Girard v. Donlon
| Decision Date | 30 January 1961 |
| Docket Number | No. 32,32 |
| Citation | 127 So.2d 761 |
| Parties | M. Eloi GIRARD, Plaintiff-Appellee, v. Lucille DONLON et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Pugh & Boudreaux, by Nicholls Pugh, Jr., Lafayette, for defendants-appellants.
Davidson, Meaux, Onebane & Donohoe, by Lawrence E. Donohoe, Jr., and J. J. Davidson, Jr., Lafayette, for plaintiff-appellee.
Before TATE, FRUGE , and HOOD, JJ.
By this suit the plaintiff Girard seeks to have the boundary judicially fixed between a tract owned by him and one owned by the defendant, Mrs. Lucille Donlon Hamner; and he impleads as co-defendant her predecessor in title, Mr. Mike Donlon, so that the latter may assert any rights he has in the matter, if any. By reconventional demand the co-defendant Donlon claims ownership of an undivided one-half interest in the plaintiff's tract. The defendants have appealed from a judgment fixing the boundary and rejecting the reconventional demand.
Both parties accept as correct the boundary fixed by the court, but the defendant-appellant, Mrs. Lucille Donlon Hamner, contends that the plaintiff-appellee is not entitled to have the boundary between their properties judicially fixed because, previous to the filing of this suit, an oral agreement had been reached as to the boundary, so that at the time suit was filed there was no dispute concerning it.
Although a fence was built along an agreed line prior to the suit, the testimony in the trial court shows that several attempts were made to compose a signed agreement as to such boundary, but that no agreement was proposed in writing which was acceptable to both parties. We therefore agree with the conclusion of the trial judge that in fact no agreement to establish a boundary was reached and that, since no boundary between the tracts had ever been established, the appellee was entitled to obtain by this suit the judicial fixing of a boundary between the tracts. Articles 823, 824, 833, Louisiana Civil Code, LSA.
Our learned trial brother assessed the costs of the boundary action against the defendant Lucille Donlon Hamner only.
The boundary finally fixed by the court was approximately upon the line whereupon a fence had been built without objection by the parties, and the plaintiff-appellee therefore argues that all of the costs were correctly assessed against such defendant, because the plaintiff prior to suit had allegedly offered to settle the boundary upon the basis of the fence line, which would thus have avoided the expense of litigation. Dufrene v. Bernstein, 190 La. 66, 181 So. 859; James v. LeBlanc, La.App. 1 Cir., 95 So.2d 175; Miller v. Welsh, La.App.Orl., 66 So.2d 25.
However, as previously noted, both parties refused to sign proposed agreements establishing the fence line as the common boundary. Furthermore, by the demand of this suit the plaintiff actually sought a boundary somewhat further east than the boundary finally fixed by the court, seeking to enclose approximately a quarteracre of the defendant Mrs. Hamner's land beyond the court-fixed boundary.
Under these circumstances, we think the costs of the boundary action (namely, the costs of the survey, $283, and the surveyor's expert witness fee, $25) should be taxed equally against the plaintiff-appellee and the defendant-appellant, Mrs. Lucille Donlon Hamner. "Where there is a bona fide boundary dispute and a judicial determination of the boundary is the only possible means for a final settlement of the dispute, cost of the proceedings should be borne equally by the parties," Thomas v. Louisiana Long Leaf Lbr. Co., La.App. 2 Cir., 113 So.2d 108, 113. See also: LSA-Civil Code, Art. 663; Tircuit v. Pelanne, 14 La.Ann. 215; Randazzo v. Lucas, La.App.Orl., 106 So.2d 490. The decree will be amended accordingly.
The defendant-appellant, Mr. Mike Donlon, by reconventional demands seeks to be declared the owner of an undivided one-half interest in a three-acre tract, hereinafter referred to as the 'borrow pit' property, held by the plaintiff-appellee. (The fixing of the boundary between this tract and the adjacent land owned by the other defendant, Mrs. Lucille Donlon Hamner, is the principal object of plaintiff-appellee's suit, see part I of this opinion.) After trial, the trial court dismissed the reconventional demand.
On September 4, 1943, by authentic act of sale the plaintiff-appellee acquired this borrow pit property from the appellant Donlon, and also from Bendel, a former co-owner since deceased, whose heirs are not parties to this suit. By his reconventional demand, Donlon seeks the annullment or rescission of this transfer insofar as his own one-half interest is concerned. The authentic act evidencing the transfer declared that the vendors sold and transferred their rights in the borrow pit property and also contained the following pertinent provisions:
'This sale is made without warranty of title of any character whatsoever without liability to return the purchase price, vendors not even warranting that they have any right, title or interest in the said property; the purpose being to transfer such rights as they may have therein, if any they have. * * *
'This sale is made and accepted for and in consideration of the sum of Ten Dollars and other valuable considerations, cash in hand paid, for which acquittance is hereby granted.'
Essentially, the defendant Donlon's causes of action are based upon his contention that, although conveyed by authentic act of cash sale without mention of such consideration or condition, the borrow pit property was actually donated or sold by him to the plaintiff Girard without any consideration except Girard's agreement that he would excavate it for a barge and boat slip, which the transferors or their assigns would have the perpetual privilege of using and which would thus substantially enhance the value of their own adjacent property; and that Donlon is entitled to have the transfer of the borrow pit property annulled as of right or rescinded because of Girard's non-fulfillment of this essential condition or agreed-upon consideration.
Under LSA-Civil Code, Art. 2236, 'The authentic act is full proof of the...
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