Ralph v. Corr , 9 La. App. 10 ( 1928 )

JONES, J.

This is a petitory action in which plaintiff prays to be declared the owner of the following described property, to-wit:

“A certain piece or strip of ground, situated in the Sixth District' of New Orleans, in Square 776, bounded by Milan, General Pershing, South Tonti and South Rocheblave Streets, measuring seven feet, one inch and seven lines front on Milan Street by a depth between equal and parallel lines of one hundred twenty feet; together with the total surplus of the front measurement of the aforesaid square on Milan Street.”

It will be noted that exact location of the strip is not given, but it is said to front on Milan Street somewhere in Square 776. It is alleged that defendant is in possession of this strip without title and that plaintiff is also the owner of lot 14 in same square, measuring thirty feet front on Milan by one .hundred twenty feet in depth, beginning at a distance of fifty-seven feet, seven inches and two lines from corner of Milan and Tonti Streets, all in accordance with plan of S. J. Van Norman, civil engineer, dated June 16, 1911.’

After denying in his answer the material allegations of plaintiff, defendant alleged that he' had purchased four lots in said square, bearing Nos. 10, 11, 15 and 16; lots 15 and 16 having a front on Milan Street of thirty feet by a depth of one hundred twenty feet, all in accordance with same plan of Van Norman of date January 16, 1911; that he had been in continuous open possession of these two lots, 15 and 16, having them under fence and that at no time had he taken possession of any part of lot 14.

The Judge, below decided in favor, of the defendant and plaintiff has appealed.

The facts in this case, which are clearly demonstrated by the record, conclusively show that this is an attempt by the plaintiff to acquire from the former owner of the whole square a surplus of frontage in this square, the existence of which is doubtful.

The facts are these:

The plaintiff, Otto J. J. Ralph, purchased on May 1, 1918, from the People’s Homestead Association the following described property:

“A certain lot or portion. of ground, situated in the Sixth District of New^ Orleans, in Square .776, hounded hy Milan, Berlin, Tonti and Roeheblave Streets, which lot of ground herein conveyed is designated hy the No. 14 on a plan of survey made by S. J. Van Norman, Civil Engineer, dated January 16, 1911, and annexed to an act passed before Robert Legier, Notary Public in this City, on April 29, 1912; the said lot measures thirty feet front on said Milan Street by one hundred and twenty feet in depth, between equal and parallel lines, and it is situated at a distance of fifty-seven feet, seven inches and two lines from the corner of Milan and Tonti Streets.”

The defendant, John L. Corr, purchased from Gilbert J. Vincent, by act before William J. Hennessey, notary public, dated May 6, 1920, the following described property:

“Pour certain lots of ground, with all the improvements thereon, situated in the Sixth District in Square No. 776, hounded hy Roeheblave, Tonti, General Pershing and Milan Streets, designated by the Numbers 10, 11, 15 and 16 on a plan made by S. J. Van Norman, Civil Engineer, dated January 16, 1911, annexed to an act passed before Robert Legier, Notary Public, dated April 29, 1912, and according to which, said lots measure as follows, to-wit: Lots Numbers 10 and 11 adjoin and measure each thirty feet front on Tonti Street, by one hundred and thirty-three feet, nine inches and five lines in depth between parallel lines. Lot No. 10 commences at a distance of one hundred and twenty feet from General Pershing Street. Lot No. 11 commences at a distance of one hundred and twenty feet from Milan Street. Lots 15 and 16 adjoin and measure each thirty feet front on Milan Street hy one hundred and twenty feet in depth between parallel lines. Lot No. 15 commences at a distance of eighty-seven feet, seven inches and two lines from Tonti Street. Lot No. 16 commences at a distance of one hundred and twenty feet from Rocheblave Street.”

The parties to this suit went into actual possession of the lands hereinabove described.

Their common author in title was one Joseph Kuebel who had acquired the entire square bounded by Milan, General Pershing, South Tonti and South Rocheblave Streets by purchase from the heirs of Sterry, on March 26, 1903, by act before John J. Ward, notary public.

Plaintiff and defendant acquired according to the plan of S. J. Van Norman, surveyor, which showed total frontage on Milan Street of two hundred sixty-seven feet, seven inches and two lines. According to this plan of Van Norman, plaintiff’s lot No. 14 commenced at a distance of fifty-seven feet, seven inches and two lines from the corner of Milan and Tonti Streets and measured thirty feet on Milan Street, and defendant’s lot No. 15 commenced at a distance of eighty-seven feet, seven inches and two lines from the corner» of Milan and Tonti Streets, and also measured thirty feet on Milan Street.

On June 23, 1926, by deed under private signature acknowledged before P. H. Stern, notary public, the plaintiff acquired from Kuebel, the former owner of the whole square, a strip measuring seven feet, one inch and seven lines front on Milan Street, which he now alleges in his petition should he located between lots Nos. 14 and 15.

To support this contention plaintiff relies entirely upon a survey of B. J. Oliveira, civil engineer, of July 14, 1926, which shows a frontage of the square on Milan Street of two hundred seventy-four feet nine inches and one line. In the record there are two copies of this survey; one locates the strip in suit here between Lots 14 and 15, the other locates the same strip between Lots 13 and 14. When asked about this important difference, this engineer testified that there was a surplus of seven feet, seven inches and two lines in the frontage on Milan Street and “you can put it where you wish.”

To offset this evidence, defendant has introduced in evidence the ancient plan of the Sixth District in Carrollton of Wm. H. Williams, surveyor, made in 1871 and the plan of Van Norman by which both plaintiff and defendant bought. Each of these plans shows this square as having a frontage on Milan Street of two hundred sixty-seven feet, seven inches and two lines.

When defendant bought Lots 15 and 16 he had a survey of these lots made by C. Uncas Lewis, a well-known engineer. He built his house and fences on these lots as shown on this survey and he testifies he has possessed only the area as therein shown.

The mere fact that one surveyor has found a surplus of seven feet in a square does not justify taking that seven feet from defendant.

We agree with the trial Judge that plaintiff has failed to prove his case.

The judgment is, therefore, affirmed.