Fitzsimmons v. Cassity

Louisiana Court of Appeal

Fitzsimmons v. Cassity

172 So. 824, 1937 La. App. LEXIS 131

CourtLouisiana Court of Appeal

DecidedMarch 1, 1937

DocketNo. 5396.

StatusPublished

Cited by11 cases

This text of 172 So. 824 (Fitzsimmons v. Cassity) 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

Fitzsimmons v. Cassity, 172 So. 824, 1937 La. App. LEXIS 131 (La. Ct. App. 1937).

Pincite

Opinion

TALIAFERRO, Judge.

Plaintiff, under appropriate allegations, instituted this possessory action against S. G. Cassity, a resident of Caddo parish, La., wherein he avers himself to be the owner,, and as such in the physical and peaceful possession, of the following described property situate and being in the parish of Bossier, to wit:

*825 “All that part or portion of South Half of Section 12, South Half of Section 11, North Half of Section 14, North Half of Section 13, in Township 19 North, Range 14 West, Bossier Parish, Louisiana, which lies North of the following South boundary-line, to-wit:

“Beginning at a point 283 feet South of the common corners of Sections 10, 11, 14 and 15 T. 19, N., R. 14 West, thence South 54 degrees, 46 minutes East 626.54 feet, thence South 54 degrees, 45 minutes East 1140.90 feet, thence South 48 degrees, 17 minutes East, 1336.47 feet, thence South 81 degrees 51 minutes East, 824.01 feet, thence North 86 degrees 22 minutes East, 749.29 feet, thence South 25 degrees 50 minutes East, 230.87 feet, thence South one degree 19 minutes West, 187.55 feet, thence North 78 degrees no minutes East, 1903.30 feet, to the bank of Red River as the same is- now located, together with all the batture, accretion and riparian rights appertaining thereto, as will be more fully shown and described in that certain judgment rendered by this Honorable Court on the 27th day of October, 1932, recorded in Conveyance Book 107, Page 415 of the records of Bossier Parish, Louisiana, a certified copy of which judgment is hereto annexed and made a part of this petition, and as more fully shown by deed of date May 17th, 1928, duly recorded in Conveyance Book 97, Page 141 of the Conveyance Records of Bossier Parish, Louisiana.”

Pie avers that-the boundaries of his land have been and are now definitely located and established by the judgment referred to,' as well as by actual survey by competent civil engineers. He further avers that defendant has unlawfully entered upon said land, cut trees therefrom, and has erected an artificial duck blind thereon which has been, and is being, used by him, his agents and employees, for duck hunting purposes, thereby disturbing and interfering with petitioner’s possession of the land and the use and occupancy thereof; that he has repeatedly demanded of defendant, his agents and employees, that they cease interfering with and disturbing his said possession and right of occupancy, without 'success; but, on the contrary, they persist therein. To restrain them from so doing, a rule was sued out against defendant only to show cause why a preliminary injunction should not issue. The rule was continued by consent, and referred to the merits. A permanent injunction is prayed for.

In limine, defendant excepted to the court’s jurisdiction ratione material. The exception was referred to the merits, without prejudice.

Answering, defendant denies ■ that the land described in the petition is situated in Bossier parish, and denies that plaintiff is the owner or in possession of same, in so far as said description includes any part or portion of,that body of water and bed thereof known as “Old River” or “Old River Lake,” and in so far as said description covers and includes any part or portion of section 13, township 19 north, range 14 west. He avers that plaintiff’s ownership and possession are confined to lands embraced in the description in the deed to him from James M. Bird, of date May 17, 1928, which is referred to in the petition. He admits erection of the artificial duck blind on said “Old River” or “Old River Lake” and that he used it during duck hunting seasons. He further pleads :

“8. Further answering, defendant shows that that body of water known and described as ‘Old River’ or ‘Old River Lake’ was a part of a navigable body of water at the time of the admission of the State of Louisiana to the Union in 1812, and said water and the bed thereof is the property of the State of Louisiana by virtue of its sovereignty.

“9. In the alternative, defendant shows that if said Old River or Old River Lake was not a part of a navigable body of water at the time of the admission of the State of Louisiana to the Union in 1812, then said Old River or Old River Lake -became part of a navigable body of water at a time subsequent to 1812, and that the State of Louisiana became the owner thereof by virtue of such navigability.

“10. Further in the alternative, defendant shows that if it be found that said Old River or Old River Lake was not navigable at the time of the admission of the State of Louisiana to the Union in 1812 and that it has not been navigable since that time, then the waters of Old River or Old River Lake and the bed thereof were not under the direct ownership of any person, firm or corporation at the time of the enactment of Act No. 258 of 1910 of the Legislature of Louisiana, and the State of Louisiana acquired the ownership of the waters of Old River or Old River Lake and the bed thereof by virtue of the provisions of said act.”

And he finally prays that plaintiff’s suit be dismissed and his demands rejected.

*826 The plea to the court’s jurisdiction was overruled, and judgment was rendered for plaintiff as prayed for. Defendant ap.pealed.

The basis of the exception to the jurisdiction, as well as the questions raised on the merits, may the better be understood when studied in conjunction with the government plat of 1839 of the locus in quo. We here insert a copy^ of said plat:

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