D'ARBY'S HEIRS vs. BLANCHET'S HEIRS, 7 La. 256

Bullard, J., delivered the opinion of the court. This is a petitory action, by which the plaintiffs, as heirs of Simon D’Arby, seek to recover a part of a tract of land, of twenty arpents front on both sides of the Vermilion, by a depth of forty. The title exhibited by them, is an order of survey, dated in 1791, in favor of their ancestor, confirmed by commissioners certificate. This document recites, that the same land has been previously conceded to one Maison, in 1778, and by him abandoned to the domain, never having been cultivated by him.

It calls to be bounded on one side by Melanpon, and on the other by the domain. The commandant of the post of Attakapas, certifies that this tract had been surveyed for Maison, and two land-marks (corners) planted in presence of Melamjon, but no plat of survey accompanies his certificate.

The defendants set up title under three patents, in favor of Charles Hebert, Claude Broussard and Pierre Gaillard, severally, for ten arpents front on both sides of the Vermilion; the first calling to be bounded on one side by Maison, and on the other by the domain, dated June 23d, 1782; the second calls for the first, and the third for the second, both the latter being dated June 23d, 1781. The defendants further plead the prescription of ten years.

It appears, that as early as the year 1800, by various exchanges and other alienations, these three grants had become the property of Gaillard, the immediate vendor of the defendants’ ancestor. On the sixth of June, of that year, Gonsoulin, a Spanish surveyor, made a survey, and gave a location to them, according to which the defendants claim to hold them. On this plat of survey, the upper grant, that of Hebert, is represented as bounded by Maison or D’Arby on the upper side, according to the calls of the patent.

The evidence shows, that the land has been holden from that period to this, in conformity to that survey. But it is contended, on the part of the plaintiffs, that this was evidently an erroneous location, inasmuch as it did not leave land enough for the claim of Maison, between the upper line, as established by Gonsoulin, and the lower line of Melamjon ; and that Maison had been previously put in possession, by metes and bounds.

The original location of the Maison tract, is not shown by evidence before us, and admitting that this location by Gonsoulin was erroneous, still the land has been possessed for more than thirty years, in conformity to it, in presence of the adverse claimant. The principle that possession of a part of a tract of land, is ■ whoTe,S™d°suffithe'adverse6'"™ ty from acqairby prescription, over the adverse possession of the other party, under a" title of anf'adefiníüTÍol cation by authority of the sovereign. It is, however, contended, that the principle settled by this court, in the case of Broussard vs.

Duhamel, (3 Martin, N. S. 10,) is applicable to this, and that the plea of prescription cannot avail the defendants, inasmuch as all these titles were derived from the same source, and call to be bounded by each other, and no location is shown, which relates to all of them ; that D’Arby possessed at least a part of his grant, and that possession of a

part is possession of the whole, according to bis title. It does not appear to the court, that the case cited is analogous to this. In that case, several purchasers hold under the same primitive title, having bought at same time, different portions of it, and no regular 7 r ’ ° survey had been made, designating the portion purchased by each. The court held, that an erroneous survey, made of some °f the portions, was not such a partition as would enable one of them, who possessed in error, to avail himself of the ten years prescription.

In the case now under consideration, *he parties hold by distinct titles, derived immediately from the sovereign, and one of them shows a location by public omo,.-ntiT The principle contended for, that a possession of a part of his land is a possession of the whole, cannot prevail over the adverse possession of the defendants, under a title of even higher dignity, and a definite location, by the authority of the sovereign. authority, apparently correct, the counsel, The evidence shows, that an oak tree near the Bayou, was established as a land-mark by Gonsoulin, and has been recognised as the division line, between Herbert’s patent and the land of D’Arby, and that the other titles below, on the Bayou, conform to that survey.

Gaillard’s house is shown to have been near that tree. One of the witnesses was on the spot, shortly after the survey by Gonsoulin, and is confident that the oak tree is the boundary. In addition to this, it is shown, that D’Arby sold a part of his tract to Dubois, and in his sale it is described, as bounded on one side by Blanchet. At that time the defendants held, and actually occupied their land, as they do at this time, and at the sale of Dubois’s estate, the defendants themselves purchased a part of the same land, adjoining them.

Where land has been possessed, even under an erroneous location, for more than thirty years, in conformity to it, in the presence of the adverse claimant, the plea of prescription will prevail, and the possessors qui- . eted intheirpossession and title. Upon the whole, after the best attention we have been able to give to this case, we are satisfied, that the evidence sustains the plea, of prescription, and that the defendants ought to be quieted in their possession and title.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that the defendants be quieted in their possession of the land claimed by them, according to the survey made by Gonsoulin, and that the plaintiffs pay the costs of both courts.