Zeringue v. White

The judgment of the court (King,' J. absent,) was pronounced by Rost, . J. 'íhe only question presented by this case is, as to the proper location of a.Spanish grant, under which the plaintiff claims. The requéte expresses the desire of the grantee to establish himself upon a tract of land called uel Encinal Grande (Grande Chéniére), which forms a sort of island between two lakes, and runs in a direction down the river, distant therefrom about one league, and is cut across by a bayou called bayou of the Little Lake. The requéte prays for a grant of sixty arpents in depth on each side of said bayou, with all the front thereon, which may be about eight arpents.” The ridge of the Grande Chéniére runs [302] in a straight direction for about fifly arpents from the bayou of the Little Lake, at which distance it diverges towards the river, following the sinuosities of another bayou. The plaintiff contends that, under the calls of the requéte, he is entitled to claim all the ridge of high land known as la Grande Chéniére, to the extent of sixty arpents from the bayou of the Little Lake. The defendant on the other hand, insists that the plaintiff is bound to protract his side lines straight from the bayou of the Little Lake to the entire depth called for by his title, and should not be allowed to alter the directions of those lines in order to suit the change of direction of the ridge of highland. It is perceived that the controversy involves the right of the parties to the ridge of the Grande Chéniére beyond the depth of fifty arpents from the bayou of the Little Lake. It is admitted that this portion of land is included within the title of the defendant, which is posterior in date to that of the plaintiff. It is in evidence that, in 1806, the grantee under whom the plaintiff claims, and his wife, to whom he had transferred his rights, caused a survey of his grant to be made by Barthélemy Lafon, and that, on this plan, the side lines are protracted without deflection from the bayou of the Little Lake to the depth of sixty arpents. This survey appears to have been made in presence of the adjoining proprietors, and has ever since been recognized by the grantee and his wife, and referred to by them in the subsequent sales they have made. Quinault, the immediate vendor of the plaintiff, had acquired with reference to it, and, in his. sale to the plaintiff, it is stated, “ que les dites portions de terre sont figurées sur un plan ensuite duquel se trouve un proces-verbal d’arpentage relatif á la totalitc de la terre susdite, dressé le 19 Avril, 1806, par feu Barihelemy Lafon alors. arpenteur, depute par Isaac Briggs, arpenteur general du Territoire sud du Tennessee, et dont une copie est annéxée a Vacie de ses vendeurs.” This act bears date in 1842. No actual possession of the land in controversy by the plaintiff being proved, the District court was of opinion that the plaintiff was bound by the interpretation put upon the grant by the orginal grantee and those claiming under him. We concur in this view of the law, and are of opinion that the plaintiff is es-topped, by the very sale under which he holds, from alleging that the direction of the side lines, as they are represented in Lafon’s survey, are not in accordance with the original grant. On the trial of the cause, the plaintiff offered practical surveyors to prove: 1st. How the concession under which he claims was to be laid down upon the ground. 2d. Whether the calls in that concession were so definite that a competent surveyor could not fail to lay it down correctly. 3d. Whether it is laid down correctly in the plan made by Phelps; and, if not, how it should be laid down.The court, on the defendant’s objection, refused to allow those questions to be put, considering that they were matters of law to be determined by the court on the title papers in evidence. The plaintiff took a bill of exceptions. The District court did not err, in refusing to permit those questions to be unanswered by the witnesses. The answers would have-decided the controversy, which the court alone had power to determine. Bowman Flower, 7 La. 111. Judgment affirmed.