Carter v. Moore

248 So. 2d 813, 258 La. 921, 1971 La. LEXIS 4386

• Court: Supreme Court of Louisiana
• Decided: May 4, 1971
• Docket: 50684
• Status: Published

Opinions

TATE, Justice.

The issue in this suit is whether state officials may be compelled by mandamus to issue a patent with an ambiguous description. The claim arises because of a clerical error at the time of the issuance of an original patent in 1881, since corrected. We hold that Act 62 of 1912 (La.R.S. 9:-5661), preventing annulment of patents in certain instances, does not here apply so as to require the re-issuance of an original patent, since corrected, which contained an ambiguous or void description.

The heirs and successors in title to Vile- or Theriot file this mandamus suit against the Register of State Lands and the Governor of Louisiana. The plaintiffs seek to compel the issuance of a new corrective patent recognizing them as owners of a certain governmental half-section. The trial court dismissed the suit. The court of appeal reversed. 234 So.2d 823 (La.App. 1 Cir., 1970). The proceeding is before us upon writ of review granted the defendant state officials. 256 La. 613, 237 So.2d 396 (1970).

The plaintiff’s claim is based upon the issuance in 1881 to Theriot, their ancestor in title, of a state patent to certain lands, including the “fl [fractional] S² Sec. 21”. (If Section 21 were a normal 640-acre governmental division, the south half would be situated entirely in Grand Lake, which is a navigable body of water, normally inalienable. Miami Corporation v. State, 1936, 186 La. 784, 173 So. 315.)

In 1962, at the behest of one of the plaintiffs a new patent was issued “in correction of” the 1881 patent — and this substituted land described in the “Fractional North Half” of the section (instead of in the “fractional south half”). The intent of the present suit, filed in 1963, is to void this 1962 correction.

The court of appeal granted plaintiffs the relief requested. It declared void the 1962 patent issued in correction of the 1881 one. It held the state was barred from making any change in the description of the 1881 patent by Act 62 of 1912 (La.R.S. 9:5661). This enactment prohibits the State, after a specified period, from annulling previously issued patents. See California Company v. Price, 225 La. 706, 74 So.2d 1 (1954).

We granted certiorari primarily because we felt that the majority of the court of appeal had incorrectly found the 1912 act and Price applicable.¹

The uncontradicted facts show the following :

The 1851 official government survey of the townshipa showed certain “fractional sections”, “fractional half-sections” . and “fractional quarters” on the shores of Grand Lake.³ These included “Fractional Section 21”, consisting of 45 acres of swamp lands.

In 1881, Theriot (the plaintiffs’ ancestor) formally applied for 330 acres of sea marsh lands in the township. These included “fl [fractional] Sec. 21”, described as containing 45 acres. The quantities shown for each of the other fractional divisions applied for likewise corresponded with the government survey, as did the 330-acre total of the land applied for.

Pursuant to this application, Theriot was issued on June 30, 1881 a patent to 330 acres in the township in question. These were described by governmental survey designation and as containing 330 acres “according to the official plat of the survey of said lands.” Each of the fractional divisions was shown just as applied for, except that through clerical error the “fl sec. 21” applied for was shown on the patent as the “fl .S'² sec 21.”

Despite this clerical error, the unmistakable intent was to issue a patent to the governmental division shown by the official survey as “Fractional Section 21” (i. e., not any fractional south half thereof) and as containing 45 acres. This surveyed section was contiguous to the other fractional sections patented, it was so described in the application for the patent, and the acreage of the other fractional divisions patented totalled 285 according to the. official plat (so that, adding 45 acres for Section-21 lands, it totalled the 330 acres described as patented).

So far as the record reflects, this cler-. ical error was not discovered until 1962. Then one of the co-owners visited the state land office and noticed that the Section 21 description of the patent referred (or so he and the staff thought) to an unsurveyed portion of Grand Lake. He secured the issuance of a patent issued in correction of the earlier 1881 one, now showing the Section 21 land patented as in the “North Half”. The obvious intent was to show the land patented as on the shore of Grand Lake, pursuant to the intent of the original application, rather than out in the bed of it.⁴

In 1963, the plaintiffs filed this mandamus suit. The specific prayer is for an order compelling issuance of a new corrective patent recognizing them as owners of “the South half (S i/£) of Section 21, Township 13 South, Range 4 West.” (We will hereinafter omit township and range identification of Section 21.)

Initially, we must observe there is no warrant whatsoever for the plaintiffs to receive a patent to the entire “South Half” of Sectióri 21. At most, their claim is to receive a patent to the “fractional south half”, if indeed they are entitled to have perpetuated the clerical error of the 1881 patent..

However, they are not entitled even to this latter relief. As will be seen, such original description is ambiguous, if not void. The defendant officials are not required to reinstate it.

The only governmental survey subdivision pertaining to the area at issue is “Fractional Section 21”, containing the 45 acres of overflow lands adjacent to Grand Lake. A government survey creates, not merely identifies, the township sections and the boundaries thereof. Cox v. Hart, 260 U.S. 427, 43 S.Ct. 154, 67 L.Ed. 332 (1922); United States v. Morrison, 240 U.S. 192, 36 S.Ct. 326, 60 L.Ed. 599 (1916); Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68 (1895); State v. Aucoin, 206 La. 787, 20 So.2d 136, 142-143 (1944); Union Producing Company v. Placid Oil Co., 178 So.2d 392 (La.App. 1st Cir. 1965), cert. denied 248 La. 447, 179 So.2d 432 (1965).

A “fractional section” has a recognized and specific meaning. It signifies that, in the official survey, the exterior boundary lines do not within them contain the normal 640-acre area because a portion of the section has been cut off by some obstruction, such as a navigable body of water or overlapping prior survey — that the government surveyor was prevented from making a regular section by some such obstruction. Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988 (1895); Gazzam v. Lessee of Phillips, 20 How. 372, 15 L.Ed. 958 (1958); State v. Aucoin, 206 La. 787, 20 So.2d 136, 142-143 (1944); Gilmore v. Lyon Lumber Co, 159 La. 18, 105 So. 85 (1925); Patton on Titles, Section 116 (2d ed. 1957); Black’s Law Dictionary, verbo “Fractional”, p. 786 (4th ed. 1951); 17 Words & Phrases, verbo “Fractional”, “Fractional Section”, pp. 684-685 (1958 ed.).

Therefore, with regard to the original 1881 patent, the description of a certain area as the “fractional south half of Section 21” was at least ambiguous. The only governmental survey subdivision ever created was “Fractional Section 21”; no official survey has created any “south half” of this 45-acre section, let alone any “fractional south half.” ⁵

In claiming the south half of Section 21 (which they contend consists of 320 acres out'in Grand Lake), the plaintiffs contend that such governmental half-section can be ascertained by extending the lines of Fractional Section 21 and completing the section so as to include the normal 640 acres. They rely on Realty Operators v. State Mineral Board, 202 La. 398, 12 So.2d 198 (1942) and State v. Bozeman, 156 La. 635, 101 So. 4 (1924).

The decisions relied upon are not apposite to the present issue. In Realty Operators, the patentees received title to swamplands unambiguously described (the area containing in fact 640 acres, per the patent’s description) as full regular sections, in which was situated a small lake. The court specifically differentiated the government survey there in question from that involved here and in McDade v. Bossier Levee Board, 109 La. 625, 33 So. 628 (1902), where the official plat of survey shows the lake bed and fractional sections and discloses an express intent to patent only the fractional sections on the shore. See 12 So.2d 202. Bozeman simply referred to a description of Cross Lake in terms of such imaginary government sections, in a conveyance from state' to city, in holding that a petition by state and city for recognition of their ownership of the Lake stated a cause of action.⁶

Thus, in light of these factual and legal conclusions, the precise issue before us is this: Where an original patent had contained an erroneous and ambiguous description, and this had subsequently been corrected at the instance of a successor to the patentee, does mandamus now lie to compel state officials to issue a new corrective patent reinstating the original ambiguous (and erroneous) description?

Relief by mandamus is available to compel performance by a public officer “of a ministerial duty required by law.” La. CCP Art. 3863. The plaintiffs insist that the defendant officers are under such a ministerial duty. They contend that the extrajudicial correction, in 1962, of the 1881 patent had the effect of annulling it, insofar as (they claim) it conferred title to them of 320 acres of Grand Lake situated in the South Half of Section 21.

Such action they contend, is forbidden by Act 62 of 1912 (La.R.S. 9:5661), as interpreted by California Company v. Price, 225 La. 706, 74 So.2d 1 (1954). The statute forbids the annulment of state patents, duly issued and recorded, after six years following the date of issuance. The plaintiffs argue that, by virtue thereof, the State was without authority to change the description set forth by the 1881 patent.

This statute is not here applicable. For reasons previously set forth, the 1881 patent did not describe any portion of the bed of Grand Lake. It did not describe any governmental subdivision, for there was (and is) no “south half” of Section 21, nor any “fractional south half” thereof; there is only a “Fractional Section 21”, containing 45 acres of overflow lands.

The description of the land patented as being in the non-existent “fractional south half” of Section 21 was ambiguous, if not void. Therefore, Act 62 of 1912 (La.R.S. 9:5661) did not bar an otherwise timely suit by the State to secure correction of the ambiguous or void description: The demand and object of such an action is to effectuate a patent, not to annul it. Cf., State v. Aucoin, 206 La. 787, 20 So.2d 136 (1944) (Syllabus 3). The object is to carry out the mutual intention of the parties as to the description of the area patented, not to take away any area actually described by it.

As issued in 1881, the patent described no area with regard to Section 21, or at least no area ascertainable without the aid of extrinsic evidence. It did not conceivably describe any portion' of Grand Lake now sought; for the plaintiffs’ claim by the 1881 patent to any portion of Section 21 can concern only “Fractional Section 21”, the only relevant survey section created in the township — and this section is limited in area to its 45 acres of sea marsh or swamp lands on the shores of Grand Lake.

In 1962, at the instance of a successor of the patentee, the ambiguous or void description of the 1881 patent had been corrected to reflect the area patented, in accordance with the actual intent of the original parties as indisputably shown. The rights of no innocent third persons were affected.

We are cited to no authority by which, under the cited circumstances, the defendant public officers must now replace the 1962 corrected patent, with yet a third patent reinstating the ambiguous and erroneous description of the original 1881 patent.

For the reasons assigned, therefore, the judgment of the court of appeal is reversed, and we reinstate and affirm the trial court judgment dismissing the plaintiffs’ suit. The plaintiffs are to pay all costs of these proceedings.

Court of appeal reversed, and trial court judgment reinstated.

SUMMERS, J., concurs. In my view plaintiff remains as the owner of the 45 acres constituting Fractional Section 21, Township 13 South, Range 4 West on the banks of Grand Lake, which is all he received in the original patent. BARHAM, J., concurs with written reasons.

1 . This was the state’s initial position. However, at the oral argument one or more of the justices sua sponte suggested that Price’s interpretation of the 1912 statute was erroneous and should be overruled. Briefs were requested as to this question. Nevertheless, in the view of a majority, our determination of a threshold issue concerning the specific demand before us makes unnecessary for decision any consideration at this time of the correctness of the Price decision.

2 . T 13 S, R. 4 West, Louisiana Meridian, per survey of May, 1851 by John Boyd, Deputy Surveyor, approved by R. W. Boyd, Surveyor General on February 2S, 1952. See also Official State Plat, approved May 28, 1952, per (re) survey in accordance with Act 232 of- 1934.

3 .That is, containing less than 640, 320, or 160 acres, respectively. See Patton on Titles, Section 116 at p. 293 (2d ed. 1957) : “Where reservations, navigable lakes, streams, etc., intercept the surveys, they produce fractional divisions, known as fractional sections, fractional quarters, etc.” See also 43 U.S.C. § 751(5). '

4 . According to the official survey, “Fractional Section 21” consisted of a triangular tract of 45 acres of swamp or overflow lands. The north and west boundaries were the section lines, and the meander line of Grand Lake formed its third or southeasterly side. In short, the area of ITractional Section 21 was situated in what would be the northwesterly corner of a full 640-acre section — if the section lines had been extended into the lake, which they were not.

5 . The only patentable “south-half” of Section 21, per government description, might be the informal designation as such of the south half of the 45 acres of the “Fractional Section 21” created by government survey.

6 . Since we are unable to agree with the plaintiff’s contention that there is any governmental subdivision denoted as “the south half of Section 21”, we do not reach the issue of what property might be received through a title to a non-existent ‘‘fracUo-nal south half”, or of the possible nullity for uncertainty of such a description : i. e., Which fractional portion (or 45 acres) was intended? See: Civil Code Article 2275; Lemoine v. Lacour, 213 La. 109, 34 So.2d 392 (1948) and Tircuit v. Burton-Swartz Cypress Co., 162 La. 319, 110 So. 489 (1926) and jurisprudence therein cited ; Patton on Titles, Section SO at 262-64 (2d ed., 1957) ; 26 CJS Deeds §§ 29, also 30 (at footnote 52).