Passera v. City of New Orleans

BRUNOT, J. This is a petitory action. The property involved was formerly a portion of the bed of Dublin street canal. It is in the Seventh district of the city of New Orleans, in square No. 414, bounded by Dublin, Pritchard, and Apricot streets and Carroll-ton avenue. It forms the corner of Dublin and Pritchard streets, and measures 46 feet 6 inches front on Pritchard by a depth, between parallel lines, of 120 feet. The petition alleges that plaintiff is the owner of the property, that the city of New Orleans claims to be in possession thereof, and that said city is without any right or title thereto, but is a trespasser thereon. The prayer is for a judgment decreeing plaintiff to be the owner in fee simple of the property, decreeing the city of New Orleans without *201 right, title, or interest therein, and reserving to plaintiff the right to claim damages for the occupancy thereof. The defendant, in its answer, denies that plaintiff is the owner of the property, or that defendant is without right or title thereto, or that it is a trespasser thereon. For further answer defendant alleges that the Dublin street canal was constructed long prior to'1871, and was constantly used by it as a drainage canal from the date of its completion until three or four years past, when its use for such purpose was discontinued and the canal filled up, to be used as a public parkway; and that it has had continuous, actual, physical possession of the property for more than 50 years. Defendant also pleads, in bar of the plaintiff’s suit, the prescription of 30 years’ possession. The heirs of Bernard Melun and- Daniel Loze intervened in the suit claiming title to property of a larger area, but including the property involved in this suit. The" plaintiff add defendant answered the petition of the interveners. The plaintiff, in his answer thereto, pleads estoppel and the prescription of 10 years’ acquirendi causa; and the defendant pleads recognition by interveners of the public character of the canal dedication to public use and the prescription of 30 years’ possession. The case was tried and judgment was rendered in favor of the plaintiff and against the city of New Orleans as prayed for in the petition, and the intervention of the said Melun and Loze heirs was dismissed. From this judgment the interveners alone appealed.The city of New Orleans has filed a very able brief in the case, but, as it did not appeal from the judgment, which has now become final, as to it, we cannot consider its brief. The issue in the case which we are called upon to decide is whether or not the sale to plaintiff and to his authors in title was a sale per aversionem. Messrs. Dart & Dart and Louis O. Guidry, as amicus eurise, have filed a brief in support of the position of the plaintiff herein. It is the accepted rule that a sale per aversionem conveys all of the property found within the boundaries given. Johnston v. Quarles, 3 La. 90, 22 Am. Dec. 163; Grafton v. Wells, 4 La. 534; Harman v. O’Moran, 18 La. 526; Labiche v. Jahan, 9 Rob. 30; Keay v. N. O. Canal Co., 7 La. Ann. 259; Nichols v. Adams, 9 La. Ann. 117; Ragan v. Gwinn, 19 La. Ann. 133; Leonard v. Forbing, 109 La. 220, 33 So. 203. The fact that measurements are given in sales per aversionem does not effect the general rule. Cuny v. Archinard, 5 Mart. (N. S.) 238. A sale in which specific boundaries are given is a sale per aversionem, or a sale from one fixed boundary to another. It conveys all of the land within the boundaries given, whether the measure be correctly stated in the deed or not. The designation of the boundaries control the enumeration of the quantity. O. C. art. 2471 (now art. 2495); Brazeale v. Bordelon, 16 La. 333; Prejean v. Giroir, 19 La. 422; Saulet v. Trepagnier, 2 Rob. 357; Zeringue v. Williams, 15 La. Ann. 76; Barrow v. Miller, 16 La. Ann. 114; Surgi v. Shooter, 17 La. Ann. 68. In this connection we quote O. G. art. 854, which is as follows: “If any one sells or alienates a piece of land, from one fixed boundary to another fixed boundary, the purchaser takes all the land between such bounds, although it give him a greater quantity of land than is called for in his title, and though the surplus exceed the twentieth part of the quantity mentioned in his title.” It is also a well-settled rule in our jurisprudence that, in a controversy over surveys and boundary lines, courses and distances yield to natural and ascertained objects. Leonard v. Forbing, 109 La. 220, 33 So. 203; Kirkpatrick v. McMillen, 14 La. 497. The Kirkpatrick Case is particularly per *203 tinent because of a similarity between that case and the one at bar. In the case of Adams v. Drews, 110 La. 456, 34 So. 602, this court held that (quoting from the syllabus): “Whilst an error in the description of real estate may be corrected as between the parties to the act in which it appears, a different case presents itself after a third person, acting in good faith, acquires rights with respect to the property as erroneously described. The error cannot be corrected to the prejudice of such rights.” On November 17, 1903, Gen. John B. Levert acquired from the widow of Bernard Melun, the then owner, the following described property: “A certain lot of ground and improvements thereon, situated in the Seventh District of this City, in square No. 414, bounded by Carroll-ton Avenue (formerly Canal Avenue), Dublin (formerly Adam), Pritchard and Apricot (formerly Twelfth street); said lot of ground is designated by the letter ‘C,’ according to a plan made by H. L. Zander, Engineer and Surveyor, dated October 19th, 1903, and annexed hereto; said lot according to said plan measures One Hundred and Fifty Feet (150) front on Caz’roUton Avenue, the same in the rear and front on Dubliiz Street by Two Hundred and Ninety feet (290) in depth and front on Pritchard Street, and the same on the line dividing it from lot ‘B’; said lot ‘C’ comprises the whole of lots 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 on .said plan.” On February 9, 1903, Gen. Levert sold the property he acquired from the widow of Melun to the Carrollton Land & Improvement Company, Limited. In this deed the property is described as follows: “A certain portion of ground, together with the improvements thereon, and all the rights, ways, privileges, servitudes and advantages thereunto belonging or in any wise appertaining, situated in the Seventh District of New Orleans, in square bounded by Pritchard, Apricot and Dublin Streets and Carrollton Avenue, and is designated by letter ‘C’ and subdivided into ten lots, numbers one to ten inclusive. Said portion of ground measuring two hundred and eight feet front on Pritchard street, by one hundred and fifty feet in depth and front on each of Dublin Street and Carroll-ton Avenue, being half of said square fronting on Pritchard Street.” On January 29, 1907, the Carrollton Land & Improvement Company, Limited, sold the property it had acquired from Levert to Gustave Gretzner, under the following description: “A certain portion of ground, together with the improvements thereon, and all the rights, ways, privileges, servitudes and advantages thereunto belonging or in any wise appertaiziing, situated in the Seventh District of this city, in the square bounded by Pritchard, Apricot and Dublin Streets and Carrollton Avenue,, and is designated by the letter ‘C’ and subdivided into ten lots numbered one to ten inclusive. Said portion of ground measuring two hundred and eighty feet front on Pritchard Street, by one hundred and fifty feet in depth and front on each of Dublin Street and Carrollton Avenue, being the half of the half of the square fronting on Pritchard Street.” Gretzner died, his widow and child were recognized as his sole heirs and sent into possession of his estate, and, in a sale to effect a partition thereof, Victor J. Passera, on October 5, 1925, purchased the property which is involved in this suit, and which is described in the deed to said vendee as follows: “A certain portion or piece of ground, together with all the buildings and improvements thereon, and all the rights, ways, privileges, servitudes and advantages thereunto belonging, or in any wise appertaining, situated in the Seventh District of this City, in square 414, bounded by Carrollton Avenue, Pritchard Street (or Place), Apricot Street (formerly Twelfth) and Dublin Street (formerly Adams), which said piece or portion of ground commences at a point one hundred and thirty feet from the corner of Carrollton Avenue and Pritchard Place, and has a frontage on said Pritchard place of one hundred and ninety six feet and six inches to the line of Dublin Street, by a depth between parallel lines of one hundred and fifty feet, three inches and six lines, all as per plan of Elbert G. Sandoz, Civil Engineer and Surveyor, dated September 16th, 1925, and annexed to act of said vendor.” In all of the deeds, from Levert to Passera, inclusive, the boundaries are definitely fixed, *205 and in none of said deeds is there a reference to the Dublin street canal as being a boundary. In the deeds from Melun to Levert, Levert to the Carrollton Land & Improvement Company, Limited, and the Carrollton Land & Improvement Company, Limited, to Gretzner, the boundaries are given as Pritchard, Apricot, and Dublin streets and Carrollton avenue, and in the deed to Passera the description of the property conveyed to said vendee fixes Dublin street as one of its boundaries. The petition of interveners was filed in this suit November 14, 1927, or S days less than 24 years after title to the property became vested in Gen. John B. Levert, or more than 20 years after Gustave Gretzner acquired it. It does not appear that Mr. Levert ever had physical possession of any part of the property, but it is conclusively shown that, when Gretzner acquired it, he took actual possession of all of the property except the part which was then in the Dublin street canal. He built residences and outbuildings, set out trees, and established a playground on it. The plaintiff’s plea of 10 years’ prescription as against any latent defect or error in description must be sustained, for plaintiff and each of his authors in title, including Mr. Levert, acquired the property in good faith and under title translative thereof. The city of New Orleans not having appealed, the authorities cited in support of the proposition that when the canal was abandoned the fee reverted to the original owners need not be considered. For the reasons stated, the judgment appealed from is affirmed, at appellant’s cost.