Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
223 Cards in this Set
- Front
- Back
|
A. 448: Division of things
|
Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables
|
|
|
A 449: Common things
|
Cannot be owned by anyone, like the air and high seas, must be used comformably w/ use for which nature has intended them
|
|
|
A 450: Public things
|
Owned by the state or political subdivisions in public capacity.
Such as running waters, waters and bottoms of natural navigable water bodies, territorial sea, and seashore. Streets and public squares= belong to political subdivisions Public things are necessarily public and adventitiously public |
|
|
Necessarily public v. adventitiously public
|
Necessarily public is laid out in legislation, written down in some statute, these can't be owned by private person at all
Adventitiously is something which COULD be owned by private person but is applied to a public service |
|
|
Landry test and Landry case
|
Decides if something is adventitiously public or private thing- if not set forth in legislation, and not adventitiously public, then it must be private.
In that case, the issue was an airport- if private disposal was more difficult. 1) Does it serve a quasi-commercial purpose? (More likely to be private if answer is yes) 2) Are members of the public allowed to use it indiscriminately? (Private no, public yes) 3) Are members of the public charge a fee to use the thing? (Yes if private, no if public) This is a balancing test- could be ok that only one is met- e.g. a police car which is only private in the sense that it is not open to the public. All three factors favored calling the airport private. |
|
|
A. 453: Private things
|
Owned by individuals, other private persons, or by state in capacity as a private person
|
|
|
Big differences between private and public things
|
1) Private things can be disposed of by owner however they want, public thing may not be able to be disposed of or only according to special rules
2) Private things are prescriptible, public things are not 3) Similarly, private things can be possessed, public thing cannot |
|
|
a. 452: Public things and common things subject to public use
|
Public things and common things subject to public use in accordance w/ laws and regulations. Article says specifically everyone can fish in the rivers, ports, roadsteads, and harbors, and right to land on seashore, to fish, to shelter himself, to moor ships, to dry nets.
But can't cause injury to property of adjoining owners. General rule is that 452 shows you can use a thing in accordance with it's nature (Warner "Incidental to Navigation test"-- e.g. with water bodies has to be incidental to navigation; but remember specifically stated stuff in here you can do to- e.g. fishing is not incidental to navigation |
|
|
A. 455: Private things subject to public use
|
Basically either in accordance w/ law or by dedication
|
|
|
Navigability test
|
1) Size- big enough to be navigable, was 9 ft. deep and 18-30 ft. wide in 2 oclock bayou
2) Water body is suitable for commerce (most important factor in LA)- borrow test from congressional standard- in some states use recreational test here instead (hard to say what is commercial and what is recreational); no actual commercial use needed; movie being filmed counted 3) Float a boat "of some size" (Burns) 4) Possibility of transporting men/things 5) natural obstructions- manmade dont count 6) Historical designation in 1812 Test was combination of those in Burns, Amite Gravel, 2 oclock bayou |
|
|
The sea
|
Seawater- A 450 public thing, 452 subject to public use
No test of navigability Seashore- A. 451 definition Seabottom- A. 451, public thing- A. 450 + R.S. 49:3, subject to public use A. 452 Rules of sea and seashore extend to arms of the Gulf R.S. 49:3 For Arms of Gulf see Buras test |
|
|
A. 451: Seashore
|
Seashore is the space of land over which the waters of the sea spread in the highest tide during the winter season (historical accident)
|
|
|
Buras "Open Coast" test for Arms of the Gulf
|
1) Is in immediate vicinity of the open Gulf?
- 1 mile was not enough 2) Does it receive direct overflow from tides? (Answer to both must be yes) - Just having salt water on property does not equal direct overflow if go through another body first Lake Ponchartrain as a matter of law is considered an arm of the Gulf (don't want public/private status to waiver on test of navigability) |
|
|
Rivers
|
Waters- A. 450 "running waters" applies to navigable and non, public thing A 452 subject to public use
Bed- Navigable A. 450 public, 452 public use, non A. 506 belong to riparian owners along line in middle of bed (w/o title, prescription), not 452 subject to public use Banks- navig. then A. 456 private thing subject to public use, non navig. no article but a fortiori 456 private thing subject to public use, practically nobody needs to use cuz non navigable so not subject to public use |
|
|
A. 456: Banks of navigable rivers or streams
|
Banks of navigable river/stream are private thing subject to public use. Bank is between ordinary high and low marks of water, but if levee than levee is the bank. (Bed= between low marks, Eastham) (These marks are current ordinary low and high, not historical- Eastham)
|
|
|
Can you fish on the banks of a navigable river if you don't own the bank?
|
A. 452 says specifically yes, but Warner incidental to navigation test said no bc test is narrow, 5th circuit in Parm said no, but that's federal not dispositve, sometimes exceptions allowed for public policy e.g. jogging on levees
All of this qualified by provision saying not allowed to damage adjoining land owners |
|
|
Can you shelter yourself on the privately owned banks of a navigable river?
|
If incidental to sheltering, probably incidental to navigation, but shelter must be transient and not permanent (State v. Timothy)
|
|
|
Can you crawfish/oyster etc. in public rivers?
|
Would be permissible A. 452, but can't impede others navigation, however government passes special statutes for own interest too- oyster statutes
|
|
|
Pizanie case
|
1) A. 452 public use implies right to use naked bank of river, not to use private improvements on it
2) Must get to bank in way that does not trespass on private property |
|
|
Private use of private banks of rivers
|
no restrictions, but must not obstruct public use and can't damage property of adjoining land owners
|
|
|
A. 458: Works obstructing public use
|
Works built without lawful permit on public things or on the banks of navigable rivers that obstruct public use can be removed at expense of builder at instance of authorities or any person residing in the state, can't prevent this by saying prescription or possession.
Bunge- test is actual obstruction in fact, and public doesn't have rt of use to any particular area of the bank as long as a portion of bank is left open to public use |
|
|
A. 506: Ownership of beds of nonnavigable rivers or streams
|
Belong to riparian owners along line drawn in middle of bed in absence of title or prescription
|
|
|
Lakes- definition
|
No definition in code- Placid Oil Test
1) Current (arguably most important)- in that case current reduced substantially- 75% of sedimentation deposited 2) Size, especially width as it relates to streams that enter it- in that case 20 times wider than river which enters it, 30 miles long 3-10 miles wide 3) Depth- in that case 8 feet, shallower more likely lake 4) Banks- should not be steep, lake has irregular shape 5) Historical designation- in that case always designated a lake Totality of circumstances test |
|
|
Lakes- generally
|
Waters- owned by state A. 450 for navig, 452, for non navig. argument over running waters or not so not sure if public or private, answer leans towards private & not 452
No distinction btwn. bed and bank (everything under hi H20 mark) Bed- A 450 public for navig., 452, for non navig. split- cases say like A. 506 so draw line from middle to segment for each riparian owner, doctrine says no riparian rights to bed of non-navigable lakes, should be public |
|
|
Changes in navigability
|
Navigable- non navigable= state retains ownership of bed in private capacity, no rt. ofpublic use, and can be sold
Non-navig.- navigable= becomes public thing owned by state |
|
|
Sea- subsidence, alluvion, and dereliction
|
Subsidence- land becomes seashore A. 450, 452
Alluvion and dereliction- state still owns it A. 500, but owned by state in private capacity not subject to public use |
|
|
A. 499: Alluvion and dereliction
|
Alluvion= accretion formed successively and imperceptibly on the bank of a river or stream, navig. or not. Belongs to owner of the bank, subject to A 452 public rules.
Dereliction= water receding imperceptibly from bank. Owner of bank gains land, subject to 452 public use |
|
|
A. 500: Shore of the sea or of a lake
|
No rt. of private land owner to alluvion or dereliction on shore of sea or of lakes
|
|
|
Rivers- alluvion, subsidence, dereliction
|
Subsidence
Navigable- State owns land as long as it subsides beneath ordinary low water mark, bc now part of bed Non Navig- bed owned by private owners, now part of it so owner Alluvion and dereliction Navig.- Must be permanent and formed successively and imperceptibly- "Morning glory rule", same rule for non navig. |
|
|
Rivers- avulsion, change in course
|
Avulsion- detaches via sudden action- have one year to act, stil own it as long as originally attached to your bank, but must be identifiable
Islands formed in bed of river belong to state same rules for non navig., except if formed in bed belongs to private landowner bc never belonged to state Change in course- for navig., get compensated via A. 504, for non navig., isn't a problem bc you owned the bed to begin with (but can take any portion under 504, which causes policy problems) (Bourdon) |
|
|
Morning glory rule
|
Rule for ownership of alluvion and dereliction for navigable rivers, Came out of Eso Standard Oil
Can form quickly, but just has to be imperceptible to naked eye, ok to be able to check progress and see though If it fits MG rule and definition of alluvion or dereliction under A. 499, then private landowner owns it Policy is you paid for waterfront, shouldn't be hindered by natural movement |
|
|
A 502: Sudden actions of waters
|
If sudden action of river carries away identifiable piece of ground that merges w/ land on same or opposite bank, ownership stays the same and owner can claim w/in a year if owner of bank w/ which it united did not take possession
|
|
|
A. 503: Island formed by river opening a new channel
|
Doesn't matter if navigable, ownership of land is not affected but must be identifiable
|
|
|
A. 505: Islands and sandbars in navigable rivers
|
If formed in the bed of navigable river or stream, belongs to the state
|
|
|
A. 504: Ownership of abandoned bed when river changes course
|
Owners of land on which new bed is located take a piece of abandoned bed as compensation in proportion to quantity of land lost
|
|
|
Lakes- subsidence, alluvion and dereliction
|
Subsidence
Navig.- state owns now bc part of bed of nat. navig. water body Non-navig.- owner of the bed gets it Alluvion and dereliction Navig.- same as seas, private landowner has no rights, state owns, and owned i private capacity so no public use Non navig- private landowners owned already, so they still get it |
|
|
Dedication to public use
|
Private things subject to public use by dedication not by law
1. Formal a. Must be in writing b. Need intention to dedicate 2. Implied a. no writing required b. intent to give c. Clear intent to accept (use ok for this) d. Intent so clear as to exclude other hypothesis 3. Statutory 4. Tacit a. Only roads and streets b. Requires constructive knowledge by land owner of maintenance by government over the course of three years |
|
|
A. 461: Corporeals and Incorporeals
|
Corporeals have a body and can be felt or touched (cash being the most important)
Incorporeals Don't (servitudes, obligations etc) |
|
|
A. 471: Corporeal Movables
|
Corporeals that move or can be moved
|
|
|
A 473: Incorporeal Movables
|
Rights obligations and actions that apply to a movable thing (bonds, shares, interests etc.)
(same for incorporeal immovables applied to immovables) |
|
|
Corporeals v. Incorporeals significance
|
Corporeal movables can be given by manual gift donation, incorporeal movable must be AA
In sales, Corporeal movable must be handed over, incorporeals are delivered at execution of transaction Most incorporeals not subject to possession |
|
|
A. 469: Transfer or encumbrance of immovable
|
Transfer or encumbrance of immovable includes component parts (transfer of movable does not include component parts)
|
|
|
Corporeal immovables: Which ones is immovability independent of ownership and which is it dependent?
|
Independent: All tracts of land, all buildings, integral parts, permanent attachments, all standing timber
Dependent: Other constructions, some unharvested fruits and ungathered crops, some other vegetation |
|
|
A. 462: Tracts of land
|
Tracts of land are portions of the surface of the Earth, everything directly above and under it. Immovables along with component parts. (Once sand/top soil is removed becomes corporeal movable, otherwise component part of tract of land- Westside Sand)
|
|
|
A. 2440: Sale of immovable, method of making
|
Must be by AA or act under private signature, except A 1839 acts
|
|
|
A. 1536: Donation of immovables or incorporeals, form required
|
Must be an act before notary public and two witnesses for donation inter vivos
|
|
|
A. 1539: Manual gift
|
No formality for giving of corporeal movable
|
|
|
Buildings are always immovable (authority)
|
A's 462, 463, and 464 in pari materia
(462: Tracts of land and their component parts are immovable; 463: Buildings are component parts of tracts of land when belong to owner of the ground; 464: Buildings are separate immovable when belong to person other than owner of the ground) |
|
|
A. 463: Component parts of tracts of land
|
Buildings, OCPA's, standing timber, and unharvested crops or ungathered fruits of trees are component parts of tract of land when belong to owner of the ground
|
|
|
A. 464: Buildings and standing timber as separate immovable
|
Buildings and standing timber are separate immovables when they belong to a person not owner of the ground
|
|
|
Building v. Other Construction
|
Seaways test (found to be a building)
1. Prevailing notions (lay definition) 2. Cost- higher cost more likely to be building- in that case hundreds of thousands to build 3. Materials made out of- in that case steel 4. Size- Bigger= building- in that case three story structure 5. Purpose- in that case intended to house workers Don't have to have foundations in soil or directly attached to ground, doesn't matter if can be moved/is moved, |
|
|
A. 465: Things incorporated into an immovable
|
Something incorporated into a tract of land (465 v. 463 distinction), building, or other construction so as to become integral part of it, such as building materials, are its component parts
(Augusta Sugar test) |
|
|
Integral Parts definition
|
Augusta Sugar test
1) Things merged such that they become part and parcel of each other (would cease to exist or function without other thing) 2) Thing integrated must lose its identity separate from the land 466 defines loss of identity as unable to move w/o doing dmaage, some say this applies to 465 |
|
|
465 v. 463
|
465 is automatically immovable, 463 depends on unity of ownership if movable or immovable
|
|
|
A. 466: Component parts of a building or other construction
|
1) attached to building
2) according to prevailing usages, serve to complete a building 3) of the same general type 4) are its component parts 5) may include doors, shutters, gutters, cabinetry, plumbing heating cooling electrical and similar systems If attached to other construction must "serve its principal use" Alternatively, might be component parts if attached to such a degree that they cannot be removed w/o substantial damage to themselves or to the building or other construction |
|
|
Integral part of a building vs. something attached to building (permanent attachment)
|
Only building materials are 465, otherwise 466
|
|
|
Permanent attachment of building
|
A. 466
|
|
|
Article 466 explanation
|
Equibank- alternative tests of societal expectations and can't remove w/o damage; where chandelier met first, also societal expectation was not just what you would expect to find but if you need special expertise to detach it
Shel-Boze- societal expectations includes carpet, light fixtures, look to societal expectations Showboat- societal expectations means that general sort of thing- e.g. regular boat vs. gambling boat Prytania park- fed court says one big test, must meet damage and either societal expectations or ejusdem generis of systems Willis-Knighton: No remote damage for last paragraph Rejects notion of alternative test: now last paragraph elaborates on 1st Final result: Current A. 466 3rd paragraph other things clarifies alternative tests exist No longer societal expectations, but narrow interp of serve to complete the building, interp might be too narrow as in walls etc, "useful" might be too broad- would include lectern in law center Substantial damage- equibank said wires hanging out no, Prytania park said furniture removed from walls no |
|
|
All standing timber
|
immovable regardless of unity of ownership- A 462, 463, 464
464- immovable when belongs to person other than owner of ground 463- component part when belongs to owner of the ground 462- tracts of land and component parts are immovable No definition of standing timber, doctrine says trees when cut would produce lumber for building or manufacturing purpose Standing= not cut down, rooted in the soil |
|
|
What happens if reserve standing timber in sale
|
Have period agreed by parties, or fixed by court in default of agreement- Willets said 4 years was reasonable
|
|
|
OCPA's (A. 463)
|
To be an immovable: Must be
1)other construction- Seaways test 2) permanently attached to the ground- cannot be removed w/o substantial damage; but comment (c) to 463 says in absence of foundations some degree of integration w/ ground necessary 3) owned by owner of the ground- If not owned by owner of the ground, not immovable To see if other construction- use Seaways test- if not a building than an other construction |
|
|
Unharvested crops (A. 463)
|
Harvested crops are movables a contrario
Crops: Plants grown for profit or subsistence No answer in code if crop means plant itself or produce of plant but French code indicates produce, not entire plant |
|
|
A. 551: Fruits
|
Things produced by or derived from another thing without dimunition of its substance.
Includes natural fruits and civil fruits- natural are products of earth or animals; civil are revenues derived from a thing like rent interest etc |
|
|
A. 463 Ungathered fruits
|
To be immovable (via component parts A. 462): Must be ungathered, belong to same person who owns the land
Not immovable: gathered fruits, ungathered fruits that belong to someone other than owner of ground |
|
|
Other vegetation not explicitly listed in A. 463
|
Either one of two options
1) Should be included under 463 if look to teleological interp- purpose behind 463 2) A's 463-66 are examples, not exclusive |
|
|
A. 467: Immovables by declaration
|
Owner of immovable can declare that machinery, appliances and equipment owned by him and placed on immovable for its service and improvement are component parts.
Requires filing in registry. Basically, look to Baumer Foods Test |
|
|
Baumer Foods test for Immovables by Declaration
|
1) Unity of ownership, and must be machinery, appliances, or equipment
2) Immovable must not be private residence (or primary function is not private residence 3) Equipment put there for service or improvement of immovable 4) Declaration filed in public records |
|
|
A. 468: Deimmobilization
|
Component parts of immovable that become so damaged or deteriorated that they no longer serve the use of lands or buildings.
Also may deimmobilize by act of o'ship and delivery to acquirers in GF In absence of 3rd party rights may deimmobilize by detachment or removal Would have to do test to see if component parts first So three things at play here 1) Deimmobilization in fact 2) Deimmobilize basically by title in GF 3) Intentional deimmobilization w/o 3rd party right by detachment or removal |
|
|
Why does immovable v. movable matter?
|
Sales- A. 2440 must be made by AA or private signature
Donations inter vivos: immovable must be done by AA, movable can be manual delivery Lesion: only for immovables A. 469- Immovable includes component parts Accession- A. 490 add to immovable o'ship depends on consent, movable always belongs to owner of movable Acquisitive prescription- A. 3446- 3 years v. 10 yrs. 3rd parties- tfer of o'ship effective for immovables subject to public records doctrine Predial servitude- can only be established on immovable |
|
|
A. 3424: Rights of possessors
|
Possessor is considered owner until right of true owner is established
|
|
|
A. 3421: Possession
|
Detention or enjoyment of corporeal thing, that one holds or exercises by himself or by another who keeps or exercises it in his name
Exercise of a real right w/ intent to have it as one's own is quasi-possession. Rules of possession apply by analogy |
|
|
A. 3422: Nature of possession; right to possess
|
Possess for over a year and acquire right to possess
|
|
|
What can be possessed?
|
Only private things, public things no (Landry test)
Corporeal things can be possessed, incorporeals can be quasi-possessed |
|
|
A. 3424: Acquisition of possession (elements)
|
Must have intent to possess as owner (animus) and corporeal possession (corpus)
|
|
|
A. 3425: Corporeal possession
|
Exercise of physical acts of use, detention, or enjoyment over a thing
|
|
|
What is/is not corpus?
|
Laying and maintaining pipeline- Manson
Paying taxes is not- Manson Just grazing cattle not enough- Harper Grazing cattle is enough when land is grassland- Chamberlain So title means less acts required, type of land has bearing on what will constitute corpus |
|
|
What is/is not animus?
|
Paying taxes may show intent to own- Harper
Presumption of intent to own |
|
|
A. 3427: Presumption of intent to own the thing
|
One is presumed to have animus unless he began to possess in the name of another (precarious possessor)
(Asking for another's permission is intending to possess in the name of another) |
|
|
A. 3426: Constructive possession:
|
If possess part of immovable by title, have constructive possession over whole covered by title.
W/o title only possess the land you actually possess. No requirement that title is valid, just have a title. |
|
|
Whitley v. Texaco (constructive possession)
|
Titles overlapped, ct. said both had constructive possession
|
|
|
Constructive possession w/o title
|
Only of the area you possess, but doctrine says inch by inch possession or w/in enclosures.
Most likely impossible to do inch by inch, at least w/o good eyewitness testimony- Souther Souther Rule- "Enclosure" doesn't have to be fenced in but marked by natural or artificial marks sufficient to give notice to public character and extent of possession- in that case wood lines and swamp, stakes and tree blazes |
|
|
Original possession
|
Establish new possession- rare e.g. pull pen out of box, must still have corpus and animus
|
|
|
A. 3428: Acquisition of possession through another
|
If person intends to possess for another, vicarious possession ok
|
|
|
Elements of vicarious possession
|
Corpus- definitely possible as in granting pipeline servitude and then the servitude holder doing physical act
Animus- scholars say yes, but highly unlikely bc it is state of mind, only really works in agency and even then questionable |
|
|
A. 3441: Transfer of possession
|
By universal title or particular title
|
|
|
A. 3442: Tacking of possession
|
Tacked when there is no interruption of posseession, transfers both corpus and animus and animus is derivative
|
|
|
A. 3431: Retention of possession; civil possession
|
Civil Possession= Possession is retained by intent to possess even if lose corpus
|
|
|
A. 3432: Presumption of retention of possession
|
Intent to retain possession presumed unless clear proof of contrary intention
|
|
|
A. 3433: Loss of possession
|
Lost when possessor manifests intention to abandon or when evicted by force or usurpation, doesn't talk about destruction though
|
|
|
A. 3434: Loss of right to possess:
|
Lost upon abandonment of possession. In eviction, lost if possessor does not recover w/in a year of eviction.
When right to possess is lost, possession is interrupted. |
|
|
Loss of possession cases
|
Evans v. Dunn: Ct. says putting up fence is enough to lose possession
RULE: Act strong enough to put you on notice that dominion is seriously challenged Richard: Court said mowing the grass was not enough, some courts have said painting lines is enough, some no Liner: Series of evictions and counter evictions, |
|
|
Conflicting possessions
|
No article in CC
Not possible to have two people corporeally possessing at the same time, rather series of evictions and counter evictions like Liner Civil v. corporeal: corporeal beats everything, newest wins in corporeal v. corporeal, rewards active possession Constructive v. corporeal: corporeal wins Civil v. constructive: Souther case, civil wins because actually had possession of disputed land at some point Constructive v. constructive: first in time, first in right |
|
|
A. 3435: Vices of possession
|
No effect if possession is violent, clandestine, discontinuous or equivocal
|
|
|
A. 3436: Violent, clandestine, discontinuous, and equivocal possession
|
Violent= acquired and maintained by violent acts. When violence ceases, possession ceases to be violent.
Clandestine= not open or public (temporary like violence) Discontinuous= not exercised at regular intervals Equivocal= ambiguity as to intent of possessor to own the thing All vices are RELATIVE vices--> not applicable against anybody but the other person in possessory action |
|
|
Problems w/ vice of possession of violence
|
Article says possession effective when violence ceases, but this still means can be acquired through violence, scholars suggest must reacquire possession
Article also technically says "maintain" w/ violence so couldn't even defend property w/ weapons--> though maybe fixed by second violence stops possession returned |
|
|
Problems w/ vice of possession of discontinuity
|
Pretty much gets rid of civil possession but three theories why it works (all fail)
1) Continuity requirement is only acquisition of possession and civil possession= maintenance, but possession is instantaneous 2) Civil possession= periods between regular intervals for continuity- but civil possession now meaningless 3) Continuity requirement just restates idea that possession is lost upon abandonment-- unnecessary repetition |
|
|
Equivocation as a vice of possession
|
Only comes up in co-ownership context where can't tell if possessor is possessing for himself or other co-owners.
But only affects other co-owners, still has possession vis-a-vis others |
|
|
A. 3437: Precarious posssession
|
Exercise of possession with permission of or on behalf of owner.
Precarium--> w/ permission, revocable at will Lease Deposit Pledge Co-ownership (only in re: other co-owners) Servitude |
|
|
A. 3438: Presumption of precariousness
|
Precarious possessor presumed to possess for another although may intend to possess for himself
|
|
|
A. 3439: Termination of precarious possessor
|
Co-owner or universal successor starts to possess for themselves when demonstrate intent by overt and unambiguous acts sufficient to give notice to co-owner (but can be constructive notice)
For other precarious possessor, or universal successor, must give actual notice of intent to person on whose behalf possessing. |
|
|
Tacking as it relates to possession
|
Universal successor= gets everything (happens w/o a will), continues possession (along w/ vices)
Particular successor= sold, donated something in particular (A. 3506), tacks possession (w/o vices) |
|
|
How do you get possession?
|
Really rt. to possess, but possessory action
Possessory action brought by possessor of immov. property or real right therein to get some stuff! (S_hit) |
|
|
A. 3444: Possessory action
|
Possession of immovs protected by this
|
|
|
LA CCP A. 3655: Possessory Action
|
Basically defines it
|
|
|
LA CCP A. 3658: Possessory Action requisities
|
Possessor must show
1) Had possession at time disturbance occurred 2) He and ancestors in title had possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud 3) Disturbance was one in fact or in law, as defined by A. 3659 (see that A. for clarification) 4) Possessory action instituted w/in a year of the disturbance |
|
|
"Disturbance in fact" as a requisite for possessory action
|
Must be physical act- Evans v. Dunn rule must put you on notice that your dominion is being seriously challenged
"Any other physical act"= mere disturbance- Mire v. Crowe walking across property not enough to challenge dominion but enough to be a disturbance |
|
|
"Disturbance in law" as a requisite for possessory action
|
Non physical act, not clear exactly what LA CCP A. 3659 means here, but mere execution of record or instrument is enough
One reading implies written necessary, another says oral necessary Rare someone would disturb only in law and not also in fact |
|
|
Possession at the time of disturbance as requisite for possessory action
|
Antulovich case- blazing boundaries, marking land, cut and sold timber is enough, seems like not as strict as normal corpus reqs
|
|
|
Uninterrupted possession for year prior to disturbance requisite for possessory action
|
Year gives right to possess- doesn't have to be undisturbed completely, possession is only interrupted when right to possess is lost A. 3434
But exception to this if eviction by force or fraud |
|
|
Action w/in one year of distrubance requisite for possessory action
|
For disturbance in fact, clock starts running from first day of disturbance
For disturbance in law, clock starts running when disturbance ceases |
|
|
A. 3412: Occupancy
|
Only applies to corporeal movables that do not belong to anyone. Occupant acquires ownership moment he takes possession- Like George the cat
Problem is proving it didn't have owner before |
|
|
What things have never been owned (occupancy can apply)?
|
Constituents of certain common things (E.g. bottle water of Gulf of Mexico); Wild animals never deprived of natural liberty
|
|
|
A. 3413: Wild animals, birds, fish, and shellfish
|
If in state of natural liberty belong to state in public capacity or things w/o owner.
Owner of tract of land can forbid entry to anyone for hunting or fishing, but if they capture wildlife despite this still belongs to trespasser |
|
|
Leger case
|
State owns wildlife in sovereign capacity, therefore only holds them as trustee and thus ownerless even if owned by state
|
|
|
Difference between domestic animals and wild animals
|
Wild- Because of habitat, mode of life, or natural instinct are incapable of being completely domesticated and require exercise of art, force or skill to keep them in subjection
Domestic: Tamed by nature, or from time immemorial been accustomed to association of man or been subjected to his will and have no disposition to escape his dominion |
|
|
A. 3415: Wildlife in enclosures
|
Privately owned, but those that seasonally migrate into an enclosure of another belong to him unless migration caused artificially
|
|
|
A. 3416: Tamed wild animals
|
Privately owned as long as they have the habit of returning to their owner. Lost the habit when they fail to return w/in reasonable time, and then recovered natural liberty unless owner takes immediate steps for their pursuit and recapture
|
|
|
A. 3417: Domestic animals
|
Privately owned and not subject to occupancy
|
|
|
What things were once owned but have ceased to be owned? (occupancy can apply)
|
Abandoned things, certain wild animals that had owner who lost ownership
|
|
|
A. 3414: Loss of ownership of wildlife
|
If wildlife recovers natural liberty, captor loses ownership unless he takes immediate measures for pursuit or recapture
|
|
|
What things are subject to quasi-occupancy, and what are the requirements?
|
Lost things, treasure
Requirements for lost things 1) Diligent effort 2) Three years possession Requirements for treasure: If in a thing belonging to him or no one, acquires ownership. If found in a thing belonging to another, half to the finder half to the owner of the thing it was found in |
|
|
A. 3418: Abandoned things
|
Take possession of abandoned thing w/ animus then acquire ownership by occupancy. Abandoned= owner relinquishes possession w/ intent to give up ownership.
|
|
|
A. 3419: Lost things
|
Only applies to corporeal movable. Bound to make diligent effort to find owner or possessor and return, but if this is done and three years pass, finder acquires ownership
|
|
|
A. 3420 Treasure:
|
Movable hidden in another things, movable or immovable, for such a long time that owner cannot be determined.
If found in thing that belongs to finder, or thing which has no owner, all treasure to the finder. If found in thing of another, half to finder, half to person who owns thing found in |
|
|
Difference between lost, abandoned, and stolen things
|
Abandoned= owner relinquishes animus
Lost= owner still has animus Stolen= lost fortuitously through escape of owner's control |
|
|
A. 3446: Acquisitive prescription
|
Mode of acquiring ownership or other real rights by possession for a period of time
|
|
|
A. 3462: Interruption by filing of suit or by service of process
|
Prescription is interrupted when these things, unless incompetent court or improper venue, lose all possession A 3466
|
|
|
A. 3463: Duration of interruption
|
If plaintiff chooses not to pursue lawsuit, interruption said to have never occurred
|
|
|
A. 3449 & 50: Renunciation of prescription
|
Can be express or tacit, can only happen after prescription has accrued, act like prescription never happened
|
|
|
Effects of AP
|
Retroactive effect--any real rights owner placed on property during prescriptive period are invalidated, real rights prescriber placed on during prescriptive period are validated
|
|
|
A. 3485: Things susceptible of prescription
|
All private things, unless prescription is excluded by legislation (prescription can't run against the state, but doesn't apply to cities and political subdivisions)
|
|
|
What is required for AP?
|
1) Private thing
2) Elements of possession- corpus and animus, can be corporeal, civil, or cosntructive A. 3476- can't suffer from vice of possession 3) Period of time (Immovs- 30 yrs BF, 10 yrs GF, movs. 10 yrs BF, 3 yrs. GF) 4) Immovs- BF doesn't require JT or GF, GF req. JT & GF |
|
|
Tacking as it relates to AP
|
Again, universal successors continue along w/ vices, particular successors tack w/ no vices
But specific to AP Must have 1) juridical link 2) appropriate scope of tacked possession |
|
|
Juridical link of tacking in AP
|
Must be universal or particular successor, can be universal successor to part of land and particular successor to another part (Jumonville)
|
|
|
Extent of tacked possession in AP
|
Universal: Can tack beyond title, particular can only tack on land that title enumerates
|
|
|
Exception to tacking boundaries in AP
|
Tacking beyond title up to visible boundaries- still req. juridical link but see A. 794
|
|
|
A. 794: Determination of ownership according to prescription
|
Boundary is usually by limits est. by prescription, not title (if particular successor). But if party and ancestors possessed for 30 yrs w/o interruption w/in visible bounds more than the title says boundary is fixed at those visible bounds (Brown case, where it was highway)
|
|
|
A. 3486: Immovables; prescription of thirty years
|
Bad faith ownership, can be acquired by prescription of thirty years w/o just title or GF
|
|
|
A. 3473: Prescription of ten years
A. 3475: Requisites A. 3483 Just title |
GF prescription of immovable is 10 years, requires 10 yrs, GF, JT, and private thing (susceptible of acquisition)
JT= juridical act, such as sale, xchange, etc. sufficient to transfer ownership or another real right. Must be written, valid in form, and filed in conveyance records |
|
|
Just title for GF AP of Immov.
|
Req. 1) Juridical act
2) Actual title that covers disputed tract 3) Translative title that is not declarative act, can include partition by licitation 4) Written 5) Recorded 6) valid in form- nearly valid actually , can be that person who sold it didn't actually own it , but has to be right form in the sense of donation inter vivos must be AA in front of two witnesses 7) Something against public policy is absolute nullity, doesn't matter if everything else is right |
|
|
A. 3480: Good faith
|
GF for AP means possessor has subjective belief he owns thing he possesses plus objectively reasonable belief
|
|
|
A. 3482: Good faith at commencement of prescription
|
Only has to start in GF, later BF does not prevent accrual of 10 yrs prescription
|
|
|
A. 3481: Presumption of good faith
|
GF presumed, error of fact or error of law does not defeat presumption. Rebutted by showing possessor knows or should have known that he is not owner
|
|
|
Evidence of bad faith in AP
|
Errors of fact- not reasonable to believe own property
Quitclaim deed- selling w/ no warranty, extermely low price (Elmer- Quitclaim + low price= BF) Clouds on title in public records- totality of circumstances, failure to do title exam is not enough Errors of law- e.g. Sanders community property requires both parties |
|
|
Tacking in AP- length of time
|
For universal successor, possession continues so A. 3482 possession started in GF ok
For particular successor, possession tacks but GF can''t be tacked- Barlett v. Calhoun A. 3442 can tack all the way up the chain of ancestors as long as no interruption in possession |
|
|
Movables AP
|
10 yrs, 3 yrs. GF doesn't require JT, only act translative of ownership, doesn;t have to be written or recorded
|
|
|
A. 477: Ownership
|
Right that confers direct, immediate and exclusive authority over a thing (also perpetual). Includes usus, fructus, and abusus
|
|
|
How do you establish ownership?
|
Petitory action (A. 526, 531 LA CCP A. 3651,53)
|
|
|
A. 526: Recognition of ownership, recovery of the thing
|
Owner is entitled to recover thing via petitory action and deliver thing to him
|
|
|
LA CCP A. 3651: Petitory action
|
Brought by person who claims ownership, but not in possession, against person in possession
|
|
|
LA CCP A. 3653: Same; Proof of title, immovable
|
To win petitory action must
1) Prove acquired ownership from previous owner or by acquisitive prescription, if defendant in possession or 2) Prove better title than defendant if neither in possession Common author is presumed to be previous owner |
|
|
A. 531: Proof of ownership of immovable
|
Defendant in possession for petitory action, plaintiff must prove acquired ownership from previous owner or AP through petitory action
Plaintiff in possession, bring declaratory judgment If neither in possession, better title |
|
|
Petitory action where defendant in possession
|
Defendant in possession only means defendant has right to possess
Must show acquisition by AP or Acquisition from previous owner |
|
|
Rule for acquisition from previous owner in petitory action where defendant is in possession
|
Pure Oil v. Skinner rule: Title "Good against the world"
Basically, perfect chain of ownership back to the sovereign, difficult to show and expensive problem w/ evidence Exception: Common author presumed to be previous owner, rebuttable presumption where more ancient title will win (from first emanation from common author though), scholars suggest look at other factors, ct. reluctantly recognizing this |
|
|
Rule for petitory action where neither party in possession
|
Plaintiff must prove better title- generally older but see commentary on common author exception, same idea
|
|
|
A. 482: Accession
|
Ownership of thing includes by accession ownership of everything that it produces or is united with, naturally or artificially, in accordance with other accession articles
|
|
|
General rule for accession of fruits
|
In absence of other person's rights, owner of thing acquires ownership of natural and civil fruits, but exception for good faith possessor
|
|
|
Good faith possessor's rights exception to general rule for accession of fruits
|
General rule is that owner gets fruits (natural and civil), but see A. 486 & 7- possessor in GF gets ownership of fruits he has gathered. If evicted entitled to reimbursement of expenses for fruits unable to gather.
BF possessor gives owner fruits he has gathered or their value, subject to claim for reimbursement of expenses |
|
|
A. 486: Possessor's right to fruits
|
possessor in GF gets ownership of fruits he has gathered. If evicted entitled to reimbursement of expenses for fruits unable to gather.
BF possessor gives owner fruits he has gathered or their value, subject to claim for reimbursement of expenses |
|
|
A. 487: Possession in good faith; definition (accession)
|
Possessor in GF when possesses by act translative of ownership and does not know of any defects in ownership. Ceases GF when defects are made known or action instituted against him by owner (no objective component like that needed for AP)
|
|
|
A. 488: Products; reimbursement of expenses (accession)
|
Products derived from a thing (products= dimunition of substance like oil) belong to owner of thing. When reclaimed by owner, possessor in GF has right to reimbursement of expenses, but not for possessor in BF
|
|
|
General rules for accession to immovables
|
rules can be contracted around and frequently are
rules are relative and only govern between owner of immovable and maker of thing, but do not bind 3rd parties bc of public records doctrine |
|
|
Public records doctrine
|
Transactions effecting immovable property do not bind 3rd parties to those acts unless recorded
|
|
|
Accession to immovables- improvements- what's included
|
A. 493 implies buildings, OCPA, and plantings (Buildings and OCPA same as defined in immovables, plantings probably standing timber, unharvested fruits, ungathered fruits of trees, very broad)
Improvements are not component parts |
|
|
A. 493
|
Basically most of the rules on accession
|
|
|
Accession to immovables- improvements- other precarious possessors with consent rules (other precarious possessor= holder of servitude, pledge, deposit, precarium etc., not co-owner and not lessee)
|
With Consent
Ownership- constructor of improvement A. 493 + Marcellous Removal- Maker can remove if restore property to former condition If written demand for removal by owner and maker doesn't remove for 90 days, after 2nd notice Owner can keep Owner cannot force removal at Maker's expense Reimbursement- no rights to maker, but Brankline |
|
|
"other precarious possessor" v. lessor in accession
|
Falgoust v. Innes
Lessor required to pay rent for use of property, precarious possessor does not pay |
|
|
A. 491: Buildings, OCPA's, Standing timber, crops
|
Can belong to person other than owner of ground, but presumed to belong to owner of ground unless separate ownership evidenced by instrument filed in records
|
|
|
Graffagnino
|
- even if can show owner through accession, 3rd party doesn't have to respect cuz of PR doctrine if not recorded
|
|
|
Accession to immovables- improvements- other precarious possessors w/o consent rules
|
Ownership- Owner of land A. 493
Rights of Removal- no rule, problem again w/ unwanted improvement, cannot force removal can only appropriate Reimbursement- no rule, a fortiori gets nothing bc consent gets nothing, court might use Brankline |
|
|
Brankline case- accession
|
Ct. might sometimes will issue equitable remedies to maker of thing in accession, but has only been applied in context of other precarious possessor with consent of owner felt bad cuz lady was old and spent $40k to build
|
|
|
Accession to immovables- improvements and component parts A. 465 or 466- possessor in GF rules
|
Ownership- No rules in CC, but comments say Owner
Removal- Cannot demand removal, must keep and pay maker, but see Britt Builders Reimbursement- Owner must pay choice 1) cost of mats and labor 2) current value of mats and labor 3) enhanced value of immov. A. 496, but Sanders case |
|
|
Britt builders case- accession to immovs
|
Maker in GF might still recover cost of improvement through tort principles even if improvement is valueless to owner of property
|
|
|
Sanders case- accession to immovs
|
Since owner gets chioce of cost of mats and labor, current value of mats and labor, or enhanced value of immov for GF possessor, can choose to pay "enhanced value" even if enhanced value is 0 to them, so pay 0 for GF possessor reimbursement
|
|
|
Accession to immovables- improvements and component parts under A. 465 and 466- possessor in BF rules
|
Ownership- No rules, but comments say owner
Rights of removal- Can force demolition and removal at Maker's expense and damages or owner can keep and sometimes must pay Maker Reimbursement- If owner keeps separable improvements must pay choice of 1) current val of mats and labor or 2) enhanced val of immovable If owner keeps inseparable improvements does not pay Maker anything |
|
|
Accession to immovables- improvements and component parts under A. 465 or 466- lessee rules
|
Ownership: maker of thing A. 2695
Removal: Maker can remove if restore property to former condition Owner can force removal at Maker's expense Owner can appropriate w/o demand for removal or after unsuccessful demand for removal, sometime must pay Maker Reimbursement: If keeps w/o demand for removal, must pay Maker lesser of 1) cost or 2) enhanced value of leased thing If Owner appropriates after unsuccessful demand for removal, doesn't owe Maker anything. Could apply Brankline |
|
|
Accession to immovables- component parts A. 465 or 466- other precarious possessors with consent
|
Ownership: Owner
Removal: Maker can remove if restore property to former condition Owner can force removal at Maker's expense if not removed after demand Owner can keep and pay Maker if not removed after demand Reimbursement- If owner keeps must pay choice of 1) current value of mats and labor or 2) enhanced value of immov. |
|
|
Accession to immovables- component parts A. 465 or 466- other precarious possessors w/o consent
|
Ownership: Owner
Removal: No rule, probably a fortiori same as w/ consent Reimbursement: No rule, maybe Brankline equitable remedies |
|
|
A. 797: Ownership in indivision
|
Ownership by two or more persons in indivision; in absence of other laws shares are presumed to be equal
|
|
|
Rights of co-owners collectively
|
Usus, fructus, and abusus
|
|
|
Co-owner's shares in property
|
Unlocalized interest unless partitioned- every person has proportional share of every molecule
|
|
|
How is co-ownership created?
|
By operation of law: intestate succession, commingling of materials, termination of community, or acquisitive prescription
By act of will: Sales and exchange, donations |
|
|
A. 513: Use of materials of two owners; separation or co-ownership
|
If use partly your materials and materials of another, unless they can be conveiently separated, thing belongs to both in indivision. Share determined in proportion to value of materials
|
|
|
A. 2369.1: Application of co-ownership provisions
|
After community property ends, co-ownership applies unless other law or juridical act
|
|
|
How is division of shares of co-ownership determined?
|
General rule- A. 797- equal
Exceptions- juridical act or provisions of law, |
|
|
What are the rights of co-owners in the co-owned thing?
|
Fruits, use, necessary expenses, ordinary maintenance and repair, improvements and alterations
|
|
|
A. 798: Right to fruits and product (Co-owners)
|
Share in them in proportion to ownership, if produced by one of the co-owners other co-owners entitled to share after deduction of costs of production (co-owner has no right to compensation for own labor or services)
|
|
|
A. 801 & 802- Co-owners right to use
|
Can be determined by agreement, but otherwise has right to use in accordance w/ destination, but cannot prevent another co-owner from making use of it.
(Leblanc- alley was to be used for loading and unloading) PR doctrine applies against 3rd parties |
|
|
A. 800: Preservation of the thing (co-owners)
|
Co-owner can take necessary steps for preservation of the thing, might be able to claim reimbursement A. 806, threat must be imminent, implied threat might be
|
|
|
A. 806: Expenses of maintenance and management (co-owners)
|
Co-owner entitled to reimbursment for necessary expenses, expenses for ordinary repair and maintenance, or necessary management expenses paid to third person, in proportion to their share.
If co-owner enjoys the thing, reimbursement reduced in proportion to value of enjoyment |
|
|
A. 804: Substantial alterations or improvements (co-owners)
|
Can only be done w/ consent of all co-owners
Insubstantial things can be done w/o consent of co-owners If done w/o consent of co-owners but alterations or improvements are consistent w/ use of property, rights are determined by A. 496 (possessor in GF) If done over objection or inconsistent w/ use of property, rights determined by A. 497 (possessor in BF) But this is for remedies, ownership determined by precarious possessors articles of accession |
|
|
Co-owners rights to alienation and creation of real rights (A. 805)
|
Co-owner can lease, alienate, encumber his share of thing, but consent required for lease, alienation, or encumbrance of whole thing held in indivision
Servitude not really possible bc has to be over one estate |
|
|
How is co-ownership terminated?
|
1) Loss of thing
2) Juridical act- sales, wills, etc 3) Partition |
|
|
A. 807: Right to partition; exclusion by agreement
|
Any co-owner can demand partition, but partition may be excluded by agreement for up to 15 years or by law
|
|
|
A. 809: Judicial and extrajudicial partition
|
Mode of partition can be made by agreement of co-owners, w/o agreement co-owner can have judicial partition
|
|
|
A. 810: Partition in kind
|
Ct. will do it when susceptible of division into lots of nearly equal value and aggregate value of all not significantly lower than value of property in state of indivision
|
|
|
A. 811: Partition by licitation
|
Usually when thing not suspectible to partition in kind, proceeds distributed to co-owners in proportion to shares
|
|
|
Thomas case in co-ownership
|
Only two remedies for partition: in kind and licitation
|
|
|
Effects of partition on real rights
|
Real right that existed on whole thing still burdens whole thing, but real right that burdened share attaches to co-owners proportion after partition in kind
Parition by licitation the real right attaches to share of proceeds |
|
|
A. 535: Usufruct
|
Real right of limited duration on property of another, feature of right different based on consumables and non consumables
|
|
|
A. 536: Consumable things
|
For usufruct
|
|
|
A. 537: Nonconsumable things
|
For usufruct (stock is nonconsumable- Leury)
|
|
|
Usufruct lasts until (A. 607 & 608)
|
Death of the usufructuary, or in the case of juridical person either dissolution or 30 years whichever is sooner
|
|
|
How is usufruct established?
|
Juridical act or operation of law
|
|
|
Parental usufruct
|
During marriage have enjoyment of property of children till majority or emancipation, except those things child acquires through own labor and industry, or express condition
|
|
|
A. 890: Usufruct of surviving spouse
|
Surviving spouse has usufruct over deceden't share of community property to extent decedent didn't give it away.
Goes away upon death or remarriage |
|
|
Rights of the usufructuary
|
Natural Fruits: ownership of those severed during usufruct, if not severed by end, belong to naked owner
Civil Fruits: during existence of usufruct, can still receive accrued fruits after termination of usufruct Use: Consumable= usufruct owner, nonconsumable= right to possess and derive utility, profits, and advantages, must preserve substance, but bound to use as prudent admin and deliver to N/O at termination |
|
|
Limitations on use of usufructuary
|
Duty to act as prudent administrator- A. 576 standard of care is that losses must not result from fraud, default, or neglect
Improvements and alterations- must be done at usufructuary's cost and w/ written consent of N/O. But if N/O doesn't give consent, usufructuary can make ones that prudent admin would make w/ approval of ct. (ct. has wide discretion) |
|
|
Usufructuary's use of special interst
|
A. 567: Usufructuary can lease, alienate, encumber his right, but all K's cease at end of usufruct
Usufructuary responsible for abuse person he contracted w/ caused |
|
|
Usufructuary's duties
|
Security, repairs, charges, prudent admin
|
|
|
A. 571, 72: Security (Duty of Usufructuary)
|
Basically deposit that says he will act as prudent admin and fulfill all his obligations, amount in value of property subject to usufruct, generally no security w/ parental usufruct or spousal usufruct
|
|
|
A. 577,8: liability for repairs (duty of usufructuary)
|
Responsible for ordinary maintenance and repairs for keeping property subject to usufruct, however need arises.
N/O is responsible for extraordinary repairs, unless falut or neglect of usufructuary Extraordinary repairs= reconstruction of whole or substantial part of property (ct. said whole roof was example) |
|
|
A. 584: Charges (duty of usufructuary)
|
Must pay periodic charges, like taxes
|
|
|
A. 603: Disposition of naked ownership
|
N/O can do what he wants, but cannot affect usufruct by doing it
|
|
|
How is usufruct terminated?
|
1) Death of usufructuary
2) Destruction of burdened thing (must be total loss) 3) Waste or abuse Exceptions- fault of third person, change of form of property |
|
|
Consequences of termination of usufruct
|
Full ownership restored to N/O (N/O gets full value if can't get thing)
|
|
|
A. 646: Predial servitude; definition
|
A charge on a servient estate for benefit of dominant estate
|
|
|
Predial servitude definition broken down
|
"Estate": Narrowly defined as distinct corporeal immovable, OCPA doesn't count
Servient: Bears the charge Charge: Runs w/ land, real right Charge must be making servient estate abstain from doing something or allowing something to happen, can't force them to affirmatively do anything Has to actually be for the benefit of the dominant estate, can't just be whim of parties |
|
|
Predial servitude: ownership of estates
|
Just can't be 100% the same, can be one estate owned solely and the other co-owned
|
|
|
Inseparability of predial servitude
|
Runs w/ land, even when sold etc
|
|
|
Predial servitude acquisition: destination by owner
|
Basically one guy owned both estate and it would have been a predial servitude if different owners, unless expression provision apparent servitude comes into existence of right and nonapparent comes into existence if owner previously filed for registry
|
|
|
Use of predial servitude by servient and dominant estates
|
Servient: may not interfere w/ use- do anything "tending to diminish or make more inconvenient" the use of it
Dominant estate must use it in its intended manner |
|
|
How is servitude extinguished?
|
1) Destruction- must be total
2) Reestablishment of things- if exercise becomes impossible bc of change of things involved servitude is not extinguished but reestablished when things settle again 3) Nonuse: 10 yrs, but can't do mere gesture like in Ashland case by pumping gas through 4) Confusion: opposite of destination by owner, one person gets both estates, servitude estinguished |
