Vollmer v. Noel

713 So. 2d 853, 1998 WL 283061
CourtLouisiana Court of Appeal
DecidedJune 3, 1998
Docket98-23
StatusPublished
Cited by1 cases

This text of 713 So. 2d 853 (Vollmer v. Noel) 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
Vollmer v. Noel, 713 So. 2d 853, 1998 WL 283061 (La. Ct. App. 1998).

Opinion

713 So.2d 853 (1998)

Jesse VOLLMER, Plaintiff-Appellee,
v.
Sammy NOEL, Defendant-Appellant.

No. 98-23.

Court of Appeal of Louisiana, Third Circuit.

June 3, 1998.
Rehearing Denied July 8, 1998.

Anthony Jerome Fontana, Jr., Abbeville, for Jesse Vollmer.

Silas B. Cooper, Jr., Abbeville, for Sammy Noel.

Before THIBODEAUX, SAUNDERS and DECUIR, JJ.

THIBODEAUX, Judge.

This action arose out of a dispute involving the erection of a fence between contiguous properties. Jesse Vollmer, Jr. filed a possessory action against an adjoining landowner, Samuel Noel, claiming Noel disturbed his possession of a strip of land that the Vollmer family acquired by acquisitive prescription of thirty years. Noel judicially converted the action to a petitory action by asserting title to the disputed property. The trial court held that Vollmer and his ancestors in title openly and adversely possessed the land at issue, with the intention of possessing as owners, unequivocally and without interruption for the requisite thirty years. Noel suspensively appealed. We affirm.

I.
ISSUES
We must determine:
1. whether the prior fence line established the requisite visible boundary that is necessary to gain title by acquisitive prescription of thirty years; and
2. whether Vollmer's actions were sufficient to reasonably apprise the public and the record title owner of his intent to possess the land as owner.

*854 II.

FACTS

This appeal involves a strip of land located along the northern boundary of a tract of land owned by the Vollmers, located in the northeast corner of the southeast quarter of Fractional Section 8, Township 13 South, Range 3 East, in Vermilion Parish. The Vollmers' north line, which measures 1,909.95 feet and travels east and west, is also the southern boundary for property owned by Samuel Noel. The land at issue on this appeal is "v" shaped and measures 1.22 feet wide on its east end, 150 feet long on its north and south lines, and 3.5 feet wide on its west end. Jesse Jr. (Vollmer) owns a tract of land that measures 110 feet × 150 feet, which is located in the northeast corner of his family's larger twenty-one acre tract. He contends that the strip of land in dispute was wrongly encompassed by Noel when Noel erected a fence to the south of the property line that had been established by a barbed-wire fence which stood for nearly 100 years and served as the recognized boundary between the two properties.

It is uncontested that a barbed-wire fence previously formed the recognized boundary between the Noel and Vollmer tracts of land from the late 1800s until approximately 1986. A survey commissioned by brothers Jesse, Sr., Lawrence and Percy Vollmer in 1981 to partition their property shows the boundary between the two properties as it was established. It records the boundary as being a straight line running east and west between the entire length of the adjoining properties.

It was established at trial that the old, barbed-wire fence was overgrown with shrubs, brush and trees in sections, making it impossible to see the fence completely from one end to the other. Because of the overgrowth, the boundary line between the two properties that was recorded on the 1981 plat by civil engineer, Elray Schexnaider, was measured according to a parallel offset line approximately ten feet off of the original fence line.

Noel purchased the land adjacent to Vollmer's in the late 1980s after the majority of the barbed-wire fence had been torn down. Months after Noel purchased the property, he placed a plastic white pipe next to what he thought was his property line at its southeast corner, according to the location of a rod that appeared to him to be a survey marker. He proceeded to the southwest end where he found a corner post. He stated that most of the barbed-wire fence along the boundary line had already been removed, and that he proceeded to clear what remained of it and the brush that had been located along that line. As he approached the western boundary of Vollmer's 110 feet × 150 feet tract, he encountered a tree that held a tree house built by Vollmer's children. A portion of the old fence was still attached to the tree on its northern side. Noel claimed that he left the tree intact because Vollmer asked him to leave it and because it contained a tree house that had been built by Vollmer's children. Noel testified that he acquiesced and proceeded to build a boundary levee and stated that in an effort to be neighborly, he constructed the levee such that it would turn to the north when it reached the tree, so as to avoid it and other crepe myrtle trees located farther east that Vollmer had planted. During the construction of that levee, Vollmer claims to have stood over a survey marker that marked the location of the old fence line/boundary. Exhibit P-20 shows the two-inch iron pipe that was allegedly placed over the marker by the Vollmers at that time.

In 1996, Noel decided he would erect a fence marking his southern boundary. However, Vollmer disagreed with him about the location of the boundary. Schexnaider was contacted by the parties to reestablish the boundary. At trial, Schexnaider contended that he was able to relocate most of his original survey markers and the corner posts, thus verifying the 1981 survey. He testified that Vollmer's two-inch iron pipe located at the northwest corner of his lot, was actually 3.5 feet north of the 1981 survey rod that he was able to relocate at that location, and the original corner post at the northeast corner of the Vollmer property was 1.22 feet south of the pipe that Noel had placed there. Vollmer filed a possessory action after Noel erected his fence according to Schexnaider's results, and Noel converted *855 the action to a petitory action by asserting his title.

The issues at trial were whether that 1981 survey correctly identified the previously recognized boundary that had been established by the barbed-wire fence, and whether Schexnaider's 1981 plat coincided with the actual survey markers located along that boundary. The trial court made a number of findings of fact in its written reasons. The court found that there existed a fence separating the adjoining properties currently owned by Vollmer and Noel for more than thirty years; the fence was present in 1973 when Vollmer purchased his 110 feet × 150 feet lot by a cash sale from his father; and it served as a visible boundary, enclosing more land than Vollmer's title called for. The court further found that Vollmer and his ancestors in title satisfied the requirements for gaining ownership of that property via thirty years acquisitive prescription, as set forth in La.Civ.Code art. 794 and Williams v. Peacock, 441 So.2d 57 (La.App. 3 Cir.1983). In addition, the court held that Schexnaider's testimony confirmed that the 1981 plat did not reflect the area enclosed by the fence and that had been acquired by thirty years acquisitive prescription, but only showed the land the Vollmers had acquired by title. Further, he found that Vollmer continued to possess the property until the present time, and had not been dispossessed.

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Bluebook (online)
713 So. 2d 853, 1998 WL 283061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vollmer-v-noel-lactapp-1998.