Atchafalaya Land Co. v. F. B. Williams Cypress Co.

• Decision Date: 01 March 1920
• Docket Number: 23733
• Parties: ATCHAFALAYA LAND CO. v. F. B. WILLIAMS CYPRESS CO. et al. (BOARD OF COM'RS OF ATCHAFALAYA BASIN LEVEE DIST. et al., Interveners.)
• Court: Louisiana Supreme Court

84 So. 351

146 La. 1047

ATCHAFALAYA LAND CO. v. F. B. WILLIAMS CYPRESS CO. et al. (BOARD OF COM'RS OF ATCHAFALAYA BASIN LEVEE DIST. et al., Interveners.)

No. 23733

Supreme Court of Louisiana

March 1, 1920

Rehearing Denied April 5, 1920

Appeal from Nineteenth Judicial District Court, Parish of Iberia James Simon, Judge.

Action by the Atchafalaya Land Company against the F. B. Williams Cypress Company and others, in which the Board of Commissioners of the Atchafalaya Basin Levee District and another intervened. Judgment for plaintiff and interveners and defendants appeal.

Judgment annulled, with directions.

Hall, Monroe & Lemann and Borah, Himel, Bloch & Borah, all of New Orleans, for appellants.

Burke & Smith and F. E. Delahoussaye, all of New Iberia, for appellee Schwing Lumber & Shingle Co., Ltd.

J. H. Morrison, of New Roads, for appellee Board of Com'rs of Atchafalaya Basin Levee Dist.

O'NIELL, J. MONROE, C. J., and PROVOSTY, J., take no part.

OPINION

O'NIELL, J.

This is an action to annul twelve land patents issued to Pharr & Williams, from whom the defendant F. B. Williams Cypress Company derived title, for several tracts of swamp land in the parishes of Iberia and St. Martin, and to have the lands decreed subject to transfer by the state to the board of commissioners of the Atchafalaya Basin levee district, under the statute creating the levee district.

Plaintiff claims that it is the right and duty of the board of commissioners of the levee district to demand, and the duty of the state auditor and the register of the state land office to grant, a deed or instrument of conveyance, pursuant to section 11 of the statute; and that the board is obligated to transfer the lands to plaintiff, as assignee and subrogee of the rights acquired by Edward Wisner and John M. Dresser, under a contract with the board, dated July 9, 1900, and confirmed April 11, 1904.

Plaintiff therefore prayed that the board of commissioners be cited to join in a vindication of plaintiff's rights, and, in the event of the board's failure so to do, that there should be reserved to plaintiff such right or cause of action as might arise, whether in damages or otherwise, for nonperformance of the obligation of the board.

The board of commissioners answered, praying that its pleading be regarded as a petition of intervention, adopting the principal allegations of plaintiff's petition, and joining in the prayer for annulment of the patents under which the defendant F. B. Williams Cypress Company claims title to the lands.

The Schwing Lumber & Shingle Company filed a petition of intervention, claiming title to the cypress timber on the lands by purchase from Wisner and Dresser, and joining in plaintiff's prayer for annulment of the patents under which the defendant F. B. Williams Cypress Company claims title.

The defendant filed an exception of no cause or right of action, and a plea of prescription of six years, under the statute of limitation, Act No. 62 of 1912 (page 73). Defendant also pleaded the prescription of ten years, acquirendi causa, and, in bar of the Schwing Lumber & Shingle Company's demand for the value of the timber already taken from the lands, the prescription of one year. Answering the petitions of the plaintiff and interveners, defendant averred that the patents issued to Pharr & Williams were valid because they were issued within six months after the enactment of the statute creating the levee district, during which six months the board of commissioners had no right, as defendant contends, to demand an instrument of conveyance from the land department.

Judgment was rendered in favor of the plaintiff and interveners, overruling defendants' exception and pleas of prescription, decreeing null the patents under which defendant claims title, and declaring the lands "subject to completion of title by deed from the state to the board of commissioners of the Atchafalaya Basin levee district, in accordance with the terms and provisions of Act 97 of the General Assembly of 1890, for the benefit of the assignee of the rights, title and interest of said board of commissioners," etc. From which judgment, the defendant F. B. Williams Cypress Company prosecutes this appeal.

The lands in controversy were acquired by the state by the swamp land grants, the Acts of Congress of March 2, 1849 (9 Stat. 352, c. 87), and of September 28, 1850 (9 Stat. 519, c. 84, U.S. Comp. St. §§ 4958-4960).

The Atchafalaya Basin levee district, embracing those parts of the parishes of Iberia and St. Martin in which the lands in controversy are situated, was created by the Act No. 97 of 1890 (page 107); the eleventh section of which act declared that all lands then belonging or that might thereafter belong to the state, within the limits of the district, were thereby granted to the board of commissioners of the levee district. It was stipulated in the act that the lands of which the state had or might thereafter become the owner by tax sales should not be transferred or conveyed to the board of commissioners until the time allowed for redemption should have expired; and that all former owners of lands that had been forfeited for nonpayment of taxes might redeem their lands at any time within six months after the passage of the act, by paying the taxes, interest, costs, and penalties, to be placed to the credit of the levee district. It was further provided that, "after the expiration of said six months," it should be the duty of the state auditor and the register of the land office, on behalf and in the name of the state, to convey to the board of commissioners of the levee district, by proper instruments of conveyance, the lands thereby granted or intended to be granted and conveyed to said board, whenever, from time to time, said auditor and said register of the land office, or either of them, should be requested to do so by said board of commissioners or by the president thereof; and that, after the recording of such instrument of conveyance in the recorder's office where the land so conveyed was situated, the title thereto and possession thereof should thenceforth vest absolutely in said board of commissioners, their successors or grantees. The statute provided that the lands should be exempted from taxation "after being conveyed to and while they remained in the possession or under the control of said board"; and that the board should have authority to sell, mortgage or otherwise dispose of the lands in such manner, at such times and for such prices, as the board might deem proper.

The statute was approved July 8, 1890. Within six months thereafter, that is, in September and November of that year, Pharr & Williams, a partnership composed of John N. Pharr and F. B. Williams, made cash purchases of the lands now in controversy, paying the price fixed by law, at the land office, and obtained the patents in contest, which were signed by the Governor of the state and the register of the land office, and were promptly recorded in the land office and in each parish in which the lands are situated, respectively.

John N. Pharr sold his interest in the lands to F. B. Williams by deed dated March 28, 1892, and recorded in the recorder's office of St. Martin parish on April 3, 1892, and in the recorder's office of Iberia parish on April 6, 1892. F. B. Williams sold the lands to the F. B. Williams Cypress Company by deed dated May 23, 1903, and recorded in the office of the recorder of the parish of Iberia and of the parish of St. Martin, on May 26, 1903.

It is admitted that Pharr & Williams, and, in turn, F. B. Williams and the F. B. Williams Cypress Company, paid the taxes assessed against the lands in contest every year since 1890; that they went into possession of the lands immediately after the patents were issued, exercised acts of ownership, had the timber cruised, estimated and marked, had canals dug and timber cut and removed from the lands, and did other acts of possession, openly, notoriously, and continuously, from the time the patents were issued to the date of filing of the defendant's answer to this suit.

No instrument of conveyance of the lands in contest was ever issued to the board of commissioners of the levee district; nor was any request ever made for such instrument of conveyance, as provided in section 11 of Act 97 of 1890.

On the 9th of July, 1900, the board of commissioners transferred to Edward Wisner and J. M. Dresser, by quitclaim deed, all of the lands that had been granted to the board by Act 97 of 1890 that had not yet been disposed of by the board, being all of the lands then owned by the board, including all lands to which the board could then "lay just claim,"and all lands that had then been sold to the state for unpaid taxes but for which deeds had not yet been made to the state or to the board of commissioners, but not including any lands that might thereafter be adjudicated to the state for delinquent taxes. The purchase price was $ 120,000, of which Wisner and Dresser paid $ 25,000 cash; and the remaining $ 95,000 was payable in two equal semiannual installments.

It was declared in the deed that some of the lands acquired by the board had already been sold but that deeds had not been made therefor; that the board had also agreed to make quitclaim deeds in favor of the former owners of other lands; and that the lands that were thus already bargained for or verbally quitclaimed by the board were therefore not included in the transfer to Wisner and Dresser.

The instrument did not describe any land specifically, but contained the following clauses, which are the cause of plaintiff's having had the board of commissioners cited as a defendant in this suit, viz.:

"It is further agreed and understood...