2 La. Ann. 223 | La. | 1847
The judgment of the court was pronounced by
This action was instituted to recover damages' for a trespass, alleged to have been committed by the defendant, by cutting trees on a tract of land which the plaintiff claims to possess as owner, in virtue of titles derived from the United States. The defendant denies the alleged trespass, and asserts title in himself to the land on which the acts complained of were committed. The cause was submitted to a jury, who gave a verdict for the plaintiff and from the judgment rendered thereon the defendant has appealed.
Our attention is called to several bills of exception presented on the trial. The first is to the introduction in evidence of the defendant’s titles to the land in question. We think the judge did not err; in permitting them to be offered. Al
The second exception was to the permission' granted by the court to the plaintiff, to offer in evidence the'title by which he holds the land in question, af-" ter the plaintiff had closed his testimony in chief, and after the evidence for the defence had also been elosed. The' plaintiff ought, before closing his evidence in-chief, to offer all the testimony on which he relies'for a recovery. When, from inadvertence or other cause, he has failed to do so, it is always discretionary with tlie judge to permit the party to supply the deficiency, when the testimony offered is not of a character to operate a surprise upon his adversary. In the present instance the plaintiff averred title, and the title produced being in conformity with that recited in- the petition, the defendant cannot complain of sur-* prise.
The third exception is to the refusal- of the judge to charge the jury that,“where a plaintiff claims damages for Cutting down trees,-he must show and prove title to the land on which the trees were growing.” The judge did not, in our opinion, err.- It has been repeatedly held that, in actions of trespass,there can be no examination into title. Possession alone is sufficient to support the action. 6 La. 559. 4 Mart. N. S. 136.
As regards the merits, the plaintiff has shown that, as the owner of a tract' of land of one and a fourth arpents front, on the Mississippi river, by forty in-depth, he availed himself of the act of Congress afi'd purchased the back conces--' sion, containing forty five acres, for which a patent has issued in his favor. The' witnesses state that the side lines of the double concession, aré parallel and extend- back forty arpents■; that they are marked, blazed, and staked plainly, and-that the plaintiff has possessed,- in conformity with them, since 1833; that his enclosures extend back, about twenty five arpents, and that several of the' trees cut by the defendant stood within two or three arpents of the plaintiffs rear' fence. It is also shown that, the defendant has'a fence running back the entire forty arpents within sixty feet of the plaintiffs line, and that he has always, until recently, respected the plaintiff’s possession.
The defendant contends that the true lines of the plaintiff,- as established by the approved government survey, diverge from the front to the rear,- in consequence of which the quantity contained in the front tract was obtained by extending, the lines less-than forty arpents- in depth. The evidence which he has adduced renders it probable that, in regard to a small- portion of the land, there isa conflict of possession between the parties; for while the plaintiff proves possession of a tract of one and a fourth arpents front, by forty in depth, with parallel side lines clearly defined, the defendant exhibits an extract from a town-" ship map, on which it is represented as being a little less than thirty one arpents in depth. The plaintiff also produces a title from the United States to a tract of land owned by himself, which, as represented in the township map, embraces ten or twelve acres of the land- claimed by the plaintiff. The exact point of conflict has not been shown, nor do we deem it important, in the present con troversy, as several of the trees appear, by the testimony, to have been cut within the limits assigned by the defendant himself to the plaintiff’s tract.
Judgment affirmed.