Ollie v. Ogilvie , 13 La. 472 ( 1839 )

Martm, J.,

. . delivered the opinion or the court.

The plaintiff is appellant from a judgment which rejects his claim to the rescission of the sale of certain lots which he purchased from the defendant.

His claim rests on the following allegations:

1. That the defendant sold according to a plan which he had omitted to submit for the approbation of the police jury.

2. That he concealed from the plaintiff a material circumstance, to wit, that a part of the lots sold was destined to be occupied as a levee and public road.

3. That he deceived the plaintiff by selling part of (lie property as batture lots, when in reality there was no batture at that place.

It does not appear to us that the District Court erred. 1 ‘

. I. No law requires him, who divides a tract of land into lots, to submit any plan to the police jury.

II. It is not shown that there was a destination of any part of the premises to be used as a levee or public road. A private road had been made by a former possessor of the land, which being found more commodious than the public road along the levee, was more generally used than the latter, which was consequently neglected. The former had ■been offered to the syndic, and accepted by him,- as a substitute for the public road. After, the sale, the police jury converted the private road into a public one. The district judge has correctly concluded, that the defendant was guilty of no deception in omitting to mark the private road on his plan, and in designating the public one only. The latter had not lost its character, and the former had not become a public road by the mere acceptance of the syndic, who was . . . , , , , _ . , without authority to alter or change the character of either; and it has been correctly observed, that, if the private road had been marked on the plan, this circumstance might have given rise to the claim of a servitude injurious to his interest and that of the purchaser.

■ The action of the police jury after the sale was legal or illegal. If legal, it was damnum absque injuria; if illegal, it could give no claim to the plaintiff on the defendant.

III. The surveyor who drew the plan by which the sale of the lots in question was made, has attested to its correctness ; and his testimony is not contradicted.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.