
    
      SCOTT vs. TURNBULL & AL.
    
    When questions of limits depend on matters of fact, rather than principles of law, the verdict of a jury will not be disturbed if it do not clearly appear contrary to evidence.
    Appeal from the court of the sixth district.
    West'n District.
    Sept. 1821.
    Scott, for the plaintiff.
    The parties respectively are owners of land which adjoin on the right bank of the bayou Rapide, in descending. There is no disagreement as to the point of beginning, which is represented on the filed in the cause by the letter A.; but they differ as to the course of their dividing line.
    In the court below, there was a general verdict of the jury in favour of the plaintiff, which establishes the course of the dividing line between him and the defendants, to run from the bayou S. 30 E. This verdict will not now be disturbed, unless it can be shewn to be manifestly against the evidence. 5 Martin, 323. 8 id. 363.
    The plaintiff's claim is founded on a requete and order of survey, in favour of Lewis Huet, dated in 1788, and on a continued and peaceable possession long before, and ever since that period, either by the plaintiff or those under whom he claims; together with a confirmation by the commissioners of the united states. It is probable, that no survey was ever made of this track of land, until the year when it was run out and marked by M. Stone, a regularly authorised surveyor under the American government. He was acting under his instructions as a public officer, and he has adopted a course for the side lines, at right angles, as nearly as practicable with the general course of the bayou in the neighbourhood, to wit, S. 30 E. This fact is established by the testimony of M'Curmin, and from whose testimony he could not have done otherwise, without interfering with old and established lines on the lower side; for he says that the general course of the lines on the right bank of the bayou Rapide is S. 30 E. until von arrive at P. Bailio’s land, which adjoins the defendants above, where it is S. 28 E. This survey has alloted to the plaintiff his proper quantity of land, and exhibits the courses which he contends for. It is believed to be strictly conformable to the usage of the Spanish government, in thus running, at right angles, as nearly as practicable with the general course of the bayou, and in conforming to established courses in the neighbourhood.
    The defendants, on the other hand, shew no original title papers, but rely on a string of conveyances, commencing with V. Poiret, in the year ,and plat of survey, purporting to be made by C. Trudeau, in the year 1801. together with a commissioner's certificate, and long possession.
    Prescription has not been contended for in the court below, because both parties have occupied for such a length of time, that no person can now be found who recollects the commencement. The evidence, although not fully spread on the record, shews clearly that Delorie's field, which was encircled by the gully, and which was cultivated by him more than thirty-years ago, extended even above the line which the plaintiff contends for, while the defendants might have occupied the land in his rear, so far as to get fire wood, and for negroes' potatoe patches, &c. for it was never actually enclosed.
    The defendants then set up two deeds, under which they claim. The one from V. Poiret to E. Muillian, for six arpents of front, with the ordinary depth, bounded on the upper side by lands of P. Baillio, and on the lower side by lands of Louis Delorie. The other from L. Delorie to E. Muillian, for one and a half chains of front, being the upper part of Delorie’s land, and adjoining that of the purchaser. All the front and depth called for by these deeds is conceded to the defendants.
    But not satisfied, they present a plat of survey, purporting to be made by C. Trudeau, in the year 1801, diverging their lines above and below, so as to include a much greater quantity of land than their deeds call for; and interfering with the plaintiff on the lower side. The truth is, that there never was an actual survey as then represented. For the testimony of M'Curmin, although imperfectly spread on the record, shews that he run out the lines of this tract of land after the year 1807, and found no marks which appeared to be older than three or four years. They were marks of the same appearance with those along the plaintiff’s line. And if such old marks existed, the defendants might easily have shewn it. M'Curmin’s statement, although it has been omitted to be so stated on the record, amounts to this, that about the year 1810, he was public surveyor, and run out the lands of the plaintiff as well as the defendants; he found marks on both lines, which appeared to be three or four years old. He believed them to be those made by Stone, in the year 1806. But independently of M'Curmin's testimony, let us view the face of this pretended plat of survey. The certificate which accompanies it, represents that it has been made in the presence, and with the consent of the adjoining proprietors, to wit, M. P. Baillio above, and some person who was appointed to represent Delorie below. Now, unfortunately for the defendants and this pretended survey, Delorie was not at the time, nor had he been for twelve months before, the proprietor of the land below; having sold and conveyed it to J. Poydras, by authentic act, as shewn on the record. Again, on the upper side, a course has been pursued S. 17 E. as far as Muillian desired it to run in that direction; then, after making a right angle, it proceeds S. 31 E. to the back line. On what principle was all this done ? And yet it is represented, that M. Baillio was present and consenting. The thing was too absurd to be contended for; and the defendants, and those under whom they claim, without setting up any pretention to these courses, have conformed to M. Baillio’s line running S. 28 E. it being the general course of the bayou at that point, according to M'Curmin’s testimony. With what justice then can the defendants contend for the course of the lower line. It would give them double, or nearly double, the quantity of land which their original purchase entitled them to.
    But in running out their lines they must surely be governed by some general principle, either run at right angles from the general course of the bayou, in the neighbourhood, or conform to some established line, by the side of them. In either case, the plaintiff will not be disturbed; it may be remarked, however, that owing to a peculiar bend in the bayou, the defendants might diverge in some degree above and below, without interfering with any person; and it is extremely probable, that M. Muillian’s only motive in procuring Trudeau’s certificate of survey, was to effect that object; for in selling to Stewart, although he sells by that plat, yet he carefully guards against any warranty.
    The plaintiff has no means of shewing, with any precision, the nature and extent of Trudeau’s powers as surveyor-general of the province. So far as he can learn them, however, they did not exceed those of other surveyors, in running and marking lines, between individuals under sales from one to the other.
    In surveying lands under incomplete or complete titles, derived from the king or his officers, his acts were generally, and perhaps always approved; and although the survey might contain a greater quantity, or even differ from the place designated in the incomplete title, yet the survey was considered as conclusive, so far as the public domain was affected. But this authority could not extend to surveys, made under sales from one individual to another, or to disputes between adjoining claimants.
    For if it should, he could take from one and give to another; and if A. sold to B. one arpent front, he could give two, three, or more, at discretion; or as in the present case, if he did not choose to exercise his partiality by enlarging the front, he might do so by diverging the lines. A power so extensive as this will not be presumed, it must be shewn, which has not been done. It is believed, therefore, that the survey which has been presented on the part of the defendants, can give them no title whatever; because, first, it is altogether of a private nature, for it says at the request of Muillian. Secondly, so far as it is pretended, that the adjoining proprietors were present and consenting, it is untrue, for Delorie had previously sold to Poydras. And thirdly, there was no authority for diverging the lines.
    The defendants then must rely on their two deeds of conveyance, before referred to.—That from V. Poiret transfers six arpents of front, with the ordinary depth, adjoining Baillio’s on the upper side. This line is established to be S. 28 E., first, by M'Curmin’s testimony. And secondly, by Stone’s survey, a plat of which accompanies the defendants’ claim before the commissioners. The lower line must run parrallel with it, and Huet’s requete calls for land adjoining it. But the deed from Delorie to Muillian transfers one and a half chains of front, to be taken from the upper side of his claim, and it is under this deed that the defendants set up their pretended right, to diverge on their lower side. The expression which they rely on is this, partant d'une souche de liard qui a été toujours reconnue pour borne entre la terre que le dit acquereur a acquis de dame veuve Poiret et celle que j'ai acquis 
      
      du sieur Louis Huet, courant sur cette derniere, dont ell est separée et constituée par une borne plantée en presence du dit acquereur.
    
    There is not a word about any particular course; the expression is easily understood. It means this, and nothing more: that Delorie sells one and half chains of front, with the ordinary depth; commencing at a cotton wood tree on the bayou, which was known and established to be the line between the vendor and vendee; thence running down the bayou, one and a half chains into the land of the vendor, to a post, which was planted in the presence of the parties. But let it be remarked, that if this deed could bear the construction, which the defendants have attempted to give it, it is a sous seing prive; whilst the conveyance from Delorie to Poydras, under whom the plaintiff claims, is an authentic act. In case of interference, the latter must prevail.
    On the whole, the plaintiff is persuaded that the verdict of the jury is strictly conformable to law and evidence, and that it will not be disturbed.
    Bullard, for the defendants.
    The land in controversy, in this case, is represented on the plat of survey, marked No. 10, on the record, by the triangle A. B. F. The plaintiff contends, that the line A. F. is our lower boundary, and we contend for the line A. B., down to which we now hold. The question, therefore is, which of the parties has exhibited the best title to that portion of land. It is emphatically a question of title and not of simple boundary, as the plaintiff appears to suppose. The court is to decide who is the owner of that triangle, and not merely what division line has been heretofore recognised by the parties; so as to bind them in this suit. If the defendants are evicted, they have less land than their title calls for; if the plaintiff succeeds, it must be by the superior strength of his.
    I will first examine the title of the defendants in itself, and as strengthened by the equity of possession.
    Whether Vincent Poiret, from whom the defendants derive their right, had any written evidence of title, emanating from the Spanish government or not, is of no importance in this case. He had, at least, a notorious, public, and authorised possession of the tract of land adjoining Baillio, as early as the year 1788. Huet, from whom the title of the plaintiff is derived, in his requete, asks to be bounded above by him. After Poiret’s sale to Muillian, the latter in 1795, purchased of Delorie, to whom Huet had previously sold the whole of his title, the upper chain and a half; so that both parties, as respects a part of the land in contestation, claims under the same person.
    In 1801, Muillian had the land which he had purchased from Poiret and Delorie, surveyed by C. Trudeau, the then surveyor-general of the province, who establishes the course of the lower line at A. B., S. 40 E.
    Muillian continued in the occupancy and cultivation of the land, and after the change of government, having no inchoate grant, and only long and uninterrupted possession, applied to the commissioners for a confirmation under the second section of the act of congress of March 2, 1805. He was confirmed in his right to the number of arpents comprised in Trudeau's survey. He has, therefore, what is usually called a settlement right. It is such a title as may form the basis of the ten years prescription, to commence from the date of the act of congress. King & al. vs. Martin. 5 Martin's Rep. 179.
    
      I am not disposed to contest the principle contended for by the plaintiff, that the operations of the surveyor-general could not confer title. I attach no importance to that survey of Trudeau, as forming a part of the original title of the defendants. I know that a surveyor cannot take land from one man and give it to his neighbour; and that without a subsequent ratification, his acts are no evidence of title out of the crown. Nor do I insist, that it proves the express assent of Delorie to the surveying. I rely on it, simply to shew the extent of our possession; a taking possession, as an act of Muillan marking out to the whole world the limits of his claim. It was not as an official act of the surveyor, that it has added to or established the extent of our right, but as a public, notorious, and recorded declaration by Muillian, in 1801, that he held within such boundaries, and to call on others who might have a better right to contest it. The purchasers under Muillian, have bought by the same limits and description, and with reference to that survey, and nearly twenty years had elapsed before any one was found to dispute it. The actual possession has conformed to that survey ever since its date, with the exception of a small spot in the bend of the gully, in the shape of a horse shoe, at M. on the plat. The certificate of the commissioners refers to that survey, and confines the claimant in the same quantity comprised in it.
    The defendants therefore, have a legal title to the whole quantity of land, granted by the united states, to Muillian, and consequently to the small triangle in dispute, independently of any right acquired by possession, since that period. The whole tract is to be considered as one entire thing; the same reasoning applies to every part of it; the title, such as it is, covers the whole, and possession of a part, is possession of the whole, under their title.
    Even supposing, then, that the title exhibited by the plaintiff were of prior date and equal dignity, and calling expressly for the whole of the same land, or only for the triangle, according to the uniform decisions of this court, the party in possession must be maintained.
    Thus far, as to the title of the defendants in itself, independently of possession since 1805. Let us enquire how it stands under the second plea, on the record, that of the ten years prescription.
    I have heretofore supposed a case the most unfavourable to the pretentions of my clients, namely, that the order of survey of Huet, from whom the plaintiff derives title, calls expressly for the whole or a part of the same land occupied by the defendants. The case of King & al. vs. Martin, before cited, has decided this case even under that supposition. The titles of the plaintiff in both cases, are of the same nature, an order of survey with a commissioner's certificate. The defendants in both cases have settlement, rights. In that case, the court said the defendants should not be disturbed, and sustained their plea of prescription.
    The only question then to be examined is, whether the possession of the defendants since the year 1805, has the qualities required by law, to give title by prescription.
    The possession required by law to operate the ten years prescription, should be a civil possession anal in good faith. The natural naked possession of an usurper does not suffice. Civil possession is a possession animo domini, and good faith is said to be justa opinio quœsiti dominii, under a title translative of the property in the thing. Pothier, Traité de, la pos. 108.
    The possession once acquired is continued and preserved by the mere will of the possessor. Id. 34 & 5.
    There must be an original taking of possession. This is proved by the act of Muillian, in 1801, in having a survey made, marking the line, and cultivating the field, represented on the plat within the triangle; his actual occupation of the principal plantation is a taking possession of every part, and consequently of the part in dispute. Id. 28.
    The possession once acquired under the title, and continued for ten years without interruption, gives a prescriptive right to all the land comprised in the calls of the deed or other title. If the defendants have a good prescriptive right to the spot where their house stands, they have to the triangle, which is a part of the same land. An actual, corporeal possession is not required, to acquire by the 30 years prescription; the possessor gains by his inclosures, inch by inch; by that of ten years, he holds and prescribes by the terms and limits of his deed.
    These are well established principles, and expressly recognised by this court, as well in the case above cited, as in the case of Provost's heirs, against Singleton and Johnson, decided at the last term. The case of King vs. Martin, is a much stronger one on the part of the plaintiffs, in as much as their order of survey called expressly, eo nomine, for the same land held by the defendant.
    It is time to look at the title under which this court is called on to take this land from us, and decree it to the plaintiff. Huet’s order of survey in 1788, calls to be bounded above by Poiret under whom we hold, and below by the domain. In 1795, Muillian acquired from Delorie, then the owner of Huet’s title, the upper chain and one half. Huet, having obtained the order of survey, appears to have done nothing more towards completing his grant, had no survey been made; and has given his land no definite location, and does not appear to have done any act which would amount to a taking possession of any land represented in the triangle. Nothing was done till 1806, when the surveyor run a line S. 30 E., and yet the owners of the adjacent tract, continued, and still continue, to disregard it. What did Huet acquire ? A right to two hundred and forty arpents, to be bounded above by Poiret or Muillian, and below by unappropriated lands.
    It is contended, that the upper line of Huet’s should run S. 30 E., for two reasons—first, because that course would run at right angles, with the general course of the bayou Rapide, in conformity with the ancient usages of surveyors in this country; and—secondly, because it would be parallel, with the lower line of the tract.
    As to the first, I deny that there is any evidence on the record to establish the fact; and an inspection of the plat will shew, that forty is nearer at right angles with the course of the bayou at that place, than 30 would be.
    The second can be removed in a most satisfactory manner, and will be found to be entirely fallacious; being bounded below by the domain, it is clear, that there can be no better titles below, which would compel them to run the course they have done, in preference to any other. They might as well have run S. 40 E. and completed their quantity of land as S. 30 E. It may be asked how was that line established which they set up, as the standard ? By whom? By those who held under Huet, through the agency of the surveyor in 1806. They have then assumed a line below, to which their title does not limit them; and then pretend that the upper line must run parallel with it, thereby making their own gratuitous act, binding on and conclusive against us. Their reasoning amounts to this: we have chosen to fix our line below, at S. 30 E.; therefore you must yield us the same course above, this is reasoning in a circle.—We answer them, make your lines parallel if you will; take the quantity of land you are entitled to, but take it from the domain below, or from younger titles, and not from an older one above, by which you called to be bounded. Go upon land which, at any rate, be longed to the crown, at the date of your order of survey, and which you might then have covered with your title, and not upon ours, which we have cleared, cultivated, and improved, in good faith, and occupied for more that twenty years, and to which we have acquired an incontestable title; not by clandestine means, but through the agency of the public surveyor, whose act has been sanctioned by the succeeding sovereign of the country. A title, originating under the Spanish government, by the droit de trâcte, and acknowleged to exist, by yourselves, in 1788. No good reason can be given for fixing the lower line at S. 30 E. It is impossible a different course could interfere with established lines, and better rights, as the plaintiff appears to imagine.
    Shall the plaintiff then, whose vendors have for so long a time, acquiesced in the line run by Trudeau or Muillian, and made a matter of record and notice to the whole world, he now permitted to alter it, and that only, for the sake of running it parallel with an arbitrary one of their own ?
    There another feature in this case, which merits attention. Both parties claim the land adjacent to the upper line above and below, under Huet, who sold the whole to Delorie, and the latter sold a chain and a half to Muillian. In that deed, certain land-marks are referred to, and fixed between the two tracts, as will appear from the deed; those bornes were established by Delorie, from whom the plaintiff claims title. Can those who claim under Delorie, the balance of Huet’s tract, now recover of the defendants, without proving, that the line now contended for, varies from that established by the deed ? It was competent for Delorie, at that time, to fix any division line he thought proper, or in other words, to locate the order of survey. Is there a particle of evidence on the record, to shew that the line A. B. differs from the deed ? The trone de liard is mentioned in the deed, but not once alluded to in evidence; will the court presume, that the line A. B. varies from the contract of the parties ? Or will they not rather presume, from the long silence and acquiescence of those who hold under Delorie, that it is the same, and conforms to the intention of the parties ? If Delorie had established that line, nothing can be more clear, than that it would be binding on the plaintiff, and conclusive as to his location. If a different one was intended, it ought to be shewn. But it is said, that Muillian, by diverging his lines, takes more than his purchase entitled him to. How can this be made appear, unless a previous line be proved, and from which the vendee has varied ?
    Upon the whole, from a view of all the circumstances of the case, I cannot perceive sufficient ground to support the court, under the authority of its own solemn decisions, in affirming the judgment of the district court. The plaintiff does not appear to me, to have established a title to the land comprised in the triangle, of sufficient strength and dignity, to entitle him to the land in preference to the present possessors.
    Something has been said as to the authority of the general verdict in the court below. It is certainly in the power of this court, as it is its duty, to render such a judgment as ought to have been given in the district court, when all the evidence is before it. The whole evidence is spread upon the record. The cause was submitted to a jury for a general verdict. The jury have found a particular line of division between the two tracts of land, and the court below refused to grant a new trial, but gave judgment according to the verdict. Did the court err in not granting a new trial, on the ground, that the verdict was contrary to law and evidence ? If so, this court will do what the court and jury ought to have done.
   Martin, J.

I concur with my colleague’s opinion.

Mathews, J.

It appears, from the whole evidence in this case, that the contending parties, and those under whom they claim title to the property in dispute, have for many years, and a nearly equal period, claimed and occupied two contiguous tracts of land, never separated nor divided by any well marked, known and established limits.

Considering the titles of the respective claimants as of equal force and dignity, and that no part of the disputed premises has ever been enclosed or occupied by either, as to gain title by prescription; I think the case must be viewed, as embracing a contest relating entirely to limits, in which the rights of the parties depend rather on matters of fact than on principles of law.

The case has been submitted to a jury, whose verdict has settled the line of division satisfactorily to the plaintiff; and as I do not see that it violates any rule of law, or is contrary to the evidence, neither it nor the judgment rendered thereon, ought to be disturbed.

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