Sharpless v. Adkins

• Decision Date: 27 April 1945
• Docket Number: 6828.
• Citation: 22 So.2d 692
• Court: Court of Appeal of Louisiana — District of US
• Parties: SHARPLESS v. ADKINS.

22 So.2d 692

SHARPLESS v. ADKINS.

No. 6828.

Court of Appeals of Louisiana, Second Circuit

April 27, 1945

Rehearing Denied May 31, 1945.

Certiorari Denied July 17, 1945.

Truett L. Scarborough, of Ruston, for appellant.

W T. Holloway, of Jonesboro, for appellee.

HARDY, Judge.

This is a suit to fix a boundary between contiguous tracts of land located in Jackson Parish, Louisiana, owned respectively by plaintiff and defendant. Petition alleges that the two estates belonging to plaintiff and defendant are situated in the same 40 acres, are adjacent and contiguous, and that the boundaries have never been established judicially or otherwise; that a dispute existed as to the location of the boundary between the said tracts, and, accordingly, plaintiff prayed the Court to order the making of a survey and for judgment fixing the boundaries.

A surveyor was duly appointed by the Court, and, after trial, there was judgment rejecting plaintiff's demands. A new trial being granted, the district Court finally entered judgment in favor of plaintiff and against the defendant, from which judgment defendant appealed to this Court. Finding that the requirements of the Civil Code with reference to the fixing of boundaries had not been complied with, we remanded the case for further proceedings in conformity with the provisions of law. Opinion rendered December 2, 1943, No 6678 on the docket of this Court. 16 So.2d 556.

In compliance with the opinion of this Court, the case was retried, the proces verbal of the serveyor appointed by the Court was filed, and the surveyor was sworn and examined as a witness. Judgment was then rendered in favor of plaintiff, fixing a boundary between the respective properties of plaintiff and defendant, from which judgment defendant has again appealed.

The facts developed on trial of the case show that by deed of date November 25, 1916, J. M. L. Allen conveyed to W. H. Pipes a tract of land described as being 'Twenty-four acres (24) more or less, off of East side of Nerthwest 1/4 of Southeast 1/4, East of public road, in Section 14, Tp. 17, R. 2 West.' The merchantable pine timber was reserved to the vendor in said deed, but this reservation does not affect the case.

By the same description, the tract was subsequently conveyed on October 18, 1921, by W. H. Pipes to J. H. Frasier, and on November 28, 1923, by J. H. Frasier to C. L. Allen. By deed of date April 5, 1933, C. L. Allen conveyed the property to J. H. Frasier, but the description in said conveyance read:

'24 acres off of East side of NW 1/4 of SE 1/4, Section 14, Tp. 17, N. R. 2 West.'

This description was also used in an instrument of conveyance dated November 18, 1936, by which Levy Adkins, the defendant herein, acquired the tract from J. H. Frasier and the heirs of his deceased wife.

On April 3, 1941, the heirs of J. H. Frasier and wife, both deceased, executed a deed purporting to correct the description of the instrument last above referred to, in which the tract was described as:

'Twenty-four (24) acres, more or less, off of East side of NW 1/4 of SE 1/4 and being all of said forty east of Public Road, Section 14, Tp. 17 N., R. 2 West, containing 24 acres, more or less.'

On date of September 26, 1936, and in several instruments subsequent to said date, Garland Sharpless, son of plaintiff, purchased from a number of the heirs of James M. L. and Mrs. Annie Allen, both deceased, their respective interests in and to a tract of land described in said instrument as being:

'The West 16 acres of the NW 1/4 of SE 1/4 in Section 14, Tp. 17 N., R. 2 West,' together with other tracts not involved in this suit.

By conveyances dated October 19, 1939, and December 13, 1940, this plaintiff, Mrs. Annie Sharpless, acquired from her son and other parties, who were heirs of her deceased father and mother, the tract of land described as:

'The West 16 acres of the NW 1/4 of SE 1/4 of Section 14, Tp. 17 N., R. 2 West.'

Plaintiff filed this suit in July, 1941, and in paragraph 4 of her petition made the following allegation, which we deem pertinent to an understanding of the issues involved:

'4. That your petitioner further shows and avers that the said two estates, situated in the same forty acres are adjacent and contiguous; that the said boundaries have never been established judicially or otherwise; that from the time the 24 acres was sold off of the said forty acres, which was formerly owned by the same vendor and through which both parties claim title, the said road has been altered and changed, one change being made some several years after the 24 acres was sold; that the present road was constructed several years after the said deed; that the owners are in a dispute as to the boundary between the two estates, your petitioner contending the same extends to an old road and the defendant contending that the same extends to the new road, or the one that was constructed some several years after the 24 acres were and conveyed by the original owner; that they are in a dispute with reference to the same and are unable to agree.'

The proces verbal of the surveyor appointed by the district Court recites that he was unable to fix the boundary between the respective tracts of plaintiff and defendant by reference to the title papers, and, accordingly, he set up three different conclusions that might be reached from reference to the deeds, leaving to the Court the actual determination of the boundary. Briefly stated, the three boundaries, as marked by the surveyor, were:

1. A straight line running due North and South across the 40 acre tract of land, dividing a tract of 24 acres on the East from a tract of 16 acres on the West.

2. A boundary running along the East side of what is known and referred to as the 'old road', dividing the 40 acre tract into two parcels of 25.6 acres on the East and 12.9 acres on the West of said road, and

3. A boundary running along the East side of what is known and referred to as the 'new road', dividing the 40 acre tract into two parcels of 29 acres on the East and 8.5 acres on the West.

The discrepancies in quantity are accounted for in the detailed description of the boundaries given by the surveyor, there being a total of 2.5 acres of land taken up by the roadway.

The learned Judge of the district Court adopted the second alternative advanced by the surveyor, and, in judgment, fixed the same as the boundary between the tracts of plaintiff and defendant.

In connection with the report embodied in the proces verbal of the surveyor he filed a plat, to which it is necessary to make reference in this opinion. This plat shows a road running from approximately the southeast corner of the 40-acre tract, in a direction west by a little north, almost to the west line of the 40 acres, thence turning north for about 500 feet, and thence bearing northeast 220 feet, and thence approximately due north to the north line of the 40-acre tract. At a point on the road some 850 feet from the southeast corner of the 40-acre tract, there is shown another road forking north and connecting with the road at the point where the first described road turns north from its easterly course. This second road, known and referred to as the 'old road', is simply a short cut which would eliminate the curved route of the 'new road' farther to the east and make a more direct north and south connection.

Between the 'old road' cutoff and the curved route of the 'new road', there is a tract of 3.4 acres, and it is this tract that is unquestionably the crux of the dispute. It is true that plaintiff's counsel makes the effort in brief to explain that plaintiff in her petition did not intend to assert solely a claim to the 3.4 acre tract between the roads, but, indeed, went beyound this disputed sector and claimed such acreage as would make up to her 16 acres on the west side of the 40-acre tract, leaving the 24 acres on the east side to defendant. We do not think this position of counsel is tenable, in view of the specific allegation in paragraph 4 of plaintiff's petition, above quoted, which not only recites in so many words that petitioner claims the boundary to extend to the 'old road' and that defendant contends that it should be fixed on the 'new road', but, further, emphasizes this contention by alleging that the 'said road has been altered and changed', which allegation must obviously be regarded as an attempt to eliminate the possible application of Article 828 of the Civil Code, to which reference will later be made in detail. It is evident that the district Judge was also of the opinion that plaintiff's claim to a boundary dividing the 40 acres into tracts of 24 and 16 acres respectively was not established.

For this reason, and further in consideration of the overwhelming mass of evidence in the record that eliminates any reasonable application of a boundary on the apportionment of exact acreage, we shall not refer to this phase, but will confine ourselves to a discussion of the remaining possibilities which would fix the boundaries either in accordance with the course of the 'old road' or of the 'new road'.

Plaintiff has attempted to prove that the reference 'east of public road', appearing in the deed from her father, J. M. L Allen to W. H. Pipes, November 25, 1916, was intended to designate the 'old road', and, in support of this position, introduced the testimony of herself and five other witnesses, disinterested parties. The effort was made, through the testimony of these witnesses, to establish the fact that the 'new road' was not regarded as the public road at the time of the deed from Allen to Pipes, and that the 3.4 acre tract lying between the old and new roads had been cultivated and used by J. M. L. Allen and...