State v. Buck

• Decision Date: 01 April 1894
• Docket Number: 11,166
• Citation: 46 La.Ann. 656,15 So. 531
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. CHARLES C. BUCK AND THE PLAQUEMINES TROPICAL FRUIT COMPANY

15 So. 531

46 La.Ann. 656

STATE OF LOUISIANA v. CHARLES C. BUCK AND THE PLAQUEMINES TROPICAL FRUIT COMPANY

No. 11,166

Supreme Court of Louisiana

April 1, 1894

Rehearing refused.

APPEAL from the Civil District Court for the Parish of Orleans Monroe, J.

M. J Cunningham, Attorney General, for State, Appellee.

Henry J. Leovy, of Counsel.

Gurley & Mellen, Attorneys, for Defendants and Appellants.

E Howard McCaleb, Attorney, for Warrantor.

Thos. J. Semmes and Duane E. Fox on Application for Rehearing.

WATKINS J. PARLANGE, J., takes no part.

OPINION

WATKINS, J.

Claiming as owner, certain lands situated in the parish of Plaquemines, on the west side of the Mississippi river, being the whole of township twenty-one (21) south, ranges thirty (30) and thirty-one (31) east, containing more than thirty thousand acres -- same being what is commonly denominated as swamp and overflowed lands -- plaintiff's averment is, that she acquired same, in its entirety, except the front lots which were previously sold off by the United States government, and the sixteenth sections which were dedicated to the public schools, "and also excepting a tract of land between said lots, and what is known as 'West Bay,' as per plan in the State Land Office at Baton Rouge, said excepted tract being one thousand three hundred and twenty acres, which, it is alleged, was sold by the State of Louisiana in September, 1869, by patent No. 526, to C. C. Packard, but which, though not claimed in this suit, petitioner does not admit was sold."

Petitioner further alleges that she acquired said lands by grant and donation from the United States government by act of Congress approved September 28, 1850, entitled an act to enable the State of Arkansas and other States to drain the swamp lands within their limits; and other laws on the same subject.

The further allegation is made that Charles C. Buck, of Baltimore, Maryland -- but, at the time of filing suit, in New Orleans -- and the Plaquemines Tropical Fruit Company, said to have been incorporated under and by virtue of the laws of New Jersey, of which Charles C. Buck is president, have, themselves and through their agents and officers, maliciously and without probable cause denied petitioner's claim of ownership, and have slandered its title thereto, by setting up title in themselves, as derived from Robert M. White, who claims to have acquired same through C. C. Packard, who obtained therefor patent No. 526 from the State of Louisiana in 1869, "whereas said patent, to the knowledge of said defendants, shows no such sale or transfer."

That they are still continuing to slander and maliciously defame petitioner's title to said land, and have recently stated and represented that said company was the owner of same, and that plaintiff possessed no title to any part of it; and that such statements had recently been made to different parties in the city of New Orleans -- parties who had applied to the land officers of the government for its purchase.

That upon this allegation of slander of the petitioner's title, claim is made for one thousand eight hundred dollars damages.

Further allegation is made that the defendant, Buck, has been and now is trespassing on said lands, cutting and removing timber therefrom, digging ditches, and otherwise destroying portions of said property and greatly impairing its value, thus causing petitioner great and irreparable injury, making an injunction necessary for the protection of her rights.

Plaintiff's prayer is for citation to and service on each of the two defendants, commanding them to appear and answer her demands in the Civil District Court, in the parish of Orleans; that a writ of injunction issue restraining and prohibiting them from slandering her title, and from trespassing upon her lands, or taking, or keeping any part of same in their possession, "and from interfering in any manner with the possession of the petitioner and (her) full exercise of ownership over (the whole) of said lands;" and that the defendants be condemned to pay the sum of one thousand eight hundred dollars as damages for the slander of her title.

The defendant, Buck, excepted in limine that plaintiff's petition discloses no cause of action; and, pending trial and final disposition of same, both defendants joined in a further exception to the jurisdiction of the court, ratione personae, because of their domiciles being in New Jersey and Maryland, respectively, and beyond the reach and authority of the same. Both of said exceptions were taken together, tried and overruled.

In their answer the defendants allege that the company is in full and complete possession of the property in controversy, and that the injunction wrongfully issued, reserving the benefit of their exceptions.

Subsequently the plaintiff amended her petition, first reiterating the various charges of her petition, averring the falsity of the defendants' claim of ownership, as derived through Louque, White and Packard, declaring that the alleged false and slanderous statements of the defendants constituted a cloud upon her title, and that she had suffered damages to the extent of two thousand dollars on account of their trespass -- claiming judgment for the total sum of three thousand eight hundred dollars. It is concluded by a prayer to the effect that she be recognized as owner of the land described in her original petition and quieted in possession thereof. There being no prayer in said supplemental petition for citation to the defendants, a second supplemental petition was found necessary for that purpose.

To these two supplemental petitions the defendants excepted -- though subsequent to default being taken -- to the effect that the court was without jurisdiction to hear and determine the cause, because the land alleged to have been trespassed upon, and of which plaintiff seeks to be declared the owner and put in possession, is wholly situated in "parish of Plaquemines, of this State, and neither of defendants reside within the jurisdiction of this Honorable Court, and each one of them has a domicile in the said parish of Plaquemines, and hence (they) specially plead the want of jurisdiction of this Honorable Court."

And subject to said plea, and without waiving the same, the defendants made further answer, and averred "that all of the unsurveyed sea marsh in township 21 south, ranges 30 and 31, lying west of the Mississippi river and Grand Pass in the parish of Plaquemines, except certain lots of small depth fronting on the Mississippi river, and section 16 in ranges 30 and 31 (school sections) was sold and parted with by plaintiff for a valuable consideration, in 1869, to C. C. Packard, and that the right to all accretions passed with said sale" -- then follows a delineation of the claim of title as above set forth.

Then follows a circumstantial and detailed account of the circumstances under which the defendant company acquired the ownership of the territory in dispute, and of the care exercised and examinations made, antecedent to making the purchase -- alleging that it acted in so doing upon the faith it had in the acts and representations of the land officers of the State government.

They pray that their vendor, Louque, be cited in warranty, and for trial by jury; and, on final trial, for verdict and judgment in favor of the defendant company, decreeing it to be the owner of said lands; or, if there be judgment in favor of the plaintiff, their prayer is for like judgment against their warrantor, Louque, in the alternative.

Louque appears and answers defendants' call in warranty, and disavows having had any personal interest in the land transaction; and alleges that it was made by him, at the request of the defendants, and that he purchased said property for them, and immediately after taking the title he transferred it to them before the same notary.

That he purchased from R. M. White, who is bound to him in warranty, and should protect him in every and all particulars.

Thereupon he prays that the call in warranty of the defendant company be dismissed as to him, in so far as it may have, in any manner, a tendency to make him responsible; and that, in the alternative that same should be maintained, he have judgment against his vendor, White, whom he calls in warranty.

He also prays that the Mutual National Bank and the Metropolitan Bank be cited, and, after due proceedings, that there be judgment, in the alternative of the plaintiff's recovery, ordering the surrender of certain notes now in their possession that evidence portions of the purchase price of the property, and requiring the same to be canceled, as being null and void.

The warrantor, White, answered in turn and plead a general denial; and, subsequently, the banks appeared and denied liability, and disavowed possession of the notes they were alleged to have.

The defendant company pleads the prescription of five and ten years, acquirendi causa, predicated upon its peaceable and undisturbed possession, under title, in good faith, as a muniment of its ownership; and both defendants plead various acts and proceedings of the land officers of the State government as an estoppel against the demands and claims of the State.

On final trial there was a verdict and judgment against the defendants, recognizing the ownership of the State, reserving the rights of the defendants and Louque against White, warrantor, and making the writ of injunction perpetual.

It is from this judgment that the defendants have appealed -- it awarding plaintiff no damages, and she having made no answer to the appeal claiming anything on that score, there is nothing for us to decide except the question of title.

Question was made in the lower court...