Williamson v. Kelly

520 So. 2d 868, 1987 WL 1223
CourtLouisiana Court of Appeal
DecidedNovember 4, 1987
Docket86-1052
StatusPublished
Cited by9 cases

This text of 520 So. 2d 868 (Williamson v. Kelly) 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
Williamson v. Kelly, 520 So. 2d 868, 1987 WL 1223 (La. Ct. App. 1987).

Opinion

520 So.2d 868 (1987)

Walter WILLIAMSON, et ux., Plaintiffs-Appellees,
v.
Harold L. KELLY, et ux., Defendants-Appellants.

No. 86-1052.

Court of Appeal of Louisiana, Third Circuit.

November 4, 1987.
Writ Denied January 8, 1988.

*869 Gahagan & Gahagan, Marvin Gahagan, Natchitoches, for plaintiffs-appellees.

Culpepper, Teat, Caldwell & Avery, David T. Caldwell, Jonesboro, for defendants-appellants.

*870 Before KNOLL and KING, JJ., and CULPEPPER, J. Pro Tem.[*]

WILLIAM A. CULPEPPER, Judge Pro Tem.

This is a boundary dispute concerning two adjoining pieces of property on Clear Lake in Natchitoches Parish, Louisiana. The plaintiffs filed suit to establish the boundary between their own tract[1] and that of the defendants which adjoins it to the north. The defendants contend the boundary has already been established and, alternatively, they have acquired the property through ten and thirty years acquisitive prescription. The plaintiffs contend the defendants have encroached 10 feet into the northeast corner of the plaintiffs' property.

The plaintiffs and the defendants trace their titles to a common author; the plaintiffs have the more ancient title. Both parties introduced as evidence surveys of their property and conflicting testimony as to the former location of an old fence between their properties. The trial court found the defendants had not proven acquisitive prescription and fixed the boundary according to the plaintiffs' title. The defendants appealed.

ASSIGNMENTS OF ERROR

The defendants' assignments of error have been consolidated as follows:

1. The plaintiffs did not prove there is in fact a boundary dispute between the parties.

2. The trial court erred in finding the plaintiffs' property was sold per aversionem.

3. The trial court erred in fixing the boundary according to the plaintiffs' title rather than according to the defendants' title or to the extent of the defendants' ownership through acquisitive prescription.

4. The plaintiffs' survey was incorrectly admitted into evidence and relied on by the trial court in fixing the boundary because it was not executed in accordance with correct surveying standards.

5. The plaintiffs did not carry their burden of proof in establishing the correct boundary.

ISSUE NO. 1

The defendants assert there was no overlap of property established, and therefore no boundary dispute. However, the plaintiffs claim the defendants have placed a shed some eight feet over the property line onto the plaintiffs' property while the defendants contend that the shed is on their own property. This establishes a boundary dispute. Moreover, an action in boundary may properly be resorted to where, although once established by a physical barrier or markers, the physical bounds or markers have been completely eradicated. Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957). It has been admitted that an old fence used to stand between the properties herein, but its exact former location and its present existence are disputed. Thus, the boundary action is proper and available to plaintiffs for the relief sought.

*871 ISSUE NO. 2

The defendants contend the trial court erred in "the evident determination by the court" that the plaintiffs acquired their property in a sale per aversionem because the property is not established by fixed boundaries to the north and south. The defendants cite Deshotel v. Lachney, 465 So.2d 974 (La.App. 3d Cir.1985), in support of this contention. The trial court did not state anything in its brief reasons for judgment which characterized the description in plaintiffs' deed as a sale per aversionem. However, we will address the issue based on defendants' allegation that he apparently did so.

The plaintiffs' deed establishes their property as bounded on the north by the property of O.D Guin, on the south by the property of Louis C. Hall, on the east by Clear Lake and on the west by the graded road. We set forth in full the trial court's reasons for judgment as Appendix I. The court in Deshotel, at page 978, found a boundary fixed by the property of another is sufficient, but a boundary described as "bounded north by the balance of vendor's 12 acre tract" is not. Therefore, the Deshotel case is inapposite to the defendants' argument. A contiguous tract of land may serve as a boundary in a sale per aversionem. Randolph v. Sentilles, 110 La. 419, 34 So. 587 (1903). We find no error on the part of the trial court concerning this assignment.

ISSUE NO. 3

The defendants contend the trial court erred in fixing the boundary according to the plaintiffs' title, rather than according to the defendants' title or to the extent of the defendants' ownership through acquisitive prescription. LSA-C.C. art. 794 was explained by this court in Fontenot v. Marks, 430 So.2d 810 (La.App. 3d Cir.1983):

"The applicable law was set forth in LeBlanc v. LaBorde, 368 So.2d 1126 (La. App. 3rd Cir.1979) wherein this court stated:
`[W]here there is a visible boundary and where there has been actual uninterrupted possession, either in person or through ancestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within the visible bounds, then the party who possesses acquires the right to the land beyond their title. William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La.1977); Brookshire v. Guidry, 355 So.2d 559 (La.App. 3 Cir.1978).
The requirements of these articles indicate that one must maintain an enclosure, such as a fence, around the property and exercise open, physical possession as owner for a continuous and uninterrupted period of thirty years. Martin Timber Company v. Taylor, 187 So.2d 196 (La.App. 3 Cir.1966). There must have been not only evidence of a corporeal possession of the property for the required period of time, but also a positive intent to possess as the owner shown by the possessor during the time. William T. Burton Industries, Inc. v. McDonald, 346 So.2d 1333 (La.App. 3 Cir.1977). Finally, the tacking of possession of all predecessors in title is permitted for acquisitive prescription beyond title to a visible boundary. Dubois v. Richard, 223 So.2d 198 (La.App. 3 Cir.1969).'
We note that in a boundary action, the boundary's location is a question of fact to be determined by the trier of fact, and such a determination should not be reversed on appeal in the absence of manifest error. Richardson v. Scrantz, 385 So.2d 1269 (La.App. 3rd Cir.1980); Simmons v. Toliver, 422 So.2d 729 (La. App. 3rd Cir.1982)."

The trial court found as a fact that the defendants did not prove acquisitive prescription. This finding is not manifestly erroneous since no visible boundary was maintained by either party. Indeed, the problem here centers around the exact former location of an old, disintegrated fence between the tracts. Therefore, the trial court's holding on the issue of acquisitive prescription is affirmed.

After determining ownership was not established by acquisitive prescription, the trial court correctly next looked to the *872 titles of the parties to establish the boundary. LSA-C.C. art. 792. LSA-C.C. art.

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Cite This Page — Counsel Stack

Bluebook (online)
520 So. 2d 868, 1987 WL 1223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williamson-v-kelly-lactapp-1987.