Williams Cypress Co. v. Dugas

DISSENTING OPINION OF

ELLIOTT, J.

The judgment in the suit of J. O. Delaune vs. F. B. Williams in the District Court of he Parish of Assumption, rendered December 10th, 1900, recognizes Williams as the owner of the timber in question and Deaune as the owner of the land. This Court holds that the effect of the judgment was to mobilize this timber. No authorities are cited in support of this conclusion, but I assume that the holding was influenced by the cases Citizens Bank vs. Wiltz, 31 La. Ann. 244; Lumber Co. vs. Sheriff, 106 La. 414, 30 South. 902; and Huie, Hodge Lumber Co. vs. Smith, 123 La. 959, 49 South. 655, and the French authorities therein cited, according to which, standing timber under the Code of Napoleon was mobilized when sold for the purpose of being cut down and removed from the land. The above cases are based on the theory that the provisions of the Civil Code of this state, Act 188 of 1904, not taken into account, and those of the Code of Napoleon on the subject of standing timber, are substantially the same; consequently should be applied in the same way. But I do not think them the same. I find them to be different to the extent, that it .seems to me the same application is erroneous and that as a result the cases cited are not governing as to the case in hand.

In Citizens Bank vs. Wiltz a crop was seized in the enforcement of a privilege. A contest ensued as to what was subject to eizure and sale separate and apart from the land. The Court held that part of the crop could be seized and sold, but that seed cane or corn necessary for production, could not; quoting a French Commentator on the Code of Napoleon, the text of which is to hd-feffect that in the case even of perfect and perpetual inherence to the soil, predicts are movable in a certain case. Thus When grain, fruits or wood are sold sepaately from the soil, it is a sale of mov*371ables and the purchaser has only a movable right. These objects in consequence are only sold like products, like things distinct from the soil, and so far ought to be separated from it. In reality they are immovables; but they are sold like movables; the purchaser buying the things yet immovable, but under the condition and with the power to mobilize them. The opinion also states that the provisions of our Code are identical with Article 520 of the Code of Napoleon.

Smith vs. Huie-Hodge Lumber Co. was a suit to set aside a sale of standing timber for lesion beyond moiety. In that ease the Court said, p. 963, that the French writers construing Article 1674 of the Code of Napoleon, which was very much like Article 2589 of the Code of this State, hold that when standing timber is sold in order to be separated from the soil, it is a sale of movable property and not subject to attack on account of lesion. The Court citing authorities bearing on the Code of Napoleon adds:

“And we should be disposed to adopt that view, were it not that in addition to the provisions of the Civil Code, which we have mentioned, we are confronted with Act 188 of 1904.”

In Lumber Co. vs. Sheriff the case 106 La. 414, 30 South. 902, was approvingly cited; but the opinion also contains expressions to the effect that trees after being sold remain under our law, immovable until they are cut down.

The provisions of Article 465 of the Civil Code of this state and Article 520 of the Code of Napoleon are similar as to growing crops and fruit on trees and admit of the same application because the nature of crops and fruit is the same; but Articles 520 and 521 of the Code of Napoleon contain no provision equivalent to that contained in Article 465 of the Civil Code of this state, according to which standing timber is immovable and considered part of the land to which it is attached, until it has been cut down.

Article 521 of the Code of Napoleon reads: “The cuttings of underwood of the ordinary kind or forest trees made up in regular faggots, only become movable in roportion as they are felled.” The cuttings of underwood of the ordinary kind as commonly understood in this country, means timber growths under the size of trees, which grow under the trees and are ordinarily cut out for firewood. “Forest trees made up in regular faggots,” evidently refers to trees that have been sold and are not tq remain standing, except temporarily, but are to be soon removed like a growing crop. The situation contemplated by the Code of Napoleon is different from that established by our Code, according to which: Standings trees — before they are cut down, are immovable, and are considered as part of the land to which they are attached. As soon — as the trees are cut down — they are movables.

Our Code on this subject is so plain that it is not open to construction, C. C. Article 13, etc. The Code of Napoleon evidently has in mind, trees, that have been sold for the purpose of being soon removed like a growing crop, fruits on trees. Our Code makes growing crops, fruits on trees and standing timber all immovable alike and part of the land to which they are attached.

But a growing crop and fruits on a tree are mobilized when gathered; while the nobilization of standing trees does not take place until they are cut down. Under our Code, a growing crop and fruit on a tree, if sold, must, as a necessary consequence, due to their perishable nature, be soon removed from the land to which they are attached, otherwise they are lost; but it is not contemplated that standing timber, if *372sold, must, as a necessary consequence, be soon cut down.

Leaving Act 188 of 1904 out of mind, the language of our Code on the subject indicates that such was not intended.

The compilers of our Code were familiar with the provisions of the Code of Napoleon on this subject in 1825 and purposely incorporated in our Code the present provision on the subject. The vast bodies of standing timber in this state at that time was a situation no doubt taken into account. The provisions of our Code on this subject are in conformity with the laws of the other States. Ruling Case Law, Vol. 17; Subject: Logs and Timber; Sections 4 and 5, p. 1068, and Sections 8 and 10, ip. 1076.

The situation in the present case is also different from that contemplated by the Code of Napoleon and the French Commentators so far as I have been able to ascertain; also from the decisions Citizens Bank vs. Wiltz, 31 La. Ann. 244; Lumber Co. vs. Sheriff, 106 La. 414, 30 South. 902; Huie, Hodge Lumber Co. vs. Smith, 123 La. 959, 49 South. 655, in this: the Code of Napoleon deals with trees that have been sold for the purpose of being soon removed from the land, and in the cases cited, the trees had been sold for the purpose of being cut down. Delaune did not own these trees; he did not sell them to Williams. The judgment which recognized Williams as the owner of the trees and Delaune as the owner of the land, is silent on the subject of severance or partition.

Possession is naturally linked, with the ownership. Civil Code Articles 3434 and 3435. The possession of the trees was therefore naturally in Williams, and that of the land in Delaune. The standing trees being, as a matter of law, considered as part of the land, and the judgment being silent on the subject of severance, it followed that Williams and Delaune were content for the timber to remain on the land, each owning and holding a separate part of an immovable in indivisión.

It is, therefore, my conclusion, that these trees were not mobilized as a result of the judgment rendered, and as held by a majority of the Court herein. The conclusion of the Court that such took place is not in my opinion supported by any applicable authority and is erroneous.

Under the judgment rendered on December 10th, 1900, Williams and Delaune were joint owners of an immovable; Williams owning the timber and Delaune the land, and this joint ownership continued between them and their respective successors in title and will remain, until a severance takes place either as the result of an agreement between the co-owners or of a judgment of the court between them fixing a time when the timber must be removed from the land.

Kavanaugh vs. Frost-Johnson Lumber Co., 149 La. 972, p. 975, 90 South. 275, and other cases to the same effect.

The opinion of the Court herein assumes that these trees were included in the sales from Barilleaux to Louis Gros as an accessory of the land. I differ with them as to that matter. These trees are not called for in any of the titles emanating from Delaune. Being part of an immovable recognized as belonging to Williams which judgment was recorded on or about the time it was rendered in the conveyance books of the Parish of Assumption, it was íecessary, in order for them to have been included in the sale to have been expressly mentioned in the acts of sale as objects sold. The object of every contract must be definite. Civil Code Articles 1779, 2438, 2474.

*373On this subject, Gray vs. Edgar Lumber Co., 138 La. 906, 70 South. 877, is a parallel case. In that case the owner of land sold the standing timber thereon and the purchaser recorded his title in the conveyance book. The owner of the land then after-wards sold it without reserving the trees and making no mention of them in the act. The purchaser of the land set up a title to the trees, claiming possession of them, and that they passed to him under his title.

The Court in deciding the case stated that it might well be doubted that George Walker ever intended to sell the timber to the plaintiff; but if such was his intention, the transfer was null as a sale of property belonging to another. On the question of possession the second clause of the syllabus reads as follows:

“Where such a sale was duly recorded and the vendee thereafter sold the same land without reservation to a third person, and the purchaser took actual possession of a small clearing on the tract; held, that such possession did not carry with it possession of the standing timber previously sold to defendant.”

Another result of the joint ownership of Williams and Delaune and their respective successors in title is that a public possession can not be commenced by either side, as to the property belonging to the other until either have taken hostile possession of the other’s property in such a way as to notify him of the fact. Otherwise, joint ownership remains and continues indefinitely until a severance takes place either as the result of the consent of the joint owners, or by virtue of a judgment between them ordering a severance and fixing a time for it to be accomplished.

Kavanaugh vs. Frost-Johnson Lumber Co., 149 La. 972, 90 South. 275; Liles vs. Pitts, 145 La. 650, 82 South. 735; Simon vs. Richard, 42 La. Ann. 842, 8 South. 629; Litton vs. Litton, 36 La. Ann. 348.

On the question of ownership in Louis Gros and his widow and heirs, the Court cites Civil Code Article 3506, which provides a prescription of 3 years, and Article 3509, which provides one of 10 years for movables, holding as I read the opinion that Louis Gros and his widow and heirs had become owners of the standing timber in that way.

These prescriptions are not pleaded by defendants.

“Courts can not supply the plea of prescription.” C. C. Art. 3463.

Defendants plead a just title to the timber and the prescription of ten years under Civil Code Art. 3478 — in support of their alleged title under which immovables are prescribed for against the true owner in ten years. The Court does not act on this plea, but applies against the rights of the plaintiff, the prescriptions applicable to movables which were not pleaded.

I do not think that should have been done.

Joint owners do not possess nor prescribe gainst each other under certain conditions; but suppose Louis Gros, and after him his widow and heirs, and the plaintiff, were not joint owners nor possessors, all that Louis Gros, and after him his widow and heirs, claim to have done, was to cut small trees and cord wood from the land as they saw proper, without reference or notice to plaintiff.

Under the settled jurisprudence of this State, such acts do not amount to a commencement and maintenance of actual possession of an immovable not called for by the title of the party.

Prevost Heirs vs. Johnson, 9 M. 123; McCarty vs. Foucher, 12 M. 17; Gardner vs. Leger, 5 La. Ann. 594; are among the earliest, and South Land Co. vs. Riggs *374Cypress Co., 119 La. 193, 43 South. 1003; Frederick vs. Goodbee, 120 La. 783, 45 South. 606; Albert Hanson Lumber Co. vs. Baldwin Lumber Co., 126 La. 399, 52 South. 537; and Howell vs. Metropolitan Land Co., 127 La. 399, 53 South. 664, are among the latest decisions to the effect that such acts do not amount to a commencement and maintenance of actual possession of land not called for by the title .of the party.

I, therefore, dissent from the opinion and decree of this Court herein, and contend that the judgment appealed from is erroneous and should be annulled, avoided and set aside and judgment rendered in favor of the plaintiff as prayed for.