State v. Aucoin ( 1944 )

The state of Louisiana, claiming title to the bed of Lake Long, instituted this action in boundary against Octave Aucoin, the owner of fractional Sections 56, 65, and 66 in Township 17 South, Range 19 East, in the Southeastern land district of Louisiana, west of the Mississippi river, to have the boundary line between the two properties fixed as shown by the official plat of survey of Township 17 approved by the Surveyor General of Louisiana in 1857, now on file in the State Land Office.

Admitting that he is the owner of Sections 56, 65, and 66, the defendant, in his answer, denied the state is the owner of any land adjacent or contiguous thereto, contending his title extends into the bed of the lake to the full 640 acres in each section and is not merely to the fractional portions thereof on the banks. In the alternative he pleaded he has acquired these sections in full through the prescription of 10 and 30 years acquirendi causa; and, in the further alternative, that such lands as he did not acquire by the conveyance of these lands he has acquired by accretion or reliction.

The state's position, as shown in its answer to interrogatories on facts and articles, is that it became the owner of the officially surveyed tracts adjacent to Lake Long and divided therefrom by a line of delineation when these tracts were certified, as thus surveyed, to the state by the Secretary of the Interior in 1877, under the Congressional Act of March 2, 1849, 9 Stat. 352, the lake proper being excluded entirely from such survey and certification because of the state's then vested ownership thereof by virtue of its navigability at the time Louisiana was admitted into the Union in 1812, which ownership it has never alienated.

There was judgment in the lower court recognizing the state to be the owner of the bed of Lake Long and the defendant to be the owner of the three fractional sections claimed by him; decreeing that the boundary line between them is that fixed by the Surveyor General of Louisiana in the official plat executed in 1857 and now on file in the State Land Office; ordering that the monuments and markers lost or obliterated establishing such boundary be replaced; and appointing Harry Shutts, a registered and licensed surveyor of this state, to so locate and preliminarily monument such boundary. Subsequently, the court renderer another judgment approving and homologating the process verbal of the survey filed by Shutts in pursuance to the former judgment and ordering Shutts to permanently locate and monument the line as thus homologated as the boundary between the properties of the plaintiff and the defendant. The defendant is appealing from both of these judgments.

It appears that Joseph Gorlinski resurveyed Township 17 South, Range 19 East, of the Southeastern land district of Louisiana, to the west of the Mississippi river, pursuant to a contract of October 19, 1854, and from the field notes of his survey (as shown by the certificate of approval thereon of Wm. J. McCulloh, Surveyor General of Louisiana, dated September 21, 1857), an official plat of this township was made. Subsequently, on April 10, 1877, upon proper application, the general land office of the Department of the Interior, through its secretary, certified to the state of Louisiana, as swamp and overflowed lands, along with other lands of a similar nature, the three fractional sections now owned by the defendant, which, as reflected by a copy of the official plat of that township drawn from Gorlinski's field notes and reproduced below, are contiguous and, together, form a tract triangular in shape, bounded on one side by the lines meandered by Gorlinski as the south and western boundary of Lake Long.

[EDITORS' NOTE: FIGURE IS ELECTRONICALLY NON-TRANSFERRABLE.]

The defendant deraigns his title to these fractional sections from the state of Louisiana. By its act No. 97 of the General Assembly for the year 1890, the state created the Atchafalaya Basin Levee District, establishing a comprehensive levee system within that district, and, in order that additional means might be provided for carrying out the purposes of the act, donated to the district thus createdall of the lands embraced within its limits then belonging to or that might thereafter be acquired by the state. All of the property in Township 17 admittedly falls within the confines of this district, and, on July 9, 1900, its board of commissioners agreed to sell all of the lands thus acquired to Wisner and Dresser for a consideration of $120,000. In this contract to sell was contained the provision that the board would transfer title to the property to any one designated by the vendees. Accordingly, on December 14, 1900, the board executed a deed transferring 119,037.73 acres, including the fractional sections now owned by Aucoin, to George C. Metzger, and he, on the 20th of the same month, transferred 100,011.21 acres thereof (including the Aucoin property) to the Terrebonne Land Company, Limited, of New Orleans, Louisiana. It was from that company and one of its subsidiaries, the South Louisiana Land Company, Limited, that Aucoin, on February 10, 1910, for a consideration of $7,768.80 acquired all of these three fractional sections (together with other property) except the NW1/4 of the SW1/4 and the S1/2 of the SW1/4 of Section 66.

The Revised Civil Code expressly gives to all owners of contiguous estates the right to compel their neighbors to fix and establish the limits of their respective properties when these boundaries have never been determined, or, although once fixed, have been obliterated. Articles 663, 823-855. See, also, Opendenwyer v. Brown, 155 La. 617, 99 So. 482; Villasana v. Stiebing, 161 La. 91, 108 So. 136; Cragin v. Powell,128 U.S. 691, 9 S. Ct. 203, 32 L. Ed. 566.

In the instant case, because the defendant deraigns his title from the plaintiff, it becomes necessary to determine first the limits to which his estate extends in order that the boundary between the property alleged to be owned by the plaintiff and that owned by the defendant can be fixed. In other words, title determines boundary, not boundary the title.

As pointed out above, a reference to the official plat of Township 17 as made from Gorlinski's field notes, discloses that fractional Sections 56, 65, and 66 are bounded on one side by the series of straight, connected lines meandered by Gorlinski as the south and western boundary of Lake Long. As a general rule, meander lines in governmental surveys disregard the minor sinuosities of the shore, marking, instead, the general contour of the body of water thus meandered. For this reason the lines are usually some distance back from the water's edge and "whenever the government plat shows a subdivision to be bounded by meandered water, unless there is a clear intention to thecontrary, it is the water itself, and not the meander line, which forms the boundary; the latter merely marks the limit of the acreage of which the government took cognizance in its disposition of the tract," constituting the abutting owner a riparian proprietor vested with all of the rights appertaining thereto by extending his title "to the water's edge, and thus include the unmeasured strips which usually exist between it and the meander line." Section 66, Patton on Titles. This is so overwhelmingly the rule in both the state and federal courts that the authorities sustaining it are endless. Schurmeier v. St. Paul P. R. Co., 10 Minn. 82, 10 Gilmer 59, 88 Am.Dec. 59, affirmed by the U.S. Supreme Court at 7 Wall. 272, 19 L. Ed. 74. Hardin v. Jordan, 140 U.S. 371, 11 S. Ct. 808, 838, 35 L. Ed. 428; Mitchell v. Smale, 140 U.S. 406, 11 S. Ct. 819, 840, 35 L. Ed. 442; United States v. Lane,260 U.S. 662, 43 S. Ct. 236, 67 L. Ed. 448; United States v. Otley, 9 Cir.,127 F.2d 988; Johnson v. Hurst, 10 Idaho 308, 77 P. 784; Ulbright v. Baslington, 20 Idaho 539, 119 P. 292, 294; Olson v. Thorndike, 76 Minn. 399, 79 N.W. 399; Reno Brewing Co. v. Packard, 31 Nev. 433, 103 P. 415, affirmed at 104 P. 801; Lamprey v. State, 52 Minn. 181, 53 N.W. 1139, 18 L.R.A. 670, 38 Am. St. Rep. 541; Lattig v. Scott, 17 Idaho 506, 107 P. 47; Gardner v. Green, 67 N.D. 268, 271 N.W. 775; Knudsen v. Omanson,10 Utah 124, 37 P. 250; Schlosser v. Crookshank, 96 Iowa 414, 65 N.W. 344; Heald v. Yumisko, 7 N.D. 422, 75 N.W. 806; Sherwin v. Bitzer, 97 Minn. 252, 106 N.W. 1046; Tucker v. Kruse, 126 Minn. 214, 148 N.W. 60; Stoner v. Rice, 121 Ind. 51, 22 N.E. 968, 6 L.R.A. 387; Everson v. City of Waseca, 44 Minn. 247, 46 N.W. 405; Ladd v. Osborne, 79 Iowa 93, 44 N.W. 235; Foss v. Johnstone, 158 Cal. 119, 110 P. 294; Kraut v. Crawford, 18 Iowa 549, 87 Am.Dec. 414; Sizor v. Logansport, 151 Ind. 626, 50 N.E. 377, 44 L.R.A. 814; Jefferis v. East Omaha Land Co.,134 U.S. 178, 10 S. Ct. 518, 33 L. Ed. 872; Hanson v. Rice, 88 Minn. 273, 92 N.W. 982; Provins v. Lovi, 6 Okla. 94, 50 P. 81; Johnson v. Tomlinson, 41 Or. 198, 68 P. 406; State ex rel. Davis v. Superior Court for Cowlitz County, 84 Wash. 252, 146 P. 609; Kean v. Calumet Canal I. Co., 190 U.S. 452, 23 S.Ct. 651, 47 L. Ed. 1134; Barringer v. Davis, 141 Iowa 419, 120 N.W. 65; State v. Livingston, 164 Iowa 31, 145 N.W. 91; and Producers' Oil Co. v. Hanzen, 238 U.S. 325, 35 S. Ct. 755, 59 L. Ed. 1330, affirming 132 La. 691, 61 So. 754. "The rule, that the water itself rather than the meander line is the boundary, has been adhered to even in extreme cases, in which the strip between the line and the shore reached an area explainable only by a gross error in the survey." Section 66, Patton on Titles.

However, as has been very aptly pointed out in 8 Am.Jur. 752, Section 11, "There is much apparent confusion and uncertainty as to the proper location of boundaries of land bordering on waters and water courses arising in a large measure from conflicting views as to the ownership, as between the state and the individual, of the land between the high and low watercourse.This question of ownership as between the individual and thesovereign or the state may turn upon whether the waters aretidal or nontidal, and if they are nontidal, whether they are infact navigable. The doctrines of accretion and avulsion also have a direct bearing on the location, and the shifting of the location, of boundaries on watercourses and bodies of water." And in that same authority, in Section 14, under the heading "Inland Lakes and Natural Ponds," it is pointed out that "the determination of the boundary line of land bordering on inland lakes and natural ponds depends to a considerable extent upon the question of ownership of the bed of the lake or pond as between the public and the private owners of the upland, which in turn may be dependent upon whether the waters are navigable or non-navigable. In this country * * * according to the generallyaccepted doctrine, the boundries of owners of land abuttingupon the navigable lakes extend only to the low watermark (under the jurisprudence of Louisiana it is the high watermark, see Sapp v. Frazier, 51 La.Ann. 1718, 26 So. 378 [72 Am. St. Rep. 493]; State v. Bayou Johnson Oyster Co., 130 La. 604, 58 So. 405; State v. Capdeville, 146 La. 94, 83 So. 421; State v. Bozeman, 156 La. 635, 101 So. 4; State v. Jefferson Island Salt Mining Co., 183 La. 304, 163 So. 145; and Miami Corporation v. State, 186 La. 784, 173 So. 315), the title to the bed of thelake being in the state, while the bed of a non-navigable lakeor natural pond is generally deemed to be property of theadjoining landowners. When the bed of an inland water is subject to private ownership, the question whether the title to any part thereof passes by a conveyance of lands bordering upon the water depends upon the intention of the parties as manifested in the words of conveyance. There is, however, a very strong presumption that the grantor intends to convey all the land he owns under the water," which may be "negatived by express words or by other words of description which clearly excludes the lake bed from the land conveyed." (Brackets and italics mine.)

It is apparent, therefore, that the first important question to be determined is whether or not Lake Long was navigable when Louisiana was admitted into the Union in 1812; if it was, title to the bed thereof vested in the state at that time by virtue of her sovereignty. Sapp v. Frazier, 51 La.Ann. 1718, 26 So. 378, 72 Am. St. Rep. 493; Hall v. Board of Com'rs of Bossier Levee Dist.,111 La. 913, 35 So. 976; State v. Bayou Johnson Oyster Co.,130 La. 604, 58 So. 405; Perry v. Board of Commissioners,132 La. 415, 422, 61 So. 511; State v. Richardson, 140 La. 329, 72 So. 984; State v. Capdeville, 146 La. 94, 83 So. 421; State v. Bozeman, 156 La. 635, 101 So. 4; Smith v. Dixie Oil Company,156 La. 691, 101 So. 24; State v. Jefferson Island Salt Mining Company, 183 La. 304, 163 So. 145, certiorari denied297 U.S. 716, 56 S. Ct. 591, 80 L. Ed. 1001; Miami Corporation v. State,186 La. 784, 173 So. 315, certiorari denied by the United States Supreme Court 302 U.S. 700, 58 S. Ct. 19, 82 L.Ed 541; Shively v. Bowlby, 152 U.S. 1, 14 S. Ct. 548, 38 L. Ed. 331; Scott v. Lattig,227 U.S. 229, 33 S. Ct. 242, 57 L. Ed. 490, 44 L.R.A., N.S., 107; State of Oklahoma v. Texas, 258 U.S. 574, 42 S. Ct. 406, 66 L.Ed 771; United States v. Utah, 283 U.S. 64, 51 S. Ct. 438, 75 L.Ed 844; Barney v. City of Keokuk, 94 U.S. 324, 24 L. Ed. 224; Hardin v. Jordan, 140 U.S. 371, 11 S. Ct. 808, 838, 35 L. Ed. 428; Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565; Coyle v. Smith,221 U.S. 559, 573, 31 S. Ct. 688, 55 L. Ed. 853; Packer v. Bird,137 U.S. 661, 666, 11 S. Ct. 210, 34 L. Ed. 819; St. Anthony Falls Water-Power Co. v. Board of Water Com'rs, 168 U.S. 349, 361, 18 S. Ct. 157, 42 L. Ed. 497; Broward v. Mabry, 58 Fla. 398, 50 So. 826; and L.R.A. 1916C, 150.

The rule laid down by the Supreme Court of the United States, and followed in this state, is that streams, lakes, and other bodies of water that are navigable in fact are navigable in law, and, to be navigable in fact, it is necessary that they either be used or be susceptible of being used "in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." The Daniel Ball (The Daniel Ball v. United States), 10 Wall. 557, 563, 19 L. Ed. 999. See, also, Boykin Lang v. Shaffer, 13 La.Ann. 129; McCearley v. Lemennier, 40 La.Ann. 253, 3 So. 649; Egan v. Hart, 45 La.Ann. 1358, 14 So. 244; Burns v. Crescent Gun Rod Club,116 La. 1038, 41 So. 249; Delta Duck Club v. Barrios, 135 La. 357, 65 So. 489; State v. Capdeville, 146 La. 94, 83 So. 421; Amite Gravel Sand Co. v. Roseland Gravel Co., 148 La. 704, 87 So. 718; State v. Sweet Lake Land Oil Co., 164 La. 240,113 So. 833; State v. Jefferson Island Salt Mining Co., 183 La. 304,163 So. 145; Leovy v. United States, 177 U.S. 621, 20 S. Ct. 797, 44 L. Ed. 914; Harrison v. Fite, 8 Cir., 148 F. 781, 78 C.C.A. 447; Woodman v. Pitman, 79 Me. 456, 10 A. 321, 1 Am. St. Rep. 342; Hodges v. Williams, 95 N.C. 331, 59 Am.Rep. 242; Haines v. Hall, 17 Or. 165, 175, 20 P. 831, 3 L.R.A. 609; Hurst v. Dana,86 Kan. 947, 122 P. 1041, 1042; Webster v. Harris, 111 Tenn. 668, 69 S.W. 782, 59 L.R.A. 324; Willow River Club v. Wade,100 Wis. 86, 76 N.W. 273, 42 L.R.A. 305; The Montello (United States v. the Montello), 87 U.S. 430, 22 L. Ed. 391; State of Oklahoma v. Texas, 258 U.S. 574, 42 S. Ct. 406, 66 L. Ed. 771; Bodcaw Lumber Co. v. Kendall, 161 La. 337, 108 So. 664; Brewer-Elliott Oil Gas Co. v. United States, 260 U.S. 77, 43 S. Ct. 60, 67 L. Ed. 140; Perry v. Haines, 191 U.S. 17, 24 S. Ct. 8, 48 L.Ed. 73; United States v. Utah, 283 U.S. 64, 51 S. Ct. 438, 75 L. Ed. 844; United States v. Holt State Bank, 270 U.S. 49, 46 S. Ct. 197, 70 L. Ed. 465; and United States v. Oregon, 295 U.S. 1, 55 S. Ct. 610, 79 L. Ed. 1267.

It is impossible to lay down a hard and fast rule under which navigability can be tested. The question is purely one of fact, dependent upon the evidence in each case (State v. Capdeville,146 La. 94, 83 So. 421; Broward v. Mabry, 58 Fla. 398, 50 So. 826; Burns v. Crescent Gun Rod Club, 116 La. 1038, 41 So. 249; United States v. Utah, 283 U.S. 64, 51 S. Ct. 438, 75 L. Ed. 844; United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S. Ct. 291, 85 L. Ed. 243; State of Arizona v. California,283 U.S. 795, 51 S. Ct. 18, 75 L. Ed. 717; United States v. Ladley, D.C., 42 F.2d 474; Atchafalaya Land Co. v. James, 146 La. 109, 83 So. 426; Caddo Levee District v. Glassel, 120 La. 400, 45 So. 370; Proctor v. Sim, 134 Wash. 606, 236 P. 114; Smith v. State,184 Wash. 58, 50 P.2d 32; Lefevre v. Washington Monument Cut Stone Co., 195 Wash. 537, 81 P.2d 819; Strand v. State,16 Wash. 2d 107, 132 P.2d 1011; City of Havre de Grace v. Harlow,129 Md. 265, 98 A. 852; American River Water Co. v. Amsden,6 Cal. 443; 29 Cyc. 293; and Ewell v. Lambert, 177 Va. 222,13 S.E.2d 333) and the state, having made the assertion in this case, has the burden of proving, by evidence that is both clear and convincing, that Lake Long was navigable in 1812. Burns v. Crescent Gun Rod Club, 116 La. 1038, 41 So. 249; McCluskey v. Meraux Nunez, La.App., 186 So. 117, 119; Rhodes v. Otis,33 Ala. 578, 73 Am.Dec. 439; Jones v. Johnson, 6 Tex. Civ. App. 262, 25 S.W. 650; McKinney v. Northcutt, 114 Mo.App. 146, 89 S.W. 351; Olive v. State,86 Ala. 88, 5 So. 653, 4 L.R.A. 33; Morrison v. Coleman, 87 Ala. 655, 6 So. 374, 5 L.R.A. 384; Harrison v. Fite, 8 Cir., 148 F. 781, 78 C.C.A. 447; Mintzer v. North American Dredging Co., D.C., 242 F. 553, affirmed at 9 Cir., 245 F. 297; Burner v. Nutter, 77 W. Va. 256, 87 S.E. 359; and 45 C.J. 418, § 18.

My appreciation of the evidence in the record is that the state has failed to establish the navigability of Lake Long. I think the evidence not only shows this lake was not navigable in 1812, but that it has never been navigable at any time within the recorded or existing memory of man. Equally applicable in this case is the statement to be found in the case of State v. Sweet Lake Land Oil Co., 164 La. 240, 113 So. 833, 836, that"The lake was never useful or available for navigation orcommerce, or of any more importance to the public at any time inthe memory of man than it is today." (Italics mine.)

The state sought by various maps, books, documents, and other detailed scientific evidence, to show that Lake Long was in existence and navigable at the time Louisiana became a state, and while this evidence unquestionably establishes the existence of the lake at that time, it is totally lacking in proof of the lake's navigability.

"To meet the test of navigability as understood in the American law a water course should be susceptible of use for purposes of commerce or possess a capacity for valuable flotage in the transportation to market of the products of the country through which it runs.It should be of practical usefulness to the public as a publichighway in its natural state and without the aid of artificialmeans. A theoretical or potential navigability, or one that istemporary, precarious, and unprofitable, is not sufficient. While the navigable quality of a water course need not be continuous, yet it should continue long enough to be useful and valuable in transportation; and the fluctuations should come regularly with the seasons, so that the period of navigability may be depended upon. Mere depth of water, without profitable utility, will not render a water course navigable in the legalsense, so as to subject it to public servitude, nor will the fact that it is sufficient for pleasure boating or to enable hunters or fishermen to float their skiffs or canoes. To be navigable a water course must have a useful capacity as a public highway of transportation." Harrison v. Fite, 8 Cir., 148 F. 781, 783, 78 C.C.A. 447. This rule has been tersely stated in Wethersfield v. Humphrey, 20 Conn. 218, thusly: For a stream to be navigable, "there must be some commerce and navigation which is essentially valuable," and in Taylor Fishing Club v. Hammett, Tex.Civ.App., 88 S.W.2d 127, 129, thusly: "It must either alone or in connection with other bodies of water connect points between which it is practical to transport commerce by water." (Italics mine.)

This test was somewhat modified in the case of the United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S. Ct. 291, 300, 85 L. Ed. 243, where the court stated that "for the purpose of the regulation of commerce," navigability, by reason of artificial aids, may arise later than the formation of the Union or the admission of the states, but the court carefully pointed out that "navigability to fix ownership of the river bed or riparian rights is determined" as of the time the states were admitted into the union, in which case, the test laid down in the Fite case is applicable.

There seems to be no doubt that Lake Long was, at one time, a large body of fresh impounded water, having a depth that varied from a few inches to five feet above the waters of Bayous Lafourche and Terrebonne, the water therein levelling with and losing itself in the surrounding swamps and lowlands. The Gorlinski survey discloses that the lake, in addition to being surrounded by "cypress swamps" and "impassable prairie," had no inlet, no outlet, and no natural channel of accessibility. It is true that in 1830, 18 years after Louisiana was admitted into the Union, there was constructed, between Bayous Lafourche and Terrebonne, a canal that cut across the northern end of Lakes Long and Field, and while there is some testimony in the record tending to show that this canal was navigated by barges (the Intercoastal Canal, more recently constructed, follows this same course), there is also evidence to show that this canal was not only not in existence when Louisiana became a state in 1812, but that the lake proper, even after the construction of the canal, was not then and has never at any time within the memory of man been a highway for commerce. In fact, the construction of these canals has only served to reduce the lake from the large body of fresh water, with the appreciable depth accredited to it prior to this activity, to a shallow and much smaller body of water that is now almost completely clogged with water lilies, some portions of its bed, because of the reclamation of this area, being under cultivation. Other portions of the bed of Lake Long are presently used for pasturage, and a house, constructed on a ridge forming a part of the lands in controversy, is now occupied by a son of the defendant.

The witnesses are unanimous in their assertion that Lake Long has never been actually navigated. The testimony of the oldest inhabitants in this section is to the effect that the pirogues and canoes used by persons hunting, fishing, and trapping in the vicinity are the only boats that have ever been floated on the lake, and that these, on numerous occasions, not only bogged in the mud, but had to be dragged through the slush. This court, as well as the Supreme Court of the United States, has repeatedly held that such use of a body of water does not establish its navigability. Burns v. Crescent Gun Rod Club, 116 La. 1038, 41 So. 249; Delta Duck Club v. Barrios, 135 La. 357, 65 So. 489; State v. Sweet Lake Land Oil Co., 164 La. 240, 113 So. 833; Leovy v. United States, 177 U.S. 621, 20 S. Ct. 797, 44 L. Ed. 914; United States v. Oregon, 295 U.S. 1, 55 S. Ct. 610, 79 L. Ed. 1267; United States v. Rio Grande Dam Irrig. Co.,174 U.S. 690, 698, 19 S. Ct. 770, 43 L. Ed. 1136, 1139; The Montello, 20 Wall. 430, 22 L. Ed. 391; Harrison v. Fite, 8 Cir., 148 F. 781, 78 C.C.A. 447; North American Dredging Co. v. Mintzer, 9 Cir., 245 F. 297; Toledo Liberal Shooting Co. v. Erie Shooting Club, 6 Cir., 90 F. 680, 682; United States v. Otley, 9 Cir., 127 F.2d 988; and Rowe v. Granite Bridge Corporation, 21 Pick., Mass., 344.

Since Lake Long is not now and was never in fact navigable, the doctrine universally prevailing in both the common and civil law countries, including this state, that the bed of a non-navigable body of water is deemed to be the property of the adjoining landowners to the center thread thereof, unless a contrary intention is evident in the deed, patent, or grant under which the lands were conveyed, must prevail. Palmer Co. v. Wilkinson,141 La. 874, 75 So. 806; Amite Gravel Sand Co. v. Roseland Gravel Co., 148 La. 704, 87 So. 718; Wemple v. Eastham,150 La. 247, 90 So. 637; Bodcaw Lumber Co. v. Kendall, 161 La. 337,108 So. 664; Forsyth v. Smale, Fed.Cas.No. 4,950, 7 Biss. 201; Schurmeier v. St. Paul P. R. Co., 10 Minn. 82, 10 Gilmer 59, 88 Am.Dec. 59, affirmed by the United States Supreme Court at 7 Wall. 272, 19 L. Ed. 74; Banks v. Ogden, 69 U.S. 57, 2 Wall. 57, 17 L. Ed. 818; Hardin v. Jordan, 140 U.S. 371, 11 S. Ct. 808, 838, 35 L. Ed. 428; Lamprey v. State, 52 Minn. 181, 53 N.W. 1139, 18 L.R.A. 670, 38 Am. St. Rep. 541; State v. Superior Court, 84 Wash. 252, 146 P. 609; Chandos v. Mack, 77 Wis. 573, 46 N.W. 803, 10 L.R.A. 207, 20 Am. St. Rep. 139, and authorities in the annotation found there; Sherwin v. Bitzer, 97 Minn. 252, 106 N.W. 1046; Sizor v. Logansport, 151 Ind. 626, 50 N.E. 377, 44 L.R.A. 814; Welch v. Browning, 115 Iowa 690, 87 N.W. 430; Hanson v. Rice, 88 Minn. 273, 92 N.W. 982; Castle v. Elder, 57 Minn. 289, 59 N.W. 197; Shell v. Matteson, 81 Minn. 38, 83 N.W. 491; Kirkpatrick v. Yates Ice Co., 45 Mo.App. 335; In re Tucker, 126 Minn. 214, 148 N.W. 60; Wood v. Appal, 63 Pa. 210; Beckman v. Kreamer, 43 Ill. 447, 92 Am.Dec. 146; June v. Purcell, 36 Ohio St. 396; Hinckley v. Peay, 22 Utah 21, 60 P. 1012; Foss v. Johnstone, 158 Cal. 119, 110 P. 294; Lattig v. Scott, 17 Idaho 506, 107 P. 47, reversed on other grounds at227 U.S. 229, 33 S. Ct. 242, 57 L. Ed. 490, 44 L.R.A., N.S., 107; Stoner v. Rice, 121 Ind. 51, 22 N.E. 968, 6 L.R.A. 387; Sections 81 and 82 of Patton on Titles; 45 C.J. 536, § 207; 5 Cyc. 897; Packer v. Bird, 137 U.S. 661, 11 S. Ct. 210, 34 L. Ed. 819; Johnson v. Johnson, 14 Idaho 561, 95 P. 499, 24 L.R.A., N.S., 1240; and Middleton v. Pritchard, 3 Scam. 510, 4 Ill. 510, 38 Am.Dec. 112.

In other words, the owner of land adjoining a meander line that is not clearly the boundary of his property is, under all of the authorities, a riparian proprietor, since his title extends to and embraces all of the land lying between such meander line and the water's edge, and, as such, he is vested with all of the valuable property rights arising from the upland's connection with the water. Consequently, since under the jurisprudence of this state, the title of a riparian proprietor on a non-navigable stream extends into the bed to the center thread thereof, that thread is the boundary of his property, and it matters not that the waters, for reasons artificial or natural, advance or recede. He is entitled to follow this shifting water line to such boundary. "The incalculable mischiefs that would follow if a riparian owner is liable to be cut off from access to the water, and another owner sandwiched in between him and it, whenever the water line had been changed by accretions or relictions, are self-evident, and have been frequently animadverted on by the courts. These considerations certainly apply to riparian ownership on lakes as well as on streams. * * * The owners of lands bordering on them have often bought with reference to access to the water, which usually constitutes an important element in the value and desirability of the land." Any other rule "* * * would simply open the door for prowling speculators to step in and acquire title from the state to any relictions produced in the course of time by the recession of the water, and thus deprive the owner of the original shore estate of all riparian rights, including that of access to the water. The endless litigation over the location of the original water lines, and the grievous practical injustice to the owner of the original riparian estate, that would follow, would, of themselves, be a sufficient reason for refusing to adopt any such doctrine." Lamprey v. State, 52 Minn. 181, 53 N.W. 1139, 1142, 18 L.R.A. 670, 38 Am. St. Rep. 541.

As Chief Justice Monroe expressed it in the case of Palmer Co. v. Wilkinson, 141 La. 874, 75 So. 806, 810, "* * * where, as is the case in Southern Louisiana, all the lands are traversed by bayous, large and small creeks, coulees, and sloughs, which in some instances are wholly within the bounds of single plantations and in others border or pass through many plantations, the proposition that in selling the lands the state retained title to the beds of such streams, and may introduce a new vendee, or a lessee, into a planter's front yard, or stable lot, * * * is startling and disturbing, to say the least of it. * * * Rural estates have always been bought andsold here with reference to the streams that furnish their water supply, and to the law which declares that he whose estateborders on running water, or through whose estate water runs,may use it as it runs (C.C. art. 661), and that the accretionsformed successively and imperceptibly to the soil situated onthe edge of a river or stream, whether navigable or not, belongto the owner of the soil (C.C. art. 509), and those provisionshave been read into the titles to all the lands bordering uponall the streams, and through which streams have run, in thisterritory, since and before the state was created, and havevested in the owners of such lands the rights to which theyrefer." (Italics mine.)

The Lamprey case is recognized as a landmark decision on this subject and the Supreme Court of Utah, in the case of Knudsen v. Omanson, 10 Utah 124, 37 P. 250, 251, quoting the above reasoning with approval, said: "* * * whatever the foundation, the rule itself is too firmly fixed by both reason and authority to admit of successful controversy, and it is a rule both just and salutary." To this we might add that it appears to us this rule has not only withstood the test of time, but also all onslaughts levelled against it throughout the existence of the Roman, civil, and common law. Necessarily, therefore, it has the presumption of common sense behind it. Definitely, no other rule will determine with certainty just how far title to land bordering on nonnavigable streams extends or where it ends.

Counsel for the state apparently concede the law to be as above stated, but they contend the Gorlinski meander line wasintended to be the outer or northern boundary of the defendant's property, arguing, in support thereof, (1) that the survey does not show the contour of the lake, but, rather, a series of straight lines running at designated angles as the surveyed line; (2) that the field notes do not call for a body of water as the boundary; and (3) that the difference in the acreage between the high banks and that within the Gorlinski line is so great that "there is no rule of reason, logic, honesty or law by which Aucoin" would get more land than was intended to be sold or was supposed to be purchased or was actually paid for, citing, as authority, the cases of Security Land Exploration Co. v. Burns, 87 Minn. 97, 91 N.W. 304, 63 L.R.A. 157, 94 Am. St. Rep. 684, affirmed by the United States Supreme Court at193 U.S. 167, 24 S. Ct. 425, 48 L. Ed. 662; French-Glenn Live Stock Co. v. Springer, 185 U.S. 47, 22 S. Ct. 563, 46 L. Ed. 800; and Land v. Brockett, 162 La. 519, 110 So. 740.

The rules of law enunciated in these three cases clearly have no application to the facts of this case as we find them to be. In the Security Land Exploration Co. case, the court found, as a fact, and pointed out, that while the surveyor who had been employed to survey Township 57 in St. Louis county, Minnesota, did run and mark the exterior lines of the township, with the exception of the south line, which had been previously surveyed, "He made no survey of the interior of the township,and no section lines therein were ever run by him, and nosection or quarter-section corners were ever located or markedby him * * * and none of the streams or permanent lakes, ofwhich there were several in the township, were meandered byhim. He, however, made, and filed with the United States surveyor general of the state of Minnesota, what purported to be field notes of a survey of the township, purporting to give the length and directions of all interior section lines therein, the location of all section and quarter-section posts and the bearing trees thereof, the character of the soil and timber, and all other data and information required, by the statutes of the United States and the rules of the general land office, to be ascertained and reported by deputy surveyors in due course of making surveys of public lands. With the exception of the description of the survey of the three exterior boundary lines of the township actually run by him, the field notes returned byhim were imaginary and fictitious, and were, in fact, false anderroneous." The result of such fictitious survey was that the government was cheated and defrauded of "at least 1,000 acresof high, tillable land, which has never been a part of the lake,and which was and is heavily timbered with trees of more than acentury's growth, and growing down to the water's edge." This high, tillable land existed between the imaginary meander line of the falsified survey and the water's edge proper. Under these circumstances, the court concluded that "The official plat was only intended to be a picture of the actual conditions on the ground; but the fraudulent mistake in the plat in this case was so gross that no man actually viewing the premises could possibly be misled, or believe that the shore line of the lake was intended as the boundary line of the lots." (Italics mine.)

The French-Glenn Live Stock Company case presents a somewhat similar situation. The jury in the lower court had found, as a matter of fact, that no lake actually fronted the fractional sections or lots purported to abut thereon, and the Supreme Court of the United States, refusing to disturb these findings, which were so amply supported by the evidence in the record, said [185 U.S. 47, 22 S. Ct. 566, 46 L. Ed. 800]: "* * * we think that, while the plats are conclusive as to the meander line, and while if there was a lake abutting on or to the north of the lots, the plaintiff in error would take all land between the meander line and the water, and all accretions, it was competentfor the defendant to show that there was not, at the time of thesurvey nor since, any such lake, and to contend that, in such astate of facts, there could be no intervening land and noaccretion by reliction." (Italics mine.)

In the Land case [162 La. 519, 110 So. 741], the court pointed out that "The land in contest is a part of the upland areas that were omitted from the Warren survey (made in 1838) * * *. It is above the 172-foot contour line established by the United States government as the mean high-water level in 1812. The land was therefore notin the bed of the lake when Warren made his survey." The court also found that there was no explainable reason for the omission of this area from the survey, since it appeared from the field notes the acreage omitted formed a peninsular tract ofhighland heavily timbered with oak, gum, hickory, and pine trees, and that what had actually happened had been that the survey had cut across the base of this peninsular instead oftraversing the lake shore around it. Under these circumstances the court concluded that the government had obviously had no intention of conveying such land to the patentee of the fractional section. (Italics and brackets mine.)

There can be no doubt that the government's grant of the land in controversy to the state, its conveyance by the state to the levee board, and the levee board's sale thereof to defendant's ancestors in title was with reference to the official plat of the Gorlinski survey. A mere glance at this plat will disclose that there is nothing thereon to distinguish the meander line from the shore line. The necessary inference, since it is to be presumed the government surveyor did his duty and marked the lake as it existed at the time of the survey, is that the meander line as thus established coincided with the shore line of Lake Long, or so nearly so that they were mapped as one. See Barringer v. Davis, 141 Iowa 419, 120 N.W. 65; Sherwin v. Bitzer, 97 Minn. 252, 106 N.W. 1046; and Gardner v. Green,67 N.D. 268, 271 N.W. 775.

I think the evidence clearly establishes the fact that Gorlinski surveyed the lake as he found it to be and meandered it according to the conditions at that time. This is borne out by his field notes, for he states that after meandering Lake Field, adjacent to Lake Long and lying in approximately the same direction, he then proceeded through open prairie swamp and set up a post on the "North edge of Lake Long," proceeding from thence "with Traverse of Lake Long down and around," crossing the mouth of the company canal (traversing the lake at its northern end), the mouth of Bayou Aquillar (entering the lake at the extreme southern or lower end), establishing a post at Palmetto Camp "on the bank of the lake," and proceeding from there to the "place of beginning." The plat, made from these approved field notes, does not disclose any difference between the meander line and the water's edge. Nor does it show anyhigh or upland beyond the meander line. (Italics mine.)

With this plat before it, the federal government certified to the state all of the lands in Township 17 that were swamp or overflowed lands, not, at that time privately owned. The state, in turn, conveyed all such land to the levee board and the levee board sold all of this land to defendant's ancestors in title. In none of these transfers is the conveyance by lot number or bythe acreage therein. The state gave this land to the levee board created for the specific purpose of building levees to protect the land from overflow and to reclaim such overflowed land, and the levee board, in disposing of it for the purpose of securing the funds with which to carry out this reclamation, sold all of it "lock, stock, and barrel," to Wisner and Dresser for the flat sum of $120,000. As counsel for the state so aptly puts it in his answer to the defendant's plea of prescription, "Aucoin gotwhatever the Levee Board got. The Levee Board got whatever theState transferred to it. If the transfer from the State includedwhat Aucoin now claims, he has it without prescription."

A mere reading of the acts of conveyance and the grants will disclose that no reservations of any kind whatsoever were made in any of these transactions by the federal government, the state, or the levee board.

In a somewhat similar case, Justice Holmes of the United States Supreme Court made the following pertinent statement: "* * * the land was selected as ``swamp and overflowed lands' by the state.It not appearing otherwise, the selection must be presumed to have included the land overflowed, and if so it was confirmed to the state by the act of March 3, 1857, chap. 117 (11 Stat. at L. 251, Rev.Stat. § 2484, U.S.Comp.Stat. 1901, p. 1588 [43 U.S.C.A. § 986]). * * * The land surrounding the water, at least, was surveyed, so that the identification of the submerged portion was absolute. We are of opinion that the state ofIndiana got a title to the whole land in dispute. If the stateof Indiana got a title, it gave one. There is not much controversy on this point." Kean v. Calumet Canal Irrig. Co.,190 U.S. 452, 23 S. Ct. 651, 652, 47 L. Ed. 1134. See, also, State v. Livingston, 164 Iowa 31, 145 N.W. 91; and Barringer v. Davis, 141 Iowa 419, 120 N.W. 65. (Italics mine.)

There is nothing in the record to indicate any affirmative intention on the part of the state to limit its grant of land in Township 17 to the levee board or an intention on the part of the levee board to limit its conveyance of this land to defendant's ancestors in title to the meander line, as a mere reference to either of these written instruments or Gorlinski's field notes and the plat drawn therefrom will disclose. There is nothing in the record to indicate fraud on the part of any one, and, as pointed out previously, there is nothing on the plat itself to show that the meander line run by Gorlinski did not in fact coincide with the sinuosities of the lake or its contour lines as they existed at the time of the survey. As a matter of fact, the state introduced, as its exhibit P-34, a "directo" print of a "Plan of the entire valley situated between Bayous Lafourche and Terrebonne," which had been offered in evidence in the case of Parish of Lafourche v. Parish of Terrebonne, 34 La.Ann. 1230, decided in 1882, for the specific purpose of having one of defendant's witnesses admit, under cross-examination, that Lake Long, at that time was "in the same shape, and having (had) the same configuration or substantially the same shape and configuration, as given to it on Gorlinski's surveys of 1855 and 1857."

The presumption is that the government in transferring the property in Township 17 to the state, the state to the levee board, and the latter to the ancestor in title of the defendant, all intended to transfer such lands as they then owned in the entire township and did not intend to limit the transfer to the land found within the meander line or to exclude therefrom the strip of land existing between the meander line and the water's edge, if, in fact, such strip of land existed at the time it was surveyed. "To overcome such presumption would require some evidence to show that the grantor, the general government, had done, or attempted to do, some act inconsistent with the presumption; such as having previously surveyed the land in dispute as government land, or conveyed it to others than plaintiffs' remote grantors, or in some manner making a claim to the disputed ground." Schlosser v. Crookshank, 96 Iowa 414, 65 N.W. 344, 346. (It will be remembered that a son of the defendant is now living in a house that has, for some time, been constructed on a ridge forming a part of the lands in controversy, although there is nothing in the record to show that any objection to such usage of the land was ever made by the state.) The court, in that case, further stated that "The general rule * * * is that all grants are to be construed most strictly against the grantors, andreservations will not be implied," adding, "The statement of thenumber of acres in these patents in no way limits the extent ofthe grant. To so hold would, in effect, be holding that ameander line was a boundary line, which, as we have seen, is notthe case." (Italics mine.)

It is obvious from the foregoing that the contention of counsel for the state that the was that actually paid for (because of the only land intended to be sold the defendant alleged difference in these fractional sections today and when surveyed by Gorlinski), is equally without merit. It is significant that in all of the cases where the courts have restricted the claimant's title to riparian land to the meander line because of an excessive difference between the acreage of high or upland purchased by them without and within such line, the survey under consideration had been made with the view of selling the land by the acre. In the instant case there was no high or upland between the meander line and the shore line of the lake in 1857. Furthermore, it is undisputed that Gorlinski's survey was made for the purpose of segregating the public land in this township from the private land and of ascertaining the character of this public land so that the state might have certified to it under the provisions of the Congressional act of March 2, 1849, the fee-simple title to "all the swamp landstherein * * * subject to overflow and unfit for cultivation." Gorlinski's identifying, traversing, and locating of the lakes and other bodies of water in this vicinity, whether navigable or not, was merely incidental thereto. The land at that time, if not actually covered by the waters of the lake, was low, swampy, and marshy, and had little or no value. The state could have had no interest in reserving title thereto since it was disposed of for the very purpose of securing the funds necessary for its reclamation, and, not so incidentally, so that it might be sold to private individuals after reclamation and thus become a source of revenue to the state through tax assessment. As expressed by Justice Dawkins in State v. Capdeville, 146 La. 94, 83 So. 421, 424, "* * * the whole theory upon which the government conveyed these ``swamp and overflowed' lands to the states was that, as the property then stood, it was susceptible of reclamation, through artificial means, or the efforts of man; and, as a condition of the transfer, it was required that the proceeds should be devoted to that end. * * * In other words, the purpose was to offer an inducement to the states, and through them to their citizens, to reclaim and render productive property which otherwise was of little value to anyone in its then condition."

In my opinion the existence of land between the line meandered by Gorlinski in 1857 and the water's edge as it is today is but tangible proof of the success of the reclamation of this area. As explained by Mr. J. A. Lovell, one of the plaintiff's witnesses and the engineer of Lafourche Parish since 1906, "It happened that Lake Long and Lake Fields would accumulate rain water shed off the west side of Bayou Lafourche, and the south side of Bayou Terrebonne. It was a kind of basin, and the waterwas impounded, it couldn't get out. The water followed the shore, and got like a pond, like the water running off a house.Eventually the Parish cut a canal at the lower end of the lakeand ran the water out, and other canals besides that have beencut, and they gradually reduced the water level." This same witness, in commenting on the Gorlinski survey, stated: "* * * the work done by Gorlinski for the Government is about the most accurate work, and about the easiest for us to trace. It is easier than most of the surveys we have had. Gorlinski was more accurate than any other." (Italics mine.)

It is my conclusion, that the state has failed to establish it owns property adjacent or contiguous to that of the plaintiff and its suit should, therefore, be dismissed, for "The primary object of the action of boundary, under the Civil Code of Louisiana, is to determine and fix the boundary between contiguous estates of the respective proprietors. The provisionof the Code in article 845, and other provisions under title 5 of the Code, that the limits must be fixed according to the titles of the parties, are held * * * to apply to cases in whichneither party disputes the title of his antagonist. * * * Thetitle to the property is not allowed to be litigated in thisaction, whose purpose is to fix a line or boundary betweenadjoining claims." Cragin v. Powell, 128 U.S. 691, 9 S. Ct. 203, 204, 32 L. Ed. 566. See, also, Sprigg v. Hooper, 9 Rob. 248, 253; Zeringue v. Harang's Adm'r, 17 La. 349; and Blanc v. Cousin, 8 La.Ann. 71

For the reasons assigned, I respectfully dissent.