Property

UNIT I: DIVISION OF THINGS, THE RIGHT TO EXCLUDE AND NAVIGABLE WATER BODIES (A) Common, Public And Private
Things Art. 449. Common things Common things may not be owned by anyone. They are such as the air and the high seas that may be freely used by everyone conformably with the use for which nature has intended them. Art. 450. Public things Public things are owned by the state or its political subdivisions in their capacity as public persons. Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore. Public things that may belong to political subdivisions of the state are such as streets and public squares. (c) Public things may also be subdivided into two categories. The first category consists of things which according to constitutional and legislative provisions are inalienable and necessarily owned by the state or its political subdivisions. The second category consists of things which, though alienable and thus susceptible of ownership by private persons, are applied to some public purpose and are held by the state or its political subdivisions in their capacity as public persons (f) The expression natural navigable water bodies refers to i nland waters the bottoms of which belong to the state either by virtue of its inherent sovereignty or by virtue of other modes of acquisition, including expropriation. Art. 451. Seashore Art. 452. Public things and common things subject to public use Art. 453. Private things Private things are owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons. (b) The character of municipal property and the nature, whether alienable or inalienable, must be determined by the purpose to which the property is dedicated. City of New Orleans v. Salem Brick and Lumber Co . In Anderson v. Thomas, the Louisiana Supreme Court indicated that private things of political subdivisions, such as public offi ces, police and fire stations, markets, schoolhouses may be dealt with as the municipality sees fit, subject only to restrictions imposed by the deed of acquisition or by special laws. (c) Private property of the state or a political subdivision is exempt from seizure. Private property of the state is exempt from prescription. Private property of a political subdivision is prescriptable. Art. 454. Freedom of disposition by private persons Owners of private things may freely dispose of them under modifications established by law. Art. 457. Roads; public or private Art. 458. Works obstructing the public use Works built without lawful permit on public things, including the sea, the seashore, and the bottom of natural navigable waters, or on the banks of navigable rivers, that obstruct the public use may be removed at the expense of the persons who built or won them at the instance of public authorities, or of any person residing in the state. The owner of the works may not prevent their removal by alleging prescription or possession. Art. 459. Building encroaching on public way A building that merely encroaches on a public way without preventing its use, and which can not be removed without causing substantial damage to its owner, shall be permitted to remain. If it is demolished from any cause, the owner shall be bound to restore the public part of the way upon which the building stood. Art. 3473. Prescription of ten years Ownership and other real rights in immovables may be acquired by the prescription of ten years. Art. 3475. Requisites The requisites for the acquisitive prescription of ten years are: possession of ten years, good faith, just title, and a thing susceptible of acquisition by prescription. Art. 3485. Things susceptible of prescription All private things are susceptible of prescription unless prescription is excluded by legislation. (b) Common things and public things are insusceptible of acquisitive prescription.
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Band v. Audubon Park First argument: acquisitive prescription. Art. 3485 comment (b) Public things and common things are insusceptible of acquisitive prescription. Art. 450 states that public things which may be owned by political subdivisions includes streets and public squares and, therefore, public parks. Audubon Park was a public thing owned by a political subdivision and insusceptible of acquisitive prescription. Second argument: obstructions (458) vs. encroachments (459) The removal of the fence and patio (encroachments) would not cause substantial damage to the Bands. The encroachments obstruct public use because they allow two people to enjoy the use of a public thing at the exclusion of all other members of the public to enjoy the park. These circumstances do not meet the requirements of Article 459. Therefore, Article 458 is controlling and Audubon Park Commission has the right and the authority to demand the removal of the encroachments at the Bands expense. Coliseum Square v. CNO La. R.S. 33:4712(A) grants authority to municipalities to sell or lease public property. A municipality may sell, lease for a term of up to 99 years, exchange, or otherwise dispose of, to or with other political corporations of this state, or private persons, at public or private sale, any property, or portions thereof, including real property, which is, in the opinion of the governing authority, not needed for public purposes. Public things are only inalienable when that alienation is mandated by constitution or by statute (Art. 450 comment (c); Yiannopoulas, Louisiana Civil Law Treatise, Property). Home rule charter (La. Constitution, Article IV section 5). Article VI Section 5 authorizes a home rule government to assume any power or function necessary, requisite or proper for the management of its affairs not denied by general law or inconsistent with the constitution. There is no general law in which prohibits a home rule city from closing a public street and leasing or selling its public property formerly dedicated to that purpose. Neither the Civil Code nor the constitution denies the CNO the power to close public streets and to lease or sell public property formerly dedicated to the purpose. Supreme Court of Louisiana stated that because the Citys authority to exercise any power of function necessary for the administration of its local affairs (including the leasing of public property for private use) is deeply rooted the constitution, statutes and jurisprudence of Louisiana, the Court had only one legitimate role in these circumstances and that was to determine whether the City exercised its authority in an arbitrary or capricious manner. Arbitrary and capricious standards. The Court had only one legitimate role in these circumstances and that was to determine whether the City exercised its authority in an arbitrary or capricious manner (costs of the decision could not outweigh the benefits). In this case, the record showed that the Citys determination was made only after thorough and complete consideration of the relevant evidence. At the City Council meeting, based on testimony, written comments and input from other committees, it was shown that the benefits provided by Trinitys plan outweighed any adverse impact on the area Unit I (B) Scope Of Public Things: Seashore, Navigable Rivers, Lakes, Disappearing Coast Art. 449. Common things Art. 450. Public things Art. 451. Seashore Seashore is the space of land over which the waters of the sea spread in the highest tide during the winter season. Seashore Test: (1) proximityimmediate vicinity of open Gulf; (2) tidal flowdirect overflow from tides La. R.S. 49:3 Ownership of waters within boundaries The State of Louisiana owns in full and complete ownership the waters of the Gulf of Mexico and of the arms of the Gulf and the beds and shores of the Gulf and the arms of the Gulf, including all lands that are covered by the waters of the Gulf and its arms either at low tide or high tide, within the boundaries of Louisiana
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Yiannopoulos Treatise 57 Running Waters According to Article 450 of the Louisiana Civil Code, running water is a public thing. As such, it is owned by the state in its capacity as a public person and it is subject to public use. Under the Civil Code, running water is distinguishable from the space it occupies and from the bed that contains it. Thus, the bed of a non-navigable river is a private thing, whereas the water is a public thing subject to public use. Further, the bed of a navigable river or stream is a public thing, as is the water. However, the water is subject to public use but the bed is not. The riparian owner may use running water for his purposes, but he may not interfere with or exclude public use. Thus, running water belongs to the owner of the bed, whether he is a public or private person. However, regardless of ownership, running water under modern civil codes is a thing subject to public use. Yiannopoulos Treatise 64 Navigability In general, a body of water is navigable if it is susceptible of being used, in its ordinary condition, as a highway of commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. Navigability must thus be proven unless the court is prepared to take judicial notice that a body of water is navigable in fact. Buras v. Salinovich Seashore RULE: Land is not seashore if it is only indirectly washed by tides. BURAS: Court held that the land in question was not seashore b/c neither the waters of the Gulf nor the bay behind the land spread over the land during high tides; the tide water back up into the coves behind the land and cause the bayous in the land to rise and spread over most of the areas; land over one mile away from Gulf State v. Two Oclock Bayou **Navigability Test** RULE: A body of water is navigable in law when it is navigable in fact. The question of whether a body of water is navigable in fact depends on its depth, width and location for commerce. A body of water, to be navigable, must be usable for commerce. Navigability is not presumed; the burden of proof rests with the party seeking to establish it. A body of water can be navigable despite natural or man-made obstructions. Navigability in Two Oclock: Bayou has been used by generations of local people for fishing and transporting lumber In its natural state the stream afforded a channel for navigability A movie was made in the area and filmed barges traveling up and down the streamcapable of carrying boats Trahan v. Teleflex Navigability in Trahan: Fishing; logging Could travel on it to Gulf of MX Capable of carrying boats State v. Placid Oil **River v. Lake Classification Multi-Factor Test** Multi-Factor Test: 1. Size, especially its width as compared to the streams that enter it 2. Depth 3. Banks sedimentary deposits (large=river; small=lake) 4. Current, especially as compared to that of the streams that enter it 5. Historical Designation, especially on official maps PLACID OIL found Grand Six-Mile Lake was a lake Application of test: 1. Substantial size, noticeably wide, wider than streams that enter it 2. Current substantially slower than that of the inflowing river 75% of the sedimentation deposited in the lake, only 25% carried out 3. Designated on official maps as a lake 4. Relatively shallow in depth
A body of water through which a current flows or runs with such capacity and velocity and power as to form accretions is characterized as a river or stream. Channel contributes to classification as a river. Dereliction occurring from natural causes contributes to classification as a river. Receiving sediment from attributaries contributes to classification as a river. Modest sedimentary deposits on its own bank means current isnt strong, contributes to classification as a lake. Article 499 of Civil Code: The accretions, which are formed successively and imperceptibly to any soil situated on the shore of a river or other stream, are called alluvion. The alluvion belongs to the owner of the soil situated on the edge of the water, whether it be a river or stream, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by the law for the public use. Article 499 is INAPPLICABLE TO LAKES. Alluvion formed on the shores of rivers and streams belongs to the adjacent landowners. As to lakes, the adjacent landowners have no alluvial rights. Yiannopoulos Treatise 63 1812 - present navigable public; 1812 present non-navigable private If navigability changes over time ; becomes navigable over time naturallyshould be public; questions of constitutionality (where Freeze Statute comes in to play); becomes non-navigable private thing; no issue because state can own private things La. R.S. 9:1151 (Freeze Statute) Protects mineral interests of owners when their land becomes submerged; does not protect any ownership interests in the submerged land itself.
In all cases where a change occurs in the ownership of land or water bottoms as a result of the action of a navigable stream, bay, lake, sea, or arm of the sea, in the change of its course, bed, or bottom, or as a result of accretion, dereliction, erosion, subsidence, or other condition resulting from the action of a navigable stream, bay, lake, sea, or arm of the sea, the new owner of such lands or water bottoms, including the state of Louisiana, shall take the same subject to and encumbered with any oil, gas, or mineral lease covering and affecting such lands or water bottoms, and subject to the mineral and royalty rights of the lessors in such lease, their heirs, successors, and assigns; the right of the lessee or owners of such lease and the right of the mineral and royalty owners thereunder shall be in no manner abrogated or affected by such change in ownership.
Unit I (C) Private Things Subject To Public Use: Banks Of Navigable Rivers And Canals Art. 450. Public things Art. 452. Public things and common things subject to public use Public things and common things are subject to public use in accordance with applicable laws and regulations. Everyone has the right to fish in rivers, ports, roadsteads, and harbors, and the right to land on the seashore, to fish, to shelter himself, to moor ships, to dry nets, and the like, provided that he does not cause injury to the property of adjoining others. The seashore within the limits of a municipality is subject to its police power and the public use is governed by municipal ordinances and regulations. Art. 455. Private things subject to public use Private things may be subject to public use in accordance with law or by decision. (b)In La decisions, private things subject to public use are frequently termed public things, whether they belong to th e state, its political subdivision, or to private person. These things are not necessarily public in the sense of Articles 453 and 454, nor in the sense of Article 450. They are public merely in the sense that they are destined or dedicated to public u se. Art. 456. Banks of navigable rivers or streams The banks of navigable rivers or streams are private things that are subject to public use. The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high state of the water. Nevertheless, when there is a levee in proximity to the water, established according to law, the levee shall form the bank. (b) The servitude under this provision is not for the use of the public at large for all purposes but merely for pu rposes that are incidental to the navigable character of the stream and its enjoyment as an avenue of commerce. (c) The banks of navigable rivers are private things which, ordinarily, belong to the riparian proprietors. (d) Bank of the stream belongs to the owner of the adjacent land. The bed of the river is the land that is covered by water in its ordinary low stage. (f) The definition of the bank of a river may include, in addition to the banks of natural watercourses, artificial navigat ion canals. A navigation canal constructed by public authorities on a right of way servitude or on public lands is a public things. If the banks of a public canal are within the right of way acquired by the authorities, they are subject to public use. If the navigation canal is built entirely on private property for private purposes, or if the banks of a public canal belong to private individuals, public use of the banks may be excluded.
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Art. 457. Roads; public or private A road may be either public or private. A public road is one that is subject to public use. The public may own the land on which the road is built or merely have the right to use it. A private road is one that is not subject to public use. Art. 458. Works obstructing public use Art. 459. Building encroaching on public way Art. 460. Construction of navigation facilities on public places by port commissions or municipalities Port commissions of the state, or in the absence of port commissions having jurisdiction, municipalities, may within the limits of their respective jurisdictions, construct and maintain on public places, in beds of natural navigable water bodies, and on their banks or shores, works necessary for public utility, including buildings, wharves, and other facilities for the mooring of vessels and the loading or discharging of cargo and passengers Wemple . Eastham **Beds vs. Banks of Rivers and Ownership of Each** BED of a navigable river only land that is covered by water at its ordinary low state; the land which the state holds in her sovereign capacity Beds of streams that are not and never have been navigable belong to the riparian owners, to the thread or middle of the stream BANK land between the edge of the water at its ordinary low state and the line which the edge of the water reaches at its ordinary high state; belongs to the adjacent landowners; subject to public use WEMPLE state owned the bed of one navigable bayou (Bayou Pierre) that ceased to be navigable; state still owned bed and had right to lease the BED; other bayou in question (Dolet Bayou) is and always has been non-navigable so bed belongs to the plaintiff Warner v. Clarke Parm v. Shumate The Revision Comments of La. C.C. art. 456 state that: Public use under this provision is not for the use of the public at large for all purposes but merely for purposes that are incidental to the navigable character of the stream and its enjoyment as an avenue of commerce Under Warner and Parm, the court found that hunting and fishing upon the lands and waters between the river and levee unrelated to the nature and navigable character of the MS River.
Yiannopoulos, Civil Law Property, 82-87 82. Nature of the public Use of River Banks A servitude of public use confers on administrative authorities and courts broad powers for the regulation and protection o f the rights of the public. This conception is applicable to the public use of the banks of navigable rivers. Louisiana courts have likened this servitude to a usufruct, the public being a great usufructuary, and the right to all the profit, utility, and advantages the property may produce, and the public authorities being the administrator. 83. Prerequisites of Public Use The servitude of public use under La. C.C. art. 456 burdens privately owned banks of navigable rivers. Prerequisites for public use are whether a body of water is a river and whether it is navigable. 84. Area Subject to Public Use: Banks A river consists of three things the water, the bed and the banks. The water and bed of a navigable river are public thing s, whereas the banks are private things subject to public use. 85. Rights of General Public According to well-settled Louisiana jurisprudence, the servitude of public use burdening the banks of navigable rivers is not for the use of the public at large for all purposes. The language of La. C.C. art. 452 is indicative of possible uses but any use of the banks must be incidental to the navigable character of the river and its enjoyment as an avenue of commerce. Rights of the general public are limited: Does not have right to hunting or trapping on banks of navigable rivers without permission from riparian owner. Right to fish from banks of a navigable river, but has no right to fish in ponds or pit bars between the levee and the water.
Does not have the right to cross privately owned lands in order to go to the banks of navigable rivers Does not have right to camp on the banks, to keep vessels or dry docks tied to the bank indefinitely, to use without compensation wharves or other facilities at the bank, to drive piles into the bank for the mooring of vessels, to use the bank as a coal or wood yard, or to erect permanent structures on the banks without the consent of the riparian owner or without license from the authorities; persons acting without authority may be prosecuted as trespassers and structures erected by them may be removed or demolished on an action brought by the riparian owner or by the public authorities upon proof that these structure obstruct the public use.
86. Powers to Public Authorities The state may delegate its powers to the governing bodies of its political subdivisions which may develop the banks or grant, within certain limits, exclusive rights of use to private individuals and corporations. A municipality may not give to private persons a r ight to erect permanent structures upon the batture which will obstruct or embarrass the free use of a public servitude, and to maintain the same in perpetuity. 87. Prerogatives of Bank Ownership The banks of navigable river in La are private things burdened with a servitude of public use; the ownership of the ground, down to the ordinary low water mark remains vested in the riparian proprietors. On principle, the riparian owner retains all prerogatives of ownership that are not incompatible with public use. In effect, the rights of the private owner of the banks of navigable rivers are residual; the content of these rights is determined in the light of the superior claims of the general public or of the public authorities that are charged with the control and administration of the servitude of public use. The riparian owner cannot himself enjoy the bank in such a way as to prevent its common enjoyment by all, nor is he entitled to be referred over others in the use of the banks as a landing place, but he may use the bank, provided he does not prevent the use of it by others, as regulated by the C.C. and in conformity to the police regulations. As a general rule, the riparian owner in rural areas enjoys more prerogatives of ownership over the banks than the riparian owner within ports or within the limits of municipalities. Prerogatives of the owner: Owns the batture, and he may also own trees, buildings and other constructions located thereon May enjoin members of the general public from crossing his land to go to the banks and from using his facilities without his consent. Structures erected by third persons on the banks may be removed or demolished on an action by the owner unless these structures were erected under license from the public authorities. When the banks are appropriated by political subdivisions of the state according to law, the owner may still claim from the public authorities part of the batture that is not needed for public use No one, not even public authorities, may take gravel and sand from the batture without the consent of the owner in rural areas, unless the taking is for levee purposes. One of the most important prerogative of riparian ownership is the qualified right of the owner to build on the banks structures for the accommodation of the public or for his private use and enjoyment. Louisiana decisions indicate that constructions on public property must be removed on proof hat they obstruct the public use although they may not absolutely prevent it. The question whether a building obstructs the public use is not to be decided as a matter of law, unless it is obvious that the obnoxious structure absolutely prevents the public use. This interpretation does justice to the text of LCC art. 459 as well as to that of LCC art. 456, which does not contemplate an absolute prohibition to the rural riparian owner to build between the waterline and the levee.
Lake Providence Port Commission v. Bunge Corp. Defendant wants to build grain elevator on a privately owned bank Court: doesnt obstruct public use; RURAL area; plenty of space; mere encroachment (459) Holding: Although land owned by def. is between a levee and a navigable river and is burdened with a servitude of public use, the def., as a riparian owner, may construct any manner of works on its land provided it does not obstruct the public use. Rural areaseasier to prove mere encroachment; riparian owners of a bank may construct a thing as long as it doesnt obstruct public use
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Vermillion Corp. v. Vaughn Court concludes that La. R.S. 14:97 does not apply to a privately owned canal, even though it may be navigable. Court cites Yiannopoulos (discussing Discon v. Saray, Inc.): No one, however, should be prepared to accept the proposition that all navigable waterways in Louisiana are subject to pubic use merely by virtue of the fact they are navigable. A privately owned canal, though navigable in fact, may bot be subject to public use, for the same reasons that a private road, though used by commercial traffic, may not be subject to public use (457). Holding: A canal on private property constructed and maintained with private funds and used for private purposes is a private canal subject to private control; use can be restricted by the landowner or his assigns. [NOTE: The US Supreme Court reversed this ruling. It held that a navigable water body made by a private person on his land and with his own funds by the improvement or alteration of previously natural navigable waters is subject to a federal navigation servitude.] Yiannopoulos, Civil Law Property 95. Modes of Dedication to Public Use (455) 1. Formal Dedication by virtue of written act; notarial form or privileged signature; similar to donation; transfers ownership; irrevocable 2. Implied Dedication based on actions implying decision 3. Statutory Dedication specific statutes; in compliance of requirements of statutes, file document in public record indicating intent to donate 4. Tacit lets public authority start maintaining land 3 years 97. Formal Dedication (type of dedication) Donation to the public that may be made by a written judicial act Must be a clear intent to donate; must be proved May not be revoked by the grantor; ownership transferred to the public 98. Implied Dedication (type) Absent of requisite formalities Must be a plain and positive unequivocal intent to dedicate on part of the owner Must be an equally clear intent to accept of part of the public Offer/acceptance must be proven; offer may be implied; acceptance may be inferred from actual use of prop by the public Conveys a servitude; may not be revoked Cenac v. PAWRA SUMMARY: Land Golden Ranch Plantation, included a portion of Company Canal and an adjacent boat launch and parking area; Canal connects to Bayou Lafourche, Bayou Des Allemands and used to access Lake Salvador connects to Gulf of Mexico. Gheens, while owner of Golden Ranch, allowed use of canal as means of travel; Gheens died; Gheens foundation takes over property same procedure; plus extended boat launchpart private, part public; Maintenance of canal Amry Corps sprays canal 27 times. 2000 Cenac purchased canal and wanted to restrict access to canal Trial Court: Canal implied dedication subject to public use (60 years of public use, no denial of public use); Launch private; Court of Appeal affirms launches are private and reverses judgment that canal is public; says no implied dedication Supreme Court no implied dedication. Implied dedication requires plain and positive unequivocal intent to dedicate on part of the owner and equally clear intent to accept on part of public Weiners Dissent encouraged public use by building public boat launch; never denied access implied dedication Why would Supreme Court want to deny implied dedication? By recognizing implied dedication too easily, may discourage owners from being lenient with access to their property RULE: Need extremely strong, powerful evidence of intent to dedicate which excluded any other hypothesis . Allowing public use is not enough to prove intent (60 years of public use) Mere maintenance isnt all inclusive but is a factor (Army Corps sprayed 27 times)
Unit I (D) Ownership, The Right To Exclude And Trespass Art. 477. Ownership; content A. Ownership is the right that confers on a person direct, immediate and exclusive authority over a thing. The owner of a thing may use, enjoy and dispose of it within the limits and under the conditions established by law. B. A buyer and occupant of a residence under a bond for deed contract is the owner of the thing for purposes of homestead exemption granted to other property owners pursuant to Article VII, Section 20(A) of the La. Const. The buyer under a bond for deed contract shall apply for the homestead exemption each year. Lacombe v. Carter Trespass (1) A trespass occurs when there is an unlawful physical invasion of the property or possession of another. (2) The plaintiff must show the alleged trespasser physically invaded the immovable property owned or possessed by the plaintiff without plaintiffs lawful permission. APPLIED TO LACOMBE Lacombe produced deeds, surveys, official state maps, and testimony showing he had title to the land where defendants had erected duck blinds and a boathouse The blinds and boathouse were erected before Lacombe purchased the property but b/c Lacombe asked defendants to remove the structures and they refused, it can be concluded that defendants were invading Lacombes property without his lawful permission. Trespass Damages (1) It is incumbent upon the plaintiff to show damages based on the result or the consequences of an injury flowing from the act of trespass; the damages must be proved by a preponderance of the evidence, and this burden of proof may be met by either direct or circumstantial evidence; one who is wronged by a trespass may recover general damages suffered, including mental and physical pain, anguish, distress and inconvenience. (2) To recover civil damages for trespass, a plaintiff must be able to show he suffered some actual harm or injury as a result of the trespass, but this injury could take the form of mental anguish, inconvenience and other forms of emotional harm, not just physical property damages or economic harm. APPLIED TO LACOMBE Lacombe was prevented from using or leasing his property to the fullest extent by the presence of defendants duck blinds and boathouse Court held that a Lacombe could recover mental anguish damages against the intentional trespassers who ignored his requests to remove themselves from the land and who went posting flyers attacking Lacombes character in the local community. Additionally, Lacombe testified that some individuals quit frequenting his hardware business because of the flyers. Perrin v. Randy Tupper Homes Criminal Trespass and Exceptions Criminal Trespass (La. R.S. 14:63) No person shall enter any structure, watercraft or movable/immovable owned by another without express, legal or implied consent. The provisions of La. R.S. 14:63(F) provide in pertinent part: The following persons may enter or remain upon immovable property of another, unless specifically forbidden to do so by the owner or other person with authority, either orally or in writing: (3) Any person making a delivery, selling any product or service, conducting a survey or poll, a real estate licensee or other person who has a legitimate reason for making a delivery, conducting business or communicating with the owner, lessee, custodian or a resident of the immovable property, and who, immediately upon entry seeks to make the delivery, to conduct business or to conduct the communication. The burden is placed on the owner or the person with authority to either post a written notice forbidding persons from entering upon the property or to orally forbid access. If there is no notice forbidding entry, persons who have a legitimate reason listed in the provisions of La. R.S. 14:63(F) are permitted to enter the property. APPLIED TO PERRIN Neither written notice or oral warning forbidding anyone from entering upon the property
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Defendant admits there were no signs, tape nor barricades whatsoever forbidding anyone from entering upon the premises The area was being actively marketing and such marketing was intended to attract prospective home buyers like the plaintiffs Court found plaintiffs had a legitimate reason to be on the property because the were prospective home buyers; under the provisions of La. R.S. 14:63(F) they were other persons who had a legitimate reason for conducting business or communicating with the owner or custodian of the property
PERRIN plaintiffs had permission to be on property due to implied consent from the lack of barricades or sings preventing entry, the marketing of the area encouraging entry, and their legitimate reason, being prospective buyers, for being on the property. Richard v. Richard Right to Exclude = Owners In order to be able to assert trespass in Louisiana, the complainant must show that he is the owner or possessor of immovable property or at least has some real right in the property RICHARD Court granted the exception of no right of action finding that the plaintiff was neither the owner of the home, a possessor with the intent to own, a usufructuary or a lessee and thus was not within the class of persons entitled to assert a trespass action. Exception of no right of action plaintiff does not belong to the class of persons to whom the law grants the cause of action asserted in the suit. Exception of no cause of action no legal basis for suit Civil Trespass A trespass occurs when there is an unlawful physical invasion of the property or possession of another. Even though work may have been done by another, the party supervising and/or directing the work and ordering the trespass is liable The tort of trespass has long been recognized by courts throughout the state as a means to correct the damage caused when an owner is unjustly deprived of the use and enjoyment of his immovable. La. C.C. art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. Defendant may be held liable for trespass even in the absence of intenti.e. when the plaintiff offers proof that the defendant was at fault in causing the trespass pursuant to the general tort article, La. C.C., art. 2315 In several paragraphs of his petition, Wade specifically alleged civil and criminal trespass (he and his mother, Marie, told moving company not to deliver furniture of the day it was delivered and not until uniformed officer present; Marie was given exclusive use of the property after the divorce; Daniel unlawfully gave the movers authorization to enter the premises without the residents permission, knowledge or consent). Taking these allegations to be true (court is bound to do), court found that Wade had stated a cause of action for civil trespass, where he alleged an unlawful physical invasion of the property of possession of another. One must be an owner or legal possessor of property in order to bring action for trespass upon that property. La. C.C. art. 3536 A plaintiff in a possessory action shall be one who possess for himself. A person entitled to the use or usufruct of immovable property, and one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor, and not for himself. La. C.C. art. 3660 A person in possession of immovable property or of a real right therein, within the intendment of the article of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper Wade was not able to show his status as a possessor, nor an owner, nor a lessee of the Ash Street property, even though evidence is permitted at the trial of an exception of no right of action. Wade did not allege damage to the immovable property and the movable property was his mothers. Accordingly, he is not a plaintiff who belongs to the class of persons to whom the law grants the cause of action asserted in the suit and he has no right of action under La.Code Civ. P. arts. 927 and 681
Rodrique v. Copeland Plaintiffs, three residents of the Pontchartrain Shores Subdivision in Jefferson Parish, instituted this action to enjoin defendant, Alvin C. Copeland, from erecting and operating his annual Christmas display. The plaintiffs sought injunctive relief under La. C.C. arts. 667-669 due to problems associated with an enormous influx of visitors to their limited access, residential neighborhood. Problems include restricted access to homes, noise, property damage and a lack of on-street parking. OBLIGATIONS OF NEIGHBORHOOD (La. C.C. arts. 667-669) Owners of immovable property are restrained in the use of their property by certain obligations. These obligations include the responsibilities imposed by articles 667-669 of the Civil Code. General rule from articles 667-669: The landowner is free to exercise his rights of ownership in any manner he sees fit. He may even use his property in ways which occasion some inconvenience to his neighbor. However, his extensive rights do not all how to do real damage to his neighbor. In determining whether an activity or work occasion real damage or mere inconvenience, a court is required to determine the reasonableness of the conduct in light of the circumstances. This analysis requires consideration of the factors such as the character of the neighborhood, the degree of the intrusion and the effect of the activity on the health and safety of the neighbors. Common law = physical invasion. La. Court recognized, in Hero Lands Co. v. Texaco Inc., that prohibitions in C.C. arts. 667-669 are not limited to the physical invasion of neighboring premises. The damage may well be intrinsic in nature, a combinatio n of facts and conditions which, taken together, do not involve a physical invasion but which, under the circumstances, are nevertheless by their nature the very refinement of injury and damage. Since Plaintiffs seek injunctive relief, they must prove irreparable injury in addition to the necessary showing of real damage under C.C. 667-669. DECISION Court concluded that defendants display has occasioned real damage, not mere inconvenience, upon plaintiffs. Also concluded that plaintiffs will be irreparably harmed unless injuncti ve relief is granted. Defendants exhibition constitutes an unreasonable intrusion into the lives of his neighbors when considered in light of the character of the neighborhood, the degree of the intrusions and its effect on the use and enjoyment of their properties by his neighbors. Damaged suffered by plaintiffs during the operations of defendants display is extensive in both its duration and its sizeforced to contend with heavy traffic in limited access neighborhood; must endure noise and property abuse associated with the crowd of visitors who congregate near the display. Traffic has seriously impaired the ability of plaintiffs to gain access to and from their premises; on-street parking for plaintiffs and their guests becomes virtually non-existent. Plaintiffs injury stems from the nature and size of the display which render it incompatible with a restricted access, residential neighborhood. Court orders defendant to limit his display which places the burden on the defendant to reduce substantially the size and extravagance of his display to a level at which it will not attract the large crowds that have been drawn to the neighborhoods in the past. Court noted that the defendant is free to maintain his display unrestricted at a location which is appropriate. C.C. art. 667 Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. C.C. art. 668 Although one be not at liberty to make any work by which his neighbors buildings may be damaged, yet everyone has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor. Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his home as high as he pleases, although by such elevation he should darken the lights of his neighbors house, because this act occasions only an inconvenience, but not a real damage. C.C. art. 669 If the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place.
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UNIT II: CLASSIFICATION OF THINGS, TRANSFER OF OWNERSHIP BY AGREEMENT, AND ACCESSION (A) Corporeals And Incorporeals; Immovables And Movables Art. 461. Corporeals and incorporeals Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched. Incorporeals are things that have no body, but are comprehended by understanding, such as the rights of inheritance, servitudes, obligations, and right of intellectual property. Art. 462. Tracts of land Tracts of land, with their component parts, are immovable. Art. 470. Incorporeal immovable Rights and actions that apply to immovable things are incorporeal immovable. Immovables of this kind are such as personal servitudes, mineral rights, and petitory or possessory actions. Art. 471. Corporeal movables Corporeal movables are things, whether animate or inanimate, that normally move or can be moved from one place to another. Art. 473. Incorporeal movables Rights, obligations, and actions that apply to a movable thing are incorporeal movables. Movables of this kind are such as bonds, annuities, and interests or shares in entities possessing juridical personality. Interests or shares in a juridical person that owns immovable are considered as movables as long as the entity exists; upon its dissolution, the right of each individual to share in the immovable is an immovable. Art. 475. Things not immovable All things, corporeal or incorporeal, that the law does not consider as immovables, are movables. Art. 517 Voluntary transfer of ownership of an immovable The ownership of an immovable is voluntarily transferred by a contract between the owner and the transferee that purports to transfer the ownership takes place between the parties by the effect of the agreement and is not effective against third persons until the contract is filed for registry in the conveyance records of the parish in which the immovable is located. (b) Immovable property may only be alienated by the owner or by persons authorized by him or by law. The owner need not act in person. He may be represented by an agent, mandatory, or other person authorized to act on his behalf. (c) The ownership of an immovable is transferred by a contract that purports to transfer the ownership of the property. Such contracts are acts translative of ownership. Examples of acts of translative ownership are sales, donations or exchanges of property. A unilateral juridical act, such as an acknowledgement that a particular person is the true owner of an immovable, does not suffice to convey ownership. Art. 518. Voluntary transfer of the ownership of a movable The ownership of a movable is voluntarily transferred by a contract between the owner and the transferee that purports to transfer the ownership of the movable. Unless otherwise provided, the transfer of ownership takes place as between the parties by the effect of the agreement and against third persons when the possession of the movable is delivered to the transferee. When possession has not been delivered, a subsequent transferee to whom possession is delivered acquires ownership provided he is in good faith. Creditors of the transferor may seize the movable while it is still in his possession. (b) When the possession of the movable is delivered contemplates both actual delivery and constructive delivery as well as the point in time and place in which the seller performs his obligation to deliver. Art. 1541. Form required for donations A donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law. (b) Donations of both immovable and movable property must be made by notarial act unless a particular exception applies. Art. 1542. Identification of donor, donee, and the thing donated required The act of donation shall identify the donor and the donee and describe the thing donated. These requirements are satisfied if the identities and description are contained in the act of donation or are reasonably ascertainable from information contained in it, as clarified by extrinsic evidence, if necessary.
Art. 1543. Manual gift The donation inter vivos of a corporeal movable may also be made by delivery of the thing to the donee without any other formality. (b) The word also is purposefully used in this Article to make clear that the donation of a corporeal movable does not alw ays require delivery to be effective. If the donation is made by authentic act, physical delivery to the donee is not necessary. Art. 1839. Transfer of immovable property A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogate on oath. An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located. Steinau v. Pyburn Lawrence T. Back and Sybil Lowenberg Beck own a tract of land in Caddo Parish. Murphy Oil Company deposited $8,000 ($50/acre x 160 acres) in registry of court seeking judgment for specific performance against Becks based on an alleged contract to enter into an oil and gas lease. Suit was dismissed; funds never withdrawn. Sybil Beck died; Sybils mother, Minnie Lowenberg, recognized as owner of 1/3 of Caddo Parish real property. Plaintiff-Appellants are heirs of Minnie Lowenberg. Plaintiffs claim ownership of the funds deposited, contending that the fund is an interest arising out of an oil and gas lease and therefore an incorporeal immovable LAW AND ANALYSIS Plaintiffs claim is ownership of 1/3 of $8,000 deposited into registry of court; suit in which $8,000 was deposited was dismissed. For plaintiffs to prevail, court must hold the fund is immovable and subject to succession laws of LA. The authorities relied on by plaintiffsLa. R.S. 9:1105 and Article 3664 of Code of Civil Procedure do not support their contention. La. R.S. 9:1105 and Article 3662 of Code of Civil Procedure provide that rights resulting from mineral contracts are immovable; they do not provide that money resulting from mineral rights is an immovable. Plaintiffs claim to own money, seeking judgment ordering the clerk to pay them money. Money is not an immovable; it is a movable (La. C.C. art. 471). Mineral leaserightincorporeal immovable; money resulting from lease corporeal movable (470, 471) South Central Bell v. Barthelemy The term tangible personal property in City Codes use tax = corporeal movable property in La Civil Code (arts. 461, 471, 473) Court cites Planiol, Treatise on Civil Law, No. 2174: corporeal movable = all things (physical objects) which are not immovable; incorporeal movable = rights Civilian concept of corporeal movable encompasses all things that make up the physical world; incorporeal, i.e. intangibles, encompass the non-physical world of legal rights Tangible personal property under City Code = corporeal movable under Civil Code; physical recordings of computer software are part of the physical world Court held that computer software at issue constitutes corporeal property under our civilian concept and thus, is tangible personal property taxable under 56-21 of City Code When stored on magnetic tape, disc or computer chip, computer software is physically manifested in machine readable form Software at issue is not merely knowledge, but rather knowledge recorded in a physical form which has physical existence, takes up space on the tape, disc or hard drive, makes physical things happen and can be perceived by the senses The purchaser of computer software neither desires nor receives mere knowledge, but rather receives a certain arrangement of matter that will make his or her computer perform a desired function. This arrangement of matter, physically recorded on some tangible medium, constitutes a corporeal body. The essence of the transaction was not merely to obtain the intangible knowledge or information but rather was to obtain recorded knowledge stored in some sort of physical form that Bells computers could use. Recorded as such, the software is not merely an incorporeal idea to be comprehended, and would be of no use if it were. Rather, the software is given physical existence to make certain desired physical things happen. Once the software is reduced to physical form and has come to rest in the City of New Orleans, be it on tape, disk, hard drive or other devise the use tax attaches. The incorporeal right to software is the copyright, which in this case, as is typical in such license agreements, was reserved to the vendors. What Bell acquired, and what CNO was attempting to tax, was not the copyright to the software, but the copy of the software itself.
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In sum, once the information or knowledge is transformed into physical existence and recorded in physical form, it is corporeal property. Therefore, we hold that the switching system software and the data processing software involved here is tangible personal property and thus is taxable by CNO Succession Of Miller Decedent and her cousin, Mrs. Meyer (donee), went to supermarket and purchased bearer bonds; decedent previously told Meyers husband of her intentions to purchase bonds and give them to Mrs. Meyer; According to Mr. and Mrs. Meyers testimony, Miller gave bonds to Mrs. Meyer after they were issued; Meyer testified that she understood them to be hers. Decedent, accompanied by Mrs. Meyer, closed out a savings account in her name and transferred the funds into an account titled Mildred M. Miller or Mrs. Albertha Meyer (payable to either or survivor) . Miller suffers stoke and is hospitalized until death; Mr. and Mrs. Meyer testified that Miller told them she was about to die and instructed Mrs. Meyer to withdraw funds from account; Meyer protested at first but Miller insisted; Meyer withdrew funds May 24, 1976, a day bef ore Millers death. Miller never married and was only survived by cousins, one of which was Meyer; Meyer saw Miller daily; Miller had a room in Meyers house Miller had a written will but it was invalid b/c f form; so had intestate succession (w/o will) where administratrix (female administrator of an estate) filed the succession inventory; included funds from joint saving account already w/drawn by Meyer and bearer bonds. Meyer contends Miller gratuitously gave her the funds and bonds and thus, the items belong to her. Administratrix included the items contended a valid inter vivos donation had not been made. Property can neither be acquired nor disposed of gratuitously except by donations inter vivos or mortis causa. (1467) For Meyer to prevail, it must be shown that valid inter vivos donation of property was made. Donations inter vivos (between living parties) act by which donor divests (deprives) himself, at present and irrevocably, of things given, in favor of donee who accepts it (1468). Code requires such donations meet strict form requirements (1467). Donations of movables and immovable, whether corporeal or incorporeal, must be made by an act passed before a notary public and two witnesses (1536, 1538). Only exception to form requirement: The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality (1539). No authentic act of funds or bonds in instant case, so validity of donations depends on whether they are manual gifts under La. C.C. art. 1539, whether they were corporeal movables actually delivered. La. C.C. art. 461: Corporeals things that have a body, whether animate or inanimate, and can be felt or touched. Incorporeals no body, but comprehended by the understanding, such as rights of inheritance, servitudes, obligations and right of intellectual property. Corporeal movables are things that normally move or can be moved from one place to another (471). Incorporeal movables are rights, obligations and actions that apply to a movable thing such as bonds, annuities and interests or shares in entities possessing juridical personality (473). REGARDING FUNDS IN SAVINGS ACCOUNT Savings account and funds therein = incorporeal movable and not subject to manual gift; cash w/drawn from account = corporeal movable and subject to manual gift provided there was actually delivery Meyer contends: sufficient that she w/drew and possessed funds at Millers request Donor expressed her unqualified intent, on several occasion, that Meyer have the money; one final insistence before death which prompted Meyer to w/draw money Although Miller did not actually hand funds to Meyer, there was a valid inter vivos donation by manual gift of funds from savings account REGARDING BONDS Ct. concluded bonds are incorporeal movable and, by statute, not susceptible of manual gift Article 473 specifically provides that rights and obligations that apply to bonds are incorporeal movables Incorporeal movables not subject to manual gift and cannot be donated inter vivos except by act passed before notary and two witnesses Because no notarial act passed, bonds, even if delivered, not validly donated Thus, bonds remained property of deceased and were properly included in succession inventory
Innovative Hospitality Systems, LLC v. Abraham Innovative Hospitality Systems (obligor on fraudulent checks) brings action against businesses cashing checks and their insurers. Abes Grocery allegedly cashed 108 fraudulent checks. First Specialty Insurance provides a commercial general liability policy for Abes. First Specialty filed motion for summary judgment claiming its policy did not provide coverage for losses at issue because losses did not constitute bodily injury or property damage as defined in their policy. Policy defined property damage as 1. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that cause it; OR 2. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the occurrence that caused it. Policy also stated that for the purposes of this insurance, electronic data is not tangible property.
First Specialty argued that IHS was seeking to recover intangible things funds withdrawn from HISs bank accounta transactiondoes not involve physical items; policy provides no coverage b/c of its express definition of property damage limited to tangible things Trial court said that Abes paid out cash on fraudulent checks and cash is tangible so First Specialty is not entitled to sum mary judgment b/c it failed to prove policy did not provide coverage Tangible personal property in such policies is equivalent to corporeal property in civilian terms. South Central First Specialty argument: Innovative Hospitality seeking to recover incorporeals amounts w/drawn from IHs bank account IH does not have actual dollar bills in bank; had right to withdraw amount equal to its account balance Trial ct. IH seeking to recover physical dollars paid out by fraudulent checks; FS those dollars were not damaged or destroyed in any fashion as to bring the dollar bills w/n coverage of its insurance policy IH never had ownership of actual dollar bills paid out by Abes on the fraudulent checks Contends trial courts reasoning for finding coverage was incorrect IHS argument: injury occurred when fraudulent check and cash were exchanged Issue is specific language of policy: loss of use of tangible property that is not physically injured; damage to property not required; loss of use of tangible property is required Succession of Franklin, court held that an uncashed check is an incorporeal movable; check r epresented banks obligation to pay funds, but not funds themselves. Funds themselves are corporeal movables or tangible property Once Abes Grocery presented cash in exchange for the check, the check was converted into actual funds which were corporeal movables. This action resulted in a loss of use of funds to IH. It is ridiculous to argue that IHS has not lost actual cash as a result of cashing of fraudulent checks. Funds in bank account = actual funds deposited by IHS As a result of Abes cashing of checks, IH suffered a loss of use of its cash money, a corporeal movable, and therefore, tangible property. Court found the CGL insurance policy issued by First Specialty to Abes Grocery covered type of claim asserted in this case. Trial court did not err in denying motion for summary judgment Unit II (B) Ownership Of Component Parts Of Tracts Of Land Art. 462. Tracts of land Tracts of land, with their component parts, are immovable. (b) Lands, buildings and other constructions are designated in Article 464 of LA CC of 1870 as immovable by their nature. In this revision, lands, buildings and other constructions are simply immovables. (c) Lands may be defined as portions of the surface of the earth. The ownership of land carries, by accession, the ownership of all that is directly above or under it. Art. 463. Component parts of tracts of land Buildings, other constructions permanently attached to the ground, standing timber and unharvested crops or ungathered fruits of trees, are component parts of a tract of land when they belong to the owner of the ground. (b) Classification of building or other constructions as component parts of a tract of land does not determine the question of ownership of buildings and other constructions. This question is determined under the rules governing acquisition of ownership by juridical act, prescription or accession. (c) In the absence of foundations, a certain degree of integration with the ground is necessary to qualify as a construction. (d) Standing timber is a separate immovable when it belongs to a person other than the owner of the ground. Trees cut down, whether carried off or not, are movables.
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(e) Unharvested crops and ungathered fruits of trees are movable by anticipation when they belong to a person other than the owner of the ground; when they are burdened with security rights or privileges they are movables by anticipation insofar as the creditor is concerned. Crops harvested and fruits gathered are movables. Art. 464. Buildings and standing timber as separate immovable Buildings and standing timber are separate immovable when they belong to a person other than the owner. (b) Buildings separated in ownership from the land on which they stand are distinct immovable for all purposes. A unit in a condominium is a separate immovable. (d) Constructions permanently attached to the ground, other than buildings, are component parts of a tract of land when they belong to the owner of the ground. They are movables when they belong to another person. Only building and standing timber may be separate immovable. Art. 469. Transfer or encumbrance of immovable The transfer of encumbrance of an immovable includes its component parts. (c) Separate ownership of such things may be asserted toward third personas when it is evidenced by an instrument filed for registry in the conveyance records of the parish in which the immovable is located. (d) Constructions are things having a certain size, permanence and a degree of integration with the soil. (g) The transfer of a thing does not only include its component parts but also its accessories in the absence of contrary stipulation. The transfer of an immovable includes its accessories though classified as movables. See art. 508 for the definition of accessories of a movable which may be applied by analogy to define accessories of an immovable. Art. 474. Movables by anticipation Unharvested crops and ungathered fruits of trees are movables by anticipation when they belong to the person other than the landowner. When encumbered with security rights of third persons, they are movables by anticipation insofar as the creditor is concerned. The landowner may, by act translative of ownership or by pledge, mobilize by anticipation unharvested crops and ungathered fruits of trees that belong to him. (c) In order to be effective against third persons, the act of mobilization must be recorded. Art. 475. Things not immovable. All things, corporeal or incorporeal, that the law does not consider as immovables, are movables. Mobile homes are movables. They may become immovables under Articles 463, 465-467 or under the Motor Vehicle Law. Art. 490. Accession above and below the surface Unless otherwise provided by law, the ownership of a tract of land carries with it the ownership of everything that is directly above or under it. The owner may makes works on, above, or below that land as he pleases, and draw all the advantages that accrue from them, unless he is restrained by law or by rights of others. Art. 491. Buildings, other constructions, standing timber and crops Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungathered fruits of trees may belong to a person other than the owner of the ground. Nevertheless, the are presumed to belong to the owner of the ground, unless separate ownership is evidenced by an instrument filed for registry in the conveyance records of the parish in which the immovable is located. 1. Standing Timber And Crops Brown v. Hodge-Hunt Lumber Willets Wood v. Concordia Established that its possible to separate ownership of land from ownership of standing timber. Standing timber is a separat e immovable when it belongs to a person other than the owner of the grown. Art. 464 Standing timber is property subject to be acquired separately from the land on which it grows. Willets. When standing timber is sold it must me cut and removed within the period agreed upon by parties or fixed by the court in default of an agreement; otherwise, said timber reverts to the owner of the land. Willets.
Two separate estates may be created with title to land resting in one owner and title to timber resulting in another, but it was never intended and will not do to say that the respective titles are of equal rank and dignity in the sense that the owner of the timber can require that timber be permitted to remain on land in perpetuity without any right in owner of land to cause the timber to be removed. Willets. Landowners rights > timber owners rights. If landowner had to be submissive to the will and please of timber owner, it would effectively put land out of commerce. Willets. Yiannopoulas, Civil Law Property, Standing Timber and Crops 133. Classification: Component Part or Separate Immovable Act No. 188 of 1904 declared that standing timber shall remain an immovable, and be subject to all the laws relating to immovables, even when separated in ownership from the land on which it stands. 1978 revision of the Louisiana Civil Code declared standing timber is a component part of a tract of land when it belongs to the owner of the ground and a separate immovable when it belongs to another person. Fallen timber is movable property, whether it belongs to the owner of the ground or another person. The owner of segregated timber is owner of corporeal immovable property governed by the laws applicable to such property. Thus, separate ownership of standing timber may be asserted toward third persons only if it is evidenced by an instrument filed for registry in the appropriate public records; the owner of standing timber may convey his interest in accordance with the rule of form and substance governing immovable property; and he may protect his ownership by all sorts of personal and real actions. Standing timber may be segregated from the ground by an act translative of ownership, such as sale, donation or exchange. A landowner may sell the standing timber or sell the land and reserve the timber. 128. Classification: Component Parts or Movable by Anticipation Growing crops, =component parts of land belong to owner of ground; movables by anticipation belong to another; or when encumbered with security rights of third persons insofar as the creditor is concerned Separate ownership of standing crops may derive from a variety of contractual relationship; derive from real rights on the lands of another; from the possession of land in good faith; owner rights against owner of land, always; rights against third persons, only if interest is recorded; only in these way can they be protected in the case of transfer, mortgage or seizure of land 129. Transfer, Mortgage or Seizure of Land Gathered crops movables not included by implication in either transfer or mortgage Transfer of lands standing crops and ungathered fruits of trees part of the ground and follow it, unless they belong to third persons as movables by anticipation; ungathered crops and fruits do not belong to owner of the ground, a transfer of land does not include these crops and fruits Establishment of a real mortgage extends to standing crops and ungathered fruits, unless they belong to a person other than the mortgage debtor Seizure of lands by general creditors or by mortgage creditors of the landowner standing crops and ungathered fruits of trees are included in the seizure as part of the immovable only to the extent that they belong to the debtor 130. Transfer, Pledge and Seizure of Growing Crops Owner of growing crops, landowner of another person, may sell, pledge or otherwise dispose of his interest. Creditors to the owner of the growing crops may seize them separately from the land to which they are attached A pledge must be recorded in order to be effective against third persons LA Supreme Court sale of growing crops by landowner sale of immovable property; effective against 3rd person from date of recordation; this rule does not apply to sale of growing crops by persons other than landowner b/c their interest is in movable property 131. Lessees Crops R.S. 9:3204 In a lease of land for part of the crop, that part which the lessor is to receive is considered at all times the property of the lessor. This means the lessor, as owner, has direct and immediate authority over his portion of the crops with the need of any delivery or payment by the lessee. 132. Crops of Other Persons Persons who can own standing crops on the land of another: o Good faith possessors o Purchasers of standing crops o Persons having a contractual or real right If separate ownership derives from a juridical act made by the owner, act must be recorded. If separate ownership of growing crops arises from acts of possession, recordation is not required In all cases, the interests of these persons out to be classified as an interest in movable property by application of the doctrine of mobilization by anticipation
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2. Buildings And Other Constructions Landry v. Leblanc Topsoil is immovable as tracts of land with their component parts are immovables . La. C.C. art. 462. Comment (c) art. 462 provides Lands may be defined as portions of the surface of the earth. The ownership of land carries, by accession, the ownership of all that is directly above and under it. Louisiana Mineral Code Section: The provisions of this Code are applicable to.. rights to explore for or mine or remove from the land the soil itself. The rights to minerals is an incorporeal immovable. Whether Civil Code or Mineral Code articles are applied, result remains the same that the interest asserted to in this case is to an immovable. Plaintiff-owners topsoil did not become movable by its placement in trucks to be hauled away. As the property involved was immovable, any transfer of ownership thereto was required to be in writing (arts. 1839 and 1832). Any dealing with realty must be in writing unless the adverse party admits under oath that he made a contract affecting realty; no such admission under oath in instance case. The pre-existing lease, an oral lease did not effect an ownership transfer of the immovable topsoil. The rights to immovables (ownership) acquired under a lease cannot be established by parol evidence; defendants use of immovable isnt the concern . A contract to sell affecting title to immovable property is require to be in writing and any mandate authorizing Lucien Landry to dispose of such property must have been express, special and also in writing (art. 2993) Art. 2989. Mandate defined. A mandate is a contract by which a person, the principal, confers authority on another person, the mandatory, to transact one or more affairs for the principal. Art. 2993. Form. A mandate is not required to be in any particular form. Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form Formalities not followed; also Lucien Landry testified at trial that he did not authorize LeBlanc to remove the soil Trial judge erred in admitting parol evidence concerning Landrys alleged mandate Trial judged erred in finding plaintiff failed burden of proof Appellate court found the sum required to return the property to its original condition = $2,468; awarded plaintiff that amount in damages plus legal interest from the date of judicial demand; expert witness fees assessed - $200 to Thibodeaux; $100 to Messrs, Lewis and Begnaud; court costs, trial and appeal, taxed to defendant. P.H.A.C. Services v. Seaways International Two subcontractors (plaintiff) supplied labor and materials for the construction of an offshore drilling platform living quarters unit; were not paid; file suit against general contractor and the owner (defendants) The Private Works Act, R.S. 9:4801 et seq. confers a privilege to certain person who supply labor or materials for the erection, construction, repair or improvement of immovable property; parties agree the act applied if the living quarters unit is an immovable Court determined unit was a building: 1. Size large (3-story steel structure); Cost expensive ($400,000) 2. Intended use ability to be inhabited 3. Permanency had potential of permanence once attached Pennzoil maintains unit is not an immovable b/c it was intended to be moved offshore; the fact that the unit is capable of being moved by a powerful crane does not defeat classification of that thing as an immovable, for immovability is a legal concept and not an inherent quality of a thing. (475) Immovability by nature should not hinge upon such a subjective factor as the owners intentions A building is an immovable regardless of whether its foundation is integrated with the soil Unit = building = an immovable; Private Works Act applies Bridges v. National Financial Systems NFS argument: modular banking units = buildings = immovables State/Bridges argument: units = tangible personal property = corporeal movable (SCB); units were built to be moved. LA Sup Ct. has made several observations that an inherent requirement of what constitutes a building is that there be a structure of some permanence. Court in Bridges: modular banking units = movables; not permanent; not intended to be permanent; designed and intended to be used for a specific period then moved; intended use: temporary units moved from one place to another.
Bayou Fleet Partnership v. Dravo Basic Materials Pursuant to an oral lease, Dravo operated an aggregate yard in Hahnville, La on a tract of MS River batture property owned by Neal Clulee. Dravo est aggregate yard to store, stockpile and sell limestone. Est 3 stockpiles of limestone on Clulee property, each was placed on a foundation made from hardened limestone commonly called a working base; Sheriff of St. Charles Parish seized Clulee property and sold it at a sheriffs sale. Bayou Fleet acquired ownership and intended to continue to lease to Dravo but they could not reach a lease agreement so Dravo determines to vacate the premises; Over the weekend, Dravo removes the limestone from the property and excavates working bases Dravo filed declaratory judgment to be declared owner of limestone removed from property; presumption: Lessee has right to remove improvements made by him (however, not effective a/g 3P.) Art. 2695 Bayou Fleet files an action for damages; removed to federal court District court says Dravo had right to remove majority of limestone bases but liable for excavation of working bases Court needed to: (1) define whether theyre other constructions; and (2) determine owner of the working bases
(1) OTHER CONSTRUCTIONS Art. 463 provides that component parts of a tract of land include, among other things, other constructions that are permanently attached to the ground. Code does not define other constructions Court uses 3 criteria to determine other constructions: size, degree of integration or attachment to soil, and permanency Limestone bases: massive in size, attached firmly to ground, achieved necessary degree of permanency; other construction under 463 (2) OWNERSHIP Other constructions, such as the limestone working bases, may belong to a person other than the owner of the ground to which they are attached. However, they are presumed to belong to the owner of the ground unless separate ownership is evidenced properly by a recorded document. Absent such a public recordation, other construction is considered to be a component part of the land and is transferred with it. Art. 491; 491 comment (c). Separate ownership must be documented and filed in public records to be effective against 3P Dravo was original owner of working bases and could have protected its interest in the limestone working bases by recording its lease with Clulee; Bayou Fleet is a 3P so need proof of separate ownership in a recorded document. Oral lease was never recorded. Ownership of the working bases transferred to the purchaser at the sheriffs sale. Dravo had no right to remove the working bases and is liable for their reasonable replacement cost 3. Status Of Movable Things Integrated Into Or Attached To Buildings Or Other Constructions Art. 465. Things incorporated into an immovable Things incorporated into a tract of land, a building, or other construction, so as to become an integral part of it, such as building materials, are its component parts. (b) Movables incorporated into a tract of land or a building are parts of the immovable. (c) Incorporation is a question of fact to be determined by the trier of facts. It may be regarded as established when movables lose their identity or become and integral part of the immovable. Classification does not determine ownership. Art. 466. Component parts of a building or other construction. Things that are attached to a building and that, according to prevailing usages, serve to complete a building of the same general type, without regard to it specific use, are its component parts. Component parts of this kind may include doors, shutters, gutters, and cabinetry, as well as plumbing, heating, cooling, electrical and similar systems. Things that are attached to a construction other than a building and that serve its principal use are its component parts. Other things are component parts of a building or other construction if they are attached to such a degree that they cannot be removed without substantial damage to themselves or to the building or other construction. Comment (d) Prevailing usages are susceptible to changes over time Comment (e) Completion of a building under the first paragraph is not to be viewed as a discrete and identifiable event beyond which nothing further can be done. A house that has stood for 50 years without gutters is nonetheless made more complete by their installation. Further, in order to serve to complete a building, a thing need not be of such necessity or importance that, in its absence, a construction would not be considered to be a building. Comment (g)The test applicable to other constructions in the second paragraph focuses upon the principle use of the construction. If the thing in question furthers that principle use, it is a component part of the construction, even though it can be removed without substantial damage to itself or to the construction.
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Art. 467. Immovables by declaration The owner of an immovable may declare that machinery, appliances, and equipment owned by him and placed on the immovable, other than his private residence, for its service and improvement are deemed to be its component parts. The declaration shall be filed for registry in the conveyance records of the parish in which the immovable is located. (b) Subject to unity of ownership. Art. 468. Deimmobilization Component parts of an immovable so damaged or deteriorated that they can no longer serve the use of lands or buildings are deimmobilized. The owner may deimmobilize the component parts of an immovable by an act translative of ownership and delivery acquirers in good faith. In the absence of rights of third persons, the owner may deimmobilize things by detachment or removal. ONLY APPLIES TO COMPONENT PARTS UNDER 465, 466, 467 Art. 469. Transfer or encumbrance of an immovable Includes its component parts. Art. 472. Building materials Materials gathered for the erection of a new building or other construction, even though deriving from the demolition of an old one, are movables until their incorporation into the new building or after construction. Materials separated from a building or other construction for the purpose of repair, addition, or alteration to it, with the intention of putting them back, remain immovables. Art. 493.1 . Ownership of component parts Things incorporated in or attached to an immovable so as to become its component parts under Articles 465 and 466 belong to the owner of the immovable Art. 493.2. Loss of ownership by accession; claims of former owner One who has lost the ownership of a thing to the owner of an immovable may have a claim against him or against a third person in according with the following provisions. Art. 494. Constructions by landowner with materials of another When the owner of an immovable makes on it constructions, plantings, or works with materials of another, he may retain them, regardless of his good or bad faith, on reimbursing the owner of the materials their current value and repairing the injury that he may have caused to him. Art. 495. Things incorporated in, or attached to, an immovable with the consent of the owner of the immovable One who incorporates in, or attaches to, the immovable of another, with his consent, things that become component parts of the immovable under Articles 465 and 466, may, in the absence of other provisions of law or juridical acts, remove them subject to his obligation of restoring the property to its former condition. If he does not remove them after demand, the owner of the immovable may have them removed at the expense of the person who made them or elect to keep them and pay, at his option, the current value of the materials and of the workmanship or the enhanced value of the immovable. NOTE: Millenial Fever: Recent Changes in the Law of Component Parts of Immovables From 1999 to July 2008, the Louisiana property law community witnessed an unprecedented furor over the proper interpretation of Civil Code article 466 Ultimately, the societal expectations test was introduced to provide an objective standard where the thing attached was non-enumerated (in list of art. 467) and the parties intentions not specified. Revision (1978) of art. 466: things permanently attached to a building or other construction, such as plumbing, heating, cooling, electrical or other installations are its component parts. Things are considered permanently attached if the cannot be removed without substantial damage to themselves or to the immovable to which they are attached. Jurisprudence, before and after the Revision of 1978, recognized the possibility that the classification of a thing as a component part by virtue of attachment to a building might require examination of conceptions prevailing in society to determine its status. The most influential case in the post-revision jurisprudence was Equibank v. I.R.S.
Equibank v. I.R.S. The Johnsons owned a mansion on St. Charles Ave. They had 2 motgages on the mansion: one with Hibernia and one with Equibank. The Johnsons defaulted on their mortgage and failed to pay their income taxes. IRS wanted movables to repay tax debt. As part of seizure of movables, IRS removed and stored the contents of the house, including the chandeliers. In order to remove these electrical units, it was necessary to disconnect (in electrical workboxes inside ceiling and walls) the internal house wiring from the wiring of the chandeliers and other fixtures. IRS cannot jump ahead of pre-existing mortgages; Banks come first. Land and home sold to pay off mortgages. Equibank files injunctive action seeking the return of the chandeliers; said chandeliers were component parts of a building. IRS removed suit to federal court. District court denied injunction finding that the chandeliers were not component parts of the residence and were thus not covered by Equiba nks mortgage. Court had to determine if chandeliers were component parts of the residence by interpreting article 466. Which at the time stated component parts of buildings or other constructions were: things permanently attached to a building or other construction, such as plumbing, heating, cooling, electrical or other installations are its component parts. Things are considered permanently attached if the cannot be removed without substantial damage to themselves or to the immovable to which they are attached. Yiannopoulas was called as expert witness and said that chandeliers were not component parts b/c no substantial damage to chandelier or residence in removal; reasonable person purchasing home would not expect chandeliers as part of home (1) substantial damage test; (2) societal expectations test: what an ordinary man who purchases a house with ordinary prudence ought to know and ought to expect. Court: The views of the public on which items are ordinarily regarded as part of a building must be considered in defining those items which the legislature meant to include with the term electrical installation Many electrical units only require the simple and ordinary plugging and unplugging of an electrical appliance from a wall socket (lamps, toasters, blenders, tvs, etc.). Court was persuaded that these units, in the eyes of society, are movable; the are not electrical installations. They are not fixed in place. No special knowledge or expertise is needed to engage or disengage the electrical power source. They do not constitute component parts of the building of other construction in which they are found. Other electrical units do not access the electrical energy source through the plug arrangement but are permanently connected to the interior wiring of the building or other construction. The connection and disconnection from the power source poses a danger to the untutored or unskilled and requires knowledge of electricity and of electrical wiring. Court was persuaded that these units, from the societal viewpoint, are not movable; they are electrical installations which become a component part of the building or construction to which they are attached. An installed light fixture, such as the chandeliers, becomes a component part of the building. Court concluded that society would expect to flip a switch and have the lights go on, not to have no response and see only a hole in the ceiling with the interior house wiring sticking out. Court concluded the chandeliers are electrical installations. They are component parts of the Johnsons residence despite the facts that they could be removed without damage to the chandeliers or the residence. They are subject to Equibanks mortgage. American Bank & Trust Company v. Shel-Boze, Inc. AmBank is the holder of a number of promissory notes executed by A & M Builders, Inc. and secured by collateral mortgages affecting to residential lots in Riverbend. After each of the residences had been substantially completed, unable to meet its financial obligation to AmBank , A & M surrendered physical possession to AmBank. Representatives from Shel-Boze and Jenkins Tile went to the two residences and removed all of the items which had been sold and/or installed by them. AmBank files petition for foreclosure. Pursuant to court orders, the subject lots and residences were seized and sold at a sheriffs sale. AmBank purchased residences by sheriffs deed. AmBank purchased light fixtures and related electrical paraphernalia and carpeting for the residences to replace those removed by defendants. AmBank filed suit against Shel-Boze and Jenkins Tile and Hugh Shelton and William Jenkins, asserting that the light fixtures and related electrical paraphernalia and the carpet had become component parts of each of the respective residences upon installation, and each of these items thus became encumbered with the mortgages in favor of AmBank. Removing the items
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allegedly caused substantial damage to the immovables at that time possessed by AmBank and subject to their mortgages. AmBank claims defendants are liable for the costs of the items of the costs of reinstallation. Court concluded that evidence showed that the light fixtures and other electrical paraphernalia and the carpeting were component parts of the residences. Trial judge also erred in finding that the mortgages in favor of AmBank did not perfect a security interest in the component parts of the two residences. Reasoning Articles 462, 463, 469 and La. R.S. 9:2721; residences are immovables (462, 463) and encumbrance of an immovable such as a mortgage on a building, includes the encumbrance of its component parts (469). La. R.S. 9:2721: No sale, contact, counter letter, lien, mortgage, judgment, surface lease, oil, gas or mineral lease or other instrument of writing relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the immovable is situated; and neither secret claims or equities nor matters outside the public records shall be binding on or affect such third parties. According to La. R.S. 9:2721, the security interest in the component parts of the two residences, perfected by the mortgage agreements entered into between the owner and AmBank, became effective to third parties when filed for recordation in the office of the recorder of mortgages in EBR. Documents presented as evidence and show the date of recordation was a date before construction began. Trial judge erred in holding that the date AmBank filed for foreclosure was the operative date when AmBank acquired a security interest in the property, including the electrical fixtures and carpet. COMPONENT PARTS MOVABLES ARTICLES 472, 468 ARTICLES 466, 467 MOVABLES COMPONENT PARTS
4. Natural Accession Art. 482. Accession The ownership of a thing includes by accession the ownership of everything that it produces or is united with it, either naturally or artificially, in accordance with the following provisions. (b) The right of accession is a consequence of the right of ownership. Art. 483. Ownership of fruits by accession In the absence of rights of other persons, the owner of a thing acquires the ownership of its natural and civil fruits. Art. 551. Kinds of fruits Fruits are things that are produced by or derived from another thing without diminution of its substance. There are two kinds of fruits: natural fruits and civil fruits. Natural fruits are products of the earth or of animals. Civil fruits are revenues derived from a thing by operation of law or by reason of a juridical act, such as rentals, interest, and certain corporate distributions. Comment (b) Trees are born and reborn of the soil, but they are ordinarily considered to be capital assets rather than fruits on account of their slow growth and high value. However, trees in a tree farm on in a regularly exploited forest may be regarded as fruits, because they are produced according to the destination of the property and without diminution of its substance. Comment (c) Mineral substances not fruits. Art. 484. Young of animals The young of animals belong to the owner of the mother of them. Art. 485. Fruits produced by a third person; reimbursement When fruits that belong to the owner of a thing by accession are produced by the work of another person, or from seeds sown by him, the owner may retain them on reimbursing such person his expenses. Art. 486. Possessors right to fruits A possessor in good faith acquires the ownership of fruits he has gathered. If he is evicted by the owner, he is entitled to reimbursement of expenses for fruits he was unable to gather. A possessor in bad faith is bound to restore to the owner the fruits he has gathered, or their value, subject to his claim for reimbursement of expenses.
Art. 487. Possessor in good faith; definition For purposes of accession, a possessor is in good faith when he possesses by virtue of an act translative of ownership and does not know of any defects in his ownership. He ceases to be in good faith when these defects are made known to him or an action is instituted against him by the owner for the recovery of the thing. Comment (b) An act translative of ownership is an act sufficient in terms to transfer property, such as a sale, an exchange, or a donation. C.C. art. 503. A possessor is not in good faith for purposes of accession when he merely believes that his author was the true owner of the thing Comment (d) There are certain exceptions. For example, one who acquires a thing from a minor without compliance with the requisite formalities may be in good faith if he has serious reasons to believe that the minor will ratify the transaction upon reaching majority. Good faith is not excluded by an error of law or an error of fact. The possessor is always required to produce his title but he is not required to prove his good faith, b/c good faith is presumed. Comment (e) Art. 3481 of LA CC of 1870 declares that good faith is always presumed in matters of prescription, and he who alleges bad faith in the possessor, must prove it. According to La jurisprudence, the same presumption applies in matters of accession Comment (f) One who possesses a thing as a successor of another may or may not possess by virtue of an act translative of ownership. A universal successor occupies the same position of his ancestor. Thus, if the ancestor possessed by virtue of an act translative of ownership, so does the universal successor. A particular successor necessarily possesses by virtue of an act translative of ownership. Art. 488. Products; reimbursement of expenses Products derived from a thing as a result of diminution of its substance belong to the owner of that thing. When they are reclaimed by the owner, a possessor in good faith has the right to reimbursement of his expenses. A possessor in bad faith does not have this right. (b) Persons engaging in timber or mineral operations in good faith are bound to account to the owner of the land but they are entitled to reimbursement of their production costs. (e) Possessors persons who have physical control of an immovable with the intent to own it. Art. 489. Apportionment of fruits In the absence of other provisions, one who is entitled to the fruits of a thing from a certain time or up to a certain time acquires the ownership of natural fruits gathered during the existence of his right, and a part of the civil fruits proportionate to the duration of his right. Articles 449-506 (only articles not otherwise defined in outline) Art. 476. Rights in things One may have various rights in things: 1. Ownership; 2. Personal and predial servitudes; and 3. Such other real rights as the law allows. Art. 478: Resolutory condition; real right in favor of other person The right of ownership may be subject to a resolutory condition, and it may be burdened with a real right in favor of another person as allowed by law. The ownership of a thing burdened with a usufruct is designated as naked ownership. Art. 479: Necessity of a person: The right of ownership may exist only in favor of a natural person or a juridical person. Art. 480: Co-ownership: Two or more persons may own the same thing in indivison, each having an undivided share. Art. 481: Ownership and possession distinguished: The ownership and the possession of a thing are distinct. Ownership exists independently of any exercise of it and may not be lost by nonuse. Ownership is lost when acquisitive prescription accrues in favor of an adverse possessor. Art 496: Constructions by possessor in good faith: When constructions, plantings, or works are made by a possessor in good faith, the owner of the immovable may not demand their demolition and removal. He is bound to keep them and at his option pay to the possessor either the cost of the materials and of the workmanship, or their current value, or the enhanced value of the immovable.
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Art. 497: Constructions by bad faith possessors: When constructions, plantings, or works are made by a bad faith possessor, the owner of the immovable may keep them or he may demand their demolition and removal at the expense of the possessor, and, in addition, damages for the injury that he may have sustained. If he does not demand demolition and removal, he is bound to pay at his option either the current value of the materials and of the workmanship of the separable improvements that he has kept or the enhanced value of the immovable. Art. 499: Alluvion and dereliction: Accretion formed successively and imperceptibly on the bank of a river or stream, whether navigable or not, is called alluvion. The alluvion belongs to the owner of the bank, who is bound to leave public that portion of the bank, which is required for the public use. The same rule applies to dereliction formed by water receding imperceptibly from a bank of a river or stream. The owner of the land situated at the edge of the bank left dry owns the dereliction. Art. 500: Shore of the sea or of a lake: There is no right to alluvion or dereliction on the shore of the sea or of lakes. Art. 501: Division of alluvion: Alluvion formed in front of the property of several owners is divided equitably, taking into account the extent of the front of each property prior to the formation of the alluvion in issue. Each owner is entitled to a fair proportion of the area of alluvion and a fair proportion of the new frontage on the river, depending on the relative values of the frontage and acreage. Art. 502: Sudden action of waters: If a sudden action of the waters of a river or stream carries away an identifiable piece of ground and unites it with other lands on the same or opposite bank, the ownership of the piece of ground so carried away is not lost. The owner may claim it within a year, or even later if the owner of the bank with which it is united has not taken possession. Art. 503: Island formed by river opening a new channel: When a river or stream, whether navigable or not, opens a new channel and surrounds riparian land making it an island, the ownership of that land is not affected. Art. 504: Ownership of abandoned bed when river changes course: When a navigable river or stream abandons its bed and opens a new one, the owners of the land on which the new bed is located shall take by way of indemnification the abandoned bed, each in proportion to the quantity of land that he lost. If the river returns to the old bed, each shall take his former land. Art. 505: Islands and sandbars in navigable rivers: Islands, and sandbars that are not attached to a bank, formed in the beds of navigable rivers or streams, belong to the state. Art. 506: Ownership of beds of non-navigable rivers or streams: In the absence of title or prescription, the beds of non-navigable rivers or streams belong to the riparian owners along a line drawn in the middle of the bed. La Mineral Code Art. 5: Ownership of solid minerals: Ownership of land includes all minerals occurring naturally in a solid state. Solid minerals are insusceptible of ownership apart from the land until reduced to possession. La Mineral Code Art. 6: Right to search for fugitive minerals; elements of ownership of land: Ownership of land does not include ownership of oil, gas, and other minerals occurring naturally in liquid or gaseous form, or of any elements or compounds in solution, emulsion, or association with such minerals. The landowner has the exclusive right to explore and develop his property for the production of such minerals and to reduce them to possession and ownership. La Mineral Code Art. 8: Landowners right of enjoyment for mineral extraction: A landowner may use and enjoy his property in the most unlimited manner for the purpose of discovering and producing minerals, provided it is not prohibited by law. He may reduce to possession and ownership all of the minerals occurring naturally in a liquid or gaseous state that can be obtained by operations on or beneath his land even though his operations may cause their migration from beneath the land of another. Notes CB 33-34
Walker v. East Carrol Parish In a dispute over the use of a lake, the Sixth Judicial District Court for the Parish of East Carroll, Louisiana, entered a judgment in favor plaintiff private company and against defendant State of Louisiana. The State filed an appeal. OVERVIEW: A private company filed suit seeking an injunction against the East Carroll Parish Police Jury to stop all public use of a lake owned by the company and a drainage ditch which ran into the lake, both in the vicinity of the Mississippi River. The State answered the lawsuit claiming the ownership and/or servitude to the bed, bottoms, and waters of the lake and the drainage ditch. The trial court properly held that the lake and drainage ditch, were privately owned by the company, because the lake and the ditch were not navigable (non-navigable in1812). The land where Gassoway Lake now sits was either woods or farmland in 1812, west of the Mississippi River. When the Mississippi River shifted westward before approximately 1880, it flowed over this dry land. When the Mississippi River shifted eastward, private riparian landowners acquired the land, which includes Gassoway Lake and the drainage ditch, and have owned it ever since, with Walker Lands having purchased the land in 1974. Since 1960, all owners of the land and Gassoway Lake have prohibited access to it. The State had never claimed this land in the past and could not do so now. However, the trial court erred in issuing a permanent injunction, because there was no direct evidence in the record of any direct violation by state officials or departments of the State attempting to invade the company's private property. Holdings: The Court of Appeal, Peatross,J., held that: (1) evidence was sufficient that lake and drainage ditch were formed through accretion/alluvion, rather than through chute or neck cut-off; (2) evidence was sufficient that lake and drainage ditch were not navigable and, thus, were privately owned; (3) actions for trespass, rather than permanent injunction against state and public-at-large, was proper vehicle for landowner to prevent its private property, lake and drainage ditch, from being exploited for recreational purposes; and (4) trial court acted within its discretion in unilaterally converting states motion for suspensive appeal int o devolutive appeal. Affirmed in part, reversed in part, and remanded. OUTCOME: The judgment of the trial court was affirmed as to the ruling that the lake and its surrounding lands, were owned by the private company. The judgment of the trial court was reversed as to the permanent injunction. The matter was remanded to the trial court for the calculation of trial court costs to be assessed equally against the parties. NOTE: - Recreational use of a body of water alone is not enough to say that the body of water is being used for a commercial purpose, as required for navigability. Fishing and hunting on flooded lands do not meet the definition of using the bank of a river at its high water mark for a navigational purpose, as required for public use servitude to exist. LSA-C.C. art. 665 READ NOTES IN CB PGS. 33-34; ALLUVION AND DERELICTION; AVUSION; OPENING OF NEW CHANNEL 5. Artificial Accession A. Ownership of Buildings, Mobile Homes & Other Constructions Made by Consensual Improvers Art. 463. Component parts of tracts of land Art. 464. Buildings and standing timber as separate immovable Art. 490. Accession above and below the surface Unless otherwise provided by law, the ownership of a tract of land carries with it the ownership of everything that is directly above or under it. The owner may makes works on, above, or below that land as he pleases, and draw all the advantages that accrue from them, unless he is restrained by law or by rights of others. Art. 491. Buildings, other constructions, standing timber and crops Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungathered fruits of trees may belong to a person other than the owner of the ground. Nevertheless, the are presumed to belong to the owner of the ground, unless separate ownership is evidenced by an instrument filed for registry in the conveyance records of the parish in which the immovable is located. Art. 492. Separate ownership of part of a building Separate ownership of part of a building, such as a floor, an apartment, or a room, may be established only by a juridical act of the owner of the entire building when and in the manner expressly authorized by law.
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Art. 493. Ownership of improvements Buildings, other constructions permanently attached to the ground, and plantings made on the land of another with his consent belong to him who made them. They belong to the owner of the ground when they are made without his consent. When the owner of buildings, other constructions permanently attached to the ground, or planting no longer has the right to keep them on the land of another, he may remove them subject to this obligation to restore the property to its former condition. If he does not remove them within 90 days after written demand, the owner of the land may, after the 90 th day from the date of mailing the written demand, appropriate ownership of the improvements by providing an additional written notice by certified mail, and upon receipt of the certified mail by the owner of the improvements, the owner of the land obtains ownership of the improvements. Until such time as the owner of the land appropriates the improvements, the improvements shall remain the property of he who made them and shall be solely responsible for any harm caused by the improvements Comment (b) Doesnt deal with GFP or BFP Art. 493.1 . Ownership of component parts Art. 493.2. Loss of ownership by accession; claims of former owner Art. 494. Constructions by landowner with materials of another Art. 495. Things incorporated in, or attached to, an immovable with the consent of the owner of the immovable Art. 498. Claims against third persons One who has lost the ownership of a thing to the owner of an immovable may assert against third persons his rights under Articles 493, 493.1, 494, 495, 496 or 497 when they are evidenced by an instrument filed for registry in the appropriate conveyance or mortgage records of the parish in which the immovable is located. Art. 1832. Written form required by law When the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost or stolen. Art. 1839. Transfer of immovable property Art. 1848. Testimonial or other evidence not admitted to disprove a writing Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement. (b) Testimonial proof may be used against a writing to show error, fraud or duress. It may also be sued to show that a contract had an unlawful cause. Art. 2695. Attachments, additions, or other improvements to leased thing In the absence of contrary agreement, upon termination of the lease, the rights and obligations of the parties with regard to attachments, additions, or other improvements made to the leased thing by the lessee are as follows: (1) The lessee may remove all improvements that he made to the leased thing, provided that he restore the thing to its former condition. (2) If the lessee does not remove improvements, the lessor may: (a) Appropriate ownership of the improvements by reimbursing the lessee for their costs or for the enhanced value of the leased thing whichever is less; or (b) Demand that the lessee remove the improvements within a reasonable time and restore the leased thing to its former condition. If the lessee fails to do so, the lessor may remove the improvements and restore the leased thing to its former condition at the expense of the lessee or appropriate ownership of the improvements without any obligation of reimbursements to the lessee. Appropriation of the improvement by the lessor may only be accomplished by providing additional notice by certified mail to the lessee after expiration of the time given the lessee to remove the improvements. (c) Until such time as the lessor appropriates the improvement, the improvements shall remain the property of the lessee and the lessee shall be solely responsible for any harm caused by the improvements. Revision Comments2004 (a) Other improvements may include items mention in C.C. arts. 463, 465, 466 (Rev. 1978), 491 (Rev. 1979), 493 (Rev. 1984), 495, 496, and 510 (Rev. 1979), such as buildings, other constructions, plantings, or other works. Consistently with other provisions of the Civil code as well as prevailing judicial usage, Civil Code Article (Rev. 2004) uses the term improvement in its technical meaning which differs from popular usage to the extent it encompasses items that may not actually improve the thing or enhance its value.
(b) Civil Code Article 2695 (Rev. 2004) provides a suppletive rule of law that applies only in the absence of a contrary agreement regarding the fate of the improvements at the end of the lease. The agreement may be expressed or implied. See, e.g., C.C. Art. 2054 (Rev. 1984) which provides that when the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind (c) Applies only if the relationship between the two parties qualifies as a lease. For other relationships, such as those involving precarious possessors who are not lessees, C.C. arts. 493 et eq. remain applicable. (d) The phrasing and arrangement of Civil Code Article 2695 (Rev. 2004) make clear that the first option in determining the fate of the improvements upon termination of the lease belongs to the lessee. In the absence of a contrary agreement: (a) the lessee has the right to remove the improvements, even if he had made them without the lessors consent; and (b) the lessor may not prevent their removal, even if they were made with his consent. (e) If the lessee removes the improvements but does not restore the thing to its former condition, the lessee is liable for damages under Civil Code Article 2687 (Rev. 2004). La. R.S. 9:1106 (CB 107) Marcellous v. David Art. 462; 491 D (Coralie David) owned house and promised to leave it to her niece if she purchased lot; moved house to BB; David and niece have disagreement and she moves house; Plaintiffs claim to own house b/c they own land. Buildings are presumed to belong to the owner of the soil, but a person claiming the ownership of a building on the land of another can overcome that presumption by proof of the contrary. D proved she owned house b4 it was moved; ownership remained with D and she had right to move it Plaintiffs claim ownership was transferred by an oral D -IV; D-IV require authentic act (1536) and only thing in writing was the will executed by David leaving all her property to her niece, Marcellous, but David was still alive the will was ineffective. NOTE: litigation involves parties to the transaction and not 3P relying on public records Graffignino v. Lifestyles, Inc. Leeand original owner of land, allowed Lifestyles to place odome on property in return for cutting grass ODome used pilings; hooked up to electric and water connections; living structure Leeand and Lifestyles agreed that LS could retain ownership of odome and right to remove it at end of lease Leeand sells land to Graffignino/Perez and notifies them of LS ownership (oral notice) G/P file injunction to prevent LS from removing or disassembling odome LS sue for damages a/g G/P because structure was destroyed and add Leeand as 3P All parties agreed that Lifestyles owned the ODome and leased the land from Leeand but the lease was n ot recorded and the plaintiffs were not parties to it, so the plaintiffs acquired the property and buildings and improvements thereon free of obligations of the unrecorded lease regardless of the plaintiffs actual knowledge of the situation. (Art. 1839 a transfer of immovable property must be made by authentic act or by act under private signature; effective against third parties only from time filed in registry) Therefore, ownership of the ODome passed to plaintiffs in the act of the sale if it was a building or improvement an immovable. Odome = immovable (463) While the ODome is designed to be portable, it is also designed to withstand storms and high winds. Therefore, when it is in use, it is designed to have a degree of permanency. The structure could be and was designed to be disassembled and transported easily, but it would lose its identity as a result (Bailey v. Kruithoff court said a fence embedded in group had no identity as a fence when moved) ODome intended to be used as a dwelling and when used as such, it is integrated with the soil and stationary. It is a movable only when disassembled and not in use. Trial Court says Leeand unjustly enriched by selling bldg. that wasnt its own Apellate Court reversed saying LS knew about pending sale and was negligent in its failure to take protect its structure such as recording lease, removing structure, or working out an agreement with plaintiffs. HYPO: If LS had put a mobile home on property, would result be the same? Must declare intent and file intent in registry; La Manufactured Home Act, La. R.S. 9:1149.1-1149.7
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STATUS OF IMPROVER Consensual: 493 (large scale) 495 (small scale)
Non Consensual:
496 (GFP) 497 (BFP)
Lessees:
2695
Guzzetta v. Texas Pipeline Co. TPLC granted servitude for construction and use of pipeline; TPLC discontinued use of it, plaintiffs demand removal Plaintiffs allege defendants abandoned servitude, therefore terminating servitude (resolutory condition) Servitude agreement consensual/large scale (493) (At time of case) Under 493, if consent distinguishes, improver (TPLC) had right to remove or owners could appropriate, but owners dont want pipeline and TPLC doesnt want to remove it Plaintiffs argue 495, but its inapplicablepipeline is a separate movable Court said plaintiffs had no right to removal or costs of removal; plaintiffs just had to deal with it If happened today, owner (TPLC) would remain liable for any harm cause by immovable (pipeline); still no COA for removal at owners expense 495 not applicable; 493 applicable but not for the remedy which plaintiffs were seeking; legislature stepped in and partially resolved the issue 5. Artificial Accession B. Buildings and Other Constructions Created by Non-Consensual Possessors Art. 483: Art. 484: Art. 485: Art. 486: Art. 487: Ownership of fruits by accession Young of animals Fruits produced by a third person; reimbursement Possessors right to fruits Possessor in good faith; definition
Art 496: Constructions by possessor in good faith Art. 497: Constructions by bad faith possessors Art. 498: Claims against third persons Art. 527: Necessary expenses The evicted possessor, whether in good or in bad faith, is entitled to recover from the owner compensation for necessary expenses incurred for the preservation of the thing and for the discharge of private or public burdens. He is not entitled to recover expenses for ordinary maintenance or repairs. Examples of necessary expenses: property taxes and assessments, indispensable repairs and maintenance costs, and insurance costs. Art. 528: Useful expenses An evicted possessor in good faith is entitled to recover from the owner his useful expenses to the extent that they have enhanced the value of the thing. Art. 529: Right of retention The possessor, whether in good or in bad faith, may retain possession of the thing until he is reimbursed for expenses and improvements, which he is entitled to claim. Brit Builders, Inc. v. Brister Brister purchased lot; cleared property; purchased b/c of shape and large oak tree Developer employee conducts a faulty title search and sells to Brit Builders Brit was told title was clear so he removed the large oak tree, poured a concrete slab and began framing walls Brit learns of Bristers ownership, immediately contacts her; all work on lot is stopped; begin negotiations to mitigate damages Brit sues Brister uner art. 496 for the cost of improvements he made to property
496 and Good Faith Trial court determined that Brit was a GFP and that 496 governed the outcome concerning the slab (Brit failed to present adequate proof of amounts so court refused to award him damages under 496) Appellate court cites LA Sup Ct in its reasoning: good faith is presumed and when an erroneous ti tle search is made, the possessor who relied on that search should not be precluded from the same status given a GFP who conducts no search. See Phillips v. Parker Brit placed reliance on faulty title search and acted upon advice of his attorney; appellate court agreed with trial court in finding Brit was a GFP Article 496 - Value of the Property Inquiry does not end in finding Britt a good faith possessor Article 496 speaks of enhanced value to property and Comment (c) refers to improvements made to the property Article 496 does not speak of partial construction that diminish value The record reveals that the only person who could benefit from the slab was Britt; testimony revealed that the slab diminished the value of the lot The intention of Article 496 is to be applied to owners unjustly enriched by efforts of a good faith possessor, not to owners burdened with partial constructions and unwanted works on their property diminishing its value La. C.C. art. 2315 Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it Tort of Trespass The tort of trespass is a means to correct damage caused when an owner is unjustly deprived of the use and enjoyment of his immovable The tort of trespass is defined as the unlawful physical invasion of the property or possession of another Damages are recoverable even if tort-feasor acts in good faith Damages are recoverable for unconsented activities performed on the property of another, based on physical property damage, invasion of privacy, inconvenience, and mental and physical suffering INSTANT CASE the continued presence of the slab deprived Brister of the use and enjoyment of her property and diminished its value; trial court erred in denying Ms. Bristers claims for continuing trespass caused by the slab remaining on her lot; trial court erred in determining art. 496 precluded full payment of damages resulting from a tort of trespass. 496 get same remedy if Brit Builders had been a BFP (497) because improvement actually diminished value Court moves from treating it as an accession case to treating it as a case of trespass under art. 2315 Sanders v. Jackson Voiers v. Atkins Bros.
Sanders illustrates principles under 496 (GFP) Boundary action lower court rejected a prescription claim and ordered a survey which revealed parties did not have boundary line correct; thought it was an old fence but it was actually 50 feet further (not visible to naked eye) Ps said Ds were not in GF because they had been warned the boundary was incorrect Court says Ds were in GF: had acts translative of ownership, neither had clear knowledge of defects the visual situation suggested the old fence was the boundary line P gets to keep improvements if enhanced value and pay labor and materials or enhanced valueGFP: owner may either reimburse value of materials and price of workmanship OR reimburse sum equal to enhanced value of soil; only BFP may be assessed with damages Court says neither enhanced nor diminished value Ps dont have to reimburse Ds because no record of cost of materials and labor was done by a friend with no expense to Ds Voiers illustrates priciples in 497 (BFP) BFP not entitled to reimbursement for inseparable improvements; entitled to separable improvements ONLY [527-529]
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UNIT III: OCCUPANCY Art. 3412. Occupancy Occupancy is the taking of possession of a corporeal movable that does not belong to anyone. The occupant acquires ownership the moment he takes possession. Comments (b) & (d) Art. 3413. Wild animals, birds, fish, and shellfish Wild animals, birds, fish and shellfish in a state of natural liberty either belong to the state in its capacity as a public person or are things without an owner. The taking of possession of such things is governed by particular laws and regulations. The owner of a tract of land may forbid entry to anyone for purposes of hunting or fishing, and the like. Nevertheless, despite a prohibition of entry, captured wildlife belong to the captor. Comment (c) Art. 3414. Loss of ownership of wildlife If wild animals, birds, fish or shellfish recover their natural liberty, the captor loses his ownership unless he takes immediate measurers for their pursuit and recapture. Art. 3415. Wildlife in enclosure Wild animals or birds within enclosures, and fish or shellfish in an aquarium or other private waters, are privately owned. Pigeons, bees, fish, and shellfish that migrate into the pigeon house, hive or pond of another belong to him unless the migration has been caused by inducement or artifice. Art. 3416. Tamed wild animals Tamed wild animals and birds are privately owned as long as they have the habit of returning to their owner. They are considered to have lost the habit when they fail to return within a reasonable time. In such a case, they are considered to have recovered their natural liberty unless their owner takes immediate measure for their pursuit and recapture. Art. 3417. Domestic animals Domestic animals that are privately owned are not subject to occupancy. Art. 3418. Abandoned things One who takes possession of an abandoned thing with the intent to own it acquires ownership by occupancy. A thing is abandoned when its owner relinquishes possession with the intent to give up ownership. Art. 3419. Lost things One who finds a corporeal movable that has been lost is bound to make a diligent effort to locate its owner or possessor and to return the thing to him. If a diligent effort is made and the owner is not found within three years, the finder acquires ownership. Art. 3420. Treasure One who finds a treasure in a thing that belongs to him or to no one acquires ownership of the treasure. If the treasure is found in a thing belonging to another, half of the treasure belongs to the finder and half belongs to the owner of the thing in which it was found. A treasure is a movable hidden in another thing, movable or immovable, for such a long time that its owner cannot be determined. Leger v. Louisiana Dept. of Wildlife and Fisheries Red River floods, forcing deer to migrate to Legers land; deer began eating his sweet potato crop; calls & reports it to DWF; a DWF employee, Britt, comes to observe situation & tells Leger he will be prosecuted if he kills the deer. Plaintiff argues: Art. 2321 states an owner of an animal is responsible for its damages and under La.R.S. 56:102 the state owns wild birds & wild quadrupeds; therefore, the state is liable for the damages the deer caused to his crop Defendant argues: State owns WB & WQ in its sovereign capacity for the benefit of all people, not for private int. State ownership is to regulate conservation WB & WQ not owned by anyone in a proprietary capacity H1: State owns in sovereign capacity, not liable under 2321
Plaintiff then argues that under 2315, DWF employee was negligent when he refused to permit P to shoot deer damaging his crop Employee had no authority to permit P to shoot deer H2: Britt not negligent under 2315 because he was doing his job Harrison v. Petroleum Surveys, Inc. PS was riding around in marsh buggies to areas to set explosions (explosions underground in search for oil and gas); Harrison had not given them permission to do so; they crushed a 2 acre tract of land and 3-cornered grass which was fed on by muskrats Lower court: PS not liable for damages because Harrison doesnt own muskrats; they dont belong to anyone until theyre captured (3413) After court acknowledges state ownership, appellate court looks for another remedy Harrison can recover for trespass (similar to Buras v. Salinovich); only compensatory damages are awarded in unintentional trespass such as this United States v. Peter Emily Baron was hiding $22,000 in gold certificates in her mattress when she died; her heirs got possession of all of her property at her death; they sell her mattress for $2.50 to Mr. and Mrs. Cleland; Cleland s send mattress to Lemmon Mattress Works where it is taken apart and airblasted. Airblast reveals gold certificates, which were found by John Lemmon. Lemmon refused to make claim for the certificates because they didnt belong to him so he didnt want them. Claimants: (1) Baron heirs, (2) Clelands, and (3) USclaims the certificates, bringing this action, but agrees to pay the rightful owner their value Clelands first contend ownership of certificates was transferred to them when they purchased the mattress; claim was clearly w/o merit so they assert a second contention: certificates were a treasure found in their property and belonged to them under 3420 Barons heirs assert the certificates were lost chattels belonging to their aunt and as heirs, they own them under 3419 Under 3420, finder of treasure did not own it, only became owner if no one could prove the treasure was their property 3419 finder of a lost thing, ownership unknown, remains master of it until the proper owner appears and proves his right Preponderance of evidence shows that in all probability it was Baron who inserted the certificates into the mattress
Holding: Clear that certificates belonged to Baron and can be rightfully claimed by her heirs under either article; heirs entitled to their currency equivalent UNIT IV: POSSESSION AND ACQUISITIVE PRESCRIPTION (A) The Importance of Possession Art. 481. Ownership and possession distinguished Art. 3421: Possession: Possession is the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name. The exercise of a real right, such as a servitude, with the intent to have it as ones own is quasi-possession. The rules governing possession apply by analogy to the quasi-possession of incorporeals. Art. 3422: Nature of possession; right to possess: Possession is a matter of fact; nonetheless, one who had possessed a thing for over a year acquires the right to possess it. Art. 3423: Rights of possessors: A possessor is considered provisionally as owner of the thing until the right of the true owner is established. Art. 3424: Acquisition of possession: To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. Art. 3425: Corporeal Possession: Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing.
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Art. 3426: Constructive possession: One who possesses a part of an immovable by virtue of a title is deemed to have constructive possession within the limits of his title. In the absence of title, one has possession only of the area he actually possesses. **LOOK AT COMMENTS** Art. 3427: Presumption of intent to own the thing: One is presumed to intend to possess as owner unless he began to possess in the name of and for another. Art. 3428: Acquisition of possession through another: One may acquire the possession of a thing through another who takes it for him and in his name. The person taking possession must intend to do so for another. Art. 3429: Exercise of possession by another: Possession may be exercised by the possessor or by another who holds the thing for him and in his name. Thus, a lessor possesses through his lessee. Art. 3430: Juridical persons: A juridical person acquires possession through its representatives. Art. 3431: Retention of possession; civil possession: Once acquired, possession is retained by the intent to possess as owner even if the possessor ceases to possess corporeally. This is civil possession. Art. 3432: Presumption of retention of possession: The intent to retain possession is presumed unless there is clear proof of a contrary intention. Art. 3433: Loss of possession: Possession is lost when the possessor manifests his intention to abandon it or when he is evicted by another force or usurpation. Art. 3434: Loss of the right to possess: The right to possess is lost upon abandonment of possession. In case of eviction, the right to possess is lost if the possessor does not recover possession within a year of the eviction. When the right to possess is lost, possession is interrupted. Art. 3444: Possessory Action: Possession of immovable is protected by the possessory action, as provided in Arts. 3655 through 3671 of La. C. Civ. P. Possession of movables is protected by the rules of the Code of Civil Procedure that govern civil actions. Art. 3445: Kinds of prescription: There are three kinds of prescription: acquisitive prescription, liberative prescription, and prescription of nonuse. Art 3446: Acquisitive prescription: Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time. Art. 3476: Attributes of possession: The possessor must have corporeal possession, or civil possession preceded by corporeal possession, to acquire a thing by prescription. The possession must be continuous, uninterrupted, peaceable, public, and unequivocal. Art. 3486: Immovables; prescription of thirty years: Ownership and other real rights in immovable may be acquired by the prescription of thirty years without the need of just title or possession in good faith. Art. 3487: Restriction as to extent of possession: For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed. Art. 3488: Applicability of rules governing prescription of ten years: The rules governing acquisitive prescription of ten years apply to the prescription of thirty years to the extent that their application is compatible with the prescription of thirty years.
Art. 3489: Movables; acquisitive prescription: Ownership and other real rights in movables may be acquired either by the prescription of three years or by the prescription of ten years. Art. 3490: Prescription of three years: One who has possessed a movable as owner, in good faith, under an act sufficient to transfer ownership, and without interruption for three years, acquires ownership by prescription. Art. 3491: Prescription of ten years: One who has possessed a movable as owner for ten years acquires ownership by prescription. Neither title nor good faith is required for this prescription. SKIM: (3462-3472); READ: Excerpts, CB 128-129 and CB 131-134 Peloquin v. Calcasieu Parish Police Jury Family found a kitten and kept it because they could not find the owner; had it for 7 years. The neighbor caught a cat, which the family alleged was theirs, took it to the parish animal control center, which destroyed the animal. P family sues D for damages for conversion of their pet catwant value of cat and damages for mental anguish, inconvenience, humiliation, etc. Ds file exceptions for NROA and NCOA on grounds that Ps had no ownership interests in cat so had no legal grounds to sue for metnal anguish damages resulting from alleged conversion. Trial court maintains exceptions and says Ps can only get worth of cat which is less than the cost of a jury trial so it dismissed the case. Ps appeal dismissal. Appellate court says ownership vs possession of cat was a Q for the jury. The court held that a jury had the right to determine whether: (1) pursuant to art. 3420 the cat was lost; (2) the family obtained occupancy of the cat under art. 3412; (3) the family obtained possession of an abandoned or wild thing under arts. 3421 and 3415, or by prescription under arts.; 3454, 3457; and (4) the neighbor and the parish were liable for the family's mental anguish under art. 2315, if they engaged in wrongful conversion. However, the court also held that possessors have same rights as owners of a movable to sue for actual damages AND damages for mental anguish, etc. (B) Corporeal, Civil And Constructive Possession Art. 3425: Corporeal possession Art. 3426: Constructive possession Art. 3431: Retention of possession; civil possession Ellis v. Prevost Ellis bought a tract of land. Prevost possessed part of the land she had fenced in nd and others were farming it. Ellis had not been using the land but brings a possessory action. Possession acquired by Elliss vendor, which was possession shown to have existed really and actually for more than one year, benefited Ellis making his civil possession sufficient to entitle him to bring and maintain the action. Ellis, under the evidence, would have a right to recover the whole tract, unless he was shown to have suffered a year to elapse after the disturbance, without bringing his possessory action, and unless defendants succeeded in establishing an adverse possession to it or to any part thereof during the period prescribe by law. M. Prevost interrupted Elliss possession for over a year; this interruption was w/n enclosures some kind of boundary and was corporeal possession; this fenced in portion was the only portion defendants could show adverse possession; rest of the asserted possession was too uncertain and Ellis should have recovered rest of land Natural possession = Corporeal possession Possession in right = Civil possession CIVIL POSSESSION MUST BE PRECEDED BY CORPOREAL POSSESSION
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RULES The mere civil or legal possession, not preceded by a real actual possession on the part of plaintiff or his authors, is insufficient to support the possessory action; but civil possession at the time of the disturbance is sufficient, when preceded by an actual possession by plaintiff or his vendors for one year The intention to possess preserves a civil possession continued after the natural is abandoned, unless usurped by another during the time required by law, or there be no actual possession for 10 years. Against any disturbance in the meantime, the civil possession will support a possessory action. Where plaintiff's vendor acquires possession which continues more than a year, it inures to plaintiff's benefit, and he, not having failed to exercise natural possession for 10 years, preserves it by a civil possession which entitles him to a possessory action. To support the prescription of 10 years, the possessor must hold in fact and in right as owner; but to complete a possession begun, civil possession suffices if preceded by the corporeal detention of the thing . Where land is claimed by possession alone, without title, the claimant must show an exclusive adverse possession by enclosure (C) The Possessory Action 30-year Acquisitive Prescription Art. 3486. Immovables; prescription of thirty years Art. 3487. Restriction as to extent of possession Art. 3488. Applicability of rules governing prescription of ten years Acquisitive prescription cases are often battles of evidence LOUISIANA CODE OF CIVIL PROCEDURE PROTECTION OF POSSESSION: THE POSSESSORY ACTION La. C. Civ. P. Art. 3655. Possessory action The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted. La. C. Civ. P. Art. 3656. Same; parties; venue A plaintiff in a possessory action shall be one who possesses for himself. A person entitled to the use or usufruct of immovable property, and one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor and not for himself. The possessory action shall be brought against the person who caused the disturbance and in the venue provided by Article 80(1), even when the plaintiff prays for a judgment for the fruits and revenues of the property or for damages. La. C. Civ. P. Art. 3657. Same; cumulation with petitory action prohibited; conversion into r separate peitiory action by defendant The plaintiff may not cumulate the petitory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the possessory action is abated. When, except as provided in Article 3661(1)-(3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action. If, before executor judgment in a possessory action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possessory action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein. La. C. Civ. P. Art. 3658. Same; requisites To maintain the possessory action the possessor must allege and prove that: (1) He had possession of the immovable property or real right therein at the time the disturbance occurred; (2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud; (3) The disturbance was one in fact or in law, as defined in Article 3659; and (4) The possessory action was instituted within a year of the disturbance.
La. C. Civ. P. Art. 3659. Same; disturbance in fact and in law defined Disturbances of possession which give rise to the possessory action are of two kinds: disturbance in fact and disturbance in law. A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment. A disturbance in law is the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right. La. C. Civ. P. Art. 3660. Same; possession A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof proceeded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper. Subject to the provisions of Articles 3656 and 3664, a person who claims ownership of immovable property or of a real right therein possesses through his lessee, through another who occupies the property or enjoys the right under an agreement with him or his lessee, or through a person who has the use or usufruct thereof to which his right of ownership is subject. La. C. Civ. P. Art. 3661. Same; title not at issue; limited admissibility of evidence of title In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue. No evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove: (1) The possession thereof by a party as owner; (2) The extent of the possession thereof by a party; or (3) The length of time in which a party and his ancestors in title have had possession thereof. La. C. Civ. P. Art. 3662. Same; relief which may granted successful plaintiff in judgment appeal A judgment rendered for the plaintiff in a possessory action shall: (1) Recognize his right to the possession of the immovable property or real right therein, and restore him to possession thereof if he has been evicted, or maintain him in possession thereof if the disturbance has not been an eviction; (2) Order the defendant to assert his adverse claim of ownership of the immovable property or real right therein in a petitory action to be filed within a day to be fixed by the court not to exceed sixty days after the date the judgment becomes executor, or be precluded thereafter from asserting the ownership thereof, if the plaintiff has prayed for such relief; and (3) Award him the damages to which he is entitled and which he has prayed for. A suspensive appeal from the judgment rendered in a possessory action may be taken within the delay provided in Article 2123, and a devolutive appeal may be taken from such judgment only within thirty days of the applicable date provided in Article 2087(1)-(3). La. C. Civ. P. Art. 3663. Sequestration; injunctive relief Sequestration of immovable property or of a real right therein involved in a possessory or petitory action during the pendency thereof is available under the applicable provision of Chapter 1 of Title I of Book VII. Injunctive relief, under the applicable provision of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein, is available to: (1) A plaintiff in a possessory action, during the pendency thereof; and (2) A person who is disturbed in the possession which he and his ancestors in titled have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession or the enjoyment. Liner v. Louisiana Land & Exploration Did the Liner deed cover any land in Terrebonne Parish? Yes on the E side of range Property in dispute on the W side of range Liners grandfather planted trees, had cattle, did trapping and built fences and house on the W side of the property Storm in 1909 but continued possession through cattle, trapping, burning the marsh living off the land Legal issues: (1) Must show corporeal possession with in enclosures Other people recognized his boundaries Occupied land during trapping season Burning marsh once a year Raised cattle Grant of pipeline shows intent to own Evidence shows that Liner had corporeal possession of the property for many years. The quality of his possession was that of owner. It extended to visible boundaries.
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(2) Did Louisiana Land and Explorations acts constitute a bar to the right to possession? Only disturbed in a sense that they questioned it but didnt evict him Acts were no more than a disturbance but not enough to constitute an eviction The only act that could have amounted to eviction was the sheriff accompanied removal of boundary markers but Liner filed possessory action immediately On application for rehearing the court concludes that one may possess quietly and without interruption for more than a year so as to be entitled to a possessory action, La. C. Civ. P art. 3658(2), even though during that year disturbances in fact or law have occurred La. C. Civ. P. art. 3659. Application was denied. J. Tates concurrence p. 155 Liner never lost right to possession Dont interpret La. C. Civ. P. 3658 literally Evans v. Dunn Constructive possession property must be described in title to constructively possess May 81fence erected; Sept. 82files possessory action over 1 year so lost right to possess Otwell v. Diversified Timber Involves confused boundariesboundary b/w old creek bed and new creek bed Action for timber trespass and treble damages Can the Sanders est. 30 years acquisitive prescription in order to establish ownership ? Trial Court/Appellate Court YesEvidence of corporeal possession: husband marked trees with paint; in addition to marking trees, Mr. Sanders ran off trespassers, cut an existing fence to make a riding trail, shot hogs, hunted wood ducks, and harvested berries. He testified that he placed the property in a hunting club that posted signs and erected deer stands. He also took an interest in the property as heritage property searching for Indian artifacts and investigating old sites such as a mill believed to have been burned during the civil war. Possession continued for 30 years straight; uninterrupted Evidence was sufficient to support finding of sufficient corporeal possession to establish purported landowners ownership of land by 30 years acquisitive prescription Tolmas, Inc. v. Lee Tolmas files declaratory judgment action against Lee claiming that Lee had no ownership and wanted encroachments removed Issue: Was Lees possession sufficient and long enough to establish acquisitive prescription? Yesclear evidence of continuous use for 30 years established by testimony (customers, etc) Holdings: (1) Neighbor acquired disputed parking area by 30-year acquisitive prescription, and (2) mowing area next to parking lot was insufficient to establish adverse possession Adverse possession: Neighbor acquired parking lot titled in landowners name that abutted neighbors property by 30 -year acquisitive prescription; disputed property served as parking lot for neighbors (Lee) business for over 30 years, la ndowner never complained to neighbor about use of parking lot, neighbor maintained parking lot and controlled parking lot for its use by customers and others, and neighbor had business sign located on disputed property. Civil possession preceded by corporeal possession Corporeal possession trumps constructive possession Civil Code art. 3433. Loss of possession a. Abandons it b. Evicted by another by force or ursurpastion c. Question of fact Civil Code art. 3434. Loss of the right to possess Can recover possession if acts within a year Read 3433 and 3434 in relation to one another. Civil Code art. 3465. Interruption of acquisitive prescription Can recover possession within a year.
La. C. Civ. P. art. 3662 = REMEDIES La. C. Civ P. art 3657 Anti- Cumulation Article Plaintiff cannot combine, if plaintiff does, waives right to possessory action and takes burden upon himself of proving ownership Can jump to a petitory action if thinks he can win it La. C. Civ. P. art. 3638 Requisites of Possessory Action (1) Possession at time of disturbance (2) Ancestors in title (example in Liner) (3) Disturbance in fact or in law (art. 3659) (4) Within a year Why allow the privilege of possession? 1. Administrative/Efficiency. To cure honest mistakes and conveyances preserve judicial resources protecting possession firstprotecting innocent parties 2. Statute of Limitations. Brings claims in a timely manner because evidence weakens with time. Landowner doesnt assert rights for 30 years +, may lose rights 3. Personhood. See page 174. Psychological phenomenon of possession (mine) 4. Development Model. Protect/privilege dyanamic/actual use of land preferred over absentee ownership of land Possessory Action vs. Petitory Action Articles 531-32 of Civil Code La. C. Civ. P. art. 3653 Lower standard if court finds defendant is not in possession thereof, then only have to prove a better title than defendant Common author common owner between plaintiff and defendant who ever had interest first prevails (531 and 532 of Civil Code; pay attention to comments) (D) The Petitory Action LOUISIANA CODE OF CIVIL PROCEDURE PROTECTION OF OWNERSHIP: REAL ACTIONS; (1) PETITORY ACTIONS La. C. Civ. P. Art. 3651: Petitory action The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership. La. C. Civ. P. Art. 3652: Same; parties; venue A petitory action may be brought by a person who claims the ownership of only an undivided interest in the immovable property or real right therein, or whose asserted ownership is limited to a certain period which has not yet expired, or which may be terminated by an event which has not yet occurred. A lessee or other person who occupies the immovable property or enjoys the real right therein under an agreement with the person who claims the ownership thereof adversely to the plaintiff may be joined in the action as a defendant. A petitory action shall be brought in the venue provided by Art. 80(1), even when the plaintiff prays for a judgment for the fruits and revenues of the property, or for damages. La. C. Civ. P. Art. 3653 Same; Proof of title; immovable To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall: (1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or (2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. ---When the titles of the parties are traced to a common author, he is presumed to be the previous owner.
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La. C. Civ. P. Art. 3654: Proof of title in action for declaratory judgment, concursus, expropriation, or similar proceeding. When the issue of ownership of immovable property or of a real right therein is present in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to owner of the immovable property or of the real right therein is so presented, the court shall render judgment in favor of the party: (1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or (2) Who proves the better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action. Deselle v. Bonnette (CB 408) Chatelain sells land to M. Deselle (1911) East of highway sells to W. Deselle who sells to J. Deselle Gautheir (1916) West of highway who sells to Bonnette Deselle brings petitory action under 3653 District Ct judgment for Deselle; Appellate ct plaintiff couldnt prove perfect title, so defendant (Bonnette) wins Pure Oil Co. v. Skinner (CB 412) Ownership unclear, so file royalties in the registry of court Neither side had perfect or valid title La. C. Civ. P. art. 3654 Relators possession since 1947; no title Skinners title back to 1874; 1858 to 1874 gap in title Appellate Court judgment in favor of Skinners Supreme Court reversed; Burden of proof placed on respondents is greater than proving a better title under La. C. Civ. P. art. 3654; respondents were required to prove valid record title, to show title good against the world without regard to the title of the party in possession; respondents failed to do so because record showed 16 year gap in title; respondents did not establish either valid record title or prescriptive title to the property in dispute Defendants in possession DISSENT IMPORTANT majority opinion required title against the whole world, which is impossible Baker v. Romero Lynn and Tommy Baker right title of interest 40 acres - $10 from relatives Bakers writes letter to Romeros 10 acres of adjacent land, have been in possession wanted property surveyed; Baker files suit for injunctive relief (wanted to avoid a petitory action) Romeros file reconventional demand claim they and their ancestors have been in possession of strip entire 40 acres- only assert ownership over 10 acres Physical boundaries Romeros GF possessors of 40 acres and owners of 10 acres Baker asserts ownership of 40 acrespetitory action Trial court judgment for Romeros Romeros never assert ownership; possessors (possession with intent to own) Burden of proof Bakers can show title but not all the way to sovereign (sheriffs tax sale) Purported property owner brought petitory action seeking injunctive relief against adjacent landowners seeking to enjoin them from interfering with her exercise of ownership and specifically requesting that adjacent landowners be ordered to refrain from interfering with property owner's attempt to have property surveyed. Adjacent landowners filed answer and reconventional demand claiming ownership of property in question. The Eleventh Judicial District Court, Sabine Parish, No. 59,544, Stephen B. Beasley, J., entered judgment in favor of adjacent landowners. Purported property owner appealed. Holdings: The Court of Appeal, Keaty, J., held that: 1. adjacent landowners did not waive claim of possession; 2. purported property owner was required to prove good title against the world; and 3. purported property owner failed to prove ownership. Decision: Affirmed.
Headnotes: 1) Ejectment: Adjacent landowners did not waive their claim to possession of adjacent property by claiming ownership of property in petitory action filed by purported owner of adjacent property, where adjacent landowners did not in fact claim ownership of the property, but were instead alleging good faith possession of the property. LSA C.C.P. art. 3657. 2) Real Actions: Purported property owner waived for appellate review assertion that burden of proof in petitory action shifted to adjacent landowners to prove ownership of disputed property, where purported landowner did not raise this argument to the trial court. Uniform Rules, Courts of Appeal, Rule 13, 8 LSAR.S. 3) Purported property owner who brought petitory action was required to prove title good against the world, rather than simply title better than that of adjacent landowners who claimed good faith possession of disputed property, where adjacent landowner testified that when he purchased the tract of land, he believed he was getting all of the property within certain boundaries, there were no markers around disputed property, and no one had ever given him any indication that they owned disputed property until present dispute. 4) Purported property owner failed to prove ownership of disputed property in petitory action; tax sale deed only showed prior private ownership, thus, the evidentiary destination to a sovereign grant, the originating transfer upon which all title to the tract was founded, had not been reached, ownership back to a common ancestor in title, another route to prove ownership, did not apply as adjacent property owners claimed only possession of the subject tract, and remaining alternative to prove ownership, acquisitive prescription, was neither pleaded nor argued and the court was prohibited from doing so sua sponte. LSAC.C. art. 3452. (E) Vices of Possession and Precarious Possession Art. 492: Separate Ownership of part of a building: Separate ownership of part of a building, such as a floor, an apartment, or a room, may be established only by a juridical act of the owner of the entire building when and in the manner expressly authorized by law. Art. 3435: Vices of possession: Possession that is violent, clandestine, discontinuous, or equivocal has no legal effect. Art. 3436: Violent, clandestine, discontinuous, and equivocal possession: Possession is violent when it is acquired or maintained by violent acts. When the violence ceases, the possession ceases to be violent. Possession is clandestine when it is not open or public, discontinuous when it is not exercised at regular intervals, and equivocal when there is ambiguity as to the intent of the possessor to own the thing. Art. 3437: Precarious Possession: The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious possession. Art. 3438: Presumption of precariousness: A precarious possessor, such as a lessee or a depositary, is presumed to possess for another although he may intend to possess for himself. Art. 3439: Termination of precarious possession: A co-owner, or his universal successor, commences to possess for himself when he demonstrates this intent by overt and unambiguous acts sufficient to give notice to his co-owner. Any other precarious possessor, or his universal successor, commences to possess for himself when he gives actual notice of this intent to the person on whose behalf he is possessing. Art. 3440: Protection of precarious possession: Where there is a disturbance of possession, the possessory action is available to a precarious possessor, such as a lessee or a depositary, against anyone except the person for whom he possesses.
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Art. 3476: Attributes of possession: The possessor must have corporeal possession, or civil possession preceded by corporeal possession, to acquire a thing by prescription. The possession must be continuous, uninterrupted, peaceable, public, and unequivocal. Art. 3477: Precarious possessor; inability to prescribe: Acquisitive prescription does not run in favor of a precarious possessor or his universal successor. Art. 3478: Termination of precarious possession; Commencement of prescription: A co-owner, or his universal successor, may commence to prescribe when he demonstrates by overt and unambiguous acts sufficient to give notice to his co-owner that he intends to possess the property for himself. The acquisition and recordation of a title from a person other than a co-owner thus may mark the commencement of prescription. Any other precarious possessor, or his universal successor, may commence to prescribe when he gives actual notice to the person on whose behalf he is possessing that he intends to possess for himself. Art. 3479: Particular successor of precarious possessor: A particular successor of a precarious possessor who takes possession under an act translative of ownership possesses for himself and prescription runs in his favor from the commencement of his possession. Falgoust v. Inness Inness son-in-law of Falgoust; Inness claims his mother-in-law gave him permission to build gas station; Inness and wife getting divorced, Falgoust gives him written notice to vacate Inness wants to be reimbursed for enhanced value of adding gas station to property; Inness = precarious possessor not GFP because he didnt have intent to ownonly there by permission from Mrs. Falgoust and there was no act translative of ownership; he is a consensual improver and his rights are governed by C.C. art. 493; Gas station goes to mother-in-law The occupant sought reimbursement for the building as a possessor in good faith. Affirming the judgment, the court concluded that the occupant was not a possessor in good faith under articles 3436, 3451, 3453 of the Revised Civil Code. Under the articles, the occupant was not a possessor at all because he did not possess the land as owner. The status of his claim involved the recognition of the owner's legal possession and true ownership. The court concluded that the occupant had been given a right to erect the building and to keep it there for a reasonable time. Three years was a reasonable period. Harper v. Willis Caretaker quit job and left property unattended (1946 or 1947) Harper brings cattle onto land in 1939; caretaker gave him permission to use land without paying rent if he took care of land 1952 Harper acquired sufficient interests in lots Harper interested in purchasing lot in question but its sold to Willis Willis has record title disturbance in law of Harpers possession Harper brings a possessory action for small tract in the middle of a larger tract Issue: Does Harper have possession? Had corporeal possession had been running cattle for more than 30 ears, but not intent to possess as owner (3424) In deposition, lawyers get Harper to admit he didnt have the right subjective intent even though facts may have shown otherwise Court recognizes we have BF acquisitive prescription in La but Harper wasnt hostile enough to satisfy BFP Possessory action dismissed The occupier sought to be maintained in the possession of immovable property consisting of a rectangular tract of open land. The occupier asserted that he "possessed" the land by grazing his cattle on it and doing certain other acts upon the land. The occupier alleged that he had been disturbed in his possession by the recordation of a document that purported to convey the property to the owner. The trial court granted the owner's motion for summary judgment. The occupier challenged the decision. The court agreed with the trial court. The motion for summary judgment, and the judgment granting it, were based solely on a deposition given by the occupier. The court found that the sole issue was whether the occupier ever had the intent to acquire possession as required by La. Civ. Code Ann. art. 3436. The court held that the occupier affirmed in every way possible that he intended no adverse claim to the property in question. The occupier made no pretense of title, and acknowledged that he did not own the property. Case raises policy questions: Should true owners have been alarmed when Harper was acting as owner? Consider goals of acquisitive prescription should state of mind matter?
MHMI v. UNO Foundation HMLA (non-profit organization) built library Frank T. Howard paid for construction of an annex connected to library to house confederate materials LHA (predecessor to MHMI) was seeking a place to house its confederate materials Howard lets LHA use annex to house its collection (1891) No authentic act just written speech which was given to LHA; not in proper form for donation; plus, Howard didnt have the authority to donate building LHA goes into possession of property 1912 committee appointed to look into status of property HMLA appropriates all interests in library and annex to UNO foundation LHA turns into MHMI MHMI brings suit alleging ownership by donation (invalid) or by acquisitive prescription (short of 10 years and no just title no act translative of ownership) What about 30 year AQ RX? LHA possession dates back 100 years not intending to own for themselvesprecarious possessors (similar to usufruct) 1912 LHA written recognition that HMLA is owner 1931 LHA attorney says still no legal title to property MHMI gave HMLA right to use portion of annex (sub-usufruct) only giving up use rights, not an act that they are possessing as owner. No proof of communication of precarious possession even though theres an act showing precarious posses sion so clock never starts running for AQ RX DISSENT usufruct by definition cannot be perpetual, limited to certain period of time OVERVIEW: In 1891, a man granted to the museum's predecessor the perpetual use of a building next to his library. Years later, the library sold the building and the land it was on to the university foundation. The museum claimed ownership of the land and building and filed the instant action to settle the dispute. The trial court granted summary judgment to the university foundation, finding that the ownership of the property had not been donated, that there was no acquisitive prescription, and that, if there was, it was renounced. On appeal, the court affirmed. In the 1891 written speech transferring an interest in the property, the former owner merely granted use of the property forever to the museum; the speech did not purport to convey ownership. The court also agreed that the evidence did not support a finding of 30-year acquisitive prescription under former La. Civ. Code Ann. art. 3478 (1870). There was evidence that the museum had twice, in 1912 and in 1931, investigated and determined that it did not own the building and property. Therefore, the library had not lost the right to convey ownership to the university foundation. HOLDINGS: held that: (1) actions of predecessor of improved property owner in writing and then giving speech in which he put possession of property into hands of museum company's predecessor, for its use, and giving writing to predecessor, did not donate ownership of property to predecessor, and (2) museum company's predecessor did not possess property, which it used as museum, openly and unequivocably as owner for any 30-year period of time, and thus, predecessor never took title to property by virtue of acquisitive prescription. La CC art. 3436: Possession must be: Clandestine open and public Discontinuous constant enough to show intentions to derive meaningful use of property Equivocal usually an issue with co-owners La CC art. 3438 creates a rebuttable presumption La CC art. 3439 dont worry about 1st paragraph; comment (c) Todd v. State (similar to art. 3478)
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(F) Prescription and Possessory Actions Against the State and Political Subdivisions Art. 3485: Things susceptible of prescription: All private things are susceptible of prescription unless prescription is excluded by legislation. La. R.S. 9:5804: Immovable property of municipal corporation Any municipal corporation owning alienable immovable property may prevent the running of prescription acquirendi causa against it in favor of any third possessor, by recording a notice with the clerk of court of the parish where the property is situated, or with the register of conveyances in the Parish of Orleans insofar as property in that parish is concerned. This notice shall contain a description of the property and a declaration that it is public property belonging to the municipality and the recording shall suspend the running of prescription during the time the ownership of the property shall remain vested in the name of the municipality. The recordation of the written act by which a municipal corporation shall acquire alienable immovable property likewise shall be deemed sufficient notice in order to suspend the term of prescription Todd v. State OVERVIEW: The property owner filed the possessory action after the State claimed that the disputed property was the former bed and bottom of the Mississippi River. The property owner contended that the property was formed by accretion, alluvion, dereliction, or reliction. The court reinstated its original opinion, determining that a possessory action could be maintained against the State where the object of possession was a private rather than a public thing. The court also concluded that a successful plaintiff's right under La. Code Civ. Proc. Ann. art. 3662(2) to have the judge require that the losing defendant file a petitory action within 60 days was not constitutionally permissible when the State was the loser in the possessory action. The court found that it erred on first rehearing when it concluded that a possessory action could not be maintained against the State. The fallacy in the first rehearing was the assertion that the purpose of the possessory action was simply to facilitate a continued possession while acquisitive prescription accrued. The court also found that it erred in concluding that other adequate remedies were available to the property owner. OUTCOME: The court reinstated its original opinion that the possessory action could be maintained against the State. The court affirmed the judgments of the lower courts except insofar as they ordered the State to bring a petitory action against the property owner to assert any claim of ownership that the State had to the property within 60 days after the judgment became executory or be precluded thereafter from asserting the ownership thereof. (G) Ten Year Acquisitive Prescription of Immovables: Good Faith, Just Title and the Louisiana Public Records Doctrine Art. 3182: Debtors general liability: Whoever had bound himself personally, is obliged to fulfill his engagements out of all his property, movable and immovable, present and future. Art. 3183: Debtors property common pledge of creditors; exceptions to pro rate distribution: The property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exist among the creditors some lawful cause of preference. Art. 3184: Lawful causes of preference: Lawful causes of preference are privilege and mortgages. Art. 3341: Limits on the effect of recordation: (1) does not create a presumption that the instrument is valid or genuine. (2) Does not create a presumption as to the capacity of status of the parties. (3) Has no effect unless the law expressly provides for its recordation. (4) Is effective only with respect to immovable located in the parish where the instrument is recorded. Art. 3342: Parties to an instrument are precluded from raising certain matters: A party to a recorded instrument may not contradict the terms of the instrument or statements of fact it contains to the prejudice of a third person who after its recordation acquires an interest in or over the immovable to which the instrument realates.
Art. 3473: Prescription of ten years: Ownership and other real rights in immovables may be acquired by the prescription of ten years. Art. 3474: Incompetents: This prescription runs against absent persons and incompetents, including minors and interdicts. Art. 3475: Requisites: The requisites for the acquisitive prescription of ten years are: possession of ten years, good faith, just title, and a thing susceptible of acquisitive prescription. Art. 3476: Attributes of possession: The possessor must have corporeal possession, or civil possession preceded by corporeal possession, to acquire a thing by prescription. The possession must be continuous, uninterrupted, peaceable, public, and unequivaocal. Art. 3477: Precarious possessor; inability to prescribe: Acquisitive prescription does not run in favor of a precarious possessor of his universal successor. Art. 3478: Termination of precarious possession; commencement of prescription: A co-owner, or his universal successor, may commence to prescribe when he demonstrates by overt and unambiguous acts sufficient to give notice to his co-owner that he intends to possess the property for himself. The acquisition and recordation of a title from a person other than a co-owner thus may mark the commencement of prescription. Any other precarious possessor, or his universal successor, may commence to prescribe when he gives actual notice to the person on whose behalf he is possessing that he intends to possess for himself. Art. 3479: Particular successor of precarious possessor: A particular successor of a precarious possessor who takes possession under an act translative of ownership possesses for himself, and prescription runs in his favor from the commencement of his possession. Art. 3480: Good faith: For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses. Art. 3481: Presumption of good faith: Good faith is presumed. Neither error of fact nor error of law defeats this presumption. This presumption is rebutted on proof that the possessor knows, or should know, that he is not owner of the thing he possesses. Art. 3482: Good faith at commencement of prescription: It is sufficient that possession has commenced in good faith; subsequent bad faith does not prevent the accrual of prescription of ten years. Art. 3483: Just title: A just title is a juridical act, such as the sale, exchange, or donation, sufficient to transfer ownership or another real right. The act must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated. Art. 3484: Transfer of undivided part of an immovable: A just title to an undivided interest in an immovable is such only as to the interest transferred. Art. 3506(28): Definition of a Successor: Successor is, generally speaking, the person who takes the place of another. There are in law two sorts of successors: the universal successor, such as the heir, the universal legatee, and the general legatee; and the successor by particular title, such as the buyer, done or legatee of particular things, the transferee. The universal successor represents the person of the deceased, and succeeds to all his rights and charges. The particular successor succeeds only to the rights appertaining to the thing which is sold, ceded or bequeathed to him.
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La. Rev. Stat. 9:5630: Actions by unrecognized successor against third persons: (A) An action by a person who is a successor of a deceased person, and who had not been recognized as such in the judgment of possession rendered by a court of competent jurisdiction, to assert an interest in an immovable formerly owned by the deceased, against a third person who has acquired an interest in the immovable by onerous title from a person recognized as an heir or legatee of the deceased in the judgment of possession, or his successors, is prescribed in two years from the date of the finality of the judgment of possession. (B) This Section establishes a liberative prescription, and shall be applied both retrospectively and prospectively; however, any person whose rights would be adversely affected by this Section shall have one year from the effective date of this Section within which to assert the action described in Subsection A of this Section and if no such action is instituted within that time, such claim shall be forever barred. (C) Third person means a person other than one recognized as an heir or legatee of the deceased in the judgment of possession. (D) For the purposes of this Section, after thirty years from the date of recordation of a judgment of possession there shall be a conclusive presumption that the judgment was rendered by a court of competent jurisdiction. Phillips v. Parker (CB 349) No dispute as a matter of record title that Phillips = owner Title examination Parkers AQ RX GF 10 YR AQ RX Issue: Is she in GF? Lower court said Parker wasnt in GF Appellate Court (begins on 351) o Holding 1: Public records document does not lead to constructive knowledge, only allows people to check records to make sure theres no record to negate (3338). Phillips title is still vulnerable to an AQ RX claim; important for people who check it and find no evidence of any other interest in the property o Holding 2: Constructive knowledge and good faith. Public records and constructive knowledge in this case do not preclude GF; relied on title examiner = reasonably believed; no physical boundaries; Parker = reasonable person relying on title examiner who made a mistake o Misapplied theory of constructive knowledge o Court distinguishes between constructive knowledge and imputed knowledge Page 359 Law Review Article Discussion on Phillips on page 364 Public Records When law of recordation applies, an interest in immovable property is effective against third persons only if it is recorded; if interest is not recorded, it is not effective against third person even if third person knows of the claim. LSA-R.S. 9:2721, 9:2724, 9:2756. Law of registry is not involved with theory of acquisitive prescription that party who reasonably believed he was acquiring valid title should be deemed to have valid title after certain period of possession in which owner failed to object; law of registry simply makes true owner's recorded title effective against good-faith possessor until prescriptive period has elapsed. Constructive Knowledge and Good Faith Theory of constructive knowledge should have no bearing on determination from objective standpoint of good faith of possessor of immovable property who claims acquisitive prescription. Good faith of possessor seeking title by adverse prescription should be determined by consideration of all factors of particular case relevant to definition of good faith in Civil Code [LSA-C.C. art. 3480], and not merely by any reference to public-records doctrine or to any theory of constructive knowledge. Presumptions and Burden of Proof Party who relied on erroneous title examination was not, solely for that reason, precluded from claiming status of good-faith possessor in plea of ten-year acquisitive prescription, but rather obtaining of title examination and information actually revealed by examination were merely factors to be considered in judicial determination of whether presumption of party's good faith had been successfully rebutted. LSA-C.C. arts. 3480, 3481. True owner of property failed to rebut presumption of adverse possessor's good faith where defect in possessor's title was simple overlap in nearly contemporaneous sale and possessor reasonably relied on title examination. LSA-C.C. art. 3481. PROCEDURAL POSTURE: Defendant holders of land sought review of the judgment of the Court of Appeal, Second Circuit, Parish of Bienville (Louisiana), which determined that they were not good-faith possessors of part of the property because the title examination failed to discover that a 13-foot portion of the land had been sold to plaintiff buyer's predecessor in interest.
OVERVIEW: When the holders bought their land, their attorney searched the title and found it was valid; they fenced it in and were in peaceful possession for 15 years when the buyer purchased the next lot. The buyer discovered 10 years later that the lot described in her deed overlapped the holders' lot by 13 feet, and requested removal of the fence. At trial, the holders filed an exception of 10-year acquisitive prescription and claimed that they possessed the land within the fence in good faith and under just title. The trial court found that the holders were in "legal bad faith" because they had a title examination that did not reveal the defect. The appellate court affirmed and found that La. Civil Code Ann. art. 3481 did not affect the theory that they were charged with knowledge of the public records. On further appeal, the court found that the law of registry made property transfers effective against third persons only when they were recorded. The court found that the appellate court has misapplied art. 3481, since the title examination did not prevent the holders from asserting good faith, because considering all the factors of the case they reasonably believed they were the owners. HOLDING: held that: (1) party who relied on erroneous title examination was not, solely for that reason, precluded from claiming status of good-faith possessor in plea of ten-year acquisitive prescription, and (2) true owner failed to rebut the presumption of adverse possessor's good-faith possession. OUTCOME: The court reversed the judgment of the court of appeals and sustained the holders' plea of 10-year acquisitive prescription, because the buyer did not adequately rebut the presumed good faith of the holders. Mai v. Floyd Campagnas own lots 9 and 10 and sell them to the Alberts in 1984. In 1986 Ray Floyd purchases lot 10 at a tax sale. Ray Floyd sells property to G. Floyd in 1999. Floyd paid property taxes In 1990 Alberts sale lots 9 and 10 to Tabrizi (2/3 interest) and Zare (1/3 interst). Zare transfers her interest to Tabrizi in 1991. Tabrizi sells both lots to Mai in 1996. Mai sets up a business establishment on propert Mai wants to sell property to Huong; Huongs attorney has a title examination done and finds tax sale to Floyd. Huong purchases lot 9 and the business Mai had established but says she wont buy lot 10 until Mai can prove title Mai files declaratory judgment to be declared owner by AQ RX Mai only has 6 years possession so needs to tack back to Tabrizi and Zare possession (additional 6 years) cannot take back to actual owners Because Mai, Tabrizi and Zare all have just title, Mai must show that all were in GF GF measure at commencement Mai didnt conduct title examination but just b/c one doesnt conduct a title examination, it does not preclude GF Mai went to tax assessor and tax assessor says no taxes owed on property reasonable person may conclude that person selling them property has no tax debt Floyd doesnt present enough evidence to rebut presumption of GF Mai shows 12 years of uninterrupted possession; court does not examine GF of T & Z Possessor of property had continuous, uninterrupted, peaceable, public and unequivocal actual possession, in good faith, for ten year period, and thus, possessor established ownership of the property as against the successor of the purchaser of the property at tax sale by acquisitive prescription; possessor thought he had ownership as he bought the property from an alleged prior owner and checked tax records for overdue taxes. LSA-C.C. arts. 3442, 3473. (H) Tacking and Transfer of Possession HANDOUT FROM LOVETT TACKING CHART WARNING FOR FINAL A POSSESSOR CANNOT TACK BACK TO A RECORD OWNER OR AUTHOR ; A POSSESSOR ONLY TACKS BACK TO THOSE WHO LACK ACTUAL TITLE Art. 3441: Transfer of possession: Possession is transferable by universal title or by particular title. Art. 3442: Tacking of possession: The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession. Comments (d) & (e) Art. 3443: Presumption of continuity of possession: One who proves that he had possession at different times is presumed to have possessed during the intermediate period.
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Art. 794: Determination of ownership according to titles: When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds. Bartlett v. Calhoun Thompson sells property to Calhoun in 1949. 10 days later Calhoun sells it to Brown. In 1951 Brown sells back to Calhoun. Bartlett = Thompson heir claims transaction was suspicious and the entire transaction began with a forged deed Lower Court Brown was in GF, so with sell to Calhoun in 1951, Calhoun could tack on GF from Brown, even if she had BF in the beginning Universal Title vs. Particular Title Universal title entitled to tack on GF of author Particular title like its own separate possession; Calhoun only a particular possessor, doesn t inherit GF Tacking, or joining of possessors allows present possessor to count, besides his own possession, that of his predecessor in order to prescribe. LSA-C.C. art. 3493. Author as used in codal provision governing tacking or joining of pos sessors to make sum of possession necessary to prescribe contemplates person from whom another derives his right, whether by universal title or by particular title. LSA-C.C. arts. 3493, 3494. It is imperative that juridical link exists in order for successor to acquire predecessor's prescriptive rights. LSA-C.C. art. 3493. Universal successor merely continues deceased's possession, succeeding to all of latter's obligations as well as rights; it is thus not new possession that begins, but is deceased's possession that is transmitted to his heirs, with its virtues and its faults. LSAC.C. art. 3556, subd. 28. Because universal successor's possession is nothing more than continuation of deceased's possession, he is bound by his author's good or bad faith and is powerless to alter prescriptive rights transmitted to him. LSA-C.C. arts. 3493, 3556, subd. 28. Codal provision permitting prescription to accrue after ten years as long as possession is commenced in good faith envisions only one possession and applies when property is transferred to universal successor. LSA-C.C. arts. 3482, 3493, 3556, subd. 28. Contrary to universal successor, individual who acquires by particular title commences new possession which is separate and distinct from his author's possession. LSA-C.C. art. 3556, subd. 28. Though particular successor can cumulate his and his author's possessions, both must have all statutory characteristics and conditions required for completion of prescription; disproving Jackson v. D'Aubin, 338 So.2d 575 and other prior inconsistent opinions. LSA-C.C. arts. 3482, 3493, 3556, subd. 28. Loutre Land & Timber Co v. Roberts Background: Northern landowner brought action against southern landowner to determine ownership of disputed parcel and for trespass and property destruction. Southern landowner filed reconventional demand. Following remand, 981 So.2d 775, and trial on the merits, the Fifth Judicial District Court, Franklin Parish, No. 36,820, James M. Stephens, J., granted northern landowner's motion for summary judgment. Both landowners appealed. The Court of Appeal, Caraway, J., 47 So.3d 478, reversed and remanded. Northern landowner filed a writ application in the Supreme Court which was granted. Holding: The Supreme Court, Clark, J., held that northern landowner could tack its predecessor's ownership of disputed parcel.
Under statute concerning fixing of boundaries upon acquisitive prescription, northern landowner could tack to its own possession its predecessor's ownership of disputed tract between fence that ran east-west and ideal boundary line between its property and that of southern landowner and, thus, held title to disputed tract, although disputed tract was not specifically described in warranty deed that transferred to northern landowner parcel adjacent to disputed tract, where northern landowner continued the possession of the predecessor by planting pine seedlings along the fence. LSAC.C. art. 794. Statute that states that when a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles allows a party to tack onto the possession of its ancestor in title if the possession occurs without interruption; if the combined possession spans thirty years, the party is entitled to have the boundary fixed along the visible bounds of the possession. LSAC.C. art. 794. Secret Cove, LLC v. Thomas OVERVIEW: When the owner purchased a tract of undeveloped rural land, a small portion of the property was the site of a campground operated by the possessors, who owned adjacent land. The owner filed a petitory action seeking possession of the disputed property and damages. The possessors claimed that they and their family had possessed the disputed property continuously and openly for more than 30 years. The trial court ruled in the possessors' favor, concluding that the possession of the disputed property by the father of one of the possessors could be tacked to that of his son by virtue of La. Civ. Code Ann. art. 794. The court affirmed, finding no clear error in the trial court's evaluations of witness credibility. The evidence showed continuity of possession by the possessors' acts of clearing underbrush, maintaining a road beside a levee, and developing the campground area. The possession was within visible bounds. There was a reasonable factual basis in the record for the trial court's conclusion that the nature and extent of the possession satisfied the requirements of acquisitive prescription. The portion of the judgment describing the eastern boundary was erroneous, however. OUTCOME: The court affirmed the judgment in favor of the possessors, with the exception of the property description in the judgment. The court vacated that portion of the judgment and remanded for an evidentiary hearing and entry of a new judgment accurately describing the property. Holdings: 1 evidence supported trial court's finding that one of visible boundaries of possession was section line; 2 trial court improperly found that eastern boundary extended to point out in canal; 3 trial court's finding that northern boundary was along southern edge of natural drainage feature was not clearly wrong; 4 evidence supported trial court's finding that western boundary was point where elevation changed before entering swamp area; and 5 reasonable factual basis existed in record to support trial court's finding that possessors possessed disputed property for requisite 30-year period. Acquisitive prescription beyond title by possession to visible boundary for period of thirty years may be pleaded as a defense in petitory action. LSA-C.C. art. 3486; LSA-C.C.P. art. 3651. In petitory action, when one party relies on title and the other on acquisitive prescription, party relying on title will prevail unless adversary establishes adversary's ownership by acquisitive prescription. LSA-C.C. art. 3486; LSA-C.C.P. art. 3651. For purposes of possession extending only to that which has been actual possessed, in context of acquisitive prescription without title, actual possession must be either inch-by-inch possession or possession within enclosures. LSA-C.C. art. 3487. For purposes of acquisitive prescription without title, party who does not hold title to disputed tract has burden of proving actual possession within enclosures sufficient to establish limits of possession with certainty, by either natural or artificial marks, giving notice to the world of extent of possession exercised. LSA-C.C. arts. 3426, 3487. For purposes of acquisitive prescription without title, intent to possess disputed property as owner may be inferred from all of the surrounding facts and circumstances. LSA-C.C. art. 3427. For purposes of acquisitive prescription, privity of contract or estate is essential prerequisite to tacking of possession. LSA-C.C. arts. 3441, 3442.
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UNIT I: DIVISION OF THINGS, THE RIGHT TO EXCLUDE AND NAVIGABLE WATER BODIES (A) Common, Public And Private

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STATUS OF IMPROVER Consensual: 493 (large scale) 495 (small scale)

496 (GFP) 497 (BFP)

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