Broussard v. Coleman

• Decision Date: 11 December 1985
• Docket Number: No. 84-938,84-938
• Parties: Ronney L. BROUSSARD, et ux., Plaintiffs-Appellants, v. Danny Wayne COLEMAN, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 1016

479 So.2d 1016

Ronney L. BROUSSARD, et ux., Plaintiffs-Appellants, v. Danny Wayne COLEMAN, Defendant-Appellee.

No. 84-938.

Court of Appeal of Louisiana,

Third Circuit.

Dec. 11, 1985.

Dan E. Melichar, Alexandria, for plaintiffs-appellants.

Robert L. Kennedy and Thomas G. Wilson, Colfax, for defendant-appellee.

Before FORET, YELVERTON and KING, JJ.

YELVERTON, Judge.

The plaintiffs, Ronney Broussard and his wife, sued the defendant, Danny Coleman, for a declaratory judgment to determine their boundary, and for damages for a trespass. From an adverse judgment determining their eastern boundary to be a certain creek running north to south instead of another creek or drain running east to west, plaintiffs' contended boundary, and dismissing their trespass claim, the plaintiffs appeal. We affirm.

The facts are relatively simple and not in dispute. The property of both the plaintiffs and the defendant can be traced back to a common ancestor in title by the name of John Coleman. John Coleman owned a 40-acre tract of land described as the Northwest Quarter of the Southeast Quarter of Section 25, Township 7 North, Range 1 West, in Grant Parish. In 1943 Coleman sold 10 acres, more or less, to Edgar Vallery, from whom plaintiffs derive their title. In 1946 Coleman sold the remaining land to Andrew Coleman from whom defendant derives his title.

The plaintiffs' chain of title consists of three transactions. The 1943 sale from Coleman to Vallery describes the property as the land "lying North and Northwest of a certain creek that runs across said forty acre tract..." In 1957 Vallery sold this property, the description of which was a mere reference to the 1943 sale, to John L. Broussard, Jr. In 1982 the heirs of John L. Broussard, Jr. sold the land to the plaintiffs. This act of sale made reference to the 1943 deed and described the property as lying "North of the Creek."

The defendant's chain of title from John Coleman also consists of three transactions. In 1946 John Coleman sold the 40 acre section, less 10 acres, to Andrew Coleman. In 1971 Andrew Coleman sold the section to Jack Coleman less the 10 acres, more or less, as described in the 1943 sale from John Coleman to Edgar Vallery. In 1977 the defendant, Danny Coleman, acquired this property from Jack Coleman.

The instruments of sale refer to a certain creek as the boundary between the two adjacent parcels. The dispute in this case arose because there are two "creeks" that enter the property near the northeast corner. One creek comes down into the property from the north and enters it crossing the north boundary line of the section. The second "creek" enters the property from the east and merges with the other creek to flow as one across the section to the west. The triangular piece of land (approximately two acres) between the two creeks in the northeast corner of the section is the property in dispute.

The plaintiffs' declaratory judgment action contended that the creek which runs from the east is the correct boundary. The defendant, on the other hand, contends that the creek which enters the property from the north is the boundary line and that the other creek is merely a seasonal drain. The defendant pleaded alternatively that he had acquired ownership of the disputed property through acquisitive prescription of 10 or 30 years by his ancestor in title.

The trial date was May 1, 1984. At the beginning of the trial, the plaintiffs attempted to introduce into evidence the deposition of Edgar Vallery. The defendant objected, and the trial court refused to permit the introduction of the deposition, and also denied the plaintiffs' request to have the record left open or grant a continuance for the taking of Mr. Vallery's testimony. The trial proceeded and, after considering the various deeds and the testimony of the witnesses, the trial judge determined that the creek running from the north to the south and thence westerly was the one referred to in the sale instruments, and that the disputed tract belonged to the defendant.

On appeal the plaintiffs raise two issues: 1) Whether the trial court erred in finding the deposition inadmissible, and in the alternative whether the trial court erred in refusing to continue the trial or leave the record open for the availability of that witness, and 2) whether the trial court erred in determining the boundary to be the creek running north to south and thence westerly.

Regarding the first issue, the appellant argues that the deposition of Mr. Vallery should have been admitted into evidence, because the notice for the deposition indicated it was being taken for all purposes, and because Mr. Vallery was too ill to testify in open court.

The evidence as to this issue reveals that the deposition was taken for the purpose of discovery. The parties did not stipulate that the deposition could be used at the trial in lieu of the witness's testimony. It is true that La.-C.C.P. art. 1450 permits the use of a deposition if a witness is not able to attend trial because of illness. However, the plaintiffs offered no evidence to establish as a fact that Mr. Vallery was too ill to testify. The attorney's unsworn statement to the court that he believed Vallery was ill was not evidence. The notice of taking Mr. Vallery's deposition was filed on March 20, 1984, by the plaintiffs. On that same date the attorneys for both parties signed and filed in the record a pretrial order. The plaintiffs did not list Mr. Vallery's name as a potential witness on this order. Plaintiffs also did not subpoena the witness to testify. Plaintiffs' counsel told the court that Mr. Vallery could not have attended anyway since he could not drive. Based on these events it is apparent that plaintiffs never planned to call Vallery as a witness. Under these facts we find the trial court did not err in finding that the plaintiffs failed to establish a basis for the introduction of Mr. Vallery's deposition. See ...