Ricko Construction, Inc. v. Owen Dubois

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 10-1062

RICKO CONSTRUCTION, INC.

VERSUS

OWEN DUBOIS, ET AL.

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 19,802
HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Norval J. Rhodes
206 Hall Street
Montgomery, LA 71454
(318) 627-5563
Counsel for Defendants/Appellees:
Owen Dubois
L. V. Fredieu Bryant

Michael John O’Shee
Randall Lee Wilmore
Gold, Weems, Bruser, Sues & Randell
P. O. Box 6118
Alexandria, LA 71307
(318) 445-6471
Counsel for Plaintiff/Appellant:
Ricko Construction, Inc.

EZELL, JUDGE.

Ricko Construction, Inc. appeals a trial court judgment dismissing its claim to

be recognized as owner of a disputed tract of property in Grant Parish along

Sugarhouse Bayou. Ricko filed suit for damages to its property, claiming ownership

of the property by thirty-years acquisitive prescription.

FACTS

In 1972, L.V. and Earl Bryant purchased some property in Grant Parish located

along Sugarhouse Bayou and Louisiana Highway 8. The Bryants lived in a house

located on the property while they built a house on Patterson Road. In 1974, the

Bryants sold 0.48 acres to Cassie and O.D. Slayton. This portion of the property

contained the house. Mr. Bryant was Mr. Slayton’s uncle. The Bryants continued to

own the property on the eastern boundary. In 1997, after her husband died, Mrs.

Slayton moved out. At the time, their son Charles Slayton continued living in the

home. During the years 2000-2002, the house was vacant. Within a year, the house

was demolished.

In 2004, another son, Willie Slayton, bought the property from his mother. At

that time he would bring a travel trailer to use on the property. In April 2007, Willie

leased the property to Ricko and eventually sold the property to Ricko in November

2008.

In September 2007, Owen Dubois, who owned the property across the street

and to the west of the disputed tract, erected a fence across the backside of the

property owned by Ricko, cutting off access to Sugarhouse Bayou. Mr. Dubois did

this at Mrs. Bryant’s direction. In October 2008, Mrs. Bryant had Mr. Dubois remove

a fence on the eastern boundary of the property and destroy some concrete steps that

went down to the water that Willie had built on property.

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Ricko Construction and its president and owner, Roy Bennett, filed suit in

December 2008 against Mrs. Bryant and Mr. Dubois seeking damages. A bench trial

was held on January 27, 2010.

The trial court issued written reasons for judgment and found that Mr. Bennett

had no right of action since Ricko, and not Mr. Bennett, is the owner of the property.

The trial court found that the deed conveying the property to Ricko did not contain

language transferring title to the land below the “high bank.” The court further found

that Ricko had not established adverse possession to establish title by acquisitive

prescription of thirty years.

Ricko filed the present appeal claiming that the trial court should have

recognized Ricko as the owner of the disputed property by thirty-years acquisitive

prescription. In the alternative, Ricko argues that the trial court erred in refusing to

rule on the navigability of Sugarhouse Bayou so as to allow Ricko to use the bank as

a public thing.

BURDEN OF PROOF

Ricko claims that the action became a petitory action when Mrs. Bryant

answered the suit claiming she was owner of the disputed property. Ricko argues that

the trial court erred in finding that Mrs. Bryant had established “title good against the

world” citing La.Code Civ.P.art. 3657 and Duck v. Guillory, 98-1358 (La.App. 3 Cir.

3/3/99), 737 So.2d 91, writ denied, 99-913 (La. 4/30/99), 743 So.2d 210.

Ricko filed an action in trespass. An action of trespass is neither a petitory, nor

a possessory, nor a boundary action. Harvey v. Havard, 287 So.2d 780 (La.1973).

Therefore, the action is not converted into a petitory action, and the issue becomes

who has better title. Id.; Hayward v. Noel, 225 So.2d 638 (La.App. 1 Cir. 1969), writ

refused, 254 La. 857, 227 So.2d 595 (1969); Delacroix Corp. v. Dean, 04-899

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(La.App. 4 Cir. 4/13/05), 901 So.2d 1188. “[T]itle to the land is a pivotal issue

simply because it is the foundation for the action and the plaintiff in such action bears

the burden of proving his ownership.” Brown v. Bedsole, 447 So.2d 1177, 1181

(La.App. 3 Cir.), writ denied, 450 So.2d 358 (La.1984).

Mrs. Bryant was not required to prove “title good against the world,” and

therefore the issue we must address is whether Ricko had better title than Mrs.

Bryant.

THIRTY-YEARS ACQUISITIVE PRESCRIPTION

There is no dispute in this case that Ricko and its ancestors in title did not have

just title to the disputed property. However, Ricko argues that its ancestors in title

exercised acts of adverse possession to the disputed area to establish ownership by

prescription.

“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.

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

corporeal possession of the thing.” La.Civ.Code art. 3424. “Corporeal possession

is the exercise of physical acts of use, detention, or enjoyment over a thing.”

La.Civ.Code art. 3425. “One is presumed to intend to possess as owner unless he

began to possess in the name of and for another.” La.Civ.Code art. 3427. “In the

absence of title, one has possession only of the area he actually possesses.”

La.Civ.Code art. 3426.

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“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. Privity of contract or estate is an essential

prerequisite to tacking on the possession of an ancestor in title for prescriptive

possession purposes. Marks v. Zimmerman Farms, LLC, 44,279, 44,280 (La.App. 2

Cir. 5/20/09), 13 So.3d 768.

The party seeking to establish title to property through acquisitive prescription

bears the burden of proof. Brooking v. Vegas, 03-1114 (La.App. 3 Cir. 2/4/04), 866

So.2d 370, writ denied, 04-577 (La. 4/30/04), 872 So.2d 491.

The Slaytons bought the property in 1974; so if there were sufficient acts of

possession over the disputed area for thirty years without interruption, then ownership

of the property would have vested by virtue of acquisitive prescription in 2004.

What constitutes possession depends primarily on the nature of
the property. “The quality of possession required in a particular case
depends not only on its classification as good or bad faith possession,
but also on the type of land in dispute. Liner v. Louisiana Land &
Exploration Co., supra at 772. The acts of possession required in the
case of farm land must be of a greater quality than in the case of
woodland; and, a greater quality of possession is required in the case of
woodland than in the case of swamp or marsh land. Liner, supra at 772.
Further, where an individual claims by corporeal possession alone and
without title, he must show an adverse possession within enclosures.
Norton v. Addie, supra at 436. “ ‘Enclosed’ does not necessarily mean
‘fenced in.’ ” City of New Orleans v. New Orleans Canal, Inc., 412
So.2d 975, 981 (La.1982).

“What the court means by ‘enclosures’, as that term is used
in the numerous cases found in the jurisprudence, is that
the land actually, physically, and corporeally possessed by
one as owner must be established with certainty, whether
by natural or by artificial marks; that is, that they must be
sufficient to give definite notice to the public and all the
world of the character and extent of the possession, to
identify fully the property possessed, and to fix with

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certainty the boundaries or limits thereof. . . .” Hill v.
Richey, supra at 440.

Chevron U.S.A. Inc. v. Landry, 558 So.2d 242, 244 (La.1990).

There are clear enclosures in this case that were in existence when the Bryants

bought the property. The eastern and western sides of the property were enclosed

with fences, with a natural boundary, Sugarhouse Bayou, on the northern side.

Highway 8 bounded the property on its southern side. These enclosures remained

when the Bryants sold the property to the Slaytons.

Testimony on behalf of Ricko established that it was under the impression it

bought the property all the way to the water. To establish corporeal possession,

Ricko introduced the testimony of Willie Slayton, whose family acquired the home

site in 1974 when he was twelve years old. He testified that the property was

bounded on the east and west by barbed wire fences. The fences ran from a concrete

marker on the property’s boundary with Louisiana Highway 8 to the water’s edge

behind the house. Mr. Dubois owned the property on the west side of the fence, and

the Bryants owned the property on the east side of the fence.

Willie testified that he mowed the bank with a push lawnmower many times as

a young boy. His family barbequed in the disputed area, and they fished in the bayou

from the bank. Willie testified that, at no time, did either of his parents acknowledge

to him that someone had an ownership interest in the property. When he bought the

property in 2004, he built some concrete steps on the bank which went close to the

water’s edge. He also moved a travel trailer on the property since the original house

had been demolished around 2002. Willie also testified that Mr. Bryant did not use

the property to the rear of the house when his family bought it. Willie testified that

he intended to sell to Ricko the property all the way to the water.

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When the Bryants bought the property in 1972, the fences were in existence.

They bought several tracts of land at the same time with the boundaries extending to

the center of Sugarhouse Bayou. At that time, the Bryants had Mr. Barrett Gremillion

preform a survey which was completed on August 17, 1972. The survey marked the

points of the high bank from Sugarhouse Bayou on all of the property. According to

testimony, the sale to the Slaytons did not include the land from the high bank to the

middle of bayou but only the 0.48 acres that included the house and down to the high

bank. This is not disputed.

When the Bryants sold the property to the Slaytons, they did not take down the

fences that enclosed that piece of property. Mrs. Bryant testified that her husband did

not remove the fences because he had cattle on the rest of the property that was

adjacent to the piece of land they sold to the Slaytons. According to Mrs. Bryant, she

and her husband explained to Mr. Slayton that they were only selling the property

down to the high bank. Mrs. Bryant stated that she would go on the property on

occasion to visit the Slaytons.

Mr. Dubois testified that he had an oral agreement with Mrs. Bryant to lease

the property in dispute after her husband died in 1991. He testified that he did not do

much on the disputed property except to maybe walk on it on occasion. To access the

property, he would climb over the fence adjacent to the property he owned.

There was never any testimony from Mrs. Bryant that she had leased the

disputed property to Mr. Dubois. Mrs. Bryant agreed that she did not maintain this

property. It was not until 2007 that Mrs. Bryant directed Mr. Dubois to erect a fence

across the back side of the property. In October 2008, Mrs. Bryant directed Mr.

Dubois to cut the fence on the eastern side of the property, in addition to cutting the

timber on that side. Mr. Dubois was also directed to destroy the concrete steps at that

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time.

Murrell Page testified that he was asked by Mrs. Bryant to help find the corners

of her property after her husband died. Mr. Page had worked for a land surveyor. He

went over to the property one afternoon, and Mr. O.D. Slayton came out of the house

to ask him what he was doing. Mr. Slayton helped Mr. Page find the metal pipes

establishing the boundaries, including the high water mark. Mr. Page testified that

Mr. Slayton did not indicate that he owned the property all the way to the water’s

edge. Mrs. Bryant confirmed that Mr. Slayton helped them find the metal pipes in the

ground.

Earline Humphrey, the Bryants’ daughter, also testified at the trial. She was

married at the time the Bryants originally bought the land. She testified that she

always knew that her parents did not sell the section of the land from the high bank

down to the water to the Slaytons.

The trial court found that Ricko had not established sufficient acts of adverse

possession. Specifically, the trial court found that the Slaytons may have been

possessing as adverse possessors on behalf of the Bryants. The trial court then further

stated that all acts of possession at trial were not enough to start the running for

thirty-year acquisitive prescription purposes until Willie built the concrete steps.

Based on the evidence presented at the trial, we cannot say that the trial court

committed manifest error in finding that Ricko failed to establish title to the property

by thirty-years acquisitive prescription. We agree with the trial court that there were

not sufficient acts of possession over the disputed land to establish ownership. The

testimony established that the Bryants indicated to the Slaytons that they were not

selling the land past the high water mark. The Slaytons may have used the disputed

land in conjunction with their own land but it appears from the evidence that they

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were possessing on behalf of the Bryants. Mr. Page, a disinterested witness, even

acknowledged that Mr. Slayton did not indicate he owned the disputed land when he

helped him locate the metal pipe markers.

NAVIGABILITY

In the alternative Ricko argues that the trial court should have addressed the

issue of navigability. Ricko claims that it presented evidence that Sugarhouse Bayou

was a navigable water body, entitling Ricko to use the bayou’s banks as a public

object.

A judgment that is silent as to part of the relief requested is deemed to have

denied the relief. Duhon v. Lafayette Consol. Gov’t, 05-657 (La.App. 3 Cir.

12/30/05), 918 So.2d 1114. The trial court did not address the issue of the

navigability of Sugarhouse Bayou, so we deem it denied.

“Navigability is not presumed; the burden of proof rests with the party seeking

to establish it.” State ex rel Guste. v. Two O’Clock Bayou Land Co., Inc., 365 So.2d

1174, 1177 (La.App. 3 Cir. 1978), writ denied, 367 So.2d 387 (La.1979).

A body of water is navigable in law when it is navigable in fact.
The factual question turns on whether the evidence shows a body of
water to be suitable by its depth, width and location for commerce.
However, lack of commercial traffic does not preclude a finding of
navigability.

Id. (citations omitted)

Ricko introduced the testimony of Larry Decker, a surveyor with the Office of

State Lands in Baton Rouge. Mr. Decker explained that the Office of State Lands

deals with issues of historical navigability, meaning what was navigable at the time

of statehood for Louisiana in 1812. He testified that the issue of whether Sugarhouse

Bayou was navigable required further study.

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Based on this evidence we find that the trial court was correct in denying

Ricko’s request to have Sugarhouse Bayou declared navigable.

For the above reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed against Ricko Construction, Inc.

AFFIRMED.

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