61 So. 511 | La. | 1913
Statement of the Case.
Plaintiff alleges that she acquired from the United States the fractional S. Yz of the S. W. % of section 3, township 20, range 16, but that it was erroneously described as the S. E. % of the S. W. % of said section, and the survey, field notes, and plat returned by the surveyor erroneously showed that it contained 39 acres, whereas the tract acquired by her contains a larger acreage; for, as shown by said plat of survey, it borders on Ferry Lake and its tributary waters, navigable streams of the United States, and said waterways were and are the boundary; and she is entitled to take all the land in the fractional S. Yz of the S. W. % of said section aforementioned. She makes the plat of survey part of her petition, and further alleges that she owns and is in possession of all the land in said S. Yz of the S. W. Y± of said section 3 to the high-water boundary of Ferry Lake and Jeems Bayou and its tributaries; and that said land has not been formed since the survey of said fractional quarter section by the government surveyor. She further alleges, in the alternative, that, if the court should hold that that part of the land in the S. Yz of the S. W. % of said section, to high-water boundary, in excess of 39 acres, did not pass to her, “but was land formed since the said survey,”"then and in that event, it was so formed by a permanent recession, dereliction, or accretion by the waters of Ferry Lake and its tributaries, and she is entitled to it as riparian proprietor. She alleges that defendant is slandering her title to said land and is asserting title thereto in itself; and that it is necessary to a proper decision of the matter that an actual survey of the land should be made. She prays that defendant be cited and—
“for judgment recognizing and quieting the title and possession of your petitioner to said land, and ordering the slander of her title and possession, as aforesaid, to cease; that a surveyor be appointed to survey said land; and that a commission issue to the parish survey- or directing him to make a survey of same and due report and return thereof make, according to law, with map, field notes, etc., showing high-water boundary of the land, indicating the meander line or shore of the lake or bayou at high-water mark, including the accretion along the bayou, if any, which is a navigable stream.”
The order appointing the surveyor and directing him to make the survey and report as prayed for appears to have been made ex parte on the filing of the petition, after which defendant answered, denying plaintiff’s alleged possession, setting up possession in itself, alleging that “said land was granted to it by the state of Louisiana by Act 74 of 1892 and Act 160 of 1900, * * * and * * * has been duly certified and transferred,” and praying “that plaintiff’s demand be rejected, and, in the event plaintiff is in the actual and lawful possession of said land, that v * * plaintiff’s demands be rejected, and it be deemed the owner of said lands.” It appears from the evidence'that in 1896 plaintiff made original homestead entry No. 6,630 for “the S. E. Yi of the S. W. Yá of Sec. 3, T. 20 N., R. 16 W., La. Mer., containing 39 acres”; and that on May 27, 1902, she received a patent from the United States for the “southeast quarter of the southwest quarter of section three, in township twenty north, of range sixteen west, of Louisiana meridian, in Louisiana, containing thirty-nine acres, according to the official plat of survey of the said land, returned to the General Land Office by the surveyor general” (a rough copy of which plat of survey, or so much of
Russell made a homestead entry for the W. 14 of the S. W. 14 of said section 3, together with other tracts, and in 1905 a final homestead certificate was issued therefor to his heirs. Later in the same year, however, the Commissioner of the General Land Office, by office letter to the register and receiver at Natchitoches, held that Russell’s entry conflicted with that of plaintiff, and in January, 1906, the Russell entry was canceled, on the ground that:
“There was no such subdivision, according to the official plat, as W. 14 of S. W. 14 of Sec. 3, and that the entire fractional S. 14 of fractional S. W. 14 was included in the entry and patent in her [plaintiff’s] name.”
The ruling so made will be better understood by comparing the language of plaintiff’s patent with the plat (Sketch 1) to which it refers; for it will thus be seen that, whilst the patent describes the land as the S. E. 14 of the S. W. 14 of section 3, containing 39 acres, “according to the official plat of survey,” etc., the plat itself shows, not a survey of the S. E. 14 of the S. W. 14, as such, but 39 acres of land, lying in the fractional S. 14 of the S. W. 14, partly in what, if surveyed, would be the S. E. 14, and partly in what, if surveyed, would be the S. W. %, of S. W. 14, and bounded on the west (where the S. W. 14 of a complete section would be found) by the waters of a navigable lake or stream. The survey made in May, 1911, for the purpose of this case (and of which the rough and reduced “Sketch 2,” filed with this opinion,
Opinion.
It is therefore ordered, adjudged, and decreed that the demands of the plaintiff as to the tracts of 12.10 acres and 0.07 acre of high land lying to the southward and westward of Cotton Shed Arm, as represented on the plat of survey by Barnes & Crawford, herein filed, be rejected, and her suit dismissed. It is further decreed that, as to the tracts of 3.76 acres, 1.59 acres, and 3.10 acres of high land, designated on said plat of survey as lying to the northward of Cotton Shed Arm, there be judgment for plaintiff, decreeing her to be the owner, and that she be quieted in the possession of the same, and that defendant’s claim thereto be rejected. It is further decreed that defendant pay all costs.