John Walter Boudreaux v. Paul Christopher Cummings
167 So. 3d 559, 2015 La. LEXIS 703 (2015)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Use of another's land that begins with the landowner's tacit or implied permission, such as through neighborly tolerance, constitutes precarious possession. Acquisitive prescription does not run in favor of a precarious possessor unless they give the landowner actual notice of their intent to possess for themselves.
Facts:
- Since at least 1948, John Boudreaux and his ancestors used a pathway and gate to cross neighboring property owned by the Weills.
- Boudreaux, his family, and farm employees used the path to transport farm equipment and for personal errands like going to town.
- The Weills were aware of this continuous use and did not object.
- In 1969, the Weills asked Boudreaux to move the right of way to a new location on their property.
- Boudreaux acquiesced to the request and continued to use the pathway in its new location, with Mr. Weill providing some materials for the new fence and gate.
- The Weills' property was eventually acquired by Paul Cummings.
- In 2012, Cummings locked the gate, preventing Boudreaux from using the pathway.
Procedural Posture:
- John Boudreaux filed suit against Paul Cummings in a Louisiana district court (trial court), seeking recognition of a predial servitude by acquisitive prescription.
- The trial court denied Cummings' motion for summary judgment.
- After a trial on the merits, the trial court rendered judgment in favor of Boudreaux, recognizing the servitude.
- Cummings, as appellant, appealed the judgment to the Louisiana Third Circuit Court of Appeal.
- A majority of the Court of Appeal affirmed the trial court's judgment, with one judge dissenting.
- The Louisiana Supreme Court granted Cummings' writ of certiorari to review the appellate court's decision.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a person who uses a neighbor's land for over thirty years with the landowner's tacit permission and tolerance, without ever giving notice of an intent to possess as owner, acquire a predial servitude through acquisitive prescription?
Opinions:
Majority - Clark, J.
No, a person using land with tacit permission does not acquire a servitude through acquisitive prescription. The court reasoned that neighborly tolerance or indulgence creates "precarious possession," where one possesses with the permission of or on behalf of the owner. Under Louisiana law, a precarious possessor does not possess adversely. For the 30-year prescriptive period to begin, a precarious possessor must provide the landowner with "actual notice" that they intend to possess for themselves. Since Boudreaux's use began as a matter of neighborly accommodation and he never gave such notice, acquisitive prescription never commenced in his favor. Any doubt regarding the existence of a servitude must be resolved in favor of the property owner.
Concurring - Weimer, J.
No, a person using land with permission does not acquire a servitude. The concurrence agrees with the majority but adds that the 1969 collaboration to move the gate is dispositive evidence of permissive use. Crucially, in 1969, Louisiana law did not permit the acquisition of this type of servitude (a discontinuous apparent servitude) by prescription. Therefore, Boudreaux's actions at that time could not legally have been an attempt to possess as owner. This collaborative start definitively establishes his status as a precarious possessor, which defeats his claim for acquisitive prescription as he never gave notice to change the nature of his possession.
Dissenting - Knoll, J.
Yes, a person who uses land for thirty years under these circumstances can acquire a servitude. The dissent argues the majority improperly ignores the legal presumption that a possessor intends to possess as an owner. This presumption placed the burden on Cummings to prove Boudreaux's use was permissive. Cummings offered no evidence of permission, only an argument of "neighborliness," while Boudreaux explicitly denied ever receiving permission. By allowing an unsupported assertion of neighborliness to defeat the claim, the majority's holding eviscerates the established burden-shifting framework for acquisitive prescription.
Dissenting - Crichton, J.
Yes, a person can acquire a servitude when the landowner fails to rebut the legal presumption of ownership. This dissent emphasizes that Boudreaux's unambiguous testimony of his intent, coupled with the legal presumption that he possessed as owner, shifted the burden of proof to Cummings. Cummings failed to present even a "scintilla of evidence" to rebut this presumption, leaving the trial court with no choice but to rule in Boudreaux's favor based on the preponderance of the evidence.
Analysis:
This decision clarifies the high bar for establishing acquisitive prescription of a servitude when the use begins amicably. It solidifies the principle that mere non-objection or tolerance by a landowner constitutes precarious possession, not the adverse possession required for prescription. The ruling places a significant evidentiary burden on a claimant to demonstrate an overt act of "actual notice" to the landowner to convert permissive use into adverse possession. This protects landowners from losing property rights through acts of neighborly kindness and will require future claimants to prove their use was unequivocally hostile or that they explicitly terminated any implied permission.
