William Henry Sanders v. Jesse Moffett

• Court: Louisiana Court of Appeal
• Decided: October 1, 2003
• Docket: CA-0003-0231
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-231

WILLIAM HENRY SANDERS

VERSUS

JESSE MOFFETT

********** APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 32,282 HONORABLE J. P. MAUFFRAY, JR., DISTRICT JUDGE **********

GLENN B. GREMILLION JUDGE

**********

Court composed of John D. Saunders, Marc T. Amy, and Glenn B. Gremillion, Judges.

JUDGMENT VACATED AND REMANDED.

William Henry Sanders P. O. Box 1363 Jena, LA 71342-1363 (318) 992-8251 Counsel for Plaintiff/Appellee William Henry Sanders

J. Christopher Peters P. O. Box 2387 Jena, LA 71342-2387 (318) 992-7693 Counsel for Plaintiff/Appellee William Henry Sanders Robert G. Nida Gold, Weems, Bruser, etc. 2001 MacArthur Drive Alexandria, LA 71307-6118 (318) 445-6471 Counsel for Defendant/Appellant Jesse V. Moffett, Jr. GREMILLION, Judge.

The defendants, Jesse and Evelyn Moffett, appeal the judgment of the

trial court granting summary judgment in favor of the plaintiffs, William and Bessie

Sanders and Margaret Otwell (Sanders), and setting the boundary between their

properties as determined by the Sanders and Otwell surveyor. For the following

reasons, the judgment of the trial court is reversed and the matter is remanded for

further proceedings.

FACTS

This matter began as a boundary action brought by Mr. Sanders against

Mr. Moffett, concerning property owned by Mrs. Sanders, which is contained within

the Charles McBride Riquet 39, Township 8 North, Range 3 East, lying within the

fork made by the junction of Hemphill and Hair Creeks, in LaSalle Parish, Louisiana,

known more particularly as the “forks in the creek field.” Mr. Sanders’ petition was

later amended pursuant to court order to add his wife, Mrs. Sanders, and her mother,

Otwell, as plaintiffs, and Mrs. Moffett, as a defendant in this suit.

The issue in this matter is the location of the eastern boundary of the

Charles McBride Riquet, which is also the western boundary of Mr. Moffett’s

property, which is located in Section 29, Township 8 North, Range 3 East. The

official government survey of Township 8 North, Range 3 East was performed in

November 1883 and approved by the Surveyor General’s Office on June 9, 1884.

The field notes of George Bradford, the government surveyor in 1883, states that the

east boundary of the Charles McBride Riquet followed the general meanders of the

right bank of Hemphill Creek. Both parties have proven title to their respective

1 properties, and neither is claiming ownership of property located in their neighboring

section.

In their petition, the Sanders alleged facts showing that the east prong

of Hemphill Creek, a/k/a Hair Creek, was as “crooked as a snake,” and that it was

straightened by the governing body of LaSalle Parish in 1929-30, in an attempt to

control flooding above the property. As a result of this action, the east prong of

Hemphill Creek was moved to its present day location, west of its original course.

The alteration of the creek’s channel has resulted in this boundary action pertaining

to the “forks in the creek field,” since the Sanders allege that the field, although now

located east of Hemphill Creek, is still within the Charles McBride Riquet 39. They

allege that the alteration of the creek’s channel has not changed the original section

line as laid down by the government surveyor in 1883. The Sanders later amended

their petition to plead acquisitive prescription of ten and thirty years. The Moffetts

answered the petition affirmatively pleading that their respective properties are not

contiguous because they are separated by a navigable body of water, Hemphill Creek.

At issue here is a motion for summary judgment filed by the Sanders.

In their motion, they argue that, based on their pleadings and all evidence introduced

into the record, there is no genuine issue of material fact and that the trial court

should set the eastern boundary of their property as it existed prior to 1929. At the

hearing on the motion, the trial court found that Hemphill Creek was not navigable

and that the Sanders’ and Moffetts’ properties were contiguous. It further found that

the boundary between Sections 39 and 24 was the boundary that existed in 1883, as

established by the Sanders’ surveyor, Mark Tooke. This appeal by the Moffetts

2 followed.

ISSUES

On appeal, the Moffetts raise four assignments of error. In effect, they

argue that the trial court erred in fixing the boundary between the two properties in

the face of genuine issues of material fact. They further argue that the trial court

erred in granting summary judgment in this matter on a motion for summary judgment

which was filed prior to the filing of their answer.

SUMMARY JUDGMENT

The standard of review in summary judgment cases is well settled, as is

the fact that summary judgment is now favored pursuant to La.Code Civ.P. art. 966.

The threshold question in reviewing a trial court’s grant of summary judgment is

whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App.

3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-0050 (La. 3/13/98), 712 So.2d 882.

Further, “[i]t is not the court’s function on a motion for summary judgment to

determine or even inquire into the merits of the issues presented.” Lexington House

v. Gleason, 98-1818, p. 6 (La.App. 3 Cir. 3/31/99), 733 So.2d 123, 126, writ denied,

99-1290 (La. 6/25/99), 746 So.2d 603.

After reviewing the record de novo, we find that a genuine issue of

material fact remains in this matter, which is whether Hemphill Creek was navigable

at the time of the 1883 government survey. If the creek was navigable at that time,

then the properties in question are not contiguous and may not be subject to a

boundary action. La.Civ.Code art. 784 et seq. The trial court found that the creek

was not navigable at the time that Charles McBride was issued patent to the lands on

3 March 3, 1807.

Whether the creek was navigable is a material fact. Although Tooke

testified that he retraced Bradford’s steps, including a showing that the east prong of

Hemphill Creek made a hairpin turn in 1883, he did not testify as to navigability of

the creek at that time. Frank Willis, Moffett’s expert, testified that he did not know

when, or if at any time, the creek was navigable. Thus, we find that a material issue

of genuine fact exists as to whether Hemphill Creek was navigable. If it was

navigable, then the boundary stopped at the bank. If it was not navigable, then the

boundary stopped at the center of the creek bed. In finding that Hemphill Creek was

not navigable, the trial court inquired into the merits of the issues presented. This is

a factual determination which is inappropriate on summary judgment.

Moreover, a question of fact remains with regard to the location of the

creek bed in 1883. Conflicting evidence was presented as to its location at that time

through the Sanders’ surveyor, Tooke, and the Moffett’s expert, Willis. Accordingly,

we find that the trial court’s grant of summary judgment and determination of the

boundary was improper. This matter is remanded to the trial court for further

proceedings.

As a result of this finding, the Moffett’s argument that the trial court

erred in granting summary judgment based on a motion which was filed prior to their

filing of an answer is rendered moot. Furthermore, Sanders had filed a motion to

strike part of the Moffett’s brief, which was referred to the merits of this matter. The

motion to strike pertained to a portion of the Moffett’s reply brief, which addressed

issues not raised by the Sanders in their appellate brief. Based on our finding, the

4 motion to strike is denied.

CONCLUSION

For the forgoing reasons, the judgment of the trial court is vacated and

this matter is remanded for further proceedings. The costs of this appeal is assessed

to the plaintiffs-appellees, William and Bessie Sanders and Margaret Otwell.