Gilmore v. Schenck

Citations

• 115 La. 386
• 39 So. 40
• 1905 La. LEXIS 668

Syllabus

<p>1. Petitoey Action — Constbuctive Possession.</p> <p>Where plaintiff alleges that he himself is the owner of certain property, and was then and had been in possession of the same, for over 10 years under title, and that defendant had “trespassed,” and was still “trespassing,” upon, the same by cutting down and hauling off timber thereon under claim of an absolutely null tax title, which he had spread upon the records, and prays that he be quieted in his own ownership and possession of the property, that he recover damages from the defendant for his trespass, and that the tax title be declared null and void, his action is not a petitory action.</p> <p>2. Same — Conelictinu Possessions.</p> <p>There cannot be two conflicting constructive possessions at the same time of the same property — one in a party who first went into actual possession and still holds the same of a part as owner under a title drawing to himself constructive possession of the whole, and the other in a trespasser. The possession of the trespasser is possessio pedis, confined to what he grasped by his actual, real occupation. Hunnicut v. Peyton, 102 U. S. 368, 369, 26 L Ed. 113.</p> <p>On Rehearing.</p> <p>3. Same — Prescription—Tax Title.</p> <p>Plaintiff, alleging that he was the owner of and was himself in possession of certain real property, averred that defendant had unlawfully trespassed upon the same, and cut down and hauled away timber, for which he claimed damages, and that defendant claimed he was entitled to have done this by reason of h tax title, which plaintiff declared was a nullity and asked to have so decided. Defendant in defense set up the tax title, and averred that he had taken legal possession under the same. Plaintiff was decreed to be the owner and to have been always in possession of the property. Under the circumstances plaintiff’s cause of action was one ex delicto, and defendant’s acts were (back of one year) prescribable by the prescription of one year.</p> <p>(Syllab