Lester E. Soileau, Jr. v. Darrel Foreman

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1346

LESTER E. SOILEAU, JR., ET AL.

VERSUS

DARREL FOREMAN

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 69134 A
HONORABLE JOHN LARRY VIDRINE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Guy Olden Mitchell, III
Attorney at Law
225 Court Street
Ville Platte, LA 70586-4492
(337) 363-0400
Counsel for Defendant/Appellee:
Darrel Foreman

Jonathan Clyde Vidrine
West & Vidrine
P. O. Drawer 1019
Ville Platte, LA 70586
(337) 363-2772
Counsel for Plaintiffs/Appellants:
Lester E. Soileau, Jr.
Robert Glenn Soileau
Virginia D. Soileau
Floyd M. Soileau

GREMILLION, Judge.

Plaintiff/appellant, Lester E. Soileau, Jr., contests the judgment of the trial

court in favor of defendant/appellee, Darrell Foreman, dismissing Soileau’s suit to

enforce building restrictions and declaring Foreman to be the owner of a 35-foot strip

of land that had been reserved to Soileau for future use as a road. For the reasons that

follow, we affirm.

FACTS

In 1962, Lester E. Soileau, Sr., developed a residential subdivision known as

Les Bois de Soileau in Ville Platte, Louisiana. On October 20, 1966, he sold lots 130

and 131 fronting Carson Street to George W. Warren. The acts of sale provided:

The above property described is sold with the understanding that
it is to be used solely for residential purposes, and that any house built
on the above property will be new construction. Hauling of ready built
houses is prohibited.

Bordering lot 130 on the south lay a 35-foot strip designated on the subdivision plat

as “reserved for street.” No street has been paved through this strip, and it remains

unimproved in any way, except as will be discussed later.

On June 6, 2006, Eleanor Faye Lafleur Warren, George’s wife, donated lots

130 and 131 to Darrell Foreman and Marie Lafleur Foreman, Eleanor’s sister. On

September 28, 2007, the Foremans filed quit claim deeds executed in their favor by

the Warrens’ descendants. Before the acquisition by the Foremans, there was no

structure on lots 130 or 131. Soileau maintains that his mother, who administered the

subdivision before her death, hired people to mow the undeveloped lots, including

130 and 131. Foreman contends that his brother-in-law, Mike Lafleur, mowed lots

130 and 131 as well as the 35-foot strip. Lafleur testified that he knew the Warrens

were aware of the 35-foot strip. He also testified that he assisted Warren in the

placement of a culvert along Carson Street within that 35-foot strip. He did not

testify when this was done.

At some point, Mr. Elton Manuel, an electrical inspector for the City of Ville

Platte, who lives down Carson Street from the lots, noticed that a utility pole had been

installed. He contacted Soileau to inform him that it appeared that someone was

planning on placing a mobile home on the lots. Soileau drafted a notice that he

affixed to the utility pole reminding Foreman of the building restrictions. Later,

Soileau saw finishers working on a concrete slab and asked them what was being

built. The workers indicated that someone was constructing a “building” there. The

“building” Foreman placed on the lot is a large metal motor home garage with an

attached one-room apartment. Foreman furnished the apartment with two chairs and

a bed. It also has a window-unit air conditioner. There is a lavatory and shower

servicing the apartment. The Foremans stay in the apartment two to three times a

week. They cook on a hot plate in the apartment. Beneath the garage, Foreman

placed a travel trailer.

Foreman himself determined the placement of the slab for this garage by

measuring from a fence to the south of the 35-foot strip. He placed the slab at a point

he thought was 39 feet from the fence. He testified that he did not intend to occupy

or own the 35-foot strip. He intends to build further on the lots.

Soileau retained Mr. Doward L. Guillory, a professional land surveyor, to

survey the property. Guillory determined that the garage was built partially on lot

130 and encroaching, at its greatest extent, 6.2 feet into the 35-foot strip.

Soileau filed suit for declaratory judgment and to enforce the building

restrictions. Foreman reconvened asserting ownership through 30-year acquisitive

prescription over the 35-foot strip.

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After trial on the merits, the trial court found that the building restriction had

been abandoned because a number of violations, documented in photographs taken

by Foreman, had been tolerated, and that Foreman owned the 35-foot strip through

his ancestors in title’s bad faith acquisitive prescription. Soileau appealed.

ASSIGMENTS OF ERROR

Soileau assigns as error:

(1) The trial court’s finding that the building restrictions were abandoned; and,

(2) The trial court’s finding that Foreman acquired ownership of the 35-foot

strip through acquisitive prescription of 30 years.

ANALYSIS

Building Restrictions

Building restrictions are governed by La.Civ.Code arts. 775 et seq. They

terminate through abandonment of the whole plan or by a general abandonment of a

particular restriction. La.Civ.Code art. 782. Important to this case, the Civil Code

provides that doubts as to the existence, validity or extent of building restrictions is

resolved in favor of the unrestricted use of the land. La.Civ.Code art. 783.

The restriction at issue here has three restrictions on the use of the land: (1) the

land must be used for residential purposes; (2) houses built must be new construction;

and, (3) no “ready built” houses can be hauled onto the land. Applying strict

construction to this building restriction, we find that the prohibition restricts owners

from placing manufactured homes and moving other prefabricated structures on the

lots. Foreman’s structure does not violate the restriction because it was built from the

ground up, and was not a prefabricated structure. The testimony establishes that,

while the garage may not meet the traditional concepts of a residential structure, its

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use is at least partially residential. Applying the ordinary usage of the term

“residential” as we did in Stevens v. Bruce, 04-133 (La.App. 3 Cir. 6/2/04), 878 So.2d

734, the garage meets the definition as it is being used as a residence, i.e., a building

used as a home.

Because we find that the garage does not violate the building restrictions, we

need not address whether the restriction at issue has been abandoned.

Acquisitive Prescription

Ownership may be acquired through prescription. La.Civ.Code arts. 3473 et

seq. Immovables are subject to acquisition through prescription of either ten or 30

years, depending upon whether the possessor is in good faith and has just title. See

La.Civ.Code arts. 3475 and 3486. Good faith is a reasonable belief, in light of

objective considerations, that one is the owner of the thing he possesses.

La.Civ.Code art. 3480. The Civil Code defines “just title” as a written juridical act

sufficient to transfer ownership, such as a sale or donation, that is valid in form and

filed for registry in the conveyance records of the parish in which the immovable is

situated. La.Civ.Code art. 3483. If one does not possess both in good faith and with

just title, he can only acquire ownership through prescription by the passage of 30

years.

The evidence at trial firmly establishes that Foreman’s ancestors did not have

just title over the 35-foot strip. The acts of sale for lots 130 and 131 describe 50-foot

frontages for each lot along Carson Street. That would not encompass the 35-foot

strip. Further, Foreman and Lafleur both testified regarding the issue of good faith,

with both affirming knowledge of the Warrens and Foreman they did not own the 35-

foot strip. Good faith is presumed; however, that presumption is rebutted on proof

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that the possessor knows or should know that he is not the owner of the thing

possessed. Such proof was given by Foreman and Lafleur. Therefore, Foreman could

only acquire ownership of that strip through 30-year prescription.

Another requisite of acquisitive prescription is continuous, uninterrupted,

peaceable, public and unequivocal corporeal possession of the thing. La.Civ.Code

art. 3476. “To acquire possession, one must intend to possess as owner and must take

corporeal possession of the thing.” La.Civ.Code art. 3424. A transferor’s possession

is tacked to that of his transferee if there has been no interruption of possession.

La.Civ.Code art. 3442. Another applicable principle governing this case is that when

a party proves acquisitive prescription, the boundary is fixed according to the limits

established by prescription rather than titles, and when the party and his ancestors in

title possessed within visible bounds more than their title called for, the boundary is

fixed along these bounds. La.Civ.Code art. 794.

The question before the trial court really involved the determination whether

possession by Foreman’s ancestors in title, the Warrens, was proven. The trial court

found that such possession was proven. That finding represents one of fact, and is

subject to reversal only on a determination that it was manifestly erroneous. Merritt

v. Brennan, 08-973 (La.App. 3 Cir. 2/4/09), 3 So.3d 646.

The manifest error standard of review is not an easy hurdle to clear. The

Louisiana Supreme Court has established a two-part test to determine whether a

finding is manifestly erroneous:

1) The appellate court must find from the record that a reasonable
factual basis does not exist for the finding of the trial court, and

2) the appellate court must further determine that the record establishes
that the finding is clearly wrong (manifestly erroneous).

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Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

The reviewing court must examine the record in its entirety to determine, not whether

the factfinder’s conclusion was wrong, but whether the conclusion is reasonably

supported by the record. Id. The trial court has greater capacity to evaluate the

credibility of witnesses; therefore, where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be manifestly erroneous. Id.

Soileau correctly points out that Foreman testified that he never possessed with

intent to own the strip. The real focus, though, should not be on Foreman, who only

acquired lots 130 and 131 in 2006, but on the Warrens, who purchased the property

in 1966. It is only through the Warrens that Foreman could acquire ownership of the

property.

The record does reflect a reasonable basis for the trial court’s determination

that the Warrens had possessed the 35-foot strip. They regularly maintained the strip.

They installed a culvert in a location the exhibits reflect to be approximately in the

center of the frontage of the strip on Carson Street. While no overt evidence

established the Warrens’ intent to possess as owners, the law presumes such intent.

La.Civ.Code art. 3427. No evidence was introduced to rebut the presumption. We

concur that in the context of this case, these actions were sufficient to constitute

possession. Lafleur testified that he maintained the lots and the strip from the time

he was about 14 years old. He was 56 years old at the time of trial. Thus, possession

exceeded 30 years.

CONCLUSION

Foreman’s construction of the motor home garage did not violate the building

restriction limiting use of the property to residential purposes and prohibiting the

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placement of manufactured or prefabricated houses on the lots. The trial court did not

err in determining that Foreman’s ancestors in title possessed the 35-foot strip and

acquired same through prescription. The judgment of the trial court is affirmed. All

costs of this appeal are taxed to plaintiff/appellant, Lester E. Soileau, Jr.

AFFIRMED.

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