Neely v. Turner

Citations: 707 So. 2d 1298; 1998 WL 40279Docket: 97-1125

Court: Louisiana Court of Appeal; February 3, 1998; Louisiana; State Appellate Court

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In the case 707 So.2d 1298 (1998), James and Sheryl Neely, Jr. sued Charles Edward Turner and others in a petitory action, resulting in a judgment requiring Charles James to remove encroachments from the Neelys' property and awarding them damages. The Neelys discovered that James had encroached on their lot with a shed, muscadine arbor, and bricks after surveying their land. Despite their attempts to resolve the issue, including a certified letter that James refused, he denied the encroachments and claimed thirty-years acquisitive prescription.

The trial court ruled against James, finding he failed to establish the requisite criteria for acquisitive prescription, which requires uninterrupted, visible, and adverse possession for thirty years. The court awarded the Neelys $200 in survey costs, $500 for expert witness fees, $333 for deposition expenses, $3,000 in attorney's fees, and $1,500 for tree cutting and mental suffering. James's argument on appeal regarding his claim of acquisitive prescription was rejected, with the court emphasizing that he had the burden to prove actual possession and intent to possess as owner, which he did not demonstrate. The ruling on factual determinations related to possession will not be overturned on appeal unless clearly erroneous.

La.Civ. Code art. 3427 creates a presumption that a possessor intends to possess property as an owner unless possession is claimed on behalf of another. In this case, it is undisputed that James intended to possess the property as an owner. His physical possession serves as notice to the record owner and the public of his ownership intent. The central issue is whether James had corporeal possession for the requisite thirty years. The trial court found that James did not prove this duration, and such a finding is upheld unless there is manifest error. Evidence was conflicting; while James claimed to have built a fence in 1957, surveyors testified it was absent during their surveys, although one noted remnants of posts. Testimony regarding the fence's existence and possession boundaries was inconclusive. Additional structures, like a shed and grape arbor, were not established to have existed for thirty years. Expert testimony from aerial photographs failed to confirm the fence's existence or pinpoint possession. The trial court's credibility assessments of witnesses and evidence were deemed appropriate.

Regarding damages and attorney's fees, James argued against the trial court's award of surveyor and court reporter fees, attorney's fees, and damages for a lost tree and mental anguish. The Neelys sought increased damages for the tree and mental suffering. The trial court's awards for surveyor fees, deposition fees, and costs were supported by La.R.S. 13:4533, which allows such costs to be taxed, and the trial court has broad discretion in awarding them. The court awarded $200 for surveyor fees and $333 for deposition fees, which were deemed appropriate. For mental pain and suffering and damages from cutting down a pecan tree, James contested the awards on the basis of inadequate pleading by the Neelys. However, it was established that courts can award damages even without explicit pleading in the body of a petition. Furthermore, James argued that damages were not proven, but legal precedent requires only that actual damages be shown with reasonable certainty, not based on conjecture.

When damages cannot be precisely determined but a legal right to recover exists, courts have discretion to assess damages based on the case's facts. This case involves the cutting of a single tree, which possesses both fair market and aesthetic value, especially in a camp-type setting. The trial court's award of $1,500.00 for the tree's cutting is deemed reasonable, despite the lack of proof for mental anguish, and thus is upheld. Furthermore, the trial court awarded $3,000.00 in attorney's fees, justified under La.R.S. 3:4278.1, which permits such fees for willfully cutting trees without the owner's consent. The court found no error in this award and added $1,500.00 in attorney's fees for the appeal. The trial court's judgment is modified to reflect this additional amount, while the rest of the judgment is affirmed, with all appeal costs charged to the appellant, Charles James.