thirty years acquisitive prescription. In its well written reasons for judgment, the trial court wrote, in pertinent part:

The property upon which the Church is located was obtained by Cornelius Thomas, Samual Reed, Washington Goo-deye and Philip Hill on November 25, 1874, on behalf of the as yet unincorporated Church, which took possession of the property almost immediately. The Church has possessed the property uninterrupted since 1874.
The only people who contest the ownership of the property by the church by acquisitive prescription are Gertrude Thomas, an heir of Cornelius Thomas, and 14Thea Manard, who comes into this litigation under most strange circumstances. They concede that the Church has used the property for 133 years, but argue that the Church’s possession is precarious, not adverse, and title has never been obtained as a result.
Because there is no question of possession by the Church for well over 100 years, the issue presented in this litigation is the nature of that possession. La. C.C.art. 3437 provides that possession is precarious when exercised with the permission of the owner. As such, acquisitive prescription does not run in favor of a precarious possessor who is presumed to possess for another despite his intent to possess for himself.
In order for a precarious possessor to become an adverse possessor, he must give the owner some notice that his property is in jeopardy. This notice may be implied if there is open, notorious, public, continuous and uninterrupted possession to the exclusion of the owners.
[622]*622It is argued in this matter that the Church cannot claim ownership because they possessed the property with the specific consent of the owners. Certainly the evidence demonstrates that the property was turned over to the Church almost immediately after being purchased, giving rise to a presumption that the Church possessed not for the titled owners, but for the Church itself.
In fact, over the next many decades oil, gas and mineral leases were granted by the trustees of the Church; the State of Louisiana Department of Highways sued the Church to expropriate a right of way from the front portion of Lot 20; the property has been listed on the assessment roles of the Parish of Plaque-mines in the name of the Church for an indeterminate number of years; and the Parish Government has taken steps against the Church to remediate dilapidated houses on the property, recognizing the Church as the owner of Lot 20.
In Delacroix v. Perez, 1998-2447 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, the Fourth Circuit stressed that:
The fact of physical possession by a non-owner is sufficient notice of the record owner and the public at large that a non-owner intends to possess the property for himself, as owner...

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St. John Baptist Church of Phoenix v. Thomas
1 So. 3d 618 (Louisiana Court of Appeal, 2008)

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Bluebook (online)
1 So. 3d 618, 2008 La.App. 4 Cir. 0687, 2008 La. App. LEXIS 1656, 2008 WL 5192336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-john-baptist-church-of-phoenix-v-thomas-lactapp-2008.