
    Rene A. NAQUIN, Appellee, v. John NAQUIN, Appellant.
    No. 5540.
    Court of Appeal of Louisiana. First Circuit.
    May 4, 1962.
    Rehearing Denied June 29, 1962.
    
      Caillouet & Wise by Jack Wise, Thibo-daux, for appellant.
    Edward T. Diaz, Golden Meadow, for ap-pellee.
    Before ELLIS, HERGET and MILLER, JJ.
   HERGET, Judge.

Rene Naquin seeks by this suit to have a judicial determination of the boundary between his property and that of John Na-quin. Plaintiff’s tract of land is situated in the Parish of Lafourche, and located about six or seven miles above the City of Thibodaux on the right descending bank of Bayou Lafourche. Defendant’s tract adjoins Plaintiff’s property to the south. Each owns a tract measuring one arpent front on the Bayou by eighty arpents in depth. Since they adjoin each other for eighty arpents, a slight difference in the boundary makes a substantial difference in the acreage belonging to each party.

The petition alleges that the Plaintiff was unsuccessful in his attempts to have the Defendant agree to amicably fix their common boundary line, and seeks to have a judgment judicially fixing the boundary. Suit was filed on July 17, 1958. On that same date the court appointed Carl Heck, C. E., to survey the line. Mr. Heck took no action and he was dismissed and on July 20, 1959 Mr. John Hoffman was appointed to survey the line. Mr. Hoffman took no action and on April 6, 1960 he was dismissed and Mr. J. C. Lovell, Surveyor, was appointed to make this survey, and he promptly did the work.

The Defendant did not appear or file any pleadings, and on October 16, 1958 a preliminary default was entered. This default was confirmed by judgment rendered June 20, 1960 and read and signed on June 30, 1960. Defendant’s devolutive appeal was granted on June 28, 1961, and the appeal bond was filed on June 30, 1961.

The evidence taken on the confirmation of default was not recorded, and therefore the record before us is limited to the minutes of court, the pleadings, exhibits, judgment and appeal.

The issues which Appellant seeks to have this Court consider are: (1) the correctness of the survey fixing the boundary line; and (2) the prematurity of the preliminary default entered prior to the filing of the report by the surveyor.

The judgment read and signed on the 30 day of June, 1960 in part decreed:

* * * “IT IS ORDERED, ADJUDGED and DECREED that the preliminary judgment by default entered herein on October 16, 1958, be confirmed and made final, and that accordingly, there be judgment herein in favor of the plaintiff, Rene A. Naquin, and against the defendant, John Na-quin, approving and homologating the proces verbal of J. C. Loval, Surveyor, which is on file in these proceedings, and
“IT IS FURTHER ORDERED, ADJUDGED and DECREED that the boundary line separating the property of the plaintiff from the property of the defendant be, and the same is hereby fixed in accordance with said proces verbal bearing date of May 4, 1960, and the map of survey bearing date of May 2, 1960, which is on file in these proceedings and are made part of this judgment.” * * *

In the case of Griffing v. King, 12 La. App. 376, 125 So. 497, the Court said:

“However, on a motion to homolo-gate the proces verbal of the survey, the correctness of the survey is not at issue, and even though the survey is correct, it is not conclusive of the question of boundary, and we do not think that the plea of prescription which defendant filed in answer to the rule can be considered as showing that she consented to the case being tried on its merits, and, as it does not appear that defendant was present or represented on the trial of the rule, we do not think that evidence as to the correctness of the survey and other evidence appearing (sic) the record could have been received at that time and judgment rendered establishing the boundary, unless the case was fixed for trial on the merits.
“The record does not show that the cause was fixed for trial on the merits, and the judgment rendered establishing the boundary line on the trial of the rule to homologate the proces verbal of the survey, in the absence of anything to show that defendant consented to the trial of the cause at that time cannot be maintained.” (Emphasis added.)

In Painten v. Pilie, 198 La. 713, 4 So.2d 804, the Supreme Court of this State quoted with approval the decision of the Court of Appeal in the Griffing case supra in disposing of a motion to dismiss an appeal taken from a judgment homologating a survey made in a boundary action.

Where, as in this case, no boundary has been fixed between contiguous estates, under LSA-C.C. Article 824 the right is given to have such boundary fixed, which right is made imprescriptable under LSA-C.C. Article 825. Thus, until the survey has been made by the court appointed surveyor necessarily no answer need be filed by the defendant as the boundary line fixed by the surveyor may be in accord with defendant’^ position.

Under LSA-C.C. Article 837 reading as follows:

“If, before the surveyor has finished the work, or set up the boundaries, the parties interested, or any of them, shall make opposition thereto, the surveyor must desist, and refer the parties to the court, to have a decision on their respective rights, after having made mention of the opposition in his proces verbal, and the reason for the same, if any be alleged.”

the parties interested are given a right to object to the line fixed by the surveyor and such opposition is then, by the surveyor, referred to the court for its determination.

We have searched the record in this case and there is no showing that the case was fixed for trial on the merits, the record affirmatively showing the judgment taken was on a confirmation of default.

LSA-C.C. Art. 839 provides:-

“When the limits have been fixed after due notice to the parties, and no opposition being made, the parties do not thereby lose their right of resorting to a court of justice to rectify the operation if they think it for their interest; but the limits will remain provisionally as fixed, until otherwise determined.” (Emphasis added!

LSA-C.C. Art. 841 provides:

“It is the duty of the judge who has cognizance of suits on the subject of limits, to appoint surveyors to inspect the premises in question, and the court, on their report, ought to decide according to the titles of the parties, and the plans which shall be presented to the court.”

Considering the articles of the Civil Code, supra, we are of the opinion that the parties are given the right to make known their opposition to the surveyor who thereupon presents same to the court; or, failing to make known their opposition to the surveyor, the parties are accorded the right following the filing of the survey to object to the boundary so fixed and be given an opportunity to present their contentions to the trial court. Thereupon the boundary is judicially fixed after consideration of the survey and the evidence offered on the trial of the case on the merits, thus making it essential that the case be fixed for trial on the merits or the parties consent to the trial on the merits.

Accordingly, the judgment appealed from homologating the proces verbal and fixing the boundary is avoided and set aside and the case is remanded to the Trial Court, reserving to the parties the right to amend their pleadings or file such further pleas as they may desire and the issue be fixed for trial on the merits.

It is further ordered that the cost of this appeal be divided equally between appellant and appellee and the liability of the parties for all other costs await the trial.

Reversed and remanded.

MILLER, Judge pro tem.

(dissenting).

It is my understanding that the majority has held that the preliminary default taken three months after the pleadings were served on the defendant was prematurely entered and that under the provisions of LSA-C.C. Articles 823 et seq., and particularly Article 839, it is impossible to get a final disposition of a judicially fixed boundary by confirmation of a default. I respectfully dissent from these holdings.

The pertinent provisions of the Code of Practice of 1870, as amended, which were in effect at the time of the trial were Articles 310, 311 and 312. The preliminary default was timely entered under the provisions of these articles, and there is no exception for boundary actions. The survey which was requested and eventually made by a court appointed surveyor is evidence. The survey is not something which can be made a part of the pleadings. By the very nature of the suit to have a judicial fixing of the boundary, it is impossible to plead the location of the boundary line. That is the very question to be decided by the court. The preliminary default which was entered three months after the suit was filed had the effect of joining issue on the pleadings, not on the evidence which plaintiff would have to introduce to prove up his case. The judgment rendered on confirmation of default did not vary from the pleadings. And it is on that basis that the case of Vegas v. Cheramie, La.App., 80 So.2d 880, relied on by appellant, but not cited by the majority, is distinguished from the instant case, for there the judgments which were set aside were not responsive to the pleadings.

The cases of Griffing v. King, 12 La.App. 376, 125 So. 497, and Painten v. Pilie, 198 La. 713, 4 So.2d 804, relied on by the majority, can be readily distinguished from the instant case. In both cases, it is apparent that the defendant had made an appearance by filing an answer, or at least by filing exceptions which were not separately heard. Here the defendant made his first appearance more than eleven months after final judgment was rendered, read and signed and almost three years after the suit was filed. When, as in the cited cases, the defendant has made an appearance he must be notified of the trial date before the merits can be tried. That is the basis for the holding in the Griffing case. There (at 12S So. 497 and 498)

“ * * * plaintiffs filed a motion to homologate the procés verbal and obtained an order for a rule against defendant to show cause why the pro-cés verbal should not be homologated and the boundary between the * * * fixed and established in accordance with the survey.
“Service of the motion was accepted, and issuance of the rule waived by defendant, who again excepted and pleaded the prescription of 30 years.
“The minutes show that thereafter the case was fixed for trial on June 1st, and that on June 4th the rule was called for trial, and, defendant failing to appear, trial was proceeded with and judgment rendered approving and homologating the procés verbal and fixing and establishing the boundary * * * in accordance with the survey.”

On this statement of facts, the court held as quoted by the majority, that:

“The record does not show that the cause was fixed for trial on the merits, and the judgment rendered establishing the boundary line on the trial of the rule to homologate the procés verbal of the survey, in the absence of anything to show that defendant consented to the trial of the cause at that time, cannot be maintained.”

In my view this holding cannot be interpreted as prohibiting a confirmation of default where, as here, the defendant failed to file any exception or answer and where, as here, the defendant failed to make any appearance in answer to the required notice given by the surveyor notifying the defendant to be present for the actual survey.

In the Painten case, supra, the Supreme Court considered the question of whether or not an appeal could be taken from a judgment homologating the proces verbal prepared by the court appointed surveyor. It was held that the homologation was an interlocutory order from which an appeal may not be taken. The court reasoned that:

“In truth, while it has been considered as an accepted practice among the members of the bar to move for, and obtain orders of, homologation of surveyors’ reports in boundary suits, our attention has not been directed to, and we have been unable to find, any article of the Code of Practice or the Civil Code which requires that this procedure be taken. Nor do we see that any substantial advantage may be gained in an action of boundary (save possibly the approval of the survey as to form) by having the court summarily approve the surveyor’s report in advance of a trial on the merits forasmuch as the court is obligated, finally, to determine the -correctness of the survey in connection with the other evidence produced at the trial.”

It is, therefore, apparent that there is no need to hold a preliminary hearing for the purpose of homologating the proces verbal, and there can be no obj ection to homologat-ing the proces verbal and at the same time disposing of the case on the merits provided that the defendant is notified that the matter will be heard on the merits WHEN HE HAS FILED AN ANSWER OR EXCEPTIONS WHICH HAVE NOT YET BEEN OVERRULED. Plowever, when the defendant has not filed any pleadings in the suit, has not made any objection to the survey either before the court or to the surveyor who has properly notified him to appear at the time that the survey is to be commenced, and when a preliminary default has been timely entered, THEN, .the confirmation of default is the trial on the merits, and defendant is not entitled to notice before the confirmation of default. To hold otherwise is to read out of the Code of Practice Articles 310, 311 and 312.

To hold as does the majority, that LSA-C.C. Arts. 839 and 841 require the filing of opposition in a suit to have a judicial fixing of a boundary before a final judgment can be obtained is to read into these two articles something which I do not find. In order to properly interpret LSA-C.C. Articles 839 and 841 which have been quoted in the majority opinion, it is necessary to consider the provisions of Articles 834 through 838.

“Art. 834. Whenever any surveyor is called on to fix the limits between adjacent estates, it is his duty to notify, in writing, the owners interested therein to be present at the work, if they think proper, and to inform them of the day and hour when he will proceed to fix the limits; and he is bound to make mention in his proces verbal of the notice he may thus have given, of the names of the parties notified, and of the date of notice; and the surveyor shall make a record of his proceeding, and of the plans drawn by him, in order that copies may be delivered to the parties who may require them.”
“Art. 835. If the parties thus notified, their representatives or attorneys in fact, appear at the fixing the limits, the surveyor appointed for the purpose is bound to demand of them their respective title papers, which they are bound to deliver to him in good faith, if they have them in their possession, in order that the surveyor may determine, by examining them, in what place to fix the boundaries.
“If the parties thus notified, or their representatives or attorneys in fact, refuse to deliver their title papers, the surveyor shall make mention of their refusal in his proces verbal, and of the cause they have alleged, if they have assigned any, for their refusal.”
“Art. 836. The surveyor shall not set up his boundaries, until he shall have finished the whole work, and until then he must mark his lines of separation by pickets stuck in the ground for that purpose.”
“Art. 837. If, before the surveyor has finished the work, or set up the boundaries, the parties interested, or any of them, shall make opposition thereto, the surveyor must desist, and refer the parties to the court, to have a decision on their respective rights, after having made mention of the opposition in his proces verbal, and the reason for the same, if any be alleged.”
“Art. 838. It is forbidden to every owner of lands to fix the limits between him and his adjoining neighbors, without giving them notice to be present; and, without this formality, every such proceeding is null, and will produce no effect against his neighbors, who, besides, have their action for damages against him, if they have suffered any injury thereby.”

In my view Article 839 must be interpreted along with Articles 837 and 838. It is my opinion that the opposition referred to in the first seventeen words of Article 839, (“When the limits have been fixed after due notice to the parties, and no opposition being made,”) is the opposition provided for in Article 837 and not an opposition which must be filed in court, as I understand the majority to hold. By failing to appear before the surveyor in answer to the notice required by Article 834, the defendant is not held to waive his right to object to whatever line the court appointed surveyor might determine. As stated in the next 26 words of Article 839, by failing to make the opposition which I understand to be contemplated in Article 837, “the parties do not thereby lose their right of resorting to a court of justice to rectify the operation if they think it for their interest;”. But these provisions contemplate the situation where issue has been joined. If the defendant has filed an answer, he must be notified before the case can be taken up on the merits. He may then elect to disregard the activities of the court appointed surveyor and fail to make opposition to the court appointed surveyor, and yet Article 839 reserves to the defendant under these circumstances the right of “ * * * resorting to a court of justice to-rectify the operation * * But, in this event (where the defendant has not made any opposition as provided for in Article 837), “the limits will remain provisionally as fixed, until otherwise determined.” This last clause of Article 839, provides that where the defendant has failed to make any opposition to the court appointed surveyor’s work as permitted in Article 837, the line established by the court appointed surveyor “ * * * will remain provisionally as fixed * * * ” until a final determination of the line is made by the trial and appellate courts. I do not see how the reservation of the right of “resorting to a court of justice to rectify the operation” as stated in Article 839 can be interpreted as providing that there can be no confirmation of default which finally determines a judicial boundary.

I cannot agree with the effect of the majority opinion in holding that every judgment fixing boundaries under LSA-C.C. Articles 834 et seq. by confirmation of default is simply a provisional fixing of the boundary. Neither can I agree that a preliminary default entered three months after the defendant has been served is premature.

I, therefore, respectfully dissent.  