Meyer v. Comegys
| Decision Date | 30 June 1920 |
| Docket Number | 22463 |
| Citation | 86 So. 307,147 La. 851 |
| Court | Louisiana Supreme Court |
| Parties | MEYER v. COMEGYS |
Rehearing Denied October 14, 1920
Appeal from First Judicial District Court, Parish of Caddo; T. F Bell, Judge.
Action by Abe Meyer against J. M. Comegys. From judgment for plaintiff, defendant appeals.
Affirmed.
N. C Blanchard and Blanchard, Goldstein & Walker, all of Shreveport, for appellant.
Joseph H. Levy, of Shreveport, for appellee.
Plaintiff brings this petitory action alleging the ownership of all of lots 7, 8, and 9 of the J. B. Lewis lands, as per map or plat in Conveyance Book V, pages 609 and 610, of the Records of Caddo Parish, and alleging that defendant is in possession of portions of said lots, described as follows: Beginning 119.2 feet south of northeast corner of section 18, township 17 north, range 14 west, running thence south 558.8 feet; thence south 52 degrees, west 1,042.8 feet; thence west 830.3 feet; thence north 54 degrees, east 2,042 feet, to the place of beginning, and containing 16.71 acres of land, more or less -- and prays to be decreed the owner of the said 16.71 acres so described.
Defendant pleads, first, the exception of no cause of action, and for answer avers that he is the owner of lots 5 and 6 of the said J. B. Lewis lands, according to the same plat, and that the said 16.71 acres is a part of these two lots, owned and possessed by defendant. He further pleads equitable estoppel, the prescription of 10 years acquirendi causa, and prays that the demands of plaintiff be rejected.
There was judgment below in favor of plaintiff, decreeing him the owner of the property in dispute, ordering defendant to deliver possession thereof, and reserving plaintiff's right to sue for the occupancy of the premises.
Defendant has appealed.
Statement of Case.
In 1875, J. B. Lewis, then a resident of Caddo parish, was the owner of some 1,532.14 acres of land, situated in said parish a few miles west of the city of Shreveport, and consisting of parts of sections 17, 18, 19, and 20 of township 17 north, range 14 west. Desiring to sell said property to the best advantage, he had a map, or plat, made by a surveyor, one Wm. R. Devoe, and on which the land was divided into lots numbered from 1 to 44, inclusive. On the margin of said plat, the number and acreage (the numbers corresponding to those written upon each lot on the plat) of each and every lot was given under the headings (in columns) "Lot" and "Acreage," none of which contained as much as 100 acres, but most of which consisted of 40 and 20 acre lots, there being only three containing more than 40 acres and seven less than 20 acres, the remainder, other than the 20 and 40 acre tracts, ranging between those figures. There were two tracts bearing the number 33, one containing 25 and the other 40 acres, and another numbered 9 1/2, and making an actual total of 46 lots. The plat gave no measurements to the lines of the several lots, but a general plan of north and south and east and west courses, parallel to the governmental section lines, was followed, except as to those portions bordering upon the line of the Texas & Pacific Railroad, and upon a dirt road which ran through the property toward the Texas line, in which cases the lots were made to stop at those roads, as shown on the plat, none crossing or going beyond in either direction, and producing irregular lots of varying sizes according to appearance and the corresponding acreage shown on the margin.
Lewis then proceeded to sell off the property at different times, and on September 10, 1887, the plaintiff purchased from said Lewis lots 7 to 13, inclusive, 25, 26, and 27, and 29 to 44, inclusive (less lot 9 1/2), described as containing 908.27 acres, more or less, and for which plaintiff paid, according to his deed, $ 2,724.80.
On February 18, 1901, Lewis sold to one J. Riley lots 6, 9 1/2, 18, 19, 20, and 21 "as per map of the J. B. Lewis lands recorded in Conveyance Book V, pages 609 and 610, of the clerk's office of said parish, 195 8/100 acres, more or less," for the price of $ 975.40; and on July 24, 1902, the same vendor sold to the same vendee "lot No. five (5) of section seven (7), township seventeen north, range fourteen (14) west, as per map of J. B. Lewis lands on record in Book V, pages 609 and 610, records of Caddo parish, Louisiana, said lot 5 containing thirty-five and 38/100 acres (35.38) A."
The plat shows the line of the Texas & Pacific Railroad as correctly located, but the dirt road, variously referred to as "Road to Shreveport," "Texas Road," "Shreveport and Greenwood Road," etc., was placed upon the plat by Devoe (beginning at a point about where the south end or apex of the triangular lot 9 1/2 joins the west line of lot 10) some distance north and west of where said road was and is actually located upon the ground, so that it, the said dirt road, then and now runs in a northeasterly course, approximately parallel to and at a distance of about 600 feet south and east of where the line drawn upon the map as the boundary between lots 7, 8, and 9, belonging to plaintiff, and lots 5 and 6, belonging to defendant, would fall. Hence it is this strip of land, amounting to some 16 acres, between the line drawn upon the plat and the dirt road as actually laid out, which is now in contest.
There never was a road along the line indicated on the map, but for more than half a century the dirt road has been traveled and in use over the route approximately where it now runs, and, in recent years has been paved or graveled by the parish of Caddo. If the line shown upon the map is found to be the boundary, the parties will receive almost to the acre the areas called for by their respective deeds; whereas, if the road as it exists is held to govern, plaintiff will lose and defendant will gain just the quantity of land in dispute according to the calls of their respective titles.
The question presented for our determination, therefore, is: Which shall control,the line as shown upon the plat, or the location of the road upon the ground?
The equitable considerations in favor of the respective sides are that, if plaintiff prevails, defendant will be deprived of a frontage upon the road for both of his lots, but will receive all of the acreage called for by the deeds of Riley, his ancestor in title, to lots 5 and 6; if defend...
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