The State is No Crook After 30 Years

by Michael Schimpf, Senior Associate

November 19, 2019

I. Introduction

Acquisitive prescription is Louisiana’s method of acquiring ownership whereby a possessor attains ownership by possessing a thing for a certain period of time.[1] Acquisitive prescription allows a trespasser, whether in good faith or bad faith,[2] to take ownership over another’s property. Commentators have jokingly labeled acquisitive prescription as a form of “legalized stealing.”[3] Acquisitive prescription, however, has benefits. First, it solves complex title disputes without forcing courts to trace murky titles for generations because it cures any title defects and creates a new title.[4] Second, because the true owner of the property has neglected the thing by allowing the acquisitive prescriber to possess it for an extended time, acquisitive prescription transfers title to the prescriber who values the thing more and has put it to productive use.[5]

For example, assume that “A” corporeally possessed[6] a tract of private land[7] in Rapides Parish within natural boundaries[8] for over 30 years in good faith because A thought the land belonged to him. This possession was “continuous, uninterrupted, peaceable, public, and unequivocal.”[9] Also, A spent time and money to improve the land for economic and recreational use. Now, assume that 35 years later, “B” asserts that he is the rightful owner.

If A were a natural person,[10] then A would be entitled to the land because he satisfied the elements of “unabridged acquisitive prescription” for immovable property:[11] 30 years of possession over a thing susceptible of acquisitive prescription.[12] What if, however, A were the State of Louisiana? Would the same result occur? Stated simply: under current Louisiana law, does acquisitive prescription run in favor of the State? The answer to this question has never been more important because Louisiana’s water bodies are rapidly changing through natural and man-made forces, inundating more land at a rate of a “football field an hour.”[13] As Louisiana becomes more inundated, water bottom ownership becomes murkier, which leads to conflict between Louisiana sportsmen and private landowners about public access.[14]

II. Crooks v. Department of Natural Resources[15]

The Louisiana Constitution clearly articulates that prescription does not run against the State.[16] The constitution, however, is silent on whether acquisitive prescription can run in favor of the State. Recently, in Crooks v. Department of Natural Resources, the Louisiana Third Circuit Court of Appeal answered the question in the negative.[17] The Crooks Court affirmed the trial court’s determination that Catahoula Lake was not a navigable lake.[18] The court reached this decision despite Catahoula Lake’s popular status as the largest freshwater lake in Louisiana[19] and a prior court holding that it was a navigable lake.[20] Instead, the court focused on the status of the water body in 1812, the year Louisiana entered the Union, because states acquired ownership over all navigable water bodies within each state’s borders upon entry into the Union.[21] In Louisiana, the general public may freely access these navigable water bodies, which form part of the public trust.[22] By finding Catahoula Lake non-navigable in 1812, the court removed Catahoula Lake as a public thing under Louisiana Civil Code article 450, and, consequently, ended the public access that sportsmen had long enjoyed. Thus, Catahoula Lake was susceptible of private ownership as a private thing.

The Crooks, as representatives of a class of landowners, claimed ownership to Catahoula Lake after the United States and Louisiana had engaged in acts of possession over the area for 30 years.[23] The State brought a peremptory exception of prescription, in which it claimed acquisitive prescription.[24] The majority, however, denied the exception because, in its view, acquisitive prescription does not run in favor of the State because it would be a taking without compensation.[25]

The result in Crooks was an equitable remedy for the plaintiffs; however, the court failed to consider the greater impact of its decision on Louisiana property law as a whole. After over 30 years of benefiting from open access, the court deprived Louisiana sportsmen of public access, and the court also tied the State’s hands behind its back when dealing with newly created water bodies from coastal change. The State and boaters have easily mistaken these newly created water bodies as navigable water bodies, which belong to the State for public use.[26] Under the Crooks majority’s reasoning, it is better for these new water bodies, which the State thinks in good faith are navigable, to remain unused for potentially ad infinitum than for the State to take possession and put them to more productive use. A blanket bar to acquisitive prescription running in favor of the State, however, greatly restricts the public interest in clearing up the ownership of water bodies that are questionably navigable.

III. Acquisitive Prescription Runs in Favor of the State

The Crooks holding from the Louisiana Third Circuit Court of Appeal did not settle the issue.[27] Future courts will have to decide whether to follow the Crooks majority’s reasoning or depart from it. Under current Louisiana law, courts should depart from the Crooks majority’s analysis for three reasons: (1) the rationale that Judge Amy gives, in dissent, that there is no prohibition on acquisitive prescription running in favor of the State; (2) the idea that acquisitive prescription is not an unlawful taking without compensation; and (3) public policy.

A. No Prohibition Against the State From Acquisitively Prescribing

Louisiana courts have consistently held that political subdivisions cannot benefit from acquisitive prescription.[28] The Louisiana Supreme Court, however, has stated that “[p]rescription runs in favor of the state.”[29] The Crooks majority found the case law regarding political subdivisions persuasive and extended the reasoning to the State, ignoring prior statements from the Louisiana Supreme Court. The Crooks majority determined that article 6, § 23 of the Louisiana Constitution forbade political subdivisions from benefitting from acquisitive prescription.[30] The provision gives political subdivisions the ability to acquire property “by purchase, donation, expropriation, exchange, or otherwise.”[31] Louisiana courts have read the “or otherwise” language narrowly because § 23’s neighbor, § 24, allows political subdivisions to acquire servitudes of way by prescription.[32] Allowing the “or otherwise” language of § 23 to permit acquisitive prescription would make § 24 nugatory and redundant because § 23 would already cover servitudes of way by acquisitive prescription, so courts have held that acquisitive prescription is implicitly barred from running in favor of political subdivisions, with § 24 as an exception.[33]

The Crooks majority then determined that article 1, § 4 implicitly barred acquisitive prescription running in favor of the State because allowing so would be a taking without compensation.[34] Article 1, § 4(B)(1) is the Louisiana Takings Clause and prevents the State and political subdivisions from taking or damaging property for a public purpose without paying compensation.[35] The majority did not provide much analysis in support of using the takings provision, only stating, “this result seems fair in light of the fact that acquisitive prescription does not run against the State.”[36] Thus, the Crooks majority determined that the State did not own the land.[37]

The Crooks majority’s reasoning is troubling because it brings constitutional provisions into direct conflict with each other. Under the majority’s interpretation, if the Takings Clause bars acquisitive prescription running in favor of the State because it is a taking, then, likewise, it must bar acquisitive prescription running in favor of political subdivisions because it is a taking. This interpretation directly conflicts with article 6, § 24, which allows political subdivisions to acquire property through acquisitive prescription in limited situations.[38] A political subdivision, on the one hand, could be acting under the power of article 6, § 24, but on the other, it could be committing a taking under article 1, § 4. Instead, the better interpretation is one where the provisions exist harmoniously. Judge Amy provided this interpretation in dissent.

Judge Amy found no legislative prohibition on acquisitive prescription running in favor of the State.[39] Judge Amy agreed with the majority and existing jurisprudence that an in pari materia[40] reading of article 6, §§ 23 and 24 barred political subdivisions from benefitting from acquisitive prescription with the exception of § 24.[41] However, he found no like provisions restricting the State from availing itself of acquisitive prescription.[42] He determined that article 1, § 4 does not bar the State; he traced prior cases in which courts found that “[t]he self-evident truth is that the sovereign can prescribe against, but prescription cannot run against the State.”[43] Further, Judge Amy argued that acquisitive prescription is a “reasonable statutory restriction” on property rights.[44] Therefore, he concluded that the general rule of acquisitive prescription should apply[45] because “[a]ll private things are susceptible of prescription.”[46]

Judge Amy’s interpretation successfully avoided a conflict between constitutional provisions because he separated takings law from restrictions on methods of acquiring ownership. Political subdivisions cannot benefit from acquisitive prescription, with the exception of article 6, § 24, because the constitution takes away this method of acquiring ownership; however, the jurisprudence at no point refers to this restriction as a taking.[47] There are no analogous provisions to article 6, §§ 23 and 24 that restrict acquisitive prescription running in favor of the State. Therefore, Judge Amy correctly noted that there is no legislative restriction under current law, and the Louisiana Takings Clause does not bar acquisitive prescription running in favor of political subdivisions or the State.

B. Acquisitive Prescription Is Not an Unlawful Taking

On its face, the State acquiring ownership over a private person’s property through acquisitive prescription seems like a taking without compensation. However, under the United States Supreme Court’s jurisprudence regarding takings law, the government may still benefit from “background principles of the State’s law of property[,]”[48] which includes acquisitive prescription.[49] Similarly, Judge Amy asserted that acquisitive prescription is one of the “reasonable statutory restrictions” to the right to own property in article 1, § 4(A) of the Louisiana Constitution.[50] Since acquisitive prescription is a background principle of property law in Louisiana and a reasonable statutory restriction, the State should not be liable for an unlawful taking. The Louisiana takings framework only strengthens this argument because it highlights how the property law analysis is separate from the constitutional law analysis.

In Louisiana, when a landowner sues alleging an unlawful governmental taking, the landowner must prove three things: (1) a valid property right at the time of the suit; (2) a State taking or damaging of property; and (3) that the taking or damaging was for a public purpose.[51] The Crooks majority conflated the first two prongs of the analysis when it barred acquisitive prescription as an unlawful taking. The majority only found a valid property right after barring acquisitive prescription under the second prong. The proper place to consider acquisitive prescription, however, is the first prong of the analysis because the first prong examines property law, and acquisitive prescription is a State property law rule, not a constitutional takings rule. This structure has been the analysis under an analogous situation when private land submerges beneath a navigable water body.

A landowner loses to the State any of his land that submerges beneath a bordering navigable water body by operation of law.[52] The Louisiana Supreme Court found an implied reversion[53] in present-day article 450 because the State owns “running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and seashore.”[54] The Court determined that it would be untenable to allow private landowners to own land on the brim of a navigable water body where the landowner could restrict public access.[55]  The State is not liable for a taking because the landowner loses the property right at the time the land submerges.[56] Therefore, at the time of the suit, the landowner fails to satisfy the first prong of the takings analysis, and a court will not even consider the second prong.

An acquisitive prescription analysis should reach a similar result as the implied reversion analysis because both are rules of Louisiana property law.[57] Therefore, a court should examine acquisitive prescription under the first prong and not the second prong. After the State proves acquisitive prescription, the property transfers to the State retroactive to the initial date of possession.[58] Thus, the landowner does not have a valid property right at the time of the suit; therefore, there is no unlawful taking. Although the landowner loses property, implied reversion and acquisitive prescription serve important public purposes. The former protects public access to navigable water bodies,[59] and the latter resolves murky property titles.[60]

C. Public Policy Supports the Running of Acquisitive Prescription in Favor of the State

Louisiana is known as Sportsman’s Paradise because of its vast natural resources. The State’s valuable water bodies attract tourists from around the world and provide sustenance for Louisiana residents.[61] Louisiana and its residents generate a substantial portion of revenue each year from tourism; further, Louisiana fishermen rely on public access to water bodies for their livelihoods.[62] As enshrined in the Louisiana Constitution, the State has a duty to protect, conserve, and maintain natural resources, such as public water bodies, for recreational and economic use.[63] This mandate has become increasingly difficult as Louisiana’s coast is constantly changing because it has become difficult to differentiate between State-owned navigable water bodies and non-navigable private water bodies.[64]

As Louisiana land becomes more inundated, sportsmen have access to more areas for recreational and economic use.[65] Many of these new water bodies, however, are arguably private property even though the water bodies are possibly navigable.[66] Allowing acquisitive prescription to run in favor of the State would clarify ownership over some of the questionably navigable water bodies because ownership would vest in the State after 30 years of possession if the land is private property. In turn, the State could then allow public access to the water bodies for the benefit of Louisiana sportsmen and the economy.

Allowing acquisitive prescription to run in favor of the State does not punish an attentive landowner. Acquisitive prescription only takes the land from an absentee landowner and gives it to the possessor who values the thing more and has put it to productive use.[67] Commentators, however, have argued that the government does not have the same attachment to the land as a private person, thereby weakening the government’s policy reasons for acquisitive prescription.[68] When it comes to water bodies in Louisiana, however, the State has a constitutional mandate to conserve the natural resources on behalf of sportsmen, many of whom rely on natural resources to earn a living. Given the unique situation of Louisiana’s water bodies and the public’s reliance on them, acquisitive prescription serves as a legitimate method for clearing up murky property titles without significantly interfering with property rights.

IV. Conclusion

On September 4, 2019, the Louisiana Supreme Court entertained oral arguments for the Crooks case after granting the State’s writ application in May.[69] It is unlikely, however, that the Court heard any arguments about whether acquisitive prescription ran in favor of the State because the Court limited the writ grant to a single issue: whether the inverse condemnation claim prescribed.[70] It is unlikely that the Court will provide insight into this debate in its upcoming opinion, unless the Court grants a rehearing and considers the other issues.[71]

Without guidance from the Louisiana Supreme Court or future legislation, other courts must decide whether to follow the Crooks majority’s reasoning. Louisiana contains a vast amount of water bodies that are changing because of natural and man-made causes. Therefore, more disputes will likely arise in the future, similar to Crooks, in which the State, in good faith, believes a water body is public property. Ultimately, allowing acquisitive prescription to run in favor of the State is a minimal infringement on property rights because the private property owner has 30 years to challenge the State or to sue for an inverse condemnation within three years of the State’s intrusion.[72] Future courts should allow acquisitive prescription to run in favor of the State because acquisitive prescription would clear up title to many uncertain water bodies in Louisiana and prevent the absurd result of the public losing access to an area after enjoying 30 years of access.

[1] La. Civ. Code art. 3446 (2019) (“Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.”).

[2] In Louisiana, however, being in good faith is a necessary element for a trespasser to have an abridged acquisitive prescription time period. Id. arts. 3475, 3490 (requiring good faith for prescription of ten and three years, respectively).

[3] LSU Law Professor John Randall Trahan jokingly referred to acquisitive prescription as such during the author’s first-year Civil Law Property class.

[4] Boudreaux v. Cummings, 167 So. 3d 559, 570–72 (La. 2015) (Weimer, J., concurring); see also 28 G. Baudry-Lacantinerie & A. Tissier, Traité Théorique et Pratique du Droit Civil no. 29 (4th ed. 1924), in 5 Civil Law Translations 19 (La. State L. Inst. trans. 1972).

[5] See Boudreaux, 167 So. 3d at 570–72; see also Clifton v. Liner, 552 So. 2d 407, 422 (La. Ct. App. 1st Cir. 1989) (Shortess, J., concurring); William C. Marra, Adverse Possession, Takings, and the State, 89 U. Det. Mercy L. Rev. 1, 14 (2011).

[6] La. Civ. Code art. 3425 (“Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing.”); see id. art. 3476 (“The possessor must have corporeal possession. . . .”).

[7] Private things are susceptible of acquisitive prescription. Id. art. 3485. Public and common things are not susceptible of acquisitive prescription. La. Civ. Code Ann. art. 3485 cmt. b (2019).

[8] Possessing a thing within a boundary or enclosure is one way of proving actual possession; the other would be inch by inch possession. La. Civ. Code Ann. art. 3426 cmt. d (2019). Examples of boundaries or enclosures are tree lines or water bodies. John Randall Trahan, Louisiana Law of Property: A Précis 57 (2012).

[9] La. Civ. Code art. 3476.

[10] See id. art. 24 (“A natural person is a human being.”).

[11] Professor Trahan uses the terms “abridged” or “unabridged” to distinguish between short-term and long-term acquisitive prescription. See Trahan, supra note 8, at 104. “Tracts of land, with their component parts, are immovables.” La. Civ. Code art. 462.

[12] See La. Civ. Code art. 3486. A person still needs possession under article 3476. La. Civ. Code Ann. art. 3486 cmt. b (2019).

[13] See generally Christopher R. Handy, Filling the Lacuna with Water: HB 391 and Louisiana’s Problem with Public Access to Water, New Orleans Bar Ass’n (July 6, 2018), http://www.neworleansbar.org/news/committees/filling-the-lacuna-with-water-hb-391-and-louisiana-s-problem; Jacques Mestayer, Saving Sportsman’s Paradise: Article 450 and Declaring Ownership of Submerged Lands in Louisiana, 76 La. L. Rev. 889 (2016).

[14] See generally Handy, supra note 13; Mestayer, supra note 13.

[15] Crooks v. Dep’t Nat. Res., 263 So. 3d 540 (La. Ct. App. 3d Cir. 2018).

[16] La. Const. art. XII, § 13 (“Prescription shall not run against the state in any civil matter. . . .”).

[17] See generally Crooks, 263 So. 3d 540.

[18] Id. at 556–57.

[19] Kinny Haddox, Catahoula Lake Appeal Heads to Supreme Court, La. Sportsman, https://www.louisianasportsman.com/hunting/waterfowl-duck-hunting/ducks/catahoula-lake-appeal-heads-to-supreme-court/ (last visited Sept. 9, 2019).

[20] The Third Circuit determined that the issue was not actually litigated in the prior lawsuit, so it gave the issue no preclusive effect. Crooks, 263 So. 3d at 546.

[21] Id. at 546 n.7. Through the equal footing doctrine, states acquired title to the beds of all navigable water bodies to hold in each state’s sovereign capacity for the public. See id.

[22] The public trust doctrine mandates the state to own navigable water bodies for the benefit of its citizens, and states typically cannot alienate land in the public trust. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 472–73 (1988). Louisiana defines its public trust as “beds and bottoms of all navigable waters and the banks or shores of bays, arms of the sea, the Gulf of Mexico, and navigable lakes.” La. Rev. Stat. § 41:1701 (2019).

[23] The United States was responsible for most of the acts of possession. See Crooks, 263 So. 3d at 544–45. As the dissent points out, however, the State arguably proved precarious possession. See id. at 574–75 (Amy, J., dissenting). Regardless of whether acquisitive prescription could have actually been proven in Crooks, the case still broadly illustrates the issue of whether acquisitive prescription runs in favor of the State.

[24] Id. at 554 (majority opinion).

[25] Id. at 556. To focus the issue on acquisitive prescription, the author has omitted discussion about the issue of whether the plaintiff’s inverse condemnation claim prescribed. Further, the Louisiana Supreme Court will address that issue in its writ grant. Crooks v. Dep’t Nat. Res., 269 So. 3d. 691 (La. 2019) (limiting the writ grant to that single issue).

[26] See Handy, supra note 13; see also La. Civ. Code art. 450 (2019) (“Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore.”)

[27] See A.N. Yiannopoulos & Ronald J. Scalise, Jr., Property, in 2 Louisiana Civil Law Treatise § 3:10 n.1 (5th ed. West Update 2019).

[28] See, e.g., Parish of Jefferson v. Bonnabel Props., Inc., 620 So. 2d 1168 (La. 1993).

[29] Crooks, 263 So. 3d at 572 (Amy, J., dissenting) (quoting Ward v. South Coast Corp., 3 So. 2d 689, 692 (La. 1941)). The cases that the dissent cited related to tax sales; however, “no distinction is observed in the principle of acquiring by prescription.” Id. at 572–73.

[30] Id. at 555 (majority opinion).

[31] Id. (emphasis added).

[32] Id.

[33] Id.

[34] Id. at 556.

[35] See La. Const. art. I, § 4(B)(1) (“Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.”).

[36] Crooks, 263 So. 3d at 556 n.19.

[37] Id. at 567.

[38] See La. Const. art. VI, § 24 (“The public, represented by local governmental subdivisions, may acquire servitudes of way by prescription in the manner prescribed by law.”)

[39] Crooks, 263 So. 3d at 570–72 (Amy, J., dissenting).

[40] In pari materia is a method of reasoning that requires that laws on the same subject matter are interpreted in light of each other. Alain A. Levasseur, Deciphering a Civil Code: Sources of Law and Methods of interpretation 94 (2015); see also La. Civ. Code art. 13 (2019) (“Laws on the same subject matter must be interpreted in reference to each other.”).

[41] Crooks, 263 So. 3d at 570–72 (Amy, J., dissenting).

[42] Id. at 572–73.

[43] Id. (quoting Hous. Auth. of New Orleans v. Banks, 69 So. 2d 5, 8 (La. 1953)).

[44] Id. at 573.

[45] Id.

[46] La. Civ. Code art. 3485 (2019) (“All private things are susceptible of prescription unless prescription is excluded by legislation.”). Article 3485 does not distinguish who may benefit from prescription, so the law should not distinguish either without an express legislative statement. The express constitutional provision prohibiting acquisitive prescription from running against the State is an example of a legislative exclusion. See La. Const. art. XII, § 13 (“Prescription shall not run against the state in any civil matter. . . .”).

[47] See, e.g., Parish of Jefferson v. Bonnabel Props., Inc., 620 So. 2d 1168 (La. 1993).

[48] Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1052 (1992).

[49] Marra, supra note 5, at 30.

[50] Crooks, 263 So. 3d at 573.

[51] State v. Chambers Investment Co., 595 So. 2d 598, 603 (La. 1992). An inverse condemnation claim is when the landowner sues the State alleging an unlawful taking without compensation. See id.

[52] See generally Miami Corp. v. State, 173 So. 2d 315 (La. 1936).

[53] “Implied reversion” is a term that the author uses to portray the transfer of the property by operation of law. In this situation, the landowner has an implied contract with the State that if the land ever submerges beneath a navigable water body, then the landowner loses the property to the State immediately upon submersion, not by a court order. See generally id.

[54] La. Civ. Code art. 450 (2019).

[55] See generally Miami Corp., 173 So. 2d 315.

[56] See generally id.

[57] Implied reversion is a mixture of property law and obligations. See La. Civ. Code art. 1912 (“A contract is aleatory when, because of its nature or according to the parties’ intent, the performance of either party’s obligation, or the extent of the performance, depends on an uncertain event.”).

[58] See Trahan, supra note 8, at 97.

[59] See generally Miami Corp., 173 So. 2d 315.

[60] See Boudreaux v. Cummings, 167 So. 3d 559, 570–72 (La. 2015) (Weimer, J., concurring)

[61] See Mestayer, supra note 13, at 893–95.

[62] Id.

[63] La. Const. art. IX, § 1; id. art. I, § 27.

[64] See generally Handy, supra note 13.

[65] Id.

[66] Id.

[67] See Boudreaux v. Cummings, 167 So. 3d 559, 570–72 (La. 2015) (Weimer, J., concurring); see also Marra, supra note 5, at 14.

[68] See Marra, supra note 5, at 4.

[69] Supreme Court of Louisiana Official Docket retrieved from http://www.lasc.org/docket/dockets/Sept2019.pdf

(last visited Sept. 9, 2019).

[70] Crooks v. Dep’t Nat. Res., 269 So. 3d. 691 (La. 2019). Justice Weimer, however, would have issued a full grant. Id.

[71] Steven Maxwell, LA Supreme Court Hears Catahoula Lake Issue, KALB, https://www.kalb.com/content/news/LA-Supreme-Court-hears-Catahoula-Lake-issue-559414911.html (last visited Nov. 1, 2019). The interview with Representative Mike Johnson, in the article, details how the Court has not precluded considering the other issues at a later time, if necessary.

[72] See Crooks v. Dep’t Nat. Res., 263 So. 3d 540, 573–74 (La. Ct. App. 3d Cir. 2018) (Amy, J., dissenting).

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