Evans V. Dunn

Evans v. Dunn

Facts: At the time the plaintiff acquired his one acre tract of land by deed in 1951, there was a wire fence which was located 36 feet past what the deed called for on the northern side of the property. The plaintiff testified that he had possessed the disputed area for several years by mowing it and by tending to a flower garden that he and his wife planted there. The defendant acquired property in 1978 which was against the north part of the plaintiffs. At this time, there was no visible boundary line between the two properties. The plaintiff testified that the wire fence, that was present at the time of the sale in 1951, was eventually torn down about a ear before the defendant acquired the adjacent property in 1978. In May of 1981, the defendant had his land surveyed and built a chain link fence across his southern boundary, which encompassed the 36 foot strip of land which the plaintiff claimed to have possessed. This fence separated the plaintiff from the plants he had planted, although he continued to water them without crossing the fence. The defendant then replaced the chain link fence with a barbed wire fence, and thereafter destroyed the plaintiffs remaining plaints around July of 1982. The defendant stated he continuously kept the area mowed north of the fence, and after the fence was changed, he allowed his cattle to grace that area. A possessory action was filed by the plaintiff, in which a trail court found for the defendant, stating C.C. 3658(2) was not satisfied.

Issue: Whether the plaintiff has met all of the requirements for maintaining the possessory action listed in C.C. 3658.

Holding: No. A person loses the right to possess immovable property either voluntarily by transferring or abandoning the property, or involuntarily by being evicted or expelled for more than a year or by acquiescing in a third-party’s usurpation for more than a year.

Reasoning: In May 1982, one year after the chain-link fence was...