Owners of contiguous estates have a right, as a matter of law, Civil Code, art. 823 et seq., to have their boundary limits fixed and recognized when none exists. In this case such a necessity exists, but the judgment appealed from rejects plaintiff's demand without recognizing and fixing any boundary limits between the parties, leaving the situation as it existed before the suit was filed, which was in itself an error.
The case, McCahill v. Wood, 4 La. App. 621, cited by the plaintiff, is not applicable to the present case. The opinion in the McCahill Case states that the defendants urged the prescriptions of ten, twenty, and thirty years in support of their ownership up to an existing line, but in a later part of the opinion it is said that nobody intended to claim beyond his title. The opinion shows that the parties owned land in adjoining headrights and the dispute between them was as to the true location of the government lines separating headright No. 40 from headright 41. The parties whose title called for land in headright 40 did not claim any in headright 41. and those whose title called for land in headright 41 did not claim any in headright 40.
That is not the present situation.
The case, Morris v. Prutsman, 7 La. App. 404. is also different from the present case. That case was based on a boundary fixed by consent more than ten years previous to the suit, and both sides claimed under titles and according thereto.
In the case now in hand, the defendant does not produce any title. Therefore she has no title limits that the court can recognize contradictorily with the title limits advanced by the plaintiff.
The plaintiff judicially recognizes the defendant as his contiguous owner of the south, and alleges in his petition, article 7, that "* * * she is only entitled to 150 feet depth by the recitals of her deed. * * *"
But the defendant answered plaintiff's averment No. 7 as follows: "That she denies the allegations of Art. 7 of said petition for lack of sufficient information to justify a belief in the truth of same except the allegation as to what her deed shows, which allegation she denies and avers that her deed is the best evidence of its said contents."
Defendant thus by her answer denies the depth which her lot is alleged by plaintiff to have, averring that her deed is the best evidence of its said contents, presumably meaning in the matter of depth.
On the trial of the case, she did not offer her title in evidence to the end that its limits in the matter of depth could be therefrom ascertained. Neither did she offer in evidence the title of any preceding owner of her lot to the end that its limits might be therefrom ascertained and she might be held to have deraigned a right to the limits from former owners.
The only evidence introduced on the trial bearing on the depth of her lot is the parol evidence of the surveyors called as witnesses in the case given in explaining their plats and proces verbals made in connection with their surveys at the instance of the parties: one of the surveys being made by order of the court.
Mr. Mandell, surveyor, speaking in his procès verbal, says that the De Bakey property is described as having a frontage of 76 feet on Ford street and the Prater property as having 150 feet front on the same street: that he found a shortage of 2.6 feet in the block; that he found marks of survey made hy Mr. Shuttz for Mrs. Prater 2.75 feet from the points arrived at by his survey; that he was told by Mr. Prater that the Shuttz survey commenced at Reid and Ford streets, or two blocks north of the property in question, etc.
I take the position that the possession which a party must hold under Civil Code, art. 852, in order to be able to avail himself of the prescription of thirty years must be under a title; that, without a title advanced and put in evidence in support of the limits claimed. the prescription provided for by that article is not available because there is no point beyond that mentioned in his title, a prerequisite and necessary foundation for the prescription provided for.
The parol evidence of the surveyors in stating the depth of the Prater lot is not the equivalent of title limits. Such testimony is not the title required by article 852.
The title called for in article S52 is the same title called for by article 843 in saying that "In matters of limits, reference must be had to ancient titles, unless it be proved that the bounds have been since changed, or that the land has been increased or diminished by changes caused by successions, by the will of the owner or by other events." and is the same called for by article 845. which provides that the limits must be fixed according to the respective titles of the parties. In the absence of title on both sides, possession governs.
In the matter of limits that have not been fixed judicially, extrajudicially by consent, *Page 738 or acquired by prescription, the theory of the law is that, when a party happens to have possession beyond the limits proper to his title, it is considered to result from error and mistake; that the intent is to possess according to the title under which the owner holds. Clapham v. Clayton, 118 La. 419, page 422,43 So. 36.
Other cases read and analyzed are to the same effect. Millikin v. Minnis, 12 La. 539; Sprigg v. Hooper, 9 Rob. 248; Bach v. Slidell, 2 La. Ann. 626; Andrews v. Knox, 10 La. Ann. 604; Keller v. Shelmire, 42 A. 323, 324, 7 So. 587; Williams v. Bernstein, 51 La. Ann. 115, 25 So. 411; City of Shreveport v. Simon,132 La. 69, 60 So. 795.
It is well established that in actions of boundary titles are offered in evidence, not for the purpose of establishing ownership, but for the purpose of establishing the limits of the title under which the parties claim. It therefore follows that plaintiff, having a title and having offered it in evidence praying that his limits be fixed according thereto, and the defendant, supposing her to have a title, did not offer it in evidence so that her limits could be fixed according thereto, there is, in fact, no conflict before the court in the matter of title limits. Defendant must be regarded as not depending on a title and limits according thereto but on the prescription of thirty years without title under Civil Code, art. 3499 et seq.
The case Opdenwyer v. Brown, 155 La. 617, 99 So. 482, 484, cited in the opinion of the lower court and in the opinion of this court, is not applicable to the present case. I think it a mistake, to hold this case as governed thereby when the situation is not the same. The Opdenwyer Case was a boundary suit, but the opinion shows that both Opdenwyer and Brown claimed boundary limits as resulting from their respective titles. Therefore the articles 843, 845, and 852 of the Civil Code were the law of the case. The court sustained the visible boundary limits claimed by Opdenwyer on the ground that he and those under whom he deraigned had possessed as owners under titles up to the visible boundary for upwards of thirty years.
That part of the opinion which states the difference between the requirements of article 852 and that of 3499 et seq. on the subject of prescription says: "It will be observed that in such a case the holder of the junior title may retain any quantity of land `beyond his title' which he or those under whom he holds may have possessed for 30 years. Note well that the title of the junior title holder need not call for this surplus of land; for the words of the law are that he shall be entitled to retain the land `beyond his title.' And, as we have shown, this is absolutely not the case under the prescription acquirendi causa."
The defendant is not before the court in the position of Opdenwyer, nor within the reasoning of the Supreme Court, nor within the contemplation of the articles of the Civil Code heretofore mentioned on the subject of boundary limits.
She is not in position to invoke the prescription of ten years provided for by Civil Code, art. 853, because that article also has in mind boundary limits fixed by a surveyor in accordance with the titles of the parties. She cannot claim the fence and outbuilding as her boundary limit by the prescription acquirendi causa under the Civil Code, art. 3499 et seq., because she can only assert her own possession and she has only possessed the lot which she claims about ten years. She cannot tack to her possession that of the preceding owners of her lot so as to avail herself of the prescription acquirendi causa provided for by that article.
The Opdenwyer Case practically overrules Vicksburg, S. P. R. Co. v. Le Rosen, 52 La. Ann. 192, 26 So. 854, Sibley v. Pierson,125 La. 478, 51 So. 502, and Harang v. Golden Ranch, etc., Co.,143 La. 982, 79 So. 768, in so far as concerns the prescription provided for by article 852, but does not overrule those decisions to the extent that it is therein held that a possessor claiming thirty years' prescription under Civil Code, art. 3199 et seq., cannot tack the possession of previous owners to his own, but can only claim under his possession and for the time he has held as owner.
Not only is the above true, but defendant cannot claim that the fence and outbuilding is her boundary limits because under both articles 852 and 3499 et seq. possession must be uninterrupted and possession up to this fence has not been uninterrupted for thirty years previous to this suit.
A witness, Charles E. Chavenne, testified that in 1903 his wife owned the lot which is now owned by the plaintiff and resided on it until 1920, and that a man named Spence owned and resided on the property now owned by the defendant; that, while the property now owned by defendant was owned and resided on by the man named Spence, his (Chavenne's) wife, during the years 1912 or 1913, caused the boundary line between their respective properties to be surveyed, with the result that the same fence and outbuilding which the defendant pleads is now the dividing line was shown by the survey then made to be about three feet over on the north or Chavenne's side of the line; that Mr. Spence told him it would be all right to move the fence back to the line. Mr. Chavenne says that he did not care to go to the expense of doing it at that time, but Mr. Spence told him that any time he wanted to move the fence to go ahead, it would be all right with him. The fence and outbuilding was not moved, and is now where it was then.
The testimony of Mr. Chavenne is not contradicted, *Page 739 and Mr. Spence, then owner and possessor, having during 1912 or 1913 consented to adjoining limits, not according to the fence and outbuilding but in accordance with the survey made at the instance of Mrs. Chavenne, his consent and recognition operated as an interruption of the possession of Mr. Spence as owner up to the fence and outbuilding within the meaning of articles 852 and 3499 et seq.
The marks of the survey made at the instance of Mrs. Chavenne in 1912 or 1913 were no doubt the same noted by Mr. Mandell in his procès verbal as still showing on the ground between the two lots.
There is, moreover, evidence to the effect that defendant, previous to filing her answer in this suit, did not claim the fence and outbuilding as the boundary line between her and the plaintiff.
A negro named Dan Reed testified that he was employed by Mr. De Bakey to plant a hedge along the fence next to the defendant, and that, while so engaged. Mrs. Prater stopped him. The witness relates what she said to him as follows: "She told me I am not to plant on there because that was on her land" — that afterwards Mr. De Bakey came and the defendant, Mrs. Prater, showed him (Reed) in the presence of Mr. De Bakey where her line ran, and it was about 4 feet beyond the fence toward Mr. De Bakey's house.
The plaintiff testifies that he sent Dan Reed to plant a hedge, and the defendant, Mrs. Prater, came out and claimed 12 feet inside the fence on his property. He says that he went there in the afternoon and took his man back, and Mrs. Prater came there and told him that she did not mind for him to plant the hedge there, but that the fence was not the line; that some day she might sell the property and make him take the hedge off. "`Well, Mrs. Prater,' I said, `ain't that fence the line?' She said, `No. When I bought the property they told me I owned 12 feet Inside the fence on that property.' I said, `Mrs. Prater, I didn't survey the lot. If that is the case, you own 12 feet, we will see and we will survey the lot.'" The testimony of the plaintiff and of Dan Reed is not contradicted. The evidence does not show when this occurrence took place, but it seems probable that it was only a short time previous to the suit.
J.W. Champion testified that he was considering the purchase of plaintiff's property, and with that end in view visiled the place about July 3 or 4, 1931. If this date is correct, it was after defendant's answer was filed. Mr. Champion testified that, while engaged in inspecting plaintiff's property, Mr. Prater and himself had a conversation during which Mr. Prater stated to him that the fence was not on the line but was on his property; that the line between the properties was nearer to the De Bakey house.
Mr. Prater admits that he had a conversation with Mr. Champion, but denies that he made the statement imputed to him. He says that Mr. Champion asked him if the fence was the line, and that he told him, "I suppose so." "I told him I didn't know just where the line was." Mr. Prater says that his wife was present at the time, but we infer from what he says that she may not have heard the conversation between him and Mr. Champion.
It is clear that a judgment should be rendered putting an end to this dispute, but the plaintiff testified on the trial that he was willing to accept that portion of the shortage in the block proposed in the Mandell procès verbal, and had so advised Mr. Prater. This apportionment will reduce by about 9 inches the frontage which plaintiff's title calls for, and will reduce the defendant's depth or frontage, as it may be, adjoining plaintiff, about 18 inches.
Mr. Burton, surveyor, formerly city surveyor, testifies that the original starting point from which these lots were located as sold by the first owner has been lost; that the streets which bounded the lots were not straight at the time; that he straightened the streets, thereby causing in some instances a shortage in the block. Plaintiff's title calls for certain limits, but, in view of the testimony of Burton, surveyor, I think the limits between plaintiff and defendant should be definitely fixed as proposed in the Mandell survey.
For these reasons I dissent from the opinion and decree of the majority of the court herein.