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Harper v. Willis - 383 So. 2d 1299 (La. Ct. App. 1980)

Rule:

Occupancy is not a mode of acquiring the possession, except when it is retained by the acquirer with the intention of keeping it as his own property. La. Civ. Code Ann. art. 3436 provides that to be able to acquire possession of property, two distinct things are requisite the intention of possessing as owner and the corporeal possession of the thing. There must be a positive intention to take and commence a possession, as owner, in order that possession, as owner, may be created and commenced.

Facts:

Plaintiff Leroy Harper, the occupier, had begun to run cattle on the whole two-section tract in about 1939 and continued thereafter to do so. He was interested in purchasing it, but it was sold to defendant Ray Preston Willis. Harper sought to be maintained in the possession of immovable property consisting of a rectangular tract of open land against defendant Willis, the landowner. Harper asserted that he "possessed" the land by grazing his cattle on it and doing certain other acts upon the land. Harper alleged that he had been disturbed in his possession by the recordation of a document that purported to convey the property to the owner. The trial court granted Willis's motion for summary judgment.  Harper appealed the case.

Issue:

Was the occupier ever had the intent to acquire possession as required by La. Civ. Code Ann. art. 3436?

Answer:

No.

Conclusion:

The Court found that Harper did not have the requisite intent to maintain the possessory action. The motion for summary judgment, and the judgment granting it, were based solely on a deposition given by Harper. Harper never testified that he acquired the property subject of this possessory action by any species of title. The action is strictly a possessory action based upon his alleged possession quietly and without interruption for more than a year prior to the recordation of the conveyance to Willis. The Court held that Harper affirmed in every way possible that he intended no adverse claim to the property in question. Harper made no pretense of title, and acknowledged that he did not own the property. The Court affirmed the judgment of the trial court, which dismissed the occupier's possessory action.

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