Select Page

Civil Law Property
Southern University Law Center
Seidemann, Ryan M.

Ryan M Seidemann
Civil Law Property
Spring 2013
Introduction and Definitions
–          “Property” à proprietas à proprius = “One’s Own”
–          In the US, property refers to either:
o   Objects (ex: land, automobiles, jewels)
o   Rights (ex: ownership, servitudes, leases)
–          Accurate analysis should reserve the use of “property” for the designation of rights that persons have with respect to things.
–          Only rights that confer a direct and immediate authority over a thing (real rights) are governed by the civil law of property
–          In Louisiana, “property” refers to:
(1)   Rights forming part of person’s patrimony
(2)   Rights conferring on a person a direct and immediate authority for the use and enjoyment of a thing that is susceptible of appropriation
o   Narrowly refers to real rights (ownership, personal servitude, predial servitudes, mineral servitudes)
 
Possession
–          Possession: Possession is the physical control over a corporeal thing with the intent to have it as one’s own.
o   State of fact consisting of holding a thing in an exclusive manner and in carrying out on it the same material acts of use and of enjoyment as if its possessor were its owner.
o   Applies to corporeal things only
o   Gives rise to rights
§  Ex: A possessor is considered provisionally to be the owner of the thing he possesses until the right of the true owner is established.
o   Possessors are presumed to be owners
–          Detention: physical control over a thing (minus) the intent to have it as one’s own.
o   Detainer = Precarious Possessor
 
LaCC Art. 3412. Occupancy
–          Occupancy is the taking of possession of a corporeal movable that does not belong to anyone. The occupant acquires ownership the moment he takes possession.
LaCC Art. 3413. Wild animals, birds, fish, and shellfish
–          Wild animals, birds, fish, and shellfish in a state of natural liberty either belong to the state in its capacity as a public person or are things without an owner. The taking of possession of such things is governed by particular laws and regulations.
–          The owner of a tract of land may forbid entry to anyone for purposes of hunting or fishing, and the like. Nevertheless, despite a prohibition of entry, captured wildlife belongs to the captor.
o   Even if the animals returned to the land, that does not mean that they are tamed, and thus owned by the landowner (Art. 3416: Tamed wild animals)
LaCC Art. 3414. Loss of ownership of wildlife
–          If wild animals, birds, fish, or shellfish recover their natural liberty, the captor loses his ownership unless he takes immediate measures for their pursuit and recapture.
LaCC Art. 3415. Wildlife in enclosures
–          Wild animals or birds within enclosures, and fish or shellfish in an aquarium or other private waters, are privately owned.
–          Pigeons, bees, fish, and shellfish that migrate into the pigeon house, hive, or pond of another belong to him unless the migration has been caused by inducement or artifice.
LaCC Art. 3416. Tamed wild animals
–          Tamed wild animals and birds are privately owned as long as they have the habit of returning to their owner. They are considered to have lost the habit when they fail to return within a reasonable time. In such a case, they are considered to have recovered their natural liberty unless their owner takes immediate measures for their pursuit and recapture.
LaCC Art. 3417. Domestic animals
–          Domestic animals that are privately owned are not subject to occupancy.
LaCC Art. 3418. Abandoned things
–          One who takes possession of an abandoned thing with the intent to own it acquires ownership by occupancy. A thing is abandoned when its owner relinquishes possession with the intent to give up ownership.
LaCC Art. 3419. Lost things
–          One who finds a corporeal movable that has been lost is bound to make a diligent effort to locate its owner or possessor and to return the thing to him.
–          If a diligent effort is made and the owner is not found within three years, the finder acquires ownership.
LaCC Art. 3420. Treasure
–          One who finds a treasure in a thing that belongs to him or to no one acquires ownership of the treasure. If the treasure is found in a thing belonging to another, half of the treasure belongs to the finder and half belongs to the owner of the thing in which it was found.
–          A treasure is a movable hidden in another thing, movable or immovable, for such a long time that its owner cannot be determined.
LaCC Art. 3421. Possession
–          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.
–          The exercise of a real right, such as a servitude, with the intent to have it as one's own is quasi-possession. The rules governing possession apply by analogy to the quasi-possession of incorporeals.
LaCC Art. 3422. Nature of possession; right to possess
–          Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year acquires the right to possess it.
LaCC Art. 3423. Rights of possessors
–          A possessor is considered provisionally as owner of the thing he possesses until the right of the true owner is established.
LaCC Art. 3424. Acquisition of possession
–          To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing.
LaCC Art. 342

is intent to the person on whose behalf he is possessing.
LaCC Art. 3440. Protection of precarious possession
–          Where there is a disturbance of possession, the possessory action is available to a precarious possessor, such as a lessee or a depositary, against anyone except the person for whom he possesses.
LaCC Art. 3441. Transfer of possession
–          Possession is transferable by universal title or by particular title.
LaCC Art. 3442. Tacking of possession
–          The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.
LaCC Art. 3443. Presumption of continuity of possession
–          One who proves that he had possession at different times is presumed to have possessed during the intermediate period.
LaCC Art. 3444. Possessory action
–          Possession of immovables is protected by the possessory action, as provided in Articles 3655 through 3671 of the Code of Civil Procedure.
–          Possession of movables is protected by the rules of the Code of Civil Procedure that govern civil actions.
 
Peloquin v. Calcasieu Parish Police Jury (1979)
(The one about George the cat.)
–          The Peloquin family possessed George the cat for 7 years. Defendant borrowed an animal trap from Animal Control and caught George. George was destroyed. Plaintiff sued for conversion.
–          A possessor or even a precarious holder of a movable of whose possession is deprived can recover it against a 3rd party simple possessor in all cases in which the owner of the thing could do so.
–          Possessor has the same rights as an owner of a movable to sue for damages for conversion. Those damages can include mental anguish, humiliation as well as special and/or actual damages.
–          LaCC Art. 3424: Acquisition of Possession.
–          LaCC Art. 3422 Nature of possession; right to possess
 
Corporeal/Civil/Constructive Possession
–          Types of Possession:
o   Corporeal: exercise of physical acts of use, detention or enjoyment over a thing
o   Civil: retention of an acquired possession solely by virtue of an intent to possess as owner
o   Constructive: is a substitute for corporeal or civil possession.