Foscue v. Mitchell , 190 La. 758 ( 1938 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] John W. Foscue, alleging himself to be the owner of the fee title, and the Magnolia Petroleum Company, alleging itself to be the owner of an oil and gas lease, of a tract of 160 acres of land in Caddo Parish, brought this suit in jactitation, in which they alleged that defendants were slandering their title to 7.35 acres in the northern portion of the tract. Plaintiffs alleged that defendants were trespassers on the 7.35 acres of land, and they prayed for a preliminary injunction prohibiting defendants from trespassing upon the seven acre tract and from drilling an oil or gas well thereon.

The trial judge declined to grant the preliminary injunction, and this court affirmed his ruling. Foscue v. Mitchell,185 La. 963, 171 So. 91.

Thereafter, plaintiffs filed an amended and supplemental petition in which they set forth that since the filing of the suit defendants had completed a producing oil and gas well on the seven acre tract, and, alleging defendant's bad faith, plaintiffs prayed for an accounting of the oil, gas and gasoline produced by the well and for a judgment for the amount found to be due therefor. Plaintiffs also prayed that defendants be ordered to remove the well, its equipment and appurtenances, together with all the structures erected by them upon the premises.

Defendants denied plaintiffs' possession of the seven acre tract, and alleged, on the contrary, that the defendants, Minnie A. Mitchell, widow of W.H. Mitchell, and the heirs of William H. Mitchell, Senior, held title thereto by the prescription of thirty years under Articles 852 and 3499 of the Civil Code, and that by reason thereof, defendants, and not plaintiffs, have been in possession of the tract of land in dispute. Defendants admitted that they had drilled an oil and gas well on the tract and that the products thereof were being disposed of by the McAlester Fuel Company, one of the defendants. They alleged that they were in good faith in drilling the well, and they prayed that in the event the court should find that plaintiffs are in possession of the seven acre tract, the right be reserved to the defendants R.L. Bauman and McAlester Fuel Company to recover their reasonable costs for drilling, equipping and operating the well.

After hearing the merits of the case, the trial judge rendered judgment in favor of plaintiffs as prayed for in the original petition; ordering the removal of the well as far as possible and also ordering an accounting. Defendants applied for and were granted a rehearing. On the second hearing of the case judgment was rendered in favor of defendants rejecting plaintiffs' demands. Plaintiffs have appealed.

At the outset it is necessary to dispose of plaintiffs' contention that defendants have converted this jactitation suit into a petitory action by their allegation of ownership. We do not find any force in the contention. In McConnell v. Ory, 46 La.Ann. 564, 15 So. 424, cited by plaintiffs, there was apparently no question raised as to the possession of plaintiff. Under the cardinal principles governing petitory actions, the ruling in the cited case is not appropriate in the present case.

No one who alleges that he is in possession can maintain a petitory action. He must allege possession in the other party. It cannot be said that the defendants here are plaintiffs in a petitory action, when they specifically deny the possession of the original plaintiffs and specifically assert their own possession as owners.

Plaintiffs, in their petition, set out in detail the chain of title under which they claim ownership, but it is apparent from the prayer of the petition that plaintiffs' title is pleaded only for the purpose of showing the character and extent of the possession relied on.

The defendants, in their answer, plead the prescription of thirty years under Articles 852 and 3499 of the Civil Code, but it is also apparent from the prayer of the answer that such prescriptive title is pleaded solely for the purpose of showing the character of defendants' possession.

In other words, a record title is pleaded by the plaintiffs to show the character of their possession and a prescriptive title is pleaded by the defendants to show the character of their possession. But neither plaintiffs, in their petition, nor defendants, in their answer, prayed to be recognized as owners of the property the possession of which is in dispute.

In determining whether a suit is a jactitation suit or a petitory action, the averments of the petition and answer must be construed in connection with their respective prayers, which fix the character of plaintiff's action and the nature of the relief sought by the defendant. Siegel v. Helis, 186 La. 506,172 So. 768; Rudd v. Land Company, 188 La. 490, 177 So. 583.

The allegations and prayer of the petition and the allegations and prayer of the answer stamp this proceeding as a jactitation suit and not as a petitory action.

As shown by the record, John W. Foscue, the plaintiff, acquired from B.D. Foscue by warranty deed, dated August 29, 1884, a tract of land containing 160 acres and composed of the SE 1/4 of NE 1/4, E 1/2 of SE 1/4 and SW 1/4 of SE 1/4, Sec. 20, T. 23 N, R. 16 W, Caddo Parish, Louisiana. The deed was filed for record on February 16, 1894, and was recorded in Book 14, p. 261 of the Conveyance Records of Caddo Parish.

Included in the 160 acre tract acquired by John W. Foscue from B.D. Foscue, along the North line of and comprising a portion of the SW 1/4 of SE 1/4 of Sec. 20, T. 23, R. 16, is a tract of land containing 7.35 acres, which is fully described in the petition.

In the year 1896, William H. Mitchell, Senior, purchased the improvements of one Thompson, who held a government claim and was trying to homestead a tract of land adjoining the Foscue tract on the North. These improvements consisted of a small clearing and a little cabin. Mr. Mitchell and his wife, Mrs. Minnie A. Mitchell, moved into the cabin in the month of December, 1896. About that time Mr. Mitchell filed a homestead entry under the federal laws on the tract of land that Thompson had been trying to homestead. This tract contained 112 acres, was described as the SW 1/4 of NW 1/4 and the NW 1/4 of the SE 1/4, Sec. 20, T. 23 N., R. 16 W., Caddo Parish, and lay immediately North of the seven acre tract owned by the plaintiff, Foscue.

Receiving a patent to the 112 acre tract in the year 1903, Mr. Mitchell gradually cleared up more land and built a fence around the South boundary of the seven acre tract. Later developments disclosed that the seven acre tract was not included in the 112 acre tract homesteaded by Mr. Mitchell, but was a part of the 160 acre tract owned by Mr. Foscue.

Mr. Mitchell and his family lived in the cabin built by Thompson until the year 1912, when he built a more pretentious home considerably to the North but still on the seven acre tract, although it is possible that some portion of this house may have been located on the Mitchell homestead. The Mitchell family continued to live in the newly built house until about the year 1920 and to cultivate the land included in the seven acre tract. In 1920, Mr. Mitchell bought a home near Vivian, Louisiana, and moved his family there, but he continued to cultivate the seven acre tract in whole or in part until he died in the Spring of the year 1935.

It is not disclosed by the record what became of the house constructed on the tract by Mr. Mitchell, but it is certain that no part of the house was on the tract in the year 1936, except a few old rocks which were hidden in the weeds.

The seven acre tract was under fence, constructed by Mr. Mitchell in 1897, until the year 1928, when the Police Jury of Caddo Parish passed a no fence law. Thereafter, the fence was permitted to decay, although vestiges of the fence were found in place, when a new fence on the same location was erected by the Mitchells in the late Spring of 1936.

With the exception of its Northern boundary, the seven acre tract is irregular in shape. Its width varies from a few feet to 300 feet, and there are many turns and angles in it. The fence which Mr. Mitchell erected around the South end of the tract was not erected to serve as a boundary fence, but merely for the purpose of following the irregularities resulting from the gradual clearing of the land.

In 1884, when the land here involved was acquired by the plaintiff, Foscue, it was covered with a pine forest. Foscue's first important act of ownership, after acquiring title, was to sell all the pine timber 14 inches and over in diameter on the tract to the Black Bayou Lumber Company. This was in the year 1899. The lumber company went upon the land and conducted extensive lumbering operations thereon for four or five years. It constructed a tram road across the property, removed all the pine timber 14 inches and over in diameter, as it was authorized to do under its purchase, and, in addition, cut a large amount of timber below 14 inches in diameter. The cutting of this smaller timber resulted in the successful prosecution of a suit for damages by Mr. Foscue against the lumber company. Foscue v. Black Bayou Lumber Co., 118 La. 725, 43 So. 387.

In the year 1925, Mr. Foscue again sold the timber on his tract of land to W.K. Henderson, and lumbering operations were conducted on the land for sometime thereafter by Mr. Henderson or his assigns.

In the month of January, 1933, Mr. Foscue executed a mineral lease covering the land to R.W. Norton; and in the month of July, 1936, Norton assigned the oil rights covered by the lease to the Magnolia Petroleum Company. Both lease and assignment were duly recorded in the Conveyance Records of Caddo Parish.

After the Mitchell heirs had erected a new fence enclosing the seven acre tract in the Spring of 1936, they executed a mineral lease covering the tract to C.P. McCrary and A. Holiby. This was in the month of August, 1936; and in the same month McCrary and Holiby executed an assignment of the lease to R.L. Bauman and the McAlester Fuel Company. Both lease and assignment were duly placed on record in the Conveyance Office of Caddo Parish.

Subsequently, the assignees of this mineral lease went upon the seven acre tract and began the construction of a building and a derrick with the view of conducting drilling operations thereon. This suit promptly followed.

From what we have said, it is clear that Mr. Foscue went into actual, physical possession of his property a few years after he had acquired title thereto in 1884. Under Articles 3443 and 3442 of the Civil Code, this possession has continued at all times since, and gives plaintiffs the right to a possessory action to maintain his possession against any disturbance.

This proposition is not disputed by defendants, except as to the strip of Mr. Foscue's land which was occupied and cultivated by Mr. Mitchell from 1896 to 1935. As to this strip of approximately seven acres of land, defendants contend that the possession of Mr. Foscue must yield to that of Mr. Mitchell.

Under the evidence contained in the record there cannot be any doubt as to the actual physical possession of the Mitchells for more than thirty years. Defendants contend that this possession was as owners and plaintiffs contend that it was merely by the sufferance or permission of Mr. Foscue.

In the beginning and for several years thereafter, Mr. Mitchell's possession of the seven acre tract was plainly as owner under his mistaken belief that it formed part of his 112 acre homestead tract. But the evidence also plainly shows that some years later, Mr. Mitchell discovered the true situation. In the suit brought by Mr. Foscue against the Black Bayou Lumber Company, Mr. Mitchell testified about the logging operations of the lumber company, and in the course of his testimony stated that he knew the lines of Foscue's property. Mr. Gryder, one of the witnesses in this case, testified that he assisted in making a survey of the property for the Black Bayou Lumber Company, in which the line separating the Mitchell property from the Foscue property was run, and that Mr. Mitchell was present at the time. Again, in 1925, Mr. Mitchell pointed out to Mr. Foscue and Mr. Reynolds, a timber estimator, the dividing line between the Mitchell and the Foscue properties. When Mr. Reynolds commented upon the cultivation across the line of Mr. Foscue's land, Mr. Mitchell readily agreed with the comment and stated that he probably owed Mr. Foscue some rent for the use of the land. Mr. Foscue, however, declared that he had no use for the land and that he did not want any rent therefor, but he did request Mr. Mitchell to look after his land for him and to report any depredation thereon. Later, Mr. Foscue saw Mr. Mitchell in regard to some reported trespass on the land, and Mr. Mitchell told Mr. Foscue that he had already looked into the matter and that the person who had occupied the land under the belief it was public land had moved off.

There is other evidence in the record, not necessary to detail, which taken together with the evidence to which we have referred convinces us, as it did the trial judge, that Mr. Mitchell prior to 1906 knew the true boundary line between his homestead and the land of Mr. Foscue, and that thereafter he continued to know and acknowledge that the seven acre tract which he was occupying and cultivating did not belong to him but to Mr. Foscue; and that he did not continue to possess the tract as his own but merely by the sufferance or permission of Mr. Foscue.

Under our appreciation of the facts of this case, as shown by the record, defendant's plea of thirty years prescription acquirenda causa is not well founded. The question is not whether the acknowledgment on the part of Mr. Mitchell that he did not possess as owner, but merely with the consent or by sufferance of Mr. Foscue, the real owner, was sufficient to interrupt the running of the thirty years prescription. The question is whether the possession of Mr. Mitchell relied on by the defendants was in the character and under the claim of ownership throughout the entire prescriptive period of thirty years.

Article 3499 of the Civil Code provides: "The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith." And Article 3500 of the Civil Code provides: "The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner."

The cases are uniform in holding that the possession must not only begin but also that it must continue as owner and adverse to the true owner. Davis v. Young, 36 La.Ann. 374; City of New Orleans v. Shakspeare, 39 La.Ann. 1033, 3 So. 346; Laurent v. Laurent, 146 La. 939, 84 So. 212; Dew v. Hammett, 150 La. 1094, 91 So. 523.

Thus, in City of New Orleans v. Shakspeare, it was held that if it appears that the party who pleads the prescription of thirty years under Article 3500 of the Civil Code acknowledged at any time before the possession covers the space of thirty years, that the title of ownership was in his opponent, his plea is defeated, and his alleged ownership is destroyed.

Although good faith is not a necessary ingredient of the thirty years' prescription, uninterrupted and continuous possession as owner for the entire time necessary to prescribe is essential to acquire title by thirty years' possession.

Whatever may have been the character of Mr. Mitchell's possession of the seven acre tract at the outset, it was completely changed subsequently. The statements and conduct both of Mr. Mitchell and of Mr. Foscue show that Mr. Mitchell's possession was not as owner, but that it was precarious and by sufferance, under the exclusive title of ownership held by Mr. Foscue.

The possession of Mr. Mitchell, enjoying the occupancy and use of the land, with the permission or indulgence of Mr. Foscue, was, in fact and in law, the possession of Mr. Foscue. Civ. Code, art. 3490.

The codal article provides:

"The circumstance of having been in possession by the permission or through the indulgence of another person, gives neither legal possession nor the right of prescribing.

"Thus, those who possess precariously, that is, by having prayed the master to let them have the possession, do not deprive him thereof, but, possessing by his consent, they possess for him."

Defendants attempt to escape the effect of the facts showing Mr. Mitchell's intent was not to possess the seven acre tract as owner, but merely to possess it by the permission or through the indulgence of Mr. Foscue, by arguing that once prescription has begun to run in favor of an adverse possession, it cannot be interrupted other than by an express and unequivocal acknowledgment made for the purpose and with the intention of interrupting the running of prescription. The argument is founded on certain decisions of this court holding that in order to interrupt the running of prescription in the case of mineral servitudes, the acknowledgment must be clear and specific and made for the purpose and with the intention of interrupting the accruing prescription. The argument finally prevailed with the trial judge, resulting in the judgment in defendants' favor.

We do not think the argument is appropriate to this case. In any event, we think it overlooks the fact that a possessor of immovable property may evidence his intent not to possess as owner by acts or conduct indicating acknowledgment of the adverse title. Civ. Code, art. 3520; City of New Orleans v. Shakspeare, 39 La.Ann. 1033, 3 So. 346.

The acknowledgment which constitutes an interruption that may defeat the adverse possessor's claim of title is a factor separate and apart from the essential elements by which title may be acquired by adverse possession. The acknowledgment cannot be so restricted as to eliminate from the law one of the essential elements which must be established in order to acquire title by the mere possession for the time necessary to prescribe. Article3520 of the Civil Code merely established a means to prevent what might otherwise be the effect of such possession. The acknowledgment may be sufficiently broad to evidence the intent of the possessor no longer to possess as owner, or to show that his original intent was not to possess as owner. But this is not essential. The intention of the possessor not to possess as owner or his acknowledgment of title in another may be shown, and the effect of either is sufficient to defeat the claim of ownership by prescription. However, in this case, the evidence clearly shows both the intent of Mr. Mitchell not to possess as owner and his acknowledgment of Mr. Foscue's title. This is sufficient to defeat any claim of title by the widow and heirs of Mr. Mitchell in this case.

Nor can defendants maintain their claim of title under the prescription of thirty years as provided by Article 852 of the Civil Code. The prescription referred to in the codal article is a boundary prescription. Opdenwyer v. Brown, 155 La. 617, 99 So. 482. That prescription is not applicable to this case, since the irregular fence which was erected from time to time on the South end of the seven acre tract was never intended to serve and never served as a boundary or dividing line between the property of Mr. Mitchell and the property of Mr. Foscue. Moreover, there is no definite proof in the record that the fence was maintained for thirty years.

In passing upon the question of the good faith of the defendant lessees, the trial judge, in his written reasons accompanying his judgment in plaintiffs' favor on the first hearing of this case, had this to say, viz.:

"Next taking up the question of the good faith of the defendant lessees. The case of Nabors Oil Gas Company v. Louisiana Oil Refining Company, 151 La. 361, 91 So. 765, and Southwestern Gas Electric Company v. Nowlin, 164 La. 1044, 115 So. 140, furnish a full and complete discussion on the question of good faith, and the relative rights of the parties. Under these authorities, even if these lessees had been in good faith prior to the institution of this suit, they then became in bad faith, and cannot recover for anything from that time on except it be for the preservation of the property, or that enhanced the property and could not be removed. And they are likewise liable for the oil, gas, etc., from the property under the same restrictions.

"Counsel for defendants has cited the case of Jeems Bayou Fishing Hunting Club v. United States, 260 U.S. 561, 43 S. Ct. 205, 67 L. Ed. 402, to the effect:

"``The damages for removing oil from public land are the value of the oil removed after deducting the cost of drilling and operating the wells by means of which it was removed by persons in possession, claiming title in good faith.'"

"This is the way the syllabus reads, but the case itself is a little bit different in that it holds that the possessors were in good faith. The case is bottomed on the Mason Case, Mason v. United States, 260 U.S. 545, 43 S. Ct. 200, 67 L. Ed. 396, which immediately preceded it in the reports. In the Mason Case the possessors were held in good faith and the Court held that it was bound by the Civil Code of Louisiana. The case and the Code itself would be applicable if these lessees had drilled the well in good faith. But they drilled this well and incurred all the expense after this suit was brought, and in the main the expense was incurred after these lessees knew of the evidence in regard to the interruption, and if they saw fit to ignore the same, or to put their own interpretation on it, then they did so with their eyes open.

"The plaintiffs having elected not to keep the well, the question then comes up whether the well could be considered in the light of preserving the property, or enhancing its value in any way inasmuch as the well itself cannot be removed. Under the testimony, it was an unnecessary well, and a detriment rather than a benefit to the Foscue property. Therefore, the plaintiffs are not obligated to reimburse the defendant lessees for the cost of drilling, equipping and operating the well, but have the right to compel the removal of said well as far as possible, and all equipment and other structures."

We think the foregoing reasons of the trial judge on the question of the good faith of the defendant lessees are amply supported by the facts and the law of this case.

For the reasons assigned, the judgment appealed from is annulled, and it is now ordered that there be judgment in favor of plaintiffs and against defendants quieting plaintiffs in the possession of the property described in their petition, and enjoining defendants from disturbing plaintiffs in the quiet and peaceful possession of their said property.

It is further ordered that defendants institute suit against plaintiffs asserting their title to the said property within sixty days after this judgment shall become final, and that in default thereof, the defendants shall be thereafter forever barred from setting up any claim, right or interest in, to or on the said property, and that the instruments described in Articles 9, 10 and 11 of plaintiffs' petition be ordered cancelled and erased from the conveyance records of Caddo Parish, Louisiana.

It is further ordered that there be judgment in favor of plaintiffs and against the defendants, ordering the defendants to remove the well located on the property described in the petition, the equipment and appurtenances thereto belonging, together with all structures erected by defendants on the said premises, in such manner as not to injure or damage the premises and to leave them in a safe condition.

It is further ordered that there be rendered an accounting by defendants to plaintiffs, without deduction for the cost of drilling, equipping and operating the well on the property described in the petition, and that there be judgment in favor of plaintiffs and against defendants for such amount as the court may find they are entitled to, with legal interest thereon as provided by law, and this case be remanded for the purpose of said accounting and judgment.

It is further ordered that all costs of this suit be paid by the defendants.

FOURNET, J., absent.

O'NIELL, C.J., dissents.

On Rehearing.