Lavan Merritt, Et Ux. v. Thomas Michael Brennan

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-973

LAVAN MERRITT, ET UX.

VERSUS

THOMAS MICHAEL BRENNAN, ET AL.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 60,214
HONORABLE CHARLES B. ADAMS, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Marc T. Amy, Michael G. Sullivan, and Shannon J. Gremillion,
Judges.

AFFIRMED IN PART AND REVERSED IN PART.

Edward P. Chevallier, Jr.
Attorney at Law
770 San Antonio Avenue
Many, Louisiana 71449
(318) 256-8858
Counsel for Plaintiffs/Appellees:
Lavan Merritt
Debbie W. Merritt

William D. Dyess
Dyess Law Firm, LLC
Post Office Drawer 420
Many, Louisiana 71449
(318) 256-5667
Counsel for Defendants/Appellants:
Thomas Michael Brennan
Kenneth W. Greer

SULLIVAN, Judge.

The defendants, Thomas Michael Brennan and Kenneth W. Greer, appeal a

judgment of the trial court which rendered declaratory judgment in favor of the

plaintiffs, Lavan Merritt and Debbie W. Merritt, declaring them to be the owners of

a disputed tract of property; ordered the defendants to remove a fence and gate that

had been built across the property; and awarded the plaintiffs trespass damages of

$2,500.00 and attorney fees of $2,500.00. For the following reasons, we affirm in

part and reverse in part.

FACTS AND PROCEDURAL HISTORY

The property in dispute is located in Sabine Parish, Louisiana. The Merritts

purchased a tract of land from Mrs. Merritt’s parents, Lynn and Nadine Wooley, in

1977. The Wooleys had acquired the property from one of Mr. Wooley’s relatives

in 1971. In April of 2007, the defendants purchased a 7.67 acre tract of property

adjacent to the Merritt’s property from Imogene Rogers. The property at issue in this

dispute is a triangular shaped area of land where the two properties join near

Louisiana Highway 191.

Sometime around August of 2007, the defendants began clearing portions of

their property. Timber was removed from the disputed tract and a fence was

constructed across a significant portion of the Merritts’ circular driveway. On

September 18, 2007, the Merritts filed the instant suit against the defendants seeking

trespass damages and a declaratory judgment declaring them to be the owners of the

disputed tract of property. In their petition, the Merritts alleged that they and their

ancestors in title had peacefully possessed the disputed tract for more than thirty years

and that they were the legal owners of the disputed property.

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A bench trial was held on May 23, 2008. Judgment was rendered on June 3,

2008, in favor of the plaintiffs, declaring them to be the owners of the disputed tract

of property; ordering the defendants to remove the fence and gate that had been built

across the property within seven days; and awarding the plaintiffs trespass damages

of $2,500.00 and attorney fees of $2,500.00. The defendants now appeal. In their

sole assignment of error, the defendants claim that the trial court erred in finding that

the Merritts had proven acquisitive prescription of thirty years and in awarding them

damages for trespass and attorney fees.

DISCUSSION

An appellate court may not set aside a jury’s or a trial court’s finding of fact in

the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d

840 (La.1989). “[W]here there is conflict in the testimony, reasonable evaluations of

credibility and reasonable inferences of fact should not be disturbed upon review,

even though the appellate court may feel that its own evaluations and inferences are

as reasonable.” Id. at 844. If the trial court’s findings “are reasonable in light of the

record reviewed in its entirety, the court of appeal may not reverse even though

convinced that had it been sitting as the trier of fact, it would have weighed the

evidence differently.” Id. Moreover, “[w]hen findings are based on determinations

regarding the credibility of witnesses, the manifest error—clearly wrong standard

demands great deference to the trier of fact’s findings; for only the factfinder can be

aware of the variations in demeanor and tone of voice that bear so heavily on the

listener’s understanding and belief in what is said.” Id.

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This court discussed the concept of acquisitive prescription in Brooking v.

Vegas, 03-1114, pp. 2-3 (La.App. 3 Cir. 2/4/04), 866 So.2d 370, 372, writ denied, 04-

577 (La. 4/30/04), 872 So.2d 491, stating:

“Acquisitive prescription is a mode of acquiring ownership or
other real rights by possession for a period of time.” La.Civ.Code art.
3446. “Ownership and other real rights in immovables may be acquired
by the prescription of thirty years without the need of just title or
possession in good faith.” La.Civ.Code art. 3486. “For purposes of
acquisitive prescription without title, possession extends only to that
which has been actually possessed.” La.Civ.Code art. 3487.
“Acquisitive prescription is interrupted when possession is lost.”
La.Civ.Code art. 3465. “The interruption is considered never to have
occurred if the possessor recovers possession within one year or if he
recovers possession later by virtue of an action brought within the year.”
Id. “Possession is lost when the possessor manifests his intention to
abandon it or when he is evicted by another by force or usurpation.”
La.Civ.Code art. 3433.

“When a party proves acquisitive prescription, the boundary shall
be fixed according to limits established by prescription rather than
titles.” La.Civ.Code art. 794. “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.” Id.

In discussing the burden of proof in an action to establish
acquisitive prescription this court stated:

It is well settled that the party pleading acquisitive
prescription bears the burden of proving all of the facts that
are essential to support it. The proof required to fix a
boundary according to acquisitive prescription is the same
proof required to prove ownership in a petitory action
based on 30 year acquisitive prescription, i.e., continuous,
uninterrupted, peaceable, public and unequivocal
possession with a positive intention to possess as owner.

Mistric v. Kurtz, 610 So.2d 226, 230 (La.App. 3 Cir.1992), writ denied,
612 So.2d 102 (La.1993).

In addition, this court has held that “[w]hether a party has possessed property

for purposes of thirty year acquisitive prescription is a factual determination by the

trial court and will not be disturbed on appeal unless it is clearly wrong.” Phillips v.

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Fisher, 93-928, p. 3 (La.App. 3 Cir. 3/2/94), 634 So.2d 1305, 1307, writ denied,

94-813 (La. 5/6/94), 637 So.2d 1056. See also Otwell v. Diversified Timber Servs.,

Inc., 04-924, p. 4 (La.App. 3 Cir. 1/26/05) 896 So.2d 222, 225, writ denied, 05-467

(La. 4/22/05), 899 So.2d 575.

Both of the Merritts testified at trial, as did Mrs. Merritt’s father, Lynn Wooley.

Mr. Merritt stated that he and his wife had purchased approximately two acres of land

along what is now Highway 191 from his in-laws in 1977. He and his wife had lived

on the property since that time in a house that had been built in the 1940s by a

member of his wife’s family. According to Mr. Merritt, the western boundary of his

property was marked by an old fence that ran along a tree line, a boundary which had

existed since the time he bought the property. Most of the old fence was destroyed

in August of 2007 when the defendants bulldozed the area, cut down timber, and built

a fence and gate. He stated that up until that time, his family had continuously used

and maintained the disputed property. More specifically, he stated that he and his son

regularly mowed the grass up to the fence line, that his family had parked their cars

in the circular driveway located in the disputed area since they acquired the property,

and that he regularly welded and worked on vehicles near the fence line on his days

off from work. According to Mr. Merritt, the defendants did not give him any notice

before clearing the disputed property and building the fence and gate.

Mr. Merritt identified several old photographs, some dating back to 1959,

showing the fence which marked the disputed line, as well as several photographs that

he had taken more recently from the same vantage points. He also identified several

photographs which he took in the summer of 2007 showing sections of the old fence.

Finally, he identified photographs depicting the new fence and gate that had been

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built by the defendants across the disputed property. All of the photographs were

entered into evidence.

When asked about a survey that had been commissioned by Mrs. Rogers from

Kenneth Murphy in 2001 when she bought the property adjacent to his, Mr. Merritt

acknowledged knowing that a survey had been done and that stakes had been put

down across his property. He explained, however, that he did not file a lawsuit at that

time because he was able to continue using the property as he had always done. With

regard to damages that he had suffered as a result of the defendants’ trespass on his

property, Mr. Merritt testified that his parking area had been reduced by 75%, that the

use of his yard had been reduced, and that he had been prevented from using his

circular driveway, the driveway that he used most frequently.

Mrs. Merritt testified that she remembered the old fence line from when she

was a young child. She stated that she and her husband had always disagreed with

the property line depicted in the Murphy survey. Nevertheless, she reiterated that

because she and her family continued to use the property as they always had, she and

her husband had not filed a lawsuit contesting the ownership of the disputed property

at that time. She stated that this lawsuit was filed when the defendants built the fence

across her land. Mrs. Merritt testified that as a result of the defendants’ trespass, her

family had lost the use of one of their driveways, most of their front yard, and part of

their side yard.

Mr. Wooley confirmed that in the late 1940s, his brother had built the house

in which the Merritts had lived since they bought the property from him. He stated

that the house had originally “set up square with the old original gravel road.” When

shown the 1959 photographs, Mr. Wooley identified the old fence. He stated that he

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was seventy-five years old and that he remembered the old fence being in that

location from when he was five or six years old because it had been his job to patch

the fence to keep hogs out. He noted that the gravel road was considerably further

out from the Merritts’ property back then, as opposed to where Highway 191 had

been built.

Mrs. Rogers was called as a witness on behalf of the defendants, along with

Rita Ann Rogers Randolph,1 and the defendant, Mr. Brennan. Mrs. Rogers testified

that when she and her husband bought some property next to the Merritts’ property

in 2001, they had it surveyed by Mr. Murphy. She stated that property was staked

after the survey. She recalled a conversation that she had had with Mr. Merritt

wherein she offered to sell him the land where his driveway was located, but he had

declined her offer. Mrs. Rogers admitted, however, that she had never threatened

legal action against the Merritts to get off of what she considered to be her land.

Mrs. Randolph also testified on behalf of the defendants. She was familiar

with the land in dispute because it adjoined her grandfather Rogers’ property where

she had played as a child. She was fifty-nine years of age at the time of trial. When

asked about whether she remembered an old fence cutting across the contested

property, Mrs. Randolph denied ever seeing an old fence. She stated that she used to

run across the properties barefoot, and she never saw a fence or stepped on any

barbed wire fencing. Using the pictures that had been submitted as exhibits by the

Merritts, the trial judge intensely questioned Mrs. Randolph in an attempt to pinpoint

the exact location of where she played as a child.

1
It is unclear from the record whether Mrs. Randolph is related to Mrs. Imogene Rogers.

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The last witness to testify was Mr. Brennan. He stated that he had a survey

done by Douglas Dockens before purchasing the land from Mrs. Rogers in May of

2007. That survey placed the property line across the Merritts’ front yard and

driveway. According to Mr. Brennan, he and Mr. Merritt had a discussion about the

Merritts buying the disputed property, and Mr. Merritt told him that he “wasn’t

interested.” He stated that when he started clearing the land, he never saw an old

fence line or wire. When questioned about why he decided to fence off the Merritts’

driveway while not fencing off the rest of his property, Mr. Brennan stated that he

knew that the Merritts were contesting his ownership of the disputed property and

that because of “inquisitive prescription,” he had “[t]o bring this thing to head” before

thirty years.

In ruling in favor of the Merritts, the trial court stated that it was:

[T]hroughly [sic] convinced that there was an old fence going down the
side of the drive as depicted in P-6. The location of the home, the age
of the home, how it is situated in relation to the old highway and the
new highway, with the existing circular drive, the Court finds that it was
more than thirty years possession by the Merritts and certainly much
more [by] their ancestors in title.

The defendants assert that the Merritts failed to prove that they had continuous,

uninterrupted possession of the disputed land. They argue that the Merritts did not

have continuous, uninterrupted possession of the land after the Murphy survey was

conducted and stakes were put across what they claimed was their land in June of

2001. The defendants submit that, from that point on, the Merritts knew that the

property did not belong to them and that they only occupied the property with Mrs.

Rogers’ permission, as opposed to occupying the property as owners as required by

law.

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The Merritts counter that, despite their knowledge of the Murphy survey, they

always contested the proper boundary line between the two properties. Moreover, the

Merritts submit that the trial testimony proved that they and their ancestors in title had

continuously used and occupied the disputed tract of land, up to the old fence line,

for over seventy years.

As previously noted, whether a party has possessed property for purposes of

thirty-year acquisitive prescription is an issue of fact to be determined by the trial

court which should not be disturbed on appeal unless it is clearly wrong. The

Merritts presented testimony and photographic evidence showing that they and their

ancestors in title possessed the property in question, as marked by an old fence line

at the edge of a clearing, for more than thirty years. Moreover, we conclude that the

testimony proved that the Merritts always believed that they were the true owners of

the disputed property and that they maintained possession of the disputed property

up until the time that the defendants fenced them out. None of the testimony elicited

by the defendants directly or conclusively contradicted the evidence presented by the

Merritts.

Given the applicable standard of review, we cannot say that the trial court erred

in finding that the Merritts had met their burden of proving all the facts necessary to

entitle them to be declared the owners of the disputed property on the basis of

acquisitive prescription. In light of this finding, we likewise find no error in the trial

court’s having awarded the Merritts $2,500.00 for the damages that they testified to

having sustained as a result of the defendants’ trespass on their property. We reverse

the trial court’s award of attorney fees, however, because the record contains no

evidence of a statute or contract authorizing the award of attorney fees under the

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circumstances present in this case. Booth v. Madison River Commc’ns, 02-288

(La.App. 1 Cir. 6/27/03), 851 So.2d 1185, writ denied, 03-2661 (La. 12/12/03), 860

So.2d 1161.

DECREE

For the foregoing reasons, the portion of the trial court’s judgment awarding

Lavan and Debbie W. Merritt attorney fees in the amount of $2,500.00 is reversed.

The judgment is affirmed in all other respects. Costs of this appeal are assessed to

Thomas Michael Brennan and Kenneth W. Greer.

AFFIRMED IN PART AND REVERSED IN PART.

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