| La. | Dec 15, 1858
The District Judge decided this case (a petitory action) in favor of the plaintiffs, on proof of possession of more than thirty years. But the evidence does not appear to us sufficient to establish the long prescription, as the. first written evidence of ownership which plaintiffs offer, bears date in 1827. The proof also on the subject of possession, is not very conclusive, but taking into consideration the fact that the land in controversy was a vacherie, in a part of the parish of St. Charles difficult of access, until traversed by the New Orleans, Opelousas and Great Western Railroad, and that it did not admit of any very obvious marks of possession further than has been shown, we conclude that it is not our duty to disturb the finding of our learned brother of the District Court on the question of possession. The titles exhibited, with the possession which has satisfied the District Judge, establish the usucaption of ten and twenty years in the plaintiffs. And as the confirmation to Toup’s heirs was before either of those periods, and covered the land in controversy in this case, the Act of Congress of August 18,1856, chap. 158, p. 29 of Private Acts, in favor of Ambrose Lanfear, does not defeat the acquisition of title by possession.
We are not prepared to say, that the Judge erred in giving a judgment as of nonsuit on the defendant’s claim for improvements, set up by way of reconvention. The proof is not sufficient to enable us to render a judgment in favor of the defendant on this part of the case.
We think the production of the proces verbal of the probate sale sufficient, prima facie, without producing the decree of the probate court therein recited. Reynolds v. Rouley, 2 An. 890; 6 Rob. 26" date_filed="1843-10-15" court="La." case_name="Faulk v. Pinnell">6 Rob. 26; 3 An. 150; 7 La. 468; 12 La. 476" date_filed="1838-10-15" court="La." case_name="Gorton v. Gorton's">12 La. 476; 6 Rob. 471" date_filed="1844-02-15" court="La." case_name="Rousseau v. Tête">6 Rob. 471; 1 An. 200.
The admission of title in Lanfear, was doubtless in reference to the residue of the Toup’s tract, and the petition ought to be so understood.
It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed; the appellant paying the costs of the appeal.