
    
      MEAUX'S HEIRS vs. BREAUX.
    
    
      In a grant for land on both sides of a stream with calls for the line of another grant, as its upper limits, it does not necessarily follow, that such a line be the limit on both sides of the stream, if the contrary be shewn by proper evidence.
    Appeal from the court of the fifth district.
    
      Brent, for the defendant.
    The present suit was instituted to recover a tract of land, in the possession of which, the petitioners allege they had been for many years; until the defendant, in January, 1813, by force and arms, took possession of it. They pray that the defendant may be compelled to leave the land, pay damages, &c.
    
      West'n District.
    
      Sept. 1821.
    The defendant answered, that the facts stated, are untrue. That he holds the land in virtue of good titles, better than the petitioners; and that himself, and those under whom he claims, have been in possession for upwards of thirty years.
    The petitioners deny all the facts set forth; plead a thirty years possession; the defendant denying all this, pleaded a ten years possession in good faith, and in virtue of just titles, &c. The cause was called for trial, but before entering into the trial, to save time, a case stated was made, and the following agreement, entered into. “The grant of Meaux calls to land on the lower line of René Trahan's grant, as his upper boundary; and it has already been decided by the superior court, that Trahan’s upper boundary began at the isle des Copalmes, on the west side, from thence descending. The question submitted to the court is, whether on the west side of the bayou, the lower line of Trahan’s grant, supposing it to begin at the isle des Copalmes, and descend for quantity, shall serve as the upper line of Meaux’s grant ? Or whether the Coulee des Porches, upon the east side of the Vermillion, and a line running vis-à-vis, shall be cosidered as the upper line of Meaux’s grant?"
    The district court decreed, that the upper line of Meaux’s grant, on the west side of the Vermillion, does not join the lower line of Trahan’s grant, as called for, but that a line drawn from the Coulee des Porches, vis-á-vis, shall serve as the upper line of Meaux's grant. The defendant appealed.
    The petitioners have failed in proving their possession of the land before it was possessed by the defendant.
    Before we examine the testimony, I beg leave to state, that the surveyor, De Clouet, who first gave possession to Trahan and Meaux, surveyed the land upon both sides of the Vermillion; and that it appears he did not consider the survey and possession given upon the east side, as the survey and possession upon the west side; for the witnesses all state, that after the land was surveyed upon the east side, he crossed over to survey upon the west side; and it is the location on the west side, that is now in dispute; of course, when the petitioners state they were in the possession of the land, they must be understood to allude alone to the land upon the west side; and the testimony must be so understood, not to confound the possession on the east side of the Vermillion, with that on the west side.
    Pierre Broussard says, that Michel Meaux first settled upon the east side of the Vermillion, fifty years ago, which is six years before his title, which is dated in 1776; and his testimony was given in October, 1820; and that he, Meaux, lived there; but he does not know upon which side of the river Meaux died. He does not speak of any possession whatsoever, of Meaux upon the west side; and of course, proves no possession whatsoever of the land in dispute.
    Jean Baptiste Broussard, states, he was present when De Clouet put Meaux, Breaux, and Trahan in possession, upon the east side of the Vermillion, but was not present when he surveyed the land upon the west side. De Clouet did make a survey upon the west side. Meaux lived ten or eleven years upon the east side, and then crossed over to the west side, where he died. Meaux’s house was nearly opposite to the witness’s, upon the east side. Breaux first settled upon the east side, where he lived four or five years. This witness, so far from proving that Meaux ever was in possession of the land in dispute, proves the contrary; for the court will notice, that the land now claimed by the petitioners, is not in virtue of Meaux’s title or grant, but in virtue of Joseph Broussard’s grant, which is bounded by Meaux’s lower line; and if the petitioners claim the land in dispute, as being covered by Joseph Broussard's grant. which bounds upon Meaux’s lower line, it follows, of course, that the settlement of Meaux, upon the west side of the Vermillion, must have been higher up, and off the land in dispute; for his settlement upon the west side was under his own title, and only a removal from one side of the bayou to the other, as he supposed, upon his own land; nor does this witness say that he ever took possession of the land in dispute, nor does he locate his settlement at any particular place upon the west side of the bayou; only stating, that his house upon the west side, was nearly opposite his house upon the east side, about five or six arpents lower than the Coulee des Porches. He only speaks in an uncertain manner, and in a way by which we can ascertain no certain place of location upon the west side. And this court knows full well, what confidence ought to be placed in so vague description of a location; a description which is contradicted by Pierre Broussard; who says the settlement of Meaux, upon the east side of the Vermillion, was eight or ten arpents below the Coulee des Porches; and if the house of Meaux, on the west side, was opposite the house on the east, it would make a difference of from two to four arpents of location, between these two witnesses. This clearly shews, that no confidence or calculation can be made from the recollection of witnesses, describing lines and situations relative to events which happened forty years ago; when they speak only from recollection, without being positive as to the facts by them stated; and when they undertake to describe a location, by stating it to be nearly in such and such a direction. This witness, instead of proving Meaux’s or Broussard’s possession of the land in dispute, clearly shews that Breaux, the defendant’s ancestor, was in possession before Meaux moved upon the west side of the Vermillion. Jean Baptiste Broussard says, that Meaux, Breaux and Trahan were put into possession of their lands upon the east side of the Vermillion, upon the same day. He also states, that Meaux lived on his land, upon the east side, for ten or eleven years after he was put into possession; and that Breaux lived upon his land, on the east side, four or five years, and then moved to the west side, where he settled, and where he has possessed ever since, as I will shew. So, that taking the testimony of this witness, as it will be seen by the statement of facts, Breaux and Meaux were put in possession of their lands, upon the east side, at the same time; and Breaux, after five years, moved over to the west side, and Meaux remained on the east side for eleven years, when he moved over to the west side. So that Breaux took possession five or six years before Meaux moved from the east side of the Vermillion to the west.
    Athanase Hébert states, that Meaux first settled upon the east side of the bayou Vermillion, six or seven arpents below the Coulee des Porches; that he afterwards moved to the west side, six or seven arpents below his settlement, upon the east side. And here I will observe to the court, that this witness positively contradicts their other witness—Jean Baptiste Broussard, who swears that the settlement of Meaux on the west side, was nearly opposite his settlement upon the east.
    The witness further says, that it had been from thirty-five to thirty-eight years since Meaux first settled upon the west side of the Vermillion. The fair way is to take the medium, and it will establish Meaux upon the west side, thirty-six and a half years ago; also says, that about the same time he was at Breaux's house, within fifteen feet of the place where the present defendant now lives; and that, at that time, Joseph Broussard, under whose grant the petitioners claim, lived upon the east side, where he always lived, and that he never moved to the west side. Breaux must have been established there for several years before, for in those early days, before slaves were introduced, and every man had to depend upon the labour of his own hands, to erect his buildings, and the population of the country was small, it must have taken Breaux, a poor man as he was, some time to have established himself there, and built an house, which is proven by other witnesses. Hébert, like the other witnesses of the petitioners, does not prove any possession of the land prior to the defendant's; nor do one of their witnesses prove that the petitioners, or any person under whom they claim, were ever in the possession of the defendant’s land.
    The court cannot consider the possession of Michel Meaux, possession in right of Joseph Broussard’s grant, for they have shewn by their titles, that Joseph Broussard did not convey them the land he claimed in virtue of his grant, until the years 1808 and 1815; of course, if they possessed the land at all, they did it without title, and their possession without title, cannot avail against our possession with title, and in good faith. And mark the contradiction, the want of truth, the bad faith contained in the act of 1815. J. Broussard’s grant was for only ten arpents front; by the deed of 1808, he sold to Pierre Meaux, seven of these arpents; and by the deed of 1815, he sells to the heirs of Michel Meaux, of whom Pierre was one, two arpents more, and conveys one arpent, which he says he had given to Michel Meaux, their father, in the year 1808; and by the statement of facts, it will appear that Michel Meaux died in the year 1784, twenty-four years before Broussard says he gave him the land.
    
      It clearly appears then, that the petitioners had no right or title to the land of Broussard, until 1808 and 1815; and of course, the possession of Michel Meaux, upon the west side of the bayou, was alone in virtue of his own grant; and whether we begin at isle des Copalmes, or near a line vis-à-vis, the Coulee dos Porches, by referring to the map, the court will see that Meaux's grant does not interfere with the defendant’s land. It is Joseph Broussard’s grant alone.
    Jean Broussard says, he saw Meaux upon the west side, but does not know where he lived. This witness does not prove that even Meaux was upon the present land. He knows nothing about it. He proves nothing, except that François Meaux, the son of Michel, now resides a little lower than where his father did, but does not prove that either ever possessed the defendant’s land.
    Let us now view the testimony offered by us.
    André Martin proves, that Breaux first lived upon the east side of the Vermillion, and afterwards moved over to the west side nearly in a line with his house, on the east side, and exactly on a line where the present defendant’s house now stands. That Meaux and Breaux crossed over to the west side, about the same time; and that Meaux lived where J. B. Broussard now resides. By the testimony of this witness, the defendant proves positively, that his father settled upon the west side of the Vermillion, upon the spot he now lives: and that he has possessed it ever since, and that it has been thirty-five years or more since.— He also proves, that Meaux settled higher up, and not on the defendant’s land. He also proves that Joseph Broussard always lived on the east side. Now, how can the petitioners claim by possession, without they prove that Joseph Broussard, under whose grant they hold, or some person under him, possessed the land in dispute: this they cannot do; whilst the defendant, on the contrary, proves positive and uninterrupted possession of the particular spot, under good title, for upwards of thirty-five years.
    John Coleman proves the defendant’s possession since 1788, positively.
    In support of the positive testimony of these two witnesses, I will refer the court to the deposition of J. C. Hébert. This witness swears positively, that since forty years, Breaux and his representatives, hare always possessed and cultivated the land in dispute.
    The same fact is proven by all the witnesses in the case.
    To shew the court why this question, which we have agreed to submit, has any bearing upon the case; I will state, that René Trahan's grant calls for forty arpents of land, bounded upon one side of the domain, and upon the other by Meaux; and that Meaux's grant calls for Trahan's land above, and Broussard's below; and Broussard's grant calls for Meaux’s above, and Breaux’s land below; and Breaux's grant calls for Broussard’s land above; so that these several tracts form a chain, and call for the one and the other. The defendant, contends that the lands must be located by the proper authority. The petitioners, on the contrary, contend, that no attention is to be paid to the calls of the grant, and that the lands had been located differently from their calls; and if the lands must be located according to their calls, or were so located, then the defendant must succeed; if they were located differently, and as contended for by the petitioners, then as to this point (if not precluded by others) the judgment of the court below must be affirmed.
    
      The beginning of the survey and location of these several tracts, was at the isle des Copalmes, on the west side; that is, the isle des Copalmes must be considered as the point of departure. In taking it as the point of departure, each tract must be, and has been surveyed and located, bounding on each other on the west side.
    In order to establish the isle des Copalmes, as the beginning boundary upon the west side of the Vermillion, I need only refer to the case of Meaux vs. Breaux, 5 Martin, 215, and observe, that is the very case now before the court.
    The court will see by the record, that the petitioners and the defendant's ancestor were then the parties litigating; and that the beginning of Trahan’s grant upon the west side was then the question; and that it has been decided to begin as the defendant contends for, at the isle des Copalmes.
    But putting these decisions of this court out of the question, the beginning of Trahan’s grant at isle des Copalmes, is established by the proof in this cause, beyond a doubt, and uncontradicted by any witness. All the witnesses agree in the fact, and J. C. Hébert proves the positive fact, that old colonel De Clouet, who made the original surveys, and located Trahan and Meaux under their titles, told him that he had delivered possession to Trahan, and surveyed the land under his grant, by beginning at and establishing the isle des Copalmes as the upper boundary of Trahan's grant. The declarations of De Clouet (who is dead) the very surveyor who put them in possession, as directed by the Spanish government, is good evidence; and I need not refer this court to decisions, to shew that in cases of boundary, the declarations of deceased persons are good evidence; and if so, the declarations of the surveyor himself, are certainly the best evidence that can be produced.
    The first piece of evidence I shall refer to, to prove that the upper line of Meaux's adjoined Trahan’s lower line, on the west side, will be the written acknowlegement of Meaux himself, contained in his grant, shewn by the petitioners; and also in sales made by him, together with the certificate of the surveyor, who first surveyed the land, and put the several claimants in possession.
    I begin by calling the attention of the court to Meaux's grant, for fifteen arpents of land on both side of the Vermillion. The court will see by reading the certificate of survey, that Michel Meaux, under his signature, has acknowleged that De Clouet put him in possession of his fifteen arpents, front of land upon the west, as well as the east side of the Vermillion, adjoining (attenant) upon both sides, to the land of René Trahan.
    Nor is this the only act wherein he has acknowleged that his land adjoined the land of Trahan. Upon the 20th of July, 1778, subsequently to the survey and location, which De Clouet certifies he made in 1776, Michel Meaxs sold the five upper arpents of his grant, to one F. Broussard; and in this deed he states, that his land adjoined the land of René Trahan upon both sides of the bayou.
    How is it possible, that the petitioners can expect to establish the location of Michel Meaux's land, different from his written acknowlegement.
    But even suppose that Meaux had never made a written acknowlegement that his land adjoined Trahan’s, is not the official certificate of the surveyor, who states he put him in possession of his land adjoining Trahan’s, boundaries, and upon which alone the grant issued, good evidence of the location, until the contrary is proven ? And has it been proven ? No not one word of testimony proves any other location. Their witnesses only go so far as to say, that they never knew of any survey upon the west side, for Meaux. They do not dare to say, that no survey was ever made—they could not say it. How then can this court do otherwise, than to establish the location of the land, according to the written acknowlegements of Meaux himself, the certificate of location of the surveyor, and the grant of Meaux, which, from the petition to the last order, calls to bind upon Trahan, upon both sides of the Vermillion; they cannot in law or justice.
    But supposing that there had been no written acknowlegements of Meaux, no certificate of location by the surveyor, and that the grant of Meaux did not call to bound upon Trahan's land upon both sides of the Vermillion. I will shew that there was an actual survey and location of Means’s land upon the west side of the Vermillion, and adjoining the land of René Trahan.
    
      I refer to the fact stated in the testimony of all the witnesses, whose evidence I have commented upon, and which is this, viz that after the land was surveyed in 1776, upon the east side of the Vermillion, for Trahan, Meaux, Broussard and Breaux, the surveyor crossed over to the west side to make the survey. If the evidence had stopt here, it would be sufficient to induce the presumption that the survey had been made, without the contrary had been proved by the petitioners; and the defendant having established the fact that a survey at that time was made, which began at the isle des Copalmes, and that each of these tracts called for the other, this court would presume, until the contrary was proven, that this boundary was given at the place of departure, to govern the location of all the said tracts on the west side, and that the survey and location of the same, was then made accordingly, particularly when the surveyor who made the same so certifies it, and the parties themselves sign a written acknowlegement of the fact, upon which their grants issue. But our testimony stops not here. The defendant proves the fact of an actual survey and location in 1776, as contended for by him. I will shew it.
    
      In the trial of this cause, an old Spanish record of certain proceedings, was admitted to be read, and to which I refer the court. It accompanies the record of this case, by agreement.
    By the depositions therein contained, of old persons now dead, some of whom were present at the survey of 1776, the court will see that an actual survey was then made upon the west side of Vermillion, and Broussard under whom alone the petitioners claim, expressly states, that he understood that a survey had been made of all their lands upon the west side of the Vermillion in 1776, and that it was different from the survey made upon the east side, and that he never heard of any dissatisfaction until some years after. He does not deny the survey of 1776, upon the west side, but only says he does not know where it began. The deposition of the widow Meaux, mother of the petitioners, proves that the survey upon the west side, began at the isle des Copalmes.
    But if all this be not sufficient, I will ask if the defendant proves positively, that the land was surveyed for Meaux, adjoining Trahan’s, and then for Broussard, and then Breaux, and that according to said survey, the defendant is rightly located, will not the judgment of the inferior court he reversed ? If so, we have positive proof of the survey being made as the defendant contends for. Look at the deposition of J. H. Hébert. He proves the survey and location as the defendant contends for. Hébert is asked by the defendant, if he has any knowlege of the survey of 1776 or 1778, and how it was made. He answers in these words, “I have a knowledge of said survey upon the west side of the Vermillion; De Clouet who made the said survey, told me how it was made. I was not present.” He is then asked if the said survey (alluding to the survey of 1776) was not made by beginning at the isle des Copalmes, and first running off Trahan’s land, and then Meaux’s adjoining to Trahan. His answer is: “the survey was made of the tracts of land in the manner as stated.” He also states, that he had seen a boundary below Breaux’s land. He further states, that, he was present when the boundary of Breaux was verified by De Blanc and Durable, and found correct. Now, it appears to me that this is positive testimony. Suppose De Clouet was living, and now before this court, and was to swear that in 1776, he surveyed Meaux’s land on the west side of the Vermillion, adjoining Trahan’s land, and then Broussard’s, and then Breaux’s, all adjoining, would not his testimony be received, and would it not be conclusive, if not contradicted. And if it would, as he is now dead, the law says his declaration as to locations, shall be received in evidence. If so, an actual location is proved, adjoining Trahan’s land; for De Clouet told Hébert that he so surveyed and delivered the land.
    But the fact of there having been a survey and location of lands adjoining each other, from the isle des Copalmes down, is established by other and stronger testimony, if possible.—It appears, that by looking into the depositions to which I have before referred the court, that about ten or eleven years after the survey of 1776, the present petitioners, or some other persons, began to disturb the defendant’s ancestor, and that De Clouet, who was then living, and the same surveyor who had surveyed the lands in 1776, went upon the ground and re-surveyed the several tracts of land, beginning at the isle des Copalmes, and so on, and verified his survey of 1776, and declared Breaux, in possession of his land, as surveyed in 1776, and as possessed this day; what better or stronger testimony, or proof of a former survey can be had, than the same surveyor retracing the lines run by himself at the first survey, and declaring the same to the persons present? This is in fact, shewing the boundaries and lines by him given, and is the very best evidence that can be offered. I refer particularly to the testimony of Francois Louriere, on the record, as well as to all the others.
    In addition to this host of testimony, I refer the court to the verification of the boundaries by which it will be seen, that the two commandants of Oppelousas and Attakapas, by order of the Spanish government, run off the said several tracts of land, beginning at the isle des Copalmes, and that at the line on the west side they found the hole in which a boundary had once been placed; and that Jos. Broussard, under whom the petitioners claim, acknowleged that he had pulled up a post from that place, and which boundary was shewn by André Martin. I will ask, if this does not prove that a survey had been made, and that this was the dividing boundary between Broussard and Breaux, as the defendant contends. How is it possible for the court to resist this host of evidence ? How could it be possible for the defendant to prove the fact clearer than he has done ? Have the petitioners shewn by one witness, by one circumstance, that a different location was given ? They have not. In establishing the lands adjoining, as the defendant contends for, every claimant gets his quantity, and there is no confusion; but establish the lines as the petitioners claim, and the court will leave a vacancy of about seventeen arpents in a straight line between Trahan’s land and Meaux’s, for which no title or demand was ever given or made under the Spanish government, and will throw' the entire country from the isle des Copalmes, to the mouth of the Vermillion, into confusion, and change the location of every tract of land on the Vermillion river. But in deciding, as contended for by the defendant, every inhabitant will remain as he now is; it will put an end to litigation, and the petitioners in lieu of taking from my client his land, upon which his forefathers and himself have lived and raised their families these forty years; they will get their land also, superior in point if situation and quality, to that which they so unjustly ask for.
    
      Even supposing that the defendant should not have succeeded in establishing the survey of 1776, as contended for by him, that the petitioners are barred from recovering from him, by prescription of thirty years, without a title, and if not barred by it, that they are by the prescription of ten years, under possession in good faith and just title.
    Let us consider this case at first, as if the defendant had no title, and relied alone upon the plea of thirty years prescription. Si aucun a joint, usé et possedé un héritage ou rente, ou autre chose prescriptible, pour l'espace de trente ans, eontinuellement, tant par liu que ses predécesseurs, franchément, publiquement, et sans aucune inquiétation, supposé qu'il ne fasse apparoir de titre, il a acquis prescription entre âgês et non privilegies. The thirty years prescription has been pleaded, and the petitioners have admitted that they were neither under age or privileged by their not pleading it; nor have they shewn, by any evidence, that they were either the one or the other: of course, the case must be considered as between parties against whom prescription would run, and as such I will examine it. Pothier, Prescription, n. 162.
    The defendant proves, by the testimony of J. C. Hébert, that for forty years the ancestor of the defendant, and the defendant, have actually resided upon and cultivated the land in dispute. Pierre Broussard says, that it has been forty years since Breaux settled upon the land in dispute, Athanase Hébert says, that thirty-five or thirty-seven years ago, he saw Breaux's house in the place where it now is. Breaux had already established the place. John Coleman says, when he came into the country, in 1788, Breaux was residing upon the land. The testimony of all the witnesses is supported by the depositions referred to in the Spanish record. All of these witnesses’ testimony goes to prove, that Breaux enjoyed, used and possessed the land for thirty years before this suit, openly, publicly and without interruption, and clearly establishes the defendant’s right to be maintained in possession of said land.
    The defendant has proven, that his father and himself for more than ten years previous to any disturbance, resided upon and possessed the land, publicly, openly and in the view of the whole world. And he has also shewn, that it was in virtue of a good and just title: a grant from the Spanish government. The petitioners have endeavoured to shew, that Broussard's grant was the oldest; but the court will look at Broussard’s grant, and they will see that it calls to bound upon Breaux's land below; and although it appears from the extract of Breaux's grant, that the date of the patent of Breaux was not as old as Broussard's, this court will presume, that the petition, order of survey, and certificate of survey, upon which the patent issued, were as old as Broussard’s, or why would Broussard's grant call for Breaux's. Pothier, Prescription, n. 6. & 26.
    
      Baldwin, for the plaintiffs.
    The only question to be determined in this case, is the upper line of the grant, to Michel Meaux, on the west side of the Vermillion. The plaintiff’s contend, that it ought to be at right angles from the Coulee des Porches, situated on the east side of the same bayou. If this is determined to be the true line, then the decree will follow as a necessary consequence, that they ought to be quieted in their possession: for if this is the correct line, the defendant was on the plaintiffs’ land. This agreement was entered into after the suit was at issue, and after the parties and their attornies were well acquainted with the facts the case, to simplify the enquiry, and to settle a question which had been too long in discussion; and which if the parties had felt disposed to prolong and embarrass the proceeding, might have been rendered complicated and perplexing. Each party was fatigued with discussion, and wished to direct their attention to the single point, on which the whole case, in truth, depends. The defendant relied very much on the opinion, that the question had been settled in the former suit of the Broussard’s and Trahan’s; but this court by them decision in 8 Martin, have determined, that the res judicata did not apply; and the question is to rest upon the evidence adduced.
    The defendant relies altogether upon prescription, which does not seem to me to grow out of the question submitted by the agreement. It was well known at the time, that the question of prescription could not arise, as the plaintiffs and defendant had been in possession of some part of their tract for many years, and that a possession of part was a possession of the whole, so far as to permit the effect of that doctrine.
    
      Though it was necessary in the district court to prove the length of possession, as well as the particular place where the plaintiffs were situated, to ascertain the correctness of the location.
    I conceive that the title is of itself sufficiently explanatory.
    The parol evidence establishes the fact of the possession of the plaintiffs, and their ancestor on the land, beginning at the Coulee des Porches, for at least forty years; and that it began at the period, if not before the date of the grant. This is not contested. But me defendant’s counsel labours to destroy the effect of this settlement and occupancy, and offers in his argument, the evidence of a survey made by De Clouet.
    This survey of itself proves nothing beyond the single fact, that he surveyed the land, as well as that of the other grantees, on both sides of the river Vermillion, and planted boundaries. To judge from the survey alone, the mind would not hesitate in coming to the conclusion, that the fronts were directly opposite each other. To prevent this, the defendant offers testimony to shew that a different location was made on the west side, for Trahan. Admitting that, this is proven, it answers no purpose. It must be proved that he surveyed Meaux's adjoining; and even this still still be ineffectual, unless he proves that it was done by Meaux's consent, and that the title would justify it. Both of which he has failed to do. The title calls for the Coulee des Porches as the only boundary. No other could correctly be taken. No one of the witnesses state that Meaux was present at the survey on the west side; or that he ever consented to he bound by Trahan's line, beginning at the isle des Copalmes.
    This case then, unconnected with the Meaux in the case of the Broussard and Trahan’s, rests upon the grant and possession under it, and which is simply this;—Meaux calls to join on Trahan, and Trahan refers to the Coulee des Porches as his own boundary ; consequently it is the upper boundary of Meaux, who went into possession about forty years ago, and his heirs, the present plaintiffs, have continued ever since.
    This coulee is admitted, by the defendant’s counsel, to be the correct limit on the east side. It must serve for the west side, unless something more certain interferes to prevent it. Nothing is offered but parol testimony of De Clouet’s survey, made in the absence of Meaux, and never assented to by him. Trahan might have requested the surveyor to give him a different front on the west side, as one of the witnesses, if not more, states, that Trahan did not wish to include the bend of the river in his tract, and requested that it might be surveyed higher up. A very strong reason why Meaux would not wish to change his front, as he would then take the bend rejected by Trahan.
    It seems clear then, that the plaintiffs have a right to continue in possession of the land, thus occupied by them and their ancestors, for forty years, at least; and that the Coulee des Porches must serve as the boundary on the east side; and a line crossing the river or bayou directly opposite, as the upper boundary on the west side; and which, by the agreement, is the only question submitted for decision.
    It may, however, not be amiss to look a little at the defendant’s pretentions. He claims under a sale from Anselme Thibeaudeau to Firmin Breaux, in one of which sales he conveys two arpents and one half in front, situated on the river Vermillion, with the like quantity upon the same line, on the other side of said river. On the same day, he sold two and one half arpents more to J. Broussard, in the same manner, on both sides of the river. How then can the defendant, under such a sale, contend that his land does not lie opposite, and that the plaintiff's must change their possession and lines to accommodate him ?
    The defendant's counsel has asserted, that if the Meaux are permitted to remain where they are, it will require a change of all the lines and settlements on the Vermillion.— The contrary of this is well known to the court, and that all the evils apprehended by the defendant's counsel will be introduced by deciding against the plaintiffs.
    For a further and much better illustration of the case, the opinion and view taken of it by the district judge, is referred to.
   Martin, J.

I concur in the opinion of my colleague, for the reasons therein adduced.

Mathews, J.

The question as to the effect of the judgment obtained in the superior court of the late territory of Orleans, in the case of Trahan's heirs vs. Broussard, 2 Martin. 133. as forming rem judicatam, in the matter in dispute between the parties to the present, having been settled by a decision of this court. 5 Id. 214, it now only remains to decide this case on the merits.

The plaintiffs and defendant claim a tract of land on the western side of the bayou Vermillion, of twenty-five arpents in front, fifteen of which were acquired by a grant to their ancestor, and ten by purchase from Broussard, an original grantee.

The principal difficulty in the case, is to fix the upper limits of the grant to the plaintiff's ancestor. It calls for Trahan's grant, and purports to be of an entire tract of land, of fifteen arpents in front, on both sides of the bayou. The lower line of Trahan's land, on the east side of the stream, is established beyond dispute, and determines satisfactorily that, of the grant of the plaintiff's ancestor on that side. But on the other, Trahan's land is, by the judgment of the superior court of the late territory, referred to, to have for its limit, on the upper side, a place called isle des Copalmes, and run down the bayou for its front, which places this part of his claim some distance above his grant, as located on the eastern side.

The question which relates to the location of this land, must be solved by ascertaining whether or not Meaux's line, on the upper side, and Trahan's on the lower, must necessarily be the same on both sides of the water, according to the title on which the former claims, I think not.

The plaintiffs’ claim calls for an entire tract of land, containing fifteen arpents in front, on each side of the bayou, and as its location on the other side is fixed beyond a doubt, its western ought to correspond with such lines as are thus clear and certain, unless they interfere with an older or better title, which does not appear to be the case here.

The defendant’s claim, by possession and prescription, is not in my opinion supported by evidence. They do not shew that their title, such as it appears on the record, covers any part of the land claimed by the plaintiffs. Their possession being without colour of title, they can only avail themselves of the prescription longi temporis, and they shew no claim on that score.

It is true, that the testimony of one of the witnesses (Huet) shews a very long possession in the defendant, and his ancestors; but it is by no means explicit as to the precise spot or its extent. His evidence is too vague to support a judgment. Admitting it to be otherwise, it is contradicted by another witness (Montice) which proves an interruption.

Baldwin for the plaintiffs, Brent for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the district, court be affirmed with costs.  