majority">SCHOTT, Judge.

Adam Badeaux initiated these proceedings by filing a petition entitled “Petitory Action” against Warren Pitre. In his petition Badeaux claimed to be the owner of a piece of land measuring 258 feet front on Louisiana Highway 306 and 275 feet in the rear along Bayou Gauche. This property is shown as the land “claimed by Adam Ba-deaux” on a survey which is made an appendix to this opinion. Plaintiff claimed ownership by virtue of possession for 30 years under LSA-C.C. Art. 3499. In his petition he alleged that he had authorized one Harry Saucier to occupy a portion of the property for use as a camp site, and on April 13,1972, Saucier sold his house and a wharf and a boat landing to defendant. Badeaux then alleged:

“4.

That defendant, after that purchase, did begin to occupy the building situated on plaintiff’s land until October, 1977, without any difficulty, but then and there did exert an adverse claim against petitioner’s property by exercising adverse possession against him and by setting stakes to mark boundary lines, by advertising the property for sale, and by removing certain markers that plaintiff had established to set up the property to be peaceably occupied by the defendant.

“5.

That the defendant, in exercising adverse claims against plaintiff, is in possession of the property or a portion of it without any title whatsoever thereto, and without any right to possession of said property except upon and at plaintiff’s pleasure, and the said defendant refuses to deliver possession of said property to plaintiff without any good or legal cause for such refusal.”

Plaintiff prayed for judgment as follows: “. recognizing plaintiff as the true and lawful owner of the above described property, and as such, entitled to the full and undisturbed possession thereof and ordering said defendant to deliver possession of said property to plaintiff . . . ."

In his answer Pitre alleged that Badeaux never exercised possession of the land adversely to him.

The judgment of the trial court provided that 1) Badeaux “made out a good and valid title” based on acquisitive prescription of 30 years as to the whole of the property, 2) he granted to Saucier a servitude of use on the part of the land on which Saucier built a camp and wharf; and 3) this servitude of use was transferred by Saucier to Pitre with the sale of the camp and wharf.

At the outset we notice on our own motion, pursuant to C.C.P. Art. 927 that the petition does not disclose a cause of action as a petitory action which, under C.C.P. Art. 3651, is brought by one who claims ownership but who is not in possession. At best, plaintiff may state a cause of action for a possessory action which is defined by C.C.P. Art. 3655 as follows:

“The possessory action is one brought by the possessor of immovable property or of a real right 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.”

Even so in his petition plaintiff does not claim to be in possession of that part of the land where Pitre’s camp, wharf and boat pen are located and admits that he has not been in possession of this portion of the land since 1963 when he voluntarily relinquished possession to Saucier. Thus, the nature of Badeaux’s claim is unclear from *976his pleadings and is even more so when the evidence is considered.

Badeaux took possession of this property in 1942 when he purchased a house from one Oscar Jervais for $60. Shortly thereafter a second house was constructed on the property for occupancy by plaintiff’s father and upon Badeaux’s completion of service in the Armed Forces in 1944 he moved into the house occupied by his father. Sometime thereafter he constructed the house in which he was living at the time of the trial in May, 1978, shown on the survey to be Adam Badeaux’s house. In 1962 Harry Saucier obtained permission from Badeaux to construct the camp and he subsequently cut the canal west of the camp and built a boat shed with Badeaux’s help. Badeaux testified that Saucier took care of all the property west of his camp. When Saucier decided to sell the camp, wharf and boat shed in 1972 he offered it to Badeaux who declined to purchase it and got Pitre interested in purchasing it. After Pitre bought it he re-did the wharf, built a new boat shed and improved the camp. There was no difficulty for anyone from 1972 until shortly before this suit was filed in November, 1977, when the disturbance to Pitre occurred. The testimony is quite vague on this point but it seems that Pitre placed signs on the property advertising his camp for sale and Badeaux was somehow prompted to post “No Trespassing” signs on or near Pitre’s boat shed west of his camp, whereupon Pitre removed them. Badeaux offered to rent the land to Pitre for five dollars per year but Pitre declined because he felt that the land did not belong to Badeaux.

In his testimony, Badeaux admitted: “I didn’t own the land [when Pitre bought the camp]. I still don’t own the land.”

If we consider this a possessory action the record does not support the judgment. In the first place there is no suggestion that the whole of the property was ever in dispute so that no basis exists for the judgment to cover anything beyond that portion of the property which Pitre was occupying. Badeaux’s possession of the rest of the property was never disturbed by Pitre. In the second place Badeaux has no right to possession greater than Pitre because, at the time Pitre took possession, Badeaux did not own the property and had no right to grant permission to anyone to take possession of the property. Badeaux, Saucier and Pitre were all squatters. The only difference was that Badeaux was the first. Third, whatever rights Badeaux may have acquired by 30 years’ possession do not apply to the land west of Pitre’s camp because he has not possessed that part of the land since Saucier came in 1963. Saucier could not possess for Badeaux because Badeaux had no right to give permission to anyone to possess any of the land. Badeaux was a mere squatter at the time. The same applies to Pitre’s possession.

That part of the judgment which recognizes Pitre to have a servitude of use is equally unsupportable because when Saucier and Pitre came on the land Badeaux wasn’t the owner and had no right to create or grant servitudes in favor of anyone.

We have therefore concluded that the judgment appealed from has no basis in law and fact. Accordingly, the judgment is reversed and set aside and there is judgment in favor of defendant Warren Pitre, and against plaintiff Adam Badeaux, dismissing his suit at his cost.

REVERSED AND RENDERED.

STOULIG, J., concurring with written reasons.

BOUTALL, J., dissenting with written reasons.

*977

STOULIG, Judge,

concurring.

I concur in the result reached in the majority opinion.

In this matter the trial court decreed that the plaintiff had “ * * * a good and valid title through acquisitive prescription of thirty years * * In my opinion the superiority of title between the plaintiff and the defendant is not at issue, and therefore a petitory action will not lie.

The object of the petitory action is to establish title to realty or to a real right (C.C.P. art. 3651). Under C.C.P. art. 3653 the possession of the realty by the adverse claimant determines the burden of proof exacted of the plaintiff in a petitory action. If the defendant is in possession, the plaintiff is obliged to establish the validity of his title against the world without regard to the deficiencies in the title of the defendant. However if the defendant is not in possession, then the plaintiff has the burden of proving the better title between the parties. Possession within the contemplation of this article requires not only the detention but also the intent to possess as owner. (C.C. art. 3436)1

In the instant matter the defendant has never contended that he was possessing the realty with the intent to acquire its ownership either by prescription or otherwise. And the trial court found as a matter of fact that the defendant knew he was purchasing only the camp and the wharf. It therefore follows since the defendant did not fulfill the requirements of possession nor assert an adverse claim to the title of the realty, a petitory action will not lie.2

*978Furthermore, the judgment of the trial court decreeing that the plaintiff “ * * * has made out a good and valid title through acquisitive prescription of thirty years * * * ” is not warranted from the posture of these proceedings. This judgment presupposes that the plaintiff has established the validity of his title against the world, which is not borne out by the record. Neither the recorded owner nor his heirs or representatives were joined as parties defendant in this proceeding and therefore the trial court could not adjudicate the validity of the title to their property based upon adverse possession without a contradictory proceeding against these indispensable parties.

In my opinion plaintiff’s only available remedy is by a possessory action seeking either to quiet the disturbance of his possession by the defendant, if one has in fact occurred, or to be restored thereto in the event the court finds that he has been evicted. Frankly a reading of the testimony and particularly that of the defendant leads to the inescapable conclusion that there exists no adverse claim of possession. Defendant testified that he was seeking only to sell the camp and the wharf which he purchased from plaintiff’s vendee. In fact the sign he posted read “House for sale.” I can find no bases for concluding the defendant was attempting to adversely possess against the plaintiff.

. C.C.P. art. 3655; Voisin v. Luke, 341 So.2d 6 (La.App. 1st Cir. 1976); and Ryder v. Lacour, 322 So.2d 243 (La.App. 3d Cir. 1975).

. It should be noted that plaintiff at the time of suit was and had been for many years in adverse possession of the tract of land including the area on which the camp and the wharf were situated. Adverse possession of a part is tantamount to possession of the whole. (C.C. art. 3437)

Citation profile

Relationships

How this case has been treated — in progress