Pierson, Allen B., Jr.

English

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Louisiana Law ReviewVolume 18 | Number 4June 1958Property - Thirty-Year Prescription in BoundaryActionAllen B. Pierson Jr.This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationAllen B. Pierson Jr., Property - Thirty-Year Prescription in Boundary Action, 18 La. L. Rev. (1958)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol18/iss4/15LOUISIANA LAW REVIEWaccretion so formed does not belong to the riparian ownerswould remove hundreds of acres from private use and owner-ship to lie idle until the state should see fit to make some useof them. The criterion announced by the court in the instantcase provides a fair, workable guide for future litigation on thissubject.15Sidney D. FazioPROPERTY - THIRTY-YEAR PRESCRIPTION IN BOUNDARY ACTIONIn accordance with an informal survey defendant's author intitle erected a fence in 1904 between his land and that now be-longing to the plaintiff. Upon discovering that this fence en-croached on his land, plaintiff brought suit under Article 823which provides for judicial determination of boundaries in cer-tain situations. Defendant contended that the fence line shouldbe recognized as the boundary under the provisions of Article852 relative to thirty year boundary prescription.' After re-versing the trial court on original hearing, the court of appealreversed itself on rehearing and affirmed judgment for theplaintiff, holding that under Article 852 mutual consent wasnecessary to establish a boundary. 2 The Supreme Court grantedwrits and held, on rehearing, reversed for defendant. Uninter-rupted possession of land for thirty years beyond title and up toa visible separation is sufficient under Article 852 to establish aboundary at the line of the visible separation. Mutual consent tosuch a boundary is not necessary. Sessum v. Hemperley, 233 La.444, 96 So.2d 832 (1957).At French law 3 any possessor may have his ideal ruralbounds judicially determined at any time, provided there hasbeen no written agreement between the parties fixing a bound-15. This case is also noted in 32 TUL. L. REV. 319 (1958).1. "Whether the titles, exhibited by the parties, whose lands are to be limited,consist of primitive concessions or other acts by which property may be trans-ferred, if it be proved that the person whose title is of the latest date, or thoseunder whom he holds, have enjoyed, in good or bad faith, uninterrupted posses-sion during thirty years, of any quantity of land beyond that mentioned in histitle, he will be permitted to retain it, and his neighbor, though he have a moreancient title, will only have a right to the excess; for if one can not prescribeagainst his own title, he can prescribe beyond his title or for more than it callsfor, provided it be by thirty years possession."2. Sessum v. Hemperley, 83 So.2d 546 (La. App. 1955).3. 1 ENCYCLOPtDiE DALLOZ, DROIT CIVIL, "Bornage" nos 4047 (1951) ; 2CODE CIVIL ANNOTA art. 646, p. 81, n. 100 (1935). See also AUBRY ET RAU,COURS DE DROIT CIVIL FRANCAIS, "Dus homage," § 199 (6th ed. 1935) ; 3 PLANIOLET RIIPERT, TRAITt PRATIQUE DE DROIT CIVIL FRANQAIS 43142 (2d ed. 1952).[Vol. XVIIINOTESary. Physical bounds are presumed correct and are not uncer-tain, though they are open to attack. However, if the markersare ancient or if there has been adverse possession in accordwith them for thirty years or more the action cannot be success-fully brought. Mutual consent to the establishment of themarkers is not required. The action also may be successfullymaintained if bounds, once determined, are lost. At commonlaw4 the courts recognize a doctrine of adverse possession whichrequires open, notorious, and continuous possession of specificlands for a statutory period (usually twenty years), and ahostile intent to possess as owner, with or without knowledgeof the encroachment. Some common law courts also accept thedoctrine of acquiescence, which requires mutual recognition ofbounds, and that the bounds be in doubt or dispute at the timethe statute of limitations begins to run.5In Louisiana boundaries may be judicially determined inthree basic situations: where no bounds have ever been estab-lished, where bounds once established have been lost, and wherebounds have been incorrectly established. In the first situationthe bounds must be determined in accordance with the writtentitles6 and in the second they must be redetermined and placedwhere they formerly stood.7 In neither of these situations willprescription run so as to prevent the bringing of the boundaryaction." Conceivably, incorrect bounds could be established inany one of three ways. If fixed judicially, the decision will be-come res judicata in one year, and may be attacked within thatperiod only for fraud.9 Boundaries may be established extrajudicially by mutual consent or' ° in accordance with a formal4. For general discussion, see BROWN, BOUNDARY CONTROL AND LEGAL PRIN-CIFLES 60 (1957).5. See Comment, Real Property: Acquiescence in Lieu of Adverse Possessionin Boundary Line Gases, 8 OiuA. L. REv. 486 (1955), and cases cited therein.6. LA. CIVIL CODE arts. 823, 845 (1870).7. Zeringue v. Harang, 17 La. 849 (1841).8. LA. CIVIL CODE art. 825 (1870). Accord: Opdenwyer v. Brown, 155 La.617, 621, 99 So. 482, 483 (1924): "As long as there exist no physical bounds,whether because none have ever been placed or because those once placed havedisappeared, the action to place or replace them cannot be prescribed against."9. LA. CODE OF PRAATIC art. 613 (1870). Accord: Sessum v. Hemperley,233 La. 444, 96 So.2d 832 (1957).10. Article 832 requires that extra-judicial bounds be fixed by mutual consentand Article 833 adds the requirement of a formal survey. But courts have modi-fied these provisions, allowing a 'boundary to stand if either mutual consent or alo.mal survey can be shown. The prescription of ten years under Article 853 hasboen applied in both cases, though this latter article contemplates a formal survey.See LeBlanc v. Barrios, 89 So.2d 447, 453 (La. App. 1956) (boundary never"fixed or mutually agreed upon") ; Arabie v. Terrebonne, 69 So.2d 516 (La. App.1953) (neither survey or consent shown) ; Picou v. Curole, 44 So.2d 354 (La.19581LOUISIANA LAW REVIEW [Vol. XVIIIsurvey. In either case, the action to correct bounds so estab-lished will prescribe in ten years.1 The third possibility is theextra judicial fixing of bounds by the erection and maintenanceof a visible separation by one party for thirty years. However, auniform line of courts of appeal decisions has refused to acceptthis method as a basis for starting prescription in Louisianaand has required consent by both parties or acts indicating ac-quiescence to the separation by the party whose lands are en-croached on before prescription would commence.' 2 As a directresult of these decisions mutual consent became a requirementto begin prescription under Article 852 as well as under Article853, which deals with the rectification of an error in establish-ing boundaries.The instant case rejects mutual consent as a requirement tobegin boundary prescription of thirty years under Article 852.Relying on the language of the Code the court outlines the tworequirements to begin this prescription: a visible separation anduninterrupted possession for thirty years beyond the possessor'stitle. 13 The courts appear willing to accept any reasonablemarker as a sufficient visible separation,1 4 having read that re-quirement into Articles 852 and 853. Where there has been noseparation of the lands, the action in boundary will not pre-scribe, although lands may be acquired by thirty-year prescrip-App. 1950) (boundary must be fixed by survey or consent) ; Blanchard v. Mon-rose, 12 La. App. 503, 125 So. 891 (La. App. 1930) (Article 853 not applicablewithout survey or active acquiescence).11. LA. CrvIL CODE art. 853 (1870).12. See Williams v. Bernstein, 51 La. Ann. 115, 25 So. 411 (1899) (land heldin occupancy until adverse possession recognized by neighbor) ; LeBlanc v. Bar-rios, 89 So.2d 447 (La. App. 1956) (illogical to believe crooked ditch was con-sidered as boundary in spite of cultivation up to it) ; Beene v. Pardue, 79 So.2d356 (La. App. 1955) (fence not evidence of adverse ownership without recogni-tion as boundary) ; Arabie v. Terrebonne, 69 So.2d 516 (La. App. 1953) (consentrequired under Articles 852 and 853) ; Simmons v. Miller, 170 So. 521 (La. App.1936) (must show fence is an extra-judicial boundary by consent).13. "First, there must be a visible boundary, artificial or otherwise; second,there must be actual uninterrupted possession, either in person or through an-cestors in title, for thirty years or more of the land extending beyond that de-scribed in the title and embraced within the visible bounds." Sessum v. Hemperley,233 La. 444, 476, 96 So.2d 832, 843 (1957).14. See Blanc v. Duplessis, 13 La. 334 (1839) (oak tree plus acts of posses-sion proven by parol sufficient) ; LeBlanc v. Barrios, 89 So.2d 447 (La. App.1956) (cultivation to crooked ditch not sufficient for lack of consent) ; Vicknairv. Langridge, 57 So.2d 714 (La. App. 1952) (remains of old fence sufficient,possibly old post holes would be) ; Strickland v. Butler, 64 So.2d 22 (La. App.1953) (cultivation to fences along lane sufficient) ; Harmon v. Dufilho, 139 So.530 (La. App. 1932) (fence taken in by canal sufficient) ; New Orleans v. JosephRathborne Land Co., 209 La. 93, 108, 24 So.2d 275, 280 (1945) (artificialmarkers "consist of marked lines, stakes, roads, fences, buildings, and similarmatters marked or placed on the ground by the hand of man").NOTEStion acquirendi causa under Article 3499.15 Boundary prescrip-tion and prescription acquirendi causa are similar. The testsapplied to determine what constitute acts of possession underArticles 852 and 349916 should not differ materially except thatto prescribe against an action in boundary there must be avisible separation between the two tracts of land. However,there is a difference between the acts necessary to interruptprescription of the action in boundary and those necessary tointerrupt prescription acquirendi causa by acknowledgment. Acourt of appeal case 7 indicated that informal acknowledgmentof an encroachment would not be sufficient to interrupt pre-scription under Article 853 and place the possessor in the posi-tion of a mere occupant. But verbal acknowledgment is suf-ficient to interrupt prescription acquirendi causa under Article3520.18On rehearing the instant case the Supreme Court did notfind it necessary to consider the ten-year prescription estab-lished by Article 853. However, this decision apparently wouldnot reject the prior jurisprudence which requires mutual con-sent to start the prescriptive period in Article 853. It appearsthat this shorter period could have been found applicable byfinding mutual consent to the fence as a boundary for any ten-year period or mutual reliance on a formal survey for ten years.Louisiana courts have consistently held that mutual consent isnot to be implied from passive failure to object to a visibleseparation. 9 There must be an "active acquiescence with therealization that they [are] actually consenting to a boundary15. See Roscue v. Mitchell, 190 La. 758, 182 So. 740 (1938) (irregular fenceignored but acts of possession good for thirty years prescription under Article3499); Odenwyer v. Brown, 155 La. 617, 99 So. 482 (1924) (prescription ofArticle 852 is not same as prescription acquirendi causa) ; Duplantis v. Locascio,67 So.2d 125 (La. App. 1953) (prescription acquirendi causa applied to cultivatedland); Schilling's Heirs v. Kent Piling Co., 51 So.2d 329 (La. App. 1951) (ap-plied prescription acquirendi causa requiring corporeal possession).16. General article for principle of thirty-year acquisitive prescription. "Theownership of immovables is prescribed for by thirty years without any need oftitle or possession in good faith."17. DeBakey v. Prater, 147 So. 734 (La. App. 1933).18. See Blades v. Zinsel, 15 La. App. 104, 130 So. 139 (1930) (offer to buywas acknowledgment and prescription under Article 3500 was interrupted there-by) ; A. M. Edwards Co. v. Dunnington, 58 So.2d 225 (La. App. 1952) (verbalacknowledgment sufficient under Article 3520 to interrupt prescription).19. See Opdenwyer v. Brown, 155 La. 617, 99 So. 482 (1924) ; Owens v. T.Miller & Sons Building Supply Co., 101 So.2d 773 (La. App. 1958) (plea of ten-year prescription under Article 853 based on visible bounds fixed by mutual ac-quiescence overruled); Picou v. Curole, 44 So.2d 354 (La. App. 1950) (adversepossession no indication of consent); Kobler v. Koch, 6 So.2d 55 (La. App.1941).1958]LOUISIANA LAW REVIEWand acquiescing in the location thereof. '20 When the requisiteconsent is not present, the possessor is considered to hold as anoccupant and not by adverse possession as is required by Article853.21 In this situation it will be necessary to establish thirtyyears possession as a prerequisite to prescription under Article852.Allen B. Pierson, Jr.PROPERTY - TRANSFER OF IMMOVABLE COMMUNITY PROPERTY -ESTOPPEL AND THE PAROL EVIDENCE RULEPlaintiff brought suit to be declared owner of land which hiswife had purchased during marriage and sold to a third partywithout his written consent. There was no recital in the act ofsale that the property was purchased by the wife in her name asher separate property, and the district court, applying the pre-sumption that such property was part of the community ofacquets and gains, annulled the purported sale because it lackedthe husband's signature. The court of appeal held, reversed.Since the husband was instrumental in arranging the sale bythe wife, was actually present at its execution and received apart of the consideration, he ratified the act of sale and couldnot sue to rescind it because his signature was absent. Thevendee was not acquiring property by estoppel since the wifehere had a deed in her name. Cato v. Bynum, 98 So.2d 257 (La.App. 1957).The opinion in the instant case lends itself to two distinctinterpretations. On first reading it would appear that the hus-band's signature is being supplied by parol testimony, under aplea of estoppel, to pass title to community property of whichthe wife is record owner. On the other hand, the court's lan-guage may easily be taken to mean that the husband, by hisconduct at the time of the sale, is estopped to assert the char-acter of the property in question as community, thus making asale by the wife alone translative of title, since a sale of theseparate property of the wife does not require the signature ofthe husband. The first of these interpretations involves a con-sideration of the parol evidence rule.It is the generally accepted principle in Louisiana that title20. Blanchard v. Monrose, 12 La. App. 503, 506, 125 So. 891, 893 (1930).21. Williams v. Bernstein, 51 La. Ann. 115, 25 So. 411 (1899).[Vol. XVIII

Property - Thirty-Year Prescription in Boundary Action

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Property - Thirty-Year Prescription in Boundary Action

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