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Given the difficulty of cases falling into the third category of possession and acquisitive prescription disputes, Louisiana should consider developing an additional presumption—a presumption of sharing that would apply specifically at the outset of a relationship between a possessor and record owner who are practicing, inhabiting, engaged neighbors or members of the same close-knit community. Stated simply, this presumption would provide that when one neighbor uses a fellow neighbor’s property or when a member of a close-knit community uses another community member’s property, that use takes place with the implied permission of the owner. This presumption could be adopted as a jurisprudential rule by Louisiana courts, or it could be expressed in a new Civil Code article. In either format, it would provide a

398. LA.CIV.CODE art. 3479 (2016).

useful complement to the two existing presumptions found in articles 3427 and 3438 of the Civil Code by aligning judicial decision-making with the fundamental values that inform property law and by enhancing the predictability of judicial decision-making in this area.

One justification for a new presumption of sharing can be found in the scholarship of Gregory Alexander and Eduardo Peñalver, who have written powerful pieces about how property law can be understood as an institution that serves the goal of promoting human flourishing.³⁹⁹ For Alexander and Peñalver, property law is not solely a utilitarian machine designed to produce economic efficiency and wealth maximization, although these are among the many desirable, incommensurable values that property law can and should promote.⁴⁰⁰ Drawing on Aristotle, Aquinas, and other philosophers working in the Aristotelian tradition, Alexander and Peñalver argue that because humans are essentially social beings who thrive only through and because of their relationships with other people and through human community, property law must also be understood as serving social values.⁴⁰¹ Property law should thus facilitate the development of human capabilities that are necessary for individuals to be able to choose and pursue their own projects from a meaningful set of options while also helping to sustain families, friendships, and communities—the very social networks that make human flourishing possible.⁴⁰²

One particular aspect of Alexander and Peñalver’s “human flourishing”

theory of property law that is directly relevant to precarious possession is their insight that an individual must have some property to develop and practice one of the essential Aristotelian ethical virtues—what might be called “the virtue of sharing.”⁴⁰³ Describing why Aristotle believed that

399. See Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. 745 (2009) [hereinafter The Social-Obligation Norm]; Eduardo M. Peñalver, Land Virtues, 94 CORNELL L.REV.821 (2009) [hereinafter Land Virtues]; Eduardo M. Peñalver, Property as Entrance 91 VA. L. REV. 1889 (2005) [hereinafter Property as Entrance]; GREGORY S.

ALEXANDER & EDUARDO M. PEÑALVER, AN INTRODUCTION TO PROPERTY THEORY 80–101 (2012) [hereinafter PROPERTY THEORY]; Gregory S. Alexander

& Eduardo M. Peñalver, Properties of Community, 10 THEORETICAL INQUIRIES L. 127 (2008) [hereinafter Properties of Community].

400. The Social-Obligation Norm, supra note 399, at 750−51. See generally Land Virtues, supra note 399.

401. Properties of Community, supra note 399, at 134−45; PROPERTY THEORY,supra note 399, at 83−97.

402. PROPERTY THEORY,supra note 399, at 90–92.

403. Id. at 80–82. For a discussion of other “land virtues,” including the virtues of “industry,” “justice,” and “humility,” see Land Virtues, supra note 399, at

private ownership must form a crucial part of any property system, Alexander and Peñalver observe,

Another reason [Aristotle] gives in favor of private property is that it promotes friendship. Aristotle’s thinking here seems to be that through proper education individuals will learn that property, though privately owned, is to be shared with friends. Relatedly, private ownership facilitates the exercise of such virtues as generosity and moderation. His point here ties in with the one just raised. Aristotle means to say that the possibility of generosity depends upon the existence of some degree of private rights. Generosity presupposes a voluntary act of sharing, so that the owner must willingly transfer to someone else the power to use and enjoy the resource. And her own act can only be voluntary and therefore praiseworthy, if she was entitled not to share.⁴⁰⁴

This insight explains why article 2232 of the French Civil Code declared that acts of “mere toleration” cannot lead to prescription and why Louisiana courts have been hesitant in neighbor cases like Boudreaux to allow a possessor–claimant to acquire ownership or real rights whenever owners make plausible arguments that they merely consented to the claimant’s use or possession in a spirit of neighborly cooperation.

Louisiana courts intuitively recognize the importance of encouraging neighbors and members of the same community to share their property with each other to build the bonds of friendship and reciprocity that make community possible.

Adopting a presumption of sharing will thus encourage courts to reveal more fully the likely bases of their decision-making in these difficult neighbor cases. In neighbor cases, judges would no longer feel the need to manipulate the existing presumptions in the Civil Code to find a way of stating an important normative value that they likely bring to bear in most neighbor cases already. In short, adoption of a presumption of sharing would promote another important systemic virtue—the virtue of judicial transparency.

A final reason to adopt a presumption of sharing is that the presumption would enable courts to visualize neighbor and close-knit community cases not only from the point of view of the possessor, which is the focus of Louisiana’s two existing presumptions, but also from the point of view of the record owner. In other words, this new presumption

876−86. Peñalver also asserts that property owners sometimes have an obligation to share their “surplus” property with others. Id. at 880.

404. PROPERTY THEORY,supra note 399, at 83–84.

would help judges and lawyers become more fully conscious of what this Article contends. They already do so subconsciously in these cases—

approaching these disputes in their full relational complexity. Unlike the existing codal presumptions that are focused solely on the state of mind of the claimant–possessor, the presumption of sharing directs courts and lawyers to consider equally the state of mind of the other party, the neighbor who contends that she was merely practicing the Aristotelian virtues of friendship and sharing. By openly directing courts’ attention to the true owner’s perspective, the new presumption would thus bring to the surface the kind of analysis that courts appear inclined to engage in regardless, as the Boudreaux case itself demonstrates so clearly.