Prather v. Valien

• Decision Date: 04 February 1976
• Docket Number: No. 5306,5306
• Citation: 327 So.2d 130
• Parties: George W. PRATHER, Plaintiff-Appellee, v. John VALIEN, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 130

327 So.2d 130

George W. PRATHER, Plaintiff-Appellee, v. John VALIEN, Defendant-Appellant.

No. 5306.

Court of Appeal of Louisiana, Third Circuit.

Feb. 4, 1976.

Rehearing Denied March 4, 1976.

Writ Refused April 27, 1976.

White & Pitre by Joshua Pitre, Opelousas, for defendant-appellant.

Davidson, Meaux, Onebane & Donohoe by Robert L. Cabes, Lafayette, for plaintiff-appellee.

Before HOOD, GUIDRY and PETERS, JJ.

GUIDRY, Judge.

This is a boundary action. The plaintiff-appellee, Dr. George W. Prather, instituted this suit against John Valien, defendant-appellant, to have the boundary between their adjacent tracts judicially established. The tracts of land involved are located near the City of Opelousas in the Parish of St. Landry. Following institution of suit the Court appointed Morgan J. Goudeau Jr., a civil engineer and surveyor, to conduct a survey of both tracts and to report thereon. The defendant answered and filed exceptions of no cause or right of action and exceptions of prescription of 10 and 20 years under R.C.C. Articles 853 and 3478. The trial court overruled the exception of no cause or right of action and referred the exceptions of prescription to the merits.

Although, Morgan J. Goudeau Jr. was the court-appointed surveyor, the actual survey and report to the court was made by one of his associates, a Mr. William H. Jarrell Jr. Neither plaintiff nor defendant objected to the substitution of Mr. Jarrell for Mr. Goudeau.

After trial on the merits the lower court found for the plaintiff and against the defendant, overruling the pleas of prescription of 10 and 20 years under R.C.C. Article 853, as well as the exception of 10 year prescription under Article 3478 and fixed the boundary between the properties of the parties at its ideal location, i.e., the line represented on the official survey of Mr. Jarrell between the points 'C' and 'D', copy of which is attached to this opinion. We affirm.

Plaintiff and defendant trace their record title to the tracts of land respectively owned by them to a common ancestor, Ed. Lucius Stelly Sr.

By deed dated July 21, 1943 Ed. Lucius Stelly Sr. Acquired from Eli Landry a tract of land said to contain 18.32 acres. This 18.32 acre tract was surveyed previous to Mr. Stelly's acquisition by one R. M. Hollier as evidenced by a plat of survey dated December 9, 1929. Following his acquisition of this tract and by deed dated December 19, 1946 Stelly conveyed to John Valien, defendant-appellant, the following described property:

A certain tract or parcel of land situated about two miles southeast of the City of Opelousas, Parish of St. Landry, containing eight and no/100 (8.00) acres, together with all buildings and improvements located thereon, located in sections 105 and 106, township six south, range four east (T--6--S, R--4--E), and being further designated as being taken out of the northern part of a larger irregular tract of land fully described as property of Eli Landry on a plat of survey annexed to and made part of original entry no. 186556 of record in Conveyance Book Z--6 page 25 in the following manner, towit: By commencing at a point which point is formed by intersection of the western boundary line of the larger irregular tract and the southern boundary line of the tract owned by John Valien and proceeding in a southerly direction a distance of five hundred twenty-five and no/100 (525 ) feet, thence in an easternly direction a distance of six hundred seventy-five and no/100 (675 ) feet, thence in a northernly direction a distance of five hundred twenty-five feet (525 ), thence in a westernly direction a distance of two hundred feet (200 ), back to the point of beginning and being bounded on the north by other property of John Valien, on the south by property of vendor, east by property of Mary Newman and west by property of Alpha Mouton and Herman Myles. A sketch of the property herein conveyed is annexed to this sale and the portion outlined in red represents the tract sold in this transaction. Being the same property or part of the same property that vendor herein acquired from Eli Landry on July 23, 1943 under original entry No. 217382 in Conveyance Book 0--7 page 153 of the files of the recorder's office of St. Landry Parish, Louisiana.

After the sale to Valien and on July 1, 1947 the balance of the tract originally acquired from Eli Landry was sold to Elizabeth Stelly Collins under the following description:

A certain tract of land, irregular in shape together with all the buildings and improvements thereon, and all the rights, ways and appurtenances thereunto belonging, situated about two miles southeast of the City of Opelousas, in the Parish of St. Landry, La., containing Ten & 32/100 (10.32) acres, more or less, situated in Sections One Hundred, five (105) and One Hundred Six (106), Township Six (6) South, Range Four (4) East, and being the southern ten & 32/100 acres, more or less, of the southern irregular portion of the property shown in the plat of survey made by Gerald L. Walter, surveyor, which plat is annexed to and made a part of the deed from Eli Landry to John Valien, dated November 13, 1939, and recorded as No. 186556 in Conv. Book Z--6 at page 25 of the Recorder's Office of the Parish of St. Landry of St. Landry, La.

This is a portion of the eighteen & 32/100 (18.32) acres, more or less, acquired by Ed. Lucius Stelly, Sr., from Eli Landry on July 21, 1943, by deed recorded as No. 217382 in Conv. Book 0--7 at page 153 of said Recorder's Office, and has present boundaries as follows: North by a tract of eight (8) acres (being the northern eight (8) acres of the aforesaid acquisition of Ed. Lucius Stelly, Sr.) sold by Ed. Lucius Stelly, Sr. to John Valien, the present owner on December 19, 1946, by deed recorded as No. 240676 in Conv. Book I--8 at page 499 of said Recorder's Office; South, Southwest and West by property of Herman Myles; East by property formerly belonging to Mary Newman, but now owned by Lucius Thomas.

Title to this latter tract then passed under the above description from Mrs. Collins to Cleveland Castille, to Rigby Owen, and finally to George W. Prather, plaintiff-appellee. The sale to Dr. Prather is dated December 23, 1950.

After his purchase in 1946, defendant erected a fence between his property and the remainder of the property of his vendor situated south of his acquisition. At the time Mr. Valien erected his fence Mr. and Mrs. Napoleon Collins were living on the other tract owned by Mr. Stelly. As previously indicated subsequent to the erection of the fence Mrs. Collins acquired the tract, which the plaintiff now owns.

Mr. Jarrell, the court appointed surveyor, testified that Ed. Lucius Stelly's original tract contains only 14.7951 acres which is 3.5249 short of the described 18.32 acres. The sale from Stelly to the defendant, Valien, describes the tract sold as having dimensions of 525 on the East and West boundary, 675 on the South and 200 on the North boundary. Accordingly Mr. Jarrell determined that based on these dimensions, Mr. Valien would have 4.7151 acres in his tract (See attached plat, indicated as area 'A'). Using the fence as the southern boundary (indicated as line 'A--B' on plat) of defendant's property the surveyor indicated he would be in possession of 9.076 acres. Under this latter determination ('A--B' as the boundary line) Dr. Prather would be in possession of 5.7185 acres, which is 4.6015 acres short of the plaintiff's described area of 10.32 acres. Jarrell testified that he could not account for the difference in acreage found by his survey and that found by Mr. Hollier, since marks used by him on three (3) sides of the property corresponded almost perfectly to the previous survey, however, Mr. Jarrell added that it was not unusual to find the acreage call at variance with the dimensions of the property given.

Defendant contends that he is entitled to the eight acres recited in his deed. We agree with the trial court's finding he is not entitled to eight (8) acres in that the property conveyed to Valien was described by metes and bounds, and such dimensions control over an acreage designation. (Basco v. Moore-head, 164 So.2d 599 (La.App .3rd Cir. 1964). It is well settled in our jurisprudence that the identification of land by acreage or quantity is the lowest ranking of all enumerated standards in describing property. Blevins v. Manufacturing...