110 So. 489 | La. | 1926
Lead Opinion
This case is the aftermath of the case of Josephine Poirier et al. v. Burton-Swartz Cypress Co. (this same defendant), reported in
We annex below a composite sketch of the various surveys and essays at surveys which have been made of the lands about which this controversy hinges. The sketch is not drawn to scale, but all measurements are given, and on the whole it is sufficiently accurate to afford a just idea of the lay of the land.
[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.]
On January 5, 1843, he purchased from the government "lots one,two, and three of section 49 in township 12 south of range 15 *322 east, * * * containing 293.60 acres," which three lots formed together the whole of the north half of said section 49.
Poirier died in May, 1864, and in his succession there were duly inventoried and sold (1) the above-described sugar plantation, measuring about 3 1/2 arpents front on the river by 80 arpents in depth; (2) a portion of land in the rear thereof, in section 61 of township 12 south, range 16 east, containing 15.30 acres, "or 19 1/5 arpents"; and (3) "a portion of ground in section 49 of township 12 south, range 16 east, containing 123 acres and a fraction."
With the above-mentioned properties Nos. (1) and (2), we are not concerned herein further than merely to mention that the *323 property described as No. (2) lies between the 80-arpent line and the line dividing section 61 of township 12 south, range 16 east, from section 49 of township 12 south, range 15 east, as will be seen from the sketch.
Under the Constitution of 1868, art. 132, then in force, and under R.S. 1870, § 3451, since repealed by Act No.
But the plan by which that subdivision was made has been lost or destroyed, and cannot now be found, although every effort has been made at one time or another to find it, or to reconstruct it as to these three lots. *324
"This plea arises out of the suit of Poirier et al. against this same defendant [supra]. * * * In that suit, before this [the district] court, there was filed an intervention [afterwards discontinued] by one Edgar Landry and others, who claimed to be the owners of the same property therein claimed by the plaintiffs; and in answering that intervention the defendant, after specially denying that the interveners were the owners of said property, averred that that property had been sold by the sheriff on February 10, 1872, to Celestin Oliver, and on January 30, 1874, by Celestin Oliver to Joseph C. Oliver and others [including these plaintiffs]. That being the same title under which the present plaintiffs claim, they urge that the present defendant, who is the same as in the Poirier suit, isestopped by its said judicial admission from now disputing that title.
"I take it that the plea is based on article 2291, R.C.C., which defines a judicial confession and reads as follows: `The judicial confession is the declaration which the party, or his *325 special attorney in fact, makes in a judicial proceeding. It amounts to full proof against him who has made it.' * * *
"A lengthy review and very interesting discussion of all the authorities is to be found in the case of Farley et al. v. Frost-Johnson Lumber Co.,
"To the same effect, see Commercial-Germania Trust
Savings Bank v. White,
"Under the plea now being considered, the declaration relied on was made in another suit and against another party, and according to the jurisprudence cannot be successfully invoked as a plea of estoppel by these plaintiffs in this suit. The plea is therefore overruled."
In Farley v. Frost-Johnson Lumber Co., supra, it is said that article 2291, R.C.C., is an exact translation of article 1356, Code Napoléon, which has been given the same interpretation by the Court of Cassation.
And the expression of Mr. Justice Provosty in that case, that "allegations of law unsuccessfully made in a former suit do not estop," is only the complement of the counter proposition that matter of law successfully urged in a former suit between the same parties does estop, i.e., does constitute the rule of law between them in any future litigation; or, as the Prætor has expressed it, "Quod quisque juris in alterum statuerit, ut ipse *326 eodem jure utatur" (rubric to title 2, book 2 of the digest); i.e., Let every one be required to observe the law which he has applied, or caused to be applied, to another. For, as Ulpian says (L. 1, eodem), "Nam quis aspernabitur idem jus sibi dici, quod ipse aliis dixit, vel dici efficit?" i.e., Who would spurn for himself the same law which he has laid down, or caused to be laid down for another? But unless such rule of law be actually established — i.e., successfully urged, not merely pleaded — against the other (i.e., "quod juris quisque statuerit in alterum"), the rule has no application.
And it may be added that the defendant also urged the same defense against the plaintiffs in that suit, the heirs of Michel Poirier, but therein they were unsuccessful.
This is in accord with the general jurisprudence on the subject, "It is insufficient to describe it [the land] by quantity alone, or by a quantity to be taken out of a larger tract without indicating out of what part it is to be taken or giving to one party the right to select such tract, or by giving only the starting point and one side." 39 Cyc. 1223, 1224 (verb., Vendor and Purchaser); citing inter alia Short v. Methodist Episcopal Church, 11 La. Ann. 174, which is directly in point. And again:
"A mere designation of the quantity of land to be conveyed is not a description of the land. A designation of the land as a certain quantity out of a larger tract (as of so many acres out of a specified tract), is insufficient, where the boundaries of the part are not stated or the part has not been carved out [even to entitle the promisee to specific performance]." 36 Cyc. 592 (verbo, Specific Performance).
Now we have here, as a beginning of proof, the fact that Michel Poirier died insolvent (as shown by the final account); that all the property belonging to his succession was *328 sold to pay debts; that the administratrix, his widow, who lived on the plantation, found (to be inventoried) only 123 acres "and a fraction" of land still belonging to said succession in said section 49; that the correctness of said inventory was not challenged by the creditors of said succession, who were mostly relatives; nor by the relatives who composed the family meeting called on behalf of the minor children of Poirier; that the public officers charged with the duty of making a correct inventory of the succession property, and who had full access to the public records of a parish, which (as said in the Poirier Case) is itself "so small as practically to constitute one neighborhood," found only said 123 acres "and a fraction" still belonging to the deceased in said section 49.
All of which clearly appears from the record of the succession of said Michel Poirier; and leads to the inevitable conclusion that the 123 acres of land sold in said succession constituted the last remaining portion of said section 49 which the deceased had not himself disposed of during his lifetime.
The question here presented is therefore two-fold: (1) Can the said 123 acres of land be identified of themselves without reference to the sales made by Michel Poirier during his lifetime, i.e., by resorting to other available evidence, such as contemporaneous (or near contemporaneous) descriptions thereof, or boundaries established? And, if not, then: (2) Can their identity be established by a process of elimination, i.e., by platting off sales made by Poirier during his lifetime, and thus reducing the remaining acreage of said section 49 to (approximately) 123 acres?
Mr. Durald Wood, civil engineer and surveyor (whose industry and good faith in the matter is vouched for in the written opinion of the trial judge) has herein made a very able and ingenious attempt thus to locate the land, which may be understood by keeping before us our above-mentioned compositesketch, and is substantially as follows:
(1) He deducts from the very north of said section and from east of the wedge-shaped indentation made by section 65 a portion measuring 45.66 chains from west to east along the northern boundary of said section from the aforesaid wedge-shaped indentation on the west to (and slightly beyond) the east line of said section, having a width from north to south of about 4.5 chains; and hence an area of about 20.5 acres. This portion he designates as having formerly belonged to Benjamin Poirier, who owned the plantation next above that of Michel Poirier, and as now belonging to one Alfred Poche. But he does not inform us (nor does this record) when or how Benjamin Poirier acquired this parcel from Michel Poirier, except that he obtained the information from maps and records, which however, were not offered in evidence. But his mere ipse dixit is "no more than a conclusion of the witness as to the effect of public record," and is hardly sufficient to establish such conclusion as a fact. Saenger Amusement Co. v. Masur,
(2) He then designates a portion of ground extending along (and below?) the southern boundary of, and across the whole width of, said half section from west to east, as property formerly belonging to Jean Pierre Richard, but gives neither the dimensions nor the area thereof, nor does he inform us how or when Richard acquired this property from Poirier.
Presumably this is the same parcel of 142.91 acres which figures so prominently in the Poirier Case, which Mr. Justice Provosty would have recognized, "without the slightest hesitation," as the northwest quarter of the section, and which Burton and his authors also took to be that same quarter section, but which, according to "the affidavit of a surveyor annexed to a motion for a new trial" in the Poirier Case, is located as the most southern part of the said north half of section 49, having "the full length of section 49 from east to west, and a width north and south of 1163.1 feet."
For Mr. Wood has made a plat of the 123 acres (in bulk, not by lot) which figures on our "composite" sketch as the portion between the letters A, B, C, D, E, F, having an area of 145.70 acres (not 123 acres), the lower line of which he placed at 17.88 chains above the south boundary of said north half section on the west, and at 17.10 chains on the east, equal to a mean distance of 17.49 chains for the whole. But 17.49 chains make 1,154.3 feet, which is only 9 feet less than the distance to the line indicated by Mr. Lovell. In other words, Mr. Wood's lower line is practically Mr. Lovell's upper line.
But pretermitting this difference of 22.70 acres called for by Mr. Wood's plat above the 123 acres called for by the deeds, and the 20.50 acres he ascribed to Alfred Poche (formerly Benjamin Poirier), a total of 43.27 acres and entirely too large to be overlooked *332 in searching for a tract of 123 acres, and pretermitting also the difference between Mr. Wood and Mr. Lovell on the one side, and Barton's authors and Mr. Justice Provosty (who was not without some skill in such matters), on the other side, as to thelocation of said 142.91 acres ascribed to Jean Pierre Richard (formerly), the former placing them as aforesaid in the south half of the north half, and the latter placing them in the northwest quarter of said section 49, pretermitting all this, the fact yet remains, as pointed out very clearly by Mr. Justice Provosty in the Poirier Case, that there is no evidence of whichthis court can take cognizance that Michel Poirier ever sold anyland whatever in section 49 to Jean Pierre Richard, for "non constat that, after all, the indexed [but lost] act of sale [relied upon in that case, and the sole basis upon which any such claim could be made] did not call for some other land than this 142.91 acres in section 49."
And to show why Mr. Wood's testimony amounts only to a mere general conclusion, and is not evidence, we quote as follows from his cross-examination (Transcript, 116):
"Q. Will you kindly explain how you come to the conclusion that those lots (lots 13, 14 and 15) actually, in 1874, contained 145.70 acres? A. From a thorough search of the records, after months of work, and with the two maps which I have here, and from surveys that I made in that locality, and in one case in the record where it states about 148 or 149 acres for three lots, that the sum total of each lot is specified and the sum total of the whole is specified and the two do not check in that particular act; and after all of that I have come to the conclusion that those lots are right where I have located them. * * *"
And again (Transcript, 125):
"Q. Well now, will you please tell us what was the total acreage in the north half of section 49, that you were figuring on in your work. A. Mr. Leman, I was figuring, in making my map — I made my map according to the maps of A.J. Powell, principally, after a search of the records, and I didn't know what the acreage *333 of that was until after I made the survey, and then I calculated what the acreage was. * * *"
The fact is that nowhere in Mr. Wood's testimony has he pointed out or even mentioned any particular record or document, save and except "the maps of A.J. Powell." And hence to accept his testimony in this case as conclusive thereof would be simplyallowing him to decide the case; and to do so upon such evidence as he might deem relevant giving it such weight as he might deem it entitled to. Which of course cannot be.
And we fully agree with the district judge where he says:
"I have given Mr. Wood's testimony the most careful study and consideration that I could; and whilst he is to be commended for the serious and painstaking efforts he made to establish the exact location of the land embraced under the description given, still I do not feel that his testimony carries with it that preponderance needed to justify this court in arriving at the same conclusion he arrived at — that is, that he has definitely identified the property."
But we feel that we are powerless to grant any such relief without violating every principle of law applicable in cases of this nature and setting up precedents fraught with consequences dangerous to the security of landed property; and we are therefore constrained to affirm the judgment of the court below rejecting plaintiff's demand. *334
Addendum
On the rehearing of this case, appellants do not question the correctness of the finding in our original opinion that they have not sufficiently identified and located the tract of land described in their petition. In presenting their side of the controversy for the second time before the court, they have devoted their argument solely to the proposition that they are the owners of the land, although not described with sufficient certainty to enable them to recover it in a petitory action; that it is situated in section 49, township 12 south, range 15 east; and that as the defendant has cut and removed all the timber which formerly grew on the section, they are entitled to recover judgment as prayed for in their petition.
We have reached the conclusion, on the further consideration of the case, that plaintiffs have not made such a showing as would warrant us in rendering a judgment in their favor. Viewing their present contention in all its phases, we cannot escape the stubborn fact that in order to be entitled to a recovery for the alleged trespass of defendant, it was incumbent upon plaintiffs to show they were the owners of the land. Sorrel v. Carlin, 23 La. Ann. 528; Collins v. La. Sawmill Co.,
Plaintiffs' claim of ownership is founded through mesne conveyances upon the sale made in the succession of Michel Poirier to Mrs. Philippe Landry of "a portion of land situated in section 49 of township 12 south, range 15 east, containing 123.01 acres." This description, however, is too vague to locate and convey title to any land whatever. Poirier v. Burton-Swartz Cypress Co., *335
For the reasons assigned, our former opinion and decree are reinstated, and the said decree is now made the final judgment of the court.
THOMPSON, J., dissents.