| La. | Sep 15, 1840
delivered the opinion of the court.
Plaintiff sets up title to a tract of land situated at or near the confluence of the rivers Teche and Atchafalaya, containing twenty-five arpents front on the river Teche, or about one thousand superficial arpents, which title is derived from the heirs and representatives of John and Henry Bosler. He alleges, that the defendants have taken possession of a part of his land, and prays that they be ordered to remove from said land. He also prays for one thousand dollars damages.
Defendants called in their warrantors, who all filed their answers, in which they allege that William Biggs, under whom they hold, had good and valid titles to six hundred and forty acres of land on the east side of the bayou Teche, acquired from the government of the United States by settlement, and regularly confirmed and located. They also plead the prescriptions of ten and twenty years. The inferior court quieted the defendants in their title to and possession of their tract ; from which judgment, plaintiff appealed.
The titles of the plaintiff are predicated upon a requéte and certificate of vacancy signed by the Spanish commandant, dated 7th December, 1801, in which the Boslers demand a concession of twenty-five arpents in front, by the ordinary depth of forty, situated at the mouth of the river Teche, on the east side. A part of this tract (six hundred and forty acres,) was confirmed in their favor on the 5th of September, 1811; and the balance of two hundred and six acres, was confirmed to them by act of Congress of the 29th April, 1816. The first confirmation was located, by a regularly approved plat, on the 28th of November, 1813, the upper
Defendants’ claim is founded on a permission to settle, given to Biggs by the commandant of Attakapas in 1801, and upon Biggs’s settlement in 1802, with proof of possession and occupancy, by virtue of which he was confirmed in his tract to the extent of six hundred and forty acres, by act of congress of the 29th of April, 1816. This confirmation was located by a plat of survey made on the 24th February, 1819, and approved on the 5th of October, 1824. The lower line of this plat calls for Bosler’s.
From the parole evidence, it appears that Bosler’s settlement was originally on a mound at the point of confluence of the two rivers, where they had a house; and that Biggs’s settlement was about a mile from said point. Biggs occupied and cultivated a part of the land for a number of years, and was living upon it when he exchanged with Foster, (5th of November, 1816.) Sojourner purchased of Foster in 1828, and continued to possess and cultivate the land. There is proof of payment of taxes by Biggs, Foster, and Sojourner; and the surveyor, appointed by the court, shows the old marks and boundary posts which he found on the tracts to correspond with the approved surveys.
From the returns of the surveyor, it appears that the point, at the confluence of the two rivers, to the extent of one hundred and twenty acres, is claimed by one Jacob Deronen, by virtue of a Spanish title regularly confirmed; that this quantity is not included in the survey made for the plaintiff in 1813 ; and the plaintiff contends that he has a right to make up that deficiency by carrying his line further up, and taking the same quantity out of defendant’s tract. He also maintains, that as his second confirmation, for two hundred and six acres, grows out and is a part of the tract which he originally owned, that he is entitled to locate it above the upper line of his first confirmation, so as to make it an entire body of land between the upper line of Deronen’s tract and the removed lower line of the defendants.
When the plaintiff located his first confirmation, he thought proper to abandon the very spot of his vendor’s original settlement at the mouth of the river, which place his title calls for, and to carry his lower line further up. This was cer- ’ J f . . tainly irregular, and the circumstance of his titles conflicting with Deronen, cannot turn to the prejudice of the defendants. It is a well settled rule, that titles must be located according to their calls; and it is clear, that if Deronen had a better <han plaintiff to the one hundred and twenty acre tract, plaintiff was to suffer the loss, since his title calls for the very place where Deronen located his. This plaintiff ¡cnew a(_ t|ie time he made his survey, as he then extended . , . , , his lines so as to include the balance of his tract, under the first confirmation, between the upper line of Deronen’s and *-he l°wer I¡ne °f defendants’, after abandoning the one hundred and twenty acres conflicting with Deronen. This part of the plaintiff’s claim must therefore be rejected.
The next queslion is with regard to the second confirmation, which plaintiff seeks to locate on defendants’ tract. Both confirmations were obtained by the same act of conSressJ an(I are, therefore, of equal dignity; but the defendants caused their title to be regularly located, and no attempt has been made to show that plaintiff ever took any steP to l°cate his. Defendants were in the actual and corporeal possession of the land, in good faith, at the time' , 1' , , their confirmation issued, and the subsequent location afforded them (he means of ascertaining the metes and bounds of the tract which they were then possessing by virtue of a just title, by them definitively acquired in 1816. Although Foster did not, perhaps, continue to have the corporeal possession of the land after his purchase, he possessed it civilly, animo domini, and by virtue of a title sufficient to transfer the property. Sojourner purchased in 1828, took immediate possession of (he tract, put it in cultivation ; and as it is perfectly clear, arid cannot be controverted, that the actual possessor, who proves that he or his authors have formerly been in possession, is to be presumed to have been in possession in the intermediate time ; Louisiana Code,
For these reasons, we come to thé conclusion that the judge a quo did not err in giving judgment in favor of the defendants.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.