Roussel v. Railways Realty Co.
| Decision Date | 17 March 1913 |
| Docket Number | 19,498 |
| Court | Louisiana Supreme Court |
| Parties | ROUSSEL et al. v. RAILWAYS REALTY CO. In re RAILWAYS REALTY CO. et al |
OPINION
On Rehearing.
The primordial title dates back to the days of the Spanish Colonies. The land in dispute is situated near Spanish Fort. The first grantee was Jean Lavergne (under a Spanish grant), who died in the year 1823, leaving children who resided at a distance from this city. They knew very little of the property and gave it no concern. The government went into possession of the property and built a fort, which it afterward abandoned.
The property, after it had been abandoned by the government, was granted by the United States government to Harvey Elkins.
The heirs of Lavergne brought suit on their grant in the early forties, and recovered the property from the heirs of the late Harvey Elkins, grantee of the government. The Lavergne heirs, it was decided, had complete title to the land over which the United States government had erroneously sought to exercise dominion.
At first, the land measured only 120 feet in one direction and 80 feet in another. Surveyors surveyed it under the title and extended the dimensions, which have not been questioned since, although, we take it, not included in the grant.
The suit of the Lavergne Heirs v. Elkins' Heirs is reported in 17 La. 221. The decision in that case was for plaintiff.
In the years 1882 and 1883, the property was assessed in the name of L. Rankin, P. L. Blanchard, Joseph Cockyane, and John Nixon. They were the record owners at that time and remained owners for a number of years.
Whether the original grantee was Elkins or Lavergne is of no moment -- it belonged to the persons just above mentioned. It was decided in the opinion heretofore handed down to whom the land belonged when it was assessed. That question is now at rest, i.e., that the persons just above named were the owners.
The facts are correctly stated in our opinion heretofore handed down. They have the approval of learned counsel for the defendant who have reproduced the decision as part of their brief. We will not take further time in reproducing these facts. The opinion mentions the names of the owners when the assessment was made in 1882 and 1883; also, in 1885 when the property was adjudicated to the state. That is all-sufficient for the purpose of this decision. The error heretofore found was that the assessment was of property in squares 1582, 1583, 1602, 1605, 1607, and 1608; that there was want of precision in the description; and that the assessment was therefore illegal. The first two were imaginary squares. The property assessed was correctly bounded by Mexico, Genois, Passage, First, Fish, Lake, and Esplanade streets. The parties named in the tax deed owned no other property than that described. The lots were all given in nearly all of the different surveys and the proceedings as well. While it is true that it was not possible to locate lot 3, for instance, in imaginary square 1582, it was possible to locate 3 and the other lots of the owner within the boundaries as shown on the plats. In several cases boundaries not as definite were held sufficient.
In Vannetta v. Busbey, 131 La. 681, 60 So. 76, the sections in which the land was situated were different. The description in the deed was different from the description of the property in possession of the purchaser, and yet the court held that the description was sufficient.
The most serious objection to defendants' claim is that the land does not belong to defendants; that they have no title.
We will copy freely from the testimony of witnesses for the defendants, as it has an important bearing upon this point. It shows that the defendants had no title.
One of the witnesses, a distinguished member of the bar, was quite familiar with these titles and with the facts connected with the property. He states:
"The object of building this fence was this (referring to a fence which was put up on the property in the year 1907): When I examined the title to the property in 1896, I discovered that there was no title to anything except the old Spanish Fort property, as shown by the Celles' plan, except by possession." (Italics ours.)
The Spanish Fort property did not include the property in contest. The title to the Fort property did not include the lands which were sold at tax sale as before stated. We think it is a well-settled fact.
Now as to possession, upon which defendant relies to establish title by prescription: It did not ripen into ownership. We have not found the date from which ownership began, or that the defendant had a 30 years' possession of other than the Spanish Fort property.
Another witness, who was the president and organizer of the New Orleans, Spanish Fort & Lake Railway Company, testified:
"That, as a matter of fact, he did not at any time claim any property west of First and Lake street."
The whole of his testimony, which is lengthy, shows that he, while president of the company, never considered the property claimed by plaintiffs as belonging to the company, nor did he consider it as being in possession of defendant's author in title.
Two other witnesses have testified to the same effect.
The third witness, Mr. Robert C. Cage, a watchman employed by the New Orleans Spanish Fort & Lake Railway Company, testified that he never saw a fence on the place before the fence placed thereon in the year 1907. He never saw any one in possession of the property anterior to that time.
There was never a continuous, uninterrupted possession. Revised Civil Code, art. 3500.
Prescription is restricted within just limits. Prescription of 30 years acquired without title extends only to that which has been possessed by the persons pleading. Civil Code, art. 3503.
There has been no possession by the defendant of the land in contest. Finding no title in defendant, it does not occur to us that the defendant is in a position to successfully urge that plaintiff had no title; that the act under which the plaintiff holds is not legal.
In the year 1908, plaintiff brought suit as the alleged owner of the property against the taxpayers before named. Under the law, he had a curator ad hoc appointed and obtained a judgment of confirmation of title in which the property was thoroughly identified and a full description given. The proceedings were regularly conducted. The curator ad hoc represented the owners, whose whereabouts were unknown. The court had jurisdiction. The law upon the subject is plain, as interpreted in several decisions cited infra. We think that the judgment is entitled to effect. We refer to Roussel v. Nixon et al., No. 86,935, Civil District Court. The judgment remained on the docket unquestioned all these years. No attempt to appeal or to question the validity of the judgment has even been made. Now, as to the defendant: It has no standing in court.
The defendant has no right to this property unless title is produced.
Squares 1582 and 1583, mentioned as squares in which the land is situated, afford no ground for defense. Whatever error there may have been in inserting these squares in the assessment can be of no avail. The description was sufficient to identify the property, and the question to which this description gives rise is to be judged in the light of the following decisions: Shelly v. Friedrichs, 117 La. 679, 42 So. 218; Doyle v. Negrotto, 124 La. 100, 49 So. 992; Weber v. Martinez, 125 La. 663, 51 So. 679. In re Perrault's Estate, 128 La. 453, 54 So. 939, is particularly pertinent. Moreover, we have already stated that the judgment obtained against the former owners represented by a curator ad hoc corrected the error.
Besides, if it is, as the late Mr. Pilie testified, it is hardly possible to hold that 1582 and 1583, existing only on the plan, have the effect of confusing descriptions to the extent of giving grounds for annulling title at this time. Spanish Fort proper at one time may have been thought to embrace land which was really not within its limits. There may have been irregular and indefinite possession exercised, without anything showing the date it commenced. The owner of Spanish Fort owned the Micas title, but that did not embrace the land in question, and the possession claimed beyond the line of Spanish Fort is not sufficiently proven to hold that the owners of Spanish Fort had become by possession the owners of the land now in controversy.
For reasons stated, it is ordered, adjudged, and decreed that our judgment heretofore handed down is avoided, annulled, and reversed. It is now ordered, adjudged, and decreed that the judgment of the Court of Appeal is affirmed. It is further ordered, adjudged, and decreed that defendants pay the costs of this court, Court of Appeal, and of the district court.
ADDENDUM TO CHIEF JUSTICE BREAUX'S OPINION.
His Honor, JOHN ST. PAUL, rendered the opinion and decree of the court as follows:
In their brief for rehearing counsel says:
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