This is a suit brought by the plaintiff to have the boundary line between his residence lot and the contiguous residence lot of the defendant in the city of Lake Charles judicially established.
Plaintiff alleges in his petition that he endeavored to have an amicable adjustment of the line made by extrajudicial survey, but that defendant refused to accept the same, that he then found it necessary to have a judicial survey made, and accordingly he asks the court to appoint a surveyor for that purpose.
The properties are situated in the block or square encompassed by North, Ford, Division, and Common streets; plaintiff's lot occupying the corner formed by the intersection of Ford and Division streets, and defendant's being the adjoining property on the south. The disputed line runs almost east and west. Plaintiff alleges that, according to the survey he has caused to be made, there was a shortage of 2.6 feet in the block, and that he offered to prorate the amount between the two properties by reducing the width of his lot from 76 to 75.13 feet and the depth of the defendant's from 150 to 148.27 feet. He alleges that the said survey shows that the fence and outbuildings as they now stand are not wholly on the defendant's land, as she is entitled to 150 feet by her deed, but avers rather that they are on his (plaintiff's) land by approximately 3 feet.
The defendant at first interposed a plea of ten and thirty years' prescription, which was by the lower court referred to the merits. Defendant then answered denying any encroachment of her property on the lot of the plaintiff, but again urged that the boundary line between the lots as presently fixed by a fence has been recognized for thirty-two years, and she therefore stands on the prescription of thirty years as at first pleaded by herself.
From a judgment maintaining the plea of thirty years' prescription and dismissing his suit, the plaintiff has appealed.
The district judge summarized the testimony of several witnesses as follows:
"Mr. Edward Bendixen built a house and moved to the De Bakey property in 1893. There was a fence, which he thinks was about where the present fence stands; but he could be in error to the extent of several feet.
"Dr. A.N. Pierce owned and lived on the Prater property from 1893 to 1900. He built a barn at the Northwest corner of the property and a fence from the Northeast corner of the building eastward to Ford Street. He says the barn is still in its original location, the fence attached to its Northeast corner, and he thinks it is in its original location throughout.
"Mr. Arthur Cropper lived on the De Bakey property from the latter part of 1894 until 1903. His testimony corresponds with that of Dr. Pierce.
"Mrs. Amanda Jansen lives in the Southwest quarter of the block in which the properties are located, and has lived there thirty two years. Barn and fence were both there when she came to the vicinity thirty two years ago. The fence has been repaired, but she feels certain that it has remained in its original location, the west end touching the northeast corner of the barn."
This testimony, coupled with other evidence that the defendant and those under whose titles she held, had occupied and used the property as far as the fence line during that time, was sufficient, in the opinion of the district judge, in the absence of further testimony, to support the plea of thirty years' prescription under Civil Code, art. 852. There is but little doubt in our minds of the correctness of the ruling of the trial judge on this point in view of the decision of the Supreme Court in the case of Opdenwyer v. Brown, 155 La. 617, 99 So. 482, in which the article of the Code referred to was considered and construed. We believe that that decision is now generally recognized as setting at rest the question of prescription where a tract of land has been possessed under visible bounds for thirty years.
Whatever doubt there may be in this case as to the defendant's right to invoke the prescription provided for under that article of the Code arises from evidence which tended to show that there might have been an interruption of the prescription. The evidence on this point is found in the testimony of Mr. Charles Chavanne, who is the husband of a former owner of the De Bakey property, and which is to the effect that his wife purchased the property in 1903 and that they resided on it until 1920; that in 1912 he had the lot surveyed, and this survey showed the dividing fence to be about 3 feet out of the way, and that he so informed the owner of the property now owned by the defendant, Mrs. Prater. He says that he did not want to go to the expense of removing his fence and barn at the time, and that the owner of the other property told him it would be all right for him to remove it at any time. He states that he never said a word about it except at one time. Apparently nothing was ever done, and as a matter of fact the line as then visibly existing remained the same as it always had and so remains to-day, and the respective owners continued possessing to the same extent. *Page 736
In considering this, the most important issue in the case, the learned district judge, in his written reasons for judgment has the following to say:
"The question is whether the fact thus testified to interrupts the prescription of thirty years. C. C. art. 852, says: `If it be proved that the person * * * are those under whom he holds, have enjoyed in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it; * * * for he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.'
"As laid down in the Opdenwyer Case, * * * this article differs in important particulars from articles 3493 and 3494, which regulate the thirty years' prescription acquirendi. It is seen in these cases that the law favors the prescription of visible boundaries between estates far more than it favors the acquirement of title by prescription. `It is our firm conviction' says the Supreme Court, `that the public interest requires that boundaries established for more than thirty years should not be disturbed, and we think the law so provides.' A public policy is thus declared in behalf of the public interest, a policy which favors the perpetuation of visible boundaries in existence for thirty years or more, and therefore looks with some disfavor upon any attack against them.
"It is a distinguishing feature of the boundary prescription of thirty years that adjacent proprietors prescribe beyond their title and beyond that of their authors, whose possession they may `tack on.' This constitutes a bad-faith possession, actual as well as legal. The possession of each is exercised in the actual presence of the other, and therefore by his consent, not only constructive, as in other possessions affected by prescription, but actual and continuous. This consent may be tacit or expressed; and it is difficult to distinguish between the effects of the two. The proprietor who possesses beyond his title, extending his dominion to a visible boundary, may not only be charged with knowledge, but may actually know, that he possesses what he does not own. Whether his neighbor is equally informed does not seem material, so long as he permits the unwarranted possession. To say that one proprietor, possessing beyond his title, and thus encroaching upon his neighbor, is holding under the true owner as a sort of tenant at will, and therefore cannot prescribe because the true owner knows of the encroachment, and does not protest, would be to destroy the entire theory and purpose of the codal article; for it is based upon possession in the presence of the parties and under their presumed acquiescence.
"It is seen, therefore, that, in order for a visible boundary to become fixed by the prescription of thirty years, the proprietors need not believe it to represent the true boundary. They may have knowledge to the contrary. It is only necessary that their respective possessions, namely, their public use and dominion, be separated by the visible, physical marking, beyond which neither encroaches. The intention to use the boundary as the limit of their respective dominions for more than thirty years precludes both from asserting thereafter that they did not intend to adopt it as the true dividing line. That is the purpose of the prescriptive article. Mental reservations, even publicly expressed, are much less substantial title foundation than is actual, notorious, physical possession for a long period of years; and the law chooses the firmer foundation.
"The prescription of ten years is, of course, founded upon a different theory. It begins only when the line has been established judicially or extrajudicially by a sworn surveyor, in accordance with C. C. art. 833. Article 853 grants the right to rectify such a line within ten years, except where judicial fixing has become res judicata. It is this prescription about which the court speaks in Williams v. Bernstein, 51 La. Ann. 115 [25 So. 411], where it is said that mere use and occupancy of the land up to the fence built by both parties does not evidence adverse possession, since this may be intended as temporary and with reference to the right of both to fix ultimately the correct line. This expression applies to the prescription which begins only with a definite fixing of the line, namely, to the shorter prescriptive period of ten years. Possession for the longer period of thirty years, in good or bad faith, limited by a visible partition between the two dominions, does not support the same presumption that the visible partition was intended as temporary. On the contrary, it supports the presumption that the proprietors by such long-continued use intended that it should be permanent.
"It is shown in this case that possession limited by the fence began more than thirty years before the filing of the suit. Prescription by which ownership may be acquired is interrupted only by two causes — deprivation of possession for more than a year, and institution of suit involving the ownership or the possession. C. C. 3516-3518.
"There is found no provision in this class of prescription by which it may be interrupted by mere acknowledgement, as in prescriptions which released the debtor."
With these principles governing the prescription claimed, the trial judge held that the evidence disclosed by the testimony of Mr. Chavanne, which after all constituted mere knowledge on his part and the imparting of that krowledge to the adjacent proprietor with no contention being made by the *Page 737 latter as to the true line between the properties, was not sufficient to constitute an interruption, and he so decreed.
We do not know of anything that we could add that would make his reasons more convincing, and we therefore adopt them as our own.
The judgment which sustained the plea of thirty years prescription and dismissed the plaintiff's suit at his costs was correct, and it is accordingly affirmed.