This is a petitory action. Plaintiff claims a strip of land in the town of Bunkie, about 60 feet in length and having a width of about 18 feet between the toe of the embankment on which the tracks of the Texas Pacific Railway Company are laid and a line running parallel to said tracks equally distant from the center of said track and from the western line of East Main street, that is to say about 50 feet east of the center of said track and 50 feet west of the west line of the said East Main street.
I. Plaintiff claims through mesne conveyances from Mary Jane Carter, who acquired from *Page 21 Alexander M. Haas on November 16, 1899, the following described property:
Two certain town lots in Bank addition of Bunkie, La., as per survey of Ira W. Sylvester, — being the No. 1 and 2 in Square X A, having a front of 50 feet each on East Main street, by a depth of 50 feet each and bounded on the north by lot No. 3, on the east by East Main street, on south by railroad right of way, and west by Texas Pacific Railway.
II. As neither Mary Jane Carter nor any of her successors in title have ever possessed any land more than 50 feet west of the west line of east Main street, plaintiff must rely exclusively on the title of Mary Jane Carter. Plaintiff claims that she acquired, by said title, all the depth of the land between the west side of East Main street and the toe of the embankment on which the tracks of the Texas Pacific Railroad Company are laid. Defendant contends that she acquired only 50 feet in depth from the west side of East Main street.
III. When the sale by Alexander Haas to Mary Jane Carter took place, the parties thereto and every one else believed that the Texas Pacific Railroad had secured by convention a right of way 100 feet wide through the original plantation, of which the land in controversy forms part, said right of way extending 50 feet on each side of the center of its tracks. But in point of fact the railroad had acquired no such conventional right of way but had merely built its tracks upon, and occupied, an embankment approximately 64 feet wide and thus extending only 32 feet on *Page 22 each side of the center of its tracks. This 64 feet, 32 feet (approximately) on each side of the center of its tracks, was in fact the only right of way which the railroad company had, the right of way having been acquired by occupancy, and not by grant. The 18 feet which make up the difference between the actual right of way as acquired by occupancy, and the 50-foot right of way (on each side) then supposed to have been acquired by grant, are the 18 feet (approximately) involved in this controversy.
IV. At the time of the sale by A.M. Haas to Mary Jane Carter, the parties had before them the original plan and survey of Ira W. Sylvester, referred to in the deed. At the date thereof this plan was not recorded, but there was of record an incorrect copy thereof which, however, is immaterial since both plats alike showed that the supposed right of way of the railroad company extended 50 feet on each side of the center of its tracks. Accordingly, when Haas sold to Mary Jane Carter a lot of ground (two lots) measuring 50 feet in depth from the west side of East Main street to the line of the railroad company, having then before them the plat which showed distinctly that the railroad right of way extended eastward 50 feet to a line 50 feet west of the west side of East Main and coinciding exactly with the depth assigned to the lot of 50 feet west of the west side of East Main street, there was and could be no room whatever for any misunderstanding that Haas intended to sell and Mary Jane Carter intended to buy a lot (lots) having exactly 50 feet in depth no more and no less. For the rear line of said lot (lots), both by the measurement *Page 23 called for (50 feet) and by the supposed line of the railroad right of way according to the plat before them, was fixed exactly, to wit, at 50 feet west of the west line of East Main street and 50 feet east of the center of the railroad track.
V. The fact that Haas, and Mary Jane Carter and every one else, believed at the time that everything west of a line 50 feet west of the west side of East Main street and 50 feet east of the center of the railroad track belonged to the railroad company and not to Haas, does not negative, but rather serves to confirm, the fact that Haas did not intend to sell and Mary Jane Carter did not intend to buy any land west of the supposed line of the railroad right of way; for certainly it is not to be presumed that Haas intended to sell and Mary Jane Carter intended to buy any land which both of them believed belonged to another party and not to Haas.
And the fact that Mary Jane Carter never intended to buy, and did not believe she had ever bought, any land beyond a depth of 50 feet west of the west line of East Main street, is further confirmed by the fact that neither Mary Jane Carter nor any of her successors in the title ever attempted to take possession of any land more than 50 feet west of the west line of East Main street or made any inclosure or set up any bounds beyond that.
Accordingly the trial judge saw no merit to plaintiff's claim and rejected its demand; and we think that his judgment was correct and that there is no merit to plaintiff's appeal. *Page 24
Decree. For the reasons assigned, the judgment appealed from is affirmed.
On Rehearing.