Comment

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By Anh T.P. Do*

 Introduction

“If a man owns a little property, that property is him, it’s part of him . . . and some way he’s bigger because he owns it. Even if he isn’t successful he’s big with his property.”[1]

          Owning property matters. From ancient civilizations to modern societies, ownership of property persists as a symbol of economic stability.[2]  As captured by the quote above, owning property instills in individuals a sense of pride and self-reliance.[3]  Laws governing the acquisition and loss of ownership rights over immovable property include some of the most fundamental concepts in Louisiana property law.  Louisiana protects property owners’ rights and asserts that ownership cannot be lost because of nonuse or neglect.[4]  However, ownership can be lost to an adverse possessor,[5] who may ironically be nothing more than a trespasser.[6]

          In Louisiana, a claimed owner who has lost their right to possess may bring a petitory action[7] against another in possession of that property to seek court recognition and enforcement of their ownership rights.[8]  One of the two methods to establish ownership is to show acquisition from a “previous owner.”[9]  While proving such acquisition may seem straightforward, it presents challenges in practice.  For example, the plaintiff must establish “an unbroken chain of transfers from a previous owner,” frequently referred to as “title good against the world.”[10]  Under Louisiana jurisprudence, meeting this standard requires the plaintiff to show an unbroken chain of title back to a sovereign, which means tracing title back to 1812—the year Louisiana attained statehood.[11]  Proving title good against the world presents a daunting and likely impossible task, as demonstrated by the following scenarios.  

          In the first scenario, imagine that Tung, a landowner in rural Louisiana, diligently cultivated a tract of land called Yellowacre, specializing in the growth of exotic tropical fruits, such as durians and dragon fruit.  After nine years of hard work, he took a short vacation to Vietnam in 2020.  Unfortunately, the Covid-19 pandemic struck shortly after his arrival, and Vietnam closed its borders.[12]  Strict travel regulations and international travel bans[13] prevented Tung from returning to Louisiana for two years.  Upon his return, he discovered that his neighbor had cleared his land and claimed possession.  The neighbor was a mere trespasser because he did not have any title to the land.  Nevertheless, the neighbor corporeally possessed[14] the land for over a year.[15]  In response, Tung filed a petitory action against his neighbor; however, he faced a problem. Despite being able to trace his ownership back for generations, a break of sixteen years existed in the title chain over a hundred years ago.  Prior to the 2023 legislative revisions, Tung would likely fail to reclaim ownership of the land from his neighbor because of his inability to prove an unbroken chain of valid title from a previous owner or to establish by acquisitive prescription.[16]

          In the second scenario, suppose that the facts were the same, except for one crucial difference: Tung’s neighbor had possessed the land for a full ten years.  Predictably, Tung would again not prevail in this altered scenario, despite the minor defects in his title.  This second hypothetical reflects a simplified version of Pure Oil Co. v. Skinner, a seminal case from the Louisiana Supreme Court that stirred considerable controversy among Louisiana judges, lawyers, and commentators.[17]

          The law that governed Louisiana jurisprudence for almost fifty years resulted in the inequitable outcome in the first scenario, where a short-term trespasser prevailed over Tung, a rightful landowner, despite his years of work on the land.  However, in 2023, the Louisiana State Legislature passed Act 421, significantly changing the rules governing petitory actions and possessory actions[18] included in both the Louisiana Civil Code and the Louisiana Code of Civil Procedure.  With this revision, Tung would only need to prove a better title than the trespasser, relieving him of the heightened burden of proof.

          Accordingly, this Comment focuses on two specific changes under the 2023 revision: the definition of a petitory action and the plaintiff’s burden of proof in such actions.  Part I of this Comment provides information on the evolution of the burden of proof imposed on the plaintiff, particularly when the defendant is in possession.  Part II compares the pre-revision law with the new provisions, highlighting the most significant changes.  Lastly, Part III examines the potential effects of the revised law on landowners and considers whether the 2023 revision effectively addresses existing problems or if further legislative refinement is necessary.

I. POSSESSION, OWNERSHIP, AND THE BURDEN OF PROOF IN LOUISIANA

          To fully understand the revision’s effects on landowners, it is necessary to examine the state of the law before the revisions and those laws’ effects on the parties involved in property disputes.  Part I will first highlight the differences between possession and ownership by defining each and their related concepts in Section A.  Next in Section B, it will trace the historical development of the plaintiff’s burden of proof within Louisiana’s petitory action with a primary emphasis on establishing title good against the world.  Finally, Section C will discuss a renowned civil law professor’s effort to make substantive changes to plaintiff’s burden of proof in the 1970s.

          A. NAVIGATING POSSESSION AND OWNERSHIP: KEY CONCEPTS IN LOUISIANA PROPERTY LAW

           For several reasons, it is important to understand the term “in possession” when navigating the Louisiana Civil Code and Code of Civil Procedure articles pertaining to property law.  The Louisiana Civil Code defines ownership and possession, while the Code of Civil Procedure outlines the procedural mechanisms, including possessory and petitory actions, through which disputes over these concepts are resolved in court.  First, in certain circumstances, whether the defendant is in possession will trigger the petitory action raised by the plaintiff.[19]  Next, the petitory action heightens the concept of possession because the plaintiff’s burden of proof depends upon whether the defendant is in possession.[20]  Finally, under the anti-cumulation rule, the plaintiff cannot simultaneously be in possession and assert the petitory action.[21]

                    1. Differences Between Possession and Ownership

          In Louisiana, cases frequently arise where a purported true owner of immovable property brings suit to recover the possession of the property against an actual possessor of a thing who may not hold any real right of ownership.[22]  Consequently, possession and ownership under Louisiana property law are two distinct concepts that may be easily confused.[23]  Importantly, “[o]ften a person who holds the real right of ownership in a thing also has factual possession of that thing. But that is not always the case.”[24]

          The Civil Code defines ownership as “the right that confers on a person direct, immediate, and exclusive authority over a thing.  The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.”[25]  In contrast, possession is “the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.”[26]  To acquire possession, a person must have both corpus (physical detention or enjoyment of a thing) and animus (intent to possess as owner).[27] The Code also requires possession to be “continuous, uninterrupted, peaceable, public, and unequivocal.”[28]

          Additionally, the Louisiana Civil Code declares that possession is a matter of fact that carries significant legal consequences.[29]  Article 3422 states that when possession is sustained for more than one year, that gives rise to the possessor’s right to possess.[30]  Notably, possession is distinguishable from the right to possess, which entails a possessor’s claim to remain in undisturbed possession if they have been disturbed and to regain possession if they have been evicted from the property.[31]  Having the right to possess also entitles a possessor of immovable property to protection by the nominate possessory action.[32]  The right to possess is pivotal in a purported true owner’s effort to reclaim the property because without it, the claimed true owner will need to initiate a petitory action to reclaim possession of the property.[33]

                              The Significance of Possession: Acquiring Ownership through Acquisitive Prescription

          Ownership of a thing cannot be lost solely because the owner failed to exercise the rights and privileges of ownership,[34] but it can be lost involuntarily in two ways—one being “when acquisitive prescription accrues in favor of an adverse possessor.”[35]  Significantly, possession leads to acquisitive prescription,[36] which is “a mode of acquiring ownership or other real rights by possession for a period of time.”[37]  In Louisiana, acquisitive prescription of immovable property law takes two forms: ten-year and thirty-year prescription.[38]  The requisites for ten-year acquisitive prescription are possession, good faith, just title, and a thing susceptible of acquisition by prescription.[39]  In contrast, thirty-year acquisitive prescription allows a person to acquire ownership of immovable property based solely on uninterrupted possession, without requiring just title or good faith.[40]  Acquisitive prescription of any form runs against any true owner of property, except for the state.[41]

                              Louisiana’s Public Policy: Keeping Property in Commerce

          The rules governing possession represent Louisiana’s core public policy that “land should always remain within the stream of commerce and susceptible to development.”[42]  The rationale behind Louisiana’s public policy mirrors France’s public policy toward land development in the nineteenth-century.[43]  France prioritized the development and preparation of land for agriculture use both before and after the French Revolution, with the goal to encourage individuals to commercialize their land.[44]  Louisiana similarly valued development of land in the early 1800s­—when the Louisiana Digest of 1808 was adopted.[45]  Thereby, acquisitive prescription punishes the passive owner who neglects or abandons their land and rewards the active possessor for taking proactive steps to manage vacant properties,[46] reflecting this strong policy.[47]

                    2. The Possessory Action and Its Relation to the Petitory Action

           Under present Louisiana law, rights of ownership and possession of immovables may be asserted in a number of different nominate real actions.[48]  These include actions such as the petitory action, the possessory action, and the declaratory judgment action expressed in the Code of Civil Procedure,[49] and even the jurisprudentially created jactitory action.[50]  This Comment focuses on the core civilian distinction between an action to determine possession—namely, the possessory action—and an action to determine ownership—the petitory action.[51]

          As discussed, a possessor or precarious possessor[52] initiates the possessory action to maintain or restore his possession.[53]  In the possessory action, ownership of the immovable is not at issue; in other words, the possessory action is not used to protect ownership in immovable property.[54]  Courts assess evidence of ownership or title to the immovable property solely for the purpose of proving possession, extent, or duration of possession.[55]  Therefore, the possessory action, which asserts the protection of the possession of immovable property, must be distinguished from the petitory action which recognizes and enforces ownership in immovable property.[56]

          A person who prevails in a possessory action will receive a judgment recognizing their right to the possession of the immovable property.[57]  This judgment will either restore them to possession, if previously evicted, or enable them to maintain possession.[58]  As a result, they can order the non-possessor to assert his claim of ownership in a petitory action within sixty days after the date of final judgment.[59]  If the non-possessor fails to assert their ownership within this timeframe, they are precluded from claiming ownership forever.[60]

          Importantly, good faith is immaterial in possessory actions because the Code of Civil Procedure specifically provides that the plaintiff may possess in good faith or bad faith and still bring the possessory action.[61]  Consequently, a mere trespasser can bring a possessory action provided that they are in possession for the requisite one-year period before the disturbance occurs.[62]  This law becomes problematic because the moment a mere trespasser acquires the right to possess, they can force a claimed landowner to initiate a petitory action, potentially placing the burden on the individual asserting ownership to prove title good against the world.[63]  Alternatively, if successful in a possessory action, the trespasser can compel the purported landowner to assert ownership within a short timeframe.[64]

          In contrast, the petitory action protects ownership and real rights in immovable property.[65]  Only a non-possessor asserting ownership may assert the petitory action; one cannot initiate petitory action if they are in possession of the disputed property.[66]  Accordingly, the Code of Civil Procedure 2023 revision defines the petitory action, an indirect descendant of the Roman rei-vindicatio,[67] as an action initiated by a person asserting ownership but lacking the right to possess.[68]  This action seeks a judgment recognizing plaintiff’s ownership against a party in possession or asserting adverse ownership.[69]

          B. TRACING THE HISTORICAL DEVELOPMENT OF “TITLE GOOD AGAINST THE WORLD” AS A BURDEN OF PROOF IN LOUISIANA PETITORY ACTION

           The burden of proof imposed on the plaintiff in a petitory action depends on whether the defendant is in possession.[70]  In other words, the defendant’s possession status determines whether the plaintiff must meet the rigorous and often impossible burden of proving title good against the world.[71]  Under the 2023 revision, if the defendant held possession (1) in good faith for one year with just title or (2) for ten years without considering good faith or just title, the burden of proving ownership through title good against the world or through acquisitive prescription shifts to the plaintiff.[72]

          This Section will first examine the burden of proof established in jurisprudence prior to the Pure Oil decision.  Next, it will explore the majority’s rationale in arriving at such a harsh ruling in Pure Oil and highlight Justice Summers’s insightful dissenting opinion.  Finally, it will address lower courts’ criticisms in subsequent cases.

                    1. Burden of Proof Pre-Pure Oil: A Lesser Burden of Proof When Defendant Has No Semblance of Title

                               Under the Louisiana Code of Practice

          Before the adoption of the Louisiana Code of Civil Procedure in 1960, the Louisiana Code of Practice governed civil procedure in the state.[73]  Article 5 of the Code of Practice defined the petitory action, and article 44 defined the burden of proof placed upon the plaintiff when asserting this action against a possessor.[74]  Article 44 further provided that, “[t]he plaintiff in an action of revendication must make out his title, otherwise the possessor, whoever he be, shall be discharged from the demand.”[75]  Thus, it was incumbent upon the plaintiff to prove every fact necessary to establish title in himself[76] because “[i]t [was] a principle of law so familiar as to have become trite that a plaintiff in a petitory action must recover upon the strength of his own title, not upon the weakness of that of his adversary.”[77]  In summary, until the plaintiff made out a good title, the defendant could rely solely on his possession.[78]

          Despite requiring a plaintiff in a petitory action to rely on the strength of their own title, Louisiana courts during this time differentiated between situations where the defendant was in possession of the disputed property with a title translative of ownership and those where the defendant in possession failed to produce title.[79]  The courts held the plaintiff to a higher burden of proof where the defendant possessed some semblance of record title than if the defendant was a mere trespasser with no title at all.[80]  Determining the plaintiff’s burden of proof when the defendant could produce some semblance of title, however, was inconsistent; for instance, some courts held that if the defendant was in possession, in good faith, and under a title translative of property, then the plaintiff had to establish a perfect title or ownership in himself.[81]  On the other hand, where the defendant could not produce any title whatsoever, courts uniformly imposed the following burden:[82] the plaintiff did not need to establish title good against the world; they merely needed to establish a “better title” than that of the defendant.[83]

          In Kernan v. Baham, the Louisiana Supreme Court accordingly ruled against a defendant whose claims in a petitory action rested solely on possession.[84] The court required the plaintiff to establish a better title than the defendant, instead of one perfect in all respects.[85]  Although the defendant had been in possession for over one year, due to the defendant’s failure to show a title to the land, “he [was] considered, for the purposes of this suit, as a trespasser, and the plaintiff [was] not held to establish, as against him, a title perfect in every respect.”[86]

          Subsequent courts also adhered to Kernan’s rational.[87]  For example, in Hutton v. Adkins,[88] after noting that the defendants were in possession for only a few years without title to the land in dispute, the Louisiana Second Circuit found them to be trespassers.[89]  The court reiterated that under article 44 of the Code of Practice, the plaintiff in a petitory action must depend on the strength of his own title rather than on the weakness of his adversary’s title, but that the strength of the plaintiff’s title does not need to be so great where the defendant relied on possession alone.[90]  However, even though the defendant was merely a possessor, the plaintiff asserting petitory action was still bound “to produce a title anterior in date to the possession of the defendant, in order to establish ownership in himself, and to repel the presumption of ownership in the defendant, resulting from his possession.”[91]  In other words, the plaintiff only needed to prove a better title than the defendant.

                              Under the Louisiana Code of Civil Procedure 1960

          In 1948, the Louisiana Legislature instructed the Louisiana State Law Institute (Law Institute) to propose revisions of the Civil Code and the Code of Practice of Louisiana.[92]  The legislature demanded “a new code . . . based on Romanist juridical method, Romanist balance between conceptualism and individualization, [and] American needs and mid-century ideals to the end of law.”[93]  In 1960, the legislature adopted the Louisiana Code of Civil Procedure, consolidating the procedural rules generally applicable to civil actions and proceedings formerly covered in the Code of Practice, the Revised Statutes, and the Civil Code.[94]

          Article 3651 of the Code of Civil Procedure 1960 merged the former petitory action and the action to establish title.[95]  It stated that an individual could bring a petitory action against a party that was in possession of the disputed property (with or without title) or a party adversely claiming ownership.[96]  Furthermore, article 3653 expressed that the defendant’s possession, or lack of it, determined the burden of proof imposed on the plaintiff in a petitory action.[97]  To prevail, the law required the plaintiff to: “(1) [m]ake out his title thereto, if the court finds that the defendant is in possession thereof; or (2) [p]rove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.”[98]

          Importantly, the new Code of Civil Procedure 1960 only changed the burden of proof where neither party was in possession of the disputed property[99]—an instance where the plaintiff only had to prove a better title than the defendant to prevail.[100]  Under the previous Code of Practice, there was a conflict in the jurisprudence as to the burden imposed on the plaintiff when the defendant was not in possession.[101] In contrast, if the defendant was in possession of the immovable property, “the plaintiff ha[d] the traditional burden of proof: he must rely on the strength of his own tittle and not on the weakness of the title of the defendant.”[102] Article 3653(1) of the 1960 Code retained “make out his title” from article 44 of the Code of Practice.[103] The Official Revision Comment to the 1960 Code explained that these “words [were] intended to have the same meaning as given to them under the jurisprudence interpreting the source provision.”[104]

          At this point, courts continued to impose two different burdens of proof, depending on the position of the defendant.[105] If the defendant had a title, the plaintiff had to prove title good against the world.[106] If the defendant was a mere trespasser without title, the plaintiff had to establish better title in himself.[107] However, this position only persisted until the decisions of Deselle v. Bonnette[108] and Pure Oil in the 1970s.[109]

                    2. Where the Controversy Began: Pure Oil’s Ruling and the Dissent’s Insight

                               The Majority’s Holding and Its Reasoning

           In Pure Oil,  the Louisiana Supreme Court held that a person out of possession claiming the ownership of immovable property against a person in possession must prove “valid record title, to show title good against the world without regard to the title of the party in possession.”[110]  In other words, this burden applied irrespective of whether the defendant-possessor had title.[111]  This suit arose from a dispute between the Skinners-plaintiffs and the Simontons-defendants regarding ownership of approximately one and one-half acres of land.[112]  The Louisiana Second Circuit first found that despite the sixteen-year break in the chain of title, the plaintiffs proved their title all the way back to 1874, and they further showed the chain of title from 1858 back to the sovereign.[113]  Next, the court noted that the defendants had been in possession of the disputed property for over ten years.[114]  Despite their possession for over ten years in good faith, the court nonetheless found that the Simontons lacked a deed translative of title and, thus, could not acquire the property via acquisitive prescription of ten years.[115]  Therefore, the plaintiffs made out a title in themselves while the defendants could not.[116]

          On rehearing, the Second Circuit reaffirmed the lesser burden of proof imposed on the party claiming ownership against an adverse party who was in possession without any semblance of title.[117]  Specifically, it explicitly disagreed with the Third Circuit in Deselle where the court held that the plaintiff had to prove a valid title, irrespective of whether the defendant had a title.[118]  The Second Circuit reasoned that the Deselle decision “allow[ed] a trespasser without semblance of title to take physical possession of another’s property and should his possession endure for more than one year . . . , any break in the owner’s chain, however ancient, would defeat a petitory action to recover the property.”[119]  The Second Circuit also emphasized that this ruling misaligned with the legislature’s intent in enacting the Code of Civil Procedure.[120]

          The Louisiana Supreme Court ultimately disagreed with the Second Circuit’s ruling and reversed the judgment.[121]  The court held that in a petitory action against a defendant in possession, the plaintiff must prove title good against the world, even if the defendant was a trespasser with no title at all.[122]  The court reasoned that the burden of proof placed on the plaintiffs had to be greater than proving a better title because “[t]he statutory imposition of a higher burden of proof than simply proving better title when an adverse claimant [was] in possession of disputed land [led] to the inevitable conclusion that [the plaintiffs’] burden was to ‘make out his title thereto.’”[123]  Because of the sixteen-year break in their title more than a hundred years ago,[124] the plaintiffs failed to prove title good against the world.[125]  Consequently, the Louisiana Supreme Court ruled in favor of the defendants, declaring them the owners of the disputed land.[126]

                              Justice Summers’s dissent

           Justice Summers strongly dissented based on the Skinners having a “good, valid and perfect title.”[127] He observed that, given the drafters’ comment to article 3653, the jurisprudentially developed standards interpreting article 44 of the Code of Practice still governed the burden of proof imposed on a plaintiff when a defendant was in possession.[128]  He emphasized that requiring a title perfect against the whole world virtually demanded the impossible in some cases, especially considering that courthouses were burned down and the deeds needed to complete chains of title were nonexistent.[129]  Justice Summers warned of the inequitable consequences of the majority’s opinion:

To permit a possessor to occupy one’s property for more than a year, and then compel the owner to come forth with a complete chain of title, perfect in all respects, to oust the possessor is entirely unsupported by the statutes or decisions of this Court. Such a rule is certain to create many problems seriously impairing stability of titles in this State.[130]

His concern about potential abuse echoed the Second Circuit’s sentiments.[131]  Overall, Justice Summers opined that the plaintiffs had not only made out an “apparently valid” title, but they had also established a “perfect” title.[132]

                    3. Doubts Arising After the Ruling

          Soon thereafter, the legislature adopted article 531 of the Louisiana Civil Code, confirming that in a petitory action where the defendant was in possession, the plaintiff must prove ownership, even if the defendant was merely a trespasser.[133]  Subsequently, article 3653 of the Code of Civil Procedure was amended to align with article 531.[134]  Some courts and commentators interpreted this alignment as a legislative endorsement of the court’s interpretation of article 3653(1) in the Pure Oil case.[135]  Article 3653(1) of 1981 provided that if the defendant was in possession, the plaintiff had to prove “that he ha[d] acquired ownership from a previous owner or by acquisitive prescription.”[136]  Proving acquisition of ownership from a previous owner under this article required the plaintiff to establish an unbroken chain of transfer from a previous owner back to the sovereign.[137]

          Since Pure Oil, Louisiana judges, lawyers, and commentators alike questioned the fairness and practicality of the Pure Oil standard.[138] For example, in Freeman Baptist Church v. Hillen, the church sought to establish its purported ownership of a disputed three-acre parcel of land in a petitory action against two trespassers who did not have any semblance of title but only had verbal permission to be on the property.[139] The defendants were in possession of the disputed property for approximately two years.[140] Despite proof of title dating back to a 1937 tax sale and submission of a 1906 deed, the First Circuit found that the plaintiff failed to meet the Pure Oil standard.[141] Responding to the plaintiff’s argument that the legislature could not have intended to enact a rule as harsh as the Pure Oil interpretation of article 3653,[142] the majority noted that they “seriously question the wisdom and practicality of the application of the rule laid down in [Pure Oil] . . . Nevertheless, the holding in [Pure Oil] . . . is clear and unmistakable. We apply it in this instance only because we must.”[143]

          Thus, Louisiana courts reluctantly adhered to the decision while voicing their criticisms.[144] In his dissent, Judge Cole argued that Pure Oil’s holding erred based on his finding that “no valid bases in our law upon which to predicate the harsh jurisprudential rule of [Pure Oil] to the effect that a plaintiff in a petitory action, as against a mere squatter or trespasser, must establish a perfect title.”[145]  He agreed with Justice Summers that in this scenario, the plaintiff was only required to prove an apparently valid title.[146]

          C. A PRE-2023 EFFORT TO ADDRESS POTENTIAL ABUSES:  A.N. YIANNOPOLOUS’ PROPOSALS IN THE 1970s

          The burden of proving an unbroken chain of valid title back to the sovereign from an undisputed original owner was known in medieval Europe as the probatio diabolica or the “devil’s proof” due to its notorious difficulty.[147]  Therefore, in the late 1970s, prominent Louisiana law  Professor A.N. Yiannopoulos[148] proposed to the Law Institute substantive changes to the plaintiff’s burden of proof but failed to gain approval.[149]  Their report presented three alternative proposals;[150] this Comment focuses on the second and third proposals.[151]

          The second proposal suggested that when “the defendant [was] in possession of the immovable . . . by virtue of an act translative of ownership,” the plaintiff had the traditional burden of proof—title good against the world.[152]  If, however, the defendant “possesse[d] without an act translative of ownership,” the plaintiff only had to prove a better title.[153]  Professor Yiannopoulos noted that this proposal was based on Louisiana jurisprudence before the adoption of the Code of Civil Procedure.[154] Specifically, the reasonings and holdings of two Louisiana Supreme Court cases, Kernan[155] and Hutton,[156] supported this proposal.  Under this proposal, two things determined the plaintiff’s burden of proof: the defendant’s possession and the defendant’s ability to produce a semblance of title.[157]  Approval of this approach would have “legislatively overrule[d] [Pure Oil]” where the court required the plaintiff to prove their ownership even if the defendant had no title.[158]

          Next, Yiannopoulos’s third proposal provided:

One who claims ownership of an immovable against another in possession must prove that he has acquired ownership from a previous owner or by acquisitive prescription. One who had possession of an immovable in good faith and under just title shall prevail against a possessor who has no title. If neither party is in possession, he need only prove better title.[159]

Rooted in Roman law, this proposal attempted to alleviate  the challenges associated with the devil’s proof through the Publician action which “permitted a former possessor who had been in the process of acquiring ownership through acquisitive prescription to maintain an action for ownership against a mere squatter.”[160]  The action provided protection for two types of possessors: (1) those who gained possession from the owner of the tract of land but faced challenges proving ownership due to deficiencies in the title chain and (2) good faith possessors who acquired the property under a just title from a non-owner.[161]  A Publician action “did so by dispensing them from the requirement of the full passage of time in order to maintain their claims against an adverse claimant.”[162]  

          Even though the Publician action was never codified in Louisiana,[163] the Louisiana Supreme Court introduced its principles in Bedford v. Urquhart:

We have also the authority of Pothier, for assuming as a principle, that although regularly the action of revendication can be maintained only by the owner, it may sometimes be maintained by one who is not the real owner, but was in the way of becoming so, when he lost the possession.  For he who was in possession in good faith, in virtue of a just title, and lost the possession before the period required for prescription, can recover it in a petitory action, from one who is in possession without title.[164]

Under this view, the court alternatively focused on the plaintiff’s possession, rather than the defendant’s, to determine which burden of proof applied.  When considering a property dispute claim between a plaintiff who held possession in good faith under a just title and a mere trespasser lacking any title, the plaintiff “shall” prevail.[165]  Overall, both proposals lowered the burden of proof imposed on the plaintiff when the adverse party was a mere trespasser without producing any title translative of ownership.  While the second proposal considered the defendant’s possession to determine the plaintiff’s burden of proof, the third proposal focused on the plaintiff’s prior possession as the determining factor.  Consequently, given the potential for inequities in the law, there was a need for change and improvement to ensure fairness in the application of petitory actions.

II. THE 2023 REVISION: SIGNIFICANT CHANGES AIMING TO REDUCE THE POTENTIAL FOR ABUSE IN PROPERTY DISPUTES

          Part II of this Comment will first examine the Louisiana State Legislature’s concerns about the fairness of existing laws to landowners, which prompted the calls for reform in Section A.  Next, Section B will discuss the technical changes made to the definition of petitory actions.  Finally, it will analyze the revised burden of proof, focusing on how the circumstances that trigger the requirement for “title good against the world” have been narrowed to reduce the potential for abuse in property disputes in Section C.

          A. THE CALL FROM THE LOUISIANA STATE LEGISLATURE

          In 2016, Senate Concurrent Resolution No. 42 asked the Law Institute “to study and make recommendations regarding the applicability of ‘possessory action.’”[166]  The resolution focused on circumstances where individuals claimed possession of another’s property even though the landowners had possessed the land undisrupted for an extended period.[167]  Because article 3660 of the Code of Civil Procedure provides that the possessory action is available to any person in possession of immovable property—irrespective of good faith, bad faith, or even trespasser-status[168]—the resolution expressed concerns that the language in the article might be unfair to landowners due to the possibility of abuse in its practical application.[169]  The Law Institute created the Possessory Actions Committee (Committee) to study and propose changes to the law as requested by the resolution.[170]        

          During the March Council meeting, the Committee’s Reporter gave an example involving a fishing camp to illustrate the challenges of demanding the devil’s proof under existing laws.[171]  The Reporter noted that if a usurper occupied an absent camp owner’s premises for a year, the owner lost their right to possess it and must initiate a petitory action.[172]  Because the usurper-defendant was in possession, the owner must prove their title good against the world.[173]  If the plaintiff failed to meet this burden of proof, the usurper would win the petitory action despite only possessing the property for a year.[174]

          The Committee recognized that allowing a relatively short-term possessor to prevail in a possessory action and imposing the heightened burden of proof on the plaintiff in a subsequent petitory action could lead to abuse by opportunistic possessors.[175]  In particular, a mere squatter with no title at all could take advantage of the current law to defeat a purported landowner’s ownership claims after only one year of possession.[176]  This causes concern because the landowner “might have been previously in possession for a considerable length of time and whose title to the immovable is nearly, though not completely, perfect.”[177]  The Committee agreed on the harshness of this burden of proof and considered the Publician Action.[178]  The Committee, however, felt the language was too strong and opted instead to focus on the defendant’s possession when determining the plaintiff’s burden of proof.[179]  Other Committee members agreed with this approach and added that “something more” should be required of the defendant before the plaintiff is required to prove an unbroken chain of title back to the sovereign.[180]  Eventually, the Law Institute proposed revisions to the Code of Civil Procedure articles 3653 and 3654, as well as the Civil Code article 531, significantly narrowing the circumstances when a petitory action plaintiff must prove title good against the world.[181]  Ultimately, the Louisiana Legislature passed Act 421, the Governor signed the measure, and it became effective on August 1, 2023.[182]

          B. TECHNICAL CHANGES IN PETITORY ACTION DEFINITION

          Revised article 3651 of the Code of Civil Procedure makes technical changes in the definition of the petitory action, clarifying that a person who loses possession within a year should not pursue petitory action:

The petitory action is one brought by a person who claims the ownership of, but who does not have the right to possess, immovable property or a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff’s ownership.[183]

The article clarifies that “a petitory action is brought by one who does not have the right to possess.”[184]  Possession is a question of fact and is distinct from the right to possess, which arises from possession of a thing for over one year.[185]  While possession is lost when the possessor is evicted by an adverse party,[186] the right to possess is lost only if the evicted possessor fails to assert an action to recover possession within a year of the eviction.[187]  This change provides practitioners with clear guidance on handling cases involving property disputes.  Now, if a person loses physical possession of immovable property but retains the right to possess it, they should pursue a possessory action against the person who evicted them.[188]  This situation arises when a possessor loses possession due to force or usurpation, but the one-year period since the eviction has not elapsed, meaning he has not forfeited their right to possess and should therefore refrain from asserting a petitory action. Thus, opting for a possessory action avoids a higher burden of proof.

          Although the 2023 revision introduces technical changes to article 3651, it retains many core principles of the old law.  First, the new legislation does not significantly alter the 1981 Code’s explicit requirement that the petitory action is only available to a non-possessor asserting ownership or a real right therein.[189]  Next, the law maintains that various plaintiffs, including co-owners, co-usufructuaries, individuals holding real rights subject to suspensive or resolutory condition,[190] and mineral right owners,[191] retain the right to commence the petitory action.[192]  Finally, similar to the old law, three circumstances exists where a non-possessor seeking recognition of title in immovable property can bring the petitory action: (1) where a defendant in possession is asserting an adverse claim of ownership or of real rights; (2) where a defendant in possession but does not assert any ownership claim; and finally, (3) where a defendant not in possession is asserting an adverse claim of ownership or of real rights.[193]  In other words, the principle that the plaintiff can assert this action against the defendant regardless of whether the defendant is currently in possession of the immovable property is consistent with the previous legislation.[194]

          C. BURDEN OF PROOF–NARROWING THE CIRCUMSTANCES THAT TRIGGER “TITLE GOOD AGASINT THE WORLD”

           The Official Revision comments note that the 2023 Code of Civil Procedure “changes substantially the burden of proof imposed upon the plaintiff in a petitory action when the defendant has the right to possess.”[195]  Revised article 3653 of the Code of Civil Procedure provides:

A. To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:

(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant has been in possession for one year after having commenced possession in good faith and with just title or that the defendant has been in possession for ten years.

(2) Prove a better title thereto than the defendant in all other cases.

B. When the titles of the parties are traced to a common author, the common author is presumed to be the previous owner.[196]

The new Civil Code article 531 mirrors these substantive changes in the Civil Code of Procedure.[197]

          Notably, the defendant’s possession remains determinative of the plaintiff’s burden of proof.  Under the Louisiana Code of Civil Procedure 1981, if the defendant was in possession, the heavy burden of proof of ownership by title good against the world or by acquisitive prescription shifted to the plaintiff.[198]  In many cases, should a significant duration elapse since the plaintiff’s last possession or that of his predecessors in title, the plaintiff might fail in an acquisitive prescription claim due to insufficient evidence regarding the two essential elements, corpus and animus.[199]  Thus, the plaintiff’s alternative was to prove an unbroken chain of title back to the sovereign.[200]

          In an attempt to mitigate these inequalities, the new law significantly narrows the circumstances where the plaintiff must prove an unbroken chain of title from the previous owner back to 1812.[201]  The varying levels of burden of proof for plaintiffs under the revised article apply in three scenarios: (1) when the defendant has been in possession for one year with just title and in good faith at the commencement of possession; (2) when the defendant has been in possession for a full ten years without considering just title and good faith; and (3) other cases where neither of the two circumstances applies.[202]  The final circumstance can encompass various situations, such as when both litigants trace their titles to a common author,[203] when the defendant is also out of possession,[204] or when the defendant has been in possession shy of ten years but lacks good faith or just title.

                    1. One Year of Possession, Good Faith, and Just Title

          In the first circumstance, the revision resolves scenarios where a mere trespasser, who lacks any semblance of title but holds possession for over a year, could otherwise triumph over a purported true owner with minor defects in their chain of title.[205]  Under the revision, before the plaintiff must prove ownership from a previous owner, the court must find that all of the following requisite elements are met: (1) the defendant possessed the immovable property for over one year such that the plaintiff has lost his right to possess,[206] (2) by virtue of a semblance of title, and (3) the defendant’s possession commenced in good faith.[207]  Article 3653(1) represents a legislative overruling of fifty years of jurisprudence that “the title of the defendant in the petitory action is not at issue until the plaintiff has proved valid title in himself.”[208]  Thus, once courts find that the defendant possessed the immovable property for over a year, the analysis does not conclude, and the burden of proof does not immediately shift to the plaintiff.  Instead, courts must further ascertain whether the defendant satisfies their burden of proving the other two elements: just title and good faith.

          The revision comments clearly state “good faith and just title mentioned in [Article 3653] are identical to the good faith and just title necessary to start the running of the acquisitive prescription of ten years under Civil Code Article 3475.”[209]  Because good faith encompasses two distinct components, subjective and objective),[210]  Louisiana courts must assess whether the defendant in possession “subjectively believes he is the true owner of the thing he is possessing … [and whether] this belief [is] objectively reasonable under the circumstances.”[211]  The Louisiana Supreme Court holds that a finding of good faith requires evaluating all the factors specific to the case that are relevant to defining good faith.[212]  Therefore, courts must consider “a wide spectrum of personal, geographic, and transactional facts and circumstances in making good-faith determinations in ten-year acquisitive prescription claims.”[213]

          Next, the law presumes good faith in favor of the defendant in possession; and, therefore, the claimed property owner has the burden to prove that the possessor is not in good faith.[214]   A plaintiff may rebut this presumption by showing that the possessor has actual knowledge or objectively should have knowledge that they are not the record owner of the property.[215]  Good faith is determined when possession begins,[216] and the possessor’s good faith status continues throughout his possession, despite later bad faith.[217] Cases where the possessor does or does not conduct a title examination complicates the assessment of their good faith.  In the acquisitive prescription context, Louisiana courts have held that if an individual reasonably relied on the representations of his seller and the opinion of a professional title attorney, they should be able to claim the status of a good faith possessor.[218]  At the same time, failure to conduct a title search will not per se deem a possessor as one in bad faith.[219]  Based on the 2023 revision comments, one could predict that courts will apply the same reasoning to determine good faith in acquisitive prescription jurisprudence to the defendant-possessor in a petitory action.

          Additionally, courts must refer to Louisiana Civil Code article 3483 for guidance when assessing whether the defendant in a petitory action possesses just title.[220]  However, determining just title can be complex because the term entails various components.  First, a just title must be a juridical act that sufficiently transfers ownership, like “a sale, exchange, or donation.”[221]  In contrast, a lease, a loan, or an act declarative of ownership, like a partition or judgment, does not constitute a just title.[222]  Second, a just title need not be “derived from the true owner.”[223]  Consequently, a just title often arises from a person who genuinely believes they are the rightful owner of the conveyed property.[224]  Note, however, that this person may not actually be the owner or may not possess all of the property detailed in the document for various, uncited reasons.[225]  Third, the act must be written and be “valid in form.”[226]  For a sale of immovable property, the title must be established by either an authentic act or by an act under private signature,[227] while donations generally require an authentic act.[228]  Fourth, the act must be filed in the conveyance records of the parish where the immovable property is located.[229]  For example, if the defendant-possessor purchases a parcel of land in Gretna, Louisiana, they must file that act of sale in the conveyance records of Jefferson Parish.  If the tract of land spans two parishes, the act of sale must be recorded in the conveyance records of each parish in which the immovable property spans.[230]

          Regarding timing, “prescription commences to run from the date of filing for registry rather than from the date of entry into possession.”[231]  If this rule applies to the defendant-possessor in a petitory action as intended by the legislature, the recordation requirement must be fulfilled before possession begins to run.[232]  Therefore, if a possessor in good faith takes possession and does not record the deed until later, the critical moment for determining the commencement of their right to possess is when they record, not when they physically takes possession of the property.  

                    2. Ten Years of Possession

          In the second circumstance, where the defendant possessed the property for at least ten years, the plaintiff must meet the traditional burden of proof, either through an unbroken chain of title from a previous owner back to the sovereign or through acquisitive prescription.  However, when the claimed landowner loses possession for ten years, it is unlikely that they will pursue an acquisitive prescription claim.[233]  Consequently, the sole recourse for the plaintiff is to establish a perfect title good against the world.

          In this circumstance, one may ask, if the plaintiff fails to meet his burden of proof in establishing ownership and the defendant cannot produce any semblance of title, how will the court adjudicate the matter?  In such a case, one can predict that the court will follow established jurisprudence.[234]  The defendant who currently possesses the property will likely not be declared the owner of the property, but will be allowed to continue possessing until they can prove a thirty-year acquisitive prescription, or until another party proves ownership by tracing the title back to the sovereign.[235]  As Professor Symeonides observed, even if the court does not recognize the defendant-possessor as the owner of the property, “the judgment for [the possessor] has the same practical effects since the doctrine of res judicata would bar [the non-possessor] from relitigating the issue of ownership.”[236]  Similarly, the Committee Report submitted to the Louisiana Legislature underscored that “the defendant may not have just title and may even have been in bad faith, but he will nonetheless be well on the road to acquiring a thirty-year prescriptive title.”[237] Weaver v. Hailey best describes this scenario.

          In Weaver, the Third Circuit determined that the defendant was in possession and required the plaintiff to prove ownership of the disputed land.[238]  The court found that the plaintiff failed to meet the burden of proving title good against the world because his title could only be traced back to 1946.[239]  Next, the court concluded that the defendant was also unable to prove ownership, either by title or by ten year acquisitive prescription, because there was uncertainty about whether the contested tract could be described accurately.[240]  While the court could not render a judgment of ownership in favor of either party, the plaintiff’s action was dismissed because he was unable to carry his burden of proof.[241] Thus, the defendant-possessor prevailed not because he was the true owner, but simply because his adversary failed to prove ownership.[242]  Because res judicata would bar the plaintiff from asserting the issue of ownership against the defendant again, the defendant essentially becomes the “de facto owner” of the property “vis-à-vis the plaintiff.”[243]  Consequently, this holding enables the defendant to  continue to use the property until they fulfill thirty-year acquisitive prescription requirements and become the owner.[244]

                    3. Other Circumstances

          In situations where neither of the previous, two circumstances applies, the plaintiff only needs to prove better title than the defendant.[245]  The 2023 revision does not change this burden of proof when neither party is in possession of the disputed property.[246]  As a result, if the defendant is not in possession of the property, the plaintiff can prevail solely by establishing better title in the immovable property.[247]

          Similarly, when two litigants dispute over ownership of immovable property and their titles trace back to a common author, the “common author is presumed to be the previous owner.”[248]  In these situations, the party who first filed an act demonstrating their acquisition of ownership in the conveyance records of the parish where the property is situated will prevail.[249]  However, this presumption in favor of the more ancient title from a common author can be rebutted if the opposing party has acquired ownership by acquisitive prescription or demonstrates that the common author was not the true owner.[250]  Notably, this presumption only applies between the parties involved in the litigation.[251]

          Finally, the revision introduces new scenarios where the plaintiff benefits from a more lenient burden of proof.  One of these scenarios arises when the defendant has been in possession for nearly ten years but lacks any deed translative of ownership and/or when the claimed owner successfully challenges the presumption of good faith.  In such instances, if the defendant-possessor fails to prove continuous possession of the property for ten years, the plaintiff can avoid the “devil’s proof” and asserts that the defendant’s title does not constitute an act translative of ownership or can argue that the defendant commenced his possession in bad faith.

III. THE EFFECTS OF THE NEW LAW AND UNRESOLVED ISSUES

          This Part will first examine how the 2023 revision restores fairness to landowners against short-term trespassers in Section A.  It will then discuss the unresolved tension between public policy and ownership interests in Section B, particularly the challenges posed by the continued application of the devil’s proof.

          A. RESTORING FAIRNESS TO LANDOWNERS AGAINST SHORT-TERM TRESPASSERS

          The 2023 revision effectively resolves the issue where a mere trespasser who lacks any semblance of title but holds possession for over a year could otherwise triumph over a purported true owner with minor defects in their chain of title.[252]  The revision requires “something more”—good faith and just title[253]—from the defendant-possessor before the plaintiff must establish title good against the world, ensuring that the defendant cannot be a mere usurper.[254]  One might consider such a predicament an unlikely scenario, yet Freeman Baptist Church[255] provided a real life example.  

          Under the revised article 3653, the current jurisprudence would have reached a different conclusion than the First Circuit was compelled to hold at that time. In Freeman Baptist Church, the defendants fulfilled the requirement of possessing the property for over one year.[256]  Good faith would have been presumed in favor of the defendants in this case under the revised law.[257]  Since one of the defendants’ predecessors in title had offered to sell the disputed strip to him, and the defendant subjectively believed his predecessor owned it,[258]  it would have been unlikely for the plaintiff to rebut this presumption.[259]  However, the defendants failed to produce any deed transferring ownership, necessary to fulfill the last requirement of just title.[260]  In fact, they conceded that the survey did not designate the property as belonging to either defendant.[261]  Because the defendants failed to present a just title and came short of possession for a full ten years, the plaintiff would have needed only prove better title under the new law.[262]  The First Circuit likely would have concluded that the plaintiff met its burden of proof because the plaintiff was able to establish a recorded chain of title back to 1907, and the defendants could not.[263]

          In summary, the 2023 revision resolves a significant and blatant inequality in the previous burden of proof.  This change prevents scenarios where a short-term trespasser exploits possession to undermine the owner’s rights, especially when the owner suffers minor title defect.  The revision is a commendable effort by the legislature to uphold fairness and equity in property disputes while enhancing the stability of property titles.

          B. UNRESOLVED COMPETING INTERESTS: PUBLIC POLICY VERSUS OWNERSHIP INTEREST

           While the 2023 revision solves a problem concerning short-term trespassers, this Comment argues that it does not resolve the underlying issue of equity.  On its face, the new law appears to be “a balanced and fair compromise.”[264] However, it failed to fully address the inequities present in cases involving trespassers who lack title but have been in possession of the property for a longer period than the new law’s current threshold of ten years.

          Even applying the revised article, the Louisiana Supreme Court’s ruling in Pure Oil would have yielded the same outcome.  Recall in Pure Oil, the court found that the possessor-defendants began their possession from 1947 and continued until 1961, the year the litigation commenced.[265]  With a total possession period of fourteen years,[266] this case would have fallen under the second circumstance under the new law.  The court would not have needed to assess whether the plaintiffs acted in good faith or had any color of title, of which the court found none.[267]  The plaintiffs would have similarly faced the burden of proving title good against the world.  Despite being able to trace their title back to the sovereign, with only a sixteen-year break in the chain of title from 1858 to 1874,[268] the plaintiffs would have found themselves once again deprived of ownership of the property.

          Baker v. Romero also illustrates the unresolved inequality of imposing a heightened burden of proof on the plaintiff once the defendant is in possession for ten years or more.  In Baker, the plaintiff acquired the “right, title, and interest” in a forty-foot strip of land from her relatives through a recorded cash sale deed for a nominal sum of $10.[269]  After informing the defendants, who were the owners of the adjacent property, about her acquisition and intention to conduct a survey, litigation arose when the defendants denied access to their land for surveying.[270]  The Third Circuit found that despite not having a title to the disputed strip of land,[271] the defendants had been in possession of the property for approximately eighteen years.[272]  Nevertheless, the court concluded that the plaintiff failed to meet her burden of proof to establish ownership of the property, because she could only trace an unbroken chain of title back to 1919.[273]  Consequently, the court affirmed the trial court’s decision to grant the defendants’ possessory action.[274]

          The fact that the plaintiff paid a small price to acquire title to the disputed property might have influenced what appeared to be a fair holding by the court.  However, had the plaintiff diligently conducted a title search and paid a fair market value for the property only to later discover that it was being possessed by an adjacent owner for an extensive period of time, questions would arise regarding the fairness of the outcome for this good faith purchaser.  Although the defendants had not been in possession long enough to acquire ownership through acquisitive prescription in this scenario, prevailing in the possessory action enabled them to remain and occupy the property until they fulfill the thirty-year period.[275]  While the plaintiff might have other recourse against the seller, winning the ownership dispute would not be feasible.[276]

          In addition, the two proposals by Yiannopoulos and the jurisprudence prior to Pure Oil shared the same principle: once the court determined that the defendant was in possession without any just title, the plaintiff would be relieved of the heightened burden of proof, and would only be required to prove better title.[277]  The revised legislation establishes the ten-year possession as the important threshold to require the devil’s proof from the plaintiff, even if the defendant is in bad faith and fails to provide any title.[278]  Neither the revision comments, the Report, nor the Committee minutes offer an explanation for choosing such a length of time.  Perhaps the Law Institute borrowed the concept from acquisitive prescription and concluded that ten years of possession was long enough to impose the heightened burden on the plaintiff.  Supporters of the revision might assert that the shift in the burden of proof illustrates “one of the most fundamental and deeply rooted principle of law in [Louisiana because] . . . it is contrary to public policy to restrict property from the stream of commerce for an indefinite period of time.”[279]  Additionally, “perpetual or unreasonable limits on ownership and use are not allowed.”[280]  One may also argue that such a law represents a significant compromise by the Louisiana State Legislature (and the Law Institute) and is therefore a vast improvement over what appeared under Pure Oil, which imposed the stringent burden as long as the defendant was in possession.[281]

          In contrast, opponents may assert that Louisiana’s early statehood policy, which strongly discouraged keeping property out of commerce, no longer aligns with the state’s twenty-first century policy goals.[282]  While development of land may remain significant, Louisiana “has recognized that other policies can sometimes compete with the policy that land should be kept in commerce.”[283]  Importantly, allowing a ten-year possessor to prevail against a claimed owner with some title defects essentially creates a ten-year acquisitive prescription.  This situation arises because res judicata would bar the plaintiff from relitigating ownership against the defendant.[284]  Consequently, the defendant can maintain possession until they fulfill the thirty-year requirement for acquisitive prescription.[285]  While acquisitive prescription has faced persistent criticism as an unfair means of acquiring ownership that condones blatant land thievery by bad faith possessors,[286] this invasion upon ownership rights has been justified by the landowner’s extended neglect of his affairs.[287]  “We lack sympathy for the former owner because prescription accrues only after the passages of decades.”[288]  Without just title and good faith, the possessor only acquires ownership after thirty years have elapsed.[289]

          By effectively creating a ten-year acquisitive prescription without requiring any semblance of title from the possessor, landowners will likely be at a significant disadvantage.  Property ownership can be lost in ten years to a trespasser without title for all types of land, but this rule is particularly concerning in disputes over various types of Louisiana land such as farmland, woodland, or marshland.[290]  Therefore, by allowing a trespasser to remain in possession once they meet the ten-year possession threshold, “Louisiana might reward bad faith possessors too easily and too quickly,”[291] which could seriously undermine property title stability in the state and discourage caution in real estate transactions.[292]  The outcome of the new law is inconsistent with the principles of acquisitive prescription, which do not grant ownership to a possessor without just title until they have continuously possessed the property for thirty years.[293]  

          Overall, the revision illustrates a tension between two competing interests: Louisiana’s public policy and the importance of ownership rights. On one hand, there is the individual who has invested considerable efforts, money, and time maintaining the property, which suggests an equitable claim to possession.[294]  A core public policy in Louisiana emphasizes the importance of keeping valuable property in the stream of commerce.[295]  On the other hand, there is the purported true owner, who understandably has a vested interest in asserting his ownership rights over the property.  Balancing these competing interests is not an easy task, and whether this is a change for the better remains unanswered.

          Although this Comment acknowledges that the new law represents a significant compromise compared to its predecessor, a decade-long timeframe is insufficient to deprive a landowner of his ownership rights in the property.  The legislature should not overlook how Louisiana jurisprudence imposed the burden of proof prior to the Pure Oil decision which protected the owner from a possessing trespasser.[296]  Under the old jurisprudence, the plaintiff was not entirely relieved of the burden of proof; they still had to demonstrate an apparently good title against the trespasser to prevail.[297]

Conclusion 

          The Law Institute and the legislature’s efforts to revise the articles that govern the petitory action and its burden of proof certainly deserve commendation.  The 2023 revision offers practitioners clear guidance when advocating for a client who has lost physical possession of immovable property but still retains the right to possess it.  The plaintiff should now pursue a possessory action instead of a petitory action to avoid subjecting oneself to a heightened burden of proof.

          Additionally, the revision addresses the inequitable treatment in cases where a short-term trespasser, who lacks any semblance of title but holds possession for over a year, could prevail over a purported true owner with minor defects in their chain of title.  Returning to Yellowacre, Tung would have received a more just and equitable outcome under the new law because his neighbor was in possession for less than ten years without a title.  Despite Tung’s inability to prove a perfect chain of title back to the sovereign, he would have been relieved of this burden and would have prevailed by sufficiently proving a better title.

          However, the new law continues to impose the same “devil’s proof” on the purported landowner if they allow the adverse possessor to be in possession of their property for a full ten years.  This rule potentially creates a ten-year acquisitive prescription claim without requiring just title on the defendant’s part, which is inconsistent with the law governing acquisitive prescription under Louisiana law.  Overall, while the new law has not effectively resolved some lingering issues, it successfully clarifies and provides thoughtful remedies for several others, making it a definite accomplishment.  

 

* By Anh T.P. Do, J.D. Candidate 2025, Loyola University New Orleans College of Law; M.A. Journalism 2020, Marshall University; B.A. English Language 2018, Sai Gon University, Vietnam. The author would like to thank Professor James Étienne Viator and Professor Markus G. Puder for their invaluable expertise and guidance throughout the drafting of this Comment, and the 2024-2025 Loyola Law Review for the help in bringing this Comment to life. Lastly, the author thanks her spouse, Tung Nguyen, as well as her parents and family for their patience and support.

 

[1] John Steinbeck, The Grapes of Wrath 37 (Penguin Books 2002) (1939).

[2] See Gary D. Libecap, The Consequences of Land Ownership, Hoover Institution (Aug. 29, 2018), https://www.hoover.org/research/consequences-land-ownership#:~:text=Property%20rights%20in%20land%20became,colonial%20economic%20and%20political%20development.

[3] See id.

[4] “Ownership exists independently of any exercise of it and may not be lost by nonuse.” La. Civ. Code Ann. art. 481 (1979).

[5] “Ownership is lost when acquisitive prescription accrues in favor of an adverse possessor.” Id.

[6] “Trespass is defined as an unlawful physical invasion of the property or possession of another person. A trespasser is one who goes upon another’s property without his consent.” Brookwood-Riverside, L.L.C. v. Baton Rouge Water Works Co., 2020-1173 (La. App. 1 Cir. 5/25/21), 327 So. 3d 1, 8 n.5.

[7] In Louisiana, the petitory action protects ownership and real rights in immovable property. It is an action initiated by a person asserting ownership but lacking the right to possess. See La. Code Civ. Proc. Ann. art. 3653 (2023).

[8] La. Code Civ. Proc. Ann. art. 3651 (2023).

[9] See La. Code Civ. Proc. Ann. art. 3653 (2023); see La. Civ. Code Ann. art. 531 (2023).

[10] Markus G. Puder, John A. Lovett, & Evelyn L. Wilson, Louisiana Property Law: The Civil Code, Cases, and Commentary 653 (Carolina Academic Press, 2nd ed. 2020); see also Pure Oil Co. v. Skinner, 294 So. 2d 797, 799 (La. 1974); A.N. Yiannopoulos, Burden of proof–Defendant in possession; proof of ownership §11.10, in 2 Louisiana Civil Law Treatise (5th ed., 2015) (“In a sense, proof of acquisition of ownership or other real right in one of these manners establishes a title good against the world.”).

[11] Puder et. al. supra note 10, at 653.

[12] Julia Belluz, Vietnam defied the experts and sealed its border to keep Covid-19 out. It worked., Vox (Apr. 23, 2021), https://www.vox.com/22346085/covid-19-vietnam-response-travel-restrictions.

[13] See id.  

[14] Corporeal possession, defined as “the exercise of physical acts of use, detention, or enjoyment over a thing,” is the strongest form of possession. La. Civ. Code Ann. art. 3425 (1982); see also A.N. Yiannopoulos, Possession, 51 La. L. Rev. 523, 533 (1991).

[15] This hypothetical is inspired by the one presented in Dian Tooley-Knoblett, Jeanne Louise Carriere & John Randall Trahan, Yiannopoulos’ Civil Law Property Coursebook 457 (Claitor’s Publishing Division, 10th ed. 2014).  

[16] See infra text accompanying notes 36–41.

[17] See generally Pure Oil Co., 294 So. 2d at 798, discussed infra Part II.B.

[18] See infra text accompanying notes 53–64.

[19] James D. Johnson, Jr., Real Actions, 35 Tul. L. Rev. 541, 545 (1960–1961).

[20] See La. Code Civ. Proc. Ann. arts. 3651, 53 (2023); Id.

[21] “The plaintiff shall not cumulate the possessory action with either the petitory action or a declaratory judgment action to determine ownership.” La. Code Civ. Proc. Ann. art. 3657 (2023); see also Johnson, supra note 19, at 545.

[22] See, e.g., Kernan v. Baham, 45 La. 799, 808, 13 So. 155, 158 (1893); Hutton v. Adkins, 186 So. 908, 910 (La. Ct. App. 2d Cir. 1939); Pure Oil Co., 294 So. 2d at 798; Freeman Baptist Church v. Herman Dempsey Hillen, 345 So. 2d 74 (La. Ct. App. 1977); Weaver v. Hailey, 416 So. 2d 311, 312 (La. Ct. App. 3d Cir.), writ not considered, 420 So. 2d 74 (La. 1982).

[23] See Puder et. al. supra note 10, at 653.

[24] See id.

[25] La. Civ. Code Ann. art. 477 (1979).

[26] La. Civ. Code Ann. art. 3421 (1982).

[27] A person has possession when they exercise physical control over a thing with the intent to own it. Conversely, a person who possesses a thing on behalf of another only has detention, and thus, is a precarious possessor. See A.N. Yiannopoulos, Possession and detention; animus and corpus §12.3, in 2 Louisiana Civil Law Treatise (5th ed., 2015); Puder et. al., supra note 10, at 653. The possessory action is available to a precarious possessor against anyone except the person for whom he possesses. La. Code Civ. Proc. Ann. art. 3655 cmt. (2023). Corporeal possession, the strongest form of possession, is defined as “the exercise of physical acts of use, detention, or enjoyment over a thing.” La. Civ. Code Ann. art. 3425 (1982). The Civil Code does not require that a possessor who has obtained corporeal possession with the intention of possessing as owner must physically always occupy the thing. Instead, possession is sustained by the possessor’s animus even when they no longer are in corporeal possession, this is referred to as civil possession. See La. Civ. Code Ann. art. 3431 (1982); Puder et al., supra note 10, at 517.

[28] La. Civ. Code Ann. art. 3476 (1982).

[29] Possession, supra note 14, at 533.

[30] La. Civ. Code Ann. art. 3422 (1982).

[31] Possession, supra note 14, at 538.

[32] Id.

[33] See La. Code Civ. Proc. Ann. art. 3651 (2023). “The 2023 revision of this Article clarifies that a petitory action is brought by one who does not have the right to possess. A person who still has the right to possess even though he might have lost actual possession within the past year should bring a possessory action against the person who evicted him, rather than a petitory action under this Article.” La. Code Civ. Proc. Ann. art. 3651 cmt. (2023). See infra Part III. B.

[34] “Ownership exists independently of any exercise of it and may not be lost by nonuse.” La. Civ. Code Ann. art. 481 (1979); see Puder et al., supra note 10, at 29 (noting that the duration of ownership is potentially perpetual because ownership of a thing cannot be lost solely due to the owner’s failure to exercise the associated rights and privileges).

[35] La. Civ. Code Ann. art. 481 (1979); Puder et al., supra note 10, at 30 (noting that the second way that ownership is lost involuntarily is “when the state, one of its political subdivisions or another entity with expropriation powers takes ownership away from a private person for certain limited public purposes and just compensation is paid to the property owner and due process requirements are satisfied.”).

[36] Possession, supra note 14, at 534; see La. Civ. Code Ann. arts. 3473–91 (1982).

[37] La. Civ. Code Ann. art 3446 (emphasis added). Catherine N. Garvey, Acquisitive Prescription­–The 1982 Revision of the Louisiana Civil Code, 58 Tul. L. Rev. 618, 641 n.4 (1983) (stating that prescription, by its very nature, is a means of acquiring title rather than a means of losing it).

[38] See La. Civ. Code Ann. arts. 3473, 86; Markus G. Puder, The Doctrinal Relationship Between the Public Records Doctrine and the Acquisitive Prescription of Immovables in Louisiana: Comparative Insights, 37 Tul. Eur. & Civ. L.F. 27, 45 (2022).

[39] La. Civ. Code Ann. art. 3475 (1982).

[40] La. Civ. Code Ann. art. 3486 (1982).

[41] Garvey, supra note 37, at 621; See LA. CONST. art. XII, § 13 (stating no prescription against the state in a civil matter).

[42] Christopher K. Odinet, Laying to Rest an Ancien Régime: Antiquated Institutions in Louisiana Civil Law and Their Incompatibility with Modern Public Policies, 70 La. L. Rev. 1368, 1369 (2010).

[43] See id. at 1372–73.

[44] See id. at 1373.

[45] See id. at 1398.

[46] See John A. Lovett, Precarious Possession, 77 La. L. Rev. 617, 643–44 (2017).

[47] See Odinet, supra note 42, at 1373–74; M. Hampton Carver, Good Faith for Purposes of Acquisitive Prescription in Louisiana and France, 28 La. L. Rev. 662, 671 (1968).

[48] See La. Code Civ. Proc. Ann. arts. 3651, 3654–55, 3662; see also Symeon C. Symeonides, Ruminations on Real Actions, 51 La. L. Rev. 493, 494 (1991). In civil law systems, like Louisiana, there exists a distinction between personal actions and real actions deriving from the differentiation between personal and real rights. A.N. Yiannopoulos, Real Actions in Louisiana and Comparative Law, 25 La. L. Rev. 589, 589 (1965). Personal actions seek to enforce personal rights, such as actions grounded in a lease, actions for the recovery of future things, and the revocatory action. A.N. Yiannopoulos, Personal actions §10.5, in 2 Louisiana Civil Law Treatise (5th ed., 2015). In contrast, real actions enforce real rights, including rights pertaining to ownership, personal servitudes, predial servitudes, and rights of real security, such as mortgage and pledge. A.N. Yiannopoulos, Real rights; principal and accessory §9.23, in 2 Louisiana Civil Law Treatise (5th ed., 2015).

[49] See La. Code Civ. Proc. Ann. arts. 3651, 3654–55 (2023).

[50] Joseph W. Milner, Real Actions to Determine Ownership or Possession Under the Proposed Louisiana Code of Civil Procedure, 20 La. L. Rev. 92, 92 (1959). Jactitory action has its roots in Spanish law. Under this action, the prevailing plaintiff not only had their right to possession judicially recognized but could also secure a judgment compelling the defendant to assert their own ownership claims within a specified timeframe, upon failure of which they would be permanently barred from doing so. A.N. Yiannopoulos, From the Code of Practice to the Code of Civil Procedure §12.33, in 2 Louisiana Civil Law Treatise (5th ed., 2015).

[51] See, e.g., Kernan v. Baham, 45 La. 799, 808, 13 So. 155, 158 (1893); Hutton v. Adkins, 186 So. 908, 910 (La. Ct. App. 2d Cir. 1939); Pure Oil Co. v. Skinner, 294 So. 2d 797, 798 (La. 1974); Freeman Baptist Church v. Herman Dempsey Hillen, 345 So. 2d 74 (La. Ct. App. 1977); Weaver v. Hailey, 416 So. 2d 311, 312 (La. Ct. App. 3d Cir.), writ not considered, 420 So. 2d 74 (La. 1982).

[52] “The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious possession.” La. Civ. Code Ann. art. 3437 (1982).

[53] La. Code Civ. Proc. Ann. art. 3655 (2023). “The 2023 revision of this Article recognizes and complements a previous amendment to the Civil Code granting a precarious possessor, such as a lessee, the right to bring a possessory action against anyone other than the person for whom the precarious possessor possesses.” Id. cmt. (2023).

[54] “In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue.” La. Code Civ. Proc. Ann. art. 3661; Puder et al., supra note 10, at 527–28.

[55] La. Code Civ. Proc. Ann. art. 3661 (2023).

[56] A.N. Yiannopoulos, Availability of the possessory action §12.34, in 2 Louisiana Civil Law Treatise (5th ed., 2015). In order to maintain the possessory action, the Code specifically sets forth that the plaintiff must prove that (1) the plaintiff had possession or precarious possession of the immovable property at the time of the disturbance; (2) that the plaintiff or his ancestors in title had possession at the time of and for more than one year immediately prior to the disturbance; (3) that the disturbance was one in fact or in law; and (4) that the possessory action was brought within a year after the disturbance. La. Code Civ. Proc. Ann. art. 3658 (2023).

[57] La. Code Civ. Proc. Ann. art. 3662 (2023).

[58] Id.

[59] La. Code Civ. Proc. Ann. art. 3662(A)(2). “Among the substantive changes made to this Article by the 2023 revision, Subparagraph (A)(2) provides that the delay within which the losing defendant can be ordered to file a petitory action, where that relief was prayed for by the prevailing plaintiff, is fixed in all cases at sixty days.” Id. cmt. a (2023).

[60] La. Code Civ. Proc. Ann. art. 3662 (2023); Puder et al., supra note 10, at 538. This relief derives from the jactitory action, see infra note 50.

[61] Johnson, supra note 19, at 552; see La. Code Civ. Proc. Ann. art. 3660 (2023). “The 2023 amendment of this Article retains the rule that, for purposes of this Chapter, ‘possession’ means possession in fact, rather than the right to possess, except where the right to possess is expressly stated. Consistent with the changes made to Articles 3655, 3656, and 3658, the amended Article recognizes that precarious possession for another person constitutes possession for purposes of this Chapter.” Id. cmt. (2023).

[62] See La. Code Civ. Proc. Ann. art. 3660 (2023). See supra text accompanying notes 29­­–33.

[63] See, e.g., Kernan v. Baham, 45 La. 799, 808, 13 So. 155, 158 (1893); Hutton v. Adkins, 186 So. 908, 910 (La. Ct. App. 2d Cir. 1939); Pure Oil Co. v. Skinner, 294 So. 2d 797, 798 (La. 1974); Freeman Baptist Church v. Herman Dempsey Hillen, 345 So. 2d 74 (La. Ct. App. 1977); Weaver v. Hailey, 416 So. 2d 311, 312 (La. Ct. App. 3d Cir.), writ not considered, 420 So. 2d 74 (La. 1982).

[64] See La. Code Civ. Proc. Ann. art. 3662 (2023).

[65] See La. Civ. Code Ann. art. 3651 (2023).

[66] Johnson, supra note 19, at 545.

[67] For a comprehensive discussion on comparative real actions in Roman, French, and Louisiana, see Real Actions in Louisiana and Comparative Law, supra note 48, at 629.

[68] La. Code Civ. Proc. Ann. art. 3651 (2023) (emphasis added). “The 2023 revision of this Article clarifies that a petitory action is brought by one who does not have the right to possess. A person who still has the right to possess even though he might have lost actual possession within the past year should bring a possessory action against the person who evicted him, rather than a petitory action under this Article.” Id. cmt. (2023).

[69] La. Code Civ. Proc. Ann. art. 3651 (2023).

[70] See La. Code Civ. Proc. Ann. art. 3653(A)(1) (2023); La. Civ. Code Ann. art. 531 (2023).

[71] See La. Code Civ. Proc. Ann. art. 3653(A)(1) (2023); La. Civ. Code Ann. art. 531 (2023).

[72] La. Code Civ. Proc. Ann. art. 3653(A)(1) (2023).

[73] See Charles T. Wortham, Civil Procedure in Louisiana: (Following the Code of Practice) (1916). For an in-depth comparison of the real actions to determine ownership and possession under both the Code of Practice and the Code of Civil Procedure 1960, see Milner, supra note 50, at 92.

[74] La. Code Prac. arts. 5, 44 (1870).

[75] La. Code Prac. art. 44 (1870) (emphasis added); “Revendication means to reclaim; to demand the restoration of.” Smart v. Bibbins, 109 La. 986, 988, 34 So. 49, 49 (1902).

[76] Milner, supra note 50, at 93–94. Editor’s note: Though the Loyola Law Review strives to be gender neutral in its discussion of the law, “title in himself” is a term of art derived from the Louisiana Code of Practice article 44.

[77] Rowson v. Barbe, 51 La. Ann. 347, 350, 25 So. 139, 140 (1899); see also Wortham, supra note 73; Milner, supra note 50.

[78] Wortham, supra note 73.

[79] Camille B. Poche, Better Title: An Examination of the Burden of Proof in Louisiana Petitory Actions, 67 Tul. L. Rev. 511, 520–21 (1992). Wortham, supra note 73 at 36 (“It is, perhaps, true that, where defendant in possession sets up no title at all, plaintiff need only show an apparent valid title antedating the possession.”) (quoting Young v. Chamberlin, 15 La. Ann. 454, 454 (1860)).

[80] Poche, supra note 79 at 520–21; see also Young, 15 La. Ann. at 454.

[81] Poche, supra note 79 at 520–21; Glover v. Haley, 118 La. 649, 651, 43 So. 265, 266 (1907) (The Supreme Court of Louisiana found that the plaintiff failed to prove his petitory action against the defendant to recover specific sections of land. Evidence showed that both the plaintiff and defendant had titles to the disputed property; however, the courts noted that the defendants and their authors in title had been in possession for many years and were able to provide title traced, in part, to one of the original grantees. The court concluded that because the defendants possessed in good faith with a semblance of title, under article 44 of the Code of Practice, the plaintiff must establish a perfect title in himself to recover).

[82] A.N. Yiannopoulos, Private Law: Property, 35. La. L. Rev. 266, 277 (1975); see, e.g., Kernan v. Baham, 45 La. Ann. 799, 810, 113 So. 155, 158 (1893); Young v. Chamberlain, 15 La. Ann. 454, 454 (1860); Coucy v. Cummings, 12 La. Ann. 748, 748 (1857); Hutton v. Adkins, 186 So. 908, 910–11 (La. Ct. App. 2d Cir.1939).

[83] “However, if the defendant has possession without a title translative of ownership, the plaintiff need only establish a superior title in himself, as against the possessor.” Milner, supra note 50, at 92; See also Poche, supra note 79 at 522.

[84] Kernan, 113 So. at 155.

[85] Id.

[86] Id. at 159.  

[87] “Subsequent courts followed this line of reasoning, rationalizing that while the Code of Practice made it incumbent on the plaintiff to rely on the strength of his own title, it was assumed that both the plaintiff and the defendant had asserted separate and distinct titles to the disputed property.” Poche, supra note 79 at 522.

[88] Hutton v. Adkins, 186 So. 908 (La. Ct. App. 1939), overruled in part by Pure Oil, 294 So. 2d at 799. “Hutton v. Adkins, 186 So. 908 (La.App.2d Cir. 1939), the case relied upon by the Court of Appeal for the holding that relators were required only to prove better title than respondent who was in possession without a deed translative of title, is hereby overruled.” Pure Oil, 294 So. 2d at 799.  

[89] Hutton, 186 So. at 911.

[90] Id.

[91] Young, 15 La. Ann. at 454.

[92] Fred Zengel, Civil Code Revision in Louisiana, 54 Tul. L. Rev. 942, 942–43 (1980) (citing 1948 La. Acts, No. 335).

[93] Id. (citing Franklin, Book Review, 7 Tul. L. Rev. 632, 639 (1933)).

[94] Code of Civil Procedure, West’s Louisiana Statutes Annotated, Articles 3501 to 4030. West Publishing Co. Preface (1961).

[95] Milner, supra note 50, at 96.

[96] Poche, supra note 79, at 520–21.

[97] Milner, supra note 50, at 96.

[98] La. Code Civ. Proc. Ann. art. 3653 (1960) (emphasis added).

[99] Johnson, supra note 19, at 547.

[100] Id.

[101] La. Code Civ. Proc. Ann. art. 3653 cmt. b (1960).

[102] Johnson, supra note 19, at 547.

[103] La. Code Civ. Proc. Ann. art. 3653 cmt. (a) (1960).

[104] See supra text accompanying notes 84–96. “When the defendant is in possession, this article makes no change in the law. The words ‘make out his title’ are taken from Art. 44 of the Code of Practice and are intended to have the same meaning as given to them under the jurisprudence interpreting the source provision.” La. Code Civ. Proc. Ann. art. 3653 cmt. (a) (1960).

[105] Dian Tooley-Knoblett et al., supra note 15 at 458.

[106] Id; Ooche, supra note 79 at 529–30; Roy v. Elmer, 153 So. 2d 209, 212 (La. Ct. App. 1963) (holding that although the record owners were able to prove unbroken chain of title, the adverse party who as a possessor in bad faith and a trespasser, was without right to take advantage of any defects in muniments of title).

[107] Dian Tooley-Knoblett et al., supra note 15 at 458.

[108] The Third Circuit decided that the enactment of articles 3651 to 3653 of the Louisiana Code of Civil Procedure introduced significant procedural changes in the real actions and legislatively overruled the prior jurisprudence’s view in making the distinction between situations where the defendant possessed a title or lacked it. The Third Circuit ultimately concluded that the plaintiff had to prove a valid title himself, irrespective of whether the defendant had a title. Deselle v. Bonnette, 251 So. 2d 68, 72 (1971).

[109] Dian Tooley-Knoblett et al., supra note 15 at 458.

[110] Pure Oil Co., 294 So. 2d at 799 (emphasis added).

[111] Poche, supra note 79, at 530.

[112] Pure Oil Company acquired a mineral lease covering the disputed tract from both sets of claimants, and subsequently, filed the concursus proceeding and cited both claimants to assert their respective interests. The trial court entered judgment in favor of the Skinners, declaring them as the owners of the land and mineral, and the Simontons appealed. Pure Oil Co. v. Skinner, 284 So. 2d 608, 610 (La. Ct. App.), writ issued, 285 So. 2d 541 (La. 1973), and rev’d, 294 So. 2d 797 (La. 1974).

[113] Pure Oil Co., 284 So. 2d at 610.

[114] The defendants were in possession from 1947 when they moved the fence to enclose the property until 1961 when the suit was filed. Id. at 612.

[115] Id. at 611–12.

[116] Id. at 612. The requisites to prevail in a concursus proceeding under Article 3654 mirrored those of Article 3653. See La. Code Civ. Proc. Ann. art. 3654 (1981).

[117] Pure Oil Co., 284 So. 2d at 613–14 (holding that the jurisprudence under article 44 of the Code of Practice made a distinction in the burden on the plaintiff in a petitory action against a possessor with and without a deed translative of title, and thus, when defendant was in possession without any title, plaintiff only had to prove a better title).

[118] See Deselle, 251 So. 2d at 72.

[119] Pure Oil Co., 284 So. 2d at 614.

[120] Id.

[121] Pure Oil Co., 294 So. 2d at 799.

[122] Id.

[123] Id. at 798–98.

[124] “The break in the chain was more than 100 years ago, and long prior to the taking of physical possession by the Simontons by moving the fence to enclose the disputed property.” Pure Oil Co., 284 So. 2d at 614.

[125] Pure Oil Co., 294 So. 2d at 799.

[126] Id.

[127] Id. at 803.

[128] Id.; La. Code Civ. Proc. Ann. art. 3653 cmt. (a) (1960) (“When the defendant is in possession, this article makes no change in the law. The words ‘make out his title’ are taken from Art. 44 of the Code of Practice, and are intended to have the same meaning as given to them under the jurisprudence interpreting the source provision.”).

[129] Pure Oil Co., 294 So. 2d at 803.

[130] Id.

[131] See id. at 799–803.

[132] Id. at 803.

[133] “One who claims the ownership of an immovable against another in possession must prove that he has acquired ownership from a previous owner or by acquisitive prescription. If neither party is in possession, he need only prove a better title.” La. Civ. Code Ann. art. 531 (1979) (emphasis added).

[134] A.N. Yiannopoulos, Burden of proof–Earlier title from common author §11.11, in 2 Louisiana Civil Law Treatise (5th ed., 2015).

[135]  Puder et. al., supra note 10, at 652–53.

[136] La. Code Civ. Proc. Ann. art. 3653(1) (1981).

[137] See Pure Oil Co., 294 So. 2d at 798–99; Puder et. al., supra note 10, at 653.

[138] Puder et. al., supra note 10, at 660.

[139] Freeman Baptist Church, 345 So. 2d at 75–76.

[140] Id. at 76. (noting that the defendants, by mutual agreement, cleared an area on the disputed land in 1972 and plaintiff did not purchase the property until July 1974).

[141] Id. at 78.

[142] Id.

[143] Id.

[144] See, e.g., Freeman Baptist Church v. Herman Dempsey Hillen, 345 So. 2d 74 (La. Ct. App. 1977); Weaver v. Hailey, 416 So. 2d 311 (La. Ct. App. 1982); Baker v. Romero, 55 So. 3d 1035 (La. Ct. App. 2011).

[145] Freeman Baptist Church, 345 So. 2d at 78.

[146] Id. at 78–79. See also Romby v. Zion Hill Baptist Church, 327 So. 2d 538, 540 (La. Ct. App. 2d Cir.1976) (“Although we might not agree with this rule of Law, it is the latest expression of the Supreme Court and we feel constrained to follow it.”); Weaver, 416 So. 2d at 320–31 (Doucet, dissenting) (noting that if following the interpretation of Article 531 as to require the plaintiff to establish title good against the world, it will lead to “the questionable result of the land belonging to nobody as defendants clearly have no title and cannot claim ownership via acquisitive prescription.”) (emphasis added).

[147] See Puder et. al., supra note 10, at 668; See also Douglas Nichols, The Publician Action, 69 Tul. L. Rev. 217 (1994).

[148] A.N. Yiannopoulos was a renowned scholar of Louisiana Civil Law who served as the Reporter on many committees for revisions of the Louisiana Civil Code. “[F]or over sixty years he was a commanding figure in the civilian legal tradition of Louisiana and the world. Judges, students, and law professors alike will continue to profit endlessly from his scholarship. His insights and ideas were ingenious in conception, perspective, and application—of this, his scholarship stands in voluminous confirmation.” James Étienne Viator, A.N. Yiannopoulos: Louisiana's Great Overlooked Legal Historian, 64 Loy. L. Rev. 441, 460 (2018).

[149] Louisiana State Law Institute, Proposed Revision of Book II of the Louisiana Civil Code of 1870, at 15–18 (A.N. Yiannopoulos, rep., June 9–10, 1978); Nichols, supra note 147 at 244–45.

[150] Louisiana State Law Institute, Proposed Revision of Book II of the Louisiana Civil Code of 1870, at 12–18 (A.N. Yiannopoulos, rep., June 9–10, 1978).  

[151] The first proposal aligned with the majority’s stance in Pure Oil and is omitted from this section.

[152] “If, in a petitory action, the court finds that the defendant is in possession of the immovable or of the real right by virtue of an act translative of ownership, the plaintiff, in order to recover, must prove his ownership either by transfer from a previous owner or by acquisitive prescription.” Louisiana State Law Institute, Proposed Revision of Book II of the Louisiana Civil Code of 1870, at 15–16 (A.N. Yiannopoulos, rep., June 9-10, 1978). 

[153] Louisiana State Law Institute, Proposed Revision of Book II of the Louisiana Civil Code of 1870, at 15–16 (A.N. Yiannopoulos, rep., June 9–10, 1978). 

[154] Id.

[155] See supra text accompanying notes 84–86.

[156] See supra text accompanying notes 88–91.

[157] See Louisiana State Law Institute, Proposed Revision of Book II of the Louisiana Civil Code of 1870, at 15–16 (A.N. Yiannopoulos, rep., June 9–10, 1978). 

[158] Louisiana State Law Institute, Proposed Revision of Book II of the Louisiana Civil Code of 1870, at 15–16 (A.N. Yiannopoulos, rep., June 9–10, 1978). 

[159] This proposal was later presented and slightly modified by Douglas Nichols in his law review comment. Nichols, supra note 147 at 245.

[160] Dian Tooley-Knoblett et al., supra note 15 at 457. For an in-depth analysis on the holding of Bedford v. Urquhart and the Publician Action, see Nichols, supra note 147 at  233–46.

[161] Dian Tooley-Knoblett et al., supra note 15 at 457.

[162] Id. at 457–58.

[163] See Puder et. al., supra note 10, at 669.

[164] Bedford v. Urquhart, 8 La. 241, 246 (1835).

[165] Louisiana State Law Institute, Report to the Louisiana Legislature in Response to SCR No. 42 of the 2016 Regular Session, at 1 (April 5, 2023).

[166] Id.

[167] Id.

[168] See La. Code Civ. Proc. Ann. art. 3660 (2023); Johnson, supra note 19, at 545.

[169] Louisiana State Law Institute, Report to the Louisiana Legislature in Response to SCR No. 42 of the 2016 Regular Session, at 1 (April 5, 2023).

[170] Id.

[171] Louisiana State Law Institute Possessory Actions Committee, Meeting of the Council, at 10 (March 18, 2022).

[172] Id.

[173] Id.

[174] Id.

[175] Id. at 9.

[176] Id. at 10.

[177] Id.

[178] Id. at 9.

[179] Id. at 10 (noting that “one member of both the Committee and the Council expressed his preference for the Publician Action approach.”).

[180] Id. at 11.

[181] Louisiana State Law Institute, Report to the Louisiana Legislature in Response to SCR No. 42 of the 2016 Regular Session, at 10 (April 5, 2023).

[182] See H.B. 220, 2023 Reg. Sess. (La. 2023) (signed by the Louisiana Governor on June 26, 2023, to become Act. No. 421).

[183] La. Code Civ. Proc. Ann. art. 3651 (2023) (emphasis added).

[184] La. Code Civ. Proc. Ann. art. 3651 cmt. (2023).

[185]Id.; La. Civ. Code Ann. art. 3422 (1982).

[186] La. Civ. Code Ann. art. 3433 (1982).

[187] La. Civ. Code Ann. art. 3434 (1982).

[188] La. Code Civ. Proc. Ann. art. 3651 cmt. (2023).

[189] Compare La. Code Civ. Proc. Ann.  art. 3651 (1981), with La. Code Civ. Proc. Ann. art. 3651 (2023).

[190] “A petitory action may be brought by a person who claims the ownership of only an undivided interest in the immovable property or real right therein, or whose asserted ownership is limited to a certain period which has not yet expired, or which may be terminated by an event which has not yet occurred.” La. Code Civ. Proc. Ann. art. 3652 (1981).

[191] “The owner of a mineral right may assert, protect, and defend his right in the same manner as the ownership or possession of other immovable property, and without the concurrence, joinder, or consent of the owner of the land or mineral rights.” La. Civ. Code Ann. art. 3664 (1974).

[192] A.N. Yiannopoulos, Availability of petitory action; plaintiff and defendant, §11.7, in 2 Louisiana Civil Law Treatise (5th ed., 2015).

[193] “This article combines the former petitory action and the former action to establish title, and hence would be brought by a person who claims ownership, but who is not in possession, against: (1) an adverse claimant of ownership who is in possession; (2) a person in possession who may not be asserting any adverse claim of ownership; or (3) an adverse claimant of ownership who is out of possession.” La. Code Civ. Proc. Ann. art. 3651 cmt. (a) (1981).

[194] La. Code Civ. Proc. Ann. art. 3651 cmt. (a) (1981); See Johnson, supra note 19, at 545.

[195] La. Code Civ. Proc. Ann. art. 3653 cmt. (a) (2023).

[196] La. Code Civ. Proc. Ann. art. 3653 (2023).

[197] “One claiming the ownership of an immovable against another who has been in possession of the immovable for one year after having commenced possession in good faith and with just title or who has been in possession of the immovable for ten years shall prove that he has acquired ownership from a previous owner or by acquisitive prescription. In all other cases, he need only prove a better title.” La. Civ. Code Ann. art. 531 (2023).

[198] Pure Oil Co., 294 So. 2d at 799; La. Code Civ. Proc. Ann. art. 3653(1) (1981).

[199] Puder et. al., supra note 10, at 653.

[200] Pure Oil Co., 294 So. 2d at 799; La. Code Civ. Proc. Ann. art. 3653(1) (1981).

[201] La. Code Civ. Proc. Ann. art. 3653 cmt. (b) (2023).

[202] Id.

[203] “[W]hen the titles of the parties are traced to a common author, he is presumed to be the previous owner. Accordingly, plaintiff may recover against another in possession upon proof that his title is the more ancient from the common ancestor.” La. Civ. Code Ann. art. 532 cmt. (a) (1979).

[204] See La. Code Civ. Proc. Ann. art. 3653(2). For a comprehensive analysis on better title burden of proof, see Poche, supra note 79, at 520–21.

[205] See La. Code Civ. Proc. Ann. art. 3653(2) (2023).

[206] La. Code Civ. Proc. Ann. art. 3651 cmt. (2023) (noting that an individual who lost his possession but still retains his right to possess should bring a possessory action instead of a petitory action).

[207] La. Code Civ. Proc. Ann. art. 3653(1) (2023).

[208] Baker, 55 So. 3d at 1041.

[209] Good faith in the context of petitory action has the same meaning provided in Articles 3480 and 3481 of the Civil Code. La. Code Civ. Proc. Ann. art. 3653 cmt. (c) (2023).

[210] John A. Lovett, Good Faith in Louisiana Property Law, 78 La. L. Rev. 1163, 1211 (2018).

[211] Id.

[212] Phillips v. Parker, 483 So. 2d 972, 977 (La. 1986).

[213] Lovett, supra note 210, at 1215.

[214] La. Civ. Code Ann. art. 3481 cmt. b (1982).

[215] La. Civ. Code Ann. art.  3481 (1982).

[216] La. Civ. Code Ann. art. 3482 (1982).

[217] Id.

[218] See, e.g., Phillips v. Parker, 483 So. 2d 972, 977 (La. 1986); 1026 Conti Holding, LLC v. 1025 Bienville, LLC, 2022–01288 (La. 3/17/23); 359 So. 3d 930, reh’g denied, 2022–01288 (La. 5/4/23), 362 So. 3d 424 (holding that “a good title opinion would be the ultimate in reasonableness.”).

[219] See Mai v. Floyd, 2005–2301 (La. App. 1 Cir. 12/6/06), 951 So. 2d 244, 247.

[220] “A just title is a juridical act, such as a sale, exchange, or donation, sufficient to transfer ownership or another real right. The act must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated.” La. Civ. Code Ann. art. 3483 (1982).

[221] Id.

[222] La. Civ. Code Ann. art. 3483 cmt. (b) (1982).  

[223] Id.

[224] Puder et. al., supra note 10, at 592.

[225] Id.

[226] La. Civ. Code Ann. art. 3483 cmt. (c) (1982).

[227] See La. Civ. Code Ann. art. 1839 (1984).

[228] La. Civ. Code Ann. art. 3483 cmt. (c) (1982); Puder et. al., supra note 10, at 592.

[229] La. Civ. Code Ann. art. 3483 cmt. (d).

[230] See id.

[231] Id.

[232] See Puder et. al., supra note 10, at 592.

[233] See supra text accompanying notes 201–03.

[234] Puder et. al., supra note 10, at 668.

[235] Id.; see also Romby, 327 So.2d 538.

[236] See Symeonides, supra note 48 at 513.

[237] Louisiana State Law Institute, Report to the Louisiana Legislature in Response to SCR No. 42 of the 2016 Regular Session, at 10 (April 5, 2023).

[238] Weaver, 416 So.2d at 314.

[239] Id. at 316.

[240] Id. at 319.

[241] Id.

[242] Symeon Symeonides, Property, 44 La. L. Rev. 505, 516 n. 64 (1983).

[243] Id. at 514–15.

[244] See id. Although neither the article nor the revision comment explicitly states, “a defendant is able to take advantage of tacking when fulfilling the ten-year time period.” Possessory Actions Committee, Meeting Minutes, March 18, 2022, at 11. For the purposes of this Comment, the discussion on tacking is limited. Tacking fails in the absence of title, meaning that a defendant who obtains possession through a title from a prior possessor can aggregate the period of possession from both the former possessor and his own possession to fulfill the duration requisite under the petitory action. See Puder et. al., supra note 10, at 668. “The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.” La. Civ. Code Ann. art. 3442 (1982). Tacking enables a defendant-possessor who possesses shy of ten years to cumulate the possession from his predecessor in title to meet the ten-year requirement.

[245] La. Code Civ. Proc. Ann. art. 3653(2) (2023).

[246] La. Code Civ. Proc. Ann. art. 3653(2) (2023); Puder et. al., supra note 10, at 668.

[247] A.N. Yiannopoulos, Burden of proof­–Declaratory judgment, trespass, and concursus, expropriation, or similar proceeding §11.13, in 2 Louisiana Civil Law Treatise (5th ed., 2015).

[248] La. Code Civ. Proc. Ann. art. 3653(B) (2023).

[249] Puder et. al., supra note 10, at 670.

[250] Burden of proof–Earlier title from common author, supra note 134.

[251] Puder et. al., supra note 10, at 670.

[252] See id.

[253] See La. Code Civ. Proc. Ann. art. 3653(1) (2023).

[254] Louisiana State Law Institute, Report to the Louisiana Legislature in Response to SCR No. 42 of the 2016 Regular Session, at 10 (April 5, 2023).

[255] See supra text accompanying notes 141–45.

[256] Freeman Baptist Church, 345 So. 2d at 76.

[257] See La. Civ. Code Ann. art. 3481 (1982).

[258] Freeman Baptist Church, 345 So. 2d at 76.

[259] Id.

[260] Id.

[261] Id.

[262] La. Civ. Code Ann. art. 3653(2) (2023). 

[263] Freeman Baptist Church, 345 So. 2d at 77.

[264] Louisiana State Law Institute Possessory Actions Committee, Meeting of the Council, at 10 (March 18, 2022).

[265] Pure Oil Co., 284 So. 2d at 612.

[266] Id.

[267] Pure Oil Co., 294 So. 2d at 799.

[268] Id.

[269] Baker, 55 So. 3d at 1036–37.

[270] Id. at 1037.

[271] Id. at 1040.

[272] Id. at 1038.

[273] Id.

[274] Id.

[275] See supra text accompanying notes 237–40.

[276] Baker, 55 So. 3d at 1038.

[277] See supra notes 82–83, 154–160.

[278] See La. Code Civ. Proc. Ann. art. 3653(1) (2023); La. Civ. Code Ann. art. 531 (2023).

[279] Terrell, 428 So.2d at 1244.

[280] Lee Hargrave, Public Records & Property Rights, 56 La. L. Rev. 535, 541 (1996).

[281] Louisiana State Law Institute Possessory Actions Committee, Meeting of the Council, at 11 (March 18, 2022).

[282] Odinet, supra note 42, at 1368–69.

[283] Id. at 1397 (noting, for example, that as Louisiana has moved toward smart-growth planning instead of rewarding random land development, Louisiana civil law should steer away from rewarding individuals who randomly come onto land and develops it for the purpose of possession).

[284] See Weaver, 416 So.2d at 314.

[285] Id.

[286] The Doctrinal Relationship Between the Public Records Doctrine and the Acquisitive Prescription of Immovables in Louisiana: Comparative Insights, supra note 38 at 44–46.

[287] Nichols, supra note 147 at 242–43.

[288] Id. at 242.

[289] Id. at 244.

[290] “Certainly more possession should be required in the case of farm land than in the case of wood land, and more possession in the case of wood land than in the case of swamp land.” Puder et. al., supra note 10, at 543 (citing Riseman, Elementary Considerations in the Commencement of Prescription on Immovable Property, 12 Tul. L. Rev. 608, 610–11 (1938)).

[291] Good Faith in Louisiana Property Law, supra note 210 at 1220.

[292] See id.

[293] See La. Civ. Code Ann. art. 3486 (1982).

[294] See Precarious Possession, supra note 46, at 633–34.

[295] See supra text accompanying notes 299–300.

[296] See supra text accompanying notes 87–91, 105–07, 161–167.

[297] See Young, 15 La. Ann. at 454.