Arnaud v. Barber

225 So. 2d 656
CourtLouisiana Court of Appeal
DecidedAugust 7, 1969
Docket2747
StatusPublished
Cited by8 cases

This text of 225 So. 2d 656 (Arnaud v. Barber) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnaud v. Barber, 225 So. 2d 656 (La. Ct. App. 1969).

Opinion

225 So.2d 656 (1969)

Ralph ARNAUD et al., Plaintiffs-Appellees,
v.
Isadore BARBER et al., Defendants-Appellants.

No. 2747.

Court of Appeal of Louisiana, Third Circuit.

August 7, 1969.
Rehearing Denied August 26, 1969.

*657 John Barkley Knight, and R. P. Boyd, Jr., Harrisonburg, for defendants-appellants.

Smith, Taliaferro & Griffing, by George Griffing, Jonesville, for plaintiffs-appellees.

Before SAVOY, HOOD and MILLER, JJ.

HOOD, Judge.

This is an action to establish the boundary between two adjacent tracts of land in Catahoula Parish, Louisiana. Plaintiffs are the undivided owners of the westernmost tract, and defendants are the owners of the east tract. Judgment on the merits was rendered by the trial court fixing the boundary substantially in accordance with the claims made by plaintiffs. Defendants have appealed.

The principal issue presented is: Did the trial court err in fixing the boundary according to a quantity call in the description, rather than according to the visible markers which were shown by the evidence?

By deed dated February 3, 1897, C. W. Henderson conveyed to Jefferson Barber a *658 tract of land in Catahoula Parish, Louisiana, described as follows:

"* * * all that certain tract or parcel of land being known as the back field of the portion known as the Locust Grove Plantation being (100) one hundred acres more or less and situated in the Parish of Catahoula and State of Louisiana and bounded as follows on the west by lands sold to Tom Cooper and J. S. Collins by the vendor on the East by a lake known as the foot log lake on the North by lands of Mrs. Dora Cook on the south by lands of Mrs. J. T. Netherville or heirs and Hart and Joseph Brothers."

The defendants in this suit are the heirs of Jefferson Barber, deceased, and as such they are the undivided owners of the above described property. All parties agree that plaintiffs own the property which lies west of and immediately adjacent to that tract.

The north, south and east boundaries of the above described property have been located, and there is no dispute as to those lines. There is a dispute, however, as to the location of the west boundary of the above described property. A decision as to the location of the west line of that property will have the effect of determining the boundary between the tract of land owned by plaintiffs and that owned by defendants.

The deed from Henderson to Barber described the property therein conveyed as being "the back field of the portion known as the Locust Grove Plantation." The boundaries of the Locust Grove Plantation, or of "the back field" of that plantation, are not known, however, and they cannot be fixed with any degree of certainty. That part of the description which refers to such a plantation, therefore, is of no assistance in determining the west line of defendants' property, or in locating the boundary between the land owned by plaintiffs and that owned by defendants.

The description also recites that the property conveyed is bounded "on the west by lands sold to Tom Cooper and J. S. Collins by the vendor." No property in that area has ever been sold to Cooper and Collins, however, and thus that part of the description which refers to such a sale is of no value of assistance in locating the west line of defendants' land.

Plaintiffs contend that the call in the description which reads, "being (100) one hundred acres more or less," is the only call which can be relied upon in locating and fixing the west line of defendants' land. They point out that the north, south and east boundaries have been located with exactness, and that there is no call in the description which sets out the location of the west line except the one which gives the quantity of land being conveyed. They argue that the west line thus should be fixed according to this quantity call, and that the line should be located at such a distance from the east boundary that defendants will have exactly 100 acres.

Defendants contend that the boundary between the two adjacent tracts of land should be fixed along the trace of a very old fence, which fence line runs in a northeasterly-southwesterly direction in that vicinity. The trace of this old fence is a considerable distance west of the line which plaintiffs claim should be the true boundary, and if this old fence line should be held to be the west boundary of defendants' tract, then their property will contain substantially more than the 100 acres, more or less, which is called for in the deed. Defendants contend that this old fence line has been established by surveys as being the boundary between the two tracts, and that defendants are entitled to judgment decreeing the boundary to be along that line. They also allege that they, or their ancestors in title, have possessed the property lying east of the old fence line since 1897, and they specially plead acquisitive prescription of ten, twenty and thirty years.

The evidence produced at the trial consisted largely of the testimony of two licensed surveyors, the testimony of several persons who had been familiar with both tracts of land for many years, and some *659 plats of surveys. One of these plats, prepared in 1942 by E. E. Scott, a civil engineer, purports to be a plat of a survey of the Barber tract. It shows an irregular line running northeast and southwest at the extreme western edge of the tract which was surveyed, and this line is marked "Trace of very old fence." If this irregular line is determined to be the western boundary of the Barber tract, then according to the Scott survey that tract would contain 158.60 acres.

Another plat, prepared in 1947 by John W. Baker, a surveyor, shows what appears to be the same irregular line running northeast and southwest at the extreme western edge of this property, and that line is identified on that plat as, "West line of Barber Estate pointed out by Richard Barber, surveyed by E. E. Scott." The same plat also shows another fence line, running north and south and extending from the north to the south lines of the Barber tract. This second fence line is located a considerable distance east of the very old fence line which was shown in the Scott survey. The second, or easternmost, fence shown on the Baker plat is identified on that plat as the "West line of Barber Estate pointed out by A. L. Henderson." The plat also shows that that portion of the tract surveyed which is located east of the "Henderson fence line" contains 86.60 acres, and that portion which lies west of the Henderson fence line, between that line and the Barber fence line, comprises 70.60 acres.

James H. Tooke, a licensed surveyor who was appointed by the court to survey the premises, felt that the traces of the old fence line, being the westernmost line shown on the Scott and Baker plats, were insufficient to enable anyone to follow or locate that line without additional information. He also found no evidence indicating that the land on the east side of that fence had been occupied. In view of these findings, and the fact that the quantity call in the original description of the land would not have permitted the west line to be placed nearly as far west as the westernmost line shown on both of the above mentioned plats, Mr. Tooke concluded that the west boundary of defendants' tract should be fixed on a line running north and south, parallel to the section line and a sufficient distance from the east boundary to give defendants exactly 100 acres.

Glen C.

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Bluebook (online)
225 So. 2d 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnaud-v-barber-lactapp-1969.