Perry v. Board of Com'rs of Caddo Levee Dist

• Decision Date: 17 February 1913
• Docket Number: 19,451
• Citation: 132 La. 415,61 So. 511
• Parties: PERRY v. BOARD OF COM'RS OF CADDO LEVEE DIST
• Court: Louisiana Supreme Court

61 So. 511

132 La. 415

PERRY v. BOARD OF COM'RS OF CADDO LEVEE DIST

No. 19,451

Supreme Court of Louisiana

February 17, 1913

Rehearing Denied March 17, 1913

SYLLABUS

(Syllabus by the Court.)

Where plaintiff brings a jactitation suit, defendant may deny his possession and ask for judgment on his title, in the event such possession be established, without committing himself to a petitory action, save in so far as concerns the land the possession of which in plaintiff is established.

There is no reason why the rule that possession of part of a tract of land, with title to the whole, is sufficient for the purposes of a possessory action for the recovery of the whole should not be applied in a jactitation suit, where plaintiff sues for the slander of his title to land acquired from the United States as accessory or appurtenant to that specifically described in his patent, when he has the required possession of the land so described.

A patent to land, one of the boundaries of which is shown by the official plat of survey to be the shore of a navigable lake, may include strips or tongues of land which extend into the lake.

Where a patent describes the land conveyed as S. E. 1/4 of S.W. 1/4 of a certain section, containing, say, 39 acres 'according to the official plat of survey,' and from such plat it appears that neither the S. E. 1/4 nor the S.W. 1/4 of the quarter section in question was surveyed, but that there were surveyed 39 acres of land lying in the fractional S. 1/2 of such quarter section, partly in what, if surveyed, would be the S. E. 1/4, and partly in what, if surveyed, would be the S.W. 1/4, and that said tract is bounded on its west side by the shore of a navigable lake, the plat controls the description; and the patentee is entitled to all the land that he finds in such fractional S. 1/2, unless it be that some of it is separated from the boundary so established by navigable water, or unless the excess of acreage that he would thus acquire, or some other fact, would justify the belief that there was gross error or fraud in the survey. Surveys made under the authority of the United States stop at navigable waters, however, and a title predicated upon such survey, showing the banks of a navigable stream as a boundary, cannot be projected across such stream; the more particularly as, under our law, the state owns the land below high-water mark and that constituting the bed of the stream, subject to the rights of the riparian proprietor with respect to the accretion.

John B. Files, of Shreveport, for appellant.

D. T. Land and Thigpen & Herold, all of Shreveport, for appellee.

Statement of the Case.

OPINION

MONROE, J.

Plaintiff alleges that she acquired from the United States the fractional S. 1/2 of the S.W. 1/4 of section 3, township 20, range 16, but that it was erroneously described as the S. E. 1/4 of the S.W. 1/4 of said section, and the survey, field notes, and plat returned by the surveyor erroneously showed that it contained 39 acres, whereas the tract acquired by her contains a larger acreage; for, as shown by said plat of survey, it borders on Ferry Lake and its tributary waters, navigable streams of the United States, and said waterways were and are the boundary; and she is entitled to take all the land in the fractional S. 1/2 of the S.W. 1/4 of said section aforementioned. She makes the plat of survey part of her petition, and further alleges that she owns and is in possession of all the land in said S. 1/2 of the S.W. 1/4 of said section 3 to the high-water boundary of Ferry Lake and Jeems Bayou and its tributaries; and that said land has not been formed since the survey of said fractional quarter section by the government surveyor. She further alleges, in the alternative, that, if the court should hold that that part of the land in the S. 1/2 of the S.W. 1/4 of said section, to high-water boundary, in excess of 39 acres, did not pass to her, 'but was land formed since the said survey,' then and in that event, it was so formed by a permanent recession, dereliction, or accretion by the waters of Ferry Lake and its tributaries, and she is entitled to it as riparian proprietor. She alleges that defendant is slandering her title to said land and is asserting title thereto in itself; and that it is necessary to a proper decision of the matter that an actual survey of the land should be made. She prays that defendant be cited and --

'for judgment recognizing and quieting the title and possession of your petitioner to said land, and ordering the slander of her title and possession, as aforesaid, to cease; that a surveyor be appointed to survey said land; and that a commission issue to the parish surveyor directing him to make a survey of same and due report and return thereof make, according to law, with map, field notes, etc., showing high-water boundary of the land, indicating the meander line or shore of the lake or bayou at high-water mark, including the accretion along the bayou, if any, which is a navigable stream.'

The order appointing the surveyor and directing him to make the survey and report as prayed for appears to have been made ex parte on the filing of the petition, after which defendant answered, denying plaintiff's alleged possession, setting up possession in itself, alleging that 'said land was granted to it by the state of Louisiana by Act 74 of 1892 and Act 160 of 1900, * * * and * * * has been duly certified and transferred,' and praying 'that plaintiff's demand be rejected, and, in the event plaintiff is in the actual and lawful possession of said land, that * * * plaintiff's demands be rejected, and it be deemed the owner of said lands.' It appears from the evidence that in 1896 plaintiff made original homestead entry No. 6,630 for 'the S. E. 1/4 of the S.W. 1/4 of Sec. 3, T. 20 N., R. 16 W., La. Mer., containing 39 acres'; and that on May 27, 1902, she received a patent from the United States for the 'southeast quarter of the southwest quarter of section three, in township twenty north, of range sixteen west, of Louisiana meridian, in Louisiana, containing thirty-nine acres, according to the official plat of survey of the said land, returned to the General Land Office by the surveyor general' (a rough copy of which plat of survey, or so much of it as is here required, will be attached to this opinion as 'Sketch 1'). In 1901 John A. Russell made a homestead entry for the W. 1/2 of the S.W. 1/4 of said section 3, together with other tracts, and in 1905 a final homestead certificate was issued therefor to his heirs. Later in the same year, however, the Commissioner of the General Land Office, by office letter to the register and receiver at Natchitoches, held that Russell's entry conflicted with that of plaintiff, and in January, 1906, the Russell entry was canceled, on the ground that:

'There was no such subdivision, according to the official plat, as W. 1/2 of S.W. 1/4 of Sec. 3, and that the entire fractional S. 1/2 of fractional S.W. 1/4 was included in the entry and patent in her [plaintiff's] name.'

The ruling so made will be better understood by comparing the language of plaintiff's patent with the plat (Sketch 1) to which it refers; for it will thus be seen that, whilst the patent describes the land as the S. E. 1/4 of the S. E. 1/4 of section 3, containing 39 acres 'according to the official plat of survey,' etc., the plat itself shows, not a survey of the S. E. 1/4 of the S.W. 1/4, as such, but 39 acres of land, lying in the fractional S. 1/2 of the S.W. 1/4, partly in what, if surveyed, would be the S. E. 1/4, and partly in what, if surveyed, would be the S.W. 1/4, of S.W. 1/4, and bounded on the west (where the S.W. 1/4...