State v. Bozeman

• Decision Date: 21 April 1924
• Docket Number: 26476
• Citation: 101 So. 4,156 La. 635
• Court: Louisiana Supreme Court
• Parties: STATE et al. v. BOZEMAN et al

101 So. 4

156 La. 635

STATE et al. v. BOZEMAN et al

No. 26476

Supreme Court of Louisiana

April 21, 1924

Rehearing Denied by Whole Court June 7, 1924

Appeal from First Judicial District Court, Parish of Caddo; T. F Bell, Judge.

Consolidated suits by the State and the city of Shreveport against Thomas L. Bozeman and others. From judgments rendered, all parties appeal.

Affirmed.

A. V Coco, Atty. Gen., B. F. Roberts, City Atty., and Thigpen, Herold, Lee & Cousin, all of Shreveport, for plaintiffs.

W. B. Massey, of Shreveport, for defendants.

OPINION

ROGERS, J.

The state Legislature in the year 1910, by Act No. 31, authorized the register of the land office to sell and convey to the city of Shreveport, with reservation of all mineral rights of the state, the bed of what is known as "Cross Lake," in the parish of Caddo, to be used as a reservoir or storage basin for the purpose of a water supply for said city and its inhabitants. It was provided that on failure on the part of the vendee to utilize the property for waterworks purposes within 10 years from the passage of the act or afterwards, should said vendee ever cease to use it for said purpose, then the property was to revert to the state, subject to the repayment of the purchase price, but without interest.

On May 19, 1914, the formal deed of conveyance was executed, transferring the property to the city of Shreveport for the purpose and under the terms and conditions set forth in the statute.

By Act 149 of 1920 the Legislature in express terms extended the time within which the property should be utilized by the vendee until July 1, 1926.

On October 22, 1923, the state of Louisiana and the city of Shreveport brought 12 suits against as many defendants in the First judicial district court for the parish of Caddo, alleging, in each suit, that the full and entire and perfect title to the bed of Cross Lake was, prior to its transfer from the state of Louisiana to the city of Shreveport, vested in said state, the said lake being on the date of the admission of the state of Louisiana into the Union a navigable body of water; alleging the conveyance by the state to the city of Shreveport pursuant to the provisions of Act 31 of 1910, a certified copy of the act of sale being annexed to each petition; alleging the reservation to the state of the mineral rights in said property; alleging that the defendant is laying some sort of claim, and has caused same to be recorded, to a part of the bed of Cross Lake which would lie, if the lines of the government survey were projected, in (here follows the description of the property in section, township, and range in accordance with the claim of each defendant); also alleging, alternatively, that, if the state did not own the property by reason of its being a navigable lake, then the state did own it under the Swamp Land Grant of 1849.

Plaintiffs prayed for judgment recognizing their title to the bed of Cross Lake, particularly to the property described in each petition; and, in the alternative, that they be recognized as owners as set forth in each petition, and that they be sent into possession as such owners.

Each of the defendants filed an exception of no cause or right of action. Before the exceptions were passed upon plaintiffs filed a supplemental and amended petition in each case. The exceptions of no cause or right of action were thereupon overruled. Each of the defendants then excepted to the juristion of the court. These exceptions were likewise overruled.

With reservation of the exceptions an answer was filed in each case. At the date of the trial on the merits each defendant attempted to file what was termed a supplemental and amended answer, containing a plea of estoppel and a plea to the jurisdiction of the court. The court allowed these documents to be filed so far as the plea to the jurisdiction was concerned, but refused to allow them to be filed so far as the plea of estoppel was concerned. Exceptions were reserved to the ruling.

The cases were consolidated for the purposes of trial, which resulted in a judgment in each case fixing the 172-foot contour line as the dividing line between the shore and the navigable part of the lake; and in so far as all the lands lying above the 172-foot contour line are concerned the demands of plaintiffs were rejected, and, in so far as all parts of the lands lying below the 172-foot contour line are concerned, or in the bed of the navigable lake, the claims of the plaintiffs were sustained. Each defendant filed a motion for a new trial which was overruled. All parties then appealed.

In the brief filed on behalf of the defendants the court below is charged with having erred in the following particulars, viz.:

(1) In overruling the exceptions of no cause or right of action.

(2) In overruling the exception to its jurisdiction.

(3) In trying and passing judgment on the exception to its jurisdiction without notice to defendants, or their attorney of record, to be present at such trial.

(4) In refusing to allow the filing of defendants' supplemental and amended answers in full and especially the plea of estoppel therein set out.

(5) In annulling patents issued by the United States government in this collateral proceeding.

(6) In fixing the contour line of Cross Lake, not having been requested to do so.

(7) In assuming jurisdiction and passing upon the merits of the case when the evidence showed clearly that the same subject-matter was now under consideration and being adjudicated by the United States Land Department.

(8) By not protecting the possession of defendants until the Land Department had rendered a final decision on this subject-matter.

These alleged errors will be considered and disposed of in the order of their statement.

1. The exception of no right or cause of action was correctly overruled. It was leveled at the alleged failure of plaintiffs to set out that any part of Cross Lake lay within the sections, townships, and ranges referred to by plaintiffs, the failure to describe the property with particularity, and the nonconformity of the petitions to articles 172 (section 4) and 173 of the Code of Practice.

Article 172 (section 4) of the Code of Practice reads:

"The petition must contain a clear and concise statement of the object of the demand, as well as of the nature of the title, or the cause of action on which it is founded."

Article 173 of the Code of Practice reads:

"If the plaintiff demand a specific object, he must describe it with certainty in his petition, in such a manner as to leave no doubt as to the object demanded."

It is said that the nature of the title under which the state claims to have been the owner of the property, or the nature of the claim by which it owned it, are not set out, and that the alternative allegation does not set forth by which swamp land grant the state acquired its title.

The petitions do show that the title of the bed of Cross Lake vested in the state of Louisiana because said lake was, on the date of the admission of the state into the Union, a navigable body of water; and, alternatively, it is shown that, if the state did not own the bed of the lake by virtue of its sovereign rights, then it did own said property under the swamp land grant of 1849. This was a compliance with the articles of the Code of Practice.

Plaintiffs aver that if the lines of the government survey had been projected over Cross Lake the bed thereof would lie in the sections, townships, and ranges referred to, and also set forth in each case the land claimed by the defendant in the sections, townships, and ranges, and by reference to the suit of J. A. Bickman and others versus the city of Shreveport, pending in the First judicial district court. A certified copy of the act of sale from the state to the city of Shreveport is annexed to and made part of each petition. This sufficiently identified the property.

If defendants deemed the description as thus set out to be inadequate, their remedy, if any, was by way of an exception of vagueness, and not by way of an exception of no cause or right of action.

2. The plea to the jurisdiction is grounded upon the alleged failure of plaintiffs to show that the property is situated in Caddo parish, or even in the state of Louisiana.

Pretermitting the right of the court to judicially notice that Cross Lake lies within the parish of Caddo, state of Louisiana, we find that a certified copy of the act of sale from the state to the city of Shreveport is annexed to and made part of each petition, and that in said act of sale it is distinctly set forth that the conveyance is made under the authority of Act 31 of 1910. A reference to the title of the act shows that the purpose of its enactment was to authorize the register of the land office "to sell and convey to the city of Shreveport the bed of what is known as Cross Lake, in the parish of Caddo," etc. (Writer's italics.) Besides, it is shown that the claim of the state rests, first, upon its sovereignty, and, alternatively, upon a swamp land grant. Manifestly, such claims could have been urged only upon lands situated within the borders of the state. It is also alleged that the property is the same as claimed by these defendants as plaintiffs in the suit of Bickman and others versus the city of Shreveport, filed in the First judicial court for the parish of Caddo. The plea was properly overruled.

3. We do not find anything in the record showing that the exceptions to the jurisdiction were taken up and heard without notice to defendants. On the contrary, the minutes of the court show that in each of the 12 cases the exceptions were taken up, argued, and overruled on November 14, 1923. Be that as it may, ...