RUPERT GARY MADDEN, M.D. Plaintiff-Appellee
L.L. GOLSON, INC. Defendant-Appellant
from the Thirty-Ninth Judicial District Court for the Parish
of Red River, Louisiana Trial Court No. 36326 Honorable
William Ross Foote, Judge (Ad Hoc)
WIENER, WEISS & MADISON By: Frank Spruiell, Jr. Counsel
& WILHITE, LLC By: Rebecca D. Barham Philip E. Downer,
III Counsel for Appellee.
BROWN, WILLIAMS, and STONE, JJ.
defendant, L.L. Golson, Inc., appeals a judgment in favor of
the plaintiffs, Rupert Madden and Judith Madden, recognizing
their possession of land up to a fence that existed in
November 2014. For the following reasons, we affirm.
January 1991, Rupert Madden, M.D., and his wife, Judith
Madden ("Madden"), acquired tracts of land located
in Sections 17, 19 and 20, Township 14 North, Range 9 West,
Red River Parish. L.L. Golson, Inc. ("Golson"), is
the owner of a 348.57-acre tract of land in Sections 19 and
20, immediately south of the Madden property. At the time
Madden acquired the land, there was an existing fence which
had been in place for more than 30 years. The wire and post
fence ran from east to west between the Madden and Golson
tracts. In 2014, Golson commissioned a survey of its tract
prior to the installation of new fencing. The survey showed
that under the deeds the property line was the section line
between Sections 17 and 20, north of the old fence. Golson
then removed the original fence and bulldozed the vegetation
between the fence line and the Section 17/20 section line to
December 2014, the plaintiff, Rupert Madden, filed a petition
for possession, temporary restraining order, permanent
injunction and damages against the defendant, Golson. The
plaintiff alleged that the boundary between the parties'
tracts of land was established by the existing fence that had
been in place for more than 30 years before it was removed by
defendant. The original fence did not follow the section line
as surveyed. Defendant's peremptory exception of
non-joinder of a party was granted and Judith Madden was
added as a party plaintiff. The district court denied
plaintiffs' motion for partial summary judgment on the
issue of possession. At trial, the issue was whether the
activities of plaintiffs and their ancestor in title were
sufficient to establish possession of the disputed area prior
to the removal of the existing fence.
presentation of the evidence, the trial court conducted a
visual inspection of the property. In written reasons for
judgment, the trial court found that the fence line between
the parties' tracts of land had remained in the same
location in excess of 50 years at the time of defendant's
removal of the fence in 2014 and that there was insufficient
evidence to support the defendant's contention that a
wagon road created a boundary or provided evidence of fencing
sufficient to interrupt plaintiffs' possession or use of
the property up to the existing fence. The court further
found that plaintiffs exercised corporeal possession of the
disputed strip of land based on activities including
maintaining the fence line, cutting hay and hunting. The
trial court rendered judgment recognizing the plaintiffs'
possession of the property and establishing the original
fence line as the boundary between the parties' tracts of
land. Defendant appeals the partial final judgment.
defendant contends the trial court erred in finding that
plaintiffs exercised possession of the strip of land at issue
and that defendant treated the old fence as the boundary
between the parties' tracts. Defendant argues that
plaintiffs failed to satisfy their burden of proving
corporeal possession up to the fence because they did not
present evidence of public and unequivocal possession of the
disputed strip of land.
is the detention or enjoyment of a corporeal thing either
movable or immovable. La. C.C. art. 3421. Possession is a
matter of fact; nevertheless, one who has possessed a thing
for over a year acquires the right to possess. La. C.C. art.
3422. To acquire possession, one must intend to possess as
owner and must take corporeal possession of the thing. La.
C.C. art. 3424. Corporeal possession is the exercise of
physical acts of use, detention or enjoyment over a thing.
La. C.C. art. 3425. 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 that he actually
possesses. La. C.C. art. 3426.
plaintiff has the burden of proving the essential elements
necessary to maintain a possessory action. The requisite
possession to support a possessory action is identical to the
possession required to commence the running of acquisitive
prescription. Strain v. Aaron, 49, 647 (La.App. 2
Cir. 2/27/15), 162 So.3d 553. 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. La. C.C. art. 3476. The ...