Bickham v. Bankston, 7327

• Decision Date: 08 April 1968
• Docket Number: No. 7327,7327
• Citation: 210 So.2d 88
• Parties: Benton E. BICKHAM v. Johnnie O. BANKSTON.
• Court: Court of Appeal of Louisiana — District of US

Page 88

210 So.2d 88

Benton E. BICKHAM v. Johnnie O. BANKSTON.

No. 7327.

Court of Appeal of Louisiana, First Circuit.

April 8, 1968.

Rehearing Denied May 27, 1968.

Writ Refused June 28, 1968.

A. Clayton James, Jr., of Johnson & James, Franklinton, for appellant.

France W. Watts, III, of, Watts & Watts, Franklinton, for appellee .

Before LANDRY, REID and BAILES, JJ.

REID, Judge.

Benton E. Bickham filed a possessory action on October 13, 1965, asking that his right to possession of certain immovable property in Headright 60, T 1 S R 10 E, Washington Parish, Louisiana, more particularly described as follows to-wit:

'Bound North by lands owned in indivision by Doris Bickham Galloway, Mildred Bickham Maitre, Antionette Bickham Griffin, Martha Bickham Etzel, and J. E. Pierce; East by the Tylertown-Franklinton Highway; South by the lands of Alex Magee and Dr. T. C. W. Magee, or his successors in title; and West by the Bogue Chitto River.'

be recognized. Answer was filed by defendant, Johnnie O. Bankston, denying the right of petitioner to be recognized as the possessor of the property in question, and further asserting that the defendant is the owner and possessor of a certain parcel of property in Washington Parish, Louisiana, described as follows:

'37 acres, more or less, lying in Section 59, Township 1 South, Range 10 East, Washington Parish, State of Louisiana, described as follows: Commence at old corner in draw or bayou on the West bank of present Bogue Chitto River, being corner common to James Tate, thence North 68 degrees East, crossing New River and sand bar to old corner stake on left bank of Old River, a distance of 11.80 chains, thence along left bank of Old River as described in deed from Shelby Burch to 10 pine on East or left bank of Old River bed; thence North 50 degrees West crossing River to West bank a distance of 4.00 chains, thence Southerly along West bank of present River to Point of Beginning.'

Both parties pleaded ten and thirty year acquisitive prescription and both alleged various acts of possession.

The matter was duly tried on the merits and submitted to the Court . Subsequently plaintiff Benton E. Bickham died and his widow Mrs. Carrie Holmes Bickham was qualified as administratrix of his succession and a motion and an order was obtained and signed on October 21, 1966 substituting Mrs. Carrie Holmes Bickham, administratrix of the succession of Benton E. Bickham Sr. as party plaintiff herein.

Judgment was rendered on December 7, 1966, dismissing the plaintiff's demand at his costs and decreeing that the defendant Johnnie O. Bankston to be the owner of the 37 acres of land hereinabove described.

From this judgment the plaintiff has appealed specifying as error the following:

'(1) The Trial Judge erred in not finding that Benton E. Bickham Sr., was the possessor of the disputed land.

(2) The Trial Judge erred in concluding that defendant Johnnie O. Bankston proved a title good against the world insofar as the disputed land is concerned.

(3) The Trial Judge erred in concluding that defendant has a better title to the disputed land than does the plaintiff.

(4) The Trial Judge erred in concluding that defendant has title to any property lying east of the Bogue Chitto River.

(5) The Trial Judge erred in accepting the survey of O. C. Hollister as correct in Establishing the Boundaries between the parties litigant.

(6) The Trial Judge erred in not finding that Benton E. Bickham Sr . was the title owner of the disputed land.

(7) The Trial Judge erred in not finding that any questions insofar as the title of Bickham is concerned were cured by acquisitive prescription.'

Defendant, Johnnie O. Bankston, relies upon his chain of title in asserting his ownership of the disputed property. It is obvious from the examination of the record that the various deeds in the defendant's chain of title purport to convey the land by boundaries and in such deed other than the deed from Shelby R. Burch to Marion Ray and Troy Bankston the eastern boundary of the property is the Bogue Chitto River. The plaintiff seizes this situation and avers that as a result the property conveyed in the defendant's chain of title are conveyed by sales per aversionem. Plaintiff cites Administrators of Tulane Education Fund v. Stair, 148 La. 11, 86 So. 595 to the effect that in determining a disputed boundary, natural and artificial monuments such as rivers, lakes, roads, streets, etc. will control courses and distances, while courses and distances will control over quantity calls. As stated, this is essentially the recognized law in Louisiana with regard to sales per aversionem.

Defendant, Johnnie O. Bankston, in his answer denied the possession of the plaintiff and further answering set up title to some 37 acres of land in Section 59 T 1 S R 10 E, hereinabove described in this opinion and alleged his complete chain of title. By so doing the defendant became the plaintiff in a petitory action and it was incumbent upon him to prove title good against the world at least a better title than that of the plaintiff to the 37 acres which are in dispute.

Essentially the issues in this case boil down to three points: (1) Has the defendant Bankston, in his petitory action set up title good against the world or better than that of the plaintiff, and (2) does he have title by virtue of the possession of ten and thirty years which would give him a prescriptive title, and (3) does the plaintiff Bickham have title to the land in dispute

We will take up the question of his proof of title better than that of the plaintiff Bickham first. Beginning with the deed from George T. Bankston to N. E. Smith dated July 10, 1920 up to the deed from Shelby R. Burch to Marian Ray Bankston and Troy G. Bankston dated August 1960 recorded in COB 165, page 101, all the description in the Bankston chain of title describe the Bankston lands as bounded on the East by the Bogue Chitto River. Subsequent to that date in August, 1960 the description in the Bankston chain of title described the land as extending over and across the new river to a point on the old river. This...