C.S. Gaidry, Inc., and Schwing Management, LLC v. Low Land Construction Company, Inc., XYZ Insurance Company and Harry Bourg Corporation ( 2020 )

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.
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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, * STATE OF LOUISIANA
INC., ET AL
DOCKET NUMBER 180027 * DIVISION D
REASONS FOR JUDGMENT
On May 23, 2017, the C. S. Gaidry, Inc. ( hereinafter
referred to as Gaidry), and Schwing Management, LLC ( hereinafter
referred to as Schwing), filed this suit asserting a claim
against the defendants for removal of soil from land located in
the NW 1/ 4 of Section 10, T20S- R17E, in Terrebonne Parish in
Dulac, Louisiana.
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, HBC, and the unknown
insurer of Low Land. The plaintiffs claimed various items of
damage,
including claims for payment for the dirt removed and
devaluation of the immovable property.
In response to the plaintiffs, petition, HBC asserted
exceptions of prescription, nonjoinder of indispensable parties,
no cause of action, and no right of action, and otherwise
generally denied the plaintiffs, allegations. 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, initial
1
petition and generally denied the allegations against it. It
also asserted exceptions of prescription, no cause of action, and
no right of action. Low Land also reconvened against the
plaintiffs, seeking the value of improvements made by it to the
land in question during the course of its excavation of the
property. Further, Low Land asserted an alternative cross claim
against HBC for breach of the dirt removal contract.
In response to the alternative cross claim by Low Land
against HBC, HBC asserted an exception of prescription, and
generally denied Low Land' s claim. HEC further asserted a
reconventional demand against the cross claimant, Low Land,
seeking indemnification and defense. Low Land, in response to
this reconventional demand, asserted exceptions of no cause of
action and no right of action, and denied HBC1s claim of
indemnification and defense.
In separate pleadings, the plaintiffs denied all of the
allegations of HBC and Low Land in their respective
reconventional 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, hunting, and agriculture. By
answer filed July 20, 2017, HBC denied that it owed the
plaintiffs anything as a result of those leases.
On August 14, 2018, the plaintiffs attempted to amend
and supplement their original petition a second time by adding an
alleged insurer of Low Land, Beacon Insurance Company, as a
defendant. The plaintiffs, request to amend and supplement the
petition was 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) HBC and Low Land agreed that the excavated area or
dirt pit" created by Low Land in the NW 1/ 4 of Section 10, T20S-
2
R17E, consisted of 5. 416 acres, or 235, 910. 71 square feet, or 550
of the total pit area, all as reflected by a survey by M. P.
Hebert dated June 9, 2017.
2) HBC and Low Land agreed that the excavated area or
T20S-
dirt pit" created by Low Land in the SW 1/ 4 of Section 10,
R17E, consisted of 4. 436 acres, or 193, 234 square feet, or 45a of
the total pit area, all as reflected by a survey by M. P. Hebert
dated June 9, 2017.
3) HBC and Low Land agreed that the records from the
Terrebanne Levee District produced as a result of a public
records request dated March 31, 2017, were authentic.
4) HBC and Low Land agreed that the records from the
Louisiana Department of Wildlife and Fisheries regarding
alligator tags pertaining to the NW 1/ 4 of Section 10, T20S- R17E,
were 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) Gaidry and Schwing agreed that John Mattingly was a
land surveyor.
9) Gaidry and Schwing agreed that Leonard Chauvin was
a land surveyor.
10) Gaidry and Schwing agreed that Low Land paid HBC
4. 10 per cubic yard for 181, 861 cubic yards of dirt excavated
from the dirt pit.
In support of their claims, the plaintiffs offered
seventeen items of documentary evidence at trial, to wit:
a) Plaintiffs' Exhibit No. 1: Copy of the 900 page
H. C. Wurzlow Abstract No. 440, together with a March
27, 2017, report from the land abstractor, Daniel J.
Toups, based thereon, regarding the NW 1/ 4 of Section
10, T20S- R17E; two limited supplemental abstracts of
title prepared by Daniel J. Toups Land Title Services
a
hereinafter referred to as Toups Title) and identified
as no. 2017- 202 and no. 2018- 211, regarding the same
property; an extract of a list of documents from Toups
Title abstract no. 2017- 202; and the curriculum vitae
of Mr. Toups.
b) Plaintiffs, Exhibit No. 2: Copies of twelve
documents recorded in the records of the Clerk of
Court, Terrebonne Parish, Louisiana, referred to, among
others, in the Toups Title abstract no. 2018- 211.
c) Plaintiffs, Exhibit No. 3: Copies of thirty- eight
documents recorded in the records of the Clerk of
Court, Terrebonne Parish, Louisiana, referred to, among
others, in the Toups Title abstract no. 2017- 202.
d) Plaintiffs, Exhibit No. 4: Sixteen " Title
Sketches" prepared by Toups Title regarding " Adverse
Claimants" to the NW 1/ 4 of Section 10, T20S- R17E.
e) Plaintiffs' Exhibit No. 5: Copies of four leases
by Gaidry to Shannon J. Danos for terms of one year
each for the calendar years 2011, 2012, 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.
g) Plaintiffs, Exhibit No. 7: Certified copies of
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 10, T20S- R17E, and annual renewals
thereof through 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 1/ 4 of Section 10, T20S- R17E.
W Plaintiffs, 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.
j) Plaintiffs, Exhibit No. 10: 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 10, T20S- RI7E.
W Plaintiffs' Exhibit No. 11: Copy of an oil, gas,
and mineral lease dated November . 25, 1974, by Lillie
Lea McKnight Gaidry, et al., regarding land which
included the NW 1/ 4 of section 10, T20S- R17E.
1) Plaintiffs, Exhibit No. 12: Terrebonne Parish Tax
Assessor aerial photograph of the NW 1/ 4 of Section 10,
T20S- R17E, of unknown date.
m) Plaintiffs' Exhibit No. 13: 1998 Google Earth map
0
of the NW 1/ 4 of Section 10, T20S- R17E.
n) Plaintiffs' 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 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. Pettigrew under
date of April 10, 1942.
o) Plaintiffs' Exhibit No. 15: Copy of an act of
sale from Ashby W. Pettigrew to Harry Bourg dated April
10, 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.
p) Plaintiffs' Exhibit No. 16:
Copy of a Tobin map
depicting Section 10, T20S- R17E.
q) Plaintiffs' Exhibit No. 17: ( 1) A copy of a sale
from Dulac Planting & Manufacturing Company to Albert
P. Cantrelle, dated October 26, 1910, ( 2) a copy of
sale from Albert P.
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 Union
Sulphur Company, dated December 23, 1925, ( 5) a copy of
a portion of a sheriff' s sale from Ashland Planting and
Mfg. Co., Ltd., to Madison L. Funderburk, dated May 14,
1927, ( 6)
a copy of a sale with mortgage by Madison L.
Funderburk to A. W. Pettigrew, Incorporated, dated May
25, 1927, ( 7) a copy of a sale from A. W. Pettigrew,
Inc., to Ashby W. Pettigrew, dated May 12, 1931, ( 8) a
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,
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
Dawson), dated June 22, 1935, being a portion of
Plaintiffs' Exhibit Nos. 2 and 3, described
hereinabove, ( 11)
a copy of a cash sale by Bagley C.
Lirette to Harry Bourg and Ashby W. Pettigrew, dated
August 7, 1935, ( 12)
an additional copy of Plaintiffs'
Exhibit No. 14, and, ( 13)
an additional copy of
Plaintiffs' Exhibit No. 15.
At trial of this matter,
the defendant offered fifty-six
items of documentary evidence, to wit:
a) HBC Exhibit No. 1: Copy of a an act of mortgage
by Ashland Planting and Manufacturing Company, Limited,
in favor of Bank of Terrebonne and savings Bank, dated
March 8, 1924, a portion of which was included as item
9) of Plaintiffs' Exhibit No. 17, 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. LTD., docket number 9229, 17th Judicial
District Court, filed December 10, 1926.
5
c) HBC Exhibit No. 3: Copy of the judgment rendered
April 4, 1927, included in the record of the matter
described as HBC Exhibit No. 2, above..
d) HBC Exhibit No. 4: Copy of a sheriff' s sale from
Ashland Planting and Mfg. Co., Ltd., to Madison L.
Funderburk, dated May 14, 1927, included in the record
of the matter described as HBC Exhibit No. 2, above,
and a portion of which was included as item ( 5) of the
Plaintiffs' Exhibit No. 17, described hereinabove.
e) HBC Exhibit No. 5: Copy of a sale with mortgage
by Madison L. Funderburk to A. W. Pettigrew,
Incorporated, dated May 25, 1927, identical to
Plaintiffs' Exhibit No. 17, item ( 6), described
hereinabove.
f) HBC Exhibit No. 6: Copy of an oil, gas, and
mineral lease by A. W. Pettigrew, Inc., to H. H. Booker
with assignment to Alfred M. Barbe, dated March 19,
1928.
g) HBC Exhibit No. 7: Copy of a release of an oil,
gas,
and mineral lease by Alfred M. Barbe to A. W.
Pettigrew, Inc., dated October 4, 1928.
h) HBC Exhibit No. 8: Copy of a sale from A. W.
Pettigrew, Inc., to Ashby W. Pettigrew, dated May 12,
1931, identical to Plaintiffs`` Exhibit No. 17, item
7), described hereinabove.
i)
HBC Exhibit No. 9:
A portion of a copy of an
undated mineral lease by Ashby W. Pettigrew to Frank
Wurzlow.
j) HBC Exhibit No. 10: 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: 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 Dawson), dated June 22,
1935, being a portion of Plaintiffs, Exhibit Nos. 2 and
3, described hereinabove, and identical to Plaintiffs'
Exhibit No. 17, item ( 10), described hereinabove.
1) HBC Exhibit No. 12:
C.
Copy of a cash sale by Bagley
Lirette to Harry Bourg and Ashby W. Pettigrew, dated
August 7, 1935, identical to Plaintiffs' Exhibit No.
17, item ( 11), described hereinabove.
m) HBC Exhibit No. 13: Copy of a sheriff' s sale from
Ashland Planting & Manufacturing Company, Ltd., to
Bagley C. Lirette, dated August 3, 1935, identical to
Plaintiffs' Exhibit No. 17, item ( 9), described
hereinabove.
n) HBC Exhibit No. 14: Copy of a release of an oil,
gas, and mineral lease,
Pettigrew,
by Frank Wurzlow to Ashby W.
dated November 12, 1935.
o) HBC Exhibit No. 15:
Copy of an agreement by and
between Harry Bourg and Ashby W. Pettigrew, dated
February 19, 1938.
p) HBC Exhibit No. 16:
Copy of a transfer agreement
by and among the heirs of R. R. Barrow ( Irene F. Barrow,
Zoe B. Topping, Hallette B. Cole, and Jennie B.
Dawson), Christian G. Cole, and Harris Gagne,, dated
June 22, 1935.
q) HBC Exhibit No. 17: Copy of an act of sale from
Ashby W. Pettigrew to Harry Bourg dated April 10, 1942,
regarding property which included "[ ajll that portion
of Section 10 which lies West of the East bank of Four
Point Canal," without any designation of township or
range, identical. to Plaintiffs, Exhibit No. 15.
r) HBC Exhibit No. 18: 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. Pettigrew under
date of April 10, 1942, identical to Plaintiffs,
Exhibit No. 14.
s) HBC Exhibit 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 Terrebonne, State of Louisiana, dated October
8, 1965.
u) HBC Exhibit No. 21: Copy of a drainage servitude
deed by HBC in favor of The Terrebonne Parish Police
Jury, dated July 3, 1975.
v) HBC Exhibit No. 22: Copy of a judgment rendered
in the matter entitled Harry Bourg Corporation v. Nora
B. Breaux, docket number 91308, 32nd Judicial District
Court, rendered January 31, 1991, and signed February
20, 1991.
w) HBC Exhibit No. 23: 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.
y) HBC Exhibit No. 25: Copy of a right- of- way grant
by the State of Louisiana to HBC, dated October 17,
2013.
z) HBC Exhibit No. 26: Copy of a grant of servitudes
by and between HBC, Four Point Harbor, L. L. C., and
Terrebonne Levee and Conservation District, dated May
4, 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 cattle
grazing lease by HBC to Nora Bourg Breaux, dated August
20, 1968, ( 2) a cattle grazing lease by HBC to Nora
Bourg Breaux, dated January 1, 1980, and, ( 3) a
residential lease by HBC to Nora Bourg Breaux, dated
December 22, 1987.
7
cc) HBC Exhibit No. 29: Copy of a cattle grazing and
agricultural lease by HBC to Hilton Dumesnil, dated
August 20, 1968.
dd) HBC Exhibit No. 30: Copy of a cattle grazing
lease by HBC to Carl J. Bourg, apparently dated January
1, 1981.
ee) RBC Exhibit No. 31: Copy of an amendment to the
cattle grazing lease described as HBC Exhibit No. 30,
above, dated September 9, 1987, consisting of eleven
pages,
and recorded at entry number 812231 of the
records of the Terrebonne Parish Clerk of Court.
ff) HBC Exhibit No. 32: Copy of a lease by HBC to
Carl J. Bourg, dated September 11, 1988.
gg) HRC Exhibit No. 33: ( 1) Copy of a lease by HBC
to Herdis James Neil, 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. 34:
Copy of a lease agreement by
HBC to Herdis James Neil, 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, 2017, regarding a previous lease between
the parties, and, ( 2) a list of documents recorded with
the Terrebonne Parish Clerk of Court regarding Section
10 of T20S- R17E, Terrebonne Parish, Louisiana, between
March 18, 1924, and March 14, 2017.
jj) HBC Exhibit No. 35B: Summary of tax assessments
from 1924 to 1962 regarding property of Ashland
Planting & Manufacturing Co., Inc., A. W. Pettigrew,
Inc., Ashby W. Pettigrew, Harry Bourg, and HBC.
kk) HBC Exhibit No. 36: Twenty- five photographs
evidencing the placement of " posted" signs at various
locations by HBC.
11) HBC Exhibit No. 36A:
Five close- up photographs
of " posted"
signs by HBC.
mm) HBC Exhibit No. 37:
Seven photographs evidencing
historical fencing.
nn) HBC Exhibit No. 38: Six photographs of brickwork
associated with an old sugar mill,
oo) HBC Exhibit No. 39: Eight photographs evidencing
agricultural operations.
pp) 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 " Lake
Quitman Quadrangle," including lands in T20S- R17R,
Terrebonne Parish, Louisiana, and ( 2) Summary of tax
assessments from 1924 to 1962 regarding property of
1.1
Ashland Planting & Manufacturing Co., Inc., A. W.
Pettigrew, Inc., Ashby W. Pettigrew, Harry Bourg, and
HBC, said summary being identical to HBC Exhibit No.
35B, above.
ss) HBC Exhibit No. 43: Color -coded " Map of Lands
Leased to Hilton Dumesnil by Harry Bourg Corporation,"
dated August 20, 1968, depicting two specific parcels
of land in T20S- R17E, Terrebonne Parish, Louisiana.
tt) HBC Exhibit No. 44: Excerpt from a Tobin map
with reference to T20S- R17E, Terrebonne Parish,
Louisiana, depicting property " occupied by Harry
Bourg."
uu) HBC Exhibit No. 45: Copy of " Plat Showing a
Portion of Property Claimed by Harry Bourg Corporation
being the NW 1/ 4 of Section 10, T20S- R17E, Terrebonne
Parish, Louisiana," dated June 12, 2017,
prepared by
Morris P. Hebert, Inc.,
reflecting Google Earth Imagery
dated January 25, 2015, with aerial backing, added
transparency, and hand- written annotations.
vv) HBC Exhibit No. 46: Copy of " Map of a Portion of
Harry Bourg Corporation Lands and Lands of Harry Bourg
Corporation Leased to Nora Breaux, et al in Sections 3,
4, 9, 10 & 37, T20S- R17E, Terrebonne Parish,
Louisiana," dated November 30, 1988, revised December
12, 1988, prepared by T. Baker Smith & Son, Inc.
ww) HBC Exhibit No. 47: Copies of survey records of
T. Baker Smith & Son, Inc.
xx) HBC Exhibit No. 48: Original records of HBC
evidencing payment of damages by Electronic
Explorations, Inc., to HBC in 1961- 1962, for " shooting
damages" on "
Land of Harry Bourg."
yy) HBC Exhibit No. 49: Handwritten records of Nora
Breaux regarding land leased from HBC.
zz) HBC Exhibit No. 50: Copies of selected business
records of HBC leases from 1968 to 1993.
aaa) HBC Exhibit No. 51: Copies of deer hunting
permit agreements by HBC as grantee, to various
grantees, from 2004 to 2017.
bbb) HBC Exhibit No. 52: ( 1) Copy of " Dirt Contract"
dated April 9, 2014, by HBC, as seller, and Low Land,
as buyer, and, ( 2) copy of " Supplemental and Amended
Dirt -Contract"
between the same parties dated February
26, 2015.
ccc) HBC Exhibit No. 56: Copy of a June 19, 2018,
report from the land abstractor, Gordon White, with
attachments thereto.
ddd) HBC Exhibit No. 57: Copy of the March 27, 2017,
report from the land abstractor, Daniel J. Toups,
regarding the NW 1/ 4 of Section 10, T20S- R17E, together
with a Abstractor' s Opening Note," from
copy of " the
supplemental abstract of title by Toups Title
identified as no. 2017- 202, and a copy of an excerpt
from a Tobin map with reference to T20S- R17E,
Terrebonne Parish, Louisiana, depicting property
occupied by Harry Bourg," being the same Tobin map
identified as HBC Exhibit No. 44, described
hereinabove, and all identical to portions of
Plaintiffs' Exhibit No. 1, described hereinabove.
eee) HBC Exhibit No. 58: Copy of a May 24, 2018,
Expert Report" from the land surveyor, John C.
Mattingly, with exhibits attached, to wit:
Exhibit 1: Identical to HBC Exhibit No. 45,
described hereinabove, without the Google Earth
Imagery dated January 25, 2015, added
transparency, or hand- written annotations.
Exhibit 2: Identical to HBC Exhibit No. 45,
described hereinabove, without the Google Earth
Imagery dated January 25, 2015, 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, and old sugar mill
brickworks in Section 10, T20S- R17E, Terrebonne
Parish, Louisiana.
Exhibit 4. 1: Identical to HBC Exhibit No. 36,
described hereinabove.
Exhibit 4. 2: Identical to HBC Exhibit No. 37
and HBC Exhibit No. 38, described hereinabove.
Exhibit 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 to HBC Exhibit No. 46.
Exhibit 14: Copy of undated " Survey Map NE 1( 4
10
T20S- R17E Terrebonne Parish, Louisiana,"
prepared by The Louisiana Land and Exploration
Houma,
Company, Civil Engineering Department,
Louisiana.
Exhibit 15: Survey " Field Note Records,"
neither referred to nor explained in the expert
2018,
report of John C. Mattingly dated May 24,
to which this Exhibit 15 is attached as part of
HBC Exhibit No. 58.
Exhibit 16: Copies of various agricultural and
cattle leases, and other documents, consisting
of documents ( 1) identical to a portion of the
map constituting Exhibit 14 attached as part of
HBC Exhibit No. 58, with the addition of
handwritten designated tracts, ( 2) identical to
HBC Exhibit No. 22, ( 3) identical to part of
HBC Exhibit No. 27, ( 4) identical to HBC
Exhibit No.identical to HBC Exhibit
28, ( 5)
No. 29, ( 6) identical to HBC Exhibit No. 30,
7) identical to HBC Exhibit No. 31, but
including a total of twenty pages ( instead of
eleven pages), and apparently including a draft
agreement and/ or draft corporate resolution,
8) identical to HBC Exhibit No. 32, ( 9)
identical to HBC Exhibit No. 33, ( 10) identical
to HBC Exhibit No. 34, ( 11) not introduced into
evidence as a separate exhibit of HBC, but
being a copy of a lease agreement by HBC to
Herdis James Neil, dated April 21, 2017, ( 12)
identical to part of HBC Exhibit No. 35A, and,
13) hand -colored sketch of tracts of land in
Section 10, T20S- R17E, Terrebonne Parish,
Louisiana.
During the course of the trial, the court received
evidence by way of the testimony of a number of witnesses called
by the parties. Seven witnesses testified on behalf of the
original plaintiffs Gaidry and Schwing, including:
a) Daniel J. Toups, an expert land title abstractor
and author of the report and two supplemental title
abstracts identified as parts of Plaintiffs, Exhibit
No, 1;
b) Roger Webb, a Gaidry shareholder who testified as
to his historic use of the land in the NW 1/ 4 of
Section 10, T20S- R17E of Terrebonne Parish;
c) Shannon J. Danos, a commercial fisherman who
testified as to his historic use of the land in the NW
1/ 4 of Section 10, T20S- R17E of Terrebonne Parish,
under the authority of Gaidry;
d) Rebecca Gaidry Richey, Gaidry president and
shareholder, who testified about her management of
Gaidry properties, including the NW 1/ 4 of Section 10,
T20S- R17E of Terrebonne Parish;
e) Wilson " Doc" Gaidry, Jr., seventy- nine year old
Gaidry officer and shareholder, who testified regarding
the historic use and management of the NW 1/ 4 of
Section 10, T20S- R17E of Terrebonne Parish, by Gaidry
and members of the C. S. Gaidry family;
f) Stacie Rabon, the manager of Schwing, who testified
11
regarding its management of the NW 1/ 4 of Section 10,
T20S- R17E of Terrebonne Parish; and,
g) Leo Bickham, a member of Schwing who testified
regarding his use of the NW 1/ 4 of Section 10, T20S-
R17E of Terrebonne Parish, under the authority of
Schwing.
The following individuals testified at trial on behalf
of the original defendants HBC and Low Land, including:
a) Leonard J. Chauvin, Jr., a Louisiana registered
land surveyor, who testified with particular reference
to HSC Exhibit No. 46, a survey map prepared by him;
b) John Mattingly, a Louisiana registered land
surveyor, and author of the report identified as HBC
Exhibit No. 58;
c) Gordon White, an expert land title abstractor and
author of the report identified as HBC Exhibit No. 56;
d) Herdis Neil, 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 of HBC;
e) Nolan Bergeron, seventy- four year old grandson of
Harry Bourg, who testified about the historic use of
the NW 1/ 4 of Section 10, T20S- R17E of Terrebonne
Parish by HBC and the Harry Bourg family; and,
f) Ronnie Bergeron, grandson of Harry Bourg and
president of HBC, who testified regarding the historic
use of the NW 1/ 4 of Section 10, T20S- R17E of
Terrebonne Parish,
by HBC and the Harry Bourg family,
and his management of HBC.
The court has thoroughly reviewed in great detail all of
the pleadings, exhibits, testimonial evidence, and memoranda
offered by the parties, and has thoroughly considered the
arguments of counsel. The court has rendered judgment in
accordance with these reasons 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, Terrebonne Parish, as set forth by the testimony
and report of Gordon White, the expert land title abstractor
called at trial by HBC.
By sheriff' s sale on May 14, 1927, recorded May 25,
1927, Madison L.
Funderburk acquired record ownership
of " the North West Quarter ( NWZ/ 4)... of Section Ten
10),
containing one hundred and fifty nine and sixty
hundredths ( 159. 60) ... acres...
being in Township Twenty
12
20) South, Range Seventeen ( 17) East, S. E. D. ( La) West
of the Miss. River," from Ashland Planting and Mfg.
Co., Ltd. ( See HBC Exhibit Nos. 2 and 4, and item ( 5)
of Plaintiffs' Exhibit No. 17).
1927, and
By act of sale with mortgage dated May 25,
recorded that same day, Madison L. Funderburk conveyed
as described, to A. W. Pettigrew,
the same property,
incorporated, a/ k/ a A. W. Pettigrew, Inc. ( See HBC
Exhibit No. 5, and item 6 of Plaintiffs' Exhibit No.
17.)
By act of sale dated May 12, 1931, and recorded May 13,
1931, A. W. Pettigrew, Inc., conveyed the same property,
as described, to Ashby W. Pettigrew. ( See HBC Exhibit
No.' 8, and item 7 of Plaintiffs' Exhibit No. 17.)
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 portion of the North- East quarter
NE1/ 4) of Section 10., T. 20., S. R. 17
East, which lies East of Four 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
11. T. 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 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...."
See HBC Exhibit No. 10, and item 8 of Plaintiffs'
Exhibit No. 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 that portion of Section 10 which lies
West of the East bank of Four -Point Canal."
This act of sale contained the following 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. 20 S. R. 17E, whether lying on the West side of [ or] the
East side of the aforesaid Four -Point Canal,
and, if it should hereafter be found that
said Ashby W. Pettigrew owns any property in
said Sections 10, 15, 22 and 27 which has not
been included in the within sale, then and in
that event the said Ashby W. Pettigrew
obligates himself to 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 that portion of Section: 10 which lies
West of the East bank of Four Point Canal."
Being the same property purchased by Harry
Bourg from Ashby W. Pettigrew under date of
April 10, 1942."
See HBC Exhibit No. 18 and Plaintiffs' Exhibit No.
14.)
Gaidry andSchwinq' s Record Title
According to Daniel J. 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 Plaintiffs' Exhibit No. 1, H. C. Wurzlow
Abstract No. 440, page 6.)
By judgment rendered June 25, 1866, and recorded
November 19, 1869, the community of acquets and gains
existing between Robert Ruffin Barrow and his wife,
Volumnia Hunley Barrow, was terminated. ( See
Plaintiffs' Exhibit No. 1, H. C. Wurzlow Abstract No.
440, page 8.)
By tax sale dated November 19, 1873, and recorded
December 12, 1873, total ownership of the NW 1/ 4 of
Section 10, T20S- R17E, Terrebonne Parish,
including the
interest of Robert Ruffin Barrow acquired from Elisha
Stevens on June 5, 1845, was acquired by Peter Berger
and Frederick Bogardus. ( See Plaintiffs' Exhibit No.
1, H. C. Wurzlow Abstract No. 440, page 852.)
By confirmation of tax sale dated June 3, 1874, and
recorded August 4, 1874,
title to the property
described above was confirmed in Peter Berger and
Frederick Bogardus. ( See Plaintiffs' Exhibit No. 1,
H. C. Wurzlow Abstract No. 440, page 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. ( See Plaintiffs' Exhibit No. 1, H. C. Wurzlow
Abstract No. 440, page 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. Winder, one- half to each.
14
See Plaintiffs' Exhibit No. 1, H. C. Wurzlow Abstract
No. 440, page 887.)
By counter letter dated November 2, 1883, and recorded
November 12, 1883, Van P. Winder acknowledged that his
one- half interest in the property described above " was
only nominally placed in his name," and that it "was
really the paraphernal property of " Mrs. Volumnia R.
Barrow wife of William J. Slatter." ( See Plaintiffs'
Exhibit No. 1, H. C. Wurzlow Abstract No. 440, page
89G.)
By judgment of possession signed January 15, 1941, in
the matter of Succession of Mrs. V. R. Woods Widow of
T. Albert Woods,
and recorded January 16, 1901, Mrs.
Clara K. Slatter,
wife of Wilson J. Gaidry, and Miss
Annis Slatter were recognized as the sole heirs of Mrs.
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, and
recorded that same day, Miss Irene Barrow, Mrs. Zoe
Barrow Topping, Mrs, Hallette Barrow Cole, and Mrs.
Jennie Barrow Dawson agreed, for consideration
received,
that the ownership of Section 10, T20S- R17E,
Terrebonne Parish, belonged to A. W. Pettigrew. ( See
Plaintiffs' Exhibit No. 1, H. C. Wurzlow Abstract No.
440, page 160, Plaintiffs' Exhibit Nos. 2 and 3,
Plaintiffs' Exhibit No. 17, item ( 10), and HBC Exhibit
No. 11.)
By judgment of possession signed April 14, 1938, in the
matter of Succession of Robert Ruffin Barrow, and
recorded May 14, 1938, Mrs. Jennie Tennant, widow of
Robert Ruffin Barrow, was recognized as owner of one-
half of all community property, and usufructuary of the
deceased' s one- half of community property and all
separate property, and Miss Irene F. Barrow, Mrs. Zoe
Barrow, widow of Robert Topping, Mrs. Harriette Barrow,
wife of Christian Grenes Cole, and Mrs. Jennie Barrow,
wife of Harris P. Dawson, were recognized as 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
Robert Ruffin Barrow. (
See Plaintiffs' Exhibit No. 1,
H. C. Wurzlow Abstract No. 440, page 156.)
By affidavit of heirship dated February 17, 1947, and
recorded February 19, 1947, Hallette Barrow, wife of C.
Grenes Cole, confirmed the death of her mother, Mrs.
Jennie Tennent, widow of Robert Ruffin Barrow, on May
27, 1942,
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' Exhibit No. 1, H. C. Wurzlow Abstract No.
440, page 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 J. Toups during their court
testimony, the following relevant conclusions can be drawn.
As a result of the April 30, 1879, sale by John Berger
15
and Peter Berger to Robert R. Barrow and Van P. Winder, and the
subsequent November 2, 1883, counter letter by Van P. Winder, the
NW 1/ 4 of Section 10, T20S- R17E in Terrebonne Parish was owned
one- half by Robert R. Barrow and one- half by Mrs. Volumnia R.
Barrow 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. Pettigrew on May 1, 1934, and April
10, 1942.
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, Harry Bourg, the
daughters of Robert Ruffin Barrow, 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, and through them,
to Gaidry and Schwing,
respectively. 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, the
plaintiffs allege that Daniel J. Toups, their " expert in the
field of abstracting titles," contends that the plaintiffs are
the current owners of the NW 1/ 4 of Section 10." Mr. Toups'
letter of March 27, 2017,
included as part of Plaintiffs' Exhibit
No. 1 belies such a conclusion. The following excerpt from Mr.
Toups'
letter comports with the finding of the court:
16
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
captioned property. C. S. 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 and Mfg. Co., Ltd.,
by sheriff' s sale on May 14, 1927. The plaintiffs allege the
property description reflected by the sheriff' s sale repeated an
error made in the sale from Dulac Planting & Manufacturing
Company to Albert P. Cantrelle, dated October 26, 1910, and which
was carried through juridical acts thereafter, including the sale
from Albert P.
Cantrelle to Ashland Planting and Manufacturing
Company, Limited, dated February 16, 1917,
and the mortgage by
Ashland Planting and Manufacturing Company, Limited, in favor of
Bank of Terrebonne and Savings Bank, dated March 8, 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...
being in Township Twenty ( 20) South, Range
Seventeen ( 17) East, S. E. D. ( La) West of the Miss. 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, at the time it sold the same to Albert P.
Cantrelle. Instead, it owned the NE 1/ 4 of Section 10, T20S- R17E
containing 159. 60 acres. As a result, 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, T20S-
R17E,
and did not validly convey the same to Albert P. Cantrelle.
However, the plaintiffs"
argument overlooks the compromise
17
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 thereof. However, in defense to the
plaintiffs' claims, HBC has asserted, 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. art. 3446.)
Ownership and other real rights in immovables may be acquired by
the prescription of ten years ( La. C. C. art. 3473) or the
prescription of thirty years ( La. C. C. art. 3486.) All private
things, including land, are susceptible of prescription, unless
otherwise excluded by specific legislation. ( La. C. C. art.
3485.)
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, ( 2) good faith, and ( 3)
18
just title. ( La. C. C. art. 3475.) There is no requirement of
good faith or just title to acquire the ownership of immovable
property based on possession for thirty years. ( La. C. C. art.
3486.) However, 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. ( La.
C. C. art. 3488.)
Possession is defined as the detention or enjoyment of a
corporeal thing, such as land. ( La. C. C. 3421). In order to
acquire possession for the purpose of acquisitive prescription,
one must ( 1) intend to possess as owner and ( 2) take corporeal
possession of the land in question, that is, he must exercise
physical acts of use, detention, or enjoyment over the land.
La. C. C. art. 3424 and 3425.) One is presumed to intend to
possess as owner unless " he began to possess in the name of and
for another." ( La. C. C_ art. 3427.)
Possession for the purpose of acquisitive prescription
must begin with corporeal possession, and it must be continuous,
uninterrupted, peaceable, public, and unequivocal. ( La. C. C.
art. 3476.) Acquisitive prescription does not run in favor of a
precarious possessor, i. e.,
one who possesses without any intent
to own another' s interest, such as a lessee. Under our law, a
co- owner is a precarious possessor. ( La. C. C. arts. 3477 3437
and 3439.) A precarious possessor is presumed to possess for
another even though he actually intends to possess for himself.
La. C. C. art. 3438.) This is a rebuttable presumption ( La. C. C.
art. 3438, comment ( b)), and a co- owner or his universal
successor may commence to prescribe 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. ( La.
C. C. arts. 3478 and 3439.) 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 " may mark the commencement of
prescription.,, ( La. 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. ( La.
C. C. art. 3479.)
Good faith" in the context of acquisitive prescription
of ten years is defined as the possessor' s reasonable belief " in
light of objective considerations, that he is the owner of the
thing he possesses.,, ( La. C. C. art. 3480.) Good faith is
presumed and neither error of fact nor law defeats the
presumption. The presumption is rebutted " on proof that the
possessor knows, or should know, that he is not owner of the
thing he possesses.,, ( La. C. C. art. 3481.)
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. art. 3482,..)
Louisiana Civil Code article 3483 defines " just title"
with regard to acquisitive prescription as follows:
A just title is a juridical act, such as a sale,
exchange, or donation,
sufficient to transfer ownership
or another real right. The act must he written, - valid
in form,
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, one has possession only
of the area he actually possesses. ( La. 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, he
acquires a just title to the remaining parts. Thus, 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. Delacroix Corporation v. Perez, 794 So. 2d 862 ( La.
App. 4 Cir. 11/ 08/ 40), writ denied, 782 So. 2d 635 ( La. 1/ 26/ 01).
However,
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. As pointed
out above,
the good faith of one who possesses as owner is
presumed,
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. Pettigrew
on April 10, 1942, is presumed. 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, T20S-
R17E upon the sale to him by Pettigrew. 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,
and in addition to its burden of proving good
faith,
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 Dean, 901
So. 2d 1188 ( La. App. 4 Cir. 4/ 13/ 05):
A just title is a juridical act, such as a sale,
sufficient to transfer ownership, which must be in
proper form and be properly recorded. La. C. C. art.
3483. Comment ( b) of the 1982 Revision Comments to
Civil Code article 3483 states that the law merely
requires an act which,
owner,
if it were executed by the true
would have conveyed ownership.
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, 1927, by which the
property of Ashland Planting and Mfg. Co., Ltd., was conveyed to
Madison L. Funderburk;
b)
Act of sale dated May 25, 1927, from Madison L.
Funderburk to A. W. Pettigrew, Incorporated, a/ k/ a A. W.
Pettigrew, Inc.;
c)
Act of sale dated May 12, 1931, from A. W. Pettigrew,
Inc., to Ashby W. Pettigrew;
d)
Act of sale dated May 1, 1934, from Ashby W.
22
Pettigrew to Harry Bourg;
e) Act of sale dated April 10, 1942, from Ashby W.
Pettigrew to Harry Bourg; and,
f) Act of 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. As
explained hereinabove, these acts did not transfer merchantable
title to or ownership of the undivided one- half interest of the
NW 1/ 4 of Section 10, T20S- R17E,
presently owned by Gaidry and
Schwing, to Harry Bourg or HBC. A just title is a juridical act
intended to have legal consequences. It is an act translative of
ownership, such as a Sale.
A just title need not be derived from
the true owner because if that were the case, acquisitive
prescription would not be an issue. The law merely requires an
act which,
if it had been executed by the true owner, would have
conveyed ownership. ( La. C. C. art. 3483, comment ( b)-)
At issue in this case is the ownership of the NW 1/ 4 of
Section 10, T20S- R17E in Terrebonne Parish. Based on the
evidence offered at trial,
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, on the west
by Section 9 Of T20S- R17R, and on the north by Sections 3 and 37
of T20S- R17E. The Four Point Canal, sometimes referred to as the
Four Point Bayou,
and the adjacent Four Point Road on the western
side of the canal,
almost completely traverse the NW 1/ 4 of
Section 10 on its eastern side, entering on the east from the
northerly part of the NE 1/ 4 of Section 10, and exiting onto the
eastern side of the SW 1/ 4 of Section 10.
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 NW 1/ 4 of Section 10, there is located 55%, or 5. 416
acres, of the excavated area or " dirt pit' s which has led to the
instant 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.
The act of sale from Ashby W. Pettigrew to Harry Bourg
dated May 1, 1934, purported to convey to Harry Bourg, among
other things, the following described property:
All that portion of the North- East quarter ( NEI/ 4) of
Section 10., T. 20., S. R. 17 East, which lies East of
Four 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 11. T. 20.,
S. R. 17 E., and on the South by the South -East quarter
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
same township and range. Therefore, this act, to the extent it
relies on this property description, cannot be said to have been
translative of title. However, this act of 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, described above, is located east of Four Point
Canal and west of Bayou Sale. In 1934, no recorded interest in
that relatively small portion of property was owned by Ashby W.
Pettigrew. On May 1, 1934, at the time of the sale to Harry
Bourg, that portion of the NW 1/ 4 of Section 10, as well as the
entire remainder of the NW 1/ 4 of Section 10, was owned one- half
by the heirs of Volumnia Roberta Barrow Slatter Woods ( Clara K.
Slatter and Annis Slatter), and one- half by the heirs of Robert
Ruffin Barrow ( Irene F. Barrow, Mrs. Zoe Barrow Topping, Mrs.
Harriette Barrow Cole, and Mrs. Jennie Barrow Dawson). Due to
the lack of a more specific description, and because Ashby W.
24
Pettigrew did not, in fact, own any portion of the NW 1/ 4 of
Section 10, T20S- R17E, on May 1, 1934, 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. For
purposes of acquisitive prescription, 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 10, T20S- R17E,
located west of the east bank of Four
Point Canal.
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, a relatively small
part of the NW 1/ 4 of Section 10, but a part particularly
important to this case, 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. Because of
the language from the act quoted below, however, the court 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. 20
S. R. 17 E, whether lying on the West side of [ or] the
East side of the aforesaid Four -Point Canal, and, if it
should hereafter be found that said Ashby W. Pettigrew
25
owns any property in said Sections 10, 15, 22 and 27
which has not been included in the within sale, then
and in that event the said Ashby W. Pettigrew obligates
himself to sign and execute an act of correction
transferring the ownership of such property to the said
Harry Bourg."
On April 10, 1942, Ashby W. Pettigrew did own an
undivided one- half interest in and to the entirety of the NW 1/ 4
of Section 10, T20S- R17E, both on the east and west sides of the
Four Point Canal, 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 reason, the court
finds that the act of sale dated April 10, 1942, was translative
of title,
at least to the extent of Ashby W, Pettigrew' s
undivided one- half interest therein. The 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
affirmative. As pointed out hereinabove, 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, he acquires a just title to the
remaining parts. Thus,
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. ( La. C. C. art. 3484, comment ( b).)
The April 10, 1942,
act of sale from Ashby W. Pettigrew
to Harry Bourg, does not purport to convey merely an undivided
interest in and to any of the properties described therein. A
fair reading of the act, which was a sale with all legal
warranties,
does not suggest that Ashby W. 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 10, 1942."
Ashby W.
Clearly, this act of sale conveyed the largest portion
of the NW 1/ 4 of Section 10, T20S- R17E, referred to above, and
owned by Harry Bourg, to HBC. However, the act of sale in all of
its myriad of property descriptions contained therein, does not
mention any other property located in Section 10, specifically
the NW 1/ 4 thereof. In order to find that the remaining portion
of the NW 1/ 4 of Section 10, i. e., the relatively small portion,
was conveyed to HBC by Harry Bourg on April 7, 1955, and that the
act, therefore, constitutes " just title," the court would have to
conclude that the phrase, ""[ b] eing the same property purchased by
Harry Bourg from Ashby W. Pettigrew under date of April 10,
1942, 1" in the 1955 act of sale, included the conveyance of the
smaller portion of the NW 1/ 4 of. Section 10 on the east side of
Four Point Canal, purchased by Harry Bourg by way of the
important additional language° referred to above and included in
the April 10, 1942, act of sale.
The court finds 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 on both sides of the east bank of Four Point Canal,
and just title to the other undivided one- half interest. The
court is persuaded in this conclusion by the precise language
used in the 1955 act, to wit, ""[ bleing the same property
purchased," rather than language that could have been used, such
as "
being part of the same property purchased." As the
particular successor of Harry Bourg in the 1955 act of sale, HBC
is entitled to rely on the " just title," in favor of Harry Bourg
created by the act of sale to him dated April 10, 1942.
For the foregoing reasons, the court finds that HBC has
established by a preponderance of the evidence the necessary
prerequisites of just title ( as distinguished from good or
merchantable title) and good faith to support a claim of
acquisitive prescription often years with regard to the NW 1/ 4
27
of Section 10, T20S- R17E, 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
and Schwing. The bulk of the evidence offered at trial by HBC
dealt with this issue.
As noted hereinabove, possession, for the purpose of
acquisitive prescription, must begin with corporeal possession,
and it must be continuous, uninterrupted, peaceable, public, and
unequivocal. The possessor must intend to possess as owner,
that is, for himself and not with an intent to possess for
someone 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 co-
owners in the property by possession of the same based on overt
and unambiguous acts of possession evidencing its intent, and the
intent of its ancestor in title, Harry Bourg, to do so.
In an effort to prove this intent to possess the NW 1/ 4
of Section 10, T208- R17E, adversely to its co- owners, Gaidry and
Schwing, HBC offered a variety of documentary evidence and
testimony at trial on this issue. All of this evidence, which
has been carefully analyzed by the court, falls into six distinct
categories, to 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,
36A, and 58. These documents together with the testimony of
Roger Webb, Shannon J. Danos, Wilson " Doc" Gaidry, Jr., Leonard
J. Chauvin, Jr., John Mattingly, Herdis Neil, Nolan Bergeron, and
Ronnie Bergeron confirm that signs were posted as early as the
late 1950' s, after the act of sale to HBC by Harry Bourg. The
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 of Section 10,
and north and south of that property. At the time of 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,
Posted Harry Bourg Corp. 7477 Grand Caillou Rd. Dulac, LA.
70353."
The court does not believe that signs lake the ones
described above were posted anywhere else on the approximately
160 acres of the NW 1/ 4 of Section 10. other than the Four Point
Canal and the adjacent Four Point Road, there were no convenient
methods of ingress to the property. it is reasonable to conclude
that the signs were intended to aid in the prevention of
trespassing upon the land by passersby on the road. The signs
were visible to the public. This was confirmed by Roger Webb, a
witness for the plaintiff, who visited the property as early as
1986, and Wilson Gaidry, 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 of them was ever
asked to leave the property by anyone, and that their 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 the plaintiffs.
Both 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 Bergeron, the seventy-
the Gaidry and Schwing interests.
four year old grandson of Harry Bourg, testified that he did not
know anyone else co -owned the property with HBC.
Mr. Gaidry, a resident of Terrebonne Parish, and a
former president of Gaidry, testified that he was involved in the
management of the Gaidry and Schwing properties, including the NW
1/ 4 of Section 10, almost all of his life. He testified that he
has visited the property at issue at least twice a year since
1955, primarily to hunt and trap. It is apparent that Mr. Gaidry
generally accessed the property via the western side, by boat
through the low- lying areas historically prevalent on the western
side of the NW 1/ 4 of Section 10 and other properties adjacent
thereto. There was no evidence received at trial to 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. The evidence establishes that the home
of Nora Bourg Breaux, the daughter of Harry Bourg, and her
husband Hughes Joseph Breaux, was located well north of the NW
1/ 4 of Section 10, in adjacent Section 37 of T20S- R17E. The
evidence also confirms that the mobile home occupied as a
residence by either Carl Bourg, Harry Bourg' s grandson, or Carl
J. Bourg' s son, Jason, on the east side of Four Point Canal, was
not in the NW 1/ 4 of Section 10, but in the adjacent SW 1/ 4 of
Section 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
times. The cultivation of sugar cane was primarily in the areas
of higher elevation relatively unaffected by water and marshy
land conditions, mainly along the east and west sides of Four
Point Road. The cattle grazing operations were more extensive,.
extending at times to the western and northern section line
boundaries, and necessarily included the need to install fencing
on and beyond the property.
The documentary evidence in support of the court' s
findings consist of HBC Exhibits 27, 28, 29, 30, 31, 32, 33, 34,
35A, 37, 38, 39, 40, 41, 43, 46, 49, 50, and 5B. These
documents, along with the testimony of Wilson " Doc" Gaidry, Jr.,
Leonard J. Chauvin, Jr., John Mattingly, Herdis Neil, Nolan
Bergeron, and Ronnie Bergeron, support the following conclusions
by the court.
The eight aerial photographs spanning the years 1953-
1996 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 period. From 1953 to 1956, cultivable fields developed over
a substantial part of the southern part of the NW 1/ 4, and this
condition appears 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 Section 10 through at least 1987, on both sides of Four
Point Canal, and at least through 1996 on the eastern side of the
canal. These topographical 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 Joseph Breaux, the son- in- law of Harry Bourg
died in 1965,
it was reported by way of his succession proceeding
that he owned significant sugar cane farming equipment, standing
sugar cane crops, 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. It appears that prior to his death, he
farmed the NW 1/ 4 of Section 10 on the west side of the Four
Point Road with the permission of Harry Bourg or/ and HBC,
certainly since at least 1956. Based on the satellite imagery of
the property in 1965, it appears this farming by Mr. Breaux
continued at least until his death. The evidence the court
received also confirms that prior to his death, Mr. Breaux and
his wife, Nora Bourg Breaux, used the same portions of the NW 1/ 4
of Section 10 to graze cattle. Except for the time between 1968
and 1978, 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, it
appears that sometime between 1981 and 1984, someone 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. This canal,
along with fencing and another drainage canal, all located
largely outside of the NW 1/ 4 of Section 10, served to prevent
cattle from escaping their complete enclosure. 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 a
short distance along Four Point Road itself to the southern
boundary of the quarter section. This fencing, estimated by
32
Leonard J. Chauvin, Jr., to have been ten to twenty- five years
and
old in 1988, obviously was intended to contain the cattle Mr.
Mr.
Mrs. Breaux were running on the property prior to that time.
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.
As a cattleman himself, he knew Mr. and Mrs. Breaux were in the
cattle business. Both Leonard J. Chauvin, Jr., and John
Mattingly testified that all fencing at issued in this case was
designed to keep cattle inside the fence, not to keep people
outside the fence.
On February 20, 1991, a judgment was rendered by the
32nd Judicial District Court as a result of litigation by and
between HBC and Mrs. Breaux. Apparently, there was a
disagreement between Mrs. Breaux and HBC as to the northern and
southern boundaries of property subject to a " surface lease"
dated January 1, 1980, between' the parties. The judgment
recognized the northern boundary of the lease along a drainage
ditch in Section 37, north of the NW 1/ 4 of Section 10, all in
T20S- R17E. The judgment recognized the southern boundary of the
lease along a fence line located entirely in the SW 1/ 4 of
Section 10. Importantly, even though the judgment never mentions
the NW 1/ 4 of Section 10, the map attached to the judgment along
with the written description of the northern and southern
boundaries, leave no doubt that the entirety of the NW 1/ 4 of
Section 10 west of Four Point Canal, and other lands of HBC, were
subject to a January 1, 1980 " surface lease" from HBC to Mrs.
Breaux. This January 1, 1980, " surface lease" appears to be a
January 1, 1980, cattle grazing lease from HBC to Mrs. Breaux,
with a term of ten years. In turn, that January 1, 1980,
document appears to be a successor to an August 20, 1968, lease
of similar character. Both the August 20, 1968, and January 1,
1980, leases, declared that " this lease shall not be recorded in
the Conveyance or other public records of the Parish of
Terrebonne." The court was furnished copies of these two leases
33
and has reviewed the same in connection with the February 20,
1991, judgment.
In 1968, by recorded lease, 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
for an additional five years. The rental was declared to be one-
sixth of all the sugar cane produced and harvested. Based on a
review of this document, 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 10, T20S- R17E on the west side of Four
Point Canal, and all the land in the NW 1/ 4 of Section 10, T20S-
R17E, located on the east side of Four Point Canal. The 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 of the NW 1/ 4 of Section 10 on the east side of the
canal, as 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, age 71, who
currently uses the property for cattle grazing, one can 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, T20S- R17E, and the
property was leased for up to ten years to Hilton Dumesnil for
the purpose of cattle grazing and sugar cane cultivation,
By agreement dated January 1, 1980, HBC leased to Carl
J. Bourg, Harry Bourg' s grandson, property on the east sidelof
Four Point Canal for cattle grazing for ten years. Based on a
subsequent amendment to this lease agreement, dated September 9,
1987,
it appears the original cattle grazing lease included all
of the NW 1/ 4 of Section 10 located on the east side of Four
Point Canal. The 1987 amendment expanded the lease to permit use
of the property for agricultural purposes, hunting and trapping
purposes,
as well as for the purpose of cattle grazing.
While the 1987 amendment to the original lease was
contemporaneously recorded, recordation of the 1980 original
lease was expressly forbidden. The 1987 amendment references
Carl J. Bourg' s father, Albert Bourg, Harry Bourg' s only son, and
indicates that he was a previous lessee of the property described
in the amendment.
HBC offered at trial of this matter, another contract of
lease to Carl J. Bourg, dated September 11, 1988, and effective
for ten years. This agreement appears to be similar to the 1980
lease agreement as amended in 1987. However, the court has
concluded, based on its examination of the sketch attached to the
document, that it did not include the lease of any property in
the NW 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 father, or
someone on behalf of HBC such as Hilton Dumesnil, 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, Carl J. Bourg abandoned his
35
lease of the NW 1/ 4 of Section 10, on the east side of Four Point
Canal in 1999. Shortly thereafter, by agreement dated April 1,
1999, and contemporaneously recorded in the conveyance office in
Terrebonne Parish, HBC leased to Mr. Neil " for cattle grazing
purposes only," lands which included the section property on the
east side of the canal. This lease was effective for up to six
years. By recorded agreement effective April 21, 2011, as
amended by a recorded act dated dune 28, 2017, HBC leased the
same property for the same purpose to Mr. Neil, again for up to
six years.
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 1927, inclusive, Ashland Planting &
Manufacturing Co., Inc.,
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 4. In 1928, no property in Ward 4 was assessed in the name
of that company, but the same property was assessed in the name
of A. W. Pettigrew, Inc.,
beginning in 1928 and continuing through
1931. In 1932, no property in Ward 4 was assessed in the name of
A. W. Pettigrew, Inc.,
but the same property was assessed in the
name of Ashby W. Pettigrew, or A. W. Pettigrew, beginning in 1932
and continuing through 1934. In 1935, A. W. 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 " east of Four Point Canal" and
located in Section 10, T20S- R17E:
a) The W 1/ 2 of the SE 1/ 4; and,
36
b} The NE 1/ 4.
The assessment to A. W. Pettigrew in 1935 continued
unchanged through 1942. However, beginning in 1936, the
assessment in the name of Harry Bourg grew to include additional
properties in T20S- R17E, incorrectly identified as being
However, none
exclusively on the east side of Four Point Canal.
of the property in Section 10 included the NW 1/ 4 thereof.
In 1943, Harry Bourg' s assessment was the same, but
curiously, there was no longer any assessment for property of
A. W. Pettigrew, then or thereafter. In 1944, Harry Bourg' s
assessment was the same.
In 1945, Harry Bourg' s assessment changed dramatically.
The new assessment consisted of two parts. The first part was
identical to the 1935 assessment, simply the W 1/ 2 of the SE 1/ 4
and the NE 1/ 4 of Section 10, T20S- R17E, all east of Four Point
Canal. The second part was a new assessment which did not
expressly include the specific tracts of land for which Harry
Bourg had been assessed in the years 1936 through 1944. Instead,
the second part of the new assessment was revised to read as
follows:
The unsold portion of Dulac Plantation west of Four
Point Canal and Bayou Dulac and East of Bayou Grand
Caillou in Township 19 and 20 South, Range 17 East,
including parts of Sections 3, 10, 15, and 22, T20S-
R17E among other property.'
This two part assessment in the name of Harry Bourg
continued in identical form through 1954. Beginning in 1955 and
until 1962, when the records furnished to 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.
Pettigrew beginning in 1943, coincides with his April 10, 1942,
sale to Harry Bourg. 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., 1924 through 1962, any property in
37
Ward 4 was assessed in the names of Gaidry or Schwing or their
ancestors in title.
Based on the foregoing, and after comparing the
descriptions in the April 10, 1942, purchase by Harry Bourg to
the tax assessor' s description of property assessed to Harry
Bourg and HBC, the court believes the entire ownership interest
in the land at issue in this case was assessed first to Harry
Bourg beginning in 1945, and subsequently to HBC, and that they
paid the property taxes due on the property through at least
1960. The court' s finding is supported by the records of the
Terrebonne Parish tax assessor offered as HBC Exhibit No. 56.
The court is also convinced that sometime in 1960 or
1961, the Terrebonne Parish tax assessor realized that Harry
Bourg Corporation was not record owner of a one hundred percent
interest in the NW 1/ 4 of Section 10, T20S- R17E. HBC Exhibit No.
56 reveals that in 1961 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, T20S-
R17E. The evidence offered to the court, particularly HBC
Exhibit No. 57 and Plaintiffs' Exhibit No. 6, indicates that
since 1961, 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, while adjusting the assessments of Gaidry and
Schwing, beginning in 1961 and ending in 2017, ever adjusted the
assessment against HBC to reflect this new assessment against
Gaidry and Schwing. The description of the property assessed to
HBC remained unchanged in relevant part throughout these years.
The court believes it is more probable than not that the NW 1/ 4
of Section 10, T20S- R17E, was subject to dual assessment since
38
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. 19, 20, 21, 23,
24, 25, 26, and 52.
The first such document is a copy of a boundary
agreement by and between HBC and The Louisiana Land and
Exploration Company, dated October 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, State of Louisiana,
dated July 8, 1963. 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, State of Louisiana,
dated October 8, 1965. This document refers to a grant of right-
of- way for public road purposes. The property description
therein is vague, 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 District, dated September 27, 2012. The 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
the document, and they do not appear to include any part of the
NW 1/ 4 of Section 10, T20S- R17E.
The next document offered for the court' s consideration
is a copy of an agreement and amended servitudes by and between
HBC and Terrebonne Parish Consolidated Government, dated May 3,
2013. This document refers to the July 3, 1975, drainage
servitude deed described above affecting the property at issue in
this case, as well as an attached copy of an undated drainage
servitude deed recorded December 17, 1973, not separately
introduced as evidence in this case. This December 17, 1973,
document created a drainage servitude 130 feet wide in favor of
the Terrebonne Parish Police Jury across lands of HEC, including
the NW 1/ 4 of Section 10, T20S- R17E. Strictly speaking, the May
3, 2013, agreement does not directly affect the NW 1/ 4 of Section
10, T20.S- R17E, but it does confirm the existence of the previous
drainage servitude deed recorded December 17, 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, for the purpose of constructing a " culverted bayou
crossing" through " a portion of Four Point Bayou located in
Section 10, T17S- R20E. 11 The permanent right- of- way was declared
The designation of ' IT17S- R20E" in the
to he eighty feet wide.
agreement is an obvious error inasmuch as Four Point Bayou does
not meander through 11T17S- R20E, 11 but rather through T20S- R17E.
the reference to 114 Point Bayou Crossing" on the
In any event,
specifications attached to the document causes the court to think
the crossing pertains to property outside of the NW 1/ 4 of T20S-
R17E. This conclusion is based on the anticipated construction
of a Four Point Bayou crossing mentioned in the agreement and
amendedservitudesdocument dated May 3, 2013, discussed
hereinabove, in connection with the development of " Four Point
40
Harbor Subdivision" by HBC in Section 15, T20S- R17E, south of
Section 10. The court finds that this grant of right- of- way by
the state actually pertains to a portion of Four Point Bayou ( or
canal) in Section 15 or the SE 1/ 4 of Section 10, T20S- R17E.
The court has also been furnished a copy of a grant of
servitudes by and between HBC, Four Point Harbor, L. L. C., and
Terrebonne Levee and Conservation District, dated May 4, 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 9, 2014, by HBC, as seller, and Low Land,
as buyer, and a copy of the " Supplemental and Amended Dirt
Contract" 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, T20S-
R17E, 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, Louisiana, depicting property " occupied by
Harry Bourg." The property is clearly identified as the NW 1/ 4
of Section 10.
The map indicates that surrounding property on
the north, east,
and south sides thereof is owned by " Harry Bourg
Corp." There is no indication on the document of the date of
preparation of the map, but it obviously was prepared after 1955
when HBC acquired its lands from Harry Bourg. The plaintiffs
offered the same Tobin map as 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, T20S- R17E, after the April 10, 1942,
purchase by Harry Bourg. They did offer, however, 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
the property at issue, HRC also offered evidence of hunting and
fishing activities on its behalf. Nolan Bergeron testified that
he was the land manager for HBC for almost twenty years, until
1995. Before him, those duties were the responsibility of
Freddie Trahan from the time HBC acquired its lands from Harry
Bourg. HBC was vigilant about patrolling all of the property it
owned, particularly to control hunting and fishing. There was a
system of " passes" used at one time to grant visitors access.
Mr. Bergeron testified that he did not patrol the NW 1/ 4 of
Section 10 by boat and, on occasion, he did see Wilson " Doc"
Gaidry, Jr., on HBC lands, 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, T20S- R17E, was HBC
Exhibit No. 51. It consists of sixty different deer hunting
permits granted by HBG to various individuals between 2004 and
2017. Each permit generally granted permission to the grantee to
hunt 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 in title, the plaintiffs offered the testimony of Roger
Webb, Wilson " Doc" Gaidry, Jr., Shannon J. Danos, and Leo
Bickham.
According to Mr. Webb, age forty- seven, who owns an
interest in Gaidry, he traditionally would access the property,
either alone or with groups of people, by crossing the levee on
the west side near the Cenac Duck Pond in adjacent Section 9. He
would access the entry point by boat. At various times since
42
1986 or 1987, and multiple times a year, he would hunt or trap
deer, alligators, rabbits, and nutria.
He was not shy about
shooting his shotgun shells and making his presence known. in
all the years he was present on the property, no one 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, campsite, and
other recreational and commercial activities." 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. Webb and Mr. Gaidry, he would access the property on its
western side,
and no one interfered with his use of the property.
Mr.
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 year since, primarily to
hunt and/ or trap ducks, nutria, minks, otters, and alligators.
Like Mr. Webb,
no one ever indicated to him that he had no right
to be there or otherwise obstructed his activities. And like Mr.
Webb,
he would access the NW 1/ 4 of Section 10 from the west.
Mr. Gaidry identified Plaintiffs' Exhibit No. 10, a ten
year hunting lease from Gaidry to Andrew Sheppard, dated October
1, 1984,
affecting property which included the NW 1/ 4 of Section
10,- T20S- R17E. He also identified Plaintiffs, Exhibit No. 8, a
43
water fowl hunting lease from Gaidry to Andrew Sheppard, dated
September 10, 1995, which included the property identified as the
NW 1/ 4 of Section 10, T20S- R17E. Mr. Gaidry also identified
Plaintiffs' Exhibit No. 9, a trapping and hunting lease from
Gaidry to Andrew Sheppard, dated September 10, 1995, which also
included the same property.
Mr.
Gaidry confirmed that by producing tax receipts for
the NW 1/ 4 of Section 10, T20S- R17E, on behalf of Gaidry, he
enabled his brother- in- law, Dane Ledet, to obtain Louisiana
Wildlife and Fisheries permits to collect alligator eggs from the
property beginning in 1996 through 2018. During those same
years,
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' Exhibit No. 7.
Mr.
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, 2017. He confirmed that he never thought
HBC, 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 Exhibit No.
43 consists of an envelope mailed from
Bellaire, Texas, on June 27, 1961, by Electronic Explorations,
Inc.,
address to its company representative, Mr. J. V.
Looney, in
Thibodaux, Louisiana. With the envelope is a handwritten note
signed by Mr. Looney referring to a check, apparently enclosed
with the note, for damages "
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 court did
Other than this one item of documentary evidence,
not received from HBC any evidence of mineral leasing or
T20S- R17E,
development with regard to the NW 1/ 4 of Section 10,
April 10, 1942.
after the property was acquired by Harry Bourg on
On the other hand, the court did receive evidence from
gas, and
the plaintiffs in this case that various oil,
mineral leases were granted with regard to varying interests
in and to the NW 1/ 4 of Section 10, T20S- R17E, by the Gaidry
and Schwing authors in title, between 1955 and 1977, all of
which were contemporaneously recorded, to wit:
1) From T. Smith Hickman, et al, to S. Gordon Reese,
dated December 17, 1955;
2) From Wilson J. Gaidry, et al, to S. Gordon Reese,
dated December 17, 1955;
3) From E. B. Schwing, et al, to C. T. Carden, dated may
13, 1971;
4) From Wilson J. Gaidry, Jr., et al, to C. T. Carden,
dated May 7, 1971;
5) From E. B. Schwing, et al, to Wolff Petroleum Co.,
Inc., effective December 4, 1974;
6) From Lillie Lea McKnight Gaidry, et al, to Wolff
Petroleum Co., Inc., effective November 25, 1974;
7) From E. B. Schwing, et al, to Pennzoil Producing
Inc., effective May 6, 1977; and,
Company,
8) From Lillie Lea McKnight Gaidry, et al, to Pennzoil
Producing Company, Inc., effective May 10, 1977.
Based on all the evidence received by the court in this
case regarding possession of the NW 1/ 4 of Section 10, T20S- R17E,
by Harry Bourg and/ or HBC, the court is convinced that at least
since April 10, 1942, Harry Bourg and his successor by particular
title, HEC, have had corporeal possession of the entirety of the
property. There is no question that the possession has been
continuous, peaceable, public, and unequivocal. Louisiana Civil
Code article 3476 declares, however, that for the purpose of
acquisitive prescription, the possession must be " continuous,
uninterrupted, peaceable, public, and unequivocal."
The interruption of corporeal possession must be by acts
of corporeal possession, not acts of civil possession, and must
be more than mere disturbances.
45
does not run in favor of a precarious possessor, i. e., one who
possesses without any intent to own another' s interest, such as a
co- owner, or his universal successor, regardless of how long the
possession continues. Under our law, a precarious possessor,
including a co- owner, is presumed to possess not for himself but
for and on behalf of his co- owners, It is of no moment that the
precarious possessor actually intends to possess 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. As
pointed out by comment ( b) 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. Lee v. Jones, 69
So. 2d 26 ( La. 11/ 09/ 53); Givens v. Givens., 273 So. 2d 863 ( La.
App. 2 Cir. 2/ 06/ 73), writ denied, 275 So. 2d 868 ( La. 4/ 19/ 73);
Towles v. Heirs of Morrison, 428 So. 2d 1029 ( La. App. 1 Cir.
2/ 22/ 83); Andras v. Thibodeaux, 157 So. 3d 767 ( La. App. 1 Cir.
10/ 30/ 14), writ denied, 204 So. 3d 179 ( La. 10/ 30/ 15); ELbarb v.
The Unopened Succession of Sepulvado, 241 5o. 3d 1103 ( La. App. 3
Cir- 3/ 14/ 18), writ denied, 244 So. 3d 437 ( La. 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." Likewise, the
particular successor of a precarious possessor, such as a co-
owner,
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 litigation in Louisiana. Succession of Seals,, 150 So. 2d 13La. 2/ 18/ 63); Givens, supra; Towles, supra; Franks
we
Petroleum, Inc. v.
Babineaux, 446 So. 2d 862 ( La. App. 2 Cir.
2/ 21/ 84); Lake Charles Harbor and Terminal District v. Erwin
Heirs, Inc., 673 So. 2d 1351 ( La. App. 3 Cir. 05/ 08/ 96), writ
denied, 681 So. 2d 371 ( La. 10/ 25/ 96); Tilley v. Unopened
Succession of Howard, 97.6 So. 2d 851 ( La. App. 2 Cir. 2/ 20/ 08),
writ denied, 983 So. 2d 922 ( La. 6/ 06/ 08); Ebarb, 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,
and thus co- owners of property, with Mr.
Seals. Mr.
Seals had acquired the property in question from his
brother' s widow by written act of sale in 1913. His brother, who
had no children,
had purchased the property while single. As a
result,
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.
After the purported sale from his dead brother' s widow,
Mr.
Seals took corporeal possession of the property and
exercised certain acts of possession, ownership and management."
The court found Mr.
Seals to have been a precarious possessor of
the property whose possession was sufficiently adverse to his co-
owners 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, I think, between a
case like this,
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. In the
first instance,
it strikes me that the very fact that
he acquires a title for valuable consideration, as in
this case,
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. Accordingly, in
this case,
the fact that Stokes Seals entered the
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
the evidence, that he may have permitted some of his
co- heirs to live thereon by sufferance.
It should be noted that in the Seals case, the initial
possessor, stokes Seals, was a co- owner of the property at the
time of the act translative of title between him and his
brother' s widow. The decision of the Supreme Court upholding his
claim of ownership was clearly based on thirty years acquisitive
prescription. There was no express holding that the 1913 deed
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 to a precarious possessor under Louisiana
Civil Code article 3479 includes a co- owner, i. e., one who
already owns an undivided interest in the property. 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 1/ 4 of Section 10, T20S- R17E, for themselves
alone and not on behalf of their co- owners. All of the acts
between May 14, 1927 ( sheriff' s sale to Madison L. Funderburk),
and May 1, 1934 ( purchase by Harry Bourg), inclusive, were acts
translative of title, even though none of these acts transferred
actual record title, This is so because until June 22, 1935,
record title to the entirety of the NW 1/ 4 of Section 10, T20S-
R17E was vested in the successors of Robert R. Barrow on the one
hand, and in the successors of Mrs. Volumnia R. Barrow Slatter on
the other. For reasons which will be explained below, the court
does not deem these transactions to be of any importance in this
case.
It is the act of sale dated April 10, 1942, from Ashby
48
W. Pettigrew to Harry Bourg that the court considers critically
important. This act was translative of 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.
At the time this act was executed by Ashby W, Pettigrew, 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. importantly, with regard to Harry Bourg, however,
the exact language of Louisiana Civil Code article 3479 provides
as follows:
A 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.
In this case, Harry Bourg was the particular successor
of Ashby W. Pettigrew, a precarious possessor of the property.
Harry Bourg was not a co- owner of the property at the time the
April 10, 1942, act was executed. As such, under Louisiana Civil
Code article 3479, upon execution of the act, he possessed the
property at issue for himself, and prescription began running in
his favor " 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, supra; Towles, sUp; Franks, supra; Lake Charles Harbor
and Terminal District, suipra; Tilley, supra.
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 co-
owners.
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
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thereof.
In determining whether a particular case falls within
the exception rather than the general rule it has been
held that mere occupancy, use, payment of taxes and
similar acts of possession will not suffice to
constitute notice of adverse possession to an owner in
common.
The court went on to say, citing Succession of Seals:
However, a solid line of cases has developed the rule
that where a co- owner goes into and continues
possession under a recorded instrument apparently
conveying title ( even though the purported conveyance
be invalid), the recorded instrument together with the
acts of possession constitute notice to other cc - owners
and the possession is then regarded as hostile to the
claims of the other co- owners, rebutting 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
acquire title by prescription against one another, in
the absence of clearly hostile possession by the
possessing co- owner, which gives clear notice to the
other co- owners of his intent to possess exclusively
and adversely.... Where one co- owner goes 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 possession to cc - owners .... The notice given by
the recorded titles changes the nature of future
possessor acts from precarious possession to adverse
possession. The acts of corporeal possession must
follow that notice.
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, a precarious possessor, 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, 1942, and
recorded the same. However, this notice alone is not sufficient
to sustain a claim of acquisitive prescription. It must be
followed by actual acts of corporeal possession.
As described hereinabove, the record is replete with
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evidence of actual corporeal possession of the property at issue
by Harry Bourg and/ or HBC through overt and unambiguous acts, at
least from April 10, 1942, through the date of trial, a period of
time in excess of seventy- five years. As explained hereinabove,
the court believes the April 10, 1942, act 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 prescription. ( La. C. C. art. 3441.) This " tacking
of possession"
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). If one
proves that he had possession at different times, he is presumed
to have possessed during the intermediate periods. ( La. C. C. art.
3443). Therefore,
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, T20S- R17E,
by any of the parties to those
transactions.
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
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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 begins, the intent to retain that
possession is presumed "
unless there is clear proof of contrary
intention." ( La. C. C. art. 3432.) 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
usurpation." ( La. C. C. art. 3433.) If possession is lost, and
not timely recovered, acquisitive prescription is deemed
interrupted and commences to run anew from the last day of
interruption. ( La. C. C. arts. 3465 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. In fact, the
evidence is quite to the contrary. They consistently corporeally
possessed the property by acts which included, among other
things, the posting of signage, the raising of sugar cane, and
the grazing of cattle. 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, possession that
is " violent, clandestine, discontinuous, or equivocal" has no
effect.
Possession is violent when it is acquired or maintained
by violent acts. Possession is clandestine when it is not open
or public,
discontinuous when it is not exercised at regular
intervals,
and equivocal when there is ambiguity as to the intent
of the possessor to own the thing. ( La. C. C. art. 3436.) Again,
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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, or if possession is lost. ( 1&.
C. C.- arts. 3462, 3464 and 3465.) As discussed above, the court
does not believe Harry Bourg 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 of Section 10, T20S- R17E,
Terrebonne Parish, Louisiana,
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,
or alternatively, by possession for thirty years
as of April 11, 1972,
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 of any
claim by Or obligation to the plaintiffs in this case.
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, regardless of the actual
area possessed by them on the ground. However, it appears their
Possession actually extended to the full limits of the property
as described.
The property at issue is bordered on the north,
south,
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, which included at least the land
of the NW 1/ 4 of Section 10.
Judgment has been entered in accordance with these
reasons for judgment.
REASONS GIVEN in Chambers at Houma, Louisiana, on this
IL day of July, 2019.
Please serve:
1. The plaintiffs, C. S. Gaidry, Inc.,
LLC, and Schwing Management,
through their attorney of record Damon J. Baldone, 162 New
Orleans Boulevard, Houma, Louisiana 70364.
2. The defendant, Harry Bourg Corporation,
of record, James M. Funderburk, 101 Wilson Avenue,
through its attorney
3017, P. O. Box
Houma, Louisiana 70361.
3. The defendant,
Low Land
its attorney of record, Construction Company,
Rufus C. Harris, III,
Inc,, through
Suite 2710, New Orleans, 650 Poydras Street,
Louisiana 70130,
Deputy Clerk of Court
Parish of Terrebonne, LA
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