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. 1. Boudreaux v. Cummings, 167 So. 3d 559, 560–61 (La. 2015) (describing the facts of the case similar to this opening paragraph). 2. Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative 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 period 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 change. 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]. 7. Boudreaux v. Cummings, 167 So. 3d 559, 561 (La. 2015). 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 Louisiana 12 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. art. 2 (“Legislation is a solemn expression of legislative will.”); id. art. 3 (“Custom results from practice repeated 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 Comparison, 37 J. LEGAL STUD. 379, 411 (2008). 14. Algero, supra note 2, at 793. 15. Jean Louis Bergel, Principal Features 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 1280 (“Acquisitive prescription is a mode of acquiring ownership by possession for a period of time. Similar to acquiring title through adverse possession under the statute of limitations.”). 1146 LOUISIANA LAW REVIEW [Vol. 77 having different owners. 19 For designation and categorization purposes, a predial servitude is an incorporeal immovable, 20 which grants a distinct right that the dominant estate owner is entitled to exercise. 21 There are many different types of predial servitudes that estate owners may establish, but the most relevant in light of Boudreaux is a servitude of passage, explicitly recognized by the Civil Code as “the right for the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are permitted to pass through the servient estate.” 22 A predial servitude may be established in one of three ways: juridical act, prescription, or destination. 23 The acquisition of a servitude by prescription, however, only applies to apparent servitudes. 24 Apparent servitudes, as contrasted from nonapparent servitudes, include those perceived “by exterior signs, works, or constructions; such as a roadway.” 25 The 1977 revision of the articles on acquisitive prescription distinctly changed the law by applying prescription to apparent servitudes broadly, in contrast with only continuous apparent servitudes. 26 After the revision, prescription now specifically applies to “rights of passage on 19. LA. CIV. CODE art. 646 (2017). The “dominant estate” is the one that receives the benefit of the servitude. Id. art. 647. The “servient estate” is the one that owes the duty of the servitude to the dominant estate. Id. art. 651. In this context, an “estate” means “a distinct corporeal immovable” that can be tracts of land, buildings, timber estates, or individual apartments. Id. art. 646 cmt. b. 20. Id. art. 649. An “incorporeal” is something that “ha[s] no body, but [is] comprehended by the understanding.” Id. art. 461. “Immovables” are things like tracts of land and their component parts, buildings and their component parts, and standing timber. Id. art. 462–67. Thus, “incorporeal immovables” are “[r]ights and actions that apply to immovable things.” Id. art. 470. 21...