Timothy Lynn Page v. William J. Wise

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

10-1273

TIMOTHY PAGE AND
CHARLOTTE CANERDAY PAGE

VERSUS

WILLIAM J. WISE

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 234,546-A
HONORABLE DONALD T. JOHNSON, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Billy H. Ezell, J. David Painter, and James T. Genovese, Judges.

AFFIRMED.

Bobby L. Culpepper
Culpepper & Carroll, PLLC
525 East Court Avenue
Jonesboro, Louisiana 71251
(318) 259-4184
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Timothy Page and Charlotte Canerday Page

Jared Dunahoe
Dunahoe Law Firm
402 Second Street
Post Office Box 607
Natchitoches, Louisiana 71457
(318) 352-1999
COUNSEL FOR DEFENDANT/APPELLEE:
William J. Wise

GENOVESE, Judge.

In this property case, Plaintiffs, Timothy and Charlotte Canerday Page, appeal

the trial court judgment dismissing their possessory action. Finding no error by the

trial court, we affirm.

FACTS

On March 25, 2009, Plaintiffs filed a possessory action against William J. Wise

(Defendant) seeking to “recognize [their] right of possession of the subject

immovable property and [to be maintained] in possession thereof.” Plaintiffs

purchased the twenty acres of immovable property in dispute on January 9, 2001.

The property is situated in both Natchitoches Parish and Rapides Parish, Louisiana,

and is described in the Plaintiffs’ petition as:

A certain tract of land, lying[,] being[,] and situated in Rapides Parish,
Louisiana, and being more particularly described as twenty (20) acres of
land located, lying[,] and being in Section Twenty-Eight (28), Township
Six (6) North, Range Four (4) West, bounded North by land now or
formerly belonging to Alex Wallet; East by lands now or formerly
belonging to Sam S. Mims or Damingo Flores; West and South by
property now or formerly belonging to Alex Wallet[;] and being the
property acquired by William C. Davis from Henry C. Thompson by
deed dated September 27, 1921, recorded in Conveyance Book 111,
page 95; and being the same property acquired by Susie T. Lemoine, et
al, from William C. Davis by deed dated July 7, 1936, recorded in
Conveyance Book 210, page 108, and being the same property acquired
by Edith G. Watson and William T. Watson from Susie T. Lemoine, et
al, by deed dated September 1, 1943, recorded in Conveyance Book 280,
page 529, all references being to the records of Rapides Parish,
Louisiana, and together with all buildings and improvements thereon
situated. A portion of the above property may lie in Natchitoches
Parish, Louisiana.

The above described property is believed to be in the Southwest Quarter
of the Northeast Quarter[,] and in the Northwest Quarter of the
Southeast Quarter of Section 28, Township 6 North, Range 4 West,
Rapides and Natchitoches Parishes, Louisiana; being the same property
acquired by Mathew McCarter and Edna Quin McCarter from Leo C.
Schmidt by deed dated October 5, 1957, recorded in Conveyance Book
512, page 409, under Original Entry #419383; and acquired from Mona
Virginia Brown Ward, as a single woman, from Matthew McCarter and
Edna Quin McCarter by Act of Cash Sale dated and recorded

February 10, 1965, in Conveyance Book 654, page 186, under Original
Entry #506828, all [of the] records of Rapides Parish, Louisiana.

In their possessory action, Plaintiffs alleged that they “have had possession of

said property since 2001 and have evidenced their possession of said property by

having it surveyed in 2005, painting lines, raising pine trees on same[,] and paying

the taxes on same.” Plaintiffs further asserted that “although [they] were aware that

a portion of said property was assessed to [D]efendant in Natchitoches Parish,

Louisiana, only within the past six months did [D]efendant make [them] aware that

he claimed ownership of same.” Defendant answered the petition on May 6, 2009,

denying Plaintiffs’ allegations.

A bench trial in this matter was held on July 22, 2010. At trial, the parties

presented their evidence for the court’s consideration, and the trial court took the

matter under advisement. Subsequently, the trial court issued Written Reasons for

Judgment, finding that Plaintiffs had not met their burden of proof to establish their

possession of the immovable property in dispute. The trial court wrote, in pertinent

part:

In this case, both parties introduced evidence[] (testimonial and
documentary) of their possession. Timothy Page testified his acts of
possession on said property included marking and painting lines, paying
taxes on the property, having the property surveyed[,] and growing
timber. However, he further testified that he had not been on the
property since he purchased the property in 2001. He also testiifed that
he did not physically plant nor did he have anyone else plant timber on
the property. He testified that he hired a forester in 2007 to look at the
timber. [Mr.] Page also stated that he never built a fence around the
property.

Land surveyor Timothy Howell[1] testified that he surveyed the
land in 2005. During his survey, he noted a fence on the north boundary
of the property and forest land on the east. He did not note any

1
Hugh Timothy Howell, a Registered Land Surveyor, was accepted by the trial court as an
expert in land surveying.

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buildings on the property. He did notice four-wheeler trails on the
disputed property. He also testified that after reading the deed to the
property, he contacted the [D]efendant to notify him of the survey.
Mr. Howell stated that he marked the west boundary line by blazing and
painting lines.

Contrarily, [Mr.] Wise testified that he also performed acts of
possession on the property since his purchase in 1983. He testified not
only does he live on the property, he maintains wood roads on the
property, mows the land, and hunts on the land. He also installed deer
stands and rides on the land periodically with a four wheeler. He further
testified that in 1995 he cut and sold timber from the land. [Mr.] Wise
stated that he has never seen [Mr.] Page on the property and never
received notification from the surveyor. [Mr.] Wise further asserted that
he allows his son to live in a trailer on the property. During his
testimony, [Mr.] Wise informed the court of the location of his home on
the survey map introduced into evidence. He asserted that a portion of
his home is located on the [twenty] acres in dispute. [Mr.] Wise also
provided the [c]ourt with the deed to the property asserting that he also
has constructive possession of the property.

The [c]ourt agrees with the [D]efendant. Although [Plaintiffs]
acquired the disputed property in 2001, they did not perform any acts of
possession on the said property. [Mr.] Page states that having the
property surveyed and paying taxes are acts of corporeal possession and
shows that they should be maintained in possession. The [c]ourt
disagrees. Jurisprudence is clear that mere surveying of property is not
an act of possession. Anderson v. Winnsboro Gin, Inc.[, 467 So.2d 865
(La.App. 2 Cir. 1985)]. The Louisiana Supreme Court further stated in
Ree Corporation v. Shaffer, [260 So.2d 307, 312] (La.1972), “[T]he
mere payment of taxes does not constitute the physical possession
required by [La.Code Civ.P. art.] 3660[2] to bring a possessory action.”

Furthermore, [Mr.] Page admitted that he had not been on the
property since the purchase. He further stated that he did not cultivate

2
Louisiana Code of Civil Procedure Article 3660 provides:

A person is in possession of immovable property or of a real right therein,
within the intendment of the articles of this Chapter, when he has the corporeal
possession thereof, or civil possession thereof preceded by corporeal possession by
him or his ancestors in title, and possesses for himself, whether in good or bad faith,
or even as a usurper.

Subject to the provisions of Articles 3656 and 3664, a person who claims the
ownership of immovable property or of a real right therein possesses through his
lessee, through another who occupies the property or enjoys the right under an
agreement with him or his lessee, or through a person who has the use or usufruct
thereof to which his right of ownership is subject.

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timber or cut timber or perform any other acts showing possession of the
land. He stated[,] “[T]he good Lord raised the timber.”

Based on the evidence presented, the [c]ourt finds [Plaintiffs] did
not meet their burden of proof. [Plaintiffs] did not prove acts sufficient
to constitute possession.

On August 11, 2010, the trial court signed a judgment dismissing Plaintiffs’

possessory action and maintaining Defendant in possession of the immovable

property in dispute.

ASSIGNMENTS OF ERROR

Plaintiffs appeal, alleging that the trial court erred “in allowing into evidence

proof of title[]” and “in determining that [they] did not prove act[s] sufficient to

constitute possession.”

STANDARD OF REVIEW

The appellate standard of review of factual determinations was previously set

forth by this court in Allen v. Belgard, 05-1284, pp. 10-11 (La.App. 3 Cir. 4/5/06),

925 So.2d 1275, 1282:

An appellate court may not set aside a trial court’s findings of fact
in absence of manifest error or unless it is clearly wrong. Stobart v.
State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549
So.2d 840 (La.1989). A two-tiered test must be applied in order to
reverse the findings of the trial court:

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

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

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more
reasonable than the fact finder’s, reasonable determinations and
inferences of fact should not be disturbed on appeal. Arceneaux v.

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Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court
must keep in mind that if a trial court’s findings are reasonable based
upon the entire record and evidence, an appellate court may not reverse
said findings even if it is convinced that had it been sitting as trier of
fact it would have weighed that evidence differently. Housley v. Cerise,
579 So.2d 973 (La.1991). The basis for this principle of review is
grounded not only upon the better capacity of the trial court to evaluate
live witnesses, but also upon the proper allocation of trial and appellate
functions between the respective courts.

LAW AND DISCUSSION

In their first assignment of error, Plaintiffs assert that the trial court erred “in

allowing into evidence proof of title.” Plaintiffs argue in brief that, despite their

objections, the trial court allowed Defendant to introduce exhibits and elicit testimony

relative to ownership or title. Plaintiffs assert that Defendant was also allowed to

question their surveyor, Mr. Howell, about a Partition which was recorded in 1983

and the property description contained therein. Plaintiffs also complain that

Defendant introduced the title opinion they obtained in April of 2000 which was prior

to their purchase of the property at issue herein on January 9, 2001. Plaintiffs argue

that the trial court erred because La.Code Civ.P. art. 3661 “specifically shows that the

deeds and title opinion were not admissible into evidence.”

In response, Defendant argues that he introduced “his title to show the

untimeliness of [Plaintiffs’] possessory action[]” pursuant to La.Code Civ.P. art.

3658(4) which requires a possessory action to be instituted “within a year of the

disturbance.” Defendant also asserts that he “offered his title into evidence to prove

the extent of his possession[]” and “to prove the vagueness of [Plaintiffs’] property

description.” Defendant asserts that “[t]he vagueness of [Plaintiffs’ property]

description is relevant because it precludes [them] from invoking the benefits of

constructive possession.”

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Louisiana Code of Civil Procedure Article 3661 provides:

In the possessory action, the ownership or title of the parties to the
immovable property or real right therein is not at issue.

No evidence of ownership or title to the immovable property or
real right therein shall be admitted except to prove:

(1) The possession thereof by a party as owner;

(2) The extent of the possession thereof by a party; or

(3) The length of time in which a party and his ancestors in title
have had possession thereof.

Based upon our review of the evidence, we find no error by the trial court in

allowing Defendant’s exhibits into evidence. Defendant’s offerings fall within the

exceptions enumerated in La.Code Civ.P. art. 3661. Defendant’s evidence

corroborated his testimony and, likewise, established the length of time that he has

had possession of the immovable property in dispute. Therefore, we find no merit in

Plaintiffs’ first assignment of error.

In their second assignment of error, Plaintiffs contend that the trial court erred

“in determining that [they] did not prove act[s] sufficient to constitute possession.”

Plaintiffs reiterate in brief their assertion that their actions met the definition of

possession. According to Plaintiffs’ brief, “[n]ot only was the property surveyed[,]

but it was marked so it was clearly visible to [D]efendant that [they] claimed

possession of same.”

Defendant counters by asserting that he was never contacted by either Plaintiffs

or Mr. Howell, their surveyor; thus, he “was unaware of who had conducted the

survey and painted lines[.]” Defendant argues that the Plaintiffs’ payment of taxes

and “surveying and painting the lines did not put [him], or anyone else for that

matter, on notice that [Plaintiffs were] possessing the property.” Defendant contends

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that “[t]here is no evidence in the record that [Plaintiffs] ever treated or in any way

managed the timber . . . ,” and he argues that “the act of ‘raising pine trees’ is not an

act of possession within the meaning of [La.Code Civ.P. art.] 3658.”

Possession is defined in Louisiana’s Civil Code as “the detention or enjoyment

of a corporeal thing, movable or immovable, that one holds or exercises by himself

or by another who keeps or exercises it in his name.” La.Civ.Code art. 3421. It is a

“matter of fact,” and a person who possesses “a thing for over a year acquires the

right to possess it.” La.Civ.Code art. 3422. “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 defined in Louisiana’s Civil Code as “the exercise

of physical acts of use, detention, or enjoyment over a thing.” La.Civ.Code art. 3425.

Louisiana Civil Code Article 3426 provides “[o]ne who possesses a part of an

immovable by virtue of a title is deemed to have constructive possession within the

limits of his title. In the absence of title, one has possession only of the area he

actually possesses.”

Louisiana Code of Civil Procedure Article 3655 defines a possessory action as

“one brought by the possessor of immovable property or of a real right therein to be

maintained in his possession of the property or enjoyment of the right when he has

been disturbed, or to be restored to the possession or enjoyment thereof when he has

been evicted.” Pursuant to La.Code Civ.P. art. 3656, “[t]he possessory action shall

be brought against the person who caused the disturbance . . . .” Louisiana Code of

Civil Procedure Article 3658 mandates:

To maintain the possessory action the possessor must allege and
prove that:

(1) He had possession of the immovable property or real right
therein at the time the disturbance occurred;

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(2) He and his ancestors in title had such possession quietly and
without interruption for more than a year immediately prior to the
disturbance, unless evicted by force or fraud;

(3) The disturbance was one in fact or in law, as defined in Article
[3]
3659; and

(4) The possessory action was instituted within a year of the
disturbance.

We have reviewed the evidence and agree with the factual conclusions reached

by the trial court. Plaintiffs’ possessory action is legally flawed because it failed to

clearly and overtly establish their intent to possess the immovable property in dispute.

Plaintiffs, by their own admission, had never even set foot on the property since their

purchase of same in 2001. Plaintiffs did not possess within the meaning of either

corporeal possession or constructive possession. Merely having the land surveyed

without Defendant’s knowledge is insufficient to establish either corporeal or

constructive possession by Plaintiffs. Plaintiffs’ actions did not demonstrate an intent

to possess to Defendant, or anyone else. Therefore, we find no clear or manifest error

in the trial court’s factual findings relative to Plaintiffs’ possession, or lack thereof.

Plaintiffs failed to meet their burden of proof set forth in La.Code Civ.P. art. 3658.

Plaintiffs assignments of error are without merit.

3
Louisiana Code of Civil Procedure Article 3659 defines the two kinds of disturbances which
give rise to a possessory action, disturbance in fact and disturbance in law, as follows:

A disturbance in fact is an eviction, or any other physical act which prevents
the possessor of immovable property or of a real right therein from enjoying his
possession quietly, or which throws any obstacle in the way of that enjoyment.

A disturbance in law is the execution, recordation, registry, or continuing
existence of record of any instrument which asserts or implies a right of ownership
or to the possession of immovable property or of a real right therein, or any claim or
pretension of ownership or right to the possession thereof except in an action or
proceeding, adversely to the possessor of such property or right.

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DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in all

respects. Costs are assessed to Plaintiffs/Appellants, Timothy and Charlotte

Canerday Page.

AFFIRMED.

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