Carter v. Moore, 50684

• Citation: 258 La. 921,248 So.2d 813
• Decision Date: 04 May 1971
• Docket Number: No. 50684,50684
• Parties: Orlando B. CARTER et al., Plaintiffs-Appellants-Respondents, v. Ellen Bryan MOORE, Register of State Land Office, State of Louisiana et al., Defendants-Appellees-Relators.
• Court: Louisiana Supreme Court

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248 So.2d 813 258 La. 921 Orlando B. CARTER et al., Plaintiffs-Appellants-Respondents,
v.
Ellen Bryan MOORE, Register of State Land Office, State of
Louisiana et al., Defendants-Appellees-Relators. No. 50684. Supreme Court of Louisiana. May 4, 1971.
Rehearing Denied June 7, 1971.

[258 La. 923] Adam G. Nunez, Lake Charles, for plaintiffs-appellants-respondents.

Jack P. F. Gremillion, Atty. Gen., Edward M. Carmouche, A. J. Bonfanti, John L. Madden, Asst. Attys. Gen., Charles Romano, Sp. Asst. Atty. Gen., for defendants-appellees.

TATE, Justice.

The issue in this suit is whether state officials may be compelled by mandamus to issue a patent with an ambiguous description. The claim arises because of a clerical error at the time of the issuance of an original patent in 1881, since corrected. We hold that Act 62 of 1912 (La.R.S. 9:5661), preventing annulment of patents in certain instances, does not here apply so as to require the re-issuance of an original patent, since corrected, which contained an ambiguous or void description.

The heirs and successors in title to Vileor Theriot file this mandamus suit against the Register of State Lands and the Governor

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of Louisiana. The plaintiffs seek to compel the issuance of a new corrective patent recognizing them as owners of a certain governmental half-section. The trial court dismissed the suit. The court of appeal reversed. 234 So.2d 823 (La.App. 1 Cir., 1970). The proceeding is before[258 La. 924] us upon writ of review granted the defendant state officials. 256 La. 613, 237 So.2d 396 (1970).

The plaintiff's claim is based upon the issuance in 1881 to Theriot, their ancestor in title, of a state patent to certain lands, including the 'fl (fractional) S2 Sec. 21'. (If Section 21 were a normal 640-acre governmental division, the south half would be situated entirely in Grand Lake, which is a navigable body of water, normally inalienable. Miami Corporation v. State, 1936, 186 La. 784, 173 So. 315.)

In 1962, at the behest of one of the plaintiffs a new patent was issued 'in correction of' the 1881 patent--and this substituted land described in the 'Fractional North Half' of the section (instead of in the 'fractional south half'). The intent of the present suit, filed in 1963, is to void this 1962 correction.

The court of appeal granted plaintiffs the relief requested. It declared void the 1962 patent issued in correction of the 1881 one. It held the state was barred from making any change in the description of the 1881 patent by Act 62 of 1912 (La.R.S. 9:5661). This enactment prohibits the State, after a specified period, from annulling previously issued patents. See California Company v. Price, 225 La. 706, 74 So.2d 1 (1954).

We granted certiorari primarily because we felt that the majority of the court of [258 La. 925] appeal had incorrectly found the 1912 act and Price applicable. ¹

The uncontradicted facts show the following:

The 1851 official government survey of the township ² showed certain 'fractional sections', 'fractional half-sections' and 'fractional quarters' on the shores of Grand Lake. ³ These included 'Fractional Section 21', consisting of 45 acres of swamp lands.

In 1881, Theriot (the plaintiffs' ancestor) formally applied for 330 acres of sea marsh lands in the township. These included 'fl (fractional) Sec. 21', described as containing 45 acres. The quantities shown for each of the other fractional divisions applied for likewise corresponded with the government survey, as did the 330-acre total of the land applied for.

Pursuant to this application, Theriot was issued on June 30, 1881 a patent to 330 acres in the township in question. These were described by governmental survey [258 La. 926] designation and as containing 330 acres 'according to the official plat of the survey of said lands.' Each of the fractional divisions was shown just as applied for, Except that through clerical error the 'fl sec. 21' applied for was shown on the patent as the 'fl S2 sec 21.'

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Despite this clerical error, the unmistakable intent was to issue a patent to the governmental division shown by the official survey as 'Fractional Section 21' (i.e., not any fractional south half thereof) and as containing 45 acres. This surveyed section was contiguous to the other fractional sections patented, it was so described in the application for the patent, and the acreage of the other fractional divisions patented totalled 285 according to the official plat (so that, adding 45 acres for Section 21 lands, it totalled the 330 acres described as patented).

So far as the record reflects, this clerical error was not discovered until 1962. Then one of the co-owners visited the state land office and noticed that the Section[258 La. 927] 21 description of the patent referred (or so he and the staff thought) to an unsurveyed portion of Grand Lake. He secured the issuance of a patent issued in correction of the earlier 1881 one, now showing the Section 21 land patented as in the 'North Half'. The obvious intent was to show the land patented as on the shore of Grand Lake, pursuant to the intent of the original application, rather than out in the bed of it. ⁴

In 1963, the plaintiffs filed this mandamus suit. The specific prayer is for an order compelling issuance of a new corrective patent recognizing them as owners of 'the South half (S 1/2) of Section 21, Township 13 South, Range 4 West.' (We will hereinafter omit township and range identification of Section 21.)

Initially, we must observe there is no warrant whatsoever for the plaintiffs to receive a patent to the entire 'South Half' of Section 21. At most, their claim is to receive a patent to the 'fractional south half', if indeed they are entitled to have perpetuated the clerical error of the 1881 patent.

However, they are not entitled even to this latter relief. As will be seen, such original description is ambiguous, if not [258 La. 928] void. The defendant officials are not required to reinstate it.

The only governmental survey subdivision pertaining to the area at issue is 'Fractional Section 21', containing the 45 acres of overflow lands adjacent to Grand Lake. A government survey Creates, not merely identifies, the township sections and the boundaries thereof. Cox v. Hart, 260 U.S. 427, 43 S.Ct. 154, 67 L.Ed. 332 (1922); United States v. Morrison, 240 U.S. 192, 36 S.Ct. 326, 60 L.Ed. 599 (1916); Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68 (1895); State v. Aucoin, 206 La. 787, 20 So.2d 136, 142--143 (1944); Union Producing Company v. Placid Oil Co., 178 So.2d 392 (La.App.1st Cir. 1965), cert. denied 248 La. 447, 179 So.2d 432 (1965).

A 'fractional section' has a recognized and specific meaning. It signifies that, in the official survey, the exterior boundary lines do not within them contain the normal 640-acre area because a portion of the section has been cut off by some obstruction, such as a navigable body of water or overlapping prior survey--that the government surveyor was prevented from making a regular section by some such obstruction. Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988 (1895); Gazzam v. Lessee of [258 La. 929] Phillips, 20 How. 372, 15 L.Ed. 958 (1958); State v. Aucoin, 206 La. 787, 20 So.2d 136, 142--143 (1944); Gilmore v. Lyon Lumber Co., 159 La. 18, 105 So. 85 (1925); Patton on Titles, Section 116 (2d ed. 1957); Black's Law Dictionary, verbo 'Fractional', p. 786 (4th ed. 1951); 17 Words & Phrases, verbo 'Fractional', 'Fractional Section', pp. 684--685 (1958 ed.).

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Therefore, with regard to the original 1881 patent, the description of a certain area as the 'fractional south half of Section 21' was at least ambiguous. The only governmental survey subdivision ever created was 'Fractional Section 21'; no official survey has created any 'south half' of this 45-acre section, let alone any 'fractional south half.' ⁵

In claiming the south half of Section 21 (which they contend consists of 320 acres out in Grand Lake), the plaintiffs contend that such governmental half-section can be ascertained by extending the lines of Fractional Section 21 and completing the section so as to include the normal 640 acres. [258 La. 930] They rely on Realty Operators v. State Mineral Board, 202 La. 398, 12 So.2d 198 (1942) and State v. Bozeman, 156 La. 635, 101 So. 4 (1924).

The decisions relied upon are not apposite to the present issue. In Realty Operators, the patentees received title to swamplands unambiguously described (the area containing in fact 640 acres, per the patent's description) as full regular sections, in which was situated a small lake. The court specifically differentiated the government survey there in question from that involved here and in McDade v. Bossier Levee Board, 109 La. 625, 33 So. 628 (1902), where the official plat of survey shows the lake bed and fractional sections and discloses an express intent to patent only the fractional sections on the shore. See 12 So.2d 202. Bozeman simply referred to a description of Cross Lake in terms of such imaginary government sections, in a conveyance from state to city, in holding that a petition by state and city for recognition of their ownership of the Lake stated a cause of action. ⁶

[258 La. 931] Thus, in light of these factual and legal conclusions, the precise issue before us is this: Where an original patent had contained an erroneous and ambiguous description, and this had subsequently been corrected at the instance of a successor to the patentee, does mandamus now lie to compel state officials to issue a new corrective patent reinstating the original ambiguous (and erroneous) description?

Relief by mandamus is available to compel performance by a public officer 'of a ministerial duty required by law.' La. CCP Art. 3863. The plaintiffs insist that the defendant officers are under such a ministerial duty. They contend that the extrajudicial correction, in 1962, of the 1881 patent had the effect of...