
    Albert B. DELAUNE, Sr. v. Dotsy Price WILLIAMS.
    No. 10134.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 1975.
    Rehearing Denied March 10, 1975.
    Writ Refused June 6, 1975.
    
      Leroy Grant Johnson, Houma, for appellant.
    Keith M. Whipple, Houma, for plaintiff-appellee.
    H. Gordon Hartman, New Orleans, for defendant-appellee.
    Before SARTAIN, ELLIS and de la HOUSSAYE, JJ.
   de la HOUSSAYE, Judge.

This is an appeal from a judgment decreeing a partition by licitation concerning a tract of land owned in indivisión by plaintiff and defendant, along with numerous other owners.

The tract involved is approximately thirty (30) acres in size and ownership is divided among twenty-five (25) or more persons. Some of these interests are as small as Vi os or .95 percent. Defendant-appellant’s interest in the property derives from an acquisition made by her mother by cash sale dated February 6, 1901. By Act of Cash Sale, defendant’s mother, along with four other individuals, acquired in equal proportions a one-fifth (i/$) interest in the property in question. The other four (4) parties to the sale in 1901 were the brothers and sisters of defendant’s mother. All of the original five (5) parties to this sale are deceased. Defendant-appellant’s mother’s portion has not been sold to anyone nor has any portion of it been divided, but various interests have been alienated by descendents of the other four (4) parties to the sale in 1901.

It is Dotsy Price Williams’ contention that she has physically possessed approximately six (6) acres of this tract for over thirty (30) years, and that any action for partition brought by her co-heirs has prescribed. Counsel for Dotsy Price Williams cites the case of Sibley v. Pierson, 125 La. 478, 51 So. 502 (1910), and Articles 1305 and 1306 of the La.Revised Civil Code. The Trial Court did not rule on the merits as to whether Dotsy Price Williams had actually possessed her six (6) acre tract of land, but stated that the Sibley case was inapposite since it involved co-heirs, whereas the instant case involved a partition suit brought by a co-owner in division.

Notwithstanding the fact that defendant relied entirely upon Sibley v. Pierson, above, and C.G. Arts. 1305 and 1306, the trial judge should have considered a claim of thirty year prescription on the merits.

C.C. Art. 1289 confers the right to demand a partition absent any agreement to the contrary. It has nothing to do with prescription.

Our appreciation of the law is that thirty year prescription based on C.C. Art. 3499 et seq. can be invoked even as between co-owners. It is then a question of proof, i. e., whether the necessary requirements of open and adverse possession, even in bad faith, are satisfied.

In Tyler v. Lewis, 143 La. 229, 78 So. 477, 481 (1918), our Supreme Court specifically stated that C.C. Art. 3499 “applies to co-owners.” For a detailed discussion on this point see the dissent of Justice O’Neill, in Liles v. Pitts, 145 La. 650, 82 So. 735, 742 (1919); Le Blanc v. Robertson, 41 La.Ann. 1023, 6 So. 720 and, Ogden v. Leland University, 49 La.Ann. 190, 21 So. 685 (1896).

We now turn to defendant’s claim of thirty year prescription. Since she is a co-owner of property which has never been partitioned in kind, her claim to the “6 acres” of a thirty acre tract is also governed by C.C. Art. 3503 which restricts the property sought “within just limits”.

We find the defendant’s proof of possession inadequate. Admittedly, she lived in the house previously occupied by her mother for a period in excess of thirty years. But other than general statements of farming “about six acres” or considering “six acres” as her own, the testimony is very vague as to its limits.

The survey entered in the record marks only lands pointed out to the surveyor by the defendant. There are no fences, enclosures, or other vestiges of work. The fields allegedly farmed by defendant are bounded by uncleared woodlands and “brushes”. Defendant never indicated to her co-owners or to anyone else that she considered the land “occupied” by her as her exclusive domain.

It is also evident from the record that defendant’s co-owners, years ago, lived on and farmed portions of the thirty acres at random. The occasion never arose, until this litigation, that any part of the property was claimed by one co-owner to the exclusion of another co-owner.

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.

ELLIS, J., concurs with written reasons.

ELLIS, Judge

(concurring).

I concur in the result reached herein. In my opinion, the Courts of this state have in the past so interpreted Articles 1304, 1305 and 1306 of the Civil Code as to engraft onto them the requirements for acquisitive prescription and certain common law rules relating to prescription between co-owners which are not present in our code. Crayton v. Waters, 146 La. 238, 83 So. 540 (1919); Liles v. Pitts, 145 La. 650, 82 So. 735 (1919); Southeastern Public Service Company v. Barras, 246 So.2d 298 (La.App. 3 Cir. 1971).

I believe these interpretations to be fundamentally erroneous. In my opinion, Article 1305 provides that if either a co-owner or co-heir is permitted to possess a portion of the common property for a period of 30 years, regardless of the state of mind of the parties, a legal presumption arises that it was the intention of the parties that the portion of the common property so possessed is taken by the party possessing as his share of the common estate. It is because of this presumption that the action of partition will no longer lie, since the partition is deemed to have taken place. Under Article 1306, the said party no longer has an interest in the remainder of the common property. See Articles 2284, 2285 and 2287, Civil Code.

Articles 1304 — 1306 are closely related to the boundary articles. See Articles 824, 825, 852, Civil Code. Article 852 has been interpreted in a manner consistent with the above interpretation of Article 1305. See Opdenwyer v. Brown, 155 La. 617, 99 So. 482 (1924); Ratcliff v. Gordon, 268 So.2d 98 (La.App. 1 Cir. 1972).

Finally, the source given in the project of the 1825 Code for Articles 1304 and 1305 reveals that, in Spanish law, it was intended that just such a presumption be created by the passage of time and acquiescence in an informal division of a common estate, whether by one or all of the co-owners or co-heirs. Febrero adicionado, part 2, book 1, Ch. 2, § 1, Nos. 13, 14, and 15, Vol. 4p. 117 et seq. (5th ed. 1807).

Dotsy Williams Price’s testimony is un-rebutted in the record. She testified that her mother, Pachena Williams, moved onto the parcel of land claimed by her in 1919, and resided thereon until her death in 1961. Throughout that period she cultivated to the limits of the parcel surveyed. Mrs. Price also testified that she continued to cultivate the same parcel. The surveyor testified that he surveyed to the corners pointed out to him by Mrs. Price, and that all of the land encompassed by his survey was cultivated land. He further stated that the tract was bounded by unimproved property with trees and bushes on it. No co-heir or co-owner ever interfered with the possession enjoyed by either Mrs. Price or her mother. On the other hand, there is no evidence to indicate that either Mrs. Price or her mother ever overtly expressed an intention to possess adversely to their co-heirs or co-owners. Other heirs possessed or used other parts of the common property from time to time.

In my opinion, a proper interpretation of Articles 1304, 1305 and 1306 would, under the above fact situation, create a presumption of law which would preclude the inclusion of the Price parcel of the property in a partition of the common property, and would also prevent the participation of the heirs of Pachena Williams in a partition of the remainder. Of course, the defense available under Article 1305 would have to be urged by the heirs.

However, .because of the condition of our jurisprudence, I believe the result herein to be correct. Neither Mrs. Price nor her mother have ever placed their co-owners on notice that their possession was adverse, and this is a requirement of the Crayton and Liles cases, supra. I therefore concur in the result.  