SUMMERS, Justice.
The Union Bank instituted a possessory action against Anthony J. Roy, alleging that for more than one year it has been in possession of a lot of ground in the town of Marksville fronting 48 feet 10 inches on the west side of Main Street by a depth east and west along Mark Street of 108 feet.
It is alleged that the defendant has constructed a fence enclosing the western 3 feet of this property within the year preceding the suit thereby disturbing plaintiff’s enjoyment and quiet possession. Injunctive relief was also sought to compel removal of the fence pending the possessory action as authorized by Article 3663 of the Code of Civil Procedure.
From a judgment in plaintiff’s favor, defendant appealed to the Third Circuit. There, by a divided court, the judgment was reversed. See 168 So.2d 716 (La.App. 1964). We granted certiorari on plaintiff’s application.
Plaintiff has advanced the contention that defendant, by averring ownership In his responsive pleadings,' has converted the suit into a petitory action. Although these averments of ownership were made, we find that they were urged by defendant to permit the introduction of evidence that he possessed as owner, the extent of that possession and the length of time during which the defendant and his ancestors in title had possession. Such proof of ownership or title is permitted under an exception to the rule that ownership or title is not an issue in a possessory action. La. Code Civ.P. art. 3661 (1960).
Under the theory that possession of a part is possession of the whole, allegations in a petition concerning ownership may be necessary to establish the extent of that ownership and the consequent extent of the possession incident thereto. La. Code Civ. P. art. 3661 (1960) ; La.Civil Code art. 3437 (1870). In these circumstances ownership, as such, is not an issue to be adjudicated, but it is alleged simply to make the pleadings broad enough to permit proof concerning the nature and extent of the possession. Therefore, in a possessory action it takes more than an allegation of ownership in defendant’s answer to convert that action into a petitory action. There must be a prayer by defendant for an adjudication of ownership. In the absence of such a prayer the action is not converted. Walmsley v. Pan American Petroleum Corp., 244 La. 513, 153 So.2d 375 (1963).
It was proper, therefore, to allege — and it is proper for us to consider — the ownership of the parties in the possessory action as an incident to determining the nature [805]*805and extent of the possession exercised on the property in dispute.
Furthermore, anticipating the fact that plaintiff would establish the one-year corporeal possession of the 3¡^-foot strip required to maintain its possessory action, the defendant Roy has urged that plaintiff’s possession of the disputed strip was precarious and for him as plaintiff’s vendee. This position is based upon the contention that the disputed strip of land had been conveyed to Roy by deed in 1937. Therefore, an examination of that deed and other deeds bearing on that issue is necessary in this connection also, for if plaintiff conveyed the 3J^-foot strip to defendant, the possession of that strip by plaintiff would be precarious and would under most circumstances inure to defendant’s benefit. Such a finding would mean that plaintiff did not have the possession requisite to maintain the possessory action — a vital issue in this cause. Watson v. Crown Zellerbach Corporation, 240 La. 500, 124 So.2d 138 (1960); Boyete v. Perryman, 240 La. 339, 123 So.2d 79 (1960); Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369 (1950); Frost Lumber Industries, Inc. v. Harrison, 215 La. 767, 41 So.2d 674 (1949); John T. Moore Planting Co. v. Morgan’s Louisiana & T. R. & S. S. Co., 126 La. 839, 53 So. 22 (1910).
Prior to July 31, 1935 the Avoyelles Bank owned the entire southern 48.83 feet of Block No. 5 in the town of Marksville, bounded on the east by Main Street and on the west by Monroe Street. By deed dated July 31, 1935, the Avoyelles Bank sold to the Union Bank the following property:
“That certain town lot, and the bank buildings and all other improvements thereon and thereto belonging, situated in the town of Marksville, Louisiana, known as the Avoyelles Trust and Savings Bank Building and lot on which the same is situated, and more fully described as follows: The said lot to have a front of forty-eight feet (48') ten inches (10") on Main Street beginning from the corner of Main and Mark Streets, and extending back a depth of one hundred seventy-nine feet (179') between parallel lines. Bounded on the north by property of the vendor or the Post Office lot, and property of Mrs. H. C. Schrieber, on the south by Mark Street, on the east by Main Street, and on the west by property of the Avoyelles Trust and Savings Bank. All as per plat of survey of E. B. Mes-sick, Surveyor, hereto annexed as part hereof.
“It is agreed that the purchaser shall always leave open a driveway or passage, and to be used only as such, for the benefit of the lot now belonging to the vendor and known as the Post Office lot which is located immediately north of the property herein sold, said driveway or passage to be located im[807]*807mediately west of the bank building or ninety-eight feet (98') from the eastern property line of the property herein sold, and to be ten feet (10') front on Mark Street running back between parallel lines to the said Post Office lot, said driveway or passage being shown on the plat of survey of E. B. Messick, Surveyor, attached to this sale.”
On November 3, 1937, the Union Bank conveyed to Anthony J. Roy, defendant, a portion of the above lot described as follows :
“A certain town lot situated in the corporate limits of the Town of Marks-ville, Avoyelles Parish, Louisiana, beginning at a point ten (10) feet back of the back wall of the present Union Bank Building which is one hundred (108) feet from the Southeast corner of the Union Bank lot along Mark Street, a distance of seventy-one (71) feet from said point along Mark Street by a depth between parallel lines of forty-eight and 83/100 (48.83) feet bounded on the north by Estate of G. L. Mayer, and Mrs. Harry Schrieber; South by Mark Street; East by property belonging to the Union Bank; and West by property belonging to the Avoyelles Trust and Savings Bank.”
The controversy arises because the first two calls in the latter description cannot be reconciled. A point 10 feet back of the rear wall of the bank building is only 105 feet from the southeast corner of the bank’s lot as determined by surveys, instead of 108 feet as called for by the deed. The question is whether the point 10 feet back of the wall or the southeast corner of the lot as surveyed is to be used as the starting point. At issue is the question of who was in possession of a strip of land approximately three feet wide at the western extremity of the bank’s lot or the eastern extremity of Roy’s lot.
In resolving the controversy, the Court of Appeal gave credence to the first call only, because “there is a definite monument which may be observed by the ordinary layman, namely, the west or back wall of the plaintiff bank building.” As a result, plaintiff’s suit was dismissed.
We cannot agree with the Court of Appeal. Monuments such as the bank building are usually allowed to control, but when they do not meet the calls of the deeds, as in this case, they must give way to the weaker guides. Meyer v. Comegys, 147 La. 851, 86 So.
Free access — add to your briefcase to read the full text and ask questions with AI
SUMMERS, Justice.
The Union Bank instituted a possessory action against Anthony J. Roy, alleging that for more than one year it has been in possession of a lot of ground in the town of Marksville fronting 48 feet 10 inches on the west side of Main Street by a depth east and west along Mark Street of 108 feet.
It is alleged that the defendant has constructed a fence enclosing the western 3 feet of this property within the year preceding the suit thereby disturbing plaintiff’s enjoyment and quiet possession. Injunctive relief was also sought to compel removal of the fence pending the possessory action as authorized by Article 3663 of the Code of Civil Procedure.
From a judgment in plaintiff’s favor, defendant appealed to the Third Circuit. There, by a divided court, the judgment was reversed. See 168 So.2d 716 (La.App. 1964). We granted certiorari on plaintiff’s application.
Plaintiff has advanced the contention that defendant, by averring ownership In his responsive pleadings,' has converted the suit into a petitory action. Although these averments of ownership were made, we find that they were urged by defendant to permit the introduction of evidence that he possessed as owner, the extent of that possession and the length of time during which the defendant and his ancestors in title had possession. Such proof of ownership or title is permitted under an exception to the rule that ownership or title is not an issue in a possessory action. La. Code Civ.P. art. 3661 (1960).
Under the theory that possession of a part is possession of the whole, allegations in a petition concerning ownership may be necessary to establish the extent of that ownership and the consequent extent of the possession incident thereto. La. Code Civ. P. art. 3661 (1960) ; La.Civil Code art. 3437 (1870). In these circumstances ownership, as such, is not an issue to be adjudicated, but it is alleged simply to make the pleadings broad enough to permit proof concerning the nature and extent of the possession. Therefore, in a possessory action it takes more than an allegation of ownership in defendant’s answer to convert that action into a petitory action. There must be a prayer by defendant for an adjudication of ownership. In the absence of such a prayer the action is not converted. Walmsley v. Pan American Petroleum Corp., 244 La. 513, 153 So.2d 375 (1963).
It was proper, therefore, to allege — and it is proper for us to consider — the ownership of the parties in the possessory action as an incident to determining the nature [805]*805and extent of the possession exercised on the property in dispute.
Furthermore, anticipating the fact that plaintiff would establish the one-year corporeal possession of the 3¡^-foot strip required to maintain its possessory action, the defendant Roy has urged that plaintiff’s possession of the disputed strip was precarious and for him as plaintiff’s vendee. This position is based upon the contention that the disputed strip of land had been conveyed to Roy by deed in 1937. Therefore, an examination of that deed and other deeds bearing on that issue is necessary in this connection also, for if plaintiff conveyed the 3J^-foot strip to defendant, the possession of that strip by plaintiff would be precarious and would under most circumstances inure to defendant’s benefit. Such a finding would mean that plaintiff did not have the possession requisite to maintain the possessory action — a vital issue in this cause. Watson v. Crown Zellerbach Corporation, 240 La. 500, 124 So.2d 138 (1960); Boyete v. Perryman, 240 La. 339, 123 So.2d 79 (1960); Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369 (1950); Frost Lumber Industries, Inc. v. Harrison, 215 La. 767, 41 So.2d 674 (1949); John T. Moore Planting Co. v. Morgan’s Louisiana & T. R. & S. S. Co., 126 La. 839, 53 So. 22 (1910).
Prior to July 31, 1935 the Avoyelles Bank owned the entire southern 48.83 feet of Block No. 5 in the town of Marksville, bounded on the east by Main Street and on the west by Monroe Street. By deed dated July 31, 1935, the Avoyelles Bank sold to the Union Bank the following property:
“That certain town lot, and the bank buildings and all other improvements thereon and thereto belonging, situated in the town of Marksville, Louisiana, known as the Avoyelles Trust and Savings Bank Building and lot on which the same is situated, and more fully described as follows: The said lot to have a front of forty-eight feet (48') ten inches (10") on Main Street beginning from the corner of Main and Mark Streets, and extending back a depth of one hundred seventy-nine feet (179') between parallel lines. Bounded on the north by property of the vendor or the Post Office lot, and property of Mrs. H. C. Schrieber, on the south by Mark Street, on the east by Main Street, and on the west by property of the Avoyelles Trust and Savings Bank. All as per plat of survey of E. B. Mes-sick, Surveyor, hereto annexed as part hereof.
“It is agreed that the purchaser shall always leave open a driveway or passage, and to be used only as such, for the benefit of the lot now belonging to the vendor and known as the Post Office lot which is located immediately north of the property herein sold, said driveway or passage to be located im[807]*807mediately west of the bank building or ninety-eight feet (98') from the eastern property line of the property herein sold, and to be ten feet (10') front on Mark Street running back between parallel lines to the said Post Office lot, said driveway or passage being shown on the plat of survey of E. B. Messick, Surveyor, attached to this sale.”
On November 3, 1937, the Union Bank conveyed to Anthony J. Roy, defendant, a portion of the above lot described as follows :
“A certain town lot situated in the corporate limits of the Town of Marks-ville, Avoyelles Parish, Louisiana, beginning at a point ten (10) feet back of the back wall of the present Union Bank Building which is one hundred (108) feet from the Southeast corner of the Union Bank lot along Mark Street, a distance of seventy-one (71) feet from said point along Mark Street by a depth between parallel lines of forty-eight and 83/100 (48.83) feet bounded on the north by Estate of G. L. Mayer, and Mrs. Harry Schrieber; South by Mark Street; East by property belonging to the Union Bank; and West by property belonging to the Avoyelles Trust and Savings Bank.”
The controversy arises because the first two calls in the latter description cannot be reconciled. A point 10 feet back of the rear wall of the bank building is only 105 feet from the southeast corner of the bank’s lot as determined by surveys, instead of 108 feet as called for by the deed. The question is whether the point 10 feet back of the wall or the southeast corner of the lot as surveyed is to be used as the starting point. At issue is the question of who was in possession of a strip of land approximately three feet wide at the western extremity of the bank’s lot or the eastern extremity of Roy’s lot.
In resolving the controversy, the Court of Appeal gave credence to the first call only, because “there is a definite monument which may be observed by the ordinary layman, namely, the west or back wall of the plaintiff bank building.” As a result, plaintiff’s suit was dismissed.
We cannot agree with the Court of Appeal. Monuments such as the bank building are usually allowed to control, but when they do not meet the calls of the deeds, as in this case, they must give way to the weaker guides. Meyer v. Comegys, 147 La. 851, 86 So. 307 (1920).
If these were the only two calls in the description, we would be compelled, because they are irreconcilable, to look beyond the instrument for the intent of the parties. But we are of the opinion that the intention of the parties, which is determinative, may be ascertained by the deeds. A perusal' of the four boundaries given [809]*809in the deed to Roy discloses conclusively that the 71-foot parcel conveyed was to he taken from the western end of the larger 179-foot lot which the Union Bank had previously acquired.
In no uncertain terms the deed recited that the lot conveyed was bounded on the west “by property belonging to the Avoyelles Trust and Savings Bank,” the vendor. Thus 179 feet, less the western 71 feet conveyed to Roy, leaves 108 feet remaining for the Union Bank, the exact figure used in the second call — “which is one hundred and eight (108) feet from the southeast corner of the Union Bank lot along Mark Street.” This measurement conforms with the curb of the driveway in the rear of the bank. The bank contends that that curb is its western boundary.
A different conclusion would render useless several important calls. For example, to accept the point of beginning at 10 feet from the rear wall of the bank building would nullify the “108 feet from the southeast corner of the Union Bank lot along Mark Street” provision. But more im-portant, and apparently unknown since 1937 to either the parties or the public, according to the McMath survey, accepting, a starting point 10 feet back of the back wall of the bank building would leave an isolated strip of land 3.4 feet in width belonging to the Union Bank between Roy’s western boundary, as he sees it, and the property formerly belonging to the Avoyelles Bank described as Roy’s western boundary in his deed. This would bound, the lot conveyed to Roy on the west by property belonging to the Union Bank when in fact the western boundary at the time of the sale to Roy was given as property belonging to the Avoyelles Bank.
Our law demands that weight be accorded to all parts of the description of lands conveyed. Article 1955 of the Civil Code provides that “All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act.”
In Smith v. Chappell, 177 La. 311, 148 So. 242 (1933), this Court remarked:
“Where, as in this case, there are conflicting calls in the deed, and where the first call is followed by a general description which manifestly was intended to be a summing up of the intention of the parties as to the premises conveyed, such general description controls all prior words or phrases used, if sufficient to identify with certainty the premises conveyed.”
In Williams v. James, 188 La. 884, 178 So. 384 (1938), we again approved this statement: “ ‘ * * * if the land conveyed is sufficiently identified by certain parts of the description an impossible or senseless course should be disregarded, and the deed sustained.’ ”
[811]*811In the instant case, the description fixed with certainty the western boundary, the northern boundary and southern boundary. Inconsistencies occur only with regard to the eastern boundary. Yet, the length of the lot was definite — 71 feet; and, when this lot is affixed in the western end of the larger Union Bank tract, as decreed by the three certain boundaries, the eastern end of the Roy lot falls on the driveway curb at a point 108 feet from the southeast corner of the bank’s lot. This is just what is established by surveys prepared on behalf of both plaintiff and defendant. This was manifestly the intent of the parties when all of the descriptions in the deeds are considered.
High rank is given to boundaries by our jurisprudence. In City of New Orleans v. Joseph Rathborne Land Co., 209 La. 93, 24 So.2d 275 (1945), this Court declared:
“ * * * the rule is ‘that calls for quantity must yield to the more certain and locative lines of the adjoining owners. Such lines are certain, or they can be made certain, and may be platted so as to show the exact course and distance. They are treated as a sort of natural monument, and must prevail over the more general and less distinct designation by quantity. (Citations omitted.)’ ”
In resting his case on the first call, the defendant advances various reasons why this call should prevail. First, in the Union Bank acquisition, the vendor, who was theAvoyelles Bank, reserved a driveway from the lot conveyed for the use of those occupying its property located immediately-north of the lot sold. The driveway was. referred to as “located immediately west of the bank building or ninety-eight (98) feet from the eastern property line of the property herein sold, and to be ten (10) feet front on Mark Street.” Because of this, reservation, Roy contends, plaintiff had tO' retain 10 feet behind the bank building for the driveway when it sold to him. He says, this accounts for the commencement of his lot at the western edge of the driveway or a point 10 feet back of the back wall of the bank building.
But the fact remains that although the driveway was to be located “immediately west” of the bank building, it also commenced “ninety-eight (98) feet from the eastern property line” of the lot acquired by the bank, which point is 3 feet west of the bank building. Ten feet from that point along Mark Street would coincide with the 5" x 8" concrete curb located approximately 13 feet behind the bank building. This concrete curb is exactly 108 feet from the southeast corner of the bank’s lot and is considered by the Union Bank to be its western boundary, as we have already noted. In this context, therefore, the phrase “immediately west of the bank building” would not require measurement from the bank wall proper so long as it was nearly so.
[813]*813Secondly, defendant further seeks to explain the conflict in the first two calls — the one 10 feet back of the back wall of the hank building and the one calling for the 108 feet from the southeast corner of the hank lot. He shows that the sidewalk encroaches 3 feet into Main Street. If the measurement “from the southeast corner of the bank lot” is taken from the sidewalk corner, then 108 feet from that point is 10 feet back of the bank building. He reasons that this is what happened and is responsible for the conflict.
But this result cannot obtain. The property in question is located in Block 5. Main Street is 50 feet wide. The Messick plat, prepared in 1937, shows the length of Block 5 on Mark Street to be 225 feet. The recent McMath Plat also shows the length of the block to be 225 feet, excluding the sidewalk overhang on Main Street. If the sidewalk is added, the entire length would be 229 feet. According to the Frost survey the sidewalk encroaches 3.5 feet into Main Street, which would make the length of the block 228.5 feet with the sidewalk added. Under either survey, accepting defendant’s theory would place a portion of plaintiff’s property in the street and would disrupt the measurements of all other lots along Mark Street in Block 5.
If the length of the lot along Mark Street is to be measured from the corner formed by the sidewalk curb rather than from the true surveyed intersection of the streets, we .would have to assume that a like starting point should be used to measure the 48.83-foot depth of the lot along Main Street.
The Frost survey prepared for plaintiff shows that the sidewalk encroachment into Mark Street is almost three feet. A measurement from this sidewalk curb would place the north boundary of the Union Bank’s lot three feet within its building, some three feet short of the old Post Office building and not reaching the party wall between the two buildings — the admitted northern boundary between the Union Bank lot and the old Post Office lot.
Obviously this would be erroneous and emphasizes the fallacy of defendant’s attempt to begin the measurement from the sidewalk curb instead of the surveyed corner. Just as there is no valid reason for measuring from the sidewalk curb to determine the 48.83-foot width of the lot, there is no valid reason for measuring from the sidewalk curb to determine the 108-foot length of the lot. The lot’s dimensions can only be reconciled by use of the surveyed southeast corner.
We conclude that the Union Bank did not convey the controversial three-foot strip to Roy and the deeds sustain the view that the bank’s western boundary is the 5-inch by 8-inch concrete driveway curb in the rear of the bank running from Mark Street to the bank’s northern boundary.
On the question of the possession of the disputed realty, the record supports [815]*815the finding of fact of the trial court that plaintiff exercised corporeal possession of the disputed strip of land for one year prior to instituting suit. There being no manifest error in those findings, to the following extent we accept them and quote from the trial judge’s opinion:
“Now, going to the possession of the parties. Admittedly by the evidence, Roy’s lot, at the time of his purchase and presently, was and is a vacant lot. His possession thereof was intermittent and not continuous. At times he had the grass cut thereon; he or his lessees used it for parking; he had some dirt or pit run gravel dumped upon it to fill holes; his son and a partner used it to exhibit for sale, tomb stones or monuments. On one occasion, he erected a chain fence along a portion of the South boundary, so automobile owners would not drive their cars thereon for parking. He, the defendant, rented it to the Union Bank, and to Richard Coco, as a parking lot for his employees. The Court concludes that his possession of the lot was consistent with the nature of the property. None of these acts were upon the disputed area and within the last year next preceding the building of the complained of fence. Of course, it is contended that since he did these acts at times, on portions of his lot, that his possession extends to the whole, within the limits of his title. This is based upon the principle of law that a possession of a part of the property, under a title, is possession of the whole; but it should be noted that at no time in the twenty-five (25) years since Roy’s purchase, did he attempt to possess any portion of the driveway west of the Bank Building and east of the five (5") inch by nine (19") inch concrete curbing or wall, to the exclusion of others, until he built the fence complained of, a few days before the filing of suit.
“The Union Bank, on the other hand, has a large banking building upon its lot, which adjoins that of Roy on the east. And it has been in business on this lot, physically, continuously and visibly and actually, using many offices and employees in its banking business and house, situated upon the property. It, too, maintains that this actual physical possession of its lot, through its conduct of banking facilities, constitutes possession of the whole under its title. The property in dispute is between the fence admittedly built by the defendant, just before the filing of suit, and this five (5") inch by nine (9#) inch driveway concrete wall or curb located three (3') feet west of said fence. The pictures filed in evidence clearly show this to be true.
“In the two (2) years preceding the fence building or alleged disturbance, [817]*817plaintiff rented the back part of the Bank Building to Mrs. Skeet Moreau, for a hat shop, as the Bank’s tenant, until September 1,1962. She was given use of the driveway between the back wall of the Bank Building on the east and the five (5") inch by nine (9") inch concrete curb or driveway wall on the west. She parked her car there daily. The Bank’s janitor cleaned up the same space weekly. He burned papers and trash from the operations of the Bank, as its janitor, in that same space or driveway, almost daily, except banking holidays. Beginning about September 1, 1962, an extensive renovation program was undertaken by the plaintiff, to change the back part of the building as banking facilities instead of rental spaces for offices. The west part of the building got a general ‘face lifting’, and a drive-in window banking facility was under construction when the disturbance occurred. The contractors working on this project for the Bank and the sub-contractors, used the driveway extensively, and the strip of land in question, as a loading and unloading space. Scaffolds, ladders, working space, etc., occupied the area in question between September 1, 1962 and to date, that the fence was built. Some of this work continues even now, to the east of the complained of fence. Freight was unloaded there for the Bank in the same space during that year. So, the Bank’s possession or acts of possession including its own continuous occupancy as a banking institution for years, were actual, visible and more or less continuous on its lot, including this driveway west of the Bank Building, proper, and east of the so-called concrete curbing or driveway wall. This existed for more than a year, next preceding the alleged disturbance by the defendant.”
For the reasons assigned, the judgment of the Court of Appeal, Third Circuit, is reversed and set aside and the judgment of the trial court is affirmed, reinstated and made the judgment of this Court, maintaining plaintiff in the quiet and peaceable possession of the following described property:
A certain lot or parcel of land situated within the corporate limits of the town of Marksville, Avoyelles Parish, Louisiana, bounded as follows: On the North by property of Alton J. Normand and H. L.. Sportono, on the East by Main Street, on the South by Mark Street and on the West by a concrete curb five (5) inches in width and eight (8) inches in height which extends from Mark Street in a South to North direction the entire depth of the lot herein described.
Defendant to pay all costs of these proceedings.