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Trahan v. Plessala

Court of Appeal of Louisiana, Third Circuit

February 4, 2015

WAYNE R. TRAHAN, ET AL.
v.
ERNE PLESSALA, SR., ET AL

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA, NO. 103270. HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE.

J. Wayne Landry, Attorney at Law, New Iberia, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Larry Verrett, Wayne R. Trahan.

Stephen F. Mestayer, Attorney at Law, New Iberia, LA, COUNSEL FOR DEFENDANT/APPELLANT: Gloria L. Plessala, Erne Plessala, Sr.

James W. Schwing, Attorney at Law, New Iberia, LA, COUNSEL FOR DEFENDANT/APPELLANT: Gloria L. Plessala, Erne Plessala, Sr.

Court composed of John D. Saunders, Elizabeth A. Pickett, and John E. Conery, Judges.

OPINION

Page 210

[14-795 La.App. 3 Cir. 1] SAUNDERS, Judge.

This is an appeal regarding the extent of adverse possession. In 1969, the adverse possessors constructed a crawfish pond on the title land owners' property using levees. Sometime thereafter, the adverse possessors moved the soil from the spoil bank of a nearby canal to create a campsite. Later, the adverse possessors constructed a bridge over the canal and moved two camps onto the campsite.

The title land owners brought a petitory action against the adverse possessors. The trial court found that the adverse possessors proved their possession for 30 years to the extent of the outer levees of the crawfish pond. The trial court then ordered that the adverse possessors have a plat created to determine the extent of their adverse possession. After two failed attempts by the adverse possessor's expert to create a plat that complied with the trial court's judgment, the titled landowners were ordered to find an expert to create a plat. The plat of the titled landowners' expert did not include the campsite in the adverse possessors' adverse possession.

The trial court accepted the plat drawn by the titled landowners' expert to be in accordance with its judgment, cast the adverse possessors with all costs of the proceeding, and ordered that the adverse possessors remove their bridge and two camps from the campsite. The adverse possessors appeal. We affirm.

Page 211

FACTS AND PROCEDURAL HISTORY:

Plaintiffs, Wayne Trahan and Larry Verret, instituted a petitory action against Defendants, Erne Plessala, Sr. and his former spouse, Gloria Plessala, claiming ownership of certain tracts of land in rural Iberia Parish. Originally, the action was against Erne Plessala, Sr., who was divorced from Gloria Plessala. A trial on the merits between Plaintiffs and Erne Plessala was held on February 21, 2006. After a judgment was rendered, Gloria Plessala filed a petition for [14-795 La.App. 3 Cir. 2] intervention based on the fact that she and Erne never partitioned their community property, and, given this fact, she was a necessary party for proper adjudication of the matter. As such, the trial court granted Gloria Plessala's petition and allowed her to defend her property rights which could be affected by the suit. The only issue involved in the second trial that included Gloria was ownership of land not pertinent to these proceedings.

The trial court's September 20, 2006 judgment found that Plaintiffs had proven title to the eastern quarter of Lots 28 and 35, but that Defendants had established " title up to the outermost levees of the crawfish pond" located in portions of both Lots 28 and 35.

Lot 28 is bordered on the west by Marshfield Canal and the south by Lot 35. Lot 35 is also bordered on the west by Marshfield Canal. Thus, to reiterate, Lot 28 is located directly north of Lot 35 along the east side of Marshfield Canal.

The September 20, 2006 judgment went on to order that Defendants were to establish the boundary of their title gained through their adverse possession in Lots 28 and 35 by having a plat created " up to the outermost levees of his crawfish pond."

In accordance with the trial court's judgment, Defendants hired Ivan Garzotto to prepare a plat. Garzotto prepared a plat and had it recorded in the public records of Iberia Parish. Garzotto's first plat placed the boundary of Defendants' adverse possession to include a campsite they had constructed on the spoil bank of the Marshfield Canal. He did so because he considered the western levee of the crawfish pond to be the spoil bank of the Marshfield Canal between where the crawfish pond levees intersected with the spoil bank.

[14-795 La.App. 3 Cir. 3] Plaintiffs filed a motion to correct survey in accordance with judgment. Simon Freyou, a licensed land surveyor, testified on behalf of the Plaintiffs. He disagreed with Garzotto's plat that the spoil bank should be included because it was not part of the crawfish pond. Freyou testified that the spoil bank was never part of the crawfish pond.

The trial court found that Garzotto's first plat did not comply with its judgment and declared it invalid. The trial court then ordered Garzotto to redo the plat with instructions that he:

[Establish] the crawfish levee for the pond . . . if he is able to do so. If he is not able to establish [the entire] levee encompassing the crawfish pond, then he will stop at whatever point the levee stops and then proceed around the crawfish pond at the high water mark until he gets to another portion of existing levee around the crawfish pond. It is also obvious to the Court that [Defendants'] crawfish pond . . . was not in the spoil bank area at least between 1996 to present date. Further, there is no testimony that would support the uninterrupted adverse possession of [Defendants] in the spoil bank area of Lots 28 and 35. The Court also notes that the burden of proof for thirty (30) year adverse possession is on [Defendants].

Page 212

The trial court also deferred Plaintiffs' request that Defendants be ordered to remove the camp(s) from the campsite as well as any other structures, including a bridge they had built to reach those camps, until Garzotto completed the plat in accordance with its judgment. Finally, the trial court ordered that Defendants pay the expert fees of Plaintiffs' expert, Freyou, and those of their own expert, Garzotto.

Garzotto then produced and recorded a second plat. It also included the campsite within the boundary drawn of Defendants adverse possession. Plaintiffs again filed a motion to correct survey in accordance with judgment. Once again, the trial court declared Garzotto's plat invalid. This time, rather than have Garzotto produce a third plat, the trial court ordered that Plaintiffs establish the [14-795 La.App. 3 Cir. 4] extent of Defendants' adverse possession in Lots 28 and 35 by having a plat created to the outermost levees of the crawfish pond. The trial court also included some instructions in its judgment as to which markers present in Garzotto's second plat that the Plaintiffs' expert was to use and others that he was to disregard.

Finally, after having David Moore create a plat based on the trial court's judgment, Plaintiffs sought to have that plat accepted by the court as correctly reflecting the extent of Defendants' adverse possession and ownership " up to the outermost levees of the crawfish pond." Moore's plat did not include the campsite as part of Defendants' adverse possession. The trial court accepted Moore's plat and signed a judgment on September 30, 2013, ordering Defendants to remove the bridge and camps located on the campsite in question within ninety days of the judgment. Further, the trial court cast Defendants with costs for the surveying fees and expert testimony fees of Moore, and again with the expert testimony fees of Freyou and Garzotto.

Defendants filed this appeal now before us. In this appeal, they allege two assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in failing to render a decision based on the evidence of adverse possession by Defendants and in failing to recognize the western boundary of the disputed tract to be the Marshfield Canal, a natural, visible boundary, as reflected by the exhibits and the clear and uncontroverted testimony of witnesses at the trial of this matter.

2. The trial court erred in ordering Defendants to pay all of the survey costs, to remove their bridge and two campsite structures, and to pay all court costs.

ASSIGNMENT OF ERROR NUMBER ONE:

[14-795 La.App. 3 Cir. 5] Defendants contend in their first assignment of error that the trial court erred in failing to render a decision based on the evidence of their adverse possession for thirty years of the campsite and in failing to recognize the Marshfield Canal as being the western boundary of their thirty-year adverse possession. We do not agree.

A titleholder may acquire more land than his title calls for by possessing property beyond his title without interruption and within visible bounds for thirty years. La.Civ.Code art. 794. The titleholder does not need to be in good faith or have just title to acquire the additional land. La.Civ.Code art. 3486. The party asserting acquisitive prescription bears the burden of proving all of the essential facts to support it. Phillips v. Fisher, 93-928 (La.App. 3 Cir. 3/2/94); 634 So.2d 1305, writ denied, 94-0813 (La.5/6/94); 637 So.2d 1056. The adverse possessor must prove that

Page 213

he intended to possess the property as owner. Id. " A possessor will only be considered as possessing that part of property over which he exercises actual, adverse, corporeal possession which is continuous, uninterrupted, peaceable, public, unequivocal, and within visible bounds." Id. at p. 3; 634 So.2d at 1307; La.Civ.Code art. 3476.

Crowell Land & Mineral Corp. v. Funderburk, 96-1123, pp. 3-4 (La.App. 3 Cir. 3/5/97), 692 So.2d 535, 537 (emphasis in original).

The existence of thirty-years acquisitive prescription of property by a party is a factual determination. Id. As such, prior to negating such a finding of fact under the manifest error standard, " an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous." Bonin v. Ferrellgas, Inc., 03-3024, pp. 6-7 ...


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