de la HOUSSAYE, Justice Ad Hoc.
We granted writs upon application of Adam Badeaux, to review an adverse ruling of the Court of Appeal, Fourth Circuit.
The Court of Appeal, which ordered the case be re-argued before a 5 judge panel, reversed the District Court, finding no cause of action as to plaintiff, concluding that the judgment appealed from had no basis in law and fact.
The trial transcript reflects that Badeaux had been in possession of the above described property since 1946. This tract is described as:
Saucier testified that when he sold Pitre the house, wharf, and boatshed in 1972, he had occupied the structures built under Badeaux's authorization for nine years. There were papers drawn up at the Act of Sale of 1972, but none to verify the antecedent verbal agreement between Badeaux and Saucier. Saucier testified that at no time did he pretend to own any of this land. Subsequent to the sale to Pitre in 1972, plaintiff alleges that defendant began to exert an adverse claim by setting stakes to mark boundary lines, and by removing No Trespassing signs placed by Badeaux.
In this petitory action plaintiff claims that defendant is in possession of the property without title, and that defendant refuses to deliver possession of said property to plaintiff Badeaux. In his suit, plaintiff prayed to be recognized as ". . . true and lawful owner of the above described property, and as such, entitled to the full and undisturbed possession thereof, and ordering said defendant to deliver possession of said property to plaintiff."
The Court of Appeal based its opinion on a finding that Badeaux's petition did not disclose a cause of action as a petitory action under the tenets of C.C.P. Article 3651:
The Court of Appeal then states of its own motion that pursuant to C.C.P. Art. 927 "[a]t best, plaintiff may state a cause of action for a possessory action" under C.C.P. Art. 3655:
Then, in straining to apply this article to these particular facts, the Court concludes a possessory action would not lie, stating: "Thus the nature of Badeaux's claim is unclear from his pleadings and is even more so when the evidence is considered."
We disagree, finding that a petitory action would lie as the proper petition. Young v. Anderson, La.App.1950, 43 So.2d 280. Clampitt v. Davis Bros. Timber Co., Ltd., La.App.1972, 266 So.2d 248, writ refused 263 La. 109, 267 So.2d 212; Dupuy et al. v. Shannon, La.App.1961, 136 So.2d 111. Badeaux is claiming against another who has taken steps which show his exertion of an adverse claim against the property by exercising adverse possession against Badeaux.
Plaintiff's action to establish title is proper since defendant is found to be in possession of the land, this affecting only the burden of proof imposed upon Badeaux. (See La. C.C.P. Article 3653). We find that plaintiff has met that burden:
In further support of plaintiff's properly having filed a petitory action, we note that plaintiff concludes his petition with a prayer that he be recognized as rightful owner of the property. In his dissent, Judge Boutall underscores this course of action to be consistent with a petitory action, but not with a possessory one. Vermillion Parish School Bd. v. Muller, La.App.1957, 92 So.2d 77; Peck v. Bemiss, 1855, 10 La.Ann. 160; Reine v. Frederick, La.App.1955, 79 So.2d 190; Montgomery v. Breaux, 297 So.2d 185 (La.1974); Garrett v. Ernest, La.App., 369 So.2d 713.
In proceeding to clarify plaintiff's rights, and the effect of defendant's possession, we note that a more accurate description of defendant's quality of possession than that outlined by the Court of Appeal would be found in La.C.Code 3490.
Plaintiff has properly established 30 yrs. acquisitive prescription by open and corporeal possession of the tract upon which he had lived since 1942, and that Pitre was well aware that he was purchasing the structures only, and not any real property.
In his dissent, Judge Boutall states:
Thus having established that Badeaux laid claim to the land as owner, and not as possessor, we find that a petitory action did lie as the proper cause of action for plaintiff. Inasmuch as we have found that Pitre held by precarious possession, his presence on the land did not disturb the running of the 30 yrs. acquisitive prescription as to the whole tract claimed by Badeaux.
We next focus upon the mention at trial of a letter from the Department of Natural
The State was not made a party to this proceeding, nor was the letter allowed to expand the pleadings. Therefore, we find it unnecessary to pass upon the validity of the State's claim, and find it only necessary to underscore that the State would be unaffected by any adjudication between these parties.
For the foregoing reasons, the decision of the Court of Appeal is reversed, and the decision of the Trial Court is reinstated.