Laying to Rest an Ancien Régime: Antiquated Institutions in Louisiana Civil Law and Their Incompatibility with Modern Public Policies

• Author: Christopher K. Odinet
• Pages: 1368-1399

The author would like to thank a brilliant scholar and teacher, Professor Andrea B. Carroll, without whose guidance, patience, and support this Comment would not have been possible. The author also thanks Professor Ronald J. Scalise, Jr., Professor Melissa T. Lonegrass, Dean David Cronrath, Sally Brown Richardson, and McHenry Lee II for their invaluable editing and support.

Lastly, the author thanks his parents and family, without whose love and encouragement nothing worthwhile was ever accomplished.

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I Introduction

Man faces unprecedented challenges as he barrels through the twenty-first century. The world is now approaching a population of seven billion people, concentrated largely in crowded, overdeveloped urban centers. ¹ Global climate change is predicted to cause massive population displacement related to the disappearance of coastal lands and to create dire food shortages within the coming decade. ² Increasingly, societies are forced to make systemic adaptations to handle the strain of these modern- day crises. Governments must be innovative and adaptive in their efforts to protect the public. When the fundamental goals and objectives of society shift, the law should be modified to encourage these changes.

Nowhere is the need for forward-thinking greater than in the state of Louisiana. Traditionally an agrarian society with a sparse population, Louisiana has historically followed a blind-eyed approach to economic development. ³ State policymakers have emphasized a legal system that places land development above all other concerns since the time Louisiana joined the Union. ⁴ This emphasis on land development is especially true with respect to Louisiana's civilian legal institutions of conflicting possession, prohibited substitutions, and partition by co-owners; each of these institutions rests on previously favored public policies that encouraged the unsystematic development of land. ⁵

However, times have changed in Louisiana and so has public policy. ⁶ The Louisiana institutions of conflicting possession, prohibited substitutions, and the restriction of partition by co- owners adhere to an archaic framework of pursing the development and commercialization of land that is pervasive throughout Louisiana civil law. ⁷ These institutions, drawn largely Page 1369 from nineteenth century French sources, ⁸ are not aligned with Louisiana's twenty-first-century policy goals. Louisiana is concerned today with preserving land and ensuring that over- commercialization does not result in the disappearance of vital coastal areas, the vanishing of the state's lush vegetation and green spaces, and the transformation of its cities into crime-ridden and congested concrete jungles. ⁹ Unfortunately, while Louisiana public policies have changed over the course of the last 200 years, its laws on land development are still anchored to principles dating back to France's nineteenth century ancien régime. ¹⁰

This Comment argues that the Louisiana civil law institutions of conflicting possession, prohibited substitutions, and partition by co-owners are in need of reexamination because they rest on antiquated public policies. Part I describes the current Louisiana rules on each of the institutions, explores their origins, and chronicles Louisiana's experience with each. Part II analyzes the policy of commercial development that underpins each institution in light of the contemporary public policies of conserving coastal wetlands, cultivating green space, and combating urban sprawl through smart-growth planning. Part III concludes that the current development-intensive framework of each institution should be reevaluated in light of today's competing policy considerations.

II The Current Louisiana Institutions: Rules, Origins, And Developments

Conflicting possession, prohibited substitutions, and the restriction of partition by co-owners have a common nexus in their drive toward the unrestrained development of land. ¹¹ Though each institution operates separately and plays a distinctly different role in Louisiana law, together they represent the policy design that land should always remain within the stream of commerce and susceptible to development. ¹² Page 1370

A Conflicting Possession

Possession is one of the most powerful legal concepts within Louisiana law because it concerns the ability to acquire and maintain control of property. ¹³ The rules governing possession are particularly contrary to modern public policies in that possession is chiefly awarded to the individual who physically develops the land in dispute. ¹⁴

1. The Possessory Rules and Legal Framework

Corporeal possession is achieved when the possessor performs actual "physical acts of use, detention and enjoyment on the land." ¹⁵ For example, if a person farms or lives on a tract of land, he is in corporeal possession of that land. From the moment his possession begins, the clock ticks toward his eventual ownership through acquisitive prescription. ¹⁶

Civil possession begins with physical acts on the land and continues after these acts have ceased by virtue of the individual's intent to continue possessing. ¹⁷ This type of possession rests on the fact that at one time the possessor was actually performing physical acts on the disputed area but thereafter left the land while still maintaining his intent to continue possessing it. ¹⁸ From the point at which he physically left the land, he is considered to continue possessing it by the mere presumption that he still has the "intent to possess." ¹⁹ As long as the individual maintains his intent Page 1371 to possess as owner, his possession remains intact despite his physical absence. ²⁰

In contrast to corporeal or civil possession, constructive possession is a legal fiction whereby a person may corporeally possess only a portion of his land but nevertheless be in possession of everything within his title. ²¹ To constructively possess, the possessor must have title to the land, but he need only perform physical acts on a portion of the tract. ²² Constructive possession rests solely on the premise that as long as a portion of the titled land is corporeally possessed, other portions of the land need not be disturbed. ²³

Each of the three types of possession shares a commonality in supporting land development. Although each type requires a varying degree of development, some kind of physical activity on the land is required for each possession to commence. Corporeal possession requires physical acts on the entire tract, civil possession requires only initial physical acts, and constructive possession requires physical acts on just a portion of the land. Whatever the measure, the law of possession centers on some degree of physical development of land for possession to begin.

Interestingly, conflicting possession is not mentioned anywhere in Louisiana legislation, leaving it to the courts to form and mold a framework for situations where possessions conflict. ²⁴ This is Page 1372 particularly relevant in the context of possessory actions because whoever wins the possessory action is presumed to be the owner of the disputed land. ²⁵ At that point, the clock toward becoming owner through acquisitive prescription continues to run in the possessor's favor. ²⁶ When confronted with conflicting possessions, Louisiana courts have consistently held that the property owner loses his constructive or civil possession if another appears and begins corporeal possession on the same tract of land. ²⁷ Simply put, in any dispute among the possessions, corporeal possession always prevails. ²⁸

2. The Historical "Coming of Age" of Conflicting Possession

While Louisiana jurisprudence makes it clear that the result of the rules governing conflicting possession is to reward the corporeal possessor, ²⁹ it is not clear in the jurisprudence why corporeal possession is the preferred form under Louisiana law. Making this determination requires a look back to the roots of Louisiana law. ³⁰

French legislation, like Louisiana legislation, never met the question of conflicting possession head on, but French jurisprudence also supports the theory that corporeal possession should prevail in a possessory dispute. ³¹ French civil law commentator Marcel Planiol describes civil and corporeal possession as the only two types of possession, with French jurisprudence endorsing corporeal possession as the superior of the two. ³²

The reason behind corporeal possession's superiority in French law likely is based on the public policy of the State toward land Page 1373 development in the nineteenth-century. ³³ Both before and after the French Revolution, France was concerned with the development and cultivation of land for agricultural purposes. ³⁴ The favoritism that French jurisprudence showed toward corporeal...