Bowman v. Flower

Bullard, J., delivered the opinion of the court. This case has been twice before this court, on appeal, and two successive judgments have been reversed, one in favor of the defendant, and. the other in favor of the plaintiff. On the last trial in the court below, the jury established a boundary between the adjoining tracts of land, held by the parties respectively, of which the defendant complains, and he asks a reversal of the judgment pronounced thereon. The action appeared to the court before, as it appears now, essentially petitory, and consequently the plaintiff cannot recover any part of the land in possession of the defendant, which is covered by the defendant’s title, and which is not shown to be embraced within the limits of the patent, held by the plaintiff. The titles of the parties-are of equal dignity, and that of the defendant the oldest. The patent in favor of W. P. [110] Collins, which is admitted to be the defendant’s title, calls for a superficies of six hundred and forty arpents, having a front of sixteen arpents on the Bayou Sarah, by a depth of forty arpents, bounded on the south by Bernard Higgins, and on the north by John Collins. That of John Collins, under whom the plaintiff holds, is for eight hundred arpents, having a front of eighteen arpents on the Bayou, and a depth of forty three arpents and six perches, or six-tenths of an arpent, bounded on the south by W. P. Collins, and on the other-sides by vacant land, at the time the primitive title was granted. The side lines of both patents, are represented on the figurative plans, made by Trudeau, as parallel to each other, and running due west from the Bayou. It is apparent, from a simple inspection of the titles, and the plats of survey, returned under the order of the District Court, that the line C D, fixed by the jury as the dividing line between the two patents, cuts off a part of the defendant’s land, and gives to the plaintiff more land than he is entitled to, under the patent of John Collins, as surveyed by Trudeau, beginning at Lytels on the soutlu It is suggested to us by counsel, that there is evidently between Lytels and Higgins, more land than is embraced in the two patents, and that an equitable division ought to be made of the surplus, between the parties. If this was simply an action of boundary, perhaps in the absence of proof of a consentional boundary, and the uncertainty as to the lines really made by the Spanish surveyor, we might think ourselves authorised to take that course. Much of the litigation in this case, has probably arisen from a vain search for a common corner, to the two patents, on the back parts of the tracts. Such a corner cannot exist, because the tracts have unequal depths. All. the evidence therefore, which has been given, leads to no satisfactory results. We have not before us such data, as will enable us to decide definitively between the parties, as to the true division line, and can only say, that the line settled by the judgment below, is in our opinion, iirconsistent with the written titles, exhibited by the parties. It appears, that the plaintiff is in possession, under [111] the patent, of all the land north of Lytel’s land, as represented by Trudeau, which in fact, is a greater extent than is expressed in his patent, if he recovers according to the judgment rendered in this case. In a suit involving the question of limits and boundaries between two tracts of land, where the parish surveyor, called as a witness, was askedthe following question : “Wereyou called upon as a surveyor of the state, to fix the boundaries beween the parties under the provisions of the Civil Code, where wouldyou establish it, with the lights before you?” Held, that the question was illegal,as the answer would have been to decide at once, the controver sy b etween the parties, as well questions of law .as of fact, and cut the knot which courts and juries had labored years to untie. Surveyors when called as witnesses may properly be questioned as to the appearance of old lines, marks upon trees and their opinion as to the age of certain marks on trees, and similar facts connected with their profession. Our attention is called to a bill of exceptions, to the opinion of the district judge, who refused to permit a certain question to be put to a parish surveyor, who was called as a witness. Th^ question proposed, and objected to, was in the following words: “Were you called upon as a surveyor of the state, to fix the boundaries between the parties, under the provisions of the Civil Code, where would you establish it, with the lights before you.” We are of opinion that the District Court did not err, in refusing to permit such a question, to be answered by the witness. The answer to it would have been to decide the controversy between these parties, as well questions of law as of fact, and to cut at once the knot, which courts and juries had laboured years to untie. If the answer to such a question, were legal evidence, it would be binding on this court, and a judgment, disregarding it, would be clearly contraiy to evidence. Professional men are sometimes called to testify, and their opinions are evidence. The surgeon who states, that a certain wound, in his opinion, produced death, speaks of the effect which would propably result from a given cause, according to his knowledge of anatomy, and his professional experience. The effect already exists, and his opinion is asked only as to the probable cause. But the surveyor was asked, not whether a plat had been drawn, according to the principles of his art, but what line ought to be established, according to the Civil Code. Surveyors may properly be questioned, as to the appearance of old lines, marks upon trees, and their opinion as to the age of certain marks upon trees, and similar facts, connected with their profession. The same objection exists, though not to the same extent, to the question propounded to another witness, who was a surveyor under the United States. [112] It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, the verdict set aside, and the case remanded for a new trial, the costs of appeal to be paid by the appellee.