State ex rel. Atchafalaya Basin Levee Board v. Capdervielle, 76 So. 327

State ex rel. Atchafalaya Basin Levee Board v. Capdervielle

76 So. 327 | La. | 1917

MONROE, C. J.

[1] This is an appeal by the! state auditor and the register of the state land office from a judgment making peremptory a writ of mandamus, directing them to convey to relator, by a proper instrument a certain tract of land, described as the W. % of N. E. % of sec. 27, T. 12, S. R. 12 E., lying within the Atchafalaya basin levee district as created by Act 97 of 1890, and alleged to have been granted to relator by that act. It is conceded that the tract in question is situated as thus stated, and was included among lands granted to the state by the act of Congress approved September 4, 1841 (5 Stat. c. 16), for internal improvements, such as roads, railways, bridges, canals, improvements of water courses and draining of swamps, but respondents allege that it did not pass to relator under Act 97 of 1900 for the reason that it could be disposed of by the state only for the purposes for which it had been granted. Moreover, it is said that the alleged grant by the state has been, in effect repealed by Act 215 of 1908. As to the first ground of defense, it is sufficient to say that the question whether the state disposes of lands acquired from the United States in accordance with the terms of the grants by which they were acquired is one which lies between the state and the United States, and cannot be raised by an officer upon whom the state has imposed the ministerial duty of conveying the land's to persons designated, and under conditions prescribed, by her. If' the purpose of such grant is disregarded, the United States, being the injured party alone, has a standing to complain. United States v. Louisiana, 127 U. S. 182, 8 Sup. Ct. 1047, 32 L. Ed. 66; Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Mills County v. Burlington & M. River R. Co., 107 U. S. 557, 2 Sup. Ct. 654, 27 L. Ed. 578; Emigrant Co. v. Adams County, 100 U. S. 61, 25 L. Ed. 563; Emigrant Co. v. Wright, 97 U. S. 339, 24 L. Ed. 912. Considering the remaining ground relied on by respondents, we do not find that Act 215 of 1908 has any application, to land which had been granted by the state *113to its levee boards, save that it makes the same provision with regard to the sale of such lauds to would-be purchasers as with regard to lands not so granted.

It is said that the grant to relator did not vest title until supplemented by acts of conveyance, to be executed by the auditor and register. It has, however, several times been held by this court that such grants, at least operate to withdraw the lands affected by them from the market. McDade v. Bossier Levee Board, 109 La. 627, 33 South. 628; Hall v. Levee Board, 111 La. 913, 35 South. 976; Hartigan v. Weaver, 126 La. 492, 52 South. 674.

[2] The levee boards are mere state agencies, and, as between them and the state, the state is at liberty to cancel donations of land, made to them, whether acts of conveyance have been executed or not. But the donation to relator has not been canceled, and the unrepealed act in which it is contained, after declaring that:

“All lands, now belonging, or that may hereafter belong, to the state of Louisiana, and embraced within the limits of the levee district as herein constituted, shall be, and the same hereby are, given, granted, bargained, donated, conveyed and delivered unto said board of levee commissioners”

—and, after providing that a delay of six months should be allowed for the redemption of lands which may have been acquired by the state at tax sales, further declared that:

“After the expiration of said six months, it shall be the duty of the auditor and the register * ® * to convey to the said board, by proper instruments of conveyance, the lands hereby granted or intended to be granted to said board, whenever, from time to time, said auditor and said register * * * or either of them, shall be requested to do so by said board * * * or by the president thereof, and, thereafter, said president * * * shall cause said conveyances to be properly recorded in the * * * respective parishes where said lands are or may be located, and, when said conveyances are so recorded, the title to the said land, with the possession thereof, shall, from thenceforth, vest absolutely in said board,” etc.

It was therefore within the contemplation of the act that the donation should stand and remain open to acceptance and confirmation indefinitely and the request which the board now makes of the auditor and register is as well within the law as though it had been made immediately upon the expiration of the six months allowed the former owner and tax debtor within which to redeem.

Tile judgment appealed from is therefore

Affirmed.