
    Enoch J. ORR, Plaintiff-Appellee, v. Sarah Edna TALLEY and James Talley, Defendants-Appellants.
    No. 8412.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 2, 1955.
    On Rehearing Feb. 2, 1956.
    Writ of Certiorari Denied March 26, 1956.
    
      McConnell & McConnell, Springhill, Warren Hunt, Rayville, for appellants.
    Roy M. Fish, Springhill, Campbell & Campbell, Minden, for appellee.
   GLADNEY, Judge.

Enoch J. Orr instituted this petitory action praying to be decreed the owner of and as such restored to the possession of a strip of land 30'x 420', situated in the Southeast Quarter of the Southwest Quarter (SE14 of SWj4), Section Nineteen (19), Township Twenty-Three North (23 N.), Range Ten West (10 W.), in Webster Parish, Louisiana.

Numerous exceptions were filed by respondents, including an exception of no cause or right of action and a plea of prescription of ten years, acquirendi causa, which exceptions and plea were overruled save the exception of no cause or right of action which was referred to the merits. Thereafter, defendants answered denying plaintiff has any recorded title to the disputed property, claiming ownership in themselves, and, alternatively, asking through re-conventional demand for reimbursement for improvements placed upon the subject tract should plaintiff be decreed the owner thereof. Following trial judgment was rendered recognizing plaintiff as the owner of the land, ordering possession to be restored to him and awarding judgment in reconvention in favor of defendants for improvements placed upon the property in good faith in the sum of $425.

Appellee was formerly the owner of the above described 40 acres of land when on November 8 and November 15, 1937, he sold two parcels out of the forty to T. L. Et-tredge, to whom defendants trace title to their property, which was purchased on March 14, 1942, and is described as follows r

“Commence at the southwest (SW) corner of the Southeast quarter of the Southwest quarter (SEj4 of SWj4), of Section 19, Township 23 North, Range 10 West, Webster Parish, Louisiana, and thence run East (E) 541 feet for the initial point of beginning; thence run North (N) 420 feet; thence run East (E) 105 feet; thence run South (S) 420 feet; thence run West (W) 105 feet to the point of beginning, containing One (1) acre, more or less, together with all improvements thereon, and all rights thereto belonging.”

Immediately west of the property of the defendants is a lot which was acquired by •one M. A. Curtis, who upon the purchase thereof caused a survey to be made of his property which survey proved the southwest ■corner of said 40 acres, all of which had been previously owned by Orr, was 30 feet -west of the point which Orr used for a starting point in locating all lots theretofore sold 'by him. With this disclosure it is clear that ■the lot occupied by M. A. Curtis and the lot ■occupied by the defendants were each 30 feet east of the description called for in their respective deeds of title. Accordingly, Orr attempted to correct the error and ■conveyed to M. A. Curtis a strip'30 feet wide lying immediately west of the lot possessed by Curtis, and the latter in turn abandoned a strip 30 feet wide off of the east side of the lot he had occupied as his own. Orr •then attempted to quit-claim to the defendants the 30-foot strip abandoned by Curtis. Parenthetically, it should be noted this 30-foot strip was already embraced in defendants’ title. The Talleys declined to enter into any agreement with Orr for the purpose •of correcting descriptions of the several lots involved, but nonetheless they not only went into possession of the 30-foot strip aban•doned by Curtis but also retained possession ■of the 30 feet on the east side of the lot ■which possession they had had since 1942. Defendants thus are in possession of a lot 135 feet measuring from east to west and ■420 feet measuring from south to north. Included on the east side thereof is the strip which is the subject of this suit. When plaintiff was unable to prevail upon defendants to relinquish possession of the disputed strip, this suit was instituted.

We have carefully examined the deeds and title papers found in the record and it is clear that the disputed 30-foot strip is not embraced in defendants’ recorded title and it is equally clear that none of the recorded instruments disclose that plaintiff has parted with title thereto.

We assume that defendants’ exception of no cause or right of action was filed on the assumption that plaintiff had parted with title thereto or that at least a portion of said strip was included m a deed executed by Orr for the purpose of establishing a iroad. This conveyance dated August 16, 1944, and recorded in Conveyance Book No. 167, page 301, of the records of Webster Parish described the property sought to be conveyed as follows:

“That certain parcel of land designated for a road situated in SE}4 of SW1/^ Sec. 19, Township 23 N. Range 10 West, Webster Parish, La.; Begin at SE corner of SEj4 of SW14 and run along Parish Highway 646 feet; Thence North 420 feet by 15 feet wide; thence East 500 feet by 12 feet wide.”

Manifestly, the foregoing description is insufficient to identify any property, but even conceding the sufficiency thereof if certain deficiencies in the description should be supplied, the road would still lie to the east of the 30-foot strip in dispute and would not conflict with the property in dispute.

The muniments of title evidenced by the record show clearly that plaintiff is entitled to be recognized as the legal owner of the land sued for, inasmuch as there is no evidence of plaintiff having disposed of said property and defendants’ only claim of title is based on possession of property not embraced in their deed. It thus follows that plaintiff is entitled to be decreed the owner of the disputed property and should be restored to the possession thereof.

This brings us to the consideration of whether or not defendants are entitled to be reimbursed the value of improvements which they placed upon the property. Defendants occupied the property in dispute first when they took possession of their lot immediately after its acquisition by them. Plaintiff was responsible for the error which brought on this controversy by fixing the starting point of the description of defendants’ property 30 feet east of its proper position. There should be no doubt, therefore, that prior to the dispute defendants were in the utmost good faith in their possession of the disputed tract. Accordingly, under the provisions of Article 508 of the LSA-Civil Code, the defendants should be reimbursed the value of the improvements placed on said property. We have carefully reviewed the testimony relating to the value' of the improvements placed on the disputed strip by defendants and agree that the sum of $425 as allowed by the judge a quo is entirely adequate.

The several exceptions and the plea of prescription filed by defendants are not seriously urged in this court and do not require comment. We have heretofore pointed out that the exception of no cause and right of action predicated on plaintiff not having recorded title to the disputed strip is not sound. The plea of prescription of ten years acquirendi causa is likewise untenable inasmuch as defendants do not have a deed translative of title to the property involved.

It is further ordered, adjudged and decreed that plaintiff, Enoch J. Orr, be and he is hereby recognized and declared to be the lawful owner, and as such entitled to possession of the following described property situated in Webster Parish, Louisiana, to wit:

“Begin at the Southwest corner of the Southeast Quarter of the Southwest Quarter, (SE^4 of SW^4), Section 19, Township 23 North, Range 10 West, thence run East 646 feet to the point of beginning of the property herein described; thence run North 420 feet; thence run East 30 feet; thence run South 420 feet; thence run West 30 feet to point of beginning, together with all improvements located thereon and rights thereto belonging.”

In all other respects, the judgment from which appealed is affirmed at defendants’ cost, including cost of this appeal.

On Rehearing.

AYRES, Judge.

The facts and issues are stated in our original opinion. Appellants contend we erred (1), in not reforming their deed to conform to the description of the property allegedly intended to have been acquired by them and as was intended to have been sold by appellee to appellants’ predecessors in title; (2), in not dividing the costs between appellee and appellants, and, (3), in the alternative, in not permitting them to remain in possession of the property in dispute until they are reimbursed the value of the improvements placed thereon by them.

Appellee, in his brief, contends that he should be permitted to elect whether he will keep the aforesaid improvements and pay appellants for them or compel their removal.

First, directing our attention to appel-lee’s contention, it will be noted that the judgment of the district court condemned appellee to reimburse appellants the sum of $425 for the improvements placed by them upon said property. An election as contended for by appellee was not provided for in the judgment rendered. Appellée did not appeal.. That issue was not preserved in his answer to the appeal taken by appellants and it, therefore, cannot be raised in brief on a rehearing. It is neither timely nor properly raised here.

For a proper understanding of the aforesaid contentions made by appellants, a brief restatement of a few of the pertinent facts appears to be all that is necessary. The record discloses that plaintiff was the owner of the SE}4 of the SW)4, Section 19, Township 23 North, Range 10 West, Webster Parish, Louisiana. Pie sold various lots and parcels thereof to sundry persons, including appellants’ authors in title, as well as one M. A. Curtis. Curtis acquired a tract adjoining appellants’ property on the west. All the deeds had a common error due to a mistake in the location of the southwest corner of said governmental subdivision, which was designated in all of them as the starting point. After these deeds were executed and filed for record, a survey was made wherein it was determined that the southwest corner of the aforesaid SE}4 of the SW*4 was located 30 feet west of the point, wherein it was supposedly located at the time the deeds were executed. The lots and parcels were measured and staked out from a point referred to as constituting the southwest corner of said 40, but which, in reality, was 30 feet east thereof. When these errors came to light, plaintiff offered to all the parties concerned correction deeds so that their deeds would correctly describe the particular lot measured and staked out for and possessed by each of them. Appellants refused this offer, insisting upon possession of a lot as described in the calls of their title. Accordingly, they took possession of the east 30 feet of property then possessed by Curtis and supposedly until that time owned by him. In compensation for this loss, Curtis moved his possession west an equal distance on property theretofore supposedly owned by plaintiff. Accordingly, a new boundary was established between Curtis’s property and that of plaintiff. Therefore, plaintiff relinquished possession of a valuable lot or tract to Curtis because of defendants’ refusal to accept a correction deed and to amicably adjust their boundary with Curtis. Moreover, appellants took possession of the aforesaid strip, being 30 feet wide on the east side of the Curtis property and purportedly owned by him, and at the same time refused to relinquish possession to an equal strip on the east side of their property, which was not actually included in their title but which until that time was supposedly owned by them.

After this litigation arose, appellants contend, as a reason for their refusal of a correction deed, that plaintiff had no title to this 30-foot strip to the east of their property and that, consequently, plaintiff was in no position to reform their deed. This assumption of plaintiff’s lack of title was erroneous, as pointed out in our original opinion. Their position taken then is inconsistent with their contention now that they are entitled to a correction deed. By their action in forcing the adjacent owner and likewise plaintiff adjoining him on the west to move their possession, boundaries and fences 30 feet west and in causing plaintiff to part with possession of a valuable strip of his property to offset and compensate the loss to Curtis due to the aforesaid action of appellants, appellants cannot now in good conscience insist upon a correction deed. They are thus barred and precluded from such insistence by their own acts.

Therefore, our review and reconsideration of this record has produced no change in our conclusion as to this issue nor as to the assessment of costs. The reasons for the conclusion as to the costs are clearly and adequately stated in our original opinion.

Appellants’ third contention relative to retention of possession of the property, the subject of this litigation, until they are reimbursed the value of the improvements placed thereon by them is correct and should be sustained. LSA-C.C. Art. 3453 provides in this connection as follows:

“The rights, which are peculiar to the possessor in good faith, are:
* * *
“2. The right which such a possessor has, in case of eviction from the thing reclaimed, to retain it until he is reimbursed the expenses he may have incurred on it”.

Pertinent is the expression of this court in Gregory v. Kedley, 185 So. 105, 108:

“Pursuant to the quoted codal provisions defendant, as a possessor in good faith, is entitled to be paid the value of the improvements, or $800; and also entitled to retain possession of the premises, without the payment of rent, until reimbursement of such sum, together with the taxes paid by her. Roussel v. Railways Realty Co., 165 La. 536, 115 So. 742; Eddins v. Giles, La.App., 142 So. 266.”

No claim was made for any adjustment or reimbursement of taxes.

Accordingly, our original decree is amended by permitting appellants to retain possession of the property involved in this litigation until they shall have been reimbursed for the improvements placed thereon by them, and, as thus amended, our original decree is reinstated and made the final judgment of this court.

And it is so ordered.  