Ree Corporation v. Shaffer

TATE, Justice (concurring). I concur, somewhat hesitantly, in the •majority’s conclusion that the possessory action is not available to the plaintiff because it. has not proved the requisite one-year’s undisturbed possession, either in 1959 when Placid’s lease was recorded, or in 1964, when this suit was filed. Reasonable minds may differ as to whether the plaintiff was actually in such possession, and I am not prepared now to state that the majority errs as a matter of fact. The principal motivation for this concurring opinion is to express doubt as to the correctness of the majority’s statement that the plaintiff was required to prove a year’s undisturbed possession prior to. the recordation of Placid’s lease in 1959. This disturbance in law amounts to a continuing disturbance, see La.C.Civ.P. Art. 3659. For purposes of determining the year within which to bring a possessory action, La.C. Civ.P. Art. 3658(4), therefore, this continuing disturbance is regarded as occurring not only on the date of recordation but each day thereafter. The majority implicitly so held by not dismissing this action because not brought within a year of 1959. See also Dixon v. American Liberty Oil Co., 226 La. 911 , 77 So.2d 533 (1954). However, although the recordation itself is a disturbance in law for such purpose, the prior jurisprudence never held such “disturbance in law” by mere recordation to be a sufficient interruption of possession to prevent the physical possessor of property from being nevertheless considered to be in “possession quietly and without interruption”, La.C.Civ.P. Art. 3658(2). See below. The determination of whether the plain *522 tiff is in possession, or whether his possession is uninterrupted, is a matter of substantive law regulated by Articles 3426-3456 of the Louisiana Civil Code; and a possession is interrupted only in the case of physical usurpation, Civil Code Article 3449, not by a “disturbance in law”. As the prior jurisprudence held, a disturbance in law, therefore, does not prevent the plaintiff from having the requisite undisturbed possession in order for him to bring suit as a possessor for more than one year, as required by now La.C.Civ.P., Art. 3658 (2). The prior jurisprudence and the proper construction of the present code articles to such effect (so as to be in accord with this prior jurisprudence) are excellently analyzed in Chauvin v. Kirchhoff, 194 So.2d 805, 811-815 (La.App. 1st Cir. 1967). In summary, I do not believe the new Code provisions intended to make a disturbance in law through the continuing “existence of record”, La.C.Civ.P. Art. 3659, such an interruption of corporeal possession, or of civil possession preceded by corporeal possession, La.C.Civ.P. Art. 3660, as to prevent the possessor from being in “possession quietly and without interruption”, La.C.Civ.P. Art. 3658(2). See Civil Code Article 3449, limiting loss of possession to physical usurpations thereof. To" so construe the new Code of Civil Procedure provisions might easily deprive a possessor in real and actual possession of property for decades of his remedy of a possessory action, simply because unknown to him there existed a recorded instrument which was a “disturbance in law”. The Official Revision Comment specifically noted that no change in prior law was intended, and the 1960 procedural reform of consolidating the former jactitory action with the broadened possessory action was not intended thereby to prevent the actual possessors of property from resorting to a possessory action to protect their possession. Since the difference in dates (1964, versus 1959) is not material to the majority’s rationale, I do not believe the majority intended to rule upon this issue. I therefore respectfully concur, with the reservations noted.