Thibodeaux v. Salassi

331 So. 2d 571
CourtLouisiana Court of Appeal
DecidedApril 12, 1976
Docket10692
StatusPublished
Cited by4 cases

This text of 331 So. 2d 571 (Thibodeaux v. Salassi) 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
Thibodeaux v. Salassi, 331 So. 2d 571 (La. Ct. App. 1976).

Opinion

331 So.2d 571 (1976)

Ivy J. THIBODEAUX et ux.
v.
Albert J. SALASSI et al.

No. 10692.

Court of Appeal of Louisiana, First Circuit.

April 12, 1976.
Rehearing Denied May 24, 1976.

*572 Edward James Gaidry, Thibodaux, for appellants.

James C. Walker, Jr., Houma, for appellees.

Before SARTAIN, EDWARDS and PONDER, JJ.

EDWARDS, Judge.

Plaintiffs filed suit to have the boundary between their and defendants' properties judicially established. After trial on the merits, judgment was rendered in favor of plaintiffs. On application of defendants, a new trial was granted for the purpose of argument only.

*573 After consideration thereof, the trial court set aside the original judgment and rendered judgment in favor of defendants. From that judgment plaintiffs now appeal.

Plaintiffs are owners of a tract of land in Terrebonne Parish. The pertinent acts of sale by which the plaintiffs acquired this tract contain the following property descriptions:

A tract of land, comprised in Sections 56, 57, 85, 86, and 89, T-16-S, R-17-E, measuring a front of three-fourth (3/4) arpent, more or less, on the Bayou Coteau Public Road by full depth to a line drawn parallel to Bayou Terrebonne at thirty arpents therefrom (commonly known as the Thirty Arpent Line), the upper and lower lines of said tract being parallel to a certain ten foot canal or ditch located below said tract and commonly known as the Pelia Ditch, the lower line of said tract being at one and one-half arpents from the center of said Pelia Ditch and parallel thereto; bounded above by property allotted to Gillis LeBoeuf and others, below by property of Delien Kraemer, in the rear by property of Dupont Realty Co. and/or Irene Wallace or assigns, and in front by the Bayou Coteau Public Road; together with all buildings and improvements thereon. (Emphasis supplied)
A tract of land, comprised in Sections 56, 57, 85, 86, and 89, T-16-S, R-17-E, measuring a front of three-fourths (3/4) arpent, more or less, on the Bayou Coteau Public Road by full depth to a line drawn parallel to Bayou Terrebonne at thirty arpents therefrom (commonly known as the Thirty Arpent Line), the upper and lower lines of said tract being parallel to a certain ten foot canal or ditch located below said tract and commonly known as the Pelia Ditch, the lower line of said tract being two and one-half arpents from the center of said Pelia Ditch and parallel thereto; bounded above by property of Dauvellien LeBoeuf, below by property allotted to Carmelite Kraemer LeBoeuf Countiss, in the rear by property of Dupont Realty Co. and/or Irene Wallace or assigns, and in front by the Bayou Coteau Public Road; together will all buildings and improvements thereon. (Emphasis supplied)

These tracts were acquired from the heirs of Aubin LeBoeuf, vendee of the late Senator Allen Ellender. That transaction from Ellender to LeBoeuf contained the following description:

A certain tract of land situated in the Parish of Terrebonne, La., at a distance of about three miles from the City of Houma, measuring a front of one and one-half arpent (1½) on the northern boundary line of the property of vendor, or on the proposed public road leading from the Houma-Raceland Road westerly along the Bayou Coteau, by full depth to a line drawn parallel to Bayou Terrebonne at thirty (30) arpents therefrom being about twenty-seven to thirty arpents more or less; the upper and lower lines of said tract herein sold being parallel to a certain ten foot canal or ditch located below said tract and commonly known as the Pelia Ditch, the lower line of said tract being at one and one-half arpent from the center of said Pelia Ditch and parallel thereto; bounded above or west by property of Dauvelian LeBoeuf, below or east by other property of vendor and in front or north by property of Dr. Thos. Stork or assigns. (Emphasis supplied)

Defendants are owners of lots in Tall Timbers Subdivision. This subdivision was carved from the estate of Dauvelian LeBoeuf, who likewise acquired his property from Senator Ellender, described in that act of sale to Dauvelian LeBoeuf as follows:

A certain tract of land situated in the Parish of Terrebonne, La., at a distance of about 3 miles from the City of Houma, measuring two arpents front on the proposed public road, leading from the Houma-Raceland road westerly, along *574 said Bayou Coteau, by depth to a line drawn parallel to Bayou Terrebonne, at thirty arpents therefrom, being twenty five arpents, more or less, the upper and lower lines of said tract being parallel to a certain ten foot ditch or canal located below said tract and commonly known as the Pelia Ditch or canal; the lower line of the tract herein conveyed begins at three arpents from the center of said Pelia ditch or canal; bounded above and below by other lands of vendor. (Emphasis supplied)

Senator Ellender was thus the common ancestor in title of plaintiffs and defendants. The acquisition, from a Mr. Lirette, of the original 8 arpent tract by Senator Ellender describes that tract as follows:

A certain tract of land, situated in the Parish of Terrebonne, La. back of and adjoining the thirty arpent line separating it from the front lands of the vendor herein and Nicholas Lirette; said tract containing a superficial area of about one hundred and seventy acres more or less, and bounded as follows, to-wit: in front by said thirty arpent line, above by the rear lands of Nicholas J. Lirette, in the rear or north by the rear lands fronting on the Bayou Blue, and below by what is known as the Bocage Line, running in the Center of what is known as the Pelia Ditch, running N 66 degrees East; said tract having a width of eight arpents, more or less, between parallel lines, starting at the said Pelia Ditch, which runs N 66 degrees east. (Emphasis added)

It can be seen from the above and foregoing property descriptions that the northern and southern boundaries (generally east-west running lines) of all the tracts mentioned were set in the descriptions as lines parallel to and at certain distances (arpents) from the Pelia Ditch. It can be noted further that only in the acquisition by Senator Ellender from Lirette was a course bearing mentioned for the Pelia Ditch.

As the record reflects, the dispute herein narrows to a single issue: should the boundary in question be determined in reference to (or parallel to) a line having a course bearing of N 66 degrees E or in reference to the Pelia Ditch as it exists in fact? The problem arises because, although the Pelia Ditch for some 1900 feet back from the public road on Bayou Coteau does run on a bearing of N 66 E (actually the back azimuth thereof to the southwest), the ditch turns slightly upward to the northwest at a cross canal and continues on for another 1300 feet in that direction before it vanishes. Therefore, depending on how it is determined, the boundary in question either will be a straight line paralleling the N 66 E bearing, or will dogleg slightly to the right and upward at a point just past the cross canal, paralleling exactly the Pelia Ditch.

The subdivision lies above and contiguous to plaintiffs' tract. The boundary as set forth on the plat of Tall Timbers Subdivision was set in reference to the N 66 E bearing. Plaintiffs contend this causes parts of the southern lots to encroach on their land. The court-appointed surveyor made his proces verbal,

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Bluebook (online)
331 So. 2d 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodeaux-v-salassi-lactapp-1976.