State v. Cenac

132 So. 2d 897
CourtLouisiana Court of Appeal
DecidedSeptember 25, 1961
Docket5284
StatusPublished
Cited by17 cases

This text of 132 So. 2d 897 (State v. Cenac) 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
State v. Cenac, 132 So. 2d 897 (La. Ct. App. 1961).

Opinion

132 So.2d 897 (1961)

STATE of Louisiana
v.
Dennis CENAC et al.

No. 5284.

Court of Appeal of Louisiana, First Circuit.

June 30, 1961.
As Amended on Denial of Rehearing September 25, 1961.

Jack P. F. Gremillion, Atty. Gen., George M. Ponder, John L. Madden, Asst. Attys. Gen., Ernest R. Eldred, Sp. Asst. Atty. Gen., and Edward M. Carmouche, Lake Charles, for appellant.

S. W. Plauche, Jr., Lake Charles, Claude B. Duval, Richard E. Talbot, Houma, for appellees.

Before ELLIS, LOTTINGER, JONES, HERGET and LANDRY, JJ.

Writ of Certiorari Denied, see page 928, post.

LANDRY, Judge.

This is a slander of title suit in which the State of Louisiana, claiming title to the bed and bottom of Lake Barre, Terrebonne Parish, Louisiana, asserts that defendants, Dennis Cenac, Victoria Blum, Sidney Steinfield, Maurice Blum, Mrs. Hattie Blum Oldstein and Mrs. Bertha Blum Massman, have slandered petitioner's title to a portion of the bed of said waterway by the execution of an oil, gas and mineral lease covering a portion of the bed and bottom thereof situated in Sections 49, 50, 51 and 52, Township 21 South, Range 19 East, Terrebonne Parish

On exceptions of nonjoinder of parties defendants filed by the aforesaid defendants plaintiff, by supplemental and amended petition, impleaded as defendants herein Robert B. Prentice and M. H. Marr, mineral lessees of defendants Dennis Cenac, et al.

The petition of the State of Louisiana prays that plaintiff be recognized as owner of the bed and bottom of Lake Barre and defendants ordered to disclaim all interest therein or, within a delay to be fixed by the court, assert defendants' claim of title to the portion thereof embraced within the mineral lease which plaintiff alleges constitutes a slander of plaintiff's title.

In response to the petition of the State of Louisiana as supplemented and amended each defendant filed a plea of prescription or peremption predicated upon Act 62 of 1912, now LSA-R.S. 9:5661, which reads in full as follows:

"§ 5661. Actions, including those by the State of Louisiana, to annul any patent issued by the state, duly signed by the governor and the register of the *898 state land office, and of record in the state land office, are prescribed by six years, reckoning from the day of the issuance of the patent."

The trial court sustained the defendants' plea of prescription and dismissed plaintiff's action from which judgment plaintiff appeals.

The undisputed facts of this case are set forth in an agreed stipulation thereof entered into between the parties and filed of record herein. Said stipulation shows that subject property constitutes a portion of the bed of Lake Barre, a navigable waterway situated in Terrebonne Parish. Defendant Lessors trace perfect unbroken record title to the property in controversy to a patent issued by the State of Louisiana to their predecessor in title, Houma Fish & Oyster Co., Ltd., under date of December 6, 1899, which said patent was duly recorded in the Conveyance Records of Terrebonne Parish December 12, 1899. In addition to the aforesaid patent from the State of Louisiana, the original patentee, Houma Fish & Oyster Co., Ltd., also obtained a transfer of the property in dispute from the Board of Commissioners of the Atchafalaya Basin Levee District dated and recorded on the same date as the patent thereof received from the State of Louisiana, namely, December 6, 1899 and December 12, 1899, respectively. The patent issued by the State to the author in title of defendants-lessors was, as required by law, duly signed by the Governor of this State and the Register of the State Land Office. Besides being filed in the Conveyance Records of Terrebonne Parish, the patent upon which defendants rely was also duly filed of record in the State Land Office of this state. Since the issuance of the patent on December 6, 1899 covering the property in dispute herein to the present time, defendants and their predecessor in title, Houma Fish & Oyster Co., Ltd., have paid all taxes assessed against the property in question. From the date of the issuance of said patent by the state, namely, December 6, 1899, until July 23, 1958 (the date of filing of the present suit) neither the State of Louisiana nor any agency thereof sought to annul either the patent issued by the state or the transfer from the Board of Commissioners of the Atchafalaya Basin Levee District to defendants' author in title.

Simply stated, the sole issue before the court is whether the State of Louisiana has a valid claim of ownership of that portion of the bed and bottom of Lake Barre, a navigable waterway patented to defendants' author in title on December 6, 1899 or whether, as contended by defendants, the state's claim of title thereto is forever precluded and barred by virtue of the prescriptive effect of Act 62 of 1912, presently LSA-R.S. 9:5661 hereinbefore set forth, and the firmly established jurisprudence of this state commencing with State v. Sweet Lake Land & Oil Co., 164 La. 240, 113 So. 833, and culminating in California Co. v. Price, 225 La. 706, 74 So.2d 1.

Learned counsel for the state readily concedes California Co. v. Price, supra, is squarely in point but contends that said decision as well as State v. Sweet Lake Land & Oil Co., supra; Realty Operators v. State Mineral Board, 202 La. 398, 12 So.2d 198; O'Brien v. State Mineral Board, 209 La. 266, 24 So.2d 470, and Humble Oil & Refining Co. v. State Mineral Board, 223 La. 47, 64 So.2d 839, were all incorrectly decided and should be overruled. In this regard we take the liberty of quoting the following explanation of the state's position as set forth in the brief filed herein on behalf of plaintiff:

"This case is squarely in point with the case of The California Company v. Price, 225 La. 706, 74 So.2d 1. In that case a patent had been issued on lands which included the bed of Grand Bay. The private claimants pleaded Act 62 of 1912 as a bar to the state's claim to the bed of Grand Bay. Act 62 of 1912, as quoted in the Price case was as follows:
*899 "`* * * That all suits or proceedings of the State of Louisiana, private corporations, partnerships or persons to vacate and annul any patent issued by the State of Louisiana, duly signed by the Governor of the State and the Register of the State Land Office, and of record in the State Land Office, or any transfer of property by any sub-division of the State, shall be brought only within six years of the issuance of patent, provided, that suits to annul patents previously issued shall be brought within six years from the passage of this Act.'
"The Supreme Court held that the patent issued to the private claimants was `tacitly confirmed and rendered unassailable by the inaction of the State and the provisions of Act 62 of 1912', 74 So.2d 7, and on rehearing, that when `the stated time elapsed without action, the curative provisions of the law became operative and rendered all such patents unassailable,' 74 So.2d, 14.
"It is the position of the State that the Price case was decided incorrectly. The importance of this matter cannot be overestimated. At issue is the broad question of the effect of all errors made in State transfers of immovables to private owners, and specifically at issue is the question of private ownership of navigable waterways."

Learned counsel for the state has ingeniously phrased the state's present contentions in terms which at first glance would appear to be original, novel and not previously adjudicated.

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132 So. 2d 897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cenac-lactapp-1961.