Puder 2023 Spring Civil Property Civil Outline – LZ

Table of Contents
Chapter 1: Introduction...........................................................................................................5
Building Blocks for Studying Property Law:........................................................................................5
Property Based Modes to Acquire Ownership:...................................................................................5
Modifications:....................................................................................................................................5
Chapter 2: Real Rights and Ownership....................................................................................6
Ownership:........................................................................................................................................6
Real Rights v. Personal Rights............................................................................................................6
The Real versus Personal Rights Distinction and the Subsequent Purchaser Doctrine........................................6
Exclusivity in Ownership........................................................................................................................................6
The Classic Triad of Ownership Rights..................................................................................................................6
Exclusive Authority and Tresspass......................................................................................................6
Chapter 3: The Division of Things: Of Common, Public and Private Things...............................7
The Basic Division – Common Things..................................................................................................7
Classifications and Ramifications.......................................................................................................7
Public to Private:...................................................................................................................................................7
Defining the Scope of Public Things....................................................................................................8
Running Water......................................................................................................................................................8
Territorial Sea........................................................................................................................................................8
Seashore................................................................................................................................................................8
Equal Footing Doctrine..........................................................................................................................................9
Inland Navigable Water Bodies and the Concept of Navigability.........................................................................9
Private Things Subject to Public Use.....................................................................................................................9
Banks of Navigable Rivers.....................................................................................................................................9
Dedication of Private Property to Public Use........................................................................................................9
Tacit Dedication...................................................................................................................................................10
Private Canals and Dedication to Public Use......................................................................................................10

Chapter 4: Of Movables and Immovables, Corporeals and Incorporeals.................................10

The Primary Classifications...............................................................................................................10
Corporeal Movables............................................................................................................................................11
Corporeal Immovables........................................................................................................................................11
Component Parts of Tracts of Land.....................................................................................................................12
Unity in Ownership..........................................................................................................................12
Standing Timber..................................................................................................................................................13
Unharvested Crops and Ungathered Fruits of Trees..........................................................................................13
Component Parts through Incorporation, Attachment, and Declaration...........................................................13
Incorporated Items and Buildings Materials.......................................................................................................14
Deimmobilization.............................................................................................................................14
 Classification of interests in Trusts...................................................................................................14
Chapter 5: Accession.............................................................................................................14
Basic Terms: Fruits and Products; Good Faith and Bad Faith Possessors..........................................15
Ground rules for allocating fruits and products................................................................................15
Accession in Relation to Immovables: Artificial Accession................................................................16
The Presumption of Unified Ownership and the Possibility of Horizontal Segregation of Ownership
.........................................................................................................................................................16
Improvements Made by Precarious and Adverse Possessors...........................................................17
Large Scale Improvements..................................................................................................................................17
Small-Scale Improvements..................................................................................................................................18
Improvements by Adverse Possessors.............................................................................................19
Accession in Relation to Land Adjacent to Navigable Water Bodies.................................................19
The General Rule: Accretion Belongs to the Riparian Landowner......................................................................19
Exceptions to the General Rule: Seashores and Lakes........................................................................................19
Variations on the General Rule........................................................................................................20
Chapter 6: Voluntary and Involuntary Transfers of Ownership...............................................20
Voluntary Transfer of Ownership:....................................................................................................20
Transfer of Ownership through Sale, Exchange and Donation...........................................................................20
Effectiveness of a Voluntary Transfer of Ownership; The Louisiana Public Records Doctrine...........................21
As Between Parties..............................................................................................................................................21
Transfer of Movables.......................................................................................................................21
Transfer of Immovables...................................................................................................................21
Chapter 7: Occupancy; Acquisition of Ownership through Occupancy....................................22
Chapter 8: Possession and the Possessory Action...................................................................23
Introduction: Possession in the Civil Code........................................................................................23
Forms of Possession.........................................................................................................................23
Corporeal, Civil and Constructive Possession.....................................................................................................23
Forms of Possession.........................................................................................................................23
Precarious Possession (Element of intent).......................................................................................23
Possessory Action............................................................................................................................24
Possessory Actions against the State................................................................................................26
Chapter 9: Acquisitive Prescription with Respect to Immovables...........................................27
Justifications for Acquisitive Prescription.........................................................................................27
Thirty Year Acquistive Prescription of Immovables..........................................................................27
Thing subject to Acquisitive Prescription............................................................................................................27
Possibility of Constructive Possession:................................................................................................................27
Absence of Vices of Possession...........................................................................................................................27
 Ten-Year Acquisitive Prescription for Immovables...........................................................................29
Just Title...............................................................................................................................................................29
Quitclaim deed and effects:................................................................................................................................29
Good Faith...........................................................................................................................................................29
Tacking and Transfer of Possession..................................................................................................31
Transfer of Possession.........................................................................................................................................31
Transfer of Possession by Universal or Particular Title.......................................................................................31
The Mechanics of Tacking...................................................................................................................................31
Combining Different Qualities of Possession by Particular Title.........................................................................32
Boundary Actions and Boundary Tacking.........................................................................................33
Computation, Interruption, Suspension, Effects and Renunciation of Prescription..........................33
Passage of Time and Legal Rights........................................................................................................................33

Chapter 10: Vindicating Ownership: Petitory and Revendicatory Actions...............................35

Petitory Actions for the Recovery of Immovable Property...............................................................35
Proving Ownership from a Previous Owner or by Acquisitive Prescription.......................................................36
Titles Traced to a Common Author.....................................................................................................................36
Better Title When Neither Party is in Possession................................................................................................36
Revendicatory Actions for the Recovery of Movables......................................................................37
Chapter 11: Ownership in Indivision......................................................................................38
Ground Rules for Owners in Indivision.............................................................................................38
Definition of Indivision........................................................................................................................................38
Creation of Indivision..........................................................................................................................................38
Division of Shares among Co-Owners.................................................................................................................38
Rights to Fruits and Products..............................................................................................................................38
Liability of a Co-Owner........................................................................................................................................38
Right to Use versus Use and Management.........................................................................................................38
Disposition of Co-Owned Things.........................................................................................................................39
Substantial Alterations or Improvements...........................................................................................................39
Preservation of the Thing and Expenses of Maintenance and Management.....................................................39
Jurisprudence......................................................................................................................................................39
Termination of Precarious Possession and Acquisitive Prescription of Immovable Property............40
Termination of Co-Ownership through Partition..............................................................................41
Availability of a Partition..................................................................................................................41
Methods of Partition...........................................................................................................................................41
Effects of Partition...............................................................................................................................................42

Chapter 12 Ususfruct.............................................................................................................42
Dismemberments of Ownership: The Place of Usufruct in the Civil Code.........................................42
General Principles............................................................................................................................42
Definition and Essential Characteristics..............................................................................................................42
Advantages of a Usufruct....................................................................................................................................42
Things Susceptible of Usufruct and Classification of Usufruct............................................................................43
Establishment of Usufructs.................................................................................................................................43
The Usufructuary’s Right of Enjoyment as Applied to Consumables and Nonconsumables..............................43
 Limits on Contractual and Testamentary Freedom; Shared and Successive Usufructs......................44
Divisibility and Partition of the Usufruct and Naked Ownership......................................................44
Rights, Powers, and Obligations of the Usufructuary and Naked Owner during the Usufruct..........45
Hard Case: The Usufruct of Timberlands............................................................................................................45
Usufruct of Shares in a Corporation....................................................................................................................46
The Power to Dispose of Nonconsumables........................................................................................................46
Ordinary and Extraordinary Repairs; Prudent Administration...........................................................................46
Substantial Alterations or Improvements – Ameliorative Waste.......................................................................46
The Obligation to Give Security: Legal and Testamentary Usufruct...................................................................47
Rights and Obligations of Naked Owner.............................................................................................................47
Termination of the Usufruct.............................................................................................................47
Real Subrogation.................................................................................................................................................48
Consequences of Termination; Accounting........................................................................................................49

Chapter 14: Conventional Predial Servitudes.........................................................................49

Classification of Conventional Servitudes.........................................................................................49
Affirmative and Negative Servitudes...................................................................................................................49
Apparent and Nonapparent Servitudes..............................................................................................................49
Interpretation Rules............................................................................................................................................49
Servitudes Intended to Restrain Competition....................................................................................................50
Conventional Servitudes Established by Title...................................................................................50
Conventional Predial Servitudes Acquired by Destination of the Owner and by Acquisitive
Prescription......................................................................................................................................51
Destination of the owner....................................................................................................................................51
Acquisitive Prescription.......................................................................................................................................51
Rights and Duties of the Parties to the Servitude.............................................................................52
Accessory Rights..................................................................................................................................................52
Rights and Obligations of the Dominant Estate Owner......................................................................................52
The Servient Estate Owner..................................................................................................................................52
Servitude Relocation...........................................................................................................................................52
Extinction of Conventional Predial Servitudes..................................................................................52
Destruction of Dominant or the Servient Estate.................................................................................................52
Prescription for Nonuse......................................................................................................................................53

Chapter 13: Natural and Legal Servitudes..............................................................................53

The Essential Characteristics and Kinds of Predial Servitudes...........................................................53
Natural Servitudes...........................................................................................................................55
Identifying the Dominant and Servient Estate....................................................................................................55
Scope of the Charge............................................................................................................................................55
Rights and Duties of the Owners of the Two Estates..........................................................................................55
Termination of the Natural Servitude of Drain...................................................................................................55
Remedies for Breach of Servitude of Drain.........................................................................................................55
Legal Servitudes...............................................................................................................................55
Limitation on Ownership.....................................................................................................................................55
Obligations of the Neighborhood.......................................................................................................................56
Encroaching Buildings.........................................................................................................................................56
 Right of Passage for Enclosed Estates.................................................................................................................57

Chapter 16: Building Restrictions...........................................................................................59

Chapter 1: Introduction

Building Blocks for Studying Property Law:

Centrality of Ownership as Right:
477 Ownership
Ownership is the right that confers on a person direct, immediate, and exclusive authority over
a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the
conditions established by law.
Possession as Fact:
3422 Nature of possession; right to possess 
Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year
acquires the right to possess it.
Division & Classification of Things
448  Division of things
Things are divided into common, public, and private; corporeals and incorporeals; and
movables and immovables.
Property Based Modes to Acquire Ownership:
482 Accession.
The ownership of a thing includes by accession the ownership of everything that it produces or
is united with it, either naturally or artificially, in accordance with the following provisions.
3412  Occupancy 
Occupancy is the taking of possession of a corporeal movable that does not belong to anyone.
The occupant acquires ownership the moment he takes possession.
3446.  Acquisitive prescription 
Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for
a period of time.
Modifications:
480.  Co-ownership
Two or more persons may own the same thing in indivision, each having an undivided share.
Servitudes:
533  Kinds of servitudes.
There are two kinds of servitudes: personal servitudes and predial servitudes.
534  Personal servitude.
A personal servitude is a charge on a thing for the benefit of a person.  There are three sorts of
personal servitudes: usufruct, habitation, and rights of use.
646  Predial servitude; definition.
A predial servitude is a charge on a servient estate for the benefit of a dominant estate.
The two estates must belong to different owners.
Chapter 2: Real Rights and Ownership

Ownership:
477 Ownership
Ownership is the right that confers on a person direct, immediate, and exclusive authority over
a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the
conditions established by law.
479 The right of ownership may exists only in favor of a natural person or juridical person

Real Rights v. Personal Rights

476 Rights in Things

One may have various rights in things:
1. Ownership
2. Personal and predial servitudes; and
3. Such other real rights as the law allows.

The Real versus Personal Rights Distinction and the Subsequent Purchaser Doctrine
Case: Eagle Pipe vs Amerada Hess Corp (Real Rights vs Personal Rights)
Plaintiff purchased land contaminated by an oil company while in possession of previous owner.
Could new owner claim damages? Trial court said yes, Appeals overturned.
Rule:  A subsequent purchaser of property does not have the right to sue a third party for latent
property damage inflicted before the purchase without an assignment or subrogation of rights
by the former owner.

Exclusivity in Ownership
True owners have exclusive authority.

The Classic Triad of Ownership Rights

Usus, Abusus Fructus, as laid out in 477

Exclusive Authority and Trespass

Case: Lacombe v. Carter (Trespass. An owner or possessor can bring a trespass action)
(duck blinds on private property, not navigable water owned by the state)
The flexibility of the law of trespass includes possessor, not necessarily just an owner and can
be against someone who has been there a while if they haven’t established possession or
ownership. Also, flexible damage awards, not medical records, psychological records etc
Rule: In order to support a claim of trespass, a plaintiff must present a prima facie case of
ownership of property and prove that an unlawful physical invasion of that property occurred.

3422 Nature of possession; right to possess 

Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year
acquires the right to possess it.

Chapter 3: The Division of Things: Of Common, Public and Private

Things
448  Division of things
Things are divided into common, public, and private; corporeals and incorporeals; and
movables and immovables.

The Basic Division – Common Things

449  Common things.
Common things may not be owned by anyone.  They are such as the air and the high seas that
may be freely used by everyone conformably with the use for which nature has intended them.
Public versus Private Things
450 Public things.
Public things are owned by the state or its political subdivisions in their capacity as public
persons.
Public things that belong to the state are such as running waters, the waters and bottoms of
natural navigable water bodies, the territorial sea, and the seashore.
Public things that may belong to political subdivisions of the state are such as streets and public
squares.
453.  Private things.
Private things are owned by individuals, other private persons, and by the state or its political
subdivisions in their capacity as private persons.

Classifications and Ramifications

Band v. Audobon Park Comm’n (Classifications of land as public or private is important for
prescription)
neighbors extended their patios onto Audubon park land, is land private or public?)
The court held Audubon park is public and not private, thus insusceptible of acquisitive
prescription. The patio and fence were obstructions not mere encroachments.
Rule: Public land may not be acquired by private individuals through acquisitive prescription.
This case was the basis for practice problem #1

Public to Private:
Case: Coliseum Square Ass’n v. City of NOLA (Public things can be treated as private things)
Trinity school was able to lease 1 block of Coliseum street for 60 years from the city. The city
was able to execute this lease in their private capacity. The Supreme ct held that a public things
can become private if it is not NEEDED for public use and the decision is not arbitrary and
capricious.
Rule: A city is authorized to close a city street that is being used by the public and lease it to a
private entity.

Defining the Scope of Public Things

450 Public things.

Public things are owned by the state or its political subdivisions in their capacity as public
persons.
Public things that belong to the state are such as running waters, the waters and bottoms of
natural navigable water bodies, the territorial sea, and the seashore.
Public things that may belong to political subdivisions of the state are such as streets and public
squares.

Running Water
Key point is that water flowing in an inland body of water is distinct from the bed of that water
body. This has important legal consequences if the water is navigable or not. The bed of an
inland, non-navigable body of water is a private thing and may be owned by a private person or
by the state or one its political subdivisions in its private capacity.

A person who land bordering on or containing running water is a riparian landowner, and may
use the running water passing through or adjacent to their estate but cannot completely block
the water or redirect it.

Territorial Sea
The navigable waters offshore are distinct from the high seas. Louisiana territorial sea is the sea
bottom extending 3 miles from the coastline. Beyond belongs to the US.

Seashore.
451  Seashore.
Seashore is the space of land over which the waters of the sea spread in the highest tide during
the winter season.

Case: Buras v. Salinovich (Highlighting the difference between seashore and inland water)
Duck hunters wanted to use owners land, claimed it was public because it was the seashore.
The court held that the land was not seashore. The determining factor is proximity to the sea.
Tidal overflow is NOT the determining factor. Seashore must be land directly affected by the
tides and must be land next to the open coast.
Rule: Any land adjacent to the coast that tidal waters directly spread over is seashore, but
marshland physically remote from the sea that is subject to indirect tidal overflow is not.
Equal Footing Doctrine
Gave LA legistlature and courts the authority to declare that submerged land would be
generally be owned by the state itself. It also gave them the authority to determine the precise
geographic extent of state ownership of the beds and bottoms of navigable water bodies by
defining the Louisiana waterways and deciding whether they could be publicly or privately
owned.

Inland Navigable Water Bodies and the Concept of Navigability

506 Ownership of beds of non-navigable rivers or streams
In the absence of title or prescription, the beds of non-navigable rivers or streams belong to the
riparian owners along a line drawn in the middle of the bed
Cmts: Non-navigable lakes are private things

Case: State ex rel Guste v. Two O’Clock Bayou Land Co. Inc. (defines navigability)
Defendants ran a cable across the bayou adjacent their land, and believed they could because
the bayou was privately owned by them. Ps sought to have the bayou declared public because
it was navigable, and thus have the cable removed. The court defined a crucial test for
navigability by asking if it is suitable/capable of sustaining commerce in its ordinary, natural
state or condition, according to its depth, width, and location for commerce.
Rule: A body of water is navigable if it is suitable for commerce in its natural state or ordinary
condition.

Private Things Subject to Public Use

455 Private things subject to public use.
Private things may be subject to public use in accordance with law or by dedication.

Banks of Navigable Rivers

456  Banks of navigable rivers or streams.
The banks of navigable rivers or streams are private things that are subject to public use.
The bank of a navigable river or stream is the land lying between the ordinary low and the
ordinary high stage of the water.  Nevertheless, when there is a levee in proximity to the water,
established according to law, the levee shall form the bank.

Case: Warner v. Clarke (Recreational hunting and fishing are NOT included in the riparian
servitude) Ps arrested for trespass and argued that there is no valid trespass action because
the land between low tide and high tide is public. Courts held that the land is public but only for
commerce, not for recreational activities.
Rule: The public has a statutory riparian right to the incidental use of privately owned banks of
navigable rivers in relation to the navigable character of the water, but not a broader property
right to use the banks in other unrelated ways.

Dedication of Private Property to Public Use

455 Private Things Subject to Public Use
Private things may be subject to public use in accordance with law or by dedication.

457 Roads; Public or Private

A public road is one that is subject to public use. The public may own the land on which the
road is built or merely have the right to public use.
A private road is one that is not subject to public use

Dedications result from juridical acts: can either transfer ownership or create real rights
(servitudes). Dedication is irrevocable.

Tacit Dedication
Results from maintenance of streets or alleyways by the public for 3 years with actual or
constructive notice of owner.

Private Canals and Dedication to Public Use.

LA courts have repeatedly held that a man-made canal, built entirely with private funds on
privately owned land, remains a private thing even though the canal may be navigable in fact
and thus could be suitable for commerce. They are analogous to private roads.
Canals don’t fit 450 but may get public rights by implied dedication.

Chapter 4: Of Movables and Immovables, Corporeals and Incorporeals

The Primary Classifications

461 Corporeals and Incorporeals
Corporeals are things that have a body, whether animate or inanimate, and can be felt or
touched.
Incorporeals are things that have no body, but are comprehended by the understanding, such
as rights of inheritance, servitudes, obligations, and rights of intellectual property.

Why classification matters:

1) It provides a systemic pillar in the overall framework of property law.
2) The civil law tends to maintain the distinction between movable and immovables
rigorously throughout the private and public law orders
3) Significant legal consequences flow from these classifications.

1839. Transfers of immovable property

A transfer of immovable property must be made by authentic act or by act under private
signature. Nevertheless, an oral transfer is valid between the parties when the property has
been actually delivered and the transferor recognizes the transfer when interrogated under
oath.
This rule is one of the cornerstones of Louisiana Public Records Doctrine. Its negative because
it does not creates, but denies the effect of certain rights because its recorded.

Corporeal Movables – Things that have a body and can be touched or felt 461, and that
normally can be moved from one place or another 471.
Corporeal Immovables – Tracts of land with their component parts 462
Incorporeal Movables – Things that have no body but are comprehended by the understanding
such as rights and obligations 461; rights, obligations and actions that apply to a movable thing;
for example bonds, annuities and interests or share in entities possessing juridical personality
473
Incorporeal Immovables – Things that have no body but are comprehended by the
understanding such rights and actions; for example personal servitudes established on
immovables, predial servitudes, mineral rights, petitory and possessory actions 470

Corporeal Movables
461 Corporeals are things that have a body, whether animate or inanimate, and can be felt or
touched.

Case: South Central Bell Telephone Co. v Barthelemy (Corporeal vs Incorporeals)

The issue was Bell’s licensed software was corporeal or incorporeal for tax reasons. The tax only
applied to tangible personal property, a common law term. The court held they were
incorporeal because the essence of the transaction was for knowledge to be transferred, which
is intangible and therefore incorporeal.
Rule: Information or knowledge that is transformed into physical existence by recording it into
a physical form, such as a story in a book or software stored on a disk, is a corporeal movable.

Corporeal Immovables
462 Tracts of Land
Tracts of land, with their component parts, are immovables.

Case: Landry v. Leblanc (Defines Component Parts)

Lessee removed topsoil from land, lessor wanted it back. Is topsoil an immovable? Courts held
that ownership of land carries with it by accession the ownership of all directly above and
under it. The topsoil was therefore part of the land. The topsoil did not become a movable by
placing it in a truck to be hauled away.
Rule: Any transfer of the ownership of or rights to corporeal immovable property must be
made in writing.

1832 Written form required by law

When the law requires a contract to be in written form, the contract may not be proved
by testimony or by presumption, unless the written instrument has been destroyed, lost, or
stolen.
Component Parts of Tracts of Land
463 Component parts of tracts of land
Buildings, other constructions permanently attached to the ground (OCPAG)
464 Buildings and standing timber as separate immovable
Buildings and standing timber are separate immovables when they belong to a person
other than the owner of the land.
474 Movables by anticipation
Unharvested crops and ungathered fruits of trees are movables by anticipation when
they belong to a person rather than the landowner. When encumbered with security rights of
third persons, they are movable by anticipation in so far as the creditor is concerned.
The landowner may, by act translative of ownership or by pledge, mobilize by
anticipation unharvested crops and ungathered fruits of trees that belong to him.
491 Buildings, other constructions, standing timber, and crops
Buildings, other constructions permanently attached to the ground, standing tuner, and
unharvested crops or ungathered fruits of trees may belong to a person other than the owner
of the ground. Nevertheless, they are presumed to belong to the owner of the ground, unless
separate ownership is evidenced by an instrument filed for registry in the conveyance records
of the parish which the immovable is located.

Case: P.H.A.C Services v. Seaways Intl, Inc. (Seaways TEST – is a oil platform an immovable?)
Unpaid subcontractors wanted to place a lien on an oil rig, the but liens can only be placed on
immovables. The court held that the living unit was indeed a movable. Physical/immobility is
irrelevant. The important factors are: size, price, potential permanence, and human habitation.
Rule: A building is immovable property regardless of whether it is fixed to the ground.

Case: Bridges v. National Financial Systems, Inc. (Modular bank corporeal movables? Unity in
ownership question)
Tangible personal property is subject to sales/lease tax. Immovable are not. Court held that are
tangible personal property. The factors in the decision: Intent matters, Intended mobility in this
case, capability of being moved without disassembly.
Rule: Modular structures that are designed and intended to be repeatedly moved are corporeal
movables, not buildings.

Unity in Ownership
469 Transfer or Encumbrance of an Immovable
The transfer or encumbrance of an immovable includes its component parts.

Case: Bayou Fleet v Dravo (What exactly are OCPAGs?)

Is the limestone working base a component part? There is an important distinction between
corporeal movables and component parts. To determine OCPAG courts rely on 3 criteria (1) size
of the structure (2) the degree of its integration/attachment to the soil; and (3) its permanency.
Rule: A nonbuilding construction will amount to a component part of a tract of land if it is large,
firmly attached to the land, and permanent.
Standing Timber
464 Buildings and standing timber are separate immovables
465 Things incorporated into an immovable
Things incorporated into a tract of land, a building, or other construction, so as to
become an integral part of it, such as building materials, are component parts.

Case: Brown v. Hodge-Hunt Lumber Co., Inc (Standing Timber)

Landowner sold land but reserved ownership of timber as separate immovable. A separate
timber estate can be created through horizontal segregation. Once trees are cut down they
become movables. The landowner prevailed using 464 as an exception to 469.
Rule: Ownership of standing timber on a piece of property may be severed from ownership of
the property on which the timber stands.

Unharvested Crops and Ungathered Fruits of Trees

463 Component parts of tracts of land
Buildings, other constructions permanently attached to the ground (OCPAG)
474 Movables by anticipation
Unharvested crops and ungathered fruits of trees are movables by anticipation when
they belong to a person rather than the landowner. When encumbered with security rights of
third persons, they are movable by anticipation in so far as the creditor is concerned.
The landowner may, by act translative of ownership or by pledge, mobilize by
anticipation unharvested crops and ungathered fruits of trees that belong to him.
2677 Crop Rent
When the parties to an agricultural lease agree that the rent will consist of a portion of the
crops.

Component Parts through Incorporation, Attachment, and Declaration.

465 Things incorporated into an immovable
Things incorporated into a tract of land, a building, or other construction, so as to become an
integral part of it, such as building materials, are its component parts.
466 Component parts of a building or other construction
Things that are attached to a building and that, according to prevailing usages, serve to
complete a building of the same general type, without regard to its specific use, are its
component parts.  Component parts of this kind may include doors, shutters, gutters, and
cabinetry, as well as plumbing, heating, cooling, electrical, and similar systems.
Things that are attached to a construction other than a building and that serve its
principal use are its component parts.
Other things are component parts of a building or other construction if they are
attached to such a degree that they cannot be removed without substantial damage to
themselves or to the building or other construction.
467 Immovables by declaration
 The owner of an immovable may declare that machinery, appliances, and equipment
owned by him and placed on the immovable, other than his private residence, for its service
and improvement are deemed to be its component parts. The declaration shall be filed for
registry in the conveyance records of the parish in which the immovable is located.

Incorporated Items and Buildings Materials (465 and 472)

472 Building Materials
Materials gathered for the erection of a new building or other construction, even
though deriving from the demolition of an old one, are movables until their incorporation into a
new building or other construction.
Materials separated from a building or other construction for the purpose of repair,
addition, or alteration to it, with the intention of putting them back, remain immovable

Deimmobilization
468 Deimmobilization
Component parts of an immovable so damaged or deteriorated that they can no longer
serve the use of lands or buildings are deimmobilized.
The owner may deimmobilize the component parts of an immovable by an act
translative of ownership and delivery to acquirers in good faith.

Three pathways to Deimmobilization:

1. Physical Transformation – so much damage or deterioration that component part no
longer serves use of land or buildings
2. Transfer and Delivery – owner transfers ownership to third party thorugh act translative
of ownership and delivers it to acquirer in good faith
3. Detachment and Removal Alone – only if no third-party rights exist.

Classification of interests in Trusts

Case: In re Howard Marshall Charitable Remainder Annuity Trust (distinguishes person rights
from real rights)
Trustee of charitable trust opened succession. The trust was for mineral rights of immovable
property. However there were no underlying right to the land because he was the income
beneficiary, not the principal beneficiary.
Rule: The succession of movable property is governed by the law of the decedent’s domicile.

Chapter 5: Accession

482 Accession
The ownership of a thing includes by accession the ownership of everything that it produces or
is united with it, either naturally or artificially, in accordance with the following provisions.
A typical accession problem will involve four basic ingredients:
1. Some accessional force, either natural, artificial, or mixed.
 2. A new thing, often called the accessional thing
3. Another more prominent thing that the accessory is united with or connected to in
some fashion, often called the principal thing
4. At least two interested persons, the owner of the principal thing and the person whoe
labor or efforts are somehow responsible for the creation of the accessory thing.

Basic Terms: Fruits and Products; Good Faith and Bad Faith Possessors
Fruits are defined as things produced by or derived from another thing without diminishing its
substance.
Natural fruits are products of earth or of animals
Civil fruits are “revenues derived from a thing by operation of law of law or by reason of a
juridical act.
Products are derived from another thing, the substance of which is inherently diminished by
the act of productions. Eg. Topsoil, sand, solid minerals, oil, natural gas, and standing timber
True or adverse possessor is someone who possesses a thing with the intent to become its
owner. An adverse possessor can be in good faith or bad faith.
 487 Possessor in good faith; definition. For purposes of accession, a possessor is in
good faith when he possess by virtue of an act translative of ownership and does not
know of any defects in his ownership. He ceases to be in good faith when these defects
are made known to him or an action is instituted against him by the owner for the
recovery of a thing.
o First, the possessor must possess be an “act translative of ownership”, that is an
act that could have transferred ownership from the true owner
o Second, the GF possessor must not have any knowledge or “any defects in
ownership.”
 A bad faith possessor lacks an act translative of title or is aware of defects in his
ownership and retains possession with the intent to become its owner regardless.
Precarious Possessor who has physical detention with permission of the owner, and no intent
to become owner. Eg. Lessee, lease on car…

Ground rules for allocating fruits and products

483 Ownership of fruits

In the absence of rights of other persons, the owner of a thing acquires the ownership
of its natural and civil fruits.
484 Young of animals (Annas favorite article!)
The young of animals belongs to the owner of the mother of them
485 Fruits produced by a third person; reimbursement
When fruits that belong to the owner of a thing by accession are produced by the work
of another person, or from the seeds sown by him, the owner may retain them on reimbursing
such person of his expenses.
486 Possessor’s Rights to Fruits
 A possessor in good faith acquires the ownership of fruits he has gathered. If he is
evicted by the owner, he is entitled to reimbursement for the expenses for fruits he was unable
to gather.
A possessor in bad faith is bound to restore the owner the fruits he has gather, or their
value, subject to the claim for reimbursement of expenses.
488 Products; reimbursement of expenses
Products derived from a thing as a result of diminution of its substance belong to the owner of
that thing. When they are reclaimed by the owner, a possessor in good faith has the right to
reimbursement of his expenses. A possessor in bad faith does not have this right.
Timber and Minerals are products because they diminish the substance of the land!

Accession in Relation to Immovables: Artificial Accession

The Presumption of Unified Ownership and the Possibility of Horizontal Segregation of
Ownership

490 Accession Above and Below the Surface.

Unless otherwise provided by law, the ownership of a tract of land carries with it the
ownership of everything that is directly above or under it.
The owner may make works on, above, or below the land as he pleases, and draw all the
advantages that accrue from them, unless he is restrained by law or by rights of others.
491 Buildings, other constructions, standing timber and crop
Buildings, other constructions permanently attached to the ground, standing timber, and
unharvested crops or ungathered fruits of trees may belong to a person other than the owner
of the ground, unless separate ownership is evidenced by an instrument filed for registry in the
conveyance records of the parish in which the immovable is located.
 Must rebutt
 One certain method of rebutting the presumption of unified ownership is to record an
instrument evidencing separate ownership.

Case: Marcellous v. David (Building can be separate immovable)

Grandmother puts mobile home on property of family and says she would donate house if they
help her.. Q, is it possible that a building in LA be owned by someone other than the land
owner? Yes. Gma was able to rebut presumption of unified ownership of land and building even
though she had not filed any instrument for registry in the public records. 491 Because the
donation intervivos of an immovable requires an authentic act, which she did not execute.
Therefore ownership remained hers.
Rule: Buildings are presumed to belong to the owner of the land on which they rest, but
another party claiming ownership of a building may overcome this presumption by proving
ownership.

Case: Graffagnino v. Lifestyles, Inc (O’Dome)(Mobile buildings are only movable when
disassembled). Graffagnino bought land that had the O’Dome on it. Lifestyles wanted to retain
ownership of the O’Dome citing it was a movable, but it wasn’t dissembled.
Rule: Ownership of an immovable structure transfers with the ownership of the land on which
it rests, unless specifically excepted, such as by exclusion in the transfer documents or by other
means such as proper recording.

Improvements Made by Precarious and Adverse Possessors

Large Scale Improvements

493 Ownership of improvements
Buildings, OCPAGs, and plantings made on the land of another with his consent belong
to him who made them. They belong to the owner of the ground when they are made without
his consent.
When the owner of buildings, OCPAGs, or plantings no longer has the right to keep them
on the land of another, he may remove them subject to his obligation to restore the property to
its former condition.
The he (the improver) does not remove them within 90 days after written demand, the owner
of the land MAY, after the 90th day from the date of mailing the written demand, appropriate
ownership of the improvements by providing an additional written notice by certified mail, and
upon receipt of the certified mail by the owner of the improvements, the owner of the land
obtains ownership of the improvements and owes nothing to the owner of the improvements
Until such a time as the owner of the land appropriates the improvements, the
improvements shall remain remain on the property of he who made them, and he shall be solely
responsible any harm caused by the improvements.

3 Stages of the Large-Scale Improvement Funnel:

1. The precarious possessor has the right to remove the improvement, which makes sense
because the landowner should have contracted otherwise if he wanted to keep the
improvement.
2. If the consensual improver doesn’t take advantage of his right to remove, then the
landowner can have free appropriation with 3 steps:
a. Demand removal (by writing)
b. Wait 90 days
c. Send additional demand for removal (written notice by certified mail)
i. When the consensual improver receives the certified mail, the landowner
obtains ownership of the improvements and owes nothing to the
consensual improver.
3. If the precarious possessor does not remove the improvements, and the land owner
does not exercise his right of free appropriation, the precarious possessor retains
ownership.
a. Ex. A pipeline puts doesnt a pipe and doesn’t bother removing it. The landowner
doesn’t want it either. The pipeline company keeps ownership of the pipe and
liability for it.
495 Things incorporated in, or attached to, an immovable with the consent of the owner of
the immovable.
One who incorporates in, or attaches to, the immovable of another, with his consent,
things that become componenet parts of the immovable under 465 & 466 may, in the absence
of other provisions of law or juridical acts, remove them subject to his obligation of restoring
the property to its former condition.
If he (the improver) does not remove them after demand, (1) the owner of the
immovable may have them removed at the expense of the person who made them, or (2) elect
to keep them and pay, at his option, the current value of the materials and of the workmanship
or enhanced value of the immovable.

Small-Scale Improvements
ex. Security systems, solar panels, chandeliers, etc. 466

1. Precarious possessor has the right to remove the small scale improvement.
2. The landowner/building owner has the right to demand removal at the expense of the
precarious possessor.
3. Owner’s right of compensated appropriation if the precarious possessor doesn’t remove
the small-scale improvement.

493.1 Ownership of Component Parts

Things incorporated in or attached to an immovable so as to become its component
parts under 456 & 466 belong to the owner of the immovable
494 Constructions by Landowner with Materials of Another
When the owner of an immovable makes on it constructions, plantings, or works with
materials of another, he may retain them, regardless of his good or bad faith, on reimbursing
the owner of the materials their current value and repairing the injury that he may have caused
to him.
2695 Attachments, Additions, or Other Improvements to Leased Thing
In absence of contrary agreement, upon termination of the lease, the rights and obligations of
the parties with regard to attachments, additions, or other improvements made to the leased
thing by the lessee are as follows:
1. The lessee may remove all improvements that he made to the leased thing, provided
that he restores the thing to its former condition.
2. If the lessee does not remove the improvements, the lessor may:
a. Appropriate ownership of the improvements by reimbursing the lesse for their
costs or for the enhanced value of the thing whichever is less; or
b. Demand that the lessee remove the improvements within a reasonable time and
restore the leased thing to its former condition. If the lessee fails to do so, the
lessor may remove the improvements and restore the leased thing to its former
condition at the expense of the lessee or appropriate ownership of the
improvements without any obligation of reimbursement to the lessee.
Appropriation of the improvement by the lessor may only be accomplished by
 providing additional notice by certified mail to the lessee after expiration of the
time given to the lessee to remove the improvements.
c. Until such time the lessor appropriates the improvement, the improvements
shall remain the property of the lessee and the lessee shall be solely responsible
for any harm caused by the improvements.

Improvements by Adverse Possessors

496 Constructions by Possessor in Good Faith

When constructions, plantings, or works are made by a possessor in good faith, the
owner of the immovable may not demand their demolition and removal. He is bound to keep
them and at his option to pay the possessor either (1) the cost of the materials and of the
workmanship or (2) their current value, or (3) the enhanced value of the immovable.
497 Constructions by Bad Faith Possessors
When constructions, plantings, or works are made by bad faith possessor, the owner of
the immovable may (1) keep them, or (2) demand their demolition and removal at the expense
of the possessor, and in addition, damages for injury that he may have sustained. If he does not
demand demolition and removal, he is bound to pay at his option either the current value of
the materials and of the workmanship of the separable improvements that he kept or the
enhanced value of the immovable.

Case: Britt Builders v. Brister (GFP and improvement, remedies)

Britt was GFP and cut down a tree and poured a slab on her lot before she realized there was a
mistake on the title and she didn’t actually own the lot. She wanted compensation for
increasing the value of the lot under 496, but the court determined the slab wasn’t an
improvement.
Rule: Any improvements made by a good-faith possessor on another party’s land without that
landowner’s consent belong to the landowner.

Accession in Relation to Land Adjacent to Navigable Water Bodies

The General Rule: Accretion Belongs to the Riparian Landowner.

499 Alluivion and Dereliction
Accretion formed successively and imperceptibly on the bank of a river or a stream,
whether navigable or not, is called alluvion. The alluvion belongs to the owner of the bank, who
is bound to leave public that portion of the bank which is required for the public use.
The same rule applies to dereliction formed by water receding imperceptibly from a
bank of a river or stream. The owner of the land situated at the edge of the bank left dry owns
the dereliction

Exceptions to the General Rule: Seashores and Lakes

500 Shore of Sea or of a Lake
There is no right of alluvion or dereliction on the shore of the sea or of lakes.
Variations on the General Rule.
Islands in Rivers
503 Islands formed by river opening a new channel
When a river or stream, whether navigable or not, opens a new channel and surrounds
riparian land making it an island, the ownership of the land is not affected.
505 Islands and Sandbars in Navigable Rivers
Islands, and sandbars are not attached to a bank, formed in the beds or navigable rivers
or streams, belong to the state.
Alvulsion (when a river changes course) and Abandoned River Beds
502 Sudden Action of Waters
If a sudden action of the waters of a river or stream carries away an identifiable piece of
ground and unites it with other lands on the same or on the opposite bank, the ownership of
the piece of ground so carried away is not lost. The owner may claim it within a year, or even
later, if the owner of the bank with which it is united has not taken possession.
504 Ownership of abandoned bed with river changes course
When a navigable river or stream abandons its bed and opens a new one, the owners of
the land on which the new bed is located shall take by way of indemnification the abandoned
bed, each in proportion to the quantity of land lost.

Chapter 6: Voluntary and Involuntary Transfers of Ownership

Occupancy: a possession-based mode of acquiring ownership of corporeal movable that does
not belong to anyone.
 Occupancy is another mode of acquisition of ownership. Accession was a mode of
acquisition of owner ship. Occupancy is an original mode of acquisition of ownership.
 Unlike accession, which allows a person to acquire ownership of an accessory thing
because of its physical or functional relationship to a principal thing, occupancy enables
a person to acquire ownership of a thing that is not owned by anyone else by the
occupant’s mere act of taking possession.

Voluntary Transfer of Ownership:

Transfer of Ownership through Sale, Exchange and Donation.
517 Voluntary Transfer of Ownership of an Immovable
The ownership of an immovable is voluntarily transferred by contract between
ownership between owner and the transferee that purports to transfer the ownership of the
immovable. The transfer of ownership takes place between the parties by the effect of the
agreement and is not effective against third persons until the contract is filed for registry in the
conveyance records of the parish in which the immovable is located.
518 Voluntary Transfer of the Ownership of a Movable
The ownership of a movable is voluntarily transferred by a contract between the owner
and the transferee that purports to transfer ownership of the movable. Unless otherwise
provided, the transfer of ownership takes pace as between the parties by the effect of the
agreement and against third persons when the possession of the movable is delivered to the
transferee.
When possession has not been delivered, a subsequent transferee to whom possession
is delivered acquires ownership provided he is in GF. Creditors of the transferor may seize the
movable while it is still in his possession.

Effectiveness of a Voluntary Transfer of Ownership; The Louisiana Public Records Doctrine

As Between Parties
Ownership transfers immediately by effect of the agreement, unless the parties agree
otherwise.
As to Third Parties
Voluntary transfer of ownership of immovable is not effective against third persons until the
contract is filed for registry in the conveyance records of the parish in which the immovable is
located.

Transfer of Movables
Corporeal Movables and Tradition
Recordation is not required for a voluntary transfer of movables to be effective against third
parties
2477 Methods of Delivery
Delivery of an immovable is deemed to take place upon execution of the writing that
transfers its ownership.
Delivery of a movable takes places place by handing it over to the buyer. If the parties so
intend delivery may take place in another manner, such as by the seller’s handing over to the
buyer the key to the place where the thing is stored, or by negotiating to him a document of
title to the thing, or even by the mere consent of the parties if the thing sold cannot be
transported at the time of the sale or if the buyer already has the thing at that time.

Case: Cameron Equipment v. Stewart and Stevenson Services (possession in good faith, transfer)
Cameron bought a huge diesel engine and left it in the buyer’s shipyard for two years. Later the
shipyard sold it to someone else. Cameron sued to recover, but was denied because delivery
never took place since they left it there for so long. They were not in GF.
Rule: The transfer of ownership of movable property is only complete when the purchaser
takes possession of the property.

Transfer of Immovables
Formalities Required for the Transfer of Real Rights in Immovables.
1829 Transfer of Immovable Property
A transfer of immovable property must be made by authentic act or by act under
private signature. Nevertheless, an oral transfer is valid between the parties when the property
has been actually delivered and the transferor recognizes the transfer when interrogated on
oath.
An instrument involving immovable property shall have effect against third persons only
from the time it is filed for registry in the parish where the property is located.

Chapter 7: Occupancy; Acquisition of Ownership through Occupancy

3412 Occupancy
Occupancy is the taking of possession of a corporeal movable that does not belong to
anyone. The occupant acquires ownership the moment he takes possession.
3413 Wild animals, birds, fish, and shellfish
Wild animals, birds, fish and shellfish in a state of natural liberty either belong to the
state in its capacity as a public person or are things without an owner. The taking of possession
of such things is governed by particular laws and regulations.
3414 Loss of ownership of wildlife
If wild animals…. Recover their natural liberty, the captor loses his ownership unless he
takes immediate measures for their pursuit or capture.
3415 Wildlife in enclosures
Wildlife or birds within enclosures are privately owned….
3416 Tamed wild animals
Tamed wild animals are privately owned as long as they have the habit of returning to
their owner. They are considered to have lost the habit when they fail to return within a
reasonable time. In such a case, they are considered to have recovered their natural liberty
unless their owner takes immediate measure for their pursuit and recapture
3417 Domestic animals
Domestic animals that are privately owned are not subject to occupancy.
3418 Abandoned things
One who takes possession of an abandoned thing with the intent to own it acquires
ownership by occupancy. A thing abandoned when its owner relinquishes possession with the
intent to give up ownership.
3419 Lost things
One who finds a corporeal movable that has been lost is bound to make a diligent effort
to locate its owner or possessor and to return the thing to him.
If a diligent effort is made and the owner is not found within three years, the finder
acquires ownership.
3420 Treasure
One who finds a treasure in a thing that belongs to him or to no one acquires ownership
of the treasure. If the treasure is found in a thing belonging to another, half of the treasure
belongs to the finder and half belongs to the owner of the thing in which it was found.

Acquisitive Prescription of Movables

3489-3491 Acquisitive prescription of movables may be acquired through 3 or 10 years, with
the same rules as 10-30 years for immovables respectively.
Chapter 8: Possession and the Possessory Action

Introduction: Possession in the Civil Code

(corpus + animus)
3421 Possession
Possession is the detention or enjoyment of a corporeal thing, movable or immovable,
that one holds or excises by himself or by another who keeps it or exercises it in his name.
The exercise of a real right such as a servitude, with the intent to have it as one’s own is
quasi-possession. The rules governing possession apply by analogy to the quasi-possession of
incorporeals
3424 Acquisition of possession
To acquire possession, one must intend possess as owner and must take corporeal
possession for the thing.

Forms of Possession.
Corporeal, Civil and Constructive Possession.
3425 Corporeal possession
Corporeal possession is the exercise of physical acts of use, detention, or enjoyment
over a thing.
3431 Retention of possession; civil possession
Once acquired, possession is retained by the intent to possess as owner even if the
possessor ceases to possess corporeally. This is civil possession.
3426 Constructive possession
One who possesses a part of an immovable by virtue of a title is deemed to have
constructive possession within the limits of the title. In the absence of title, one has possession
only of the area he actually possesses.

Case: Peloquin v. Calcasieu Parish Police Jury. (rights of possessors of a movable, same as
owner)
Action brought for conversion of a cat. The cat had been with the family who found him for 7
years since he was a kitten, but they couldn’t prove possession The possessors couldn’t prove
voluntary transfer, acquisitive prescription, or lost thing. However it didn’t matter, rights of a
possessor cannot be infringed. Doctrine of relativity of title.
Rule: A possessor of movable property has the same rights as an owner of that property would
have for damages resulting from conversion of the property by a third party.

Forms of Possession
Precarious Possession (Element of intent)
3437 Precarious Possession
The exercise of possession over a thing with the permission of or on behalf of the owner
or possessor is precarious possession.
Case: Harper v. Willis (intent to possess immovable)
Harper used Willis’s land for many years to graze his cattle, but never built a fence and even
said he wasn’t the owner, and that he had permission. If he inteneded to possess he should
have made his intent clear.
Rule: A person in physical possession of a property will only be a possessor of that property if
he also has the intention of possessing it as an owner.

Case: Falgoust v. Innes (precarious possession of an immovable)

Plaintiff let son in law build a gas station and would let him have it for 5 years. However son in
law divorced daughter so Plaintiff wanted him gone. But son in law had no right because there
was no agreement, he was a precarious possessor. Under 493 he built a large scale
improvement and would have 90 days to remove it, if after 90 days plaintiff could send a
certified letter to take advantage of the free appropriation.
Rule: A person is not a possessor of property if he holds the property not as an owner but
subject to the permission of, or on behalf of, the owner.

Case: Ellis v. Prevost (Civil and constructive possession)

Old case 19th century. Landowner had land, but other people had possession for years, built
fences etc. He still had civil possession but not constructive possession. He was able to bring an
action against with civil possession by virtue of having corporeal possession. He could evict the
precarious possessors with a petitory action. The possessors would have to prove sovereign
title or acquisitive prescription.
Rule: A successor in ownership to a property who has never taken physical possession of that
property may still establish civil possession over the property if his predecessor in ownership
had exerted physical possession.

Possessory Action
CCP 3655 Possessory action
The possessory action is one brought by the possessor of immovable property or of a
real right therein to be maintained in his possession of the property or enjoyment of the right
when he has been disturbed, or to be restored to the possession or enjoyment thereof when he
has been evicted.
CCP 3661 Same; title not at issue; limited admissibility of evidence of title
In possessory action, the ownership or title of the parties to the immovable property or
real right therein is not at issue.
No evidence of ownership or title to the immovable property or real right therein shall
be admitted except to prove:
1. The possession thereof by a party as owner;
2. The extent of the possession thereof by a party; or
3. The length of time in which a party and his ancestors in title have had possession
thereof.
CCCP 3657 Same; cumulation with petitory action prohibited; conversion into or separate
petitory action by defendant
 The plaintiff may not cumulate the petitory and the possessory actions in the same suit
or plead them in the alternative, and when he does so he waives the possessory action. If the
plaintiff brings the possessory action, and without dismissing it and prior judgment therein,
institutes the petitory action, the possessory action is abated.
When as provided in 3661, the defendant in a possessory action assert title in himself, in the
alternative or otherwise, he therby converts the suit into a petitory action, and judicially
confesses the possession of the plaintiff in the possessory action.
If, before executory judgment in a possessory action, the defendant therein institutes a petitory
action in a separate suit against the plaintiff in the possessory action, the plaintiff in the petitory
action judicially onfess the possession of the defendant therein.
CCP 3658
To maintain the possessory action the possessor must allege and prove that:
1. He had possession of the immovable property or real right therein at the time the
disturbance occurred.
2. He and his ancestors in title had such possession quietly and without interruption for
more than a year immediately prior to the disturbance, unless evicted by force or fraud.
3. The disturbance was one in fact or in law, as defined in 3659; and
4. The possessory action was instituted with a year of the disturbance.

CCP 3659 Same; disturbance in fact and in law defined

Disturbances of possession which give rise to the possessory action are two kinds:
disturbance in face and disturbance in law.
A disturbance in fact is an eviction, or any other physical act which prevents the
possessor of immovable property or of a real right therein from enjoying his possession quietly,
or which throws any obstacle in the way of that enjoyment.
A disturbance in law is the execution, recordation, registry, or continuing existence of
record of any instrument which asserts or implies a right of ownership or to the possession of
immovable property or of a real right therein, or any claim of ownership or right to the
possession.
CCP 3660 Same; Possession
A person is in possession of immovable property or of a real right when he has corporeal
possession, or civil possession proceeded by corporeal possession by him or ancestors in titled,
and possesses for himself in GF or BF, or even as a usurper.
A person who claims the ownership of immovable property or of a real right therein
possesses through his lessee, through another who occupies the property or enjoys the right
under an agreement with him or his lessee, or through a person who has the use or usufruct to
which the ownership is subject,
CCP 3662 Same; relief which may be granted successful plaintiff in judgment
A judgment rendered for the plantiff in a possessory action shall:
1. Recognize his right to the possession of the immovable property and real right, and
restore him to possession if he had been evicted, or maintain him in possession if the
disturbance had not been eviction.
2. Order the defendant to assert his adverse claim of ownership of the immovable
property or real right in a petitory action to be filed within a delay to be fixed by the
 court not to exceed 60 days after the date the judgment becomes executory, or be
precluded from asserting ownership for such relief; and
3. Award him the damages to which he is entitled and which he has prayed for.

Case: Liner v. Louisiana Land and Exploration Co. (possessory action)

Old case with landowners fighting over land, moving stakes, and fences back and forth
for years. Defendant evicts other with state behind it. Is he entitled to recovery under
possessory act? D claims disturbance of fact. Was possession quiet and uninterrupted for one
year? Its not literal, mere disturbances is not enough to upset quiet and uninterrupted
possession. You need the right to possess to bring a possessory action. To have the right to
possess, you need quiet and uninterrupted possession for more than a year.
Rule: A possessor may bring a possessory action if there has been no interruption of his
possession for one year prior to the disturbance on which the action is based.

Case: Mire v. Crowe

Mire brings this possessory action after he had leased someone on Lot 7 and Crowe tells lessee
to stop building the corral because he was owner.
Disturbance in Law
Mire established visible boundaries with stakes and a fence, invited family and friends to go
hunting and fishing - was clearly using the land in a corporeal way. Mire possessed with the
intent to become owner because he thought he was the owner of the land
Does he have a just title is the main problem here, Crowe wasn’t trying to evict or prevent
Mire’s usage. Court found Mire was entitled to maintain possession of the disputed area.
Rule: A plaintiff prevails in a possessory action by showing that he or she acquired the right to
possess property and did not lose the right within one year preceding a disturbance to the
plaintiff’s possession.

Possessory Actions against the State

The possessory action protects possession of corporeal immovables as well as incorporeal
immovables when those things are private things owned by individuals. Public things will not be
subject of possessory actions, but only when it’s a thing privately owned by the state.

Case: Todd v. Dept of Natural Resources (possessory actions against the State)
A possessory action may be maintained against the State where the object of possession is a
private rather than a public thing. To bring a possessory action, you don’t need to have a thing
that is susceptible of acquisitive prescription. Even for private land owned by LA, there are
benefits to bringing a possessory action. A plaintiff would need to show susceptibility of
acquisitive prescription if trying to prove ownership.
Rule: A possessory action may be brought against the state if the object of possession is a
private thing rather than a public thing.

Chapter 9: Acquisitive Prescription with Respect to Immovables

Justifications for Acquisitive Prescription

Case: Gabriel Baudry-Lacantinerie & Albert Tissier (Prescription models)

It would be hard to prove perfect title all the way back to the Sovereign. Limitations Model.
Assumption that people are possessing because they are the owners. Administrative Model.
Although it doesn’t sound right that a usurper can prevail over the true owner, a true owner
would have to be guilty of gross negligence for that to happen. Plus, the possessor may have
made based his budgeting on his present resources and may have made improvements.
Developmental Model.
“If there were no other reason favoring prescription than public interest in assuring the
tranquility of possessors, it would be just in order to prevent a continuing uncertainty about
ownership of things.” Limitations Model.

Thirty Year Acquisitive Prescription of Immovables

3486 Immovables; prescription of 30 years

Ownership and other real rights in immovables may be acquired by the prescription of
30 years with the need of just title or possession in GF.
Things subject to Acquisitive Prescription
 Private things
 Private thing owned by a political subdivision of the state (Audubon)(Todd)
 NOT public things such public road or park
Possibility of Constructive Possession:
3487 Restriction as to extent of possession
For purposes of acquisitive prescription without without title, possession extends only
to that which has actually been possessed.
Context matters – Actaul possession is determined according to the nature of the property.
Absence of Vices of Possession
3476 Attributes of possession
The possessor must have corporeal possession or civil possession preceded by corporeal
possession to acquire a thing by prescription.
The possession must be continuous, uninterrupted, peaceable, public, and unequivocal.
3477 Precarious possession
Acquisitive prescription does not run in favor of precarious possessor or his universal
successor.

Case: Brunson v. Hemmler (Factors in 30 year prescription)

Plaintiffs used the property for over 30 years. Defendants were record owners. Developmental
Model: the plaintiffs used the land; the record owners didn’t check on it much (since 1965).
Personhood Model: plaintiffs had the land for a long time—psychological commitment; the
defendants had no strong psychological commitment.
Vices? Plaintiffs were not violently possessing. Their possession was open, not secretive. The
plaintiffs were actively and publicly farming. “The mere fact that a non-owner has physical
possession of land provides sufficient notice to the record owner and the public at large that a
non-owner intends to possess the property for himself as owner.”
The possession was sufficiently open and public to give notice. The important inquiry is
whether the possession is the kind of act that would put a diligent owner on notice that
someone was using their property. This is a good thumbnail test for if an act of possession is
sufficient for acquisitive prescription. Ex: Going hunting every now and then on property or
moving fence just a little isn’t enough.
Rule: Ownership of immovable property may be obtained by acquisitive prescription through
30 years of possession, without need of just title or possession in good faith.

Case: Tolmas v. Lee (Old Metairie laundromat parking lot)

Charles was the record owner and Lee was successful in acquisitive prescription. This case is
about the Developmental Model. The Lees earned the right to become owners because they
cut the grass, maintaining the lot. Tolmas’s drove by and did nothing for 50 years.
Rule: The type of possession required to assert a claim of acquisitive prescription over a
disputed parcel is governed by the nature or use of the land.

Also Personhood Model: Reliance interest – expectation of community. Family, friends,

customers thought the land was the Lees’.
The Lees’ possession was not afflicted by vices: (1) Clearly possessing openly
(2)Continuous possession (regular intervals – business days) (doesn’t have to be literally 24/7)
(3)Doesn’t have to be all enclosed. The court doesn’t require enclosures, just boundaries.

Case: Memorial Hall Museum, Inc v. UNO Foundation. (Puder loves this case. Physical
possession v. act translative of ownership)
HMLA transfers the property to UNO. LHA transfers to MHMI. MHMI claims to own the annex.
Did Frank Howard’s 1891 speech transfer ownership to the LHA? No. It only transferred use.
(Can give a usufruct, but cannot be perpetual). If it’s a transfer of a use right, it’s an odd right of
use.
It’s unclear what Frank Howard’s speech was. If Howard said he was transferring ownership, it
still wouldn’t be a valid transfer, because a donation of an immovable requires an authentic act,
which this was not.
A sale just needs to be an act under private signature. He wrote it down. Maybe he signed it.
Acquisitive Prescription:
From 1891 – 1931, LHA did NOT engage in adverse possession. The LHA was a precarious
possessor. (Like Harper). No acquisitive prescription accrued.
In 1931, LHA may have asserted possession with the intent to own. There was no actual notice,
though. There was no proof that the document was communicated to the HMLA.
As a matter of law, this is the right answer, although it’s strange that HMLA had no notice that
someone else was possessing its annex.
This shows the tricky trap of precarious possession: It’s almost like HMLA leased to the LHA. A
lessee really needs to give notice of no longer being a precarious possessor.
Rule: In order to acquire ownership of immovable property through 30-year acquisitive
prescription, the possessor must have possessed the property openly, without interruption, and
unequivocally as an owner.

Ten-Year Acquisitive Prescription for Immovables

10 year acquisitive prescription allows a person possession an immovable to acquire ownership
or real rights in the immovable property when 4 requirements are met:
1. The claimant possesses the immovable for 10 years;
2. By virtue of just title
3. The claimant’s possession commenced in GF; and
4. The thing itself is susceptible to acquisitive prescription.
10 year Possession – prescriptive period begins on the day after the possessor takes possession
of the immovable as owner.
Just Title
3483 Just Title (study comments)
A just title is a juridical act, such as a sale, exchange, or donation, sufficient to transfer
ownership or another real right. The act must be written, valid in form, and filed for registry in
the conveyance records of the parish in which the immovable is situated.
Quitclaim deed and effects:
2502 Transfer of rights to a thing
A person may transfer to another whatever rights to a thing he may then have, without
warranting the existence of any such rights. In such a case the transferor does not owe
restitution of the price to the transferee in case of eviction, nor may that transfer be rescinded
for lesion.
Such a transfer does not give rise to a presumption of bad faith on the part of the
transferor and is a just title for the purposes of acquisitive prescription.

Good Faith
3480 Good faith
For purposes of acquisitive prescription, a possessor is in good faith when he reasonably
believes, in light of objective considerations, that he is the owner of the thing he possesses.
2 step analysis:
1. Does the possessor subjectively believe that he commenced his possession as owner
because he thought he was acquiring property from a previous owner?
2. If yes, was the possessors belief reasonable?
3481 Presumption of GF
Good faith is presumed. Neither error of law nor error of fact defeats this presumption.
This presumption is rebutted on proof that the possessor knows, or should know, that he is not
the owner of the thing he possesses.

Case: Phillips v. Parker (utility of 10 year prescription. Important case)

This shows the great utility of 10-year acquisitive prescription and saved it from demise. In
1947, Weaver acquired 2.55 acres of land and built a camp on a lake. Weaver sells one lot to
Parker and one to McCuller because Weaver didn’t need it all. Lawyer got confused. In Aug.
1955, Weaver sold to McCuller. Then, also in Aug. 1955, Weaver sold to Parker, but he
accidentally transferred his own lot with the camp on it. Weaver and Parker switch back
(exchange) in Oct. 1955.

At this point, Parker says, “I need to be more careful.” He hires an attorney to do a title exam,
who determines that yes, Weaver owns it. However, the attorney missed the fact that the
property description included overlap into McCuller’s land. McCullers transfer to Phillips. Parker
had put up a fence. Phillips, who wants to put a trailer on her side, finds out the fence is on her
land.
McCullers recorded their deed in Aug. 1955. Under the PRD, the McCullers are the true owner
of the overlap, and now, Phillips is the true owner.
Parker subjectively believed he was the owner. Was Parker’s belief objectively reasonable? Yes
—there was no reason for Parker to be skeptical. Parker hired an attorney who said there was
no problem. Parker took the normal steps a reasonable buyer would take. If the court would
penalize Parker for the attorney’s mistake, charging Parker with constructive knowledge of the
public records, then people would be better off sticking their head in the sand and not doing a
title exam.
This is exactly the situation 10-year acquisitive prescription is designed to remedy. Parker
seems like a GF possessor.
Rule: A possessor of immovable property will not lose good-faith status merely because a title
examiner failed to discover a title defect.

Case: Mai v. Floyd (GF possession further defined)

Floyd got the land at a tax sale, recorded it, and transferred to his son. Albert forgot that he
hadn’t paid taxes and transferred to Tabrizi and Zare. Tabrizi transferred to Mai in 1996. Floyd
figures out someone else is in possession of their land.
Mai wants to transfer to Hoang, but Hoang figures all this out and will only buy when Mai gets a
declaratory action. Floyd seems to have superior title because he got his title earlier and
recorded it.
Was Mai in GF? Did Mai reasonably believe he was the owner? The court held yes. Remember
there is a presumption of GF. Mai did not have a title exam done when he took possession
(opposite of Phillips). But Mai is still in GF. Hoang was the first to conduct the title exam. They
went to the tax assessor’s office and found that back taxes were paid by Floyd. Red flag? Is this
what a reasonable buyer would do? GF is presumed, so Mai was probably in GF unless Albert
said he hadn’t paid taxes … But when Mai went to the tax office, Tabrizi must have said
something. The fact that they’ve not been paying taxes may set off red flags, so this is a
questionable decision. This shows the power of the GF presumption. (Maybe they really were
just confused. Maybe this wasn’t malicious).
3482: If Mai goes to the tax office and thinks he’s fine, then he starts off in GF. Mai could find
out the very next day that he’s wrong, but that doesn’t matter. He’s still accruing acquisitive
prescription.
One of the Floyds came into Mai’s store and threatened Mai’s ownership, then left. Floyd didn’t
usurp Mai. This may have alerted Mai, but it didn’t change Mai’s status as GFP. Floyd didn’t
interrupt possession. It’s important to establish GFP.
Rule: A possessor seeking to establish a 10-year acquisitive-prescription claim over immovable
property may tack the time of his possession onto the possession of a previous possessor if that
party was in good faith at the time of conveyance.

Tacking and Transfer of Possession

Transfer of Possession
Tacking allows a possessor who acquires possession by title from a former possessor to
connect or cumulate the time of the former possessor with his own.
Requires a juridical link between the possessors. Can be supplied by the transfer of possession
through either universal title or particular title.
Transfer of Possession by Universal or Particular Title
3441 Transfer of Possession
Possession is transferable by universal title of by particular title.
3506 General Definitions
(28) Successor – Successor is, generally speaking, the person who takes the place of another.
There are in law two sorts of successors: the universal successor, such as the heir,
universal legatee, and the general legatee; and the successor by particular title, suchas the
buyer, donee, or legatee of particular things, the transferee.
The universal successor represents the person of the deceased, and succeeds to all his
rights and charges
The particular successor succeeds only to the rights appertaining to the thing which is
sold, ceded or bequeathed to him.
936 Continuation of the possession of the decedent.
The possession of the decedent is transferred to his successors, whether testate or
intestate, and if testate, whether particular, general, or universal legatees.

The Mechanics of Tacking

3442 Tacking of possession
The possession of the transferor is tacked to that of the transferee if there has been no
interruption of possession.

A juridical link can be established by ‘privity’ of contract or estate. ‘Privity’ is a mutual or

successive relationship to the same right of property, or such an identification in interest of one
person another as to represent the same legal right.

Acquisitive prescription does not run in favor of a precarious possessor or his universal
successor.
3479 Particular successor of precarious successor
 A particular successor of precarious possessor who takes possession under an act
translative of ownership possesses for himself, and prescription runs in his favor from the
commencement of possession.

Combining Different Qualities of Possession by Particular Title

Author in GF conveys to acquirer in GF
Author in GF conveys to acquirer in BF
Author in BF conveys to acquirer in BF
Author in BF conveys to acquirer in GF
10 year acquisitive prescription is available;
and acquirer may cumulate author’s
possession
Only 30 acquisitive prescription is available;
but acquirer may cumulate author’s
possession
Only 30 year acquisitive prescription is
available; but acquirer may cumulate
author’s possession.
Author’s possession can be cumulated for 30
year acquisitive prescription; or acquirer can
maintain possession for 10 years and gain
ownership after 10 years.

Case. Bartlett v. Calhoun. (Tacking)

Thompson transferred land to Calhoun in 1949. Calhoun transferred to Brown in 1949, who
transferred it back to Calhoun in 1951. Brown and Calhoun went into actual corporeal
possession. In 1977, Thompson heirs brought a petitory action against Calhoun; they can’t bring
a possessory action because Calhoun is in possession, not them. No Thompsons have been in
possession for 27 years.
Calhoun’s defense is acquisitive prescription. She can’t prove 30 years because she hasn’t had it
that long. She cannot take advantage of Thompsons’ possession because they’re true owners.
(Lovett’s Rule). Calhoun can only take advantage of adverse possessors’ possession.
Can Calhoun prove 10 year acquisitive prescription? Maybe.
Why did the court reverse the lower courts and 100+ years of jurisprudence? If Calhoun had
been a universal successor, then she’d step into Brown’s shoes and take on his characteristics as
possessor. (The court uses French doctrine as authority).
Holding: “Though the particular successor can cumulate his and his author’s possessions, both
must have all the statutory characteristics and conditions required for completion of
prescription.”
Rule: A bad-faith possessor may not tack his possession onto a preceding good-faith possessor’s
possession to acquire ownership of immovable property through 10-year acquisitive
prescription.

Boundary Actions and Boundary Tacking

The right to bring an action to fix a boundary between contiguous lands is imprescriptible,
which means that it can never be lost by the passage of time.
A boundary may be fixed judicially or extrajudicially by written agreement between parties.
794 Determination of ownership according to prescription
When a party proves acquisitive prescription, the boundary shall be fixed according to
the limits established by prescription rather than titles. If a party and his ancestors in title
possess for 30 years without interrupted prescription, within visible bounds, more land than
their title called for, the boundary shall be fixed along these bounds.

Case: Secret Cove, LLC v. Thomas (within physical boundaries)

The issue in this case was whether the possessor possessing within clear boundaries. Thomases
owned land next to Secret Cove’s land and possessed some of Secret Cove’s land for 30 years.
Dad Thomas possessed the land in dispute and then the son did. Neither dad nor son had 30
years alone, but together, they were able to get the additional tract through the boundary
action.
Two boundaries were undisputed – Pearl River and the core of engineers’ markers/monuments.
Two questionable boundaries—were these sufficient boundaries to give notice of possession?:
(1) Bayou: met the requirements for visible boundary (2) Sudden change in elevation: Thomas
had marked trees and stuff … not strong but enough to constitute a visible boundary.
The Thomases exercised possession as if they owned the disputed property-giving
permission for their friends to use the property for camping, fishing, and picnicking; allowing
people to use the road to access the sand pile near Jessie Bayou; selling or giving away the sand
and gravel on the property; tying up boats and using the waterfront for recreation whenever
they pleased; and eventually expanding their commercial campground to include the property.
They took possession of the property peaceably and openly, and in all the years they used it
until this suit was filed, there is no evidence that anyone ever questioned their right to use the
property or tried to remove them from it.
When assessing the quality of the acts of possession, the court takes into account the
context of the land at stake. This was a rural tract of land. Thomas’ possession was consistent
with what a normal landowner would do. Urban land requires more. For this land, Thomas’ did
enough for possession.
Rule: A party seeking to assert acquisitive prescription of immovable property without title
must prove actual possession either inch-by-inch or within the enclosure of a visible boundary.

Computation, Interruption, Suspension, Effects and Renunciation of Prescription.

Passage of Time and Legal Rights
Liberative Prescription = prescription for non-use.
1 year action for damages to immovable property
2 year action arising due to damages sustained as a result of a crime of violence
3 year action to recover compensation for services rendered, arrearages of rent and annuities,
on money lent, on an open account, recover mineral royalties. Action by client against an
attorney to recover papers. Action against a person for abuse of a minor.
5 year Action to annul testament, to reduce excessive donation, to rescind partition and
warranty of portions, for damages for harvesting of timber without consent. Action to make
executory arrearages relating to spousal support and contribution obligations. Action on
instruments and promissory notes, whether negotiable or not.
10 year person action. Action against an architect or contractor on account of defects in
construction, renovation or repair of buildings and other works. Action to make executory
arrearages of child support.
30 year action for recognition of right of inheritance and recovery of who or part of succession.

3454 Computation of time

In computing a prescriptive period, the day that marks the commencement of
prescription is not counted. Prescription accrues upon the expiration of the the last day of the
prescriptive period, and if that day is a legal holiday, prescription accrues upon expiration of the
next day that is not a legal holiday.
3466 Effect of interruption
If prescription is interrupted, the time that has run is not counted. Prescription
commences to run anew from the last day of interruption.
3472 Effect of suspension
The period of suspension is not counted toward accrual of prescription. Prescription
commences to run again upon termination of the period of suspension.

Modes of interruption:
1. Natural interruption (only acquisitive)
a. 3465 Interruption of acquisitive prescription
Acquisitive prescription is interrupted when possession is lost.
The interruption is considered never to have occurred if the possessor
recovers possession within 1 year or if he recovers possession later by
virtue of an action brought within the year.
2. Legal interruption
a. 3462 Interruption by filing suit or by service of process
Prescription is interrupted when the owner commences action against the
possessor, or when the obligee commences action against the obligor, in a court
of competent jurisdiction and venue. If action is commenced in an incompetent
court, or in an improper venue, prescription is interrupted only as to a defendant
served by process within the prescriptive period.
3463 Duration of interruption; abandonment or discontinuance of suit
An interruption of prescription resulting from the filing of a suit in a competent
court and in the proper venue or from service of process within the prescriptive
period continues as long as the suit is pending. Interruption is considered never
to have occurred if the plaintiff abandons, voluntarily dismiss the action at any
time either before the defendant has made any appearance of record or
thereafter, or fails to prosecute the suit at trial.
A settlement and subsequent dismissal of a defendant pursuant to a transaction
or compromise shall not qualify as voluntary dismissal pursuant to this article.
3. Acknowledgment
a. 3464 Interruption by acknowledgment
Prescription is interrupted when one acknowledges the right of the person
against whom he had commenced to prescribe.
When suspension occurs and between which classes of people:
3468 Incompetents
Prescriptions runs against absent person and incompetents, including minors and
interdicts, unless is establish by legislation.
3469 Suspension of Prescription
Prescription is suspended as between: The spouses during marriage, parents and
children during minority, tutors and minors during tutorship, and curators and interdicts during
interdiction, and caretakers and minors during minority.
A “caretaker” means a person legally obligated to provide or secure adequate care for a
child, including a tutor, guardian, or legal custodian.

Chapter 10: Vindicating Ownership: Petitory and Revendicatory Actions

Petitory Actions for the Recovery of Immovable Property
CCP 3651 Petitory Action
The petitory action is one brought by a person who claims the ownership, but is not in
possession, or immovable property or of a real right therein, against another who is in
possession or who claims the ownership thereof adversely, to obtain judgment recognizing the
plaintiff’s ownership.
CCP 3652 parties; venue
A. A petitory action may be brought by a person who claims the ownership of only an
undivided interest in the immovable or real right therein, or whose asserted ownership
is limited to a certain period which has not yet expired, or which may be terminated by
an event which has not yet occurred.
B. A lessee or other person who occupies the immovable property or enjoys the real right
therein under an agreement with the person who claims the ownership thereof
adversely to the plaintiff may be joined in the action as a defendant.
C. A petitory action shall be brought in the venue provided by 80(A)(1), even when the
plaintiff prays for judgment for the fruits and revenues of the property, or for damages
CCP 3653 Proof of title; immovable
To obtain a judgement recognizing his ownership of immovable property or real right
therein, the plaintiff in a petitory action shall:
(1) Prove that he acquired ownership from a previous owner or by acquisitive prescription,
if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in
possession thereof.
When the titles of the parties are traced to a common author, he is presumed to be the
previous owner.

531 Proof of ownership of immovable

One who claims the ownership of an immovable against another in possession must
prove that he has acquired ownership from a previous owner or by acquisitive prescription. If
neither party is in possession, he need only prove a better title.
532 Common author
 When the titles of the parties are traced to a common author, he is presumed to be the
previous owner.

Proving Ownership from a Previous Owner or by Acquisitive Prescription

The plaintiff in a petitory action endeavoring to have a court recognize and enforce his
ownership or a real right in an immovable confront two options if the defendant is found to be
in possession of the disputed property:
1. The plaintiff can attempt to prove that he or his ancestors in title acquired ownership
through acquisitive prescription.
2. Or he must prove that he acquired ownership from a previous owner, to establish an
“unbroken chain of transfers from a previous owner.”

Case: Pure Oil Co. v. Skinner (proving ownership)

Pure Oil wanted to pay mineral lease royalties but didn’t know who owned the land. (Didn’t
figure it out in advance because that’s a waste if there’s no oil). The Skinners and Simontons
claimed the royalties. Simontons were in undisputed possession from 1947-1961. They hadn’t
acquired 30-year acquisitive prescription, but they’ve been in possession long enough to bring a
possessory action.
The Skinners had to bring a petitory action. Simontons had an act not translative of ownership
that they were relying on. Skinners had an unbroken chain of title to 1847. That’s not when the
Sovereign granted property—the US government granted the property to Cawthoon in 1858.
During that gap was the civil war and this parish wasn’t a parish yet. Skinners cannot prove that
Cawthoon granted the property to the Skinners’ predecessors.
The Skinners have 2 ways of proving ownership: (1) Acquisitive prescription, or (2) prove
ownership from previous owner.
Rule: A plaintiff who seeks to assert ownership of immovable property over a defendant in
possession of that property must show title good against the world without regard to the title
of the party in possession.

Titles Traced to a Common Author

In situations where ownership is disputed, and both parties have a common author of
ownership, the most ancient title prevails. However, this presumption in favor of more ancient
title only applies to parties in litigation. No res judicata effect against 3 rd parties.

Better Title When Neither Party is in Possession

When there is a common author and neither title is more ancient then courts will resort to 3
inquiries:
1. A comparison of the property descriptions and plats of survey, with primacy given to
plats.
2. Distillation of the parties’ intention from the entire language of the instrument; and
3. Last resort: Extrinsic evidence.
Revendicatory Actions for the Recovery of Movables
An innominate real action grounded in French doctrine

526 Recognition of ownership; recovery of the thing

The owner of a thing is entitled to recover it from anyone who possesses or detains it
without right and to obtain judgment recognizing his ownership and ordering delivery of the
thing to him.
 This is a revendicatory
524 Recovery of lost or stolen things
The owner of a lost or stolen movable may recover it from a possessor who brought it in
good faith at a public auction or from a merchant customarily selling similar things on
reimbursing the purchase price.
The former owner of a lost, stolen or abandoned movable that has been sold by
authority of law may not recover it from the purchaser.
530 Presumption of ownership of movable
The possessor of a corporeal movable is presumed to be its owner. The previous
possessor of a corporeal movable is presumed to have been its owner during the period of
possession.

Case: Songbryd v. Bearsville Records, Inc., (Recovery of movables)

Henry Roeland Byrd, also known as Professor Longhair, was a well-known New Orleans pianist.
Byrd’s manager, Quint Davis, and attorney, Parker Dinkins, arranged for Byrd to make several
master recordings of his music in the early 1970s. Davis and Dinkins sent the tapes of these
recordings to Bearsville Records, Inc. (defendant) to enable Bearsville to listen to them and play
them for others in the music industry. In 1975, Dinkins sent two letters to Bearsville requesting
the return of those master tapes. Bearsville did not reply or return the tapes. In 1987, after
Byrd’s death, Bearsville licensed songs from the master recordings to two other record
companies, who each released albums of Byrd’s music pulled from those tapes. In 1993,
Songbyrd, Inc. (plaintiff) was incorporated as a successor in interest to Byrd’s estate. Songbyrd
sued Bearsville in state court in Louisiana seeking to assert ownership of the master recordings,
the return of the tapes, and damages. Bearsville removed the suit to federal court due to
diversity jurisdiction and filed a motion for summary judgment. The district court granted the
motion, and Songbyrd appealed.
Rule: A precarious possessor who is not a co-owner of the property he possesses will only begin
to possess the property for himself after giving actual notice of this intent to the owner of the
property.

Chapter 11: Ownership in Indivision

480 Co-Ownership
Two or more persons may own the same thing in indivision, each having an undivided
share.
Ground Rules for Owners in Indivision
Definition of Indivision
797 Ownership in indivision; definition.
Ownership of the same thing by two or more persons is ownership in indivision. In the
absence of other provision of law or juridical act, the shares of all co-owners are presumed
equal.
Creation of Indivision
Co-ownership can be created in various ways; matter of law; intestate succession; community
property regime terminated; voluntary transfer of ownership…
Requires a clear juridical act or statement of positive law.
Division of Shares among Co-Owners
797 says shares for co-owners are presumed equal, but the presumption is rebuttable.
Rights to Fruits and Products
798 Right to fruits and products
Co-owners share the fruits and products if the thing held in indivision in proportion to
their ownership.
When fruits or products are produced by a co-owner, other co-owners are entitled to
their shares of the fruits or products after deduction of the cost of production.
Liability of a Co-Owner
799 a co-owner is liable for any damage to the thing held in indivision by his fault.
2 questions:
1. Does fault encompass only negligent actions, or does it include omissions as well?
2. Does fault under 799 entail a duty to maximize the economic interests of the other co-
owners or does it merely involve a duty not to err when it comes to the use and
enjoyment of a co-owned thing.
LA civil code does not generally impose affirmative actions on a co-owner.
Right to Use versus Use and Management.
801 Use and management by agreement
The use and management of the thing held in indivision is determined by agreement of
all the co-owners.
802 Right to use the thing
Except as provided in 801, a co-owner is entitled to use the thing held in indivision
according to its destination, but he cannot prevent another co-owner from making use of it. As
against third persons, as co-owner has the right to use and enjoy the thing as if he were the
sole owner.
803 Use and management of thing in absence of agreement
When the mode of use and management of the thing held in indivision is not
determined by an agreement of all co-owners and partition is not available, a court, upon
petition by a co-owner, may determine the use and management.
Disposition of Co-Owned Things
805 Disposition of undivided share
 A co-owner may freely lease, alienate or encumbrance of the entire thing held in
indivision. The consent of all co-owners is required for the lease, alienation or encumbrance of
the entire thing held in indivision.
Substantial Alterations or Improvements
804 Substantial alterations or improvements
Substantial alterations or substantial improvements to the thing held in indivision may
be undertaken only with the consent of all co-owners.
2 step analysis for non-consensual improvements:
1. Is alteration substantial?
2. If substantial, is the active co-owner in GF or BF?
Have to determine prevailing usage of the property.
Preservation of the Thing and Expenses of Maintenance and Management
806 Expenses of maintenance and management
A co-owner who on account of the thing held in indivision has incurred necessary
expenses, expenses for ordinary maintenance and repairs, or necessary management expenses
paid to a third person, is entitled to reimbursement from other co-owners in proportion to their
shares.
If the co-owner who incurred the expenses had the enjoyment of the thing held in
indivision, his reimbursement shall be reduced in proportion to the value of the enjoyment.

Jurisprudence
Case: Fairbanks Developmental LLC, v. Johnson & Petersen
On Canvas

Case: LeBlanc v. Scurto (classic rules of co-ownership)

Alleyway in co-ownership. One of the co-owners started to park there, which caused problems
for the other co-owners.
Every co-owner enjoys the right to use the thing according to is destination as long as the fellow
co-owners are likewise not prevented from using the them. A co-owner who wants to change
the mode of use must secure the unanimous consent of the other co-owners.
Rule: Every co-owner of property is entitled to use the property for the purposes for which it is
destined and may not block other co-owners from such use.

Case: Von Drake v. Rogers (co-ownership rights)

A dispute between two brothers owning a home in indivision. One owned 1/3 interest and the
other 2/3 interest. The 2/3 brother wanted to exclude the other. But court held he was entitled
to use use, or rent from 2/3 brother using his share.
Rule: A co-owner who exclusively occupies a jointly owned property may be liable for rent to
his co-owner, starting on the date when the co-owner demanded occupancy of the property
and was refused.

Case: Succession of Miller (When there is no agreement among co-owners)

Decedent died leaving her large family all with shares of her house on Audubon Place. The
executor placed restrictions on the usage of the home on the other co-owners. The son
objected to his rules. Trial court cited 803 and since there was no agreement, a sale would be
better, because partition was not an option.
Rule: If co-owners cannot agree on the use and management of a commonly owned property
and partition of the property is not available, a court may determine the use and management
of the property if petitioned by a co-owner.

Case: Miller v. Seven C’s Properties, LLC (necessary v. extraordinary expenses)

Miller back at it again, this time owning rural property. One co-owner wants to make repairs to
the levee system. Necessary or extraordinary?
Rule: A co-owner of property is entitled to be reimbursed by his co-owners for necessary
expenses, expenses for ordinary maintenance and repairs, and necessary management
expenses paid to a third party that he expends on the co-owned property.

Termination of Precarious Possession and Acquisitive Prescription of Immovable

Property
3478 Termination of precarious possession; commencement of prescription
A co-owner, or his universal successor may commence to prescribe when he
demonstrates by overt and unambiguous acts sufficient to give notice to his co-owner that he
intends to possess the property for himself. The acquisition and recordation of a title from a
person other than a co-owner thus may mark the commencement of prescription.
Any other precarious possessor, or his universal successor, may commence to prescribe
when he gives actual notice to the person on whose behalf he is possessing that he intends to
possess for himself.
3439 Termination of precarious possession.
A co-owner, or his universal successor, commences to possess for himself when he
demonstrates this intent by overt and unambiguous acts sufficient to give notice to his co-
owner.
Any other precarious possessor, or his universal successor, commences to possess for
himself when he gives actual notice of this intent to the person on whose behalf he is
possessing.

Case: Franks Petroleum v. Babineaux

C.C. Colvin and his brother John Colvin acquired property as co-owners in 1874. At some point,
John sold his interest in the property to C.C., but the deed was lost and never recorded.
Beginning in approximately 1900, C.C. and his heirs had been in full and complete possession of
the property, where they lived, farmed, marked boundaries, and sold timber, gravel, and sand.
In 1937 and 1938, John’s widow and all of John’s heirs except one of their children signed
quitclaim deeds to C.C.’s heirs, acknowledging John’s sale of his interest in the property to C.C.
In 1937, a judgment of possession was rendered in succession proceedings for C.C. and his wife,
in which their heirs were recognized as the owners of the whole interest in the property. In
1950, the two children of John’s one child who had not signed a quitclaim deed were
specifically told by C.C.’s heirs that C.C.’s heirs owned the property outright and that, as John’s
grandchildren, they did not own any interest in the property. Franks Petroleum, Inc. (plaintiff)
had gas leases on the property and deposited royalties from those leases with the court for a
determination of who was entitled to the royalties. The court identified C.C.’s heirs as the
Group A defendants (defendants), and John’s two grandchildren as the Group B defendants
(defendants). The court held that C.C.’s heirs were the full owners of the property, having
acquired full ownership by acquisitive prescription. John’s grandchildren appealed.
Rule: A co-owner of commonly owned property may acquire full ownership of the property
through acquisitive prescription only if he gives the other co-owners notice of this intention
through overt and unambiguous acts.

Termination of Co-Ownership through Partition

Availability of a Partition
807 Right to partition; exclusion
No one may be compelled to hold a thing in indivision with another unless the contrary
has been provided by law or juridicial act.
808 Partition excluded
Partition of a thing held in indivision is excluded when its use is indispensable for the
enjoyment of another thing owned by one or more of the co-owners.

Case: Ivanhoe Canal v. Bunn (indispensable use)

Dispute between land owners and Texaco. Texaco needed use of canal for their shipyard. Court
found use of canal was indispensable to the enjoyment of Texacos lease on the property.
Rule: Partition of co-owned property is not allowed when the use of that property is
indispensable to the use and enjoyment of another thing owned by one or more of the co-
owners.

Methods of Partition
Judicial partition = partition by judgment
Voluntary partition = by agreement
1. Partition in kind is a physical division of the thing subject to partition
810 Partition in Kind
The court shall decree partition in kind when the thing held in indivision is susceptible to
division into as many lots of nearly equal value as there are shares and the aggregate value of
all lots is not significantly lower than the value of the property in the state of indivision.

2. Partition by licitation is when the thing is sold at public auction

3. Partition by private sale. 811 gives courts the discretion to avoid public auction and use
private sale instead.

Effects of Partition

Case: Ark-La-Miss Timber Co., Inc v. Wilkins

Co-owners of 1000+ acres. One co-owner built a cabin to live in at his own expense. The other
co-owners used it too. After dispute they sought to partition. The court determined that it
could not be partitioned in kind because of complications with the cabin, and acesss roads etc.,
fairest would be partition by licitation.
Rule: When partition of commonly owned property is sought, Louisiana law favors partition in
kind, unless the property is indivisible by nature or cannot be reasonably divided.

Chapter 12 Ususfruct
“Life estate” in common law states.

Dismemberments of Ownership: The Place of Usufruct in the Civil Code

476 Rights in Things
One may have various rights in things:
1. Ownership;
2. Personal and predial servitudes; and
3. Such other real rights as the law allows.
534 Personal servitude
A personal servitude is a charge on a thing for the benefit of a person. There are tree
sorts of personal servitudes: usufruct, habitation, and right of use.
646 Predial servitude; definition
A predial servitude is a charge on a servient estate for the benefit of a dominant estate.
The two estates must belong to different owners.

General Principles
Definition and Essential Characteristics
535 Usufruct
Usufruct is a real right of limited (max 30 years) duration on the property of another.
The features of the right vary with the nature of the things subject to it as consumables and
nonconsumables.

Advantages of a Usufruct
Usufruct is the civil law property institution that permits a temporal division of building blocks
of ownership. It allows one person, the usufructuary, to use and enjoy the thing for a limited
period of time, while making sure that another person – the naked owner – will be able to
enjoy full ownership of the thing once the specified period of time comes to an end. Created by
wills and other juridical acts.

Things Susceptible of Usufruct and Classification of Usufruct

1. Usufruct may be established on all kinds of things: movable or immovable, corporeal or
incorporeal. Must be capable of providing an economic advantage or enjoyment.
2. Usufruct is an incorporeal things. If usufruct is on an immovable then it will be an
incorporeal immovable, if movable will be incorporeal movable.
Establishment of Usufructs
544 Methods of establishing usufruct; things susceptible of usufruct.
Usufruct may be established a juridical act either inter vivos or mortis causa, or by
operation of law. The usufruct created by juridical act is called conventional; the usufruct
created by operation of law is called legal.
Usufruct may be established on all kinds of things, movable or immovable, corporeal or
incorporeal.

Conventional usufruct will be governed by the agreement (juridical act) that creates them.
 Testamentary usufruct is created by a testator who seeks to lave at his death a
temporary dismemberment of ownership over some of all of his patrimony
o Comes into exsistence as result of the grantor of the usufruct.

Legal usufruct is created by operation of law. (most common)

 Marital portion is when one spouse dies rich in comparison with the surviving spouse,
the surviving spouse is entitled to claim a fraction of the deceased spouses’ succession.
890 Usufruct of surviving spouse
If the deceased spouse is survived by descendants, the surviving spouse shall have a
usufruct over the decedent’s share of the community property to the extent that the decedent
has not disposed of it by testament. This usufruct terminates when the surviving spouse dies or
remarries, whichever occurs first.
Surviving Spouse’s One Half Share in Full Usufruct of the surviving spouse
Ownership Descendants’ One Half Share in Naked
Ownership

The Usufructuary’s Right of Enjoyment as Applied to Consumables and Nonconsumables

536 Consumable things (formerly “imperfect usufruct”)
Consumable things are those that cannot be used without being expended or
consumed, or without their substance being changed, such as money, harvest agricultural
products, stocks of merchandise, foodstuffs, and beverages.
537 Nonconsumable things (formerly “perfect usufruct”)
Nonconsumable things are those that may be enjoyed without alteration of their
substance, although their substance may be diminished or deteriorated naturally by time or by
the use to which they are applied, such as lands, houses, shares of stock, animals, furniture and
vehicles.

538 Usufruct of consumable things

If the things subject to the usufruct are consumables, the usufructuary becomes the
owner of them. He may consume them, alienate or encumber them as he sees fit. At the
terminiation of the usufruct he is bound either to pay to the naked owner the value that the
things had at the commencement of the usufruct or to deliver to him things of the same
quantity or quality.
539 Usufruct of nonconsumable things
 If the things subject to the usufruct are nonconsumables, the usufructuary has the right
to possess them and to derive the utility, profits and advantages that they may produce, under
the obligation of preserving their substance.

Case: Leury v. Mayer (consumables v. nonconsumables)

Plaintiff sought to be recognized as the owner of an undivided interest in 20 shares of capital,
and for a partition by licitation of the shares. The stocks were community property and on the
death of Ms. Leury inherited by the plaintiff. Court held them to be noncomsumables and that
he did not have legal authority to sell them.
Rule: Shares of stock are nonconsumable things for the purposes of a usufruct.

Limits on Contractual and Testamentary Freedom; Shared and Successive Usufructs

545 Modifications of usufruct
Usufruct may be established for a term or under a condition and subject to any
modification consistent with the nature of usufruct.
The rights and obligations of the usufructuary may be modified by agreement unless
modifications is prohibited by law or by the grantor in the act of establishing the usufruct.
546 Usufruct in favor of successive usufructuaries
Usufruct may be established in favor of successive usufructuaries.
547 Usufruct in favor of several usufructuaries
When the usufruct is established in favor of several usufructuaries, the termination of
the interest of one usufruct inures to the benefit of those remaining, unless the grantor has
expressly provided otherwise.
548 Existence of usufructuaries
When the usufruct is established by an act inter vivos, the usufructuary must exist or be
conceived at the time of the execution of the instrument. When the usufruct is established by
an act mortis causa, the usufructuary must exist or be conceived at the time of death of the
testor.
CCP 1520 Prohibited Substitutions
A disposition that is not in trust by which a thing is donated in full ownership to a first
done, called the institute, with a charge to preserve the thing and deliver it to a second done,
called the substitute, at the death of the institute, is null with regard to both the institute and
the substitute.

Divisibility and Partition of the Usufruct and Naked Ownership

541 Divisibility of Usufruct
Usufruct is susceptible to division, because its purpose is the enjoyment of advantages
that are themselves divisible. It may be conferred on several persons in divided or undivided
shares and it may be partitioned among usufructuaries.
541 cmt b When a grantor creates a usufruct in which the usufructuary interests take form of
“divided portions,” rather than undivided interests, the termination of the interest of each
beneficiary benefits the naked owner.
542 Divisibility of naked ownership
The naked ownership may be partitioned subject to the rights of the usufructuary.
543 Partition of the property held in kind or by licitation.
When property is held in indivision, a person having a share in full ownership may
demand partition of the property in kind of by licitation, even though there may be other
shares in naked ownership and usufruct.
A person having a share in naked ownership only or in usufruct only does not have this
right, unless a naked owner of an undivided share and a usufructuary of that share jointly
demand partition in kind of by licitation, in which event their combined shares shall be deemed
to constitute a share in full ownership.

Rights, Powers, and Obligations of the Usufructuary and Naked Owner during the
Usufruct
Four important principles:
1. One of the the usufructuary’s most basic rights is to enjoy all the fruits of the property
subject to the usufruct. Consequently, the usufructuary will have no obligation to
account to the naked owner for civil or natural fruits that accrue during the existence of
the usufruct
2. The usufructuary is required to manage all nonconsumables as a prudent administrator.
This duty to act as a prudent administrator underscores many specific rules.
3. The usufructuary owns the consumables subject to the usufruct and enjoys much
greater freedom of disposition with respect to them. However, the usufructuary must
still “account” for the value of consumables at the end of the usufruct.
4. A naked owner is ultimately entitled to receive nonconsumables at the termination of
the usufruct without any unusual diminution in the their substance.

Hard Case: The Usufruct of Timberlands

Case: Kennedy v Kennedy (Usufruct of Timberland)

Can an usufructuary harvest timber from a previously unmanaged tract of land? Is that prudent
administration? Depends on many factors, the prudent administrator standard is flexible.
Under 562 the naked owner is entitled to the prudent to the proceeds of the prudent admin
plan.
Dissent disagrees bc it wasn’t a timber farm before the usufructuary.
Rule: Clear-cutting a tract of timberland may amount to the prudent administration of that
timberland, depending on the particular conditions of the land in question.

Usufruct of Shares in a Corporation

Problem pg 805

The Power to Dispose of Nonconsumables

545 Modifications of usufruct
 Usufruct may be established for a term under a condition, and subject to any
modification consistent with the nature of the usufruct.
The rights and obligations of the usufructuary may be modified by agreement unless
modification is prohibited by law or by the grantor in the act establishing the usufruct.

Ordinary and Extraordinary Repairs; Prudent Administration

Case: Walker v. Holt (who is liable for repairs in a usufructuary?)

A worker was injured while delivering gas for his employer. The worker and workers comp
carrier sued the parties who had interests in the land. One of the owners had one half interest
and a usufruct over the other half.
The court held that the rights and obligations of the usufructuary and the naked owner leads to
the conclusion that that the usufructuary, not the naked owner, is obligated to maintain the
property subject to the usufruct.
Rule: The usufructuary is responsible for ordinary maintenance and repairs for the property
subject to the usufruct, and the naked owner is responsible for extraordinary repairs

Case: Berthelot v. Pendergast (naked owners have responsibility for extraordinary repairs)
Dispute between widow and step children about widows failure to act as prudent administrator
of her usufruct of the family home. Step children argued that widows failure to act as prudent
admin severely damaged the house, but these were extraordinary repairs and as naked owners
it was their responsibility to repair.
Rule: A usufructuary is obligated to use a property subject to a usufruct as a prudent
administrator and make ordinary repairs but is not obligated to make extraordinary repairs,
which are the responsibility of the naked owner.

Substantial Alterations or Improvements – Ameliorative Waste.

558 Improvements and alterations

The usufructuary may make improvements and alterations on the property subject to
the usufruct at his cost and with the written consent of the naked owner. If the naked owner
fails or refuses to give his consent, the usufructuary may, after notice to the naked owner and
with the approval of the court, make at his cost those improvements and alterations that a
prudent administrator would make.
Cmt A allows the usufructuary to make at his cost, after notice to the owner with the approval
of the proper court, those improvements and alterations that a prudent administrator would
make.

The Obligation to Give Security: Legal and Testamentary Usufruct

571 Security
The usufructuary shall give security that he will use the property subject to the usufruct
as a prudent admin and that he will faithfully fulfill all obligations imposed on him by law or by
the act that established the usufruct unless security is dispensed with. If security is required,
the court may order that it be provided in accordance with law.
Rights and Obligations of Naked Owner
603 Disposition of the naked ownership; alienation or encumbrance of the property
The naked owner may dispose of the naked ownership; but he cannot thereby affect the
usufruct.
604 Servitudes
The naked owner may establish real rights on the property subject to the usufruct,
provided that it may be exercised without impairing the usufructuary’s rights.
605 Toleration of enjoyment
The naked owner may not interfere with the rights of the usufructuary.
606 Improvements
The naked owner may not make alterations or improvements on the property subject to
the usufruct.

Termination of the Usufruct

An usufruct has a max of 30 years, cannot be indefinite.
607 Death of the usufructuary
The right of usufruct expires upon the death of the usufructuary.
Juridical Persons – usufruct will terminate when:
1. The juridical person is dissolved or liquidated
2. Upon lapse of 30 years
Terms and conditions - When a usufruct is for a term or subject to a condition, the usufruct will
terminate “upon the expiration of the term or the happening of the condition”
613 Loss, Extinction or Destruction
The usufruct of non-consumables terminates by the permanent and total loss,
extinction, or destruction through accident, force majeur or decay of the property subject to
the usufruct
614 Fault of third person
When an loss, extinction, or destruction of property subject to a usufruct is attributable
to the fault of a third person, the usufruct does not terminate but attaches to any claim or
damage and proceeds therefrom.
Enforcement of Encumbrances – When property subject to the usufruct has already been
encumbered prior to the creation of the usufruct and the encumbrance is enforced after the
creation of the usufruct (for example by foreclosure of a mortgage), the usufruct will terminate.
Prescription of Nonuse – The usufruct will terminate by the prescription of nonuse if the right
isn’t exercised by the usufructuary during a period of 10 years.
Confusion – A usufruct also terminates when the usufruct and the naked ownership of the
thing subject to the usufruct “are united in the same person.”
Waste, Unauthorized Alienation, Neglect or Abuse
623 Abuse of enjoyment; consequences
The usufruct may be terminated by the naked owner if the usufructuary commits waste,
alienates thing without authority, neglects to make ordinary repairs, or abuses his enjoyment in
any other manner.
626 Renunciation
A usufruct terminates by an express written renunciation.
A creditor of the usufructuary may cause to be annulled a renunciation made to his
prejudice.

Real Subrogation
Involuntary Changes in Form
615 Change in form of property
When property is subject to a usufruct changes form without an act of the usufructuary,
the usufruct does not terminate even though the property may no longer serve the use for
which it was originally destined.
When property subject to a usufruct is converted into money or other property without
an act of the usufructuary, as in a case of expropriation of an immovable or liquidation of a
corporation, the usufruct terminates as to the property converted and attaches to the money
or other property received by the usufructuary.
Voluntary Sale or Exchange
616 Sale or exchange of the property; taxes
When property subject to usufruct is sold or exchanged, whether in an action for
partition or by agreement between the usufructuary and the naked owner or by a usufructuary
who has the power to dispose of the nonconsumable property, the usufruct terminates as the
the nonconsumable property sold or exchanged, but the usufruct attaches to the money or
other property received by the usufructuary, unless parties agree otherwise
Insurance proceeds
617 Proceeds of insurance
When proceeds of insurance are due on account of loss, extinction, or destruction of
property subject to usufruct, the usufruct attaches to the proceeds. If the usufructuary or the
naked owner has separately insured his interest only, the proceeds belong to the insured party.
Security for proceeds
The bnaked owner may demand within one from receipt of the proceeds by the usufructuary
that the usufructuary give security for the proceeds.
Does not apply to corporeal movables, or to property disposed of by the usufructuary pursuant
to the power to dispose of nonconsumables.

Case: Johnson v. Laney (Usufruct attaches to insurance proceeds)

Dispute of insurances proceeds from house destroyed in Katrina. Usufructuary wanted
proceeds. The court held the usufructuary attached to the proceeds citing 617
Rule: A usufruct will attach to any insurance proceeds due on account of the loss or destruction
of the property that is the subject of the usufruct.

Consequences of Termination; Accounting

When usufruct of a nonconsumable terminates, all the rights revert to the naked owner
When usufruct of a consumable terminates, the usufructuary is required to deliver to the naked
owner things of the same quantity or quality or to deliver the value they had at the
commencement of the usufruct.
627 Right of retention
Upon termination of the usufruct, the usufructuary or his heirs have the right to retain
possession of the property until reimbursement for all expenses and advances for which they
have recourse against the owner or his heirs.

Chapter 14: Conventional Predial Servitudes

646 Predial Servitude
A predial servitude is a charge on a servient estate for the benefit of a dominant estate.
The estate must belong to different owners.

Classification of Conventional Servitudes

1. Affirmative and negative servitudes
2. Apparent and nonapparent servitudes

Affirmative and Negative Servitudes

706 Servitudes; affirmative or negative
Personal servitudes are either affirmative or negative.
Affirmative servitudes are those that give the right to the owner of the dominant estate
to do a certain thing on the servient estate. Such are the servitudes of right of way, drain, and
support.
Negative servitudes are those that impose on the owner of the servient estate the duty
to abstain from doing something on his estate. Such are the servitudes of prohibition of
building and of the use of an estate as a commercial or industrial establishment

Apparent and Nonapparent Servitudes

707 Servitudes; apparent or nonapparent
Predial servitudes are either apparent or nonapparent. Apparent servitudes are those
that are perceivable by exterior signs, works, or constructions, such as a roadway, window in
common wall, or an aqueduct
Nonapparent servitudes are those that have no exterior sign of their existence; such as
the prohibition of building on an estate or of a building above a particular height.

Interpretation Rules
730 Interpretation of servitude
Doubt as the exsistence, extent, or manner of exercise of a predial servitude shall be
resolved in favor of the servient estate.
733 Interpretation; benefit of dominant estate
When the right granted be of a nature to confer an advantage on estate, it is presumed
to be a predial servitude.
1. Magic language, (successors and its assigns)
2. For benefit of land,
3. purpose
734 Interpretation; convenience of a person
When the right granted is merely for the convenience of a person, it is considered to be
a predial servitude, unless it is acquired by a person as owner of an estate for himself, his heirs
and assigns.

Case: Sustainable Forests, LLC v. Harrison

Sustainable Forests, L.L.C. believed that it had a servitude for a right of passage over land
owned by the Harrisons. Sustainable sued the Harrisons to prevent the Harrisons from
interfering with Sustainable’s and Sustainable’s lessee’s use of the right of way. Sustainable
claimed that the servitude had been created by contract between Sustainable’s and the
Harrisons’ predecessors. This document was created in 1963 and granted Sustainable’s
predecessor an easement for the construction and maintenance of a forest road across the land
that the Harrisons later came to own. The document did not mention or tie the easement to a
dominant estate, however. At trial, the Harrisons filed an exception of no right of action. The
trial court held that Sustainable did have a servitude for access to the forest road but that it did
not include the right for Sustainable’s lessee to use the road to hunt. Sustainable appealed.
Rule: A right of passage over a servient estate that is not tied to a dominant estate is a personal
servitude.

Servitudes Intended to Restrain Competition

Case: RCC Properties, LLC v. Wenstar Properties, L.P. (interpretation of servitude)

Agreement stated that upon sale of the property a predial servitude would be put into place
limiting the kind of fast food restaurant they could build. However the court found the language
of the servitude to be unclear and ambiguous. But what was more important was that the sale
wouldn’t have happened without the servitude, and therefore deemed the servitude in favor of
the dominant estate to be valid.
Rule: A contractual servitude that is properly recorded in the public record is binding on
subsequent purchasers who acquire the servient estate, without further mention of the
restriction in the act conveying the servient estate. See

Conventional Servitudes Established by Title

Case: Franks Investment Co, LLC v. Union Pacific Railroad (court cannot interfere in some cases)
The Levy family owned a plantation in Louisiana. In 1923, the Levy family deeded a strip of land
that would bisect the plantation to the Texas and Pacific Railway Company (T&P) for railroad
use but reserved certain rights.
Rule: A court may not infer the creation of a predial servitude of passage in a deed if elsewhere
in the deed the parties created a predial servitude through express language.
Conventional Predial Servitudes Acquired by Destination of the Owner and by
Acquisitive Prescription
Destination of the owner
741 Destination of the owner
Destination of the owner is a relationship established between two estate owned by the
same owner that would be a predial servitude if the estates belonged to different owners.

Case: Naramore v. Aikman

Naramores filed suit against the Aikmans for recognition of a servitude and to prevent the
Aikmans’ interference with access. After a trial involving about 20 witnesses, the court found
that the Arnolds had created a servitude of passage. 
Rule: When two or more estates with the same owner contain what would be a perceivable
servitude of access if the estates had different owners, and then the estates cease to belong to
the same owner, an apparent predial servitude results unless the owner expressly provided to
the contrary.

Acquisitive Prescription
Apparent servitudes can be established by acquisitive prescription.
Nonapparent servitudes do not prescribe because they cannot be openly possessed or enjoyed.
742 Acquisitive prescription
The laws governing acquisitive prescription of immovable property apply to apparent
servitudes. An apparent servitude may be acquired by peaceable and uninterrupted possession
of the right for 10 years in good faith and by just title; it may also be acquired by uninterrupted
possession for 30 years without title or good faith.

Case: Palomeque v. Prudhomme

Palomeque (plaintiff) and chef Paul Prudhomme (defendant) owned property in New Orleans
that shared a common wall. Palomeque owned a condominium on the second floor of a
building, and Prudhomme owned a one-story building next door. There were windows in the
common wall on the second-floor level of Palomeque’s building that had been installed when
that building was converted to condominiums. Prudhomme applied for a permit to add a
second-story addition to his property, which would require blocking up Palomeque’s windows
in the common wall.
Rule: Servitudes of light and view are apparent servitudes that may be established by
acquisitive prescription.

Rights and Duties of the Parties to the Servitude

Accessory Rights
743 Accessory Rights
Rights that are necessary for the use of a servitude are acquired at the time the
servitude is established. They are exercised in a way least inconvenient for the servient estate.
Rights and Obligations of the Dominant Estate Owner
745 Right to enter into the servient estate
The owner of the dominant estate has the right to enter with his workmen and
equipment into the part of the servient estate that is needed for the construction or repair of
works required for the use and preservation of the servitude. He may deposit materials to be
used for the works and the debris that may result under the obligation of causing the least
possible damage and of removing them ASAP.

The Servient Estate Owner

748 Noninterference by the owner of the servient estate
The owner of the servient estate may do nothing tending to diminish or make more
inconvenient the use of the servitude.
If the original location has become more burdensome for the owner of the servient
estate, or if it prevents him from making useful improvements on his estate, he may provide
another equally convenient location for the exercise of the servitude which the owner of the
dominant estate is bound to accept. All expenses of relocation are borne by the owner of the
servient estate.
Case: Hymel v. St John The Baptist Parish School
Willie Hymel owned land and divided it into two parcels. He sold one parcel to the St. John the
Baptist Parish School Board (the school board) (defendant) and kept the other for himself. In
the sale of the land to the school board, Hymel included a servitude over the school board’s
land in favor of his land. The servitude created a 25-foot right of way from Hymel’s land over
the school board’s land. The school board eventually built a school on its land, and Hymel’s land
passed to his heir, Lynn Hymel (plaintiff).
Rule: The owner of the servient estate in a servitude must do nothing tending to diminish the
use of the servitude or make it more inconvenient for the dominant estate owner.

Servitude Relocation
If the original location has become more burdensome for the owner of the servient estate, or if
it prevents him from making useful improvements on his estate, he may provide another
equally convenient location for the exercise of the servitude which the owner of the dominant
estate is bound to accept. All expenses of relocation are borne by the owner of the servient
estate. 748 para 2

Extinction of Conventional Predial Servitudes

Destruction of Dominant or the Servient Estate
751 Destruction of dominant or of servient estate
A predial servitude is extinguished by the permanent and total destruction of the
dominant estate or of the part of the servient estate burdened with the servitude.
752 Reestablishment of things
If the exercise of the servitude becomes impossible because the things necessary for its
exercise have undergone such a change that the servitude can no longer be used, the servitude
is not extinguished; it resumes its effect when things are reestablished so that they may again
be used, unless prescription has accrued.

Prescription for Nonuse

753 Prescription for nonuse
A predial servitude is extinguished by nonuse for 10 years.
754 Commencement of nonuse
Prescription of nonuse begins to run for affirmative servitudes from the date of their last
use, and for negative servitudes from the date of the occurrence of an event contrary to the
servitude.
An event contrary to the servitude is such as the destruction of works necessary for its
exercise or the construction of works that prevent its exercise.

Case: Ashland Oil Co., v. Palo Alto, Inc

Ashland acquired servitudes from landowners for the installation and operation of a 26-mile-
long gas pipeline. The contract for the servitude over Palo Alto’s land designated that the
servitude was to be used exclusively for the transportation of CO2 and provided for a 12-month
term for prescription of the servitude for nonuse. Ashland built its pipeline and began using it
to transport CO2. Within a few years, however, Ashland no longer had a need to transport CO2
through the pipeline. In an effort to prevent the servitude from being prescribed for nonuse,
Ashland moved CO2 through the pipeline and vented it into the air every 11 and a half months
for a few years in a row. When Ashland later again began using the servitude for the actual
transportation of CO2, a dispute arose between Ashland and Palo Alto as to whether the
servitude had ended from nonuse. The trial court held that the servitude had been prescribed
from nonuse during the period when Ashland had ceased actual transportation of CO2 in the
pipeline. Ashland appealed.
Rule: If a servitude has a designated exclusive manner of use, the use of that servitude in a
manner that is inconsistent with the designated use will not serve to interrupt a prescription for
nonuse.

Chapter 13: Natural and Legal Servitudes

The Essential Characteristics and Kinds of Predial Servitudes
646 Predial servitude; definition.
A predial servitude is a charge on a servient estate for the benefit of a dominant estate.
The two estates must belong to different owners.
1. Relationship between two different estates.
2. Must be owned by different persons.
3. Creates a “charge” on the servient estate.
4. Confers a serious benefit for the dominant estate / Utility requirement = benefit to
dominant
647 Benefit to dominant estate
 There must be a benefit to the dominant estate. The benefit need not exist at the time
the servitude is created; a possible convenience or a future advantage suffices to support a
servitude.
There is no predial servitude if the charge cannot be reasonably expected to benefit the
dominant estate.
5. Proximity, must be close enough in proximity that some real benefit to the dominant
estate is discernable
6. Predial servitudes are potentially perpetual
7. Inseparable from the land benefited or burdened by the servitude
650 Inseparability of servitude
A. A predial servitude is inseparable from the dominant estate and passes with it. The
right of using the servitude cannot be alienated, leased or encumbered separately
form the dominant estate.
B. A predial servitude continues as a charge on the servient estate when ownership
changes.
8. Predial servitudes are indivisible
652 Indivisibility of servitude
A predial servitude is indivisible. An estate cannot have upon another estate part of a
right of way, or of view, or of any other servitude, nor can an estate be charged with a part of
the servitude.
The use of a servitude may be limited to certain days or hours; when limited, it is still an
entire right. A servitude is due to the whole of the dominant estate and to all parts of it; if this
estate is divided, every acquirer of a part has the right of using the servitude in its entirety.
9. A predial servitude cannot impose affirmative duties on the owner of the servient estate
651 Obligations of the owner of the servient estate
The owner of the servient estate is not required to do anything. His obligation is to
abstain from doing something on his estate or to permit something to be done on it. He may be
required by convention or by law to keep his estate in suitable condition for the exercise of the
servitude due to its dominant estate. A servitude may not impose upon the owner of the
servient estate or his successors the obligation to pay a fee or other charge on the occasion of
an alienation, lease or encumbrance of the servient estate.

3 Distinct kinds of predial servitudes

654 Kinds of predial servitudes
Predial servitudes may be natural, legal, voluntary or conventional. Natural servitudes
arise from the natural situation of estates; legal servitudes are imposed by law; and voluntary
and conventional servitudes are established by juridical act, prescription, or destination of the
owner.

Natural Servitudes
655 Natural drainage
An estate situated below is the servient estate and is bound to receive the surface water
that flow naturally from the dominant estate situated unless an act of man has created the
flow.
Identifying the Dominant and Servient Estate
Depends on many factors for the purposes of naturally occurring drainage. Elevation of land,
etc.

Scope of the Charge

The servitude of drain only applies to surface waters that flow naturally from the dominant
estate onto the servient estate. It does not apply to water flows resulting from human
intervention.

Rights and Duties of the Owners of the Two Estates

656 Obligations of the owners
The owner of the servient estate situated below may not do anything to prevent the
flow of the water. The owner of the dominant estate situated above may not do anything to
render the servitude more burdensome.

Termination of the Natural Servitude of Drain

3rd party acquisition of the dominant or servient estate does not terminate a natural servitude,
because the servitude inures in the physical relationship between the two estates and this is
inseparable from the land.

Remedies for Breach of Servitude of Drain

1. Injunctive relief
a. Courts prefer injunction, and is available as a matter of right
2. Damages
a. Two issues commonly arise
i. Whether the liability standard should require fault.
ii. Whether liberative prescription should run in 1 or 10 years.

Legal Servitudes
Limitation on Ownership
659 Legal servitude
Legal servitudes are limitations on ownership established by law for the benefit of the
general public or for the benefit of particular persons.

Obligations of the Neighborhood

667 – 669 establish the obligations of the neighborhood. These provisions regulate “spillover
effects” – the negative impacts of one landowner’s activities can have on a neighboring
property owner’s enjoyment that usually fall short of an actual physical invasion of property
under law of trespass and that are not regulated by the natural servitude of drain.

Case: Parish of East Feliciana v. Guidry

Jeremy and Amber Guidry (defendants) built a motocross track on their rural property for
recreational use. Approximately one year later, the Guidrys built a larger track and began
operating it as a commercial motocross enterprise. Motorcycles would practice and race at the
track, sometimes dozens of them at a time, most days from the morning until dark. The parish
of East Feliciana (plaintiff) received many complaints from the Guidrys’ neighbors (plaintiffs)
about the incredible noise and pervasive dust that the motocross track caused in the area. The
parish eventually filed a petition for a preliminary and permanent injunction to stop the Guidrys
from operating the commercial track, alleging that its operation violated the parish’s noise and
nuisance ordinances. Numerous neighbors joined the parish’s suit as intervenors, also seeking
to enjoin the operation of the track as a nuisance. The trial court granted the preliminary
injunction, and the case went to trial. At trial, the evidence showed that the noise generated by
the motorcycles at the track was almost constant, very loud, and incredibly irritating to the
Guidrys’ neighbors. The trial court granted the permanent injunction, and the Guidrys
appealed.
Rule: A landowner is entitled to exercise his rights of ownership, even in a manner that causes
some inconvenience to others, but is not allowed to do real damage to his neighbors through
his actions.
Case: Yokum v. Bournon Street LLC
Yokum owned and resided in a house in New Orleans in the French Quarter. Yokum’s house
was near 615-617 Bourbon Street, which was owned by 615 Bourbon Street, L.L.C. (615
Bourbon) (defendant). This property was leased by 615 Bourbon to another company, which
operated a bar at the location. The bar offered loud, live music on most days from the
afternoon until 3:00 in the morning. Yokum alleged that the bar’s live music violated the New
Orleans noise ordinances and prevented the quiet enjoyment of his home. Yokum sued 615
Bourbon, seeking damages and injunctive relief. In response to the suit, 615 Bourbon alleged
that it could not be held liable for the actions of its lessee and sought summary judgment. The
trial court granted summary judgment to 615 Bourbon, and the court of appeal affirmed this
judgment. The Louisiana Supreme Court granted certiorari to address the issue of whether a
lessor could be held responsible for the actions of its lessee under Article 667 of the Louisiana
Civil Code.
Rule: A landowner may be held responsible for activities on his land that cause damage to his
neighbor, even if those activities were undertaken by the landowner’s tenant or lessee.

Encroaching Buildings
670 Encroaching building
When a landowner constructs in GF a building that encroaches on an adjacent estate
and the owner of that estate does not complain within a reasonable time after he knew or
should have known of the encroachment or in any event complains only after the construction
is substantially completed the court may allow the building to remain. The owner of the
building acquires a predial servitude on the land occupied by the building upon payment of
compensation for the value of the servitude taken and for any other damage that the neighbor
has suffered.
Four inquiries from 670:
1. Whether the encroaching building was constructed or maintained in GF
 2. Whether to the would-be servient landowner complained within a reasonable time or
waited to complain until after substantial completion of the building
3. What the physical dimensions of the servitude under this provision should be
4. What the amount of compensation owed for the servitude claimed should be.

Case: Bushnell v. Artis

The Bushnells and Artis were neighbors on adjoining lots. Shortly after the Bushnells purchased
their lot, they erected a chain-link fence on what they believed was the border between their
property and the lot next door. In fact, however, the fence was located 12 feet into the
Bushnells’ property. After Artis purchased her land, she maintained her land up to the fence
line and eventually built a house on the lot. Two years after Artis’s house was completed, the
Bushnells apparently became aware of the incorrect location of the fence line. A boundary
dispute arose between the neighbors, and the Bushnells sued Artis. The trial court determined
that the Bushnells owned the disputed strip of land and that Artis’s house was in fact
encroaching three feet onto the Bushnells’ property. The trial court also found, however, that
Artis had constructed her house in good faith and that the Bushnells had failed to complain
about the encroachment for two years after the house had been built. The trial judge ordered
that the Artis’s house could remain and that Artis would have a servitude over the Bushnells’
property in a straight line located three feet into the Bushnells’ property from the edge of
Artis’s roof line. The judge ordered Artis to pay the Bushnells’ $1,500 for this servitude. The
Bushnells appealed.
Rule: In Louisiana, a landowner who constructs in good faith a building that encroaches on
another’s land may be entitled to a servitude over the encroached land depending upon the
circumstances of the case.

Right of Passage for Enclosed Estates

689 Enclosed estate; right of passage
The owner of an enclosed estate that has no access to a public road or utility may claim
a right of passage over neighboring property to the nearest public road or utility. He is bound to
compensate his neighbor for the right of passage acquired and to indemnify his neighbor for
the damage he may occasion.
New or additional maintenance burdens imposed upon the servient estate or
intervening lands resulting from the utility servitude shall bethe responsibility of the owner of
the dominant estate.
690 Extent of passage
The right kind of passage for the benefit of the enclosed estate shall be suitable for the
kind of traffic or utility that is reasonably necessary for the use of the estate.
695 Relocation of servitude
The owner of the enclosed estate has no right to the relocation of this servitude after it
is fixed. The owner of the servient estate has the right to demand relocation of the servitude to
a more convenient place at his own expense, provided that it affords the same facility to the
owner of the enclosed estate.

Case: Dickerson v. Coon

Dickerson owned an enclosed parcel of land. Coon owned an adjoining tract that offered the
closest access point to a public road from Dickerson’s land. Dickerson sued Coon to obtain a
right of passage over Coon’s land. Dickerson suggested two options for the access. The first was
over an existing logging road, and the second would run in the same general area but would be
shorter overall. Coon did not dispute the right of passage but asked that it be granted from
another section of his land, nearer to a border of his property. This proposed access would be
substantially longer and more costly, but Coon claimed that Dickerson’s proposed access routes
would bisect Coon’s land, disturb hunting, and cut through a desirable potential home site. The
trial court granted Dickerson a right of passage for the shortest-route option and did not award
any damages to Coon. Coon appealed.
Rule: A right of a passage for an enclosed estate will be granted over the shortest route to a
public road unless the use of a different route is supported by weighty considerations.

When Enclosed Estate Owners Are Not Entitled to a Right of Passage

693 Enclosed state; voluntary act
If an estate becomes enclosed as a result of a voluntary act or omission of its owner, the
neighbors are not bound to furnish a passage to him or his successors.
694 Enclosed estate; voluntary alienation or partition
When in the case of partition, or a voluntary alienation of an estate or of a part thereof,
property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by
the owner of the land on which the passage was previously exercised, even if it is not the
shortest route to the public road or utility, even if the act of alienation or partition does not
mention a servitude of passage.

Case: Stucky v. Collins

Henry Willis divided land that he owned into lots. He sold a landlocked lot to Robert Stuckey.
Because Stuckey’s parcel was enclosed, Willis granted Stuckey a servitude of passage over land
Willis still owned to access a public road. Willis constructed the access road between Stuckey’s
lot and the public road, and Stuckey used it to access his land. No other points of access were
realistically possible from Stuckey’s land across Willis’s land to the public road because the rest
of Willis’s land was swampy. This access driveway, however, crossed a narrow strip of land
directly abutting the highway that belonged not to Willis but to Richard Collins (defendant),
before crossing onto Willis’s land and eventually to Stuckey’s land. Collins was aware of this and
initially did not protest this use of his land. Collins later installed a barrier with a lock at this
access point but gave Stuckey a key and allowed Stuckey to keep accessing his land over this
route. Stuckey became frustrated with the barrier and removed it, but Collins replaced it.
Stuckey filed suit, seeking a servitude of passage over Collins’s land at this access point. The
trial court granted the right of passage to Stuckey. Collins appealed.
Rule: If passage over a vendor’s land is impossible or highly impractical, an enclosed owner may
be granted a servitude over another neighbor’s land, even though the enclosed owner is legally
entitled to a gratuitous servitude over the vendor’s land.
Chapter 16: Building Restrictions