Tircuit v. Burton-Swartz Cypress Co. , 162 La. 319 ( 1926 )

On the rehearing of this case, appellants do not question the correctness of the finding in our original opinion that they have not sufficiently identified and located the tract of land described in their petition. In presenting their side of the controversy for the second time before the court, they have devoted their argument solely to the proposition that they are the owners of the land, although not described with sufficient certainty to enable them to recover it in a petitory action; that it is situated in section 49, township 12 south, range 15 east; and that as the defendant has cut and removed all the timber which formerly grew on the section, they are entitled to recover judgment as prayed for in their petition.

We have reached the conclusion, on the further consideration of the case, that plaintiffs have not made such a showing as would warrant us in rendering a judgment in their favor. Viewing their present contention in all its phases, we cannot escape the stubborn fact that in order to be entitled to a recovery for the alleged trespass of defendant, it was incumbent upon plaintiffs to show they were the owners of the land. Sorrel v. Carlin, 23 La. Ann. 528; Collins v. La. Sawmill Co., 132 La. 161,61 So. 150; Cusachs v. Salmen Co., 146 La. 676, 83 So. 893. They were unable to do this,

Plaintiffs' claim of ownership is founded through mesne conveyances upon the sale made in the succession of Michel Poirier to Mrs. Philippe Landry of "a portion of land situated in section 49 of township 12 south, range 15 east, containing 123.01 acres." This description, however, is too vague to locate and convey title to any land whatever. Poirier v. Burton-Swartz Cypress Co., 127 La. 936, 54 So. 292. Therefore, when Mrs. Landry undertook to mortgage the land to Dupre, Reine Co., she placed an incumbrance upon property which, doubtless, she thought she owned, but which, in point of fact, she did not own; hence the sale in the foreclosure proceedings at which Celestin Oliver became the purchaser of the land as subdivided on the plan made at the instance of the sheriff of the parish of St. James conveyed nothing to the said purchaser but a title which, at best, could only become perfected by the prescription of ten years acquirendi causa. This prescription, however, is clearly inapplicable, since neither Celestin Oliver nor his successors in title were ever in physical possession of the land. Bruton v. Braselton, 157 La. 64, 101 So. 873.

For the reasons assigned, our former opinion and decree are reinstated, and the said decree is now made the final judgment of the court.

THOMPSON, J., dissents.