United States v. Lasyone ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30808
Summary Calendar
_____________________
UNITED STATES OF AMERICA, on behalf of
United States Department of Agriculture,
Plaintiff-Appellee,
versus
DAVID L. LASYONE, SR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(95-CV-2011)
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December 19, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
To resolve a 60 year title dispute, the United States, on
behalf of the United States Department of Agriculture, filed an
action to quiet title to 161.41 acres of the Kisatchie National
Forest, claimed by the United States (as a result of transactions
in 1930 and 1937) and David L. Lasyone. The United States also
sought damages for trespass. Lasyone counterclaimed, asserting
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
title through acquisitive prescription, based on a 1919 quitclaim
deed. Partial summary judgment was granted for the United States
on its quiet title claim and against Lasyone’s counterclaim. That
partial judgment became final upon entry of an order, on motion by
the United States, dismissing its remaining claim.
Lasyone’s challenge to the adverse summary judgment on his
acquisitive prescription counterclaim is without merit. He failed
to establish a genuine issue of material fact for continuous
possession, an essential element of his claim. See LA. STAT. ANN.-
C.C. art. 3475. His family’s occasional timber-cutting and use of
the property for cattle grazing during a period when an open-range
policy was in effect does not constitute the taking of actual
possession under Louisiana law. See Broussard v. Motty, 174 So. 2d
246, 249 (La. App. 3d Cir. 1965) (grazing cattle on unenclosed land
insufficient possession to establish acquisitive prescription);
Johnson v. La Bokay Corp., 326 So. 2d 589, 594 (La. App. 3d Cir.
1976) (stock grazing on open range territory did not constitute
active possession sufficient to maintain possessory action);
Olinkraft, Inc. v. Allen, 333 So. 2d 250, 254 (La. App. 2d Cir.
1976) (occasional cutting and removal of timber from isolated tract
of forest land insufficient to prove actual possession for purposes
of acquisitive prescription); Oliver v. Kennington, 458 So. 2d 130,
134 (La. App. 2d Cir.), writ denied, 460 So. 2d 610 (La. 1984)
(same).
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And, contrary to Lasyone’s assertions, the 1960 Affidavit of
Possession signed by ten lifelong residents of Grant Parish does
not establish the existence of a material fact issue as to whether
his family possessed the disputed property during the prescriptive
period (1919-1929). As the district court noted, the affidavit is
factually incorrect regarding the date and manner of acquisition of
the property, and does not specify dates on which alleged acts of
possession occurred.
For the foregoing reasons, the judgment is
AFFIRMED.
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