Note by Andrew M. Cox
Starting at least in 1948, the Boudreauxs used a pathway and gate on land owned by their neighbors, the Weills, to access an adjacent road, move farm equipment, and run personal errands. In 1969, the Weills asked the Boudreauxs to move the passageway to a more convenient location. The Weills specified the location, gave the Boudreauxs some of the materials needed to rebuild a fence, and allowed the Boudreauxs to cut down trees on their property. The Boudreauxs continued to use the relocated passage until 2012 when Paul Cummings, who acquired the land from the Weills, locked the gate. John Boudreaux sued Cummings, seeking a permanent injunction to protect a right of way over Cummings' land.
The trial court found for Boudreaux, holding that he acquired a right of passage via acquisitive prescription. Cummings argued that Boudreaux's possession was precarious--that is, that he had permission--and thus could not serve as the basis to acquire a right adverse to the owner. The trial court rejected that argument, reasoning that precariousness was irrelevant to the possession of a right of passage. Cummings appealed, and the Louisiana Third Circuit Court of Appeal affirmed the judgment. Rather than finding precariousness irrelevant, the court found that there was sufficient evidence to conclude Boudreaux's possession was not precarious and held that his possession met the requirements for acquisitive prescription. On Cummings' petition, the Louisiana Supreme Court affirmed that if the Boudreauxs' possession was precarious, he could not acquire a right of passage. Relying on a French doctrine prohibiting prescription based on acts of “simple toleration,” the court reasoned that because Cummings and the Weills were aware of the Boudreauxs' passage, they therefore granted him tacit permission, rendering his possession precarious. The court declined to attach any significance to the cooperative relocation of the passageway because it found it consistent both with the right of an owner to relocate another's passageway and with an owner granting permission to use his land. Instead, the Louisiana Supreme Court held that when a landowner knows of another's use of his land and when his silence could be considered neighborly permission, that use is precarious and thus cannot establish a right of passage by acquisitive prescription. Boudreaux v. Cummings, 2014-1499 (La. 5/5/15); 167 So. 3d 559.
About the Author
J.D. candidate 2017, Tulane University Law School; B.A. 2007, Yale University.
90 Tul. L. Rev. 973 (2016)