Boudreaux v. Cummings

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Plaintiff John Boudreaux filed suit against defendant Paul Cummings seeking recognition of a predial servitude/right of way by virtue of acquisitive prescription and a permanent injunction prohibiting Cummings from interfering with his use of the right of way. Specifically, Boudreaux averred that since at least 1948, he and his ancestors in title have been using a pathway and gate to cross the neighboring property that belonged to Cummings and his ancestor in title, the Weills. Testimony established that Boudreaux, his family, and farmers employed by Boudreaux used the right of way to transport farm equipment, to get to and from town for personal errands, and for convenient access to the adjacent road. In 1969, the Weills asked Boudreaux to move the right of way. Boudreaux acquiesced in the request and continued to use the pathway until 2012, when Cummings locked the gate and prevented Boudreaux’s use. Boudreaux alleged that he adversely possessed the predial servitude for thirty years and was entitled to ownership thereof. Cummings filed a motion for summary judgment, contending that Boudreaux was a precarious possessor, and that acquisitive prescription never began to run in Boudreaux’s favor. The trial court denied the motion for summary judgment, finding genuine issues of material fact remained. The matter went to trial and the court found precarious possession was irrelevant to a discussion of ownership of an incorporeal immovable, such as a predial servitude. The trial court rendered judgment in favor of Boudreaux, ruling that the Boudreaux estate acquired a right of way over the Cummings estate by way of acquisitive prescription. Cummings appealed. After review, the Supreme Court found Boudreaux was a precarious possessor of the predial servitude, who never gave actual notice of his intent to possess on his own. Accordingly, acquisitive prescription could not and did not run in his favor. The Court reversed the court of appeal’s judgment and rendered judgment in favor of Cummings. View "Boudreaux v. Cummings" on Justia Law