author: Watkins, J.

text:
    No. 11,166.
    State of Louisiana vs. Charles C. Buck and the Plaquemines Tropical Fruit Company.
    1. Notwithstanding property in dispute in a petitory action be situated in the parish oí Plaquemines, the Civil District Court of the parish of Orleans acquires full and complete jurisdiction roblone niaterice el personae if the parties claiming ownership ha personally cited therein — same being citizens of another State.
    2. An exception to the jurisdiction of the court rations personae to be availing- must be tendered in limine and disencumbered by any other issue.
    3. No one can acquire title to any part of the public domain by the prescription acquirendi causa.

    4. A patent for public lands reciting- that a named partyhas purchased all the unsurveyed sea marsh in a certain township and range, west of the Mississippi river, excepting certain surveyed lots situated on the river, containing a certain number of acres, and extending bach to a certain named bay, according to the official plat of the survey of said lands, in the State land office, docs not evidence a salome?- aversionem.

    5. The title to alluvion is a purely accessory right attaching] exclusively to riparian proprietorship aud incapable of existing without it.
    6. The very object, purpose and scope of Act 104 of 1888 is to authorize the register of the State land office to cancel the entry last made when there are two conflicting patents outstanding to the same identical land. It does not confer upon him authority to hear and determine such a controversy.'as this.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.
    M. J. Cunningham, Attorney General, for State, Appellee.

      Henry J. Leovy of Counsel:
    Declinatory exception is a dilatory exception. Code of Practice, 331. Declinatory exception declines “the jurisdiction of the judge before whom it is brought.”

      All dilatory exceptions must be pleaded before issue joined. C. P. 33 declares, in referring to dilatory exceptions, “in any case they must be pleaded in limine litis, nor shall such exceptions be allowed in any answer in any cause.”
    “ All dilatory exceptions are waived by answer.” Cross on Pleadings, pp. 123, 162.
    “ A plea of jurisdiction is waived by one to the merius.” Hennen, p. 1162, No. 2.

      An exception to jurisdiction must be pleaded in limine. Hennen, 1166, No. 5; 31 An. 88; 39 An. 624.
    Defendant can not plead singly different technical objections. After' exception to citation he can not plead domicile. 13 An. 409.
    All dilatory exceptions must be pleaded before default.

    “ Hereafter no dilatory exceptions shall be allowed in any case after judgment by default.” C. P. 333.
    “ The plea of discussion is a dilatory exception, and can not bp pleaded after default.” 34 An. 96.
    “No dilatory exception can be pleaded after default, which is equivalent to issue joined.” Hennen, 1163, No. 5; 15 An. 184.
    “ Plea to jurisdiction is too late after default.” 15 An. 184.
    The filing of a dilatory exception, or plea to the jurisdiction, and, an answer to the merits in the same paper, is a waiver of the dilatory exception.”
    Art. 333, O. P., referring to dilatory exceptions, says: “Nor shall such exceptions hereafter be allowed in any answer in any . cause.”
    A dilatory exception can not be pleaded with the answer. 34 An. , 962, Ohaffe vs. Ludeling. :>
    “ Dilatory pleas must be tendered and disposed of in limine, and can not be legally embodied in the answer.” Robbins, vs. Martin, 43 An. 488.
    “The answer also includes other matters of exception, dilatory and' declinatory in character, which need no other mention than to say they should have been separately urged and disposed oE before issue was joined on the merits, and this course not having been pursued, they were waived.” Ibid.

    “ Going' into the trial without objection on discussion of plea to the jurisdiction is a waiver of the exception.”
    “Defendant not insisting upon his exception being tried first and passed upon by the court, it must be considered as being waived.” 32 An. 1146.
    Judgment against defendant rendered out of his domicile is valid if he appears or pleads to the merits. 32 An. 1146; 39 An. 627; 40 An. 493.
    Exception is waived by going to trial without insisting on decision • - on the exception. Gross on Pleadings, p. 124, See. 107.
    One who proceeds to trial without asking for judgment on his plea to the jurisdiction, waives it. Hennen, 1165, No. 1; 34 An. 963; 15' An. 188; 24 An. 254; 33 An 438; 34 An. 301.
    The authority of a public officer depends on the law as it is when he act's.' Hé has only such power as the law specifically granted. 101 U. S. 698; 131 U. S. 173; 5 An. 516; 44 An. 215. The register of the iand office can not sell land for less than the price fixed by statute, nor sell more land than is paid for.
    When lands are granted according to an official plat, the plat itself becomes as much a part of the grant dr deed, so far as limits are concerned, as if it were written out upon the face of the deed. 128 U. S. 691.
    The boundaries and quantity of land granted by a patent must be ascertained by the descriptive language in the patent itself (20 Howard, 372). The number of acres stated in the patent and the price paid fix the quantity of land sold.
    Batture or accretion formed at the time of a sale is not included in the sale unless expressly included in the deed. Ferriere vs. City, 35 An. 209; 8 N. S. 572; 11 La. 140. Nor can batture owned by the State be transferred except by sale, at a price fixed by law:
    Owners of land are not entitled to accretion formed in the rear of their land. It is only on running streams that batture rights exist. C.C.504,509; 34 An. 837; 35 An. 209; 6 N. S. 216; 12 La. 324; 18 La. 122; 143 U. S. 366.
    Swamp lands acquired by grant from the United States' can not be - come subject to private ownership, because, by deposit of sediment, they have been elevated above the water.
    A sale per aversionem, only conveys all land between designated boundaries. Where there are defined boundaries there can be no claim per aversionem beyond them. C. 0. 826, 854, 2494; Hennen’s Dig., p. 1339; 16 La. 185.
    The act of 1888, p. 169, provides for the issuance of warrants to holders of patents erroneously issued. It gives no right to the holder of valid patents to remove alleged clouds from their titles. The Land Register has no judicial power under said act to settle controversies relating to conflicting claims. The State can not be affected by the acts of officers beyond the power vested in them by law.
    Prescription can not be pleaded against the State. Illegal possession of public lands vests no right whatever. 11 M. 210; 9 R. 283; 115 U. S. 413; 6 R. R. 482; 43 An. 225; Hennen’s Digest, p. 121, No. 6; Bushnell on Limitations, p. 147.
    In suits for damage actually done in case of trespass and slander of title, it is not necessary to allege possession in the plaintiff / Oooley on Torts, p. 332; Abbott’s Trial Evidence, p. 635; Boone on Code Pleading, p. 421.

      Gurley & Mellen Attorneys for Defendants and Appellants:
    The courts of the parish of Orleans have no jurisdiction over a petitory action concerning land situated in the parish of Plaquemines. The fact that the defendant is a foreign corporation which has not declared the locality of its domicile, or the name of its agent or officer in the State upon whom service of process can be made, but is carrying on business and has an officer and employés in-the parish of Plaquemines, does not enable the courts of the parish of Orleans to acquire jurisdiction by service upon the officer of the corporation when temporarily in the parish of Orleans. Act 149 of 1890.
    The decision of the Register of the Land Office on April 24,1889, rendered under authority of Act 104 of 1888, in favor of Patent No. 526, and canceling subsequent patents issued for lands within the boundaries designated in Patent No. 526, is conclusive of defendants’ right under said patent to all lands within said designated boundaries, and plaintiff is stopped from now questioning said decision. 138 U. S. 573; 93 ü. S. 169; 121 U.- S. 488; 139 U. S. 163; Abbott’s Nat. Digest, Yol. 3, p. 797, title “Public Lands,” pars. 16, 27, p. 596; 91 Cal. 158.
    The State is not excepted from the effects and operation of the statutes of prescription, when it appears in a court of justice, defendants and those from whom they acquired title- have been in possession, in good faith, under a just title translative of property, and exercise the rights of ownership upon and concerning the lands within the limits defined in the Patent 526, for more than twenty years, and'this action is barred by prescription. <&. C. 3521, 3478 et seq.; 9 An. 137; 23 An. 570; 30 An. 562. .
    Patent No.'526 is a sale of “ all the unsurveyed sea marsh ” within fixed boundaries, the lines of township 21 south, ranges 30 and ' 31 east, in the Southeast Land District of Louisiana, west of the Mississippi river, extending back to West Bay, excepting there from the lotsfronting on the river and section 16 in both ranges.
    TMé expression “containing 1320 acres” in said patent is merely an estimate and is controlled by the fixed bounds, and the patent conveys all the land between those bounds, save that specially excepted.
    The printed words “according to the official plat of the survey of said lands in the State Land Office” are meaningless. There can be no official plat of the survey of unsurveyed sea marsh. C. C., Arts. 854 and 2495; 29 111. 392; 83 N. Y. 518; 95 U. S. 551; 9 Craneh, 173; 3 How. 187; Eng. and Am. Eney. of Law, Vol. 2, pp. 499 and 500; 3 Me. 71; 10 Iowa, 249; 13 Pick. (Mass.) 145; 27 Barb. (N. Y.) 196; 48 Mo. 325; 50 Cal. 439; 21 How. 306; 3 Rob. 188.
    The area of land between the defined boundaries, less the exceptions designated, did not exceed 1320 acres at the time of the issue of ■ Patent 526, 30th of September, 1869. It consisted of tongues of land extending back to West Bay, as well as the sea marsh adjoining the lots fronting on the river.
    The increase in the area of land within the defined boundaries has taken place since the issuance of Patent 526, and is alluvion, gradually formed solely by the sediment of the Mississippi river, and belongs, by right of accretion, to the land to which it was attached. Thailand was subject to diminution and gradual loss, and is entitled to the gradual gain. C. C., Art. 599; 10 Peters, 662; 23 Wall. 46; 6 Martin, 216; 10 Rob. 99; Succession of Delachaise vs. Chas. B. Maginnis, No. 10,957, Supreme Court of Louisiana, not yet reported; Eng. and Am. Eney. of Law, Vol. 1, p. 137; Gould on Waters, 2d Edition, pp. 311 and 312, par. 155; Laurent, Principes du Code Civil Franjáis, No. 6, and p. 375.
    Latourettes’ and Bradford’s maps, offered by plaintiff, are shown by the United States Coast Survey Chart of 1884, and the Surveyor General’s and United States Land Office certificates, to be incorrect. .
    Where defendant is east in an action in which his vendor is called in warranty there must be rendered at the same time a judgment in favor of the defendant against his warraetor. C. P., Art. 385.

      13. Howard McCaleb Attorney for Warrantor:
    Warranty in a contract of sale only takes place in case of eviction. ■ R. O. C., Art. 2500 et seq. Where the plaintiff does not seek to evict defendant, but its sole contention is as to the extent, quantity and boundaries of defendant’s lands, under its title, defendant’s vendor is not liable in warranty.
    Where a deed refers to other deeds the description of the latter will by such reference become a part of the former, and hasthesame effect as if inserted in the subsequent deed. Tiedeman on Real •Property, par. 841; 9 Rob. 30.

      Thos. J. Semmes and Duane E. Fox on Application for Rehearing:
    The land conveyed by the State was unsurveyed, and therefore the words “ according to the official plat of survey ” can not properly be held to mean-or imply that the land conveyed by said patent was actually surveyed.
    We wish particularly to call the attention of this court to the construction by. the Supreme Court of the United States of the . words “ according-to the, official plat of survey,” in a patent . : issued by. the .United States, and to the construction of the patent by the court Where, as in this case, the survey may not correctly delineate the true line of division between the land conveyed by patent and the adjacent water.,
    The form Qf expression “according to the official plat of survey” has been in-use .in the public land system of the United States from a very-early daté. It has been borrowed and followed by the various-'States which acquired lands from-the public domain of the United States, and so it is found in the patents'issued by the State of Louisiana. The construction of that phrase, therefore, by the Supreme Court' of the United ¡States is entitled to the greatest possible weight. Hardin vs. Jordan, 140 U. S. 371; Mitchell vs.: Smale, Id. 406; ; ' \
   The opinion of the court was delivered by

Watkins, J.

Claiming as ownér, certain lands situated, in the parish of Plaquemines, on -the west side' of the'Mississippi'river, being tbe whole of township twenty-one (21) south, ranges thirty (30) and thirty-one (31) east, containing more than thirty thousand acres — same being what is commonly denominated as swamp and overflowed lands — plaintiff’s averment is, that she acquired same, in its entirety, except the front lots which were previously sold off by the United States government, and the sixteenth sections which were dedicated to the public schools, “ and also excepting a tract of land between said lots, and what is known as ‘ West Bay,’ as per plan in the State Land Office at Baton Rouge, said excepted tract being one thousand three hundred and twenty acres, which, it is alleged, was sold by the State of Lousiana in September, 1869, by patent No. 526, to C. C. Packard, but which, though not claimed in this suit, petitioner does not admit was sold.”

Petitioner further alleges that she acquired said lands by grant and donation from the United States government by act of Congress approved September 28, 1850, entitled an act to enable the State of Arkansas and other States to drain the swamp lands within • their limits; and other laws on the same subject.

The further allegation is made that Charles C. Buck, of Baltimore, Maryland — but, at the time of filing suit, in New Orleans — and the Plaquemines Tro pical Fruit Company, said to have been-incorporated under and by virtue of the laws of New Jersey, of which Charles C. Buck is president, have, themselves and through their agents and officers, maliciously and without probable cause denied petitioner’s claim of ownership, and have slandered its title thereto, by setting up title in themselves, as derived from Robert M. White, who claims to have acquired same through C. C. Packard, who obtained therefor patent No. 526 from the State of Louisiana in 1869, “whereas said patent, to the knowledge of said defendants, shows no such sale or transfer.”

That.they are still continuing to slander and maliciously defame petitioner’s title to said land, and have recently stated and represented that said company was the owner of same, and that plaintiff possessed no title to any part of it; and that such statements had recently been made to different parties in the city of New Orleans— parties who had applied to the land officers of the government for its purchase.

That upon this allegation of slander of the petitioner’s title, claim is made for one thousand eight hundred dollars damages.

Further allegation is made that the defendant, Buck, has been and now is trespassing on said lands, cutting and removing timber therefrom, digging ditches, and otherwise destroying portions of said property and greatly impairing its value, thus causing petitioner great and irreparable injury, making an injunction necessary for the protection of her rights.

Plaintiff’s prayer is for citation to and service on each of the two defendants, commanding them to appear and answer her demands in the Civil District Court, in the parish of Orleans; that a writ of injunction issue restraining and prohibiting them from slandering her title, and from trespassing upon her lands, or taking, or keeping any part of same in their possession, “ and from interfering in any manner with the possession of the petitioner and (her) full exercise of ownership over (the whole) of said lands;” and that the defendants be condemned to pay the sum of one thousand eight hundred dollars as damages for the slander of her title.

The defendant, Buck, excepted in limine that plaintiff’s petition discloses no cause of action; and, pending trial and final disposition of same, both defendants joined in a further exception to the jurisdiction of the court, ratione personm, because of their domiciles being in New Jersey and Maryland, respectively, and beyond the reach and authority of the same. Both of said exceptions were taken together, tried and overruled.

In their answer the defendants allege that the company is in full and complete possession of the property in controversy, and that the injunction wrongfully issued, reserving the benefit of their exceptions.

Subsequently the plaintiff amended her petition, first reiterating the various charges of her petition, averring the falsity of the defendants’ claim of ownership, as derived through Louque, White and Packard, declaring that the alleged false and slanderous statements of the defendants constituted a cloud upon her title, and that she had suffered damages to the extent of two thousand dollars on account of their trespass — claiming judgment for the total sum of three thousand eight hundred dollars. It is concluded by a prayer to the effect that she be recognized as owner of the land described in her original petition and quieted in possession thereof. There b.eing no prayer in said supplemental petition for citation to the defendants, a second supplemental petition was found necessary for that purpose.

To these two supplemental petitions the defendants excepted— though subsequent to default being taken — to the effect that the court was without jurisdiction to hear and determine the cause, because the land alleged to have been trespassed upon, and of which plaintiff seeks to- be declared the owner and put in possession, is wholly situated in “ parish of Plaquemines, of this State, and neither of defendants reside within the jurisdiction of this Honorable Oourt, and each one of them has a domicile in the said parish of Plaquemines, and hence (they) specially;plead the want of jurisdiction of this Honorable Oourt.”

And subject to said plea, and without waiving the same, the defendants made further answer, and averred that all of the unsurveyed sea marsh in, township 21 south, ranges 30 and 31, lying west of the Mississippi river' and Grand Pass in the parish of Plaque-mines, except certain lots of small depth fronting on the Mississippi river, and section 16 in ranges 30 and 31 (school sections) was sold ■arid parted with by plaintiff fdr a valuable consideration, in 1869, to O. 0. Packard, and that the right to all accretions passed with said Sale” — then follows a delineation of the claim of title as-above set -forth.

Then follows a circumstantial and detailed account of the circumstances under which the defendant company acquired the ownership of the territory in dispute, and of the care exercised and examinations ' made, antecedent to making the purchase — alleging that it acted in, so doing upon the faith it had-in the acts and representations of the land officers of the State government.

They pray that their vendor, Louque, be cited in warranty, arid for .trial by jury-; and, on final trial, for verdict and judgment in favor of ■the defendant compariy,’ decreeing it to be the owner of said lands-; or, if there' be judgment iri favor of; th,e plaintiff, their prayer-is for ■like judgment against their warrantor', Louque, in the alternative.

. Louque appears and answers defendants’ call in warranty, arid ■ disavows having had any personal interest in the land transaction; ■and alleges that it was made' by him,,at the request of -the defendants, and that he purchased Said prdperty for them, and immediately after taking the : title he transferred it to them before the same motary. ’ ’ : 1 -'

. That he purchased from R- M. White,' who is bo'rind to -him- .in warranty,- and should protect him in' eveiy and all- particulars," - -■

Thereupon he prays that the call in warranty of the defendant company be dismissed as to him, in so far as it may have, in any manner, a tendency to make him responsible; and that, in the alternative that same should be maintained, he have judgment against his vendor, White, whom he calls in warranty.

He also prays that the Mutual National Bank and the Metropolitan Bank be cited, and, after due proceedings, that there be judgment, in the alternative of the plaintiff’s recovery, ordering the surrender of certain notes now in their possession that evidence portions of the purchase price of the property, and requiring the same to be canceled, as being null and void.

The warrantor, White, answered in turn and plead a general denial; and, subsequently, the banks appeared and denied liability, and disavowed possession, of the notes they were alleged to have.

The defendant company pleads the prescription of five and ten years, acquirendi causa, predicated upon its peaceable and undisturbed possession; under title, in good faith, as a muniment of its ownership; and both defendants plead various acts and proceedings of the land officers of the State government as an estoppel against the demands and claims of the State.

On final trial there was a verdict and judgment against the defendants, recognizing the ownership of the State, reserving the rights of the defendants and Louque against White, warrantor, and making the writ of injunction-perpetual.

■- It is from this judgment that the defendants have appealed — it awarding plaintiff no damages, and she having made no answer to the appeal claiming anything on that score, there is nothing for us to decide except the question of title.

Question was made in the lower court and it was renewed on the argument-in this court to the effect that the Civil District Court of the parish of Orleans did not have jurisdiction ratione material et personae of the defendants, or of the property in controversy— it having been considered-untenable by the judge a quo.

After carefully analyzing the pleadings, we have reached the conclusion that the defendant’s exception is not well taken.

Considering and treating this as a petitory action from its in•cipieney — and this view is the one most favorable -to the defendants — we are of the opinion that it was correctly instituted in the • parish of Orleans, notwithstanding the res is situated in the parish of Plaquemines, the defendant, Buck, having been personally served with citation while temporarily abiding in the city of New Orleans, and he being at the time president of the defendant company, and both being citizens of other States than Louisiana.

An action in revendication of real estate may be brought within the jurisdiction where the property is situated, or that where the defendant has his residence, as the plaintiff chooses. C. P. 163. Hence the defendant has no right to insist upon the suit being brought in the parish of Plaquemines, and no cause of objection that it was not.

The plaintiff had the choice to locate the suit at the defendant’s personal domicile.

A further provision of the law is that “ when the defendants are foreigners, or have no known place of residence in the State, they may be cited wherever they are found.” C. P. 165, No. 5.

Considering the question from the standpoint of the defendant’s personal domicile, it is clear that they had no place of domicile or residence in the State that was known to the plaintiff at the inception of the suit.

The property in controversy being situated in the State, and the defendant, Buck, being temporarily present in the parish of Orleans, it was competent for the court of that jurisdiction to cite him to appear and answer therein; and he being the president of the defendant company, it could be likewise cited into court.

But if this be considered and treated as a question of doubt, we think it should be resolved against the defendants, because the defendant, Buck, first appeared and excepted that the plaintiff’s petition disclosed no cause of action, and thus voluntarily submitted himself to the jurisdiction of the court; and he being at the same time the president of the defendant company, its right of subsequently excepting to the court’s jurisdiction is rendered exceedingly doubtful; particularly as the two defendants united in one exception, and it was engrafted upon and tried and decided with the plea of no cause of action.

The well-defined theory of our jurisprudence is, that the exception of want of jurisdiction ratione personse to be availing must be presented in limine and alone, and altogether disconnected with and disembarrassed by any other averment of fact which indicates the joining of issue. If any other issue be conjointly tendered with such exception, it must necessarily fail.

In so far as the similar exception chat was tendered to the supplemental petition is concerned, we consider it immaterial, for the reason that the plaintiff was not bound to- institute the suit in the parish where the property is situated.

The plea of prescription that is urged by the defendants is unavailing. Their claim of title is founded upon the Packard patent, as is clearly shown by their answer, their averment being “that all of the unsurveyed sea marsh in township 21 south, ranges 80 and 31, lying west of the Mississippi river and Grand Pass, in the parish of Plaquemines” — less certain exceptions enumerated — “was sold'and parted with by the plaintiff for a valuable consideration, in 1869. to C. C. Packard, and the right to all accretions passed with said sale,” etc., and they claim to have derived title through Packard. Therefore the plea of prescription can not confer title beyond the calls of the patent, as nothing can conclude the right of the State government other than a bona fide and actual sale — though such accretions as may subsequently accrue may possibly attach thereto. No one can acquire title from the State by prescription. It is a condition precedent to the acquisition of title by prescription acquirendi causa that the property should have been severed from the public domain and transferred to that of private ownership, at the date such prescription commenced to run.

In Sanchez vs. Gonzales, 11 O. S. 207, we find this proposition broadly stated, thus:

“ It is believed that we may safely assume, as a general rule of prescription, that the public domain is not subjected to it by any length of time.”

But in that case there was no question of title derived from the State government, but of one derived from the Spanish crown.

In Pepper vs. Dunlap, 9 R. 283, the case of Sanchez was quoted approvingly, the court declaring that they knew “ of no law which establishes the presumption of a grant of any ■ part of the public lands.”

However, some doubt was created by a dictum of the court in same case as reported on a subsequent trial (9 An. 137) by the following language of the court, viz.:

“ Preseiiption is one of the modes of acquiring property by the effect of time and under the conditions regulated by law. R. C. C. 3420 (old number).

“There are no other prescriptions than those established by the code. Art. 3483.

“ Prescription runs against all persons, unless they are included in some exception established by law. Id. 3487. * * *

» “ Under the Spanish law property could be acquired by prescription against the crown. At least we find no exception in its favor nor any principle which prevents the operation of the laws of prescription. * ******

“ Under our code we find no express exception in favor of the State.”

But in a later case — McCastle vs. Chancy, 28 An. 720 — a contrary opinion is expressed, placing titles derived from the State government upon the same basis as those derived from the United States government. That was a petitory action, plaintiff claiming title from the State of Louisiana under an act of Congress of date May 20, 1826, and demanding that the patent issued by the United States to the defendant be declared null and void, as having been issued in error. The court accepted the plaintiff’s view of the case and decided that the patent issued to the defendant was erroneous, but declined to maintain the latter’s plea of prescription, employing the following language, viz.:

“The United States parted with their title when the selection was .made by the State of Louisiana, in 1856, and the .title remained in the State until it was vested in the plaintiff. Consequently no title vested in Ohancy, the patentee; but we think, while he could not prescribe against the State, or United States, he was such a possessor as to require the plaintiff either to reimburse the value of the materials,” etó. :

The question treated of in Graham vs. Tignor, 23 An. 570, and State vs. White, 23 An. 733, was that appertaining to the prescription liberandi causa-, as extinguishing an action by the , State .for the recovery of a debt; and the opinion therein expressed by the court does not militate against that announced in McOastle’s ease.'

Those cases were examined and compared in our opinion in Reed ;vs.. Creditors, 39 An. 115, in which we had occasion to express the following views, viz.:

“• Prescription proceeds upon the theory that one in whose favor Aright once existed has lost recourse, for its enforcement judicially, by reason of his own neglect for such a length of time that it; would be against equity to permit its assertion.

“ Such an equity can not arise in favor of the subject as against the sovereign by reason of the failure of her officers to perform their duties.

“ Certainly not, unless the Legislature has so declared in unmistakable terms.”

To this proposition we feel disposed to adhere, as we consider it sound as well as conservative, and in keeping with the views entertained by our predecessors in the McOastle case.

Entertaining this view, we must restrict the defendants to the title which is evidenced by the patent of their vendor, and such accretions as may have been added to the land since the date of its issuance.

On the merits, the substantial facts in controversy are these:

(á) In 1869 the State, through the register of its land office, issued to óne O. O. Packard a patent certificate to certain lands which are in contest, which contains the following recitals, viz.:

“ Whereas 0. 0. Packard, * * * purchased, per warrant No. 380, N. S. D., dated September 29, 1869, the following described swamp land, subject to tidal overflow, viz.: All the unsurveyed sea marsh in township 21 S., ranges 30 and 31 E., in the Southeastern Land District of Louisiana, west of the Mississippi river, excepting lots fronting on the river, and sections sixteen in both ranges, containing thirteen hundred and twenty acres (1320), extending back to West Bay, according to the official plat of the survey of said lands in the State land office;” it being dated 30th of September, 1869.

(We have quoted from the certified copy made by Fremaux, register, on the 6th of January, 1882, as the oldest of the three in evidence and brought up in the original.)

This patent bears the signatures of the governor and the register of the State land office, and it is thus prefaced, viz.:

“The State of Louisiana (seal), Patent No. 526,” etc.

(b) An extract from the books of the land office — that is to say, the stub from his warrant book which shows that warrant No. 380— mentioned in the patent — was issued to C. 0. Packard on the 29th of September, 1869, and covers the quantity of 1320 acres of “unsurveyed sea marsh back of lots fronting on the river,” in township twenty-one (21) south, ranges 30 and 31 east. It also shows that the the amount paid therefor was three hundred and thirty dollars, or twenty-five cents per acre. This data corresponds with the recitals of the patent, and is contemporaneous in date therewith — the one fully identifying the other in every particular.

; (c) A certified extract furnished by the register exhibits the locus in quo, as it was in 1836, when surveyed by G. F. Connelly — this exhibit having been taken from an approved map on file in his office.

It shows the excepted lots fronting on the river, as well as the area that is covered by the Packard patent, it being thus delineated, viz.:

“ Certificate No. 380, N. D. S. Sea marsh. C. C. Packard. Patent No. 526, N. S. D.”

Immediately east of the sea marsh thus indicated is the outline of the river, whilst on the west and in the rear of it are written the words “ West Bay."

(d) A sketch accompanies a certificate from the Surveyor General indicating the original United States surveys as they appear on the map in his office, and they show that township twenty-one (21), ranges thirty (30) and thirty-one (31), are, in greater part, covered by West Bay, which is given the appearance of an arm of the Gulf of Mexico, extending south on an irregular line almost parallel with the course of Southwest Pass.

On the trial the introduction of evidence took a very wide range, and this necessitated elaborate argument and briefs on both sides of the controversy; but, in our opinion, the greater part of it was unnecessary for the determination of this, a purely petitory action, depending, primarily, upon a proper construction of the patent that was issued to the defendant.

We think it evident from a fair consideration of the patent, taken in connection with the official data we have referred to, that it does not evidence a sale per aversionem, but one by measure or quantity.

It has been determined that in order “to constitute a sale per aversionem there must be certain limits, or a distinct object described, as a field enclosed, or an island, because it is presumed the parties have their attention fixed rather on the boundaries than the enumeration of the quantity.” 12 M. 428; 7 An. 672.

Again: “That the sale of a body of land as a section, which has limits mathematically fixed and established ancj generally known, is not a sale per aversionem." Phelps vs. Wilson, 16 La. 185.

Again: “A sale in which specific boundaries are given is a sale per aversionem, or a sale from one fixed boundary to anoth r, which includes all the ground between the parties mentioned, whether the measure be correctly stated or not, the calls for a boundary controlling the enumeration of quantity.” 18 La. 526; 19 La. 422; 1 R. 34; 2 R. 357; 9 R. 30.

Again: “ The sale of a certain number of acres between certain limits so as] to include the said number of acres,’ is not a sale per aversionem, but of the number of acres specified.” Hoover vs. Richards, 1 R. 34.

To constitute a sale one per aversionem the property should be designated by adjoining tracts, or from boundary to boundary. Hall vs. Nevill, 3 An. 326.

In ease the upper boundary be given with sufficient certainty, yet no lower one is mentioned, it is not a sale per aversionem. Boyce vs. Cage, 7 An. 672.

Our code declares that “ there can be neither increase or diminution of price on account of disagreement in measure, when the object is designated by the adjoining tenements, and sold from boundary to boundary. R. C. C. 2495.

The sale to the defendant’s author was not made by certain, and particularly designated, fixed, natural and well-known boundaries of lands included within the boundaries indicated.

A careful examination of the patent will show that only two boundaries are given, and those only imperfectly, viz.: (1) “All the unsurveyed sea marsh in township 21 S,, ranges 30 and 31 E., * * * west of the Mississippi river, * * * extending back to West Bay,” etc. — nothing being stated in reference to the north or south boundary. Nor is this all; for there is a further limitation placed upon both of the foregoing limits, thus: (l) “All the unsurveyed sea marsh, etc., * * * west of the Mississippi river, excepting lots fronting on the river," etc.; and (2) “ extending back to West Bay, according to the official plat of the survey of said lands in the State Land Office." So it appears that the Mississippi river was not indicated as the eastern boundary, but the surveyed lots fronting on the river were described as intervening between the river and the land conveyed, and their dimensions are not given. And it also appears that West Bay, as it existed at date of patent, was not mentioned as the western boundary, but the western boundary was described as, in general terms, “ extending back to West Bay, according to the official plat of the survey of said lands in the State Land Office."

It certainly can not be said that the boundaries given were, in any proper sense, certain limits, definitely fixed. The patent issued to Packard did not convey all the land between adjoining tenement's; and it is of no consequence that reference is had to the township and ranges in which the land is situated, because they are mathematically fixed, established, and well known limits. The sale was- made of all the unsurveyed sea marsh in township twenty-one south, with certain exceptions, containing thirteen hundred and twenty (1320) acres; and'which, according to the official plat in the land office, extended back to West Bay, as it once existed. ■

• This is evidently a sale by measure. Considering the fact that it was a sale, or entry of public land — property of the State of Louisiana— made by a public official, in pursuance of special laws governing their alienation, how could it be a sale per aversionem?

But the register sold thirteen hundred and twenty acres of land, at twenty-five cents per acre, and that is the quantity the patent conveyed to Packard, and no more.

Consequently, the claims of defendants must be restricted to the calls of the patent, unless they have been extended or increased by accretion.

Without entering into the elaborate details of the evidence applicable to the question of accretion vel non, it will be sufficient to state that it substantially shows that the lands are situated in the parish of Plaquemines, on the west bank of the Mississippi river, about twelve miles above the passes. That anciently the waters of West Bay spread over the greater part of said lands — extending up from the Gulf of Mexico as “an arm of the sea;” but that, within the past, half-century, they have been increased in elevation and extended in area, and made comparatively high by sediment that has been periodically deposited thereon by annual swells of the Mississippi river.

That this process of .elevation began about the year 1836, when a crevasse occurred in the banks of the river at a fisherman's canal, then.known as Gilbert’s Canal, but ever since that time known as the “Jump.”

.That a United States surveyor made a survey of the land fronting on the river in 1836, and divided same into lots, and located the sea marsh; as it’ then existed, in the rear of said lots, in the direction of West Bay — same not extending back more than thirty (30). chains (say two thousand feet), at its greatest depth, and averaging not more one thousand feet; that is to say, to the waters of West Bay.

These facts are in keeping with the recitals of the Packard patent, and the maps, plats and profiles of the land office, we have referred to.

In order to furnish a more accurate idea of the locus we have made the subjoined extract from one of the briefs of defendants’ counsel, quoting from the testimony of E. L. Corthell, a civil engineer of great skill and repute, viz.:

“ I have a knowledge of the Jump,’ a crevasse leading out of the Mississippi river, and of the lands in said ‘Jump.’ My knowledge is from personal examination and observation made at sundry times, from May, 1875, to July, 1888. During that time, particularly during the first five years of that period, my business as the resident engineer in charge of the construction of the South Pass Jetties and as superintendent during a large part of this time of said works, required my presence in the ‘ Jump,’ where the materials in the shape of willows were obtained for the construction of said works. The land on which the willows grew was formed by deposits of sediment from the Mississippi river. The quantity of the said lands thus formed through this crevasse I can not state. It must have been more than six thousand acres, for this was the amount of land which Oapt. James B. Eads, or a company which he represented, surveyed and obtained for the purposes of cutting the willows for the jetties.

From what I consider reliable information, obtained while engaged in my business above mentioned, and particularly while gathering information for writing the history of the Mississippi Jetties, the formation of the land began in its recent development, about the year 1835, by the river, at an unusual flood, breaking through a small fisherman’s canal, pouring its waters through a very large crevasse, estimated to be at that time over one thousand eight hundred feet wide and sixty feet deep, into the adjacent shallow bay, which at that time approached near to the banks of the river, and was,' in general conditions, very much like other bays still to be seen on either side of the river and its passes, entirely unobstructed by islands, and presenting a smooth sheet of water. The immense amount of sedimentary deposit carried in by the river, after the crevasse formed, led to an immediate and rapidly growing formation of land. In May, 1875, this tract of land was threaded in various directions by open channels of sufficient depth and width for a large sternwheel steamboat to navigate, towing barges over one hundred and fifty feet in length. A main channel, wide and of considerable depth, led from the river to the waters of the gulf, and subsidiary channels led from this main channel in many directions, and they were several miles in, length, bordered on each of their banks by growth, mostly of willows. The land and the channels above mentioned changed considerably during the five years required for building the South Pass Jetties. The entrance channel narrowed and its depth was greatly reduced. The main channel and all of the subsidiary channels above mentioned were considerably reduced in length (width, evidently), so that, where it was possible to navigate with the above mentioned boat and barges in 1875, it was not possible to do so in 1879 and 1880. A great deal of the land above mentioned was, during that time, subject to overflow during the'river floods, and a deposition of sediment continued raising them more and more out of the water.

“ The lands through which the said Jump and its branches run and the said Jump and its branches themselves have changed very materially within my recollection.

In the line of my professional work I have had occasion to carefully study the physical conditions of the lower Mississippi river and the result has been that the conditions above described at the Jump prevail elsewhere where the river breaks through the narrow banks which separate it from the waters of the bay on either side. At a point about three miles above the head of the pass, called Oubitt’s., Gap, the river similarly broke through. This occurred not long before the jetties were begun in 1875. At that time it was a broad expanse of water in the adjacent bay, without any sign whatever of land appearing above the surface. This crevasse was about a half mile in width and from 60 to 80 feet in depth. The immense amount of sedimentary matter discharged into the shallow bay raised a considerable portion of the submerged land above the water surface before 1880, on which the reeds, grasses and willows began to grow. The delta formation which took place at the Jump took place here.. Several channels led in various directions and between them the land rose above the surface.

In 1888, from my own observation, the land had greatly extended' in area and in height above the surface, and the vegetation upon it had also greatly increased. Following the general law of such crevasses, this process of land-making will continue rapidly until a great area, like that at the Jump, will have been formed. The ultimate and not very distant result of the conditions existing at not only these two places, but at others, is the almost entire closing of the outlet. The principal reason for this closing up of crevasses and outlets is that the river water can not flow to any great distance from the river over the shallow bays, on account of the great frictional resistance which the submerged lands present to the flow of the water. This frictional resistance retards the velocity of the current, and the water, charged or loaded to its full capacity when it enters the crevasse, is not able physically to carry its burden, and drops it upon these submerged lands, and thus rapidly raises them to the surface of the ordinary level of the gulf. There are many points which I have observed in the passes of the Mississippi and along the river near them, where crevasses took place many years ago, but by the process above described have been entirely closed up and nothing is left but a ‘ sear,’ as it were, to show where a cut had been made in the banks of the river at some time long past. It is an accepted axiom among the hydraulic engineers of the Mississippi that ‘the river heals its own wounds.’ ”

The evidence discloses this witness to have been one of the engineers of Oaptain James B. Eads, and, as such, gave superintendence to the construction of the jetties in 1875, and subsequent years — a few years after the Packard entry of the land in controversy. It further shows that he subsequently wrote and published a work entitled the History of the Mississippi Jetties, from which the-record furnishes several extracts, and we quote the following, viz.:

“ About forty-five years ago the river broke through its west bank, twelve miles above the head of the passes, at a narrow fisherman’s canal that led up to it from the gulf. In a short time a torrent eighteen hundred feet wide and sixty feet deep swept through this-crevasse. For a long time the river at flood poured through it with great velocity, and spread its muddy waters far and wide over the shallow bay. The same principles that produced the delta at the mouth of the river formed one here. After the lapse of years there appeared well-marked channels, three or four feet deeper than the adjoining shoals, which gradually rose to the surface by the deposits. ■of successive overflows. These shoals confined the currents still more to the channels, and increased their depth. The seeds of grasses, flags and reeds that came down with the river found a lodgment on the half-submerged banks, and soon covered them with a rank vegetation. This growth caught the sediment carried into it by the overflowing waters and built up the banks still higher, on which sprang up a dense growth of willows, crowding out the weaker vegetation and taking possession of the whole district. A richer and more conveniently arranged harvest field for the jetties than this great tract of willows could not have been found. This crevasse is generally known as the ‘Jump.’ The passes of the Jump were sufficiently wide and deep to admit a good-sized steamboat, and t.hey ramified this sub-delta in every direction.”

Taking the testimony of this witness as our guide, and we think it but fair that we should do so, it appears evident that the alluvial deposits he describes gave greatest elevation to the lands in question during the series of years immediately succeeding 1836, the year during which the crevasse occurred, and consequently there must have been a large area of land raised above inundation, as well as tidal overflow, at date patent issued to Packard in 1869— more than thirty years subsequently.

The precise condition of things existing at date of issuing patent, is not clearly ascertainable from the evidence, but it is quite apparent that such elevated area must have extended much beyond the limits of the tract it conveyed to Packard, taking the surveyed lots on the river front as the initial point of calculation.

And presumably the register of the land office was aware of the status of the sea marsh in this locality, and issued his warrant of location as well as the patent conformably thereto.

Accepting this as the true situation of the land conveyed by the patent, it is quite manifest that it did not constitute a riparious estate, in the sense of the civil law, to which the described accretions attached.

In the recent and conspicuous case of Delachaise vs. Maginnis, 44 An. 1043, this question passed under critical review and analysis, and this court, through Mr. Justice Fenner, as its organ, said:

“ The principle underlying and determining the title to alluvion in our system is the equitable one expressed in the maxim Qui sentid ■onus sentire debit et commodum. As Portalis, in his ‘ Exposé des Motifs ’ of the Code Napoleon, quaintly says: There exists, so to speak, an aleatory contract between the riparious owner and nature, whose action may at any moment despoil or increase his estate, in which sense it may be said that rivers give or take away like chance or fortune.’ If it takes away, the owner must bear the loss; if it gives, justice accords him the gain.

“ Another principle is that the title to alluvion is a purely accessory right, attaching exclusively to riparian proprietorship, and incapable of existing without it. This is implied in the very name given to the right as a right of accession; and the chapter of the code under which the provisions relative to alluvion are found is headed thus: ‘ Of the Right of Accession to What Unites or Incorporates Itself to the Thing.’ As strongly stated by this court in the leading case on the subject, riparian ownership is of the essence of the right of alluvion; the alluvion is but the accessory; the front tract is the principal; the former can not exist without the latter.’ ” Municipality vs. Cotton Press, 18 La. 219; vide Ruch vs. City, 43 An. 275.

But the principle has been incorporated into our code in the following words, viz.:

“ The accretions which are formed successively and imperceptibly to any soil situated on the shore of a river or other stream are called alluvion.

“The alluvion belongs to the owner of the soil situated on the edge of the water, whether it be a river or stream, and whether the same be navigable or not,” etc. R. C. C. 509.

Counsel quotes from the early case of Stephenson vs. Goff, 10 R. 99, as favoring the theory of the defendants, but we do not so consider it.

It says: “ Where it is shown that the boundary lines of the land claimed by one holding under a confirmation by the United States, and a survey made by a government surveyor, were run as near as possible to a bar, the whole of which was subject to be overflowed at high water, and the greater part of it to an annual overflow, so as to include all the high land susceptible of ownership, the proprietor will be entitled to all the alluvion or batture subsequently formed on the site of the bar.”

But we are of the opinion that a proper construction of the foregoing quotation confirms our view.

See also Ferriere vs. City, 35 An. 209.

■ On the law and the evidence onr conclusion is clear, to the effect that the defendants are not entitled to the alluvion that has been formed in the rear of the sea marsh their vendor acquired from the ■State.

During the progress of the trial the defendants set up, as an estoppel against the demands of the State, the proceedings and decision of the register of the land office, in 1889, wherein he recognized the title of the defendants under the Packard patent, and canceled certain entries of other parties of portions thereof, as being in conflict therewith — acting under the authority conferred by the pro - visions of Act 104 of 1888.

We do not think this a serious plea, because the law referred to has no application to this class of cases.

The act, in terms, confers upon the register authority, under the ■circumstances and conditions named, to cancel “ dual or double •entries,” which have been made “by conflicting claimants ” to the ■same identical land. But the lawmaker was so cautious as to place a limitation upon the power conferred, and only authorized him to “ cancel the last entry made, provided such entry was made through ■error, mistake or otherwise; and provided further, that the first or former entry is held to be valid.” Sec. 1, Act 104 of 1888.

The following is the text of the register’s decision, viz.:

“Baton Rouge, April 24, 1889,

“This matter, having been submitted by R. M. White, upon the ■evidence filed by him, and the defendant, Bayley, having been notified by letter of said White’s application for cancellation of his patents, and the said letter having been returned in due course of mail as uncalled for, and the evidence being in favor of said White’s application, under and by virtue of Act No. 104 of 1888, I do hereby ■cancel patents Nos. 2050 and 3072, issued to said G- W. R. Bayley, agent, respectively, on the 27th April, 1875, and 12th day of June, 1875. This 24th day of April, 1889.

John S. Lanier, Register. .

Now it appears that the defendants trace title to the lands in cob-' troversy through the identical R. M. White, upon whose application the patents of Bayley, supposed to be in conflict with his own, were ■canceled. It also appears that the decision was based solely and e?elusively upon the evidence he filed, and that the contestee was never notified of said proceedings at all. And neither he nor his assignors are parties to this suit.

Such a proceeding was virtually ex parte and possesses not a single ingredient of eontestatio litis, the determination of which forms either res judicata or estoppel against the State; and she is not concluded thereby.

After a careful investigation of this ease we have reached the deliberate conclusion that the judgment appealed from is correct.

Judgment affirmed.

Mr. Justice Parlange takes no part.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 11,877.
    L. J. Lucky et al. vs. Police Jury of Bienville Parish et al.
    1.Act No. 106 of 1S92; entitled “An. act to provide for contesting elections held under Articles 209, 242 and 250 of the Constitution of 1879, and the laws to carry the same into effect,” is not unconstitutional as violative of Articles 29 and 30 of that instrument.
    2. The Police Jury of Bienville parish was properly made a party defendant in the ^contest of an election held under Act No. 88 of 1892, by citation upon its president.

      3. Where the court, from all the circumstances in a particular case and from all the evidence in the record, can reach a conclusion as to what the actual legal vote east at a particular precinct was, it is its duty to give effect to the vote, notwithstanding the election officers may have been guilty of misconduct in some particular respects. The rejection .of the entire returns and the entire vote at a poll for misconduct by the election officials is not by way of penalty or punishment upon the commissioners, or the particular persons or interests to be benefited by the illegal action, but only because in the special ease the truth is not deduelble from the returns and the evidence. The political rights of the legal voters must be saved if it be possible to do so.
    4. Where parties contesting an election place one of the commissioners upon the stand, and through him prove a particular illegal act by the commissioners, which is susceptible of separation from their general conduct and susceptible of special correction, and the same commissioner affirmatively proves (if his testimony is to be taken as trustworthy) that the fact shown was the only one of which complaint could be made, and that otherwise the votes cast were legally east, and the returns made otherwise correctly showed the vote as cast, the court should limit the remedy to throwing out the votes shown to have been illegally cast and returned. Whether or not the commissioner under such circumstances is to be believed will depend upon all the facts and circumstances of the ease and the whole evidence in the record. He is not necessarily to be disbelieved. Plaintiffs, in placing him «pon tbe stand as their witness, show confidence themselves in his truthfulness. It is very questionable whether the olficial acts of election commissioners should be permitted to be impeached by the testimony of the commissioners themselves.
    PPEAL from the Second District Court, Parish of Bienville. Watkins, J.

      Ben. P. Edwards, W. M. Riehardson, Wise & Herndon and Jno. A. Richardson Attorneys for Plaintiffs and Appellants:
    A vote may be illegal, because the person casting it may not be qualified to vote at the election, or because it is given at the wrong place, or the wrong time, by a qualified elector, or because it is east without a compliance with the requisite preliminaries, or because given in an improper manner. Am. and Eng. Encyclopedia, Vol. 6, p. 351 et seq.

    Fraud on the part of the commissioners of election destroys the. presumption of the correctness of the returns, and destroys their value as evidence. Fraud does not invalidate the legal votes east, but, by destroying the presumption of the correctness of the returns, it makes it necessary that any person who claims any benefit from the votes shall prove them; and where no proof is offered, and the frauds are of such a character that the correct vote can not be determined, the returns of the precinct will be rejected. Am. and Eng. Encyclopedia, Vol. 6, p. 353 et seq.; McCreary on Elections, Secs. 472, 488, 391; citing also Kncx vs. Blair, 2 Cong. El. Cases, 526; Mann vs. Cassidy, 1 Brews. (Pa.) 11; Morey vs. Spencer, 4 Cong. El. Cases, 447; Washburn vs. Voorhies, 3 Cong. El. Cases, 54; Vallandigham vs. Campbell, 2 Ceng. El. Cases, 223.

      J. G. Egan, L. K. Watkins, F. P. Stubbs, J. A. Dorman, Drew & Stewart and J. E. Reynolds Attorneys for Defendants and Appellees:
    The theory of plaintiffs is that the minority should prevail. The true rule in all republican governments is, that the will of the people as expressed at the ballot box should be ascertained and carried into effect, if possible, from any evidence within the reach of the court.

      In the absence of statutory authorization, courts are without jurisdiction ratione materim to entertain eases of contested election. “ No statute invests the courts of this State with jurisdiction over contested elections to determine the parish seat.” 41 An, 846, State ex rel. Woodr.u£f et al. vs. Police Jury et al. Affirmed in the subsequent decisions relating to contest over Bossier court house and parish seat.
    Act No. 106 of 1892 is not the required “ specific statutory authorization,” giving right of contest in this case if the act is unconstitutional, and its unconstitutionality is urged on the grounds— (a) More than one object is embraced in the act. (6) Its objects are not expressed in its title, (c) It seeks to enact laws by reference only. Arts. 29 and 30 of Constitution of 1879; 44 An. 90.
    “ No officer of a police jury can legally stand in judgment for the corporation without special authorization.” Quoting 38 An. 630, Police Jury of Ouachita vs. City Council of Monroe, and page 704 Id.; 33 An. 68. As a canvassing board, under Acts 88 and 108 of 1892, the whole body must be sued.
    A voter must have the qualifications required in Article 185 of Constitution and be registered. Art. 186, Acts 1876, extra session, No. 58, p. 94; Acts No. 123 of 1880, No. 101 of 1882. See Tullos vs. Lane, 45 An. 333.
    The returns of the officers holding the election are prima facie correct, and he who attacks same for irregularity or fraud carries the burden of proof.
    Irregularities in holding an election do not make it a void election, and the courts, where possible, will correct the returns so as to. show the true result. 32 An. 861, Duson vs. Thompson; 29 An. 610, Weber vs. Wilton; McCrary on Elections, Secs. 483, 539. No election shall be vitiated on account of the negligence, illegal or improper act or conduct of any officer, or other person, unless it be proved in a contest that a sufficient number of electors were thereby deprived of their votes to have changed the result of the election. Act No. 58, extra session of Legislature of 1878, Sec. 85, p. 96.
    If fraud is clearly shown on the commissioners it only makes their , return worthless as evidence. Contestants in such cases have the right to prove by other evidence the true vote cast in the election. Same authorities as above, and see McOrary, Secs. 424, 486.
    In such cases evidence sufficient to satisfy the courts of the result is sufficient; no form of proof is required.
    The authorities in reference to the prorating of votes (McOrary, Secs. 460, 461) do not apply in this contest, as the plaintiffs have judicially admitted the returns are correct, excepting at the Arcadia and Taylor precincts; and have made the further allegation of their own vote being correct at the other precincts, which can not now be swelled by the court in prorating. Hence unregistered and illegal votes shown by defendant at the precincts in the parish should be taken wholly from the side of the plaintiffs under this judicial admission.
   The opinion of the court was delivered by

Nicholls, O. J.

The controversy in this case arose from an election held on the 17th of January, 1893, under the provisions of Act No. 88 of 1892, for the location of a new parish seat for Bienville parish — the towns contesting for the location being Arcadia and Bienville.

Plaintiffs are voters and tax-payers of the parish, living at and near the town of Bienville; the defendants are the police jury of the parish, cited through its president, and the town of Arcadia, cited through its mayor.

On the 19th of January, 1893, the president of the police jury issued a proclamation declaring that Arcadia had, by a majority of sixty-five votes, been selected as the parish seat, and recognizing and announcing that fact.

Plaintiffs contest the election and pray for a judgment decreeing the town of Bienville to have received a majority of the legal votes, decreeing it to be the seat of the parish, and ordering the' judicial records, which had in the meantime been taken to Arcadia, to be removed to Bienville.

They recognize that eighteen hundred and sixty-four (1864) legal votes were cast at that election. They contend that of these Arcadia only received six hundred and six (606), whilst Bienville received twelve hundred and fifty-eight (1258), a large majority.

In their petition they furnish a list of the different polling places and of the votes cast at the same in favor of each of the towns, according to their theory of the rights of parties. In so doing, they exclude entirely the votes cast for Arcadia, as shown by the returns from the Arcadia precinct, in Ward One, and at Taylor, in Ward Three; but they retain the votes for Bienville, as shown by the same returns.

The Arcadia precinct returns showed a vote of six hundred and Jifty for Arcadia, and three for Bienville; those of Taylor, sixty-seven (67) for Arcadia and twelve (12) for Bienville.

They allege that frauds were practised in favor of Arcadia at the Arcadia and Taylor precincts by the commissioners of election or with their connivance to such an extent that the results at those precincts can not be ascertained. That the commissioners thereat made false and fraudulent returns of said election, and that false and fraudulent .ballots in favor of Arcadia were deposited in the ballot boxes at those precincts by the commissioners or with their connivance and consent, all of which were counted and returned as legal votes in favor of Arcadia; that for these reasons the ballots and returns at those precincts should be rejected and disregarded, but if they should not be entirely rejected then petitioners alleged that at least two hundred persons were permitted to and did vote at Arcadia at said election who were ineligible on account of some being nonresidents — some minors, others not being registered, and others not being present to cast their votes; and at the Taylor precinct there were at least twenty-five ballots put into the box for persons not present to cast their votes, a sufficient number to change the result, and the commissioners who received said votes acted wrongfully and fraudulently, well knowing they were not legal votes, and had they been rejected the result would have been in favor of Bienville. That said illegal ballots were wrongfully and fraudulently counted and returned for Arcadia. They further allege that Bienville received a large majority, at least six hundred and forty-four of the legal voters cast at the election and is the choice of the electors of the parish, and should be so adjudged.

That acting alone on the face of the returns made by the commissioners of election to the police jury (which returns included the false, fraudulent and illegal ballots returned from Arcadia and Taylor precincts), the president of the police jury issued and caused to be published a proclamation declaring that the parish seat of Bienville parish was removed from Sparta to Arcadia.

That this proclamation was issued and published without authority of law, but that none the less the clerk and sheriff had obeyed the proclamation and had removed the records and property of the parish to Arcadia, and that the town of Arcadia claimed to be the parish seat under the said election — a claim unfounded in law and equity.

The president of the police jury filed exceptions to the petition to-the effect: (1) That Act No. 106 of 1892, providing for contests of election of this character, requires the police jury to be the defendant, and service to be made on the police jury or other body-or authority holding the election; that the police jury is a political corporation created under the laws of the State and can only act in the mode prescribed by law, and that he as president of the body did not represent it and could not stand in judgment for it without special authority, which had not been given him in this case; (2) that the suit should be dismissed for the reason that there is no defendant in the case, the statute declaring that it should be brought against the police jury.

In the event these exceptions should be overruled, he then excepted that it would be impossible to answer the petition under its general and indefinite allegations; that it charged fraud on the commissioners of two boxes, but did not state which of them had done so nor the act which constituted the fraud; that it charged that there were illegal votes cast at the Arcadia and Taylor precincts, but did not give their names.' That the petition should have given the names of every person claimed to have illegally voted, and a statement of the facts which made them so. That without specifications of- names and of facts, and a statement of the nature of the fraud perpetrated by each commissioner and voter, the issues could not be fairly and properly tried.]

He prayed for the dismissal of the suit on the exceptions.

The mayor of Arcadia excepted that the court was without jurisdiction ratione materise to try the case for the reason that Act No. 106 of 1892, under authority of which it was instituted, was unconstitutional and void.

1. Because more than one object is embraced in the act.

2. Its objects are not expressed in its title.

8. It seeks to enact laws by reference only.

The court ordered the plaintiffs to amend their pleadings “so as to state explicitly the acts of fraud, etc., complained of, and to make such other allegations not exclusive of or in conflict with their original allegations as might be necessary to authorize the introduction of their evidence, and make them as full as it is claimed is required by MeOrary on Elections, pp. 264 and 265, sections 400 and 402 inclusive, and overruled the other exceptions.

In the amended petition which plaintiffs filed under this action of the court they charged that three commissioners at the Arcadia precinct (naming'them) illegally and fraudulently put into the ballot box at that precinct, at that time, or permitted the same to be done with their connivance and consent, more ballots or tickets than there were names on the check list of persons named as voting to the number of at least fifty-two. That they allowed persons to vote who were not registered and legally entitled to do so, or who were minors or who were non-residents, to the extentof six hundred and fifty votes; that the list of the persons allowed to vote as above alleged is shown by the certified list of names of the persons claimed to have voted annexed to their supplemental petition. That at the Taylor box, the three commissioners (naming them), after the polls had been opened and the election proceeded with for one hour, permitted one A. J. Oolbert to go inside of the room with said commissioners, and to participate in and control and manage the said election, and that the said commissioners and Colbert did put into the box sixty-seven ballots for persons who were not present to cast their votes, the list of the persons thus put into the box being shown by the certified list of names annexed.

Defendants filed an original and subsequently an amended answer. After pleading the general issue defendants attack the commissioners at the precincts of Driskell, Gibbsland, Bulah, Bienville, Sparta, Lanhorn, Ringgold, Prothro, Castor, Liberty Hill and Friendship, and many of the votes cast at these precincts, alleging fraud on the part of the commissioners, and minority, absence, want of registration, etc., on the part of the voters, also naming certain votes as having been cast for Arcadia and not counted, also alleging that no tally was kept at Union Church and Lanham, and that a certain colored club of twenty-two members had been bribed to vote for Bienville.

The town of Arcadia, through its mayor, excepted that it had been improperly made a party, and prayed that the suit as to it be dismissed.

The District Court rendered a judgment in favor of the defendants, rejecting plaintiffs’ demand and dismissing the suit at their costs They have appealed.

We are of the opinion that the exceptions taken asking the dismissal of the suit for the reason that “there is no defendant in the case, as the statutes have declared that such a suit should be brought against the police jury, and it had not been so brought, as the president of the police jury upon whom service was made had no authority to represent the police jury without special authority to that effect, which authority he had not been given in this case,” was correctly overruled.

The suit brought is not to mandamus the police jury or its members to do some act, but to annul and undo what it has declared and pronounced well done under the powers granted it in the matter of the special election held. Under the law the suit had to be brought against the police jury — which body is called into court as a defendant through citation upon the president. The authority to represent the police jury when sued in this class of eases is to be found in the State law, and is not dependent upon action to be taken by the body itself.

The exception taken to the jurisdiction of the District Court on the ground that Act No. 106 is unconstitutional is not well founded.

The title of the act is “ An act to provide for contesting elections held under Arts. 209, 242 and 250 of the Constitution of 1879, and the laws to carry the same into effect.”

The act in question was enacted by reason of the decisions of this court holding that the judiciary was without power to pass upon contests raised in regard to elections held under the articles of the Constitution mentioned in the absence of special legislation granting authority so to do. Its object was to provide for such contests through suits and to establish a uniform rule governing them all. The body of the act fairly conforms to the title, and the title discloses sufficiently fully its scope and purpose. The fact that several different kinds of special elections may fall under the operation of the statute does not break the unity or singleness of its object.

The district judge in referring to the third branch of this exception, which was to the effect that the passage of the statute was an attempt to enact laws by reference to the title of other laws, correctly states that “when Art. 30 of the Constitution provided that no law shall be revised or amended by reference to its title it was no doubt intended to be restricted to the revisal and amendment of laws already passed, and not to be extended to the passage of original laws making operative those articles of the Constitution which were not self-operating.”

The judgment of the District Court evidences great labor, patience and industry. Annexed to it, as part of it, are original memoranda of the judge, contained in sixty-four pages, showing which of the voters were rejected and which not, and giving, in the first column, the registration numbers; in the second column, the names of the voters arranged in alphabetical order; in the third column, the pages of the evidence in respect to each; in the fourth column, the names of the witnesses; in the fifth, the substance of the evidence, and in the sixth, remarks.

The correctness of the conclusions of the judge in respect to the individual'voters does not seem to be questioned, the contest really turning upon those reached by him in respect to the actions of the commissioners at the Arcadia and Taylor boxes. Plaintiffs contend and maintain that the entire vote at both of these precincts should be thrown out by reason of fraud on the part of the officials at the boxes.

Relative to the Taylor box, the judgment makes the following statements: “The first witness introduced (by the plaintiffs) was Thomas Grow, one of the commissioners at the box. His evidence shows that four persons whom the commissioners considered to be qualified voters at the Taylor precinct had failed to come to the election, and just before the polls closed the commissioners put four ballots in the box for these four absentees. He and two other commissioners swear that they intended no fraud, but knew how the absentees wanted to vote and put their ballots in for them, as was customary at primary elections. Of course these ballots (being for Eugene Clayton, Bill Speck, Charlie Grimes and Davis Richardson) are not legal — they were cast and counted for Arcadia and will have to be deducted from Arcadia’s vote. The real serious question to be determined is, shall the entire box be thrown out? Each of the witnesses — Messrs. Crow, Colbert and Nelson — are so well and favorably known by the court, their standing is so high in the community as honorable men, that I should be loath to impute fraud to them. But the plaintiffs have placed Mr. Grow upon the witness stand, and thus vouch for his truthfulness. He says he intended no fraud, and the evidence shows that there was no effort at concealment. While their act was illegal and wrong, the other voters, who are shown by the witnesses to be legal voters, voting at that box, should not be deprived of their votes by casting out the entire box. All the votes cast at Taylor, except those four, are fully proven to be legal, and are counted.”

The Arcadia box is thus referred to: “It is sought to be thrown out on account of the frauds claimed to have been committed by the commissioners. Without specific allegations, they were permitted, under the legal rules laid down by the courts in the trial of contested election cases, to introduce proof to show that one of the commissioners stuffed the ballot box — that persons were allowed to vote who lived in Union, Lincoln, Claiborne and Natchitoches parishes ; that one at Minden, one at Gibbsland, and others at other places, voted by proxy; that men were allowed to vote more than once; that dead men voted, and that fifty-two more ballots were in the ballot box at the close of the election than there were names on the list of those voting. Having thrown the doors wide open, all the evidence went in.”

The judgment then proceeds, after an analysis of the testimony given in respect to each of the matters charged, to sustain some of the contests made, to dismiss others and to explain various matters which are attacked as suspicious and fraudulent, and declares: “ This makes a total of thirty-niue votes cast out at the Arcadia box, which, with four east out at Taylor, makes a total of forty-two votes for Arcadia to be taken from the sixty-five majority received, and leaves twenty-three majority for Arcadia, not taking into consideration the eleven illegal, unregistered votes cast at Driskell, six at Gibbs-land, one at Bulah, six at Sparta, thirteen at Lanhorn, ten at Ring-gold, five at Pro thro and three atLiberty Hill, at all of which places the larger proportion of the vote should be deducted from Bienville, except at Ringgold. There were several illegal votes shown to have been cast for Bienville besides those above, which are designated on the memorandum as not registered, but it is useless to enumerate them, for if the Arcadia box is to be discarded the result will be in favor of Bienville, and if the Arcadia box is to be counted Arcadia will have the majority, whether the contention as to Union Church and Gibbsland be sustained or not.

“ There is only a difference of two votes claimed to be shown between the vote as cast and as retnrned at Union, and I can not decide sufficient fraud to throw that box out. The indications are very strong that the club of twenty-two at Gibbsland were bribed (so charged to be by defendants), but the evidence is not sufficiently strong. The same might be said as to the ballot box stuffing at Arcadia. All the commissioners deny it; but if it were true, the legal voters ought not to be deprived of their votes on this account. The fifty-two votes complained of were all thrown out. No one was prejudiced by them. It does not make any difference how they got in the box. Being in the middle or at the bottom of the box, it does not seem plausible that they were put in there late in the day. The over-zealous voters must have slipped them in there with their ballots folded separately.”

Plaintiffs rest their attack upon the integrity of the Taylor box precinct returns upon the testimony of Thomas Crow, one of the commissioners at the box whom they placed upon the stand and examined as witness over the objections of the defendants, that, as a public officer, who had made an official report, he could not be permitted as a witness to impeach it. Prom this witness was elicited the fact mentioned in the judgment of the District Court, that four tickets had been improperly and illegally placed in the ballot box and counted by the commissioners.

The' plaintiffs maintain in this court, as they did in the lower court, that the consequence of this act was to necessarily carry with it the rejection of the return in foto and the rejection of the entire vote at the precinct. It has undoubtedly been held in many cases where the managers of an election have been clearly shown to have committed a fraud in the conduct of the election, or the counting of votes, and the returns clearly shown to be wilfully and corruptly false in any material part, that the whole of it becomes worthless as proof, and the entire poll must be rejected. McOrary on Elections, Secs. 184, 185 and 302, cites authorities to that effect, but the same áuthor, in Section 368, says: “To set aside the returns of an election is one thing, to set aside the election itself is another and very different thing. The return from a given precinct being set aside, ■the duty still remains to let the election stand, and to ascertain from other evidence the true state of the vote. The return is only to be set aside, as we have seen, when it is so tainted with fraud or with the misconduct of the election officers that the truth can not be deduced from it. The election is only to be set aside when it is impossible from any evidence within reach to ascertain the true result — when neither from the returns nor from other proof, nor from all together, can the truth be determined. It is important to keep this distinction in mind. * * * The question under what circumstances the entire poll of an election district may be rejected has been much discussed, and conflicting views have been expressed by the courts.

The power to reject an entire poll is certainly a dangerous power, and though it belongs to whatever tribunal has jurisdiction to pass upon the merits of a contested election case, it should be exercised only in an extreme ease — that is to say, a case where it is impossible to ascertain with reasonable certainty the true vote. It must appear that the conduct of the election officers has been such as to destroy the integrity of their returns and to avoid the prima facie character which they ought to bear as evidence before they can be set aside as evidence and other proof demanded of the true state of the'vote (Sec. 80S). u Undoubtedly the general rule is that if legal votes have been cast in good faith by honest electors it is the duty of the court or tribunal trying a contest to ascertain their number and give them due effect, notwithstanding misconduct or even fraud on the part of the election officers. Such fraud or misconduct may destroy the value of the officer’s certificate, and may subject him to severe punishment, but the innocent voter should not suffer on that account if by any means his rights can be upheld (Sec. 304) . The general rule is that the ordinary rules of evidence apply as well to election contests as to other cases (Sec. 306).”

The difficulty in matters of election contests is not so much in the principles governing them as in the application of these principles to particular cases.

In the one before us an unwarranted, illegal act on the part of the commissioners at the Taylor precinct has unquestionably been es - tablished — established, however, by the commissioners themselves as witnesses upon the stand. But whilst the special fact referred to is brought out through the commissioners, these same commissioner establish affirmatively that in all other respects the election was fairly conducted, and that the returns evidence correctly the legal vote at the poll. We have reached on this subject the same conclusion which'the district judge did. The rejection of the entire returns of a poll, and of the entire vote cast thereat, by reason of the misconduct of the commissioners, is not by way of punishment of the commissioners or of the particular persons or interests to be benefited thereby, but because the court has reached the conclusion that the truth can not be deducible from the returns, and the will of the voters can not be ascertained. If the court reaches the. conclusion that the actual vote can be ascertained, it is its duty to give effect to it and save the innocent voters from the loss of their political right to be heard.

Plaintiffs .contend that it is absolutely inconsistent in the court to give any weight whatever to the testimony of commissioners who have been shown to have been guilty officially of an illegal act; and where it has thrown out votes by reason of such illegal act, but in this they are mistaken. Whether or not the commissioners are tobe believed under oath as witnesses when some particular act done by them is clearly illegal and their return, by reason of this act, is attacked and thrown under suspicion will be dependent upon the entire circumstances of the case and the whole evidence in the record. The commissioners in this case acted utterly unjustifiably in drawing a distinction between a special election held for a particular purpose and a general election held for selection of officers, in assimilating such an election to a party primary .election and in following at the poll the practice at that poll of depositing votes for absent legal voters whose views were known and whose manner of voting, if present, had been ascertained. Such a practice is reprehensible at a primary, even if sanctioned by consent, and totally inadmissible in an official election held under the law.

In Thompson vs. Ewing, 1 Brewst. 107 (McCrary, Sec. 303), it was said “ that the whole conduct of election officers may, though actual fraud be not apparent, amount to such gross and culpable negligence, such a disregard of their official duties, as to render their doings unintelligible or unworthy of credence, and their action entirely un•reasonable for any purpose.” But we do not find in this case, as a matter of fact, such a condition of things. We are satisfied that the only wrongful act done was the depositing of the four votes mentioned, and that the district judge in his action correctly limited the remedy to throwing out those particular votes.

The precinct was a small country precinct, where doubtless every voter and the views of every voter were well known. The pleadings make a direct general attack upon the whole conduct of the election, and yet no attempt was made to sustain these sweeping allegations. The poll books, the tally sheets and the returns were all introduced in evidence.

The commissioners were placed upon the stand and proved up the exact vote, admitted freely and without hesitation what they had done, explained how and why they had done it, and, as we have said, showed affirmatively that the particular act was the only one which could be complained of. We do not think that they imagined that these four votes would have the effect of altering the general result of the election and we do not think that intentionally and wilfully they committed a fraud. The district judge knows the parties- and thinks them incapable of it, and the plaintiffs themselves in placing Mr. Crow upon the stand show they had confidence in his veracity. On the whole we think the popular will at the Taylor precinct has found expression through the action taken in the District Court.

The conclusion we have reached in the case, on the assumption that the testimony of the commissioners was legally taken, renders it unnecessary to pass directly upon the important question raised by the defendants’ bill of exceptions as to the right of the plaintiffs to impeach the returns through the testimony of the commissioners themselves. The rule has been in this State to require official misconduct, which has been alleged as the basis for the setting aside of official action, returned and certified to, to be established by parties other than the officers themselves. The decisions on the subject refer principally to sheriffs, notaries, and to members of the jury.

We know of none and have been referred to none touching this particular class of officers. We know of no reason which would go to the exclusion of notaries, sheriffs and jurymen for the purpose stated which would not be equally applicable to commissioners of election, and do not see any good ground for making an exception as to them. Such is our present view of the matter, but we prefer to leave it as an open question.

So far as the Arcadia returns are concerned, we adopt the conelusions of the district judge. The attack upon the integrity of one of the commissioners at the box at that precinct is utterly unsustained. It rests practically upon the testimony of one witness, whose testimony is negatived by that of a number of persons who were directly on the spot, and who affirmatively swear to the nonexistence of the facts stated by this single witness. The commissioner himself, under oath, positively denies the facts sworn to; the ■other commissioners and the clerk of election (against the propriety of whose conduct in the particular matter there is not a scintilla of evidence) sustain the testimony of the commissioner who is charged with misconduct. Brown, who is claimed to have lent himself to the perpetration of the fraud by masking the ballot box temporarily from the view of outsiders, emphatically denies having done so, or of hearing any such words spoken by the commissioner as the witness mentioned states that he used.

His testimony on that point is supported by all the parties who were inside the voting room. It is strange bad the commissioner made use of the language attributed to him that only one person should have heard it, and still stranger that the language itself should have been so openly used. The failure of the witness to at once complain of the act which was afterward set up as a ground for a rejection of the returns, and his keeping silence as long as he did, are circumstances which we have had also to consider. In addition to the number of witnesses arrayed against the charge made — witnesses whose credibility has not been impeached — the plaintiffs are met by the presumption which the law itself attaches in favor of the correctness and honesty of official acts. We do not see how, under the testimony as well as under this presumption, it was possible for the district judge to reach any other conclusion than he did on this particular point.

We have spoken of the charge as being sustained by the testimony of only one witness; we mean by that to say that we attach no weight to the testimony of Bullard. His testimony, in the first place, differs materially from that of the person whose testimony he seeks to corroborate. His character for veracity was attacked, and though supported by several witnesses, the fact is before us, in addition to other facts, that this witness voted illegally himself at the Arcadia precinct, upon an affidavit which we find in the record. There were a number of illegal votes cast at the Arcadia box; the district judge has thrown them out. We have no reason to suppose the commissioners to be chargeable with the casting or the counting of those votes.

There were fifty-two more ballots found in the box when the count was made than there were names of persons voting. These ballots resulted from the folding of several tickets together, and the depositing of them in that way in the ballot box. They were not in one particular place, but scattered throughout the box. They were at once rejected on being discovered, and not attempted to be counted. The explanation given of the presence of these ballots in the box is that the tickets were printed on thin paper, and were in bundles of some thickness, the tickets adhering more or less to each other, and that occasionally some voter not noticing the fact would take off two or more, fold them and deposit them in the box as their vote. Two witnesses were produced who stated that they had themselves only accidentally discovered just before voting" that the folded ticket which they were about to deposit contained not one, but several tickets. The attention of one of these witnesses was drawn to the fact by the commissioner whose integrity is impugned.

There was no objection made to the presence of others than the commissioners at the count. Two persons were present who were there specially for the purpose of seeing that it was fairly made and in the interest of Bienville. The votes were taken out and announced by Dr. Baker, in whose integrity both sides seem to have had and still have confidence. It could scarcely have been contemplated that a fraud could be successfully perpetrated through folded double ballots when an open count through disinterested parties was to be made. The fraud was bound to be discovered and bound to avail nothing.

The record in this case is one containing between one and two thousand pages; the testimony as to particular facts and as to particular persons is necessarily scattered. We have bestowed upon it our best attention, and we feel satisfied that the judgment must stand. We do not think it necessary to enter more minutely than we have done into the details of testimony relative tQ the charge of stuffing^ the ballot box at Arcadia. There are reasons other than that which we have mentioned which influence us in reaching our conclusions; but these, in our opinion, were sufficient. .Eor the reasons herein stated it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.