UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 96-30808 Summary Calendar _____________________

UNITED STATES OF AMERICA, on behalf of United States Department of Agriculture,

Plaintiff-Appellee,

versus

DAVID L. LASYONE, SR.,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (95-CV-2011) _________________________________________________________________ December 19, 1996 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

To resolve a 60 year title dispute, the United States, on

behalf of the United States Department of Agriculture, filed an

action to quiet title to 161.41 acres of the Kisatchie National

Forest, claimed by the United States (as a result of transactions

in 1930 and 1937) and David L. Lasyone. The United States also

sought damages for trespass. Lasyone counterclaimed, asserting

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. title through acquisitive prescription, based on a 1919 quitclaim

deed. Partial summary judgment was granted for the United States

on its quiet title claim and against Lasyone’s counterclaim. That

partial judgment became final upon entry of an order, on motion by

the United States, dismissing its remaining claim.

Lasyone’s challenge to the adverse summary judgment on his

acquisitive prescription counterclaim is without merit. He failed

to establish a genuine issue of material fact for continuous

possession, an essential element of his claim. See LA. STAT. ANN.-

C.C. art. 3475. His family’s occasional timber-cutting and use of

the property for cattle grazing during a period when an open-range

policy was in effect does not constitute the taking of actual

possession under Louisiana law. See Broussard v. Motty,

(La. App. 3d Cir. 1965) (grazing cattle on unenclosed land

insufficient possession to establish acquisitive prescription);

Johnson v. La Bokay Corp.,

(La. App. 3d Cir.

1976) (stock grazing on open range territory did not constitute

active possession sufficient to maintain possessory action);

Olinkraft, Inc. v. Allen,

(La. App. 2d Cir.

1976) (occasional cutting and removal of timber from isolated tract

of forest land insufficient to prove actual possession for purposes

of acquisitive prescription); Oliver v. Kennington,

(La. App. 2d Cir.), writ denied,

(La. 1984)

(same).

- 2 - And, contrary to Lasyone’s assertions, the 1960 Affidavit of

Possession signed by ten lifelong residents of Grant Parish does

not establish the existence of a material fact issue as to whether

his family possessed the disputed property during the prescriptive

period (1919-1929). As the district court noted, the affidavit is

factually incorrect regarding the date and manner of acquisition of

the property, and does not specify dates on which alleged acts of

possession occurred.

For the foregoing reasons, the judgment is

AFFIRMED.

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