McDade v. Bossier Levee Board

33 So. 628, 109 La. 625, 1902 La. LEXIS 161

• Court: Supreme Court of Louisiana
• Decided: May 26, 1902
• Docket: No. 14,170
• Status: Published

Opinions

PROVOSTY, J.

The matter involved in this suit is the title to a part of the land that was at one time the bed of Red Shoot Lake— one of those shallow lakes so common in the alluvial parts of the state. The lake has-become dry as a result of the building of the levees along Red river, both by reason of flood waters being warded off, and by reason of the low-water level in the river being lowered, and thereby the drainage of the country improved.

Plaintiff, has been in possession for several years. He claims title by right of accretion or reliction, he having been owner of the land bordering on the lake at. the time that its. bed became dry land. He complains that defendant has slandered his title, and he brings this suit for damages and for recognition of' his title.

Defendant is one of the boards created by the state to have charge of the public levees. It claims title by grant from the state, and under a regular act of conveyance executed in accordance .with the statute making the grant.

The bed of this lake, like all other lands in Louisiana not already owned by private persons, passed to the United States under the treaty by which France ceded Louisiana to the United States.

In 1849 (9 Stat. 352, c. 87) and 1850 (9 Stat. 519, c. 84) Congress adopted the acts of those-years granting to the state of Louisiana all the swamp and overflowed lands within her limits for the purpose of aiding in the reclamation of these lands by the construction of levees and drains. Perhaps it may be as well to quote the exact language in which this grant is made. The language is the same-in the two acts, and is found in their section 1, respectively, which reads, as follows:

“To aid the state of Louisiana in constructing the necessary levees and drains, to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands which may be or which are found unfit for cultivation, shall be and the same are hereby granted to that state.”

The two acts differ in two material particulars. In the act of 1849 the expense of making surveys is at the charge of the state, and! the lands pass without the necessity of the issuance of a patent; the only thing necessary being a selection by the state, and an approval of the selection by the Land Department of the general government. In the act of 1850 the expense of the survey is at the charge of the general government, and the title passes only hy a patent. The act of 1849 is peculiar to Louisiana. That of 1850 is general to all the states.

Under neither of these grants can the title to lands pass from the general government to the state without there having been a survey under authority of the general government, and a selection by the state, and an approval by the Land Office of the general government.

Township 16 N., range 12 W., N. W. district of Louisiana, in which the bed of this lake is situated, was duly and regularly surveyed under authority of the general government in 1836. The township and section corners were established, and the township and section lines were run, except that the latter were run only to the margin of the lake. The contour of the lake was meandered, and the meander points were marked by posts.

This survey was duly platted, and we have the map before us. The lake lies diagonally across the northeast corner of the township. It is about seven miles in length, by a width varying from a few acres to about a mile; its area being 1,077 Vr acres. It does not cover any single section, but cuts off the corners of some, and passes through the bodies of others. The sections are all laid off as regular sections, except that the space occupied by the lake is left blank — not traversed by any lines.

In 1852 the state duly and regularly selected in their entirety the sections thus partially affected by this lake, and the selection was duly and regularly approved by the General Land Office.

In 1892, at the organization of the defendant board, the state granted to it all the state lands within the limits of the district over which it was given authority, and afterwards this grant was made effective by conveyances executed by the Auditor and the Register of the State Land Office to the defendant board.

Under these circumstances, it would seem that the bed of this lake did pass from the general government to the state, and from the state to the defendant.

The contentions of plaintiff are numerous, but we think that none of them is tenable.

The first is that, the bed of this lake not having been surveyed, it did not pass to the state under the selection and approval in question.

It is true, the section lines were not run across the .traverse of the lake, and the exact acreage was not ascertained; but the comers of the sections were established, and the lake was shown to be enclaved by lands of a swamp and overflowed character, and the section lines were run to the margin of the lake. This identified the lands and deter; mined their swamp and overflowed character, and nothing more was required for the purposes of the acts of 1849 and 1850.

Eor the purposes of those acts, the exact area did not need to be ascertained, since the grant comprised the whole of the swamp and overflowed lands within the borders of the state, regardless of area. Besides, it seems late in the day to be discussing the sufficiency of this survey for serving the purposes of the acts of 1849 and 1850, when it has already, in point of fact, served those purposes; both the state and the federal authorities having already acted upon it in the matter of the selection ahd approval of the swamp and overflowed lands in the township.

The reason why the traverse of this lake was not surveyed, and its acreage ascertained, is fully explained by the remarks made by the Supreme Court of the United States in the case of Hardin v. Jordan, 140 U. S. 380, 11 Sup. Ct. 811, 35 L. Ed. 428. Speaking of a similar survey, the court there said: “It has been the practice of the government, from its origin, in disposing of the public lands, to measure the price to be paid for them by the quantity of upland granted; no charge being made for the lands under the bed of the stream or other body of water. The meander lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines.”

The survey we are dealing with was made in 1836, before the passage of the acts of 1849 and 1850, and at a time, therefore, when the purpose of making the survey was to ascertain the area of the dry land; no reckoning at all being taken of the water-covered land, which passed to the future grantee or patentee as an accessory of the dry land. As observed by the court in the same case (page 381, 140 U. S., page 811, 11 Sup. Ct., 35 L. Ed. 428): “It has never been held that the lands under water in front of such grants are reserved to the United States, or that they can be afterwards granted out to other persons, to the injury of the original grantees.”

But while this survey was thus made solely for the purpose of getting at the acreage of the dry land, and therefore left the wet land out of its computation of acreage, it nevertheless was just as efficacious for the purpose of identifying the lands and determining the question of their wetness or dryness, and of serving as a basis for the selection of the swamp and overflowed lands in the township, as if made specially for the purpose of such selection; and the authorities so considered it, since they acted upon it.

Not having ascertained the acreage of the lake, the surveyor naturally left this acreage out of his computation of the acreage of the sections bordering on the lake, and as naturally the sections and their acreage were put in the selection list in accordance with the survey (that is, minus the acreage of the lake), and the list was approved as made. Plaintiff contends that the effect of this was that not the entire sections passed to the state, but only the acreage specified as their contents, and that the water-covered area passed, if at all, only as an accessory to the dry land, and that, if so, it also passed to his authors in the same way when the state conveyed to them the same dry land.

Whether the bed of this lake would have passed to the state as water area accessory to the dry land, if it had not passed as land, need not be considered, for it is very clear that it passed as land. Ascertainment of acreage is indispensable in the case of land to be thereafter disposed of by the acre, but it is utterly unnecessary in the case of land to be disposed of by selection and approval under the swamp-land grants of 1849 and 1850. All that is necessary in carrying out those grants is that the lands be identified and their swamp character determined. The whole of the swamp lands, regardless of area, having been granted, the area can cut no figure in the matter of the selection and approval under the grant. Whether the area in the selection list be of one acre or of a million acres can make absolutely no difference. In fact, the selection list might leave out altogether the specification of area, and no harm be done. We conclude that the controlling feature of the description of the land in the selection list was the designation of the sections, and not the specification of the number of acres they contained, and, as a consequence, that there passed to the state, not the specified acreage, but the sections in their entirety, as selected and approved.

We concede the contentions of plaintiff that “the evidence shows conclusively that the land in question was covered with water, or a lake, in 1850,” and that “it is well settled that the Land Department of the United States is the final and exclusive judge of the character of lands intended to be granted, and when it acts its actions cannot be inquired into by any court in a judicial proceeding.”

The reply is that there is no attempt on the part of defendant to set aside any decision or action of the General Land Office in connection with the land in controversy; that there is no attempt to coerce the United States Land Department into approving this land to the state of Louisiana, nor any attempt to overthrow a patent granted to this land as United States land; that, on the contrary, the contention of defendant is that the Land Department has, in point of fact, approved the land to the state.

We cannot concede that the General Land Office has ever decided that a so-called lake of this kind was not swamp and overflowed land, nor that such ruling, if made, would be binding on the courts of the country.

The published decisions of the General Land Office to which we have been referred, holding that the beds of lakes did not pass under the swamp-land grants, were made in cases where large navigable bodies of water were involved. We can readily see that the beds of! Lakes Michigan and Erie did not pass under these grants of swamp and overflowed lands, and that for the same reason the beds of much smaller lakes did not pass; but to apply this doctrine to the overflowed swamps, or even to the shallow lakes, of Louisiana, is, in our view, totally inadmissible. Some letters of instructions by the General Land Office to the Surveyor General of Louisiana, making such an application of the doctrine, are submitted to us in manuscript; but these rulings, if they can be called such, were not made in the adjudication of actual controversies, and have not the weight of decisions, and, if they had, we should not consider them persuasive. In our opinion, if they really intend to apply to the overflowed swamps of Louisiana the doctrine adopted with reference to lakes, they simply make a wrong application of a correct doctrine.

Under such misapplication of the doctrine in question, a goodly portion of the fairest cane and cotton fields of the Louisiana of to-day would have been the beds of lakes in 1849 and 1800, and the present possessors of them be without title.

Many of these were more deeply and widely submerged in 1849 and 1850 than was the land in controversy. To metamorphose these areas from water-covered swamp to smiling field was the very object and purpose of the grants, as, indeed, is expressly stated in the acts making them. The grant is made, says the act of 1849, “to aid the state of Louisiana in constructing the necessary levees and drains to reclaim the swamp and overflowed lands therein.”

Are we to hold that the very water-covered lands that were to become dry as the direct, necessary, and inevitable result of the building of the levees in aid of which the grants were made, were not land, within the purview of the grants? Why, we should be going against the plain intent of the acts.

If Congress had intended that swamp lands alone should pass, why add the word “overflowed”? The word “swamp,” without the addition of the word “overflowed,” would have conveyed all lands so lacking in drainage as to be temporarily covered by water in rainy seasons. If such lands alone were intended to be conveyed, why add the word “overflowed”? Has the word “overflowed” any other meaning than “water-covered”? Water-covered areas are not to be taken out of the operation of the grant by so simple a process as calling them lakes. The land in controversy was not a lake, except in the sense in which the permanently water-covered parts of all swamps are lakes. Hunters walked all over it in the dry season. In some parts it was a mere slough.

The word “overflow” was added for the very purpose of bringing within the grant these permanently submerged areas. It does not apply to areas whose “overflow” is merely periodical or temporary. Heath v. Wallace, 138 U. S. 584, 11 Sup. Ct. 384, 34 L. Ed. 1063. Said the court in that case: “The term ‘overflow,’ as thus used, has reference to a permanent condition of the lands to which it is applied. It has reference to those lands which are overflowed, and will remain so without reclamation or drainage.”

The reason why the beds of large lakes did not pass under the land grants in question is not because they were not land, for in point of fact they are land, but because such bodies of water are not susceptible of private ownership, and because, also, the grants were not made for the purpose of reclaiming them. They did not come within the contemplation of the acts.

However strong might be our inclination to follow the rulings of the General Land Department on questions so peculiarly within its province as the present one is, we cannot allow ourselves to follow these rulings blindly, abnegating our own common judgment. In the case of Hardin v. Jordan, supra, after the General Land Office had decided that certain submerged lands had not passed from the United States (become severed from the public domain), the Supreme Court of the United States held that they had passed (had become severed); that exalted tribunal thus giving to this court ample precedent for not yielding too subserviently to the authoritativeness of the rulings of the Land Department.

We conclude that the bed of this lake passed to the state as land, and that it passed to the defendant under the grant made to it by the state.

Under the very act under which the plaintiff’s authors acquired from the state (Act No. 247 of 1S55), these shallow lakes are required to be treated as land, and to be surveyed and sold as such. This, as a matter of course, excluded all question of accretion or reliction with reference to the bed of this lake. It being land, it could not be acquired by accretion or reliction. The bed of this lake and the lands bordering it belonged at that time to the state, and it was unquestionably within the power of the legislature to declare that they should be treated as land surface, and not as water surface. Whether in Louisiana the beds of lakes can be acquired by accretion or reliction, quaere.

There is no force in the contention that the state having conveyed to the plaintiff’s authors by the same description by which she acquired from the general government, and by reference to the same survey and plats and field notes, the same -area passed from her to plaintiff’s authors as from the general government to her. In the first place, the state did not convey by the same description by which she had acquired. She acquired S. y2 of section- 2; she conveyed fractional S. W. í4 of the same section. She acquired the whole of section 11; she conveyed the lots 1, 3, and 4, and N. ^ of N. E. %, of the same section. She acquired all of section 12; she conveyed lots 3, 4, 5, 6, 8, 9, 10, 11 and S. W. %, of the same section. She acquired all of section 13; she conveyed lots 2, 3, and 4 of the same section. Reference to the map shows that no part of the land conveyed by the state includes the bed of this lake, except two or three acres at the S. W. corner of N. y2 of N. E. 14 of section 11, and about 10 or 12 acres at the southwest corner of section 12.

In the next place, there exists between the selection and approval in question, and the conveyance by the state to plaintiff’s authors, this radical difference: That the one was nothing more than an act declaratory of the character of certain lands, whereas the other was a sale at so much per acre. In the one, acreage cut no figure; in the other, it was the all-inrportant point. A survey made to serve as a basis for the one would have for its sole purpose the identifying of the land and the fixing of its character. On the other hand, a survey made to serve as basis for the other would have for its purpose the ascertainment of the acreage.

It is undoubtedly true that, “where lands are granted according to an official plat of their survey, the plat, with its notes, lines-, descriptions, and landmarks, becomes as much a part of the grant or deed by which they are conveyed, and, so far as limits are concerned, controls as much, as if such descriptive features were written out on the face of the deed or grant”; but this doctrine, for thfe reasons just stated, is entirely inapplicable to the case.

Coming to the matter of the settlement of accounts between the litigants for improvements, on the one part, and rents and revenues, on the other, we have to hold that, legally speaking, plaintiff has been a possessor in bad faith; and this we regret, for we are satisfied that morally he was in good faith. We take it to be proved that, before venturing to enter into possession of the bed of this lake, plaintiff and the other coterminous owners sought to make sure of their right by applying for information wherever it was to be had, and that they took possession only after the Register of the State Land Office had advised them that the lands had not passed to the state under the swamp-land grants.

Bearing upon this action of the Register of the State Land Office, we find in the brief the following: “Under this assurance given by an official of the state, acting within the scope of his official capacity, the plaintiff went into possession of the land in controversy, and made it valuable. The state acquiesced in this for years, and should now be estopped from asserting any claim to the land.” This estoppel does not appear to be seriously urged. It was not pleaded, although plaintiff filed a very full replication to the reconventional demand of defendant. The Register is not shown to have been the agent of the defendant at the time the statement relied on is alleged to have been made; nor, if such, to have had authority to estop defendant in connection with its lands. The Register could not by any admission of his have estopped the state.

The very fact of plaintiff’s having made inquiry shows that he suspected the defectiveness of his title and that his error was one of law and not of fact. Applying the law to this situation, the possession of plaintiff was in legal bad faith.

“Under the laws of Louisiana, the essential conditions of good faith in a possessor under a defective title are that he was ignorant of the defects which vitiated his title, and that he had just reason to believe that he was acquiring a good title. Hence these defects must have reference to some hidden or concealed facts, and not to ignorance of the law under which the title was a nullity.” Heirs of Dohan v. Murdock, 41 La. Ann. 494, 6 South. . See, also, Railroad Co. v. Sledge, 41 La. Ann. 896, 6 South. 725, and Railroad Co. v. Elmore, 46 La. Ann. 1237, 15 South. 701.

(Feb. 2, 1903.)

The only evidence we find on the subject of the number of acres of which plaintiff has been in possession, and on the subject of the length of time he has had the enjoyment of the land, is the following testimony given by himself:

“Question. How many acres of land have you cleared? Answer. I suppose, about 80 acres. Q. Yon have it in cultivation? A. Yes, sir. Q. How long have you had it in cultivation? A. It has been cleared at intervals. I think at first we had in about 30 acres, about four or five years ago, and then we have put in a little each year, until now I have cleared about 80 acres.”

The land, when cleared and ready for the plow, can be rented at $5 a year per acre; but this, of course, includes the use of houses and fences.

The witnesses diverge in their estimates of the cost of clearing the land, but we find that it is possible to have land of the same nature cleared at a cost of $10 per acre. Everything considered, we think "that justice will have been done between the parties if the rents and revenues and the cost of clearing the land are made to offset each other; not including the rents of 1902, however, which will have to go to the defendant.

The plaintiff having been adjudged a possessor in bad faith, it is optional with the defendant to keep, or not, the buildings and fences. Civ. Code, art. 508. In the event they are kept, we fix the price of the double houses at $150 each, and of the single house at $125. And since we must fix some price on the partially rotten rail fence, which originally cost $100 per mile, and on the other fence, as to the cost of which there is no evidence, we fix such price at $50 per mile.

As we understand, plaintiff took possession of this land in 1895 or 1896 — three or four years after it had been granted by the state to the defendant, and after it had, therefore, ceased to be state land. If so, Act No. 21 of 1886, granting pre-emption rights to actual settlers on state lands, is not applicable to the facts of the case, the land not having been state land when taken possession of; and we so hold.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be set aside; that the.defendant be decreed to be the owner of the land in controversy; that the demand of the plaintiff for the cost of clearing said land, and the demand of the defendant for the rents and revenues of said land, be rejected, except" as to the rents and revenues of the year 1902; that the plaintiff be, and he is hereby, ordered to demolish and take away at his own expense the houses and fences built by him on said land, unless the defendant decides to keep the same, in which latter event, and not otherwise, it is ordered, adjudged, and decreed that the defendant pay to the plaintiff $1,025 for the houses, arid $75 for the fences, so kept; and that the said option be exercised and notified to the plaintiff within six months from the date of this judgment; otherwise the present judgment against defendant for the value of said houses and fences to become final on due proof made summarily in the district court of the nonexercise of the said option. It is further ordered, adjudged, and decreed that the defendant have judgment against plaintiff for the sum of $400, representing the rents and revenues of said land for the year 1902 — in case, only, however, the same has been collected by the plaintiff. Plaintiff to pay the costs in both courts.

BLANCHARD, J., concurs in the decree. BREAUX, J., dissents.