State v. Aucoin

• Decision Date: 17 April 1944
• Docket Number: 36975.
• Citation: 206 La. 787,20 So.2d 136
• Court: Louisiana Supreme Court
• Parties: STATE v. AUCOIN.

20 So.2d 136

206 La. 787

STATE v. AUCOIN.

No. 36975.

Supreme Court of Louisiana

April 17, 1944

Rehearing Denied Nov. 6, 1944.

Jos.F. Blasi, Jr., John P. Dullenty, J. Michael Early, Frederick J. Gisevieus, and John Blasi, all of New Orleans, for appellant.

Eugene Stanley, Atty. Gen., and Herold, Cousin & Herold, of Shreveport, for appellee.

O'NIELL Chief Justice.

This is a suit to establish the boundary between the land which was once the bed of Lake Long, in Lafourche Parish, and the land owned by the defendant on the south side of and adjoining the traverse of the lake.

To that end the purpose of the suit was to locate and mark on the ground the traverse line of the lake according to the official plat and field notes of a survey made by Joseph Gorlinski, United States Deputy Surveyor, in 1857. This survey, according to which the lands on the south side of the lake--including the three fractional sections now owned by Aucoin--were granted to the State of Louisiana by the swampland grant of March 2 1849, was made by Gorlinski under a contract with the United States Land Office dated October 19, 1854, to make a survey of Lake Long, and was approved by the Surveyor General of Louisiana on September 21, 1857, and is the official plat of Township 17 South, Ranges 18 and 19 East, in the General Land Office of the United States and in the State Land Office of Louisiana.

The land owned by Aucoin, the northern boundary of which is the Gorlinski traverse of Lake Long, is described as fractional Sections 56 and 66 (less the NW 1/4 of SW 1/4 and S 1/2 of SW 1/4 of Section 66), and fractional Section 65, in T. 17 S., R. 19 E. Fractional Section 56 is said to have an area of 49.20 acres, fractional Section 66 an area of 111.72, and fractional Section 65 an area of 68.72 acres. These areas are taken from the "Table of Contents" on the margin of the official plat of the Gorlinski survey, according to which the three fractional Sections, together with other lands adjacent to the lake, were conveyed to the State under the swamp land grants of 1849 and 1850 and were conveyed by the State to the Board of Commissioners of the Atchafalaya Basin Levee District. As a matter of fact, the actual area of each of these fractional sections, 56, 66 and 65, greatly exceeds the area stated in the "TAble of Contents", according to Gorlinski's traverse, of Lake Long, which traverse line is the northern of northeastern boundary of the three fractional sections.

The reason for the dispute over the location of the boundary line on the ground--and for the necessity of retracing it--is that the landmarks or monuments that were placed there by Gorlinski to mark his traverse line according to his field notes have become obliterated, and the water in the lake has receded from its original banks because of artificial drainage.

In 1935 the State entered into an oil and gas lease of the land within the traverse of Lake Long, according to the official plat of the Gorlinski survey, and the lease was afterwards acquired by the Fohs Oil Company. In 1936 the Register of the State Land Office, under authority of Act 232 of 1934, employed a surveyor, Harry Shutts, of Lake Charles, to resurvey the traverse of Lake Long as surveyed by Gorlinski in 1857, and to mark the line of the traverse on the ground, where it was originally marked by Gorlinski, according to his field notes. The act of 1934 authorizes the Register of the State Land Office to have surveys or resurveys made in order to re-establish the line or lines of any official survey "where the original monuments have been destroyed or lost or are uncertain." Accordingly the traverse of Lake Long was retraced by the surveyor Shutts according to the Gorlinski field notes, in the latter part of 1936, and the Shutts map and field notes were filed in the State Land Office. The Register of the State Land Office accepted the Shutts survey as being a true and accurate location of the traverse of Lake Long, according to the official plat and field notes of the Gorlinski survey. But Octave Aucoin refused to approve the Shutts survey or location of the Gorlinski traverse of Lake Long, as the boundary line between the land claimed by the State on the north side of the traverse line and the land owned by Aucoin on the south side of the Gorlinski traverse line as located by Shutts.

The State then brought this suit, claiming that the survey made by Shutts under the provisions of Act 232 of 1934 was a correct retracement of the traverse made by Gorlinski in 1857 and should be approved as such.

The State averred in her petition that, before she disposed of any land in T. 17 S., R. 19 E., she owned not only the bed of Lake Long but also all of the lands surrounding and adjoining the lake. The State averred that Lake Long was a navigable lake when Louisiana was admitted into the Union, in 1812, and hence that she owned the bed of the lake by virtue of her sovereignty.

She averred that she owned originally all of the land surrounding and adjoining the lake by virtue of the swamp-land grants of 1849 and 1850, including the tree fractional sections, 56, 66 and 65, now owned by Aucoin, and that it was a matter of no importance to Aucoin, as defendant in this suit, whether Lake Long was or was not a navigable lake in 19812, because if it was not then a navigable lake it was "over flowed land" in the meaning of the swampland grants of 1849 and 1850, conveying to the State all swamp and overflowed lands in the State, not theretofore disposed of by the United States, specifically, the lands in T. 17 S., R. 18 and 19 E., in which townships the lake is located.

The State averred that she had never disposed of any part of the land embraced within the traverse of Lake Long, as surveyed by the United States Deputy Survey-or Joseph Gorlinski in 1857. She averred that the area known as Lake Long, as surveyed by Gorlinski in 1857, was, prior to any conveyance by the State of any land in T. 17 S., R. 19 E., shown and delineated on the official plat on file in the State Land Office, and that all sales or dispositions made by the State of such lands were made with reference to the official plat of survey.

The State averred that none of the section lines of the sections or fractional sections adjacent to Lake Long were surveyed,--on the ground,--the only line of any of the fractional sections that was actually surveyed on the ground being the traverse line of Lake Long, as shown on the official plat of the Gorlinski survey. This averment is verified by the fact that all of the section lines, or fractional section lines, except the fractional section lines which form the traverse of Lake Long, are shown on the official plat as broken lines, as compared with the series of solid lines forming the traverse of Lake Long.

The State averred in her petition that under the Acts of Congress of 1849, 9 Stat. 352, and 1850, 43 U.S.C.A. � 892 et seq., granting to the State of Louisiana all swamp and overflowed lands in the State, she selected as swamp and overflowed land inuring to her, and the Secretary of the Interior approved to the State, all of the sections or fractional sections then belonging to the United States and surrounding and adjoining Lake Long, and that among these sections or fractional sections were the fractional Sections 56, 66 and 65, as shown on the official plat of survey of T. 17 S., R. 19 E.

The State averred that, pursuant to the provisions of Act 97 of 1890, creating the Atchafalaya Basin Levee District, and in accordance with the 11th section of the act, the State Auditor and the Register of the State Land Office executed formal instruments of conveyance, or transfers, to the Board of Commissioner of the Atchafalaya Basin Levee District, of the State's lands surrounding and adjoining Lake Long, including specifically the fractional Section 56, said to contain 49.20 acres, the fractional Section 66 (except the previously-sold S 1/2 of SW 1/4 and NW 1/4 of SW 1/4) said to have an estimated area of 320 acres, and the fractional Section 65, said to contain 68.72 acres, all in T. 17 S., R. 19 E., all as shown by the certified copies of the recorded instruments of conveyance annexed to and made part of the State's petition.

The State averred that Octave Aucoin acquired the fractional Sections 56 and 65, and all but the S 1/2 of SW 1/4 and NW 1/4 of SW 1/4 of fractional Section 66, in T. 17 S., R. 19E., through mesne conveyance from the Board of Commissioners of the Atchafalaya Basin Levee District, having bought the land directly from the Terrebonne Land Company on February 10, 1910.

The State averred that she was, in her sovereign capacity, in possession of the area known as Lake Long, and that her lessee was then and had been for a long time producing oil and gas from the land.

The State averred that, notwithstanding the boundary line between her land and that of Aucoin was shown on the official plat of survey under and by virtue of which Aucoin acquired his title, and notwithstanding his land had an area largely exceeding that which he had bought and paid for, he was disputing the fact that the traverse line surveyed by Gorlinski in 1857, as shown on the official plat, and as retraced by Shutts in 1936, was the true boundary between the land of the State and that of Aucoin.

The State prayed for a judgment fixing and establishing the boundary line as shown on the official plat of survey approved by the Surveyor General on September 21, 1857, as retraced by the Surveyor Shutts under the provisions of Act 232 of 1934, and ordering the line monumented on the ground permanently, as the boundary between the land of the State and the fractional Sections, 56, 66 and 65 in T. 27 S., R. 19 E., belonging to Aucoin.

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