Chaney, Bailey E.

English

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Louisiana Law ReviewVolume 13 | Number 4May 1953Prescription Under Article 852Bailey E. ChaneyThis Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationBailey E. Chaney, Prescription Under Article 852, 13 La. L. Rev. (1953)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol13/iss4/5Prescription Under Article 852Bailey E. Chaney*Article 852, Louisiana Civil Code of 1870: "Whether thetitles, exhibited by the parties, whose lands are to be limited,consist of primitive concessions, or other acts by which propertymay be transferred, if it be proved that the person whose title isof the latest date, or those under whom he holds, have enjoyed,in good or bad faith, uninterrupted possession during thirty years,of any quantity of land beyond that mentioned in his title, hewill be permitted to retain it, and his neighbor, though he havea more ancient title, will only have a right to the excess; for ifone can not prescribe against his own title, he can prescribebeyond his title or for more than it calls for, provided it be bythirty years possession." (Italics supplied.)One faced with a dispute between adjacent property ownersover a strip of land between them should consider Article 852 asa possible means of establishing a prescriptive title. UnderArticle 3499,1 in the title of the code on prescription eo nomine,2tacking of successive possessions3 might not be permitted, unlessthe land in dispute is included in the title description of the per-son pleading the prescription.4 Under Article 852 tacking of suc-* Member, Baton Rouge Bar.1. Art. 3499, La. Civil Code of 1870: "The ownership of immovables isprescribed for by thirty years without any need of title or possession in goodfaith." See also Arts. 3458, 3475, and 3500, La. Civil Code of 1870.2. Book III, 'Of the Different Modes of Acquiring the Ownership ofThings," Title XXIII, "Of Occupancy, Possession and Prescription," Chapter3, "Of Prescription," Arts. 3457 et seq.3. Art. 3493, La. Civil Code of 1870: "The possessor is allowed to makethe sum of possession necessary to prescribe, by adding to his own possessionthat of his author, in whatever manner he may have succeeded him, whetherby an universal or particular, a lucrative or an onerous title."Art. 3494, La. Civil Code of 1870: "By the word author in the precedingarticle, is understood the person from whom another derives his right,whether by universal title, as by succession, or by particular title, as by sale,by donation, or any other title, onerous or gratuitous."Thus, in every species of prescription, the possession of the heir may bejoined to that of the ancestor, and the possession of the buyer to that ofthe seller."Art. 3495, La. Civil Code of 1870: "But to enjoy this advantage, the differ-ent possessions must have succeeded each other without interval or interrup-tion."4. Knight, Tacking of Possession for Acquisitive Prescription, 8 LouIsiANA[582)1953] PRESCRIPTION UNDER ARTICLE 852 583cessive possessions is permitted, whether or not the land in dis-pute is mentioned in the title description of the person pleadingArticle 852.5It would appear that although Article 852 is located in thetitle on surveying,6 that article, like Article 3499, provides a rulefor the acquisition of land by thirty years possession in good orbad faith.7 Article 852 should be usable, not only by a plaintiff"or defendant9 in a boundary action, but also by any party wish-ing to establish ownership of a disputed strip of land in anyaction proper for that purpose.10That Article 852 is a rule for the acquisition of ownership ofland can hardly be questioned.1 ' Either the word "prescribe" inLAw REVIEW 105 (1947); Beam v. Dudding, 43 So. 2d 73 (La. App. 1949); Sibleyv. Pierson, 125 La. 478, 51 So. 502 (1910).5. Knight, supra note 4, at 107, n. 8; Opdenwyer v. Brown, 155 La. 617,99 So. 482 (1924).6. Book II, "Of Things, and of the Different Modifications of Ownership,"Title V, "Of Fixing the Limits, and of Surveying of Lands," La. Civil Codeof 1870.7. After all, there is a sound public policy inherent in the recognitionand confirmation of a boundary which has existed for more than thirty years,irrespective of the language used in title descriptions. As the organ of theLouisiana Supreme Court stated in overruling the contrary case of Vicks-burg, Shreveport and Pacific Railway Co. v. Le Rosen, 52 La. Ann. 192, 26 So.854 (1899):"... [I]f perchance it should be discovered that Bienville has misread theplan of his engineer and located his 'place d'armes' a few hundred feethigher up, or lower down, the Mississippi than such plan calls for, there isno title to a foot of land in the city of New Orleans, which would not call forcorrection; and since the land which each successive purchaser took pos-session of would not be the same land which his title called for, it follows(if we accept the Le Rosen case) that he could not 'tack' onto his ownpossession that of his supposed author, and thus could not protect his boun-daries by the prescription of thirty years. That would be against all commonsense; and law is common sense, as far as legislators, courts, and men of lawwill let it remain so." Opdenwyer v. Brown, 155 La. 617, 99 So. 482, 485(1924).8. Broussard v. Winn, 41 So. 2d 486 (La. App. 1949).9. Vicknair v. Langridge, 57 So. 2d 714 (La. App. 1952); Opdenwyer v.Brown, 155 La. 617, 99 So. 482 (1924).10. Rock v. Varuso, 61 So. 2d 741 (La. App. 1952) (petitory action). Butsee Franz v. Mohr, 186 So. 114 (La. App. 1939), holding that the issue oftitle could be litigated only in a petitory action, and the subsequent case ofFranz v. Mohr, 4 So. 2d 584 (La. App. 1941), where, in a petitory action,defendant was finally permitted to plead the prescription of ten yearsacquirendi causa in good faith.11. The redactors' comment on the proposed Art. 848, La. Civil Code of1825 (now Art. 852, La. Civil Code of 1870) is: "The rules of prescriptioncertainly require, that one cannot prescribe against his own title. (Code Art.48, p. 485). But this means, that one cannot change at his own pleasure thecause and principle of his possession, and it does not prevent a person fromprescribing beyond his title. Thus, it is conceded that the purchaser of apiece of land designated as containing one arpent can, by prescription,extend his right to a greater quantity, as a stranger could do without title,that is by possession of thirty years." 1 Louisiana Legal Archives 101.LOUISIANA LAW REVIEW [VOL. XIIIthe article is comprehended by the definition of the word "pre-scription" in Article 3457,12 or the redactors said one thing andmeant another."But the authors of our Code were men of ability andlearning; their ideas of the law were exact and not hazy;they understood perfectly the language they used, andwrote what they wrote, not hastily, but with extreme care.' 3Jurisprudence interpreting Article 852 reveals that althoughthe article does not in terms mention visible bounds,14 cases inwhich the article has been applied unanimously have involvedsuch bounds.'5 Further, although the article in terms seems torequire that the party pleading the article should have the latestdated title, the writer has found no case in which title dateswere compared or discussed. However, the leading case of Opden-wyer v. Brown16 was a case where the defendant's title predatedplaintiff's title by ten years; defendant pleaded Article 852 andwon the lawsuit.17The rules of possession' s under Article 852 and. Article 3499appear to be the same. One may possess through others; 19 onewho does not have the intention to possess as owner cannot pleadprescription under the article even in a boundary action ;20 and12. Art. 3457, La. Civil Code of 1870: "Prescription is a manner of acquir-ing the ownership of property, or discharging debts, by the effect of time,and under the conditions regulated by law."Each of these prescriptions has its special and particular definition."Art. 3458, La. Civil Code of 1870: "The prescription by which the owner-ship of property is acquired, is a right by which a mere possessor acquiresthe ownership of a thing which he possesses by the continuance of his pos-session during the time fixed by law."13. Opdenwyer v. Brown, 155 La. 617, 99 So. 482, 484 (1924).14. Such as are suggested by Art. 826, La. Civil Code of 1870.15. Vicknair v. Langridge, 57 So. 2d 714 (La. App. 1952); Tate v. Cutrer,53 So. 2d 285 (La. App. 1951); Picou v. Curole, 44 So. 2d 354 (La. App. 1950),affirmed on rehearing at 49 So. 2d 620 (La. App. 1950); Crow v. Braley, 47So. 2d 357 (La. App. 1950); Broussard v. Winn, 41 So. 2d 486 (La. App. 1949);Henly v. Kask, 11 So. 2d 230 (La. App. 1942); Latiolais v. Robert, 8 So. 2d347 (La. App. 1942); De Bakey v. Prater, 147 So. 734 (La. App. 1933); Opden-wyer v. Brown, 155 La. 617, 99 So. 482 (1924).16. 155 La. 617, 99 So. 482 (1924).17. Accord: Picou v. Curole, 44 So. 2d 354 (La. App. 1950); affirmed onrehearing at 49 So. 2d 620 (La. App. 1950); Henly v. Kask, 11 So. 2d 230(La. App. 1942).18. Arts. 3426 et seq., La. Civil Code of 1870.19. Arts. 3433 and 3438, La. Civil Code of 1870; Picou v. Curole, 44 So. 2d354 (La. App. 1950), affirmed on rehearing at 49 So. 2d 620 (La. App. 1950).20. Arts. 3436 and 3441, La. Civil Code of 1870; Aubrey v. Deggs, 165 So.719 (La. App. 1936); Simmons v. Miller, 170 So. 521 (La. App. 1936). Cf. Cityof New Orleans v. Shakespeare, 39 La. Ann. 1033, 3 So. 346 (1887).PRESCRIPTION UNDER ARTICLE 852one whose possession was corporeally begun may preserve it byexternal signs. 21If possession has been disturbed within a year prior to suit,a possessory action is available.22 Injunctive relief may be soughtto prevent any further disturbance of possession.23 A boundaryaction could be cumulated, with one's claim under Article 852set out.If one's possession has been ousted for more than a yearprevious to suit, a boundary action and Article 852 may be pref-erable to a petitory action.24 Particularly is this true whendefects in one's title preclude successful resort to a petitory action.In a boundary action the burden of proof rests on each party toprove his boundary; titles are consulted merely to assist inestablishing the fact of possession.2 5 In other words it is pref-erable for the court to probe possession rather than title of one'sself and one's ancestor's in title.If one is faced with the defense of a petitory action, it wouldappear that a boundary action and Article 852 could be properlypleaded in a reconventional demand.26 Aside from ownership ofthe strip of land in dispute, titles of the respective parties areseldom at issue.2 7 In reality only the proper location of a boun-dary is at, issue. Is not one element of plaintiff's cause of actionin a petitory action the delimitation of the title sued upon? 28Regardless of the state of the remainder of his title, if plaintiffin a petitory action claims a boundary which includes land lostby the effect of prescription under Article 852, then plaintiffshould not be permitted to regain the land by his form of actionalone. Since the outcome of a boundary action would give the21. Arts. 3442, 3443, 3444 and 3501, La. Civil Code of 1870. Suggested inVicknair v. Langridge, 57 So. 2d 714, 716 (La. App. 1952); Schillings' Heirs v.Kent Piling Co., 51 So. 2d 329, 331 (La. App. 1951) (the latter not a boundaryaction).22. Arts. 4, 6, and 46-60, La. Code of Practice of 1870. Damages aredemandable for the trespass. Neal v. Farm Development Corporation, 42 So.2d 319 (La. App. 1949).23. Arts. 298 (3) and (5), La. Code of Practice of 1870.24, Arts. 5, and 43-45, La. Code of Practice of 1870.25. Davis v. Moore, 156 La. 488, 100 So. 691 (1924).26. Art. 375, La. Code of Practice of 1870, as amended by La. Act 50 of1886.27. Hunter v. Forest, 195 La. 973, 197 So. 649 (1940); Boanno v. Cooper,138 So. 174 (La. App. 1931); Meyer v. Comegys, 147 La. 851, 86 So. 307 (1920).Cf. Thompson v. Futral, 136 So. 654 (La. App. 1931).28. Alford v. Alford, 141 So. 479 (La. App. 1932); Etchison v. RichardsonOil Co., 6 La. App. 404 (1927); Russell v. Producers Oil Co., 143 La. 217, 78So. 473 (1918).1953]586 LOUISIANA LAW REVIEW [VOL. XIIIland to defendant, it is not logical to permit a plaintiff to escapesuch an outcome by resort to the petitory action. It is submitedthat even should such a petitory actiorn be filed by one who wasunsuccessful in a prior boundary action, an exception of no causeof action 9 or a plea of res adjudicata s ° should be sustained.In conclusion it is submitted as follows:(1) Article 852 states a rule of prescription by which onemay acquire ownership of land outside one's titledescription if the land has been possessed within vis-ible bounds for a period in excess of thirty years; and,(2) Article 852 can be utilized in any action proper todetermine ownership or the right to possession of suchland.29. Arts. 345 and 346, La. Code of Practice of 1870.30. Ibid.; Arts. 2286 and 3556 (31), La. Civil Code of 1870.

Prescription Under Article 852

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Prescription Under Article 852

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