Boudreaux v. Cummings: Time to Interrupt an Erroneous Approach to Acquisitive Prescription
| Author | Cody J. Miller |
| Position | J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University. |
| Pages | 1143-1175 |
Boudreaux v. Cummings: Time to Interrupt an
Erroneous Approach to Acquisitive Prescription
INTRODUCTION
In rural Vermilion Parish, the seasonal fall sight is the hustle of harvest
time. After months of planting crops and watching them grow, Farmer
Boudreaux was ready to reap the fruits of his labor. As he had done for the
past 50 years, Boudreaux had his plans down to a methodical science. His
combines and tractors would enter his right-of-way, travel through his
neighbor’s land, and arrive at his fields. When harvest day arrived, much
to Boudreaux’s surprise, the gate to the right-of-way had been chained and
locked shut.1 After using the right-of-way continuously for so long,
Boudreaux always believed that he had a legal right of use. However, four
Louisiana Supreme Court justices disagreed and denied any kind of legal
access, despite Boudreaux’s long use and adamant belief of his right of
use.
Keeping with civilian tradition, the Louisiana Civil Code, which
governs property disputes like Boudreaux faced, frames legal principles in
general terms,2 and problems often arise in new areas of the law in which
the Civil Code provides little or no guidance. In the 1977 revision of the
Civil Code, acquisitive prescription, known in the common law as
“adverse possession,”3 applied for the first time to apparent, discontinuous
servitudes—a legal right to, among other things, use a portion of land
belonging to another.4 This legal right is the right that Boudreaux believed
he held.5 The Civil Code provides little guidance for this sweeping change
Copyright 2017, by CODY J. MILLER.
the facts of the case similar to this opening paragraph).
2. Mary Garvey Algero, The Sources of Law and the Value of Precedent: A
Compara tive and Empirical Study of a Civil Law State in a Common Law Nation,
65 LA. L. REV. 775, 793 (2005).
3. N. Stephan Kinsella, A Civil Law to Common Law Dictionary, 54 LA. L.
REV. 1265, 1280 (1994) (“Acquisitive prescription is a mode of acquiring
ownership by possession for a perio d of time. Similar to acquiring title through
adverse possession under the statute of limitations.”).
4. LA. CIV. CODE art. 646 (2017).
5. The effect of the change in the law was not made retroactive, so time
could not begin accruing for acquisitive prescription of an apparent, discontinuous
predial servitude until the effective date of the c hange. Thus, if there is no good
faith or just title leading to abridged acquisitive prescription, the soonest someone
could claim ownership through acquisitive prescription would have been 30 years
from the 1977 revision. LA. CIV. CODE art. 740 cmt. a.
1144 LOUISIANA LAW REVIEW [Vol. 77
and left a legal quandary lying dormant for over 30 years.6 Boudreaux v.
Cummings led the Louisiana Supreme Court to confront the issue of
acquisitive prescription of a predial servitude,7 but the Court failed to
apply proper civilian analyses and continued to leave the state of the law
unclear.
Acquisitive prescription, or the ability to acquire a real right over a
specified period of time,8 should have allowed Boudreaux to acquire a
predial servitude of legal use over a portion of his neighbor’s land.9 A
divided Supreme Court held, however, that Boudreaux did not acquire a
predial servitude because “acts of simple tolerance” by his neighbors
represented tacit permission.10 As the Court provided no clear explanation
of those acts, its incomplete analyses resulted in two problems. First, the
Court’s plurality and concurring justices ignored the plain language of the
Civil Code articles establishing burden-shifting presumptions in favor of
possessors, altering a previously settled area of the law.11 Second, and
more importantly, the Court unnecessarily confused the issue of
acquisitive prescription of predial servitudes through an improper civilian
approach. By failing to define terms and engage in a complete analysis,
the justices only recited the relevant Code articles while misapplying
civilian methodology.
Part I of this Comment provides background information on the
fundamentals of proper civilian interpretation of the Civil Code, which
contains the law on predial servitudes, acquisitive prescription, and
possession. Putting these foundational principles into the context of a
specific property law conflict, Part II explains the Louisiana Supreme
Court’s decision in Boudreaux v. Cummings, revealing the problems that
arise from the Court’s failure to distinguish between a servitude and the
underlying land. Part III explores how the Court’s application of civilian
methods were incomplete. Part IV presents both a retrospective solution
and a prospective one for future cases despite the improper civilian
approach used in Boudreaux. It advocates for Louisiana courts to return to
their civilian roots and approach confusing legal issues with the clarity and
categorization of civilian deductive reasoning.
6. A. N. Yiannopoulos, Possession, 51 LA. L. REV. 523, 527 (1991) [hereinafter
Possession].
8. LA. CIV. CODE art. 3446.
9. Id. art. 646 (defining a predial servitude); id. art. 705 (defining a servitude
of passage).
10. Boudreaux, 167 So. 3d at 562–64.
11. Id. at 565 (Knoll, J., dissenting).
2017] COMMENT 1145
I. BACKGROUND: THIS LAND IS YOUR LAND, THIS LAND IS MY LAND?
Unlike the 49 common law states, the sources of law in a civilian
jurisdiction like Louisiana12 are legislation and custom.13 Property law is
specifically within the private law domain of the Louisiana Civil Code,
which governs things and their ownership.14 Although Louisiana law
admittedly has a distinct common law influence, substantive private law,
including predial servitudes, acquisitive prescription, and possession, is
still firmly within the ambit of the civil law.15
Any well-reasoned analysis must begin with a strong foundation.
Louisiana judges readily have this foundation, the Civil Code, at their
disposal, “provid[ing] a solid base from which courts work to decide
cases.”16 Presenting many property issues and arguments of ownership
originating deep within the framework of the Civil Code, Boudreaux is the
perfect case to demonstrate the importance of beginning any civilian
analysis with the heart of the civil law—the Code.
A. Servitudes at Your Service
As the primary source of legislation, the Civil Code is the starting point
for any examination of predial servitudes,17 acquisitive prescription,18 and
possession. The Code provides that a predial servitude is “a charge on a
servient estate for the benefit of a dominant estate,” with the two estates
12. Christopher Osakwe, Louisiana Legal System: A Confluence of Two
Legal Traditions, 34 AM. J. COMP. L. SUPP. 29, 30 (1986).
13. LA. CIV. CODE art. 1; id. ar t. 2 (“Legislation is a solemn expression of
legislative will.”); id. art. 3 (“Custom results from practice rep eated for a long
time and generally accepted as having acquired the force of law.”). The two
sources of law in common law jurisdictions tend to be statutory law and case law
developed by precedent. See Giacomo A.M. Ponzetto & Patricio A. Fernandez,
Case Law versus Statute Law: An Evolutionary Compar ison, 37 J. LEGAL STUD.
379, 411 (2008).
14. Algero, supra note 2, at 793.
15. Jean Louis Bergel, Principa l Featur es and Methods of Codification , 48
LA. L. REV. 1073, 1075 (1988) (“The modern Louisiana legal system is
fundamentally a derivative common law system, albeit with a civil law thicket.”).
16. Algero, supra note 2, at 778.
17. Kinsella, supra note 3, at 1291 (“A predial servitude is a charge on a
servient estate for the benefit of a dominant estate. Similar to an appurtenant
easement.”).
18. Id. at 12 80 (“Acquisitive prescription is a mode of acquiring ownership
by possession for a period of time. Similar to acquiring t itle through adverse
possession under the statute of limitations.”).
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