John T. Moore Planting Co., Ltd. v. Morgan's Louisiana & T. R. & S. S. Co

• Decision Date: 08 June 1908
• Docket Number: 17,026
• Citation: 126 La. 840,53 So. 22
• Parties: JOHN T. MOORE PLANTING CO., Limited, v. MORGAN'S LOUISIANA & T. R. & S. S. CO
• Court: Louisiana Supreme Court

53 So. 22

126 La. 840

JOHN T. MOORE PLANTING CO., Limited, v. MORGAN'S LOUISIANA & T. R. & S. S. CO

No. 17,026

Supreme Court of Louisiana

June 8, 1908

On Rehearing, March 28, 1910. Rehearing Considered.

Appeal from Twentieth Judicial District Court, Parish of Terrebonne W. P. Martin, Judge.

Action by the John T. Moore Planting Company, Limited, against Morgan's Louisiana & Texas Railroad & Steamship Company. From the judgment, both parties appeal. Reversed in part.

Suthon & Wurzlow and Hall & Monroe, for plaintiff.

J. P Blair and Beattie & Beattie, for defendant.

OPINION

LAND J.

This is an action of jactitation or slander of title brought by the plaintiff as owner of the Waubun plantation against the defendant in actual possession of the portions thereof covered by its tracks and buildings.

Plaintiff alleged its actual possession of all of the remainder of said plantation, and that the defendant had slandered its title by claiming ownership of certain portions thereof beyond the grounds actually covered by the tracks and buildings of the railroad company.

Plaintiff prayed for judgment quieting it in its possession and ownership of the lands described in the petition, and for $ 5,000 as damages for slander of title, and for judgment restraining the defendant from slandering said title and from trespassing upon said lands, save in the exercise of the servitude it now enjoys on the lands actually occupied by its buildings and tracks, and from expropriating all or any part thereof until such time as the defendant may establish its right to claim the ownership of any part of said lands.

For answer, the defendant, after pleading the general issue, averred its ownership in fee simple of all the lands admitted to be in its possession, and pleaded the prescription of 2, 10 and 30 years acquirendi causa.

As to the other lands described in the petition, defendant further answering especially denied that plaintiff was in the possession of the same, and averred that, plaintiff being out of possession was without legal right to maintain this suit for slander of title.

Defendant prayed for judgment decreeing it to be the owner in fee simple of the lands admitted to be in its possession, and rejecting plaintiff's demand as to all the other lands described in the petition, with a reservation of its rights as to the same.

After a lengthy trial, the trial judge took the case under advisement, and handed down a carefully prepared opinion covering the many issues of fact and of law involved in the controversy, and rendered judgment in favor of the defendant as to the lands actually covered by its right of way, building, etc., and in favor of the plaintiff as to the other lands in controversy.

Both parties have appealed from the judgment. Six volumes of pleadings and evidence, and numerous exhibits, attest the zeal and industry of counsel.

Plaintiff traces its title back through mesne conveyances to Mrs. Celeste Tanner, who purchased the plantation in the year 1845. The defendant's title rests (1) on a grant from the same author by authentic act executed in 1854, and recorded in the parish of Lafourche, but never recorded in the parish of Terrebonne; and (2) on the prescription of 10 years, based on recorded titles, and on the prescription of 30 years, based on possession alone.

The grant was filed in evidence subject to objections, but was eliminated in the decision of the court because not recorded. The deed, however, is in the record for what it is worth, and if not a title as against the plaintiff, throws light on the origin, nature, and extent of the defendant's possession. The deed referred to was a grant of right of way and of certain parcels of land to the New Orleans, Opelousas & Great Western Railroad Company. The right of way proper was restricted to not more than a double main track, and to land actually taken up or covered by the roadway and ditches. The use of the land donated was limited to railroad purposes, such as depots and other necessary structures.

The New Orleans, Opelousas & Great Western Railroad Company entered under the grant and constructed its line through said plantation. Mrs. Tanner sold the plantation in 1868. Plaintiff acquired the Tanner title in 1898 through mesne conveyance.

In 1869, by decree of the United States Circuit Court for the district of Louisiana, the marshal advertised and sold at public auction the whole completed grand division of the New Orleans, Opelousas & Great Western Railroad between Algiers and Berwick, then in full operation, together with rights of way, roadbeds of main tracks and branches, also all depots and lands specially appertaining to them, and also all the buildings, wharves, and all the movable property belonging to said railroad. There was also advertised and sold several lots or parcels of ground, two of which are involved in this litigation and are the same set forth in the Tanner grant. All of said property was adjudicated and conveyed to Charles Morgan, who in 1878 deeded the same, with other property, to the Morgan's Louisiana & Texas Railroad & Steamship Company, defendant herein.

The Tanner grant of 1854 was never recorded in the parish of Terrebonne. The railroad, however, having entered upon the land and constructed its roadbed, tracks, switches, and buildings thereon under the terms of the grant, was in lawful possession when Mrs. Tanner sold the plantation in 1868. Under the Tanner grant, as already mentioned, the right of way was restricted to the land actually taken up by the roadway and ditches, and the width was limited to what was necessary to construct and maintain a double track. The railroad company obligated itself to construct two large ditches or canals for drainage purposes, and was released from all liability for damages for removing earth from a certain piece of land on the north side of the track. It follows that the parties contemplated that the ditches necessary for the work of construction should mark the limits of the right of way. It may be assumed that the right of way through the plantation was intended to be uniform, as is the custom in railway construction. The grant also included two certain described lots or tracts of land on and adjacent to the Bayou Terrebonne, upon which to erect and maintain the necessary depots, buildings, and structures that might be required in the transaction of the business of the company to that point. The use of these lots was restricted to railroad purposes unless with the consent of the owner of the plantation. When this grant was made the roadbed had been constructed, in part, at least, through the plantation.

The right of way was not defined in any of the subsequent titles under which the defendant claims, and its extent is one of the important issues in the case.

It is impracticable to set forth all the evidence bearing on this issue or to condense it within a reasonable compass. There is no force in the contention of the plaintiff that the right of way should be restricted to the base of the embankments, or in that of the defendant that it should embrace drainage canals and excavations of many feet in width. A railroad right of way includes the space necessary to be used in the construction of not only the roadbed, but the berm and ditch whenever necessary.

The trial judge evidently reached the conclusion that the defendant was entitled to a right of way 100 feet in width from the east line of the Wauban plantation to Bayou Terrebonne, but on some portions of the line he restricted or...