Winlock v. Gallaspy

140 So. 846, 19 La. App. 861, 1932 La. App. LEXIS 157
CourtLouisiana Court of Appeal
DecidedApril 5, 1932
DocketNo. 4268
StatusPublished
Cited by1 cases

This text of 140 So. 846 (Winlock v. Gallaspy) 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
Winlock v. Gallaspy, 140 So. 846, 19 La. App. 861, 1932 La. App. LEXIS 157 (La. Ct. App. 1932).

Opinion

McGREGOR J.

This is a petitory action involving the title to 11.6 acres of land on the east bank of Red river, near Grappe’s Bluff in Natchitoches parish. This small plot of ground is included in a larger tract that originally belonged to N. F. Scopini, who, at his death, left two children, John F. Scopini and Mrs. Mattie Robieu, his sole and only heirs at law. On February 14, 1900, these two, John F. Scopini and his sister, Mrs. Mattie Robieu, undertook to partition all the property of their deceased father between them. That part of the partition deed which disposed of the small tract in controversy is very indefinite and inexact. There appear to have been two adjacent tracts of land on the banks of Red river which belonged to the estate and which contained in the aggregate 635 acres; the two tracts being designated in the partition deed as the Home Place, known as the John Pierre Grappe Place, and the Old Lezuine Grappe Place. The deed states that “the said J. F. Scopini takes the Home Place in Natchitoches Parish, known as the John Pierre Grappe Place.” “Mattie Robieu takes * * * the Old Lezuine Grappe Place * * It then continues and says:

[847]*847“The said J. F. Scopini takes the John Pierre Grappe Place and one-half of the above land in this tract. Mrs. Mattie Robieu takes the Old Rezume Grappe Place and one-half of the above land * * *. Lines in both places to be established hereafter by agreement of said parties.” (Italics ours.)

The meaning of the phrase “and one-half of the above land,” as used in describing what each of the two heirs was taking, is vague, indefinite, and unintelligible.

John F. Seopini was still living at the time of the trial and testified as a witness in behalf of the plaintiff, but Mrs. Robieu had been dead for many years, and her testimony was not, therefore, available.

The partition deed stipulated that a line to mark the exact location of the land of each was to be established by agreement of the parties. At the trial it was testified by John k. Seopini that this line was established soon after the date of the deed by a civil engineer named Henry. In this statement he is corroborated both by circumstances and several witnesses. The matter in controversy is as to where the line between the two properties was situated. It is undisputed that each took actual possession of whatever was allotted to him or her, and that each interest has long since been sold. The plaintiff, Edwin Win-lock, traces his title to John F. Scopini, and the defendant traces hers to Mrs. Mattie Robieu. The two chains of title are unbroken and perfect, the only controversy being as to whether the 11.6-acre tract fell to John F. Seopini in the survey that marked the division between the properties of the two heirs of the estate of N. F. Scopini, or whether it fell to Mrs. Mattie Robieu.

In discussing the location of this property it is well to bear in mind several facts. In that portion of Natchitoches parish land is divided into and designated by sections, townships, and ranges, but the sections are neither square nor uniform in size. Neither do they lie approximately north and south. At this particular place the sections are long and narrow, of irregular size, and extend in a northeasterly and southwesterly direction.

The bulk of the land comprising the property divided was hill land, though it bordered upon a bluff adjoining Red river. About SO acres, however, was what is termed “bottom land.” As far as we are able to determine from the evidence, the land which was divided between the two Scopini heirs is situated in sections 26, 27, 28, and 29, and in township 11 north, range 8 west. These four sections extend to and border upon Red river. The SO acres of bottom land originally were in the southwestern end of sections 28 and 29. John F. Seopini is admitted to have received all of the east half of section 26 and all of section 27. He says that this was about one-half of the hill land; that in the division he and his sister agreed that each should have approximately one-half of the SO acres of bottom land, or 15 acres each; that in accordance with that agreement a survey of this 30 acres of bottom land was made by a Mr. Henry, civil engineer, dividing it into two 15-acre tracts; that a line running approximately north and - south between the two tracts was established; that he took the one that was on the west end of the strip and which extended to the east line of section 27; and that his sister, Mrs. Robieu, took the one on the east. If his version of the matter is correct, then his land was in an “L” shape, with a frontage on Red river in sections 26, 27, 28, and 29, while the only river frontage that Mrs. Robieu had was in a part of section 29. In other words, the long, narrow strip of 15 acres which John F. Scopini says he drew in the division cut the Robieu land off from the river across the entire width of section 28 and across a part of section 29. At the time of the trial the original 15-aere tract claimed in the beginning by Scopini had been reduced to 11.6 acres by the caving of the banks of Red river, and practicálly all of the 15 acres which he says fell to Mrs. Robieu had caved into the river.

As has been stated above, John F. Scopini and Mrs. Mattie Robieu each took possession of the property belonging to them respectively. Both plaintiff and defendant admit this fact and rely upon it. There is nothing in the original partition deed on which even a suggestion of the description of each part can be based. Each side relies upon the fact that a line was established in accordance with the agreement set forth in the deed;, that each took possession of the property with reference to that line and finally disposed of it with reference to it.

The plaintiff traces his title by mesne conveyances to the estate of N. F. Seopini through John F. Scopini, and the defendant traces hers to the same source through Mrs. Mattie Robieu.

The first sale made was by John F. Scopini to R. W. Lowe on February 29,1908. In this deed the land was described as being the east one-half of section 26, all of section 27 in township 11 north, range 8 west (less 10 acres on the north end), “and about 15 acres in Section 28 of the above township and range, situated on the bank of Red River and bordered north and east by lands of Mrs. Mattie Robieu.” This description of the 15 acres corresponds exactly with the testimony of Scopini relative to the division of the 30 acres of bottom land. If the SO acres were divided into two 15-acre tracts, the west tract would naturally be bordered on the north by hill land of Mrs. Robieu and on the east by her 15 acres of bottom land. R. W. Lowe remained the record owner of this land for ten years, and during this time when he was [848]*848the owner, Mrs. Robieu sold 73 acres of her land to Li. Q. C. Grappe on May 28, 1913. This tract is described as being wholly in section 29, when as a matter of fact it is bound to have been in both sections 28 and 29, just as in Scopini’s deed to Howe the 15 acres is described as being only in section 28, when as a matter of fact it also extended over into section 29. In this deed from Mrs. Robieu to Grappe the description is very loose and is as follows:

“A certain tract of land situated in the parish of Natchitoches, and bounded north, by La. Ry. & Nav. Co., south by Red River, east by J. O. Copellar; west by R. W. Lowe, containing seventy-three acres, more or less, and one large residence in Section 29; T. 11; N. R. 8 W.” :

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Bluebook (online)
140 So. 846, 19 La. App. 861, 1932 La. App. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winlock-v-gallaspy-lactapp-1932.