Watson Baptist Church, Inc. VS James R. Morgan and Muriel R. Morgan
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0030 G WATSON BAPTIST CI INC URCH VERSUS JAMES R MORGAN AND MURIEL R MORGAN DATE OF JUDGMENT SEP 1 3 2013 ON APPEAL FROM THE TWENTY JUDICIAL DISTRICT COURT FIRST NLJMBER 134081 DIV G PARISH OF LNINGSTON STATE OF LOLTISIANA HONORABLE ERNEST G DRAKE JR JUDGE Aaron C Ellis Walker Counsel far Plaintiff Appellee Watson Baptist Church Inc Louisiana Mark D Plaisance Thiboda Counsel for Defendants Appellants James R Morgan and Muriel R Morgan Louisiana BEFORE KLJF THIGGINBOTHAM AND THERIOT JJ Disposition AFTIRMED r i 4iu 11U i S lJ y O KUHN J appellants Defendants James and Muriel Morgan appeal the trial court s judgment establishing a common boundary between their property and that of appellee plaintiff Watson Baptist Church Inc Watson Baptist along the line where an approximately 1 fence once stood We affirm foot 005 A reasonable factual basis exists to support the trial court designation of the s common boundary between the parties properties See Patterson v Holmes 464 2d So 394 400 La App lst Cir 1985 Seminary v DuPont 2009 La App 1082 Sth Cir 5 41 So3d 1182 1187 writ denied 2010 La 9 45 10 ll 1336 10 24 So3d 1077 the determination of a disputed boundary is a question of fact which should not be disturbed on appeal in the absence ofmanifest error Specifically Louis L Higginbotham accepted as an expert in land surveying testified that in 1977 a 1 fence existed between the properties and foot 005 delineated the common boundary He stated that a partial fence approximately 260 feet in length e to the east ofthe boundary fence but that he did not note it on sted the map of his 1977 survey because it was not in conformity with the deeds and the plat he was working under It was obvious to Higginbotham that the 260 fence foot was a cross fence that had been placed there by the parties common ancestor Doug Nesom prior to the subdivision of the land Higginbotham stated that he conducted another survey of the property in 2011 at the request of Watson Baptist While the foot 005 1fence no longer e he found an approximately 36 pine tree with sted inch some wire through it right on the line noted in the 1977 survey A survey undertaken by C Mistric Surveyors Ina Mistric in 1989 also showed the 1fence as the common boundary between the properties In the foot 005 act of sale transferring the property to the Morgans the property was described as in accordance to a plat ofthat survey The Morgans testified that they understood their property included the land east of the 1boundary up to the 260 fence foot 005 foot 2 remnant and that they had possessed the land to that point Acts by the Morgans in that area included the partial placement of their mobile home the erection of a small building and maintenance ofthe land by mowing It is clear that the deed to the Morgans property indicated that their titledid in not convey property to them beyond the 1boundary predecessor foot 005 On appeal the Margans assert that the trial court erred by not allowing them to tack onto the acquisitive possession their predecessor titlehad in undertaken beyond the foot 005 1fence to that of the 260 partial fence See Loutre Land and Timber foot Co u Roberts 2010 La 5 63 So3d 120 125 under La C art 794 2327 11 10 one may utilize tacking to prescribe beyond one title on adjacent property and to s the extent of visible boundaries Rhonda Golden Brown the daughter of the Morgans predecessor title in testified in support ofthe Morgans assertion to entitlement to tacking Brown stated that she had lived on a tract ofher father sland since 1975 and that she was 52 years old on the date oftrial She recalled that in the 1970 her father had erected a fence s where he understood the property line was located Brown believed that fence was the same one as the 260 fence remnant to which the Morgans possessed foot There is no error in the trial court sreliance on Higginbotham stestimony over the memory of the daughter of the Morgans predecessor Higginbotham title in identified both the 1 fence and the 260 fence remnant during his survey foot 005 foot in 1977 although he did not nate the latter fence on his map The 1 fence foot 005 was again denoted as the common boundary in 1989 in Mistric map of his survey s which also did not include a reference to the 260 cross fence and in 2011 foot Higginbotham found a trace of the 1 fence Because the evidence supports foot 005 a finding that the 1 fence existed as late as 1989 only those acts committed foot 005 t Mistrids 1989 survey showed that the tract sold to the Morgans was further subdroided and Tract 3A located to the west ofthe Morgans property was retained by the predecessor title in 3 by the Morgans since their possession in 1990 could have been adverse to that of Watson Baptist predecessor s in title Accordingly we find no error in the trial srejection of the Morgans assertion of entitlement to tacking See Swartley v court Feiber 560 So 507 509 La App 1 st Cir 1990 possessor seeking to tack 2d adverse possession of predecessor to his own possession must prove acts of title in possession by predecessor title in The Morgans also complained about the assessment of costs against them There is no error See La C art 790 La C P art 1920 Patlerson 464 Sa2d at 401 Owens v Smith 541 So 950 955 La App 2d Cir 1989 the trial court 2d s discretion to cast the unsuccessful party with costs will not be set aside absent an abuse of discretion DECREE For these reasons the trial court judgment is affirmed Appeal costs are s assessed against defendants James and Muriel Morgan appellants AFFIRMED 4
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