Leblanc Land Company, LLC, Louis P. Leblanc, Jr., and Merill Leblanc Cornay VS The Dow Chemical Company, Clifton Assumption, LLC, Clifton Land Corporation, Clifton Minerals, LLC, Landsource Incorporated and Chad A. Morris

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NOT DESIGNATED FOR PUBLICATION STATE QF LOL ISIANA COURT JF APPE FIRST CdRCUTL NLTMBER 2012 CA 0963 LEBLANC LAND COMPANY LLC LOUIS P LEBLANC JR AND MERRILL LEBLANC CORNAY VERSUS HE DOW CHEMICAL COMPANY CLIFTON ASSUMPTION LLC CLIFTON LAND CORPORATION CLIFTON MINERALS LLC LANDSOURCE INCORPORATED AND CHAD A MORRIS 7udgment Rendered APR 1 0 2013 ed Appea from the 3 cial rieY 2 Tud Dis Court In and far the Parish of Assurnption Louisiana Trial Court 30 Iutnber 59 Honarable Aivin Tunner Jr J xdge Kenneth H Hooks III H Price Mounger III Charles G Blaize Jr Baton Rouge LA Attorneys far Appellants Plaintiffs LeBlanc Land Company LLC Louis P LeBlanc Jr and Merrill LeBlanc Cornay and Lee J Amedee III Gonzales LA David M Bienvenu Jr Attorneys for Appellee John Allain Viator Defendant Lexi T Chemical Company Holinga The Dow Baton Rouge LA BEFORE PARRO WELCH and KLINE JJ Hon William F Kline Jr retired is serving as judge ad hoc by special appoinhnent of the Louisiana Supreme Court WELCH J Plaintiffs LeBlanc Land Company LLC Louis P LeBlanc Jr and Merrill LeBlanc Cornay appeal a judgment granting The Dow Chemical Company s motion for an involuntary dismissal and dismissing their petitory action with prejudice We affirm BACKGROUND At issue in this lawsuit is the ownership of approximately 11 acres of land 6 in Assumption Parish On March i9 2008 plaintiffs filed a lawsuit against Dow s Dow predecessor in title and ather defendants asserting ownership of the disputed tract and seeking to be restored in possession of the property In the petition plaintiffs asserted that in 2007 Dow began extensive soil evacuation operations on the 11 acre tract to construct a pond to transfer and store up to 3 6 million gallons of brine water Plaintiffs further alleged that Dow predecessor in s title improperly sold their 11 acre tract to Dow They asked the court to order 6 s Dow eviction from the property and sought to recover damages to evaluate and remediate any contamination or pollution impacting or threatening their land as a result of the storage of brine water on their property In an amended petition plaintiffs asserted they were in possession af the disputed tract Dow filed an exception of improper cumulation of actions submitting that pursuant to La C art 365 plaintiffs assertion of ownership converted the P action to a petitory action The trial court sustained the exception and converted the action to a petitory action deeming the possessory action waived The disputed tract is located between a tract of land owned by plaintiffs referred to herein as the LeBlanc tract and a tract of land owned by Dow s predecessor in title Clifton Land Corporation referred to herein as Gifton the 2 Louisiana Code of Civil Pxocedure article 3657 provides that a plaintiff may not cumulate the petitory and possessory actions in the same lawsuit or plead them in the alternative and when he does so he waives the possessory action 2 tract The LeBlanc tract is bounded on the east by the Clifton tract and the Clifton tract is bounded on the west by the LeBlanc tract Prior to trial plaintiffs acknowledged in a jaint pre order that Dow trial purchased the disputed tract from Clifton Land Corparation by act of sale dated July 28 2005 Plaintiffs claimed that they had become owners ofthe disputed tract by virtue of acquisitive prescription prior to the date of Dow purchase They s asserted that their possession of the disputed tract had been continuous uninterrupted peaceable public and unequivocal for over fifty years A three bench trial was held during which plaintiffs offered the day testimony of three farmers the testimony of Dow general manager in charge of a s construction project undertaken by Dow on the disputed tract after its purchase and the testimony of one of the owners of the LeBlanc tract Plaintiffs sought to establish that they had been in possession of the disputed property for more than the ten or thirty years necessary to acquire title by acquisitive prescription pursuant to La C articles 3475 and 3486 To support their claim plaintiffs relied principally on the farming operations conducted by farmers on the disputed tract and the presence of oil and gas wells on the LeBlanc tract The farmers testified that for years those farming the two adjoir tracts believed that a ditch in the ing cane field separated the two tracts and that the farmers farming the LeBlanc tract farmed up to that ditch The farmers identified the disputed tract on an aerial photograph of the property showing the individual fields or blocks of farmed or fallow land The plaintiffs did not introduce evidence of an actual survey showing the location of the disputed property and no expert testified regarding the dimensions ofthe disputed tract or the exact location of the disputed property At the close of plaintiffs case Dow moved for an involuntary dismissal pursuant to La C art 1672 on the basis that plaintiffs failed to prove they P B owned the property by a preponderance of the evidence 3 Dow pointed out that plaintiffs did not introduce a survey showing the property described in their title was actually ascertainable They further urged that plaintiffs entire case was premised on precarious possession up to a ditch however this ditch was not identified in a property description in nyone chai of title it was never s referenced on any survey and the exact location of the ditch was not identified with coordinates or by the testimony of a surveyor or other expert In short Dow urged there was no evidence to determine the location of the ditch in order to determine the extent of the plaintiffs possession Dow further contended that even if the farming operations relied on by plaintiffs to establish possession were open and obvious they could not establish the requisite thirty possession dating years back to the 1950s because there was an interruption of prescription by acknowledgment in 1979 when the plaintiffs signed a right of way document to which a survey was attached showing that the Clifton tract had a frontage of 959 feet The trial court agreed with Dow positaon and granted the motion s dismissing plaintiffs lawsuit with prejudice In lengthy written reasons for judgment the trial court observed that the evidence demonstrated that the LeBlanc tract the Clifton tract and the dispuYed tract have all been used for sugar cane farming for many decades The trial conrt found that plaintiffs failed to establish that they had continuous uninterrupted peaceable public and unequivocal possession of the disputed tract for the requisite amount of time to acquire ownership by acquisitive prescription of ten or thirty years Because of its ruling on the possession element the court stated it was unnecessary to discuss the just title and good faith elements of ten year acquisitive prescription although it had indicated earlier that it was undisputed that the parties had overlapping titles to the disputed tract The trial court found the following flaws in plaintiffs evidence 1 although some of the farmers believed a ditch served as a boundary between the 4 Leblanc and Clifton tracts f their farrning operations the evidence did not or establish that the owners had that same undersianding 2 the ditch the tenant farmers claimed constituted the boundary was not staked by the plaintiffs and in fact the testimony established that the ditch was not different in any way from all the other ditches that existed in the cane fields 3 there was no survey or other evidence to establish that the lcrcatiion of the ditch could be ascertained to determine the extent of the possession and 4 even if the court was to determine that the farmers possessed on behalf of the plaintiffs up to the ditch the ditch was not identified in terms of its coordinates it was not raferenced in plaintiffs chain of title and its location was thus uncertain Finally the court concluded that the farming in this case was not sufficient adverse possession to support a claim of acquisitive prescription because there were no extemal signs giving notice that the plaintiffs tenants were claiming the land for their landlard observing that there were no fences stakes roads or any clearr signs giving notice to the public that the tract was being claimed for the plaintiffs through their tenants Instead the trial court found the evidence showed that the ad tracts and the disputed tract oining appeared to be and were in fact farmed as one contiguous tract as the LeBlanc and Clifton tract farmers testified th h shared equipment betw the two farms t y en Alternatively the trial court concluded that even i it was to find that plaintiffs possession through the tetiant farmers was su to satisfy the cient requirements of acquisitive prescription prescription had been interrupted in 1979 by virtue of a right agreement executed by plaintiffs in favor of Union way of Carbide thereby preventing the accrual of either ten or thirty year acquisitive prescription The court noted that a map was filed in the public records along with the right showing that the Clifton tract contained 959 feet frontage and way of found the document evidenced the LeBlanc tract owners belief that Clifton Land Corporation owned the disputed tract not the plaintiffs The court concluded that 5 the right agreement cor an acknoivledgment of Clifton Land way of srituted Corporatiods ownership of the disputed trac ul prevented the accrual of ich acquisitive prescription for as lc as the acknowledgment remained on the public ng records This appeal taken by plai followed tiffs DISCUSSION Louisiana Code of Civil Procedure article 1672 provides the basis for an B involuntary dismissal after the plaintiff has completed the presentation of his evidence in a lawsuit tried by a trial court without a juty In determining whether an involuntary dismissal should be granted the appropriate standard is whether the plaintiff has presented sufficient evidence on his case to establish his chief in claim by a preponderance of the evidence Robinson v Dunn 96 La App 0341 l Cir 11 683 So 894 96 writ deiaied 96 La 1 687 96 8 2d 2965 97 31 2d So 410 In making this determination a trial court is free to evaluate the evidence and render a decision based on the preponderance of the evidence without any special inferences in favor of the party opposed to the motion Id Proof by a preponderance of the evidenGe means that the evidence as a taking whole the evidence shows the f or cause sought to be proved is more probable ct than not Id A judgment of involuntary dismissal based on La C art 1672 P Bj should not be rever on appeal in the absence of manifest error Robinson 96 d s 0341 683 Sa2d at R46 In applying the manifest error wrong standard of clearly review an appallate court does not determine whether the trier of fact was right or wrong but whether the factfinder conclusion was a reasonable one s Industrial Roofing Banks v Sheet Metal Works Inc 96 La 7 696 So 2840 97 1 2d 551 556 If the factfinder findings are reasonable in light of the record reviewed s 6 in its entirety a court of appeal may not revsrse even if convinced that had it been the trier of fact it would have weighed the evidence differently Id The record reflects that in 1931 by virtue of two acts of sale Dr Henry LeBlanc purchased four tracts oi land in Assumption Parish One of those tracts is a 120 acre tract described in the acts of sale as measuring ten arpents in width by fourteen arpents in depth bound North by the second described tract and lands of Ulysse Boudreaua East by lands of Estate of C Clifton South by lands of Armelise Pltg Co and West by lands of Thomas Dugas said tract of land being situated in the N a of Section 45 T R The property purchased by E S E 12 13 Dow from Clifton Land Corpor is descxibed in that act of sale as having a tion front of five arpents more or less a depth of 14 arpents and bounded to the west by the lands of Paul Aucoin plaintiffs ancestor in title Plaintiffs attempted to establish the location of the disputed tract through the testimony of Keith Dugas a farmer who stated that he began farming the disputed tract in 2002 Mr Dugas was asked to locate the disputed tract on an aerial photogaph of the area which was admitted into evidence over objections by Dow as to its authenticity lack of foundation and hearsay The aerial photograph contains no date or coordinates of any type but depicts a plat showing numbers on plots of land According to Mr Iaugas the photograph represented individual fields or blocks of land on a certain tract and is very similar to maps Mr Dugas used to report the acreage he farmed to the Farm Service Agency FSA to record whether there is cane on the property or whether the ground is fallow After some confusion Mr Dugas identified the disputed tract on the plat as bearing the field numbers l 13 and 20 He further stated that he began farming nine acres of this tract in 2002 and continued until 2005 He testified that the property in question had been previously farmed by the LeBlanc Brothers from whom he purchased the leasing rights and that he had farmed with the LeBlanc Brothers when they farmed 7 the disputed tract Mr Dugas testified that he bel that the LeBlancs were the aeved owners of the tract of land he had been farming Mr Dugas testified that there was a clear line of demarcation between the two properties a ditch According to l Uugas the ditch divided the tracts r owned by the LeBlancs and the C and had aeen there since he had been a liftons young boy in the 1980s Mr Dugas marked a red line on the aerial photograph to represent the location of the ditch vlr Dugas tzstified that he was paid for a percentage of the sugar cane production by the local sugar mill which took 1 of 5 the crop revenue and sent it to the landowner He admitted he did not know who the mill sent the money to but assumed it was sending the money to the LeBlancs from whom he believed he was leasing the property On cross examination Mr Dugas admitted that he never met any of the plaintiffs in this case unti12007 and never saw any of the plaintiffs on the property He further admitted that all of the lines shown on the aerial photograph represented ditches in the cane field that the ditch he identified as constitut the boundary ng between the LeBlanc and ClifYon tracts was no different from any of the other ditches on the other plots of land and that there were no fences or other enclosures to mark the boundary Mr Dugas acknowledged that the disputed tract contained two acres of trees that he never farmed He also testified that when he farmed the LeBlanc tract his brother Bu Dugas farmed the Clifton tract on the other side ter of the ditch and that while they had different landowners they basically had one operation sharing the same equipment and empioyees According to Mr Dugas there was nothing distinct between their farming operations and on any given day he could be seen on a tractor farming the Clifton tract and his brother could be seen fanning khe LeBlanc property Jessie Dugas who farmed the Clifton properly from 1950 to 1973 with his father and who continued fartning the Clifton tract until 1990 also testified He 8 identified the Clifton tract ox the aea photograph admitted into evidence and ial stated that the red line thereozi representad a he had heex told zepresented the itcki boundary between the LeBlanc ar Clifton tracts Jesse Dugas admitted he did not d know who owned the LeBlanc tract but he knev that when he was farming the Clifton tract the LeBlanc tract had beeri farmed by a Mr Alleman Jules Russo and the LeBlanc Brothers Jesse Dugas testified ithat he had written leases with the Clifton Land Corporation to farm the Clifton tract and two leases executed in 1963 and 1973 were introduced into evidence Jesaie Dugas testified that when they started farming the Clifton tract there w a marker on the property line as somewhere near the end o F the dit hthat w either an iron pipe ar a stob as Another witness Keith LeBlanc who is not related to any of the plaintiffs testified that he farmed the LeBlanc tract with father in the I970s until his Keith Dugas bought them out around 2004 He identified tracts 1 13 and 20 on the aerial photograph as the tracts they farmed Keith I eBlanc testified that he met Dr Louis Leblanc whom he knew as the owner of the disputed tract and that he and his father farmed the tract on behaif of Dr Louis LeBlana He believed that the ditch represented t1 property line betwezn xhe Clifton tract and the tract of land he e farmed and stated that he farmed all the way ta that ditch He admitted that he never saw any markers on the roperty and that he and Dr Louis I not eBlanc did walk the property or discuss the boundary of the property He also acknowledged that the ditch in question was no different than th othar ditches on the property and that at no point in time was thera a fence along the boundary line between the LeBlanc property and the former Clifton land The only plaintiff to testify at trial was Albert LeBlanc 7r a resident of Michigan who left Louisiana in 1970 Prior to 2006 Mr LeBlanc visited the property once in the early 1950s when he was ten years old He testified that his grandfather showed him an oil well on the property and that the wellhead remained 9 on the property for many years N LeBlan arxd kzis mother own L Land r eBlaxic Company which owns an interest ir the Lel tract but he admitCed that his lane company is not auth to act as an agent for Yhe co Mr LeBlanc rized owners identified the tracYs labeled c th aeraal piao as 1 13 and 20 as portions of n raph c the disputed tract which he test fo part ot the 12Q acre tract he and his rfced family members owrted He aeknowledgec tl he did nox gi this particular iat ve piece of property much attention until fihis boundary dispute arose According to Mr LeBlanc when the L Brothers farmed the property the owners were anc eB paid by check and when Keith Dugas took over they received checks directly from the sugar mill far rent He also stated that they paid their property taxes each year through Dr Louis LeBlanc Sr who received the tax bills and after he died Dr Louis LeBlanc Jr received the bills and fhe owners paid their share to him Mr LeBlanc had no knowledge af the lease arran with the farmers of the ements property and admitted there v nothing irz wriiinb from which he could direct the as tenant fartners as to the s acr v the property or of a property c if e eabe description Plaintiffs incrod a tax assessinent listing Dr Henry LeBlanc as zced the owner of 120 acres of propert identili as d 45 T12SR13E Mr LeBlane testified that he flrst fou uY about D activzties and the d s w boundary dispute in Qctobrr of 2G06 whera he was working on a proposed oil and gas lease Mr LeBlanc later walked the property and observed that Dow had put up a chain link fence He estimated hat the old boundary had been moved between 175 and 225 feet Mr LeBlanc and other family members hired an attorney to contact Dow o cease its activitres or their property The LeBlancs later hired a law firr with a real estate speoialist and a survey ivas don and e complated in the summer of 2007 This survey was not introduc ato evidence di Besides the farming activities plaintiffs sought to establish possession of the disputed tract by the existence of oil wells thereon Plaintiffs irztroduced oil gas 10 and mineral leases executed Y I3r Henr Le13 for praperty identified as y anc covering 120 acres in Section 5 Township 12 South Range 13 East These leases were confected in 1945 ar 1950 Mr LeBianc testified that he recalled his d grandfather sht him a bottle containing crude oil from one of the ells on the wing property and show him the ac4ual ue11 Mr LeBlanc believed that the wells were drilled prior to 1953 because that is th year Ih Henry LeBlanc died Mr LeBlanc stated that two of the wellheads he saw when he went out to the property in the 1950s were still in existence noting that Ihe had not walked the property in about a year prior to trial He l two oil ells on a map of the LeBlanc cated the property prepared in 1950 Mr LeBlanc testified t the well he marked as No 1 hat on the map was cIoser to the Clifton boundary than the well he marked as No 2 During Mr LeBlanc scross examir he was shown a right of way agreement atiqn granted by plaintiffs to Union Carbide coverzng the 120 acre LeBlanc tract The agreement is dated October l 1979 Mr LeBianc identified the signatures of his mother and father on the document A map attached to the agreement apparently prepared on behalf of Union Carbide depicts the LeBlanc tract and the Clifton tract and states that the Clifton tract has width of 9S9 feet The trial court relied on this document in finding that an interruptian of prescxiption oocurred in 1979 and precluded the plaintiffs fror establishing ow L acquisitive prescription of rship ny either ten or thirty years The only ather witness ta testify was called bv plaintiffs on cross examination Stephen Smith Dow larid management speeialist testified s regarding his familiarity with the disputed tract and the acquisition by llow of the Clifton property Mr Smith acknowledged that the disputed 11 acres now 6 contains part of the Dow Brine Plant Mr Smith also testified that when Dow purchased the property in 2005 he walked tFie property and saw many ditches thereon none distinct from the other Mr Sznith engaged a company to perform a 11 survey to perform a metes and bounds survey to locate any encumbrances on the property such as pipelines and wells and to Iocate any encroachments on the property He had the company stake out the bo of the property and set the ndaries property corners Mr Smith con4a K Dugas to ei an estimate of how many acres of ted itk crop were going to be darnaged by Dc acquisition of the Clifton tract Dow s v introduced two documents informing faAmers Keith Dugas and Buster Dugas that they were being reimbursed for 9 anci 36 acres respectively of sugar cane 51 5 cultivation in Section 45 T R that would be lost as a result of Dow S E 1 13 s purchase and construction of its brine pond Accarding to Mr Smith Dow paid Keith Dugas for crop damages on the property that had been staked out by a surveying company hired by Dow as the property Dow had purchased Mr Smith testified that he never asked Keith Dugas who owned the land he was farming because he believed that Dow ov that property ned In this appeal plaintiffs cantend that the trial court conclusion that they s failed to show they possessed ihe ispui dtract for the requisite years to acquire ownership by acquisitive rescriptinn is absolutely erroneuus and contrary to evidence and ali appIicable law They submit that the proof presented at trial as to their ownership of the LeBlanc tract including the disputed tract now possessed by Dow as substantial Plaintiffs argue that their evidence shows that Dr Henry LeBlanc exercised corporeal possession on the entire LeBlanc tract commencing in 1951 through oil leases oil drilling and production and tenant farming operations which they insist were continuous uninterrupted publie unequivocal and with the intent to possess as owner through 2005 They submit that such acts ofpossession were sufficient to perfect ownership of the disputed propezty to the LeBlancs through ten acquisitive prescription by 1961 year They further insist that the evidence overwhelmingly proves that since at least as early as the 1950s their land 12 was corporeally possessed by age actin Qn theix behalf stressing that farmers ats who farmed the Clifton tract and the LeBlanc tract testified as to the identical property boundary identifying the ditch that separated their individual farming operations and each others crops By asserting ownership in the possessory actl filed a Dow plaintiffs on ainst converted the action to a petitory action judicially confessed Dow possession s and must prove title good against the world in order to prevail See La C art P 3657 Chevron U Inc v Bergeron 551 So 746 749 La App l Cir A S 2d writ denied 553 So 465 La 1989j Plaintiffs did not attempt to prove an 2d unbroken chain of valid transfers frozn the sovereign or a common ancestor but instead sought to demonstrate that they acquired ownership ofthe disputed tract by acquisitive prescription The party asserting acquisitive prescription bears the burden of proving all the facts that are essential to suppon it including possession far the requisite years McClendon v Thomas 1999 La App l Cir 9 768 So 261 1954 00 22 2d 264 To support a claim of acquisitive prescription the possession must be continuous uninterrupted peaceable public and unequivocal La C art 3476 Whether a party has possessed property for the purposes of acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong George M Murrell Planting Manufacturing Company v Dennis 2006 La App l Cir 9 970 So 1075 1341 07 2l 2d 1081 After reviewing the entire recard we are unable to find that the trial court s conclusion that plaintiffs failed to prove they acquired ownership of the disputed tract through acquisitive prescription is manifestly erroneous While plaintiffs offered testimony of farmers who believed that a ditch separated the tracts of land they farmed there was no evidence that the owners of the two contiguous tracts 13 ever considered the ditch to be the boundary separating their two properties Furthermore plaintiffs offered no evidence to esta the actual location of the ilish ditch and the record does not contain an accurate description of the eastern boundary of the LeBlanc tract There was no survey e or expert evidence idence which would have provided a basis for the court to determine the boundary between the contiguous tracts of land even if the court had found plaintiffs proved possession up to the ditch for the requisite period of time In the absence of such evidence we cannot say that the trial court manifestly erred in finding that plaintiffs did not meet their burden of establishing they acquired ownership of the disputed tract by acquisitive prescription under all ofthe facts ofthis case 3 CONCLUSION For the foregoing reasons the judgment appealed is affirmed All costs of this appeal are assessed to the plaintiffs appellants AFFIRMEA 3 Because of this ruling we find it unnecessary to address the parties azgumenYS regarding whether plaintiffs proved the just title element required by La C art 3475 for acquisitive prescription of ten years 14

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