Test Answer Format – (CRAC)
No need for an issue sentence.
List every possible classification (that would be your first paragraph)
Have a separate paragraph for each classification that includes the rule and analysis
Last paragraph should restate the conclusion
I. COMMON, PUBLIC, & PRIVATE THINGS
CC Art 448 – Division of Things
Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables.
CC Art 449 – Common Things
Common things may not be owned by anyone. They are such as the air and the high seas that may be freely used by everyone conformably with the use for which nature has intended them.
CC Art 453 – Private Things
Private things are owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons. The key to private things is that they are in commerce.
CC Art 461 – Corporeals and Incorporeals
– Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched.
– Incorporeals are things that have no body, but are comprehended by the understanding, such as the rights of inheritance, servitudes, obligations, and right of intellectual property.
Rights that confer a direct and immediate authority over a thing.
When a possessor uses the land of a landowner, not excluding the owner from use of the land, but essentially sharing the property rights with the owner. (predial: of, consisting of, relating to, or attached to land)
e Paying off a big store across the street to allow your customers to park in their parking lot; this is not a lease, but it is a right in the land; this is a real right.
II. NAVIGABLE WATER BODIES
CC Art 451 – Seashore
Seashore is the space of land over which the waters of the sea spread in the highest tide during the winter season.
Riparian Owner – owner of a riverbank – property rights continue until the middle (imaginary line) of the river or stream.
What makes a waterway navigable? What is the test?
· If the waterway is “usable for commerce in its natural condition,” then it is navigable.
· The issue is not whether it has been used for commerce, but whether it could possibly be used for commerce at the present time.
1812 is a crucial date to determine whether a waterway is navigable. In 1812, Louisiana became a state. Thus, at that point, if the waterway was navigable, then it became state property.
CC Art 450 – Public Things
– Public things are owned by the state or its political subdivisions in their capacity as public persons.
– Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore.
– Public things that may belong to political subdivisions of the state are such as streets and public squares.
– Public things are out of commerce.
CC Art 456 – Banks of Navigable Rivers or Streams
– The banks of navigable rivers or streams are private things that are subject to public use.
– The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water. Nevertheless, when there is a levee in proximity to the water, established according to law, the levee shall form the bank.
· According to well-settled Louisiana jurisprudence, which continues to be relevant, the servitude of public use under this provision is not “for the use of the public at large for all purposes” but merely for purposes that are “incidental” to the navigable character of the stream and its enjoyment as an avenue of commerce. Vessels may be temporarily moored to the banks of navigable rivers, but there is strong doubt that this may be done “freely” as Article 455 (1870) declares. The rights of the general public to unload vessels and to deposit goods may be clearly exercised in public landings or other facilities, but it is questionable whether these rights may be exercised in all banks.
· “Servitude of public use” is used to refer to navigable riverbanks because the public can use them; and thus they “serve” the public.
· “The riparian owner cannot enjoy the bank in such a way as to prevent its common enjoyment by all, nor is he entitled to be preferred over others in the use of the banks as a landing place…”
III. MOVABLES & IMMOVABLES; CORPOREALS & INCORPOREALS
IMMOVABLES: TRACTS OF LAND & THEIR COMPONENT PARTS
CC Art 462 – Tracts of Land
Tracts of land, with their component parts, are immovables.
CC Art 463 – Component Parts of Tracts of Land
Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungathered fruits of trees, are component parts of a tract of land when they belong to the owner of the ground.
BUILDINGS, OTHER CONSTRUCTIONS, & THEIR COMPONENT PARTS
CC Art 464 – Buildings and Standing Timber as Separate Immovables
Buildings and standing timber are separate immovables when they belong to a person other than the owner of the ground.
· Buildings separated in ownership from the land on which they stand are distinct immovables for all purposes. A unit in a condominium is a separate immovable.
· Constructions permanently attached to the ground, other than buildings, are component parts of a tract of land when they belong to the owner of the ground. They are movables when they belong to another person. Art 464 declares that only buildings and standing timber may be separate immovables.
The court looks to the prevailing notions to determine that it is a building. To make the determination that the structure is a building, the court specifically refers to the:
– Use of the structure: It is used for housing people, and it had living quarters.
– Size of the structure: It is 3 stories high, and very large; thus, it is considered an immovable.
– Cost of the structure: The cost of the building is substantial.
TWO Requirements for an “other construction” to be a component part: (CC Art 463)
1) It must be perma
le. There are 3 rules that govern this decision:
1) First, there are items that are always immovables. (Buildings, tracts of land, standing timber)
2) Component Parts of Immovables are also immovable.
3) Legal Relationship between a movable and an immovable bya declaration in the record.
e Someone who owns a canning plant, and he uses huge forklifts to operate the canning plant, the owner can file a declaration to declare the forklifts as component parts of the land of the canning plant.
Standing timber is a component part of a tract of land when it belongs to the owner of the ground, and a separate immovable when it belongs to another person. Fallen timber is movable property, whether it belongs to the owner of the ground or to another person.
Unharvested, Ungathered Crops
(1) Immovables – Unharvested crops are immovables (and belong to the owner of the ground) when the lessee does not publicly record his lease (or interest in the crops).
(2) Movables “by anticipation” – Unharvested crops are “movables by anticipation” when the lessee publicly records his lease (or interest in the crops).
THE RECORDATION REQUIREMENT
· The idea of recordation comes up with respect to crops very often because crops are often separately owned from the land.
· Recordation is required in order for the separate ownership of unharvested crops to affect third parties.
· Recordation requirements only apply to third parties, not to the agreement/lease between the two parties themselves.
Porche v. Bodin
The lessee safeguarded his right in the crop by recording his lease (and thus his right in the crops), and therefore, when the land is sold (when the lessor/owner of the land sells the land), the lessee retains rights in the crops as movables by anticipation.
CC Art 491 – Buildings, Other Constructions, Standing Timber, and Crops
Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungathered fruits of trees may belong to a person other than the owner of the ground. Nevertheless, they are presumed to belong to the owner of the ground, unless separate ownership is evidenced by an instrument filed for registry in the conveyance records of the parish in which the immovable is located.
There are Three Ways to Argue (or 3 Exceptions) that Immobilization did not take place:
Non-Immobilization (By Virtue of Statute)
Thisis a way to argue that immobilization did not take place. Something that could be