2 La. Ann. 205 | La. | 1847
The judgment of the court was pronounced by
This action is instituted by the plaintiff' to recover the possession of a tract of land of which he claims to be the owner, and in the possession of which he alleges he has been disturbed by the defendant, Dale. Tha defendant avers that he took possession of the land in controversy under the authority of its lawful owner, which .possession he held for moro than twelve months previous to the institution of this suit; and he further denies that the plaintiff7 was .ever in possession. The cause was tried by a jury, whose verdict was for the defendant, and the plaintiff has appealed.
The principal point presented in this controversy is, whether the plaintiff has «ver been in actual possession of the land in dispute, under the title whicli he exhibits. The character of the possession necessary to maintain actions of this kind has been considered as settled, since the interpretation given to the 49th .article of the Code of Practice on the final decision of the case of Ellis v. Prevost, in which the question underwent an elaborate investigation. 19 La. ■p. 254. 13 La. 230. That article requires that the possessor who claims to exorcise this action, should have been in actual possession of the property at the instant when the disturbance occurred. A mere civil or legal possession is insufficient. In .the case of Ellis v. Prevost, it was held that, civil or legal possession, which has been preceded by a corporeal detention of the property, authorised a resort to this action, although the possessor should not be in the .actual occupancy at the moment of the disturbance, but that the mere civil or legal possession, which has not been preceded by such actual possession, was insufficient. The correctness of these principles has not been seriously questioned, nor is it believed that they can be successfully controverted. It remains to .apply them to the facts of this case. The plaintiff exhibited perfect titles in himself to the land in contest, and it devolved upon him to show that at some time he had held actual possession under them. He never resided upon or cultivated the tract, and relies upon other circumstances to show the possession. These are, that he caused the land to be surveyed, and for many years previous :to the institution of tiffs suit was in the habit of cutting trees upon it for the ■use of his plantation.
One of his witnesses states that he is the parish surveyor of Concordia, and was employed as such by Dams, in the summer of 1841, to ascertain the lines of the land, and particularly where the lines of the lots 47 and 48 met the Jake; that he did determine where they met the lake, and marked them.
A motion for a new trial was made on the ground that, the defendant’s counsel retained in his possession the depositions of several of his witnesses taken in writing, until the plaintiff had nearly closed his evidence, whereby he was taken by surprise. These depositions were admitted without objection at the time, and the objection came too late after the trial of the cause. The irregularity of the pi-oceeding, if it be one, should have been excepted to at the time when the depositions were offered. Judgment affirmed.