
    THOMAS SUMMONS ET ALS. VS JOSEPH L. LANDRY
    NO. 8377
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    MAY 28, 1923
    
      
    
   By WTTJ.TAM A. BEBI, Judge.

As we appreciate this ease, after a careful consideration of the reo.ord, hriefs and. arguments presented, the issue involved is mainly one of law, the- facts not being seriously disputed on appeal. It is contended, by defendant and appellant that the controversy is an aotion in boundary and not a petitory action, as claimed by plaintiffs and as found in the opinion of the trial aourt. The land to which plaintiffs claim Joint ownership — and about the entire upper half of which is involved in this suit — is described as follows:

"A certain tract' or portion of land, situated in the parish of Saint James, on the left bank of the Mississippi River, at about sisty-twp miles above the City of Hew Orleans, measuring One eight of an arpent front by Forty arpents in depth, olosing more or less "in the rear., bounded above by the property of WMki Joseph Dugas,' Cleo-phas -Dugas and Sosthene Blanchard, and below by those of Evariste Part."

The learned trial judge has so clearly recited the material facts ‘as appear from the record of this case, that we adopt his findings as follows:

"The..-Evidence ■ shows that these plaintiffs acquired this'property by inheritance from their father, who had died more than 30 years before, and who had purchased from the author' in'title in 1871. .Their father'had lived on it from thS time of hiB acquisition up to his death, and they (his children) have always occupied it since'.,.'The 'prop-.-orty had a width'of twenty-four feet (lji8'.of an arpent as.the deed calls for) and the land on the lower side between this- property and that' of Bart has.always been recognized as the true and oorreet boundary line. The line oh-the.upper side, the one In.dispute, has always been recognized also by defendants authors in title as eorreot, until the • year 1912, when the. defendant, Dandty.,' -'employed the' services of a surveyor, who surveyed'Landfy'a property and arbitrarily placed the lower lint thereof; that is, the line between Dandry's property and that of plaintiffs',‘some 11; or'12 feet farther than.it.was,"thus enoroaohing on plain-' tiffs’' property to that extent’ * . . The teeti- ' mony-of Waties leaves no' doubt, in '.my mind7 that ’'the lower line -of plaintiffs, the. Part boundary, "is -a;, well- established and defined line'on which he fqtihd corners, marks-an'd posts, and that'the'width"given,7 in plaintiffs’, deed, 2d feet7, would -oarry aüd io-" cate'.plaintiffs' , upper linó betwe.en ll and 12 feet; ■beyond, the line placed by the engineer who surveyed Landry's property. Besides, he testifies to having seen indications of old fences, etc., on the line between plaintiffs and defendant, in the front. Waties' testimony is corroborated by that of another surveyor, D. Í. '«foods, who went on the property in'1917, and also saw evidences of the old line referred to. Besides the testimony of these two surveyors, I find an abundance of positive testimony, not only by the plaintiffs themselves, but by other parties, one, the adjoining owner, Bart, another, a man who cultivated both properties, that of plaintiffs and that of Landry, at the time it was owned by Blanchard, to the effect that there was a well established, fixed and determined line which had- ex-isted there for more than thirty years, up to which line plaintiffs themselves, or tenants for them, had always cultivated the property."

In the light of the above facts, we have carefully considered the case of Andrews v. Knox, 10 Ann., 604, cited by counsel for defendant„ who urges the similarity of that case with the instant oase as^a*«s3 for the fixing of boundaries between contiguous tracts of land. It is contended that the court held there, and that we should now hold, that plaintiffs Í» prayed to be adjudged owner of any portion of the lapd within the boundary, aUsttgíAvthe character of the action^froiNone of boundary .to one of petitory action. In the cited ease, we do not find, as is admitted in the present case, that the defendant had fixed the limits between him and his adjoining neighbor without giving the latter notice to be presentían against the provisions of Article 838 R.C.o) but, on the contrary,'that the plaintiff in the cited case averred'"that the defendant, although requests ¿¿fed have the boundary dividing the tract fixed in accordance with their respective titles, refused to do so." Shis allegation clearly admitted the non-existence of boundariew and clearly showed the desire to establish same in accordance with law. In the cited case no damages were prayed for though encroachment was averred, and no damages were due because the action was clearly one of boundary. In the instant case, not only does the plaintiff set up his ownership for over thirty years, praying for Judgment recognizing same and restoring him to possession of that portion from which he has been evicted, but he also prays for damages which could, not he due in an ordinary action for boundary.

'He agree with the trial judge that the petition and 'prayer in these proceedings, though coupled with a prayer for survey, "to re-establish the boundary effaced by defendant," is clearly a petitory action supported by abundance of proof of ownership for more than thirty years. (Bernstein v. Leeper, 118 La., 1098; Opelousas Bank v. Penodin, 121 La., 581).

In Blanc v. Duplessis, 13 La., 334, the plaintiff brought what the court found to be a petitory action, in which it was alleged that the defendant, an adjoining proprietor, had encroached upon plaintiff's land. The plaintiff there prayed that the land encroached upon be decreed to belong to him, and in the • same proceedings he also prayed that the boundary between his and defendant's lands be fixed and established. In that case as fn the one before us, parole evidence objected to was properly admitted to prove certain ancient marks and boundary lines connected with the actual possession-of the parties. This case was most similar to the one now under consideration, both as to the form of pleadings and the -rule of evidence adopted on the trial. Our learned brother of the district court cited the above case and we think he has correctly based his upinion upon the law therein enunciated.

Appellees have answered the appeal herein taken by praying for amendment of that part of the judgment which has allowed them only $50.00 damages and they now pray for $1,000.00 damages for deprivation of their property at the rate of $100.00 per year from 1913 to 1922. The judge of the lower court found difficulty in estimating the damages which 3hould be justly allowed. According to the testimony of one of the expert surveyors, it appeared that the quantity of land from which defendant had evicted plaintiff was estimated at 1.43 acres. Taking the evidence of another witness that corn land in that neighborhood had rented at $5.00 per aore per year, the court allowed plaintiffs $50.00^ based on that valuation. We find', however, that plaintiffs did not use .the land'for raising corn only but largely for the cultivation of melons and other vegetables, and that the whole of plaintiffs' land (not only the half from which they were evicted), when so cultivated, should have yielded profit from about' ninety to one hundred dollars per year. Three witnesses, two pf whom are the plaintiffs, so testified. Their evidence is not rebutted. We think: full Justice will be done in this case, by increasing the amSunt of damages from $50.00 to $500.00, and that the’Judgment, as thus amended, should be affirmed;

IT IS, THEREFORE, ORDERED:, ADJUDGED AND DECREED that the Judgment herein appealed from be and the same hereby is amended, sp as to increase the damages allowed plaintiffs from $50.00 ■to $300-.00.

IT IS FURTHER ORDERED, ADJUDGED ADD DECREED .that in all other respects the Judgment appealed from be and the same hereby is affirmed, defendant to pay all ooats in both courts.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

MAY 28, 1923.  