C.S. Gaidry, Inc., and Schwing Management, LLC VS Low Land Construction Company, Inc., XYZ Insurance Company and Harry Bourg Corporation
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2019 CA 1274 C. S. GAIDRY, INC. AND SCHWING MANAGEMENT, LLC VERSUS LOW LAND CONSTRUCTION COMPANY, INC., XYZ INSURANCE COMPANY, AND HARRY BOURG CORPORATION DEC 0 12020 Judgment Rendered: On Appeal from the 32nd Judicial District Court Parish of Terrebonne, State of Louisiana No. 1$ 0027 The Honorable David W. Arcenaux, Judge Presiding Damon J. Baldone Attorneys for Plaintiffs/ Appellants, Thomas E. Dunn C. S. Gaidry, Inc. and Schwing Houma, Louisiana Management, LLC Rufus C. Harris, III Attorneys for Defendant/Appellee, Cindy Galpin Martin Low Land Construction Co., Inc. New Orleans, Louisiana James M. Funderburk Attorneys for Defendant/Appellee, Standwood R. Duval Harry Bourg Corporation Kathryn W. Richard April Trahan Houma, Louisiana BEFORE: GUIDRY, McCLENDON, AND BURRIS, t JJ. The Honorable William J. Burris, retired, is serving pro tempore by special appointment of the Louisiana Supreme Court. jvlcCl n f J". Cv curs f csu/- a cj ash •' S' C'cr G'/S. BURRIS, J. This suit concerns ownership of the NW 1/ 4 of Section 10, T20S- R17E ( the disputed property), located in Terrebonne Parish, from which Low Land Construction Co., Inc., (Low Land), removed dirt that it used in a levee project. Low Land removed the dirt pursuant to a contract with Harry Bourg Corporation (HBC), which claimed to be sole owner of the disputed property. C. S. Gaidry, Inc. ( Gaidry), and Schwing Management, LLC ( Schwing), ( collectively, the plaintiffs), instituted this suit against HBC and Low Land, asserting ownership of the disputed property and seeking damages for the unauthorized dirt removal. In a reconventional demand, HBC sought a declaration that it acquired ownership of the disputed property by acquisitive prescription. The trial court conducted a three- day bench trial where HBC and the plaintiffs presented evidence of their chains of title and acts of ownership on the property. The trial court concluded that HBC and the plaintiffs were at one time co- owners of the disputed property by virtue of record title and that HBC proved that it acquired full ownership by virtue of acquisitive prescription. The trial court rendered judgment declaring HBC to be owner of the disputed property and dismissing all other claims. The plaintiffs have appealed, contending the trial court erred in rendering judgment in favor of HBC. The plaintiffs maintain that the evidence establishes their clear title to the disputed property and, as owners, they are entitled to damages. They argue the trial court erred in finding that the disputed property was transferred to RBC' s ancestor in title and that HBC acquired full ownership by acquisitive prescription. They further challenge the validity of the contract between Low Land and HBC. Appellate courts review a trial court' s decision to grant or deny a declaratory judgment using the abuse of discretion standard. Mai v. Floyd, 05- 2301 ( La. App. 1 Cir. 12/ 6/ 06), 951 So. 2d 244, 245, writ denied, 07- 0581 ( La. 5/ 4/ 07), 956 So. 2d 2 619. The determination of whether property has been acquired through acquisitive prescription is one of fact and subject to the manifest error/ clearly wrong standard of review. Guitreau v. Clerk of Court for Livingston, 18- 1154 ( La. App. 1 Cir. 4/ 23/ 19), 2019WL1781380, * 3; see also Rosell v. ESCO, 549 So. 2d 840, 844 ( La. 1989). Under the manifest error standard of review, a reviewing court may not merely decide if it would have found the facts of the case differently. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14- 2592 ( La. 12/ 8/ 15), 193 So. 3d 1110, 1115. Rather, to reverse a trial court' s factual conclusion, the appellate court must satisfy a two- step process based on the record as a whole: there must be no reasonable factual basis for the trial court' s conclusion, and the finding must be clearly wrong. Hayes, 193 So. 3d at 1115- 16; Stobart v. State through Department of Transportation and Development, 617 So. 2d 880, 882 ( La. 1993). This test requires a reviewing court to do more than simply review the record for some evidence that supports or controverts the trial court' s findings. The court must review the entire record to determine whether the trial court' s finding was clearly wrong or manifestly erroneous. Hayes, 193 So. 3d at 1116; Stobart, 617 So. 2d at 882. The trial court provided extensive written reasons for judgment that detail the numerous factual findings and determinations it made in weighing the conflicting evidence and determining that the plaintiffs and HBC were co- owners of the property and that HBC acquired full ownership by acquisitive prescription. After thoroughly reviewing the record and applicable law, we are unable to say the trial court was clearly wrong or manifestly erroneous in its findings. As explained in the trial court' s excellent reasons for judgment, which we attach hereto as Appendix A, the record supports the trial court' s determinations. Consequently, the trial court did not err in dismissing the plaintiffs' claims for the value of the dirt removed from the property. The plaintiffs' claims regarding the validity of the dirt contract are moot. 3 We affirm the judgment of the trial court and issue this opinion in accordance with Uniform Rules — Courts of Appeal, Rule 2- 15. 1B. Costs of this appeal are assessed to C. S. Gaidry, Inc., and Schwing Management, LLC. AFFIRMED. 4 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2019 CA 1274 C. S. GAIDRY, INC. AND SCHWING MANAGEMENT, LLC VERSUS LOW LAND CONSTRUCTION COMPANY, INC., XYZ INSURANCE COMPANY, AND HARRY BOURG CORPORATION McClendon, 7., concurring. Y Given the expansive language in the April 10, 1942 act of sale between Ashby W. Pettigrew and Harry Bourg, I concur in the result reached by the majority. APPENDIX A C. S. GAIDRY, INC., ET AL * 32ND JUDICIAL DISTRICT COURT V. PARISH OF TERRESONNE LOW LAND CONSTRUCTION COMPANY, * INC., STATE OF LOUISIANA ET AL DOCKET NUMBER 180027 * DIVISION D REASONS FOR JUDGMENT On May 23, 2017, referred to as Gaidry), the C. S. Gaidry, and Schwing Management, referred to as Schwing), hereinafter Inc. ( LLC ( hereinafter filed this suit asserting a claim against the defendants for removal of soil from land located in the NW 1/ 4 of Section 10, Dulac, Louisiana. T20S- R17E, in Terrebonne Parish in The plaintiffs alleged that Low Land Construction Company, Inc. ( hereinafter referred to as Low Land) pursuant to a contract with the Harry Bourg Corporation hereinafter referred to as HBC), removed dirt from the property in question for use in connection with a local levee project. The plaintiffs alleged that they were the owners of the property and that the dirt was removed without their knowledge or consent. Named as defendants were Low Land, insurer of Low Land. damage, HBC, and the unknown The plaintiffs claimed various items of including claims for payment for the dirt removed and devaluation of the immovable property. In response to the plaintiffs, exceptions no cause of of prescription, action, and no petition, HBC asserted nonjoinder of indispensable parties, right generally denied the plaintiffs, of action, and allegations. otherwise In addition, HBC filed a reconventional demand seeking a declaratory judgment recognizing its good faith possession as owner for decades" and asserting a claim of ownership by acquisitive prescription. Finally, HBC asserted what could be characterized as an alternative cross claim against Low Land. However, HBC indicated that it was merely reserving its right to assert such a claim, and it requested that service of its claim on Low Land be withheld, Low Land also responded to the plaintiffs, 1 initial petition and generally denied the allegations against it. also no asserted right of exceptions of Low Land action. no prescription, also cause of It and action, reconvened against the seeking the value of improvements made by it to the plaintiffs, land in question during the course of its excavation of the against Low Land Further, property. HBC for breach of asserted the dirt an alternative removal cross claim contract. In response to the alternative cross claim by Low Land against HBC, HBC asserted an exception of HEC generally denied Low Land' s claim. prescription, and further asserted a reconventional demand against the cross claimant, seeking indemnification and defense. this reconventional action and no demand, right of asserted Low Land, exceptions and denied HBC1s action, Low Land, in response to of of no cause claim of indemnification and defense. In separate allegations of pleadings, HBC and Low Land reconventional the plaintiffs denied all of the in their respective demands. On July 19, 2017, the plaintiffs filed a supplemental and amending petition seeking to recover from HBC additional sums obtained by HBC for various leases of the subject property to third persons for cattle grazing, answer filed July 20, 2017, hunting, HBC denied that plaintiffs anything as a result of On August 14, 2018, and agriculture. By it owed the those leases. the plaintiffs attempted to amend and supplement their original petition a second time by adding an alleged insurer of defendant. plaintiffs, The petition was Low Land, Beacon Insurance Company, request as a to amend and supplement the denied. Trial of this matter was conducted without a jury on October 1, 2, and 3, 2018. On the first day of trial immediately before the trial began, all of the parties entered into a joint stipulation which included the following agreements: 1) dirt pit" HBC and Low Land agreed that the excavated area or created by Low Land in the NW 1/ 4 of Section 10, 2 T20S- consisted R17E, of the total Hebert pit R17E, the square feet, or consisted all as reflected by a survey by M. P. and Low Land agreed that total of 4. 436 pit area, 9, 2017. dated June Terrebanne or 193, 234 acres, the excavated area Levee request District produced dated March 31, HBC 4) square feet, or all as reflected by a survey by M. P. HBC and Low Land agreed that 3) 550 2017. 9, HBC or 235, 910. 71 acres, as 2017, a the result were and Low Land agreed that records of a or T20S- created by Low Land in the SW 1/ 4 of Section 10, pit" records 5. 416 area, dated June 2) dirt of 45a of Hebert from the public authentic. the records from the Louisiana Department of Wildlife and Fisheries regarding alligator tags pertaining to the NW 1/ 4 of Section 10, were T20S- R17E, authentic. 5) HBC and Low Land agreed that the records from the Terrebonne Parish Sheriff' s Office regarding the payment of taxes attributable to the NW 1/ 4 of Section 10, T20S- R17E, were authentic. 6) HBC and Lova Land agreed that Daniel Toups was an expert in the field of abstracting titles. 7) Gaidry and Schwing agreed that Gordon White was an expert in the field of abstracting titles. 8) land Gaidry and Schwing agreed that John Mattingly was a surveyor. 9) a land Gaidry and Schwing agreed that Leonard Chauvin was surveyor. 10) 4. 10 per Gaidry and Schwing agreed that Low Land paid HBC cubic yard for 181, 861 cubic yards of dirt excavated from the dirt pit. In support of their claims, the plaintiffs seventeen items of documentary evidence at trial, a) H. C. 27, Plaintiffs' Wurzlow No. No. 1: 440, wit: Copy of the 900 page together with a March report from the land abstractor, Daniel J. based thereon, regarding the NW 1/ 4 of Section 2017, Toups, 10, Exhibit Abstract to offered T20S- R17E; two limited supplemental abstracts of title prepared by Daniel J. a Toups Land Title Services hereinafter as Title abstract Mr. b) Toups a and identified regarding the same list of documents 2017- 202; no. Title) 2018- 211, and no. an extract of property; of referred to as 2017- 202 no. and the 2: Copies from Toups curriculum vitae Toups. Exhibit Plaintiffs, No. of twelve documents recorded in the records of the Clerk of Court, Terrebonne Plaintiffs, c) Louisiana, Parish, in the Toups others, Title Exhibit abstract No. 3: Terrebonne Plaintiffs, Sketches" Exhibit 4: to the NW Plaintiffs' 1/ 4 of to, among 2017- 202. Sixteen " Title prepared by Toups Title regarding " Claimants" e) referred abstract no. No. among of the Clerk of Louisiana, in the Toups Title others, d) Parish, to, 2018- 211. Copies of thirty- eight documents recorded in the records Court, referred no. Section 10, Exhibit No. 5: Copies Danos for terms calendar years 2011, 2012, Adverse T20S- R17E. by Gaidry to Shannon J. of four leases of one year each for the 2013, and 2014, with regard to various parcels of immovable property, and always including the NW 1/ 4 of Section 10, T208- R17E. f) Plaintiffs' Exhibit No. 6: Copies of records of the Terrebonne Parish Sheriff showing payment of property taxes with regard to the NW 1/ 4 of Section 10, T20S- R17E, for the years 1. 970 through 2017, inclusive, and apparently referenced by stipulation number 5 described hereinabove. Plaintiffs, Exhibit No. 7: Certified copies of g) records of the Louisiana Department of Wildlife and Fisheries evidencing alligator licenses issued to Wilson Gaidry between 1984 and 2018, and alligator egg collection permits issued to Dane Ledet with the approval of the " landowner," Wilson Gaidry, including an egg collection permit for 1996 with regard to the NW 1/ 4 of Section thereof 10, through T20S- R17E, and annual renewals 2018, all apparently referenced by stipulation number 4 described hereinabove. h) Plaintiffs, Exhibit No. 8: Copy of a one year water fowl hunting lease effective September 10, 1995, by Gaidry as lessor, regarding land which included the NW W 1/ 4 of Section Plaintiffs, 10, T20S- R17E. Exhibit No. 9: Copy of a one year trapping and hunting lease effective September 10, 1995, by Gaidry as lessor, regarding land which included the NW 1/ 4 of Section 10, T209- R17E. Plaintiffs, Exhibit No. 10: j) Copy of a ten year hunting lease effective October 1, 1984, by Gaidry as lessor, regarding land which included the NW 1/ 4 of Section W 10, T20S- RI7E. Plaintiffs' and mineral Exhibit No. 11: Copy of an oil, gas, 1974, by Lillie regarding land which lease dated November . 25, Lea McKnight Gaidry, et al., included the NW 1/ 4 of section 10, 1) Plaintiffs, Exhibit No. 12: T20S- R17E. Terrebonne Parish Tax Assessor aerial photograph of the NW 1/ 4 of Section 10, T20S- R17E, m) of unknown date. Plaintiffs' Exhibit No. 0 13: 1998 Google Earth map of the NW 1/ 4 of Plaintiffs' n) Section 10, T20S- R17E. Exhibit No. 14: Copy of an act of sale from Harry Bourg to HBC dated April 7, 1955, regarding property which included "[ a) ll that portion of Section 10 which lies West of Point the East bank of Four Canal," without any designation of township or range, and being described as part of the same property purchased by Harry Bourg from Ashby W. Pettigrew under date of April 10, Plaintiffs' o) 1942. Exhibit No. sale from Ashby W. 10, 15: Copy of an act of Pettigrew to Harry Bourg dated April 1942, regarding property which included "[ a] ll that portion of Section 10 which lies West of the East bank of Four Point Canal," without any designation of township or range. Plaintiffs' p) Exhibit depicting Section 10, Plaintiffs' q) No. 16: Copy of a Tobin map T20S- R17E. Exhibit No. 17: ( 1) A copy of a sale from Dulac Planting & Manufacturing Company to Albert P. Cantrelle, dated October 26, sale from Albert P. 1910, ( 2) a copy of Cantrelle to Ashland Planting and Manufacturing Company, Limited, dated February 16, 1917, ( 3) a copy of a portion of an apparent mortgage by Ashland Planting and Manufacturing Company, Limited, in favor of Bank of Terrebonne and Savings Bank, dated March 8, 1924, ( 4) a copy of a mineral lease by Ashland Planting & Manufacturing Company, Ltd., to Sulphur Company, dated December 23, 1925, ( Union 5) a copy of a portion of a sheriff' s sale from Ashland Planting and Co., Mfg. 1927, ( Ltd., 6) to Madison L. Funderburk to A. W. 25, Funderburk, dated May 14, a copy of a sale with mortgage by Madison L. 1927, ( 7) Pettigrew, Incorporated, a copy of a sale from A. W. dated May Pettigrew, Inc., to Ashby W. Pettigrew, dated May 12, 1931, ( 8) copy of a cash sale from Ashby W. Pettigrew to Harry Bourg, dated May 1, 1934, ( 9) a copy of a sheriff' s sale from Ashland Planting & Manufacturing Company, a Ltd., to Bagley C. Lirette, dated August 3, 1935, ( 10) a copy of a compromise agreement between A. W. Pettigrew and the heirs of R. R. Barrow ( Irene Barrow, Zoe Barrow Topping, Hallette Barrow Cole, and Jennie Barrow dated June 22, 1935, being a portion of Plaintiffs' Exhibit Nos. 2 and 3, described Dawson), hereinabove, ( 11) a copy of a cash sale by Bagley C. Lirette to Harry Bourg and Ashby W. August 7, Exhibit 1935, ( No. Plaintiffs' 14, 12) and, ( Exhibit At trial of No. this matter, HBC Exhibit No. dated 15. items of documentary evidence, a) Pettigrew, an additional copy of Plaintiffs' 13) an additional copy of 1: to the defendant offered fifty-six wit: Copy of a an act of mortgage by Ashland Planting and Manufacturing Company, Limited, dated in favor of Bank of Terrebonne and savings Bank, March 9) 8, of 1924, a portion of which was Plaintiffs' Exhibit No. 17, included as item described hereinabove. b) HBC Exhibit No. 2: Copy of the entire record of the Terrebonne Parish Clerk of Court in the matter entitled A. W. Pettigrew. Inc. v. Ashland Planting &, Mfg. Co. District LTD., Court, docket number 9229, filed December 10, 5 17th 1926. Judicial c) April HBC Exhibit No. 3: 4, 1927, included Copy of the judgment rendered in the record of the matter described as HBC Exhibit No. d) HBC Exhibit No. 4: 2, above.. Copy of a sheriff' s sale from Ashland Planting and Mfg. Funderburk, dated May 14, Co., Ltd., 1927, to Madison of the matter described as HBC Exhibit No. 2, above, and a portion of which was included as item ( Plaintiffs' Exhibit No. HBC Exhibit No. e) by Madison L. 17, 5: L. included in the record 5) of the described hereinabove. Copy of a sale with mortgage Funderburk to A. W. Pettigrew, identical to item ( 6), described Incorporated, dated May 25, Plaintiffs' Exhibit No. 17, 1927, hereinabove. f) HBC Exhibit No. 6: Copy of an oil, gas, and mineral lease by A. W. with assignment 1928. Pettigrew, Inc., to H. H. Booker to Alfred M. Barbe, dated March 19, HBC Exhibit No. g) gas, 7: Copy of a release of an oil, and mineral lease by Alfred M. Pettigrew, h) Inc., dated October 4, Barbe to A. W. 1928. HBC Exhibit No. Pettigrew, 1931, 8: Copy of a sale from A. W. to Ashby W. Pettigrew, dated May 12, Inc., identical to Plaintiffs` described hereinabove. 7), Exhibit No. 17, item i) HBC Exhibit No. 9: A portion of a copy of an undated mineral lease by Ashby W. Pettigrew to Frank Wurzlow. HBC Exhibit No. 10: j) Copy of a cash sale from Ashby W. Pettigrew to Harry Bourg, dated May 1, 1934, identical to Plaintiffs' Exhibit No. 17, item ( 8), described hereinabove. k) HBC Exhibit No. 11: agreement between A. W. Barrow ( Irene Barrow Cole, 1935, 3, 1) Zoe Barrow Topping, and Jennie Barrow Dawson), Hallette dated June 22, being a portion of Plaintiffs, Exhibit Nos. 2 and and identical to Plaintiffs' described hereinabove, Exhibit C. Barrow, Copy of a compromise Pettigrew and the heirs of R. R. No. 17, item ( 10), HBC Exhibit No. described hereinabove. 12: Copy of a cash sale by Bagley Lirette to Harry Bourg and Ashby W. Pettigrew, dated August 17, 7, 1935, item ( 11), identical to Plaintiffs' Exhibit No. described hereinabove. HBC Exhibit No. 13: Copy of a sheriff' s sale from Ashland Planting & Manufacturing Company, Ltd., to m) Bagley C. Lirette, dated August 3, 1935, identical to 17, item ( 9), described Plaintiffs' Exhibit No. hereinabove. n) gas, HBC Exhibit No. 14: and mineral lease, Pettigrew, o) Copy of a release of an oil, by Frank Wurzlow to Ashby W. dated November 12, HBC Exhibit No. 15: 1935. Copy of an agreement by and between Harry Bourg and Ashby W. February 19, p) HBC Exhibit No. 16: B. dated Copy of a transfer agreement by and among the heirs of R. R. Zoe Pettigrew, 1938. Topping, Hallette B. Barrow ( Irene Cole, and Jennie F. B. Barrow, Dawson), Christian G. June 1935. 22, Pettigrew to Harry Bourg dated April 10, Ashby W. regarding property which included "[ of Section 10 which lies Point West of ajll that the East 1942, portion bank of Four without any designation of township or Canal," identical. to Plaintiffs, range, dated Gagne,, Copy of an act of sale from 17: HBC Exhibit No. q) and Harris Cole, Exhibit No. 15. 18: r) HBC Exhibit No. Copy of an act of sale from Harry Bourg to HBC dated April 7, 1955, regarding property which included 11[ aJ11 that portion of Section 10 which lies West of the East bank of Four Point Canal," without any designation of township or range, and being described as part of the same property purchased by Harry Bourg from Ashby W. date of April Exhibit No. identical to Pettigrew under Plaintiffs, 14. HBC Exhibit s) 1942, 10, No. 19: Copy of a boundary agreement by and between HBC and The Louisiana Land and Exploration Company, dated October 11, 1958. t) HBC Exhibit No. 20: Copy of a right of way grant by HBC in favor of The Parish of Terrebonne, State of Louisiana, dated July 8, 1963, and a copy of a right of way deed by HBC in favor of The Police Jury of the Parish of 8, 1965. Terrebonne, State of Louisiana, dated October u) 21: HBC Exhibit No. Copy of a drainage servitude deed by HBC in favor of The Terrebonne Parish Police 1975. Jury, dated July 3, HBC v) Exhibit No. 22: Copy of a judgment rendered in the matter entitled Harry Bourg Corporation v. B. Breaux, Court, 20, docket number 91308, rendered January 31, 32nd Judicial 1991, Nora District and signed February 1991. w) 23: HBC Exhibit No. Copy of a grant of servitude by HBC to Terrebonne Levee and Conservation District, - dated September 27, 2012. x) HBC Exhibit No. 24: Copy of an agreement and amended servitudes by and between HBC and Terrebonne Parish Consolidated Government, dated May 3, 2013. HBC Exhibit No. 25: y) Copy of a right- of- way grant by the State of Louisiana to HBC, dated October 17, 2013. HBC z) Exhibit No. by and between HBC, Terrebonne 4, Levee 26: Four Copy of a grant of servitudes Point Harbor, L. L. C., and Conservation District, and dated May 2016. aa) HBC Exhibit No. 27: Copy of proces verbal of inventory and appraisement from the matter entitled Succession of Hughes Joseph Breaux, docket number 4699, 17th Judicial District Court, dated July 19, 1965. bb) HBC Exhibit No. 28: Copies of ( 1) a grazing lease by HBC to Nora Bourg Breaux, 20, 1968, ( 2) Bourg Breaux, cattle dated August a cattle grazing lease by HBC to Nora dated January 1, 1980, and, ( 3) a residential lease by HBC to Nora Bourg Breaux, December 22, 1987. 7 dated HBC cc) Exhibit No. 29: agricultural lease by August dd) 20, HBC Copy of a cattle grazing and to Hilton Dumesnil, dated 1968. Exhibit No. lease by HBC to Carl 1, HBC 30: Copy of a cattle grazing Bourg, apparently dated January J. 1981. ee) RBC Exhibit No. 31: Copy of an amendment to the cattle grazing lease described as HBC Exhibit No. 30, above, dated pages, and recorded at entry number 812231 of the records ff) of HBC Carl J. September 9, 1987, consisting the Terrebonne Parish Clerk of Exhibit No. 32: HRC Exhibit No. gg) to Herdis James Neil, eleven Court. Copy of a lease by HBC to dated September 11, Bourg, of 33: ( 1) 1988. Copy of a lease by HBC dated April 21, 1999, ( 2) copy of a lease by HBC to Herdis James Neil, dated April 21, 2005, and ( 3) copy of HBC lease ledger regarding Herdis Neil. hh) HBC Exhibit No. HBC to Herdis 34: James Neil, Copy of a lease agreement by dated April 21, 2011. ii) HBC Exhibit No. 35A: ( 1) COPY Of notarial act of correction by and between HBC and Herdis James Neil, dated June 28, the parties, 2017, regarding a previous lease between 2) and, ( a list of documents recorded with the Terrebonne Parish Clerk of Court regarding Section 10 of March jj) T20S- R17E, 18, 1924, Terrebonne Parish, and March HBC Exhibit No. 14, 35B: Louisiana, between 2017. Summary of tax assessments from 1924 to 1962 regarding property of Ashland Inc., A. Planting & Manufacturing Co., Inc., Ashby W. Pettigrew, Harry Bourg, W. Pettigrew, and HBC. kk) HBC Exhibit No. 36: Twenty- five photographs evidencing the placement of " posted" signs at various locations by HBC. 11) HBC Exhibit of " posted" mm) No. 36A: Five close- up photographs signs by HBC. HBC Exhibit No. 37: Seven photographs evidencing 38: Six photographs of brickwork historical fencing. nn) HBC Exhibit associated with oo) HBC Exhibit agricultural pp) an No. old No. sugar 39: mill, Eight photographs evidencing operations. HBC Exhibit No. 40: Hand - colored " Map of Lands Leased to Hilton Dumesnil by Harry Bourg Corporation," dated August 20, 1968, depicting thirteen specific parcels of land in T20S- R17E, Terrebonne Parish, Louisiana. qq) HBC Exhibit No. 41: Copies of four maps and/ or sketches associated with the lease of land to Carl J. Bourg. rr) HBC Exhibit No. 42: ( 1) 1964 United States Department of the Interior geological survey of " Quitman Quadrangle," Terrebonne Parish, Lake including lands in T20S- R17R, Louisiana, and ( 2) Summary of tax assessments from 1924 to 1962 regarding property of 1.1 Ashland Planting & Manufacturing Co., Pettigrew, Inc., Pettigrew, Ashby W. Inc., A. W. Harry Bourg, and HBC, said summary being identical to HBC Exhibit No. 35B, above. ss) 43: Color -coded " Map of Lands HBC Exhibit No. Leased to Hilton Dumesnil by Harry Bourg Corporation," dated August of land in HBC tt) with 20, 1968, T20S- R17E, Exhibit reference Louisiana, No. to depicting two specific parcels Terrebonne 44: Parish, Louisiana. Excerpt from a Tobin map T20S- R17E, Terrebonne Parish, depicting property " occupied by Harry Bourg." HBC uu) Exhibit No. 45: Copy of " Plat Showing a Portion of Property Claimed by Harry Bourg Corporation being the NW 1/ 4 of Section 10, Parish, Morris Louisiana," P. Hebert, dated June T20S- R17E, 12, Terrebonne 2017, prepared by reflecting Google Earth Imagery with aerial backing, added Inc., dated January 25, 2015, transparency, and hand- written annotations. HBC vv) Exhibit No. 46: Copy of " Map of a Portion of Harry Bourg Corporation Lands and Lands of Harry Bourg Corporation Leased to Nora Breaux, 9, 4, 10 & 37, Louisiana," 12, 1988, Baker Exhibit No. Smith & Son, HBC Exhibit xx) No. et al in Sections 3, Terrebonne Parish, dated November 30, prepared by T. HBC ww) T. T20S- R17E, 1988, Baker 47: revised December Smith & Son, Inc. Copies of survey records of Inc. 48: Original records of HBC evidencing payment of damages by Electronic Explorations, damages" on " HBC yy) Inc., to HBC in 1961- 1962, for " shooting Land of Harry Bourg." Exhibit No. 49: Handwritten records of Nora Breaux regarding land leased from HBC. HBC Exhibit zz) No. records of HBC leases aaa) HBC Exhibit 50: Copies of selected business from 1968 to 1993. No. 51: Copies of deer hunting permit agreements by HBC as grantee, grantees, from 2004 bbb) HBC Exhibit No. 52: ( 2014, dated April 9, by HBC, as buyer, and, ( Dirt -Contract" 26, 2) to various to 2017. 1) Copy of " Dirt Contract" as seller, copy of " Supplemental and Low Land, and Amended between the same parties dated February 2015. ccc) report HBC Exhibit from the attachments ddd) report HBC No. 56: Copy of a June 19, land abstractor, Gordon White, 2018, with thereto. Exhibit No. from the 57: Copy of the March 27, land abstractor, Daniel regarding the NW 1/ 4 of Section 10, J. T20S- R17E, together Abstractor' s Opening Note," from supplemental abstract of title by Toups Title with a copy of " identified as no. 2017- 202, and a copy of 2017, Toups, the an excerpt from a Tobin map with reference to T20S- R17E, Terrebonne Parish, Louisiana, occupied by Harry Bourg," depicting property being the same Tobin map identified as HBC Exhibit No. 44, described and all identical to portions of hereinabove, Plaintiffs' Exhibit No. 1, described hereinabove. HBC eee) Expert Exhibit Mattingly, with Exhibit 1: described No. 58: exhibits attached, to John C. wit: Identical to HBC Exhibit No. 45, hereinabove, without the Google Earth Imagery dated January 25, 2: 2015, added or hand- written annotations. transparency, Exhibit 2018, Copy of a May 24, from the land surveyor, Report" Identical to HBC Exhibit No. described hereinabove, without Imagery dated January 25, the 2015, 45, Google Earth or hand- written annotations. Exhibit 3: Four plats dated May 22, 2018, overdrawn on satellite imagery depicting lands in Section 10, T20S- R17E, Terrebonne Parish, Louisiana. Exhibit 4: Plat dated May 22, 2018, showing the location of various posted signs, historical fencing, brickworks Parish, and old in Section 10, sugar mill T20S- R17E, Terrebonne Louisiana. Exhibit 4. 1: Identical to HBC Exhibit No. described hereinabove. Exhibit 4. 2: Identical and HBC Exhibit No. Exhibit 38, 36, to HBC Exhibit No. 37 described hereinabove. 5: Two plats dated May 22, 2018, overdrawn on satellite imagery dated 1953, depicting lands in Section 10, T20S- R17E, Terrebonne Parish, Louisiana, one of which includes an added transparency depicting fence lines and other improvements. Exhibit 6: Identical to Exhibit 5, above, except the satellite imagery is dated April 19, 1956. Exhibit 7: Identical to Exhibit 5, above, except the satellite imagery is dated March 8, 1957. Exhibit 8: Identical to Exhibit 5, above, except the satellite imagery is dated February 19, 1965. Exhibit 9: Identical to Exhibit 5, above, except the satellite imagery is dated March 19, 1981. Exhibit 10: Identical to Exhibit 5, above, except the satellite imagery is dated May 9, 1984. Exhibit 11: Identical to Exhibit 5, above, except the satellite imagery is dated October 16, 1987. Exhibit 12: Identical to Exhibit 5, above, except the satellite imagery is dated November 10, 1996. Exhibit 13: Identical Exhibit 14: Copy of undated " Survey Map NE 1( 4 10 to HBC Exhibit No. 46. T20S- R17E Terrebonne Louisiana," Parish, prepared by The Louisiana Land and Exploration Houma, Civil Engineering Department, Company, Louisiana. 15: Survey " Field Note Records," neither referred to nor explained in the expert Exhibit report of HBC Exhibit Exhibit cattle of Copies 16: of various agricultural and other documents, identical 1) documents ( is attached as part of 58. No. leases, 2018, Mattingly dated May 24, John C. to which this Exhibit 15 to and consisting a portion of the map constituting Exhibit 14 attached as part of HBC Exhibit with 58, No. the addition of identical handwritten designated tracts, ( 2) HBC Exhibit No. 22, ( 3) identical to part HBC No. 27, ( 4) identical to HBC Exhibit to of identical to HBC Exhibit 30, identical to HBC Exhibit No. 6) No. 29, ( identical to HBC Exhibit No. 31, but 7) including a total of twenty pages ( instead of Exhibit eleven 28, ( No. pages), 5) and apparently including a draft agreement and/ or draft corporate resolution, 9) identical to HBC Exhibit No. 32, ( 8) identical 10) identical to HBC Exhibit No. 33, ( not introduced into 34, ( 11) to HBC Exhibit No. evidence as a separate exhibit of HBC, but being a copy of a lease agreement by HBC to Herdis James identical dated April Neil, to part 21, 12) 2017, ( of HBC Exhibit No. 35A, and, hand -colored sketch of tracts of land in 13) Section T20S- R17E, 10, Terrebonne Parish, Louisiana. the During the course of the trial, court received evidence by way of the testimony of a number of witnesses called Seven witnesses by the parties. testified on behalf original plaintiffs Gaidry and Schwing, of the including: an expert land title abstractor Daniel J. a) Toups, and author of the report and two supplemental title abstracts identified as parts of Plaintiffs, Exhibit No, b) 1; Roger Webb, a Gaidry shareholder who testified as to his historic use of Section c) T20S- R17E 10, Shannon J. testified as 1/ 4 of Danos, the land in the NW 1/ 4 of of Terrebonne a commercial Parish; fisherman who to his historic use of the land in the NW T20S- R17E Section 10, of Terrebonne Parish, under the authority of Gaidry; d) Rebecca Gaidry Richey, shareholder, who Gaidry properties, T20S- R17E e) of her management of including the NW 1/ 4 of Section 10, Terrebonne Wilson " Doc" Gaidry president and testified about Gaidry, Parish; Jr., seventy- nine year old Gaidry officer and shareholder, who testified regarding the historic use of Section 10, and members f) Stacie and management the NW 1/ 4 T20S- R17E of Terrebonne Parish, of the C. S. Gaidry family; Rabon, the manager of Schwing, 11 of by Gaidry who testified regarding its management of the NW 1/ 4 of Section 10, T20S- R17E of Terrebonne and, a member of Schwing who testified Leo Bickham, g) Parish; regarding his use of the NW 1/ 4 of Section 10, R17E of Terrebonne Parish, T20S- under the authority of Schwing. The following individuals testified at trial on behalf of the original defendants HBC Leonard a) J. Chauvin, and Low Jr., land surveyor, who testified to No. 46, HSC b) Exhibit Exhibit author of the d) Herdis registered particular reference registered the report land identified as HBC 58; Gordon White, c) Louisiana with Louisiana and author of No. including: a survey map prepared by him; a John Mattingly, surveyor, a Land, an expert land title abstractor and report identified as HBC Exhibit No. Neil, 56; a Terrebonne Parish cattleman who testified regarding his use of the NW 1/ 4 of Section 10, T20S- R17E of Terrebonne Parish, including his use as lessee e) of HBC; Nolan Bergeron, seventy- four year old grandson of Harry Bourg, the NW 1/ 4 who testified about the historic use of of Section 10, T20S- R17E of Terrebonne Parish by HBC and the Harry Bourg family; f) Ronnie president use of Bergeron, of the Terrebonne and, NW grandson of Harry Bourg and who testified regarding the historic HBC, 1/ 4 of Parish, Section 10, T20S- R17E of by HBC and the Harry Bourg family, and his management of HBC. The court has thoroughly reviewed in great detail all of the pleadings, testimonial exhibits, offered by the parties, arguments of accordance with these and memoranda and has thoroughly considered the The counsel. evidence, court reasons has rendered judgment in for judgment. The following facts have been well- established by the evidence adduced in this case. HBC' s Record Title The following is a summary of the critical juridical acts in the record chain of title of HBC to the NW 1/ 4 of Section 10, T20S- R17E, and report of Terrebonne Gordon Parish, White, as set forth by the testimony the expert land title abstractor called at trial by HBC. By sheriff' s sale on May 14, 1927, of " 10), Madison L. the 1927, recorded May 25, Funderburk acquired record ownership North West Quarter ( NWZ/ 4)... of Section Ten containing one hundred and fifty nine and sixty hundredths ( 159. 60) ... acres... 12 being in Township Twenty Range South, 20) La) S. E. D. ( East, 17) Seventeen ( West River," the Miss. from Ashland Planting and Mfg. and item ( 5) 2 and 4, Co., Ltd. ( See HBC Exhibit Nos. of of Exhibit Plaintiffs' 17). No. 1927, By act of sale with mortgage dated May 25, Funderburk Madison L. recorded that same day, and conveyed Pettigrew, as described, to A. W. Inc. ( See HBC Pettigrew, a/ k/ a A. W. the same property, incorporated, Exhibit and item 6 5, No. of Exhibit Plaintiffs' No. 17.) By act of sale dated May 12, 1931, as No.' described, and 8, Inc., Pettigrew, A. W. 7 of See HBC Exhibit Pettigrew. ( to Ashby W. item 1931, and recorded May 13, conveyed the same property, Plaintiffs' Exhibit 17.) No. By act of sale dated May 1, 1934, and recorded May 2, 1934, Ashby W. Pettigrew conveyed the following described property to Harry Bourg: All that NE1/ 4) portion of of Section which East, lies the 10., North- East T. East of 20., Four S. quarter 17 R. Point Canal; Bounded on the West by Four Point Canal, on the North by fractional section Three of T. 20., S. R. 17 East, on the East by Section T. 11. 20., S. R. 17 E., and on the South by the South -East quarter of said Section 10." This act of sale contained the following additional language: It is the and he intention of does, the vendor to sell by these presents sell and convey unto said Harry Bourg all that property which Vendor owns lying East of Four Point Canal and West of Bayou Sale, regardless of accuracy and detail of description...." 10, See HBC Exhibit No. Exhibit No. and item 8 of Plaintiffs' 17.) By act of sale dated April 10, 1942, and recorded April 13, 1942, Ashby W. Pettigrew conveyed the following described property to Harry Bourg: All West that portion of Section 10 which lies of the East bank of Four -Point Canal." This act of sale contained the following additional language: It is the intention of Ashby W. herein sell, and it is the Pettigrew intention of to said Harry Bourg to herein buy all of the property Pettigrew owns which said Ashby W. Sections E, 10, 15, 22 and 27. of T. in 20 S. R. whether lying on the West side of [ East side and, if it of the aforesaid Four -Point should hereafter be found or] 17 the Canal, that said Ashby W. Pettigrew owns any property in said 10, Sections been included 15, 22 and 27 which has not in the within sale, then and in that event the said Ashby W. obligates himself to Pettigrew sign and execute an act of correction transferring the ownership of such property to the said Harry Bourg." 13 See HBC Exhibit No. 17 and Plaintiffs' Exhibit No. 15.) By act of sale dated April 7, 1955, and recorded that same day, Harry Bourg conveyed the following described property to HBC: SAIL West that portion of Section: 10 which lies of the East bank of Four Point Canal." Being the same property purchased by Harry Bourg from Ashby W. Pettigrew under date of April See HBC 10, 1942." Exhibit No. 18 and Plaintiffs' Exhibit No. 14.) Gaidry andSchwinq' s According to Daniel J. Record Title Toups, the expert land title abstractor who testified at trial on behalf of Gaidry and Schwing, the following constitute the important links in the common chain of record title claimed by both plaintiffs, Gaidry and Schwing, with regard to the NW 1/ 4 of Section 10, T20S- R17E, in Terrebonne Parish. By act of sale dated June 5, 1845, and recorded January 24, 1848, Elisha Stevens conveyed to Robert Ruffin Barrow, an undivided one- half interest in and to the NW 1/ 4 of Section 10, T20S- R17E in Terrebonne Parish. The act did not declare the marital status of Robert Ruffin Barrow. ( See No. Abstract Plaintiffs' 440, page Exhibit No. 1, H. C. Wurzlow 6.) By judgment rendered June 25, 1866, and recorded 19, 1869, the community of acquets and gains November existing between Robert Ruffin Barrow and his wife, Volumnia Hunley Barrow, Plaintiffs' 440, page Exhibit was terminated. ( See 1, H. C. Wurzlow Abstract No. No. 8.) By tax sale dated November 19, 1873, and recorded 1873, December 12, total ownership of the Section 10, T20S- R17E, Terrebonne Parish, NW 1/ 4 of and Frederick Bogardus. ( Exhibit including the interest of Robert Ruffin Barrow acquired from Elisha Stevens on June 5, 1845, was acquired by Peter Berger 1, H. C. Wurzlow Abstract See No. Plaintiffs' 440, page By confirmation of tax sale dated June 3, recorded August 4, No. 852.) 1874, and 1874, title to the property described above was confirmed in Peter Berger and Frederick Bogardus. ( H. C. Wurzlow Abstract See No. Plaintiffs' 440, page Exhibit No. 1, 855.) By act of sale dated May 7, 1874, and recorded that same day, Frederick Bogardus conveyed his undivided interest in the property described above to John Berger. ( Abstract See No. Plaintiffs' 440, page Exhibit No. 1, H. C. Wurzlow 858.) By act of sale dated April 30, 1879, and recorded May 1, 1879, John Berger and Peter Berger conveyed their undivided interests in the property described above to Robert R. Barrow and Van P. 14 Winder, one- half to each. See No. Plaintiffs' 440, page Exhibit No. 1, H. C. By counter letter dated November 2, November 12, Wurzlow Abstract 887.) Van 1883, 1883, and recorded Winder acknowledged that his P. one- half interest in the property described above " only nominally placed in his name," and really the paraphernal property of " Mrs. Barrow wife of William J. Exhibit 1, H. C. No. Slatter." ( that See Wurzlow Abstract No. was it "was Volumnia R. Plaintiffs' 440, page 89G.) By judgment of possession signed January 15, 1941, in the matter of Widow of T. Albert Succession of Mrs. V. R. Woods Woods, and recorded January 16, 1901, Mrs. wife of Wilson J. Gaidry, and Miss Annis Slatter were recognized as the sole heirs of Mrs. Clara K. Slatter, Volumnia Roberta Barrow, widow by second marriage of T. Albert Woods, and the owners " in the proportion of the undivided one- half each, of all the property left by deceased." ( See Plaintiffs' Exhibit No. 1, H. C. Wurzlow Abstract No. 440, page 99, and Plaintiffs' Exhibits Nos. 2 and 3.) By compromise agreement dated June 22, 1935, recorded that same day, Miss Irene Barrow, Hallette Barrow Cole, Mrs, Barrow Topping, Jennie Barrow Dawson agreed, received, Plaintiffs' 440, page Zoe Mrs. for consideration T20S- R17E, belonged to A. W. Exhibit No. 160, Plaintiffs' No. and that the ownership of Section 10, Terrebonne Parish, and Mrs. 1, H. C. Plaintiffs' Exhibit No. Pettigrew. ( See Wurzlow Abstract No. Exhibit Nos. item ( 10), 17, 2 and 3, and HBC Exhibit 11.) By judgment of possession signed April 14, matter of 1938, Succession of Robert Ruffin Barrow, in the and 1938, Mrs. Jennie Tennant, widow of Ruffin Barrow, was recognized as owner of one- recorded May 14, Robert half of all community property, and usufructuary of the deceased' s one- half of community property and all and Miss separate property, Barrow, Irene F. widow of Robert Topping, wife of Christian Grenes wife Harris of P. Cole, Dawson, were Barrow, Mrs. Mrs. Harriette and Mrs. Jennie recognized as Zoe Barrow, Barrow, the owners in the proportions of an undivided one- fourth each" of the separate property of the deceased, subject to the usufruct in favor of Mrs. Jennie Tennant, widow of See Plaintiffs' Exhibit No. Wurzlow Abstract No. 440, page 156.) Robert H. C. Ruffin Barrow. ( By affidavit of heirship dated February 17, recorded February 19, Grenes Cole, Jennie 27, 1947, Hallette Barrow, 1947, wife confirmed the death of her mother, Tennent, widow of Robert Ruffin 1942, Barrow, 1, and of C. Mrs. on May and confirmed the death of her sister, Mrs. Zoe Barrow, widow of Robert Topping, who died intestate and without issue on December 28, 1939. ( See Plaintiffs' 440, page Exhibit No. 1, H. C. Wurzlow Abstract No. 158). Ownership of the Property Based on Record Title Based on the acts described above and relied upon by the witnesses Gordon White and Daniel testimony, As J. Toups during their court the following relevant conclusions can be drawn. a result of the April 15 30, 1879, sale by John Berger and Peter Berger to Robert R. subsequent NW 1/ 4 of November 2, Section 10, one- half by Robert R. Barrow 1883, Barrow and Van P. Winder, counter letter by Van P. and the Winder, the T20S- R17E in Terrebonne Parish was owned Barrow and one- half by Mrs. Volumnia R. Slatter. Mr. Barrow' s one- half interest in the property purportedly was subsequently acquired by Harry Bourg as a result of purchases from Ashby W. 10, 1942. Pettigrew on May 1, 1934, and April Critical to the record ownership of that one- half interest in the property by Mr. Pettigrew was the June 22, 1935, compromise agreement by and between him and the four daughters of Robert Ruffin Barrow, and the belated February 17, 1947, affidavit of heirship confirming the death of Robert Ruffin Barrow' s widow in 1942. Harry Bourg subsequently transferred his ownership of the property at issue to HBC. None of the transactions referred to in the previous paragraph by and between Ashby W. Pettigrew, daughters of Robert Ruffin Barrow, Harry Bourg, the and HBC addressed the record ownership of the one- half interest in the NW 1/ 4 of Section 10, T20S- R17E, by Mrs. Volumnia R. Barrow Slatter. The documentary evidence offered by Gaidry and Schwing confirm that her one- half ownership interest passed to her daughters Clara Slatter Gaidry and Annis Slatter, respectively. and through them, to Gaidry and Schwing, No documentary evidence of any kind has been received by the court too indicate that Clara Slatter Gaidry and/ or Annis Slatter and/ or their successors conveyed any part of this undivided one- half interest to HBC or its ancestors in title. The court notes that in their post -trial memorandum, plaintiffs allege that Daniel J. Toups, their " expert the in the field of abstracting titles," contends that the plaintiffs are the current owners of the NW 1/ 4 of Section 10." letter of March 27, No. 2017, Toups' included as part of Plaintiffs' 1 belies such a conclusion. Toups' Mr. The following excerpt from Mr. letter comports with the finding of the court: 16 Exhibit Harry Bourg Corporation as successor to the interest of Ashby Pettigrew via the Barrow Sisters should be presently the owner of an undivided 1/ 2 interest in the C. S. captioned property. Gaidry, Inc., as successor of the interest of the Gaidrys via Clara K. Slatter Gaidry should be owner of an undivided 1/ 4 interest. The Schwings as successors of the interest of Annis Slatter Hickman should be the owners of an undivided 1/ 4 interest. The plaintiffs allege Ashby W. Pettigrew did not acquire ownership of any portion of the NW 1/ 4 of Section 10, T20S- R17E, through Madison Funderburk by way of Mr. Funderburk' s acquisition of immovable property from Ashland Planting by sheriff' s sale on May 14, 1927. Co., and Mfg. Ltd., The plaintiffs allege the property description reflected by the sheriff' s sale repeated an error made in the sale from Dulac Planting & Company to Albert P. Cantrelle, Manufacturing dated October 26, 1910, and which was carried through juridical acts thereafter, including the sale from Albert P. Company, Cantrelle to Ashland Planting and Manufacturing Limited, dated February 16, 1917, and the mortgage by Ashland Planting and Manufacturing Company, Bank of Terrebonne and Savings Bank, Limited, dated March 8, in favor of 1924. The plaintiffs point out that the description used in these acts was the North West Quarter ( NW1/ 4).., of Section Ten ( 10), containing - one hundred and fifty nine and sixty hundredths 159. 60) ... acres... Seventeen ( 17) being in Township Twenty ( East, S. E. D. ( La) 20) South, West of the Miss. Range River." According to the plaintiffs, Dulac Planting and Manufacturing Company did not own the NW 1/ 4 of Section 10 of T20S- R17E, containing 160 acres, Cantrelle. Instead, containing 159. 60 at the time it sold the same to Albert P. it owned the NE 1/ 4 of Section 10, acres. As a result, T20S- R17E the plaintiffs argue HBc did not acquire record title to the NW 1/ 4 of Section 10, T20S- R17E. The court' s review of the pertinent public acts tends to confirm that the plaintiffs are correct that Dulac Planting and Manufacturing Company did not own the NW 1/ 4 of Section 10, R17E, and did not validly convey the same to Albert P. However, the plaintiffs" Cantrelle. argument overlooks the compromise 17 T20S- agreement by and between Ashby W. Pettigrew and the four daughters of Robert Ruffin Barrow dated June 22, 1935, through which it appears Harry Bourg did thereafter acquire a one- half interest in the property at issue. As a result of the foregoing analysis, the court finds that record title to the NW 1/ 4 of Section 10 of T20S- R17E at the time of trial of this matter was vested one- half in HBC and one- half in Gaidry and Schwing, i. e., HBC, Gaidry, and Schwing were co- owners of the property. Acquisitive Prescription As co- owners of an undivided interest in the land in question, the plaintiffs certainly are entitled to seek redress from this court for the removal of dirt from their property pursuant to the contract between HBC and Low Land for the attendant consequences plaintiffs' claims, thereof. However, HBC has asserted, in defense to the among other things, that it is entitled to a declaratory judgment from this court decreeing that HBC is the owner of the property to the exclusion of Gaidry and Schwing based on acquisitive prescription. As sole owner of the property, HBC contends that the plaintiffs can have no claims against it. An understanding of the principles of acquisitive prescription established by the Legislature is important to a resolution of the issues in this case. Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time. ( La. C. C. 3446.) art. Ownership and other real rights in immovables may be acquired by the prescription of ten years ( prescription of thirty years ( things, including land, are La. La. C. C. C. C. susceptible 3473) art. art. 3486.) the All private of prescription, otherwise excluded by specific legislation. ( 3485.) or La. C. C. unless art. There is no doubt that ownership of the land at issue in this case is susceptible of acquisitive prescription. The requisites for the acquisitive prescription of ten years are ( 1) possession of ten years, ( 18 2) good faith, and ( 3) just title. ( La. C. C. art. There 3475.) is no requirement of good faith or just title to acquire the ownership of immovable property based on possession for thirty years. ( 3486.) However, La. C. C. art. the rules regarding possession for the purpose of acquisitive prescription of ten years apply to possession for the purpose of acquisitive prescription of thirty years. ( C. C. La. 3488.) art. Possession is defined as such as corporeal thing, land. ( the detention or enjoyment of a La. C. C. 3421). In order to acquire possession for the purpose of acquisitive prescription, one intend to possess as owner and ( 1) must ( possession of the physical of La. acts C. C. possess art. as land in question, use, 3424 owner for another." ( detention, and 3425.) unless " La. C. C_ that or is, 2) take corporeal he must exercise enjoyment over the land. One is presumed to intend to he began to possess in the name of and art. 3427.) Possession for the purpose of acquisitive prescription must begin with corporeal possession, and it must be continuous, uninterrupted, unequivocal. ( art. 3476.) peaceable, public, and La. C. C. Acquisitive prescription does not run in favor of a precarious possessor, to own another' s i. e., interest, one who possesses without any intent such as a lessee. Under our law, co- owner is a precarious possessor. ( and A precarious possessor is presumed to possess for 3439.) La. C. C. arts. 3477 a 3437 another even though he actually intends to possess for himself. La. art. C. C. 3438, art. 3438.) comment ( This is a rebuttable presumption ( b)), and a La. C. C. co- owner or his universal successor may commence to prescribe when he demonstrates " by overt and unambiguous acts sufficient to give notice to his coowner" C. C. that he intends to possess the property for himself. ( arts. 3478 and 3439.) La. In light of the specific presumption established by Louisiana Civil Code article 3438, the more general presumption of Louisiana article 3427 regarding one' s intention to possess does not apply to a precarious possessor who is a co- owner. 19 The acquisition and recordation of a title from a person other than a co- owner " prescription.,, ( La. may mark the commencement of C. C. art, 3478.) The particular successor of a precarious possessor who takes possession under an act translative of ownership possesses for himself, and prescription runs in his favor from the commencement of his possession. ( C. C. art. La. 3479.) Good faith" in the context of acquisitive prescription of ten years is defined as the possessor' s reasonable belief " light of objective considerations, thing he possesses.,, ( La. C. C. in that he is the owner of the 3480.) art. Good faith is presumed and neither error of fact nor law defeats the presumption. The presumption is rebutted " possessor knows, or should know, thing he possesses.,, ( La. C. C. on proof that the that he is not owner of the 3481.) art. Good faith need only exist at the commencement of the possession and, subsequent bad faith does not prevent the accrual of the acquisitive prescription of ten years. ( La. C. C. 3482,..) art. Louisiana Civil Code article 3483 defines " just title" with regard to acquisitive prescription as follows: A just title is a juridical act, or donation, exchange, or another in form, real right. such as a sale, sufficient to transfer ownership The act must he written, - valid and filed for registry in the conveyance records of the parish in which the immovable is situated. One who possesses a part of an immovable by virtue of a title is deemed to have constructive possession within the limits of his title. In the absence of title, of the area he actually possesses. ( La. one has possession only C. C. art. 3426.) A just title to an undivided interest in an immovable is a just title only as to the interest transferred. ( La. C. C. art. 3484.) When a co- owner of an immovable transfers the ownership of the entire immovable to a third person, the transferee acquires the undivided interest of the transferor, and in addition, acquires a just title to the remaining parts. Thus, he the transferee acquires the ownership of the entire immovable in ten years if he is in good faith and if his possession is 20 sufficiently adverse to the interests of the remaining co- owners. La. C. C. art. 3484, comment ( b).) If the transferee' s claim of ownership is based on acquisitive prescription of thirty years, his possession extends only to that which he actually possessed, and constructive possession does not apply. ( La. C. C. art. 3487.) It is in light of -these principles of Louisiana law that the court has assessed the claims of acquisitive prescription set forth by HBC. At the outset, the court notes that HBC has correctly pointed out that it bears the burden of proving its acquisitive prescription claims by a preponderance of the evidence. App. 4 Delacroix Corporation v. Cir. However, 11/ 08/ 40), writ denied, Perez, 782 794 So. 2d So. 2d 862 ( La. 635 ( La. 1/ 26/ 01). HBC' s burden may be affected by the rebuttable presumptions established by law and described elsewhere herein. Good Faith Possession of land for the purpose of ten years acquisitive prescription must be in good faith, that is, the possessor must have a reasonable belief that he is the owner of the land. The court is required to evaluate the reasonableness of that belief in light of objective considerations. out above, presumed, As pointed the good faith of one who possesses as owner is and it is incumbent upon the one who challenges that good faith to prove that the other knew or should have known that he was not the owner. The good faith possession of the property at issue by Harry Bourg beginning with his purchase from Ashby W. on April 10, 1942, is presumed. Pettigrew Gaidry and Schwing have not furnished to the court any evidence, credible or otherwise, to show that Harry Bourg did not have a reasonable belief that he was the owner of the entirety of the NW 1/ 4 of Section 10, R17E upon the sale to him by Pettigrew. T20S- There is no evidence to suggest that Harry Bourg ever acknowledged his co- owner status to anyone. Simply put, the court has not received any evidence upon which it could base a finding that Gaidry and Schwing have 21 overcome the presumption of good faith on the part of Harry Bourg. The court is satisfied that HBC has established the good faith of Harry Bourg in connection with its claim of acquisitive prescription. Just Title In connection with its claim of ten years acquisitive prescription, faith, and in addition to its burden of proving good HBC bears the burden of proving that it possessed the land in question pursuant to a just title. As pointed out in Delacroix Corporation v So. 2d 1188 ( La. App. 4 Cir. 4/ such as b) a sale, which must be proper form and be properly recorded. Comment ( 901 13/ 05): A just title is a juridical act, sufficient to transfer ownership, 3483. Dean, La. in C. C. art. of the 1982 Revision Comments to Civil Code article 3483 states that the law merely requires an act which, if it were executed by the true would have conveyed ownership. owner, Louisiana law has long held that in order to convey property, an act of sale must clearly describe the property so that it may be located. As the Louisiana Supreme Court has stated: The description in a deed must be such that the property intended to be conveyed can be located and identified, and the general rule is that the description must fully appear within the four corners of the instrument itself, or that the deed should refer to some map, plat or deed as part of the description, so that the same may be clear. The juridical acts upon which HBC bases its claim in this case consist of the following: a) Sheriff' s sale on May 14, property of Ashland Planting and Mfg. Madison L. Act of sale dated May 25, Funderburk to A. W. Ltd., was conveyed to Pettigrew, 1927, Incorporated, from Madison L. a/ k/ a A. W. Inc.; c) Inc., Co., by which the Funderburk; b) Pettigrew, 1927, Act of sale dated May 12, to Ashby W. d) 1931, from A. W. Pettigrew, Pettigrew; Act of sale dated May 1, 22 1934, from Ashby W. Pettigrew to Harry Bourg; Act e) of sale dated April Pettigrew to Harry Bourg; f) Act of 10, 1942, from Ashby W. and, sale dated April 7, 1955, from ' Harry Bourg to HBC. The court has reviewed each of these acts and finds them to be in proper form and finds that they were properly recorded in the conveyance records of Terrebonne Parish. Just title does not mean valid and legal title. explained hereinabove, As these acts did not transfer merchantable title to or ownership of the undivided one- half interest of the NW 1/ 4 of Section 10, Schwing, T20S- R17E, presently owned by Gaidry and to Harry Bourg or HBC. A just title is a juridical act intended to have legal consequences. ownership, such as a Sale. It is an act translative of A just title need not be derived from the true owner because if that were the case, prescription would not be an issue. act which, acquisitive The law merely requires an if it had been executed by the true conveyed ownership. ( La. C. C. art. 3483, would have owner, comment ( b)-) At issue in this case is the ownership of the NW 1/ 4 of Section 10, T20S- R17E in Terrebonne Parish. evidence offered at trial, Based on the the court notes that the property consists of 158. 774 acres bordered on the east by the NE 1/ 4 of Section 10, on the south by the SW 1/ 4 of Section 10, by Section 9 Of T20S- R17R, of T20S- R17E. side of the and on the north by Sections 3 and 37 The Four Point Four Point Bayou, canal, on the west Canal, sometimes referred to as the and the adjacent Four Point Road on the western almost completely traverse the NW 1/ 4 of Section 10 on its eastern side, entering on the northerly part of the NE 1/ 4 of Section 10, eastern side of the SW 1/ 4 of Section 10. east from the and exiting onto the Only a relatively small part of the NW 1/ 4 of Section 10 is located on the eastern side of Four Point Canal, i. e., between Four Point Canal on the west and the boundary line between the NW 1/ 4 and NE 1/ 4 of Section 10 on the east. Entirely within this relatively small 23 part of the of acres, instant NW the 1/ 4 of Section excavated area there 10, or " is located 55%, or 5. 416 dirt pit' s which has led to the litigation. It should be noted that the geographical landmark known as Bayou Sale is located entirely to the east of the NW 1/ 4 of Section 10. Pettigrew to Harry Bourg The act of sale from Ashby W. 1934, dated May 1, other that portion of Section Four among the following described property: things, All purported to convey to Harry Bourg, 10., 20., T. the North- East R. S. 17 quarter ( NEI/ 4) of which lies East of East, Point Canal; Bounded on the West by Four Point on the North by fractional section Three of T. R. S. 17 East, on the East by Section 11. T. 20., 17 E., and on the South by the South -East quarter Canal, 20., S. R. of said Section 10." The description above appears to be limited to property located in the NE 1/ 4 of Section 10, T20S- R17E, and does not include any portion of the NW 1/ 4 of Section 10 of that Therefore, same township and range. this relies on this property description, cannot be translative act of title. However, this to act, of the extent it said to have been sale contained the following additional language: It is the intention of the vendor to sell and he does, by these presents sell and convey unto said Harry Bourg all that property which Vendor owns lying East of Four Point Canal and West of Bayou Sale, regardless of accuracy and detail of description...." The relatively small portion of the NW 1/ 4 of Section 10, T20S- R17E, Canal and west described above, of Bayou Sale. is In located east no 1934, of Four Point recorded interest in that relatively small portion of property was owned by Ashby W. Pettigrew. 1934, On May 1, Bourg, that portion entire remainder of of at the time of the sale to Harry the NW the NW 1/ 4 1/ 4 of of Section Section 10, 10, was as well Ruffin and Annis Slatter), Barrow ( Irene Harriette Barrow the lack of F. Cole, the owned one- half by the heirs of Volumnia Roberta Barrow Slatter Woods ( Slatter as Clara K. and one- half by the heirs of Robert Barrow, and Mrs. Mrs. Zoe Barrow Topping, Jennie Barrow Dawson). a more specific description, 24 Mrs. Due to and because Ashby W. Pettigrew did not, Section 10, in fact, T20S- R17E, own any portion of the NW 1/ 4 of 1934, on May 1, this " catch- all" provision in the act of sale did not render this act of sale translative of title, or a " just title" for purposes of acquisitive prescription. The act of sale dated April 10, 1942, from Ashby W. Pettigrew to Harry Bourg, purported to convey to Harry Bourg the following described property: All that portion of Section 10 which lies West of the East bank of Four -Point Canal." As pointed out above, most of the NW 1/ 4 of Section 10 in T20S- R17E lies west of the east bank of Four Point Canal. purposes of acquisitive prescription, For and considering the specificity of the property description, it is not necessary to determine what interest, if any, Ashby W. Pettigrew actually had in and to the NW 1/ 4 of Section 10 on April 10, 1942. This property description does appear to render the act translative of title, but only with regard to that portion of the NW 1/ 4 of Section Point 10, Canal. T20S- R17E, located west of the east bank of Four The description does not purport to transfer any part of the NW 1/ 4 of Section 10 located east of the eastern bank of Four Point Canal. As pointed out above, part of the NW 1/ 4 Section 10, of important to this case, a relatively small but a part particularly lies east of the eastern bank of the canal. The court notes that the two- line property description quoted above does not indicate which Section 10 the description refers to. The township and range are not indicated. the language from the act quoted below, however, the Because court of does not believe this deficiency is of any moment. The April 10, 1942, act of sale contained the following important additional language: It is the intention of Ashby W. Pettigrew to herein sell, and it is the intention of said Harry Bourg to herein buy all of the property which said Ashby W. Pettigrew owns in Sections 10, 15, 22 and 27 of T. S. R. 17 E, whether lying on the West side of [ or] the East side of the aforesaid Four -Point Canal, and, if should hereafter be found that said Ashby W. Pettigrew 25 20 it owns any property in said Sections 10, which has not been and in that event himself to 15, 22 and 27 included in the within sale, then the said Ashby W. Pettigrew obligates sign and execute an act of correction transferring the ownership of such property to the said Harry Bourg." On April 10, 1942, Pettigrew did Ashby W. own an undivided one- half interest in and to the entirety of the NW 1/ 4 of Section Four 10, Point T20S- R17E, Canal, both on the east and west sides of the having acquired the same by the compromise agreement by and between him and the four daughters of Robert Ruffin Barrow dated June 22, 1935. For that finds that the act of sale dated April 10, of title, 1942, at least to the extent of Ashby W, undivided one- half interest therein. The reason, was the court translative Pettigrew' s question remains as to whether the act was translative of title to the undivided portion of the property not owned by Mr. Pettigrew. The answer to the question appears to be in the As pointed out hereinabove, affirmative. a just title to an undivided interest in an immovable is a just title only as to the interest transferred. ( La. C. C. 3484.) art. When a co- owner of an immovable transfers the ownership of the entire immovable to a third the person, the transferee acquires the undivided interest of transferor, and in addition, Thus, remaining parts. he acquires a just title to the the transferee acquires the ownership of the entire immovable in ten years if he is in good faith and if his possession is sufficiently adverse to the interests of the remaining co- owners. ( The April to Harry Bourg, 10, La. C. C. 1942, art. 3484, comment ( b).) act of sale from Ashby W. Pettigrew does not purport to convey merely an undivided interest in and to any of the properties described therein. fair reading of the act, warranties, which was a sale with all does not suggest that Ashby W. A legal Pettigrew thought he was selling only an undivided interest or that Harry Bourg thought he was buying less than the whole of the properties. By act of sale dated April 7, 1955, Harry Bourg conveyed to HBC: All that portion of Section 10 which lies West of the Rol East bank of Four Point Canal." Being the same property purchased by Harry Bourg from Pettigrew under date of April Ashby W. Clearly, of the NW 1/ 4 this act of to owned by Harry Bourg, sale conveyed the largest portion referred T20S- R17E, of Section 10, 1942." 10, the act of However, HBC. to above, sale and in all of its myriad of property descriptions contained therein, does not mention any other property located in Section 10, the of NW the 1/ 4 NW In order to find that the remaining portion thereof. 1/ 4 of Section i. e., 10, the relatively small portion, 1955, was conveyed to HBC by Harry Bourg on April 7, act, therefore, conclude that the phrase, ""[ in the Point Canal, important the April the court that the would have Pettigrew under date of April the NW to 1/ 4 10, included the conveyance of of. Section 10 on the east the side of purchased by Harry Bourg by way of the additional 10, title," and b] eing the same property purchased by 1955 act of sale, smaller portion of Four just constitutes " Harry Bourg from Ashby W. 1942, 1" specifically 1942, The court language° act finds of referred to above and included in sale. that the April 7, 1955, act of sale by Harry Bourg to HBC conveyed valid title of Harry Bourg" s undivided one- half interest in and to all of the NW 1/ 4 of Section 10 and just on both sides of the east bank of Four Point Canal, title to the other undivided one- half interest. The court is persuaded in this conclusion by the precise language used in the purchased," as " 1955 act, to wit, ""[ bleing the same property rather than language that could have been used, being part of the same property purchased." As the particular successor of Harry Bourg in the 1955 act of sale, is entitled to rely on the " just title," HBC in favor of Harry Bourg created by the act of sale to him dated April 10, For the foregoing reasons, such the court 1942. finds that HBC has established by a preponderance of the evidence the necessary prerequisites merchantable of just title) title ( as distinguished from good or and good faith to support a claim of acquisitive prescription often years with regard to the NW 1/ 4 27 of Section T20S- R17E, 10, Terrebonne Parish, Louisiana. Possession It remains for the court to address the possession requirement necessary for HBC to prevail on its argument that it is the owner, by way of acquisitive prescription, of the undivided interest in the property titled in the names of Gaidry The bulk of the evidence offered at trial by HBC and Schwing. dealt with this As acquisitive and it noted hereinabove, prescription, must be is, someone continuous, for the possession, must begin with uninterrupted, The possessor must unequivocal. that issue. purpose of corporeal possession, peaceable, intend to possess public, and as owner, for himself and not with an intent to possess for else such as a lessor or co- owner. It is against this legal background that the court has considered the evidence offered by HBC to support its claim that it acquired the ownership of the undivided interests of its coowners in the property by possession of the same based on overt and unambiguous acts of possession evidencing its intent, intent of its ancestor in title, Harry Bourg, In an effort of Section 10, Schwing, to prove this T208- R17E, intent to do and the so. to possess adversely to its co- owners, the NW 1/ 4 Gaidry and HBC offered a variety of documentary evidence and testimony at trial on this issue. All of has been carefully analyzed by the court, categories, to this falls evidence, which into six distinct wit: 1) The posting of signs; 2) Agricultural use and fencing; 3) Property taxes; 4) Servitude agreements and other written public acts; 5) Hunting and fishing; and, 6) Mineral exploration and activity, The Posting of Signs The documentary evidence offered by HBC to prove that HBC posted the land in question consists of HBC Exhibit Nos. 36, and 36A, Shannon Roger Webb, J. These documents together with the testimony of 58. Chauvin, Jr., Wilson " Doc" Danos, J. John Mattingly, Herdis Gaidry, Leonard Jr., Nolan Bergeron, Neil, and Ronnie Bergeron confirm that signs were posted as early as the late The after the act of sale to HBC by Harry Bourg. 1950' s, preponderance of the evidence suggests the signs were posted primarily on telephone poles and trees all along both the east and west sides of Four Point Road in the NW 1/ 4 At and north and south of that property. the of time Section of 10, trial, some seventy years after HBC acquired its interest in the property, there were nine signs in the NW 1/ 4 of Section 10 which read, 7477 Grand Caillou Rd. Posted Harry Bourg Corp. Dulac, LA. 70353." The court does not believe that signs lake the ones described above were posted anywhere else on the approximately 160 acres Canal of the NW 1/ 4 and the adjacent of Section 10. Four Point Road, methods of ingress to the property. it other than the there were is no Four Point convenient reasonable to conclude that the signs were intended to aid in the prevention of trespassing upon the land by passersby on the road. were visible witness 1986, to the public. for the plaintiff, and Wilson Gaidry, The signs This was confirmed by Roger Webb, a who visited the property as early as Jr., a seventy- nine year old member of the Gaidry family, who has been familiar with the property since at least 1955. Both confirmed that neither asked to leave the property by anyone, and of that them was their ever access to the property was never denied or obstructed in any way by anyone. Testimony to the same effect was received from Leo Bickham, who hunted on the property from 1978 through at' least 2004 with the . permission of Both the plaintiffs. Mr. Webb and Mr. Gaidry testified that they knew Gaidry and Schwing co -owned the property with HBC and neither of them understood the signage to indicate that HBC considered itself sole owner of the property. Mr. Gaidry testified that he never thought HBC was possessing the property to the exclusion of 29 Nolan the Gaidry and Schwing interests. Bergeron, the seventy- testified that four year old grandson of Harry Bourg, he did not know anyone else co -owned the property with HBC. Mr. a Gaidry, resident of Terrebonne Parish, testified that he was former president of Gaidry, of Section almost 10, all of his He life. a involved in the including the NW management of the Gaidry and Schwing properties, 1/ 4 and testified that he has visited the property at issue at least twice a year since 1955, It primarily to hunt and trap. is apparent that Mr. Gaidry by boat generally accessed the property via the western side, through the low- lying areas historically prevalent on the western side of the NW thereto. 1/ 4 of There was Section 10 no evidence and other properties received at trial to adjacent suggest that anyone associated with Gaidry or Schwing utilized the relatively small portion of the NW 1/ 4 of Section 10 on the east side of Four Point Canal for any purpose at any relevant time. Agricultural Use and Fencing A great deal of the evidence offered at trial by HBC confirmed the corporeal possession and use of the NW 1/ 4 of Section 10 by and through HSC for agricultural purposes, including attendant fencing. The court notes that the evidence at trial offered by HBC confirms that no residences were established on the land. of Nora Bourg Breaux, The Joseph Breaux, 1/ 4 10, Section evidence also in was adjacent confirms that not Bourg' s son, Jason, in the NW 1/ 4 Section of on located well Section 37 of the mobile home residence by either Carl Bourg, J. establishes the daughter of Harry Bourg, husband Hughes of evidence the side but of the home and her north of the NW T20S- R17E. occupied as Harry Bourg' s grandson, east Section 10, that Four Point in the adjacent The a or Carl Canal, SW 1/ 4 was of 10. The court is convinced that suitable areas of the NW 1/ 4 of Section 10 were used since 1942 by Harry Bourg and/ or HBC, either directly or through others on their behalf, for the cultivation of sugar cane and the grazing of cattle at various W The cultivation of sugar cane was primarily in the areas times. of higher elevation relatively unaffected by water and marshy land mainly along the east and west sides of Four conditions, Point Road. The cattle grazing operations were more extensive,. extending at times to the western and northern section line and necessarily included the need to install fencing boundaries, on and beyond the property. The documentary evidence in support of the court' s findings 37, 35A, consist of 38, 40, 39, HBC Exhibits 27, 28, 29, 30, 43, 49, 50, and 5B. 41, 46, documents, along with the testimony of Wilson " Leonard Chauvin, J. Bergeron, and Jr., Ronnie John Mattingly, Bergeron, Herdis 32, 31, 33, 34, These Doc" Jr., Gaidry, Neil, Nolan support the following conclusions by the court. The eight aerial photographs spanning the years 19531996 made part of Mr. Mattingly' s report in this case are tremendously helpful to understanding the topographical development of the NW 1/ 4 of Section 10 during that forty- three year a period. substantial From 1953 part of condition appears to the 1956, cultivable southern part of fields the NW developed over 1/ 4, and this to have continued to a significant degree at least through 1987 on both sides of Four Point Canal. By 1996, there does not appear to be any evidence of cultivation, but it does appear there were substantial areas of cleared pasture area suitable for the grazing of cattle on large expanses of the NW 1/ 4 of Point Section 10 Canal, through at 1987, on both sides of Four and at least through 1996 on the eastern side of the These topographical canal. least findings are consistent with the documentary evidence offered by HBC regarding use of the property for cultivation of sugar cane and the grazing of cattle. When Hughes died in 1965, Joseph Breaux, the son- in- law of Harry Bourg it was reported by way of his succession proceeding that he owned significant sugar cane farming equipment, sugar cane crops, standing and the rights as lessee under a verbal agricultural lease from Harry Bourg and/ or HBC affecting lands in 31 Section 10 of T20S- R17E. farmed the NW 1/ 4 of It appears Section 10 that prior to his death, on the west side of the he Four Point Road with the permission of Harry Bourg or/ and HBC, Based on the satellite imagery of certainly since at least 1956. the property in 1965, continued at least until received also his of wife, 1978, his death. 10 to graze The that prior to his Nora Bourg Breaux, Section and confirms Breaux it appears this farming by Mr. used the cattle. Except evidence death, same the Mr. portions for the court Breaux and of NW the time between 1/ 4 1968 when it appears this property was leased to Hilton Dumesnil by HBC, Mrs. Breaux used the same property for cattle grazing until her death in 2000. The property was located just south of the Breaux homestead and it appears to have been used as an extension of the property on which they resided in the adjacent section 37 of T20S- R17E. No one has furnished to the court any publicly recorded documentary evidence confirming that Mr. and Mrs. Breaux possessed any part of the NW 1/ 4 of Section 10 pursuant to any written agreement with HBC or Harry Bourg at any time, except the judgment of February 20, 1991, discussed hereinbelow, Based on the satellite imagery received by the court, appears that sometime between 1981 and 1984, someone it caused to be constructed along the southern half of the extreme western side of the NW 1/ 4 of Section 10, a drainage canal, apparently for the purpose of containing an area known as the " Cenac Duck Pond," located in the adjacent Section 9 of T20S- R17E. along with fencing and another drainage canal, largely outside of the NW 1/ 4 of Section 10, This all served cattle from escaping their complete enclosure. canal, located to prevent The only portion of fenceline in the NW 1/ 4 of Section 10 which contributed to this larger " pen" was a barbed wire fenceline that meandered more or less from the northern boundary of the quarter section along the rear of a woodline located along Four Point Road, and then short distance along Four Point Road itself to the southern boundary of the quarter section. 32 This fencing, estimated by a Leonard old in to have been ten to twenty- five years Jr., Chauvin, J. and obviously was intended to contain the cattle Mr. 1988, Mr. Breaux were running on the property prior to that time. Mrs. Gaidry testified that he observed what he called " random fencing" on the west side of the NW 1/ 4 of Section 10 during his many visits. to the property and he observed the cattle grazing there. Both cattle business. Chauvin, Leonard J. Breaux were in the and Mrs. he knew Mr. As a cattleman himself, and Jr., John Mattingly testified that all fencing at issued in this case was not to keep people designed to keep cattle inside the fence, outside the fence. a judgment was rendered by the 1991, On February 20, 32nd Judicial District Court as a result of litigation by and between HBC and Mrs. disagreement Breaux. between Mrs. there Apparently, Breaux and HBC as to The between' the parties. 1980, the a northern surface southern boundaries of property subject to a " dated January 1, was and lease" judgment recognized the northern boundary of the lease along a drainage ditch in Section 37, north of the NW 1/ 4 of Section all 10, in The judgment recognized the southern boundary of the T20S- R17E. lease along a fence line located entirely in the SW 1/ 4 of Section the NW 10. 1/ 4 Importantly, of Section even though the west of Four Point subject to a January 1, Breaux. a the of the northern and southern Conveyance to be Terrebonne." declared or surface other lease" surface lands of from HBC appears lease" other In turn, a successor Both the to an August August that " this public that January 1, lease records 20, 1968, the were Mrs. to be a Breaux, 1980, 20, 1968, lease and January 1, shall not be of HBC, to cattle grazing lease from HBC to Mrs. character. leases, and Canal, 1980, " ten years. appears similar 1980, 1980, term document of 1980 " This January 1, January 1, with of leave no doubt that the entirety of the NW 1/ 4 of boundaries, 10 never mentions the map attached to the judgment along 10, with the written description Section judgment Parish recorded in of The court was furnished copies of these two leases 33 and has reviewed the same in connection with the February 20, 1991, judgment. In by recorded lease, 1968, HBC granted Hilton Dumesnil an agricultural and cattle grazing lease over HBC properties in Terrebonne Parish, good for five years with an option to renew The rental was declared to be one- for an additional five years. Based sixth of all the sugar cane produced and harvested. review of this document, on a and a color -coded map of the properties described therein maintained by HBC, the court has concluded that HBC did include in that lease land in the southernmost part of the NW 1/ 4 of Section and all Point Canal, R17E, located on the the T20S- R17E 10, land east on the west in the NW 1/ 4 side of Four Point of side of Four Section 10, The Canal. T20S- lease agreement was contemporaneously recorded in the conveyance records of Terrebonne Parish. The land appears to include part of the property that was subsequently leased to Nora Bourg Breaux by HBC in 1980, discussed hereinabove, and part of the property that was subsequently leased to Carl J. Bourg by HBC in 1980, discussed hereinbelow. The lease of property in the NW 1/ 4 of Section 10 by HBC to Nora Bourg Breaux was limited to land on the west side of Four Point Canal. The evidence received by the court at trial confirms that HBC was active in the leasing of the relatively small part canal, as of the NW 1/ 4 of Section 10 on the east side of the well. The satellite imagery described above and reviewed by the court shows that most of the NW 1/ 4 of Section 10 located on the east bank of Four Point Canal was under cultivation by 1953, even before that portion of the section property located on the western side of the canal. According to Herdis Neil, currently uses the property for cattle grazing, one age can 71, who still detect the pattern of cultivated rows running in an east -west direction even though no crops have been grown on the property for more than thirty- five years. it is highly probable that the property was cultivated for the purpose of growing sugar cane 34 inasmuch as the surrounding property was used for that purpose, the remnants of the brickworks of an old sugar mill are located just north of the property in Section 37, and T20S- R17E, the property was leased for up to ten years to Hilton Dumesnil for the purpose of cattle grazing and sugar cane cultivation, J. Bourg, Harry Bourg' s grandson, HBC leased to Carl 1980, By agreement dated January 1, property on the east sidelof Four Point Canal for cattle grazing for ten years. subsequent 1987, of amendment to this lease agreement, Based on a dated September 9, it appears the original cattle grazing lease included all the NW 1/ 4 of Section 10 located on the east Point Canal. The 1987 amendment expanded the lease to permit use of the property for agricultural purposes, purposes, side of Four hunting and trapping as well as for the purpose of cattle grazing. While the 1987 amendment to the original lease was contemporaneously recorded, recordation of lease was expressly forbidden. Carl J. The 1987 Bourg' s father, Albert Bourg, the 1980 original amendment references Harry Bourg' s only son, and indicates that he was a previous lessee of the property described in the amendment. HBC offered at trial lease to Carl J. for ten years. Bourg, of this matter, dated September 11, document, the NW 1988, and contract of effective This agreement appears to be similar to the 1980 lease agreement as amended in 1987. concluded, another However, the court has based on its examination of the sketch attached to the that it did not include the lease of any property in 1/ 4 of Section 10, T20S- R17E. The evidence received by the court convinces the court that Carl J. Bourg was using the property on the east side of Four Point Canal and at issue in this case for the grazing of cattle, at least from 1960. Before that time, his someone on behalf of HBC such as Hilton Dumesnil, father, or or Harry Bourg, more probably than not used the property for the grazing of cattle and/ or cultivation of sugar cane at least since 1953. According to Herdis Neil, 35 Carl J. Bourg abandoned his lease of the NW 1/ 4 Canal in 1999. 1999, and contemporaneously recorded in the conveyance office in Terrebonne purposes east years. Parish, of Section 10, on HBC leased to the east Mr. Neil " Four Point for cattle grazing the canal. This lease was effective for up to six By recorded agreement effective April 21, 2017, same property for the same purpose to Mr. years. of lands which included the section property on the amended by a recorded act dated dune 28, six side by agreement dated April 1, Shortly thereafter, only," side of 2011, as HBC leased the Neil, again for up to The amendment reduced the number of acres leased due to the excavation of part of the land to remove the dirt that is at issue in this case. Property Taxes The court has examined the limited information furnished by HBC regarding the assessment of property taxes by the Terrebonne Parish Tax Assessor, - principally from 1924 to 1962 as reflected by HBC Exhibit Nos. 35B and 42. These exhibits consist of a summary of assessments against various owners for various parcels of land during those years. From 1924 until Manufacturing Co., Inc., 1927, inclusive, Ashland Planting & was assessed for the ownership of 5000 acres known as the Dulac Plantation in ward 4 of Terrebonne Parish. All of the property at issue in this case is located in Ward In 4. 1928, of that company, of A. W. 1931. A. W. no property in Ward 4 was assessed in the name but the same property was assessed in the name Pettigrew, In 1932, Pettigrew, name of Ashby W. Inc., beginning in 1928 and continuing through no property in Ward 4 was assessed in the name of Inc., but the same property was assessed in the Pettigrew, or A. W. Pettigrew, In A. W. and continuing through 1934. 1935, beginning in 1932 Pettigrew was assessed for all of Dulac Plantation " west of Four Point Canal," while Harry Bourg was assessed for the first time only for the following described property " located in Section 10, a) east of Four Point T20S- R17E: The W 1/ 2 of the SE 1/ 4; 36 and, Canal" and The b} The NE 1/ 4. assessment unchanged through Pettigrew to A. W. continued beginning in 1936, However, 1942. in 1935 the assessment in the name of Harry Bourg grew to include additional properties incorrectly identified as being in T20S- R17E, However, exclusively on the east side of Four Point Canal. none of the property in Section 10 included the NW 1/ 4 thereof. In Pettigrew, assessment was In The then the the Canal. but to the NE 1/ 4 The or In thereafter. 1944, Harry Bourg' s same. Harry Bourg' s assessment changed dramatically. 1945, new assessment identical and Harry Bourg' s assessment was the same, there was no longer any assessment for property of curiously, A. W. 1943, consisted of 1935 of two parts. assessment, Section second part 10, was The first part was simply the W 1/ 2 of the SE 1/ 4 T20S- R17E, all a new assessment east of Four Point which did not expressly include the specific tracts of land for which Harry Bourg had been assessed in the years 1936 through 1944. the second part of the new assessment was revised to Instead, read as follows: The unsold portion Point Canal of Dulac and Bayou Dulac Plantation and East Caillou in Township 19 and 20 South, including parts of Sections 3, R17E among other property.' 10, west of Four of Bayou Grand Range 17 East, and 15, T20S- 22, This two part assessment in the name of Harry Bourg continued until in 1962, identical when the form through records 1954. furnished to Beginning in 1955 and the court end, this same two part assessment appears only in the name of Harry Bourg Corporation. The lack of any assessment in the name of Ashby W. coincides with his April Pettigrew beginning in 1943, sale to Harry Bourg. 10, 1942, There is no rational explanation as to why no one was assessed in 1944 for the additional property for which Harry Bourg and HBC were assessed beginning in 1945. The court has not been furnished any evidence that during those same years, i. e., 37 1924 through 1962, any property in Ward 4 was assessed in the names of Gaidry or Schwing or their ancestors in title. and after comparing the Based on the foregoing, descriptions in the April 1942, 10, purchase by Harry Bourg to the tax assessor' s description of property assessed to Harry the court believes the entire ownership interest Bourg and HBC, in the land at issue in this case was assessed first to Harry and that they and subsequently to HBC, Bourg beginning in 1945, paid the property taxes due on the property through at least The court' s finding is supported by the records of the 1960. Terrebonne The 1961, 56. Parish tax assessor offered as HBC Exhibit No. court is also convinced that sometime in 1960 or the Terrebonne Parish tax assessor realized that Harry Bourg Corporation was not record owner of a one hundred percent interest 56 in the NW 1/ 4 reveals that of in 1961 Section 10, T20S- R17E. HBC Exhibit No. the Terrebonne Parish Sheriff began collecting property taxes from the ancestors in title of Gaidry and Schwing for assessments of the NW 1/ 4 of Section 10, R17E. The Exhibit since evidence No. 57 1961, and offered to Plaintiffs' the court, Exhibit No. T20S- particularly HBC 6, indicates that both HBC and the Gaidry and Schwing interests have paid property taxes attributable to this property at various times, and that the assessor has not been consistent in identifying the interest of each party to the assessments. For some unknown reason, for the tax year 2017, the tax assessor assessed Gaidry and Schwing for one hundred per cent of the NW 1/ 4, Section 10, T20S- R17E. The court has not received any evidence to show that the tax assessor, Schwing, while adjusting the assessments of Gaidry and beginning in 1961 and ending in 2017, assessment against HBC to reflect this ever adjusted new assessment the against The description of the property assessed to Gaidry and Schwing. HBC remained unchanged in relevant part throughout these years. The court believes of Section 10, it is more probable than not T20S- R17E, was subject to 38 dual that the NW 1/ 4 assessment since 1961. Servitude Agreements and other Written Public Acts_ In an effort to prove its overt and unambiguous acts of possession of the property at issue, HBC offered numerous publicly recorded written acts allegedly evidencing its ownership and possession, all reflected by HBC Exhibit Nos. 24, 25, 52. 26, and 21, 20, 19, 23, The first such document is a copy of a boundary agreement by and between HBC and The Louisiana Land and dated October Exploration Company, 11, 1958. The court has determined that this document does not apply to any part of the NW 1/ 4 of Section 10, T20S- R17E. The second document is a copy of a right of way grant by HBC in favor of The Parish of Terrebonne, dated July 8, 1963. State of Louisiana, The act grants a right- of- way for a public roadway approximately 700 feet in length in accordance with a map purported to be attached to the act. The map is not attached, and the court is unable to determine if this length of roadway is located within the NW 1/ 4 of Section 10, T20S- R17E. HBC also submitted a copy of a right of way deed by HBC in favor of The Police Jury of the Parish of Terrebonne, dated October 8, 1965. This document of- way for public road purposes. therein is vague, State refers of Louisiana, to a grant of right- The property description and it is impossible for the court to determine if this servitude grant affects the NW 1/ 4 of Section 10, T20S- R17E. HBC also submitted to the court a copy of a drainage servitude deed by HBC in favor of The Terrebonne Parish Police Jury, dated July 3, 1975. The described servitude is one hundred fifty feet wide along with a centerline along existing levees referred to in the document. The map attached to this document clearly shows the servitude grant substantially impacts the land in the NW 1/ 4 of Section 10, T20S- R17E. The next document offered by HBC is a copy of a grant of a mitigation servitude by HBC to Terrebonne Levee and 39 Conservation dated District, September The 2012. 27, servitude is intended to afford the grantee levee district an opportunity The to create a umitigation and/ or marsh creation project." lands affected by the servitude are depicted on a map attached to and they do not appear to include any part of the the document, NW 1/ 4 of Section T20S- R17E. 10, The next document offered for the court' s consideration is a copy of an agreement and amended servitudes by and between dated May 3, HBC and Terrebonne Parish Consolidated Government, This document refers to the July 3, 2013. drainage 1975, servitude deed described above affecting the property at issue in this as well as an attached copy of an undated drainage case, servitude deed recorded December 17, introduced as evidence document in this case. 1973, This not separately December created a drainage servitude 130 feet wide in favor of the Terrebonne Parish Police Jury across lands of HEC, the 3, 10, NW 1973, 17, 1/ 4 of Section T20S- R17E. 10, including the May Strictly speaking, agreement does not directly affect the NW 1/ 4 of Section 2013, but T20.S- R17E, drainage servitude it does confirm the existence deed recorded December 17, of the previous 1973. BBC has also furnished to the court a copy of a right- of- way grant by the State of Louisiana to HBC dated October 17, 2013, crossing" Section for the purpose of constructing a " culverted bayou through " 10, a portion of Four Point Bayou located in T17S- R20E. 11 to he eighty feet wide. agreement The permanent right- of- way was declared The designation of ' IT17S- R20E" in the is an obvious error inasmuch as Four Point Bayou does not meander through 11T17S- R20E, 11 the reference to In any event, specifications but rather through T20S- R17E. 114 Point Bayou Crossing" attached to the document on causes the court the to think the crossing pertains to property outside of the NW 1/ 4 of T20SR17E. This conclusion is based on the anticipated construction of a Four Point Bayou crossing mentioned in the agreement and amendedservitudesdocument dated May 3, hereinabove, 2013, discussed in connection with the development of " Four Point 40 Harbor by HBC in Section 15, Subdivision" Section T20S- R17E, south of The court finds that this grant of right- of- way by 10. the state actually pertains to a portion of Four Point Bayou ( canal) in Section 15 or the SE 1/ 4 of Section 10, or T20S- R17E. The court has also been furnished a copy of a grant of Four servitudes by and between HBC, Terrebonne Levee and Conservation Point Harbor, District, L. L. C., dated May 4, and 2016. A review of this document and the map attached reveals that the agreement pertains to Section 22, T209- R17E, and in no way affects the NW 1/ 4 of Section 10 in that range and township. Finally, the court was furnished a copy of the " Dirt Contract" dated April as and a copy of the " Supplemental and Amended Dirt buyer, Contract" 9, 2014, by HBC, as seller, and Low Land, between the same parties dated February 26, 2015. The parties to this litigation have already agreed that these documents impact that portion of the NW 1/ 4 of Section 10, R17E, T20S- located on the east side of Four Point Canal. By way of HBC Exhibit No. 44, HBC furnished to the court an extract from a Tobin map with reference to T20S- R17E, Terrebonne Parish, Harry Bourg." of the Section north, Corp." Louisiana, depicting property " occupied by The property is clearly identified as the NW 1/ 4 10. The map indicates that surrounding property on east, and south sides thereof is owned by " Harry Bourg There is no indication on the document of the date of preparation of but it obviously was prepared after 1955 the map, when HBC acquired its lands from Harry Bourg. offered the same Tobin map as Plaintiffs' The plaintiffs Exhibit No. 16. Neither Gaidry nor Schwing offered as evidence at trial any act purporting to constitute the creation of any surface right- of- way or servitude by them or their ancestors in title in the NW 1/ 4 of Section 10, purchase by Harry Bourg. T20S- R17E, after the April They did offer, however, 10, 1942, copies of numerous acts after that date by which their various authors in title transferred ownership of their interests in the NW 1/ 4 of Section 10, T20S- R17E, such that those interests are now owned by 41 Gaidry and Schwing. Hunting and Fishing In an effort to show its obvious and unambiguous use of HRC also offered evidence of hunting and the property at issue, fishing activities on its behalf. Nolan Bergeron testified that he was the land manager for HBC for almost twenty years, Before 1995. him, until those duties were the responsibility of Freddie Trahan from the time HBC acquired its lands from Harry HBC was vigilant about patrolling all of the property it Bourg. owned, particularly to control hunting and fishing. system of " passes" Mr. used at one time to grant visitors Bergeron testified that he did not patrol Section 10 by boat and, on HBC Jr., Gaidry, on lands, occasion, There was a access. the NW 1/ 4 of he did see Wilson " Doc" but never on the NW 1/ 4 of Section 10. The only documentary evidence offered by HBC regarding the sporting use of the NW 1/ 4 of Section 10, Exhibit No. 51. T20S- R17E, was HBC It consists of sixty different deer hunting permits granted by HBG to various individuals between 2004 and 2017. hunt Each permit generally granted permission to the grantee to on " designated property of Harry Bourg Corporation," without any further specification of which property was too be hunted. In a few instances, a map is attached to the deer hunting permit and some of these maps appear to indicate that HBC was regulating deer hunting in the NW 1/ 4 of Section 10 just south of the former homestead of Nora Bourg Breaux. To support their claims of sporting use of the NW 1/ 4 of Section 10 by or on behalf of Gaidry and Schwing or their ancestors Webb, in title, Wilson " Doc" the plaintiffs offered the testimony of Roger Jr., Gaidry, Shannon J. Danos, and Leo Bickham. According to Mr. interest in Gaidry, either alone or with Webb, age forty- seven, who owns an he traditionally would access the property, groups of people, by crossing the levee on the west side near the Cenac Duck Pond in adjacent Section 9. would access the entry point by boat. 42 At various times since He 1986 deer, or 1987, and multiple alligators, rabbits, times and a year, nutria. he would hunt or trap He was not shy about shooting his shotgun shells and making his presence known. all the years he was present on the property, no one in indicated to him that he had no right to be there or otherwise obstructed his activities. Mr. Danos, a forty- nine year old commercial fisherman, who sells bait and crabs and lives near the property in question, testified he has fished minnows and crawfish on the property with permission of Gaidry, always west of Four Point Canal. This activity appears to have occurred within less than ten years before trial. The court received as evidence, copies of four one- year leases for the calendar years 2011- 2014 by which Mr. Danos leased from Gaidry, numerous properties in the Dulac area, for the purposes of " trapping, hunting, fishing, other recreational and commercial activities." campsite, and The leases always included the property described as the NW 1/ 4 of Section 10, T20S- R17E. Mr. Bickham, affiliated with Gaidry, first visited the property in question in 1977 after his father died. In 1978, he began hunting on the property regularly until about 2004 or 2005. Like Mr. western Webb and Mr. side, Mr. Gaidry, he would access the property on its and no one interfered with his use of the property. Gaidry testified that he has been familiar with the NW 1/ 4 of Section 10 since 1954 when, he first visited the property as a fifteen year old boy. He estimated that he has been on the property at least twice each hunt and/ or trap ducks, Like Mr. Webb, nutria, minks, otters, since, and activities. Gaidry identified Plaintiffs' And like Mr. Exhibit No. year hunting lease from Gaidry to Andrew Sheppard, 10,- alligators. he would access the NW 1/ 4 of Section 10 from the west. Mr. 1, primarily to no one ever indicated to him that he had no right to be there or otherwise obstructed his Webb, year 1984, 10, a ten dated October affecting property which included the NW 1/ 4 of Section T20S- R17E. He also identified Plaintiffs, 43 Exhibit No. 8, a water fowl hunting lease from Gaidry to Andrew Sheppard, September 10, NW 1/ 4 of 1995, Section Plaintiffs' dated which included the property identified as the 10, Exhibit T20S- R17E. No. 9, Mr. Gaidry also identified a trapping and hunting lease from Gaidry to Andrew Sheppard, dated September 10, 1995, which also included the same property. Mr. the NW 1/ 4 Gaidry confirmed that by producing tax receipts for of Section 10, T20S- R17E, enabled his brother- in- law, on behalf of Gaidry, Dane Ledet, he to obtain Louisiana Wildlife and Fisheries permits to collect alligator eggs from the property beginning in 1996 through 2018. years, During those same he was able to obtain alligator licenses for himself based on Gaidry' s ownership of the same property. The documents evidencing these permits and licenses were received by the court as Plaintiffs' Mr. Exhibit No. 7. Gaidry testified that he was the one who discovered, during a trip to the Terrebonne Parish Tax Assessor' s office in 2016, that a dirt pit had been created on the east bank of Four Point Canal in the NW 1/ 4 of Section 10 on property he knew belonged in part to Gaidry and Schwing. It was that discovery that led to the filing of suit by Gaidry and Schwing against the defendants on May 23, HBC, 2017. He confirmed that he never thought despite all its acts of possession, was possessing the property adversely to, or to the exclusion of, Gaidry and Schwing. Mineral Exploration and Activity HBC Bellaire, Inc., Exhibit Texas, June 43 consists of an envelope mailed from 27, 1961, by Electronic Explorations, address to its company representative, Thibodaux, Louisiana. signed by Mr. with on No. the note, Mr. J. V. Looney, in With the envelope is a handwritten note Looney referring to a check, for damages " apparently enclosed for shooting land of Harry Bourg in following sections— north half Section 10...." HBC apparently retrieved this item of evidence from the records of HBC and offered to show its possession of the land at or about that time. 44 the Other than this one item of documentary evidence, court did not received from HBC any evidence of mineral leasing or T20S- R17E, development with regard to the NW 1/ 4 of Section 10, April after the property was acquired by Harry Bourg on 1942. 10, the court did receive evidence from On the other hand, and gas, the plaintiffs in this case that various oil, mineral leases were granted with regard to varying interests between 1955 and Schwing authors in title, which were 1) contemporaneously recorded, From Smith Hickman, T. dated December 2) December From 3) E. B. and 1977, to wit: all of et al, to S. Gordon Reese, et al, to S. Gordon to C. T. 1955; 17, From Wilson J. dated by the Gaidry T20S- R17E, in and to the NW 1/ 4 of Section 10, Gaidry, Reese, 1955; 17, Schwing, et al, dated may Carden, 1971; 13, From 4) Wilson J. From 5) E. B. Schwing, effective Inc., Jr., Gaidry, et et al, Petroleum From 7) Co., E. B. Inc., to Wolff Petroleum et al, to effective November 25, 1974; Schwing, Inc., Company, Carden, C. T. et Co., 1974; December 4, From Lillie Lea McKnight Gaidry, 6) to al, 1971; dated May 7, al, Wolff to Pennzoil Producing 1977; effective May 6, and, 8) From Lillie Lea McKnight Gaidry, et al, effective May 10, Producing Company, Inc., to Pennzoil 1977. Based on all the evidence received by the court in this case regarding possession of the NW 1/ 4 of Section 10, the court is convinced that at by Harry Bourg and/ or HBC, since April title, least Harry Bourg and his successor by particular have had corporeal possession of the entirety of the HEC, There property. continuous, Code 1942, 10, T20S- R17E, is no question that the possession has been peaceable, article 3476 acquisitive public, declares, prescription, uninterrupted, peaceable, and unequivocal. however, that for the possession must public, and Louisiana the purpose be " Civil of continuous, unequivocal." The interruption of corporeal possession must be by acts of corporeal possession, be more than mere not acts disturbances. 45 of civil possession, and must does not run in favor of a precarious possessor, i. e., one possesses without any intent to own another' s interest, or his universal co- owner, possession Under continues. including a co- owner, successor, our who such as a regardless of how long the law, a precarious possessor, is presumed to possess not for himself but for and on behalf of his co- owners, It is of no moment that precarious possessor actually intends to possess the for himself alone. He is presumed to possess for and on behalf of his co- owners, even if he actually intends to possess for himself. pointed out by comment ( b) As of Louisiana Civil Code article 3438, this is a rebuttable presumption. A co- owner or his universal successor may commence to possess for himself, and• thus begin the running of acquisitive prescription despite the presumption against him, 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 alone. These basic Provisions of Louisiana property law have been consistently recognized by our courts. So. 2d App. 26 ( 2 Towles La. Cir. v. 11/ 09/ 53); 2/ 06/ 73), Givens writ denied, Heirs of Morrison, 2/ 22/ 83); Andras 10/ 30/ 14), writ v. v. 428 Thibodeaux, denied, 204 Givens., 275 3/ 14/ 18), writ denied, 273 So. 2d v. 157 So. 3d So. 3d 179 ( 868 ( 767 ( La. 241 Jones, So. 2d 863 ( So. 2d 1029 ( La. The Unopened Succession of Sepulvado, Cir- Lee La. App. La. 5o. 3d 244 So. 3d 437 ( La. La. 4/ 19/ 73); 1 App. 10/ 30/ 15); 69 Cir. 1 Cir. ELbarb v. 1103 ( La. App. 3 6/ 01/ 18). Under Louisiana Civil Code article 3478, the acquisition and recordation of a title from a person other than a co- owner may mark the commencement of prescription." particular owner, Likewise, successor of a precarious possessor, such as the a co- who takes possession under an act translative of ownership possesses for himself, and prescription runs in his favor from the commencement of his possession, ( La. C. C. art. 3479.) These two articles of the Louisiana Civil Code have been the subject of much La. litigation in Louisiana. 2/ 18/ 63); Givens, supra; Succession of Towles, we supra; Seals,, Franks 150 So. 2d 13 Petroleum, 2/ 21/ 84); Heirs, Inc. Babineaux, 446 So. 2d 862 ( La. App. Lake Charles Harbor and Terminal District Inc., denied, v. 681 673 So. 2d 1351 ( So. 2d 371 ( La. Succession of Howard, writ denied, 983 97.6 So. 2d La. App. 10/ 25/ 96); So. 2d 922 ( La. 3 Cir. App. 6/ 06/ 08); Cir. Erwin v. 05/ 08/ 96), Tilley v. 851 ( La. 2 2 writ Unopened Cir. Ebarb, 2/ 20/ 08), supra. One case relied upon by HBC in the instant litigation is the Louisiana Supreme Court decision in Succession of Seals. The widow and daughter of the deceased, Stokes Seals, prevailed on a claim of thirty years acquisitive prescription against the co- heirs, Seals. Mr. and thus co- owners of property, Mr. Seals had acquired the property in question from his brother' s widow by written had no children, result, with act of sale in 1913. had purchased the property His brother, while single. As who a the widow from whom he purchased the property acquired no ownership rights to the property as a result of her husband' s death. However, as one sibling of the deceased, Stokes Seals owned the property as co -heir with his other brothers and sisters. Mr. After the purported sale from his dead brother' s widow, Seals took corporeal possession of the property and exercised certain acts of possession, The court found Mr. ownership and management." Seals to have been a precarious possessor of the property whose possession was sufficiently adverse to his coowners to justify the accrual of acquisitive prescription. The concurring opinion of Justice McCaleb in the Succession of Seals opinion is instructive: A distinction should be recognized, case like this, I think, between a in which a co- owner pleading 30 - year acquisitive prescription takes initial possession under a deed translative of the property, albeit invalid, and a case in which a co- owner enters possession of the whole without a paper title and without clearly indicating to the other co- owners that he intends his possession to be hostile to their interests. first instance, he acquires a title for valuable this In the it strikes me that the very fact that case, consideration, as in is sufficient to rebut any legal presumption that he is possessing for his co- heirs or co- owners, which normally obtains in cases in which the co- owner simply takes possession of the land. this case, Accordingly, the fact that Stokes Seals entered the in property in 1913 under a title and possessed as owner for over 30 years is sufficient, in my opinion, to warrant maintenance of the plea of 30 - year acquisitive 47 prescription and this despite the fact, as indicated by that he may have permitted some of his co- heirs to live thereon by sufferance. the evidence, It stokes possessor, time of should be noted that the act Seals, was a co- owner of translative of brother' s widow. the in the Seals case, initial the property at the title between him and his The decision of the Supreme Court upholding his claim of ownership was clearly based on thirty years acquisitive There was no express holding that the 1913 deed prescription. translative of title served as notice to his co- owners that he intended to possess the property at issue for himself. But the concurring opinion of Justice McCaleb declares that it did. In effect, Justice Mccaleb' s opinion indirectly declares that the particular successor Civil to a precarious possessor under Louisiana Code article 3479 includes a co- owner, i. e., one already owns an undivided interest in the property. who This appears to conflict with the second sentence of Louisiana Civil Code article 3478 which states: " The acquisition and recordation of a title from a person other than a co- owner thus may mark the commencement of prescription.,' ( Emphasis added.) It is in light of these Civil Code articles and the relevant jurisprudence that the court has analyzed the juridical acts upon which HBC relies to show that its ancestors in title possessed the NW alone and not actual 1927 ( 1934 ( translative of record of Section 10, T20S- R17E, on behalf of their co- owners. between May 14, and May 1, 1/ 4 sheriff' s sale title, All of to Madison L. purchase by Harry Bourg), title, for themselves the acts Funderburk), inclusive, were even though none of these acts transferred This is so because until June 22, 1935, record title to the entirety of the NW 1/ 4 of Section 10, R17E was vested in the successors of Robert R. hand, the and in the successors of Mrs. other. acts Volumnia R. Barrow T20S- on the one Barrow Slatter For reasons which will be explained below, the on court does not deem these transactions to be of any importance in this case. It is the act of sale dated April 10, 48 1942, from Ashby W. Pettigrew to Harry Bourg that the court considers critically This act was translative of important. title. The description therein was sufficient to convey ownership of the property at issue in this case if it had been executed by the proper owners. Pettigrew, At the time this act was executed by Ashby W, any possession he had of the subject property was precarious inasmuch as he was a co- owner of the property with the ancestors of Gaidry and Schwing. the as exact importantly, language of however, with regard to Harry Bourg, Louisiana Civil Code article 3479 provides follows: A particular successor of a precarious possessor who takes possession under an act translative of ownership possesses for himself, and prescription runs favor from the commencement In this case, Pettigrew, of Ashby W. in his of his possession. Harry Bourg was the particular successor a precarious possessor of the property. Harry Bourg was not a co- owner of the property at the time the April Code 10, 1942, article act 3479, was upon executed. execution property at issue for himself, his favor " As of such, the under act, Louisiana he possessed Civil the and prescription began running in from the commencement of his possession." The law is clear that one who acquires property from a co- owner precarious possessor is presumed to possess the property for himself and adverse to his co- owners once he takes corporeal possession. Givens, and Towles, supra; Terminal District, sUp; Franks, supra; suipra; Tilley, supra. Lake Charles Harbor The following language from the Louisiana Second Circuit Court of Appeal in the Givens case is illustrative: The well- settled jurisprudential general rule is that an owner in indivision cannot acquire by prescription the rights of his co- owners in the property held in common. Possession by one co- owner is generally considered as being exercised on behalf of all coowners. It is equally well- settled that an exception to the foregoing general rule is recognized in those instances wherein the adversely possessing co- owner gives notice to the other co- owners that he intends to possess contrary to the common interest. Under such circumstances one owner in common may prescribe against a party owning in indivision with him provided such possession be clearly hostile and notice be given 49 thereof. In determining whether a particular case falls within the exception rather than the general rule it has been held that mere occupancy, payment use, of taxes and similar acts of possession will not suffice to constitute notice of adverse possession to an owner in common. citing Succession of Seals: The court went on to say, a solid line of However, that where a cases has developed the rule co- owner goes into and continues possession under a recorded instrument apparently conveying title ( even though the purported conveyance be invalid), acts of the recorded instrument possession constitute and the possession is claims of the other notice together with the to then regarded as co- owners, other cc - owners hostile rebutting to the any presumption that possession is for the benefit of all co- owners. Likewise, in Towles the Louisiana First Circuit Court of Appeal had this to say: The possession by a co- owner inures to the benefit of the other co- owners, as owners in indivision cannot in acquire title by prescription against one another, the absence of clearly hostile possession by the possessing which co- owner, gives clear notice to the other co- owners of his intent to possess exclusively Where one co- owner goes and adversely.... into and continues possession by reason of a deed translative or a partition declarative of title, the co- owners possession is regarded as hostile to any claim of his co- owner, rebutting the presumption of precarious possession. The recordation of a deed translative of title is the important factor in giving notice of hostile and adverse the possession recorded titles to cc - owners .... changes The notice given by the nature of future possessor acts from precarious possession to adverse The acts follow that notice. possession. of corporeal possession must By application of Louisiana Civil Code article 3479, without regard to the decision in Succession of Seals, the court finds that Harry Bourg, the particular successor of Ashby W. Pettigrew, possessor, a precarious gave clear notice to the other co- owners of the property his intent to possess exclusively and adversely when he executed the act of April 10, recorded to the sustain a same. However, claim of 1942, this notice alone acquisitive is not prescription. It and sufficient must be followed by actual acts of corporeal possession. As described hereinabove, 50 the record is replete with evidence of actual corporeal possession of the property at issue by Harry Bourg and/ or HBC through overt and unambiguous acts, least from April 10, 1942, through the date of time in excess of seventy- five years. As the act court believes the April 10, 1942, trial, a at period of explained hereinabove, constituted just title to the property and that Harry Bourg acquired the same in good faith. Because possession is transferable by particular title, Harry Bourg' s possession can be claimed by HBC for its own benefit. HBC acquired Harry Bourg' s real rights in and to the property from him and is entitled to " tack" this possession to its own from purposes of calculating the time necessary for acquisitive of prescription. ( possession" La. C. C. art. 3441.) This " tacking is permitted as long as there has been no interruption of possession, that is, as long as the possessor does not abandon his possession and as long as the possessor is not evicted. ( La. C. C. arts. 3442 3433 and 3434). proves that he had possession at different times, If he is presumed to have possessed during the intermediate periods. ( 3443). Therefore, one La. C. C. art. in the absence of some other legal impediment, the court is compelled to find that HBC is entitled to judgment in its favor declaring it to be the owner of the property at issue based on acquisitive prescription of both ten and thirty years. As stated hereinabove, the court does not deem it necessary to discuss the transactions between -1927 and 1942 cited above that may have served as the basis for the commencement of acquisitive prescription that might be tacked on to the possession by Harry Bourg and/ or HBC. The court deems these transactions irrelevant inasmuch as the court has not received any credible evidence of any actual corporeal possession of the NW 1/ 4 of Section 10, transactions. T20S- R17E, by any of the parties to those In the absence of actual possession, there can be no tacking. Bars to Accrual of Acquisitive Prescription The court has considered the evidence in this case with 51 a view toward determining whether there might be some other legal impediment to the running of acquisitive prescription in favor of HBC, such that it would defeat its claims against Gaidry and Schwing. once possession is intention." ( possession begins, presumed " La. C. C. the intent to retain that unless there is clear proof of contrary 3432.) art. The presumption is rebuttable. Possession may be lost if " the possessor manifests his intention to abandon it or when he is evicted by another by force or La. usurpation." ( C. C. not timely recovered, art. 3433.) If possession is lost, and acquisitive prescription is deemed interrupted and commences to run anew from the last day of interruption. ( La. C. C. 3465 arts. and 3466.) None of the evidence in this case supports any assertion that Harry Bourg or HBC ever manifested any intention to abandon their possession of the property at issue or that they were ever evicted from the property by force or usurpation. evidence is quite to the contrary. the posting of signage, the grazing of cattle. fact, the They consistently corporeally possessed the property by acts which included, things, In among other the raising of sugar cane, and There is no evidence to suggest they were restricted or inhibited in these activities in any way by anyone, The evidence at trial confirmed that there was never any sharing of revenue derived from the NW 1/ 4 of Section 10, T20S- R17E, or any demand for such sharing by HBC or Harry Bourg with Gaidry or Schwing, and, likewise, by Gaidry or Schwing with HBC or Harry Bourg until the events which led to the filing of the petition in this case. Under Louisiana Civil Code article 3435, is " violent, effect. clandestine, or equivocal" that has no Possession is violent when it is acquired or maintained by violent acts. or discontinuous, possession public, intervals, Possession is clandestine when it is not open discontinuous when it is not exercised at regular and equivocal when there is ambiguity as to the intent of the possessor to own the thing. ( 52 La. C. C. art. 3436.) Again, the court has no evidence upon which it could reasonably find that any of these. vices of possession are applicable to this case. Acquisitive prescription is interrupted if suit is filed challenging the prescription, or if the right of the owner is acknowledged by the possessor, C. C.- arts. 3462, 3464 and or if possession is lost. ( 3465.) does not believe Harry Bourg As discussed above, 1&. the court or HBC ever lost Possession. And there is no evidence that they ever affirmatively acknowledged any right of Gaidry and/ or Schwing to the property they Possessed. The only suit filed raising the issue Of Possession or acquisitive prescription is the instant suit filed May 23, 2017, long after the accrual of prescription in this case. For all of the foregoing reasons, the court finds that HBC is the owner of the NW 1/ 4 Terrebonne Parish, Louisiana, of Section 10, T20S- R17E, having acquired ownership to a one- half interest in the same by way of the act of sale from Ashby W. Pettigrew an April 10, 1942, and having acquired all other outstanding interests thereto by acquisitive prescription based on Possession by just title in good faith for ten years as of April 11, 1952, as of April 11, or alternatively, 1972, by possession for thirty years As owner of the property, it could cause the excavation and sale of dirt therefrom pursuant to its contract with Low Land Construction Company, Inc., free claim by Or obligation to the plaintiffs in this case. of any Because the court finds that Harry Bourg and HBC possessed the property at issue pursuant to an act translative of title, HBC is deemed to have Possessed the entirety of the NW 1/ 4 of Section 10 referred to in the act, area possessed by them on the ground. regardless of the actual However, it appears their Possession actually extended to the full limits of the property as described. south, The property at issue is bordered on the north, and east by other property of HBC acquired from Harry Bourg, and the evidence supports the finding that the Possessive activities which occurred in the NW 1/ 4 of Section 10 spilled 53 over onto these other properties. On the west, fencing beyond the section line and a ditch and/ or levee along the section line marked the limits of possession, of the NW 1/ 4 of Section which included at least the land 10. Judgment has been entered in accordance with these reasons for judgment. REASONS GIVEN in Chambers at Houma, IL day Please 1. of July, of 3. C. S. Gaidry, Inc., through their attorney of The defendant, record, 3017, this serve: Orleans Boulevard, 2. on 2019. The plaintiffs, LLC, Louisiana, Houma, and Schwing Management, record Damon J. Louisiana 70364. Harry Bourg Corporation, James M. Funderburk, Houma, Louisiana 70361. Baldone, through its attorney 101 Wilson Avenue, The defendant, Low Land Construction Company, its attorney of record, Rufus C. Harris, III, Suite 2710, New Orleans, Louisiana 70130, 162 New P. Inc,, O. Box through 650 Poydras Street, Deputy Clerk of Court Parish of Terrebonne, LA 54
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