Cited by

See Art. 3436 of the Civil Code; (1841); Barnes v. Gaines, 5 Rob.

The intention is obvious that the redactors (as has the court, for more than a century, (1841) ) correlated the possessory action of the Code of Practice and the Code of Civil Procedure with the Civil Code articles relating to the right of a possessor to maintain himself in possession or to regain possession.

(1841), and is the same sort of physical and corporeal possession required for the commencement of running of acquisitive prescription.

(1841), and is the same sort of physical and corporeal possession required for the commencement of running of acquisitive prescription.” Practice Code of Louisiana Art. 46 provides that the possessory action may be brought by the possessor of real estate while Art. 47 provides that the possessors entitled to bring the

Articles 3437, 3442 and 3443, Revised Civil Code; ; Duffourc v. Constantin, 189 La.

See the authorities cited in the Hill case, , and Saunders’ Lectures on the Civil Code, both of which are extensively quoted.

230 and (second opinion) 1841, , been understood to bar suits based upon civil and constructive possession not preceded by corporeal, physical possession *101 by the plaintiff or his predecessors in title; but not to constitute a requirement that the plaintiff himself, when claiming under a color of title, be in actual physical possession of the pr

App. 1 Cir., ), which constructive or civil possession thus preceded by physical possession is sufficient possession for purposes of maintaining a possessory action (Art. 49, C.P., and the succeeding jurisprudence, see Hill v. Richey, 221 La.

402 , , the Supreme Court considered just such a : “ ‘It is clear, therefore, that if the article 49 of the Code of Practice was to be construed strictly and according to its literal meaning, there would follow the absurdity, that if a person was-to absent himself temporarily, and leave his house unoccupied for a certain lapse of time, he could not on his.

Over 100 years ago this court had occasion to interpret the meaning of Article 49 , and the interpretation given therein has been consistently followed by, this court ever since, that is: “* * * ‘When a person has once acquired possession of a thing, by the corporeal detention of it, the intention •which he has of possessing, suffices to preserve the possession in him, although he may have ceased t

the Supreme Court said: "* * * Possession is acquired by the actual and corporal detention of the property; this is the natural possession, or possession in fact; * * *" The penalty for the failure of a vendor to make delivery is stipulated for in R.C.C.

Articles 3437, 3442 and 3443, Revised Civil Code; ; Duffourc v. Constantin, 189 La.

Albert Hanson Lumber Co. v. Riggs Cypress Co., 130 La.

it was held that where a person is disturbed in his possession, he has the right, within a year, and by virtue of his civil possession, founded on his previous corporeal and actual possession, to institute the possessory action to recover it.

Agurs v. Bernstein, 165 La.

See, also, ; Prevost v. Ellis, 11 Rob.

Richard v. Poitevent & Favre Lbr.

183 ; ; Barnes v. Gaines, 5 Rob.

Code, art. 3503; Prevost’s Heirs v. Johnson, 9 Mart., O.S., 123; Ellis v. Prevost, *391 ; Leader Realty Co. v. Taylor, 147 La.

123; ; Leader Realty Co. v. Taylor, 147 La.

The doctrine is recognized in Prevost’s Heirs v. Johnson, 9 Mart., O.S., 123; ; Leader Realty Co. v. Taylor, 147 La.

Duffourc v. Constantin, 189 La.

As early as 1841, this court, , when called upon to interpret the term “real and actual possession” found in article 49 of the Code of Practice relative to the possessory action, said: “Now, we understand the expressions, real and actual possession, contained in -this *833 law, as used in contradistinction with the possession which is purely civil

In that case the court held: “When a person claims by possession alone, without showing any title, he must show an adverse possession by inclosures and his claim will not extend beyond such inclosures.” , a possessory ac *789 tion, tlie court said, we copy from the syllabus: “The person claiming by possession alone, without showing any title, must show an adverse possession by inclosures, and his claim will not extend beyond.” The dicta of these old cases is now the jurisprudence of this state i

Plaintiff having shown title by mesne conveyances from the United States, it is conceded that it was essential that defendant should clearly show possession by her, or another than plaintiff, for a period of thirty years ( , and authorities cited); but even construing the evidence most favorably to defendant, we find that she failed to establish that either she or anyone else had possession of the property for a period of thirty years.

f the property [real estate] at the instant when the disturbance [of his possession] occurred; a mere civil or legal possession is not sufficient”; and in construing that article with the provisions of the Civil Code, the court has held that the possession resulting from action taken in accordance with article 3437, Civil Code, will be sufficient to maintain a possessory action ( ), it is, we assume, conceded that the same character of possession on the part of the opponent will be sufficient to

Ellis vs. Prevost, ; Richard vs. Poitevent & Favre Lbr.

560 ; Ellis vs. Prevost, .

However, enclosure of a part of a tract of land by one without title is not possession of the whole, and even though continued for a period of thirty years is not sufficient for the basis of prescription as to the area not enclosed (Prevost’s Heirs vs. Johnson, 9 M. (O. S.) 123; Ellis vs. Prevost, ); and we are of the opinion that the mere cutting of timber from the land when it is not shown to have been taken from the entire area and when the evidence does not show from what part of the tract t

357 .” This court’s interpretation of article 49, C. P., has been uniform since the decision handed down in 1841, , wherein the court said: “Possession is acquired by the actual and corporal detention of the property; this is natural, or possession in fact; and it is preserved and maintained by the mere will or intention to possess, and this is civil possession, or possession in right.

If the plaintiffs had continued to pay taxes and had exercised some act of actual possession every ten years as required by C. C., Art. 3444, then as held in Ellis vs. Prevost, , their possession would have continued until this time, but they neglected to do that.

some time by a natural possession in the plaintiff or his authors.” .

(O. S.) 123 , this court held that— “When a person claims by possession alone, without showing any title, he must show an adverse possession by inclosures, and his claim will not extend beyond such inclosures.” See, also, .

159 ; ; Taylor v. Telle, 45 La.

159 ; ; Taylor v. Telle, 45 La.

Against any disturbance in the meantime, the civil possession will support a posses-sory action.” Ellis vs. Prevost, .

at he has “ had the real and actual possession of the property at the instant when the disturbance occurred; amere civil or legal possession is not sufficient,” and that “he should have brought his suit at the latest within the year in which the disturbance took place.” The interpretation placed upon the article of the Code of Practice has been uniform since the case of Ellis vs. Provost et ais., .