LOUISIANA PROPERTY & ACQUISITIVE PRESCRIPTION
I. CLASSIFICATION OF PROPERTY
Common, Public & Private Things
Common Things: things that may not be owned by anyone and which may be used freely in the manner which nature intended (ex. The air and the high seas).
Public Things: things vested in the state or one of its political subdivisions in its public capacity.
Use of public things is open to all although use may be restricted for the public’s benefit.
Things that are out of commerce.
Ex. natural navigable waters, territorial sea, seashore, highways, streets, public squares.
Private Things: things owned by private individuals or by the state or one of its political subdivisions in its private capacity.
Anything that is not common or public is private.
Things that are in commerce.
Bodies of Water:
All natural navigable bodies of water are owned by the state as public things and their use is free to all.
A body of water is navigable if it is capable of being used as a highway for commercial traffic. (if it is navigable in fact it is navigable in law)
Body of water need not be currently navigated; only needs to be capable of being so used.
Navigable Canals: if a canal is built with private funds on private land it is a private thing and the public use can be effectively enjoined.
Even if public water is diverted into the canal its ownership remains private.
High Seas: are common things.
Territorial Sea: is a public thing and includes Gulf of Mexico to the extent it is owned by the State, Lake Pontchartrain and, small irregularly shaped bodies of water in the vicinity of the open gulf.
Seashore: is a public thing and is defined as the space of land over which the waters of the sea spread in the highest tide during the winter season.
The state’s ownership extends to that land normally covered by the waters of the Gulf during the ordinary highest tides of the winter seasons.
Dardar case: nonnavigable tidelands and swampland subject to indirect freshwater tidal overflow – but not direct coastal ebb and flow – are not seashore and may be privately owned.
Bottoms of Nonnavigable Water Bodies: are privately owned.
Bottoms of Navigable Rivers and Streams:
Beds – are state owned to the ordinary low water mark.
Banks –the land between the ordinary high and low watermark, or when there is a levee established according to law it establishes the bank.
Are private things subject to limited public use.
Public use must be incidental to navigation on the stream.
Bottoms of Other Navigable Water Bodies: are public things.
The state’s ownership of all navigable water bodes, except rivers and streams, extends to the ordinary high water mark.
To distinguish between rivers and other water bodies, court considers the following factors:
Size and shape – compare width to bodies of water that flow into it.
Depth – in relation to waters flowing into it.
History – historical designation.
Current – in relation to waters flowing into it.
Accretion, Alluvion and Dereliction:
Alluvion and dereliction which form along the banks of a river or stream belong to the riparian landowner; accretion and dereliction which form along a body of water that is not a river or a stream belong to the state.
Alluvion: is the accretion that forms successively and imperceptibly on the bank of a river or stream.
Division of alluvion – if alluvion forms in front of the property of several owners, each owner is entitled to a fair portion of the area of the alluvion and a fair proportion of the new frontage, depending on the relative values of the frontage and acreage.
Dereliction: is the successive and imperceptible receding of water from the bank of a river or stream.
Erosion: occurs when the land subsides, resulting in the bank being permanently submerged into the river bed.
When erosion occurs in any type of navigable water body, the state gains ownership of the submerged bank since the submerged land is now part of the river bed and the state owns the beds of navigable water bodies.
Avulsion: if an identifiable piece of ground is moved from one place to another by the “sudden action” of the water of a river or stream, the original owner may claim it.
Suit must be brought within one year, or later if the owner of the bank to which the land has become united has not taken possession.
Change of Course: when a stream changes course all who lost land in the process will be able to take from the riverbed in proportion to the land lost due to the course change.
Roads: may be either public or private.
Public Roads: may either be owned by the public or subject to public use but actually owned by a private person.
Private Roads: is one that is not subject to public use.
Dedication: occurs when there is a valid donation.
Statutory dedication – most common way roads become public and occurs when there is essential compliance with the statute, which requires the recordation of a map or plat that describes streets, etc., and that dedicates the streets to public use.
Tacit dedication – if the government maintains a road for more than three years, it becomes public.
Implied dedication – requiring the owner’s plain intent to dedicate the road and to the public’s clear intent to accept.
Corporeals and Incorporeals
Incorporeal Things: things with no body that are comprehended by the understanding.
Ex. Right of inheritance, servitudes, and obligations.
Incorporeal Immovables: rights and actions that apply to immovable are incorporeal immovable – e.g. Mineral servitudes, mineral royalties, and mineral leases.
Incorporeal Movables: rights and actions that apply to movables – e.g. usufruct over a vehicle or interest in a juridical person such as a corporation or partnership.
Corporeal Things: things that have a body, whether animate or inanimate, and can be felt or touched.
Corporeal Movables: things animate or inanimate that have a body and can be moved or move normally from place to place.
Things always classified as immovable:
Land and its Component Parts
Transfer or encumbrance of an immovable includes all of its component parts.
Component part is a thing that is so closely connected to another thing that it takes its classification from that other thing to which it is connected.
Include buildings, other constructions, standing timber and ungathered crops only when they belong to the owner of the ground.
Separate ownership: when there is no unity of ownersh
faith – acquirer is in good faith.
Detachment and removal – when, in the absence of rights of third persons, the owner of the immovable detaches or removes the component part.
Immovable by Declaration
Owners may declare and register things as component parts of an immovable.
Examples: register appliances, farm equipment, and machinery.
Four conditions must be met:
Unity of owner: the owner of the immovable must own the machinery, appliance, or equipment which is to become a component part.
Immovable is not a home: immovable may not be private residence.
Component services immovable: the component part must be placed on the immovable for its service and improvement.
Declaration filed for registry: the declaration must be filed for registry in the conveyance records of the parish where the immovable is located.
Anything that is not immovable is movable.
Movables by Anticipation: unharvested crops or ungathered fruits owned or encumbered by a security interest held by someone other than the landowner are movables by anticipation.
The owner of the land can mobilize by anticipation crops or fruits that belong to him by an act translative of ownership or by granting a security interest.
Ownership of a thing includes by accession everything that it produces or is united with it, subject to certain exceptions.
Fruits are things derived from another thing without diminishing its substance.
Owner’s Rights to Fruits: owner of a thing acquires the ownership of its natural and civil fruits in the absence of the rights of other persons.
Possessor’s Rights to Fruits and Products:
Good faith possessor: a possessor in good faith is one who possesses by virtue of an act translative of ownership who does not know of any defects in his title.
He ceases to be in good faith when these defects are made known to him or an action is instituted against him by the owner for the recovery of the thing.
A good faith possessor owns the fruits that he has gathered.
A good faith possessor does not own ungathered furits, but he is entitled to reimbursement of expenses for ungathered fruits.
Bad faith possessor: a possessor in bad faith must restore the fruits he has gathered (or their value) subject to his claim for reimbursement of expenses. He has no rights respecting ungathered fruits.
Products result in a diminution of a thing (products are nonrenewable resources).
Products belong to owner.
A possessor in good faith – but not one in bad faith – has the right to reimbursement for expense for porducts derived from the thing.