Terra Incognita: Boudreaux v. Cummings
February 5, 2016
By Jacques Mestayer, Senior Associate
The Louisiana Supreme Court entered unchartered territory in May of 2015 when it decided Boudreaux v. Cummings. For the first time, the Court discussed in detail Louisiana’s doctrine of acquisitive prescription as it pertains to a “servitude of passage.” Because Boudreaux v. Cummings is seemingly the first Louisiana Supreme Court opinion to extensively address this topic, it could significantly affect Louisiana’s legal regime.
I. Boudreaux v. Cummings: The Background
In Boudreaux, the plaintiff (“Boudreaux”) sued the defendant (“Cummings”), seeking recognition that he acquired a servitude of passage over Cummings’s property through 30-year acquisitive prescription. Boudreaux specifically argued that, for roughly 60 years, he, his family, and his employee farmers used the passageway to run errands, transport farm equipment, and access the nearby public road. Thus, due to his extensive use of the passageway, he acquired ownership of a right to use it.
Although Cummings acknowledged that Boudreaux used the passageway for many years, Cummings contended that he and his ancestors in title gave Boudreaux tacit permission to use the passageway. Thus, Cummings argued that Boudreaux was a precarious possessor of the passageway, which meant that Boudreaux could not acquire ownership of the passageway through acquisitive prescription.
II. The Opinion
A slim majority of the Court agreed with Cummings’s argument, stating “we find that Cummings’ neighborly act of tolerance (and that of his ancestor in title, the Weills) cannot be, and is not, the foundation of adverse possession needed for the purposes of acquisitive prescription. Rather, Boudreaux was possessing the right of passage precariously.” Although concluding that Boudreaux was a precarious possessor is unsurprising, the majority’s reasoning in reaching that conclusion is questionable.
In search of support for its determination that “neighborly act[s] of tolerance” cannot be the foundation of possession for purposes of acquisitive prescription, the majority dove deep into the chronicles of civilian history. It centered its opinion on a pre–1982 version of Louisiana Civil Code article 3490, an article noticeably absent after the 1982 Civil Code revision. That article stated:
The circumstance of having been in possession by the permission or through the indulgence of another person, gives neither legal possession nor the right of prescribing.
Thus, those who possess precariously, that is, by having prayed the master to let them have the possession, do not deprive him thereof, but, possessing by his consent, they possess for him.
Discussing the article’s roots, the majority found that it was not reproduced because its principle—that acts of mere “tolerance” cannot be the basis of adverse possession—was “self-evident.” Taking that principle a step further, the majority remarked that “tacit permission can be presumed under the limited circumstances where ‘indulgence’ and acts of ‘good neighborhood’ are present.” Thereafter, the majority found that Cummings and his ancestor in title, in allowing Boudreaux to use the passageway for nearly 60 years, simply acted as a good neighbor, and, consequently, that Boudreaux precariously possessed the passageway.
III. The Court’s Reasoning
The majority’s reasoning could be considered inadequate in two respects. First, it overlooked the distinction between acquisitive prescription of a corporeal (i.e., a tract of land) and acquisitive prescription of an incorporeal (i.e., a right of passage). Second, and quite astoundingly, the majority did not describe what constitutes “acts of good neighborhood” or acts of “indulgence.”
To begin the tolling of acquisitive prescription against a tract of land when the owner of the tract is in possession, a party must usurp the owner’s possession through eviction. The eviction must be “open and notorious and adverse or hostile to the true owner and everyone else.” Because of the required nature of that eviction and the physical characteristics of a tract of land, a landowner should be aware that a potential acquisitive prescriber is challenging his dominion. This necessary relationship between a landowner and an acquisitive prescriber of land is, quite often, fundamentally different from the relationship between a landowner and a potential acquisitive prescriber of a right of passage. Whereas a landowner can physically see a non-owner possessing his land, a landowner cannot see a non-owner possessing a “right” to cross his land.
Moreover, the essence of a typical relationship between a landowner and a right of passage user is one of permissible passage over the land, typically for the sake of convenience. Thus, most rights of passage develop through, at the very least, some indulgence on behalf of the landowner. Because of this indulgence, the quasi-possession of a right of passage often resembles “neighborly accommodation,” and the hostile adverse possession typically present in the corporeal acquisitive prescription context is usually absent. Rather than note this distinction, the majority proceeded as if there was neither a practical difference nor a theoretical distinction between attempted acquisitive prescription of a corporeal piece of land and attempted acquisitive prescription of an incorporeal right attached to a piece of land.
In addition to that oversight, the majority pronounced a new standard without stating guidelines for future application of that standard. After taking great pains to find that “the concept of implied permission as it relates to precarious possession is still a viable theory,” the majority stated that such permission could be presumed where “indulgence” and “acts of good neighborhood” are present. Then, without defining either term, the majority classified Cummings’s actions as “neighborly act[s] of tolerance.” The only evidence in the record resembling “neighborly acts of tolerance” is testimony that the two parties had a “good relationship” and testimony that Cummings’s ancestor in title knew about Boudreaux’s use of the passageway and did not object.
Seemingly, the majority suggests that a landowner wishing to combat a claim of acquisitive prescription need only assert that he had a neighborly relationship with a right of way user in order to prevail. This suggestion is problematic because, in reality, nearly all rights of passage involve some sort of neighborly accommodation or indulgence. Thus, the majority’s broad interpretation of “good neighborhood” and “indulgence” calls into question a party’s ability to acquire a right of passage by acquisitive prescription.
Between its confusing conflation of the law of acquisitive prescription of corporeal things and that of acquisitive prescription of incorporeal rights and its failure to provide guidance with respect to the meanings of the concepts of “good neighborhood” and indulgence,” the majority arguably muddled the law of acquisitive prescription to some extent. Although the majority may have ultimately reached the correct decision, its first expedition into this previously unchartered territory was a bumpy ride.
 “Terra Incognita” is the Latin translation for “unchartered territory.”
 167 So. 3d 559 (La. 2015).
 “Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.” La. Civ. Code art. 3446 (2015).
 For purposes of this blog, a “servitude of passage” is defined as a passageway over a piece of land that permits a person, other than the owner of the underlying land, to cross the land.
 Boudreaux, 167 So. 3d at 560.
 La. Civ. Code art. 3477 (2015).
 Only four of the seven justices joined the majority opinion. Boudreaux, 167 So. 3d at 559.
 Id. at 563.
 Id. at 562–63.
 La. Civ. Code art. 3490 (1982), revised by Act No. 187, 1982 La. Acts 518, 568.
 Boudreaux, 167 So. 3d at 563. The majority opinion uses the term “tolerance” in its interpretive gloss of former Louisiana Civil Code article 3490.
 Id. at 563–64.
 The majority also failed to fully ascertain whether Cummings’s ancestors in title were in possession of the passageway when Boudreaux’s ancestors in title began using it. If Cummings’s ancestors were not, then eviction is unnecessary.
 See A. N. Yiannopoulos, Property § 310, in 2 Louisiana Civil Law Treatise 598 n.5 (3d ed. 1991); see also Pringle v. Gassiott, 499 So. 2d 738, 740 (La. Ct. App. 1986).
 Williams v. McEacharn, 464 So. 2d 20, 23 (La. Ct. App. 1985).
 Crowell Land & Mineral Corp. v. Funderburk, 692 So. 2d 535, 537 (La. Ct. App. 1997) (“The mere fact that a non-owner has physical possession of the land provides sufficient notice to the record owner and the public at large that a non-owner intends to possess the property for himself as owner.”).
 See David A. Martinez, Case Alert: Boudreaux v. Cummings – A Shift in the Law May Have Consequence for the Development of Property, Martindale.com, (Aug. 24, 2015), http://www.martindale.com/real-estate-law/article_Steeg-Law-Firm-LLC_2213992.htm [perma.cc/H4DS-ZJ5L] (noting that passage rights typically are not “formally granted by the owner of the land” and that the passageways are normally “just  used . . . for many years”).
 Id.; John Randall Trahan, Louisiana Law of Property: A Prècis 176 (2012) (“[Q]uasi-possession, far from being incompatible with such a grant of permission, presupposes it!”).
 Quasi-possession is defined as “[t]he exercise of a real right, such as a servitude, with the intent to have it as one’s own.” La. Civ. Code art. 3421 (2015).
 Boudreaux v. Cummings, 167 So. 3d 559, 563 (La. 2015).
 Id. at 566 (Knoll, J., dissenting).
 See supra note 22.