
    5465.
    (Court of Appeal, Parish of Orleans.)
    W. W. WALL vs. WILLIS C. O’ROURKE.
    Involves only questions of fact
    Appeal from the Civil District Court, Division “B.” .
    J. Armstrong, for plaintiff and appellee.
    W. S. Parkerson, S. Parkerson, for defendant and appellant.
   ST. PAUL, J.

This is a petitory action. Plaintiff claims the ownership of a certain triangular portion of ground forming the corner of Melpomene and Roman Streets, in the square bounded by Melpomene, Roman, Derbigny and Thalia Streets in this City, and which may be-briefly and accurately described as measuring 204 ’ 8” 2”’ front on Melpomene Street, 48’ 2” 7”’ front on Roman Street, and 210’ 3” 5’” on an oblique line dividing it from the rest of the square. This portion of ground is hereinafter called the “larger triangle.”

He traces his title through mesne conveyances to the original owners of the Nun’s Faubourg, and it therefore follows that for plaintiff to have a valid title to the property in controversy, the whólé of said property must lie above the lower line of the Nun’s Faubourg.

Defendant on the other hand claims only to be a possessor, and relies for his defense upon plaintiff’s alleged want of title claiming'that the property above described lies below the lower line of the Nun’s Faubourg.

• Hence the issues are fully stated in the following admission made at the very outset of the case.

“Admission; It is admitted by counsel that the question in dispute is the location of the lower line of the Nun’s Faubourg, and that defendant claims no title to property above the lower line of the Nun’s Faubourg as located, and the Court is, to determine the location of that line.” .

Now plaintiff’s claim is that the lower line of the Nun’s Faubourg is the oblique line bisecting the aforesaid square and dividing the aforesaid triangle as above described from the rest of the square; whilst defendant claims that the lower line of said Nun’s Faubourg is the prolongation of the lower or “downtown” side of Felicity Street.

As the evidence shows that the prolongation of the down town side of Felicity Street would also bisect the aforesaid square of ground on a line nearly parallel to. but somewhat above, the aforesaid oblique line, it follows that plaintiff is entitled in any event to a judgment recognizing him as the owner of a smaller triangular portion of land in said square forming also the aforesaid corner of Melpomene and Eoman Streets, but measuring only 120’ 3” 4’” front on Melpomene Street, and 27’ 10” 1’” front on Eoman Street and 123’ 5” 5’” on the oblique line dividing it from the rest of the square. This smaller portion of ground is hereinafter called the “smaller triangle.”

Now the evidence shows that the lower line of the Nun’s Faubourg was the upper line of the Faubourg Annunciation, the two Faubourgs being contiguous, no other land lying between them.

It further shows that the Nun’s Faubourg originally in the Parish of Jefferson and formed part of the City of Lafayette; whilst the Faubourg Annunciation lay entirely in the City of New Orleans.

Afterwards when the City of Lafayette became part of the City of New Orleans the Nun’s Faubourg became part of the Fourth Municipal District of said City, and the Faubourg Annunciation became part of the First Municipal District thereof.

So that the division line between the Faubourg Annunciation and the Nun’s Faubourg, and the division line between the First and Fourth Districts of the' City of New Orleans, were one and the same line.

Now the only evidence in this record tliat the lower line of the Nun’s Faubourg is the prolongation of the down town line of Felicity Street, is the fact that many highly reputable surveyors in the city have always regarded that prolongation as the dividing line between the First and Fourth Municipal Districts of the City of New Or leans. • - -

And in the political division of the city that is undoubtedly true and correct. , For there is little reason to doubt, but on the contrary every reason to surmise, (although the. evidence does .not show it conclusively), that it was the intention when that street was laid out, that it should follow i the division line between the two Faubourgs. There is always however to be taken into consideration the possibility of an error having been made in laying out the line of said street.

But as against mere surmise and probability, and recognizing tiie possibility of error in’ any survey even by the most skillful, we find in this record abundant evidence that -the original proprietors of both Faubourgs and all those that held under them, and even the City of New Orleans itself, have repeatedly recognized, so far .as property rights were affected, (political divisions not being involved), that the true division line between the Nun’s Faubourg and the Faubourg Annunciation lay considerably lower down than, the down-town or lower side of Felicity Street.

Thus we find in the record copy of a plan made by Louis Bringier, surveyor, on February 7th, 1832, showing that at Bachus.Street (now Baronne) the boundary line of the Nun’s Faubourg passed one foot six inches, below the down town side of Felicity Street, and continued to diverge therefrom more and more as it ran to the rear.-

The original of this plan is lost, but a copy thereof is 'annexed to an act of sale of part of said Faubourg, made by the Syndic of J. F. Miller to T. A. Clarke and •Carl Kohn, passed before George Eareshides, Notary, on Dec. 15th, 1857.

• Next we find-in the record what appears to be, and what we are satisfied is a copy of the original plan of the.Faubourg.Annunciation, made by G. T. Dunbar in 1848, which shows that the division line between the Faubourg Annunciation and the Nun’s Faubourg bisects the very square in which this controversy arises precisely along the oblique line which forms the ! ‘ large triangle” hereinabove first mentioned.

This plan, is also lost, but' it is referred to, and can be identified, in certain sales of lots in said Faubourg made by the Union Bank, by acts before A. Mazureau, Notary, in 1848; and a lithographic copy thereof is now in the possession of-G-eórge de Armas, surveyor in this city.

Next we find from a certain report annexed to an act of abandonment by the heirs of William Gormley to the City of New Orleans, passed before P. E. Theard, Notary, on February 6th, 1856, that one Hugh Grant,' a Civil’ Engineer “of great skill and experience” made a survey of that section on behalf of the City of New Orleans, ■ and found a strip of land lying between the lower side of Felicity Street and the upper line of the First District which property he declared to belong to the heirs of Wm. Gormley and others to whom it could have belonged only by reason of their title to the Nun’s Faubourg, and who declared that it did belong to them by virtue of that title.

The lower boundary of this strip or “reservation” if prolonged would bisect the square where this controversy arises exactly along the oblique line forming the “large triangle” above mentioned as the evidence taken in this case shows.

This report was accepted and acted upon by the City of New Orleans, and by the owners of the adjoining prop1 erties in the Faubourg Annunciation.

Finally we find that defendart has a title to'all the balance of the square, that is to say the whole square with the exception of the “large-triangle” aforesaid; that the" description in his deed corresponds exactly with the plan of the Faubourg Annunciation above referred to, and that one of the boundaries given to his property in the deed is “the dividing line between the First and Fourth District” which dividing line, it may easily be. seen by following the description in his deed, coincide exactly with the oblique line forming the “large trangle” aforesaid.

January 9th, 1912.

Rehearing refused, February 5, 1912.

As we have said, defendant practically admits that plaintiff is entitled to the smaller triangle; our conclusions from the foregoing is that he is entitled to the whole of the larger'triangle. Such was the conclusion of the District Judge.

Judgment’ affirmed.  