Garnett v. Battistella

485 So. 2d 929, 1985 La. App. LEXIS 9488
CourtLouisiana Court of Appeal
DecidedJuly 9, 1985
DocketNo. CA-1282
StatusPublished
Cited by3 cases

This text of 485 So. 2d 929 (Garnett v. Battistella) 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
Garnett v. Battistella, 485 So. 2d 929, 1985 La. App. LEXIS 9488 (La. Ct. App. 1985).

Opinion

ARMSTRONG, Judge.

In 1972 plaintiffs filed suit against defendant seeking a judicial determination of the boundary line between the contiguous estates owned by plaintiffs and defendant. In support of this action the plaintiffs submitted a survey prepared in 1971 by Thomas Reed at their request. In 1974 the trial court appointed Hugh McCurdy to survey the property in question.

In 1977 plaintiffs filed a supplemental and amending petition requesting a complete accounting of all income and benefits received by defendant from the property and, furthermore, alleging plaintiffs’ entitlement thereto.

Trial was commenced on August 26,1981 and, after several lengthy recesses, was completed in February, 1983. In its judgment the trial court ordered that the boundary line between plaintiffs’ and defendant’s properties be fixed as the line shown on the survey made by Thomas Reed in 1971. The court further ordered that the plaintiffs’ action for revenues received by defendant from the rental of boat sheds on the property be dismissed. The court gave plaintiffs 30 days to exercise their option under LSA-C.C. art. 497 to either retain the constructions made by defendant or have them demolished at defendant’s expense. Finally, the court ordered that each party pay its own costs and one-half of Hugh McCurdy’s survey costs. All parties have appealed the trial court’s rulings.

The focus of this litigation is a canal which, according to recent surveys, is located on the properties of both plaintiffs and defendant. The property in question is located in Plaquemines Parish near the western bank of the Mississippi River. The plaintiffs own property which is contiguous and up-river to the defendant’s property.

The record reflects that in November 1921 Joseph Hingle, plaintiffs’ ancestors in title, sold the property in question to Empire Canal and Fisheries (“Empire”). This sale was made without reference to a sur[932]*932vey and contained the following property description:

... [A] certain tract of Land situated in the Parish of Plaquemines, State of Louisiana, about 55 miles below the City of New Orleans — on the right bank of the Mississippi River — Having and measuring (200) Two hundred feet width and extending from the New Orleans & Lower Coast R. R. Co. Track to Bay Adam— Bounded on the lower side by lands of A. L. Juricich [sic] and on the upper side by lands of the Vendor Joseph Hingle....

Prior to this act of sale Hingle dredged a canal which extended from a point near the railroad tracks to Bay Adams, but the property description in the act of sale contained no reference to the canal.

Following a series of transactions, the property was purchased by Edward F. Le-breton, at a sheriffs sale, in July 1928. Included in the property description in the July 1928 sale was a reference to the “Canal thereon.”

In November 1928, Lebreton sold four tracts of land, including the property in question, to defendant’s ancestor in title, Arthur Battistella. The property here at issue was described as follows:

A certain tract of land, together with all the buildings and improvements thereon, and all ways, rights, privileges, servi-tudes and advantages thereunto belonging, or in anywise appertaining, situated in the parish of Plaquemines, State of Louisiana, about fifty five miles below the city of New Orleans, on the right bank of the Mississippi river, having and measuring two hundred feet in width and extending from the New Orleans & Lower Coast Railroad Co. track to Bay Adam, bounded on the lower side by lands of A.L. Juricich [sic] and on the upper side by lands of Joseph Hingle.

Thus, defendant’s ancestor in title purchased the property without reference to the canal. Moreover, each act of sale from the 1921 sale by Hingle to Empire up to and including the sale from Lebreton to Battistella was made without reference to a survey.

In September 1929 Battistella had the property surveyed by R.P. Rordam. Ror-dam’s survey portrayed the canal as lying entirely on Battistella’s property and approximately centered on the property. More specifically, Rordam portrayed Bat-tistella’s upper property line as being parallel to and eighty feet above the upper bank of the canal and the lower property line as parallel to and eighty feet below the lower bank. In preparing the survey, however, Rordam did not specifically survey the Bay Adams half of the upper bank of the canal and had not used generally accepted surveying procedures.

In May 1930 Battistella sold to C.B. Foster Packing Co. a tract of land which included virtually all of the upper bank of the canal but reserved to Battistella the title to the bottom of the canal. In connection with this sale, Battistella, C.B. Foster and John Pottharst, individually and as president of the Peoples Utilities Co., Inc., entered into a boundary settlement which set out the limits of the respective parties’ properties. Hingle was not a party to the boundary agreement but he did sign the document as an intervenor for the limited purpose of granting a right of passage across property he owned at the Mississippi River end, or closed end, of the canal. Both the sale and boundary settlement of 1930 referred to the Rordam survey of 1929.

Upon Arthur Battistella’s death, his widow, Rose Bilson, and his son Louis, defendant herein, were placed in possession of the property. The judgment of possession was recorded on October 30, 1945. On October 31, 1945, Rose Bilson sold her undivided one-half interest in the property to Louis Battistella.

In 1960 and 1962, Louis Battistella had portions of the property adjoining the canal surveyed by Horace Black. In connection with these surveys, Battistella or his representative advised Black that his property was 250 feet in width, a representation clearly in conflict with the property description. Black’s April 1962 survey, based [933]*933upon a width of 250 feet, revealed that Battistella’s upper property line actually intersected the upper bank of the canal. This is to say that in contrast to the Ror-dam survey which depicted Battistella’s upper property line as being eighty feet above the upper bank of the canal throughout the entire length of the canal, the Black survey portrayed the upper boundary as intersecting with the canal. There is no indication from the record, however, that Battistella took any steps to either ascertain which survey was accurate or correct the error in either survey.

Although the exact date is not clear, Battistella began constructing boat sheds on the upper bank of the canal sometime in 1962. Battistella testified that construction began in 1960 but both Black’s survey and Battistella’s tax records indicate that the sheds were not built until some time in 1962.

In 1971 Thomas P. Reed surveyed the area in question for plaintiffs. Reed’s survey portrayed defendant’s upper boundary as traversing the canal so as to eliminate the mouth of the canal and a major portion of the upper bank from defendant’s ownership. The result of such configuration was to place the boat sheds almost entirely on plaintiffs’ property and leave defendant with a dead-end canal and no water access to either Bay Adams or the Mississippi River. Upon receipt of the Reed survey, plaintiffs met with defendant on two occasions to discuss their mutual boundary line. Plaintiffs instituted the instant boundary action on May 18, 1972.

In 1974 the trial court appointed Hugh B.

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Related

Batson v. Jimmerson
559 So. 2d 948 (Louisiana Court of Appeal, 1990)
Garnett v. Battistella
487 So. 2d 444 (Supreme Court of Louisiana, 1986)

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Bluebook (online)
485 So. 2d 929, 1985 La. App. LEXIS 9488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garnett-v-battistella-lactapp-1985.