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Franks Investment Company, L.L.C. v. Shaw

Court of Appeals of Louisiana, Second Circuit

April 10, 2019


          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 592278, Honorable Ramon Lafitte, Judge

          COOK, YANCEY, KING & GALLOWAY, John T. Kalmbach, David J. Hemken, Counsel for Appellant

          SEABUAGH, JOFFRION, SEPULVADO & VICTORY, LLC, B. Lee Carr, Jr., Counsel for Appellees

          Before STONE, McCALLUM, and BLEICH (Pro Tempore), JJ.

          STONE, J.

         The plaintiff, Franks Investment Company, L.L.C. ("Franks"), appeals the trial court judgment which found that the defendants, Melba A. Shaw ("Melba") and Linda Shaw Porter ("Linda," or collectively referred to as "the Shaws"), acquired ownership of a disputed strip of land by virtue of 30-years' acquisitive prescription. For the following reasons, we affirm.


         This suit began as a boundary action instituted by Franks against the Shaws. Franks and the Shaws own neighboring tracts of land along Leonard Road in southern Caddo Parish. The plaintiff owns 432.617 acres of undeveloped land used for farmland ("Franks Tract"). The defendants own an adjacent 3-acre tract used for residential purposes ("Shaw Tract"). Both Franks and the Shaws' predecessors in interest purchased to a common boundary line represented by an old fence line. There is a disputed portion of land (the "disputed area") encompassing what the plaintiff asserts is the southeast portion of the Franks Tract, and what the defendants contend is the western portion of the Shaw Tract.

         The Shaw Tract was originally purchased on January 20, 1977 by the Shaws' parents, William Shaw ("William") and Opal Shaw ("Opal," or collectively referred to as "the elder Shaws"), and the owners of the Franks Tract was owned by the Webb family. The property description in the elder Shaws' deed was based on a 1960 survey prepared by Paul Barber ("1960 Barber Survey"). The 1960 Barber Survey showed the western boundary of the Shaw Tract to be along a fence line. Currently, the fence identified in the 1960 Barber Survey no longer exists; however, an old fence post and "H brace" remains visible. In addition to the old fence line, a north-south row of 50-plus-year-old pecan trees runs along the common boundary line between the two tracts. After the purchase, the elder Shaws began construction of a house, wooden metal tractor shed, and well. The construction was completed in 1978, and the tractor shed was built partially on the area in dispute. They also used the disputed area to go from Leonard Road to the northern portions of the Shaw Tract.

         In 1977, the elder Shaws had three adult children: Melba, Linda, and William A. "Toby" Shaw ("Toby"), who visited but did not live on the property. After William passed away in 1987, Opal continued to live on the property and eventually remarried Jim Rhinehart ("Mr. Rhinehart").

         Franks did not acquire the Franks Tract until 1998. At the time of acquisition, Franks conducted a boundary survey which showed the common boundary between the Franks Tract and the Shaw Tract to be the same north-south fence line identified in the 1960 Barber Survey. Since the purchase of the Franks Tract, Franks has leased the surface to various tenant farmers and the minerals to various mineral lessees.

         Between the years 2003 and 2004, the City of Shreveport ("City") and the Port of Caddo/Bossier entered into a joint venture for the installation of a 24-inch water main located from Highway 1 to Flournoy Lucas Road. Franks and Opal executed servitude agreements of their respective tracts with the City in January and February of 2003.

         Once Opal died in 2011, the three adult Shaw children became co-owners of the Shaw Tract. Also, in 2011, Melba moved into the house located on the Shaw Tract where she has continued to reside to this day. In 2013, Franks' property manager, Jacob Herrington ("Herrington"), observed a dirt road or worn area on the Franks Tract immediately west of the row of pecan trees, and notified the CEO of Franks. They subsequently hired a licensed surveyor, Doug Filler ("Filler"), who reviewed the property, staked the property line, and generated a survey plat showing the boundary between the Franks Tract and the Shaw Tract ("2013 Filler Survey"). On January 9, 2014, Herrington sent the 2013 Filler Survey to Melba and pointed out that a portion of the Shaws' shed appeared to straddle the boundary line and proposed a meeting to discuss this issue.

         Subsequently, on January 27, 2014, the three Shaw children sent Herrington a letter informing him that they have occupied the property up to the pre-existing fence line for more than 30 years. Over a month later, on March 11, 2014, Toby sold his one-third interest in the Shaw Tract to Melba using the same property description contained in his parents' 1977 deed. On July 10, 2014, Herrington sent a letter to Melba explaining: (1) that the 2013 Filler Survey and the 1960 Barber Survey fully reconciled with each other; (2) that the two surveys established a common, north-south boundary line along the row of pecan trees (where the old fence line was previously located); and (3) that there is no evidence of any other existing or former fence line between the two tracts.

         Photographs of the remnants of the old fence and a copy of the 2013 Filler Survey with a superimposed image of the 1960 Barber Survey were also enclosed with the letter. Herrington indicated that Franks intended to build a fence between the two tracts. Herrington further offered to move the encroaching shed, at Franks' expense, to a location of the Shaws' choosing but the Shaws refused. On April 19, 2016, Franks filed a boundary action citing Melba and Linda as defendants, and requesting that the court fix the common boundary line between the two tracts in accordance with the 2013 Filler Survey. On May 13, 2016, the Shaws answered the petition, contending that the boundary line, per the parties' respective titles, was farther to the west of the boundary line claimed by Franks.

         Trial was held on March 16 and 17, 2017, where a total of eight witnesses testified before the court. During Franks' case in chief, Herrington was the first witness to testify. He testified that he first became concerned about a possible encroachment issue after noticing a dirt roadway had been utilized. He then notified his boss, and hired Filler to conduct a boundary survey. Based on the survey rendered by Filler, Herrington identified the property line between the Franks Tract and the Shaw Tract as an old, pre-existing fence line, and he stated that he found part of an old 'H ...

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