LeComte v. Smart

| La. | Oct 15, 1841

Garland, J.

delivered the opinion of the court.

This action is instituted to recover the possession of a small tract of land which it is alleged the defendant has entered upon illegally, being a portion of a larger tract, which the plaintiff claims to possess as owner, situated in the Parish of Natchi-toches, at a place called the Lannacoco Prairie.

The defendant excepts to the jurisdiction of the court, alleging he resides in the Parish of Rapides, where he should have been sued. This exception was overruled, after hearing testimony, I the defendant filed a general denial, and pleaded the prescription I of one year to the action. There was judgment against him, land he appealed.

The first question to be considered is, as to the jurisdiction °f the court, which involves the question of boundary between Parishes of Rapides and Natchitoches. The line between the Parishes in this quarter has never been surveyed and marked; we are therefore left to form our opinions as to-where it is intended to be, from the acts of the Legislature and the evidence in the record. The act of March 16, 1809, 1 Bullard & Curry’s Dig. 173, says, “the line dividing the County and Parish of Natchitoches from the County and Parish of Rapides shall intersect the Red River at the confluence of the Rigolet de Bon Dieu, and shall run from thence on the west in a direct line to the nearest corner of the County of Opelousas, &c.” The French text is, “se prolongera de lit vers l’ouest en ligne directe jusqu’a. la premiere limite des' Opelousas, &c.” The difference in the meaning of the two. texts creates .some confusion. If, according to a portion of the English text, the line was to run directly west from the Rigolet de Bon Dieu, it is evident it could not be made to touch any portion of the County of Opelousas, as the line of that Parish is now understood. If, according to a part of the French text the line is to run directly to the nearest line (premiere limite,) of the County of Opelousas, its bearing would be nearly due south, and it would not go to any corner of that County, but intersect the supposed line at a place distant from any corner. , _ , . . T . ,,, . According to the first hypothesis, the locus m quo would be m the County of Rapides or Opelousas, according to the last, certainly in Natchitoches; but we do not think either supposi-tjon exactly correct. To ascertain the meaning of the Legis- } . fa ° lature, we have to take a portion of both texts, and we think the real intention is, the line shall commence at the junction ®iyer and the Rigolet de Bon Dieu, and run in a ¿irectiort as far west of south as necessary to strike the Sabine River, at the point where the north-west corner of the County of Opelousas touches the western bank of that stream. Where that point is to be found, is not certainly known, and we are left very much to common report, and such maps of v •L * the State as are in our reach to fix it. We suppose that corner to be, very near if not exactly at the point where 'the basé line or 31st degree of north latitude intersects the Sabine River. That the County of Rapides should extend to the Sabine River, is evident from a perusal of the act of September 5, 1812, 1 B. & C’s. Dig. 174, defining the boundaries .of the County of Natchitoches, which is said to be - bounded “south by the County of Rapides” and west by the Sabine. If the County of Rapides was not to extend to the Sabine, the County of Natchitoches would join Opelousas.

The southern and south-west county^ 0Íand chitochesf runs from die junetion of the Ri-golet de Bon Kiverj'irf a disouth of wes/as wilt strike the Sabine River, at the point north-west corty^f Opelousas touches t,le western name of that stream, In settling ing boundaries taal^observa-tI0n and sur" vey, some weight must be ral vmder&md-mon ^acquies-oence-

Assuming these principles as correct, if we draw a direct line from the confluence of the Red River and the Rigolet de Bon Dieu, to the point on the Sabine -where the base line or 31st degree of north latitude intersects the Sabine, then according to the maps and the evidence, the Lannacoco Prairie, with the exception of a very small part, will be in the Parish of Natchitoches, if the line should bear-more south, then all of it would be in that Parish.

As there is necessarily some uncertainty-in making calculations from maps, as to lines not run, we have looked carefully into the parol testimony in relation to the domicil of the defendant. In settling a boundary not fixed by actual observation and survey, some weight must be given to general understanding and common acquiescence. Calvit, a witness, says he lives about eight miles south of the defendant, that he lives in ° Rapides, and he considers the people in the Prairie as also residents of that Parish. As to himself, he is probably correct, but as to the others, we think the weight of testimony is in favor of their being residents of Natchitoches. This witness further says, the residents of the Prairie vote and pay taxes in Rapides, but he names no one but himself who does. On the other side, Davion says, he has known the Prairie Lannacoco for fifty years, and always considered and understood it was in the Parish of Natchitoches. Burnet, formerly sheriff of that Parish, though not very positive, considers them in that Parish. A brother of the defendant who lives near him, and also sued in a similar action, is proved to have been on the4 tax list in Natchitoches. The testimony of Lee and Plaisance go t0 congrm vjews 0f the other witnesses. We therefore think the judgment of the District Judge, as to the jurisdiction» is not shown to he so erroneous as to authorize us to reversé it.

Title tapers are admissible a _ possessory the extent and piaintifTs pos-sessionalüio’ no inquiry can be bad as to the Validity of titles in this action,

Before proceeding to the merits, our attention is called to a bill of exception taken by the defendant. On the trial, the plaintiff offerred “as evidence a report of the commissioners of the land office, and other evidences of title,” to the admis-1 sion of which, the defendant, by his counsel objected, on the ground that no evidence of title could be given in this action; but the judge was of opinion the documents were admissible to prove the character and extent of plaintiff’s possession, foi which purpose they were offerred. We think the judge did ^oj; err< ft js j-rue H0 inquiry could be made into the validity of the title in this action, hut it was evidence to show the extent of plaintiff’s possession. He claimed to possess as °wner two square leagues including the whole Prairie, and as ftg not ftaVe it all enclosed, it was necessary to show how t ^ J far his possession extended hy an exhibition of papers purport-1 . . ang to he muniments of title.

On the merits, the plaintiff showed he and those under. whom he claims, have for more than forty years -possessed as owners, all of the Lannacoco Prairie and some of the wood* land surrounding it. A vacherie has been kept there for many years ; there were houses erect'ed, and fences and enclosures -made, some persons white or black were always there in posj session for him or his ancestors, and a large stock of cattle ranged and grazed on the Prairie. The defendant not having any right, went upon the land, selected a spot on which he proposed to settle, and -erected buildings, enclosed a field, and commenced making crops on the land, although he was informed before he commenced his operations, that the plaintiff claimed the land as owner.

We think the possession, of the plaintiff is sufficiently established, and he must recover unless his action is pres-bribed by o'ne year. This is the principal reliance of the defendant, and we have carefully examined the evidence in relation to the character and length of his possession.

Where a person takes possession of land under an apparent title as his own, slight acts will be received as evidence of an intention to take actual possession. But where a man without any pretence of title, goes upon land claimed by another, he must show unequivocal acts of possession, more than a year, to maintain the plea of prescription.

The citation was served on the defendant on the 10th of May, 1838-. The conclusions we draw from the testimony of all the witnesses, who, in some respects contradict each other are, that the defendant went to the Lannacoco Prairie about the last of December, 1836, for the purpose of selecting a situation to settle. He made choice of a spot, planted a few peach trees, cut down some trees and made an enclosure, but of what kind or to what extent is not definitely shown. He staid but a short time, then went to Mississippi where he had business, remained some weeks, and returned to the Lanna-coco Prairie for a few days; he then left, returned to his family in the Parish of St. Landry, a distance of many miles, where he remained, made a crop in 1837, and again returned to the place in question, the latter part of the year 1837, when he erected houses, made enclosures to the extent of from twenty to thirty acres, removed his family, and in 1838 made a crop on the place. The defendant contends he took possession of the premises in 1836, or early in January, 1837, and had never abandoned it, and as the action was not commenced until April, 1838, prescription runs against it. If the defendant had have taken possession of the land under an apparent title, we should regard slight acts as evidence of an intention to take possession, but when a man without any pretence of title goes upon land which he is informed is claimed by another, he must show unequivocal and continued acts of possession for more than a year, to maintain a plea of prescription. In this case, the plaintiff* contends that if the defendant had possession in 1836, or in January, 1837, he had abandoned it, and his possession did not really commence until about December, 1837. Of this opinion was the District Judge, and we do not think he erred. The articles 3999 and following, of the Civil Code, relied pn by the counsel for the defendant, do not, in .our judgment, go to the extent he desires. The defendant was distinctly informed the plaintiff jjad a clajm the land in question, his establishments were there, and there is but little merit in the plea, that he went openly and publicly, and took possession of property which he knew did not belong to him, in violation of the rights of another. We do not think the defendant’s plea of prescription will avail him.

The defendant complains the judgment is so indefinite, it cannot be executed. The plaintiff claims to be the possessor of two square leagues covering the whole Lannacoco Prairie, and some of the surrounding wood-land; the judgment accords it to him, the evidence shows he possesses all the Prairie and the wood-land surrounding, which is shown to include the place where the defendant has his houses and enclosures; of these the defendant is adjudged to be the wrongful possessor, and from which he is to be ejected. There is an obvious distinction between this case and that in the 8 La. Rep. 409, irelied on in the argument.

The judgment of the District Court is therefore affirmed ’with costs in both courts.