Richard Dale Neill and Gloria Neill v. Tom D. Coday and Amanda Rochelle Coday

Judgment rendered February 25, 2026.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,642-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

RICHARD DALE NEILL AND Plaintiffs-Appellees
GLORIA NEILL

versus

TOM D. CODAY AND AMANDA Defendants-Appellants
ROCHELLE CODAY

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 166845

Honorable Douglas M. Stinson, Judge

*****

SINCLAIR LAW FIRM, LLC Counsel for Appellants
By: Scott C. Sinclair

CARL HENRY FRANKLIN Counsel for Appellees

*****

Before STONE, STEPHENS, and ROBINSON, JJ.

STONE, J.

This civil appeal arises from the Twenty-Sixth Judicial District Court,

the Honorable Doug Stinson presiding. The parties own adjoining tracts of

land and are in dispute over the location of the boundary between their

respective lots. On March 2, 2022, the appellees,1 Richard Neill (“Richard”)

and Gloria Neill (collectively, “the Neills”), filed a petition to fix boundary

and for an injunction requiring the appellants, Tom Coday (“Tom”) and

Amanda Coday (collectively, “the Codays”), to remove fences that encroach

on the Neills’ property. The Codays reconvened demanding that the Neills

be ordered to pay half the cost of removing the fence in the event the court

granted the Neills’ injunction. For the reasons stated herein, we affirm in

part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The trial court held a bench trial that began on August 10, 2022.

Following is a summary of the evidence adduced that day.

In 1976, Richard Neill purchased the above tract, which is located in

Benton. The Neills built a house thereon and later, in 1998, subdivided the

tract into multiple lots and named it Neill Acres subdivision. The Neills

used the assistance of John Bowman, Jr. (“Bowman”), a land surveyor, in

subdividing the property. Below is a copy of the recorded plat map of the

Neill Acres subdivision:

1
They are the plaintiffs and defendants-in-reconvention.

.

The Neills’ ownership includes lots 1, 3, and 6. The Codays own lot

2. 2 After subdividing, the Neills built cyclone fences apparently meant to

separate the lots but placed them short of the property line of lot 1, i.e.,

several feet on the Neills’ side of the property line.

The Codays bought lot 2 in 2018 and reside there. The Neills’ current

home is on lot 3. Lot 1 is a rental property owned by the Neills.

2
Addresses: lot 1: 406 5th Street; lot 2: 410 5th Street; and lot 3: 412 5th Street.
2

The parties had a dispute which led to the Codays constructing the

“privacy fence” around lot 2.3

In his testimony, Richard accused Tom of having moved the stakes

onto the Neills’ side of property lines and building fences in accord with the

newly misplaced stakes. Richard admitted, however, he did not see anyone

move the stakes and the trial court explicitly rejected these accusations.

Richard also stated that he did not have any problem with the location of the

Coday fence at the rear (i.e., north end) of lot 2.

Tom testified that he located the lot pins marking each corner of lot 2

and denied that he ever moved them. Tom built the subject fences himself,

as he is in the business of building fences. He testified that, while he was

building “fence 1”4 (the north-south fence along the east side of lot 2/west

side of lot 3), Richard stood five to ten feet away — on his own property —

and stared at Tom the entire time, but never said anything. Tom admitted

that fence 2 (running east and west at the back of lot 2/ part of the front of

lot 6) is about six inches onto the Neills’ property in the corner marked by

“pin 2” because he had to work around the overhang of a garage adjoining

that location.

Testimony of Bowman. The court accepted Bowman as an expert land

surveyor. Bowman recounted that he assisted with the subdivision of Neill

3
We note a contradiction in the record. It contains at least two exhibit lists
asserting that certain exhibits were introduced at trial, one handwritten and one with the
minutes of court; however, the court reporter’s exhibit list (which is part of the transcript
for each respective day of trial) indicates that those certain exhibits were not introduced
at trial. The transcriptions of the proceedings themselves prove the correctness of the
court reporter’s exhibit list over the others.

4
At trial there was a convention of terminology established: “fence 1” refers to
the Coday fence running north and south approximating the eastern boundary of lot 2/
western boundary of lot 3; “fence 2” refers to the Coday fence running east and west,
approximating the northern boundary of lot 2; fence 3 refers to the Coday fence running
north and south approximating the eastern boundary of lot 1, which it shares with lot 2.
3

Acres in 1998 (whereas Richard said it was in 1988). In August 2021,

before the subject fences were built, at the Neills’ request, Bowman

attempted to re-mark the corners of lot 2 as established in the 1998

subdivision. Bowman could not find pins for the northeast or southeast

corners of lot 1, so he put new pins. He explained:

The first time Mr. Neill owned all the property, so he picked
where the lot lines were placed. And then we sent it to the MPC
to be approved and only made one adjustment to that Lot 1 on the
east line on my original survey. The MPC wanted a little more
width in that lot. And then we went back in 2021 I found the
original corners except for the east line of Lot 1, had to reset [pins for]
those points [approximately five feet further to the east in accordance
with the MPC’s setback requirements].5

Bowman went back to the property again in June 2022 to re-mark the

corners with the Neills and their attorney after the Coday fence was built.

Bowman described his activities as follows:

Q. So the work that you did in June of this year …2022,
was simply to go out and — and relocated the pins that
you had previously located and observe where the fence
was in relationship to those pins; is that correct?
A. Right.
…
So I agreed to show Carl and Mr. Neill what I could find
of the corners.
Q. Okay…your testimony is based on those observations,
finding those pins and observing the fence relationship to
those pins; right?
A. Yes, sir.
Q. And without any new survey work, no new
measurements, no nothing more technical than that; is that
correct?
A. Nothing more than that…Schonstedt locator.

After both parties had rested, the trial court correctly found that, based

on the evidence submitted, it was impossible for him to determine where the

property lines were or where the fences were in relation to the property lines.

5
Bracketed material is at R. 108.
4

However, the trial court did not dismiss the plaintiffs’ claims for failure to

meet the burden of proof. Instead, the trial court announced that it was

going to appoint Charles Coyle (“Coyle”), a land surveyor, to provide the

evidence needed to reach a conclusion — i.e., an “up to date” survey

showing the lot lines and the locations of the fences. The court asked if

either side had an objection to the appointment, and neither side objected.

Two and a half years later, on January 9, 2025, the parties returned to

court and resumed the bench trial. Coyle, Richard, and Tom testified. By

stipulation of the parties, Coyle was accepted as an expert in land surveying.

Likewise, the parties jointly introduced Coyle’s exhibits (Coyle 1, 2, 3, and

4), which he used in his presentation of his findings.

Testimony of Coyle. Coyle began his analysis with the recorded plat

map of Neill Acres. He found that the plat map itself did not contain error

on its face, i.e., the bearings and distances form a closed figure. He also

explained the hierarchy of evidence of boundaries.

Coyle conducted a multi-step field survey, wherein he obtained a plat

map and attempted to find the artificial monuments (i.e., pins or stakes) for

the corners of the property. In conducting the survey, Coyle initially found

pins as reported in attachment 2 to his report. However, the pins on the

southwest, northwest, and northeast corners of lot 2 were not located

consistently with the plat map. Coyle added pins at locations which he

determined were consistent with the plat. Based on the pins Coyle set, he

determined that the Codays’ fences encroach onto the Neills’ property in

extending beyond the north and west boundaries of lot 2, and in fence 1

making a slight bulge into Neill territory.

5

However, in effect, Coyle also testified that the pins he found were

apparently the original pins Bowman set in 1998, that there was no evidence

that they had been moved, and that the Coday fence was consistent with

those pins. Therefore, Coyle agreed, if the original pins had been placed

correctly, the Coday fences would be on the property line, not encroaching

onto the Neills’ property.6

Tom testified that he, as a professional fence builder, would charge a

customer $37 per foot to demolish and rebuild the fence. He also reaffirmed

the wholesale cost figures from his earlier testimony, i.e., $6,524 for fence 1

and $4,475.96 for fence 2.

The trial court adopted Coyle’s conclusions and rendered judgment

accordingly:

IT IS ORDERED, ADJUDGED AND DECREED that the
Court accepts the conclusions of Charles G. Coyle, III and
declares that the boundaries for Lot 2, Neill Acres, as
recorded in Book 808, Page 749 of the Conveyance
Records of Bossier Parish, Louisiana, are as shown and
depicted in Exhibit Coyle 4, a copy of which is attached
hereto. (Emphasis added.)
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the wood fence erected by the Codays at
the north boundary of said Lot 2 (between monument #17
and #31) encroaches on the property owned by the Neills,
and the Codays are hereby directed to remove that fence,
at their expense, on or before January 9, 2026.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the wood fence erected by the Codays at
the east boundary of Lot 1 (between monument #38 and
#32) encroaches on the property owned by the Neills, and
the Codays are hereby directed to remove that fence, at
their expense, on or before January 9, 2026.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the Plaintiffs and Defendants are cast with
half each of the fees of the court appointed expert, Charles
G. Coyle, III.

6
That is, with the exception of fence 1 making a slight bulge into Neill territory.

6

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that all other claims of the plaintiffs and
defendants are dismissed with prejudice.

However, Coyle exhibit 4 is not attached to the judgment.

The Codays now appeal, enumerating the following assignments of

error: (1) the trial court erred in appointing an expert after the case had been

“submitted”; (2) the trial court erred in not dismissing the Neills’ actions

once it found, after the first day of trial, that the Neills failed to carry their

own the burden of proof; (3) the trial court erred by not finding that the

subject properties are “enclosed” for purposes of La. C.C. art. 685; and (4)

therefore, if the Coday fences encroach, the trial court erred in not assessing

any responsibility for removing the fences to the Neills.

LAW

Boundary action. Three real actions to determine ownership or

possession of immovable property are the possessory action, the petitory

action, and the boundary action. A boundary action is a nominate real action

under the Code of Civil Procedure that is distinct from a possessory and a

petitory action. Hooper v. Hero Lands Co., 15-0929 (La. App. 4 Cir.

3/30/16), 216 So. 3d 965, 972, writ denied, 16-0971 (La. 9/16/16), 206 So.

3d 205.

“A boundary is the line of separation between contiguous lands. A

boundary marker is a natural or artificial object that marks on the ground the

line of separation of contiguous lands.” La. C.C. art. 784. “The fixing of

the boundary may involve determination of the line of separation between

contiguous lands, if it is uncertain or disputed; it may also involve the

placement of markers on the ground, if markers were never placed, were

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wrongly placed, or are no longer to be seen.” La. C.C. art. 785. “The

boundary may be fixed upon the demand of an owner or of one who

possesses as owner.” La. C.C. art. 786. “The court shall fix the boundary

according to the ownership of the parties; if neither party proves ownership,

the boundary shall be fixed according to limits established by possession.”

La. C.C. art. 792. “When both parties rely on titles only, the boundary shall

be fixed according to titles. When the parties trace their titles to a common

author preference shall be given to the more ancient title.” La. C.C. art.

793.7 “When visible markers have been erroneously placed by one of the

contiguous owners alone, or not in accordance with a written agreement

fixing the boundary, the error may be rectified by the court unless a

contiguous owner has acquired ownership up to the visible bounds by thirty

years possession.” La. C.C. art. 796.

A boundary action is brought as an ordinary proceeding by the owner

or possessor of one of two (or more) contiguous tracts of land to compel the

fixing of the boundary between the adjacent tracts of land. La. C.C.P. art.

3691. In a boundary action, the court may appoint a surveyor to inspect the

lands and to make plans in accordance with the prevailing standards and

practices of his profession indicating the respective contentions of the

parties. La. C.C.P. art. 3692. “After considering the evidence, including the

testimony and exhibits of a surveyor or other expert appointed by the court

or by a party, the court shall render judgment fixing the boundary between

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“When a party proves acquisitive prescription, the boundary shall be fixed
according to limits established by prescription rather than titles. If a party and his
ancestors in title possessed for thirty years without interruption, within visible bounds,
more land than their title called for, the boundary shall be fixed along these bounds.” La.
C.C. art. 794.

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the contiguous lands in accordance with the ownership or possession of the

parties.” La. C.C.P. art. 3693. Accordingly, questions of title and ownership

may be determined in an action of boundary.8

Meyer v. Comegys, 147 La. 851, 86 So. 307 (1920) also sets forth a

hierarchy of principles controlling the determination of a boundary:

[T]he legal guides for determining a question of boundary,
or the location of a land line, in the order of their
importance and value, are: (1) Natural monuments; (2)
artificial monuments; (3) distances; (4) courses; and (5)
quantity.
…
Monuments of the character mentioned are allowed to
control, for the reason that in cases where the line is
uncertain, but approximately in a given location, these
guides are more permanent and possess less of the
possibilities of error incident to courses, distances, and
area; but when the basis for the rule ceases, as where,
admittedly, the monument does not meet the calls of the
deeds, then it cannot control, and must give way to the
weaker guides. There being no courses or distances given
in this case, the acreage or quantity prevails, and both
parties receive thereby all that their deeds call for.

Finally, “all final judgments which affect title to immovable property

shall describe the immovable property affected with particularity.” La.

C.C.P. art. 1919. Alston v. Moore, 55,296 (La. App. 2 Cir. 11/15/23), 374 So.

3d 277, 287, held that a judgment which twice used the word

“approximately” in its property description nonetheless complied with La.

C.C.P. art. 1919 because it also referenced and had attached as an exhibit “an

assessor’s map with [the subject] property outlined in yellow.” This court

reasoned that “the public, litigants, title examiners, officials charged with

executions of judgments, and surveyors can read the property description

8
If neither party proves ownership, the boundary shall be fixed according to
limits established by possession. La. C.C. art. 792; Hooper v. Hero Lands Co., supra.

9

provided in the judgment and review the attached assessor’s map and

accurately deal with the immovable property.”

Review; related principles. “[T]he location of a boundary line is a

question of fact, and the determination of its location by the trial court

should not be reversed absent manifest error.” Marcello v. Jo-Blanche

Corp., 20-1113 (La. App. 1 Cir. 6/4/21), 330 So. 3d 632, 639, writ denied,

21-01666 (La. 1/19/22), 331 So. 3d 330.

La. C.E. art. 103 states:

Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected, and when the ruling is one admitting evidence, a
timely objection…appears of record, stating the specific
ground of objection

A party is judicially estopped from repudiating a previous position he

has clearly taken before the court if the court has already accepted that

previous position. Thomas v. Econ. Premier Assur. Co., 50,638 (La. App. 2

Cir. 5/18/16), 196 So. 3d 7, 11, writ denied, 16-1169 (La. 10/28/16), 208 So.

3d 377, and writ denied, 16-1177 (La. 10/28/16), 208 So. 3d 378; Godfrey v.

GoAuto Ins. Co., 55,824 (La. App. 2 Cir. 8/28/24), 400 So. 3d 147, 155, writ

denied, 24-01162 (La. 2/19/25), 400 So. 3d 934.

Cost-sharing regarding common fences

La. C.C. art. 685 mandates cost-sharing between neighbors in regard

to common fences, to the following extent:

A fence on a boundary is presumed to be common unless
there is proof to the contrary.
When adjoining lands are enclosed, a landowner may
compel his neighbors to contribute to the expense of
making and repairing common fences by which the
respective lands are separated.

10

When adjoining lands are not enclosed, a landowner may
compel his neighbors to contribute to the expense of
making and repairing common fences only as prescribed
by local ordinances.

For purposes of La. C.C. arts. 673 through 688, “enclosed” means physically

enclosed by a wall, fence, ditch, or by vegetation (e.g., a hedge). The owner

of an unenclosed estate cannot be forced to contribute to the expense of a

common wall, except by local ordinance. Bouchereau v. Guilne, 116 La.

534, 40 So. 863 (La. 1906).

La. C.C. art. 685 is the basis for the Codays’ reconventional demand

for one-half the cost of removing the fence, the denial of which they assign

as error.

ANALYSIS

Assignments 1 and 2

The Codays argue that the trial court erred in appointing a land

surveyor after both parties rested and after finding that the Neills had failed

to carry their burden of proof. From that premise, the Codays conclude that

the trial court was obliged to dismiss the Neills’ action at that time.

La. C.C.P. art. 3692 authorizes the court in a boundary action to

“appoint a [professional] surveyor to inspect the lands and to make

plans…indicating the respective contentions of the parties.” This article

states no restrictions on the timing of the appointment — nor any other

limitations. The Codays’ attorney consented to the appointment of Coyle

and his admission as an expert and the introduction of Coyle’s exhibits into

evidence. Therefore, the Codays are judicially estopped from repudiating

any of these positions. Thomas, supra; Godfrey, supra. Additionally, an
11

appellate court cannot find that a ruling admitting evidence was erroneous

unless the party asserting error made a timely objection and stated the

specific ground thereof. La. C.E. art. 103(A)(1). These assignments are

without merit.

Assignments 3 and 4

The Codays alternatively argue that, if the trial court was correct in

determining the boundary, it erred in not requiring the Neills to pay for half

the cost of removing the fence pursuant to La. C.C. art. 685.

The Neills intended that lot 2 be separated from lot 1 and 3 by their

cyclone fences (which significantly predate the Coday fences). Therefore,

lots 1 and 3 were, at least at the time Coday built the encroaching fences,

enclosed adjoining lands within the meaning of the second paragraph of La.

C.C. art. 685: “When adjoining lands are enclosed, a landowner may compel

his neighbors to contribute to the expense of making and repairing common

fences by which the respective lands are separated.”

The Codays intended that their fence be placed on the boundary

between lots 1 and 2. Additionally, considering the testimony of Bowman

and Coyle, the Codays reasonably believed that they had erected their fence

on the common boundary. Both the Neills and the Codays attempted to

enclose their respective lots by erecting fences, but both were mistaken as to

the location of the boundary. The Coday fences, when moved to the proper

boundary in accordance with the trial court’s judgment, will be common

fences pursuant to the second paragraph of La. C.C. art. 685. The expenses

of moving and resetting the Coday fences separating lot 2 from lot 1 and lot

12

3 are all subject to that provision — i.e., the expense of “making” a common

fence.

Tom’s testimony provides a retail price-per-foot for moving the fence;

however, the Codays’ recovery, if any, must be limited to wholesale cost.

The number of feet of fence to be moved was necessarily indeterminable

until the trial court rendered its judgment. It remains indeterminable now

because the judgment provides no basis for making that measurement, as the

trial court implicitly found La. C.C. art. 685 inapplicable. Moreover, the

judgment neither includes a property description nor actually attaches Coyle

exhibit 4 and thus is noncompliant with La. C.C.P. arts. 1918 and 1919.

CONCLUSION

The provision of the trial court’s judgment fixing the boundary and

ordering removal of the fence is AFFIRMED but must be AMENDED on

REMAND for the inclusion of a legal description in compliance with La.

C.C.P. art. 1919 and 1951 and the attachment of Coyle exhibit 4. The

provision of the trial court’s judgment dismissing the Codays’

reconventional demand is REVERSED. The trial court is instructed to

allow the Codays the opportunity to prove the expenses of moving and

resetting the fences separating lot 2 from lots 1 and 3 and to render judgment

accordingly. The costs of this appeal are taxed equally to the parties.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

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