9 Rob. 248 | La. | 1844
The plaintiff alleges that he is the owner and possessor of two tracts of land, lying on the left bank of the Bayou Robert, the first of which was confirmed to him in person by the United States commissioners, and the second to George B. Curtis, under whom he claims by regular mense conveyances. He alleges, that he is also the proprietor and possessor of two other tracts, containing the quantity of fifty acres, more or .less, situated in the rear of and contiguous to the front tracts, which, under the act of Congress, passed in the year 1832, relating to the entry or purchase of lands in Louisiana, in the rear of front tracts, he purchased from the government of the United States, as will appear by a receipt, dated March 30th, 1836. He further says, that the defendant claims to be the owner of a tract of land in the rear of and adjacent to the land owned by him, and that the boundaries between the land of the petitioner and those of the defendant, have never been determined and-fixed. He, therefore, prays, that the boundaries between himself and the defendant may be ascertained and fixed by a judgment, and that he may be quieted in his possession.
The defendant for answer, after a qualified general denial, says, that he holds his land under a title derived from the Spanish government, and a confirmation thereof by the United States
The titles which the plaintiff sets up to the two tracts of land fronting on the Bayou Robert, are derived from Wm. Wiley senr. and Edward Wiley, being what are generally known as donation claims, founded on settlement, by authority of Spanish officers, previous to 20th. December, 1803. They were confirmed in the year 1811, by the United States commissioners. In December, 1836, the Wm. Wiley claim was regularly surveyed by an United States surveyor, the survey approved by the surveyor general, and a patent was issued on the 1st October, 1840, to the plaintiff. At what particular period the Edward Wiley claim, which was confirmed to one George B. Curtis, was surveyed and located, is not shown by the evidence; but it was probably about the time of the other, as a patent was issued for it on the same day. There is a chain of title fromTCurtis to the plaintiff. ■ The land back of the Wm. Wiley tract, is claimed by the plaintiff, under a purchase made by him, in 1836, of the United States, under the provisions of the act of Congress of the 15th June, 1832, authorizing the inhabitants of this State to purchase the lands in the rear of their front tracts. A patent was issued to the plaintiff for it, on the 4th January, 1841.
The defendant sets up title under a requéte and certificate of the commandant under the Spanish Government, and a certificate of confirmation, dated in May, 1811, by the United States commissioners to Alexander Fulton, for one thousand superficial arpens, to be located in the rear of the lands of Meullon and Pierre Baillio, so as to include a place called the “ Water Hole.” The certificate says that he shall be entitled to a patent for the aforesaid quantity, “ or so much thereof as is not rightfully claimed by any other person.” In pursuance of this confirmation, and an order from the legal officer of the United States, a location and survey of this claim was made by Kenneth Mc-
About the year 1836, or 1837, Phelps, a deputy surveyor, was engaged in making some surveys in the neighborhood of the parties, when, he says, he discovered that McCrummen had committed an error in locating the Fulton claim, by including in it about 81 arpens of land more than it called for. There were also other errors in other claims; and he says, that it became necessary to re-survey the township, which he did. In this resurvey, this surveyor says that he altered the surveys of four or five claims. He says that, “ when the survey of the township was made, he found a good deal of difficulty with the lines of the Hooper claim,” and that both he and the plaintiff were dissatisfied ; that “ he consequently made a representation to the surveyor general, who instructed witness to locate the claim as it appears on the township map. He did not consult the defendant when he made the change in his claim,” and represented it on the township plat. No other authority for making changes in the location of this claim and others, is shown, except this verbal statement of the surveyor, and the fact of the surveyor general approving the act, after it was done.
The other evidence in the cause, it is not necessary to detail at length. Its purport is, that the front and side lines of the plaintiff’s front tracts, were marked, for a considerable distance, if not the whole length; but it does not appear that the back lines were measured or marked, until about 1836, when the conffiction with the defendant was discovered. There are, also, many statements as to the courses and lengths of different lines, their probable date, the direction of fences, and other such matters. The quantity of land in controversy is about 53 acres, worth, it is said, about f 1000.
The cause was tried by a jury, who found a verdict in favor of the plaintiff, for 40 97-100 acres of land, being the quantity of the William Wiley and Curtis tracts, which carné in conflict
This is an action of boundary, and the titles to the lands confirmed, having passed from the United States to both plaintiff and defendant, or their assignors, and the boundaries established by the grantor conflicting, the question properly comes under the laws of the State, and leaves us to settle the controversy. So far as the United States and Fulton, or his assignee, were concerned, the boundaries of his claim were fixed by the survey of McCrummen, made in 1817, until the same were changed by competent authority ; .but the plaintiff having, under Wiley and Curtis, claims of equal validity and dignity with that of the defendant, could not, by an ex parte survey, made by the defendant, or by one made by him and the common grantor, be deprived of the quantity of land he was previously entitled to without his assent, in consequence of that grantor permitting Fulton to include within his boundary, more land than his title called for. Had the land not been granted or confirmed to the plaintiff previous to McCrummen’s survey, we are not prepared to say that it could have been granted afterwards, until some legal measures were adopted to set that survey aside. The evidence establishes conclusively, that the plaintiff and the authors of his titles, were in possession of the lands fronting on the Bayou Robert, before Fulton was, and, according to the acts of Congress, those titles were entitled to a certain quantity and depth. The front lines had been ascertained, and the side lines run many years before 1836, Phelps says fifteen years, or more; and all that remained to be done was to fix the back boundary. This the United States did not do, so far as we are informed, until 1836. The defendant could not prescribe under our state laws against them, as he had not a perfect title, the fee or technical legal title being still in them ; nor can he, in an action of boundary, prescribe against the plaintiff, until some boundary be
The question as to the 12 37-100 acres contained in the figure B, which the plaintiff claims as having been purchased, in 1836, of the United States, as a back emption under the act of Congress of June 15th, 1832, is very different from that of the confirmed claims. As to them, the grantor had said, previous to McCrummen’s location of the Fulton claim, that the plaintiff and Curtis should have a certain quantity of land, in a particu
Judgment affirmed.