(107 So. 901)

No. 25764.

#### WAGUESPACK et al. v. LOWER LAFOURCHE PLANTING & MFG. CO.

(Feb. 1, 1926.

Rehearing Denied March 29, 1926.)

*(Syllabus by Editorial Staff.)*

I. Adverse possession <&wkey;114(l)—Prescription.

In a boundary dispute, evidence held to support claim of defendant as to division line asserted under prescription of 30 years as to front 8 arpents.

*1047On Application for Rehearing.

2. Boundaries &wkey;»37(3)—Finding that no established line between properties of plaintiff and defendant existed beyond 8 arpents from front line of properties sustained.

In boundary dispute, evidence *held*to sustain finding of trial judge that no established line between properties of plaintiff and defendant beyond 8 arpents from front line to such properties existed.

3. Boundaries <©=^8—Act, granting to front proprietors right to extend their lines to depth of 40 arpents, meant lines as then actually established and not subsequently established lines (Act 136 of 1858).

Where front proprietors on bayou were, by Act 136 of 1858, granted by state, which acquired lands from the United States, right to extend their lines to depth of 40 arpents, such act meant lines as then actually established, and not such lines as were established long after-wards.

4. Boundaries <&wkey;43—In view of impossibility to establish ancient division tines between respective properties, division of lands granted by state was properly made proportionately among ail grantees (Civ. Code, art. 851; Act 136 of 1858).

Where ancient division lines could not be established between plaintiff’s and defendant’s properties, as to land which had been granted by state under Act 136 of 1858, division was properly made proportionately among all grantees in accordance with Oiv. Code, art. 851.

Appeal from Twentieth Judicial District. Court, Parish of Lafourche; Lawrence H. Pugh, Judge ad hoe.

Action in boundary by C. L. Waguespack and others against the Lower Lafourche Planting & Manufacturing Company. From a judgment fixing the boundary, the defendant appeals.

Judgment affirmed.

Caillouet & Caillouet, of Thibodaux, for appellant.

J. A. O. Coignet, Howell, Wortham & Bourg, and Camille A. Morvant, all of Thibodaux, for appellees.

LAND, J.

This is an action in boundary, involving questions of ownership also as an issue, as the prescription of 30 years has been pleaded by defendant company.

Plaintiffs and defendant company own adjoining estates on bayou Lafourche: that of defendant company being the lower one.

Plaintiffs’ tract measures 5 arpents front, more or less,' and defendant company’s 26 arpents front; each tract having a depth of 40 arpents.

Both properties are situated on the left descending bank of bayou Lafourche, below the town of Thibodaux. There is no dispute as to the location of the front property lines of the respective tracts. Defendant company admits its refusal to' have a survey made, alleging that none is necessary, as there is already a division line established between the two contiguous estates, well defined on the ground by physical objects, works, constructions, and inclosures, placed and maintained there by the respective authors in title of plaintiffs and of defendant company for more than 30 years, and kept up as such by the present owners .of said estates.

In the amended answer filed by defendant company, it is alleged that the well-established and fixed boundary line between the two estates, and upon which defendant company predicates its plea of prescription of 30 years, was established by Silas Taylor some time in April, 1859, at the request and with the consent of Adelard Boudreaux, the author of plaintiffs’ title, and Celestin Delferes, the author of defendant company’s, at the same time the whole of the original 40-arpent front track, formerly owned, by Adelard Boudreaux and- divers vendees holding under him, was surveyed and subdivided between the said Adelard Boudreaux and his vendees. Defendant company alleges that the said survey and the plat thereof, made by Silas Taylor under date of April 27, 1859, was recorded in the recorder’s office in the parish of Lafourche, as appears by reference to said plan and divers acts of sales recorded in said recorder’s office, and that the said *1049survey was accepted by tbe said Adelard Boudreaux and the said Celestin Delferes, and tbe division line between the two estates established and maintained by them in accordance therewith, and has always been so accepted by succeeding owners of tbe respective tracts of land.

1. Suffice it to say that tbe Silas Taylor survey, if ever made, has not been placed of record, nor has any proces verbal thereof been found, nor was tbe trial judge impressed by tbe oral testimony as to this survey.

Tbe only surveys appearing in the record affecting tbe lands in controversy in this case are tbe following:

(a) A resurvey of township 17 south, ranges 19 and 20 east, Southeast district of Louisiana, west of Mississippi river, made by Joseph Golinski, United States deputy surveyor, in 1857.

(b) A private survey and proces verbal made by J. A. Lovell of date April 3, 1915.

(e) A survey and procSs verbal made by J. P. Kemper, of tbe city of New Orleans, under order of court, of date November 22, 1915.

As alleged in defendant company’s answer, tbe physical objects, works, constructions, and inclosures, relied upon by said company as fixing tbe division line between tbe two estates—

> “consist of a ditch on the upper side of respondent’s tract of land, and a ditch on tbe lower side of the land claimed by plaintiffs, adjoining respondent’s land, with a fence between tbe two ditches, separating tbe two estates, tbe fences and ditches extending from bayou Lafourche, in front, back some 10 or 12 arpents, from which point a canal, cut on tbe site of an old ditch, running to tbe swamp in the rear, continues tbe division line; on the other side, or beyond the swamp, which is some 1200 feet in width, the said line being marked and designated by a fence running back from _ the edge of the swamp to a grate bar at the end of the line, at 40 arpents from bayou Lafourche.”

[1] After reviewing tbe conflicting testimony in tbe case, the trial judge found that tbe preponderance of the evidence supported, in part, tbe claim of defendant company as to tbe division line asserted under tbe prescription of 30 years, and adopted accordingly, as to tbe front 8 arpents, tbe line on the map made by J. P. Kemper, tbe court survey- or, starting at tbe point B and running thence north 25° east 30'.

We approve and concur in tbe establishment of this line.

Able counsel for defendant company contends, however, that tbe line recognized by tbe trial judge should be prolonged by him in a straight line, running back to tbe 40-arpent line, citing, as authority for this contention, tbe case of Henderson v. St. Charles Church, 7 Mart. (N. S.) 117.

This contention is a virtual concession upon tbe part of defendant company that there are no physical objects, or established survey, along tbe line to be projected, to serve as a guide in determining its course, and therefore, as to tbe side line to be extended, there was not sufficient evidence before tbe trial judge to sustain tbe plea of prescription of 30 years.

Such was tbe bolding of tbe court below, based upon tbe testimony of the surveyors and other witnesses and tbe procés verbal of the court surveyor in this case. In our opinion tbe bolding is correct. It appears from tbe abstracts of title that tbe lands involved in this controversy emanated from a grant from tbe Spanish government to Valentine Saulet, which grant comprised a depth of only 4 arpents on each side of bayou Lafourche, and extended on tbe left descending bank, from tbe private confirmation of Celeste Lamate, above, to a similar grant of only 4 arpents deep to Etienne Guitrox, below.

From tbe resurvey of township 17 south, ranges 19 and 20 east, Southern district of Louisiana, west of tbe Mississippi, made by Joseph Golinski in 1854, it appears that all of tbe lands in tbe rear of tbe Valentine Saulet confirmation, for a depth of *36*arpents, are vacant United States lands, se*1051lected by the state under the Swamp Land Act.

Under Act 136 of the Legislature of 1858, the holders of land under the Valentine Saulet and Etienne Guitrox confirmations were permitted to extend their lines to the full depth of 40 arpents.

This act, however, does not designate the method to be employed by the holders under these confirmations, entitled to only 4 arpents deep, in extending the side boundaries beyond the limits of their original concessions to the 40-arpent line.

As the transcript is barren of records indicating the intent of the original owners as to the course that these side lines should take, and, as no fixed line of division as to these lines has.been established by continuous and uninterrupted possession for 30 years, beyond the 8-arpent front line, it is clear that the direction in which these side lines should run is the real issue involved in this case.

We find from the process verbal of J. P. Kemper, the court surveyor, that a width of *IS*arpents on the front, extending from the line between J. T. Badeaux and Charles J. Plaisance to the line between C. L. Waguespack et ah, plaintiffs herein, -and the Lower Lafourche Planting & Manufacturing Company, the defendant, would, if said lines, as now claimed by defendant company, were produced, give a width, in the rear at the 40-arpent line, of less than *J¡.*arpents.

To run straight side lines from the end of the converged lines of the 8-arpent front, in accordance with the theory of defendant company, would deprive plaintiffs of 44.48 acres of land, as shown by the procés verbal of the Kemper survey, made under the orders of the district court in this case and approved by the trial judge, instead of dividing the 36-arpent area added to the rear of the original 4-arpent tracts proportionately among the owners, as has been done by the Kemper survey. '

It is clear that- the state, under the provisions of Act 136 of 1858, has made a grant in common to the original owners of the additional territory included within the 36-arpent limits, and that this property is beyond the limits of the titles of these owners of 4 arpents in depth.

Article 851 of the Civil Code provides that:

> “If the titles exhibited call for a greater or less extent of land than the land which is to be bounded, contains, the limits must be so fixed as to divide proportionately among the parties interested the profit or loss resulting from this state of things.

> “It is understood that the rules prescribed in this and the preceding articles, only take effect in the absence of possession by one or more of the parties, sufficient to establish prescription.”

As the side lines to be run, beyond the 8-arpent front limit, are not affected by prescription in this case, we approve the Kemper survey and the proportional division made-thereby among the parties to this suit.

The case of Henderson v. St. Charles Church, 7 Mart. (N. S.) 117, relied upon by-defendant company, is based upon the particular facts of that case.

Judgment affirmed.

On Application for Rehearing.

PER CURIAM.

[2] The opinion herein correctly finds (as did the trial judge) that there is not now and never has been, any established line between the properties of plaintiff and defendant beyond 8 *arpents*from the front line of the two properties on bayou Lafourche.

Formerly both properties were only *4 arpents*in depth; that being the depth of the original grant by the Spanish government to Valentine Saule-t, from whom both parties derive title. And the lands behind these 4 arpents were *public lands,*which were afterwards granted by the United States to the state of Louisiana under the Swamp Land Acts of 1849 and 1851.

[3] By Act 136 of 1858 the state granted to these front proprietors tl^e right to extend their lines to the ordinary depth of 40 ar*1053pents; meaning, of course, the lines as *then*actually established, and *not*such lines as were established only *long afterwards.*

[4] And it being- now, at this late day, impossible to establish the ancient division lines between the respective properties, it follows that the only division, which can be made of the lands thus granted by the state is one made in accordance with the provisions of article 851 of the Civil Code; i. e., *proportionately*among all the grantees. And this is what the judgment orders.

There is no conflict between this case and Henderson v. St. Charles Church, 7 Mart. (N. S.) 117.

In that case the line which the court decreed should be extended, had been established “for more than 30 years previous to the commencement of this [that] suit,” and had formed “for 30 years *at least,*to a considerable extent,” the common boundary between the two estates. Cf. Opdenwyer v. Brown, 99 So. 482, 155 La. 617. Whilst in *this*case there is no evidence whatever that, *at the time of the grant by the state,*there was any well-defined boundary between the two properties, even in front; for, as the trial judge finds, there is much conflict in the evidence “even as to the *front 8 arpents,"*and the surveyors are disagreed as to *the direction*of that line even to-day.

Rehearing refused.