
    Marilee V. DEANO, et al. v. R. A. BROUILLETTE.
    No. 94-CA-1856.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1995.
    Rehearing Denied Jan. 17, 1996.
    
      Gair M. Oldenburg, Law Offices of Gair M. Oldenburg, Chalmette, for Defendant/Appellant, R.A. Brouillette.
    Randy S. Nunez, Chalmette, for Plaintiffs/Appellees, Marilee V. Deano, Ronald Vallette and Alice V. Bonomo.
    Before LOBRANO and WALTZER and MURRAY, JJ.
   JiMURRAY, Judge.

Plaintiffs/appellees, Marilee V. Deano, Ronald A. Vallette, and Alice V. Bonomo (hereafter the Vallettes) sued defendant/appellant, R.A. Brouillette, to judicially establish the boundary between their contiguous properties, contending that a fence erected by Mr. Brouillette in 1993 encroaches upon their property some 35 + feet. Mr. Brouil-lette defended, denying the encroachment and, alternatively, pled thirty years acquisitive prescription.

The trial court rendered judgment in the Vallettes’ favor, dismissed Mr. Brouillette’s plea of acquisitive prescription, and ordered him to reposition his fence in accord with boundaries fixed in an August, 1993 survey drawn by Steven Estopinal.

Mr. Brouillette appeals, assigning four instances of error. We affirm, but remand for the court to amend the judgment to include a legal description of the property in question, pursuant to La.Code Civ.Proc. art. 2089.

|2In April 1959, R.A. Brouillette purchased a tract of ground from Marcus and Bridget Vallette, parents of the plaintiffs/appellees herein. This sale was “less and except” a portion which Mr. and Mrs. Vallette retained and lived on until 1989, when Mr. Vallette died. In 1990 the Vallettes acquired the property by judgment of possession from their father’s succession. The area in dispute is the northern boundary of the Val-lettes’ property, and correspondingly, the southern boundary of the Brouillette property. Trial testimony established that the disputed area was divided through the years by a number of fences spanning the width of the property. This dispute arose in 1993 when Mr. Brouillette erected a fence approximately 20 feet south of the location of the original fence which stood at the time of the 1959 sale.

In his first two assignments of error, Mr. Brouillette objects to the manner in which the court fixed the boundary between the properties.

The source of the conflict between the parties is the language in the Vallettes’ property description. The pertinent part reads:

... a certain tract or portion of ground ... on the left descending side of Bayou Terre aux Bouefs at about four miles from the Mississippi River and measuring 62 feet front on the left descending side of Bayou Terre aux Bouefs; same width in the rear by depths between equal and parallel lines of 350' ...

The parties differ on the location of the point at which the above measurement should begin.

Mr. Brouillette argued at trial and on appeal that the property description should be construed literally, and that all measurements should commence at the bank of Bayou Terre aux Boeufs. He contends that the property line falls within La section he has occupied and maintained from the date of his 1959 purchase, if the measurements are applied literally.

Steven Estopinal, land surveyor and civil engineer, testified regarding a survey of the Vallette property by him in August 1993. His 1993 survey is in evidence.

Mr. Estopinal recounted how he performed measurements and plotted points on the survey: he located the front meander line, a point used as the bank of the bayou which was established by government land surveyors around 1835; he then measured 350' from this point, in a northerly direction. He noted that the property line fell some 35 to 40 feet north of an old fence on the Vallette property. Because he knew from personal knowledge that the fence had been standing a long time, the discrepancy led him to suspect that the person who created the deed for the Vallettes’ property was not familiar with the practice of measuring from the meander line. To confirm his suspicion, he measured 350' in a northerly direction from the present day bank of the bayou and found that that measurement fell 10 to 15 feet short (or south) of the old fence. He concluded that whoever created the Vallettes’ deed was unsophisticated in measurements and described the property incorrectly from the point where the bayou becomes water rather than from the meander line.

In conclusion, Mr. Estopinal testified that when the description in the Vallettes’ title is plotted from the meander line, the correct northern boundary line |4of the property extends approximately 39.5 + feet north of the old fence, bisecting a house trailer owned by Mr. Brouillette and indicated on his survey.

Mr. Estopinal examined a survey done by Mr. Brouillette’s expert in December 1993. It was his opinion that this survey erroneously measured from the water’s edge rather than the meander line, which accounted for the disputed area.

Mr. Estopinal also identified a 1964 survey that was done by his father at Mr. Brouil-lette’s request. He pointed out that his 1993 survey conformed with the 1964 survey in that both surveys plotted linear measurements from the meander line.

Joseph F. Ruello, land surveyor, testified on behalf of Mr. Brouillette. Mr. Ruello informed the court that he surveyed the Brouillette property in December, 1993, starting at the left bank of Bayou Terre aux Bouefs, the bank line, not the meander line. He testified that this method confirmed the position of the new fence erected in 1993 by Mr. Brouillette as the correct boundary.

Under cross examination, Mr. Ruello admitted that he could not be certain that the point at which he began his measurement was the same point used in 1959, when Mr. Brouillette acquired the property, or that his measurement at the bank line was or was not the meander line. He testified that he employed the bank line method because he surveys according to title, and Mr. Brouillette’s title called for measurement beginning “on the left descending side of the bayou”, which in his | ¡¡opinion meant the bank line. Moreover, he testified that the choice of employing the bank line method versus the meander line is a matter of opinion.

It is apparent that the method used by Mr. Estopinal employed acceptable surveying principles. He started his survey from a historical and constant reference point, the meander line. The trial court appears to have given his opinion more weight than that of Mr. Ruello.

Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In a boundary action, the boundary location is a question of fact to be determined by the trier of fact, and such determination should not be reversed on appeal in the absence of manifest error. Richard v. Thierry, 509 So.2d 604 (La.App. 3rd Cir.1987).

We have considered the testimony of the experts and conclude, as the did the trial court, that the front meander line was the proper point from which to commence measurement. We find no error in the court’s method of fixing the boundary.

In his next assignment of error, Mr. Brouillette argues that the court erred in not recognizing his ownership of the disputed portion of ground by virtue of 10 or 30 years acquisitive prescription.

Acquisitive prescription is defined by the Civil Code as “A mode of acquiring ownership or other real rights by possession for a period of time.” La.Civ.Code Ann. art. 3446 (West 1982). Ownership of immovable property may be acquired by possession for either ten year or thirty years. The prerequisites for ten years acquisitive prescription are: “possession for ten years, good faith, just 16title and a thing susceptible of acquisition by prescription.” La.Civ.Code Ann. art. 3475 (1982). Thirty year acquisitive prescription requires neither good faith nor just title, but merely possession for thirty years. La.Civ.Code art. 3486 (West 1982).

Mr. Brouillette testified that there was a fence separating his and the Vallette’s property when he purchased his tract of land from the elder Mr. Vallette in 1959. The evidence is undisputed that Mr. Vallette removed this fence sometime prior to his death in 1989, but Mr. Brouillette could not establish a specific date.

Shortly after Mr. Brouillette purchased the property in 1959, he erected a fence approximately 20 feet north of the fence that stood at the time of his purchase. This fence, which is shown on the 1993 Estopinal survey as commencing at the “pecan tree” and spanning the width of the property, remained standing until October, 1993.

At that time Mr. Brouillette moved it approximately 20 feet south to the location of Mr. Vallette’s original 1959 fence. Mr. Brouillette testified that he replaced the old fence after the 1993 Estopinal survey because he considered the surveyor’s measurements erroneous. He ignored the 1964 survey, which he admitted was commissioned by him, and which conformed to the 1993 Esto-pinal survey, because he thought it was not “good”.

It was Mr. Brouillette’s testimony that he and Mr. Vallette had a good relationship, and that he erected and dismantled fences and structures on the property over the years, all with Mr. Vallette’s knowledge. He testified that he had maintained the disputed property for his own use over the years, and that there was no dispute until the Vallettes were ready to sell the property.

|7The trial court found that Mr. Brouillette failed to prove acquisitive prescription. The record supports that finding.

Mr. Brouillette did not acquire by 10 years good faith possession. By virtue of the 1964 survey, he was aware that the fence standing at the time of his acquisition incorrectly marked the boundary between the properties. He could not reasonably presume to be the owner of the disputed area when the survey revealed otherwise.

Nor did he acquire by thirty years actual possession. As the trial court stated in its reasons for judgment:

Mr. Brouilette stated that Marcus Vallette torn down the outer fence some time before he died in 1989. Mr. Vallette’s tearing down of the fence served as an interruption in Mr. Brouilette’s possession of this larger area. Mr. Brouilette could not provide dates for the Court to rely upon for the commencement of acquisitive prescription, nor could he be more precise as to the date of the occurrence of the interruption. Mrs. Bonomo’s testimony provided no guidance to the Court in this regard. She stated that she had not lived on the Vallette property since 1967 or 1968 and to the Court, seemed unfamiliar with the property. For these reasons, the Court finds insufficient evidence to prove possession of this entire area for thirty years without interruption. However, a second fence running the width of the property was also erected by Mr. Brouilette around the time of the sale. Mr. Vallette did not tear down his fence. The Court finds this fact significant. When Mr. Vallette tore down the outer fence Mr. Brouilette continued to possess the property west of the “second fence” so that his possession of this smaller area was not interrupted. For over thirty years, Mr. Brouilette maintained the area as his own property. Beside cutting the grass and general upkeep of the area, Mr. Brouilette maintained a chicken coop for a number of years. In addition, for the past ten years, he has had a mobile home located in that area. The facts indicate that he intended to possess the area as owner.
The testimony revealed that in October of 1993 Mr. Brouilette took down this fence and erected another near the location of the previous ‘outer’ fence so as to | g'recapture’ the larger area. The location of this third fence is irrelevant, in that, Mr. Brouilette could not ‘recapture’ the possession. The interruption would cause prescription to begin anew. The fact that he removed the second fence in 1993 does not divest him of rights he previously acquired by possession for thirty years without interruption. Therefore, the Court finds that the location of the second fence constitutes the boundary. This fence ran across the width of the property from the pecan tree to a taller thinner tree abutting the ‘Cantrell Property’. It is labeled ‘fence’ on the 1993 Estopinal survey plat marked as ‘Stipulation Number Three.’

Finally, Mr. Brouillette argues that the trial court erred in the manner and form of the judgment rendered in that there is no legal description in the judgment detailing the boundaries as found by the court. We agree.

La.Code Civ.Proc. art. 2089 mandates that all judgments and decrees that affect title to immovable property describe with particularity the immovable property affected. The purpose of this requirement is to ensure that the public in general, and title examiners, successful litigants, officials charged with executions of judgments and surveyors in particular, accurately can deal with the immovable property. Hurst v. Ricard, 558 So.2d 1269 (La.App. 1 Cir.1990). Therefore, we remand this matter to the trial court to amendment its judgment to include a legal description of the property in question. In all other respects, the judgment is affirmed.

AFFIRMED AND REMANDED.

WALTZER, J., concurs with reasons.

| iWALTZER, Judge,

concurring.

While I agree that the trial court’s judgment should be affirmed, I believe that this Court should recognize that this result proceeds from recognition of an exception to the general rule in Louisiana that the water course and not the meander line is the correct boundary.

43 U.S.C. section 752, Boundaries and contents of public lands; how ascertained, provides the origin of meander lines:

Second. The boundary lines, actually run and marked in the surveys returned by the Secretary of the Interior ... shall be established as the proper boundary lines of the sections, or subdivisions, for which they were intended, and the length of such lines, as returned, shall be held and considered as the true length thereof. And the boundary lines which have not been actually run and marked shall be ascertained, by running straight lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the boundary lines shall be ascertained by running from the established corners due north and south or east and west lines, as the case may be, to the watercourse.

The meander line is run for the purpose of computing acreage of fractional lots, but the water line, and not the meander line, is the true boundary.

In Palmer v. Wilkinson, 141 La. 874, 75 So. 806, 808 (La.1917), Chief Justice Monroe quoted from the U.S. Supreme Court opinion Horne v. Smith, 159 U.S. 40, 46,15 S.Ct. 988, 40 L.Ed. 68 (1895):

The general rule adopted by both state and federal courts is that meander lines are not run as boundaries of the tract surveyed, but for the purpose of defining the sinuosities of the streams ... and as a 12means of ascertaining the quantity of land embraced in the survey. The stream or other body of water, and not the meander line as actually run on the ground, is the boundary, ... The meander line will, however, be the boundary where it runs with regard to a supposed body of water which does not, in fact, exist; where the land between such line and the water is platted as a separate survey, or where the surveyor omits to include large tracts lying between the meander line, as surveyed, or as pretended to have been run on the ground, and the stream or other body of water.

This principle was recognized in Acadia-Vermilion Rice Irrigating Co. v. Miller, 178 La. 954, 152 So. 576, 577 (La.1933), which noted an exception thereto:

The rule is, it is true, that a meander line along a stream or body of water is not a boundary, but the body of water whose margin is meandered is the true boundary; but this rule has been held to apply only where the distance between such meander line and the actual shore line is comparatively small. It is not applied where, as here, the real shore line is distant from the supposed shore line, and there is a large area of land between the supposed shore line, as shown on the plat, and the actual shore line.

In 1944, the Louisiana Supreme Court again required the survey from the water’s edge rather than from the meander. State v. Aucoin, 206 La. 787, 20 So.2d 136 (La.1944).

In Stamper v. Bienville Parish Police Jury, 153 So.2d 503 (La.App.2d Cir.1963), the court noted that meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the trace, but for the purpose of defining the sinuosities of the banks and to ascertain the quantity of the land in the fraction. In preparing the official plat from the field notes, the surveyor represents the meander line as the border line of the stream and shows that the water course, and not the meander line, is the boundary. (Citing St. Paul and Pacific R. Co. v. Schurmeir, 7 Wall. 272, 74 U.S. 272,19 L.Ed. 74, 78 (1868); Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. |3808, 35 L.Ed. 428 (1891) and Mitchell v. Smale, 140 U.S. 406, 11 S.Ct. 819, 35 L.Ed. 442 (1891).

In R.D. Fornea Co., Inc. v. Fornea, 324 So.2d 619, 622 (La.App. 1st Cir.1975), writ denied, 326 So.2d 374 (1976) the court held:

Unless a clear intention to the contrary is expressed in the act of conveyance, the water line will be regarded as the boundary where meandered water is present. State v. Aucoin, 206 La. 787, 20 So.2d 136 (La.1944). We think that principle to be applicable here, as no contrary intention is expressed in either description.

La.C.Civ.Pro. art. 3692 permits a trial judge in a boundary action to appoint a surveyor to conduct a survey “in accordance with the prevailing standards and practices of his profession,” but does not define those standards and practices. In the case at bar, each party produced a surveyor, neither of which was appointed by the court.

The trial court’s reasons for judgment seem to prefer use of the meander line as a “fixed point from the bank of the bayou” which does not change with the movement of the bayou. As noted in dicta in Arms v. New Orleans Area Council, Boy Scouts of America, 522 So.2d 668, 673 (La.App. 5th Cir. 1988), writ denied, 523 So.2d 1340 (1988), it can be just as hard to reconstruct a meander line as a water line.

The majority and the trial court neither mentioned nor distinguished any of the body of jurisprudence that uses the water line, and not the meander line, as the basis for the boundary, absent a showing of an exception to the general rule, as set out in Horne and Palmer.

The issue is confused, when considered in light of Estopinal’s testimony:

The front meander line is the line established by the government land surveyor around 1835 to 1839 ... and it was used as the bank of the bayou by the government land office in sectionalizing this particular township. And in all his notes he refers to the bank of the bayou. |4He is referring to the front meander line. And that is to establish where the bank of the bayou is in terms of deed description.
Q: So all surveys in this area by your office are measured from the meander line?
A: Yes. All done by anybody is_ But in order to fix the line the front meander line is established so as the bayou moves back and forth the boundaries in the rear would not move.

This surely appeals to common sense, particularly when coupled with the law that grants alluvion to the riparian owner. Perhaps the matter could be clarified and the “water-line” cases distinguished had the trial court found that a substantial area had developed between the water’s edge and the meander line, to justify moving away from the general rule that the water line, and not the meander line, is the boundary. While I agree with the majority’s result, I believe it is necessary to recognize the general rule, and make a finding that this exception applies, making the use of the meander line appropriate.

The trial court’s acceptance of Mr. Estopi-nal’s testimony has a basis in the record. Mr. Estopinal’s testimony is more professional than Mr. Ruello’s. The latter does not seem to understand that if significant allu-vion has formed, the meander will be the appropriate boundary, and the alluvion will belong to the riparian owner. To further complicate the case, Ruello testified that he measured from “the bank line,” neither the meander line nor the water line. He used the bank line, because the deed refers to the left descending bank of the bayou. He said he would tie into the meander line only if he were surveying “the whole section.” Ruello argues that the meander line is the point of origin for measuring the 40 arpent, not the particular property devised by his client’s title. He admitted, when questioned by the trial judge, that he didn’t check to see where the bank was, and assumed that the bank of the bayou was where it was when |s“everybody was doing their measurement because of the surveys I had down the road, and because of finding the older markers I had found 350 ft. from where I started.”

The “old fence” boundary is incorrect whichever beginning point is taken. Estopi-nal testified that he didn’t know where the bayou’s bank was in 1959 when his client’s deed was confected, so he compared how far it was from the bank of the bayou to the back line, and found that it fell some 10 or 15 feet short of the old fence. He noticed 350 feet from the meander line was 35 to 40 feet beyond the old fence line, so neither interpretation of the deed fell at the line of the old fence. From this, he concluded that there existed grounds for a boundary dispute, and measured from the meander.

Although neither the federal statute nor the cases say it explicitly, the logical result is that for ownership purposes, the owner owns to the water’s edge; however, in surveying measurements called for by title, the meander lines drawn in the early 1800’s by the federal surveyors are the starting points. This interpretation is consistent with the cases that hold the owner’s ownership between the meander line and the water’s edge is a riparian right, but the accrual of accretion does not change the back line of the owner’s property.

This is, quite clearly, the common sense result. It is also consistent with the line of jurisprudence that holds that these early federal surveys that set out the township lines cannot be corrected by this Court. See, Texas International Petroleum Corp. v. Delacroix Corp., 94—1426 (La.App. 4th Cir. 1/31/95), 650 So.2d 815, writ denied, 95—0467 (La. 4/21/95), 653 So.2d 567.

The power to make and correct surveys of public lands belongs to the political department of the government, and while the lands are subject to the ^supervision of the General Land Office, its decisions in such cases are unassailable by the courts, except by a direct proceeding. Cragin v. Powell, 128 U.S. 691, 9 S.Ct. 203, 32 L.Ed. 566 (1888). This principle.is so basic that even if the governmental survey is clearly incorrect, it nevertheless creates the township sections and boundaries. State v. Ward, 314 So.2d 383, 396 (La.App. 3rd Cir.1975), writ denied 319 So.2d 440 (La.1975). It is consistent with the trial court’s interpretation herein.

The majority is correct in requiring a property description in a judgment affecting title; however, I do not believe that the case must be remanded for the judgment to be thus amended. This can be done on appeal, just as we amend other judgments, where all the evidence is present. Copellar v. Yount, 344 So.2d 1114 (La.App. 3d Cir.1977) on which appellant relies is inapposite. There, remand was necessary because the true legal description could not be ascertained, since the land had never been surveyed. Copellar v. Yount, 344 So.2d at 1115. 
      
      . A copy of this survey is attached to the opinion.
     
      
      . In reasons for judgment, the trial judge incorrectly refers this point as the "western” bound-
     
      
      . He testified that this fixed point is important to assure a constant point of reference for measurements because the “bank" of the bayou changes with the course of time. All surveys done by his office in this area begin by fixing the meander line.
     
      
      . It appears from the testimony that Mr. Brouil-lette erected what is referred to as the "old” fence in 1964 or 1965. That "old” fence is indicated on the 1993 Estopinal survey and shows a “pecan tree on line”. Mr. Brouillette tore this "old” fence down in October, 1993, and erected a new fence some 20+ feet south of it.
     