City of New Orleans v. Joseph Rathborne Land Co.

• Decision Date: 29 June 1945
• Docket Number: 37609.
• Citation: 209 La. 93,24 So.2d 275
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. JOSEPH RATHBORNE LAND CO., Inc.

24 So.2d 275

209 La. 93

CITY OF NEW ORLEANS v. JOSEPH RATHBORNE LAND CO., Inc.

No. 37609.

Supreme Court of Louisiana

June 29, 1945

Rehearing Denied Nov. 5, 1945.

Appeal from Civil District Court, Parish of Orleans F. J. Stich, judge.

Dart & Dart, of New Orleans, for defendant and appellant.

Francis P. Burns, L. L. Dubourg, and James W. Hopkins, all of New Orleans, for plaintiff-appellee.

HAWTHORNE Justice.

Plaintiff the City of New Orleans, on its own behalf and as trustee instituted this suit praying to be recognized as the true and lawful owner of Lots 1, 2, 3, 4, and 6 and the East 1/2 of the Northwest 1/4 of Section 32, Township 13 South, Range 18 East, Parish of St. John the Baptist. Defendant, Joseph Rathborne Land Company, Inc., answered the suit and prayed that the demands of plaintiff be rejected and that it be recognized as the true and lawful owner of the lands in question, and in the alternative pleaded prescriptions of 10 and 30 years acquirendi causa.

Under date of February 15, 1855, the State of Louisiana patented to S. Roman land described in said patent as follows: 'Lot No. 3 of Sec. 32 Township 13 S. Range 18 E. 88.25 [acres] S. Eastern District', the State having acquired said land under the Swamp Land Act of Congress approved March 2, 1849, 9 Stat. 352, and September 28, 1850, 43 U.S.C.A. � 982 et seq. By mesne conveyances this property was acquired by the Joseph Rathborne Land Company, Inc., defendant in this suit.

At the time this patent was issued, there was only one township plat of the township in question, namely, a plat examined and approved April 9, 1831, by A. F. Rightor, deputy surveyor, and re-examined and approved July 9, 1832, by Gideon Fritz, surveyor of public land, which plat is referred to in this litigation as the 'Evans survey or plat'. On this plat Lot 3 is found to be the West Fractional 1/2 of Section 32, Township 13 South, Range 18 East, bounded on the west by the east or lower line of a Complete Spanish Grant (known as the 'Sosthene Roman Grant'), on the south by the meander of Lac des Allemands, on the east by the north-and-south center section line of Section 32, and on the north by the north section line of Section 32; the western boundary of said lot being 50 chains, and the north boundary of Section 32 being 71 chains, according to this map or plat, shown below.

(Image Omitted)

There is another government plat of this township, approved September 20, 1859, which recites and sets forth the various surveys previously shown on the Evans plat, and states also that Earl Cranston, deputy surveyor, surveyed in June, 1838, a claim of Sosthene Roman, and under the caption 'Resurveys' shows other surveys made. This township plat, commonly referred to as the 'Hauke survey or plat', shows that, instead of there being a body of water in the South 1/2 of Section 32, as indicated by the meander line of Lac des Allemands on the Evans plat, the whole of Section 32 consists of swamp lands. This township plat subdivided the entire Section 32 into various lots. In so subdividing, Lot 3 as shown on the Evans plat is not shown on the Hauke plat, but instead the West 1/2 of Section 32 (which on the Evans township plat, approved in 1832, was shown as Lot 3) is divided into Lots 1, 2, 3, 4, 5, and 6 and the East 1/2 of the Northwest Fractional 1/4.

On November 12, 1894, the State of Louisiana conveyed to the LaFourche Basin Levee Board Lots 1, 2, 3, 4, and 6 and the East 1/2 of the Northwest Fractional 1/4. By mesne conveyances from the levee board, plaintiff, the City of New Orleans, individually and as trustee, derives its title to these lots.

The patent to defendant's author in title having been issued by the State on February 15, 1855, according to the Evans township plat approved in 1832, and plaintiff's author in title having acquired its title also from the State on November 12, 1894, plaintiff admits defendant's title to Lot 3, the property conveyed by the patent, whatever that lot may be under the Evans plat.

There is no dispute between the parties as to the north and east boundaries of said lot (Lot 3 of the Evans plat), and defendant concedes that its ownership does not extend beyond the Evans meander of Lac des Allemands on the south, which boundary is accepted by plaintiff also. The main issue in the case is where should the west boundary of Lot 3 of the Evans plat, as patented to Roman, be placed, or, in other words, how should Lot 3 be surveyed on the ground from the description given in the patent, which is in turn governed by the Evans township plat approved in 1832.

As per stipulation in the record between the parties, it is admitted that the lower or east line of the Sosthene Roman Grant is as determined and located on the ground by survey made by two civil engineers, Messrs. Lovell and Landry, appointed by the respective parties, which survey was made on July 2, 1943, and in the record we find a map or plat of said survey, together with the proces verbal, signed by these engineers on October 1, 1943.

Plaintiff contends that such distances, courses, and acreage as are shown on the Evans plat should govern, and that the west boundary of Lot 3 should be fixed, according to these courses, distances, and acreage, at the lower or eastern line of the Sosthene Roman Grant as this line is shown on the Evans plat, and not at the actual lower or eastern boundary of that grant on the ground, as determined by the survey of Lovell and Landry.

Defendant contends that, according to the Evans plat, Lot 3 should be bounded on the north by the north line of Section 32, on the east by the center section line of Section 32, on the south by the Evans meander of Lac des Allemands, and on the west by the lower or east line of the Complete Spanish Grant (Sosthene Roman Grant, Section 34) as such line has been definitely established to exist on the ground by the survey referred to in the stipulation or agreement of the parties hereto.

The lower court accepted plaintiff's contention and rendered judgment accordingly, decreeing plaintiff to be the owner of the property as prayed for, less and except a tract containing 105.92 acres, which was decreed to be the property conveyed by the patent to Roman, namely, Lot 3 on the Evans plat, and now owned by defendant, Joseph Rathborne Land Company, Inc.

From this judgment defendant has appealed.

The land in controversy is a strip approximately 10.71 chains wide within Section 32 north of the Evans meander of Lac des Allemands, being situated between the lower or eastern line of the Sosthene Roman Grant (Section 34) as fixed on the ground and the west line of Lot 3 as found by the lower court. Lot 3 as found by the trial judge and Section 34 were both patented to Sosthene Roman and are now owned by defendant. In other words, the strip in question, awarded to plaintiff by the lower court, is located between two pieces of property owned by defendant, Joseph Rathborne Land Company, Inc.

Counsel for these litigants call our attention to a number of errors in the Evans survey and plat, among these being that Evans did not survey the Sostene Roman Grant, Section 34; that said survey incorrectly shows Lac des Allemands to the south of Section 32, and that the Sosthene Roman Grant was placed on the Evans township plat evidently by some one in the Land Office of the United States who had charge of making subdivisions of the sections which had been surveyed by Evans. For these reasons plaintiff contends that the lower or east line of the Sosthene Roman Grant, as shown on the Evans plat, 'is nonexistent or imaginary, and is not correctly located'.

The lower court in rendering its judgment evidently accepted the testimony of a civil engineer called by plaintiff in this case, who located Lot 3 on the ground according to such courses and distances as are shown on the Evans plat. The engineer took the figure of 71 chains, being the distance from the northeast corner of Section 32 to the east boundary of the Roman Grant as shown on the Evans plat, deducted therefrom 40 chains (although this figure is not shown or given on the plat), and ran the north boundary of Lot 3 a distance of 31 chains from the center section line. He next ran the north-and-south center section line as the east boundary of the lot. Then he ran the Evans meander of Lac des Allemands, which is the admitted south boundary of Lot 3, and thereafter, in order to connect the north boundary at its western terminus with the western terminus on the meander, from the point 31 chains west of the north-and-south center section line of Section 32 he ran a line south 21~ east of the Evans meander of Lac des Allemands, said line being run parallel to the lower or eastern line on the ground of the Sosthene Roman Grant, and being the west boundary of Lot 3 as found by the trial judge.

The Evans plat shows that the north boundary of Township 13 South, Range 18 East, was surveyed by William H. Cobb, deputy surveyor, in the winter of 1829, part of the west boundary by I. R. Sharkey, deputy surveyor, in the same year, and the balance by Thomas P. Evans, deputy surveyor, in the winter of 1830. The field notes of Evans, which are in the record, show conclusively that he did not survey the Sosthene Roman Grant, and it is thus evident that the location on the plat of this Complete Spanish Grant, identified as Section 34, was done in the Land Office of the United States.

Since the Sosthene Roman or Complete Spanish Grant, identified as Section 34, was not surveyed by Evans, it naturally follows that he could not and did not place on said map or plat the distance of 71 chains appearing thereon from the northeast corner of Section 32 to the Complete Spanish Grant, or that of 50 chains...