Donovan Luke Fontenot v. Town of Mamou

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-301

DONOVAN LUKE FONTENOT

VERSUS

TOWN OF MAMOU

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 76752-A
HONORABLE GARY J. ORTEGO, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Candyce G. Perret, Judges.

REVERSED AND REMANDED.

Patrick Hannon Patrick
Patrick, Miller, LLC
400 Poydras St., #1680
New Orleans, LA 70130
(504) 527-5400
COUNSEL FOR PLAINTIFF-APPELLANT:
Donovan Luke Fontenot

Jonathan Clyde Vidrine
West & Vidrine
510 West Magnolia
Ville Platte, LA 70586
(337) 363-2772
COUNSEL FOR DEFENDANT-APPELLEE:
Town of Mamou

PERRET, Judge.

This appeal requires this court to review a judgment declaring the Town of

Mamou (“the Town”) the legal owner of a sewerage lift station as well as the legal

owner of the tract of land on which the lift station sits. Plaintiff, Donovan

Fontenot (“Mr. Fontenot”), appeals the judgment, asserting that he is the lawful

owner of both the disputed land and the lift station. We reverse the judgment

finding the Town the lawful landowner and remand the case to the trial court for a

hearing to determine what rights the Town has in the lift station.

Factual and Procedural Background:

Mr. Fontenot filed a Petition for Declaratory Judgment or to Quiet Title on

March 16, 2017. In his petition, Mr. Fontenot alleged he purchased property on

December 9, 2015, which included the disputed property. A professional survey

was conducted from which Mr. Fontenot learned that the Town’s sewerage lift

station is partially located on his property. While the lift station access stairs are

located on the Town’s right of way, not on Mr. Fontenot’s property, most of the

structure is on Mr. Fontenot’s property. Mr. Fontenot alleged that a public records

examination showed “no servitudes, right-of-way, grants, easements or any indicia

that the lift station structure is or was permitted” to be built. Mr. Fontenot sought a

declaratory judgment that he is owner of the lift station. In its Answer, the Town

denied Mr. Fontenot’s ownership of the lift station and, instead, asserted that it is

the owner of not only the lift station, but also the land it sits upon.

At the bench trial on the merits, the evidence, joint stipulations, and

testimony established that in 1980 and 1981 the Town was petitioned by the

landowners to annex land. In 1981, the Town adopted a resolution and ordinance

to incorporate several acres of land, including the area in dispute, within the

corporate limits of the Town. In 1981, the Town adopted a resolution to install the

sewerage lift station at issue, at the behest of a sub-division developer who wished

to be connected to the Town sewerage system.

The parties stipulated that on December 9, 2015, Mr. Fontenot acquired the

property in dispute from Robert Miller. The cash sale, which was also submitted

into evidence, included an attached plat of survey by Brandon Breaux. The survey

notes that “no attempt has been made . . . to verify title, actual legal ownership,

servitudes, easements, rights of way or other burdens on the property[.]” The

parties also stipulated that the Town built the lift station on the property at issue in

December of 1981 and has continually operated and maintained the station since

then. Lastly, the parties stipulated that testimony from Guy Pucheu, the Town’s

city clerk, would corroborate that of Mayor Fontenot’s, which was that the Town

has not received any claims, inquiries, notices, lawsuits, or any other disturbances

as to the Town’s possession of the lift station or any requests or demands that lease

or rental payments be made to the landowner.

Mr. Fontenot testified that his request for public records of permits or

easements from the Town concerning the lift station produced no documents

regarding the allowance of the lift station on the property. Ricky Fontenot, the

current mayor of Mamou and a prior city councilman, also testified that, to his

knowledge, the Town has always maintained the lift station and mowed the grass.

He further stated that he is unaware of any prior owner disputing the Town’s

ownership of the lift station or denying access to the lift station. However, he also

testified that, to his knowledge, there is nothing filed in the conveyance records of

the parish regarding the lift station.

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The trial court took the matter under advisement and rendered written

reasons and a judgment in favor of the Town. In its written reasons, the trial court

found that the evidence presented, including the Town’s meeting minutes,

ordinances, and public business records proved the Town’s “acquisition and

ownership of said lift station” and that the lift station has been thus possessed and

maintained by the Town since 1982. Additionally, the trial court found that Mr.

Fontenot’s petition judicially admitted the Town’s ownership of the lift station. 1

The trial court also concluded that the land beneath the lift station was “formally

and properly annexed and incorporated by the Town of Mamou[,]” and ordered

that the Town be “declared the legal and lawful owner of that certain tract of land,

along with the said public sanitary sewage lift plant[.]” Mr. Fontenot now appeals

the judgment, asserting that the trial court (1) incorrectly applied the law of thirty-

year acquisitive prescription to conclude the Town owns the land upon which the

lift station is built, and (2) erred in determining Mr. Fontenot is not the owner of

the lift station.

Standard of Review:

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).

Errors of law are reviewed de novo. Land v. Vidrine, 10-1342 (La. 3/15/11), 62

So.3d 36.”

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Although Mr. Fontenot’s petition names the Town as defendant as the “operator and
owner of the public sanitary sewerage system[,]” this statement does not equate to the admission
that the Town owns the lift station structure.

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Discussion:

The trial court concluded the Town acquired ownership of immovable

property via thirty-year acquisitive prescription. The supreme court has declared

that a political subdivision may not acquire full ownership of immovable property

for any public purpose through acquisitive prescription, though it may acquire

servitudes by prescription. Parish of Jefferson v. Bonnabel Properties, Inc., 93-

276 (La. 9/2/93), 620 So.2d 1168. Therefore, we find that the trial court legally

erred in its application of the law, which necessitates a de novo review on appeal.

Boudreaux v. Cummings, 14-1499 (La. 5/5/15), 167 So.3d 559.

Ownership of the Land:

The first assignment of error addresses the ownership of the land beneath the

lift station. Mr. Fontenot argues that because all prior landowners permitted both

the construction and use of the lift station, the Town did not possess the land under

the lift station adversely and is thus a precarious possessor for whom acquisitive

prescription cannot run in its favor. The Town argues that it was permitted to

annex this property into the city and then permitted to build and operate the lift

station without payment, lease, or any signed documents for over thirty-five years.

The town further argues that it gave actual notice to the original owner of its intent

to use the land as owner, which it asserts is reflected in the Town meeting minutes,

letters, and contract for construction in evidence. Therefore, the Town argues that

acquisitive prescription commenced in its favor.

The supreme court in Parish of Jefferson, 620 So.2d 1168, determined that

political subdivisions may not acquire ownership of immovable property for any

public purpose by way of acquisitive prescription. In Parish of Jefferson, the

Parish sued to quiet title to certain alleyways in a subdivision. Although the

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subdivision streets were dedicated to public use, the alleyways were instead

dedicated to the use of the adjacent lot owners. Despite these dedications, the

Parish included the alleys within their fenced-in area used for a sewerage treatment

plant and other constructions. The Parish alleged ownership of the alleys by

acquisitive prescription under La.Civ.Code arts. 3446 and 3486. The supreme

court determined a governmental subdivision did not have authority to acquire full

ownership of immovable property through acquisitive prescription and based this

conclusion on the determination that La.Const. art. 6, § 23, which permits political

subdivisions to acquire property by “purchase, donation, expropriation, exchange,

or otherwise,” does not include by way of acquisitive prescription. Id.

Louisiana Constitution Article 6, section 44, defines “political subdivision,”

for purposes of article 6, as a “municipality” which is further defined as “an

incorporated city, town, or village.” Thus, we find that the Parish of Jefferson

decision is applicable to the case at hand, and that as a political subdivision, the

Town may not acquire ownership of the subject property via acquisitive

prescription.

Notwithstanding the above decision, we find that the trial court erred in

finding the Town was not a precarious possessor, thus preventing acquisitive

prescription from commencing. “The exercise of possession over a thing with the

permission of or on behalf of the owner or possessor is precarious possession.”

La.Civ.Code art. 3437. “Acquisitive prescription does not run in favor of a

precarious possessor or his universal successor.” La.Civ.Code art. 3477. A

precarious possessor “commences to possess for himself when he gives actual

notice of this intent to the person on whose behalf he is possessing.” La.Civ.Code.

art. 3439.

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The record evidences that the Town was asked to connect certain land to the

Town’s sewerage system, which required the construction of the lift station. The

Town held town meetings regarding the construction of the lift station and

subsequently built the station. The evidence suggests only that the Town was

requested to connect the sewerage system; that the landowners permitted the

construction of the lift station; and that the landowners never interfered with the

Town’s maintenance or operation of the lift station. There is no evidence in the

record that indicates the Town gave actual notice of its intent to possess the land as

owner to any of the landowners. Consequently, we find the Town never

terminated its precarious possession.

Additionally, the trial court seems to imply that the Town’s annexation of

the land may entitle the Town to its ownership. However, annexation merely

extended the corporate limits of the Town to include the land owned by the

registered landowner. See generally La.R.S. 33:160(A) and La.R.S. 33:179.

Therefore, without other documentation or recordings of ownership by the Town,

the land under the lift station cannot belong to the Town, but instead belongs to

Mr. Fontenot as the recorded landowner.

Accordingly, the trial court’s judgment declaring the Town of Mamou to be

the lawful owner of the land in dispute is reversed.

Ownership of the Lift Station:

Mr. Fontenot’s second assignment of error addresses the ownership of the

lift station. The trial court’s judgment declared the Town the owner of the lift

station. Mr. Fontenot asserts that he is the owner of the lift station because he

acquired title in the Cash Sale, which included the tract of land plus all “buildings

and improvements thereon.” Mr. Fontenot also argues that because he is the owner

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of the land upon which the lift station is built, he is also owner of the lift station

pursuant to La.Civ.Code art. 491. Louisiana Civil Code Article 491 states:

Buildings, other constructions permanently attached to the
ground . . . may belong to a person other than the owner of the
ground. Nevertheless, they are presumed to belong to the owner of
the ground, unless separate ownership is evidenced by an instrument
filed for registry in the conveyance records of the parish in which the
immovable is located.

La.Civ.Code art. 493 states that “[b]uildings, other constructions

permanently attached to the ground . . . made on the land of another with his

consent belong to him who made them.” However, to assert such separate

ownership against third persons, the separate ownership must be evidenced “by an

instrument filed for registry in the conveyance records of the parish in which the

immovable is located.” La.Civ.Code art. 493 cmt (b); see also La.Civ.Code art.

491 and La.Civ.Code art. 491 cmt (c). In this case, the lift station is partially on

Mr. Fontenot’s land, and partially on the Town’s right of way that runs adjacent to

Mr. Fontenot’s property. The record contains no evidence of the Town’s having

recorded such separate ownership of the portion that is on Mr. Fontenot’s land.

Thus, the Town cannot assert its ownership of that portion against Mr. Fontenot.

Under the particular facts in this case, because we reverse the trial court’s

judgment regarding the land ownership, we remand this matter to the trial court for

a hearing to determine what other rights, if any, the Town may have in its

continued operation and maintenance of the lift station (i.e., an implied dedication

for public use, a St. Julien’s servitude under La.R.S. 19:14, or possibly a servitude

through acquisitive prescription), noting that the Town has operated the lift station

and has paid for the function of the lift station for the benefit of the community

since 1982.

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Conclusion:

For the above reasons, the judgment of the trial court declaring the Town of

Mamou the owner of the land in dispute is reversed. Furthermore, the case is

remanded to the trial court for a hearing to determine the Town’s rights in the

operation of the lift station. Costs totaling $1,760.52 are assessed equally against

the Town of Mamou and Donovan Fontenot.

REVERSED AND REMANDED.

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