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Perkins v. Fowler

Court of Appeals of Louisiana, Third Circuit

November 23, 2017

JAMES C. PERKINS, ET AL
v.
ANDREW J. FOWLER, ET AL ANDREW J. FOWLER, ET AL
v.
JAMES C. PERKINS, ET AL

         APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NOS. 250, 334, 250, 346 HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

          Richard A. Rozanski Wheelis & Rozanski COUNSEL FOR PLAINTIFF/APPELLANT: James C. Perkins

          Brian K. Thompson Thompson Law Firm, LLC COUNSEL FOR DEFENDANT/APPELLEE: Andrew J. Fowler

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Shannon J. Gremillion, Judges.

          SYLVIA R. COOKS JUDGE.

         This appeal arose from the trial court's judgment in favor of defendants/appellees, Andrew Fowler and the Unopened Succession of Blanch Deramus Fowler, granting the motion for summary judgment recognizing their right to the possession of a thirty-two foot tract of land. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         On June 12, 1963, James C. Perkins and Emily L. Perkins, purchased a 10.2 acre tract of land located in Lecompte, Louisiana. The Perkins established this property as their homestead, clearing the land and building a home. They maintained a constant presence on the land from that date to the present.

         In 2014, Andrew Fowler, who lived on land next to the Perkins, began removing fencing and trees on property the Perkins alleged belonged to them. The Perkins eventually contacted the Rapides Parish Sheriff's Department in connection with this activity. In connection with this, on June 11, 2014, James C. Perkins, as Trustee of the Living Trust of James and Emily Perkins, filed a "Petition for Possession, Temporary Restraining Order, Preliminary and Permanent Injunction and Damages." At issue was a thirty-two foot strip of land that bordered the Perkins property on the south side. In the possessory action, it was claimed the Perkins had been in "actual physical, corporeal possession, with the intent as owner" of the property in question "for a period in excess of one (1) year prior to any disturbance in fact by Defendant." A Temporary Restraining Order and Rule to Show Cause was issued by the district court on June 11, 2014.

         In their suit, the Perkins claimed that, for seventy years, there existed a barbed wire fence encompassing the Perkins' tract of land. They further asserted this fence was maintained and utilized by them, but that over time trees began to grow along the property line, and the fence began to decay. They assert the tree line essentially became the fence line of the property, and they would connect the barbed wire fence to the trees to keep it upright. They maintained at all times they have lived on the property and possessed up to the tree line as owners.

         In response, Fowler answered the Perkins suit and also, on October 14, 2014, Fowler filed a separate "Petition for Possession, Preliminary and Permanent Injunction and Damages." In that suit, Fowler claimed a disturbance in corporeal possession as the owner of five contiguous tracts of land located in Rapides Parish and including the thirty-two foot strip of land in question.

         The two suits were consolidated by the district court as set forth in the petition. Thereafter, the Perkins filed an amended petition asserting they were "owners" of the property and further prayed for relief "declaring petitioner to be the exclusive owner of all of the land enclosed by the boundaries set forth on the Phillips survey and in accordance with petitioners recorded title."

         On December 5, 2016, Fowler filed a Motion for Summary Judgment, contending that there was no disputed material facts that Perkins converted his possessory action to a petitory action and therefore, pursuant to La.Code Civ.P. art. 3567, judicially confessed Fowler's possession of the disputed property. Perkins filed an opposition to Fowler's motion for summary judgment, maintaining the original possessory action was converted into a declaratory action that did not confess possession in the adverse party.

         The parties each introduced surveys that were conflicting as to who owned the thirty-two foot strip of land, as well as memoranda in support of their respective positions on whether summary judgment was appropriate. After a hearing on the motion, the trial court rendered judgment in favor of ...


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