152 So. 497 | La. | 1933
Lead Opinion
The plaintiff is a political corporation of this state, and prosecutes this petitory action to have its title to the following described lands recognized, to wit:
"In Township 20 South, Range 26 East,
"Sec. 11, 427 acres,
"Sec. 12, 632 acres,
"Sec. 13, 77 acres.
"The above estimated area is in accordance with lands appearing on the A.E. Washburn, C.E., map, making proper allowance for navigable water areas and for lands in the above sections previously patented or conveyed by the state."
The lands involved are part of a large tract known as "Tidal Overflow Lands," and originally belonged to the state by virtue of its inherent sovereignty, and were transferred by the state to Buras levee board under the provisions of Act No. 215 of 1908. It will be noted by reference to the above description that plaintiff does not assert title to any designated subdivisions of the sections in which the acreage is located, but seeks recognition of title to 427 acres in section 11, 632 acres in *699 section 12, and 77 acres in section 13. Plaintiff's reason for not asserting title to the entire acreage in these sections is that several years prior to bringing this suit it had sold to J. Homer Jordan the following lands:
"In Township 20 South, Range 26 East,
"Sec. 11, 213 acres,
"Sec. 12, 8 acres,
"Sec. 13, 563 acres."
By simple addition it appears that the acreage now claimed by plaintiff in those sections and that which it had previously sold to Jordan constitute the full acreage of three regular sections of 640 acres each. Or, as counsel for plaintiff say in their original brief (page 4), "The fractional sections sued for constitute the remaining acreage in the sections after deducting the portions of said sections previously transferred by the state to the Buras Levee Board and sold by the Buras Levee Board to the ancestors in title of the defendants in this suit."
The defendants are the Mt. Forest Fur Farms of America, which claims to own the land in dispute by title which traces back to J. Homer Jordan, trustee, and certain oil companies holding leases under the same title. Defendants contend that the plaintiff owns no land in Secs. 11, 12, and 13, Tp. 20 S., R. 26 E.; all the lands in said sections having been sold by the levee board to Jordan and subsequently patented to him by the state.
On July 23, 1914, the state, through the register of the state land office and the auditor, transferred to the Buras levee district 44,175.50 acres of land in Townships 19 and 20 South, Range 26 East, and Township 20 *700 South, Range 27 East, including the following:
Two hundred and thirteen acres in Sec. 11, 8 acres in Sec. 12, and 563 acres in Sec. 13, Tp. 20 S., R. 26 East.
In this deed there is nothing to indicate in what particular portions of these sections the acreage sold is located.
On February 1, 1919, the Buras levee board, through the sheriff, sold at public auction to J. Homer Jordan, trustee, the same lands, among them being the following:
N.E. 1/4 Sec. 11, 44 acres,
N.W. 1/4 Sec. 11, 14 acres,
S.E. 1/4 Sec. 11, 102 acres,
S.W. 1/4 Sec. 11, 53 acres; total in Sec. 11, 213 acres.
S.W. 1/4 Sec. 12, 8 acres; total in Sec. 12, 8 acres.
N.E. 1/4 Sec. 13, 93 acres,
N.W. 1/4 Sec. 13, 150 acres,
S.W. 1/4 Sec. 13, 160 acres,
S.E. 1/4 Sec. 13, 160 acres; total in Sec. 13, 563 acres, all in Tp. 20 S., R. 26 E.
It will be noted that the acreage in these sections transferred by the state to the levee board is the same as that sold by the levee board to Jordan; the only difference in the description being that in the latter deed the subdivision of the sections in which the land is located is given.
One of the defendant's contentions is that the state intended to sell, and did sell, to the levee board, all the land in Townships 19 and 20 South, Range 26 East, and that the levee *701 board in turn intended to sell, and did sell, to J. Homer Jordan, trustee, all the land it owned in these townships. These lands were transferred by the state to the levee board and by the board to Jordan in accordance with a plat made by Major Frank T. Payne, acting as deputy United States surveyor. These plats dated October 12, 1908, were filed in the office of the register of the state land office by Major Payne, and approved by the then Governor, J.Y. Sanders, on April 12, 1912. These plats showed the acreage of land in each and every section, although they did not show, except by general topography, the subdivision of the section in which it was located.
The law which provides for the sale of such lands by levee boards requires that it be sold in quarter sections, with the acreage in each designated. For this reason, a surveyor named De Armas was employed to estimate the acreage in each quarter section, for the purpose of the sale by the levee board. He made no survey of the lands, but took the plats made by Major Payne, and, noting the topography as shown, estimated the land area of each quarter section. His estimate was used by the levee board when it, through the sheriff, sold to Jordan.
A very large percentage of this territory is composed of water. There are various lakes and bays in each of the townships, the beds of which the state did not pretend to sell. All it intended to sell was the land area. Major Payne's maps and plats showed the boundaries of these lakes and the land area in each section, and, according to his plats, there were only 213 acres of land in Sec. 11, 8 acres *702 in Sec. 12, and 563 acres in Sec. 13 in Tp. 20 S., R. 26 E.
It readily appears, therefore, that, according to the Payne maps and plats, the state sold to the levee board, and the board to J. Homer Jordan, trustee, all the land area in these townships, including sections 11, 12, and 13.
Jordan paid the levee board cash for the land at 50 cents per acre, took possession of it immediately, had it placed upon the assessment rolls according to the acreage which he had bought, and he and his successors in title have had it assessed and have paid taxes on it ever since.
The lands acquired by Jordan finally passed by mesne conveyances to the Mt. Forest Fur Farms of America, which granted mineral leases thereon to Earnest Cockerall and the Moran Corporation of the South. These in turn subleased to certain oil concerns with rights to develop. These concerns drilled and brought in several producing oil wells. This was in 1928. These wells were, of course, located on land, and, according to the Payne maps and plats, are in Sec. 25, Tp. 20 S., R. 26 E., which is all land.
After the discovery of oil in 1928, the levee board concluded that the Payne plats, under which it had bought and sold the land, were erroneous, and it employed Mr. A.E. Washburn, a civil engineer and surveyor, to resurvey the entire territory. According to his survey and the plats filed by him, sections 11, 12, and 13 are practically all land and not water, as shown by the Payne plats; that there are 633 acres in section 11, and 640 acres in each of the sections 12 and 13, as against 213 *703 acres in section 11, 8 acres in section 12, and 563 acres in section 13, as shown by the Payne plats.
Accepting the Washburn survey and plats as correct, the levee board set up the contention that the state had failed to convey to it all the lands it owned in those sections, and that, as it had sold only such lands as it had acquired from the state, it followed necessarily that Jordan's successors in title, the defendants, do not own all the lands in those sections.
The Washburn survey and plats, together with a certificate made by him, were presented to the register of the state land office, who, on October 9, 1928, issued to the levee board a patent conveying these additional lands within the Buras levee district, as shown by the Washburn plats, including the following in Tp. 20 S., R. 26 E.: Section 11, 427 acres, section 12, 632 acres, and section 13, 77 acres.
These are the lands which plaintiff claims in this suit; its theory being that they were left out of the original grant made by the state to the board in 1914.
The grant made to the board in 1928 recites that:
"The above estimated area is in accordance with the lands appearing on the Allen E. Washburn, C.E., map."
The plaintiff, in bringing its suit, alleged that the Washburn plats were correct. It attached them to its petition and made them part of it. But the trial judge seems to have ignored these plats in rendering his judgment. He found for plaintiff, "decreeing said plaintiff to be the true and lawful owner of the following described property to wit: *704
"In township 20 S.R. 26 E;
"Sec. 11, 427 acres;
"Sec. 12, 632 acres;
"Sec. 13, 77 acres, said lands being located on the ground by a resurvey, as shown by plat of the Board of State Engineers filed in this case. Plaintiff Buras 23 and 23a and an enlargement thereof of Secs. 11, 12 and 13, T. 20 S.R. 26 East filed as Plf. — Buras #30 and as such entitled to the full and undisturbed possession thereof."
The defendants appealed from this judgment.
A history of all the transactions connected with these lands must be understood in order to correctly decide the issues involved, and this involves necessarily the various surveys made by the engineers and the plats filed by them.
If the Payne plats are accepted by the court, then the case is necessarily with defendants, because, according to them, Jordan, trustee, purchased, and his transferees now own, all the land in T. 20 S., R. 26 E., which the state ever owned or could own, and all that the plaintiff levee board ever owned. We must therefore trace the history of the Payne survey and the reason for his making the plats as he did and the reason for his designating the acreage of land in each of his sections as he did.
The state owns, by virtue of its inherent sovereignty, all tidal overflow lands within its boundaries. It is entitled to receive from the government all so-called swamp lands under the Swamp Land Act of March 2, 1849. The lands in this section of the state *705 are all low; some of them being tidal overflow and owned by the state by virtue of that fact. Some of them are swamp lands as defined by the act of 1849.
The Buras levee district was created by Act No. 18 of 1894, and embraces within its limits all the territory in Tps. 19 and 20 S., R. 26 E. By this act, the state granted to the board of commissioners created for the district "all lands now belonging or that may hereafter belong to the State of Louisiana, and embraced within the limits of the levee district as herein constituted." (Section 11.) This act was so amended by Act No. 205 of 1910 as to include specifically all lands owned by the state "by virtue of her inherent sovereignty."
The board of commissioners, at various times, applied to the proper officials of the state for formal grants of the state owned lands within the limits of its district, and formal grants were made so that up to 1908 practically all the surveyed lands in the district were formally transferred.
But there were within the territorial boundaries of the district certain "unsurveyed lands"; that is, a territory which had never been surveyed by government engineers, and, as a consequence, it was not known whether these lands belonged to the state by virtue of its inherent sovereignty or whether it was entitled to have them transferred to it under the Swamp Land Act of 1849.
This unsurveyed territory included Tps. 19 and 20 S., R. 26 E. and Tp. 20 S., R. 27 East. The board of commissioners thought the state either owned, or should own, these unsurveyed lands, and, if so, they should be *706 transferred to the board. Accordingly, the board's attorney, Mr. Dymond, requested the proper state officials to apply to the national government for a survey and an examination of these lands. The surveyor general's office complied, and deputized Major Frank T. Payne to do the work and report his findings. Following are the instructions given by the surveyor general to Major Payne:
"By letter dated August 25, 1906, the State of Louisiana, through Hon. A.W. Crandell, Register of the State Land Office, made application to this office for a survey and selection as inuring to the State of Louisiana under the swamp land grant of the unsurveyed lands in the following townships, viz.:
Township 18 South, Range 25 East.
Township 19 South, Range 26 East.
Township 20 South, Range 26 East.
Township 20 South, Range 27 East.
"All in the South Eastern District, Louisiana."
"You are now instructed to proceed to the aforesaid townships, and make the examination of the lands therein, in order to ascertain if there are any lands therein that do not come within the purview of the swamp land grant of March 2, 1849."
"The above sketches and field notes, will, I suppose, be sufficient data from which to project your surveys, and enable you to ascertain the proper location of the exterior boundaries of the townships wherein you are to make your examination.
"After having ascertained to your entire satisfaction the proper location of the exterior boundaries of the townships, you will *707 make a sufficient examination of the lands in each township, etc., etc."
"You will then prepare lists (one for each township) of the lands found to be of the character granted, and present the same to this office for action, and you will also deposit in this office all field notes, maps and other papers from which you prepare the said lists.
"The sections in the aforesaid townships should be numbered respectively, beginning with the number one in the northeast section, and proceeding west and east alternately, through the township, with the progressive numbers till the thirty-sixth be completed."
"You will make the lists of these lands according to the following form, viz.:
"South Eastern District, Louisiana,
"West of Mississippi River.
--------------------------------------------------------------------------- Parts of | | | Township | | Section | Section | Area | | Range | Remarks — -----------|--------------|---------|------------|---------|------------- | | | | | | | | | | | | | | | | | | | | | | | | | --------------------------------------------------------------------------- "You will sign the report of your examination and your maps in your capacity of U.S. Deputy Surveyor, and have your signature identified by the Clerk of Court before transmitting your said report to this office."
These instructions make it perfectly plain that Payne was not expected to establish the boundaries of these unsurveyed townships. These boundaries had long since been established by surveys made by the United States government. The purpose of sending Payne to the territory was to ascertain and report the character of the lands involved, and there was therefore no occasion for his attempting *708 to establish the boundaries. It was necessary, however, for him to locate these boundaries as already established, in order that he might know the location of the lands to be examined. All that Payne was instructed to do was to proceed to those townships "and make an examination of the lands therein, in order to ascertain if there are any lands therein that do not come within the purview of the Swamp Land Grant of March 2, 1849."
The Surveyor General sent him "field notes" which he assumed would "be sufficient data from which to project your surveys, and to enable you to ascertain the proper location of the exteriorboundaries of the township wherein you are to make yourexamination." The Surveyor General proceeded with his instructions as follows:
"After having ascertained to your entire satisfaction the proper location of the exterior boundaries of the township, you will make a sufficient examination of the lands," etc. (All italics ours.)
Payne went to the territory as directed, examined the lands as far as he could, and made his report. His report shows that he understood that he was not to establish the exterior boundaries of these unsurveyed townships, for he says:
"With the data furnished me by your office of surveys made of adjoining townships, under authority from the United States Government, from which to project my surveys and enable me to determine the proper location of said townships wherein I was to make an examination and ascertain if there were any lands therein that came within the purview *709 of the swamp land grant of March 2, 1849, I proceeded," etc. (Italics ours.)
In order to locate the boundaries of these townships, he used the data, presumably field notes, of the old government surveys sent him by the Surveyor General.
As to Townships 19 and 20 S., R. 26 E., he says:
"In order to locate Townships 19-26, 20-26 * * * I began at a meander corner on the south boundary of Township 19 S.R. 25 East (established by me for the Oyster Commission of Louisiana) and ran East (var. 5° 25' East) 34.60 chains where I intersect Bay Baptiste. The south east corner of said Township falling in the bay, which is the south west corner of T. 19 S., R. 26 East, the township to be examined, I find it impossible to proceed further owing to the condition of the land and numerous bays and bayous." Following this he says that he examined the lands "by walking over them when possible and by coasting through the many bayous and bays interspersed throughout the entire area." (Italics ours.)
He does not say, and there is nothing in his report to indicate, that he attempted to do more than locate the lands to be examined by reference to the old surveys as shown by the field notes furnished him. His report shows unmistakably that he did not actually survey and measure the lands, but that he examined them "by walking over them when possible and by coasting through the many bayous and bays interspersed throughout the entire area."
The maps which he made and attached to his report showed the boundaries of the *710 "many bayous and bays" and the land area of each section in each of the townships. But the information which enabled him to make this showing was not obtained by him from his examination, for he says:
"The maps forming part of this report have been compiled from data furnished me by the United States Coast Geodetic Department and from surveys made by me for the Oyster Commission of Louisiana."
He reported that he found the lands "to be an almost impassable marsh, subject to tidal overflow, and in their present condition, utterly worthless."
Upon receipt of this report and the maps, the Commissioner of the General Land Office at Washington ruled that the lands lay below the high-water mark of the Gulf of Mexico and were owned by the state by virtue of its inherent sovereignty, and so informed the state authorities.
As we have stated, Payne's maps were filed at the office of the register of the state land office at Baton Rouge, and were approved by the Governor in April, 1912.
Accepting these maps as correct, and using them as a basis for a transfer, the state, through the proper officers, transferred the lands to the levee board.
The levee board then had De Armas make an estimate of the acreage of the land in each quarter section as a basis for its sale. De Armas made no survey, but took Payne's maps, which showed by clear outlines the location of the boundaries of all the lakes and bays as well as the number of acres in each section. By locating the lakes and bays on Payne's maps, De Armas was able to determine *711 the exact location of the land in each section and the acreage in each quarter section. The total of the acreage in each quarter section equalled exactly the whole acreage as shown by the Payne plats. The levee board used the De Armas estimates as a basis for its sale, and therefore the Payne plats formed the basis for the transfer, and were relied upon by the state when it transferred to the board and by the board when it sold to Jordan.
The levee board now repudiates the Payne map and his plats, and seeks to have the court hold that it is not bound by them.
As a basis for its present claim, it had the two townships resurveyed, and, with reference to the Payne plats, to quote the district judge, had "an enlargement thereof of Secs. 11, 12 and 13, T. 20 S.R. 26 East" made, and in fact an "enlargement" of each and every section in the township.
As a result of their resurvey and this "enlargement," and according to the recent maps and plats made by Washburn and approved by the board of state engineers, sections 11, 12, and 13 have been, figuratively speaking, pulled down south more than a mile from where the Payne map locates them, and incidentally pulled out of the water onto land and placed on the exact spot where oil was discovered.
The oil wells were, of course, drilled on land and not in water. Their location on the ground is in section 25, according to the Payne survey. This entire section 25 is land, and is undeniably owned by these defendants. So, if the Payne survey and plats are to be accepted, the land and the oil beneath it belong *712 to defendants and not to plaintiff; the oil dome being now where it has always been and where it ever will be.
Defendants own but little land in sections 11, 12, and 13, as located by Payne. Practically all of those sections are in Lake Grande Ecaille. So, if plaintiff is to be decreed the owner of the oil dome, the location of sections 11, 12, and 13 on the ground must be changed, and that is what it is trying to do.
According to the resurvey and "enlargement" of these sections, their location on the ground is shifted so that the sections are all land, and the state, after their resurvey by Washburn in 1928, transferred to the levee board all the land in them except the small fractions sold to Jordan according to the Payne plats.
According to this map, the unsurveyed territory consisting of two so-called townships, that is, Tps. 19 and 20 S., R. 26 E., is a parallelogram 6 miles east and west by 9 miles north and south.
Under the rules of surveying, a township is 6 miles square, and therefore one would expect, where two townships lie adjacent, to find a parallelogram 6 by 12 and not 6 by 9 miles.
The discrepancy in this case arises from the fact that, when Geo. F. Connelly surveyed Tp. 21 S., R. 26 E., he established its north line 3 miles north of where it should have been according to the ordinary rules of surveying. This was due to a mistake which is explained in the record, the details of which need not be recited.
But the fact is that the mistake was made and that he did establish this line 3 miles north of where it should have been. The same mistake was made by Rightor McCullom when they surveyed Tp. 21 S., R. 27 East, in 1840. Their north line of that township, if extended west, would fall exactly where Connelly puts the north line of Tp. 21 S., R. 26 E. This is plainly shown by the map "Buras 19a."
These anciently established lines form the boundaries of this "unsurveyed territory." These lines cannot now be changed for several reasons: First, they were established by United States government surveyors nearly a century ago, and, while some of them on various occasions have been resurveyed, their location was never changed. The second *714 is that the United States government has recognized them on various occasions by transferring to the state portions of each of the surrounding surveyed townships under the Swamp Land Grant of 1849. The third is that the state and this levee board have recognized them, the state by transferring lands to the levee board and the levee board by accepting the sales according to these surveys. And, fourth, the levee board, after acquiring lands in the adjoining townships according to these surveys, has sold portions of the lands thus acquired.
As shown by the record, volume 19, the board, by notarial act passed before J.C. De Armas on January 26, 1904, sold to Geo. T. Shaw 55,978 acres of land located in each of the townships which surround and bound this "unsurveyed territory."
This sale included 8,730 acres in Tp. 18 S., R. 26 E., the south line of which admittedly forms the north boundary of the area involved, and 4,360 acres in Tp. 21 S., R. 26 E., the north line of which, as established by Connelly in 1837, forms the south line of the unsurveyed area.
It therefore does not matter what Payne used as a starting point when he went out to "examine" these lands or whether he went by any starting point at all. The fact is that he had only a limited area to examine and that area had fixed boundaries which could not be disregarded.
Payne's report shows that he made no measurements of this area. He knew, of course, that Watson had established the south boundary of Tp. 18 S., R. 26 E., and that Connelly had established the north *715 boundary of Tp. 21 S., R. 26 E., and he knew, furthermore, that he was to examine and report the character of the land in the two intervening townships; that is, Tps. 19 and 20. Not having measured them, and evidently not knowing that Connelly's line was 3 miles north of where it should have been, he naturally assumed that the territory which he had to examine was a parallelogram 6 miles east and west by 12 miles north and south. He therefore made a desk or office plat of this territory, dividing it into 72 equal portions, which he designated as sections. His plats show 36 of these sections in each township, beginning his numbering in the northeast corner of the township and running alternately west and then east in the usual way.
His so-called sections are necessarily short because it is impossible to carve 72 full sections one mile square out of a rectangle 9 by 6 miles. There was a shortage in the total area platted, and this shortage must be prorated; each section bearing its pro rata of the loss. C.C. art. 851.
These plats were filed, approved by the Governor, and became official documents. By reference to them, the state transferred to the board and the board sold to Jordan. Whatever else may be said about them, the fact is that they showed every acre of land in the territory. The boundary lines of the lakes and bays were clearly and unmistakably delineated upon them. This is not disputed, for the topography of the land was designated by reference to surveys and maps made by the United States Coast Geodetic Department. *716
With these maps before them, the register of the state land office and the auditor knew just how many acres of land the state had to transfer to the levee board, and the board in turn knew how many acres it had to sell.
The lines and sections within the territory, which the state had to grant to the board and which the board had to sell, may be shifted and juggled by resurveys, and enlargements, at will, but such shifting and juggling cannot possibly add to or subtract from that territory one square acre of land. The acreage remains the same, it matters not whose or what kind of a map may be used for the computation.
Now these are some of the outstanding and indisputable facts:
(1) The state owned certain lands which it transferred to the levee board. These lands were in an unsurveyed territory, the boundaries of which having been established by United States government surveys which the state had recognized and accepted by receiving grants of land in the surveyed townships under the Swamp Land Act, and by subseqently conveying these lands to the levee board, all by reference to the ancient surveys.
(2) The levee board owned the same land by virtue of the grant from the state in 1918, and had recognized and accepted the old surveys which bounded the territory by accepting the grant and by selling lands in each of the surrounding surveyed townships to private individuals, all as per these ancient surveys.
(3) The north line of Tp. 21 S., R. 26 East, as established by Connelly, which line formed the south boundary of the unsurveyed territory, had been established 3 miles north of where it should have been, and this line had *717 been recognized and accepted by the levee board; it having accepted from the state a grant of 12 sections in Tp. 21 S., R. 26 E., as surveyed by Connelly, and having sold to Geo. T. Shaw more than 4,000 acres of this land, all as per the survey of that township by Connelly.
(4) The territory which Payne was ordered to examine, and which he did examine, had established boundaries and was a parallelogram 6 by 9 miles.
(5) That Payne subdivided this territory into seventy-two equal parts as shown by the plats which he made and filed, and which were approved, and that the state granted to the board and the board sold to Jordan according to these plats.
(6) The Payne plats definitely delineated the shore lines of lakes and bays within the territory surveyed, and from them the land area therein could be estimated with reasonable accuracy. De Armas, employed by the levee board, did estimate this land area or acreage for the board as a basis for the sale, and the board advertised for sale and sold to Jordan, trustee, the entire acreage shown by the Payne plats and estimate by De Armas.
(7) The state intended to grant, and did grant, to the levee board, and the board intended to sell, and did sell, to Jordan, trustee, all the land area within this parallelogram 6 by 9 miles, all according to the Payne plats, this being apparent, because the state was obligated under legislative enactment to transfer all its lands of this character to the board; the purpose of the board being to get all it could for its property.
(8) It is immaterial to the state, to the levee board, or these defendants whether the Payne *718 plats showed ideal or full sections, or whether they showed short or irregular sections; the fact being that they did show all the land acreage in the entire territory.
It therefore follows that now, because the sections shown on the Payne plats must necessarily be short, the levee board has no right in law, and certainly none in equity, to arbitrarily have this territory resurveyed and the sections shown by the Payne plats "enlarged" for the purpose of shifting their position on the ground so as to make sections 11, 12, and 13 cover the exact spot where oil was discovered.
Counsel for plaintiff in their supplemental brief, pp. 34 and 35, attempt to show that the levee board did not intend to sell, and did not sell, all the land it owned in this territory. In support of their contention, they refer to the fact that no tracts were sold to Jordan, trustee, in Secs. 2, 16, and 20 of Tp. 19 and Secs. 1 and 16 in Tp. 20.
As to sections 16, these were never owned by the board. All sixteenth sections are reserved by the government for the schools.
As to the others, all the maps show that the whole of Secs. 3 and 20, Tp. 19, are in Lake Batise, and that the whole of Sec. 1, Tp. 20, is in Lake Grande Ecaille.
Counsel also point to the fact that no lands were sold to Jordan in certain quarter sections of Secs. 4, 5, 8, 9, 17, 20, 30, and 36 in Tp. 19 and Secs. 2, 4, 5, 6, 8, 10, 12, 28, 29, 30, 31 and 32, Tp. 20. The maps show that each of the quarter sections mentioned is entirely within either Lake Baptiste or Lake Grande Ecaille. Hence no sale, of course. No other reason is suggested in support of their contention *719 that the board did not intend to sell all the land it owned in these townships.
We again refer to Connelly's survey of Tp. 21 S., R. 26 E., the north line of which forms the south line of Tp. 20, or the south line of the unsurveyed territory.
The questions whether Connelly's line was recognized and whether it was in fact located 3 miles too far north, are extremely important factors in this case, because, if this line is in its right place, then the unsurveyed territory was a parallelogram 6 by 12 miles instead of 6 by 9 miles.
What we have already said as to these points should be sufficient. But, if further proof be needed, it is furnished by plaintiffs, who say in their original brief at page 16:
"But Connelly protracted fractional Township 21 S.R. 26 E. north from his meander of the Gulf shore and it was accepted by the United States General Land Office, and became an official survey. Similarly, the Connelly survey of T. 21 S.R. 25 E. and T. 21 S.R. 8 E. were accepted and approved although three miles toofar north." (Italics ours.)
Furthermore, Washburn, who made the resurvey for the levee board, recognized this line on his maps. What Washburn did, to quote the supplemental brief filed by counsel for plaintiff at page 40,
"Was to put the Payne survey of T. 20 S.R. 26 E. in its proper place in the rectangular system of surveys of the United States Land Office, but without extending the sections of the townshipbelow the Connelly line where the conflict and overlap exist." (Italics ours.) *720
On Washburn's map, he showed 36 full sections in Tp. 19 S., R. 26 E., but only 18 sections in Tp. 20 S., R. 26 E., just half the number which would have been in that township had it been the regular size. To quote counsel's brief further (same page):
"Washburn did not show the overlap of T. 20 S.R. 26 E. with the Connelly survey of T. 21 S.R. 26 E., but contented himself with extending T. 20 S.R. 26 E. to the Connelly line, putting sections 1 to 18 of T. 20 S.R. 26 E. in their proper place and leaving off sections 19 to 36 of T. 20 S.R. 26 E."
We take it, therefore, that it is not now disputed by plaintiff that the Connelly line was recognized and that it in fact is 3 miles too far north, and, that being conceded, it must also be conceded that the unsurveyed territory was in fact only 6 by 9 miles.
The plaintiff filed its suit to be recognized as the owner of the lands involved on the showing made by the Washburn map, and made that map a park of its petition. But, as that map recognizes the Connelly survey, and realizing that the Payne plats did divide the unsurveyed area into 72 parts, counsel now contend and attempt to show that Payne's plats actually show a subdivision of two full townships, each with 36 full sections, one mile square, and that, so far as the Payne survey and plats are concerned, the Connelly line should be disregarded altogether, or, to state it as counsel put it in their supplemental brief, p. 40, "this Connelly line does not bound the Payne survey, but conflicts with it."
This contention is wholly untenable. It is not supported by the record. All the maps show that the east and west line which forms *721 the south boundary of the territory surveyed and platted by Payne runs through some portions of land, and that there is land to the south of it. This fact is so obviously true that it need only be stated. All the maps show it.
The maps further show that the topography of the territory traversed by Payne's east and west line which forms the south boundary of the maps corresponds exactly with that traversed by the Connelly line. The same parts of land, such as peninsulas and nooks, are crossed by each of the lines and crossed at the same place.
The maps and surveys also show unmistakably that, if Tp. 20 S., R. 26 E., were projected far enough south to make it 6 miles square, it would extend approximately a mile out into the Gulf of Mexico. Therefore, if Payne had intended to disregard the Connelly line and extend his survey so as to include a full township, his plats could not have shown lands to the south.
It is manifestly clear to us that Payne intended to make the Connelly line his south boundary line.
Furthermore, if Payne did in fact disregard the Connelly line, and if in fact his plats do show 72 full sections each one mile square, there would have been no change made in the location of his section lines by the resurvey made by Washburn; the sections would not have been "enlarged"; the resurvey could have done no more than retrace Payne's section lines, and Washburn's sections would have occupied the same place on the ground as Payne's did. There would have been no shifting of positions, and therefore no advantage gained by plaintiff. Hence, why a resurvey? *722
For the reasons assigned, the judgment appealed from is reversed and set aside, and it is now ordered that the writs of sequestration and injunction sued out herein be dissolved, that plaintiff's demands be rejected, and that its suit be dismissed at its costs in both courts.
BRUNOT, J., dissents and hands down reasons.
ST. PAUL, J., dissents.
ROGERS, J., dissents, concurring in dissenting opinion of Mr. Justice BRUNOT.
Dissenting Opinion
This a petitory action. The plaintiff is an agency of the state. It was created a body politic by Act No. 18 of 1894. The plaintiff is suing for the recognition of its title to and possession of 3 fractional sections of land in Township 20 S., R. 26 E., in Plaquemines parish, within the limits of the Buras levee district, more particularly described in paragraph IV of the plaintiff's petition.
The defendants are Ernest Cockrell, Mt. Forest Fur Farms of America, Inc., Moran Corporation of the South, Gulf Refining Company of Louisiana, Shell Petroleum Corporation, and Humble Oil Refining Company. They allege that the lands sued for were acquired by their author in title, J. Homer Jordan, from the plaintiff, and they acquired by mesne conveyance from their said author in title.
On the application of the plaintiff certain oils were sequestered, a temporary restraining order was issued, and, in due course, *723 the plaintiff was granted a preliminary injunction. Four calls in warranty, two pleas of estoppel, and three exceptions were filed by the respective defendants, but, from our view of the case, these pleadings need not be considered.
The defendants also allege that the plaintiff's petition does not sufficiently describe the land sued for, and therefore it is not susceptible of identification and location on the ground.
The case went to trial on these issues, and judgment was rendered in favor of the plaintiff and against the defendants, recognizing the plaintiff's title to the land, sending it into possession thereof, maintaining the writ of sequestration, perpetuating the preliminary injunction, dismissing the calls in warranty, and taxing the defendants with all costs of the suit. All of the defendants appealed, suspensively and devolutively, from the judgment.
The issues presented appear simple, but the record before us is exceptionally voluminous, and its thorough consideration required time and patience. It discloses that on July 14, 1914, the Buras levee board acquired from the state the following fractional parts of Sections 11, 12, and 13 of Township 20 S., R. 26 E., in Plaquemines parish, viz.: 44 acres of the N.W. quarter; 102 acres of the S.E. quarter and 53 acres of the S.W. quarter of Section 11; 12 acres of the S.W. quarter of Section 12; 93 acres of the N.E. quarter, 160 acres of the S.E. quarter and 160 acres of the S.W. quarter of Section 13. Under the provisions of sections 4 and 5 of Act No. 215 of 1908 and section 11 of Act No. 18 of 1894 as amended by Act *724 No. 205 of 1910, the plaintiff sold said lands together with other lands, and J. Homer Jordan, trustee, became the adjudicatee thereof. All of the defendants trace their titles to J. Homer Jordan, trustee.
Many years after the sale and adjudication to J. Homer Jordan, trustee, the state conveyed to the Buras levee board the lands involved in this suit, viz.: 427 acres in Section 11; 632 acres in Section 12; 77 acres in Section 13, in Township 20 S., R. 26 E., in Plaquemines parish. There is nothing in the record to indicate that the plaintiff has parted with its title to said lands, but the defendants contend that it was the intention of the plaintiff levee board to sell, and of J. Homer Jordan, trustee, to buy, all land in Sections 11, 12, and 13 of Tp. 20 S., R. 26 E., in Plaquemines parish, and that they are entitled to have the error corrected to conform to the mutual intent of the parties, if their title does not include the acreage sued for.
We have searched the record in vain for a substantial foundation for this contention. In reply to the defense that plaintiff's description of the property sued for is not sufficient to admit of proof, the plaintiff invokes the rule that a defendant in the possession of property beyond the boundaries called for by his title, as are the defendants in this case, and showing no title except that derived from the plaintiff, is a trespasser, and as against mere trespassers the plaintiff need show only an apparent title. In Albritton v. Shaw,
"Mere trespasser, or possessor who has no other evidence of title than his occupancy of *725 the land, is without authority to question the validity of a patent * * * in due form and signed by the proper officers."
A sale of public lands made by a public officer, in pursuance of special laws governing their alienation, is a sale by measure. State v. Buck, 46 La. Ann. 672, 15 So. 531.
The record we are considering teems with documentary evidence and expert testimony. From the great mass we have found, and will state in what we believe to be their proper sequence, the following facts:
Beginning with the meridian line in central Louisiana, the original United States surveys were made in the southeastern land district of Louisiana west of the Mississippi river down the right descending bank of the Mississippi river until they reached the confluence of Bayou Lafourche and the river. At this point there is a division. One set of surveyors continued the surveys down the Mississippi river. Another set went down Bayou Lafourche to the Gulf of Mexico. Thence the latter set continued eastward along the Gulf Coast.
This set of surveys proceeded eastward along the Gulf Coast until in 1837 G.F. Connelly, United States deputy surveyor, surveyed and platted Township 21 South, Range 26 East. Due to an error made in this set of surveys as it came down Bayou Lafourche, which error was repeated in all surveys in this set after it was made, the northern boundary line of Township 21 South, Range 26 East, was placed in Connelly's survey thereof approximately 3 miles north of the place where it should have been placed.
This error is the primate cause of the controversy in this case. *726
Connelly's survey of Township 21 South, Range 26 East, was approved, and grants of land were made by the United States in accordance therewith.
Township 18 South, Range 26 East, was surveyed in 1831 by John W. Watson, United States deputy surveyor, as a part of the system of surveys running down the Mississippi river. Township 19 South, Range 27 East, was surveyed in 1831 in accordance with the latter system, and resurveyed by Maurice Hauke in 1860. Township 19 South, Range 25 East, was surveyed in 1840 by Rightor McCollom, United States deputy surveyors, in accordance with the latter system. Grants were made by the United States in accordance with all of these surveys.
In 1906 the register of the state land office applied to the United States Surveyor General to have an examination and survey made of the unsurveyed lands in Township 18 South, Range 25 East, Township 19 South, Range 26 East, Township 20 South, Range 25 East, Township 20 South, Range 26 East, Township 20 South, Range 27 East, and Township 21 South, Range 25 East, in this land district, all in the parish of Plaquemines, La., with a view to applying to the United States for them under the Swamp Land Grant Act.
Frank T. Payne, United States deputy surveyor, was then employed to make the examination and survey requested.
According to his field notes, Payne found the pre-established northeast corner of Township 18 South, Range 25 East.
Then he went to a meander corner which he had established in some surveying done *727 by him for the Oyster Commission on the south boundary of Township 19 South, Range 25 East (which township had been surveyed by Rightor McCollom in 1840), and, according to his notes, ran east along the south boundary of Township 19 South, Range 25 East, 34.60 chains to Bay Baptiste, the southeast corner of this township falling in Bay Baptiste.
As a matter of fact, the southeast corner of the latter township does not fall in Bay Baptiste, but in Cat Bay, which is south of Bay Baptiste. However, Cat Bay is locally known also as Bay Baptiste, and the exact boundary between the two bays is indefinite. Payne did no more surveying, but walked over the land and coasted through the waterways.
He then made a series of plats of the townships he had been ordered to survey and examine. His plat of Township 19 South, Range 26 East (Exhibit Jacobs 4, Tr. vol. 8), and his plat of Township 20 South, Range 26 East (Exhibit Jacobs 2, Tr. vol. 8), each shows an ideal regular township of 6 miles square. These plats are dated October 12, 1908.
He reported that the lands he had been ordered to examine were an impassable marsh, subject to tidal overflow. The United States General Land Office ruled that the lands in Township 19 South, Range 26 East, and Township 20 South, Range 26 East, belonged to the state of Louisiana by virtue of its sovereignty because they were tidal overflow lands. This court reached the same conclusion in State ex rel. Board of Commissioners of Buras Levee District v. N.A. Baker Son,
Payne, without doing any surveying to locate topography, attempted to sketch into his plats the topography of the land by reference to the maps of the United States Coast Geodetic Survey. The topography shown on the plats is in error, no matter what view is taken of the facts.
Payne's maps were approved by the Governor and deposited in the state land office.
Presumably with Payne's maps as a basis (as the state had no other map of Township 20 South, Range 26 East), the state, by act dated July 14, 1914, granted to the board of commissioners of the Buras levee district (which will be hereinafter called the levee board), certain lands in Township 20 South, Range 26 East. The lands so granted included all of the area shown on Payne's maps as land except section 16. It was not, however, granted as a whole, but by sections, with the approximate area of each. This grant included, according to the description in the act, "In Township 20 South, Range Twenty-six East, S.E. Dist. La. Section 11 — 213 acres, Section 12 — 8 acres, and Section 13 — 563 acres." This was all of the land shown on Payne's map as being in those sections. The balance of the area of these sections was shown on Payne's map as being in Lake Grande Ecaille.
John C. De Armas, parish surveyor of the parish of Plaquemines, subdivided a number of tracts of land into quarter sections, including the lands which the levee board had acquired from the state as above set forth. He did not make any surveys, but merely copies from previous maps, subdivided the sections shown on them into quarter sections *729 and fractional quarter sections, and estimated the area of each. For Township 20 South, Range 26 East, he copied Payne's map and made his subdivisions. (For an enlarged copy of De Armas' map in so far as it relates to Sections 11, 12, and 13 of Township 20 South, Range 26 East, see Exhibit Plaintiff Buras 29, Tr. vol. 18.) De Armas' subdivision shows for Sections 11, 12, and 13 of that township:
Section Approximate Area Total
11 N.E. 1/4 44. 00 N.W. 1/4 14. 00 S.E. 1/4 102. 00 S.W. 1/4 53.00 213.00 12 S.W. 1/4 8.00 8.00 13 N.E. 1/4 93. 00 N.W. 1/4 150. 00 S.E. 1/4 160. 00 S.W. 1/4 160.00 563.00 The levee board caused a number of its lands, including all of the area shown as land in that township on the De Armas map except section 16, to be advertised for sale at public auction by the sheriff of the parish of Plaquemines on the basis of De Armas' subdivision under the provisions of Act No. 215 of 1908. The sale was held by Ernest Alberti, sheriff of the parish of Plaquemines, according to the advertisement on February 1, 1919.
At the sale R.L. Gascon bid in a large number of tracts of land, including all of the lands advertised to be sold in Sections 11, 12, and 13 of Township 20 South, Range 26 East, as well as all other lands advertised for sale in that township. At the sale each quarter section or fractional quarter section of land was offered and bid for separately at so much per acre. Gascon bid 50 cents per acre for each quarter section bid in by him. Before the sheriff's procès verbal of the sale was signed, Gascon assigned his rights to J. Homer *730 Jordan, trustee. The procès verbal was then made to read that the lands had been bid in by and adjudicated to Jordan at the sale at 50 cents per acre. In this procès verbal the lands are described in exactly the same way they were in De Armas' subdivision (which is copied hereinabove in so far as Sections 11, 12, and 13, Township 20 South, Range 26 East, are concerned). The state then issued a number of patents to Jordan in confirmation of this sale. The patent which covers these sections is No. L. 40, which describes the lands patented as:
"Northeast quarter, Northwest quarter, Southeast quarter, Southwest quarter, of Section No. Eleven (11) Southwest quarter of Section No. 12, Northeast quarter, Northwest quarter, Southeast quarter, Southwest quarter of Section No. Thirteen (13) in Township No. Twenty (20) South Range No. Twenty-six (26) East in the Dist. W. of Miss. River Land District, Parish of Plaquemines, containing seven hundred and eighty four and no/100 acres according to the official plat or the survey of said land in the State Land Office."
The only plat of the land in the state land office was Payne's.
The patents state that they are in conformity with the adjudication, and that the adjudication was made under Act. No. 215 of 1908 as amended by Act No. 283 of 1914.
Jordan then sold to Ernest Cockrell with warranty and subrogation 127/150 of the lands he had so acquired, and to W.T. Moran without warranty or recourse the other 23/150 thereof. In the acts of sale by which Jordan conveyed an undivided part of the lands he had acquired to Cockrell and the *731 other undivided part to W.T. Moran, the lands of which undivided parts were conveyed are described, in so far as pertinent, as:
"Fifty two thousand Five Hundred (52,500) acres of land, more or less, situated on the West side of the Mississippi River, in the Southeastern Land District of Louisiana, in Plaquemines Parish, and being * * * all of fractional Sections Nos. 2 to 36, inclusive, except Section 16, in Township 20 South, Range 26 East, * * * it being the intention to describe and convey all the same land described and conveyed by Ernest Alberti, Sheriff for account Board of Commissioners, for the Buras Levee District, to J. Homer Jordan, Trustee, under date of Feby. 1st, 1919. * * *"
Cockrell sold to Mt. Forest Fur Farms, with warranty and subrogation, the undivided interest he had acquired by the same description by which he acquired, reserving a royalty of one-eighth of all minerals, including oil, gas, and sulphur, and reserving the right to explore for minerals.
Moran sold to the Moran Corporation of the South, without warranty or recourse, the undivided interest he had acquired by the same description by which he had acquired.
The Moran Corporation of the South sold to the Mt. Forest Fur Farms with warranty of title, but not as to surveys or acreage and with subrogation the undivided interest it had acquired by the same description by which it had acquired, reserving all minerals.
The Mt. Forest Fur Farms sold to the Moran Corporation of the South, Inc., without warranty, but with subrogation, a one-tenth of its undivided interest in all the oil, *732 gas, and other minerals in an undivided 23/150 of the land acquired by it as aforesaid, under the same description.
The Mt. Forest Fur Farms transferred with warranty, but not as to surveys or acreage and with subrogation, to Mt. Forest Fur Farms of America, Inc., in exchange for stock, the whole of the land acquired by Jordan under practically the same description contained in the acts of sale from Jordan to Cockrell and Moran. The act of transfer states that the transferee takes cognizance of the above-mentioned reservations and transfers of mineral rights.
Cockrell granted to the Gulf Refining Company of Louisiana, without warranty, an oil, gas, and mineral lease of the lands bought by Jordan, under the same description contained in the act of sale from Jordan to him.
The Moran Corporation of the South granted to Roxana Petroleum Corporation an oil, gas, and mineral lease of an undivided 23/150 of the lands bought by Jordan under the same description contained in the act of sale by Jordan to Moran.
The Roxana Petroleum Corporation has changed its name to Shell Petroleum Corporation.
After the grant by the state to the levee board on October 9, 1928, hereinafter described, the levee board granted to Frank J. Lobrano an oil, gas, and mineral lease on all lands in Township 20 South, Range 26 East, owned by the levee board, and other lands, reserving a one-eighth royalty on oil, gas, and other minerals.
Lobrano assigned his lease to the Gulf Refining Company of Louisiana. *733
The Gulf Refining Company of Louisiana, the Shell Petroleum Corporation, and the Humble Oil Refining Company entered into a joint operating contract by which they pooled all of their oil leases within an area 6 miles square with United States Coast and Geodetic Station "Wash," which is on the shore of Lake Grande Ecaille, as the center thereof, and agreed that the Humble Oil Refining Company should exploit the pooled leases for the joint account of the three parties to the agreement.
Under this agreement the Humble Oil Refining Company has drilled two producing wells within the square, from which oil has been taken by the Humble Oil Refining Company under the agreement.
In the meantime, after the sale to Jordan, the state had a map of a large extent of the territory, including the neighborhood in which the lands involved are located, made by Allen E. Washburn, civil engineer, in 1925 (Exhibit Plaintiff Buras 8, Tr. vol. 10). Washburn did not do any surveying for his map, but compiled it from maps available to him. He located Township 18 South, Range 26 East, according to the map made by Watson in 1831. He located Township 19 South, Range 26 East, immediately south of Township 18 South, Range 26 East, and showed Township 19 South, Range 26 East, as a regular township, 6 miles square, as had Payne on his map.
He located Township 20 South, Range 26 East, immediately south of Township 19 South, Range 26 East, but as, following Payne's plan, it overlapped Township 21 South, Range 26 East, as laid out by Connelly *734 in 1837, Washburn left off of his map the part of Township 20 South, Range 26 East, according to Payne's map, which he considers overlaps Township 21 South, Range 26 East; that is, he left off the southern half of Township 20 South, Range 26 East, and shows Township 20 South, Range 26 East, as measuring 6 miles from east to west, but only 3 miles from north to south, and as being divided into 18 regular sections one mile square, instead of the regulation number, 36, for a complete regular township. He numbered the sections from 1 to 18 in the regular order, beginning in the northeast corner.
He located Township 21 South, Range 26 East, immediately south of Township 20 South, Range 26 East, following Connelly's survey for it. He completed his map in 1925, and on October 8, 1928, the state granted to the plaintiff levee board certain lands, including the following:
"Township 20 South Range 26 East. "Section 11 427 acres "Section 12 632 acres "Section 13 77 acres."
The above area is in accordance with the lands appearing on the Allen E. Washburn, C.E., map compiled in November, 1925, making proper allowance for navigable water areas and for lands in the above sections previously patented or conveyed by the state.
It is these lands that are being sued for. They were located on the ground by a resurvey, as shown by plat of the board of state engineers filed in this case as "Plf — Buras 23," and "Plf. Buras 23-A," and an enlargement thereof of Secs. 11, 12, and 13 in Tp. 20 S., R. 26 E., filed as "Plf — Buras 30." *735
After this suit was pending, the state board of engineers, in accordance with advice given by E.G. Harrington, cadastral engineer of the United States General Land Office, made a survey and prepared a map of a large area of land, including the neighborhood in question. This map (Exhibit Plaintiff Buras 23-A, Tr. vol. 11, and Buras 23, which is identical with Buras 23-A, except that Buras 23 has been marked on) was made from actual survey. The work was done by C.A. Roberts and Carroll L. Wood, Jr., civil engineers employed by the state board of engineers, under the supervision of Harry Jacobs, chief state engineer. At the same time the state board of engineers also made a detail map (Exhibit Plaintiff Buras 30, Tr. vol. 18) showing an enlargement of Sections 11, 12, and 13 of Township 20 South, Range 26 East, with De Armas' plat superimposed on it in red. The maps of the state board of engineers are dated July, 1932.
Payne's and De Armas' maps show a large part of section 11, practically all of section 12, and a considerable part of section 13, as being in Lake Grande Ecaille. On the other hand, Washburn's map shows these sections as being all land. The state board of engineers' maps show almost all of sections 11 and 12 and all of section 13 as land. According to them, only a small portion off of the northeast corner of section 11 and a smaller portion off of the northwest corner of section 13 are in Lake Grande Ecaille.
Lake Grande Ecaille is a navigable body of water.
Mr. Harrington has been in the employ of the General Land Office since 1908, with the *736 exception of about six months in 1909. For a number of years he was United States surveyor, in which capacity he made a number of resurveys. From about 1927 until the time of the trial of this case he has been in the General Land Office at Washington as cadastral engineer. A cadastral engineer is one whose duties pertain to the establishment and re-establishment of boundaries. He and another employee of the General Land Office prepared the chapter on "Plats" of the 1930 edition of the Manual of Instructions for the Survey of Public Lands of the United States.
Mr. Jacobs, the chief state engineer, has been engaged in engineering and surveying since 1906. He has been employed by the state board of engineers since 1928.
Mr. Frank H. Waddill, who testified as an expert witness for the plaintiff levee board, is a civil engineer, who at the time of the trial had been engaged in the practice of civil engineering and surveying in Louisiana for about forty years. He is very familiar with the United States surveys of lands in Louisiana, and has had extensive experience in making resurveys.
Mr. Harrington, Mr. Jacobs, and Mr. Waddill all testified that the resurveying of Township 20 South, Range 26 East, was a matter of resurvey; that is, taking Payne's map and locating it on the ground. They said Payne's map could not be disregarded and had to be taken as a basis for the resurvey because the lands had been transferred with reference to it. With regard to its conflicting with Connelly's map of Township 21 South, Range 26 East, their opinion was that both should be shown overlapping the other in so far as they conflict. They said that the state board of *737 engineers' map is a correct map, made according to correct surveying principles; that it is a correct resurvey of Township 20 South, Range 26 East, and that it correctly shows the location and boundaries of the latter township and the sections thereof. They further stated that Payne's map was tied in with the system of surveys made along the Mississippi river, and had no reference to Connelly's survey of Township 21 South, Range 26 East.
This map (Exhibit Plaintiff Buras 23-A, Tr. vol. 11) shows Township 19 South, Range 26 East, as a regular township 6 miles square, located immediately south of Township 18 South, Range 26 East (which was surveyed by Watson in 1831). It shows Township 20 South, Range 26 East, as a regular township 6 miles square divided into 36 regular sections and numbered in the conventional manner. According to this map, the southern boundary of Township 20 South, Range 26 East, is in the Gulf of Mexico, and Connelly's plat of Township 21 South, Range 26 East is superimposed over the south half of it, showing a conflict. Connelly's survey does not, however, conflict with sections 11, 12, and 13 as shown.
The two producing oil wells, according to the board of state engineers' map, are located in the northwest quarter of the southwest quarter of Section 12, Township 20 South, Range 26 East. According to the state board of engineers' enlargement of sections 11, 12, and 13 with De Armas' plat superimposed (Exhibit Plaintiff Buras 30, Tr. vol. 18), these wells are actually on the land, but are in a location which is shown on Payne's and De Armas' maps as a part of the bed of Lake Grande Ecaille. *738
The defendants produce as a witness Mr. H.N. Stamper, a civil engineer employed by the Humble Oil Refining Company. Mr. Stamper studied engineering at the State University of Texas, from which he received the degrees of B.S. and C.E. in 1922. He worked for about two years as field engineer for the Santa Fé Railroad, and then he engaged in the lumber business until 1927, when he entered the employ of the Humble Oil Refining Company, for whom he had been doing construction and surveying work up to the time of the trial.
It was admitted that W.A. Blakemore would testify as a witness for the defendants that he graduated from the University of Arkansas in 1911 with the degree of civil engineer; that he has been practicing civil engineering and surveying ever since; that for the seventeen years preceding the trial he was in the employ of the Gulf Refining Company of Louisiana doing actual field surveying work; that he and Stamper worked together in the preparation of the data testified to by Stamper; and that his testimony would be the same as Stamper's.
Stamper testified, based on actual surveying done by him, as to his idea of how Township 19 South, Range 26 East, and Township 20 South, Range 26 East, should be located and subdivided. He made a map showing the location and subdivision of these townships according to his ideas (Exhibit Defendants' Stamper 1, vol. 8). Stamper's map is a copy of the state board of engineers' map (Exhibit Plaintiff Buras 23-A, vol. 11), with Stamper's idea as to how Township 19 South, Range 26 East, and Township 20 South, Range 26 East, should be located and subdivided superimposed thereon in red. *739
According to Stamper's opinion, Payne, in making his map, must have taken into consideration Connelly's survey of Township 21 South, Range 26 East (which was 3 miles too far north), and must have considered the northern boundary of Township 21 South, Range 26 East, as the southern boundary of Township 20 South, Range 26 East. He says that, as Payne did not measure the distance between the southern boundary of Township 18 South, Range 26 East, and the northern boundary of Township 21 South, Range 26 East, according to Connelly's survey, Payne must have presumed it to be 12 miles, though it was in fact only 9 miles, due to an error in the location of Connelly's survey. Stamper is of the opinion that Payne intended to fit Section 19 South, Range 26 East, and Section 20 South, Range 26 East, in between Section 18 South, Range 26 East, and Section 21 South, Range 26 East, as surveyed by Connelly. He says that this must be done in a resurvey of this locality, and that the only way to do it is to scale down the north and south dimensions of Township 19 South, Range 26 East, and Township 20 South, Range 26 East, so as to make them fit in. His map is drawn in accordance with his opinion. It shows these two townships, each measuring 6 miles from east to west by only four and a half miles from north to south. It shows them each divided into 36 sections, numbered in the regular manner, and measuring each one mile from east to west, but only three-quarters of a mile from north to south.
According to Stamper's map, sections 11, 12, and 13 are located some distance north of their location according to the map of the state board of engineers. *740
Stamper's theory is based upon the assumption that, when Payne made his map, Payne had in mind Connelly's survey of Township 21 South, Range 26 East, and intended that Township 20 South, Range 26 East, should be bounded on the south by Connelly's survey.
The opinion of Waddill, Jacobs, and Harrington is in direct conflict with Stamper's theory. They say Payne's survey proceeds from the north to the south, and has no reference whatever to Connelly's survey.
It is shown that, when J. Homer Jordan, trustee, the author of the defendants' title, acquired the lands described in patent No. L. 40, the only plat of said lands then in the state land office was Payne's plat, and the patent in express terms conveyed the lands according to the plat and survey thereof then in the state land office.
It is shown that the several engineers who testified for the plaintiff are without interest in the result of this litigation, and they have a standing in their profession and a knowledge of the locus not excelled, if equaled, by the two experts offered by the defendants, one of whom is an employee of the defendant Humble Oil Refining Company, and the other an employee of the defendant Gulf Refining Company of Louisiana.
I have carefully considered all of the facts disclosed by the record, and have reached the conclusion that counsel for plaintiff, in their original brief, correctly say that the engineers who testified for the plaintiff have followed the law:
"(1) In treating the Payne surveys as related to the system of rectangular surveys of the United States Land Office. *741
"(2) In reading the Payne survey in the language in which it is written — that of a United States Deputy Surveyor reporting to the United States Land Office.
"(3) In following the calls of Payne's field notes in the resurvey of his work and particularly in accepting Payne's call for the southeast corner of Township 19 S.R. 25 E. as the beginning corner of Payne's survey of T. 19 and 20 S.R. 26 E. and T. 20 S.R. 27 E., and as controlling these surveys.
"(4) In accepting the adjoining boundaries of related surveys as identical with the boundaries of Payne's surveys.
"(5) In following Payne's calls for course and distance from his point of beginning — the southwest corner of T. 19 S.R. 25 E.
"(6) In rejecting unsurveyed lines indicative of topography on Payne's plats as not controlling the survey.
"(7) In treating the unsurveyed shore lines on the Payne plats merely as boundary lines of tracts sold with reference thereto and not as controlling the location of the survey."
For the reasons stated, I dissent.