Therefore, our decree will provide for a division of such costs on the basis of one-half to plaintiff and one-half to defendants. However, since plaintiff was not successful on the appeal, the costs of appeal should be borne by him. Sharpless v. Adkins, La.App., 22 So.2d 692; Broussard v. Winn, La.App., 41 So.2d 486. Defendants, however, earnestly protest as unreasonable, excessive and exorbitant the fees of the surveyors and expert witnesses aggregating $915 in connection with this action wherein slightly more than two rural acres are involved.
In resolving boundary disputes, this court has consistently recognized that the principal judicial duty and objective is to determine and implement the intention of the parties and that the rules of interpretation set forth in statutes and jurisprudence must be considered as auxiliary rather than as absolutely controlling. City of New Orleans v. Joseph Rathborne Land Co., 209 La. 93, 24 So.2d 275 (1945); Dufrene v. Bernstein, 190 La. 66, 181 So. 859 (1938); Nattin v. Glassell, 156 La. 423,100 So. 609 (1924); Williams v. Baughman, 477 So.2d 734 (La.App. 1st Cir.), cert. denied, 479 So.2d 921 (La. 1985); Hester v. Smith, 72 So.2d 549 (La.App. 2d Cir. 1954); Sharpless v. Adkins, 22 So.2d 692 (La.App. 2d Cir. 1945). As this court explained in Nattin v. Glassell, 156 La. 423, 425, 100 So. 609 (1924):
"In resolving boundary disputes, this court has consistently recognized that the principal judicial duty and objective is to determine and implement the intention of the parties and that the rules of interpretation set forth in statutes and jurisprudence must be considered as auxiliary rather than as absolutely controlling. City of New Orleans v. Joseph Rathborne Land Co., 209 La. 93, 24 So.2d 275 (1945); Dufrene v. Bernstein, 190 La. 66,181 So. 859 (1938); Nattin v. Glassell, 156 La. 423, 100 So. 609 (1924); Williams v. Baughman, 477 So.2d 734 (La.App. 1st Cir.) cert. denied, 479 So.2d 921 (La. 1985); Hester v. Smith, 72 So.2d 549 (La.App. 2d Cir. 1954); Sharpless v. Adkins, 22 So.2d 692 (La.App. 2d Cir. 1945). As this court explained in Nattin v. Glassell, 156 La. 423, 425, 100 So. 609 (1924):
Thus, the costs may be borne by a defendant who unjustifiably refused to cooperate with plaintiff toward an amicable settlement: Authement v. Theriot, 292 So.2d 319 (La. App. 1st Cir. 1974); Arnaud v. Barber, 225 So.2d 656 (La.App. 3d Cir. 1969); Miley v. Walker, 159 So.2d 38 (La.App. 1st Cir. 1964); Lirette v. Duplantis, 65 So.2d 639 (La.App. 1st Cir. 1953). The costs may also be borne by an unsuccessful plaintiff: Savoie v. Savoy, 262 So.2d 582 (La.App. 3d Cir. 1972); or they may be equally divided between the parties: Girard v. Donlon, 127 So.2d 761 (La.App. 3d Cir. 1961); Sharpless v. Adkins, 22 So.2d 692 (La.App. 2d Cir. 1945). Cf 2 Toullier, Droit civil francais 50 (1833).
Therefore, the judgment of the trial court will be amended to assess the trial costs of this action equally between appellants and appellees. We believe, however, the present case justifies imposition of the costs of this appeal against appellant alone considering appellants have utterly failed to maintain their position and appellees have prevailed upon appeal. Sharpless v. Adkins, La.App., 22 So.2d 692. It is, therefore, ordered, adjudged and decreed the judgment of the trial court casting appellants for all costs be and the same is hereby annulled, reversed and set aside and judgment rendered herein casting appellants, Mr. and Mrs. Leo Miley, and appellees, Mr. and Mrs. William Jerry Walker, in solido, for all costs incurred in the trial court, including the cost of survey, and casting appellants, Mr. and Mrs. Leo Miley, in solido, for all costs of this appeal.
Where there is a bona fide boundary dispute and a judicial determination of the boundary is the only possible means for a final settlement of the dispute, cost of the proceedings should be borne equally by the parties. Sharpless v. Adkins, La.App., 22 So.2d 692, 698; Lucas v. Asset Realization Co., Inc., La.App., 51 So.2d 652, 658."
Otherwise, the costs of survey and establishment of the division line must be paid jointly by plaintiff and defendant, one half by each. LSA-C.C. art. 663; Dufrene v. Bernstein, 190 La. 66, 181 So. 859; Gaude v. Williams, 47 La. Ann. 1325; Miller v. Welsh, La. App., 66 So.2d 25; Smith v. Scarpengos, La. App., 56 So.2d 757; Lucas v. Asset Realization Co., Inc., supra; Olivier v. Melancon, La. App., 40 So.2d 683; Sharpless v. Adkins, La. App., 22 So.2d 692; Fairbanks v. Louisiana Central Lumber Co., La. App., 163 So. 209; Deshotels v. Guillory, supra; May v. Cuthbert, 14 La. App. 604, 122 So. 130; Dwyer v. Smith, 10 La. App. 506, 121 So. 341; Gaubert v. Gaubert, 1 La. App. 719; Sonnier v. Sonnier, 1 La. App. 212; Capo v. Blanchard, 1 La. App. 3. The cost of the official survey should be borne in equal proportions as between the plaintiffs and defendants and the court erred in assessing the full amount to defendants.
Where there is a bona fide boundary dispute and a judicial determination of the boundary is the only possible means for a final settlement of the dispute, cost of the proceedings should be borne equally by the parties. Sharpless v. Adkins, La. App., 22 So.2d 692, 698; Lucas v. Asset Realization Co., Inc., La. App., 51 So.2d 652, 658. Our former decree having been set aside by the granting of a rehearing herein, for the reasons assigned, except as hereinafter specially noted, the judgment appealed is affirmed and, accordingly, there is judgment herein in favor of the plaintiff, Leander Kelley, against the defendant, S.J. Carter, fixing the boundary between the lands and estate of plaintiff, described as the W 1/2 of the SE 1/4 of the SE 1/4 of Section 7, Township 23 North, Range 3 West, and that of the lands and estate of the defendant, S.J. Carter, described as the NE 1/4 of the SE 1/4 of the aforesaid Section 7, Township 23 North, Range 3 West, so far as they are contiguous, as the east and west center line of the SE 1/4 of the aforesaid Section, Township and Range, as set forth in the plat of the survey of Bruce Allen, registered surveyor, dated August 27, 1956; and it is further ordered that the cost of this proceeding be borne jointly by plai
As has been many times stated, the intention of the parties is an essential requirement, and, failing the clear-cut and convincing establishment of such an intention, fences or other monuments or markers cannot be considered as determining and fixing the boundaries between adjoining estates. Beene v. Pardue, La.App., 79 So.2d 356 (certiorari denied); Hester v. Smith, supra; Sharpless v. Adkins, La.App., 22 So.2d 692; Dufrene v. Bernstein, 190 La. 66, 181 So. 859; Meyer v. Comegys, 147 La. 851, 86 So. 307; Administrators of Tulane Educational Fund v. Stair, 148 La. 11, 86 So. 595. Counsel for defendants, in brief before this court, further urges that defendants and their predecessors in title have possessed the property north of the fence for a period of 30 years and are accordingly entitled
It should be noted that in none of the above-cited cases does it appear that the court was concerned with whether within the 30-years' possession the visible boundary incorrectly fixed per title could serve as the basis for a prescriptive boundary as between the original vendor and purchaser whose sale created the contiguous estates. Sharpless v. Adkins, La.App., 22 So.2d 692, 694, accepted a road as a visible bound and included for part of the prescriptive period the adverse possession of the original vendor and purchaser; however, the original sale was of "Twenty-four acres (24), more or less * * * East of public road", thus in effect affording basis for the holding that the boundary fixed was correctly fixed according to the record title. In the present instance, from 1919 at least up until 1939, the original purchaser and the original vendor owned the contiguous tracts.