Precarious Possession

Louisiana Law Review Louisiana Law Review

Volume 77

Number 3

Louisiana Law Review - Spring 2017

Article 6

3-8-2017

Precarious Possession Precarious Possession

John A. Lovett

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John A. Lovett,

Precarious Possession

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Precarious Possession

John A. Lovett

TABLE OF CONTENTS

Introduction .................................................................................. 618

I. Up from Rome .............................................................................. 625

A. Acquisitive Prescription in the Civil Law Tradition .............. 625

1. Roman Law and Pre-Codification French Law ............... 625

2. French Codification and Subsequent French

Commentary Justifying Acquisitive Prescription............ 628

B. The Concept of Precarious Possession in Roman

and French Law ..................................................................... 630

1. True Possession Equals Detention Supplemented

by Animus ....................................................................... 631

2. Precarious Possession Cannot Produce

Acquisitive Prescription .................................................. 632

3. Initial Presumption in Favor of Possession as

Owner .............................................................................. 632

4. Limited Juridical Effect of Acts Governed by

Article 2232 of Code Civil .............................................. 634

a. Pure Facultative Acts ................................................... 635

b. Acts of Simple Tolerance ............................................ 635

C. Louisiana Commentary After the 1982 Revision of the

Civil Code .............................................................................. 636

D. The Virtues of Louisiana’s Two-Tier Model of

Acquisitive Prescription ......................................................... 640

II. Three Paradigmatic Possession and Acquisitive Prescription

Disputes: A Social and Relational Approach ............................... 646

A. Strangers ................................................................................ 648

1. Stranger–Claimant Possessed as Owner ......................... 649

2. Stranger–Claimant as Precarious Possessor .................... 654

B. Contractual and Legal Status Relationships .......................... 657

1. Contractual Relationships ............................................... 658

a. Lessees and Lessors .................................................. 658

b. Agents and Principals ............................................... 659

c. Servitude Holders and Servient Estate Owners,

Usufructuaries and Naked Owners ........................... 659

d. Vendors and Vendees ............................................... 660

2. Co-Ownership Disputes: Context Matters ...................... 661

618 LOUISIANA LAW REVIEW [Vol. 77

a. Co-Owners Who Remain Precarious Possessors ...... 663

b. Co-Owners Who Terminate Precarious Possession .. 664

3. Other Family Matters: Sticky Precarious Possession ...... 669

4. Sui Generis Legal Status Relationships .......................... 671

C. Neighbors and Members of Close-Knit Communities........... 673

1. Neighbors as Precarious Possessors Through

Acknowledgment or Agreement ..................................... 674

2. Neighbors as Precarious Possessors Through

Inference .......................................................................... 675

3. Neighbors Who Possess as Owners ................................ 681

III. The Future of Precarious Possession ............................................ 686

A. New Jurisprudential Tools to Analyze Neighbor and

Close-Knit Community Cases ............................................... 687

1. The Presumption of Sharing ............................................ 688

2. Indicia of Giving or Renunciation ................................... 691

B. Reconsidering Boudreaux ........................................................ 694

1. The Boudreaux Opinions ................................................ 694

2. Resolving Boudreaux with New Jurisprudential Tools ... 699

Conclusion .................................................................................... 700

INTRODUCTION

The institution of acquisitive prescription has startling transformative

power.

A person who commences possession of immovable property in

* De Van D. Daggett, Jr. Distinguished Professor, Loyola University New

Orleans College of Law. This Article is dedicated to the memory of André van de

Walt (1956-2016), the holder of the South African Research Chair in Property

Law at Stellenbosch University, South Africa, who invited me to visit his research

group and present an early draft of this Article in March 2016. His contribution to

property law scholarship across the world is beyond measure. I also wish to thank

Hanri Mostert, Cheryl Young, Cornelius van de Merwe, Jacques du Plessis,

Hanoch Dagan, Joseph Singer, John Blevins, Nicholas Davrados, Melissa

Lonegrass, and Sally Ann Richardson for their encouragements and valuable

comments on earlier drafts of this Article. Finally, I gratefully acknowledge the

outstanding research assistance of Aimee Chalin and Emily Breaux.

. As French commentators G. Baudry-Lacantinerie and Albert Tissier once

remarked, “Prescription is the transformation of a state of fact in a state of law.” G.

BAUDRY-LACANTINERIE & ALBERT TISSIER, PRESCRIPTION: TRAITE THEORIQUE ET

PRACTIQUE DE DROIT CIVIL, in 5 CIVIL LAW TRANSLATIONS ¶ 275, at 145 (La. St. L.

Inst. trans. 1972) (4th ed. 1924).

2017] PRECARIOUS POSSESSION 619

good faith and with a just title can acquire ownership that is good against

the world after just ten years of uninterrupted possession.

Even more

remarkable is that a possessor who does not commence possession in good

faith or who lacks a just title can still acquire ownership of an immovable

after 30 years of uninterrupted possession.

Finally, a person who merely

uses another person’s land in a limited manner can acquire a real right in the

form of an apparent servitude through either ten or 30 years of quasi-

possession.

According to several Louisiana jurists and commentators, the venerable

institution of acquisitive prescription in Louisiana is now under threat.

The

source of that threat is a recent decision of the Louisiana Supreme Court. In

Boudreaux v. Cummings,

the plaintiff, John Boudreaux, and his

ancestors-in-title had used a pathway across his neighbor’s property since

1948 to gain access to a public road and to transport farm equipment to

and from the property.

In 2012, Paul Cummings, the new owner of the

adjacent land, prevented Boudreaux from using the pathway.

Boudreaux

sued, claiming that he and his ancestors-in-title had acquired a predial

servitude across Cummings’s land by virtue of 30 years of uninterrupted

quasi-possession.

Cummings defended the lawsuit by arguing that

Boudreaux’s possession did not count for purposes of acquisitive

prescription because it had always been “precarious,” that is, it had been

exercised “with the permission of or on behalf of the owner.”

Although

. LA. CIV. CODE arts. 3473–3476 (2016) (providing for ten-year acquisitive

prescription of immovables for a possessor with just title and good faith; providing

that possessor need only have good faith at commencement of possession).

. Id. arts. 3486–3488.

. Id. arts. 740, 742.

. See Boudreaux v. Cummings, 167 So. 3d 559, 568 (La. 2015) (Knoll, J.,

dissenting) (warning that the majority decision in Boudreaux “severely jeopardizes

the law on acquisitive prescription in this state”); A.N. YIANNOPOULOS, PREDIAL

SERVITUDES § 6.36, in LOUISIANA CIVIL LAW TREATISE (4th ed. 2013 & Supp.

2016) (reiterating Justice Knoll’s warning and advising that the majority holding in

Boudreaux “should not be read broadly and should not be read to equate permission

with a landowner’s awareness and failure to object to a disturbance or eviction”);

Andrew M. Cox, Boudreaux v. Cummings: The Louisiana Supreme Court

Presumes Away the Right to Acquire a Servitude of Passage, 90 TUL. L. REV. 973,

984 (2016) (suggesting that faulty reasoning in Boudreaux “looms dangerously over

the right to prescribe a servitude of passage”).

. 167 So. 3d 559 (La. 2015).

. Id. at 560.

. Id.

. Id. at 561 (quoting LA. CIV. CODE art. 3437 (2011)).

620 LOUISIANA LAW REVIEW [Vol. 77

the trial court and a majority of the Louisiana Third Circuit Court of

Appeal ruled in favor of Boudreaux, a narrow four-justice majority of the

Louisiana Supreme Court disagreed and held that Boudreaux’s quasi-

possession of the right of way was, in fact, precarious, and thus could not

lead to acquisitive prescription.

More particularly, the majority opinion in Boudreaux appears to

undermine the strong presumption in favor of possessors found in article

3427 of the Civil Code.

Relying on commentary interpreting an article

from the 1870 Civil Code and its source article in the French Civil Code

of 1804,

the majority of the Louisiana Supreme Court found that

Boudreaux’s use of the pathway across his neighbor’s property occurred

with the “implied or tacit permission” of his original neighbors as a

“gesture of neighborly accommodation.”

Despite the strong presumption

in favor of a possessor expressed in article 3427, the majority held that

“under the limited circumstances where ‘indulgence’ and acts of ‘good

neighborhood’ are present,” the possessor’s acts of possession are

presumed to have occurred with the owner’s “tacit permission.”

Thus, as

the Court put it, “Cummings’[s] awareness of Boudreaux’s use and his

allowance thereof marks Boudreaux’s use as an authorized use that cannot

be characterized as adverse under the circumstances.”

In apparent

recognition of the difficult legal and factual issues the case raised, the

majority took the unusual step of stating that its holding in Boudreaux was

“strictly limited to the facts before us.”

Justice Jeannette Knoll authored a blistering dissent in Boudreaux.

She contends that the majority decision “eviscerates the well-established

burden-shifting structure laid out in our Civil Code” by allowing an owner

to prevail in an acquisitive prescription case based simply on an assertion

of “neighborliness” without having to introduce any evidence that a

. Id. at 562–64.

. See id at 566. (“One is presumed to intend to possess as owner unless he

began to possess in the name of and for another.” LA. CIV. CODE art. 3427 (2016)).

. A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 139, in 4 LOUISIANA CIVIL

LAW TREATISE (3d ed. 1997).

. Boudreaux, 167 So. 3d at 562.

. Id. at 563.

. Id. at 564. The majority’s reference to the awareness of Cummings is

itself confusing because the period of tacit permission would have begun during

the ownership of Cummings’ predecessor-in-title. As discussed in Part III, Justice

Weimer’s concurring opinion focuses more extensively—and properly—on the

relationship between Boudreaux and Cumming’s predecessor-in-title—the

Weills. Boudreaux, 167 So. 3d at 568–72 (Weimer, J., concurring).

. Id.

2017] PRECARIOUS POSSESSION 621

claimant’s possession is actually precarious.

Two other justices joined

Justice Knoll in dissent.

Penning a lengthy concurring opinion, Justice

John Weimer agreed with the majority’s disposition of the case but justified

his conclusion based on additional facts in the record while also reflecting on

the utilitarian and moral values that both support and complicate 30-year “bad

faith” acquisitive prescription in Louisiana.

This Article seeks to place the controversy spawned by the majority opinion

in Boudreaux—and in particular the controversy over precarious possession—

in a broader doctrinal framework. At the outset, however, this framework

acknowledges that precarious possession has rarely been a problem in cases

involving claims of ten-year, good-faith acquisitive prescription. In those cases,

although precarious possession could theoretically be asserted as a defense

by a landowner, courts primarily focus on whether the claimant actually

possessed the land at issue by virtue of a “just title,”

or whether the

claimant’s profession of “good faith” was reasonable in light of objective

circumstances.

With that caveat in place, this Article takes aim at the

problem of precarious possession in the context of bad-faith acquisitive

prescription or when bad-faith acquisitive prescription is likely to be

asserted after the completion of a possessory action.

To address whether precarious possession is actually undermining the

institution of acquisitive prescription, this Article takes a step back and

looks at a broad range of precarious possession cases decided in the last

50 years in Louisiana. This broader review reveals that almost all

precarious possession disputes fall into one of three different relational

contexts. The first involves parties who are more or less strangers to one

another. In the second, parties find themselves connected to one another

through a contractual relationship or by virtue of some special legal status,

typically a co-ownership or family relationship, or some other sui generis

special relationship. The third context involves parties who are neighbors

. Id. at 565 (Knoll, J., dissenting).

. Justice Crichton also authored his own short dissenting opinion in which

he contended that the legal presumption to which Boudreaux was entitled as a

possessor combined with Cummings’s failure to present any evidence to rebut that

presumption should have mandated affirming the lower court rulings. Id. at 572–

73 (Crichton, J., dissenting). Justice Hughes dissented for the reasons given by

both Justice Knoll and Justice Crichton. Id. at 572.

. Id. at 568–72 (Knoll, J. dissenting).

. Compare Cantrelle v. Gaude, 700 So. 2d 523 (La. Ct. App. 1997), with

Barrios v. Panepinto, 133 So. 3d 36, 38 (La. Ct. App. 2014).

. See, e.g., Philips v. Parker, 483 So. 2d 972 (La. 1986); Mai v. Floyd, 951

So. 2d 244 (La. Ct. App. 2006).

622 LOUISIANA LAW REVIEW [Vol. 77

and know one another relatively well or who are at least members of the

same relatively small or tight-knit community.

In the first two classes of cases, the rules and presumptions located in

the Louisiana Civil Code and developed by Louisiana courts tend to

operate effectively. With some notable exceptions, these first two kinds of

precarious possession cases—stranger cases and contractual or legal status

cases—yield relatively predicable results that are consistent with many of

the utilitarian and natural rights justifications traditionally offered both to

support and limit acquisitive prescription.

Cases involving neighbors and members of close-knit communities,

however, tend to create more challenges. In this third category of

acquisitive prescription cases, the results appear, just as in Boudreaux,

more unstable and unpredictable. In these cases, the powerful normative

arguments justifying acquisitive prescription conflict sharply with the

normative justifications for the limiting effect of precarious possession. To

help parties and courts resolve these difficult neighbor and close-knit

community cases, Louisiana law needs a more refined approach. First,

Louisiana courts must forthrightly acknowledge the long-term, mutually

beneficial relationships that are at the heart of these especially difficult

cases. Second, Louisiana courts should consider applying a presumption of

sharing in these cases.

With this new presumption of sharing, this Article introduces a principle

that will honor an important normative value that already underlies much of

Louisiana property law and that courts often expressly recognize. The

principle is that neighbors should be encouraged, as Judge Weimer himself

recognized in Boudreaux, to act “as a good neighbor in allowing use of

[their] property.”

Louisiana law should create incentives for neighbors

to form relationships of mutual support and accommodation. It should

reward, not punish, neighbors who share their resources with one another.

It should respect neighbors who engage in cooperative practices that

enable all members of a close-knit community to gain access to the

resources they need to flourish as human beings. The presumption of

sharing this Article calls for will validate the moral impulse that Louisiana

judges often recognize in these kinds of cases. Accordingly, owners who

appear to have granted their neighbors consent to possess or access their

property would, at the outset of that relationship at least, benefit from a

presumption that they are sharing their property with a neighbor who needs

it for some limited purpose.

At some point in time, however, typically after a long pattern of

continuous activity, possession that began with an implied permission of the

. Boudreaux, 167 So. 3d at 572.

2017] PRECARIOUS POSSESSION 623

owner and that was motivated by a normatively attractive desire to share

resources can lead non-owners to believe that they have acquired real rights

in the property to which they have gained access. The non-owners may

begin to organize their affairs in a manner that depends on the continuing

access to the neighbor’s property. They may make investments in their own

property or make improvements in the neighbor’s property that are

grounded in a reasonable expectation that access will continue. Further, as

time passes, the original parties, as well as their heirs, descendants, and

successors, may forget the circumstances surrounding the original implied

permission that led to the original access or possession. Indeed, possessors

might quite reasonably come to believe that they are possessing just as an

owner would possess or that they are enjoying another’s property in the

same manner a servitude holder would enjoy it.

In these situations, possessors should have the ability to rebut the

presumption of sharing by introducing evidence to show that the originally

permissive nature of the possession has been transformed into possession as

owner. Article 3439 of the Civil Code recognizes this necessity in part by

providing that “co-owner[s]” can begin to possess adversely by demonstrating

“overt and unambiguous acts sufficient to give notice” to their co-owners and

by recognizing that “[a]ny other precarious possessor[s]” can begin to

possess adversely by giving “actual notice” of their intentions to the

owner.

In cases involving neighbors and members of close-knit

communities, however, in which possession may have occurred for

especially long periods of time and memories are likely to have faded, the

“actual notice” standard of article 3439 often fails. It fails because it is too

rigid and formalistic a tool for courts to use in these complex relational

contexts. In response to this inflexibility, this Article proposes to allow a

neighbor or close-knit community member to rebut the presumption of

sharing in the specific relational context of a neighbor dispute by

demonstrating the termination of precarious possession by resorting to a

set of indicia of giving or renunciation. Collectively, these indicia provide

an outer limit on the presumption of sharing and give courts a set of specific

criteria to use in determining when the presumption of sharing has reached its

breaking point.

This Article’s observation that precarious possession serves as a doctrinal

safety valve to reign in or limit bad-faith acquisitive prescription’s startling

transformative power has a curious common law analogue. In 1983, Professor

. LA. CIV. CODE art. 3439 (2016).

. This Article recognizes that courts should always be cognizant that an

“acknowledgment” of another person’s property or contractual rights, whether

“formal or informal, express or tacit,” can interrupt prescription. See LA. CIV. CODE

art. 3464 cmt. c.

624 LOUISIANA LAW REVIEW [Vol. 77

Richard Helmholz published a seminal article regarding the role of subjective

intent in American adverse possession law.

Helmholz argued that common

law courts were consistently rejecting assertions of adverse possession when

it appeared that the claimant did not possess the disputed land in good faith.

According to Helmholz, this practice of favoring good-faith claimants

contradicted hornbook law, which consistently took the position that an

adverse possessor’s subjective intent was irrelevant as long as the claimants

could show that their possession was “hostile,” that is, not permissive.

Although Helmholz’s claim about the powerful sub-rosa importance of good

faith in adverse possession was challenged by another eminent scholar at the

time,

the important point for Louisiana is that there is evidence that other

U.S. courts are often uncomfortable with the end result of adverse

possession or acquisitive prescription, especially when an adverse

possessor in bad faith is poised to acquire ownership or a prescriptive

servitude.

Part I of this Article briefly traces the historical evolution of acquisitive

prescription in civil law with a particular emphasis on the debate over

whether bad-faith acquisitive prescription should be permitted to overcome

the rights of formal titleholders. This Part also evaluates how French and

Louisiana commentators have understood the role of precarious possession

as a doctrine limiting acquisitive prescription. Finally, it reviews the solid

policy justifications for Louisiana’s two-tier good- and bad-faith acquisitive

prescription regime.

Part II sets forth a taxonomy of precarious possession cases in Louisiana

and shows how Louisiana courts have resolved stranger cases and

contractual relationship and legal status cases with relative consistency. This

Part concludes by showing that neighbor and close-knit community cases,

. R.H. Helmholz, Adverse Possession and Subjective Intent, 61 WASH.

U.L.Q. 331 (1983).

. Id. at 339–40.

. Id. at 331–33.

. Roger A. Cunningham, Adverse Possession and Subjective Intent: A

Reply to Professor Helmholz, 64 WASH. U.L.Q. 1 (1986). Cunningham contended

that most U.S. courts—those not bound by a statute or state supreme court

precedent requiring the adverse possessor to have a good-faith belief he was

possessing as owner—still adhered to the objective interpretation of the “hostile

by claim of right” element and, moreover, that most of the decisions adverse to

bad-faith possessors upon which Helmholz relied could be explained on other

grounds. Id. Although Helmholz and Cunningham continued their debate, the

controversy has never been definitively resolved. See R.H. Helmholz, More on

Subjective Intent: A Response to Professor Cunningham, 64 WASH. U.L.Q. 65

(1986); Roger A. Cunningham, More on Adverse Possession: A Rejoinder to

Professor Helmholz, 64 WASH. U.L.Q. 1167 (1986).

2017] PRECARIOUS POSSESSION 625

however, are especially difficult for Louisiana courts to resolve and tend to

produce the most inconsistent results.

Finally, Part III explains why, in the most difficult category of

precarious possession cases—those involving neighbors or members of the

same close-knit community—Louisiana law would be well served by the

introduction of a presumption of sharing and an indicia of renunciation or

giving. After explaining this new framework for category three cases and

addressing some likely objections, the conclusion of Part III returns to

Boudreaux v. Cummings and shows how that case might have been

resolved in light of this new framework.

I. UP FROM ROME

A. Acquisitive Prescription in the Civil Law Tradition

Although most of this Article addresses developments in Louisiana

precarious possession jurisprudence that have occurred over the last 50

years, it is impossible to assess those developments without some

understanding of the Roman, Spanish, and French sources of Louisiana

law on acquisitive prescription and precarious possession in particular.

This Section emphasizes three crucial points about pre-codification civil

law: first, the variability of Roman law over time with respect to the

requirements of good faith and just title for acquisitive prescription;

second, the dispute in pre-codification French law over the propriety of

recognizing bad-faith acquisitive prescription; and third, the acceptance of

a Romanist, as opposed to a Canonist, conception of acquisitive

prescription when France finally codified its civil law in the Code

Napoleon.

1. Roman Law and Pre-Codification French Law

Louisiana’s double-barreled institution of good- and bad-faith acquisitive

prescription is derived from French and Spanish law and thus ultimately from

Roman law. Roman law on acquisitive prescription was neither static nor

simple. From the time of the Twelve Tables to Justinian’s compilation,

Roman law recognized that possession could lead to acquisition of ownership

through either usucapio or prescriptio. At various time periods during the

Roman Empire, Roman law required that the possessor have a title and

possess in good faith. At other historical moments, it recognized the

possibility that individuals whom Louisiana law might classify as bad-faith

626 LOUISIANA LAW REVIEW [Vol. 77

possessors could also acquire ownership.

For instance, in the later imperial

period, Roman law recognized both the institutions of longi temporis

praescriptio, that is, long-term prescription, which required just title and good

faith,

and longissimi temporis praescriptio, that is, very long-term

prescription, which allowed a possessor who lacked title or good faith to plead

30-year prescription as a defense to an action in revendication.

Eventually

Justinian’s compilation codified a form of long-term prescription that required

good faith and 10 to 20 years of possession and made very long-term

prescription an affirmative mode of acquisition that required good faith at the

commencement of the possession.

The nature of acquisition prescription with respect to immovables in pre-

codification French law was no less contested. During the early post-Roman

period, some regions of France followed written law, that is, Roman law, on

acquisitive prescription, but in other regions customary law resisted the

influence of Roman law and preserved idiosyncratic prescription rules.

Yet

even in areas where Roman law was followed, the difficulty of meeting the

requirements of good faith, just title, and 10 to 20 years of possession meant

that in practice 30-year prescription, which did not require title, was often the

primary means of prescription.

In regions where local custom was followed,

both the 10-to-20-year and 30-year prescriptions were used.

The regional conflicts over the actual law in practice also mirrored a

deeper philosophical debate in France. Advocates of canon law, as Baudry-

Lacantinerie and Tissier explain, “generally tried to inject morality and equity

into the institution of prescription,”

ignored the utilitarian goals of

prescription, and tried to limit the institution to one providing merely a

. See generally Ernst J. Marais, Acquisitive Prescription in View of the

Property Clause 18–27 (Aug. 5, 2011) (L.L.D. Dissertation, University of

Stellenbosch) (discussing Tabula 6.3 of the Twelve Tables); DAVID JOHNSTON,

ROMAN LAW IN CONTEXT 57 (1999); BARRY NICHOLAS, AN INTRODUCTION TO

ROMAN LAW 122–24 (1st ed. 1975); BAUDRY-LACANTINERIE & TISSIER, supra note

1, ¶¶ 3–8, at 4–6.

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶¶ 8–10, at 6–7;

NICHOLAS, supra note 30, at 128.

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 11, at 7.

. Id.; NICHOLAS, supra note 30, at 127.

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 16, at 9. Domat also

noted the regional diversity of approaches to acquisitive prescription in the pre-

codification era. 1 JEAN DOMAT, THE CIVIL LAW IN ITS NATURAL ORDER 869, ¶

2189 (William Strahan trans., Little, Brown & Co. 1853) (1694).

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 16, at 9.

. Id.

. Id. at 10.

2017] PRECARIOUS POSSESSION 627

“presumption of ownership or the discharge of a debt.”

In contrast, civil law

proponents sought to leave good faith out of 30-year prescription entirely and

require it only at the commencement of 10-to-20-year prescription.

The state

of Spanish law regarding acquisitive prescription was similar to pre-

codification French Law in that multiple modes of prescription were

recognized,

leading in turn to scholastic debates over the ultimate purpose

of acquisitive prescription.

The most important point for this Article’s purposes is that the choice

between a unitary system, in which only good-faith acquisitive prescription is

allowed, and a two-tier system, in which both good- and bad-faith acquisitive

prescription are permitted, was clearly apparent to the French jurists on the

eve of French codification and thereafter.

Moreover, commentators like

Baudry-Lacantinerie and Tissier clearly sympathized with the Romanist

approach and rejected the canon law view. They regarded a good-faith

requirement as an anachronistic relic of a more violent feudal era,

one that

. Id.

. Id. By contrast, canon law insisted that there be good faith throughout the

entire period of possession. Id.

. For example, Las Siete Partidas acknowledged the existence of both

good- and bad-faith acquisitive prescription with respect to immovables. 1 THE

LAWS OF LAS SIETE PARTIDAS 382 (L. Moreau Lislet & Henry Carlton trans.

1978) (1820) (providing for 10- and 20-year prescription of “things immoveable

and incorporeal” for possessors “in good faith, either by purchase, or exchange or

as a donation or legacy, or by any other just title”); id. at 384–85 (providing “[i]f

a man have continued possession of a thing during thirty years or more, no matter

how he obtained it; and no suit be brought against him for it, during the whole of

that time, he will acquire it by prescription”).

. See also JAMES GORDLEY, FOUNDATIONS OF PRIVATE LAW 142–44

(2006) (discussing work of 17th-century Dutch and Spanish scholars known as

the “late scholastics” who, following Aquinas, attempted to rationalize the

existence of bad-faith acquisitive prescription).

. See BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 17, at 7 (noting

that within Roman law one could find “the two institutions which we shall again

find in the Civil code in the form of acquisitive prescription of immovables: the

prescription of ten-to-twenty years with just title and good faith; and the

prescription by thirty years”).

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 19, at 11.

Although it conforms better with morality, a doctrine requiring good

faith in an absolute manner, is a source of difficulty in practice. There

was possibly a reason for it during the feudal era when plunder must have

been frequent. But under normal conditions it does not seem to be the

rule of law which should prevail.

628 LOUISIANA LAW REVIEW [Vol. 77

introduced too many “artificial pretexts” and special interest protections into

a socially beneficial institution.

2. French Codification and Subsequent French Commentary

Justifying Acquisitive Prescription

The promulgation of the Code Civil in 1804 resolved the debate in

France over the extent and purposes of acquisitive prescription. Rather

than limit acquisitive prescription to good-faith possessors,

the Code

Civil provided a general 30-year acquisitive prescription available to any

possessor, regardless of his bona fides or mala fides.

Planiol emphasized

that this 30-year acquisitive prescription represented “the general rule in

matters of acquisitive prescription,” while the “abridged prescription” of 10

to 20 years was “an exception.”

For Baudry-Lacantinerie and Tissier, this

broad understanding of acquisitive prescription was an article of faith.

The classic French commentators still revered in Louisiana today

generally justified acquisitive prescription in similar terms. To start, all

observed that acquisitive prescription is necessary to promote certainty and

stability in ownership, particularly when it comes to long-term possessors

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 19, at 10–11.

. The Code Civil did provide a 10-to-20-year prescriptive period for good-

faith possessors with just title in article 2265. CODE CIVIL [C. CIV.] [CIVIL CODE]

art. 2265 (Fr.) (Barrister of the Inner Temple trans. 1824) (1804).

. Id. art. 2262. “All actions, as well real as personal, are prescribed by thirty

years, without compelling the party who alleges it to produce a document thereon,

or without permitting an objection to be opposed to him derived from bad faith.”

Id. According to Aubry and Rau, the reference to “bad faith” in the last clause of

article 2262, combined with article 690, which provided for acquisitive

prescription of apparent and continuous servitudes without just title or good faith,

meant that 30-year acquisitive prescription provided not just a defense to a claim

for restitution by the “legitimate owner,” but also “a means to acquire ownership.”

AUBRY & RAU, 2 CIVIL LAW TRANSLATIONS: DROIT CIVIL FRANCAIS § 216 (Paul

Esmein ed., 7th ed. 1966). See also C. CIV. art. 690 (Fr.).

. 1 MARCEL PLANIOL, TREATISE ON THE CIVIL LAW 574 (La. St. L. Inst.

trans., 12th ed. 1959) (1939).

. As they put it:

Acquisitive prescription is a mode of acquiring ownership as a result of

a lawful possession over a certain period of time. Thus if I enter into

possession of land belonging to my neighbor and hold it thirty years as

if it were mine, the fact of my possession will become a legal title at the

end of this period. If the former owner then claims his property, I can

plead prescription and he will lose.

BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 25, at 15.

2017] PRECARIOUS POSSESSION 629

who possess by virtue of some title or conveyance. Such possessors, they

noted, would otherwise have to prove a perfect chain of title back to some

original grant from the sovereign, a burden that can often be difficult, if

not impossible, to meet, whenever they were challenged by a purported

record owner relying on a more ancient title or conveyance.

From this

perspective, acquisitive prescription provides an efficient and fair method

for this presumably innocent or good faith, long-term possessor to

establish ownership and beat back an apparently predatory claim based on

an ancient instrument. It is efficient because the evidence of possession

would presumably be more readily accessible than incomplete or old title

records. It is also fair, Baudry-Lacantinerie and Tissier suggested, because

community acquiescence to the long-term possession must mean that the

possessor has some legitimate foundation for the possession.

In general,

then, acquisitive prescription serves the valuable social purpose of

aligning title with long-term possession.

Second, focusing on 30-year acquisitive prescription in particular,

Baudry-Lacantinerie and Tissier justified “[the] spoliation of the owner”

on the owner’s own “gross negligence” in failing to protect the right and

on the likelihood that the owner’s “long silence” will lead the possessor to

conclude, with justification, that the owner has “renounced his right.”

Planiol similarly justified bad-faith acquisitive prescription by citing the

record owner’s “negligence” in failing to perform acts of possession or

otherwise protect the title.

Further emphasizing the adverse possessor’s

perspective and anticipating modern reliance interest theories,

Baudry-

Lacantinerie and Tissier also justified the transfer of title based on the

natural rights of the bad-faith possessor “who through thirty uninterrupted

years of work, activity, and, perhaps, worry, has sufficiently expiated the

violation of an unclaimed right” and thus deserves some form of

“amnesty.”

Finally, Baudry-Lacantinerie and Tissier also justified acquisitive

prescription from an even broader, societal perspective by suggesting that

the institution preserves social peace and social order. As a safety valve

would, acquisitive prescription alleviates the social pressure and

temptation for possessors to engage in acts of self-help or even violence

that could otherwise result from strict enforcement of property rights

. AUBRY & RAU, supra note 46, at 320; PLANIOL, supra note 47, at 571–

72; BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶¶ 27–29, at 16–19.

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 27, at 17 (citing Domat).

. Id. § 28, at 17–18.

. PLANIOL, supra note 47, at 571–72.

. See discussion infra at notes 135–37 and accompanying text.

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 28, at 18.

630 LOUISIANA LAW REVIEW [Vol. 77

existing in paper titles only.

Here, Baudry-Lacantinerie and Tissier

anticipate a modern strain of property theory that accounts for why, in the

United States at least, adverse possession played an important role in

resolving social tension on the American frontier in the 19th century.

Baudry-Lacantinerie and Tissier’s final utilitarian calculus, the collective

benefits favoring “social interest” served by acquisitive prescription

clearly outweigh the demoralization costs that the institution might inflict

on a few passive record owners.

B. The Concept of Precarious Possession in Roman and French Law

The term “precarious possession” also emerged from Roman law. A

Roman precarium was a specialized contract in which an owner allowed

another person to possess or enjoy a thing on the condition that it would

be returned at the owner’s demand.

The notion that precarious possession

has its origins in a contractual relationship is an important one, especially

in cases involving certain express contractual relationships and even in cases

in which the relationship between the parties emerges from an implied or

tacit contractual relationship.

For Baudry-Lacantinerie and Tissier, however, the concept of

precarious possession in Roman law was still quite narrow: “[I]t qualified

the possession of a person who received the thing with the authorization to

use it, but with the duty to return it to the owner at his first request.”

Further, the holder precario in Roman law “was the possessor of the thing

with respect to everyone except the person from whom he obtained it”; that

is, the holder’s precarious possession was only a relative vice.

Other

persons holding for another, such as lessees or usufructuaries, whose rights

of possession were not freely revocable and who did not owe a duty to

return the thing to the owner on demand, would logically not be precarious

. Id. ¶ 29, at 18–19.

. See EDUARDO MOISÉS PEÑALVER & SONIA K. KATYAL, PROPERTY

OUTLAWS 55–63 (2010); see also discussion infra note 134 and accompanying text.

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 28, at 17–18.

. A. N. Yiannopoulous, Possession, 51 LA. L. REV. 523, 552 (1991). See

also NICHOLAS, supra note 30, at 151 (referring to the status of creditor holding

collateral pursuant to a security contract as “precario”).

. See infra Part II.

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 267, at 142 (emphasis

added).

. Id.

2017] PRECARIOUS POSSESSION 631

possessors in this narrow sense.

The glossators and canonists, however,

are responsible for our current understanding of the term because they

broadened the expression “precarious possessor” to refer to “all who

possess for another and recognize a higher title.”

The concept of precarious possession was eventually codified in

articles 2230 to 2232 and article 2236 of the French Civil Code of 1804,

and these articles in turn generated significant academic commentary.

Four crucial ideas emerge from that commentary.

1. True Possession Equals Detention Supplemented by Animus

The first idea is commonplace. Possession in the true legal sense—the

type of possession necessary for acquisitive prescription, that merits

protection through a possessory action, and that generates any of the other

derivative benefits of possession—depends on two crucial, but distinct,

elements.

The person claiming to be a possessor must have physical

control of the thing, commonly referred to as “detention” or corpus, and

the intent to possess as owner—that is, animus domini—or, to use the

felicitous phrase that Professor Lee Hargrave gave us, the intent to possess

“in the manner an owner would possess.”

In short, a true possessor must

have detention and the intent to possess as if the possessor were the owner

or was on the way to becoming an owner.

To this day, Louisiana law

mirrors this understanding.

. Id. (“Those holding for another were not considered precarious possessors

in Roman law. Their status was defined by other expressions . . . .”).

. Id.

. CODE CIVIL [C. CIV.] [CIVIL CODE] art. 2230−2232, 2236 (John H. Crabb,

trans., revised ed. 1995) (1804) (Fr.).

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 197, at 106 (stating

that the definition of possession under article 2228 of the Code Napoleon applies

only to those who have “animus domini”—the intent to “hold the thing as

owners”—as well as “simple detention”).

. Lee Hargrave, Ruminations on the Revision of the Louisiana Law of

Acquisitive Prescription and Possession, 73 TUL. L. REV. 1197, 1215 (1999)

[hereinafter Ruminations].

. Baudry-Lacantinerie and Tissier point out that that the definition of

possession as “the detention of a thing by ourselves or through another person who

holds it in our name” comes from Pothier. BAUDRY-LACANTINERIE & TISSIER, supra

note 1, ¶ 194, at 105 (emphasis added). This definition was the foundation for article

2228 of the Code Civil. Id.

. Yiannopoulous, supra note 58, at 524−26 (noting that current articles

3421 and 3424 of the Louisiana Civil Code must be read in pari materia to

visualize these two essential elements of possession).

632 LOUISIANA LAW REVIEW [Vol. 77

2. Precarious Possession Cannot Produce Acquisitive Prescription

The second essential idea depends directly on the first and remains

uncontroversial. Precarious possession—possession on behalf of or for

another person—can constitute only a form of detention and, therefore,

cannot lead to acquisitive prescription on behalf of the precarious

possessor.

The reason precarious possession suffers from this disability

is that the precarious possessor is not possessing as the master of the thing;

that is, the precarious possessor is not usurping the prerogative and control

of the true owner.

To paraphrase the words of contemporary Canadian

property law scholar Larissa Katz, the possession of a precarious possessor

does not count because it does not challenge the agenda-setting authority

of the owner with sufficient rigor or clarity.

By contrast, a bad-faith

possessor, a “usurper of land” who “knows that the thing belongs to

another” and who is not possessing precariously on behalf of or with the

permission of an owner, still can, according to Baudry-Lacantinerie and

Tissier, possess with “an animus domini, for he pretends to be the owner

and acts as if he were.”

3. Initial Presumption in Favor of Possession as Owner

A third crucial idea to emerge from the French commentators, and in

particular from Baudry-Lacantinere and Tissier, is especially important for

this Article’s consideration of recent Louisiana cases. When a dispute

arises between a record owner and a possessor–claimant, a court should

initially presume that the claimant is possessing with the intent to become

owner or possessing in the manner of an owner, unless the possession

clearly began in a role that evidences the permissive, non-usurping

character of a mere detainer or precarious possessor.

The crucial text for

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 198, at 107 (noting

that article 2236 of the Code Napoleon provides that precarious possessors can

never prescribe, regardless of the length of time of their detention).

. Baudry-Lacantinerie and Tissier often reiterated this point in vivid terms.

See, e.g., id. (“[s]imple holding” may give rise to certain rights but does not

constitute a “genuine possession”).

. Larissa Katz, The Moral Paradox of Adverse Possession: Sovereignty

and Revolution in Property Law, 55 MCGILL L.J. 47 (2010).

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 265, at 141.

. Id. ¶¶ 270–272, at 143–44.

2017] PRECARIOUS POSSESSION 633

Baudry-Lacantinerie and Tissier is article 2230 of the Code Civil,

article that earned wild praise from the late nineteenth century German

jurist Rudolf von Jhering, who considered it one of “the best and most

felicitous” in French legislation,

and that still serves as a direct analogue

and source of current article 3427 of the Louisiana Civil Code.

Baudry-Lacantinerie and Tissier acknowledge that the presumption that

a possessor intends to possess as owner—or what they call the “presumption

of non-precariousness in favor of all possessors”—can be destroyed by

contrary evidence, such as proof of a title that makes the possession

precarious,”

or by a showing that the possession is “equivocal.”

They also

admit the competing influence of the presumption of continued precarious

possession found in article 2231 of the Code Civil,

the source of current

article 3438 of the Louisiana Civil Code. For precarious possession to cease,

. CODE CIVIL [C. CIV.] [CIVIL CODE] art. 2230 (John H. Crabb, trans., revised

ed. 1995) (1804) (Fr.) (“One is always presumed to possess for oneself, and as

owner, if it is not proved that one commenced to possess for another.”).

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 270, at 143. This article

was, according to Jhering, “superior to anything the doctrine has produced in our

whole century with regard to the distinction between possession and detention.” Id.

at 143−44.

. Current article 3427 reproduces the substance of article 3488 of the

Louisiana Civil Code of 1870. LA. CIV. CODE art. 3427 cmt. a (2016); see LA. CIV.

CODE art. 3488 (Benjamin W. Dart. ed. 1947) (1870) (“As to the fact itself of

possession, a person is presumed to have possessed as master and owner, unless it

appears that the possession began in the name of and for another.”). Article 3488

was based on article 3454 of the Louisiana Civil Code of 1825, which was identical

except that the word “owner” read “proprietor.” LA. CIV. CODE art. 3454 (1825).

The original codal source in Louisiana, article 39 of the Digest of 1808, read:

A person is presumed to have possessed as master and proprietor, unless it

appears that such possession began in the name of and for another, in

which case the law supposes that the possession must have been continued

for and in the name of said person, unless the contrary be shown.

LA. CIV. CODE art. 3488 (1870) (Bejamin W. Dart ed. 1947) (citing C. CIV. art.

2230 (Fr.) (1804)). Batiza concurred and also cited Article 12, Title XX, Book III

of the Projet du Gouvernement as a source. Rodolfo Batiza, The Louisiana Civil

Code of 1808: Its Actual Sources and Present Relevance, 46 TUL. L. REV. 4, 132

(1971). The revision comments to current article 3427 take the same position. LA.

CIV. CODE art. 3427 cmt. c.

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 271, at 144.

. Id.

. To explain this second presumption, Baudry-Lacantinerie and Tissier turn

to Bigot-Preamenau who explained that “[a] person who holds for another continues

and renews at every instant the possession of the person for whom he holds.” Id. ¶

272, at 144.

634 LOUISIANA LAW REVIEW [Vol. 77

the French Civil Code required an “interversion,” some act by the owner or

by a third party that changed the status of the possession.

Current Louisiana

law basically continues this approach, although it allows the precarious

possessor somewhat wider scope to terminate the vice of precariousness by

communicating new intentions through “overt and unambiguous acts

sufficient to give notice” if the precarious possessor is a co-owner or

through “actual notice” if the precarious possessor is any other kind of

precarious possessor.

4. Limited Juridical Effect of Acts Governed by Article 2232 of Code

Civil

The fourth crucial idea to emerge from the Code Civil and our French

doctrinal sources finds expression in article 2232 of that code: “[a]cts of

pure convenience and those of mere tolerance may establish neither

possession nor prescription.”

This Article refers to two categories of

detention not exhibited by classic precarious possessors, such as lessees,

depositaries, or usufructuaries. Because these acts of detention are too

insignificant, too equivocal, or too harmless to be truly adverse to owners,

the Code Civil implies that true owners must be tolerating such acts and

therefore the acts are incapable of leading to acquisitive prescription. This

important idea survived as an express rule of the Louisiana Civil Code until

1982,

when it was omitted in the most recent revision of the chapters

. Id. ¶ 273, at 144. See also id. ¶ 322, at 170−71 (noting that the “vice of

precariousness is in principle indelible” in the sense that “the possessor can not

eliminate it through his own will,” and thus it can only cease if “the conditions

provided by Art. 2238 materialize”); id. ¶¶ 328–36, at 173−77 (elaborating on the

various means by which precarious possession can be interverted).

. LA. CIV. CODE arts. 3439, 3478.

. C. CIV. 2232 (Fr.) (1804), as translated in BAUDRY-LACANTINERIE &

TISSIER, supra note 1, ¶ 274, at 145. Another translation of the article states: “Acts

of pure license and simple toleration can lay no foundation either for possession

or prescription.” C. CIV. art. 2232 (Barrister of the Inner Temple trans., 1804)

(Fr.). In French, the article provides: “Les actes de pure faculté et ceux de simple

tolérance ne peuvent fonder ni possession ni prescription.” C. CIV. art. 2232 (Fr.).

. Article 3490 of the Louisiana Civil Code of 1870 provided:

The circumstance of having been in possession by the permission or

through the indulgence of another person, gives neither legal possession

nor the right of prescribing.

Thus, those who possess precariously, that is, by having prayed the

master to let them have the possession, do not deprive him thereof, but,

possessing by his consent, they possess for him.

2017] PRECARIOUS POSSESSION 635

addressing possession and acquisitive prescription. Of course, the Louisiana

Supreme Court in Boudreaux resurrected this idea when the Court confronted

a classic dispute between neighbors rather than a dispute between strangers or

between an owner and someone possessing by virtue of a contractual or legal

status relationship, such as a lessee or usufructuary.

a. Pure Facultative Acts

The first category of ineffective acts referenced in article 2232—acts

of pure “convenience,” “license,” or “faculty,” that is, “facultative acts”—

needs little discussion because this particular notion did not cross into the

Louisiana Civil Code.

The only important point about “acts of pure

convenience” is that they cannot lead to prescription because the actor is

not acting in the manner of a “ master” and no outward sign indicates that

“two rights [are] in conflict.”

b. Acts of Simple Tolerance

The second category of acts referenced by article 2232, acts of simple

tolerance, is more important because it resurfaced prominently in Boudreaux,

and might arise in any other typical neighbor dispute. Examples of acts of

simple tolerance noted by Baudry-Lacantinerie and Tissier include entering a

Article 3456 of the Louisiana Civil Code of 1825 and article 40 of the Digest of

1808 contained identical language, with only slight variation in punctuation.

. Boudreaux v. Cummings, 167 So. 3d 559, 562−63 (La. 2015).

. According to Baudry-Lacantinerie and Tissier, “facultative acts” can be

understood as acts that an owner undertakes on his own property that may affect

another owner’s enjoyment of that owner’s property, but that do not lead to the

acquisition of any prescriptive rights. BAUDRY-LACANTINERIE & TISSIER, supra

note 1, ¶¶ 277–278, at 146–48. Admittedly, this statement sounds circular, but an

example clarifies the idea. Presume owner A makes an opening in a wall that he

owns and that happens to be contiguous to an adjacent estate owned by B and

presume that the opening exists for 30 years. Id. This “facultative” act does not

mean that owner A can prevent owner B from erecting a construction or planting

a tree that might block the view out of the opening. Id. ¶ 277, at 146. A facultative

act of this nature, which is “only an exercise of faculties given by the statutes, or

a normal exercise of ownership rights,” cannot lead to acquisitive prescription

because it does not diminish the rights of another owner, even if the other owner is

passive for a long period. Id. ¶ 278, at 146. The rule in article 2232 regarding

facultative acts can also be understood as a restatement of the principle that negative

servitudes cannot be acquired by acquisitive prescription. Id. ¶ 278, at 147.

. Id. ¶ 281, at 148.

. Boudreaux, 167 So. 3d at 562–63.

636 LOUISIANA LAW REVIEW [Vol. 77

neighbor’s land to draw water from a well or to pick mushrooms from a

forest.

Although these acts represent more of “[an] encroachment” upon

or challenge to the owner’s right to control the property than acts of pure

convenience,

they still do not lead to prescription because they do not

cause any “appreciable damage to the other” and are not “sufficiently

serious to represent a usurpation which should be repressed.”

importantly, these acts of simple tolerance are equated with “precarious

concession” out of a need to coordinate social interaction.

If owners were

required to suppress them out of fear that prescription might start to run,

“[g]ood neighborly relations would thus be upset.”

Such acts of “simple

toleration” can turn into acts of possession sufficient to lead to prescription

if, as suggested in article 2238 of the Code Civil, some kind of

“interversion in fact” occurs.

But, absent such an interversion, the person

who engages in acts of mere tolerance is more like a fiduciary with respect

to the true owner. To terminate the possessor’s precariousness, this kind

of possessor must clearly signal an intent to challenge the owner’s

authority.

C. Louisiana Commentary After the 1982 Revision of the Civil Code

In 1982, the Louisiana legislature enacted five revised chapters of the

Civil Code to address occupancy, possession, and acquisitive prescription.

In addition to creating a more systematic and terse statement of this body of

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 282, at 149.

. Id.

. Id. Baudry-Lacantiner and Tissier also provide this vivid example from

French case law: a landowner allows a community to host a harvest festival on his

land every year for more than 30 years. Id. Despite a plea of prescription, the

landowner can stop the festival because the owner simply tolerated the use. Id.

The community’s use of land was in its interest, but also in the landowner’s

interest because the excrements deposited by animals fertilized his field. Id. These

principles also reinforced the French Civil Code’s prohibition against acquisitive

prescription of discontinuous servitudes. Id. Acts of quasi-possession that might

be sufficient to establish exercise of an existing conventional servitude are not,

from the perspective of a landowner, a substantial encroachment because they can

also be explained as acts of simple tolerance. Id. ¶ 283, at 150.

. For example, if a non-riparian landowner built exterior works across a

riparian neighbor’s land to carry water to the non-riparian’s own estate for

purposes of irrigation, this action might suffice. Id. ¶ 2861, at 151.

. Katz, supra note 71, at 67.

. 1982 La. Acts No. 187 (adopting LA. CIV. CODE arts. 3412−3491).

2017] PRECARIOUS POSSESSION 637

law, the 1982 revision specifically clarified that the Civil Code rules

regarding the attributes, vices, and tacking of possession apply not only in

the context of acquisitive prescription, but also to the protection of

possession in its own right.

In the specific context of precarious

possession, the revision succeeded in streamlining and consolidating many

articles from the old law

and made one substantive change: for the first

time, Louisiana law clearly permitted a precarious possessor, “such as a

lessee or depositary,” to bring a possessory action “against anyone except

the person for whom he possesses.”

Soon after the revision came into effect, commentators began to point

out problems. Professor Symeonides, for example, noted that the revised

Civil Code articles addressing the means by which precarious possessors

can terminate their precariousness create needless confusion.

At the same

time, Professor Lee Hargrave began to warn that revised articles 3427 and

3438, which contain the two central presumptions governing possession

. Symeon Symeonides, One Hundred Footnotes to the New Law of

Possession and Acquisitive Prescription, 44 LA. L. REV. 69, 70−72 (1983).

. Under the 1870 Civil Code, articles dealing with precarious possession

were found in the chapter on possession in the subsection on ten-year acquisitive

prescription and in the subsection on causes preventing acquisitive prescription,

but under the revision, they appear primarily in the chapter on possession, LA.

CIV. CODE arts. 3428−3429, 3437−2440 (2007), and in the title on prescription,

LA. CIV. CODE arts. 3477−2479 (2011). Symeonides, supra note 96, at 82 n.33.

. LA. CIV. CODE art. 3440 (2007). This change effectively overrules article

3656 of the Louisiana Code of Civil Procedure and brings Louisiana up to date

with the modern approach taken in France and other civil law jurisdictions. LA.

CIV. CODE art. 3440 cmt. b−c (2007). See also C. CIV. arts. 2282−2283 (Fr.)

(added in 1975). For more commentary and the view that “the granting of the

possessory action to the lessee is really a specious gift,” see Symeonides, supra

note 96, at 91 n.41.

. Although the new rules set forth in articles 3439 and 3478 of the Civil

Code confirmed pre-revision jurisprudence in some ways, Symeonides warned

that the revision had created a needless, and perhaps illogical, distinction by

allowing co-owners to terminate precarious possession through “overt and

unambiguous acts sufficient to give notice,” while all other precarious possessors

had to demonstrate “actual notice” of their intent to possess as owners. If any

distinction was warranted, he noted, the “less exacting standard” should have been

imposed on co-owners because they are less likely to arouse suspicion than other

precarious possessors such as lessees. Symeonides, supra note 96, at 87 n.38.

638 LOUISIANA LAW REVIEW [Vol. 77

and precarious possession, were “circular”

100

and “redundant,”

101

respectively. Missing from the revised Civil Code, Hargrave argued, was

a clear statement of what he described as the “core rule,” which he stated

in the following terms:

The person alleging the precariousness of another’s possession

has the burden of proving that fact. Proof that the possessor

possessed for another discharges that burden. Once a precarious

possession is established, the burden shifts to the precarious

possessor who must then prove that he meets the requirements of

Article 3439.

102

A dozen years later, Hargrave returned to these subjects and suggested

that recent judicial decisions threatened to incorporate a requirement that

possessors have a subjective belief that they are owners of the property

they are possessing to be legitimate possessors.

103

Hargrave disagreed with

this approach because the Louisiana Civil Code, just like the Code Civil,

clearly contemplates that legal possessors can, in fact, be in bad faith; that

is, they “can know subjectively [they do] not own the thing.”

104

All that

the Civil Code actually requires, according to Hargrave, is that the

possessor “must intend to possess in the manner an owner would

possess.”

105

In other words, the requirement of an intent to possess as

owner must be interpreted objectively, in a manner that focuses not on

what is taking place in the mind of the possessor, but rather on the “style

of possessing.”

106

When determining a possessor’s intentions, Hargrave

100

. Lee Hargrave, Presumptions and Burdens of Proof in Louisiana Property

Law, 46 LA. L. REV. 225, 236 (1985) [hereinafter Presumptions]. With respect to

the presumption found in article 3427 stating that a possessor is presumed to

possess as owner “unless he [the possessor] began to possess in the name of and

for another,” Hargrave observed that “possession for another is the same thing

that should be proved to disprove possessing as owner.” Id.

101

. Id. at 237. The sole purpose of article 3438, Hargrave noted, was to open

the door to application of the objective standards found in article 3439 for

providing notice to the true owner of a precarious possessor’s newly formed

acquisitive intentions. Id. at 236. Thus, article 3438 merely restates a rule of

substantive law and does not truly provide a new presumption. Id.

102

. Presumptions, supra note 100, at 237.

103

. Ruminations, supra note 66.

104

. Id. at 1215−16.

105

. Id. at 1215.

106

. Id. Hargrave located ample statutory authority for his objective approach to

the question of intent to possess. In particular, he cited LA. CODE CIV. PROC. art. 3660

2017] PRECARIOUS POSSESSION 639

contended, a court should look at “circumstances” and “objective acts” to

make reasonable inferences

107

and should be careful to employ a “flexible

definition of possessing as owner as not to defeat [the] institution” of 30-

year acquisitive prescription and “the reliance interests it protects.”

108

Hargrave’s primary example of the problematic judicial slide into

subjectivity was the decision in Levy v. Germania Plantation.

109

In this

case, the Louisiana First Circuit Court of Appeal held that a possessor,

who had physically occupied and used vacant farmland and woodland for

more than 60 years but did not know the identity of the land’s true owner

and did not pay rent to use the land, was nevertheless a precarious

possessor because he realized only that he might have a claim to the land

when a land man asked him to execute oil and gas leases.

110

The holding

in Levy, Hargrave warned, “virtually reads the concept of bad-faith

possession out of the code and penalizes a layman for lack of knowledge

of legal concepts.”

111

In addition, it also misidentified the crucial question:

“The issue was not whether [the possessor–claimant] thought he was

owner, but whether he intended to possess as an owner would, that is, for

himself rather than for another.”

112

Hargrave’s discussion of Levy is now

eerily prescient in light of the uncertainty created by Boudreaux v.

Cummings.

113

(1998), stating that a possessor is a person who “possesses for himself, whether in

good or bad faith, or even as usurper.” Ruminations, supra note 66, at 1216.

107

. Id. at 1216.

108

. Id. at 1217.

109

. 395 So. 2d 366 (La. Ct. App. 1981).

110

. Id. at 371. This admission, the court held, rebutted the “strong

presumption under our law” that a possessor intends to possess for himself as

owner, even though the claimant was “possessing the property in the same manner

as he would have if he had had record title.” Id.

111

. Ruminations, supra note 66, at 1217.

112

. Id. The court in Levy was apparently aware that it was treading on thin

ice. Absent the claimant’s candor, the court noted, “his claim was in perfect

posture for him to reap the benefits of the presumption which our law grants unto

a possessor.” Levy, 395 So. 2d at 371. The court in Levy also relied in part on

Humble v. Dewey, a decision that Hargrave called “equally erroneous.”

Ruminations, supra note 66, at 1217 n.177 (citing Humble v. Dewey, 215 So. 2d

278, 382−83 (La. Ct. App. 1968)).

113

. 167 So. 3d 559, 565 (La. 2015).

640 LOUISIANA LAW REVIEW [Vol. 77

D. The Virtues of Louisiana’s Two-Tier Model of Acquisitive

Prescription

Before moving on to a detailed consideration of Boudreaux and other

Louisiana jurisprudence addressing the problem of precarious possession, this

Article briefly pauses to reflect on the virtues of Louisiana’s two-tier

institution of acquisitive prescription. These virtues are important to note not

only because of Justice Knoll’s warning that the majority opinion in

Boudreaux threatens to undermine the entire institution of acquisitive

prescription in Louisiana,

114

but also because adverse possession, acquisitive

prescription’s common law twin, has been subjected to criticism in some

American law reviews

115

and has recently been modified by a few state

legislatures.

116

114

. Id.

115

. See, e.g., Carol N. Brown & Serena M. Williams, Rethinking Adverse

Possession: An Essay on Ownership and Possession, 60 SYRACUSE L. REV. 583

(2010) (contending that adverse possession should be abrogated on fairness and

efficiency grounds); Lee Anne Fennell, Efficient Trespass: The Case for “Bad

Faith” Acquisitive Prescription, 100 NW. U. L. REV. 1037 (2006) (arguing that

only bad-faith possessors should be allowed to gain title and they should be

required to document their intent to acquire ownership through an offer to

purchase or by recording or registering notice of their aggressive intentions);

Jeffery Evans Stake, The Uneasy Case for Adverse Possession, 89 GEO. L.J. 2419

(2001) (critiquing many of the traditional rationales offered in support of adverse

possession); John G. Sprankling, An Environmental Critique of Adverse Possession,

79 CORNELL L. REV. 816 (1994) (arguing that U.S. adverse possession law leads to

exploitation and destruction of wild lands and wilderness, and therefore adverse

possession should not be applicable to wild lands).

116

. See, e.g., COLO. REV. STAT. ANN. § 38-41-101(3)(b)(II) (West 2016)

(amended 2008) (allowing adverse possession only if adverse possessors “had a

good faith belief [that they] w[ere] the actual owner of the property and the belief

was reasonable under the particular circumstances”); N.Y. REAL PROP. ACTS LAW

§ 501(3) (McKinney 2016) (amended 2008) (requiring adverse possession

claimant to show “a reasonable basis for the belief that the property belongs to the

adverse possessor”); ALASKA STAT. ANN. § 09.45.052 (West 2016) (amended

2003) (providing that in border cases, adverse possessors can prevail only if they

have “a good faith but mistaken belief” that the property lay within the borders of

their own land). New York also appears to have drastically curtailed adverse

possession in border cases involving encroachments by enacting a conclusive

presumption that all occupations of an adjoining property owner’s land are

“permissive” unless the encroachments involve substantial structures. N.Y. REAL

PROP. ACTS LAW § 543. For criticism of these developments, see Joseph W.

Singer, The Rule of Reason in Property Law, 46 U.C. DAVIS L. REV. 1369, 1398

(2013).

2017] PRECARIOUS POSSESSION 641

First, Louisiana’s two-tier structure, in which ownership and other real

rights in immovables can be acquired if the claimant proves ten years of

continuous possession plus just title and good faith at the commencement

of possession, or 30 years of possession with neither just title nor good

faith, satisfies the crucial utilitarian ends of a “limitations model” of

adverse possession.

117

Just like the French doctrinal commentators whose

justifications for acquisitive prescription were outlined in Part I.A.2,

118

many American property scholars have suggested that adverse possession

is valuable because it too provides repose, clears title, and promotes

certainty for long-term possessors.

119

Several variations of this limitations justification for adverse

possession exist. In one version, adverse possession improves the

efficiency and reliability of the judicial process by quickly disposing of

claims based on lost, unreliable, or stale titles and potentially unreliable

testimony about events in the distant past.

120

Another version of this

quieting title rationale focuses on how the institution protects a long-term

possessor who possesses by virtue of some title or conveyance and who,

when threatened by a person relying on an older instrument or conveyance,

would otherwise have to prove a perfect chain of title back to the

sovereign.

121

Finally, a third version of the limitations rationale focuses on

how adverse possession serves the interests of third parties and the

property marketplace in general by providing an efficient and practical

alternative to expensive title examinations or title insurance.

122

Some scholars have criticized the assumptions underlying these

limitations rationales by noting the availability of alternative tools for

quieting title—in particular marketable title acts and title insurance—and

117

. Sprankling coined the term “limitations model” to describe a cluster of

rationales for adverse possession. Sprankling, supra note 115, at 819.

118

. See discussion supra notes 45–57 and accompanying text.

119

. Sprankling observed that generally American property law views adverse

possession as a “specialized application of the statute of limitations” that simply

bars a suit by the disposed landowner to eject the adverse claimant. Sprankling,

supra note 115, at 818. This dominant view, he claimed, is rooted in the same

policies underlying any statute of limitations: “avoiding ‘stale claims’ and

allowing repose.” Id. at 819. Other scholars have made similar arguments. See

Henry Ballantine, Title by Adverse Possession, 32 HARV. L. REV. 135 (1918);

Thomas W. Merrill, Property Rules, Liability Rules, and Adverse Possession, 79

NW. U. L. REV. 1112, 1128−30 (1985) (articulating a cluster of rationales that

generally relate to the limitations oriented goal of promoting legal certainty by

quieting titles).

120

. See Merrill, supra note 119, at 1128.

121

. Id.

122

. ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 155 (1988).

642 LOUISIANA LAW REVIEW [Vol. 77

by pointing to the growing reliability of recording systems, land registries, and

modern surveying techniques.

123

Nevertheless, the limitations model still has

important adherents among common law scholars, particularly those who

emphasize its ability to reduce transaction costs and promote efficiency.

124

a similar fashion, Louisiana’s ten-year acquisitive prescription regime

promotes legal certainty for good-faith possessors who have relied on a just

title to fend off spurious claims based on old titles or brought by short-term

possessors who may have seized possession coercively.

125

Louisiana’s 30-

year acquisitive prescription regime also protects the interests of possessors

who, for any number of sometimes understandable reasons, may not be able

to prove good faith or just title, but who nevertheless have justifiable reliance

interests based on their long-term possession of land.

Second, Louisiana’s two-tier structure of acquisitive prescription

responds to the moral concerns raised by critics of “bad-faith adverse

possession” and by advocates of a narrower “administrative model” of

adverse possession who believe these doctrines should be limited to helping

or at least favoring reasonable, good-faith possessors who would otherwise be

harmed by innocent conveyancing mistakes.

126

Louisiana’s system responds

123

. See Fennell, supra note 115, at 1063−64 (pointing to marketable title acts

and title insurance); Stake, supra note 115, at 2441−49 (stressing that marketable

title acts are a superior tool for quieting title, arguing that betterment acts can

protect innocent encroachers, noting the increasing accuracy and inexpensiveness

of surveys, and suggesting that “elimination of adverse possession would lead to

even more careful recording of transactions”).

124

. See Merrill, supra note 119, at 1129 (observing that even in an idealized

world of universal and perfectly accurate recording systems and indestructible,

perfectly measured property boundaries, adverse possession would be still be

useful to third parties seeking to engage in property transactions because titles

could still be clogged by old, outdated property interests, which would all have to

be traced to their current successors before releases could be obtained and that

this practice could lead to more exhausting title examinations, more negotiation

and payoffs, and more expensive title insurance premiums).

125

. See Douglas Nichols, Comment, The Publician Action, 69 TUL. L. REV. 217

(1994) (discussing the difficult burden of proof facing a record owner bringing a

petitory action against a party in possession created by Pure Oil v. Skinner, 294 So.

2d 797 (La. 1974)); see also Baker v. Romero, 55 So. 3d 1035 (La. Ct. App. 2011).

126

. See Merrill, supra note 119, at 1134, 1145−53 (arguing that property

law’s interest in “punishing or deterring those who engage in purely coercive

transfers of property” justifies a change in the law whereby owners who lose title

to their land through adverse possession to “bad faith” possessors would have a

right to seek just compensation for the value of the land lost at the time the

claimant’s adverse possession began); Helmholz, supra note 26 (arguing that

American courts routinely favor good-faith possessors over bad-faith possessors).

2017] PRECARIOUS POSSESSION 643

to these concerns by giving possessors who can demonstrate both an

objectively reasonable belief that they own the land they are possessing

and a just title describing all of the property in dispute a substantially

shorter prescriptive period to endure before their possession ripens into

ownership of other real rights. At the same time, by utilizing a much longer

prescriptive period—30 years, an entire generation—for possessors who

cannot meet either of these requirements, Louisiana’s system respects the

moral objections that acquisitive prescription might transfer title too easily

to possessors who either intentionally possess land they know they do not

own or at least possess it carelessly.

127

Also noteworthy is that by

transferring title to either kind of possessor at the end of the respective

prescriptive period without any compensation to the record owner,

Louisiana’s system also avoids the complicated and perhaps intractable

problem of determining just compensation that a liability rule approach to

adverse possession would entail, regardless of whether such an approach

applied to only bad-faith acquisitive prescription or to both forms.

128

Third, just as Planiol and Baudry-Lacantinerie and Tissier observed in

France,

129

Louisiana’s acquisitive prescription fulfills the objectives

associated with what American scholars call the “development model” of

adverse possession.

130

It does so by shifting title from a passive or even a

negligent record owner, who has failed to put his property to productive

use or to monitor the property, to the industrious or diligent possessor, who

127

. See Fennell, supra note 115, at 1048−49 (summarizing the moral disapproval

showered on “bad faith possessors”).

128

. Richard Epstein made precisely this point in assessing Merrill’s proposal

to convert the remedial structure of adverse possession from a universal “property

rule” mechanism to a “liability rule” mechanism for bad-faith adverse possessors.

Richard Epstein, Past and Future: The Temporal Dimension in the Law of

Property, 64 WASH. U.L.Q. 667, 685−89 (1986). In Epstein’s view, a longer

statute of limitations for bad-faith possessors would satisfy moral qualms about

allowing adverse possession to benefit land thieves too easily, but it would still

serve the instrumental objectives of quieting title and promoting legal certainty.

Id. at 686−89. Epstein disapproved of Merrill’s liability rule solution to the

dilemma of bad-faith adverse possession because liability rules that require courts

to determine the objective value of property are “costly to administer and undercut

the security of transactions concern that lies at the base of the [adverse possession]

rule.” Id. at 689.

129

. See discussion supra notes 51−54 and accompanying text.

130

. Sprankling, supra note 115, at 816. Sprankling argued that over the

course of the 19th and 20th centuries, American courts transformed adverse

possession from “a mechanism designed to protect the title of the true owner

against false claims into a tool designed to transfer title to wild lands from the

idle true owner to the industrious adverse possessor.” Id. at 821.

644 LOUISIANA LAW REVIEW [Vol. 77

has taken charge of vacant property and often put it to some higher value

use,

131

or has at least “set an agenda” for the property and took pains to make

sure that others respect that agenda.

132

Also, just as the French doctrinal

writers pointed out a century ago,

133

Louisiana’s two-tier structure of

acquisitive prescription still performs the important societal function of

aligning actual title with community expectations and assumptions about

who deserves to be treated as the owner.

134

Finally, Louisiana’s two-tier acquisitive prescription regime allows its

property law to honor the powerful psychological and emotional attachments

that possessors can develop with regard to a thing they possess for a long

131

. See Fennell, supra note 115, at 1040 (the “niche goal of adverse

possession” is the task of “moving land into the hands of parties who value it

much more highly than do the record owners”); Ben Depoorter, Fair Trespass,

111 COLUM. L. REV. 1090, 1113 (2011) (adverse possession promotes efficient

development by “encouraging careful contracting, reducing land title conflicts,

[and] rewarding productive uses of scarce resources”); Sally Brown Richardson,

Abandonment and Adverse Possession, 52 HOUSTON L. REV. 1386 (2015)

(arguing for relaxation of corporeal possession requirement to allow adverse

possessors to obtain title to abandoned property); COOTER & ULEN, supra note

122 (justifying adverse possession because, inter alia, it specifies “procedures for

a productive user to take title from an unproductive one”); Merrill, supra note

119, at 1130 (referring to this general cluster of rationales as punishing those who

“sleep on their rights” by ignoring their property or otherwise engaging in “poor

custodial practices”); GORDLEY, supra note 41, at 141 (contending that the most

persuasive justification for adverse possession and acquisitive prescription is to

transfer title from an absent, passive owner—from “an owner who has not

behaved like an owner and has not even checked to see how his land is being

used”—to a possessor who is “putting [the land] to use”).

132

. See generally Katz, supra note 71, at 67−70 (defending adverse possession

because it identifies objects that are subject to an agenda-setting vacancy and assures

that there is always an individual with “agenda-setting authority” in control of a

thing). Similarly, Gordley suggests that the problem solved by adverse possession

or acquisitive prescription arises when the record owner “has made no such decision

at all” with respect to the property and the owner’s lack of attention “has only

muddled titles.” GORDLEY, supra note 41, at 144.

133

. See discussion supra notes 49−56 and accompanying text.

134

. PEÑALVER & KATYAL, supra note 56, at 55–63 (recounting how the men

and women who settled the American frontier, often without the benefit of formal

title to the land they settled, came to be treated as heroic or at least strategic

adverse possessors who successfully resisted the federal land distribution policies

of the United States government in the first half of the 19th century).

2017] PRECARIOUS POSSESSION 645

period of time,

135

and to the related reliance interests

136

and endowment effect

interests

137

that build up in long-term possessors. In short, just as adverse

possession does, acquisitive prescription helps to stabilize Louisiana property

law, but it also preserves the ability to respond flexibly to discrepancies

between long-term possession and paper titles.

135

. Drawing on Kant, Hegel, and probably Bentham, Oliver Wendell Holmes

first stated this idea in O.W. HOLMES, JR., THE COMMON LAW 207 (1881)

(“Possession is to be protected because a man by taking possession of an object

has brought it within the sphere of his will.”), and expanded it in O.W. Holmes,

The Path of the Law, 10 HARV. L. REV. 457, 477 (1897) (“A thing which you have

enjoyed and used as your own for a long time, whether property or an opinion,

takes root in your being and cannot be torn away without your resenting the act

and trying to defend yourself, however you came by it.”). Margaret Radin

extended Holmes’s idea with her own theory of “property and personhood.”

Margaret Jane Radin, Time, Possession and Alienation, 64 WASH. U.L.Q. 739,

741 (1986) (asserting that a person’s “claim to an owned object grows stronger

as, over time, the holder becomes bound up with the object,” and “[c]onversely,

the claim [of a record owner] to an object grows weaker as the will (or

personhood) is withdrawn”); see also RICHARD A. POSNER, ECONOMIC ANALYSIS

OF THE LAW 78–79 (7th ed. 2007) (restating Holmes’s theory with an “economic

explanation” cast in terms of Benthamite pleasure and pain).

136

. Joseph William Singer, The Reliance Interest in Property Law, 40 STAN.

L. REV. 614, 666–67 (1988); Merrill, supra note 119, at 1131 (also identifying

“the reliance interest” justification for adverse possession and noting at least three

alternative variations). Although he notes that the reliance interest rationale

contradicts “the interest of a T[itle] O[wner] and society generally in preserving

the integrity of the set of entitlements grounded in law,” id. at 1132, Merrill

ultimately endorses the rationale by suggesting a fourth version—the reliance

interests of third parties who have an interest in being able to assume, without

expensive and time-consuming title examinations, that the person who has been

in long term possession of property actually has title to the property. Id. Merrill

calls this the right to rely on the “appearance of title.” Id.

137

. Jeffery Stake makes a powerful case for the continuing viability of

adverse possession by updating Holmes’s “roots” rationale and Radin’s

personality theory version through the experimental psychology concept known

as “the endowment effect” and its close cousin “loss-aversion” theory. Stake,

supra note 115. Stake argues that “people become more attached to tangible

physical assets than to financial assets and feel a greater sense of loss when

deprived of tangible physical objects than when deprived of intangibles that have

the same value to a purchaser.” Id. at 2463. Stake sums up his argument for an

endowment effect understanding of adverse possession by observing that many

adverse possession disputes are really contests between two relatively innocent

parties and that when forced to choose which party has to bear a loss, adverse

possession simply and sensibly “choses to deprive R[ecord] O[wner] of his financial

asset rather than deprive A[dverse] P[ossessor] of her tangible asset.” Id. at 2471.

646 LOUISIANA LAW REVIEW [Vol. 77

II. THREE PARADIGMATIC POSSESSION AND ACQUISITIVE PRESCRIPTION

DISPUTES: A SOCIAL AND RELATIONAL APPROACH

Multiple property law scholars have suggested that adverse possession

and acquisitive prescription disputes should be viewed from perspectives

other than traditional doctrinal categories. Thirty years ago, Margaret

Radin divided adverse possession cases into three paradigms: “color of

title,” “boundaries,” and “squatters” cases.

138

In the first, the possessor

holds an “invalid document of title and eventually has to defend against

the ‘true owner’ or someone claiming under her.”

139

In a “boundaries”

case, “the boundary line observed by neighboring property owners in

practice does not correspond with what their documents say,” and

eventually one of the neighbors litigates to address the discrepancy.

140

Finally, in a “squatters” case, “aggressive trespassers” take over plots of

ground and treat it as their own.

141

Although Radin’s three paradigms hint

at the social relationships between the parties, her categories are primarily

defined by the structure of legal and moral problems confronting courts in

each type of case. Also, Radin generated her paradigms for the limited

purpose of demonstrating why her “personality theory” of property

explained a statutory or judicial preference for good-faith over bad-faith

possessors.

142

More recently, James Smith has suggested that an emerging body of

law under the heading of the “law of neighbors” can be understood more

clearly if scholars and courts distinguish between cases in which the

parties are absolute strangers to one another and cases in which the parties

are friends or enjoy some special relationship with each other.

143

Smith

argues that application of a “stranger model” and a “friend model” could

help make sense of some of the specialized presumptions and burdens of

138

. Radin, supra note 135, at 746.

139

. Id.

140

. Id.

141

. Id. Without any empirical support, Radin asserted that “color of title” and

“boundaries” cases were much more common than “squatters” cases. Id.

142

. Id. at 749. In Radin’s view, it is quite natural that courts and legislators

would favor mistaken good-faith claimants because they develop bonds more

quickly with the land they possess, as they already believe they own it. Following

Hegel, however, Radin acknowledged that even squatters or bad-faith possessors

can, over time, develop strong psychological bonds of their own with the thing

possessed. Id.

143

. James Charles Smith, Some Preliminary Thoughts on the Law of Neighbors,

39 GA. J. INT’L & COMP. L. 757, 758–60 (2011).

2017] PRECARIOUS POSSESSION 647

proof that courts in the United States have developed to deal with problems

of permissive use in adverse possession cases.

144

Building on Radin’s and Smith’s paradigms, this Article proposes that

the Louisiana legal community should view its own body of acquisitive

prescription jurisprudence as consisting of three categories of cases. The

first category consists of cases in which the parties are in fact strangers to

one another. Although the nature of a possessor’s claim could grow out of

a conveyance error or confusion over a boundary location or could result

from a more aggressive assertion of dominion, the most salient

characteristic of a “stranger” case is that the parties do not share a

preexisting relationship. Although they may own adjacent tracts of land,

they are not neighbors in the sense of inhabiting neighboring lots or

belonging to the same neighborhood community. In a “stranger” case, the

true owner is often an absentee owner who does not live on or near the

land and does not regularly use or visit the land in dispute. In these cases,

the existing presumptions and burdens of proof found in the Louisiana

Civil Code, despite the infirmities noted by Professor Hargrave, work well

enough and generally produce consistent or stable results. In a “stranger”

case, courts will usually characterize the claimant–possessor as possessing

as owner and only rarely as a precarious possessor.

In the second category of cases, the parties are not strangers, but are

linked to one another by a preexisting contractual relationship or some

special legal status relationship. In these cases, courts classify the possessor–

claimant as a precarious possessor at the outset of the possession. The

crucial question then becomes when, if ever, the precarious possessor has

terminated the precarious possession and begun to possess as owner.

Although the results of these contractual and legal status cases are less

predictable than “stranger” cases, still the presumptions and burdens of

proof provided by Louisiana Civil Code articles 3427, 3438, 3439, and

3478 operate effectively.

145

By using these tools and developing some of

their own jurisprudential rules of thumb, Louisiana courts have been able

to produce outcomes that are sensitive to the particular contractual or

social relationship that initially bound the parties together.

The third category of cases involves true neighbors—persons who

actually live near to each other and know one another or at least belong to

the same close-knit community. Despite these neighborly ties, the parties

144

. Id. at 760−63. For another example of an insightful contextualized

approach to understanding conflicts in adverse possession law, see Luke Meier, A

Contextual Approach to Claim of Right in Adverse Possession Cases: On Van

Valkenburgh v. Lutz, Bad Faith and Mistaken Boundaries, 19 LEWIS & CLARK L.

REV. 47, 53–54 (2015).

145

. LA. CIV. CODE arts. 3427, 3438, 3439, 3478 (2016).

648 LOUISIANA LAW REVIEW [Vol. 77

in a neighbor dispute do not have any other preexisting contractual, family,

or legal status relationship. When courts confront this third kind of case,

the outcomes tend to be more unpredictable. In these cases, significant

equitable considerations are in tension with one another. In a neighbor

case, the court will often focus as much on the assumptions and

expectations that the true owner may have reasonably developed based on

the specific nature of the neighbor relationship as on the state of mind and

expectations of the claimant–possessor. It is precisely in these cases that

the existing framework of presumptions provided by articles 3427 and

3438 of the Louisiana Civil Code proves to be the most inadequate. To

remedy this deficiency, Part III of this Article proposes that Louisiana law

would be well served by the development of a new presumption of sharing

and corresponding indicia of giving or renunciation that could help courts

analyze these inherently difficult cases with greater contextual and

relational sensitivity.

A. Strangers

Louisiana courts are most confident in resolving precarious possession

defenses in cases in which the claimant–possessor and record owner are true

strangers to one another, that is, when the person asserting possession in a

possessory action or acquisitive prescription in some other procedural setting

has no relationship at all with the record owner. In some stranger cases, the

claimant–possessor is an opportunistic trespasser, a person who observes that

a parcel of land is unused, unfenced, and not actively monitored by anyone

and begins to engage in active corporeal possession.

146

In some stranger cases,

however, claimants may have an honest, though mistaken, belief that they

own the land in dispute but cannot prove a just title describing all of the land

and thus must rely on 30-year, rather than ten-year, acquisitive prescription.

147

As this Section will show, in most paradigmatic stranger cases, courts

146

. See, e.g., Liner v. Louisiana Land & Exploration Co., 319 So. 2d 766 (La.

1975); Brunson v. Hemmler, 989 So. 2d 246 (La. Ct. App. 2008); Charles Tolmas,

Inc. v. Lee, 903 So. 2d 661 (La. Ct. App. 2005); Williams v. McEacharn, 464 So. 2d

20 (La. Ct. App. 1985); Secret Cove, L.L.C. v. Thomas, 862 So. 2d. 1010 (La. Ct.

App. 2003); St. John Baptist Church of Phoenix v. Thomas, 1 So. 3d 618, 62226 (La.

Ct. App. 2008), all discussed infra notes 153–88 and accompanying text.

147

. Many boundary actions, especially in boundary tacking actions arising

under article 794 of the Civil Code, fall into this latter subcategory. See, e.g.,

Loutre Land & Timber Co., 63 So. 3d 120, 122−26 (La. 2011) (holding that

plaintiff timber company was owner of disputed strip of land where both parties

had received a title from same succession but plaintiff could rely on boundary

tacking to claim ownership via thirty year acquisitive prescription).

2017] PRECARIOUS POSSESSION 649

apply the foundational presumption set forth in article 3427 of the

Louisiana Civil Code—that “[o]ne is presumed to intend to possess as

owner unless he began to possess in the name of and for another”—in a

robust fashion. In fact, resolution of stranger cases often will turn on other

issues, for example, when the claimant’s possession began or whether it

was afflicted with any of the other vices of possession.

A claimant–possessor will not always prevail in what at first blush

looks like a stranger case. Occasionally, a court will find an apparent

stranger–claimant to be a precarious possessor.

148

Sometimes this holding

occurs when a court finds that a claimant, at least at the commencement of

possession, had a contractual or legal status relationship with the record

owner

149

and sometimes when the claimant appeared to possess through

the neighborly toleration of the record owner.

150

In other words, courts

sometimes reclassify apparent stranger disputes as belonging to one of the

other two categories of possession and acquisitive prescription disputes.

Finally, in a few stranger cases, courts simply misapply the law. Just as

Professor Hargrave warned years ago,

151

courts sometimes make the

mistake of classifying claimants as precarious possessors when in fact they

are simply straightforward bad-faith possessors who possess as if they

were the owner because they are on the road to acquisition of ownership

through possession but are not yet the true owners.

152

1. Stranger–Claimant Possessed as Owner

In the vast majority of reported possession and acquisitive prescription

decisions in which the parties are actual strangers to one another, Louisiana

courts correctly focus on objective circumstances and routinely find that the

claimant–possessor is possessing as owner and not as a precarious

148

. See discussion of cases infra notes 189−202 and accompanying text.

149

. See, e.g., Harper v. Willis, 383 So. 2d 1299, 1301 (La. Ct. App. 1980)

(observing that landowner’s caretaker “gave plaintiff-appellant permission to run

his cattle on the land without payment of rent by Harper if Harper would look

after the property, keep the fire out and the brush down,” thus effectively

classifying the possessor as an implied licensee or agent of the record owner and

thus not a true possessor because of his quasi-contractual relationship).

150

. Buckley v. Dumond, 156 So. 784, 788 & 790 (La. Ct. App. 1934) (finding

that neighboring claimant “did not have ‘the intention of possessing as owner’”

and his trapping was a “mere toleration on the part of the plaintiff”), discussed

infra notes 189−90 and accompanying text.

151

. Ruminations, supra note 66, at 1217.

152

. See, e.g., Levy v. Germania Plantation, Inc., 395 So. 2d 366, 371 (La. Ct.

App. 1981); McCoy v. Toms, 384 So. 2d 518, 519−22 (La. Ct. App. 1980), both

discussed infra notes 198−202 and accompanying text.

650 LOUISIANA LAW REVIEW [Vol. 77

possessor. A classic example of this approach is Liner v. Louisiana Land

and Exploration Co.,

153

the 1975 Louisiana Supreme Court decision that

serves as the foundation for our modern understanding of the concept of

the “right to possess” and the requirements for bringing a possessory

action. Although Justice Albert Tate’s rich doctrinal explanation in Liner

of why a possessor’s “right to possess” is not lost as the result of a mere

disturbance-in-fact during the year preceding the assertion of a possessory

action is often considered the case’s focal point,

154

the case also represents

a classic example of the unfolding of adverse possession. In particular,

recall that the record owner in Liner, the Louisiana Land & Exploration

Company (“LL&E”), failed to demonstrate any plausible claim that the

possession of Liner or his ancestors-in-possession was precarious.

155

fact, despite an earlier case involving nearby swampland in which the

claimant was characterized as a precarious possessor,

156

the Supreme

Court in Liner held that the Liner family possessed as owners, not as

precarious possessors.

157

The reasons behind this holding were several.

Despite holding no record title to the swampy, roughly 3,000 by 7,000

foot tract of marshland in dispute, which was adjacent to a tract the Liners

did own by title, Liner and his ancestors engaged in numerous acts of

possession that revealed “the quality of his [and their] possession was that

of owner.”

158

These acts included: occupation of houses prior to 1909;

occupation of a camp for three or four months every year during trapping

season for 56 years; annual farming, cattle raising, and trapping; erecting

fences and later maintaining boundaries with the use of stakes and

markers; the mysterious act of “burning the marsh”; granting a gas

company a pipeline right of way; Oliver’s appropriation of a ditch that

LL&E had constructed on its claimed boundary line so that he could

provide a fresh water source for his own cattle;

159

and, of course, the

famous battle of the stakes, which helped Oliver preserve his right to

possess during the crucial year preceding his filing of the possessory

153

. Liner v. Louisiana Land & Exploration Co., 319 So. 2d 766 (La. 1975).

154

. Id. at 779–83 (Tate, J., concurring).

155

. Plainly, LL&E made such an assertion because the majority opinion went out

of its way to hold that “the quality of his [Liner’s] possession was that of owner. . . . It

was neither precarious, clandestine, violent nor ambiguous.” Id. at 774.

156

. Buckley v. Dumond, 156 So. 784 (La. Ct. App. 1934), discussed infra

notes 189−90 and accompanying text.

157

. Liner, 319 So. 2d at 769.

158

. Id. at 774.

159

. Id. at 769–70.

2017] PRECARIOUS POSSESSION 651

action.

160

In light of these actions, Justice Dixon could sum up the nature

of the Liner family’s possession in these terms: “the quality of his

possession was that of owner. It extended to visible boundaries. It was

neither precarious, clandestine, violent, nor ambiguous.”

161

Nowhere in the record was there any indication of a real neighbor

relationship between the Liners and the record owners. Although they

owned neighboring tracts of land, they were, for all intents and purposes,

strangers to each other—that is, until LL&E appeared in the year before

the filing of the possessory action and began challenging Liner’s

boundaries.

Although Justice Dixon’s opinion in Liner cited Buckley v. Dumond,

162

a case in which the possession of two claimants to neighboring swampland

similar to the land in dispute in Liner was characterized as precarious, Dixon

did not bother to distinguish that case in any detail.

163

A quick review reveals

why. First, the claimants’ activities and improvements in Buckley were more

transitory than in Liner.

164

Second, the record owner in Buckley maintained

his presence on the land in dispute through the actions of a hunting and

trapping lessee.

165

The active presence of this lessee, who posted the

property with signs forbidding entrance and actively tried to keep intruders

away, suggests that the court in Buckley visualized the parties as two

neighbors, with the defendant–claimant engaged in trapping through the

“mere tolerance” of the record owner plaintiffs.

166

By contrast, the acts of

possession exhibited by the Liners seem to epitomize the kind of

revolutionary challenge to the agenda-setting authority of the true owner

that some scholars say is essential for real adverse possession or

acquisitive prescription to prevail.

167

160

. Id. at 773–74. The Court also noted the Liner family’s reliance on the

land as its primary source of income and the important fact that other trappers in

the community recognized the Liners’ boundaries. Id. at 770.

161

. Id. at 774.

162

. Buckley v. Dumond, 156 So. 784 (La. Ct. App. 1934).

163

. Justice Dixon merely stated that “[u]nlike the defendants in Buckley v.

Dumond, which involved neighboring swampland, the Liner family possessed as

owners.” Liner, 319 So. 2d at 769 (citing Buckley, 154 So. 784).

164

. In Buckley, the claimant only trapped and grazed cattle. His

improvements consisted of only a small ditch to facilitate trapping activities and

a camp that served as temporary shelter for hunting and trapping. Id. at 788–90.

165

. Id. at 788−90.

166

. Id.

167

. Katz, supra note 71, at 63–79; BAUDRY-LACANTINERIE & TISSIER, supra

note 1, ¶ 282, at 149 (acts of the possessor must be “sufficiently serious to

represent a usurpation which should be repressed”).

652 LOUISIANA LAW REVIEW [Vol. 77

After Liner, in a series of stranger cases decided over the last three

decades, Louisiana appellate courts have repeatedly held that long-term

possessors in fact possessed with the intent to own, even though record

owners attempted to discredit their possession as being merely precarious.

The courts often reached this conclusion because of the lack of any

meaningful relationship between the possessor and record owner; that is,

because the parties were strangers. In one case, the appellate court reversed

a trial court finding that the possession was precarious in a dispute in

which the parties owned adjoining tracts of land but did not know each

other.

168

In that decision, the court described article 3427 as creating a

“strong legal presumption” that a possessor possesses as owner, a

presumption that the hearsay testimony of a deceased possessor’s alleged

declaration against interest almost 20 years before the litigation could not

rebut, especially when the claimant’s possession was “established by the

lengthy use of the property.”

169

In another case, the appellate court

affirmed a trial court ruling that the adverse possessors established 30-year

acquisitive prescription against a corporation that had purchased the land

in dispute situated on the bank of a navigational canal from a record owner

who had ignored the claimants’ extensive use of the land as a commercial

campsite.

170

There, citing article 3427, the court observed that a

possessor’s intent to possess as owner “may be inferred from all of the

surrounding facts and circumstances”

171

and concluded, in the absence of

any relationship between the parties, that the claimants acted as the sole

owner of the land in dispute.

172

In yet another case, a claimant church

established acquisitive prescription against a handful of descendants of the

original record owners who had purchased the land for the benefit of the

church.

173

The claimant church defeated the allegation of precarious

possession made by the record owners’ descendants by pointing to its 100-

year history of allowing families to live on the property and otherwise

acting as if it were the owner for purposes of dealing with third parties, the

State of Louisiana, and local government.

174

In other words, even if the

adverse possessor and record owner initially enjoyed a close relationship,

when that relationship disintegrates such that the actual parties to the dispute

are strangers, precarious possession does not constitute a meaningful defense.

168

. Williams v. McEacharn, 464 So. 2d 20, 2224 (La. Ct. App. 1985).

169

. Id. at 24.

170

. Secret Cove, L.L.C. v. Thomas, 862 So. 2d 1010 (La. Ct. App. 2003).

171

. Id. at 1015.

172

. Id. at 1020.

173

. St. John Baptist Church of Phoenix v. Thomas, 1 So. 3d 618, 62226 (La.

Ct. App. 2008).

174

. Id. at 622.

2017] PRECARIOUS POSSESSION 653

In one particularly clear example of this jurisprudence constante,

175

the

case of Brunson v. Hemler,

176

the adverse possessors established ownership

of 60 acres of rural land by proving that they and their ancestors possessed

the land in dispute since at least 1936 by planting crops, raising cattle,

fencing and enclosing the land, and regularly clearing the woods.

177

The

record owners—a private trust and two universities—had much less

significant contact with the land. Indeed, only one of the defendants could

testify about ever visiting the land, a visit that had reportedly occurred 43

years before the litigation.

178

Citing two other decisions,

179

the record

owners asserted that the claimants were precarious possessors who must

provide “some kind of direct or dual notice” before acquisitive

prescription could begin.

180

Rejecting this plea, the court of appeal held

that “the testimony yields no indication that Plaintiffs and their ancestors-

in-title occupied and used the disputed property in any capacity other than

as owners”

181

and concluded that the presumption of article 3427 that a

possessor intends to possess as owner was “not rebutted.”

182

In Brunson,

the court refused to muddy the waters of the plaintiffs’ acquisitive

prescription claim with precarious possession because the parties were, in

short, utter strangers to one another.

Finally, Charles Tolmas, Inc. v. Lee

183

presents a striking example of

a successful urban squatter who laid claim to a vacant lot next door to his

business, eventually acquired most of it by 30-year acquisitive prescription

and, along the way, overcame the allegation made by the undisputed

record owner that his possession was tolerated as a neighborly

accommodation.

184

In Tolmas, the trial court ruled that the claimant’s

175

. Jurisprudence constante refers to the practice of Louisiana courts giving

deference, but not being blindly subservient to, a series of prior judicial decisions

by the same or a higher-level court. Alvin B. Rubin, Hazards of a Civilian

Venturer in a Federal Court: Travel and Travail on the Erie Railroad, 48 LA. L.

REV. 1369, 1372 (1988).

176

. Brunson v. Hemler, 989 So. 2d 246 (La. Ct. App. 2008).

177

. Id. at 24951.

178

. Id. at 251.

179

. See Humble v. Dewey, 215 So. 2d 378 (La. Ct. App. 1968), discussed

infra at notes 31023 and accompanying text; Harper v. Willis, 383 So. 2d 1299

(La. Ct. App. 1980), discussed infra at notes 191−97 and accompanying text.

180

. Brunson, 989 So. 2d at 251.

181

. Id.

182

. Id.

183

. 903 So. 2d 661 (La. Ct. App. 2005).

184

. The record owner, Charles Tolmas, Inc., sued in 1998 seeking a judicial

declaration that the defendant, Calvin Lee—and after his death, his estate—had

no ownership interest in a vacant parcel situated on Metairie Road, a well-

654 LOUISIANA LAW REVIEW [Vol. 77

possession of the vacant lot had been open, continuous, unequivocal, and

uninterrupted for 47 years and therefore that the claimant acquired

ownership of most of the lot by acquisitive prescription.

185

The court of

appeal affirmed, rejecting the record owner’s arguments that the claimant

had not sufficiently enclosed the property and “that [the Tolmas family]

knew the area was being used for parking by the Lees, but they did not

complain because they were trying to be neighborly.”

186

Responding to the

latter contention of precarious possession, the court emphasized the open

and public nature of the claimant’s possession and, just as important, the

record owner’s awareness of and passivity toward the claimant’s use of

the land.

187

Although it did not cite article 3427 of the Louisiana Civil Code, the

court in Tolmas clearly ruled as if the burden of proving precariousness

rested with the record owner, and the court was thus unwilling to give

much credence to the record owner’s ex post claim that it had merely been

tolerating the claimant’s use as a neighborly accommodation.

188

The

court’s lack of sympathy for the precariousness defense can be explained

by the lack of any real neighborly relationship between the parties.

Although their lots may have been adjacent to one another, the two

families involved in the conflict—the Lees and the Tolmases—were not

neighbors in the traditional sense. On the busy commercial corridor of

Metairie Road in suburban New Orleans, the two families in this case

essentially ignored each other until the record owner instituted its lawsuit in

1998, by which time, the court found, acquisitive prescription had run. In

sum, just like many of the other stranger cases, Tolmas demonstrates that

when parties in a possession or acquisitive prescription suit are actually

nothing more than strangers to one another, an allegation of precarious

possession by the record owner is unlikely to prevail.

2. Stranger–Claimant as Precarious Possessor

Occasionally a court will classify a person who appears to be a classic

stranger–claimant as a precarious possessor. This classification typically

traversed commercial corridor in the suburbs of New Orleans. Id. at 662. Lee

operated a dry-cleaning business on a lot next door to the vacant Tolmas lot that

he owned and on which he had constructed a building in 1951. Id. In 1951, Lee’s

customers and employees began using a triangular shaped area on the Tolmas lot

to park their vehicles. Id.

185

. Id. at 664.

186

. Id. at 665.

187

. Id.

188

. Id.

2017] PRECARIOUS POSSESSION 655

happens because the court views the case as falling into one of the other

paradigm possession or acquisitive prescription categories. In other

instances, a court will simply give undue weight to an inadvertent

testimonial admission. In Buckley v. Dumond,

189

the court of appeal held

that claimants who trapped animals, grazed cattle, and built a few minor

and temporary improvements on undeveloped swampland were really

possessing with the mere tolerance of the record owner, who had leased

the land in dispute to another trapper who actively monitored the land.

190

In a sense, the court in Buckley viewed the parties as neighbors and

members of the same close-knit community, rather than as strangers.

In another well-known decision that arguably involves strangers,

Harper v. Willis,

191

the claimant in a possessory action, Harper, physically

possessed three lots that were part of a failed subdivision development on

the outskirts of Alexandria, Louisiana for more than 30 years by grazing

cattle on the land.

192

Although Harper’s physical occupation of the land

began around 1939, sometime thereafter a caretaker of the property for a

purported owner reportedly gave Harper permission to run cattle on the

land rent-free “if Harper would look after the property, keep the fire out

and brush down.”

193

After the caretaker abandoned his duties, Harper

“took over the property in 1947.”

194

The only other contact between

Harper and a record owner occurred in 1960 when Harper wrote a letter to

an apparent record owner offering to buy one of the lots in dispute.

195

Based on these facts and a review of his deposition testimony, the

court concluded that Harper lacked the requisite intent to possess as owner

sufficient for a possessory action.

196

Relying heavily on Buckley, the court

repeatedly emphasized that Harper’s own candid testimony, in which he

admitted, for example, that he never intended to “take” the property or

“beat anybody out of anything,” proved that he lacked the intent to possess

as owner, despite considerable objective evidence that he was acting in the

189

. 156 So. 784 (La. Ct. App. 1934) (showing that Buckley brought a similar

suit against Theriot, and the two cases were consolidated).

190

. Id. at 78890.

191

. Harper v. Willis, 383 So. 2d 1299 (La. Ct. App. 1980).

192

. Id. at 130102. Harper testified that although a fence did not surround the

three lots in dispute, there was a fence around the entire two sections of land that

constituted the larger “Old Pecan Orchard Subdivision.” Id. Harper apparently had

acquired many of the other lots in the subdivision in the period between the

commencement of his physical possession and the time of the litigation. Id. at 1301.

193

. Id. at 1301.

194

. Id.

195

. Id. at 1302.

196

. Id. at 130207.

656 LOUISIANA LAW REVIEW [Vol. 77

manner of an owner. Perhaps the best way to understand Harper, then, is

to acknowledge that the caretaker’s purported grant of permission to

Harper, vague and uncertain as it was, created a contractual relationship

between Harper and the record owner—that of principal and agent—placing

this case in this Article’s second category of possession and acquisitive

prescription disputes.

197

Finally, sometimes a court will simply make a poor judgment in what

otherwise appears to be a classic stranger case. In Levy v. Germania

Plantation,

198

the decision that Professor Hargrave worried might read bad-

faith acquisitive prescription out of the Civil Code, the court characterized

a claimant as a precarious possessor based solely on one naïve cross-

examination statement even though the claimant was completely unaware

of the identity of the true owner of the land in dispute.

199

In Levy, both the

trial and appellate courts admitted that but for this ill-advised but candid

statement, the claimant would have prevailed under the normal

presumptions of the Civil Code because from an objective viewpoint, his

acts of possession were consistent with those of someone possessing as if

he had record title.

200

In another arguably sui generis stranger case, McCoy

v. Toms,

201

the court of appeal appears simply to have latched onto

precarious possession like a deus ex machina to solve a difficult quandary,

even though the claimant, from an objective standpoint, appeared to have

no relationship whatsoever with the record owner that would logically lead

to his classification as a precarious possessor.

202

197

. After all, as the Civil Code teaches, “[a] mandate is a contract by which

a person, the principal, confers authority on another person, the mandatory, to

transact one or more affairs for the principal.” LA. CIV. CODE art. 2989 (2016)

(emphasis added).

198

. 395 So. 2d 366 (La. Ct. App. 1981).

199

. Id. at 371 (noting that on three different occasions the claimant stated that

“while he was possessing the property in the same manner as he would have if he

had had record title, he did not consider himself as owner until he was approached

for an oil, gas and mineral lease some three years ago”).

200

. Id.

201

. 384 So. 2d 518 (La. Ct. App. 1980).

202

. In McCoy, all the parties believed that the two and one half acre tract in

dispute was owned by the State of Louisiana because it appeared to form part of

the bed of Lake Bisteneau. Id. at 519. The trial court ruled that the claimant–

possessor lacked the intent to possess as owner and, paradoxically, was in “legal

bad faith,” permitting the record owner to elect whether to keep the extensive

improvements that the claimant–possessor had erected on the land and pay him

for the materials and workmanship or require the possessor to remove the

improvements. Id. at 519–20. The court of appeal affirmed both of these

inconsistent rulings, noting only that everyone believed the property in dispute

2017] PRECARIOUS POSSESSION 657

Despite these occasionally aberrant decisions, in almost all true

stranger cases, courts will characterize a claimant–possessor as possessing

as owner or at least in the manner of an owner. The success of the

claimant’s possessory action or acquisitive prescription claim thus turns,

as it should, on other factors.

B. Contractual and Legal Status Relationships

The second general category of possession and acquisitive prescription

cases involves a claimant–possessor and a record owner who have some

contractual relationship with one another or share some clearly defined legal

status relationship, for example, as co-owners, family members, or some

other sui generis legal status.

203

Regardless of the particular source of the

relationship, however, courts generally characterize the claimant as a

precarious possessor at the outset of the claimed period of corporeal

possession.

204

In these cases, the outcome will usually turn on whether the

precarious possessor has provided “actual notice to the person on whose

behalf he is possessing that he intends to possess for himself,” or whether,

in the special case of co-owners, “he demonstrates by overt and

unambiguous acts sufficient to give notice to his co-owner that he intends

to possess the property for himself.”

205

Courts routinely favor record owners in many contractual situations,

especially in cases involving lessors and lessees, principals and agents, and

vendors and vendees. However, in cases involving non-contractual

relationships, the rulings are somewhat less predictable. In the context of

co-ownership in particular, courts have developed specialized rules and

presumptions that allow active, in-possession co-owners to terminate

precarious possession and assert acquisitive prescription against passive,

out-of-possession co-owners in some situations. In these cases, courts will

often guard against abuse by co-owners, especially when the passive co-

owner is a vulnerable family member. In family disputes that do not

involve co-ownership and in other sui generis relationships, precarious

possession is a status that remains difficult to dislodge.

was owned by the state and that the “important fact is that the defendant and his

predecessors never intended to claim ownership or possess as owners.” Id. at 522.

203

. Baudry-Lacantinerie and Tissier enumerated the many diverse contractual

and quasi-contractual relationships that can give rise to precarious possession

beyond those specifically mentioned in article 2236 of the French Civil Code. For

their lengthy list and discussion see BAUDRY-LACANTINERIE & TISSIER, supra note

1, ¶¶ 303–309, at 161–65.

204

. See generally cases discussed infra notes 20621 and accompanying text.

205

. LA. CIV. CODE art. 3478 (2016); see also id. art. 3439.

658 LOUISIANA LAW REVIEW [Vol. 77

1. Contractual Relationships

The clearest examples of contractual relationships giving rise to strong

presumptions of precariousness arise when the claimant and record owner

share a nominate contractual relationship, for example, that of lessee and

lessor, agent and principal, real right holder and owner, or vendee and

vendor. In almost all of these cases, the claimant must demonstrate by

clear and unequivocal evidence that his possession has changed character

and become adverse to the record owner, a burden that the claimant usually

cannot meet.

a. Lessees and Lessors

In most contractual settings, claimant–possessors will be hard-pressed

to establish they have been possessing non-precariously, that is, in the

manner an owner would possess and for their own benefit. Article 3438 of

the Louisiana Civil Code, which instructs that precarious possessors are

presumed to continue to possess for another although the possessors may

have privately intended to possess for themselves, specifically lists a lessee

as a precarious possessor.

206

Consequently, when a lessee attempts to

assert acquisitive prescription or otherwise protect a possessory interest

vis-à-vis a lessor–record owner, the lessee will usually fail because courts

are quick to characterize the lessee as a precarious possessor. This

tendency was true in the 19th century,

207

and it has remained true over the

last 25 years.

208

206

. LA. CIV. CODE art. 3438 (2007).

207

. Jackson v. Jones, 14 La. Ann. 230 (La. 1859) (stating that purchasers of

a 50-year lease could not change the nature of their tenure for purposes of

acquiring ownership by ten-year acquisitive prescription); Calmes v. Duplantier,

14 La. Ann. 814 (La. 1859) (stating that decedent’s widow could not gain

ownership of slaves through ten-year acquisitive prescription because “her

husband held them by the contract of hire, and not by title as proprietor”).

208

. Linder Oil Co. v. LaBoKay Corp., 556 So. 2d 899, 902 (La. Ct. App.

1990) (showing that claimant who asserted that his ancestor-in-title acquired

ownership through farming activities could not establish prescription because

farming took place with permission of the record owner’s predecessor-in-title

through an agricultural lease and thus was precarious); see also Comeaux v.

Davenport, 452 So. 2d 818, 82122 (La. Ct. App. 1984) (holding that invalid lease

did not render possession precarious when lease was signed by only one of two

co-owners as lessors, and the court had serious misgivings that the illiterate

lessee–possessor’s consent was validly given).

2017] PRECARIOUS POSSESSION 659

b. Agents and Principals

A similar pattern emerges when a possessor–claimant begins

possession as an agent for a principal who happens to be the record owner

of the immovable property in dispute. In an 1878 decision involving

changed identities, illegitimate children, and an emancipated former slave,

the Louisiana Supreme Court held that mere agents “cannot acquire a legal

possession, because it cannot be presumed that they had the intention of

possessing for themselves, and even if they did entertain that dishonest

intention, their possession continues to be that of the person for whom they

originally took it.”

209

In Cortinas v. Peters,

210

the Louisiana Supreme

Court similarly held that a would-be seller of five lots in New Orleans

could not establish the validity of his title by establishing that his

predecessor-in-title had acquired ownership by 30-year acquisitive

prescription. That claim failed, the Court held, because the predecessor

had possessed the property only as agent for a bank, which itself had

acquired title to the property many years earlier.

211

In the exceptional case,

a court may hold that an apparent agent is not a precarious possessor, but

only if the scope of the agency relationship does not include the property

in dispute.

212

c. Servitude Holders and Servient Estate Owners, Usufructuaries

and Naked Owners

The person entitled to enforce a predial servitude or a usufructuary

engages in quasi-possession of the servitude or usufruct at issue with either

the express contractual permission or implied permission of the servient

estate holder or the naked owner. Accordingly, courts have found that

these kinds of possessor–claimants cannot acquire ownership of land

subject to the servitude or usufruct by acquisitive prescription without

209

. Neel v. Hibard, 30 La. Ann. 808, 809 (La. 1878) (stating that the plaintiff

was unable to claim “legal and peaceable possession” of a lot and improvements

in the City of New Orleans).

210

. 68 So. 2d 739 (La. 1953).

211

. Id. at 741.

212

. Wm. T. Burton Indus., Inc. v. McDonald, 346 So. 2d 1333, 1335–37 (La.

Ct. App. 1977) (holding that a man who worked as a timber cruiser–agent for a

timber company was not a precarious possessor and could acquire land through

30-year acquisitive prescription because he did not know that the company owned

the 40 acres in dispute, did not ask or receive permission to use, and never leased

the land in dispute, and claimant and his father cultivated and completely enclosed

the land in dispute along with other land they owned for many years).

660 LOUISIANA LAW REVIEW [Vol. 77

providing particularly explicit notice of their intent to possess as owner. In

a classic 1910 decision, the Louisiana Supreme Court held that the holder

of a servitude of right of way could not acquire ownership of land subject

to the servitude through ten-year acquisitive prescription by relying solely

on registry of a title from a third person.

213

Quoting extensively from

French sources, Justice Provosty explained that to notify the actual owner

of the change of status, a servitude holder or usufructuary must “indicate

by some outward acts of possession his intention to hold no longer under

the old title but under the new” and that “these acts must be of an unusually

pronounced character.”

214

In short, this kind of precarious possessor must,

in Provosty’s words, “so conduct himself as to let the owner know that a

new order of things has begun.”

215

In a 1964 decision, the Louisiana Fourth

Circuit Court of Appeal observed that because a usufructuary is a

precarious possessor, the usufructuary generally cannot assert acquisitive

prescription against a naked owner.

216

More recent appellate court

decisions have reached similar conclusions, rejecting claims of acquisitive

prescription in cases involving both predial servitudes

217

and usufructs.

218

d. Vendors and Vendees

When an owner sells immovable property but the vendee, for some

reason, does not immediately take corporeal possession of the property

213

. John T. Moore Planting Co. v. Morgan’s La. & T.R. & S.S. Co., 53 So.

22, 34 (La. 1910).

214

. Id. at 35.

215

. Id.

216

. Succession of Heckert, 160 So. 2d 375, 380–81 (La. Ct. App. 1964)

(citing Leonard Oppenheim, The Usufruct of the Surviving Spouse, 18 TUL. L.

REV. 181, 217 (1943)). In Succession of Heckert, the court never reached the

question of whether the former usufructuary took any action that would have

constituted notice of an intent to possess as owner. Id. at 381. Indeed, as the

usufruct at issue only lasted for approximately one year because the usufructuary

remarried, and the case was litigated approximately 24 years later, it was

inevitable that the usufructuary’s possession would have been characterized as

precarious. Id. at 37677.

217

. Grieshaber Family Props. v. Impatiens, Inc. 63 So. 3d 189, 197 (La. Ct.

App. 2011) (concluding that the holder of a written servitude of view prohibiting

construction on a disputed commercial lot in New Orleans was a precarious

possessor and could not assert acquisitive prescription against the servient-estate

owner absent acts that would have been sufficient to put the latter on notice of an

intent to possess as owner).

218

. Hooper v. Hooper, 941 So. 2d 726, 731 (La. Ct. App. 2006), see

discussion infra notes 226−28 and accompanying text.

2017] PRECARIOUS POSSESSION 661

sold and the vendor remains in possession, courts routinely characterize

the vendor as a precarious possessor who cannot bring a possessory action

or assert acquisitive prescription unless the vendee has received clear

notice that precarious possession has ended. After the Louisiana Supreme

Court’s classic exposition of this rule in Frost Lumber Industries v.

Harrison,

219

Louisiana courts have frequently followed its example

220

and

even extended it to other analogous contexts, including partitions.

221

2. Co-Ownership Disputes: Context Matters

When two or more persons own a thing in indivision in Louisiana,

each of the co-owners has a right to use the thing according to its

219

. 41 So. 2d 674, 675–676 (La. 1949). This case involved a partition action,

and the Louisiana Supreme Court held that the widow of a man who had

purchased an 80-acre tract of land in 1901 could not intervene and assert

acquisition of title by acquisitive prescription because her possession was

precarious in two respects. Id. First, in 1913, the widow sold her undivided one-

half interest in the land to the ancestor-in-title of the lumber company that

eventually brought the partition action. Id. As a vendor who retains physical

possession of the property sold, she was presumed to possess precariously for her

vendee and could not terminate that precariousness until she apprised the vendee

of her change in status. Id. Second, Harrison also possessed a one-half undivided

interest in the tract as usufructurary. Id. As a result, although she was entitled to

remain in possession of the entire tract until she was divested by the partition

initiated by her vendee, the “quality” of her physical possession was converted

from its duality of owner and usufructuary to that of “merely usufructuary.” Id.

220

. Maddox v. Vanlangendonck, 334 So. 2d 739, 743 (La. Ct. App. 1976)

(holding that a person possessing under a bond for deed contract is a precarious

possessor); James Harvey Ramsey Estate, Inc. v. Pace, 467 So. 2d 1202, 1208

(La. Ct. App. 1985) (holding that the heirs of a vendor who held possession of a

five acre tract of land could not assert a possessory action against the vendee’s

son and heir because the vendor’s heirs were bound by the warranty obligation in

the original warranty deed and subsequent correction deed and noting that “[h]eirs

of a vendor-warrantor of peaceful possession to a vendee, accepting the

succession, are not in a situation of third-party usurpers or bad faith possessors

adverse to their ancestor’s vendee”).

221

. Feazel v. Howard, 511 So. 2d 1306, 1308 (La. Ct. App. 1987) (applying

the principle of Frost Lumber to a dispute among co-heirs who acquired

neighboring tracts of land by virtue of a partition and analogizing possession

exercised by one co-heir over land of another co-heir to that of a vendor retaining

possession for the vendee, ultimately concluding that “retention of possession by

a former co-owner makes him the presumed precarious possessor for the other

former co-owner who by virtue of the partition has become owner in full of a

specified parcel”).

662 LOUISIANA LAW REVIEW [Vol. 77

destination and cannot prevent the other co-owners from making use of it,

unless a use and management agreement otherwise restricts the use of the

thing by the co-owners.

222

Because of this fundamental rule of co-

ownership, co-owners in possession are presumed to be possessing for

themselves with respect to their own undivided interest and on behalf of the

other co-owners, and, therefore, their possession is deemed to be precarious

with respect to fellow co-owners.

223

Building on this foundational principle, articles 3439 and 3478 of the

Louisiana Civil Code provide specialized rules for termination of precarious

possession by co-owners. In the context of possession alone, article 3439

instructs that “[a] co-owner, or his universal successor, commences to

possess for himself when he demonstrates this intent by overt and

unambiguous acts sufficient to give notice to his co-owner.”

224

In the

specific context of acquisitive prescription, article 3478 reiterates that a co-

owner “may commence to prescribe” by meeting the same notice standard

of “overt and unambiguous acts,” but this article adds by way of illustrative

example that “[t]he acquisition and recordation of a title from a person other

than a co-owner may mark the commencement of prescription.”

225

Given the frequency with which co-ownership arises in Louisiana as the

result of inter-family donations, succession, divorce and the termination of

community property regimes, as well as through intentional acquisitions by

two unrelated persons, that a rich body of case law has developed involving

precarious possession and co-ownership is no surprise. Although courts

might be expected to favor precarious possession defenses asserted by out-

of-possession co-owners overwhelmingly, the case law has in fact yielded

mixed results.

222

. LA. CIV. CODE arts. 801–802 (2016).

223

. Ruminations, supra note 66, at 1221; Hendrick v. Lee, 471 So. 2d 904,

908 (La. Ct. App. 1985).

224

. LA. CIV. CODE art. 3439.

225

. Id. art. 3478. Hargrave explains that this additional language in article

3478 was intended to codify the rule in Dupuis v. Broadhurst. 213 So. 2d 528,

529–32 (La. Ct. App. 1968) (holding that when one apparent co-owner transfers

his undivided interest to another and that transfer is executed and recorded, this

act gives adequate notice to other alleged co-owners out of possession that the

transferee co-owner intends to possess for himself as owner). Hargrave, however,

was doubtful that the indexing system for property records would allow a co-

owner out of possession to detect recordation of a title from another person.

Ruminations, supra note 66, at 1222.

2017] PRECARIOUS POSSESSION 663

a. Co-Owners Who Remain Precarious Possessors

In many cases, courts do hold, as might be expected, that co-owners

in possession of immovable property possess precariously for their fellow

co-owners and cannot prove they gave sufficient notice of their intent to

possess on their own behalf. Sometimes, as in Hooper v. Hooper,

226

a case

in which the appellate court rejected an assertion of 30-year acquisitive

prescription by one brother against the estate of his mentally incompetent

brother regarding a one-sixteenth ownership interest in family property,

the result can be easily explained. In Hooper, not only did the appellate

court note blatant defects in the purported title from another person upon

which the claimant relied to found his claim of voluntary transfer of

ownership,

227

it expressed a strong conviction that the claimant could not

possibly have given adequate notice of his intent to possess as owner to

the out-of-possession co-owner because of the latter’s vulnerability.

228

In another recent decision,

229

the same appellate court, citing Hooper,

rejected an acquisitive prescription claim in a boundary dispute because

one of the claimant’s four siblings failed to execute a partition deed

resulting from his parents’ succession and because neither that sibling’s

estate nor any of his descendants were given adequate notice of the

partition.

230

In particular, the court found that the claimant could not tack

his possession to that of his parents to satisfy the prescriptive time period

because of the precarious nature of his possession vis-à-vis one deceased

sibling and the absence of any overt and unambiguous act that could give

notice to his deceased sibling’s estate or descendants.

231

More recently, in Cockerham v. Cockerham,

232

a court similarly

determined that 30-year acquisitive prescription did not start to run

because an invalid 1963 deed from a third person to the claimant’s father

226

. 941 So. 2d 726 (La. Ct. App. 2006).

227

. The court found that the deed, which the brothers’ mother signed and

purportedly transferred the one-sixteenth ownership interest to the claimant while

allowing the incompetent brother to retain a usufruct, failed to transfer ownership. Id.

at 730.

228

. In light of his brother’s mental incompetence, the court concluded that the

claimant could only satisfy the “overt and unambiguous acts” requirement by giving

actual notice to his brother’s legal representative, a feat not possible until many

years later when a representative was finally appointed and qualified. Id. at 731.

229

. Graham v. Bernheimer, 6 So. 3d 343 (La. Ct. App. 2009).

230

. Id. at 344–46.

231

. Id. at 347.

232

. 16 So. 3d 1264 (La. Ct. App. 2009).

664 LOUISIANA LAW REVIEW [Vol. 77

did not constitute notice to the claimant’s co-owners.

233

Not only was the

deed authored by a person who did not have any actual or future interest

in the property to convey, but no other acts of possession followed that

could have given the other co-owners notice of the claimant’s intent to

possess the property in dispute as the sole owner.

234

Finally, in Andras v.

Thibodeaux,

235

another partition case involving multiple co-owners who

inherited property from a common ancestor, the appellate court held that

multiple acts of possession of the intervenor claimants—including

fencing, building houses and other structures, raising animals, cutting and

planting trees—still failed to place the other co-owners on notice of an

intent to possess as exclusive owners, particularly in the absence of any

title or document translative of ownership.

236

In all of these cases, courts

treated the general presumption that a precarious possessor continues to

possess for or on behalf of his fellow co-owners in a robust fashion.

b. Co-Owners Who Terminate Precarious Possession

Despite these decisions hostile to acquisitive prescription claims

asserted by co-owners, sometimes a co-owner can establish 30-year

acquisitive prescription vis-à-vis another co-owner. The common

denominator in this alternative line of decisions is the combination of a

recorded instrument, whether executed by a third party or another co-

owner, that is either translative or declarative of ownership, and substantial

acts of possession that are capable of providing reasonable notice that

possessing co-owners intend to possess for their own interest. In addition,

strong equitable factors, such as the length of time of the claimant’s sole

possession, investment in the property by the claimant, and extreme

neglect on the part of the out-of-possession co-owner all weigh in the

claimant’s favor.

The Louisiana Supreme Court decision in Succession of Seals

237

is the

foundational modern decision establishing this line of authority. In that

case, the succession of Stokes Seals sued to be placed in possession of a

233

. Id. at 1269–70.

234

. Id. at 1270. In Cockerham, the other co-owners also acted as if the

property belonged to all of them. Id. at 1271.

235

. 157 So. 3d 767 (La. Ct. App. 2014).

236

. Id. at 768–71. See also Headrick v. Lee, 471 So. 2d 904, 907–09 (La. Ct.

App. 2d 1985) (holding that brother and his heirs who farmed property for 75 years,

paid all the property taxes, and did not share proceeds with other co-owners did not

terminate precarious possession because acts of occupancy and use, “without

more,” are insufficient to constitute notice of adverse possession to co-owners).

237

. Succession of Seals, 150 So. 2d 13 (La. 1963).

2017] PRECARIOUS POSSESSION 665

60-acre tract of land based on 10- and 30-year acquisitive prescription.

238

The defendants, Stokes’s collateral relatives, denied that he owned the

land exclusively and claimed that they, too, had possessed the land because

they inherited undivided interests from Stokes’s uncle, Henry Seals.

239

Stokes apparently had some reason to think he owned the land exclusively

because Henry Seals’s widow had purportedly transferred ownership of

the land to Stokes in 1913.

240

That transfer was found to be invalid,

however, because the land was actually separate property that Henry had

acquired before his marriage and, thus, Henry’s widow could not convey

it to Stokes.

241

Consequently, after Henry’s death, when the land was

placed in Henry’s succession, Stokes became one of several co-heirs who

acquired undivided interests in the land.

242

Soon after the apparent but invalid transfer of ownership in 1913,

Stokes began to engage with the land. First, he paid off two mortgages

burdening the property.

243

Then, treating the property as his home, he built

houses, fenced the land, and made other improvements.

244

He also farmed

the land, sold timber, granted mineral leases, paid property taxes, and sold

portions of the property.

245

In contrast, the defendants displayed little, if

any, interest in the disputed land except when they occasionally needed a

place to live and “did some improving for their own comfort.”

246

Further,

while Stokes took care of the defendants’ mother, charged some of his co-

heirs rent, allowed others to live on the land for short times rent-free, and

granted other “favors,” his actions, the Court observed, were “purely

beneficial” as he “manifested no intention of abandoning his adverse

possession.”

247

In short, the Court actually viewed the defendants’ acts of

possession as precarious vis-à-vis Stokes, not the other way around.

248

Commenting on the defendants’ long-standing indifference to the land

until they learned of its potential mineral exploitation value, the Court

observed,

238

. Id. at 14.

239

. Id.

240

. Id. at 17.

241

. Id. at 17, 19.

242

. Id. at 14–18.

243

. Id. at 17.

244

. Id. at 18.

245

. Id. at 17.

246

. Id. at 18.

247

. Id. at 21. See also Towles v. Heirs of Morrison, 428 So. 3d 1029, 1032

(La. Ct. App. 1983) (quoting same passage from Seals).

248

. Seals, 150 So. 2d at 21 (noting that “[t]hese heirs never asserted any real

claim to the sixty acres herein involved until they were ruled into court”).

666 LOUISIANA LAW REVIEW [Vol. 77

The genius of our law does not favor the claims of those who have

long slept on their rights and who, after years of inertia, conveying

an assurance of acquiescence in a given state of things, suddenly

wake up at the welcome vision of an unexpected advantage and

invoke the aid of the courts for relief, under the effect of a newly

discovered technical error in some ancient transaction or

settlement.

249

In the end, the Louisiana Supreme Court in Seals held that Stokes

acquired ownership of the disputed land by 30-year acquisitive prescription,

affirming the trial court’s findings that his possession “was that of owner

and was hostile to that of defendants for a period of thirty years.”

250

Seals proved to be influential because it established the principle that

co-owners or co-heirs could terminate precarious possession and begin to

prescribe in their own right if they could show some written, recorded

instrument that appeared to convey or declare title or ownership, even if that

instrument was invalid, as long as additional acts of possession occurred

after the recording of the instrument.

251

Following Seals, a number of

reported decisions applied its basic teaching and held that co-owners

acquired ownership by 30-year acquisitive prescription on the basis of a

variety of recorded instruments and additional acts of possession. The

recorded instruments that have been found to suffice include a simulated

sale,

252

acts of partition,

253

and even a prohibited donation omnium

249

. Id. at 21 (quoting Lafitte, Dufilho & Co. v. Godchaux, 35 La. Ann. 1161,

1163–64 (1883)).

250

. Id. at 21–22.

251

. Id. at 17−21. Justice McCaleb’s concurring opinion in Seals cemented

this understanding as he emphasized that Stokes Seals’ acquisitive prescription

claim was well founded precisely because he “went into possession of the

property not as a co-heir or co-owner but as a sole owner thereof under a title

translative of the property notwithstanding that the title under which he acquired

was not a good prescriptive title.” Id. at 22.

252

. Detraz v. Pere, 183 So. 2d 401, 402–03 (La. Ct. App. 1966) (holding that

a 1926 deed later claimed to have been a simulation combined with acts of

cultivation and enclosure was sufficient to start 30-year acquisitive prescription).

253

. Dupuis v. Broadhurst, 213 So. 2d 525, 531–32, 531 n.1 (La. Ct. App.

1968) (on rehearing) (holding that the claimant’s ancestor-in-title began to

prescribe in his own interest by virtue of two instruments, a partition deed and a

cash deed, each purporting to convey a one-half interest in title, along with acts

of farming and fencing); see also Minton v. Whitworth, 393 So. 2d 294, 297 (La.

Ct. App. 1980) (holding that an act of partition executed by all the co-owners

constituted notice to co-owners that subsequent possession was adverse and

hostile to the common interest).

2017] PRECARIOUS POSSESSION 667

bonorum.

254

A 1983 decision, in which the recorded instruments included

several 19th-century succession sales and a 1904 act of partition, also pointed

out that no requirement exists that the co-owners who opposed the claim of

acquisitive prescription have actually participated in the transactions leading

to the recordation of title.

255

The only kind of recorded instruments that do not

reliably serve this purpose are tax sale adjudications and redemptions.

256

Finally, in Franks Petroleum Inc. v. Babineaux,

257

a well-known decision

from 1984, the court resolved a dispute between two sets of co-owners who

were descendants of two brothers over the right to receive mineral and royalty

interests by determining that one group had acquired “full title” to the

underlying properties by acquisitive prescription.

258

The controversy arose

because in the late 1800s or early 1900s, when one brother sold his interest in

the property to the other, the deed was lost or destroyed and not recorded.

259

In the late 1930s, the widow and descendants of the vendor executed a series

of quitclaim deeds reciting these facts and transferring whatever interest

they had in the property to the vendee’s descendants.

260

The vendee and

his heirs also exercised possession of the land in dispute from as early as

1900 by living on the property, farming it, growing timber and making

timber sales, selling sand and gravel, and surveying and marking

boundaries.

261

In contrast, the vendor’s heirs did not exercise any physical

possession.

262

The recorded instrument that started the clock running for

254

. Givens v. Givens, 273 So. 2d 863, 868 (La. Ct. App. 1973) (holding that

recordation of a prohibited donation omnium bonorum along with 40 years of

substantial open and public possession was sufficient to commence acquisitive

prescription).

255

. Towles v. Heirs of Morrison, 428 So. 2d 1029, 1032 (La. Ct. App. 1983)

(“The recordation of a deed translative of title is the important factor in giving

notice of hostile and adverse possession to the co-owners. . . . These cases made

no requirement that co-owners participate in the transaction.”). In Towles, the

subsequent acts of possession, commenced 40 years after the partition deed,

included granting timber deeds, mineral leases and hunting leases; maintaining

property lines; and posting signs. Id. at 1031–32.

256

. See, e.g., Boase v. Edmonson, 471 So. 2d 847, 851 (La. Ct. App. 1985)

(holding that redemption of property within redemptive period was for benefit of

all co-owners and thus did not trigger running of acquisitive prescription). See

also Symeon Symeonides, Property, Developments in Business Law, 1984–85, 46

LA. L. REV. 655, 684–85 (1986) (discussing Boase and other tax sale decisions).

257

. 446 So. 2d 862 (La. Ct. App. 1984).

258

. Id. at 864.

259

. Id.

260

. Id.

261

. Id.

262

. Id.

668 LOUISIANA LAW REVIEW [Vol. 77

acquisitive prescription, according to the court, was a 1937 ex parte

judgment of possession in the succession of the vendee brother and his

wife that listed their heirs as the owners of the property in dispute.

263

In ruling for the possessor–claimants, the court of appeal noted that

recently enacted articles 3439 and 3478 of the Civil Code did not change

the law and cited many of the decisions referenced above for the general

proposition that possession by one co-owner is generally considered as

being exercised on behalf of all co-owners, except,

[W]here a co-owner possesses under a recorded instrument

apparently conveying title (even though the purported conveyance

is invalid), the recorded instrument, together with the acts of

possession, constitutes notice to other co-owners and the possession

is then regarded as hostile to the interests of the other co-owners,

rebutting the presumption that possession is for the benefit of all co-

owners.

264

The court also noted that the language in article 3478 referring to the

“acquisition and recordation of a title from a person other than a co-owner”

merely illustrates the kind of act that can suffice to start acquisitive

prescription running and is not exclusive.

265

Thus, the ex parte judgment

of possession sending the vendee heirs into possession of the “whole

interest” in the subject property was “an act of notice to the other record

co-owners of the intended adverse possession of [the vendee’s] heirs.”

266

Yet it was most likely the totality of the evidence—the many acts of

possession, the quitclaim deeds attesting to the prevailing heirs’ apparently

honest belief that they were possessing the property as owners, and the

judgment of possession—that accounts for the court’s conclusion that the

vendee brother’s heirs deserved title by acquisitive prescription.

Considered together, these co-ownership decisions illustrate how

Louisiana courts already engage in highly relationship-specific evaluations

of parties’ experiences and expectations regarding property subject to

acquisitive prescription claims. Although the fairness of giving any weight

to recorded instruments of which a passive co-owner may be unaware is

debatable,

267

clearly the courts look at these instruments and the subsequent

acts of possession in the context of the particular family or personal

263

. Id. at 865.

264

. Id. at 865–66.

265

. Id. at 866.

266

. Id.

267

. Ruminations, supra note 66, at 1222.

2017] PRECARIOUS POSSESSION 669

relationships that have formed and carefully evaluate the demands and

expectations those relationships might reasonably have generated.

3. Other Family Matters: Sticky Precarious Possession

Some precarious possession cases involve disputes among relatives

and family members who are not co-owners. In several reported decisions

in this sub-category, courts characterized claimants as precarious

possessors who could not establish possessory rights or acquisitive

prescription because either the possessor’s status as a permissive possessor

was apparent from the outset based on the nature of the family relationship

or the claimants did not clearly communicate an intent to possess as owner.

In Falgoust v. Innes,

268

for example, the court held that a man who had

been given permission by his mother-in-law to erect a building and operate

a garage and filling station on her land was a precarious possessor.

269

As a

result, when he was eventually evicted from the land upon the dissolution

of the man’s marriage to the landowner’s daughter, the court held that he

was not entitled to any restitution for the improvements as a good-faith

possessor because he was “not a possessor at all.”

270

In a sense, the

claimant in Falgoust was characterized as a mere licensee—and thus as a

precarious possessor—based on the familial relationship he temporarily

enjoyed with his mother-in-law.

In Hammond v. Averett,

271

a possessory action, the court found that the

claimants of a 20-acre fenced tract of land that had belonged to their uncle

were also mere precarious possessors.

272

Even though they had cared for

their uncle for many years, notified the uncle’s children, who were

presumably their cousins, when their uncle’s health failed, gardened and

raised cattle on the tract after the uncle’s death, and even paid the ad

valorem property taxes after losing contact with the uncle’s children, the

court held that the claimants were “mere users” of the land because they

had not done enough to put the record owners on notice of their intent to

become owners.

273

Paradoxically, the claimants’ strong sense of familial

268

. 163 So. 429 (La. Ct. App. 1935).

269

. Id. at 429.

270

. Id. at 430. As the court explained, “[t]he best that can be said for the

defendant is that he had been given the right to erect his garage on the plaintiff’s

property and to keep it there for a reasonable period of time.” Id.

271

. Hammond v. Averett, 415 So. 2d 226 (La. Ct. App. 1982).

272

. Id. at 227.

273

. Id. When a real estate agent engaged by the uncle’s heirs visited the

property a few years before the possessory action, the claimants complained of

670 LOUISIANA LAW REVIEW [Vol. 77

responsibility to their uncle did not advance and may have even

undermined their claim of acquisitive prescription.

In the two most difficult cases in this sub-category involving relatives

who lived nearby to one another, the courts focused more on the

neighborliness of the parties rather than their family status in ruling against

the claimants. In the first, Succession of Kemp v. Robertson,

274

the court

held that a claimant known as “Aunt Mae” did not acquire ownership of a

300-acre tract of land through acquisitive prescription because

witnesses—business associates, employees, and relatives of the record

owner—testified that the claimant acknowledged the record owner’s

ownership and once asked the record owner for assistance in building a

boat ramp and cutting some trees on the disputed property.

275

In reaching

this decision, the court discounted a long history of corporeal possession

and public assertions of a claim to the land stretching as far back as the

1920s when the claimant and her family returned to the place of her 1882

birth and began living and taking care of the property in dispute.

276

Succession of Kemp, the evidence of an apparent acknowledgment might

have simply overwhelmed the other strong evidence of the claimant’s

intent to possess as owner.

Finally, in Armstrong v. Armstrong,

277

another possessory action,

plaintiffs claimed to have possessed 19 acres of bottomland adversely to

record owners who happened to be their co-heirs.

278

In essence, the

plaintiffs, one group of heirs of a common ancestor, Stephen Armstrong,

asserted legal possession of the land against another group of heirs,

Douglas Armstrong and his heirs, who had acquired undisputed title to 47

acres of Stephen Armstrong’s original 140-acre tract of land.

279

No fences

or other obstacles separated defendants’ bottomland from the balance of

the heirs’ lack of appreciation, but failed to contact them directly or declare by

their actions that they had changed their intent and were possessing as owners. Id.

274

. 316 So. 2d 919 (La. Ct. App. 1975), writ denied, 316 So. 2d 906 (La. 1975).

275

. Id. at 924−25 (noting testimony that Aunt Mae did not complain when

the record owner, Kemp, conducted timber operations on the disputed land, which

was known as the “Kemp Tract”; Kemp frequently visited the land; and Kemp

allowed his aunt to stay on the land as its caretaker “by sufferance” because he

felt sorry for her).

276

. Id. at 923. The court of appeal hedged its conclusion by observing that even

if Aunt Mae’s possession was exclusive, her possession was interrupted by timber

harvesting in 1933, thus precluding 30 years of continuous possession. Id. at 925.

277

. 493 So. 2d 253 (La. Ct. App. 1986).

278

. Id. at 254−55.

279

. Id.

2017] PRECARIOUS POSSESSION 671

the estate, which the plaintiffs owned along with Douglas as co-heir.

280

Although the plaintiffs had corporeally possessed the 19 acres in dispute,

the court found that the defendants never abandoned or renounced their

interests in the land, and moreover, that the plaintiffs’ acts of detention

never excluded the defendants from their possession.

281

In fact, the court

held that the defendants, who continued to pay taxes on property, were

entitled to a presumption that they continued to retain their intent to

possess as owners.

282

Ultimately, the court in Armstrong found that the

plaintiffs could not show any acts that would “bring home” to the

defendants the fact that they intended to take the land in dispute for

themselves.

283

The strong familial and neighborly relationship between the

parties, who were technically co-owners of land adjacent to the land in

dispute, was thus decisive.

284

Just before quoting extensively from

Baudry-Lacantinerie and Tissier, the court indeed characterized plaintiffs’

possession as precarious because it took place “with Defendants’

permission or tolerance.”

285

In this sense, Armstrong might even be

characterized as a dispute between neighbors rather than family members

and thus could fall into the third category of paradigmatic precarious

possession cases.

286

4. Sui Generis Legal Status Relationships

Occasionally, the parties in a title dispute over land have some special

legal status relationship that does not fall into any of the other categories

described above. Sometimes, as in Thomas v. Congregation of St. Saveur

Roman Catholic Church,

287

the relationship is between an institution and

natural persons who serve that institution. In Thomas, the father of the

280

. Id.

281

. Id.

282

. Id. at 257−58.

283

. Id. at 258.

284

. As the court noted,

The circumstances of co-heirship and ownership of adjoining property,

the fact that the family resided as neighbors on apparently good terms

until this controversy arose, and the use of the bottom land in common,

are all relevant evidence in the case and are required to be considered in

the evaluation of the possessory action of the parties.

Id. at 259.

285

. Id.

286

. For discussion of that category see infra Part II.C. See also infra notes

299−392 and accompanying text.

287

. Thomas v. Congregation of St. Sauveur Roman Cath. Church, 308 So. 2d

337 (La. Ct. App. 1975).

672 LOUISIANA LAW REVIEW [Vol. 77

claimant–possessors had for many years served as sexton of a church, the

record owner of the property in dispute.

288

The court held that his

numerous acts of possession were tolerated at the sufferance of the church

in return for his service as sexton and thus he did not possess “as owner.”

289

In Memorial Hall Museum, Inc. v. University of New Orleans

Foundation,

290

the unusual relationship was between two different non-

profit institutions. In Memorial Hall, a non-profit corporation that

operated a museum housing Confederate artifacts claimed ownership of a

building that had originally been constructed as an “annex” to a building

owned by a non-profit library association.

291

The court ruled in favor of

the successor to the non-profit library association, the University of New

Orleans, holding that the lengthy possession and occupation of the “annex”

by the plaintiff and its predecessor-in-interest was precarious because in a

1931 speech the president of the library association stated that he was only

putting the plaintiff’s predecessor into “possession” of the annex “for the

‘use’ of [that organization].”

292

Numerous other statements and acts

confirmed that the plaintiff’s predecessor recognized the library

association as owner, and the plaintiff’s predecessor failed to notify the

library association when it did assert ownership of the building.

293

Finally, precarious possession can even become an issue when the

object of a dispute is a movable whose possession has been exchanged

under a voluntary arrangement between parties exploring a business

transaction. In SongByrd, Inc. v. Bearsville Records, Inc.,

294

Albert

Grossman, a famous New York music impresario had been given

possession of several master tapes made by a well-known New Orleans

musician—Henry Roeland Byrd, also known as “Professor Longhair”—

for demonstration purposes only.

295

The United States Court of Appeal for

the Fifth Circuit thus held that Grossman’s estate could not assert

liberative prescription to defend against the revindicatory action brought

by the musician’s successor-in-interest and could not assert acquisitive

prescription unless it could show that Grossman or his estate had

288

. Id. at 338.

289

. Id. at 339−41. In Thomas, a local parish priest testified that he specifically

gave the claimants’ father and mother permission to continue living in a house on

the church property when asked. Id. at. 341.

290

. Mem’l Hall Museum, Inc. v. Univ. of New Orleans Found., 847 So. 2d

625 (La. Ct. App. 2003).

291

. Id. at 627.

292

. Id.

293

. Id. at 627−28.

294

. 104 F.3d 773 (5th Cir. 1997).

295

. Id. at 775.

2017] PRECARIOUS POSSESSION 673

terminated precarious possession by giving Byrd, his heirs, or his

successor-in-interest actual notice of an intent to keep the tapes as

owner.

296

Just like Falgoust v. Inness,

297

SongByrd was essentially a case

involving a claimant–possessor whose possession was characterized as

precarious because it began through an implied and informal license.

In these special legal status cases, courts instinctively use a relational

approach to determine whether the claimant was possessing precariously.

Because the parties began dealing with the property at issue in a particular

familial, institutional, or quasi-contractual relationship that involved some

kind of sharing or mutual accommodation, courts analyze both parties’

expectations in the context of that relationship and seem to demand strong

proof that the cooperative or quasi-contractual nature of the relationship

with respect to the property at issue has ended and that the claimant has

communicated a new kind of interest in the property.

298

As the final

category of possession and acquisitive prescription cases discussed in Part

II.C shows, courts would be wise to follow this relational approach even

more self-consciously.

C. Neighbors and Members of Close-Knit Communities

Neighbors and members of a close-knit community can be wonderful

friends. They can lend support to each other in times of trouble. They can

provide each other with camaraderie and entertainment. They can work

together as partners in community projects. However, neighbors and

community members can also become embroiled in bitter conflict. In

particular, when one neighbor uses another neighbor’s property and that

use is tolerated or ignored for a long time, the first neighbor may believe

296

. Id. at 781. After the Fifth Circuit remanded the case, the federal district

court in Louisiana transferred the matter to the Northern District of New York.

Applying New York law, the New York federal district court dismissed the action,

holding that SongByrd’s claims were barred by New York’s three-year statute of

limitations for a conversion action. Id. In 2000, the Second Circuit affirmed.

SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172 (2d Cir. 2000).

297

. 163 So. 429 (La. Ct. App. 1935), discussed supra notes 268−70 and

accompanying text.

298

. In another sui generis case involving movables, Matter of Succession of

Hutchinson, the court of appeal held that a surviving spouse’s claim to have

acquired ownership of an antique breakfront and several paintings that had been

the separate property of her late husband by ten-year acquisitive prescription

failed because she possessed the movables in the matrimonial home jointly with

her late husband, “such joint possession was precarious,” and she never took any

steps to change the quality of her possession after her husband died. 2014 WL

1778270, at *4–5 (La. Ct. App. May 1, 2014).

674 LOUISIANA LAW REVIEW [Vol. 77

that she has acquired a property right while the other may believe that

nothing has changed. Indeed, that is exactly the kind of dispute that

surfaced in Boudreaux v. Cummings.

299

In these inherently difficult cases,

courts will be tempted to draw on murky concepts emerging from older

French sources, such as acts of “pure convenience” and “mere tolerance,”

regardless of their codal pedigree.

300

Further, as the conflicting opinions

in Boudreaux amply demonstrate, resolution of these cases may create

even more uncertainty for Louisiana property law.

As a general matter, courts in this kind of case frequently classify a

possessor–claimant as a precarious possessor, despite a long history of

corporeal possession.

301

Occasionally, though, neighbor claimants prove

that they always possessed in their own right or at least began to possess

in their own right at some moment in time and thus succeed in acquiring

ownership or predial servitudes in immovable property by acquisitive

prescription.

302

Although the number of recent cases that fall into the

neighbor and close-knit community category is not large, several distinct

jurisprudential patterns emerge.

1. Neighbors as Precarious Possessors Through Acknowledgment or

Agreement

In one line of decisions involving acquisitive prescription claims and

possessory actions asserted by one neighbor against another, courts have

classified claimants as precarious possessors based on evidence of some

acknowledgement or agreement that the claimant’s possession was permissive

at the outset.

303

In these cases, although the parties may be neighbors with one

299

. Boudreaux v. Cummings, 167 So. 3d 559 (La. 2015).

300

. For discussion of the sources of these concepts see supra notes 82−94 and

accompanying text.

301

. See Humble v. Dewey, 215 So. 2d 378 (La. Ct. App. 1968); Verret v.

Norwood, 311 So. 2d 86 (La. Ct. App. 1975); Delacroix v. Dean, 901 So. 2d 1188

(La. Ct. App. 2005); Delacroix v. Perez, 794 So. 2d 862 (La. Ct. App. 2000).

These cases are discussed infra notes 310−53 and accompanying text.

302

. See Blanda v. Rivers, 210 So. 2d 161 (La. Ct. App. 1968); Merchant v.

Acadia-Vermillion Irrigation Co., Inc., 311 So. 2d 86 (La. Ct. App. 1975); Dutile

v. Aymond, 338 So. 2d 350 (La Ct. App. 1976), writ denied, 340 So. 2d 998 (La.

1977); Succession of Kemp v. Robertson, 316 So. 2d 919 (La. Ct. App. 1975),

writ denied, 316 So. 2d 906 (La. 1975); Collins v. Quinn, 366 So. 2d 209 (La. Ct.

App. 1978). These cases are discussed infra notes 354−92 and accompanying text.

303

. See Briggs v. Pellerin, 428 So. 2d 1087, 1089 (La. Ct. App. 1983)

(holding that claimant’s possession was at the sufferance of record owner based

on hearsay testimony of a non-party witness, corroborated by other witnesses,

regarding a conversation between the claimant’s ancestor-in-title and the record

2017] PRECARIOUS POSSESSION 675

another, the presence of an acknowledgement or agreement between the

parties suggests these cases may be more properly classified as contractual

disputes in which courts commonly use the presumption of article 3438 to

find that claimants are precarious possessors.

304

Moreover, the evidence of

acknowledgement in these cases could support a finding that even though

prescription might have begun to run, the claimants’ recognition of the

other party’s ownership rights nevertheless “interrupted” it.

305

2. Neighbors as Precarious Possessors Through Inference

More tellingly, in another series of neighbor decisions, courts

classified possessor–claimants as precarious possessors based, not on an

informal acknowledgement or agreement, but rather on a cluster of more

ambiguous facts and judicial intuitions, including community testimony

indicating the likelihood of permissive use;

306

a landowner’s practice of

allowing general community access to the land in dispute;

307

inferences by

the court about the likely intentions of the parties;

308

and doubts that the

claimant’s acts of possession gave sufficient notice of a claim to the record

owner.

309

On occasion, courts have even invented alternative presumptions

to reach a desired outcome.

310

owner in which both acknowledged they knew a fence was not on the property

line but agreed to let it remain in place); Dutile v. Aymond, 338 So. 2d 350 (La.

Ct. App. 1976), writ denied, 340 So. 2d 998 (La. 1977) (dismissing possessory

action based on clear evidence that claimant’s ancestor-in-title possessed through

acquiescence of record owner and told the record owner’s lessee that he had put

fence partially on the record owner’s land and promised to remove it when

requested); Succession of Kemp v. Robertson, 316 So. 2d 919 (La. Ct. App.

1975), writ denied, 316 So. 2d 906 (La. 1975) (claimant did not acquire ownership

through acquisitive prescription because several witnesses testified that the

claimant acknowledged the record owner’s ownership and once asked the record

owner for assistance in building a boat ramp and cutting some trees on the

disputed property).

304

. See discussion supra Part II.B.1.

305

. LA. CIV. CODE art. 3464 (2007).

306

. Humble, 215 So. 2d at 381; Verret, 311 So. 2d 86.

307

. Delacroix Corp. v. Dean, 901 So. 2d 1188, 1191 (La. Ct. App. 2005);

Blanda, 210 So. 2d 161.

308

. Humble, 215 So. 2d at 382; Delacroix Corp. v. Perez, 794 So. 2d 862 (La.

Ct. App. 2000).

309

. Verret, 311 So. 2d 86; Perez, 794 So. 2d 862.

310

. Humble, 215 So. 2d at 382.

676 LOUISIANA LAW REVIEW [Vol. 77

In Humble v. Dewey,

311

the claimant was a small-town grocery store

owner who had begun raising crops and pasturing animals to feed his

family on a six-acre tract of land across the road from the two-acre tract of

land that he owned and had inhabited since 1932.

312

Although the claimant

stated that he never asked anyone for permission to use the disputed land

and claimed not to know initially who owned it, one of the record owners

told the claimant he could have the land in compensation for debts he owed

the claimant at his grocery store.

313

The conflict between the claimant and

the record owners did not surface until 1962, when the record owners

authorized a prospective purchaser to inspect the disputed land and the

claimant denied entry.

314

Although the claimant and record owners did not

own adjacent properties, only a public road separated their properties.

315

More important was that the parties were quite familiar with each other

through family and community relationships.

316

In holding that the claimant was, in fact, a precarious possessor and

thus did not acquire ownership through acquisitive prescription, the court

in Humble acknowledged the claimant’s reliance on the general rule that a

possessor is presumed to possess as owner under article 3488 of the 1870

Civil Code.

317

Yet the court appears to turn that traditional presumption on

its head by declaring:

[O]rdinarily the intent to possess as owner should not be inferred

unless the actions of the possessor or the surrounding facts and

circumstances are sufficient to reasonably apprise the public, and

the record title owner of the property, of the fact that the possessor

has the positive intent to possess as owner.

318

With this curious framework in place, the court of appeal found that

the claimant’s acts of cultivating and raising animals on the land were

insufficient to establish an intent to possess as owner.

319

Indeed, the court

311

. Id.

312

. Id.

313

. Id. at 380.

314

. Id. at 381.

315

. Id. at 380.

316

. Id. at 381. The claimant, Dewey, and the father of one of the record

owners were “good friends,” and the claimant’s daughter was the other record

owner’s “best friend.” Id.

317

. Id. at 382.

318

. Id.

319

. The court described the claimants’ acts of possession in great detail. Id.

at 380. Yet after stating its inverted presumption requiring a claimant to show

facts and circumstances demonstrating his “positive intent to possess as owner,”

2017] PRECARIOUS POSSESSION 677

declared its confidence that the claimant had no intention of remaining on

the land indefinitely and had “occupied the land, therefore, merely by the

suffrage of the owner.”

320

Perhaps aware that it was breaking new ground, the court in Humble

also justified its holding, much like the majority opinion in Boudreaux, by

noting the general burden of proof placed on a party claiming acquisitive

prescription and emphasizing that the claimant’s “own testimony,

considered with the surrounding facts and circumstances,” rebutted and

overcame the core presumption that a possessor is presumed to possess as

“master and owner.”

321

Make no mistake: the court’s reasoning in Humble

is unclear and contradictory, thus justifying Professor Hargrave’s curt

criticism.

322

Yet one way to explain the court’s conclusion is that perhaps

the court of appeal sensed that the claimant’s acts of possession did not

challenge the record owners’ claims radically enough, particularly given

that the parties were so familiar with each other and the community itself

seemed to believe that the claimant was possessing with the permission of

the record owners.

323

As the rise in oil and gas prices led to increased mineral exploitation

and competition for land in South Louisiana, eight years after Humble, the

court in Verret v. Norwood

324

relied primarily on testimony regarding

community custom about neighborly sharing to reject the plaintiffs’ claim

of 30-year acquisitive prescription in an action to remove a cloud on

title.

325

The initial problem for the plaintiffs, the possessor–claimants, in

Verret was that their ancestor-in-title, the original record owner of the 160

acres of Atchafalaya Basin marshland in dispute who had received a patent

from the State in 1888, had lost title to the defendants’ ancestors-in-title

id. at 382, the court seemed to revert back to the traditional presumption in favor

of the claimant–possessor by stating “[w]e agree with defendant that the fact that

we went into possession of the subject property created a presumption that he

possessed it as owner. This presumption is subject to rebuttal, however, and we

think the defendant’s own testimony, considered with the surrounding facts and

circumstances, rebuts and overcomes that presumption.” Id. at 382−83.

320

. Id.

321

. Id. (quoting LA. CIV. CODE art. 3488 (1870)).

322

. Ruminations, supra note 66, at 1217 n.177 (calling the decision in

Humble “equally erroneous”).

323

. Humble, 215 So. 2d at 381 (observing testimony of a community witness

who knew both parties well that she and her sister “assumed that their father had

‘let Mr. Dewey use the land,’ and that nothing had occurred which caused them

to question Dewey’s motives until 1962” and noting that the trial court judge

reached the same conclusion about community views).

324

. Verret v. Norwood, 311 So. 2d 86 (La. Ct. App. 1975).

325

. Id.

678 LOUISIANA LAW REVIEW [Vol. 77

as the result of a 1906 tax sale.

326

The primary act of possession that the

plaintiffs relied on to substantiate their claim of acquisitive prescription

was a 1913 timber harvest of the merchantable cypress on the land

authorized by their ancestor-in-title.

327

The defendants’ ancestors-in-title

had also demonstrated little interest in the land, having failed to pay property

taxes in 1909, which in turn caused the land to be adjudicated to the state

until the defendants redeemed the land in 1965 after finally paying all the

taxes in arrears.

328

Ultimately, the court in Verret rejected the plaintiffs’ acquisitive

prescription claim for two reasons. First, their ancestor’s initial act of

corporeal possession, although significant in 1913, was never repeated or

followed by any other significant acts of possession.

329

Second, ample

testimony by both the plaintiffs’ witnesses and other members of the local

community who inhabited, hunted, and trapped in the Atchafalaya Basin,

established that the land there was generally regarded as a kind of commons

where boundaries and ownership rights were generally ignored.

330

As the

court noted,

It was established that in the Basin it was not uncommon for

timber to be removed without the owner’s permission. Hunting,

fishing, trapping, and other such acts were not established to have

been made as owner. Instead those acts were consistent with the

community’s understanding that all property in the Basin was

available for use without regard to ownership.

331

In other words, because the entire community acted as if “ownership

was irrelevant,”

332

and because the plaintiffs’ acts were consistent with this

community norm of access, the court concluded that the plaintiffs and their

ancestor-in-title never truly had the requisite intent to possess as owner

and thus were precarious possessors, even though the record owner had

largely ignored the property for more than 50 years.

333

326

. Id. at 88–89.

327

. Id. at 93.

328

. Id. at 89.

329

. Id. at 94.

330

. For example, one of the Verret’s own witnesses testified, “it was a

friendly community and you didn’t ask permission from anyone to use property

in the Basin . . . when they hunted, they just went to the best place and hunted.”

Id. at 94.

331

. Id. at 94–95.

332

. Id. at 94.

333

. Id. at 94−95.

2017] PRECARIOUS POSSESSION 679

In a difficult neighbor case like Verret, in which neither the claimant

nor the record owner has demonstrated much commitment to the land and

the land itself has generally been available for use by anyone in the

community, precarious possession can thus serve as a convenient tool for

courts to solve an otherwise insoluble dilemma. In another unusual

neighbor case, 25 years later, the court similarly held that even in the

absence of an informal agreement between neighbors, when a landowner

allows a broad segment of the local community to use its land for

designated purposes, a claimant who also uses the land for the same

general purposes can likewise be characterized as a precarious

possessor.

334

Finally, in Delacroix Corp. v. Perez,

335

an unusually interesting neighbor

case, the court ruled that Chalin Perez, the President of Plaquemines Parish,

336

and a corporation he owned—Stella Lands, Inc.—could not acquire

ownership of 294 acres of disputed land in that parish because he and his

corporation were precarious possessors. The controversy originated in a

purported misunderstanding by Perez regarding the eastern boundary of a

riparian tract he owned fronting on the east bank of the Mississippi River.

337

Perez reportedly believed that his title, which on its face extended to the

“Forty Arpent Line,” extended all the way to the “Forty Arpent Canal.”

338

other words, he thought the Forty Arpent Line and the Forty Arpent Canal

were coterminous. In fact, they were not coterminous, and Delacroix

Corporation, an entity that had acquired and maintained control of almost

110,000 acres of land in Plaquemines Parish, owned the intervening land

in dispute.

339

Perez began using the land in dispute for cattle grazing and

334

. Delacroix Corp. v. Dean, 901 So. 2d 1188, 1191 (La. Ct. App. 2005)

(holding that landowner who claimed title to a private canal on his neighbor’s

property by, inter alia, 30-year acquisitive prescription was a precarious possessor

until he applied for a construction permit on a portion of the canal he had filled

in; before then his only acts of possession were the mooring of elevated boats and

other maritime activities granted to the community at large by the canal owner).

335

. Delacroix Corp. v. Perez, 794 So. 2d 862 (La. Ct. App. 2000).

336

. Chalin Perez is one of the two sons of Leander Perez. “Judge” Leander

Perez was the notorious political boss of Plaquemines Parish for almost 50 years.

See Glen Jeansonne, Leander Perez: A Southern Demagogue and Reformer, in

VIII THE LOUISIANA PURCHASE BICENTENNIAL SERIES IN LOUISIANA HISTORY

495 (Edward F. Haas ed., 2001) (describing Perez as “something of a social

reformer, a political figure of national stature, one of the most ardent

segregationists in the South, and an oil tycoon worth millions of dollars”).

337

. Perez, 794 So. 2d at 864.

338

. Id. at 865.

339

. Id. at 864−65.

680 LOUISIANA LAW REVIEW [Vol. 77

crawfishing at some point after he acquired his riparian tract in the early

1950s.

340

Delacroix did not file suit to stop Perez from using and occupying the

disputed lands until 1993.

341

In 1994, Perez and Stella Lands filed their

own possessory action.

342

After the actions were consolidated and the trial

court ruled that Perez and Stella Lands acquired ownership of the disputed

land by 30-year acquisitive prescription,

343

the Louisiana Fourth Circuit

Court of Appeal reversed, agreeing with Delacroix’s argument that Perez’s

possession of the disputed land was precarious.

344

For the court, a June

1993 letter written by Perez, himself a lawyer, just six months before the

litigation began, provided the most important evidence of the precarious

nature of Perez’s possession.

345

In that letter, Perez first acknowledged that

a portion of a crayfish pond he had constructed was located on Delacroix’s

property, but denied that Delacroix owned the remainder of the land on

which the pond was built.

346

Second, he offered to enter into a “long term

lease with a minimal rental to satisfy your concern of adverse possession,”

despite professing insufficient information to determine the exact

boundary line between his and the Delacroix property.

347

Finally, his letter

stated: “except that subject to the above paragraph, it was not my intention

to adversely possess land owned by the Delacroix Corporation.”

348

One might reasonably interpret this letter as an amicable attempt to

settle a difficult boundary dispute. The court, however, treated it as

practically conclusive evidence of a formal acknowledgement that Perez

“did not intend to claim ownership of property to which Delacroix held

the title.”

349

Yet the court also bootstrapped its finding of precarious

possession by referring to other evidence and testimony that tended to

show that Delacroix was intimidated by Perez’s power in the parish and

340

. Id. at 864.

341

. Id.

342

. Id.

343

. Id.

344

. Id. at 866. One member of the five-judge panel of the Louisiana Fourth

Circuit Court of Appeal that decided the case voted to affirm and wrote a lengthy

dissent setting forth his analysis. Id. at 871–78 (Byrnes, J., dissenting).

345

. Id. at 867 (majority opinion).

346

. Id.

347

. Id.

348

. Id.

349

. Id. In addition, Perez attempted in 1980 to have Delacroix provide some

written affirmation that it owned at least part of the land on which the crayfish pond

had been constructed to head off an IRS investigation into whether Perez, as parish

president, had used parish equipment for construction of the pond. Id. at 870.

2017] PRECARIOUS POSSESSION 681

therefore, its acquiescence to Perez’s use of the land in dispute was

understandable.

350

Although it acknowledged that Perez did appear to have “unbridled

use of the subject property”

351

and thus in many ways acted as the agenda-

setter for the property, the court found that Perez never truly interfered

with Delacroix’s ability to exercise its rights and fulfill its obligations of

ownership, including granting mineral leases, granting seismic rights of

way, permitting two oil wells to be drilled on the property—though both

wells proved to be dry—and paying the property taxes throughout the

period at issue.

352

In the end, the court found that “by failing to overtly

challenge Delacroix’s use of the subject property, Perez in effect lulled

Delacroix into a false sense of security that Perez was operating within the

terms of the oral agreement between the parties.”

353

Although this ultimate

conclusion is certainly defensible, unfortunately the decision, as in the

other difficult neighbor cases discussed above, did not provide any kind of

structured framework to analyze future precarious possession disputes.

3. Neighbors Who Possess as Owners

Although most cases involving neighbors or members of the same

close-knit community result in findings that possessor–claimants are

precarious possessors, at least four reported decisions in this category have

culminated with determinations that possessor–claimants were possessing

with the intent to own. In Blanda v. Rivers,

354

the plaintiff and defendants

owned adjoining properties on Esplanade Avenue in New Orleans.

355

The

plaintiff, Blanda, sued to force the defendants, the Rivers, to remove water,

gas, and sewer pipes and gas flues in the party wall separating their two

properties that extended onto Blanda’s side of the party wall and beyond

into the air space over his property.

356

The Rivers claimed that they had

acquired a continuous and apparent servitude as a result of the continuous

350

. The court noted that Delacroix’s president testified that she and her

mother had given Perez permission to use the land in dispute because they were

“intimidated by Perez’s position of power in parish government.” Id. at 868. Other

evidence tended to confirm this intentional accommodation. Id.

351

. Id. at 869. Perez erected gates on two canals that bisected the dispute land,

built duck blinds and deer stands, and at one point even evicted a person whom

Delacroix had invited onto the property to go hunting. Id.

352

. Id. at 869.

353

. Id. at 869–70.

354

. 210 So. 2d 161 (La. Ct. App. 1968).

355

. Id.

356

. Id. at 162.

682 LOUISIANA LAW REVIEW [Vol. 77

presence of these installations through ten-year acquisitive prescription

under article 765 of the 1870 Civil Code.

357

The Rivers made the installations in 1951, 17 years before the

litigation ensued.

358

Blanda’s predecessor-in-title, Landry, apparently

gave the Rivers permission to install the pipes on his side of the party wall

when the Rivers renovated their building to create apartments.

359

Landry

and the Rivers did not execute any writing to document their agreement,

nor did they reach any understanding relating to the establishment of a

predial servitude.

360

Indeed, as the court noted, “[t]here was no discussion

of their legal rights and, at least as far as Mr. Landry was concerned, there

was no evidence that he had any other intent except to be a good neighbor

and not to interfere with, nor object to, the Rivers’ installation of the

plumbing facilities.”

361

At the time of the installation, Landry was unaware

of his ownership interest in the party wall.

362

In fact, although he knew the

pipes “protruded over his property and that he gave his permission,”

Landry learned that he owned half of the wall only when he was

negotiating the sale of his property to Blanda in 1965, shortly before

Blanda filed the lawsuit.

363

Affirming the trial court, the Louisiana Fourth Circuit Court of Appeal

held that the Rivers had, in fact, acquired a servitude by acquisitive

prescription.

364

In this context, the court initially rejected Blanda’s

contention that the Rivers were precarious possessors merely because of

Landry’s acquiescence in the installation of the encroaching pipes and his

subsequent assistance in repairing them in rather obscure terms.

365

However, when it addressed the essential element of adverse possession

in acquisitive prescription generally,

366

the court observed more sharply

that “the enjoyment of the right in favor of Rivers’ estate was no less

357

. Id. at 162–63. The party wall formed part of the Rivers’ building, but did

not abut Blanda’s building. Id. at 163.

358

. Id.

359

. Id.

360

. Id.

361

. Id.

362

. Id.

363

. Id.

364

. Before reaching the precarious possession argument asserted by Blanda,

the court first found that there was no serious dispute that the claimed servitude

was both continuous and apparent and thus subject to either 10-year prescription

under Civil Code article 765 or 30-year prescription under Civil Code article

3504. Id.

365

. Id. at 166 (“At no time did Rivers possess or enjoy the right of servitude for

or in the name of Landry, but always for the exclusive benefit of his estate . . . .”).

366

. Id.

2017] PRECARIOUS POSSESSION 683

adverse merely because Landry did not object.”

367

This observation is

crucial because the court can be understood to mean that implied permission

should not be read into a record owner’s acquiescence or passivity without

some more tangible evidence that the possessor began possession with the

intent to possess for or with the permission of the owner.

Indeed, the court in Blanda seemed to believe that the plaintiff’s

predecessor, Landry, bore the burden of stopping prescription from

accruing. “At any time before the expiration of ten years,” it noted, “Landry

could have protested and stopped the running of prescription, just as was

done by the plaintiff Blanda with regard to the rear most flue installed in

1965.”

368

In sum, Blanda represents a robust application of the Civil Code

principle that a possessor is presumed to intend to possess as owner in the

context of a neighbor dispute concerning acquisitive prescription of a

predial servitude in contrast to the relatively weak application employed by

the Louisiana Supreme Court majority in Boudreaux v. Cummings.

369

In Merchant v. Acadia-Vermillion Irrigation Co. Inc.,

370

the plaintiffs

owned a tract of land in Vermillion Parish bordered on two sides by

property owned by the defendants—two corporations, one of which was a

canal company.

371

Until 1981, the defendants’ property had been used as

part of a canal system for irrigation of crops, but in that year the canals

were filled in, and plans were made to subdivide the property in

anticipation of residential development.

372

The plaintiffs asserted that they

had acquired ownership of the disputed land formerly covered by the

canals by 30-year acquisitive prescription based on the fact their

predecessors-in-title and their own tenants had farmed and grazed cattle

on the land in dispute up to the edge of the former canal levees for more

than 60 years.

373

The only factual conflict concerned whether fences

enclosed the disputed land and what the community understood about the

nature of the plaintiffs’ possession.

374

Relying heavily on Verret v. Norwood,

375

the defendants argued on

appeal that the plaintiffs’ possession was precarious because it was

367

. Id. at 166–67.

368

. Id. at 167.

369

. Boudreaux v. Cummings, 167 So. 3d 559, 563–64 (La. 2015).

370

. 476 So. 2d 1014 (La. Ct. App. 1985).

371

. Id.

372

. Id. at 1015.

373

. Id.

374

. Id. at 1015–16.

375

. 311 So. 2d 86 (La. Ct. App. 1975), writ denied, 313 So. 2d 842 (La. 1975)

(characterizing claimant’s possession as precarious because of the community

684 LOUISIANA LAW REVIEW [Vol. 77

“common knowledge in the community” that the canal company

defendant and its predecessor allowed the owners of contiguous tracts to

use their land.

376

This argument failed to persuade the court of appeal,

however, because in Merchant the only witnesses who attested to this alleged

policy of sufferance were the company’s own employees,

377

and moreover,

the company did not prove that the plaintiffs were even aware of the policy.

378

Indeed, buttressing this last point, the court in Merchant distinguished several

decisions in which courts classified neighbor claimants as precarious

possessors based on evidence of an acknowledgement or agreement that the

claimant’s possession was permissive at the outset.

379

By contrast, in

Merchant, the record owner failed not only to show that the possessor–

claimants ever realized they were possessing with the sufferance of the record

owner, but it also did not prove that the claimants had requested the record

owner’s permission to use the disputed land or that the canal company had

specifically granted them such permission.

380

As the court summarized in

Merchant, “an owner’s mere knowledge that someone is possessing adverse

to his ownership does not prevent the running of acquisitive prescription.”

381

In contrast to Boudreaux, the court in Merchant squarely placed the burden

of proof on the record owner to rebut the presumption under Article 3427

of the Civil Code that a possessor was possessing as owner. In other words,

record owners cannot rest on their belief that they are tolerating an

adjoining property owner’s use of their property as a matter of neighborly

convenience and then, only after acquisitive prescription has been alleged,

assert that the neighbor’s possession was merely precarious.

Two more decisions in the neighbor context also show that neither

uncertainty about the location of a boundary nor even actual knowledge

that a fence extends beyond an actual boundary can necessarily render a

perception that land in the Atchafalaya Basin was generally available for use by

all), discussed supra at notes 324−33 and accompanying text.

376

. Id.

377

. Merchant, 476 So. 2d at 1016.

378

. Id.

379

. Id. at 1016−17 (distinguishing Briggs v. Pellerin, 428 So. 2d 1087 (La.

Ct. App. 1983); Dutile v. Aymond, 338 So. 2d 350 (La. Ct. App. 1976), writ

denied, 340 So. 2d 998 (La. 1977); Succession of Kemp v. Robertson, 316 So. 2d

919 (La. Ct. App. 1975), writ denied, 316 So. 2d 906 (La. 1975); Collins v. Quinn,

366 So. 2d 209 (La. Ct. App. 1978)). As the court noted in Merchant, in all of

these decisions, “the possessor knew that he was possessing with the sufferance

of the owner, and there was, in effect, an agreement, between the owner and the

possessor recognizing that the possessor’s possession was only with the

sufferance of the owner.” Merchant, 476 So. 2d at 1016–17.

380

. Id. at 1017.

381

. Id.

2017] PRECARIOUS POSSESSION 685

claimant’s possession precarious. In Nugent v. Franks,

382

the court held

that claimants acquired ownership of 17 acres of rural land by tacking their

possession to that of a predecessor in interest.

383

Although the defendants

argued that this predecessor possessed precariously because his cousin and

neighbor allowed him to use a portion of her land as an accommodation,

the court of appeal rejected this characterization. It did so by relying on

the presumption that a possessor intends to possess as owner and by

pointing to evidence that the predecessor “exercised acts of corporeal

possession of the property [in dispute] consistent with ownership of the

type of property involved,”

384

that is, in the same manner as the cousin and

neighbor used her own land.

Finally, in Livingston v. Unopened Succession of Dixon,

385

the court held

that a claimant had acquired ownership of a strip of land located along the

border of his neighbor’s property through 30-year acquisitive prescription and

rejected the record owner’s precarious possession counterargument.

386

Although the facts were generally unremarkable, the court found that the mere

fact that the possessor–claimant was aware that his fence encroached on his

neighbor’s property—and even acknowledged that the fenced boundary line

was incorrect—did not mean that he intended to possess for anyone but

himself as owner.

387

In addition, the court stressed that numerous members of

the community at large who were familiar with the property testified that the

fence was recognized as the claimant’s boundary.

388

The decisions that fall into this crucial, third category of possession

and acquisitive prescription disputes appear to be contradictory. In some

instances, courts focus on the intrusiveness and extent of the claimant’s

acts of possession.

389

In other instances, courts focus on the degree to

which the claimants had made investments in their own property

depending on the neighbor’s acquiescence and the record owner’s

awareness of this reliance.

390

In still other cases, courts appear to be

382

. 471 So. 2d 816, 823–25 (La. Ct. App. 1985).

383

. Id.

384

. Id. at 824. In Nugent, the defendants failed to prove a clear chain of title

to the land in dispute that was good against the world in their own petitory action.

Id. at 820–23. In this sense, the property in dispute was literally up for grabs.

385

. 589 So. 2d 598 (La. Ct. App. 1991).

386

. Id. at 599–600.

387

. Id. at 603.

388

. Id. at 604.

389

. See Humble v. Dewey, 215 So. 2d 378 (La. Ct. App. 1968) (relatively

modest physical intrusion); Verret v. Norwood, 311 So. 2d 86 (La. Ct. App. 1975)

(same); Delacroix Corp. v. Perez, 794 So. 2d 862 (La. Ct. App. 2000) (same).

390

. Blanda v. Rivers, 210 So. 2d 161 (La. Ct. App. 1968).

686 LOUISIANA LAW REVIEW [Vol. 77

influenced by the degree of community recognition of the claimant’s acts

of possession as an indication of either toleration or a shift of ownership.

391

Finally, in several cases, courts dwell on the extent to which record owners

communicated their policy of neighborly accommodation to the claimant

and whether the claimant recognized that accommodation.

392

What

Louisiana law clearly needs now is a normatively attractive presumption

that aligns with courts’ predilection to encourage neighborly cooperation

and a more coherent analytical framework to establish the limits of that

presumption and to help resolve the difficult claims that arise in disputes

involving neighbors and members of the same close-knit community.

III. THE FUTURE OF PRECARIOUS POSSESSION

Many Louisiana lawyers and jurists must now be wondering what to

make of the three judicial opinions that emerged from the Louisiana

Supreme Court decision in Boudreaux, particularly in light of the majority

opinion’s statement that “[o]ur holding today is strictly limited to the facts

before us.”

393

On the one hand, courts might follow the majority opinion

and begin to ignore what up until now had been, at least according to

Justice Knoll (and also Professor Hargrave), the Civil Code’s relatively

well-understood burden-shifting structure regarding possession.

394

In that

event, courts may well accept assertions of tacit permission summarily,

without demanding much proof of such permission and without taking into

account the specific relational context of an acquisitive prescription claim

or possessory action.

395

The defense of precarious possession could then

391

. Compare Verret, 311 So. 2d 86 (community recognition of land in dispute

as commons), with Merchant v. Acadia-Vermillion Irrigation Co., Inc., 476 So.

2d 1014 (La. Ct. App. 1985) (community recognition of claimant’s use of land

bounded by canals).

392

. Compare Merchant, 476 So. 2d 1014 (no communication of policy of

sufferance), with Briggs v. Pellerin, 428 So. 2d 1087, 1089 (La. Ct. App. 1983);

Dutile v. Aymond, 338 So. 2d 350 (La. Ct. App. 1976), writ denied, 340 So. 2d

998 (La. 1977); Succession of Kemp v. Robertson, 316 So. 2d 919 (La. Ct. App.

1975), writ denied, 316 So. 2d 906 (La. 1975), discussed supra note 303 and

accompanying text.

393

. Boudreaux v. Cummings, 167 So. 3d 559, 564 (La. 2015).

394

. Id. at 565–66 (Knoll, J. dissenting). Justice Knoll’s understanding is

synonymous with Professor Hargrave’s statement of the “core rule” regarding

presumptions and burdens of proof in questions of precarious possession. Presumptions,

supra note 100, at 237, discussed supra note 102 and accompanying text.

395

. For example, in Scrantz v. Smith, the court of appeal relied on Boudreaux

to classify a claimant seeking to acquire a predial servitude by acquisitive

prescription as a precarious possessor based on the owners’ “simple tolerance” of

2017] PRECARIOUS POSSESSION 687

end up swallowing the general principle that possessors are presumed to

possess as owners, especially in the context of acquisition of servitudes by

neighbors.

396

If courts follow this path, Justice Knoll may well be right that

Boudreaux “severely jeopardizes the law on acquisitive prescription in this

state.”

397

On the other hand, this unfortunate outcome could be avoided if

lawyers, judges, and jurists treat Boudreaux as a cause for reflection and

as an occasion to begin a new conversation about acquisitive prescription

and precarious possession in Louisiana. As this Article explains, even

though Justice Knoll and Justice Weimer each reached a different

conclusion about the ultimate issue in Boudreaux, both of their opinions

model a relational approach to the kind of complex factual dispute that can

arise in a paradigmatic neighbor or close-knit community case. But before

turning to a detailed reconsideration of Boudreaux, this Article offers new

jurisprudential tools that could help Louisiana courts make sense of the

most difficult precarious possession cases they are likely to confront.

A. New Jurisprudential Tools to Analyze Neighbor and Close-Knit

Community Cases

Louisiana courts have generally applied the traditional presumptions

of possession and precarious possession in cases that fall into the stranger

and contractual or legal status categories in a consistent and principled

manner. As Part II.A demonstrates, when confronted with a stranger case,

courts are hesitant to find that an adverse-possession claimant is a

precarious possessor as long as it is clear the possessor and record owner

have had little or no relationship with each other over the years. In these

situations, the baseline presumption provided by article 3427 of the Civil

Code—that a possessor is presumed to possess as owner—is usually

applied vigorously unless clear evidence demonstrates that the claimant’s

possession began with the permission of or on behalf of another person.

Conversely, as Part II.B shows, courts confronted with cases that

clearly fall into the second paradigm—cases in which the parties have a

contractual or legal status relationship with each other—are appropriately

attentive to the likelihood that the possessor began to possess precariously.

claimant’s use of a right of way for running cattle and thus placed the burden of

proof on the claimant to prove notice of his intent to possess as owner. 177 So. 3d

130, 134 (La. Ct. App. 2015).

396

. See Cox, supra note 5, at 983 (noting that the broad use of a presumption

of tacit permission by the majority opinion in Boudreaux “leaves little room in the

law for any acquisitive prescription of a right of passage”).

397

. Boudreaux, 167 So. 3d at 568.

688 LOUISIANA LAW REVIEW [Vol. 77

In these cases, the presumption of article 3438—that precarious possessors

are presumed to continue possess on behalf of another even though they

may intend to possess for themselves—serves as the foundational

presumption. As our jurisprudence teaches, however, application of article

3438 does not mean that a record owner will always prevail in such a case.

Sometimes, particularly in the context of acquisitive prescription claims

involving co-owners, a claimant will be able to “[demonstrate] by overt

and unambiguous acts sufficient to give notice to his co-owner that he

intends to possess the property for himself” so that acquisitive prescription

can begin to run.

398

In general, though, Louisiana courts do not need new

rules to handle cases falling into either of the first two categories discussed

in Part II. Rather, they simply must continue to demonstrate sensitivity to

the distinct relational contexts that these kinds of cases present.

In true neighbor or close-knit community cases, however, the

jurisprudential authority is less clear, and as the cases discussed in Part

II.C demonstrate, courts are much more likely to struggle. Further, when

the nature of the right claimed is a predial servitude, courts will often have

difficulty distinguishing quasi-possession that has been adverse from

simple toleration granted by a record owner, especially when the record

owner asserts that he has tacitly permitted the claimant to use his property

in the spirit of being a good neighbor. Yet, as in Boudreaux, when a

possessor–claimant has used his neighbor’s property for a long period of

time and appears to have organized his relationship to his own land or to

his community in reliance on continued access to or use of the record

owner’s land, strong equitable justifications weigh in favor of recognizing

his claim as well.

1. The Presumption of Sharing

Given the difficulty of cases falling into the third category of possession

and acquisitive prescription disputes, Louisiana should consider developing

an additional presumption—a presumption of sharing that would apply

specifically at the outset of a relationship between a possessor and record

owner who are practicing, inhabiting, engaged neighbors or members of the

same close-knit community. Stated simply, this presumption would provide

that when one neighbor uses a fellow neighbor’s property or when a member

of a close-knit community uses another community member’s property, that

use takes place with the implied permission of the owner. This presumption

could be adopted as a jurisprudential rule by Louisiana courts, or it could be

expressed in a new Civil Code article. In either format, it would provide a

398

. LA. CIV. CODE art. 3479 (2016).

2017] PRECARIOUS POSSESSION 689

useful complement to the two existing presumptions found in articles 3427

and 3438 of the Civil Code by aligning judicial decision-making with the

fundamental values that inform property law and by enhancing the

predictability of judicial decision-making in this area.

One justification for a new presumption of sharing can be found in the

scholarship of Gregory Alexander and Eduardo Peñalver, who have

written powerful pieces about how property law can be understood as an

institution that serves the goal of promoting human flourishing.

399

For

Alexander and Peñalver, property law is not solely a utilitarian machine

designed to produce economic efficiency and wealth maximization,

although these are among the many desirable, incommensurable values

that property law can and should promote.

400

Drawing on Aristotle,

Aquinas, and other philosophers working in the Aristotelian tradition,

Alexander and Peñalver argue that because humans are essentially social

beings who thrive only through and because of their relationships with

other people and through human community, property law must also be

understood as serving social values.

401

Property law should thus facilitate

the development of human capabilities that are necessary for individuals

to be able to choose and pursue their own projects from a meaningful set

of options while also helping to sustain families, friendships, and

communities—the very social networks that make human flourishing

possible.

402

One particular aspect of Alexander and Peñalver’s “human flourishing”

theory of property law that is directly relevant to precarious possession is

their insight that an individual must have some property to develop and

practice one of the essential Aristotelian ethical virtues—what might be

called “the virtue of sharing.”

403

Describing why Aristotle believed that

399

. See Gregory S. Alexander, The Social-Obligation Norm in American

Property Law, 94 CORNELL L. REV. 745 (2009) [hereinafter The Social-

Obligation Norm]; Eduardo M. Peñalver, Land Virtues, 94 CORNELL L. REV. 821

(2009) [hereinafter Land Virtues]; Eduardo M. Peñalver, Property as Entrance 91

VA. L. REV. 1889 (2005) [hereinafter Property as Entrance]; GREGORY S.

ALEXANDER & EDUARDO M. PEÑALVER, AN INTRODUCTION TO PROPERTY

THEORY 80–101 (2012) [hereinafter PROPERTY THEORY]; Gregory S. Alexander

& Eduardo M. Peñalver, Properties of Community, 10 THEORETICAL INQUIRIES

L. 127 (2008) [hereinafter Properties of Community].

400

. The Social-Obligation Norm, supra note 399, at 750−51. See generally

Land Virtues, supra note 399.

401

. Properties of Community, supra note 399, at 134−45; PROPERTY

THEORY, supra note 399, at 83−97.

402

. PROPERTY THEORY, supra note 399, at 90–92.

403

. Id. at 80–82. For a discussion of other “land virtues,” including the virtues

of “industry,” “justice,” and “humility,” see Land Virtues, supra note 399, at

690 LOUISIANA LAW REVIEW [Vol. 77

private ownership must form a crucial part of any property system,

Alexander and Peñalver observe,

Another reason [Aristotle] gives in favor of private property is that it

promotes friendship. Aristotle’s thinking here seems to be that

through proper education individuals will learn that property, though

privately owned, is to be shared with friends. Relatedly, private

ownership facilitates the exercise of such virtues as generosity and

moderation. His point here ties in with the one just raised. Aristotle

means to say that the possibility of generosity depends upon the

existence of some degree of private rights. Generosity presupposes a

voluntary act of sharing, so that the owner must willingly transfer to

someone else the power to use and enjoy the resource. And her own

act can only be voluntary and therefore praiseworthy, if she was

entitled not to share.

404

This insight explains why article 2232 of the French Civil Code

declared that acts of “mere toleration” cannot lead to prescription and why

Louisiana courts have been hesitant in neighbor cases like Boudreaux to

allow a possessor–claimant to acquire ownership or real rights whenever

owners make plausible arguments that they merely consented to the

claimant’s use or possession in a spirit of neighborly cooperation.

Louisiana courts intuitively recognize the importance of encouraging

neighbors and members of the same community to share their property

with each other to build the bonds of friendship and reciprocity that make

community possible.

Adopting a presumption of sharing will thus encourage courts to

reveal more fully the likely bases of their decision-making in these

difficult neighbor cases. In neighbor cases, judges would no longer feel

the need to manipulate the existing presumptions in the Civil Code to find

a way of stating an important normative value that they likely bring to bear

in most neighbor cases already. In short, adoption of a presumption of

sharing would promote another important systemic virtue—the virtue of

judicial transparency.

A final reason to adopt a presumption of sharing is that the

presumption would enable courts to visualize neighbor and close-knit

community cases not only from the point of view of the possessor, which

is the focus of Louisiana’s two existing presumptions, but also from the

point of view of the record owner. In other words, this new presumption

876−86. Peñalver also asserts that property owners sometimes have an obligation

to share their “surplus” property with others. Id. at 880.

404

. PROPERTY THEORY, supra note 399, at 83–84.

2017] PRECARIOUS POSSESSION 691

would help judges and lawyers become more fully conscious of what this

Article contends. They already do so subconsciously in these cases—

approaching these disputes in their full relational complexity. Unlike the

existing codal presumptions that are focused solely on the state of mind of

the claimant–possessor, the presumption of sharing directs courts and

lawyers to consider equally the state of mind of the other party, the

neighbor who contends that she was merely practicing the Aristotelian

virtues of friendship and sharing. By openly directing courts’ attention to

the true owner’s perspective, the new presumption would thus bring to the

surface the kind of analysis that courts appear inclined to engage in

regardless, as the Boudreaux case itself demonstrates so clearly.

2. Indicia of Giving or Renunciation

Any useful presumption in law should be capable of being rebutted.

This capability is certainly true for the presumption of sharing. Louisiana

must recognize, therefore, that at any point during the existence of a long-

term relationship between two neighbors or members of the same close-

knit community, the presumption of sharing could be overcome by clear

signs that the parties have reached a new equilibrium, a new explicit or

implicit understanding about the property at issue. To determine whether

the presumption of sharing has been overcome, courts should be directed

to employ several specific factual criteria. These criteria, which should be

called “indicia of giving or renunciation,” could be spelled out in a new

Civil Code article or articulated jurisprudentially. Either way, they would

serve to channel judicial discretion in difficult neighbor and close-

community cases in a useful manner.

405

The underlying assumption in this scenario is that property

relationships are not static. The reasonable expectations and assumptions

of parties in a long-term property relationship can and do evolve. At some

point, the presumption that a neighbor is sharing her property with another

neighbor to whom she has granted some kind of access evaporates,

especially when it becomes obvious that the passive neighbor has actually

405

. The Louisiana Civil Code already contains several articles that provide a

list of factual criteria to channel judicial discretion in cases that inherently require

the exercise of such discretion. See, e.g., LA. CIV. CODE art. 134 (2016) (listing

factors for courts to consider in determining the best interest of the child in child-

custody disputes); id. arts. 3515, 3537, 3542 (listing policies and case-specific

factors to be considered in various conflict of laws disputes). See generally John A.

Lovett, Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid

Discretion in a Mixed Jurisdiction, 72 LA. L. REV. 923 (2012) (discussing control

and channeling of judicial discretion throughout Louisiana private law).

692 LOUISIANA LAW REVIEW [Vol. 77

given away, renounced, or abandoned all or a portion of her property or

her right to exclude others from that property.

In some ways, this reasoning may sound like a restatement of the

“negligent owner” rationale for adverse possession and acquisitive

prescription noted earlier.

406

This Article’s intention, however, is not to

encourage courts to make simplistic or conclusory statements about a

record owner’s passivity. Instead, courts should focus on the way in which

the neighbor relationship between the possessor–claimant and the record

owner is transformed. After all, as Baudry-Lacantinerie and Tissier

remarked, acquisitive prescription is a legal institution that has startling

transformative power.

407

Courts should therefore be asking if and how

property relationships potentially affected by acquisitive prescription have

themselves been transformed.

With these factors in mind, this Article offers the following indicia of

giving or renunciation: (1) the physical extent and intrusiveness of the

claimant’s use or corporeal possession of the record owner’s property;

408

(2) any investments or improvements made by the claimant to the record

owner’s property in reliance on an implicit promise of continuing access

to or use of the record owner’s property;

409

(3) any changes made by the

claimant to other property the claimant owns or to the claimant’s other life

projects, economic or otherwise, made in reliance on continued access to

or use of the record owner’s property;

410

(4) the degree to which the record

owner’s own actions have signaled an intention to maintain agenda-setting

authority for the property or, conversely, whether those actions or non-

actions have signaled a de facto abandonment or renunciation of the

property;

411

(5) community perceptions regarding the rights of the parties

406

. See discussion supra notes 51−54, 131−34 and accompanying text.

407

. BAUDRY-LACANTINERIE & TISSIER, supra note 1, ¶ 275, at 145.

408

. See Delacroix Corp. v. Perez, 794 So. 2d 862 (La. Ct. App. 2000)

(containing a relatively modest physical intrusion); Verret v. Norwood, 311 So.

2d 86 (La. Ct. App. 1975) (finding a relatively modest physical intrusion), cert.

denied, 311 So. 2d 842 (finding the lower court’s decision correct); Humble v.

Dewey, 215 So. 2d 378 (La. Ct. App. 1968) (finding a relatively modest physical

intrusion).

409

. See, e.g., Boudreaux v. Cummings, 167 So. 3d 559, 567 (Knoll, J. dissenting)

(discussing Boudreaux’s work on gates and maintenance of right of way).

410

. See, e.g., Blanda v. Rivers, 210 So. 2d 161 (La. Ct. App. 1968);

Boudreaux, 167 So. 3d at 567 (La. 2015) (Knoll, J., dissenting).

411

. Compare Perez, 794 So. 2d 862, 869 (discussing continuing acts of

possession exhibited by record owner to justify finding of precariousness), with

Blanda, 210 So. 2d at 166−67 (noting record owner’s acquiescence to

claimant’s encroachments in common wall in support of finding of acquisitive

prescription).

2017] PRECARIOUS POSSESSION 693

with respect to the property involved;

412

(6) the length of time beyond the 30-

year prescriptive period the claimant has used or possessed the record owner’s

property;

413

and (7) the existence or absence of any acknowledgements by the

possessor–claimant of the record owner’s authority.

414

A potential objection is that these criteria are too subjective and vest too

much discretion in judges in neighbor and close-knit community cases

involving precarious possession. Yet the work that Louisiana courts must do

to resolve precarious possession defenses in these cases is already subjective,

as the three divergent opinions in Boudreaux

415

and the inconsistent results

in other neighbor disputes reveal.

416

Reasonable judges will always bring

their own moral and normative perspectives to bear on these kinds of

cases. If courts were to acknowledge the presumption of sharing explicitly

and then focus their analysis on whether that presumption has been

rebutted with regard to the indicia of giving or renunciation, the results of

neighbor or close-knit community cases would actually become more

consistent and predictable. At a minimum, courts would be more likely to

give full attention to the specific relational facts that these criteria

implicate when they address precarious possession in the neighbor and

close-knit community context.

417

412

. Compare Verret, 311 So. 2d at 94 (characterizing claimant’s possession

as precarious because of the community perception that land in the Atchafalaya

Basin was generally available for use by all), cert. denied, 313 So. 2d 842 (La.

1975) (finding the lower court’s decision correct), with Livingston v. Unopened

Succession of Dixon, 589 So. 2d 598, 603 (La. Ct. App. 1991) (discussing no

community verification of policy of sufferance and community recognition of

claimants’ fence as boundary).

413

. See, e.g., Boudreaux, 167 So. 3d at 567 (noting 60 years of uninterrupted use).

414

. Compare Merchant v. Acadia-Vermillion Irrigation Co., Inc., 476 So. 2d

1014, 1017 (La. Ct. App. 1985) (discussing no communication of policy of

sufferance), with Perez, 794 So. 2d at 868–70 (discussing claimant’s acknowledgment

of owner’s title), and Briggs v. Pellerin, 428 So. 2d 1087, 1089 (La. Ct. App. 1983);

Dutile v. Aymond, 338 So. 2d 350 (La. Ct. App. 1976), cert. denied, 340 So. 2d 998

(La. 1977); Succession of Kemp v. Robertson, 316 So. 2d 919 (La. Ct. App. 1975),

cert. denied, 316 So. 2d 906 (La. 1975).

415

. Boudreaux, 167 So. 2d 559. For more discussion of the majority, dissenting

and concurring opinions see infra notes 418−38 and accompanying text.

416

. See discussion in Part II.C, supra notes 299−392 and accompanying text.

417

. The rebuttable presumption of sharing and the indicia of giving and

renunciation may prove useful in some special relationship cases as well,

particularly those involving co-ownership and other family relationships.

694 LOUISIANA LAW REVIEW [Vol. 77

B. Reconsidering Boudreaux

With the preceding new analytical framework in place, this Article

now reconsiders the dilemma presented by the difficult factual dispute in

Boudreaux. First, this Section analyzes the three contrasting opinions that

emerged in Boudreaux. It then demonstrates how the new jurisprudential

tools offered—the presumption of sharing and the indicia of giving or

renunciation—could be used to resolve the same factual dispute.

1. The Boudreaux Opinions

The majority opinion authored by Justice Clark is not especially

instructive and, as others have noted, is rather problematic.

418

The majority

opinion holds that the plaintiff, John Boudreaux, was merely a precarious

possessor of the right of way that crossed the property of defendant Paul

Cummings by resurrecting the concept of tacit or implied permission from

article 3490 of the 1870 Civil Code.

419

In its crucial passage, the majority

opinion states that “Cummings’[s] awareness of Boudreaux’s use and his

allowance thereof marks Boudreaux’s use as an authorized use that cannot

be characterized as adverse under the circumstances.”

420

In effect, the

majority opinion suggests that if record owners assert their awareness and

permission of the claimant’s use of their land, even if record owners never

communicate their toleration or permission to the claimant, the claimant

then bears the burden of proving that he is not a precarious possessor.

421

Just as problematic is that the majority opinion never explains how to

determine when the owner has actually tolerated the user’s activities or,

conversely, has simply been negligent, uninterested, or failed to set or

maintain an agenda for the property.

The only gesture in this direction given by the majority opinion is to

underline a few words from Professor Yiannopoulos’s treatise: acts of

toleration must not be considered as acts of adverse possession otherwise

“landowners would be compelled to object to innocent and occasional

418

. See generally Cox, supra note 5.

419

. Boudreaux, 167 So. 3d at 562–66.

420

. Id. at 564.

421

. The majority opinion bases this surprisingly broad view of implied or tacit

permission on a few brief passages of commentary explaining the sources of article

3490 of the 1870 Code and reminding us that the 1982 revision did not change the

law of possession and acquisitive prescription. Id. at 562–63 (first quoting A.N.

YIANNOPOULOS, PREDIAL SERVITUDES § 139, in 4 LOUISIANA CIVIL LAW TREATISE

(3d ed. 1997), and then quoting Symeonides, supra note 96, at 81).

2017] PRECARIOUS POSSESSION 695

invasions.”

422

This Article respectfully suggests that the long-standing acts

of use that took place in Boudreaux—60 years of uninterrupted use of a

neighbor’s land to regularly access a public road and to transport heavy

farm equipment, significant efforts to maintain the right of way, and finally

significant efforts to erect, move, and maintain a gate—represent more

than “an innocent and occasional invasion.”

423

Although these actions

might indeed reflect an agreement between the parties, to characterize

them as merely an innocent and occasional invasion seems to miss the

mark.

Justice Knoll’s dissenting opinion is more helpful. First, it reminds

Louisiana jurists of what, up until Boudreaux at least, had been the

conventional understanding of how the general burden of proof regarding

acquisitive prescription and the two presumptions of possession found in

articles 3427 and 3438 worked together to order questions of proof.

424

Second, in addition to noting the relative paucity of facts supporting

Cummings’s assertion of precariousness, Justice Knoll explores with

considerable care several facts that reveal how important Boudreaux’s use

of the right of way across the Weill–Cummings property was to him and

the projects of his family over the years. For instance, in addition to noting

that Boudreaux mowed and generally maintained the portion of the Weill–

Cummings tract allegedly subject to the servitude, she observes that

422

. Id. at 563 (quoting A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 139, in

4 LOUISIANA CIVIL LAW TREATISE (3d ed. 1997)).

423

. Id. at 560–61 (describing acts of possession); id. at 567–68 (same) (Knoll,

J., dissenting).

424

. Id. at 565–67. To summarize succinctly, a person like Boudreaux who

claims to have acquired rights by acquisitive prescription caries a general burden

to prove all the elements of his claim, including the requisite years of possession.

Article 3427, however, helps the possessor meet this burden through the

presumption that a possessor is presumed to possess with the intent to own unless

“it is shown” by the person opposing the claim of possession, here Cummings,

that the claimant’s possession was “begun for another” or was begun “with the

permission of or behalf of the owner.” Id. at 565–66. Only when the opponent—

usually the record owner, but perhaps another person—affirmatively makes this

showing does the presumption of continuing precarious possession under article

3438 arise. This second-order presumption, in turn, requires presumptive

precarious possessors to show that their precarious possession has terminated

under either article 3439 or 3478. In positive terms, all of these requirements mean

“the presumption of ownership does arise, absent a showing that the possession

was begun for another.” Id. at 566. For a brief but authoritative endorsement of

Justice Knoll’s position see YIANNOPOULOS, supra note 5, § 6.36. See also

Presumptions, supra note 100, at 237 (stating same sequence of presumptions

even more succinctly).

696 LOUISIANA LAW REVIEW [Vol. 77

witnesses testified Boudreaux used the passage continuously for various

purposes, including hauling farm equipment, making visits to the doctor,

going to vote, and running errands.

425

Further, Knoll reports that Boudreaux employed another individual to

mow the right of way for him in exchange for permission to keep mowing

equipment on Boudreaux’s property and how Boudreaux told this same

individual that the strip of land has “been a right of way for a hundred

years, that they’ve been using [it] since, you know, since their family

owned the property.”

426

Knoll also observes the intensity of Boudreaux’s

public commitment to the continuing viability of the claimed servitude, as

evidenced by his participation in public meetings at which a road

construction project was being discussed that could have negatively

affected his use of the right of way.

427

In essence, Justice Knoll’s opinion reveals the extent to which

Boudreaux’s reliance on the right of way, though prosaic to some, was

actually central to his ability to flourish as a member of his local

community. Not only did he use the right of way to facilitate his

neighborly relationship with the Weills, but this use directly enhanced his

ability to participate in the economic and civic life of his community.

428

Boudreaux’s 60 years of continuous, uninterrupted use of the right of way

was not, at least in Justice Knoll’s eyes, a mere “innocent or occasional

invasion[]”

429

of his neighbor’s property. It was essential to his well-being

and to his civic membership in the community. In a sense, Justice Knoll’s

opinion illustrates the kind of analysis that would be called for if Louisiana

courts were to recognize a presumption of sharing and were required to

examine whether that presumption was overcome through the lens of

indicia of giving and renunciation.

Justice Weimer’s concurring opinion also deserves praise in many

respects. For one, his opinion focuses from the outset on the problematic

relational nature of the conflict—what he calls “this vexatious dispute

between neighbors.”

430

At first, he suggests that “[b]oth explicit

permission and tacit permission deriving from acts of ‘good

neighborhood’ by an owner can defeat the claim of someone who contends

425

. Boudreaux, 167 So. 3d at 567.

426

. Id.

427

. Id.

428

. Id. at 567 (referring to Boudreaux’s use of the right of way to vote and

his participation in public meeting about road construction that might affect his

access to right of way).

429

. Id. at 563 (quoting A.N. YIANNOPOULOS, PREDIAL SERVITUDES § 139, in

4 LOUISIANA CIVIL LAW TREATISE (3d ed. 1997)).

430

. Id. at 568.

2017] PRECARIOUS POSSESSION 697

he benefits from adverse possession so as to acquire a servitude of passage

upon the owner’s property.”

431

But he is also careful not to subscribe to

the majority’s broad view that a mere assertion of tacit permission by a

record owner immediately places the burden of proof on the claimant to

prove that his possession is not precarious. Indeed, his concurring opinion

may be understood, in this Article’s view, as an attempt to convince his

fellow justices and other Louisiana jurists that in this particular

neighborhood relationship it was the record owner, Cummings, who had

successfully rebutted the traditional presumption that the possessor,

Boudreaux, was possessing as owner. In other words, Justice Weimer’s

opinion is, in fact, already consonant with the kind of analysis that would

take place using a presumption of sharing and indicia of giving and

renunciation, except that he was required by the existing law to put the

burden of proof on Cummings, rather than Boudreaux.

To Justice Weimer, the facts of this case reveal a deeply collaborative

relationship of trust between Boudreaux and his initial neighbor, the Weill

family, that can most accurately be described as resulting in permissive

use of the right of way by Boudreaux. The most salient facts for Justice

Weimer relate to the placement of the gate in 1969.

432

He correctly points

out that at the time this episode transpired, the Louisiana Civil Code did

not allow a discontinuous apparent servitude to be acquired by

prescription.

433

Consequently, Boudreaux’s cooperation with the Weills in

relocating the gate cannot be explained by suggesting that Boudreaux was

merely complying with the requirement imposed by Article 748 of the

Civil Code on servitude holders to cooperate with servient estate owners

who seek to relocate a servitude to lessen its inconvenience.

434

Because

Boudreaux could not have even begun to acquire a servitude of passage by

acquisitive prescription in 1969, the duty imposed on servitude holders to

cooperate with servient estate owners in servitude relocation is simply

immaterial.

435

Just as important is Justice Weimer’s finding that “the collaborative

nature of the gate placement, its construction, and its later use to be direct

and relevant evidence that Mr. Boudreaux used the passageway with

‘permission’ as required by La. C.C. art. 3437, regardless of whether that

evidence was adduced on direct or cross examination.”

436

Indeed, it is this

“evidence of neighborly acts on the part of the successive property

431

. Id. (emphasis added).

432

. Id. at 568–69.

433

. Id. at 569 (discussing LA. CIV. CODE art. 740 (2008)).

434

. Id. at 568–69 (discussing LA. CIV. CODE art. 748 (2008)).

435

. Id. at 569.

436

. Id.

698 LOUISIANA LAW REVIEW [Vol. 77

owners” that convinced Justice Weimer that Cummings had rebutted “the

presumption that might otherwise arise from the fact of Mr. Boudreaux’s

possession.”

437

This Article interprets these statements to mean that Justice

Weimer still adheres to the traditional burden-shifting scheme established

by articles 3427 and 3438 of the Civil Code that Justice Knoll articulated

so clearly in her dissent.

438

The rest of Justice Weimer’s concurrence

observes other salient facts that support his conclusion that the relationship

between Boudreaux and the Weills was essentially one of neighborly

collaboration in which the Weills consciously allowed Boudreaux, his

family, his tenants, and his workers to use the right of way, and Boudreaux

demonstrated his appreciation in a number reciprocal gestures.

439

Justice Weimer’s opinion is also noteworthy because it is the only

opinion in the case that links its conclusion to any policy rationales for

bad-faith acquisitive prescription. Quoting Planiol,

440

Weimer suggests

that bad-faith acquisitive prescription is primarily justified when a record

owner has been “guilty of negligence.”

441

This suggestion is revealing

because Weimer does not see the Weills or Cummings as having been

guilty of negligence. To the contrary, they were merely acting as good

neighbors in letting Boudreaux use the right of way and engaging in a

long-term collaborative relationship to maintain that right of way.

Although Weimer might have explored some of other important rationales

offered by civil law commentators and U.S. property law scholars

justifying adverse possession and acquisitive prescription,

442

his opinion

remains far more satisfying than the majority opinion. Furthermore, his

opinion certainly earns sympathy for its endorsement of the importance of

moral values in property law.

443

Reasonable jurists can disagree about the correct outcome of a difficult

neighbor case involving an assertion of acquisitive prescription based on

more than 60 years of uninterrupted use of a rural right of way on one hand

437

. Id.

438

. Id. at 565−67, discussed supra note 424 and accompanying text.

439

. Id. at 569–571 (noting that Boudreaux admitted that he used the

passageway to bring farm equipment to the Weill property to assist the Weills

with their rice harvest, that some agricultural workers—the Duhon boys—used

the passageway to harvest rice on both properties, and that the Weills used the

passageway and gate to visit Boudreaux and his wife for coffee on occasion).

440

. Id. at 570–71 (quoting PLANIOL, supra note 47, § 3645, at 571–72).

441

. Id. at 571.

442

. See discussion supra notes 49−56, 115−37 and accompanying text.

443

. Boudreaux, 167 So. 3d at 571 (“Our venerable Civil Code generally

encourages moral conduct and deters immoral conduct.”). The Court lists several

examples of Civil Code rules that punish conduct many would consider immoral. Id.

2017] PRECARIOUS POSSESSION 699

and a plausible precarious-possession defense on the other. However, both

Justice Knoll’s dissent and Justice Weimer’s concurrence each in their

own way begin to demonstrate how precarious possession must be

approached in a deeply contextualized manner that is sensitive to the actual

relationships between the parties.

2. Resolving Boudreaux with New Jurisprudential Tools

If another court were to examine the facts presented in Boudreaux in

light of the rebuttable presumption of sharing and the indicia of giving or

renunciation introduced above, an even more satisfactory solution might

be possible. The court would first recognize that initially the relationship

between Boudreaux and the record owners would be governed by the

presumption of sharing. Yet facts relating to the parties’ on-going

relationship might also reveal that over time the presumption had been

rebutted. For instance, Boudreaux’s extensive use of the right of way to

move heavy equipment across the Weill–Boudreaux farm could weigh in

favor of rebuttal under criteria (1). The work that Boudreaux performed to

maintain and relocate the right of way and the work that Boudreaux

performed on the gate could weigh in favor of rebuttal under either criteria

(2) or (3). The fact that Boudreaux used the right of way not just to move

farm equipment but to access a public road and to reach the nearest town

where his community life was based could weigh in favor of rebuttal under

criteria (3) as well. The absence of any clear signals by the Weills or

Cummings that they were maintaining their agenda-setting authority, other

than the Weills’ request to relocate the gate, could also point to rebuttal

under criteria (4). Any facts pertaining to community perceptions about

Boudreaux’s rights to use the path across the Weill–Cummings property

could have been interpreted under criteria (5). Finally, the 60-year history

of uninterrupted use of the right of way could itself weigh in favor of

rebuttal under criteria (6). In the end, a decision using this kind of analysis

might well have persuaded the Louisiana Supreme Court to affirm a

finding that Boudreaux had obtained a servitude of passage by acquisitive

prescription even though the Weills initially benefitted from a

presumption of sharing.

444

. To take another example, these tools might also help explain a result like

that reached in Delacroix Corp. v. Perez, 794 So. 2d 862 (La. Ct. App. 2000).

There, the limited use of the Delacroix land by Perez for cattle grazing and

crayfishing would have been relatively insignificant facts under criteria (1). The

fact that Perez only partially constructed a crawfish pond on the Delacroix land

would have been equally inconsequential under criteria (2). The complete absence

of any changes to his own property or to his own life projects and the absence of

700 LOUISIANA LAW REVIEW [Vol. 77

CONCLUSION

Controversial decisions like Boudreaux v. Cummings can cause dismay

and confusion in a legal community, but they can also start useful

conversations. This Article has attempted to begin one of those conversations.

Rather than merely complain about the confusing statements that emerged

from the majority opinion in Boudreaux, this Article has attempted to

reconstruct the law of precarious possession from the ground up.

This Article has shown how Louisiana’s two-tier system of good- and

bad-faith acquisitive prescription emerged from Roman law and pre-

codification French and Spanish law. It has shown how French

commentators interpreted their codified version of that law and, in

particular, how they approached the problem of precarious possession with

caution, careful to respect the traditional presumption that a possessor

intends to possess as owner but aware that in disputes between neighbors

who share a long-term relationship of cooperation there may be instances

in which use or access results from simple tolerance. It has also shown

why Louisiana’s two-tier system of acquisitive prescription is a valuable

institution that should not be torn apart by overly broad application of the

concept of precarious possession to claims of 30-year acquisitive

prescription in particular.

In addition, this Article has reviewed a significant body of Louisiana

case law to demonstrate that when courts confront stranger and contractual

and legal status relationship cases, Louisiana case law generally reaches

defensible and consistent outcomes that make sense of Louisiana’s

traditional presumptions and burdens of proof regarding possession. Yet,

when they approach the most difficult category of possession and

acquisitive prescription cases—those involving true neighbors or

members of the same close-knit community—courts face acute challenges

and often produce inconsistent results. To resolve this kind of case with

greater sensitivity to the virtue of property sharing and to the specific

relational context of these disputes, Louisiana property law would benefit

from the adoption of a presumption of sharing and concomitant indicia of

giving and renunciation.

testimony about community perceptions about a change in title would have also

not have availed his rebuttal assertion under criteria (3) and (5). Finally,

Delacroix’s continued agenda-setting actions with respect to the land in dispute,

along with Perez’s admissions in his lease letter, would have weighed against

rebuttal under criteria (4) and (7).