
    Albert BAYLES, Plaintiff-Appellant, v. B. I. McGUFFIE, Defendant-Appellee.
    No. 9418.
    Court of Appeal of Louisiana. Second Circuit.
    March 10, 1961.
    On Rehearing June 16, 1961.
    Rehearing Denied July 7, 1961.
    Dhu & Lea S. Thompson, Monroe, for appellant.
    McPIenry, Snellings, Breard & Sartor, Monroe, for appellee.
    
      Before GLADNEY, AYRES and BOLIN, JJ.
   AYRES, Judge.

This is a possessory action wherein plaintiff seeks and prays that he be maintained and quieted in his possession of a certain-described plot or parcel of land situated in the City of West Monroe. In answer to plaintiff’s demands, defendant admits the disturbance as alleged by plaintiff but denies plaintiff’s possession of the property.

On the initial trial in the district court, there was judgment in plaintiff’s favor from which defendant appealed. This court concluded, on that appeal, the factual issue presented for determination had not been preponderantly established. Hence, a motion urged by defendant-appellant to remand was sustained and, accordingly, the cause was remanded with instructions that the case be reopened for the reception of additional evidence from either plaintiff or defendant relating to plaintiff’s possession. 116 So.2d 211. On the remand, the case was again tried and additional evidence introduced. Judgment was then rendered in defendant’s favor rejecting plaintiff’s demands. From that judgment, plaintiff prosecutes this appeal.

The issue relates to the character of plaintiff’s possession of the property concerned and whether such possession is sufficient to support or maintain a possessory action.

The applicable rule of law is that where a person who has once acquired possession of a thing by corporeal detention of it, abandons such corporeal possession but continues to possess it civilly, his intention of possessing will preserve the corporeal possession in him unless a third person has usurped or taken such possession from him during the time required by law, or he has failed to exercise the actual possession for ten 3rears; and if, in the meantime, he is disturbed in his possession, he may, before the expiration of one year, institute a possessory action to recover or to be restored to and maintained in possession of the property by virtue of his civil possession founded on his corporeal and actual possession. Hence, civil possession of property preceded by actual possession is sufficient to maintain the possessory action. Code of Practice Art. 49; Hill v. Richey, 221 La. 402, 59 So.2d 434. See the authorities cited in the Hill case, particularly Ellis v. Prevost, 19 La. 251, and Saunders’ Lectures on the Civil Code, both of which are extensively quoted.

Plaintiff’s acquisition of the property herein involved was by deed from Ouachita Realty and Development Company, Inc., dated February 7, 1946, wherein the property was described as

A lot in Trenton fronting on the south side of Claiborne Street, bounded west by Cypress Brake, east by Crane, and south by Register.

Plaintiff alleged that, following his purchase of the aforesaid property, he took actual and corporeal possession by enclosing it with a fence, or fences, and that thereafter he continued in peaceful and undisturbed possession thereof until his possession was disturbed by the defendant on or about July 15, 1958, when the defendant entered upon said property with a bulldozer and cleared and removed not only his fences and the vegetation growing upon said lot but the top soil as well. His actual and corporeal possession of the property was allegedly continued by his civil possession.

The issue presented for resolution has, by the pleadings, been reduced to the question as to whether or not plaintiff, after acquiring the property, ever constructed a fence, or fences, enclosing the same.

The evidence is convincing that, after plaintiff’s purchase, he enclosed the property with a three-strand barbed-wire fence supported by and stapled to oak posts, except as to the east and west ends of the property where his fences were tied in with, and connected to, existing fences in completing the enclosure.

Plaintiff’s testimony is that he employed and utilized the services of Wilbur Williams and Henry Naron in the construction of these fences. He testified as to his purchase and delivery to the job site of the necessary materials, wire, and staples. He daily supervised the work. Bayles’ testimony is that he constructed these fences, one on the north side continuing along the side of an imaginary projection of Claiborne Street to the drainage canal, and the other on the southern boundary line westward, likewise to the canal. These fences, according to his testimony, were tied into, or connected with, existing fences on both east and west ends of his property, which extended a short distance from and parallel with the drainage canal. Bayles’ testimony is corroborated by that of Williams who, as stated, with the assistance of Naron, actually built the fences under plaintiff’s supervision. Naron, in the meantime, is shown to have died.

That the fences were in fact built finds support, likewise, in the testimony of C. G. Wall, Sr. Wall was an officer of plaintiff’s vendor. Wall testified that he showed Bayles the lines or boundaries of the property to enable plaintiff to place the same under fence. His testimony confirms the fact that the fences were actually constructed at the locations or boundaries pointed out by him to plaintiff.

Dixie White, who lived near the property herein concerned, testified he was familiar with this property and that plaintiff, after his purchase, enclosed the whole of his lot under- fence. To the same effect is the testimony of William C. Kelly, Jr., and his father. The latter, for 29 years, or from 1920 to 1949, maintained a residence separated from the subject property by only one intervening lot and, since that time, has resided only two blocks away. Their testimony substantiates the fact that plaintiff fenced the whole of his property and that they pastured livestock and cattle within the enclosures for approximately two years.

Also appearing as a witness during the first trial was W. R. Townsend, superintendent of streets of the City of West Monroe. Townsend stated that, on projecting North Fifth Street across this property, barbed-wire fences were encountered on both north and south sides; that permission was obtained from plaintiff Bayles to cut these fences in order that the street might be constructed. This was shown to have occurred about 1955 or 1956.

Opposed to the aforesaid testimony is that of J. B. Watson, Vaughan T. Watson, Joe Staton, and the defendant, McGuffie, and his machine operator. Vaughan T. Watson claims title to a portion of the property allegedly possessed by plaintiff. The lot claimed by Watson is located at the east end of the tract involved and east of North Fifth Street. Both Watsons, as well as Staton, testified there were no newly-constructed fences in that area after 1945 and that, consequently, plaintiff’s property was not enclosed by fences. The defendant’s testimony and that of his employee is to the effect they neither saw nor noticed any fences while carrying on their operations. The property, however, was shown, beyond any controversy or doubt, to have grown into a wilderness by brush and briars. The growth was so rank as to prevent penetration even by sight for any appreciable distance. The fences were completely covered with vines and other growth, as evidenced by photographs taken of the areas undisturbed by defendant’s operations. The evidence, nevertheless, showed that vestiges of the fence, consisting of wire and posts, were deposited off the edges of the area cleared.

From a consideration of the evidence adduced on the original trial, the trial court concluded plaintiff had established, by a preponderance of the evidence, that he had, after his purchase of the property, enclosed it by fence. This conclusion was predicated on the testimony that the fences were constructed westward to the canal, which presupposed that the canal had been previously constructed. On a showing made in this court in the motion to remand, that the canal had not been constructed until 1948, whereas it would appear, from the record that the fences were constructed in 1946 and that, therefore, the fences could not have been constructed in relation to the canal, the motion was granted and the case remanded. On trial following this remand, the engineer for the Department of Public Works, who made the survey for and supervised, in an engineering capacity, the construction of the canal, and the contractor for said construction, as well as several others who performed services in connection therewith, were called as witnesses. The testimony of these witnesses, supported by the records of the Department of Public Works, established that the canal was constructed in 1948 and completed in December of that year. In apparent contradiction to the testimony offered by plaintiff to the effect that the fences were constructed in relation to the canal, these witnesses testified no fences, as claimed to have been erected by plaintiff, existed in 1948.

Plaintiff, nevertheless, on the second trial, recalled, among others, the city’s superintendent of streets. He also produced, as witnesses, the city’s street construction foreman and six other municipal employees. All of these witnesses confirmed plaintiff’s contention of the building and the existence of the fences on both north and south boundaries of his property, at the time the work was undertaken to project North Fifth Street across this property. The enclosure of the property by fences and the reduction of the property to plaintiff’s actual corporeal possession, and not necessarily the exact time the enclosure was made, are the essential and material factors. Hence, a mere miscalculation as to the time the fences were built should not be accorded such importance as to discredit the witnesses’ testimony as to material facts of the case. It is a matter of common observation that memory of unessential details is dulled by the lapse of time.

The testimony of Manning McGuire, adduced on the second trial, explains, in our opinion, the apparent inconsistencies in the testimony of plaintiff and his witnesses, on the one hand, and the testimony of the engineer of the Department of Public Works and the contractor for the construction of the canal and his employees on the other hand. McGuire claims title to a lot designated as No. 29, located at the east end of plaintiff’s property, the greater portion of which was included under plaintiff’s fence. McGuire testified that, within a week or ten days after he acquired knowledge of plaintiff’s enclosure of his property, he contacted his lawyer who, under date of June 20, 1949, addressed a letter to plaintiff reading as follows:

“We have been informed by Manning C. McGuire that you have placed a fence upon property owned by Mr. McGuire in the City of West Monroe fronting on the .South side of Claiborne Street.
“The records in the Clerk’s office reflect Mr. McGuire as the record owner of this property since 1919 and this letter will constitute formal notice of your trespass.
“We ask that you either remove your fence or furnish satisfactory evidence of your title to this property.”

A second letter concerning the matter was written plaintiff by McGuire’s counsel July 25, 1949, which reads as follows:

“On June 20, 1949, we wrote you as per copy of our letter of June 20 which is enclosed herewith. We have not heard anything from you with reference to this matter and we are hereby again giving you notice of same by Registered Mail, Return Receipt Requested.”

It has been said that “Half a word fixed upon or near the spot, is worth a cartload of recollection.” (T. Gray.) The foregoing, we think, constitute that “Half a word fixed upon or near the spot, * * * ” and establish, in connection with the other testimony in the record, that the canal was constructed in the fall of 1948 and that plaintiff’s fences were constructed in the spring or summer of 1949, or, at least, after the canal was constructed, as related almost uniformly by plaintiff’s witnesses. Hence, the testimony of plaintiff and his witnesses that the fences were constructed to the canal is consistent with the facts and that, likewise, the testimony of the witnesses for the defendant, consisting of the engineer for the Department of Public Works and the contractor for the construction of the canal, as well as those otherwise employed upon said project, to the effect that no fences existed, as claimed by plaintiff at the time the canal was being constructed, is consistent with the true facts. Thus, these apparently divergent views can be and are reconcilable. Each viewpoint may be acceptable as true without .in any manner discrediting the other.

Moreover, it may be pointed out that McGuire testified there was a fence at the east end of plaintiff’s property as well as the west end near the bayou or canal and that he assisted Gallaspy and McCormick in the construction of the latter fence.

The record also shows that plaintiff has paid all taxes assessed upon this property since its acquisition and that his intention to possess the property has continued.

The evidence to which we have referred preponderates, in our opinion, in plaintiff’s favor and establishes that, after purchasing the aforesaid property, plaintiff took actual possession by enclosing it with fences, and that his possession continued thereafter until disturbed by defendant’s trespass.

For the reasons assigned, the judgment appealed is accordingly annulled, avoided, reversed and set aside, and

It is now ordered, adjudged and decreed there be judgment herein in favor of the plaintiff, Albert Bayles, against the defendant, B. I. McGuffie, restoring unto Albert Bayles and maintaining and quieting him in possession of the following — described property, to wit:

A lot in Trenton fronting on the south side of Claiborne Street, bounded west by Cypress Brake, east by Crane and south by Register, and, as more particularly described, as situated in Section 44, Township 18 north, Range 3 east, West Monroe, Ouachita Parish, Louisiana, and as shown in plat and survey of J. M. Norris, registered land surveyor, dated September, 1958, reference thereto being made for greater certainty of description, provided that said possession is subject to the rights of the City of West Monroe in and to the right of way for North Fifth Street, as projected across this property.

It is further ordered, adjudged and decreed that plaintiff’s rights to hereafter claim and recover damages be reserved. The defendant-appellee is assessed with all costs, including the cost-of this appeal.

Reversed and rendered.

Before HARDY, GLADNEY and BOL-IN, JJ.

On Rehearing.

GLADNEY, Judge.

A rehearing was granted in this cause so that we might give further consideration to the evidence supporting plaintiff’s right to be maintained and quieted in possession of the property in question. The effect of our former judgment was to reverse a decision of the trial court which had rejected plaintiff’s demands for failure to establish his case by a preponderance of the evidence.

Counsel for the appellee, the applicant for rehearing, earnestly insist we committed error in the following respects: (1) in that we assumed plaintiff’s possession and considered only the character thereof, whereas the defendant denied any and all possession by plaintiff of the tract in controversy; (2) in holding plaintiff’s acquisition by deed included the property involved and claimed by the defendant; (3) in disregarding the established legal principles that in a possessory action possession of a portion of the land extends to the boundary set out in the title deed, but where a plaintiff contends his possession of a part of the land is a possession of the whole, he must show definite boundaries; (4) in holding that plaintiff enclosed by fence the tract in controversy and tied his fence into an existing fence on the west side of the property; and (5) in our consideration of certain testimony, particularly that of witness McGuire.

The claim of Bayles to ownership is described in his deed dated February 7, 1946, from the Ouachita Realty & Development Company, Inc., as:

“A lot in Trenton, fronting on the south side of Claiborne Street, bounded west by Cypress Brake, east by Crane, and south by Register.”

Certain plats or maps attached to the record disclose that Claiborne Street, which runs east and west, is a deadend street and does not extend west of North Fifth Street. The property claimed by Bayles includes a large portion of Lot 29 of the Garlington addition to Trenton. Lot 27 of the same addition was owned by Crane, and its west boundary constituted the east line of Lot 29. Bayles’ west line or boundary is fixed by the Cypress Brake and runs generally north and south. Although we have been unable to discern the precise location of said line, it crosses the south line of the tract claimed by Bayles at a point approximately one hundred feet west of North Fifth Street, and then runs northerly to some extent parallel to said street. The property allegedly disturbed by McGuffie lies wholly west of North Fifth Street. It is pertinent to observe, therefore, that plaintiff cannot claim title to or possession of any property beyond his west line.

The foregoing remarks are not made for the purpose of involving a question of boundaries, but rather for demonstrating that our former decree recognizes and quiets plaintiff in the possession of property beyond the description contained in his deed of title. As aforementioned, we confess we are unable to determine from the existing data the exact location of the western boundary of the property claimed by Bayles, but this is not of paramount significance in the determination of the case.

We find the crucial issue to be whether or not plaintiff, after acquiring the property, completely enclosed a portion of it by a fence or fences in such a manner as to reduce the enclosed area to his physical possession. This is the same issue considered by the trial court which resolved it in favor of the defendant, and by this court on appeal, whereupon we held to the contrary. The issue is essentially factual and in arriving at our decision we must observe that the onus is placed upon the plaintiff to establish by a preponderance of the evidence the existence of fence lines constituting the enclosure by which he reduced the subject property to possession. Millard v. Richard, 1858, 13 La.Ann. 572; Buckley v. Dumond, La.App. 1st Cir. 1934, 156 So. 784; Acosta v. Nunez, La.App. Orleans, 1942, 5 So.2d 574; Bossier Enterprises, Inc. v. Carbone, La.App.2d Cir., 1953, 66 So.2d 521; and Wright v. Holder, La.App.2d Cir. 1954, 72 So.2d 529.

Our opinion under review was influenced largely by the testimony of Bayles and Williams that some time during 1948 plaintiff constructed a fence in an east and west direction along the north side of his property to the drainage canal situated approximately three hundred fifty feet west of the west line of Lot 29, and that he also erected a similar parallel fence along the south line. Bayles testified that these two fences were tied into an existing fence running along the east bank of the drainage canal. Both witnesses testified the fences were constructed with new oak posts set ten feet apart with three strands of barbed wire. Such new fences would, therefore, have required more than seventy oak posts and two thousand feet or more of barbed wire. Bayles, Williams and other witnesses originally testified that said fences were built during the year 1946. This was subsequently corrected when it was established the canal was not dug until some two years later, at which time no fences were found by the constructors of said canal. Although we may concede an error of date is not improbable after the lapse of so many years, certain declarations made by plaintiff’s witnesses upon the first trial nonetheless bring into question their credibility.

In addition to an affirmative showing upon the second trial that the canal was not constructed until 1948, plaintiff’s witnesses aforesaid are also contradicted by credible testimony as to the existence of a fence along the east bank of the drainage canal. A. P. Andrews, an engineer with the State Department of Public Works whom we believe to be entirely disinterested, testified that in March of 1947, he personally surveyed the area of the canal including the tract of land in controversy and there was no existing fence along the east bank of the drainage canal. The existence of such a fence along the east bank of the canal is further negated by the testimony of L. M. Ray, Z. E. Black, Joe Staton, Vaughan T. Watson and Manning McGuire.

Z. E. Black further testified that he had operated the bulldozer which cleared the tract in July of 1958, and had found no evidence of fences other than a very old north and south fence some twenty-five to thirty feet west of North Fifth Street. Black’s absolute denial that he could have unknowingly bulldozed over some seventy oak posts and 2,000 feet of barbed wire was corroborated by the testimony of Ray, Wink, Antony and Brown, all experienced bulldozer operators.

The north and south fence referred to by Black was, in all probability, the same fence found by Andrews while examining the property preparatory to effecting his survey. Andrews located a north and south fence crossing the property approximately one hundred fifty feet east of the drainage canal. The fence was identified by McGuire as the Gallaspy and McCormick fence, which McGuire stated he helped erect in 1946, and later pastured cattle to the west thereof. Another fence was encountered by Andrews running generally in an east and west direction, but intersecting the Gallaspy and McCormick fence near the south line of the property herein involved, from which intersection it. extended approximately two hundred feet westerly and thereafter proceeded south. It enclosed a very small segment of the property herein involved.

Pursuant to plaintiff’s request, J. M. Norris, a surveyor, prepared a plat in September of 1958 that was in accord with specific directions from Bayles and which purports to show the property claimed by Bayles. Norris found evidence indicating that a north and south fence had previously existed a short distance west of the east line of Lot 29. He also found evidence of an east and west fence running from the intersection of Bayles’ southern boundary with the west edge of North Fifth Street and extending westerly along said southern boundary to the toe of a cypress brake. Norris further testified that the high bank of said cypress brake was within ten to fifteen feet of North Fifth Street.

We think our original opinion misinterpreted the effect of certain letters which were written to Bayles in the spring of 1949 by the attorney for Manning McGuire, upon the latter’s discovering that a fence had been erected by Bayles on Lot 29 of the Williamson-Garlington Addition, known as the Sylvia Brown Lot, the ownership of which McGuire claimed. McGuire testified :

“Q. .Can you tell me when Mr. Bay-les put that fence there or do you know? A. No,' sir, I don’t know. I know when I found it.
“Q. Did he move his fence? A. It went down. I don’t know who moved it.
“Q. When? A. Within a year or so. They rebuilt one there last year.
Jjc sit * * * *
“Q. And you were not complaining about any fence west of the gravel street at that time? A. No, sir.”

It is our conclusion that the evidence preponderates against the existence of a fence along the east bank of the drainage canal, despite plaintiff’s averments to the contrary. Nor do we believe that Z. E. Black, the bulldozer operator, could have unknowingly destroyed the remnants of east and west fences constructed in the manner described by Bayles. Such fences as did exist on the tract claimed by Bayles are explained to our satisfaction. The Gallaspy and McCormick fence to the west of North Fifth Street and the fence to which McGuire objected on the east of North Fifth Street have doubtless caused some confusion to the witnesses testifying herein. However, we are convinced that testimony relative to those fences is wholly inadequate for the purpose of establishing the existence of an enclosure of the property as contended for by Bayles.

As pointed out by our brother of the trial court, it is impossible to reconcile the testimony of the witnesses. Our reconsideration has caused us to painstakingly review and weigh, so far as possible, the testimony of each and every witness who testified in the case. We have arrived at the conclusion the trial judge was in a much better position than any member of this court to evaluate the testimony of the several witnesses, and that our former judgment was in error. We are convinced that plaintiff has not sustained the burden of proof with which he is burdened, and that he has failed to disclose manifest error in the judgment of which he complains.

Accordingly, our original decree herein is recalled and vacated and the judgment of the Fourth District Court of Ouachita Parish, rendered September 26, 1960, is affirmed and made the judgment of this court, plaintiff-appellant to be taxed with costs of this appeal.  