Martin v. Breaux

12 La. Ann. 689 | La. | 1856

Lea, J.

In this case the plaintiff, claiming to be' the owner of a tract of land situated on the Bayou Vermillion, alleges that the boundaries which had been once fixed, separating- his land from those owned by the adjoining proprietors, both above and below him, were no longer to be seen, and that said adjoining proprietors, though amicably requested,- had refused to fix the limits extrajudicially. He therefore prays that they be cited, that after due proceedings, said limits may be fixed according to law, and a surveyor appointed for that purpose. Both of the defendants aver that they have been in the peaceable and uninterrupted possession of tlier respective proprieties with metes and established boundaries as they now exist for more than thirty years. They plead respectively the prescription of ten, twenty and thirty years. One of the defendants, Alexander Latiolais, treating the plaintiff’s demand as a petitory action, has called in warranty his immediate vendors, the representatives of Joachim Arceneaux and Oidalize Arceneaux, widow of Joseph Mouton. In case of eviction, ho, moreover,as a possessor in good faith claims compensation for the improvements put upon the promises. It appears that two surveys were made in accordance with the orders of the court, for the purpose of determining the boundaries of the respective tracts. But it was properly held by the District Court, that neither of these surveys could be made the basis of a judgment, as they were made by starting from certain points and lines not previously recognized as boundaries by the parties themselves, and not shown by the evidence to be true points of departure. Upon the question of prescription we do not find that the evidence establishes a possession of thirty years with fixed and recognized boundaries, serving as division lines, which are now apparent, or which could be ascertained with certainty, and in the absence of such ascertained boundaries, the limits should have been fixed in accordance with the respective titles of the parties. The District Judge considered that it was the duty of the plaintiff to have established the true lines by proper evidence, but wo think that he would have made out his case for all the purposes for which the suit was instituted, upon proof that there no longer existed a fixed or recognized boundary, determining the limits of their respective tracts. As the surveys appear to be defective we are not disposed to conclude the parties by a judgment referring them at once to their titles for the ascertainment of a boundary, but we think the report should have been rejected, and a new survey ordered, and in the event that no recognized boundary can bo traced, division lines should be marked out by a reference to the respective titles of the parties, a result which it appears might have been attained, as in the united tracts there appears to be a sufficient quantity of land to give to each the respective proportions called for by their titles.

It is ordered, that the judgment appealed from be reversed, and that' the case be remanded for further proceedings according to law, and in conformity with the foregoing opinion, the costs of the appeal to be paid' by the appellee..