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Mitchem v. Soileau

Court of Appeals of Louisiana, Third Circuit

May 24, 2017

HARLEY MITCHEM
v.
LESTER SOILEAU AND JANELLA SOILEAU

         APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 74545-A HONORABLE GARY J. ORTEGO, DISTRICT JUDGE

          Guy O. Mitchell Mitchell Law Offices ATTORNEY FOR PLAINTIFF/APPELLANT: Harley Mitchem

          C. Brent Coreil ATTORNEY FOR DEFENDANTS/APPELLEES: Lester Soileau, Et Ux

          Court composed of Sylvia R. Cooks, Billy H. Ezell and Van H. Kyzar, Judges.

          SYLVIA R. COOKS JUDGE

         FACTS AND PROCEDURAL HISTORY

         Harley Mitchem (Mitchem) filed a possessory action[1] against his neighbors, Lester and Janella Soileau (Soileaus). The Soileaus and Mitchem are contiguous land owners whose respective tracts of land are bordered in part by a drainage ditch/canal (canal) maintained by the Evangeline Parish Police Jury (Police Jury). Although aware that he did not own any part of the canal, which he admits is located entirely on the Soileaus' property, Mitchem requested the Police Jury perform necessary maintenance of the canal after his property was flooded. Mitchem attributed the flooding to the poor maintenance of the drainage canal.

         Without contacting the Soileaus the Police Jury began cleaning the canal and deposited the spoil dirt on Mitchem's property as he requested. The Soileaus contacted the Police Jury and eventually agreed to allow it to continue dredging the canal with the understanding that the same amount of dirt removed from their property would be replaced on their adjoining property by the Police Jury at no cost to them. The Soileaus also hired J. Ronald Landreneau & Associates, Civil Engineers and Land Surveyors (Landreneau) to re-survey their property and remark their property line after the work on the canal was completed by the Police Jury. The land was last surveyed in 1994 by Landreneau. Landreneau placed survey markers on a line east of the canal, approximately two feet from the edge of the canal, between the canal and Mitchem's hurricane fence that ostensibly marks the edge of Mitchem's property. Mitchem, believing the survey markers to be improperly placed on his property, and thus interfering in his peaceful possession of the disputed triangular piece of property, filed this action to be restored to peaceful possession of what he claims is his property acquired by thirty-years acquisitive prescription.

         The trial court found Mitchem's petition for possession to be without merit. It also found the Soileaus "were in fact in possession of the disputed property within the year prior to the filing of these proceedings and up to the date of trail [sic]." Accordingly, the trial court dismissed Mitchem's suit with prejudice and cast all costs on Mitchem. Mitchem appeals asserting two assignments of error:

1. The District Court committed legal error when it misapplied the burden of proof by a preponderance of the evidence; it being obvious that the plaintiff proved his case by a preponderance of the evidence.
2. The District Court committed manifest error when it relied almost exclusively on the testimony of the surveyor, J. Ronald Landreneau, and further misinterpreted the testimony of Mr. Landreneau and virtually ignored other testimony and evidence presented by the plaintiff.

         ANALYSIS

         We review the trial court's ruling in a possessory action applying the manifest error standard of review. After a full review of the record we cannot say the trial court manifestly erred in concluding that Mitchem failed to carry his burden to prove that he and his ancestors in title had uninterrupted, quiet and peaceful possession of the disputed tract of land, to the boundary he claims, for over a year before his alleged possession was disturbed by Landreneau's placement of survey stubs.

An appellate court may not set aside a trial court's findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the findings of the trial court:
a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong ...

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