Sullivan v. New Orleans & Northeastern R. R.

LECHE, J.

Plaintiff owns lots 4 and 5 in Section 1, Township' 8, South Range 14 East in the Greensburg Land District, Louisiana, included within the territorial limits of the Parish of St. Tammany. He alleges that defendant owns lands in Sections 40 and 41, in the same township and range, situated contiguous to and adjacent to his lots 4 and 5. That the boundary line between his said land and that of defendant has never been determined except by a private survey made on behalf of petitioner, which survey defendant is' unwilling to accept. That it is necessary that said boundary be judicially determined, and with that end in view, plaintiff prays for the appointment of a surveyor by the Court and that said boundary be judicially ascertained and fixed in accordanee with law.

The District Court thereupon appointed a surveyor, who proceeded -to determine a boundary line between the lands of plaintiff and defendant, and the question involved in the present litigation is whether the report of the surveyor so appointed is correct and should be approved.

From a judgment approving and homologating the report of the surveyor thus appointed by the Court defendant has taken the present appeal.

It is conceded that the titles of both plaintiff and defendant emanate originally from the United States Government, that all of these lands were at one time surveyed under authority of that government, that plaintiff’s land is bounded on the west by a line originally fixed by government surveys, and that defendant’s land is bounded on the east by a line also fixed by government surveys. Whether the line *163bounding plaintiff’s land on the west and that bounding defendant’s land on the east is the same line is one of the controlling issues in the case. According to the Government map filed in the record, there is a small stream indifferently called Brockman’s Bayou and Brockman’s River, which separates the land of the plaintiff from those of the defendant. According to the report of the surveyor appointed by the Court in the case, and the map which he has made and annexed as part of his report, Brockman’s Bayou is entirely within the limits of plaintiff’s lands. The line fixed by the Court’s surveyor is west of Brockman’s Bayou and is delineated as the one line of separation or the boundary line between the lands of plaintiff and' the lands of defendant. At some points it is a considerable distance west of Brockman’s Bayou and it is thus made to include lands west of Brockman’s Bayou, as part of the lands owned by the plaintiff.

It is not disputed that where lands have been originally fixed and adopted by Government surveys, a re-survey of such lines must be confined to re-establishing them as originally fixed and located by the Government. It was therefore encumbent upon the surveyor appointed by the Court in this case, to ascertain where the original line forming the western boundary of plaintiff’s lots 4 and 5 was located by the Government survey, and where the line forming the eastern boundary of defendant’s portions of Sections 40 and 41 was located by the Government surveys, and eventually to ascertain whether these two lines are one and the same.

Plaintiff says in his brief that the line forming the eastern boundary of defendant’s land is the same line as that forming the western boundary of his land. The same assertion is made in his testimony by the surveyor appointed by the Court in the case. When asked by courfsel for defendant whether as a matter of fact, he had any field notes specifically describing the location of the western boundary of plaintiff’s land, the surveyor answered that the western boundary of Section 1 (containing plaintiff’s land) is the east boundary . of Sections 40 and 41 (containing defendant’s land). That may be true, but it is not supported by the Government map on file in the record, for that map shows Brock-man’s Bayou as separating the eastern boundary of defendant’s land in Sections 40 and 41 from the western boundary of plaintiff’s land on Section 1. Evidently the surveyor did not have any fiéld notes, if any there are, showing the survey of lots 4 and 5 of plaintiff, and his answer is a conclusion which he draws from his survey of defendant’s land.

In the surveyor’s report there are numerout discrepancies between his findings, in courses and distances and especially in distances, from the courses and distances given in the Government field notes. It may be that he is right and that measurements and directions- in the field notes are erroneous. These discrepancies are not great but they certainly show tne necessity for the application of the rule of law that natural objects and monuments are more important than courses and distances in ascertaining the location of unknown and disputed lines. There might be error in measuring courses and distances, but there can be none in locating natural objects and monuments.

According to Article 828 of the. Civil Code “when two estates are separated by a public road or by a water course which serves as a common limit, the' action in boundary cannot be sustained in relation to them,. unless the road or water course has experienced some change in its situation.” The plat of survey made under Gov-*164eminent authority, as before stated, shows that Brockman’s Bayou separates the land of plaintiff from the land of defendant. The titles of both parties are derived from the Government and are predicated upon this survey. The evidence fails to show any change in the situation of Brockman’s Bayou, except to the extent that there was some dredging to make a log pond, and some digging of barrow pits along the western bank of that bayou, but this in no way encroached upon plaintiff’s land on the east side of the bayou.

Our view of the evidence in this case leads us to the opinion that the estate of plaintiff and defendant are separated by a water course, whose situation is not shown to have been changed, and that according to Article 828 of the Civil Code of Louisiana, the present action in boundary should not be sustained.

For these reasons the judgment appealed from is avoided, set aside and reversed, and plaintiff’s demand rejected at his costs.