Randy Lacombe v. Marvin F. Carter, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1063

RANDY LACOMBE

VERSUS

MARVIN F. CARTER, JR., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 217,068
HONORABLE GEORGE C. METOYER JR, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, and James T. Genovese,
Judges.

AFFIRMED.

Robert G. Nida
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
Counsel for Defendants/Appellants:
Shawn N. Daze
Brian Mabou

Rodney M. Rabalais
Attorney at Law
P. O. Box 447
Marksville, LA 71351
(318) 253-4622
Counsel for Plaintiff/Appellee:
Randy Lacombe

DECUIR, Judge.

This is a trespass action based on the defendants’ refusal to remove duck blinds

and other structures from the plaintiff’s property.

FACTS

Plaintiff, Randy Lacombe, purchased property adjacent to Saline Bayou. A

portion of the purchased property is inundated by water due to a control structure

built by the State in the 1960s. Prior to Lacombe’s purchase, the defendants , Shawn

N. Daze, Brian Mabou, Marvin Carter, Jr., and William L. Smith, had erected duck

blinds and a floating boathouse on the property. Subsequently, Lacombe asked the

defendants to remove the structures. They refused, and Lacombe filed this suit

alleging trespass on the part of the defendants. Defendants then circulated flyers and

posted signs stating that Lacombe was endangering hunting and fishing rights in the

Saline Bayou area.

Subsequently, the defendants answered and filed an exception alleging that the

inundated area is a navigable waterway and that the State of Louisiana (State) owns

or has a servitude over the property and is, therefore, an indispensable party. The trial

court granted the exception, and the State was joined as a party. Lacombe amended

his petition to seek a declaratory judgment declaring him to be owner of the property.

In addition, Lacombe requested that, if and only if the State disputed the boundary

between the parties, the court fix the boundary.

The trial court declared the boundary to be as that presented in evidence,

ordered the defendants to vacate Lacombe’s property and remove existing structures,

and enjoined them from future entry.

In addition, the trial court concluded that the defendants did trespass on

Lacombe’s property and awarded Lacombe damages of $5,000.00 from each of the

defendants.

The defendants, Daze and Mabou, lodged this appeal.

TRESPASS

The defendants assert that the trial court erred in finding they had committed

a trespass and in awarding excessive damages. In their brief, the defendants at once

allege navigability as an issue and later decry it as a “red herring.” We think they are

correct in the latter instance. In the midst of much discussion about boundaries,

navigable waterways, and hunting rights, the trial court was faced with a simple

action in trespass. Accordingly, we will focus our attention on the tort of trespass.

In discussing trespass, this court has said:

A trespass occurs when there is an unlawful physical invasion of
the property or possession of another person. Additionally,

In an action for trespass, it is incumbent upon the plaintiff
to show damages based on the result or the consequences
of an injury flowing from the act of trespass. The damages
must be proved by a preponderance of the evidence, and
this burden of proof may be met by either direct or
circumstantial evidence. One who is wronged by a trespass
may recover general damages suffered, including mental
and physical pain, anguish, distress, and inconvenience.

Griffin v. Abshire, 04-37, p.11 (La.App. 3 Cir. 6/2/04), 878 So.2d 750, 757-58, writ

denied, 04-1663 (La. 10/8/04), 883 So.2d 1018. (Citations omitted).

In the case before us, Lacombe is in actual possession of the property in

question, and the defendants do not claim ownership in themselves. The appropriate

burden of proof for Lacombe is well settled in our law.

Under these circumstances, it is not necessary that plaintiff should
show a title perfect in all respects; and, even if there be defects in
plaintiff’s title, they are not available as a defense to defendant
company, a mere trespasser. Jamison v. Smith, 35 La. Ann. 609; Stille
v. Shull, 41 La. Ann. 816, 6 So. 634; Vicksburg, S. & P. R. Co. v. Sledge, 41 La. Ann. 896, 6 So. 725; Gould v. Bebee, 134 La. 123, 63 So. 848.

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River & Rail Terminals v. La. Ry. & Nav. Co., 171 La. 223, 236, 130 So. 337, 341

(1930). “A prima facie title is good against trespassers.” Gould v. Bebee, 134 La.

123, 126, 63 So. 848, 849 (1913).

The question for this court is whether the trial court correctly concluded that

the defendants had committed a trespass. The trial court summarized the evidence in

its written reasons for judgment as follows:

Mr. Lacombe produced deeds, a survey, official state maps, and
testimony showing he has title to the land where the defendants blinds
and floating structures are located. He produced the expert testimony of
Jessie Lachney, showing the defendants[’] blinds and floating structure
are located on land, acquired and included in the 2000 sale. Lachney
used a GPS unit to locate the exact position of the blinds and floating
structure relative to Lacombe’s property line. The State’s
representative, John P. Evans, Jr., P.L.S. Chief, Titles, Surveys & GIS
of the State Land Office, also testified that the defendants[’] blinds and
floating structure are on Lacombe’s land and that the State makes no
claim to Lacombe’s inundated land.

After reviewing the evidence, it is clear that Lacombe has met his burden of proof

with regard to his title and its limits. The defendants have produced no evidence that

establishes the boundary is not as agreed by Lacombe and the State and represented

in the judgment of the trial court. Moreover, this court has consistently held that a

trial court’s determination of a boundary location is a finding of fact which will not

be disturbed on appeal unless it is manifestly erroneous. Lamson Petroleum Co. v.

Hallwood Petroleum, Inc., 99-1444 (La.App. 3 Cir. 5/24/00), 770 So.2d 786, writ

denied, 00-2568 (La. 11/27/00), 775 So.2d 448; see also Barker v. Quality Builders,

Inc., 503 So.2d 1170 (La.App. 3 Cir. 1987); Broussard v. Coleman, 479 So.2d 1016

(La.App. 3 Cir. 1985), writ denied, 481 So.2d 1354 (La.1986). Accordingly, we find

no manifest error in the trial court’s determination that the defendants committed a

trespass on Lacombe’s property.

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We next turn to defendants’ claim that the trial court’s damage award was

excessive. In an action for trespass, the plaintiff must show damages based on the

result or the consequences of an injury flowing from the act of trespass. Bell v.

Sediment Removers, Inc., 479 So.2d 1078 (La.App. 3 Cir. 1985), writ denied, 481

So.2d 1350 (La.1986). The damages must be proved by a preponderance of the

evidence, and this burden of proof may be met by either direct or circumstantial

evidence. Id. One who is wronged by a trespass may recover general damages

suffered, including mental and physical pain, anguish, distress, and inconvenience.

Ard v. Samedan Oil Corp., 483 So.2d 925 (La.1986). Mental anguish does not result

of necessity from a trespass or the encroachment on a person’s property. Even though

mental anguish may be compensable, it must be proven with sufficient evidence.

Bell, 479 So.2d 1078. However, mental anguish does not require proof that medical

or psychiatric care was required as a result of the incident, but minimal worry and

inconvenience should not be compensated. Phillips v. Town of Many, 538 So.2d 745

(La.App. 3 Cir. 1989).

In the present case, Lacombe was prevented from using or leasing his property

to the fullest extent by the presence of defendants’ blinds and floating structure. In

addition, the defendants intentionally set out to attack Lacombe’s standing in the

community by placing flyers naming him as a party seeking to take away the hunting

and fishing rights of sportsmen. Lacombe testified that some individuals quit

frequenting his hardware business because of the flyers produced by the defendants.

Under these circumstances, we do not find the trial court’s damage award to be

manifestly erroneous.

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BOUNDARY

The defendants’ remaining assignments of error contest the boundary set by the

trial court. At the outset, we note that this boundary is established solely for purposes

of this tort action. The action for the tort of trespass is not one of the real actions

provided for in the Louisiana Code of Civil Procedure. Brown v. Bedsole, 447 So.2d

1177 (La.App. 3 Cir.), writ denied, 450 So.2d 358 (La.1984). In addition, this court

has held that those who hunt or fish on land that is inundated by waterways belonging

to the State do not have a right of action to fix boundaries between the State and a

private landowner. Schoeffler v. Drake Hunting Club, 05-499 (La.App. 3 Cir.

1/4/06), 919 So.2d 822. In the present case, neither Lacombe nor the State has

disputed the boundary between them. We have found no manifest error in the trial

court’s determination of the boundary for purposes of this trespass action. Likewise,

we find no grounds for allowing defendants to convert this tort action into a real

action to force the State to fix a boundary between it and a private landowner.

Accordingly, these assignments of error have no merit.

FRIVOLOUS APPEAL

Lacombe requests that we award attorney fees for frivolous appeal. Under the

circumstances of this case and given the lack of clarity with regard to the law as it

involves inundated lands, we do not believe an award of attorney fees is warranted.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of these proceedings are taxed to defendants Shawn N. Daze and Brian Mabou.

AFFIRMED.

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