Plaintiff claims to be the owner of a tract of land measuring 120 feet on the paved highway leading from Donaldsonville to Napoleonville and extending back eastwardly *Page 202 150 feet or more to the center line of Bayou Lafourche — that is to say the tract lies between this highway and Bayou Lafourche, and lies opposite and east of Block No. 78 of the Port Barrow Subdivision. The highway separates this tract from the Port Barrow subdivision and runs along the eastern part of the subdivision where there is designated on the plat of this subdivision a street called Bayou.
Section 32 in which the land in controversy is located was acquired in 1883 by W. Buford from the State by patent. Plaintiff traces his chain of title to the tract through various owners to this patentee. There seems to be little room for dispute as to the validity of the chain of title set up by plaintiff, if Buford, during his life, did not divest himself of title to the tract of land claimed by plaintiff.
It appears from the record that the land lying along Bayou Lafourche included in the plat of Port Barrow, as well as the land lying between the subdivision and the Bayou (which included the land in controversy) was claimed by various persons through titles emanating from the Government long before Buford secured a patent to the land from the State. In 1855 this land was claimed by R.R. Barrow under a title during which year he had the subdivision known as Port Barrow surveyed and a plat made thereof by one Sulakowski, a deputy U. S. engineer, on which plat the said square 78 and the Bayou Street are shown, the tract claimed by plaintiff lying east of said Port Barrow and between Bayou Street shown thereon and the Bayou Lafourche. In fact, there is a strip of land varying in width, running along the west and north bank of the bayou between the bayou and the platted subdivision of Port Barrow, this strip being mostly, if not all, batture formed from the bayou, just how much of this batture was formed in 1855 when the plat was made does not appear from the record.
In the year 1868, R.R. Barrow, who had caused the plat of Port Barrow to be made and filed, sold to one J.B. Pittman, several tracts of land, including all unsold squares and lots in Port Barrow per the survey of Sulakowski, and a piece of land standing in the name of Barrow, lying immediately in the rear of the town of Port Barrow, between the bayou Lafourche and the extension of the upper line of said town which runs from the Mississippi toward the bayou Lafourche, containing one hundred acres of land, more or less, which piece of land was originally a portion of the plantation of Barrow, purchased of Winter, lying Northeast of Bayou Lafourche, from which was also detached the town of Port Barrow, which was run off into squares and lots by said engineer and a plat thereof was recorded in the recorder's office.
In 1883, Pittman made a will in which he bequeathed "all of my property at Port Barrow" to C. A. Camp.
This was the situation when, on Feb. 15, 1890, Camp, through his attorney in fact, sold to Dr. Wm. McGalliard and Bernard Lemann, "The undivided two-thirds of all the title and interests of said Charles A. Camp in and unto that certain tract of land situated in the Parish of Ascension and known as Port Barrow and being the undivided two thirds of the land divided (devised) by the late John B. Pittman by his last will and testament to said Charles A. Camp and called by him in said last will and testament `All of my property at Port Barrow' said land consisted principally of lots of ground as per plan of said town of Port Barrow made by V. Sulakowski and of record in the recorder's office of this parish, the plan being made a part and portion of this action(act)".
At the time this sale was made, Buford had a patent to the land contained in the Port Barrow subdivision as shown on the plan as well as the batture land out to the Bayou. Buford joined in the act from Camp to Dr. McGalliard and Lemann and conveyed all of his rights and interest to the undivided two-thirds, particularly his interest arising from said patent. On the same day Buford and Camp signed a separate document in order to compromise their claims respecting the property devised by Pittman to Camp, in which compromise Camp took an undivided two thirds interest and Buford an undivided one third in that tract of land situated in Ascension Parish and known as Port Barrow and being the land devised by Pittman to Camp consisting principally of lots of ground as per plan of said town made by Sulakowski, etc.
On May 30, 1890, a few months after this compromise agreement between Buford and Camp and after the latter had sold his interest in the property to Dr. McGalliard and Lemann, Buford, who owned an undivided one third and McGalliard and Lemann, who owned the other undivided two thirds, entered into a partition agreement *Page 203 whereby they divided all the lots and squares owned by them in indivision in Port Barrow as shown on the plat of same. Nothing was said in said act about any lands lying between said subdivision and Bayou Lafourche.
On November 28, 1906, Dr. McGalliard and the heirs of Bernard Lemann conveyed to the defendant, Ascension Realty Company, the lots and squares in Port Barrow which had been acquired by them in the partition with Buford, and included therein "the undivided two thirds interest in and to all the batture lands on the Mississippi River and Bayou Lafourche" being land fronting on certain squares, including squares 78 and 79. It is by reason of this deed that the realty company is claiming the tract of land in controversy in this suit.
In a petitory action, the plaintiff must make out his title; he cannot rely on the weakness of defendant's title. As already stated, plaintiff traces his title back to Buford, the patentee, and unless Buford parted with two thirds of his interest in the batture land lying between the Bayou and the subdivision of Port Barrow his heirs and successors in title remained the owner of this strip of land and conveyed a good title to the plaintiff. This raises the sole and vital question in the case, that is, did Buford in joining in the deed from Camp to Dr. McGalliard and Lemann conveying a two thirds interest in the lots and squares and the compromise agreement entered into on the same day, convey a two thirds interest in this strip of batture land lying between the bayou and Port Barrow?
Assuming that the land described in the deed from Barrow to Pittman included this batture land on the west and north bank of Bayou Lafourche (and this is not altogether clear) it follows that Pittman acquired whatever right Barrow had to this strip of land between the platted subdivision and the Bayou. Still further assuming that when Pittman bequeathed all of his property at Port Barrow, except one square, to Camp, that this strip of batture was included therein (which is also not altogether clear) the situation then was that both Buford and Camp had a title to the land included in the plat and that included in the strip between the Bayou and the platted lands.
If Camp understood that he was selling to Dr. McGalliard and Lemann in 1890 the batture land composing this strip lying along the Bayou and the River, it does seem that words would have been used to express that intention. But Camp says in the deed that he is selling his undivided two thirds interest in and to the certain tract of land in Ascension Parish Known as Port Barrow. He must have known that this strip along the bank of the bayou was not a part of the plan of Port Barrow as he referred to and made that plat a part of his deed and description of the property. It is true that the deed further stated that the land sold was his undivided two thirds of the land devised to him by Pittman in the will and consisted principally of lots of ground as per the plan of Port Barrow made by Sulakowski.
The purpose in making the plan a part of the deed was to serve as a description and identification of the property sold. The reference to the map as a part of the description of the property had the effect of making the description shown on the map a part of the description in the deed to the same extent as though the description had been copied in the deed. Werk v. Leland University, 155 La. 971, 99 So. 716.
If we leave out the description afforded by reference to the plat, there is nothing left in the deed by which it could be inferred that Camp and Buford intended to sell and Dr. McGalliard and Lemann intended to purchase any property outside the property shown on the plan, other than the statement that the land sold consisted principally of lots. If the land sold consisted of anything other than lots shown on the plan, there is not a sufficient description thereof in the deed to show what land was sold and therefore not sufficient to divest Buford of his title to any lands not shown on the plan.
If there was any ambiguity in the deed from Camp and Buford as to what property was intended to be sold, the plat or map made part of the deed must control. Maginnis Land Imp. Co. Ltd. v. Marcello et al., 168 La. 997, 123 So. 653. If the map controls, there is no other property sufficiently described in the deed to serve as the basis of a title to the purchasers.
Not only does the map indicate the intention of Camp and Buford as to what lands were being sold, but the map also indicates what the purchasers thought they were buying as these purchasers and Buford partitioned the land by the map altogether, in which act of partition no reference was made to the ownership of any lands in indivision *Page 204 other than that shown on the map. Of course, the parties could have intended to partition only the lands on the plan and remain co-workers of the strip between the subdivision and the Bayou, but that seems a rather unlikely and unreasonable assumption.
As I do not think the record shows that Buford ever parted with title to the tract of land in controversy, I think the judgment in favor of plaintiff decreeing him to be owner of the land is correct and should be affirmed, and I respectfully dissent from the majority opinion in the case.