M'Donough v. Childress

15 La. 556 | La. | 1840

Simon, J.,

delivered the opinion of the court.

Plaintiff sues to recover the possession of a certain tract of land situated in the parish of East Balón Rouge, which he describes in his petition to contain about fourteen arpents in fronl, by the depth of eighty, bounded on one side by Duplantier, and on the other by Beauregard. He states that he has been in the peaceable possession of said tract for many years, and that the defendants have lately disturbed him in his said possession. Defendants joined issue by alleging an adverse possession for more than one year. The case was submitted to a jury who found a verdict in favor of the defendants, and after an unsuccessful attempt to obtain a new trial, the plaintiff took the present appeal.

The facts established by the evidence show that the plaintiff, several years ago, took possession of the land in dispute, by repairing the roads and levees that existed upon it, and left there two slaves in charge of one of the witnesses ; that a small house was built on the land in 1829 or 1830, in which the slaves lived; that they cultivated a small garden and cornfield, and were yet on the land in 1835. It is further shown, that in 1835, one of the slaves died, and the other became so sick that it became necessary to remove him to New-Orleans; since then, no one has been in the possession of any part of the land for the plaintiff, and at no time for twenty years, has any white person been living upon it.

With this unsatisfactory evidence before us, the plaintiff contends that having originally had the corporeal possession of the land for more than one year, a subsequent civil possession is sufficient to entitle him to recover, and he relies particularly on the case of Ellis vs. Prevost, 13 Louisiana Reports, 230: we are not ready to say that the plaintiff has made out such a case as to come under the application of the doctrine recognized in that decision. It was undoubtedly necessary for him to show not only acts of limited and restricted possession, but also to indicate by legal evidence the extent and full limits of the property of which he claims the restitution. In his petition, he sues for the possession of a tract of land by certain metes and bounds which he describes, and no evidence of any kind has been offered to establish the , J origin of his possession by virtue of any right or title to any definite quantity; the proof by him furnished does not even go so far as to ascertain what specific portion of the land was enclosed and cultivated by his slaves, and unless we take for granted the allegations contained in the petition, the plaintiff f . . r , , r. • has entirely failed in one of the requisites of the law to institute and maintain a possessory action, to wit: that he possessed as oivner, to certain extent and limits, the tract 1 . . which he seeks to recover the possession of. Code oj Practice, article 47. It is clearly insufficient for one who alleges his possession to extend to a large tract of land, with well r ,. . ° „ . defined limits and boundaries, to prove only acts of possession to a hundredth or any other fraction of it; he must show also, by legal and satisfactory evidence, that he possessed ’ J J 7 r corporeally, or actually, the small part as owner of the whole,

Where the plaintiff, in a possessory action, fails to show that he possessed actually, to a certain extent and limits, the tract of land he claims, he cannot recover. It is insufficient, for one who alleges his possession to extend to a large tract of land with well defined limits and boundaries, to prove only acts of possession to a small part or fraction of it.

The imperfect state of the evidence adduced by plaintiff in support of his possessory action, renders it unnecessary for us to examine the bill of exceptions taken to the charges of the judge a quo, to the jury ; as, supposing that we should be disposed to say that he has erred in his said charges, the result would still be the same; since, in our opinion, the plaintiff has not made out his case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.