Opinion
No. 29614.
December 1, 1930. Rehearing Denied January 5, 1931.
Appeal from Twenty-Fourth Judicial District Court, Parish of Jefferson; L. Robert Rivarde, Judge.
Suit by Mrs. Eulalie Fleuriet Thibodeaux against the Bonnabel Land Company, Inc., and others. From an adverse judgment, plaintiff appeals.
Affirmed in part, and annulled in part, and rendered.
C.A. Buchler, of Gretna, and Ivy G. Kittredge, of New Orleans, for appellant.
Hugh S. Suthon, Frederick C. Querens, and Roger Meunier, all of New Orleans, for appellees.
The plaintiff is claiming certain lands which the defendant, Bonnabel Land Company, claims to have been in possession of, as owner, for many years. The suit may be regarded, therefore, as a petitory action. The lands are described in the plaintiff's petition as squares 25, 39, 40, 48, 54, 66, and an undivided half of square 55, on a map or plan made by Edgar Pilie, surveyor, on the 26th of October, 1865, of a so-called subdivision, called Bath No. 1, in Jefferson parish; the map or plan being attached to an act of sale made by six of the seven heirs of Henry Bonnabel, deceased, to the coheir, Alfred Bonnabel, on the 11th of November, 1875.
The plaintiff alleged in her petition that the Bonnabel Land Company had sold several lots in the subdivision, formerly called Bath No. 1 (recently re-subdivided and now called Bonnabel place), to several persons named in the petition; and they were made defendants.
The defense urged by the Bonnabel Land Company is a plea of prescription of ten and thirty years. The other defendants set up the same plea, besides calling the Bonnabel Land Company in warranty. The district court sustained the plea of prescription and rejected the plaintiff's demand. She has appealed from the decision.
The tract of land which is now called Bonnabel place fronts on Metairie road, is about 11 arpents (2,303.6 feet) wide, and extends northward to Lake Pontchartrain, a distance of 2 1/2 miles. The land belonged originally to Volant and J.B. La Barre. They sold it to Hypolite de Courval, on the 13th of June, 1836; and he sold a half interest in it to Henry Bonnabel on the 28th of September, 1836. Hypolite de Courval and Henry Bonnabel undertook to make a suburb or residence district of the tract, and, accordingly had a map or plan made of the entire area, by Louis Bringier, surveyor general, on the 13th of December, 1836. The Bringier map or plan cannot be found; but it is stated in the deeds by which the plaintiff's author in title, Rene Arnous, bought from Hypolite de Courval and Henry Bonnabel that the map or plan was deposited in the office of Joseph Benzaken Marks, notary public, before whom the sales to Arnous were passed. On the Bringier plan, of which the Pilie plan is supposed to be a copy, an avenue, called Bath avenue, was laid off, extending through the center of the tract, from Metairie road to the lake; and the squares were on either side of Bath avenue, and were separated by streets, extending across the tract, and named First street (near the lake), Second street, etc., to Forty-Fourth street, which was crossed diagonally by Metairie road. The plan showed also a street called Canal street, the lines of which were supposed to represent a continuation of Canal street in New Orleans; and the plan showed also dotted lines representing an imaginary continuation of Esplanade street in New Orleans. The lines of Canal street, so called, crossed the subdivision called Bath diagonally, northwest and southeast, about midway between Metairie road and the lake, and the dotted lines representing a continuation of Esplanade street crossed the subdivision in almost the same course, but near the lake shore. Of the squares claimed by the plaintiff in this suit, square 25 was in the north end of the tract, near the lake, on the west side of Bath avenue, and bounded north by Fifth street and south by Sixth street. Bayou Tchoupitoulas, shown on the Pilie map, crossed the northwest corner of the square, flowing northeast to the lake. Square 25 was in the marsh or low prairie land, between the cypress swamp and the lake. The dotted or imaginary lines representing the extension of Esplanade street nipped the northeast corner of square 25. Squares 39 and 40 were in the cypress swamp; square 39 being on the east side of Bath avenue and square 40 on the west side, both squares being bounded on the north by Twelfth street and south by Thirteenth street. Square 48 was also in the swamp, fronting on the west side of Bath avenue, and bounded on the north by Sixteenth street and south by Seventeenth street. Squares 54 and 55 extended from the north side of Canal street, so called, to Nineteenth street; square 54 being bounded west by Vulcan street and east by Neptune street, and square 55 being bounded west by Neptune street and east by Jupiter street. And square 66 was on the south side of Canal street, extending southward to Twenty-Third Street, and bounded west by Vulcan street and east by Neptune street. These streets which we have referred to were only on paper. There was no evidence of them on the ground, except that the location of Canal street was known by an appearance of a path through the woods, where the timber was cut out many years ago.
Hypolite de Courval and Henry Bonnabel sold squares 25 and 55 to Rene Arnous on the 28th of December, 1836, and sold squares 39, 40, and 48 to Arnous on the 20th of July, 1837; and Henry Bonnabel sold squares 54 and 66 to Arnous on the 19th of July, 1837. Arnous sold an undivided half of square 55 to Henry Bonnabel on the 11th of November, 1837. All of these deeds were promptly recorded. In every deed reference was made to the Bringier map or plan for the description and location of the square, and its measurement on the streets which it adjoined.
Rene Arnous died on the 5th of May, 1864, leaving a will, dated the 10th of October, 1863, in which he named his daughter, Eulalie Virginie Arnous, as his universal legatee; and she was recognized as such and sent into possession of the estate of her father by a judgment of court dated the 9th of June, 1864. The squares claimed by the plaintiff were listed on the inventory of the estate of Rene Arnous. Eulalie Virginie Arnous died in February, 1909, leaving a will dated the 24th of January, 1904, in which she named Mrs. Eulalie Fleuriet Thibodeaux as her universal or residuary legatee, and which will was probated on the 26th of February, 1909. Mrs. Thibodeaux was recognized as the universal legatee of Eulalie Virginie Arnous, and sent into possession of her estate by a judgment of court dated the 21st of April, 1909.
The plaintiff's title, therefore, as far as the records show, is established. Notwithstanding the old maps which are supposed to be copies of the original Bringier map of the so-called town of Bath, of Bath No. 1, do not show the dimensions of the squares, the dimensions and locations were given accurately in the deeds by which Rene Arnous acquired title, and the squares were easily located on the subsequent maps and surveys. For example, in the sale of square 25 to Rene Arnous, which was an auction sale, the square was described as being in the town of Bath, parish of Jefferson, and composed of 74 lots; lots 1, 2 and 3 measuring each 30 feet front on Bath avenue by 116 feet in depth; lot 4 forming the corner of Bath avenue and Fifth street and measuring 30 feet front on Bath avenue and 116 feet on Fifth street; lots 5 to 36, inclusive, measuring each 30 feet front on Fifth street by 120 feet in depth; lot 37 measuring 30 feet front on Fifth street by 120 feet in depth adjoining the land of L'Esprit; lots 38 to 70, inclusive, measuring each 30 feet front on Sixth street by 120 feet in depth; lot 71 forming the corner of Bath avenue and Sixth street, and measuring 30 feet front on Bath avenue by 116 feet on Sixth street; and lots 72, 73 and 74 measuring each 30 feet front on Bath avenue by 116 feet in depth. The record shows, and it is admitted in the Bonnabel Land Company's answer to this suit, that the so-called town of Bath, when it was the La Barre plantation, was bounded on the west by land of George L'Esprit. Square 25, therefore, is accurately located as a parallelogram, measuring 240 feet on the west side of Bath avenue, 1,106 feet on the south side of Fifth street, 240 feet on the line between the La Barre plantation and land formerly of George L'Esprit, and 1,106 feet on the north side of Sixth street. In the sale of squares 39 and 40, by Hypolite de Courval and Henry Bonnabel to Rene Arnous, the measurements of square 39 are given as 240 feet on Bath avenue, 1,106 feet on Twelfth street, 240 feet on the line of A. Aury, being the eastern boundary of Bath, and 1,106 feet on Thirteenth street; and the measurements of square 40 are given as 240 feet on Bath avenue, 1,106 feet on Twelfth street, 240 feet along the land of L'Esprit, and 1,106 feet on Thirteenth street. In the sale of square 48, by Hypolite de Courval and Henry Bonnabel to Rene Arnous, the square is described as square 48 in the town of Bath, in Jefferson parish, and measuring 240 feet on Bath avenue, 1,106 feet on Sixteenth street, 240 feet along the land lately belonging to L'Esprit, and 1,106 feet on Seventeenth street — all according to a plan drawn by Louis Bringier, surveyor general, dated the 13th of December, 1836, and deposited in the office of Joseph B. Marks, notary public. There would be no difficulty in locating that square. The measurements of squares 54, 55 and 66, are given with equal accuracy, on each of the streets on which they faced, in the Rene Arnous deeds, and with reference to the Bringier plan. When we refer to the streets on which the squares faced, we mean, of course, the streets shown on the Bringier plan and the Pilie plan, for there were no streets in the swamp or marsh. Alfred Bonnabel had a dirt road built from his pasture on the front part of the tract, through the swamp and marsh, to the lake shore, where he had a summer residence; but the road was not called Bath avenue by those who used the road, but only in the written deeds, and particularly in the act of sale to Alfred Bonnabel, by the coheirs of their father, Henry Bonnabel, dated the 11th of November, 1875, where, in addition to their interest in the squares in the so-called town of Bath, they sold to their brother Alfred also "the rights, title and interest of said vendors as heirs of said late Henry Bonnabel in and to the road running through said property, known as Bath Avenue."
It seems to be admitted, although we do not find the deed in the record, that, after Hypolite de Courval and Henry Bonnabel had projected the town of Bath and had sold the squares to Rene Arnous, and had sold many lots and squares to other parties, Hypolite de Courval sold his interest in what remained of the land to Henry Bonnabel, perhaps as long ago as 1837. Henry Bonnabel died on the 8th of July, 1854; and his widow died on the 8th of May, 1875. They were survived by seven children, as their heirs at law, one of whom was Alfred Bonnabel. On the 20th of February, 1872, a judgment was rendered sending the seven heirs into possession of the estate of Henry Bonnabel, deceased; and on the 18th of May, 1875, a judgment was rendered sending them into possession of the estate of the deceased widow of Henry Bonnabel. The squares claimed by the plaintiff in this suit were not included in the inventory of the estate of Henry Bonnabel, deceased, except that an undivided half of square 54, which the record shows he had re-acquired, was included, and an undivided half of square 55, which Rene Arnous had sold to him, was included. Each one of the remaining squares in Bath No. 1 was listed and appraised separately, and described by the number of the square and the measurement on each of the streets shown on the Pilie map. On the 11th of November, 1875, Alfred Bonnabel bought from his coheirs their six-sevenths of nearly all of the squares composing the so-called town of Bath, and in the enumeration of the squares were included all of the squares claimed by the plaintiff in this suit. The property transferred is described thus: "The six undivided sevenths of all and singular that portion of the Town of Bath, situated in the said Parish of Jefferson, in this State, on the north side of the Metairie Road, belonging to the estate of the late Henry Bonnabel, and described on a certain sketch made by Edgar Pilie on the 26th of October, 1865, hereto annexed and made part hereof, and composed of the following squares of ground, to-wit: * * * together also with the rights, title and interest of said vendors as heirs of said Henry Bonnabel in and to the road running through said property, known as Bath Avenue. The said purchaser declares that he is aware that the presently sold property belonged to the late Henry Bonnabel for having been acquired by him by purchase, and that the same now belongs to the said vendors, and himself as purchaser, as the sole children and heirs of said late Henry Bonnabel, and he therefore dispenses with the production of the titles thereto, and exonerates me, notary, from all liability that might result therefrom." That is the sale on which the defendants rest their plea of prescription of ten years. Alfred Bonnabel sold to the Bonnabel Land Company on the 25th of July, 1917, which was less than ten years previous to the filing of this suit. In the sale by Alfred Bonnabel to the Bonnabel Land Company, the lots and squares are enumerated, and described as "in what is known at the present time as Bonnabel Place, being part of what was formerly known as Bath No. One, the whole of being fully shown and delineated on a plan of subdivision of the said Bonnabel Place, made by Alfred E. Bonnabel, Parish Surveyor of the said Parish of Jefferson, Louisiana, dated May 18th, 1915," etc.
Alfred E. Bonnabel, the parish surveyor, who made the new plan of subdivision, is a son of Alfred Bonnabel, who died on the 30th of April, 1921, aged 83 years. In 1915, he had the plan of resurvey made by his son, showing with dotted lines the squares and streets of the original town of Bath, and showing in solid lines the proposed new subdivision of the land, to be known as Bonnabel place. The map was submitted with a petition to the police jury of Jefferson parish, to revoke the dedication of the original streets of the so-called town of Bath — if the dedication was valid, which the petitioner did not admit — and to dedicate the streets as laid off on the map made by Alfred E. Bonnabel. The police jury, after making certain alterations where a revocation might affect the lots or squares belonging to other parties, adopted a resolution in 1916, revoking the dedication of the streets of the so-called town of Bath, and accepting the dedication of the streets shown on the map made by Alfred E. Bonnabel of Bonnabel place. The lines of the newly dedicated streets do not correspond with the lines of the streets shown on the maps of the so-called town of Bath, but encroach upon the squares shown on the old maps.
Our opinion is that the plea of prescription of ten years, based upon the sale made to Alfred Bonnabel by his brothers and sisters, of their six-sevenths interest in the property belonging to the estate of their deceased father, is not well founded, except perhaps as to an undivided half of square 54. The deed showed on its face that Alfred Bonnabel was buying only the property which his brothers and sisters had inherited jointly with him from their father, Henry Bonnabel; and the inventory of the estate showed that, with the exception of an undivided half of square 54, the heirs did not inherit the property claimed by the plaintiff in this suit. The purpose and effect of the sale was merely to make Alfred Bonnabel the sole heir of his father, with regard to the property described in the deed. Besides, as to squares 39, 40 and 48, Alfred Bonnabel never went into actual possession, as we shall explain hereafter. Our conclusion with regard to the prescription of thirty years makes it unnecessary to consider the effect of including an undivided half of square 54 in the inventory of the estate of Henry Bonnabel, deceased.
We have concluded that the plea of prescription of thirty years bars the plaintiff's action to recover squares 25, 54 and 66, and the undivided half of square 55, because Alfred Bonnabel had possession of those squares for a period exceeding thirty years. Square 25 was a part of the marshland or prairie where Alfred Bonnabel pastured his cattle and conducted the business of pasturing the cattle of others at so much per month per head. He had a summer residence on that part of the land, in front of which was a bridge across Bayou Tchoupitoulas, for driving the cattle to and from the pasture. A part of the land was used for cultivating cabbage plants and another part was, for at least a year, cultivated in rice, and irrigated by means of a pump and windmill, put up by Alfred Bonnabel about the year 1885, near the house on Bayou Tchoupitoulas. The cattle were inclosed by a line fence on the east side of the marshland, extending from the cypress swamp into the lake, and on the west side were stopped by Bayou Tchoupitoulas, — nearly all of square 25 being between the bayou and the fence on the east line of the prairie portion of the tract.
Squares 54, 55 and 66 adjoin Canal street, so-called, near the edge of the woods. Alfred Bonnabel conducted a dairy there as long ago as 1875. He lived on a tract fronting on Metairie road, adjoining the cattle pasture on the east; and his son, Henry, resided on the front part of the tract called Bath. The land was cultivated by tenants of Alfred Bonnabel forty-one years ago, the farms extending back as far as Canal street and therefore embracing square 66; and squares 54 and 55 were a part of the site of a sawmill. Parts of the foundations of the houses and lumber stacks are there yet. The front part of the land called Bath has been under fence since 1875. There was a front fence along Metairie road, and the side fences extended back far enough into the cypress swamp to prevent the cattle and horses and mules from straying off. These side fences extended northward beyond the rear line of squares 54 and 55.
The plea of prescription of thirty years, however, does not bar the action to recover squares 39, 40 and 48, because they were never inclosed or occupied or possessed in any way by Alfred Bonnabel or by his father, Henry Bonnabel. It is said by some of the witnesses that those squares were used by Alfred Bonnabel for pasturing cattle; but the fact is that the squares were in a low, boggy, cypress swamp, nearly always under water during the lifetime of Alfred Bonnabel. The cypress forest extended eastward and westward over the neighboring lands, with no visible line separating Bonnabel's timber from that of his neighbors. Bonnabel road was not used as a means of travel between Alfred Bonnabel's home near Metairie Road and his summer residence on the lake shore. Whenever he or the members of his family went from the farm on Metairie road to the summer residence on the lake shore, they went around through Bucktown, and over a shell road along the lake shore.
On the 21st of February, 1906, Alfred Bonnabel sold to Edward J. Ross, of the Bancroft, Ross Sinclair Company, the cypress timber on the tract called Bath and on his land lying east of the Bath tract; and in the deed the lands in Bath were described by the numbers of the squares, and with reference to the Pilie map. Squares 39 and 40 were included in the enumeration, but square 48 was not included. The contract provided that the timber had to be removed in five years. Bancroft, Ross Sinclair Company built a sawmill on the north side of Canal street, near the edge of the woods, and hauled the timber to the mill by means of a pull boat, from which the steel cables extended over a radius of a mile into the swamp. There was not enough water in the swamp to float the pull boat, but it was the most convenient thing to operate the machinery on. The mill had a capacity of 60,000 feet of timber per day, and was supplied from lands extending a great distance east and west. There was only about 2,000,000 feet of cypress timber on the tract called Bath; hence it required not much longer than a month to remove all of it. It is not possible that the removal of the timber from squares 39, 40 and 48 occurred as long ago as thirty years before the filing of this suit. Even if it did occur that long ago, we would not maintain that the temporary act of felling the timber and removing it by merely extending the end of the cable to one of these squares was such an act of possession as should support a plea of prescription.
The theory on which the defendants claim that Alfred Bonnabel had possession of squares 39, 40 and 48, is that he possessed the whole tract called Bath, as one tract, without regard for the division of the land into squares and streets on the map, according to which Rene Arnous had bought these squares. But that theory, as to Alfred Bonnabel's possession, is contradicted by the fact that, in every transaction in which he bought or sold any land within the area, he described the lands as being squares, bounded by streets. In fact, in every one of his tax receipts, and in every deed by which Alfred Bonnabel re-acquired some of the squares which Henry Bonnabel had sold, the lands are described as squares, bounded by streets.
During the progress of the trial, the defendants filed a plea of prescription of thirty years, liberandi causa, on the theory of abandonment on the part of the plaintiff. The law on that subject is that an owner of land does not lose his title by prescription by remaining out of possession for any length of time, unless some one else has been in possession long enough to acquire the title by prescription. The reason is that an owner has as much right to remain out of possession as he has to remain in possession of his property; the only risk of remaining out of possession being that some one else might be in possession long enough to acquire title by prescription. Harang v. Golden Ranch Land Drainage Co., 143 La. 982, 79 So. 768.
Our conclusion is that the plaintiff is the owner of the three tracts of land described as squares 39, 40 and 48 on the Pilie map.
There is some doubt as to whether some of the lots sold recently by the Bonnabel Land Company to some of the other defendants in this case, according to the recent plan of survey of Bonnabel place, encroach upon the squares 39, 40 and 48, or any of them. There was no evidence offered on that subject in the trial of this case. The defendants holding title from the Bonnabel Land Company did not offer any evidence in support of their calls in warranty, perhaps because they relied upon the ability of the Bonnabel Land Company to defend the title or to answer to its obligation as warrantor. We have concluded, therefore, to reserve to these defendants, other than the Bonnabel Land Company, whatever right of action they may have against the company as warrantor, if any of their titles are affected by the plaintiff's being adjudged the owner of squares 39, 40 and 48 on the Pilie map.
The judgment appealed from is annulled in so far as it affects squares 39, 40 and 48, described in the plaintiff's petition; and it is now ordered, adjudged and decreed that the plaintiff, Mrs. Eulalie Fleuriet Thibodeaux, is the owner of the three tracts of land in Jefferson parish, described as squares 39, 40 and 48, on the map or plan made by Edgar Pilie, surveyor, on the 26th of October, 1865, of the subdivision called Bath, or Bath No. 1, and attached to the act of sale made by six of the seven heirs of Henry Bonnabel, deceased, to the coheir, Alfred Bonnabel, on the 11th of November, 1875. The plaintiff's demand as to all other lands claimed in her petition is rejected. The right is reserved to any and all of the defendants, other than the Bonnabel Land Company, to assert hereafter in another suit any claim which they or any of them may have against the Bonnabel Land Company as warrantor, if this decree in favor of the plaintiff affects the title of any of the defendants who bought from the Bonnabel Land Company. The Bonnabel Land Company is to pay all costs of this suit.
BRUNOT, J., dissents.