BOARD OF COM'RS FOR BURAS LEVEE DIST. v. Cockrell

• Decision Date: 26 August 1937
• Docket Number: No. 8386.,8386.
• Citation: 91 F.2d 412
• Parties: BOARD OF COM'RS FOR BURAS LEVEE DIST. et al. v. COCKRELL.
• Court: U.S. Court of Appeals — Fifth Circuit

91 F.2d 412 (1937)

BOARD OF COM'RS FOR BURAS LEVEE DIST. et al. v. COCKRELL.

No. 8386.

Circuit Court of Appeals, Fifth Circuit.

July 3, 1937.

Rehearing Denied August 26, 1937.

A. Giffen Levy and L. H. Perez, both of New Orleans, La., for appellants.

Sidney L. Herold, of Shreveport, La., for appellee.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Under the jurisdiction given by the Act of June 14, 1934, Jud.Code, § 274d, 28 U. S.C.A. § 400, the appellee Ernest Cockrell obtained in the District Court a declaratory decree against the Board of Commissioners of Buras Levee District, and against Parish of Plaquemines as their universal successor, that a former decree rendered by the Supreme Court of Louisiana in a suit to which Cockrell and the board were parties is a complete and conclusive bar to any claim by the Levee District of title to or interest in any portion of the land except section 16) in three named townships in the parish and estops them from disputing the ownership by Cockrell of all the rights reserved to him in a certain conveyance in all said lands. The assignments of error on this appeal assert that the bill should have been dismissed, and that, if retained, the former decree of the Supreme Court should be held to affect the title of no land but that which was there sued for.

We greatly doubt whether an "actual controversy" is shown either by the pleadings or the evidence such as gives the court jurisdiction to render a declaratory decree. The act does not alter the character of the controversies which are the subject of the federal judicial power under the Constitution. United States v. West Virginia, 295 U.S. 463, 464, 55 S.Ct. 789, 79 L.Ed. 1546. General contentions between the parties which have not become a definite and concrete controversy will not suffice. Ashwander v. Tenn. Valley Authority, 297 U.S. 288, 289, 56 S. Ct. 466, 80 L.Ed. 688. There seems to be here only a difference of opinion as to the scope of a former decree as it may affect possible controversies which may develop in the future over unascertained tracts of land. But since neither party attacks the District Court's finding that there is an actual controversy, and since relief might have been had by a bill to quiet title, we will review the merits of the case.

The record culminating in the former decree shows the following: In 1931 the Board of Commissioners of Buras Levee District in a court of Louisiana sued Cockrell and others for "the following described lands situated within the limits of Plaquemines Parish, towit, in Township 20 South, Range 26 East, Section 11, 427 acres; Section 12, 632 acres; Section 13, 77 acres; the above estimated area is in accordance with lands appearing on the Allen E. Washburn, C. E., map compiled in November, 1925, making proper allowances for navigable water areas and for lands in the above sections previously patented and conveyed by the State; all as more particularly shown by certified extract of said Act annexed hereto and made a part hereof, and a copy of said map by Washburn, C. E." The act annexed was a grant from the state made in 1928 and was set up as the source of the title. The prayers were for a judgment establishing title and recovering possession, and for a sequestration of oil taken from the land, and for injunction. Cockrell's answer denied the validity of Washburn's survey, and claimed that all the land of the Levee District not only in township 20 south, range 26 east, but in township 18 south, range 25 east, township 19 south, range 26 east, and township 20 south, range 27 east, had in 1919 been conveyed by the Levee District to one Jordan, warranted to be 52,506.52 acres, and that title had later passed to him and the other defendants as set forth; he denied that the Levee District owned any land in township 20 south, range 26 east, or that in controversy; and he asserted that it was the intention of the Levee Board in 1919 to sell, and of Jordan to buy, all of the lands owned by the board in township 20 south, range 26 east, and if the description did not describe the property in controversy that the deeds should be reformed to express the intention to convey all the lands of the board in that township. His prayers were "that plaintiff's demands be rejected," and "in the alternative that the acts of sale be reformed and corrected to recite the intention of the parties to convey all the lands then owned by said Board in Township 20 South, Range 26 East, and plaintiff's demands be then rejected." The lower court decreed in favor of the Levee Board, but on appeal to the Supreme Court the decree rendered was: "For the reasons assigned, the judgment appealed from is reversed and set aside, and it is now ordered that the writs of sequestration and injunction sued out herein be dissolved, that plaintiff's demands be rejected, and that its suit be dismissed at its costs in both courts." The reasons assigned constitute a lengthy opinion, reported in Board of Com'rs v. Mt. Forest Fur Farms, 178 La. 696, 152 So. 497, 504. This opinion states fully the legal and other history and the details of the situation. It suffices here to say that the land dealt with is low, marshy land along the Mississippi River near the Gulf of Mexico which had never been actually surveyed until recently, much of the area being bays, lakes, and bayous. In surveying other townships to the south of this nearly a century ago, their north line, as it now appears, was located three miles too far to the north, so that only nine miles from north to south instead of twelve miles was left for the double row of townships now under discussion. Pursuant to legislation establishing Buras Levee District, the state in 1914 granted to the district approximate acreages in each of the sections in three of the unsurveyed townships, to wit, township 19 south, range 26 east, and township 20 south, range 26 east adjoining the former on the south, and township 20 south, range 27 east adjoining the latter on the east, reserving section 16 in each for schools. The acreages purporting to be conveyed in the sections ranged from 640 down to none. The grant referred to no map, but there was in the state archives a map made by one Payne, an engineer of the United States, but not from an actual survey but from an inspection of the land and from other maps. He, supposing the townships to be of full size, platted them as containing each 36 sections one mile square, and drew the land and water lines on that background. This map was approved by the Governor of Louisiana in 1912, and filed in the State Land Office. The land acreage shown in each section by Payne's map is the same as that conveyed in the state's grant in 1914. In 1919 the Levee District sold its lands at public auction through the sheriff, and since the law required it to be sold by quarter sections the sheriff's adjudication of the sale recites that it was thus sold, and his certificate shows the sale of an approximate acreage in each quarter section, all at a price of 50 cents per acre. The total acreage sold in the quarter sections of each section aggregates the acreage granted in that section by the state, but there is no express reference made either to the state's grant or to Payne's map. For example, the adjudication of the sales in one section reads thus: "Buras Levee Board land in Township 18 South, Range 25 East, Southeast District Louisiana; Section 13, N.W. ¼ approximate area, 19; S. E. ¼, 134; S.W. ¼, 75.45; Total 228.45." Jordan was the purchaser in all the adjudications, the total acreage adjudicated being 52,506.52 acres, and the total price paid being $26,253.26. Cockrell holds under Jordan. Oil was suspected in township 20 south, range 26 east about 1925, and it then developed that the area covered by Payne's map was not twelve miles from north to south but only nine miles, and by consequence each of his sections while a mile from east to west was only three-fourths of a mile from north to south. The state then employed Washburn to survey the land, and he made the northern townships full size and the southern ones to be only half townships having sections 1 to 18 only. According to his map, sections 11, 12, and 13 of township 20 south, range 26 east, were in the southeast corner of that township, and embraced land which on Payne's map was mostly in sections 25, 26, and 36. The Levee District, since its 1914 grant referred to no map, apparently thought that the descriptions must be taken as referring to fullsize sections as far as there was land to make such, as Washburn had platted it, with the result that there was in many sections much more land uncovered by water than had been specified in the grant, and in 1928 it obtained a second grant which, expressly referring to Washburn's recent map, undertook to convey to the district additional land where Washburn's map showed more land not covered by water than the former...