Dufrene v. Bernstein

• Decision Date: 02 May 1938
• Docket Number: 34745
• Citation: 190 La. 66,181 So. 859
• Court: Louisiana Supreme Court
• Parties: DUFRENE v. BERNSTEIN

181 So. 859

190 La. 66

DUFRENE v. BERNSTEIN

No. 34745

Supreme Court of Louisiana

May 2, 1938

Rehearing Denied May 30, 1938

Appeal from Twenty-Fourth Judicial District Court, Parish of Jefferson; L. Robert Rivarde, Judge.

Action by Antoine Luke Dufrene against Eugene Bernstein, to determine a boundary line. From a judgment fixing the boundary, defendant appeals.

Affirmed.

Alfred D. Danziger, Hugh M. Wilkinson, and George M. Leppert, all of New Orleans, for appellant.

John E Fleury, of Gretna, and Porteous, Johnson & Humphrey, of New Orleans, for appellee.

FOURNET Justice. O'NIELL, C. J., did not take part.

OPINION

FOURNET, Justice.

This is an action involving the boundary line between the south half and the north half of a tract of land known as the Temple belonging to plaintiff and defendant, respectively. From a judgment of the lower court fixing the boundary in accordance with the report of the surveyor appointed by the court, the defendant has appealed.

The Temple is a peninsular tract of land situated in the Parish of Jefferson on the Island of Barataria, containing approximately 4,000 acres of land, mainly used for trapping purposes. It is bounded on the north by Lot No. 9 of Section 2, Tp. 16, S. R. 23 E., and narrows down to a point at its southern extremity where Bayou Perot (its western boundary) and Bayou Rigollettes (its eastern boundary) meet and converge. On March 9th, 1923, the Delaware-Louisiana Fur Trapping Company, Inc., which was the owner of the Temple, sold to Antoine Luke Dufrene, plaintiff, by notarial act dated March 9th, 1923, "what is known as the south one-half of * * * the Temple * * *," said to contain 2,000 acres more or less, but there was excepted therefrom the extreme southern portion thereof known as the Little Temple, said to contain 300 acres more or less; and by notarial act dated April 14th, 1932, it sold to Mrs. Laura Serpas Zimmerman several tracts of land, including the remaining portion of the Temple, the pertinent part of the description being as follows: "A certain parcel of land * * * known as part of the 'Temple,' bounded on the north by Lot No. Nine (9), * * * and on the south by the southern half of the land known as the 'Temple,' containing approximately twenty-five hundred (2,500) acres." Under this description, the property was transferred by Mrs. Zimmerman to Jacob Bernstein, by notarial act on May 5, 1932, and by Jacob Bernstein to his brother, Eugene Bernstein, defendant, by notarial act on September 11, 1934.

It is plaintiff's contention that by his purchase he acquired one half of the entire acreage of what is known as the Temple, or 2,000 acres, more or less -- less the acreage of the Little Temple, and that defendant's authors in title, having subsequently acquired from plaintiff's vendor the remaining portion of the Temple, is not entitled to receive more than one half of the acreage as of the date of plaintiff's purchase, regardless of the contents of his (defendant's) deed. On the other hand, it is defendant's contention that by his purchase he acquired the north half of the Temple, the "area to be calculated by drawing a line (north and south) from one end of the island to the other, dividing said line in the exact center and running a subdividing line at right angles to same." In the alternative, he contends that should we conclude that plaintiff acquired one half of the entire acreage of the Temple, that the boundary should be by calculation of one half of the acreage in accordance with the plat of a government survey of the property made by Rightor and McCullom in 1840.

Where parties derive their title from a common author, the one whose title is most ancient in date, under the express provisions of Article 847 of the Revised Civil Code, will prevail and is entitled to the full acreage conveyed to him. Keller v. Shelmire, 42 La.Ann. 323, 7 So. 587; Porche v. Lang, 16 La.Ann. 312; Lilleburg v. Coleman, 1 La.App. 650. In determining boundary lines the law recognizes certain well known guides which are in the order of their importance (1) natural monuments; (2) artificial monuments; (3) distances; (4) courses; and (5) quantity. "But the controlling consideration is the intention of the party or parties." Meyer v. Comegys, 147 La. 851, 86 So. 307, 309; Administrators of Tulane Educational Fund v. Stair, 148 La. 11, 86 So. 595, 596.

The record conclusively shows that plaintiff took immediate possession of the property purchased by him in accordance with his title, the boundary of which had been fixed by a competent surveyor by the name of Blalock who had been employed for that purpose by and with the consent and under the supervision of plaintiff and his vendor. The line was fixed so as to divide the north half and south half of the Temple equally as to acreage and was fixed by staking the distance across the property, due east and west, as shown on the map made at defendant's request by Henry E. Landry, Civil Engineer, and designated thereon as the "division line at time of survey." The boundary line as staked off by Blalock was maintained and recognized by plaintiff's vendor, through its president and manager Mr. Brady, until it sold the other half of the Temple in 1932 and was never disputed by defendants' authors in title nor by defendant until the year 1935 when he caused Landry to make a survey dividing the property in half according to distance across the property north and south and drawing a line through the center thereof running east and west, and sent trappers on the property in dispute.

We therefore conclude that it was plaintiff's intention to purchase, and his vendor to sell, the south half of the Temple according to acreage; that the boundary line between the tract purchased by him and the portion retained by his vendee was fixed by the Blalock survey; and that the defendants' authors in title, having subsequently acquired from plaintiff's vendor the northern and remaining portion of the Temple, must recognize plaintiff's previous acquisitions and established rights. The plaintiff is entitled to have his line established as it formerly stood. Zeringue v. Harang's Administrator, 17 La. 349; Falvy v. Sellers, 166 La. 207, 116 So. 853.

In the instant case there are no natural monuments to be guided by. The artificial monuments placed by Blalock have been obliterated by the elements. Blalock's plat and field notes have not been placed of record and insofar as the record shows they can not be found. We must therefore fix the "quantity" or acreage of the property conveyed to the plaintiff in accordance with the intention of the parties in order to establish the boundary of the two properties.

S. A. Calongne, surveyor, appointed by the court, made such a survey, fixing the boundary line east and west at points "C-3 . . . C-3" as shown on his plat, but defendant objected to the survey on the grounds (1) that he made his survey when both defendant and his attorney were out of the city and it was a physical impossibility for them to be present; and (2) that he did not go upon the land and make the survey, but, by the use of a government survey, made by Rightor and McCullom in 1840, and the Barataria Quadrangle Survey of 1932 of the property, he calculated the acreage and boundary line for the year 1923 in accordance with the average proportional loss by erosion between 1840 and 1932.

A review of the record shows that the surveyor gave written notice to the defendant in...