Evans v. Dunn
458 So.2d 650, 1984 La. App. LEXIS 9857 (1984)
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Rule of Law:
A person loses the right to possess immovable property, and thus the ability to bring a possessory action, by acquiescing for more than one year to a disturbance, such as the erection of a fence, that is sufficient to interrupt their possession and provide notice that their dominion is being seriously challenged.
Facts:
- In 1951, G.B. Evans purchased a one-acre tract of land and began possessing an adjacent 36-foot strip of land, believing an old wire fence marked his property line.
- Evans mowed the disputed strip and maintained a flower garden on it for many years.
- Around 1977, the old wire fence was torn down.
- In 1978, J.E. Dunn acquired the property contiguous to Evans's land.
- In May 1981, Dunn had his property surveyed and constructed a chain-link fence along his southern boundary, enclosing the 36-foot strip previously possessed by Evans.
- After the fence was built, Evans and his wife ceased entering the disputed strip, only occasionally watering plants from their side of the fence.
- Dunn began mowing the grass on his side of the new fence.
- In July 1982, Dunn replaced the chain-link fence with a barbed wire fence in the same location and destroyed Evans's remaining plants on the strip.
Procedural Posture:
- G.B. Evans filed a possessory action against J.E. Dunn in a Louisiana trial court.
- Dunn filed a reconventional demand for damages.
- After a trial on the merits, the trial court rendered judgment in favor of Dunn, dismissing Evans's possessory action.
- Evans, as appellant, appealed the trial court's judgment to the Louisiana Court of Appeal, Third Circuit.
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Issue:
Does a landowner meet the legal requirement of possessing property for more than a year prior to a disturbance when an adverse claimant had erected a fence on the disputed property more than a year before the disturbance at issue, and the landowner acquiesced to that fence?
Opinions:
Majority - Cutrer, Judge.
No. A landowner does not meet the legal requirement for a possessory action if their possession was interrupted more than a year prior to the disturbance complained of. The erection of the first fence by Dunn in May 1981 was a disturbance sufficient to interrupt Evans's possession and put him on notice that his dominion was being seriously challenged. By acquiescing to this interruption for over a year (from May 1981 to May 1982), Evans lost his right to possess the property. Therefore, when the subsequent disturbance occurred in July 1982 (replacement of the fence and destruction of plants), Evans could not prove he had possessed the property for the requisite one-year period immediately prior, as required by LSA-C.C.P. art. 3658(2).
Analysis:
This decision clarifies the nature of a 'disturbance' sufficient to interrupt possession under Louisiana law, establishing that the construction of a fence is a significant challenge to dominion, not merely a minor interference. It underscores the principle that a possessor's rights are not perpetual if they fail to act in the face of a clear usurpation. The ruling effectively imposes a duty on possessors to timely challenge significant encroachments within one year, otherwise they risk losing their right to bring a possessory action based on a later act by the same adverse possessor.
