
    HORNSBY’S HEIRS vs. M'DERMOTT.
    Westeiix Dis.
    
      September,1841.
    ipmi Murar Tins couut or the nrTH distmpt, ron the pahisii op IAPAYETTE, TIÍE JUDGE Op THE SEVENTH MIESIDING.
    Admitting; the plaintiffs are owners of the upper end of a larger tract of land, yet if they show no location by an authorized survey, embracing the locus in quoy they cannot maintain an action, even of trespass, against a possessor, so as to oust or disturb him.
    This is a suit in the nature of an action of trespass, in which the plaintiffs claim damages against the defendant for entering-upon their land of which they claim to be in possession. They pray that he be condemned to remove his fences and improvements of every kind from their land and pay for the damage he has already caused them.
    The defendant pleaded the general issue. It appears from the pleadings and evidence that the plaintiffs claim to he the owners of the upper part or one undivided half of a larger tract, confirmed to one Fletcher, and to be located in a particular manner.
    The plaintiffs’ portion calls to bound on the upper side by lands owned by Josine Le Blanc and below by those of White. No location was ever made of the plaintiffs’ part by any authorized surveyor ; and nothing shows that the defendant’s improvements are embraced by or included in the plaintiffs’ claim. They had judgment however quieting them in their possession: and title to the land in dispute, and for five dollars in damages. The defendant appealed.
    Voorhies, for the plaintiffs.
    
      Crow $r ffim. B. Lewis, for the defendant
   Martin, J.

delivered the opinion of the court.

The plaintiffs state that the defendant has entered on their premises and committed waste, and erected buildings and fences on a tract of land of which they are in possession as owners ; having inherited the same from Thomas Hornsby, deceased. They pray that the defendant be decreed to remove his buildings and fences from their land, and to pay them one thousand dollars in damages; .and for general relief.

The general issue is pleaded. The plaintiffs had judgment for the land, and five dollars in damages; and the defendant appealed.

The plaintiffs claim through several mesne conveyances from Thomas Fletcher, the original grantee, who obtained from the land commissioners of the United States; a certificate of confirmation of an inchoate right acquired Under the Spa-1 nish government in consequence of a settlement and cultivation', to a tract of land containing 640 acres, situated in the county of Attakapas on the left or east side of the bayou Vermillion, fronting on said bayou, and to be laid out 40 arpents in depth, giving so much front on the right line as will give the quantity above expressed. The'right of Fletcher to thíá land was acquired by Peyton Bland from tile administrator of former) soid by order of the Court of Probates. Bland’s title passed to Alexander Porter under a sheriff’s sale, in whicli the land sold is thus described: “ a certain parcel of land situated on the east side of the river Vermillion, bounded above by lands of Josine Le Blanc and below by lands of Wm. White, consisting of 640 superficial arpents.” Porter sold to Theall and described the land as- “ one undivided half of a cer.tain tract or parcel of land, situated in the parish of Lafayette and lying on the east side of the river Vermillion, consisting of 640 superficial arpents.” John B. Theall sold to Thomas Hornsby, the ancestor of the plaintiffs, on the 18th of February, 1833, one undivided half of this land, describing it in his deed of sale, to be “ the undivided upper half of 640 acres of land, lying and being, in the parish of Lafayette, on the east bank of the river Vermillion, and part of the same tract originally confirmed to Thomas Fletcher by the commis-sióner’s certificate, &c., in conformity with a re-survey made by Wm. Jackson, deputy surveyor, the 6th February, 1833, &c.; said land bounded above by Veuve Josine Le Blanc and below by the lower half of said section, belonging to Lloyd Wilcoxon.” The survey of Jackson is expressly Made a part of Theall’s deed, to which it is annexed, but is not to be found in the records of the present suit. There is no evidence of any location ever being made of the Original tract. It was to contain 640 acres, equal to 756 37-100 arpents and the depth is expressly stated in the certificate to be 40 arpents ; consequently the front line on the Vermillion titter should be nearly 19 arpents. The location of this tract was to be made so as to include the improvements of Fletcher, the original grantee. All the mesne conveyances state that the location was to be made on a larger tract fronting on the river, but bounded above by the lands of Josine Le Blanc and below by those' of Wm. White.

Admitting the plaintiffs ar.e Owners of tho upper end of a íanl^yetYfthey show no location by an authorized sur-vey> embracing the locus in quo, maintain an'ací ti-espassjagainst a possessor, so as to oust or disturb him.

Admitting- what the record leaves doubtful, that the plaintiffs ° have shown. them selves to he the owners of the upper half of the tract, yet they have shown no location under the authority of the United States, which would embrace the locus in quo. If the tract confirmed to Fletcher be located according to its description, with such a part as multipliedby forty would give the superficies of 640 acres and embracing the improvements made by Fletcher, it is clear it would not extend so high up as to cover the place occupied by the defendant. It is true the x r mesne conveyances speak of Josine Le Blanc’s line as the up- , , ii 1.1 i per boundary, and that may be conclusive between the venctor and vendee, but so far as a stranger is concerned, the premature title or a public survey, duly approved, must bg looked into in order to ascertain the true location of the land. Nor , . do the plaintiffs show possession under his deed', so as to authorize them to maintain this action, which appears to us to be strictly neither petitory nor possessory, but in the nature of an action of trespass quare clausum fvegit.

The judgment of the District Court is therefore annulled and reversed, and judgment of n.on,-su,i,t entered against the plaintiffs with costs in both cou,rts.  