94-1426 La.App. 4 Cir. 1/31/95, Texas Intern. Petroleum Corp. v. Delacroix Corp.

• Decision Date: 31 January 1995
• Citation: 650 So.2d 815
• Parties: 94-1426 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 815

650 So.2d 815

94-1426 La.App. 4 Cir. 1/31/95

TEXAS INTERNATIONAL PETROLEUM CORPORATION v. DELACROIX CORPORATION, et al.

No. 94-CA-1426.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 31, 1995.

Writ Denied April 20, 1995.

Wilkinson & Wilkinson, Hugh M. Wilkinson, Jr., John B. Wilkinson, New Orleans, for appellant.

Ogden, Ogden & Wright, Charlton B. Ogden, III, New Orleans, for appellees.

Before KLEES, BYRNES and CIACCIO, JJ.

[94-1426 La.App. 4 Cir. 1] BYRNES, Judge.

This is a concursus proceeding brought by Texas International Corporation seeking a determination of the ownership of oil and gas royalties deposited into the registry of the court attributable to disputed tracts of land within two conservation units designated as 7900' RA SU A and 7900' RA SU B, Half Moon Lake Field, St. Bernard Parish. Total Minatome Corporation succeeded Texas International Petroleum Corporation by act of assignment and was joined as a party plaintiff.

This phase of the litigation focuses on the dispute between Delacroix corporation and Delacroix Royalty Owners (referred to collectively as "Delacroix") the royalty owners of Section 13 and Biloxi Marsh Land Corporation and its royalty owners of Section 24 (referred to collectively as "Biloxi"). The primary issue concerns the location of the line between Sections 13 and 24, Township 15 South, Range 17 East, which is simultaneously the southern boundary of Section 13 and the northern boundary of Section 24. All other issues were held in abeyance pending resolution of this issue.

[94-1426 La.App. 4 Cir. 2] The trial court ruled in favor of Biloxi. ¹ We affirm.

The ancestors in title to the land in dispute acquired title by reference to an official government survey done by Messrs. Richardson and Powell in 1842-1845. That survey was approved by the government in 1848. The parties agree upon the fundamental legal principle in this case: THIS COURT IS POWERLESS TO CORRECT ERRORS IN THE ORIGINAL GOVERNMENT SURVEY!

[94-1426 La.App. 4 Cir. 3] The power to make and correct surveys of public lands belongs to the political department of the government, and while the lands are subject to the supervision of the General Land Office, its decisions in such cases are unassailable by the courts, except by a direct proceeding. Cragin v. Powell, 128 U.S. 691, 9 S.Ct. 203, 32 L.Ed. 566 (1888). In other words, decisions of the General Land Office of the United States are not subject to correction by the courts in suits between individuals. Leader Realty Co. v. Lakeview Land Co., 142 La. 169, 76 So. 599 (La.1917). Whether a government survey as originally made is correct or incorrect is for the land department alone to determine, and as to which the courts have no jurisdiction except by original proceedings in equity. Carrere v. City of New Orleans, 162 La. 981, 111 So. 393 (La.1926). Even if the governmental survey is incorrect, it nevertheless creates the township sections and boundaries. State v. Ward, 314 So.2d 383, 396 (La.App. 3 Cir.1975), writ den., 319 So.2d 440 (La.1975). Any section corner or quarter corner that is identified as having been established by an official survey of the United States government must stand as correctly located, however plain it may appear that the location is wrong, since the government surveys cannot be changed in an action at law between private individuals. Houston Ice & Brewing Co. v. Murphy Oil Co., 149 La. 228, 88 So. 802 (La.1921). An approved survey of public lands does not merely ascertain boundaries, it creates them, and a township survey completed and approved creates the boundaries of the township and the sections therein. Union Producing Co., et al, v. Placid Oil Company, 178 So.2d 392 (La.App. 1 Cir., 1965), writ refused, 248 La. 447, 179 So.2d 432 (La.1965), writ denied, 385 [94-1426 La.App. 4 Cir. 4] U.S. 843, 87 S.Ct. 31, 17 L.Ed.2d 75 (1966). Both the appellants and the appellees cite and agree on all of the foregoing authorities.

On the other hand, where the lines run by such survey lie on the ground, and whether any particular tract is on one side or other of that line, are questions of fact which are always open to inquiry in the courts. Russell v. Maxwell Land Grant Co., 158 U.S. 253, 259, 15 S.Ct. 827, 39 L.Ed. 971, 972 (1895); U.S. v. State Inv Co., 264 U.S. 206, 212, 44 S.Ct. 289, 68 L.Ed. 639 (1924); United States v. Hudspeth, 384 F.2d 683 (9 Cir.1967).

The location of a boundary line is a question of fact to be determined by the trier of fact and this factual determination should not be reversed on appeal in the absence of manifest error. Morris v. Sigur, 584 So.2d 729, 730 (La.App. 4 Cir.1991), writ den., 589 So.2d 1054 (La.1991).

Thus while the trial court was powerless to correct errors in the official government survey, it was completely competent to locate the lines of that survey on the ground and to locate any given tract of land in relation thereto, subject only to manifest error review by this court.

Delacroix and Biloxi each assert that the claims of the other are inconsistent with this original survey.

All parties agree that the original surveyors made errors. There is some dispute over the number, location and effect of these errors. Experts testified on both sides of the controversy. Ultimately the case boiled down to one of weighing conflicting expert testimony. In the absence of manifest error, this Court does not have the authority to reverse the trial court's determinations in the matter of conflicting of expert testimony. Sistler v. Liberty Mut. Ins. Co., [94-1426 La.App. 4 Cir. 5] 558 So.2d 1106, 1111 (La.1990); Brewhouse, Ltd. v. New Orleans Public Service, Inc., 614 So.2d 118, 120 (La.App.1993); Miller v. Miller, 602 So.2d 330, 332 (La.App. 4 Cir.1992).

Messrs. Burke, Burnside, and Mayeaux testified as expert surveyors. The analyses of Messrs. Burke and Burnside were limited to a study of documents such as maps, diagrams, and plats. They did not attempt to retrace the steps of the official government surveyors on the ground. Mr. Mayeaux was the only expert who went out and tried to physically retrace the footsteps of the original government surveyors. This is important because it provides objective support for the trial court's decision to base its findings on Mr. Mayeaux's testimony rather than the testimony of Messrs. Burke and Burnside. ² The reliability of a plat which is unsupported by any effort to retrace the lines on the ground is questionable at best. Barham v. Department of Highways, 431 So.2d 899, 902 (La.App. 2 Cir.1983).

Mr. Mayeaux's attempt to physically retrace the footsteps of the original surveyors is also important because those surveyors calculated the locations of section lines and corners and did not physically walk upon them, i.e., their locations were projections. It is necessary to know where the surveyors actually were on the ground when they made their projections. For example, if the original government surveyors had projected that a corner was such and such [94-1426 La.App. 4 Cir. 6] a distance in such and such a direction, it is essential to know where they were when they made that projection if we are ever to reconstruct where they projected that corner to be. This is particularly important in this case where it appears that the surveyors were often not where they thought they were when they made their projections.

The trial court noted that Mr. Mayeux made greater use of topography than did the other two surveyors. Mr. Mayeux located natural objects and fixed monuments called for by the field notes on the ground. In matters of boundary, calls for natural objects and fixed monuments control those for distances. U.S. v. State Inv Co., 264 U.S. 206, 212, 44 S.Ct. 289, 290-91, 68 L.Ed. 639 (1924) In ascertaining the boundaries of surveys or patent, the universal rule is this: that whatever natural or permanent objects are embraced in the calls of either, these have absolute control, and both courses and distances must yield to their influence. Brown v. Huger, 62 U.S. 305, 21 How. 305, 306, 16 L.Ed. 125, 129 (1859); City of New Orleans v. Joseph Rathborne Land Co., 24 So.2d 275 (La.1945). The legal guides for determining the question of boundary or the location of a land line, in order of their importance, are natural monuments, artificial monuments, distances, courses and quantity ... City of New Orleans v. Joseph Rathborne Land Co. at 281; Meyer v. Comegys, 147 La. 851, 86 So. 307 (La.1920). It is well established that natural objects and monuments are more important than courses and distances in retracing old surveys and ascertaining the location of unknown and disputed lines. Cheramie v. Vegas, 194 So.2d 189, 192 (La.App. 1 Cir.1966), writ refused, 250 La. 907, 199 So.2d 918 (La.1967); Barham v. Department of Highways, 431 So.2d 899 [94-1426 La.App. 4 Cir. 7] (La.App. 2 Cir.1983); Liner v. Terrebonne Parish School Board, 519 So.2d 777 (La.App. 1 Cir.1987), writ den. 521 So.2d 1173 (La. 1988), cert. den. 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988); Morris v. Sigur, 584 So.2d 729 (La.App. 4 Cir.1991), writ den., 589 So.2d 1054 (La.1991).

But in re-establishing the lines of a survey, the footsteps of the original government surveyors should be followed, and it is immaterial if lines actually run by him are not correct. Galt v. Willingham, 11 F.2d 757, 758 (5 Cir.1926). The original survey as it was actually run on the ground controls, even if the boundary was incorrect as originally established. United States v. Doyle, 468 F.2d 633, 636 (10 Cir.1972); United States v. Citko, 517 F.Supp. 233 (E.D.Wis.1981).

The basic error made by Powell and Richardson was that they were north of their intended position in their traverses around Lake Athanasio. This had the effect of throwing off the northeast corners of Sections 36, 25, and 24 as these corners were established by calls from positions that were farther north than Powell and Richardson realized....