#### CITY OF NEW ORLEANS v. NEW ORLEANS CANAL et al.

No. 10244.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 22, 1979.

Rehearing Denied Jan. 18, 1980.

*996Donald A. Hoffman, City Atty., and Jack P. Panno, New Orleans, for plaintiff-appel-lee.

William J. Wegmann, New Orleans, for defendants-appellants.

John F. Fox, Jr., New Orleans, amicus curiae for the Residents of Lakeview.

Before SAMUEL, C. J., and LEMMON and GARRISON, JJ.

LEMMON, Judge.

This is a possessory action, in which the City of New Orleans is seeking to be maintained in possession of a vacant strip of ground in the face of defendant New Orleans Canal, Inc.’s recordation of certain documents purporting to vest ownership in that defendant. After trial on the merits judgment was rendered in favor of the City. New Orleans Canal, Inc. has appealed.

' The principal issue on appeal is whether the City proved it had possession of the property, as contemplated by C.C.P. art. 3658(1), at the time the disturbance in law occurred.1

*Facts*

The property in question is a vacant strip of ground, measuring 40 feet in width and approximately 7,200 feet in length. The strip forms a portion of the neutral ground which lies between West End Boulevard and Pontchartrain Boulevard, and the strip extends in length from Robert E. Lee Boulevard to Polk Avenue. (The strip is the shaded area on the attached Appendix, which is an annotated reproduction of a trial exhibit.)

The area between the two boulevards is 340 feet wide, and the 40-foot strip in question lies adjacent to the right of way of West End Boulevard. The other part of the neutral ground (adjacent to Pontchartrain *997Boulevard) is a 300-foot strip (part of which was formerly the bed of the New Basin Canal, filled in around 1950), which at the filing of the suit was owned by the Louisiana Department of Public Works.

Between July 26,1963 and March 11,1964 defendant recorded several acts of sale and mortgage affecting the 40-foot strip. On July 14, 1964 the City filed this action, alleging the disturbance in law and seeking to be maintained in its possession. After numerous delays because of settlement negotiations the matter proceeded to trial in 1978, resulting in the judgment here appealed.

*Judicial Estoppel*

Noting that the City had filed an earlier suit on the same cause of action, which had improperly cumulated the petito-ry and possessory actions, defendant argues that the City thereby judicially confessed defendant’s possession and is now estopped from again claiming possession.

The earlier suit was dismissed without prejudice, and this court affirmed that dismissal, although defendant’s appeal asserted the matter should have been dismissed with prejudice. See *City of New Orleans v. New Orleans Canal, Inc.,*173 So.2d 43 (La.App. 4th Cir. 1965). In the present case defendant pleaded judicial estoppel, and the trial court properly rejected that plea, noting that it might have been successful under Article 54 of the repealed Code of Practice.

Comment (c) following C.C.P. art. 3657 characterized an irrevocable waiver of the possessory action resulting from an inadvertent cumulation with the petitory action as “too harsh a penalty” and noted the article’s intent to change the prior law. See also Yiannopoulos, 2 Louisiana Civil Law Treatise — Property, § 138, p. 426 (1966). Furthermore, the new article omitted the repealed article’s language which expressly provided that the one bringing the petitory action was “not afterwards” entitled to bring the possessory action.

We therefore affirm the trial court’s conclusion that a plaintiff, after dismissal without prejudice of a possessory action improperly cumulated with a petitory action, may renew the possessory action in a second suit.

*Merits*

While it alleged many acts of possession, the City at trial proved only (as to the pertinent time prior to filing of suit) that it mowed the grass and picked up trash regularly on the 40-foot strip (while mowing and cleaning the entire neutral ground), that it constructed and has maintained four cross streets and several pedestrian crossings (across the entire neutral ground), and that it had installed underground utility lines (some with gratings visible at ground level) at some points on the strip. The crucial issue is whether this proof of possession is sufficient to support a judgment in a pos-sessory action.

The City exercised possession appropriate for the type of property (vacant land used in an urban area as a neutral ground between two major thoroughfares) by cutting the grass, constructing cross streets and pedestrian crossings, and installing utility lines over a period of many years without any objections from persons claiming to be the true owner. These activities were the same activities the City performed as owner or servitude grantee on the other parcels of ground used by the City as a neutral ground. Furthermore, the City’s construction of streets and crosswalks not only was significant activity usually undertaken only by the owner of property (or with his permission or authority), but also was a significant activity that would normally elicit an objection or inquiry from any other person claiming ownership.2

*998The City’s exercise of possession in this case was continuous (by the possessor’s activities), uninterrupted (by activities of a third party adverse to the possessor), public (open and not clandestine), peaceful (non-violent), and unequivocal (by activities exercised as owner and not explainable on another basis). Thus, the City has proved the type of possession required by C.C. art. 3500 as the foundation for acquisite prescription, which is the type of possession applicable to possessory actions. *Hill v. Richey,*221 La. 402, 59 So.2d 434 (1952).

Defendant argues, however, that since there were no markers to designate the boundary between the 40-foot strip and the 300-foot strip, the City’s possession without title is not evidenced by enclosures, as required by the jurisprudence.

The concept of enclosures is pertinent to the determination of extent of possession. When a possessor has a title, his exercise of possession over a part of the property constitutes the exercise of constructive possession of the whole; however, when a possessor does not have a title, his claim of possession is limited in extent to that property shown by enclosures (artificial or natural boundaries) and his possession must be proved “inch by inch”, so that the possessor must establish actual, physical and corporeal possession over the entire amount of land claimed in the possessory action. Stated otherwise, the possessor without title is entitled to be maintained in possession only to the extent of the boundaries within which he proved actual, physical and corporeal possession, and he enjoys no constructive possession beyond the limits of his actual possession. *Prevost’s Heirs*v. *Johnson,*9 Mart. (O.S.) 123 (La.1820); *Crichton v. Giddens,*148 La. 970, 88 So. 236 (1921); Risemore, The Possessory Action in Louisiana, 20 Tul.L.Rev. 524, 537 (1946); Yiannopoulos, above, § 138, pp. 110-111 (1978 Supp.).

In the present case the City proved actual, physical and corporeal possession of the entire area between the two major thoroughfares, including the 40-foot strip of land. It matters not that the boundary between the two strips was not marked or that the City, in exercising possession of the entire area between the two thoroughfares, did so with permission of the owner (Louisiana Department of Public Works) as to the 300-foot strip and without permission as to the 40-foot strip in question. Proof of possession and the extent thereof is a question of fact, and the City’s proof of possession of the entire area establishes possession of the lesser area. Furthermore, the fact that the City possessed part of the area between the two boulevards with the owner’s permission does not defeat the City’s claim of adverse possession of the 40-foot strip.3

Defendant next argues that the City’s construction and maintenance of the cross streets merely entitles the City to a servitude limited to the affected area. R.S. 48:491 might be relevant to the question of whether the streets can remain at the present location if defendant is successful in a subsequent petitory action, but the statute does not defeat or limit a possessor’s claim in a petitory action. The City’s activities in constructing and maintaining the streets are properly considered as proof of continuous and open possession, just as the activities in cleaning, grass cutting and utility line construction and maintenance are properly considered as proof of the character and extent of possession.

Finally, it should be emphasized that although one who possesses property openly as owner and without interruption for more than one year is entitled to the status of possessor, that status merely entitles one to be maintained in possession against everyone but the true owner, and the recognition of one’s status as possessor in no way affects another’s claim of ownership. The import of this case is simply that the City may retain possession against defendant, despite defendant’s recordation of the perti*999nent instruments, until a claim of ownership is asserted and proved.4 While the issue of ownership will be pertinent in a petitory action, it is not even cognizable in a possessory action.

The judgment of the trial court, however, should be amended in one respect, as pointed out by defendant in its application for a new trial. The City prayed for an order requiring the defendant to assert its adverse claim of ownership within a delay fixed by the court, not to exceed sixty days, and C.C.P. art. 3662(2) mandates that the judgment set this period of time for the defendant, if prayed for in plaintiff’s petition.5

For these reasons the judgment of the trial court is amended to order the defendant-appellant to assert its adverse claim of ownership in a petitory action to be filed within sixty days after the date this judgment becomes executory or be precluded thereafter from asserting ownership of the immovable property. As amended, the judgment is affirmed.

*AMENDED AND AFFIRMED.*

GARRISON, J., concurs in part and dissents in part, and assigns reasons.

APPENDIX

1

. The requisite proof in a possessory action is specified by C.C.P. art. 3658 as follows:

> “To maintain the possessory action the possessor must allege and prove that:

> (1)He had possession of the immovable property or real right at the time the disturbance occurred;

> (2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;

> (3) The disturbance was one in fact or in law, as defined in Article 3659; and

> (4) The possessory action was instituted within a year of the disturbance.”

2

. The very theory of a possessory action is that one who over a specified period of time, openly and without objection, performs activities Usually done by the owner, is presumed to be the owner and that one, having attained the status of possessor, is entitled to be maintained in possession until someone else proves ownership.

3

. Indeed, the fact that the City exercised possession of the 40-foot strip without permission is significant proof of unequivocal possession as owner.

4

. Perhaps even the former advantage in burden of proof flowing from a successful possessory action is no longer as significant since the adoption in 1979 of the amended and reenacted C.C. arts. 531 and 532.

5

. C.C.P. art. 3662(2) provides:

> “A judgment rendered for the plaintiff in a possessor,’ action shall:

> ******

> “(2) Order the defendant to assert his adverse claim of ownership of the immovable property or real right in a petitory action to be filed within a delay to be fixed by the court not to exceed sixty days after the date the judgment becomes executory, or be precluded thereafter from asserting the ownership thereof, if the plaintiff has prayed for such relief”.

*1000GARRISON, Judge,

concurring in part and dissenting in part.

I agree with the majority opinion that the trial judge properly rejected the plea of judicial estoppel.

I do not agree with that opinion’s conclusion that the City presented evidence sufficient to support a judgment in its favor in a possessory action.

To quote from the majority opinion, “ . . . the possessor without title is entitled to be maintained in possession only to the extent of the boundaries within which he proved actual, physical and corporeal possession, and he enjoys no constructive possession beyond the limits of his actual possession.”

The City contends, and the majority of this panel agrees, that the boundary requirement is satisfied because the entire 357-foot-wide by 7,206-foot-long area is circumscribed by four major traffic arteries, with concomitant curbing, which the City constructed, paved, and maintained. The contested 40-foot strip lies entirely within, and is totally indistinguishable from the rest of the land encompassed by these “boundaries.”

If the construction and maintenance of streets by a city may be regarded as the establishment of “boundaries,” and retrospectively claimed as acts intended to demonstrate municipal ownership, then there are many remaining acres within the urban area which now are vulnerable to future pronouncements by the City that it possesses them also. This would be all the more the case if the City had happened to trim trees along the edge of the land or had happened, perhaps because particular lots adjoined public property or perhaps merely in the performance of its customary maintenance chores, to cut the grass on privately owned acreage.

A city has a right — indeed, a duty — under the law to protect the health and safety of its citizens through its police power. One extension of this power is its right to pass ordinances permitting it to cut and remove weeds and grass when the owner fails, ne-gleets, or refuses to do so, and to construct streets and roads for public use. It seems clear that the City’s acts in this case were simply pursuant to its police power. The City, however, would have them construed as *possessory*acts — and the other members of this panel have so construed them.

The majority opinion seems to imply that a landowner must actually complain if the City cuts his grass or builds streets or sidewalks across his land, lest he find the City government claiming squatter’s rights in a possessory action. Here, the City cut the grass (it cut everyone’s grass across the entire sector), constructed cross streets and pedestrian crosswalks, and installed sewerage lines for a period of many years. These •acts were not the result of a spontaneous burst of benevolence from the City government nor were they intended as acts of ownership by the City. Rather they were simply by-products of essentially routine urban maintenance. To the majority, however, they constitute significant acts of legal possession.

It must be admitted that such acts, when exercised by a *private*party, can constitute acts showing intent to possess as owner. I believe, however, that there is a fundamental distinction between the acts of a private owner vis-a-vis another’s property and the acts of a municipality vis-a-vis the property of citizens. To hold that a city, by performing municipal functions in exercise of its police power, may acquire possession of the property of a private citizen (that is, because the City, purely in the course of performing its required duty, has “possessed as owner”) amounts to a denial of due process of law.

Moreover, such a holding permits a gratuitous acquisition of unauthorized power by government as against the correspondingly decreased power of individuals. It is generally recognized that government agencies— whether at the municipal, state or federal level — abhor vacuums and, however unconsciously or subtly, are inclined steadily to increase whatever authority they possess. To paraphrase a contemporary aphorism, bureaucratic authority expands to acquire whatever power is not denied it. In that *1001regard, the majority opinion creates a dangerous precedent with regard to the unauthorized, and in my opinion legally unsupportable, extension of municipal power.

Even if I were to concede that the City’s activities could, of themselves, constitute possession as owner, the City has failed to prove another important part of its case. The City has not possessed the claimed area “within enclosures.” It is undisputed that there are no markers of any kind separating the 40-foot area from the 300-foot area on one side nor from the 17-foot area on the other. Furthermore, it is clear from the City’s petition and briefs on appeal that it lays no claim — as to any intent to possess as owner — to the 300-foot-wide area. Yet it is apparent that the grass in the 300-foot-wide area was mowed by the City as systematically as that considerably narrower area it claims, apparently in retrospection, to possess by virtue of such mowing.

An essential element of possession as owner is that the possession be adverse. It is obvious from the City’s own admissions that to the extent it “possessed” the 300-foot area, it possessed on behalf of the State Department of Highways and not adversely to the State. On the other hand, it claims that it did adversely possess the 40-foot area. There were no “external and public signs” that the City intended so to possess only the 40-foot strip. The City’s acts were exercised over the entire 357-foot by 7,206-foot area with nothing to give public notice of the character and extent of its possession. Public notice of the extent of one’s adverse possession is an essential component of legal possession. There were no relevant nor meaningful enclosures regarding the 40-foot strip to fix definitely the limits of the City’s alleged possession. Therefore, the City’s claim should fall.

Finally, I must dispute the majority’s characterization of the area as a “neutral ground.” No evidence was presented in the trial court to show that it was a neutral ground as opposed to being merely an open tract of land, thoroughly undesignated as to any public character. The fact that the land in question happens to be undeveloped and lies between two major thoroughfares does not in any way destine it to be a neutral ground. The fact that many citizens may have come to regard the land as a “neutral ground” is a remote and subjective standard that does not cause such to be the ease. If, indeed, this tract is a neutral ground then — with its 357-foot width — it certainly must be one of the widest in the world.

Arbitrarily classifying so large a stretch of land as a neutral ground — quite apparently on the sole, essentially capricious basis that it is now to the municipal government’s tactical advantage to do so in this possessory action — implies that the only possible use of the area is to divide Pontchartrain Boulevard and West End Boulevard into lanes according to the direction of travel on each, and that it has and that it can have no other possible legitimate purpose. Such a gratuitous and unsupported designation merely permits the essentially mechanical and routine acts of municipal departments to appear, on the surface at least, as “evidence” of the City’s intention to possess the 40-foot strip as owner when, in fact, there have been simply no substantial acts of possession by the City — particularly any acts to possess it as owner.

To hold that the City’s actions in this case constitute legal possession of the contested strip of land places an unfair burden on private property owners in relation to the potent police powers of municipalities. I would reverse the judgment of the trial court. Accordingly, I respectfully dissent.