84 So. 212 | La. | 1920
Statement of the Case.
This action is brought by some of the children and heirs of Gustave Laurent and his wife against other heirs and the “Hermosa Plantation” (a company to which all of the heirs made a sale of a portion of the land inherited by them and held in common) for the establishment ■ of the eastern boundary of a tract which had been sold by the decedent, Gustave Laurent, to his son, the defendant Jules G. Laurent; the circumstances out of which the litigation has arisen, broadly stated, being as follows:
Gustave Laurent owned a large body of land lying in sections 27, 28, and 33 of township 11 S., range 3 W., southeastern district of Louisiana, parish of Vermilion, and had his residence on a portion of it, lying in section 27. Having (in 18S0) sold a tract, lying in sections 28 and 33, to his son Eelix (a defendant herein), he (in 1883) sold an adjoining tract (to the eastward) to his son, Jules (the main defendant), by an instrument which appears to have been lost or destroyed, and the record of which was partially destroyed in the burning of the courthouse of Calcasieu parish. Another instrument, purporting to be a duplicate, and bearing date August 18, 1885, was therefore substituted
“A certain tract of land fronting on Lake Arthur, in the parish of Vermilion, and described as follows, according to a survey by Geo. O. Elms, deputy United States surveyor, of date March 13, 1885, to wit: At a variation of 7° 55' E., beginning at a túpelo gum tree on the bank of Lake Arthur, thence 84%° B., 2.10, S. 22^4° E., 5.00, set a post, and thence, S. Io 15' W. to the back line of G. Laurent’s land. The said tract is bounded on the north by Lake Arthur, on the east by the vendor, on the south by unknown owners, and on the west by Felix Laurent, and consists of 200 arpents, more or less, being well known to the purchaser, who declares that he accepts without other formalities than the above delimitation.”
A rough sketch (presumably of the survey by Elms) of the eastern boundary shows the courses as above given, save that, describing them as from south to north, instead of from north to south, it reverses .them thus, “N. Io 15' E„ “instead of S. Io 15' W.,” etc.
The court appointed a surveyor, who returned a plat and report showing that he had begun his survey at a certain point, A, on the shore of Lake Arthur, to which he was directed by some of the plaintiffs as a point at which there had, many years ago, been a túpelo gum tree, of which, however, he found no trace, and his field notes thence read, in part, as- follows:
“From A — starting point, pointed out by William Laurent and others — S. 82° 15' E., 2.10, to post or stake set to B. At that time, Mr. Albert Laurent [one of the defendants] came to me and told me that he could show me the túpelo gum mentioned in the deed. I asked him to point it out to me, and he pointed a túpelo gum, near by, standing a few feet in the water from the dry land. I went to the tree and found marks thereon, and that the Hermosa’s west boundary line ran to it. I could not identify the marks on the tree as surveyor’s marks. Going back to stake B, I ran N. 19° W., 1 chain, 65 links, to the tree shown by Albert Laurent. Going back again to B, 1 proceeded with the line commenced as follows: S. 22° 15' B., 5.66 [to point marked C on plat], found house yard of Jules Laurent, a china tree, east 6 feet, 1 foot in diameter, 4.78 out of yard; 5.00, set stake, whence Jules Laurent’s house N. 36° 30' W.; about % chain, his barn center S. 33° E., about 1 chain 25 links. I then ran at right angles to the line claimed by Jules Laurent, now the west boundary of the-Hermosa Plantation, whence .east, about 6 feet, found a live oak tree, 18 inches, with marks. I went back to G, on my line, and ran S. 1° 15' W.; at 20 ran again to the Hermosa line 2.83; found the Hermosa line bearing at this point as well as from the live oak 1° 15' E., satisfied me that the line was run that way through an error; at 29.19 intersect south boundary of section 28 and north boundary of 33, T. 11 S., R. 3 west,” etc.
Plaintiffs filed a motion alleging that the boundary had been correctly established by the surveyor, and praying that it be confirmed. Defendants (with the exception of the Hermosa Company) opposed the confirmation on the grounds: (1) That the survey should have started from the túpelo tree pointed out by Albert Laurent; (2) that the last call in the deed from Gustave to Jules Laurent (S’. 1° 15' TV) read.s in that way through an error admitted by the draftsman, and should have read S. 1° 15' E., and that the surveyor appointed by the court should have made the correction and run that course S. 1° 15' E.
Upon the trial, some of the witnesses testified that there had been, at one time, a túpelo tree, at the point A, from which the surveyor started, and which they assumed to establish by planting a pole in the water though they found neither tree, stump, nor roots, to indicate that a tree.had ever been there; and other witnesses testified that the tree pointed out by Albert Laurent had been there for many years, and was the established corner of the tract, a fact which all of the heirs recognized in an act of sale (and annexed plat) to1 the Hermosa Company of land lying to the east of Jules Laurent, which exhibits give the courses (from south to north) of the west boundary of the land sold as follows (from stake oh south line of ■ section 28 and east line of Jules Laurent’s tract):
*943 “Thence north Io 15' west, with Jules Laurent’s line, 2,000 feet, to a stake for a corner of this and the Jules Laurent tract, from which an 18“ live oak south 65° east, 7 feet; thence, with the line of said Jules Laurent’s tract, north 22° west, 330 feet, to a stake for a corner; thence north 82140 west, 149 feet to a gum tree, in the edge of Lake Arthur for corner,” etc.
The plat of survey attached to the act, however, shows the first course above given (in reverse) as “S. 1° 15' W.”
Defendant attempted to show the alleged error in that course, as given in the last call of his title, by testifying that the surveyor told him what the course was, and that he himself took an observation through the transit; but Ms testimony on that point is wholly unsatisfactory.' He also attempted to show adverse possession, within the boundaries claimed by him, for 30 years or more, but was unsuccessful, ,we think, in showing such possession for even 10 years. His father died in 1887, and the possession of the property of the succession devolved’ on the widow in community, as owner and usufructuary. Jules Laurent became her agent, and so remained until her death, in 1911 or 1912, and it is doubtful whether there was ever a fence between his land and that of the succession, save in the vicinity of his residence, and such fence as there may have been he seems to have moved, from time to time, to suit his convenience, but -with no assertion of title beyond the boundaries established by his deed of 1S85, which was executed within 30 years of the date upon which this suit was instituted.
According to the survey, made by order of the district court, if the line beginning at the point A on the plat, were adopted, there would be left to Jules Laurent 56.96 acres less than the acreage (“200 arpents,” or 168 acres, “more or less”) called for by his title; if the line beginning at the túpelo tree, as found on the bank of the lake, running thence the two first courses as called for by his title, and thence S. Io 15' west, be adopted, there will be left to him 26 acres less than as so called for; and, if the entire line for which he contends be adopted, he will still be short, it is said, some 15 or 16 acres; but, as shown by the testimony, that may be accounted for by the fact that the township line has been moved up by a resurvey under orders of the government.
The sale, however, was made according to boundaries, or per aversionem, and not by acreage. Moreover, the acreage was merely estimated, “more or less,” and the deed expressly declares that the purchaser accepts the land as “delimited.”
We find in the record the following admission concerning the west boundary of the tract sold to the “Hermosa Plantation,” to wit;
“The plaintiffs in this case, through their counsel, admit that the western boundary of the land sold to Hermosa Plantation, by the heirs of Gustave Laurent, as shown by the deed filed in this suit, and as surveyed by J. T. Hervey, is a true and correct western boundary line of the property purchased by said' Hermosa Plantation, by Mr. J. T. Hervey (sic), surveyor, Mr. Babbit, Mr. Everette, and Mr. Raphael Broussard, all surveyors, and representing the parties to this litigation; said last, three named surveyors having checked the line, as established by Hervey, and agreed that the same was correct, as shown by the description in the act of sale from the heirs of Gus-tave Laurent and his wife to the Hermosa Plantation.
“This admission, however, is to in no way affect the dispute in this case, between plaintiffs and defendants, as to the real eastern boundary of the land sold to Jules Laurent.”
The judge a quo amended the report of the-surveyor appointed by him by directing that the boundary in question be fixed as starting-from the point marked S and the word “Tu-pelo” on the plat of said survey (instead of from the point marked A), and running thence-in accordance with the courses set forth in the act of sale from Gustave Laurent to-
“That the bearing of that portion of the western boundary of the land sold to the Her-mosa Plantation, designated on the plat annexed to the deed from the heirs of Gustave Laurent and Carmelite Hebert, above described herein as being south 1° 15' west by J. P. Her-vey, C. E., be and the game is hereby corrected and amended, so as to read ‘north Io 15' west,’ so as to conform with the description of said boundary as given in the body of said deed, and with the direction of said boundary's fixed by said surveyor, on the ground.”
The plea of prescription, incorporated, in the answer, was overruled. The plea of estoppel appears to have been ignored.
The costs were directed to be paid by plaintiff and defendants in equal proportions, save as to the Hermosa Company, which was relieved of all costs. The defendant Jules G. Laurent alone has appealed. The plaintiffs have moved to annul the judgment, so as to start the boundary in dispute from the point A, as reported by the surveyor, and to condemn the defendant Jules G. Laurent to pay all costs. .Agreeably to motions herein filed, suggesting the death of William Laurent (one of the original plaintiffs), his heirs, Andrew W. Laurent, William H, Laurent, Luke A. Laurent, and Edwin E. Laurent, have been made parties plaintiff in his stead, and Luc Ledoux has been made party plaintiff in his stead, as curator of the interdict, Martha Laurent, and, on suggestion of the death of Felix Laurent'(original defendant), Edmond Laurent, his heir, has been made party defendant in his stead.
Opinion.
“Whereas, J. F. Hervey, C. E., made a survey of said described property and a plat which is attached to said act of sale, showing the boundaries and description thereof and the acreage to be, according to said survey and plat, 416.23 acres:
“Now, therefore, it is agreed * * • that, if there is found to be more than 416.23 acres in said tract of land, * * * then * * * the said Hermosa Plantation agrees to purchase and pay for, at $50 an acre, such number of acres, in addition to said 416.23, as shall have been determined to be within said tract and boundaries, as shown by such official survey, and the said vendors agree to sell,” etc.
On the merits, we agree with the trial judge as to the point of departure and courses adopted and followed in the survey ordered by him. The evidence, we think, is conclusive to the effect that the proper point of departure in the survey ordered by the judge, was the túpelo gum tree, designated by the witness Albert Laurent, and from that point the calls for the courses and distances were unambiguous and consistent with the 'other calls of the title. The oral testimony to the effect that the surveyor told the defendant, at the time, that one of the courses was different from that expressed in defendant’s title and upon the sketch attached thereto, was inadmissible, and, when admitted, unconvincing.
We imagine that our learned Brother, in ordering the correction of the description of the west boundary of the land sold to the Hermosa Company, overlooked the agreement of the parties (quoted in the preceding statement of the case) upon the subject of that boundary. But, as the Hermosa Company has not appealed, we are powerless to alter his judgment for its benefit, nor are we asked so to do. The motion to amend, filed on behalf of the heirs, is not well founded, and not sustained.
The judgment appealed from is affirmed, at the cost of the appellant.