
    DUPLANTIER vs. BARKER.
    Eastern Dist.
    April, 1838.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, FOR THE PARISH OF EAST BATON ROUGE, THE JUDGE THEREOF PRESIDING.
    When the plaintiff fails to produce satisfactory evidence of his demand on a plea of the general issue, he will be non-suited.
    This is an action of boundary. The plaintiff alleges that he is the owner of a tract of land on the Mississippi river, containing seven and one-half arpents front by the depth of forty, the lines opening about eleven degrees, so as to give four hundred and fifty superficial arpents, and also of another tract situated in its rear, both bordering on, and adjoining the defendant below, who disputes with him about the true dividing line, and claims to have it so run as deprives him of a considerable portion of his two tracts above described. He prays for an order of court, requiring the parish surveyor to go on the land, after notifying the defendant, and run off the true dividing line between them. •
    The defendant pleaded a general denial, and averred he was not in possession of other and more land than was sold and delivered to him by the syndics of the creditors of Clague & Oldham, whom he calls in warranty; and he further averred, that the boundaries had been fixed and established for more than ten years, between their respective plantations.
    On these pleadings and issues the parish surveyor, in pursuance of an order of court, went on the land with two witnesses, and run the front and side lines, and made a diagram.
    The defendant protested against the whole proceeding. On the plaintiff’s offering the certificate and diagram of the survey in evidence, the defendant’s counsel objected on the ground, that the surveyor persisted in making the survey, after the defendant made his opposition and protest against it. The court overruled the objection, and a bill of exceptions was taken. The plaintiff then produced. the original title papers of the land which he claims. The defendant offered no evidence. On examining the case the district judge rendered judgment of non-suit, from which the plaintiff appealed.
    
      Jl. N. Ogden, for the plaintiff.
    
      Barker, contra.
    
   Carleton, J-,

delivered the opinion of the court.

This suit was brought to' establish the boundary line between the adjoining land of plaintiff and defendant, lying on the banks of the Mississippi.

The petitioner complains of an encroachment upon his possessions by the defendant, who, in his answer, denies generally ; calls in warranty the syndics of Clague & Old-ham,' from whom he purchased ; avers that the existing limits between the lands of the parties, were established by the natural consent of those under whom they claim ; and concludes with a plea of the prescription of ten, twenty and thirty years.

The court rendered a judgment as of non-suit against the plaintiff, who appealed.

When the plaintiff fails to produce satisfactory evidence of his demand, on a plea of the general issue, he will he non-suited.

The judge, at the instance of the plaintiff, directed,that a commission be forthwith issued to the parish surveyor, requiring him to survey the dividing- line of the lands claimed by the parties to this suit, upon notices given by him to each of them, of the day and hour of,the proceeding therein; and that he make return of such survey with the plat thereof, to this court, on or before the first day of the next term.”

The surveyor accordingly proceeded to run the line, whereupon, the defendant having refused to attend when notified, made his protest and opposition in the following words :

Manchac, May 19th, 1835. Stephen Roberts, Esq., deputy surveyor. Sir : In answer to your notification, bearing date May 13th, 1835, I hereby protest against any survey of my premises, and refer you for further instruction to article 833 of the Civil Code.”

At the trial of the cause, the plaintiff offered, in evidence, theprocés verbal of the survey made by the deputy surveyor, fixing the boundary line, to the introduction of which the defendant objected, on the ground, that the survey had been made, notwithstanding the opposition thereto.

The court overruled the objection, and defendant took his bill of exceptions to the opinion of the court.

It is not, however, necessary, for us to pronounce upon any points raised by this bill of exceptions, as they are not insisted upon by defendant’s counsel. ■ •

It appears to us as it did to the district judge, that the survey and plat made out by the parish surveyor, are very imperfect and unsatisfactory, and do not furnish the necessary information to enable the court to pronounce upon- the merits of the controversy between the parties.

We think, therefore, that the plaintiff has failed to make out his case, and that judgment as of non-suit, was correctly rendered.

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