Patin v. Blaize

19 La. 396 | La. | 1841

Garland, J.

delivered the opinion of the court.

The plaintiff alleges he is the owner and' proprietor of a tract of land “containing twelve arpents front, on the north ^ gay0U piaquemine, of the head waters of the river Mermentou,” and that he and those under whom he claims have had quiet possession of the same for more tha.n thirty years. He further represents, that the defendant has gone upon the ‘land, knowing the same to belong to him, and has' committed various acts of trespass and waste by cutting down valuable cypress and other trees, making Pieux and boards thereof, and converting them to his own use, to his damage $350. He prays for judgment for the damages, that an injunction may issue to restrain the defendant from proceeding in. his waste and trespasses, and that the timber, Pieux and boards on the land be sequestered, the plaintiff claiming them as his property. These writs were accordingly issued.

The defendant denies the allegations in the petition, and further says, that by the suing out of the writs of injunction and sequestration he has been prevented from, pursuing his business, which is that of a lumber-man and Pieux getter, for more than twelve months, to his damage $500, which he claims in reconvention. He therefore prays for a dissolution of the injunction and sequestration, with ten per cent, interest, and twenty per cent, damages on the amount of the injunction and sequestration bond, both against the plaintiff and his surety, and the $500 damages against the former.

It is not shown by the evidence that the plaintiff ever was in actual possession of the land on which, it is shown the defendant committed the waste and trespasses alleged ; nor does it appear that those under whom he claims have had actual possession for many years, though the original grantee, Pierre Guidry, had possession for a long time previous to his sale to Joseph Guidry. He sold a tract of land purporting to be the one in question to said Joseph, in the year 1823, who does not appear ever to have had actual possession ; the heirs of the latter sold to plaintiff as is attempted to be shown.

The plaintiff, to show that he had a title to and civil possession of the land, by virtue of it, offerred in evidence the proces verbal of a probate sale 'of a portion of the succession of Joseph Guidry, made by the Judge of the parish of St. Landry, by which it appears.the plaintiff purchased in 1S37 a tract of land having twelve arpents front by forty in depth, lying on the West bank of the Hast Fork of the Bayou Plaquemine Brulée, bounded on the upper side by land of Jean Mouton. It is admitted that the East Fork of the Bayou Plaquemine Brulée is distant nine or ten miles from the place where the trespass was committed. The plaintiff then offered a sale made in 1823, from Pierre to Joseph Guidry, of a tract of land having twelve arpents front by forty deep, bounded on both sides by vacant land, “face a la rive droite de la Riviere Mermentou.” He then offered an inchoate title from the Spanish government, to Pierre Guidry, confirmed by the United States, for twelve arpents front on the West Bank of the Bayou Plaquemine Brulée, by forty in depth, bounded On each side by vacant lands, but lying opposite to a tract on the East side of the same Bayou, on which Pierre Guidry resided. On this land it is admitted the trespass was committed. The plaintiff further showed that this part of the Plaquemine Brulée was generally called the Nementou, it being within a few miles of the junction with that River (properly called Mermentou.) He further showed by the Register of the Land Office at Opelousas, that Pierre Guidry never had, as far as the records of his office showed, any other tract of land in that section of the parish of St. Landry, other than the two situated on the East and West banks of the Plaquemine Brulée, one owned now by Jean Mouton’s heirs, and the other claimed by plaintiff. It is clearly shown by the surveys made by the United States, that the claim of Pierre Guidry is located on and covers the place where the trespass was committed, but the defendant says, that is not the tract of land purchased by plaintiff. He says the calls and boundaries in the sale from Joseph Guidry’s heirs to plaintiff are entirely different from those in the grant to Pierre Guidry, and widely different from those in the sale from Pierre to Joseph Guidry. He shows that the East Fork of the Plaquemine Brulee is a well known streanlj an¿ surveyor testifies, if he had been called on to locate the claim of Pierre Guidrv, he should not have placed it on that Bayou.

The plaintiff is not hound to tituTSb^ofder^to recover against a trespasser without^ title, has the actu-When°SaeScivi'i reliedopalone8 the title must suit™”0 would of property tlV°

Upon this evidence, the question arises, is there sufficient . . , , , , . .... certainty m the plaintiff’s title to enable him to maintain this ac^on* 'His counsel says he is not hound to show a title per-feet jn a]¡ inspects to recover against a trespasser without title; 1 or this is true, if actual possession accompanies the apparent title; hut when a civil possession is relied on alone, the title must at least he prima facie, such as would he translative of ProPerty> and sustain a plea of prescription, if one were to be based on it.

SuPPose the plaintiff were sued for the locus in quo, and s^ou^ pl®a(l the prescription of ten years based on the sales from Pierre to Joseph Guidry, and from the latter to him (plaintiff,) we do not believe, as at present advised, the plea could he sustained.

We think there should he a reasonable certainty in the description of land when transferred, such as will enable a person by using reasonable care and diligence to find the particular place. If the description will suit another place better, or equally as well as the one claimed, it is defective. — 1 Wheaton 130, 141; 3 Cond. Rep. 513, 520; 2 Wheaton 206; 4 Cond. Rep. 84. If the calls of an entry do not fully describe the land, hut furnish enough to enable the court to complete the location by the application of admissible testimony, they will complete it, That is, if a tract of land have certain material calls sufficient to describe it, and other calls less material and incompatible with the essential calls, the latter may he disregarded—6 Cranch 148; 2 Cond. Rep. 336. If a great and prominent object, immoveable and durable in itself, and of general notoriety he called for in a location, that object must fix and locate the claim, although other minor and temporary objects, to he discovered only by a strict and successful search, might prove the locator really intended to take other land.- — 9 Cranch 164; 3 Cond. Rep. 331. It is essential to the validity of an entry, that the land intended to he appropriated should he so described as to give notice of the appropriation to subsequent locators.—2 Wheaton 206, 316; 4 Cond. Rep. 84, 132. A cabin and a marked tree in a country full of cabins and marked trees, cannot control a call made for an object of general notoriety. —9 Cranch 164. All of these decisions relate to original entries of land, but we think there should be nearly or quite as much certainty in sales as in original entries or purchases from the sovereign authority.

It is essential to the validity of an enlry that the land intended to be appropriated, should be so described as to give notice of the appropriation to subsequent locators.

We suppose there is not a man in this section of country, if a sale for land lying on the West bank of the East Fork of Plaquemine Brulée, were exhibited to him, would thereby understand, it meant the land lay on the Plaquemine Bruleé so near the Mermentou River, as to induce a belief that a deed calling for the West bank of the Nementou included the land in question. The East Fork of the Plaquemine Brulée is well known; it is laid down on the maps of the State and in the public surveys. The Plaquemine Brulée is also well known* but if either Fork is entitled to the name the Bayou takes below the junction of the East and West Forks* it is the latter* as it is the longest and largest stream, and more generally spoken of as Plaquemine Brulée, than the other. We do not intend to be understood as holding, that if a title calls for a small or unknown stream, that it is to control the location, if there be other known boundaries to designate it better; in such a case they should be considered with cotemporaneous circumstances.

In this case we look upon the use of the name East Fork of Plaquemine Brulée as more specifically and particularly designating the place where the land sold should be, than if the name Plaquemine Brulée had been used in the general understanding of that name.

This cause has been twice tried in the District Court* and two judges have decided in favor of the defendant, we cannot say they erred.

_ The courts damages vention ^in^a suit by lrvjuuetion ana sequestration. The party must take his reme-given thbyb°the piamtiff in m-junction. Damages for the wrongful suing out an injunction may he claimed in the same suit, under the provisions of the act of 1831, in cases embraced by this act; but from its wording it seems to apply particularly where judgments are enjoined.

The defendarit has asked us to assess the damages claimed in h¡s piea 0f reconvention. This we cannot do in this action. It was held in the case of Morgan vs. Driggs, &c.; 17 La. Rep. 176; that damages for the wrongful suing out of an injunction may be claimed in the same suit, under the provi-sjons of the act of 1831, in cases embraced by it, but from its wording it seems to apply particularly where judgments are . . , . . i i • i i enjoined. The party must therefore take his remedy on the injunction or sequestration bond. Independent of this objection ft ¿oes not appear the court below decided on the demand r r in. reconvention in any manner,

The judgment - of the District Court is therefore affirmed With costs,