Breaux v. Albert Hanson Lumber Co., Limited

• Decision Date: 03 January 1910
• Docket Number: 17,708
• Citation: 125 La. 421,51 So. 444
• Court: Louisiana Supreme Court
• Parties: BREAUX et al. v. ALBERT HANSON LUMBER CO., Limited

51 So. 444

125 La. 421

BREAUX et al. v. ALBERT HANSON LUMBER CO., Limited

No. 17,708

Supreme Court of Louisiana

January 3, 1910

On Application for Rehearing, February 14, 1510. Rehearing denied.

Appeal from Twentieth Judicial District Court, Parish of Terrebonne W. P. Martin, Judge.

Action by Mrs. Robert Breaux, tutrix, and others, against the Albert Hanson Lumber Company, Limited. From the judgment, both parties appeal. Affirmed.

Suthon & Wurzlow (W. C. Baker, of counsel), for appellants.

Butler & Bourg and O'Niel & Alpha, for appellee.

OPINION

BREAUX C. J.

Plaintiffs instituted this suit to recover $ 10,000 of the defendants for alleged trespass upon their property. In addition, plaintiffs claim an amount which they allege the court will find to be due for trees cut down and removed from the land described in their petition. They ask that defendants be condemned to account for the value of the trees cut down, of which they claim one-third as owners. They pray for judgment enjoining defendants from cutting, entering, and using the canal cut by defendants upon their said lands.

They charged trespass of defendants by entering upon their lands cutting down and taking away a large number of cypress trees, despite plaintiffs' objection, it is said; further, that defendants also trespassed on plaintiffs' land by cutting a canal across it, through which they were floating logs and timber.

The defendants set out their title to the cypress timber, and the right to deaden, cut, fell, and float all these trees, and the right to cut a canal, the privilege to erect camps, and do all needful in their interest to float away these trees.

The contention of defendants is that Ernest Breaux, representing that he was the owner or agent of all the one-third interest in the timber, proposed that a survey of the land be made jointly with defendants, and a division in kind; that they consented to his proposal, and a survey was made. They established a line upon one side of which defendants should take and hold all the timber, while Earnest Breaux, as owner and agent, was left in possession of all the timber upon the opposite side of the line; that is, on the one-third remaining.

Similar agreement, it is stated by defendants, was arrived at about the timber which was on the left descending bank of Bayou Black.

They detail at some length all the grounds of defense, including a plea of estoppel, to be considered later.

The plaintiffs appealed from the judgment of the district court.

The defendants joined in the appeal, and asked for an amendment of the judgment.

We will pass upon this application to amend the judgment in deciding the issues of the case.

Motion to Dismiss.

Appellees furnished a bond in accordance with order of appeal in order to become appellants as well. It asks to use the same transcript used by its coappellant. They wished to be appellants as well as appellees, and be in position as they deemed doubtless to present all their rights.

As a party to an appeal is at liberty to take the appeal upon complying with the law in regard to bond, and other required formality, and use the same transcript, there is no necessity of making two transcripts of appeal. One will suffice provided the costs of it are shared between appellees.

Motion to dismiss overruled.

Statement of the Case.

The facts are that the land on which the trees were standing is situated in the parish of Terrebonne on both sides of Bayou Black, measuring 2 1/2 arpents fronts on each side of the banks of this bayou by 40 in depth on each side.

The line on the west side of the bayou was referred to in the evidence as the line on the right descending bank of that bayou, and that on the east as the left ascending bank.

The defendants owned one-third of this land.

It was formerly owned by Pierre Breaux and his late wife, who died in the year 1890, leaving nine children, issue of their marriage. It was community property. Pierre Breaux and three of his children sold their undivided interest to defendants. The other children owned the other undivided third.

Ernest Breaux, one of the sons of Pierre Breaux, inherited one-eighteenth of the property, and acquired one-eighteenth by purchase from J. Breaux and one-eighteenth by purchase from P. Breaux, and four-sevenths of the undivided one-eighteenth which belonged to the Dumesinil children, who are the grandchildren of Pierre Breaux and his late wife. And thus Ernest Breaux became the owner of the larger portion of the remaining third of the property.

Eva Breaux, one of the children of Pierre Breaux and his late wife, is an interdict, represented by her brother, Jules Breaux, as curator.

It seems that the suit was not tried immediately in the district court. About a year before the trial, but after the suit had been brought, the curator filed a motion to discontinue the case in so far as the interdict he represented was concerned.

This motion was sustained and the case discontinued.

The undercurator made no appearance in the case. No attempt was made to reinstate it.

If the curator declines to permit a suit in the name of the interdict he represents and asks that it be discontinued, the court may grant the application or may leave it to the undercurator to represent the interdict whom the curator refuses to represent in the suit.

If the curator ever authorized the suit (of this there is no conclusive evidence), he had the authority to assume the responsibility, if he chose, of discontinuing it, as it was for him to determine whether he would assume the responsibility of such an act concerning the interdict whom he represented.

We infer that he is under bond, and that he can be held liable in damages if his discontinuance operates to the prejudice of the interdict.

While there is not the least blame to be attached to the firm by whom the suit was brought, as they were informed by good authority, as we gather, that the suit should be brought in the name of the respective plaintiffs, none the less it does not appear that this curator authorized the suit, and therefore he had the right to discontinue it.

The defendants interposed the prescription of 12 months on the ground that the timber was cut down and floated away over 12 months before the suit was brought.

We will in the first place take up the case of Ernest Breaux.

We will say as to him that a plaintiff who charges a defendant with trespass and bad faith should himself have acted in good faith.

This plaintiff was most active in the negotiations and acts which led to the taking away of the trees by defendant, joint owner with the plaintiffs. He, this plaintiff, was not in good faith. He cannot benefit himself by charging bad faith in others who have only accepted his propositions and have taken his representations as true. They acted upon them, and subsequently found that they had been led into error. This plaintiff represented that he was the owner of the undivided third and that he had the authority to dispose of it.

It was a little hasty, to say the least, on the part of defendants in accepting these propositions and representations upon insufficient evidence. But this is scarcely ground upon which this plaintiff can stand in so far as relates to good faith. At his instance, a survey was ordered and a dividing line drawn between lands, consisting of the one-third owned by all the plaintiffs and the two-thirds of the defendants. The line was well defined. It was thoroughly well understood between the plaintiff Ernest Breaux and the defendants.

Some time afterward there was some talk about the line not being correct. It involved a small area. This, we understand, was corrected. In obtaining this correction this plaintiff stands in the position of having affirmed his agreement in regard to the first line, subsequently corrected, as just stated.

It seems that both parties are interested in a partition. They chose a short cut to this partition, which was unquestionably an error; but, this plaintiff being a party, this error cannot avail him to defend himself.

It is well settled that a partition of immovable property must be made in writing.

We do not give to the surveyor's line the effect of a partition. The special agreement, however, between this plaintiff and defendants must,...