Court: Louisiana Court of Appeal; March 27, 1983; Louisiana; State Appellate Court
Walter M. Hinton filed a petition in the Louisiana Court of Appeal seeking the appointment of a surveyor to establish the boundary between his property and that of defendants Geneva Terral and Geneva Terral Weaver. The defendants contested the request, claiming that a fence separating the properties for over 30 years constituted the legal boundary due to acquisitive prescription. The trial court appointed a surveyor, ruled against the defendants' claims of acquisitive prescription, and declared the survey legally binding, leading to the defendants' appeal.
The property history traces back to William Terral, who owned contiguous tracts before his death in 1917, after which his heirs partitioned the land. R.L. Terral received one 40-acre tract while Lizzie Terral Allen received an adjacent one. Over the years, the ownership of these tracts changed hands, ultimately leading to Hinton owning the land south of the defendants' property.
In 1979, the defendants erected a fence 40 feet south of the ideal boundary, encroaching on Hinton's property. In response, Hinton sought judicial intervention to establish the correct boundary and remove the fence. The court's decision affirmed Hinton's property rights and the official boundary as determined by the survey.
Defendants claimed ownership of a fence they constructed based on 30 years of acquisitive prescription, arguing that a judicial survey was unnecessary. On March 6, 1980, the trial court appointed surveyor William T. Lowe to establish the boundary between the plaintiff's and defendants' properties. Lowe determined the boundary and documented his findings. The trial court evaluated the accuracy of Lowe's boundary and the defendants' acquisitive prescription claims in June 1982, ultimately ruling in favor of the plaintiff. The court dismissed the defendants' claims and upheld the boundary fixed by Lowe as legally binding.
Under Louisiana law, landowners have an imprescriptible right to demand judicial boundary determination (LSA-C.C. Arts. 786, 788, 789). When both parties rely solely on titles, boundaries are determined by those titles (LSA-C.C. Art. 793). However, ownership by prescription takes precedence over title ownership, meaning that if a party proves acquisitive prescription, the boundary will align with those limits rather than with title (LSA-C.C. Art. 794). Acquisitive prescription can be established with 30 years of continuous and public possession, irrespective of good faith or just title (LSA-C.C. Arts. 3475, 3499). Key requirements for establishing such possession include being public, unequivocal, and within visible bounds, as well as the intent to possess as owner (LSA-C.C. Arts. 794, 3500).
Possession can be accumulated through predecessors without interruption (LSA-C.C. Arts. 3495, 3493), and may be maintained through visible signs or works (LSA-C.C. Arts. 3501, 3502). However, acquisitive prescription only applies to property actually possessed (LSA-C.C. Art. 3503).
The trial judge summarized the case facts, noting that prior to a 1917 partition sale, Lizzie Terral Allen took possession of 80 acres and a fence was erected to separate her property from that of R.L. Terral. The Allens actively farmed this land. In 1926, construction of Louisiana Highway No. 15 led to the removal of part of the fence, which was repurposed for enclosing property west of the highway. Testimony indicated that remnants of the original fence remained along the north boundary of Allen's property. Additionally, there was testimony regarding a rental house constructed by R.L. Terral near his property's southern boundary.
The rent house was situated south of the ideal boundary between the properties owned by the plaintiff, Walter M. Hinton, and the defendant, Geneva Sue Terral Weaver. Significant conflict exists regarding the presence of a fence south of the rent house during the 1930s and 1940s. Some witnesses recalled a 'gap' in the fence, which was subsequently repaired, while others testified that no fence extended south of the house to the Farmerville Highway. Evidence confirmed that a horse fell into a well located south of this boundary during R.L. Terral's plowing. The defendants asserted that a fence extended east from the highway, connecting to an older fence depicted on a plat by Lowe and Associates, a claim supported by Geneva Sue Terral Weaver and her sister's childhood memories.
Walter M. Hinton purchased the property from his mother-in-law in 1949 and began constructing his residence shortly thereafter. Hinton requested and briefly used water from the well at the rent house, asserting that no fence extended east from the road as indicated on the plat. He built the current mesh and barbed wire fence to enclose his property south and east of his house. The timeline of the rent house's demolition remains unclear, though it has been absent for several years.
In the 1960s, Hinton, serving as a member of the Union Parish Police Jury, sought permission from R.L. Terral to store road machinery on a portion of Terral's property north of Hinton's, which was granted. Gravel was laid down and grading done to facilitate access. A court examination revealed gravel on both sides of the ideal boundary as established by surveyor William T. Lowe. The record shows substantial disagreement regarding whether a fence enclosed the property owned by R.L. Terral, with various witnesses providing conflicting accounts about its existence and use as pasture or cultivated land. Additionally, there is extensive testimony concerning the type and location of fences west of Louisiana Highway No. 15.
Testimony was sought to determine the existence and positioning of a 'boundary fence' east of a road, extending west of it. Extensive testimony focused on fences located west of the road. The court conducted an on-site inspection, observing the relevant fences. Expert witness William T. Lowe concluded that the fences west of the road served land use purposes rather than marking a boundary. Dr. Milton B. Newton, another expert, evaluated both ground conditions and aerial photographs, creating a plat to illustrate property use and boundary indications.
The plaintiff's claim relied on LSA-C.C. Art. 794, requiring proof of (1) visible property bounds, (2) open physical possession as owner of these bounds, and (3) continuous and uninterrupted possession for 30 years, per Leblanc v. Laborde. The trial court determined that the fences were not visible boundaries, but rather constructed for land use. Additionally, it found that the defendants did not possess the visible boundary. Witnesses indicated that the disputed fence had been moved multiple times, with some stating it was removed as early as 1926 or in 1950, further undermining claims of continuous possession.
The court examined the period since the partition of the Terral property in 1917 to find a continuous 30-year possession, but found no evidence supporting such a claim. The trial court's findings concerning the lack of continuous possession were upheld, and although Dr. Newton's testimony was noted as corroborative, it did not alter the outcome. Consequently, the trial court's judgment was affirmed, with costs assigned to the appellant.
