Mildred Grantham v. Loy Ray Gaddis, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-558

MILDRED GRANTHAM

VERSUS

LOY RAY GADDIS, JR.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 63,648
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery,
Judges.

REVERSED AND RENDERED.

John W. Pickett
Attorney at Law
Post Office Box 250
Many, Louisiana 71449
(318) 256-3846
COUNSEL FOR DEFENDANT/APPELLANT:
Loy Ray Gaddis, Jr.

Ronald D. Brandon
Attorney at Law
Post Office Box 216
Many, Louisiana 71449
(318) 256-5910
COUNSEL FOR PLAINTIFF/APPELLEE:
Mildred Grantham

CONERY, Judge.

“Good fences make good neighbors.” 1 Old fences make for boundary

disputes. Plaintiff/Appellee, Mildred Grantham (Mrs. Grantham), filed a petition

asking the court to set the boundary based on acquisitive prescription between

property she owned and that of an adjoining landowner, Loy Ray Gaddis, Jr. (Mr.

Gaddis). Mrs. Grantham, a resident of Texas since 1949, claimed she and her

ancestors in title had acquired ownership by thirty-year acquisitive prescription of

a contested strip of land between the two properties consisting of approximately

eight acres. Mr. Gaddis answered and claimed that the “boundary” was not in

dispute, that he need not prove “possession” as it was undisputed he had record

title to the property in question, and that Mrs. Grantham had not possessed the

property in question openly and adversely for the requisite thirty years.

After trial on the merits and the filing of post-trial memoranda, final

judgment was rendered in favor of Mrs. Grantham against Mr. Gaddis. Mr. Gaddis

timely appealed. Finding legal error, we reverse the trial court’s judgment finding

that Mrs. Grantham met the burden of proof required for thirty-year acquisitive

prescription of the property in dispute and dismiss this suit with prejudice at the

cost of Mrs. Grantham.2

1
Robert Frost, Mending Wall (1916).
2
At oral argument, counsel for Mr. Gaddis argued that he had filed a reconventional
demand on behalf of Mr. Gaddis claiming acquisitive prescription of a piece of property
adjoining the property in dispute. A review of the record shows that while an amended answer
was filed, no reconventional demand was pled, and no prayer for relief asking that additional
property be adjudicated to Mr. Gaddis was included. We will not consider that claim as this
court is without jurisdiction to decide it. See Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08),
996 So.2d 654.

ASSIGNMENTS OF ERROR

Mr. Gaddis assigned five assignments of error on appeal. The first four

assignments of error deal with acquisitive prescription and the burden of proof, and

will be considered together. The fifth assignment of error deals with Mr. Gaddis’

reconventional demand, which, as we indicated, is not properly before us.

STANDARD OF REVIEW

The party pleading acquisitive prescription, in this case Mrs. Grantham, who

admittedly had no just title to the property in question, is “required to bear the

burden of proving” all the essential facts to support her claim of thirty-year

acquisitive prescription.3 Hillman v. Andrus, 11-5, p. 8 (La.App. 3 Cir 5/4/11), 63

So.3d 1164, 1170, writ denied, 11-1004 (La. 7/1/2011), 64 So.3d 234.

The property that is the subject of the dispute between Mrs. Grantham and

Mr. Gaddis is depicted on P/1 – d/1, a plat of survey of the lands owned by Mrs.

Grantham and Mr. Gaddis, with the “shaded area” encompassing the land owned

by Mr. Gaddis, but claimed on the basis of thirty year acquisitive prescription by

Mrs. Grantham. The plat clearly shows that the actual “boundary,” as shown on

the survey of the two tracts, is not in dispute and is clearly depicted. 4 Likewise,

there is no dispute that Mr. Gaddis has record title to the land in question.

In its final judgment, the trial court found that Mr. Gaddis, i.e. the

undisputed record owner of the property, “has not met his burden of proof for

acquisitive prescription of the subject problem area,” and rendered judgment in

favor of Mrs. Grantham, “finding she has met her burden of proof for acquisitive

3
“A just title is a juridical act, such as a sale, exchange, or donation, sufficient to transfer
ownership or another legal right. The act must be written, 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.
4
See Appendix 1 attached to this opinion.

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prescription of the subject lands. . . . This court finds that Plaintiff has had

continuous, uninterrupted, peaceable, public, and unequivocal possession for a

period of thirty (30) years without title.”

In finding that Mr. Gaddis was required to bear the burden of proof as to the

actual possession of the “subject problem area,” the trial court committed legal

error, which tainted its judgment. We set aside the judgment and review the record

de novo. See Bailey v. Descendants of Fowler, 99-418 (La.App. 3 Cir. 10/13/99),

746 So.2d 130, writ denied, 99-3243 (La. 1/28/2000) 753 So.2d 830.

LAW AND DISCUSSION

Thirty-Year Acquisitive Prescription

The following Louisiana Civil Code articles govern the requirements for

Mrs. Grantham, in the absence of just title, to prove thirty years of adverse

possession of the “subject problem area.”

“Possession of an immovable is the detention or enjoyment of a corporeal

thing.” Prince v. Palermo Land Co., 05-1399, p. 4 (La.App. 3 Cir. 5/3/06), 929

So.2d 831, 834. Louisiana Civil Code Article 3425 provides that “[c]orporeal

possession is the exercise of physical acts of use, detention, or enjoyment over a

thing.” In order to acquire a thing by prescription, “[t]he possessor must have

corporeal possession or civil possession preceded by corporeal possession. . . . The

possession must be continuous, uninterrupted, peaceable, public and unequivocal.”

La.Civ.Code art. 3476. Louisiana Civil Code Article 3487 provides that

“possession extends only to that which has been actually possessed.”

The individual claiming acquisitive prescription must also prove that she

intended to possess as an owner, “adverse to the actual owner,” for the required

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thirty years. See La.Civ.Code art. 3424; Phillips v. Fisher, 93-928 (La.App. 3 Cir.

3/24/94), 634 So.2d 1305, writ denied, 94-813 (La. 5/6/94), 637 So.2d 1056.

Louisiana Civil Code Article 3442 allows “tacking” of the possession of a

transferor to that of a transferee if possession has not been interrupted. “If a party

seeks to prove acquisitive prescription through ‘tacking,’ it must establish that it

and its ancestor’s exercised possession of the disputed property up to a visible

boundary since the subject property is not contained within its title.” Hillman, 63

So.3d at 1170; See also McDaniel v. Roy O. Martin Lumber Co. Inc., 560 So.2d

676 (La.App. 3 Cir. 1990). “The nature of the land or the use to which it is

destined governs the possession necessary to support prescription.” Id. at 680.

Mr. Gaddis’ Chain of Title

The abstracts of title to the subject properties have been placed in evidence

and are not in dispute. We find that the facts involving ownership and possession

of the properties were correctly summarized in Mr. Gaddis’ brief and we quote

with approval as follows:

The record reflects that sometime around November, 1927
George A. Grantham began acquiring interests in the West Half of the
Northeast Quarter of Section 3, Township 8 North, Range 11 West,
Sabine Parish, Louisiana. It also appears that sometime subsequent to
that he and his wife moved into a house situated on what is now
Defendant’s land and later remodeled or re-built another frame house
next to it. There is no evidence as to what agreement did or did not
exist between the Granthams and the landowner at the time of
occupancy. No specific dates are available. That structure still stands
and is situated in the southern part of what the Trial Court called the
“subject problem area”. Mr. & Mrs. Grantham reared 11 children
while farming property in the West Half of the Northeast Quarter of
Section 3. There is no evidence of any use by G. A. Grantham of the
remaining acreage in the “subject problem area” other than a garden
and water well immediately adjacent to this house.
Please also note that Carhee Road (a public road) runs through
the middle of this tract from north to south. Any fencing necessary to

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keep livestock off this road would of necessity need to follow it and
the Gaddis’ maintain such a fence. It is so identified by the Court.
All the Grantham children eventually left home and G. A.
Grantham died, intestate, on November 10, 1965. At the time of his
death one adult son, Chester A. Grantham, was residing with his
parents. He died in 1970. Shortly thereafter Mrs. Ollie Grantham,
who suffered from macular degeneration, moved into the home of one
of her daughters who lived in the community. She resided there until
her death in 1973. There is no evidence of any regular farming of the
Grantham property or occupancy of this house (on Defendant’s land)
from this time until 1983, when R. E. Grantham began journeying
from his home and barber business in Shreveport, Louisiana to stay
periodically in the old Grantham house while he farmed (a truck
patch) on part of the adjacent Grantham property and a small garden
next to the house. The actual dimensions and limits of his garden are
unknown.

The present Defendant, L. R. Gaddis, Jr.’s parents acquired the
land upon which the house is situated on December 2, 1954. The
remaining property in which the “subject problem area” lies was
acquired by inheritance in 1979. Present Defendant acquired the
property by donation in March, 2010. The Gaddis family has been
farming, raising cattle, timber and operating commercial broiler
houses on this property since acquisition. Therefore, when R. E.
Grantham began these periodic appearances in the summer of 1983
the present Defendant and/or his parents or grandparents had owned
and had been farming, raising cattle and conducting other agricultural
activities on all or part of this land for well over thirty years. The
house had been essentially abandoned since 1970 when R. E.
Grantham re-appeared.

The record reflects that Mr. & Mrs. Gaddis provided R. E.
Grantham with water for himself, feed for his livestock, fertilizer for
his garden and fencing materials he incorporated into fences on the
Grantham property (not the subject problem area). Thus, R. E.
Grantham was using this house not only with the landowners consent
but also with their substantial assistance. Other than the use of the
house, there is no evidence R. E. Grantham ever used any other part of
the “subject problem areas” with the exception of one summer when
he had a small garden next to the house. There is no evidence
whatsoever he was using this house, or any of the “subject problem
area” with the intent to own.

In 1984, the title in the record will reflect Marlon T. Grantham,
Plaintiff’s husband and heir of G. A. Grantham, traded all his interest
in Section 3 for 10 acres of land in Vernon Parish. He thus divested
himself of any interest in any Section 3 land.

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R. E. Grantham died testate on June 13, 1991. His entire estate
went to his daughter. The evidence at trial is that shortly after the
funeral this daughter, Loretta, loaded his belongings in his truck,
pulled the pump out of the water well and left. She never returned.
She opened his succession and recorded a Judgment of Possession on
January 29, 1992, and on October 21, 1992, 16 months after R. E.
Grantham’s death, executed a deed for her father’s undivided interest
in the Grantham lands (not the “subject problem area”) to Plaintiff and
her husband M. T. Grantham.

After trading away their interest in this section in 1984, Plaintiff
and her husband began re-acquiring undivided interest in the
Grantham land in the West Half of the Northeast Quarter of Section 3
in 1992. They also began to appear periodically at the old house and
began to repair it.

During all this time the Gaddis family has been farming and
maintaining this property by mowing road shoulders and on more than
one occasion cut and bailed hay on the open area around the house. In
addition to holding title to the property, the Gaddis’ were on all or part
of this property on a daily basis from 1954 to present. There were no
adverse acts of possession until sometime around 2004 when they
were fenced off and locked out of an unspecified piece of the southern
part of the “subject problem area”. No notice or action by Plaintiff or
any of her ancestors in title was such as to place the Gaddis on notice
that Plaintiff intended to claim ownership until this time. Plaintiff
erected a fence in front of the house and put up a locked gate. There is
no evidence in the record of the specific location of this fence or what
it actually encompasses.

Based on our de novo review of the record, we find that the trial court

committed legal error when it determined that Mr. Gaddis had an affirmative duty

to prove acquisitive prescription of the “subject problem area.” Mr. Gaddis is the

record title owner of the land, and the legal boundaries of his property are not in

dispute. As previously stated, the burden of proof was squarely on Mrs. Grantham

to prove “inch by inch” adverse, uninterrupted, open, and obvious, possession of

the “subject problem area” for thirty years.

Mrs. Grantham’s Claim of Thirty Year Acquisitive Prescription

In LePrettre v. Progressive Land Corp., 01-1660 (La.App. 3 Cir. 6/19/02),

820 So.2d 1240. In LePrettre, a panel of this court quoted Fisher and reiterated an

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excellent summary of the legal requirements that must be met before a title owner

can lose ownership by prescription:

A possessor will only be considered as possessing that part of
property over which he exercised actual, adverse, corporeal
possession which is continuous, uninterrupted, peaceable, public,
unequivocal and within visible bounds. He must also prove that he
intended to possess as owner, adverse to the actual owner, for the
required 30 years.

LePrettre, 820 So.2d at 1245.

Based on the evidence in the record, Mrs. Grantham has not met the burden

as summarized in LePrettre. At best, any “adverse” possession exercised by Mrs.

Grantham’s ancestor in title, George Grantham, from the time he acquired the

property adjacent to the “subject problem area” in 1927 until his death in 1965,

would have been possession of a house situated on a small portion of the subject

problem area and a small garden adjacent thereto. His son, Chester Grantham,

lived in the house until his death in 1970. There is no evidence as to what

agreement, if any, existed between George Grantham and the ancestor in title to Mr.

Gaddis. Mrs. Ollie Grantham, George Grantham’s widow, left the home after

Chester Grantham’s death in 1970 and died in 1973.

Assuming arguendo that a claim for acquisitive prescription to the old house

and adjoining garden could have been made by George Grantham or his heirs, the

evidence is uncontradicted that the old house and “garden” were abandoned in

1970 when Chester Grantham died, and Ollie Grantham, then legally blind, moved

in with one of her daughters until her death in 1973. Mrs. Grantham testified that

she believed Ollie Grantham continued to live in the house until her death in 1973,

but her testimony was not corroborated. Nevertheless, the Gaddis family

continued to farm the land in the “subject problem area” during this time period.

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There is no evidence of anyone living in the house or farming the subject

property until 1983, when Robert Elisha Grantham (R. E. Grantham), one of

George’s sons who lived in Shreveport, began to stay periodically in the old house

and planted a small garden next to it, while he farmed a larger “truck patch” on

adjacent property owned by the Granthams which was not on “the subject problem

area”. There is no evidence that R. E. Grantham used any other portion of the

“subject problem area” except for purposes of a small garden adjacent to the old

house. R. E. Grantham died in 1991.

After his death, Mary Loretta Gilcrease (Loretta), R. E. Grantham’s daughter,

loaded all movables and personal possessions located at the house in a truck and

pulled the pump out of the water well and left, never to return. A judgment of

possession in R. E. Grantham’s succession was filed on January 29, 1992. The

judgment placed Loretta in sole possession of all of R. E. Grantham’s property, but

makes no mention of the old house or the “subject problem area” therein.

In order to succeed in claiming acquisitive prescription of the “subject

problem area,” Mrs. Grantham had the burden of proving possession since at least

1981. To do so, she would have to “tack” possession to her ancestors. See

La.Civ.Code art. 3442. However, in order to take advantage of the tacking

provisions of La.Civ.Code art. 3442, there must have “been no interruption” of the

prior possession.

Mrs. Grantham does not dispute that “Possession is lost, when the possessor

manifests his intention to abandon it.” La.Civ.Code art. 3433. “The right to

possess is lost upon abandonment of possession.” La.Civ.Code art. 3434.

We find, at best, that George, Ollie, and R. E. Grantham were “precarious

possessors” of the house and adjacent garden only. R. E. Grantham’s possession

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of the house and garden was not only with the consent of the Gaddis family, but

with their assistance as well.

Mrs. Grantham and her husband, Marlon T. Grantham, did not acquire an

interest in the Grantham property adjoining the “subject problem area” until 1992.

In the interim, the Gaddis family continued to use the property in dispute for

farming. They mowed and baled hay around the old house, using much of the

subject problem area on a daily basis for growing timber and management of their

cattle and commercial broiler operation.

In 2002, Mrs. Grantham placed a fence around the old house, and in 2004,

some of the “subject problem area” was fenced by Mrs. Grantham, though the

exact portion fenced is not established in the record.

Simply put, the evidence does not support “actual, adverse, corporeal

possession which is continuous, uninterrupted, peaceable, public, unequivocal and

within visible bounds” with proof of intent “to possess as owner, adverse to the

actual owner, for the required 30 years.” LePrettre, 820 So.2d at 1245 (quoting

Fisher, 634 So.2d 1305).

Fencing As Proof of Thirty-Year Acquisitive Prescription

On appeal, Mrs. Grantham argues that La.Civ.Code art. 794 and the case of

Jackson v. Herring, 46,870 (La.App. 2 Cir. 1/25/12), 86 So.3d 9, writ denied, 12-

1452 (La. 9/27/13), 123 So.3d 727, support her claim for acquisitive prescription.

Louisiana Civil Code Article 794 states:

When a party proves acquisitive prescription, the boundary
shall be fixed according to limits established by prescription rather
than titles. 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.

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In Jackson, the plaintiff, Everlee Jackson (Ms. Jackson), who was seventy-

eight years old at the time of the litigation, asserted ownership of property acquired

by her in 2007 by virtue of what the trial court determined was thirty-year

acquisitive prescription. The property at issue was part of a twenty-eight acre tract,

which included what is referred to as an “old red house” that was purchased by the

defendants, Billy and Edith Herring (the Herrings), in 1994. In November 2008,

the Herrings erected a new fence blocking Ms. Jackson’s access to the “old red

house.”

In Jackson, the court found that the evidence presented at trial allowed Ms.

Jackson to tack her possession of the property to the uninterrupted possession of

her ancestors. Thus, the possession of the “old red house” and everything the old

fence surrounded was acquired by Ms. Jackson based on thirty-year acquisitive

prescription. See La.Civ.Code arts. 794 and 3442; Hillman, 63 So.3d 1164. The

appellate court ordered that the trial court fix the boundary between the two

properties in accordance with La.Civ.Code art. 794, “according to limits

established by prescription rather than titles.” Therefore, the boundary in that case

was established “within visible bounds,” which included the “old red house” and

along the visible old fence line.

Mrs. Grantham argues that Jackson is applicable based on the old pasture

fencing shown on the 2004 survey submitted into evidence and the testimony that

there was old fencing on the eastern side of Carhee Road which was also shown on

the 2004 survey. However, the evidence at trial established that the “old fence”

was placed there by a previous owner to keep cattle in and off the adjoining road

and was not placed as a boundary marker. Mrs. Grantham’s attempt to use this

“old fence” as evidence of possession to support acquisitive prescription is not

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supported by the record. The record evidence in this case, as opposed to the record

evidence in Jackson, does not support the requirement that there had been open,

continuous, uninterrupted possession by Mrs. Grantham of the “subject problem

area.” See La.Civ.Code art. 3442.

As previously stated, the old house in this case was abandoned by the

Granthams following the death of George in 1965 and Chester in 1970. There was

no evidence that George, Ollie, or Chester actually possessed any of the property in

the “subject problem area” adversely to the Gaddis’ ancestors in title. Whatever

possession had been exercised over the small house and garden adjacent thereto

was abandoned in 1970. R. E. Grantham did not begin to use the old house and

garden until 1983, and then only with the permission and help of the Gaddis family.

His possession ended at his death in 1991 and in 1992, when his daughter, Loretta,

moved everything out of the old house and pulled up the water well.

Mrs. Grantham acknowledged during her testimony at trial that the old

house was used as a “camp” after she and her husband, Mr. Grantham, began to

acquire the adjacent properties in 1992. Mr. Randy Byrd, an employee of the

Belmont Water System and a neighbor of the parties, testified that when the

Belmont Water System came on line in 1994, a water meter was requested by Mr.

Grantham, who paid a deposit, and the water was turned on in the old house.

However, in 1995, Mr. Grantham requested that the water be turned off as he had

suffered a stroke. Mr. Byrd testified that Mr. Grantham told him that he did not

know if they would be coming to use the place and the water bill was just an

expense they did not need. Mr. Byrd testified that water service was reestablished

at the request of Mrs. Grantham sometime in 2004 or 2005.

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Additionally, Mrs. Grantham and/or her agents destroyed any old fences on

the property, and, therefore, there is no evidence of the extent of any visible

possession associated with the old house. These actions by Mrs. Grantham and/or

her agents were confirmed at trial by her son, Mr. Marlon Wayne Grantham, who

acknowledged that none of the old fencing west of Carhee Road was ever

maintained by Mrs. Grantham and that the old house was unlivable when Mr. and

Mrs. Grantham purchased the adjacent property in 1992. He also testified that, at

the behest of his mother, he tore out all of the fencing associated with the old house

prior to the placement of the present fencing completed in 2004.

The new fencing was not depicted on the 2004 survey submitted into

evidence at trial by Mrs. Grantham. In fact, the surveyor who conducted the

survey in 2004 for Mrs. Grantham admitted that the old Gaddis pasture fence was

included on the survey in order “to provide the Plaintiff with a point to make a

claim.” Mrs. Grantham acknowledged that after the 2004 survey was conducted,

she knew that the old house and fencing were part of the adjacent Gaddis property

and she did not hold record title to the “subject problem area.”

Based on the evidence adduced at trial, we find that La.Civ.Code art. 794

and Jackson do not apply to the facts in this case. There is insufficient evidence

that the old Gaddis pasture fence operated as a boundary between the Gaddis and

Grantham properties, and no evidence that Mrs. Grantham or her ancestors in title

possessed the “subject problem area” as owners adversely to the record title owner,

Mr. Gaddis, for the requisite thirty years of open, continuous, and uninterrupted

possession with intent to acquire as owner. See LePrettre, 820 So.2d 1240.

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CONCLUSION

For the reasons assigned, the judgment of the trial court is reversed and set

aside, and this suit is hereby dismissed with prejudice at the cost of Mildred

Grantham. All costs of this appeal are assessed to Mildred Grantham.

REVERSEDAND RENDERED.

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