Succession of Gabriel Fuselier v. Billeaud Sugar Factory

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-487

SUCCESSION OF GABRIEL FUSELIER

VERSUS

BILLEAUD SUGAR FACTORY, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 82443
HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and Jonathan W. Perry,
Judges.

AFFIRMED AS AMENDED.

Robert L. Cabes
Milling, Benson Woodward, L.L.P.
P.O. Box 51327
Lafayette, LA 70505-1327
(337) 232-3929
COUNSEL FOR DEFENDANT/APPELLANT:
Billeaud Sugar Factory

Lee A. Archer
Law Office of Lee Ann Archer, APLC
1225 Rustic Lane
Lake Charles, LA 70605
(337) 474-4712
COUNSEL FOR DEFENDANT/APPELLANT:
Billeaud Sugar Factory

Allan L. Durand
Attorney at Law
235 La Rue France
Lafayette, LA 70508
(337) 237-8501
COUNSEL FOR PLAINTIFF/APPELLEE:
Gabriel Fuselier, LLC

GREMILLION, Judge.

Billeaud Sugar Factory, Inc. (BSF) appeals the judgment of the trial court

declaring Gabriel Fuselier, LLC (GFL) owner by acquisitive prescription of disputed

land located in St. Martin Parish. For the reasons that follow, we affirm as amended.

FACTS AND PROCEDURAL POSTURE

The Property in question is described as, “A certain tract of land containing

182.28 acres, more or less, being the irregular Sections 64 and 65, Township 10

South, Range 5 east, St. Martin Parish, Louisiana, located east of Bayou Tortue in

St. Martin Parish, Louisiana.” 1 Sections 64 and 65 are bounded on the north-

northeast by the line separating Range 5 east from Range 6 east. The two sections

extend parallel northeast to southwest across Bayou Tortue into Lafayette Parish.2

The Property consists of mostly bottom land. Section 64 is bisected by a wide ridge

that runs west to east from Bayou Tortue to Cypress Island Coulee at a point beyond

the limits of the Property. This ridge also crosses the northern part of Section 65.

In March 2015, Eric Martin, in his capacity as the Administrator of the

Succession of Gabriel Fuselier and Bazilie Ternant Fuselier, filed a petition for

declaratory judgment against BSF, Cypress Properties, which is a partnership with

its principal place of business in Lafayette, and The Nature Conservancy, a non-

profit domiciled in Washington, D.C. The three defendants, according to the petition,

had all made claims to land in sections 63, 64, and 65, T10S, R5E, and sections 91,

92, and 93, T10S, R6E, which the succession claimed it owns. Cypress Properties

allegedly claimed land in sections 91, 92, and 93, T10S, R6E; thus, the demand

1
Bayou Tortue forms part of the boundary between St. Martin and Lafayette Parishes.
Sections 64 and 65, T10S, R5E, lie in both parishes, but only those portions in St. Martin Parish
are at issue.
2
Cypress Island Coulee and Bayou Tortue meet at a point west of the Property. Bayou
Tortue runs roughly north-to-south and Cypress Island Coulee roughly west-to-east.

against Cypress Properties is not at issue herein. The Nature Conservancy claimed

a portion of section 63, T10S, R5E, according to the petition.3 The petition alleged

that the succession had possessed the Property for the previous 200 years. The

petition prayed for a judgment declaring that it was the exclusive owner of the

Property.

BSF answered the petition and filed a reconventional demand in which it

alleged that its ancestor in title, Bayou Tortue Livestock, acquired the Property in a

1963 tax sale and thereafter conducted various operations on the Property, including

timber harvesting and cattle grazing, and executed sales of timber and mineral leases.

In 1985, the reconventional demand alleged, Bayou Tortue Livestock sold the

Property to BSF. BSF sought a judgment declaring that it owned the land either

through title or by acquisitive prescription.

On November 2, 2017, BSF filed a motion for summary judgment in which it

argued that in 1835, Bazilie Ternant Fuselier’s brother, Vincent Ternant, had the

Property seized by the St. Martin Parish Sheriff and sold to satisfy a debt Bazilie

owed him. Bazilie’s heirs purchased the Property at sheriff’s sale; therefore, the

succession did not have an ownership interest in the Property. Further, BSF attached

instruments of title and affidavits regarding BSF’s use of the Property and lack of

use by anyone associated with the succession. The record and minutes do not reflect

that this motion was heard. BSF then filed a second motion for summary judgment.

The succession filed its own motion for summary judgment and supported it

with affidavits attesting to the use of the Property by Fuselier heirs and disputing

many of the assertions contained in BSF’s affidavits supporting its motion for

summary judgment.

3
The claims against Cypress Properties and The Nature Conservancy were settled prior to
trial.
2

The succession joined with the Succession of Auguste R. Fuselier to form

Gabriel Fuselier, LLC, which was substituted as plaintiff in the case. The motions

for summary judgment were heard in May 2018. The trial court ruled, without

further elucidation, that genuine issues of material fact precluded summary judgment.

Trial on the merits was held in September 2018. The depositions of Charles

A. Fuselier and Howard Champagne were introduced into the record. The plaintiff

called Jessie Martin, James Foret, Kevin Calahan, Daniel Fuselier, Richard Martin,

and Pat Champagne as witnesses.

Jessie Martin is a descendant of Gabriel Fuselier and a member of the Prairie

Roan Hunting Club. He first visited the Property at the invitation of Charles A.

Fuselier. He has regularly hunted the Property since 2007.

The Prairie Roan Hunting Club was founded by Blaise Armentor. Mr. Martin

identified nine deer stand locations maintained by the Prairie Roan Hunting Club on

the Property. Members of the Prairie Roan Hunting Club also maintain motion-

detecting game cameras on the Property. Mr. Martin has never encountered

someone on the Property who does not belong to Prairie Roan Hunting Club and his

game cameras have never captured someone on the Property who is not a member.

Mr. Martin visits the Property at least once a week. The Property is posted.

Mr. Martin testified that he is aware that BSF claims that it conducted timber

harvesting on the Property. He knows of no stumps on the St. Martin Parish side of

Bayou Tortue in sections 64 or 65; however, there are stumps on the Lafayette Parish

side of the bayou.

James Foret is a Professor of Horticulture at the University of Louisiana at

Lafayette and a private arborist consultant. He was tendered as an expert in the case.

In connection with his retainer, Mr. Foret visited the Property. He saw no evidence

that timber operations had been conducted on the Property in the 1960s or later.
3

Most of the timber on the Property is cypress. Cypress contains a high level of

terpenes that preserve the wood. Loggers of the day typically sawed at a three-foot

level for safety reasons. Had cypress trees been harvested on the Property, Mr. Foret

would expect to see stumps but observed none. Mr. Foret opined from his

experience that timber-skidding equipment leaves scarring on the land, and he

observed no scarring.

Mr. Foret also testified that he observed areas that had been used for rice

production that were being reclaimed by trees and other growth.

Kevin Calahan is a member of Prairie Roan Hunting Club. The club was

founded by Blaise Armentor in the 1980s. Prairie Roan Hunting Club has about

twenty members. Mr. Calahan has been a member of the club since 2002, and, until

about three years before trial, he visited the Property weekly. Mr. Calahan’s

testimony about trespassers and game cameras mirrored that of Jessie Martin.

Mr. Calahan testified that he has observed no logging remnants on the

Property; however, he has noticed logging remnants in sections 85 and 86.

Mr. Calahan was asked about his familiarity with the “Basmone” Hunting

Club.4 Mr. Calahan testified that he is familiar with the club, and its members hunt

sections 64 and 65 across Bayou Tortue in Lafayette Parish.

Daniel Fuselier is the grandson of Auguste Fuselier. He used to stay at his

grandfather’s home. Daniel Fuselier has been in the construction trade since the late

1970s. He was hired by Blaise Armentor beginning in 1978 to bulldoze shooting

lanes on the Property for the hunting club. While bulldozing the shooting lanes, Mr.

Fuselier avoided damaging any of the larger trees.

4
This was the name reflected in the record transcript. For reasons that will become clear,
the court thinks that this should be “Bas-Font.”
4

Richard Martin is the seventy-eight-year-old former St. Martinville Police

Chief. He has hunted the Property his entire life. He recalls Auguste Fuselier

ranging cattle on the Property when he was a teenager. Mr. Martin obtained

permission to hunt from Auguste Fuselier at that time.

Mr. Martin testified that Auguste Fuselier leased some of the Property to

Ophie Romero for rice growing. In the 1960s, Auguste Fuselier leased section 64 to

Howard Champagne for rice production. Mr. Martin also testified that there has

been no timber harvesting on the Property. Mr. Martin has encountered trespassers

himself and chased them from the Property.

Pat Champagne testified that, as a youth, he visited the Property frequently.

He recalled that Auguste 5 had cattle on the Property. When he was thirteen or

fourteen, Mr. Champagne helped with the annual cattle branding on the Property.

Mr. Champagne was seventy-four years old at trial.

Charles A. Fuselier was the grandson of Auguste Fuselier. He was born in

1943. He testified in his deposition that one of his earliest memories involves rice

production on the Property. When he was six or seven years old, Mr. Fuselier would

mount his Shetland pony and ride around supplying water to the hands that were

harvesting rice on the Property. There were about twenty hands working at the time.

Mr. Fuselier also hunted the Property as a youth.

The rice fields were fed by a large pump that diverted water from Cypress

Island Coulee into a raised canal or aqueduct that Mr. Fuselier testified must have

been built by his grandfather. This pump was located close to the coulee on the north

side of the Property. Mr. Fuselier recalled the pump being damaged once when an

alligator was caught in it.

5
The record of Mr. Champagne’s testimony spells Mr. Fuselier’s name “Ogeus.”
5

Auguste Fuselier also ranged cattle on the Property. Charles Fuselier testified

that there was a barbed wire fence that separated the rice fields to prevent the cattle

from entering them; otherwise, the cattle ranged from Bayou Tortue to Cypress

Island Coulee. He also testified that a fence bounded the eastern property line. Mr.

Fuselier identified a newspaper article from 1946 that described a cattle-rustling

operation that targeted Auguste Fuselier’s livestock.

In the 1970s, Mr. Fuselier’s father opened a new succession of Gabriel

Fuselier, and, as administrator, executed mineral leases over the Property. Mr.

Fuselier succeeded his father as administrator until he was succeeded by Eric Martin.

The succession’s lease netted it many thousands of dollars that remain in an escrow

account. The money is being held pending the identification of the heirs, many of

whom are unknown.

Howard Champagne was born in 1943 and is a lifelong resident of St.

Martinville. His father obtained permission from Auguste Fuselier for him and his

son to hunt the Property. Howard Champagne retains a vivid recollection of hunting

the Property during the first snowfall in St. Martin Parish he can recall, around 1957.

Mr. Champagne’s first time to hunt the Property with his father was when he was

eight years old. Auguste Fuselier raised cattle on the Property at the time. Mr.

Champagne also recalled an incident in which a horse ridden by one of the cattlemen

caught its leg in a barbed wire fence on the Property and was badly injured.

Mr. Champagne’s family owns land adjacent to the Property. Across Cypress

Island Coulee lies one tract owned by the Champagnes. Mr. Champagne farmed rice

on that land, as did his father before him. His father obtained permission from

Charles Fuselier to farm rice along the frontage on Cypress Island Coulee around

1980. This farming took place along the northern boundary of sections 63, 64, and

65.
6

After the plaintiff rested, BSF sought to introduce the public records of title

to the Property. Plaintiff objected because those public records contained seven

affidavits that plaintiff argued were hearsay. The objection to the affidavits was

sustained. BSF proceeded with its case and called Roy Billeaud, Charles Billeaud,

Michael Billeaud, Karl Girouard, and Dudley Hebert.

Roy Billeaud is a title abstractor hired to research title to the Property. Gabriel

Fuselier probably acquired the Property in a Spanish land grant. His ownership was

confirmed by land commissioners and an Act of Congress following the Louisiana

Purchase. Gabriel’s succession was opened on December 2, 1820. No judgment of

possession was rendered. Bazilie Ternant Fuselier’s succession was opened on

March 15, 1830, and no judgment of possession was entered in her succession, either.

On May 27, 1835, the Property was sold at sheriff’s sale to satisfy a debt

Bazilie owed her brother, Vincent Ternant, for money she borrowed to purchase

land in St. Mary Parish. Clara Fuselier Brian, Bluger Adolphe Fuselier, Gabriel

Fuselier III, Oglea Fuselier Robin, Jules Fuselier, Alcide Fuselier, Bridget Fuselier,

Edward Fuselier, Alfred Fuselier, and Furges Fuselier, Gabriel and Bazilie’s heirs,

purchased the Property from the sheriff. The title chain is silent until 1928, when

BSF began paying the taxes on the Property, except for a four-year window for

which the “big assessment books were missing.”

In 1963, BSF allowed the taxes to go delinquent, and Bayou Tortue Livestock,

Inc. purchased tax title to the Property from the St. Martin Parish Sheriff. Bayou

Tortue Livestock sold timber and entered mineral leases. All of the timber sales,

though, involved land in addition to the Property.

In 1985, Bayou Tortue Livestock sold the Property to BSF. Mr. Billeaud’s

search also located mineral leases over the Property BSF and the Fuseliers entered.

7

Charles Billeaud is Chairman of the Board of BSF. The company was

founded by his great-grandfather, Marshall Billeaud. Mr. Billeaud has only been to

the Property once or twice. He “would think” that members of the Bas-Font Hunting

Club would cross Bayou Tortue to hunt the Property. He recalls going to observe

timber harvesting that was undertaken by David Dubroc that he thought was on the

Property.

Mr. Billeaud is not a member of Bas-Font Hunting Club. The club has a lease

with BSF that covers property owned by BSF including, but not limited to, the

Property. The club has leased BSF land since the early 1990s.

The Fuselier family never communicated to him their claim over the Property

until he was served with this suit. He believes that the lease to Howard Champagne

was property east of the Property. Mr. Billeaud believes that BSF posted the

Property because it posts all its land.

Michael Billeaud is a member of Bas-Font Hunting Club. In the early 1990s,

he was told of the Fuselier’s claim to the Property by Blaise Armentor. He is also

aware that mineral producers were obtaining leases to the Property from BSF and

the Fuseliers.

Members of the Bas-Font Hunting Club have been on the Property “quite a

bit” to hunt. Mr. Billeaud frequently visits the Property. The club posted the

Property, but its signs were torn down soon thereafter. Mr. Billeaud recalls

encountering one of the Martins hunting the Property.

Mr. Billeaud confirmed that BSF conducts no agricultural activity on the St.

Martin Parish side of Bayou Tortue.

Karl Girouard is a member of Bas-Font Hunting Club. He helped found the

club in the 1980s or 1990s. Mr. Girouard hunted the St. Martin Parish side of Bayou

Tortue once a year for several years in search of an alligator whose footprint was
8

larger than that of a man who wears a size thirteen shoe. He never succeeded. Mr.

Girouard has only encountered Blaise Armentor and other members of the Bayou

Tortue Hunting club on the Property.

Dudley Hebert worked for Bayou Tortue Livestock in the 1970s. He recalls

going to the property in 1973 or 1974 while a timber operation was taking place.

The trial court took the matter under advisement and issued written reasons

for judgment in favor of GFL. In the reasons, the trial court found that Auguste

Fuselier had maintained physical possession of the Property since he began raising

cattle there in 1927. The trial court further found that possession by Auguste Fuselier

continued through Charles Fuselier and had not been interrupted through the

commencement of this litigation in 2015. BSF had not evicted Fuselier from the

property. The trial court declared GFL to be the owner of the Property. Judgment

to that effect was signed on October 23, 2018. This appeal followed.

ASSIGNMENTS OF ERROR

BSF assigns as error the trial court’s denial of its motion for summary

judgment because it proved that it had “better title” for purposes of La.Code Civ.P.

art. 3654. BSF also assigns errors to the following: the trial court’s exclusion of

affidavits contained in the public records of St. Martin Parish; the trial court’s

findings of fact and application of the law of acquisitive prescription in declaring

GFL to be the owner of the Property; and the trial court’s assessment of court costs.

BSF urges that this court review the case de novo because the trial court legally erred

in excluding the affidavits contained in the public record.

ANALYSIS

BSF’s MOTION FOR SUMMARY JUDGMENT

Proof of title in a declaratory judgment action involving immovable property

is governed by La.Code Civ.P. art. 3654, which provides:
9

When the issue of ownership of immovable property or of a real
right therein is presented in an action for a declaratory judgment, or in
a concursus, expropriation, or similar proceeding, or the issue of the
ownership of funds deposited in the registry of the court and which
belong to the owner of the immovable property or of the real right
therein is so presented, the court shall render judgment in favor of the
party:

(1) Who would be entitled to the possession of the immovable
property or real right therein in a possessory action, unless the adverse
party proves that he has acquired ownership from a previous owner or
by acquisitive prescription; or

(2) Who proves better title to the immovable property or real
right therein, when neither party would be entitled to the possession of
the immovable property or real right therein in a possessory action.

BSF argues that because it proved better title in its motion for summary judgment,

the trial court was bound to grant judgment in its favor. BSF argues that the payment

of taxes from 1928 through 1962 by BSF, the tax title held by Bayou Tortue

Livestock, and the subsequent sale of Bayou Tortue Livestock’s assets to BSF prove

its title to the Property. Accordingly, the trial court was mandated to grant it

summary judgment.

This argument fails to consider the wording of Article 3654, which mandates

a court to grant judgment either to the party who would be entitled to possession,

unless the adverse party proves that he acquired ownership through a previous owner

or to the party who has better title “when neither party would be entitled to

possession of the immovable property or a real right therein in a possessory action.”

Our reading of Article 3654(2) leads us to the conclusion that in order to declare that

a party has proven better title, the trial court must first determine that neither party

would be entitled to possession. The competing motions for summary judgment

filed by BSF and Gabriel Fuselier, LLC, negated any conclusion that a party would

be entitled to possession under the requirements of a motion for summary judgment,

10

because there was a genuine issue of material fact regarding who had possession of

the Property. Accordingly, we find no error in the trial court’s ruling.

DE NOVO REVIEW

It is well-settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844
(La.1989). However, where one or more trial court legal errors interdict
the fact-finding process, the manifest error standard is no longer
applicable, and, if the record is otherwise complete, the appellate court
should make its own independent de novo review of the record and
determine a preponderance of the evidence. Ferrell v. Fireman’s Fund
Ins. Co., 94–1252 (La.2/20/95); 650 So.2d 742, 747, rev’d in part, on
other grounds, 96–3028 (La.7/1/97); 696 So.2d 569, reh’g denied, 96–
3028 (La.9/19/97); 698 So.2d 1388. A legal error occurs when a trial
court applies incorrect principles of law and such errors are prejudicial.
See Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993). Legal errors
are prejudicial when they materially affect the outcome and deprive a
party of substantial rights. See Lasha, 625 So.2d at 1006. When such
a prejudicial error of law skews the trial court’s finding of a material
issue of fact and causes it to pretermit other issues, the appellate court
is required, if it can, to render judgment on the record by applying the
correct law and determining the essential material facts de novo. Lasha,
625 So.2d at 1006.

Evans v. Lungrin, 97-541, 97-577, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735. BSF

urges us to conduct a de novo review of the evidence because the trial court erred in

excluding the affidavits contained in the public record.

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the present trial or hearing, offered in evidence to prove the truth of the

matter asserted.” La.Code Evid. art. 801(C). Hearsay is generally not admissible.

La.Code Evid. art. 802. There are exceptions to the general rule. The exceptions

are set forth in La.Code Evid. arts. 803, 803.1, and 804.

BSF argues that the affidavits that were excluded from evidence were subject

to several exceptions to the hearsay rule, specifically La.Code Evid. arts. 607(C) and

(D); 803(8); 803(14); 803(15); 803(16); and 803(20). Ancient documents, as

envisioned in La.Code Evid. art. 803(16), are presumed authentic if recorded in the

11

official parish records for more than thirty years. See La.R.S. 13:3729. Statements

in ancient documents that have existed for thirty years or more and that have

established authenticity or that have been recorded are admissible. La.Code Evid.

art. 803(16). The affidavits in question were of Lucius Weatherall; May Bros., Inc.,

through Jack Eaton; Bayou Tortue Livestock, Inc., through Charles Billeaud; Dudley

Hebert; and Charles Billeaud. Reviewing these affidavits, though, the court discerns

that they assert activities on behalf of Bayou Tortue Livestock and BSF that date

back to 1964 at the earliest. The trial court erred in not admitting the affidavits, but

the error was harmless because the trial court found that Gabriel Fuselier, LLC

acquired ownership through prescription before the tax sale in 1963. The error did

not interdict the fact-finding process. See Ferrell v. Fireman’s Fund Ins. Co., 94-

1252 (La. 2/20/95), 650 So.2d 742. We, therefore, decline to review this matter de

novo.

PROPER STANDARD OF REVIEW

In Louisiana, appellate courts review both law and facts. La.
Const. art. 5, §10(B). The applicable standard of review for a factual
finding is the manifestly erroneous or clearly wrong standard. To
reverse a factfinder’s determination under this standard of review, an
appellate court must undertake a two-part inquiry: (1) the court must
find from the record that a reasonable factual basis does not exist for
the finding of the trier of fact; and (2) the court must further determine
the record establishes the finding is clearly wrong. Stobart v. State,
Dep’t of Transp. and Development, 617 So.2d 880, 882 (La.1993).
Ultimately, the issue to be resolved by the reviewing court is not
whether the trier of fact was right or wrong, but whether the factfinder’s
conclusion was a reasonable one. Id. If the factual findings are
reasonable in light of the record reviewed in its entirety, a reviewing
court may not reverse even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently. Id. at
882–883. Accordingly, where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be manifestly
erroneous. Id at 883.

Nonetheless, where documents or objective evidence so
contradict a witness’s story, or the story itself is so internally
inconsistent or implausible on its face that a reasonable factfinder
would not credit the witness’s story, a reviewing court may well find
12

manifest error. Rosell v. ESCO, 549 So.2d 840, 844–45 (La.1989).
Where such factors are not present, however, and a factfinder’s
determination is based on its decision to credit the testimony of one of
two or more witnesses, that finding can virtually never be manifestly
erroneous or clearly wrong. Id.

S.J. v. Lafayette Par. Sch. Bd., 09-2195, pp. 12-13 (La. 7/6/10), 41 So.3d 1119, 1127-

28. “Possession is a matter of fact[.]” La.Civ. Code art. 3422. The appropriate

standard is manifest error.

ACQUISITIVE PRESCRIPTION BY GFL

“Acquisitive prescription is a mode of acquiring ownership or other real rights

by possession for a period of time.” La.Civ.Code art. 3446. Acquisitive prescription

accrues in ten years in favor of a possessor who has good faith and just title over a

thing susceptible of acquisition by prescription. La.Civ.Code art. 3475. Good faith

is an objectively reasonable belief that one is the owner of the thing. La.Civ.Code

art. 3480. “A just title is a juridical act, such as a sale, exchange, or donation

sufficient to transfer ownership or another real 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. A party may acquire ownership or

other real rights in immovables without the need for good faith or just title by

possession for thirty years. La.Civ.Code art. 3486.

“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. A possessor under title constructively possesses the

immovable within the limits of his title, while one who possesses without title “has

possession only of the area he actually possesses.” La.Civ.Code art. 3426. “The

possession of the decedent is transferred to his successors, whether testate or

13

intestate, and if testate, whether particular, general, or universal legatees.”

La.Civ.Code art. 936.6

“Once acquired, possession is retained by the intent to possess as owner even

if the possessor ceases to possess corporeally. This is civil possession.”

La.Civ.Code art. 3431. “The intent to retain possession is presumed unless there is

clear proof of a contrary intention.” La.Civ.Code art. 3432. Possession is lost

through abandonment or eviction if the possessor does not recover possession within

a year of the eviction. La.Civ.Code arts. 3433 and 3434. “One who proves that he

had possession at different times is presumed to have possessed during the

intermediate period.” La.Civ.Code art. 3443.

The trial court found that GFL had civil possession of the property since the

1835 sheriff’s sale. Implicit in this finding is a determination that Auguste Fuselier

was a descendant of Gabriel and Bazilie, because their descendants purchased the

property at the 1835 sheriff’s sale, and it is only through these descendants that

Auguste could have civil possession, and only through Auguste could GFL have any

possession. BSF maintains in its brief that there is no evidence that Auguste was a

descendant of Gabriel Fuselier. According to Charles A. Fuselier, however, his

grandfather, Auguste, was a descendant of Gabriel Fuselier. Roy Billeaud did not

contradict this contention; he merely testified that his title abstracting did not reveal

6
Louisiana Civil Code Article 936 was enacted by 1997 La. Acts No. 1421, §1. Prior to
1997, La.Civ.Code art. 943 provided:

The right of possession, which the deceased had, being continued in the
person of the heir, it results that this possession is transmitted to the heir with all its
defects, as well as its advantages, the change in the proprietor producing no
alteration in the nature of the possession.

Thus, the extent of the rights of the deceased regulates those of the heir,
who succeeds to all his rights which can be transmitted, that is, to all those which
are not, like usufruct, attached to the person of the deceased.

This article was enacted in the 1825 Civil Code and reproduced in the 1870 Civil Code.
14

that to be the case. The testimony of Charles A. Fuselier establishes a reasonable

basis in the record for this finding which we cannot reverse.

Death does not interrupt the deceased’s possession. However, a universal

successor has no title of his own. See La.Civ.Code art. 3483, comment (b).

Descendants continue the possession of their ancestors. La.Civ.Code art. 936. The

record contains no evidence of any acts of possession by anyone between 1835 and

the commencement of Auguste Fuselier’s activities on the land, and he was a

descendant of Gabriel Fuselier.

A fact that was lost on both parties and the trial court is that Auguste was only

one of many descendants of Gabriel and Bazilie; this fact was discussed by Charles

A. Fuselier, who acted as administrator of the Succession of Gabriel Fuselier. After

the succession was re-opened in 1974 for the purpose of entering mineral leases, an

escrow account was established into which those lease payments and royalties were

deposited for distribution to the heirs at some point in the future. As of trial, that

account held many thousands of dollars, awaiting the day when someone establishes

the roster of living heirs.

The general rule is that possession by a co-owner is exercised on behalf of all

co-owners. Creek Mgmt., L.L.C. v. Unopened Succession and Unknown Heirs or

Legatees of Williams, 51,392 (La.App. 2 Cir. 5/17/17), 223 So.3d 1194, writ denied,

17-1252 (La. 10/27/17), 228 So.3d 1222.

A co-owner, or his universal successor, may commence to
prescribe when he demonstrates by overt and unambiguous acts
sufficient to give notice to his co-owner that he intends to possess the
property for himself. The acquisition and recordation of a title from a
person other than a co-owner thus may mark the commencement of
prescription.

La.Civ.Code art. 3478. The record does not support the proposition that Auguste

intended his possession to be hostile to other co-owners. Indeed, he tolerated

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hunting and the like by members of the Martin family, to whom he knew he was

related.

We find no manifest error in the trial court’s determination that Auguste

Fuselier possessed the property. This is not, though, a case of acquisitive

prescription but continued possession by a co-owner. That represents an error of

law that did not interdict the fact-finding process. To the extent that the trial court’s

judgment declares sole ownership to Gabriel Fuselier, LLC, it is amended to declare

Gabriel Fuselier, LLC a co-owner of the property along with the other descendants

of Clara Fuselier Brian, Bluger Adolphe Fuselier, Gabriel Fuselier III, Oglea

Fuselier Robin, Jules Fuselier, Alcide Fuselier, Bridget Fuselier, Edward Fuselier,

Alfred Fuselier, and Furges Fuselier.

BSF’s claims just title from the 1963 tax sale. At the time, tax sales were

governed by the Louisiana Constitution of 1921. Article X, Section 11 of the 1921

constitution provided a tax-sale annulment period of six months that commenced on

service of the notice of the sale or three years that commenced on the sale’s

recordation if no notice was given. Id. The Constitution of 1974 provided for six-

month period for pursuing annulment of a tax sale. Prior to 2009, though, La.R.S.

47:2226 provided that the six-month annulment period did not run against a tax

debtor who maintained possession of the property.

Title 47 of the Louisiana Revised Statutes establishes procedures for quieting

title to property that has been sold at tax sale, either through an ordinary petition to

quiet title or through monition. See La.R.S. 47:2266, 2271-80. The record does not

reflect that Bayou Tortue Livestock or BSF has undertaken any of these measures.

BSF also prayed in its reconventional demand that it be declared owner of the

Property by virtue of acquisitive prescription. The trial court found that BSF did

nothing to evict or otherwise interrupt GFL’s possession of the property. Given the
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conflicting evidence regarding timber harvesting and whether it occurred on the

property and regarding hunting on the property and given the conceded evidence that

mineral leases were being executed by both parties, we cannot conclude that the trial

court manifestly erred.

CONCLUSION

Gabriel Fuselier, LLC, is an entity whose only members are the Succession of

Gabriel and Bazilie Fuselier and the Succession of Auguste Fuselier. The

Succession of Gabriel and Bazilie Fuselier held no interest in the Property after it

was seized and sold to their heirs at sheriff’s sale in 1835. Thereafter, the interest in

the Property followed their heirs, one of whom was Auguste. When Auguste

occupied the property, he did so on behalf of all co-owners, as evidenced by a lack

of hostility to the Property’s use by other members of the family. This case is not,

therefore, an acquisitive prescription case, but a case involving continued civil

possession through succeeding generations.

The judgment of the trial court is affirmed as amended. IT IS ORDERED,

ADJUDGED, AND DECREED that Gabriel Fuselier, LLC is entitled to judgment

against Billeaud Sugar Factory, Inc. declaring Gabriel Fuselier, LLC, along with the

other descendants of Clara Fuselier Brian, Bluger Adolphe Fuselier, Gabriel Fuselier

III, Oglea Fuselier Robin, Jules Fuselier, Alcide Fuselier, Bridget Fuselier, Edward

Fuselier, Alfred Fuselier, and Furges Fuselier to be the owners of the following

described property:

A certain tract of land containing 182.28 acres, more or less,
being the irregular Sections 64 and 65, Township 10 South, Range 5
East, St. Martin Parish, Louisiana, located east of Bayou Tortue in St.
Martin Parish, Louisiana.

All costs of these proceedings are taxed to Billeaud Sugar Factory, Inc.

AFFIRMED AS AMENDED.

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