
    NO. 7358
    
    E. G. CARBAJAL VS LEOPOLD WEIL BLDG & IMPT CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    
      
    
   OPIHIOH

By his Honor John St. Paul.

Thla ault hagan In Hovember 1912 aa a ault to try title to four certain aguarea of gr*und designated aa Hoe 1660-1661. 2- S.

Defendant olaina title through means conveyances from Jon C. Bagla. It alleged that aald aquarea of ground «ere In Seotlon 28 (Township 12 South; Range 12 East) and declared that plaintiff'a authora had originally fkought nnd^upqn a oertaln plan drawn by one Journot, according to which they olelaed only 26 lota in the South part of the aald four squares.

Defendant adnltted that aald 26 lota belonged to plaintiff, but olained ownership of all the rest of aald four aquarea (being the lorthexn portion thereof) and aet up that the dividing line between the property of plaintiff and Its own waa "the extreme neer liwlt of the aecond ooneeaalon to Solomon Prevost aaflndlcated on said plan of Journot."

Defendant further averred that It waa by error that the whole of anld four squares, instead of only the 26 lota aforesaid, were inventoried and sold In the Succession of Achilla Chlapella (through which plaintiff claims)

II.

The oase was continued from time to time until March 8th 1916, when defendant filed a motion asking for a survey. It alleged, that there wae no conflict of title between the parties; that plaintiff claimed lands In Section 69 (Township 12 South; Range 12 East) and defendant claimed title in the adjourning Section Ho. 28; that both parties claimed through the United States, and "the only matter in dispute herein is the boundary line between aald Seotlons 28 and 69;" that aald line had never been eatabllahed. To thla motion defendant annexed a certified alcetoh of Sections 28 and 69 taken from the official government reoords.

Shis motion vas acquiesced In by plaintiff. A surveyor was appointed; hut having failed Jto report, another was appointed In his stead Ootober 25th 1915.

Shis second surveyor (Ur Eustis) reported on February 21st 1916. He fixed the line according to the Jouxnot plan (for whioh defendant contended) and rejected a survey made by Ur Shsard, a surveyor, for the Succession of Ghiapella (for whioh plaintiff contended).

III.

Plaintiff opposed this report and contended that the Sheard survey should have been followed. On April 4th 1916 this opposition was maintained and the surveyor was ordered "to proceed anew to establish the boundry lines between the properties in dispute in strict accordance with the field notes of Geo H. Grandjean. Surveyor, filed in the record."

IT.

On April 16th 1917 the surveyor reported that he had gone upon the ground and had surveyed and marked out the boundary line between sections 28 and 69 in accordance with the field notes of the official United States Survey (said field notes being those of the aforesaid George H. Grandjean, Surveyor)

On Uay 7th 1917 plaintiff moved to approve the report, and on June 1st defendant opposed on the ground that it was not sufficiently definite in locating said line with reference to the squares in controversy and that the Surveyor "did not follow the field notes sb required by the order of court."

V.

On June 21st 1917 the warrantor filed an answer to the petition and the call in warranty, in which he set up substantially the same defense as had originally been set up by the defendant, to wit, that Jouraot had made plans of tHi both sections 28 and 69. which had been acquiesced in by the authors of both plaintiff and defendant, and were therefore binding on all parties.

VI.

On the trial before the court the defendant and the warrantor attempted to introduce evidence bearing upon their respective titles; but the district judge excluded any evidenoe exoept auch as tended to show the true location of the boundary line between Sections 28 and 69, on the grougd that the parties had volun-tar Unchanged the character of the action and converted it into an action of boundary.

It is of this ruling that appellant (defendant) complains.

VII.

From all the foregoing it is olear that the defendant after first joining issue on the question of title #dl non, thereafter of its own motion repudiated that Issue and declared that there was no conflict of title between the parties; that the only remaining controversy between the parties was the correct location of the boundary line between Sections 28 and 69; that there were two surveys# outstanding, one by Journot and one by Theard; that these surveys did not agree; that both parties looked to the official Government survey by Gasndjean, and meant to rely upon it.

VIII.

Under the circumstanoes we think the trial judge properly held the parties bound by their later pleadings and to the new Issues thus deliberately tendered by one side and acquiesced in by the other.

Where one party tenders a new issue, which the other accepts, neither party oan complain of the change of issues thus brought about by his own pleadings. Peterson vs Moock, 8 Ct of App. 254.

May 1919.

a.

For the rest it la not seriously oontandad that the boundary line as marked and laid down by the surveyor ¿oes not correspond with the official government survey; and as thus surveyed It bears out the contention of plaintiff giving him the whole of the four squares in controversy.

And sinoe the plaintiff owns the squares in controversy the trial judge eery properly directed that defendant's title thereto be expunged from the conveyance reoords where its presence could Berve no other ptrpoae but to oast a cloud upon that of plaintiff.

The trial judge also very properly dismissed the oall in warranty as not permissible in a boundary suit. Moreover as the warrantor did not join in the change of issues he oannot be bound thereby.

The judgment appealed from is therefore affirmed.

Hew Orleans la,  