
    Leander KELLEY, Plaintiff-Appellee, v. S. J. CARTER et al., Defendants-Appellants.
    No. 8659.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.
    On Rehearing Nov. 26, 1957.
    Harvey G. Fields, Farmerville, Barham & Wright, Ruston, for appellants.
    J. T. Spencer, Farmerville, for appellee.
   HARDY, Judge.

This is an action in boundary in which plaintiff seeks to have judicially fixed the boundary line between his property and the adjacent tracts of the three named defendants, all located in Union Parish, Louisiana. Pursuant to the prayer of the petition the court appointed Bruce Allen, a licensed surveyor of Union Parish, to inspect, survey and establish the boundary lines between the properties described. The surveyor duly filed a procés verbal and plat of survey. The lines established by the court-appointed surveyor were accepted by plaintiff and by the defendants, Mrs. Minor Aycock and Mrs. Minnie Geter, neither of whom had filed any pleadings in the suit. The defendant, S. J. Carter, filed an opposition and a motion to traverse the report of the surveyor. This defendant also filed a plea of prescription of ten and thirty years. After hearing on defendant’s motion to traverse there was judgment in favor of plaintiff approving and homologating the survey, made and filed by the court-appointed surveyor, and establishing the lines as fixed in the plat of survey. From this judgment defendant Carter has appealed.

Defendant urges, first, that the record does not disclose the surveyor Bruce Allen to be either a licensed surveyor or a graduate engineer, and, second, that the survey made was so inaccurate, uncertain and indefinite that it cannot serve as a basis for judicial determination. Additionally, defendant re-urges his plea of prescription.

We do not find any support for defendant’s first ground of complaint. The order of the court discloses the appointment of Bruce Allen, “a license surveyor in and for Union Parish — the procés verbal and plat filed in the record bear the signature of , Bruce Allen, “registered surveyor”, and the registry .stamp, or seal, of the State of Louisiana; and, finally, the record discloses ■'no attack upon the qualifications of the surveyor and contains no evidence which would substantiate this opposition.

■The second point is more serious. The testimony of the surveyor Allen establishes ■the facts that he properly notified the adjoining landowners, by certified mail, .that such parties were present during the making of all or a part of the survey, and that the rodmen and other members of his crew were properly qualified for their work. The methods pursued by the surveyor and the reasons upon which he based the establishment of the lines and the fixing of corners as set forth in his plat of survey are stated in Mr. Allen’s testimony, which we quote as follows:

“Q.' Now, I would like for you to explain to the Court what steps you took in making this survey.
“A. Well, for the lack of a better point to start from we started at what • was supposed to be the Southeast corner of Section 7, Township 23 North, Range 3 West at an iron axle that was in the ground which several of the ones present thought it was right and one or two didn’t think it was right, but we didn’t have a better place to start from so we started there and ran one half mile north and, according to the field notes, we were supposed to be about thirty-three feet across Beaver Creek and we were not, we didn’t even — I believe we got, maybe liked a little bit getting to Beaver Creek, that’s the way it was. So then, we didn’t exactly know what to do then, we didn’t think that was right, but we didn’t know where to go and Mr. Carter suggested that we go a half of a mile east to a corner of his land which he didn’t know whether it was right or wrong, but as far as he knew the corner was 'right. So we went over there and there was an old man, I believe he said he was about eighty years old or maybe a little older, Jim Scott, showed us the corner Mr. Carter was talking about, it was an iron pipe driven under the ground, we had to take a hoe to — in order to find it and this old man, Scott, said that Mr. Rabun put it there about forty or forty-one years ago, I believe. So— first his wife told us all of that, Scott wasn’t at home, he came in later before we got started and agreed to the same thing that his wife had told us. We went — from there we went a quarter back west and found a pine knot which was still on Mr. Carter’s land and was another corner of this Scott fellow’s land and they told— said as far as they knew this was right that they didn’t have any reason — it had been there a long time and they didn’t have any reason to believe it was wrong. So from there we went on another quarter west and we intersected a line we had previously run north about sixty-eight feet north from where we had stopped and we were about thirty-three feet north of Beaver Creek which was as it was supposed to be according to the field notes which made the iron axle sixty-eight feet south of where it should have been. Then we did a little more running from another corner which didn’t — we didn’t know whether it was right or not anyway so it really didn’t amount to too much, but we went back to this iron axle and measured back north sixty-eight feet which would’ve made it tie into the other two corners and tie in with Beaver Creek and we found — first found a pine stump that was mentioned as one of the original witness trees in the field notes and from this pine stump we measured the correct bearings and distance from the stump and found a pine knot which was decayed quite a bit under the ground, there was just a little splinter of it sticking up and there was. some pretty good size roots that had grown over it, in other words, it had been there, in my opinion, it is the same pine knot that was put there in the original government survey because it did check with bearings and distance from an original witness tree and it definitely had been there for quite a long period of time and from this— and from this point we then ran around the twenty acres in question. We didn’t tie it into any other section corners because I did check on the other corners of the section and there wasn’t any apparent corner there and it would have taken probably several weeks and cost quite a bit of money to tie this corner in with all the other —with the four comers of the section. However, since this twenty acres was so near, it was in the same forty as the southeast corner of the section, I don’t think it would be much error in just — we just tied in this one proven corner was all, but it was within — it was in — mighty close to it.”

Despite additional elaboration and further development during the course of direct and cross examination, we think the above extract of testimony gives a reasonably complete picture of the actual surveying operation, and we are impelled to the conclusion that it leaves much to be desired with respect to that accuracy and certainty which should be established as the basis for judgment. It is clear that the surveyor relied upon his acceptance of only one corner which he considered to be satisfactorily proven, that is, the southeast corner of Section 7. From this corner, and from this corner alone, the surveyor proceeded to establish and define the lines which eventually led him to the fixing of the boundaries of the tract of land here involved. It is evident that the surveyor made no effort to locate .other subdivision markers, and, in truth, it is clear he accepted the accuracy of this one corner only because.its establishment permitted the working out of the complete survey in accordance with What he regarded as a correct determination. This conclusion was advanced by the witness as' one of the reasons why he did not make an. attempt to locate other established markers, and another reason was expressed as being due to the increased cost of such procedure.' It has been pointed out that the distance' from the corner, which was used by the1 surveyor, to the Arkansas state line was only a mile plus 52 chains, according to the testimony of the surveyor, who' fur--' ther stated that this was not an unreasonable distance if it had been necessary to verify his acceptance of the corner.

Our consideration of the testimony leads us to the conclusion that the survey as actually made is wanting in that degree of certainty and accuracy which is essential to the proper determination of boundary lines and limits.

With reference to defendant’s pleas of prescription, we need only observe that the evidence does not support their allowance.

Since, in our opinion, the evidence in the instant case does not justify the fixing of boundaries between the properties of plaintiff and defendants, it is necessary that this case be remanded to the Third Judicial District Court in and for Union Parish for further proceedings consistent with the making and establishment of a proper and accurate survey, and, accordingly, it is so ordered. Costs of this appeal are taxed against plaintiff-appellee, and it is ordered that all other costs shall await final adjudication hereof.

On Rehearing.

AYRES, Judge.

In this action in boundary the facts and issues are stated in our original opinion and a further statement will not be undertaken except as may be incidental to. our further discussion of the matter. A re-' hearing was granted to permit a further study and consideration of the defendant’s second objection to the homologation of the survey, which survey was contended to be so inaccurate, uncertain and indefinite that it could not serve as a basis for a judicial determination of the boundaries between plaintiff’s and defendant’s properties.

Plaintiff acquired the W of the SE 14 of the SE 14» Section 7, Township 23 North, Range 3 West, January 14, 1956, and immediately thereafter sought the establishment of the boundaries thereto, but, being unable to reach an amicable determination of such boundaries, instituted this action. Defendant Carter owns the NE of the SE 14, Section 7, Township 23 North, Range 3 West, and has a common boundary with the north boundary of plaintiff’s property. The procés verbal of the survey and the more detailed explanation contained in the surveyor’s testimony shows that, as a preliminary matter, the survey was begun at an iron axle purportedly located at the southeast corner of the aforesaid Section 7. From that point.a preliminary line was run north along the east section line a distance of one-half mile. The defendant, Carter, then suggested that a check be made from a corner location one-half mile east at the center of Section 8. After this corner was located and pointed out, a line was run one-quarter mile west, where evidence of a corner was found, and from this latter point the line was continued one-quarter mile further west and the point reached on the section line was 68 feet north of a point theretofore measured in retracing the section line from the southeast corner of Section 7, whereupon the surveyor and party repaired to the iron axle from which they had originally begun the survey and measured 68 feet north therefrom. At that point evidence of a land corner was found in the form of a pine knot decayed down to approximately three to four inches under the surface of the ground, but otherwise solid. This location checked with the field notes as to direction and distance from the remains of a witness tree and checked with the field notes as to the distance south of Beaver Creek. Moreover, this corner checked with the corner at the center of Section 8 pointed out by defendant and the corner one-quarter mile west thereof, the evidence of which shows that they were established 41 years prior by Surveyor Z. C. Rabun.

It may be appropriate here to point out that no evidence was offered by the defendant to rebut or disprove the correctness of the survey as made by the surveyor appointed by the court. The surveyor was the only expert testifying in the case. The presumption is that his survey made under the court’s supervision and in accordance with all the formalities required by law and proved by him is correct. Jewell v. Porche, 2 La.Ann. 148; Anding v. Smith, La.App., 189 So. 362.

Since the correctness of the survey was contested only as to the starting point and since the presumption of the correctness of the survey has not been successfully rebutted, according to our appreciation of the evidence, the decree approving and homologating the survey will not be disturbed.

Defendant, however, contends that the judgment assessing him with all the costs was erroneous. In this connection, it may be stated that every proprietor has a right to make an enclosure around his lands. LSA-C.C. Art. 662. He may even compel his neighbors to fix and mark the limits of their estates which are contiguous to his. The establishment of such limits and the placing of the boundary stones or posts are at their joint expense. LSA-C.C. Art. 663.

The evidence discloses there was a bona fide boundary dispute between plaintiff and defendant and a judicial determination of the boundary was the only possible means for a final settlement of the dispute. When plaintiff acquired this property, he sought to have the boundaries fixed between him and defendant Carter. Carter was agreeable to fixing the boundaries but not at the location contended by plaintiff. Carter finally stretched a single strand of wire along what he contended was a correct boundary line and suggested that plaintiff build his fence accordingly. Plaintiff, not being satisfied with the line, resorted to this action. There is, therefore, no showing that defendant arbitrarily or capriciously refused to enter into negotiations with the plaintiff before the filing of this suit. As we view the matter, defendant was in goo.d faith and we seriously doubt whether the parties could have reached an amicable agreement as to the fixing of the boundary. Where there is a bona fide boundary dispute and a judicial determination of the boundary is the only possible means for a final settlement of the dispute, cost of the proceedings should be borne equally by the parties. Sharpless v. Adkins, La.App., 22 So.2d 692, 698; Lucas v. Asset Realization Co., Inc., La.App., 51 So.2d 652, 658.

Our former decree having been set aside by the granting of a rehearing herein, for the reasons assigned,, except as hereinafter specially noted, the judgment appealed is affirmed and, accordingly, there is judgment herein in favor of the plaintiff, Leander Kelley, against the defendant, S. J. Carter, fixing the boundary between the lands and estate of plaintiff, described as the W of the SE 14 of the SE 14 of Section 7, Township 23 North, Range 3 West, and that of the lands and estate of the defendant, S. J. Carter, described as the NE 14 of the SE 14 of the aforesaid Section 7, Township 23 North, Range 3 West, so far as they are contiguous, as the east and west center line of the SE 14 of the aforesaid Section, Township and Range, as set forth in the plat of the survey of Bruce Allen, registered surveyor, dated August 27, 1956; and it is further ordered that the cost of this proceeding be borne jointly by plaintiff, Leander Kelley, and the defendant, S. J. Carter, save and except the costs of appeal, which are assessed against the defendant; and, as so modified and amended, the judgment appealed is affirmed. Rights are reserved to both parties to file and urge motions for a rehearing, to the plaintiff the right being limited to the assessment of costs.

Amended and affirmed.  