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Madden v. L.L. Golson, Inc.

Court of Appeals of Louisiana, Second Circuit

July 5, 2017

RUPERT GARY MADDEN, M.D. Plaintiff-Appellee
v.
L.L. GOLSON, INC. Defendant-Appellant

         Appealed 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 for Appellant.

          DOWNER & WILHITE, LLC By: Rebecca D. Barham Philip E. Downer, III Counsel for Appellee.

          Before BROWN, WILLIAMS, and STONE, JJ.

          WILLIAMS, J.

         The 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.

         FACTS

         In 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 the north.

         In 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.

         Following 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.

         DISCUSSION

         The 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.

         Possession 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.

         The 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 ...


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