No. 1296 | La. | Jun 15, 1894
Lead Opinion
The opinion of the court was delivered by
This is a petitory action instituted by the plaintiff corporation against the defendants, who it is alleged “without any shadow of right or title” have entered upon a tract of land owned by plaintiff and described as the S. E. 1-4 of the S. W. 1-4; the E. 1-2 of the N. W. 1-4; the W. 1-2 of the N. E. 1-4; the S. W. 1-4 of the N. E. 1-4; the E. 1-2 of the S. W. 1-4; the S. E. 1-4 of the N. E. 1-4, Section 17, T. 17, R. 1, E., containing four hundred acres. It is alleged that the defendants are trespassers and have destroyed a large quantity of valuable timber and are still wasting the same to the great injury and damage of plaintiff; and that said defendants have occupied and cultivated said land for a period of five years. The prayer of petitioner is that the plaintiff recover judgment against the defendants, decreeing plaintiff to be the lawful owner of said land, and in the sum of five hundred ($500) dollars on account of the destruction of the timber on said land, and for four thousand ($4000) dollars for the use and occupancy of said land to the last day of January, 1892, and eight hundred ($800) dollars annually from said date until the delivery of the property to petitioner.
The defendants filed an exception to the suit on the grounds, (1)
The exception was overruled and the defendants answered in substance as follows: That the plaintiff corporation has no title whatever to the land sued for, and that the claim for damages is extortionate, far exceeding the value of the land.
That the mortgage of said lands granted to said corporation by the Federal government by Act 3 of June, 1856, is null and void, as the road could sell only twenty miles of said lands at a time, as said road was completed; and therefore the State, holding the lands in trust for the purpose of constructing the road, could not authorize the mortgage of said lands for the uncompleted portion of the road.
That on June 3, 1866, all the lands between the Ouachita and Red rivers reverted to the Federal government, as on that date the road had not been completed, and became part of the public domain, and the defendants had the right to enter upon and homestead the same.
That the road was not located as provided by act of the Legislature in 1857, and they deny that the lands granted to the railroad were ever transferred to plaintiffs, directly or indirectly, in the proceedings of Henry R. Jackson et a Is. vs. Jno. T. Ludeling et ais., or were ever seized or sold by the marshal, or that said lands could be seized or sold, in any manner, for debt, or transferred, until the road had earned the same by its completion. That the Federal government, through its Interior Department, has refused to issue patents to plaintiff for said lands. That the road was not constructed on the faith of the grant of said lands; that the Legislature in 1879 declared the grant forfeited, and in 1886 declared that said road had no title to said lands. That the United States Register of the Land Office advertised said lands for entry, and defendants went on the same in good faith, believing them to be subject to homestead occupation. Defendants, separating in their defence, aver that each has made application for homestead entry, and designates the quantity of land applied for by each. The answer sets out alleged oppressive acts of plaintiff and prays for damages to the amount of five hundred ($500) dollars.
The case was tried by jury and a verdict returned in favor of the
To this judgment the plaintiff excepted on the ground that it was not in accordance with the verdict, and assigned this as error. At this time we state that the delivery to the plaintiff could have been demanded when the judgment became final, and this extension of time could not injuriously affect the defendants.
Exception.
1. The petition charges that the defendants are trespassers upon the land to which the plaintiff asserts title. It is immaterial whether they set up claim to any particular part of the land as long as they are trespassers, without title, and possess the same, adversely to the true owner. They are sued jointly as naked possessors, and they haye a common issue in resisting plaintiff’s title. The defence of one is the defence of all the defendants, as each holds by virtue of the same title and are jointly interested in being maintained in possession. The primary question at issue is title to the property, and all the defendants are alike interested regardless of the quantity of land possessed by each. Derbes et al. vs. Romero, 28 An. 644.
2. There is no force in this objection. The petition contains every necessary and essential averment for maintaining the action.
8. We fail to see the application to defendants’ argument to the facts in this case. The record is against the pretensions of the defendants. The plaintiff acquired title through the foreclosure sale, December 1, 1879. The mortgage creditors purchased the mortgaged property and organized the present company. The organization was perfected, literally, in conformity to Act 88 of 1877, and a statement of the organization and formation of the corporation in compliance with Sec. 8 of the act was filed with the Secretary of State. The defendants objected to the copy of this statement certified by the Secretary of State being introduced in evidence, because the act of incorporation was not made by authentic act, and the copy was not. a copy of the authentic document which proves itself. The act did
Opinion on the Merits
Merits.
The defendants aver that they have made application for homestead on the lands as a part of the public domain subject to homestead entry. Their claims are based on notices of the Register andl Receiver of the Land Office, at Monroe, La., inviting homestead settlers on the same. It is alleged that they had received instructions; that the lands granted to the railroad company, between the Ouachita and Red rivers, had been open to public entry. No such-instructions have been shown to have been issued, and it is a moral certainty that had they been issued, the original would be found in the government records at Washington. The fact, is that, in 1856, • Thomas A. Hendricks, Commissioner of the General Land. Office, withdrew these lands from sale, on the expected approval of the act of Congress of June 8, 1856, by the President, and it may be safely asserted that since that date they have never been open to entry. This is corroborated by the decree of the United States Supreme Court, recognizing the force and validity of the mortgage placed on the railroad and these lands, and their sale under the decree of the court, and the repeated action of one of the executive departments of the Federal government in recognizing, on the certificates of the Governor of Louisiana, the claim of the road to the lands granted to it by Congress. This recognition is not found in this record, but it is a part of the history of the corporation — not important in deciding this case, but merely stated incidentally. The fact still remains that the lands have not been restored to the public domain and that no department of the Federal government has done any act to disturb the rights of the road to these lands.
The other matters alleged as defences in the answers do not concern these defendants and are personal to the grantor. It is immeterial to them whether the road in its construction was diverted from its original line; how the State disposed of the trust confided to it
We have mentioned these defences, as the defendants assert this case presents issues not heretofore decided by this court. But we think they are all embraced within the issues in the cases of the Railroad vs. Sledge, 41 An. 896; Mower vs. Kemp, 42 An. 1007, and State vs. Railroad Company, 44 An. 981. In these cases we decided that the government of the United States, not having asserted by legislative act or judicial construction the forfeiture for the breach of the condition, the apparent legal title is in the railroad company acquiring rights under the foreclosure of the mortgage. In other words the title of the railroad to the lands granted is good against anybody except the government of the United States. We did not discuss the rights of the road as against the Federal government, as our decree would not be binding upon that authority.
In the case of Railroad vs. Sledge the defendant entered upon the railroad land with the intention of acquiring the right to enter the land if ever it should be open to public entry. In this case the defendants made affidavits for homestead entries. But the land was not open for such purposes. The defendants may have been deceived, but this does not alter the character of their entry upon the lands of the plaintiff. They went on them without any color of right or authority and stand in the same position as the defendant Sledge in the case referred to. Possession is solely the prima facie evidence of title. The entry on the land was unlawful, and as no title other than the trespass is exhibited, the defendant can not dispute the apparent title of plaintiff. Stille vs. Shull, 41 An. 816.
Judgment affirmed.
Rehearing
On Application eor Rehearing.
The earnestness of the argument for a rehearing in this case has prompted us to a careful re-examination and, if our
"When defendants, sued for land, hold by different titles, they can not, as a general rule, be joined because their defences,, necessarily, are different. In this case the defendants exhibit no title whatever, common or individual. There is, it is true, on the part of some of the defendants the averment that they made homestead entries cf portions of the lands, but, in our view, such entries, even if sustained by proof, would not, under the circumstances of this case, distinguish the position of those who assert such entries from that of trespassers. Hence we have the case of plaintiff asserting title to a tract of land on which various persons have settled. The defendants are not distinguished by any difference in the titles they hold, for they hold none. They stand on one common ground of naked possession. We are aware of no rule or test by which plaintiff could divide his action. On the other hand, all these defendants have a common interest in disputing plaintiff’s title. If plaintiff had brought as many different suits as there are defendants, all could join in the defence, and to the consolidation of the suit there could be no objection. If consolidation to save costs would have been authorized, the propriety is enforced of joining all these defendants in one suit. We think, therefore, the exception of misjoinder is not well taken. Support of this view is to be found in the general rules of pleading and, we are inclined to believe, admits of abundant support in authority. We find one ease in point and those cited in plaintiff’s brief, to which we have not had access, seem to sustain the pleadings in this case. Derbes vs. Romero, 28 An. 644; 16 H. 288; 18 H. 263; 2 H. 642. In the cases of Gaines vs. City of New Orleans etals. the defendants, charged as possessors in bad faith, were joined in one bill, as we remember the cases. Gaines vs. Agnelly et als., 1 Woods, 238" court="None" date_filed="1872-04-15" href="https://app.midpage.ai/document/gaines-v-agnelly-8631435?utm_source=webapp" opinion_id="8631435">1 Woods, 238; Gaines el als. vs. City of New Orleans, 1 Woods, 104" court="None" date_filed="1871-04-15" href="https://app.midpage.ai/document/gaines-v-new-orleans-8631439?utm_source=webapp" opinion_id="8631439">1 Woods, 104.
The defendants put at issue the corporate capacity of plaintiff. The Vicksburg, Shreveport & Texas Railroad Company was created in 1853 to construct a railroad from the Texas line to Vicksburg via Greenwood, Shreveport and Monroe. In aid of this railroad, or as the act expressed it “ a railroad,” between these points and the line stated, Congress granted in 1856 alternate odd sections of land for
Thereafter, in September, 1857, the company executed and issued bonds to a large amount, secured as usual in railway mortgages on its road-bed, lands and franchises, and the mortgage specially embraced the four hundred and twenty thousand nine hundred and twenty-four acres of land embraced in the grant. On these bonds, extant and unpaid in 1879, by appropriate proceedings in the United States Circuit Court, Fifth Circuit and District of Louisiana, the bondholders foreclosed their mortgage and at the master’s sale under the decree of the court acquired, through a committee selected by them, the railroad, its lands and franchises covered by mortgage.
We do not appreciate that any objection is or can be urged to these, proceedings. They exhibit the usual method by which railroad franchises are transferred when bondholders exact their rights.
It has never been supposed that such proceedings end the corporate existence, for, if this were the case, railroad mortgages would confer no rights and railroad bonds disappear as securities. It must be accepted, then, that the sale passed the corporate franchises, to the purchasers. In that condition the purchasers availed themselves of the Act No. 38 of the Legislature of 1877, which authorizes, the purchasers of railway property and franchises to hold all such property and operate the railroad the same as the company that executed the mortgage. The act further authorizes the purchasers to fix and divide the stock bought, adopt a name and organize anew the company by electing a board of directors. When all this was effected the act provided for the filing of the organization certificate in the office of the Secretary of State, and, this done, the act declares the company shall be deemed a body corporate under the name chosen as fully as if chartered anew by the Legislature. We find from the record that all these ■ provisions were complied with by the purchasers, and the corporation once known as the Vicksburg, Shreveport & Texas Railroad Company has beceme the Vicksburg, Shreveport & Pacific Railroad Company, if there is any virtue in the judicial proceedings to foreclose the mortgage and the Legislative Act of
Nor can it be denied that the lands sued for in this case are embraced in the grant of 1856. Unless that grant has been withdrawn or annulled, the present corporation is vested with title to the lands. These defendants insist the lands have reverted to the United States by the lapse of time — i. e., the ten years. That the company did not build the road on the original line; that the Legislature of Louisiana has declared the grant forfeited, and other defences are advanced assailing the right of the corporation to the lands granted. It is true the railroad was not completed within the time stipulated in the grant. It is also true, we believe, there was a deviation from the line originally designed for the road. But it is equally true the road has been completed and the United Statef has never insisted on any cause of forfeiture and has never forfeited the giant. Prom time to time the certificates of the completion of the road have been filed in the office of the Commissioner of the General Land Office, and, though long after the ten-year limit, have been accepted as satisfactory evidence of compliance with the grant. So long as the grantor interposes no objection, we can not perceive the right of defendants to urge non-compliance with conditions we must deem waived by the grantor. We do not enlarge on this point because, in our view, unnecessary, especially in view of the elaborate decisions in 41 An. 896; 42 An. 1007, and 44 An. 981.
Nor can we understand how the State of Louisiana can forfeit lands or declare annulled the grant of 1856. The State has no interest. It was the trustee under the act of 1856, but its functions have long since ceased, and before the legislative act in Which it undertook to annul the grant. 44 An. 981.
We have given careful attention to the claims advanced in behalf of some of the defendants that they hold under home
It is undoubtedly better that juries should be kept together after the charge and it is impliedly required by the Oode. But merely because in this case there was a separation, we do not think the verdict should be set aside.
Rehearing refused.