author: Nicholls, O. J.

text:
    No. 13,020.
    State ex rel E. E. Smart et al. vs. Kansas City, Shreveport & Gulf Railway Co.
    Syllabus.
    A railroad company can not be forced by mandamus to establish a depot at a particular place in the absence of a duty having been imposed upon it so to do, either by general laws or by special requirement in their charter.
    ON APPEAL from the First Judicial District Court for the Parish of Oaddo. Land, J.

      J. Hejiry Shepherd for Relators and Appellants.

      T. Alexander for Defendant and Appellee.
    Argued and submitted January 26, 1899.
    Opinion handed down February 6, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiffs in this case represented in their petition to the court that they were residents of the town of Leesville, parish of Yernon, where many of them owned residences and stores; where many of them had been conducting various occupations as merchants, hotel keepers and mechanics; that they owned their several business and residence houses long before the construction by the defendant of its railway line through the parish of Yernon, and through the town of Leesville, the parish seat of Yernon parish. That in consideration of the public, benefit to be derived by the town of Leesville, E. E. Smart, one of the plaintiffs, donated to said railroad the right of way through said town, and petitioners were led to believe by the proper officials of said railway that the said town should have a depot, with proper conveyances, and so located as to furnish proper facilities for the people of Leesville. That it was the duty of said corporation to furnish their town with a convenient and suitable depot, sufficient in capacity for the transaction of railroad business, and so located as to be accessible and convenient to the business and residents ■of said town. That this obligation was incumbent on said railroad company by the Constitution and the laws of the State of Louisiana.

That for a period of six months the said corporation stopped its .trains, received freight and discharged same, as well as carried passengers, from a switch located within two hundred and thirty yards of the court house of Vernon parish, about the centre of said town. That .access to said stopping point was easy, safe and convenient, to the public and the people generally having business in said town of Lees-ville, and at the court house of Vernon parish'. That on the 29th of .January, 1897, the said corporation, through its right of way agent, purchased forty acres of land adjacent to the town, had the same surveyed and platted into town lots, and built a depot thereon one-half mile from the court house; that the said depot is located in a swamp inaccessible to the public, and imposes extra expense on passengers going to and from said town of Leesville to said depot. That it is with extreme difficulty goods are hauled to and from said depot, owing to the almost impassible condition of the road leading from the town to the same, the ground being of marshy character, and quicksands underlying part of the road. That access to said depot to secure freight was difficult and expensive, and the public were greatly inconvenienced thereby; that an additional expense was imposed on the people of Leesville in order to transact business with said railroad ■company, which was an unnecessary and grievous burden, because said company could furnish safe, convenient, and easy access to the public, and people of Leesville by locating a depot in said town and continuing to serve the public as they began. That the said corporation, in total disregard of the Constitution of the State and its charter of incorporation, had engaged in the business of buying and selling real estate in said parish 'of Vernon, and that the purchase of said forty acres of land was not incidental nor necessary to its business as a common carrier. That said depot was located, not in the interest of the public or for the convenience of its business as a railroad, but for the sole purpose of making large profits on the land purchased; that said company, through its land commissioner, was seeking- to secure the removal of the court house, which stands where it has been convenient to the people of Vernon, cn high ground, and surrounded by the buildings of the merchants, mechanics and residents >of said town, and said commissioner had offered one thousand dollars and one aero of ground for its removal to the centre of the company’s tract of land, but a half a mile distant from the present court house, all for the sole purpose of aiding said corporation to carry on its land speculations and make profitable its real estate investment in land, not necessary nor incidental to its business as a common carrier, which it was illegally conducting.

That its agents and employees were actively engaged in circulating petitions to the police jury of Vernon parish to order an election for the removal of the court house one-half mile distant to a low, marshy, thicket, where the corporation was then selling lots by reason of its locating its depot on said tracts; that prior to said location it was an uninhabited tract of forest swamp. That the said acts of the corporation would render valueless a large amount -of property in residences and business houses belonging to the relators, and practically compelling them to remove to close proximity to said depiot as then located, and solely to advance the illegal and selfish real estate speculation of the officer of said corporation, and that said corporation was so conducting its business near the town of Leesville by locating its depot at a remote distance from said town, and refusing to furnish adequate and sufficient depot facilities for the general public in said town and vicinity as to infringe on the equal rights cf individuals and the general well being of the State.

That said acts of said corporation in locating 1heir depot one-half mile from said town, and refusing to furnish a depot for the general public’s convenience in said town, although passing immediately through it, was illegal and to the great injury of petitioners, and that for said injury the law had assigned no relief by the ordinary means, and that in order to maintain their rights and that of the public it was necessary that a writ of mandamus issue on relator’s behalf, ordering and commanding said corporation to furnish' them and the public generally of the town of Leesville, suitable, adequate and accessible depot facilities, at which the public business of said town can be conducted with comfort and with regard to the rights and general convenience of the public, without the oppressive, expensive, and extremely difficult method occasioned by the remote and inconvenient location which was solely in the interest of the sale of town lots, and not in the interest of the public. Their prayer was that the corporation establish a depot in the town of Leesville which would give the people of said town accessible, adequate, and suitable facilities for the-transaction of freight and passenger business with the said corporation.

The defendant filed an exception of no cause of action, which the District Court sustained and dismissed plaintiffs’ suit. They appealed.

In its reasons for judgment the District Court said: “The petition sets forth no contract or agreement binding the defendant to maintain a station in Leesviile, but alleges that such is the obligation of the company under the Constitution and laws of the State.

The court has been referred to no law or decision of this State which makes it the duty of a railroad company to establish stations at or near the county seat of the parish, or in every town or village which its line may traverse. It is not alleged that Leesviile is an incorporated town, and it may be assumed that it is a village without fixed limits in which the court house of the parish is located.

It is admitted that the station of the defendant corporation is not more than one-half mile from the court house, and the object of this suit is to compel the erection of a depot, side tracks, etc., at a point nearer to the court house, say two hundred and thirty yards distant threrefrom.

In State ex rel. New Orleans vs. Railroad Company, 37 An. 589, our Supreme Court held that the writ of mandamus does not lie to compel corporations to perform obligations arising from a contract, and that it can be invoked only to compel the performance of some clear, unequivocal duty imposed by law.

By Act 133, of 1888, it was provided that when a corporation is bound by contract, or otherwise, to any parish or corporation with reference to the paving, grading, repairing, reconstructing or care of any street, highway, bridge, culvert, levee, canal, ditch, or crossing, and shall fail or neglect to perform said contract or obligation, the parish or municipal corporation shall have the right to proceed by mandamus.

In State ex rel. City of New Orleans vs. New Orleans & Northeastern Railroad Company, 42 An. 138, our Supreme Court held that Act 133, of 1888, extended the remedy of mandamus to matters and' tilings not hitherto included in its scope, and must be strictly construed.

If there is no law of this State imposing a clear and unequivocal duty on defendant to establish a station in Leesviile, the mandamus'. will not lie, however reprehensible may have been the motive and actions of the corporate authorities.”

Opinion.

Though the fact is not directly stated in plaintiffs’ petition, we understand them to charge that the defendant company after having, during a period of six months, stopped its trains, and received and discharged freight, and received and delivered passengers from a switch located within two hundred and thirty yards of the court house of Vernon parish, about the centre of said town, had illegally and improperly discontinued said service. That it had done so from the selfish and improper motive of furthering its own interests in the sale of lots upon a tract of land which it had bought for speculation in violation of the Constitution of the State.

Plaintiffs do not allege that defendant had ever established a depot at Leesville, nor do they allege, if the service at that place (such as it was) was discontinued, that a demand for its resumption was made and refused. The relief which they seek at our hands is not the resumption of the discontinued service at the place referred to, and the replacing of the switch, if it had been removed, but the “establishment by the defendant company of a depot in the town of Lees-ville which would give the people of said town accessible and suitable facilities for the transaction of freight and passenger business with said corporation.” Plaintiffs do not question the right of the company to establish depots at points other than Leesville, whether far or near, nor do they ask that the depot which the company has established on its ground be removed to Leesville.

Plaintiffs ask at our hands no action looking to the prohibiting of the further sale, by the defendant, of lots of ground on real estate which it had purchased and was dealing with in violation of the Constitution. The allegations on that subject, we presume, were inserted simply in aid of the -limited relief sought by showing bad faith in the company in discontinuing business in the town. If true it be that the defendant is violating the provision of Art. 236, of the Constitution, by “engaging in business other than that expressly authorized in the charter, or incidental thereto,” and relators are injured and prejudiced thereby, they are not without remedy, as the Attorney General, on his attention being called to that fact with official action requested at his hands would, beyond doubt, bring the authority of the State to bear in the premises.

On the argument of the case our attention was directed to the allegation that “£. E. Smart (one of the plaintiffs), 'donated to the defendant company the right of way through the town, in consideration of the public benefit to be derived by the town of Leesville, and petitioners were led to believe by the proper officials of said railway company that the said town should have a depot with proper precautions, and so located as to furnish proper facilities for the people of Leesville.”

This averment falls short of showing any promise or engagement to that effect by the corporation, -or of showing any misrepresentation on its part by which petitioners were led to take action of any kind. The allegation is of too vague and uncertain a character to base upon it any claim of estoppel, contract or engagement.

As matters stand the only question before us is whether, as a matter of law, the plaintiffs have the right, through mandamus, to force the defendant to establish a depot at Leesville. The Supreme Court of the United States was called upon to consider this question in Northern Pacific Railroad vs. Dustin, 142 U. S. 198, under a state of facts very similar to those alleged by the plaintiffs in their petition. The facts of that case, as shown by the report of the court’s opinion, were that “the Northern Pacific Railroad at one time stopped its trains at Yakima City, but never built a station there, and after completing its road four miles further to North Yakima, established there a freight and passenger station. That North Yakima was a town laid out by the defendant on its own unimproved land. That after having establishéd this depot, defendant ceased to stop its trains at Yakima City. In consequence, apparently of this, Yakima City which, at the time of the filing of the petition for mandarriuSj was the most important town in poulation and business in the country, rapidly dwindled, and most' of its inhabitants removed to North Yakima, which at the time of the verdict had become the largest and most important town in the county. The defendant could build a station at Yakima City, but the1 cost of building one would be eight thousand dollars, and the expense of maintaining it one hundred and fifty dollars a month, and the earnings of the whole of this division of the defendant’s road are insufficient to pay the running expenses.

There were other stations for receiving freight and passengers-between Yakima and Pasco Junction, which furnished sufficient facilities for the country south of North Yakima which included Yakima City, and the passenger and freight traffic of the people living in the surrounding country, considering them as a community, would be better accomodated by a station at North Yakima than by one at Yakima City. After the verdict, and before the District Court awarded the mandamus, the county seat was removed by the territorial legislature from Yakima City to North Yakima.”

In discussing the question the Supreme Court of the United States •declared that “a writ of mandamus to compel a railroad corporation to do a particular act in constructing its road or buildings, or in running' its trains, can be issued only when there is a specific legal duty on its part to do that act, and clear proof of that duty. If, as in Union Pacific Railroad vs. Hall, 91 U. S. 343, the charter of a railroad company expressly requires it to maintain its railroad on a continuous line, it may be compelled-to do so by mandamus

“So if the charter requires the corporation to construct its road and run its cars to a certain point on tide water (as was held to be the case in State vs. Hartford & New Haven Railroad, 29 Conn. 536), and it has so constructed its road and used it for years, it may be compelled to continue to do so. And mandamus will lie to compel a corporation to build a bridge in accordance with an express requirement of statute. New Orleans Railway vs. Mississippi, 112 U. S. 12; People vs. Boston & Albany Railroad, 79 N. Y. 569. But if the charter of a railroad corporation simply authorizes the corporation, without requiring it to construct arid maintain a railroad to a certain point, it has been held that it can not bo compelled by mandamus to complete or maintain its road to that point when it would not be remunerative. York & North Midland Railway vs. The Queen 1 El. & Bl. 558; Great Western Railway vs. The Queen, 1 El. & Bl. 874; Commonwealth vs. Fitchburg Railroad, 12 Gray 180; State vs. Southern Minnesota Railroad, 18 Minn. 40.”

“The difficulties in the way of issuing a mandamus to compel the maintenance of a railroad and the running of trains to a terminus fixed by the charter itself, are much increased when it is sought to compel the corporation to establish, or to maintain a station, and to stop its trains at a particular place on the line of its road. The location of stations and warehouses for receiving and delivering passen•gers and freight involves a comprehensive view of the interests of the public as well as of the corporation and its stockholders, and a consideration of many circumstances concerning the amount of population and business at or near, or within convenient access to one point or another, which are more appropriate to be determined by the directors, or, in case of their abuse, by the legislature, or by administrative boards, entrusted by the legislature with that duty, than by the ordinary judicial tribunals.”

Referring to the ,pase directly before it, the court said: “To hold that the directors of this company, in determining the number, place and size of its stations and other structures having regard to the public convenience as well as its own pecuniary interests, can be controlled by the courts by writ of mandamus, would be inconsistent with many decisions of high authority in analogous cases.”

The court cited a number of decisions bearing upon the question at issue, among others that of Atchison, Topeka & Sante Fe Railroad vs. Denver & New Orleans Railroad, 110 U. S. 667; 681; 682, in which Chief Justice Waite, in delivering his opinion, said: “No statute requires that connecting roads shall adopt joint stations, or that one railroad shall stop or make use of the station of another. Each company in the State has the legal right to locate its own stations, and, so far as statutory regulations are concerned, is not required to use any other. A railroad company is prohibited, both by common law and by the Constitution of Colorado, from discriminating unreasonably in favor of or against another company seeking to do business on its road, but that does not necessarily imply that it must stop at the junction of one and interchange business there because it has established joint depot accomodations and provided facilities for doing a connecting business with another company at another place. A station may be established for the special accommodation of a particular customer, but we have never heard it claimed that every other customer could, by a suit in equity, in the absence of a statutory or contract right, compel the company to establish a like station for his special accommodation at some other place. Such matters are and always have been proper subjects for the legislative consideration unless prevented by some charter ■ contract, but as a general rule remedies for injustice of that kind can only bo obtained from the legislature. A court of chancery is not any more than a court of law clothed with legislative power.”

The court quoted approvingly from People vs. New York, Lake Erie & Western Railroad Company, 104 N. Y. 58, 66, 67, in which, the Court of Appeals refused to grant a mandamus to compel a railroad corporation to construct and maintain a station and warehouse of sufficient capacity to accommodate passengers and freight at a village-containing twelve hundred inhabitants, and furnishing to the defendant at its station therein a large freight and passenger business, although it was admitted that its present building at that place was entirely inadequate; that the absence of a suitable one was a matter of serious damage to a large number of persons doing business at that station; that the railroad commissioners of the State, after notice to-the defendant, had adjudged and recommended that it should construct a suitable building there within a certain time, and that the-defendant had failed to take any steps in that direction, not for want, o J means or ability, but because its directors had decided that its interests required it to postpone doing so.

The court, speaking by Judge Danforth, while recognizing that' “a plainer case could hardly be presented of a deliberate and intentional disregard of the public interest and the accommodation of the public,”' yet held that it was powerless to interpose, because the defendant, as a carrier, was under no obligation, at common law, to provide warehouses for freight offered, or station houses for passengers waiting transportation, and no such duty was imposed by the statutes authorizing companies to construct and maintain railroads “for public use in the conveyance of persons and property,” and “to erect and maintain all necessary and convenient buildings and stations” for the accommodation and use of their passengers, freight and business, and,because, under the statutes of New York the proceedings and determinations of the railroad commissioners amounted to nothing more than an inquest for information, and had no effect beyond advice to the railroad company and suggestion to the legislature, and could not be judicially enforced.

The court said: “As the duty sought to be imposed upon the defendant is not a specific duty prescribed by statute, either in terms or by reasonable construction, the court can not, no matter how apparent the necessity, enforce its performance by mandamus. It can not compel the erection of a station house, nor the enlargement of one. As to that the statute imports an authority only, not a command, to be-availed of at the option of the company in the discretion of its directors who are empowered, by statute, to manage fits affairs/ among which must be classed the expenditure of money for station-buildings or other structures for the promotion of the convenience of the public having regard to its own interest. With the exercise of that discretion the legislature only can interfere. No doubt, as the respondent urges, the court may by mandamus also act in certain cases affecting corporate matters, but only where the duty concerned is specific and plainly imposed upon the corporation.”

“Such is not the case before us. The grievance complained of is an obvious one, but the burden of removing it can be imposed upon the defendant only by legislation. The legislature created the corporation upon the theory that its functions should be exercised for the public benefit. It may add other regulations to those now binding it,, but the court can interfere only to enforce a duty declared by law. The one presented in this case is not of that character. Nor can it by fair or reasonable construction be implied.”

The mandamus in North Pacific Railroad vs. Dustin was refused, though presented in the name of the territory on the relation of its prosecuting attorney. The mandamus in the case at bar was presented in the name of private individuals whose special interest in the subject matter as differing from that of the public at large and giving them a right to stand in judgment might be questioned. No issue was made, however, upon that point in the briefs or argument.

In Southeastern Railway vs. Railway Commissioners, a railway" company was held by Lord Chancellor Selborne, Lord Chief Justice • Coleridge, and Lord Justice Rrett, in the English Court of Appeal, to ■ be under no obligation to establish stations at any particular place or places, unless it thought fit to do so, and was held bound to afford' improved facilities for receiving, forwarding and delivering passengers and freight at a station once established and' used for the purpose of traffic, only so far as it had been ordered to afford them by the railway commissioners within powers expressly conferred by act of Parliament (62 B. D. 586, 592).

The decisions in Northern Pacific Railroad Company vs. Dustin, and in People vs. New York, Lake Erie & Western Railroad, 104 N. Y. 58, 66, 67, were, in our opinion, based upon correct principles-' which should and must control the present case.

For the reasons herein assigned it is ordered, adjudged and decreed, that the judgment of the District Court be affirmed, without' prejudice.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 12,999.
    Mrs. M. A. Patout & Son vs. John B. Lewis.
    Syllabus.
    *(1.) It is not necessary in an act creating- a servitude that the accessory rights required to carry it into effect, and without which it would be of no value on service, nor the obligations resulting- from these rights should be mentioned. '.They accompany and pass with the contract as incidents thereof.
    (2.) Á person consenting to a servitude upon his land thereby consents to a right of access to and from, and a right of passage to and from the land subjected to the servitude in order to give effect to the servitude to the exi tent, and in the manner known to and contemplated by the parties. I-Ieto whom a conventional servitude is due has the right to make all the works necessary to use and preserve the same. He has the right to place a gate in the boundary fence, if one be necessary to reach the grounds, and insist that it be not removed and access to the lands barred.
    <3.) It is the duty of the owner of the estate which owes the servitude to fix the place where lie wishes it to be exercised when the manner in which the servitude is to be used is uncertain, and the place which is proper for the exercise of the right is not precisely fixed in the title.
    (4.) When the right of building and operating a tramway and switch has been granted, and the owner of the land has consented to the use of the land at the end of the switch for the purpose of dumping cane to be thence loaded on cars, and the tramway and switch have been constructed and a dumping ground has been used at a certain place and in a certain manner for several .•years to the knowledge of all parties — the owner of the land cannot ignoro ;the fixed condition of affairs in which he has acquiesced, and to which he has ;by his conduct consented, and take down and remove the gate giving access : to the grounds, and bar entrance to the latter under a claim that the switch •and dumping ground were improperly located and rights to the servitude had been forfeited for non-performance of conditions attached thereto.
    i<5.) The owner of the land has the right when the servitude is not being exercised to strengthen for his own protection the gate giving access to the land subjected to the servitude and the fence upon his boundary line, but he must do it in a manner not tending to diminish the use of the servitude or to make it more onerous. He cannot change the condition of the premises.
    (6.) The owner of the estate to whom the servitude is due has the right when the owner of the estate owing the servitude has barred entrance to the lands subjected to it to remove the obstructions placed in the way of the exercise of his rights without having recourse therefor to judicial proceedings when lie can do so without a breach of the peace. When it has been, established on the trial of a particular case that he could validly have exercised such right he cannot be subjected to damages for having applied for and obtained and had executed an em parte order of court directing the sheriff to remove the obstructions, even though the order should not have been given.

      (7.) When the owner of the land to whom a servitude is due finds the exercise of his right prevented by the removal by the owner of the land owing the servitucle of the gate giving entrance to the ground, and the latter refuses on demand to replace matters as they stood, he is warranted in fearing should he open the way to the grounds that entrance thereto would be again barred by the owner unless he should be enjoined from so doing.
    ON APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Walter J. Bourhe & Bro. (Foster & Broussard, of Counsel) for Plaintiffs and Appellants.

      L. T. Dulany for Defendant and Appellee.
    Submitted on briefs January 12, 1899.
    Opinion handed down February 6, 1899.
   Statement op Facts.

The opinion of the court was delivered by

Nicholls, C. J.

Petitioners prayed the District Court for an injunction directed to the defendant, prohibiting him from further interference with the free use and undisturbed possession of certain described lands, and more particularly that he be restrained iron further obstructing’, by fencing' and otherwise, any of certain landis which had been donated to them by defendant by notarial act of the 11th of January, 1893, by act before Weeks, notary, for the purpose of facilitating plaintiff’s operations in the purchase and transportation of cane to their sugar mill, situated in the parish of Iberia, on which plaintiffs had constructed a tramway and switch.

They averred that since the date of the donation of the lands they had taken possession of the same and had continued to hold them up to date, but that defendant, "without right or reason, had fenced off and barricaded the lot of ground described in the act of donation as being of two hundred and fifty feet in length by a width of two hundred and fifty feet used as a dumping ground for cane; that he .had placed his fence on said tract and, refusing- to move it, was impeding and obstructing the free passage on said land, and preventing the use thereof for the purpose for which it was donated and used by plaintiffs. That they were about to begin milling operations; that the parties from whom they purchased cane in the neighborhood of said tract required access to the switch on said tract, as in preceding years, had been the rule; that the obstructions to their rights, depriving them of the means and facilities required for their operations, was a nuisance and inflicted upon them irreparable injury. Plaintiffs supplemented their prayer for an injunction by a prayer that the sheriff of Iberia parish be ordered to proceed to the locality indicated, and to remove therefrom the fencing and obstructions set forth, and to clear said lots therefrom.

The District Court, upon this petition, ordered an injunction to issue as prayed for, and instructed the sheriff to proceed at once to the place designated, and to remove therefrom the fencing and obstructions placed thereon by the defendant.

The sheriff, under this order, proceeded to the point specified and made an opening in the fence bordering the public road, thus enabling parties to enter from the public road into the dumping ground. The defendant answered, pleading first the general issue. He admitted the existence of the Act of donation, but denied all rights claimed by plaintiffs under the same.

He averred that plaintiffs’ action in suing out the writ of injunction and causing the sheriff to cut down and remove a part of .his fence, which enclosed his cultivated lands, was illegal, malicious, and without cause or shadow of right, and that if plaintiff had any right to an entrance upon the land (which he denied) said right could only exist by virtue of the act of January 1, and that said act contained no stipulation requiring defendant to remove any part, or portion, of his fence and enclosure, but imposed on plaintiff the obligation of putting up and keeping all necessary gates.

That the fence enclosing the land referred to as a dumping ground' is the fence that enclosed the lands of defendant wherein he cultivated his crops, and by cutting an opening in said fence and leaving the same open, the entire crop of defendant was exposed to the ravages-of cattle and other animals. That the wrongful injunction and acts perpetrated thereby had caused him to suffer much annoyance, loss of time, and expenditure of money, and forced him to employ counsel to dissolve the injunction. That he had been damaged by said wrongful acts in the sum of two thousand dollars. Further answering he alleged that plaintiff had violated the conditions assumed by him in the act of donation, and had forfeited all rights under said act to any portion of the land over which the right of way was granted, and had also trespassed upon the land of defendant, not donated, by laying the tramway or switches in a place different from that designated in the act, and this plaintiff did knowingly, and against the will of defendant, who protested at the time and had repeatedly protested, and demanded that the switch be removed, and whiqh wrongful action resulted in cutting up the land of defendant in a very damaging manner.

He averred that a portion of the land occupied by the switch built by plaintiff was never donated, and that plaintiffs were trespassing thereon; that plaintiffs had forfeited the right of way granted for the reason that the consideration promised, arid for which the right of way was granted, had been refused and denied defendant, and in lieu thereof abuse and injury to his property had been perpetrated by the wilful and malicious acts of the plaintiffs. That plaintiffs’ refusal to allow him and his laborers the use of the cars and switch had caused him to lose hundreds of tons of cane worth seven hundred and fifty dollars, which he also pleaded in roconvention. That the right, if granted, should be declared forfeited, and plaintiffs decreed the trespassers. That the injunction sued out should be dissolved, with damages, actual and exemplary, in the sum of one thousand dollars each, and attorney’s fees in the sum of two hundred and fifty dollars, which he pleaded in roconvention.

He prayed that the injunction be dissolved, with damages, actual and exemplary, in the sum of one thousand dollars for each cause, and with two hundred and fifty dollars attorney’s fees, and seven hundred and fifty dollars for cane crops lost.

He prayed that the act of donation of the right of way over his land 'be declared forfeited and sot aside and annulled, or in the alternative if said donation be maintained; that plaintiffs be decreed trespassers on such portions of defendant’s lands as were shown to be occupied by the switch, and not designated in the act, reserving defendant’s right to enforce a specific compliance with all the stipulations of the .•act, and to sue for damages resulting from any violation.

The District Court ruled that the setting aside of the act of donation could be demanded only in a direct action; that it could not be asked in reconvention. It dissolved the, injunction with costs. It rejected the demand for damages, declaring that none had been proved. Plaintiffs appealed.

Defendant answered the appeal praying that the judgment be-amended by awarding him one hundred dollars for attorney’s fees and five hundred dollars as damages, and that as so amended the judgment, be affirmed.

Opinion.

Defendant and appellee having answered the apxieal taken herein, by plaintiff, asking that the judgment below be affirmed excex>t to the extent which he prayed to have the same amended by awarding him one hundred dollars for attorney’s fees and five hundred dollars as damages, our inquiries are limited to ascertaining whether or not the judgment below was correct in setting aside plaintiff’s injunction, and if it was, whether or not defendant should not have been allowed his attorney’s fees and damages to the extent now claimed.

The evidence established that the plaintiffs were planters engaged' not only in the cultivation of cane, and manufacturing of the same into sugar, but in manufacturing sugar from cane purchased by them from their neighbors. That this latter branch of their business necessitated their having under their ownership and control a tramway over the lands of the parties from whom they xmrehased, and so situated as to enable other parties from when they purchased to avail themselves-of the same. That they applied to their neighbors (among whom defendant was one) for assistance, in carrying out this object and succeeded in obtaining from them grants under which they constructed' the tramway. The dealings between plaintiffs and defendant touching this matter are shown by a notarial act of the 11th of January, 1893, before Weeks, notary, in which after reciting that xffaintiffs were a partnership formed for the purpose of buying cane and refining sugars, etc., and were then locating and about commencing the construction of a switch from their sugar mill in the first ward of the parish of Iberia, near the town of Patoutville, to and including the-lands of John B. Lewis, which switch was to pass through the property therein described, Lewis is made to declare that in consideration of the increased value which would be given to said land and of the additional benefits and conveniences resulting from the building of' said switch,he gave, granted, donated and conveyed, free from all damage and cost unto Mrs. M. A. Patout, their heirs and assigns, a strip of land in said parish to-wit:

“Said strip of land to be twenty-five feet wide on its whole extent, except as hereinafter given more width for the purposes of curves, yards, etc., beginning and to commence at the western boundary of Frere Bonin’s, about where the railroad of the Caffery refinery crosses, and running due north along said last boundary to the public road where said switch, after crossing Frere Bonin’s land meets said Lewis’ land, said Lewis grants as much land as shall he necessary to make the proper curve, thence due west along’ south side of the public road, and contiguous thereto, to the extreme northwest corner as shall be necessary to make an extra switch, said switch running along the west line from the northwest corner about two hundred and forty feet, and at the terminus of said extra switch said Lewis grants a tract of land 250 feet in length and two hundred and fifty feet in width, said land to be high land and to be used for the purpose of a yard for dumping cane, switch purposes, etc. Said right of way or strip of land shall be twenty-five feet in width and-feet more or less in length.

“To have and to hold the said tract of land for the purposes above-mentioned, unto the said Mrs. M. A. Patout & Son, their heirs and assigns forever.

“The said firm of Mrs. M. A. Patout & Son, on their side, bound and obligated themselves to put in all necessary and proper drains, crossings and gates on the line of said switch, if a switch shall be-needed, said Lewis, grantor, reserving the right to demand that said’ switch shall be placed on the northeast corner of his land. Should the said road cease to be used for the purposes stipulated then and in that event said land granted should revert and become the property of grantor.”

The evidence showed that the tramway was constructed as it still exists in the year 1894, and that it was- utilized in taking off the crops-of 1894 and 1895.

As laid, it crosses Lewis’ land, on its eastern boundary, running by a northwesterly curve near to the northern boundary of the lands-contiguous to which is a public road running east and west. The tramway runs along the northern boundary nearly due west parallel to the public road until it nearly reaches the western boundary of the land where it curves towards and crosses the public road mentioned and leaves Lewis’ property. From the point where this last •curve commences, the plaintiff constructed the switch referred to in the act. It runs on a curved line from the main tramway in a southwesterly direction, terminates about sixty feet from the western boundary of Lewis’ land, along which there is a second public road at right angles to and connecting with that first mentioned.

At the time of the passage of the notarial act the particular tract •of land on which the tramway and switch was built was used by Lewis .as a pasture, but it was subsequently turned into a cultivated field. A gate opened from the public road on the northern boundary into this pasture through which outside parties from whom plaintiffs purchased cane passed with their loaded carts, dumping the cane around ■the end of the switch, to be there loaded into cars. It was soon found -that the cattle on Lewis’ pasture went upon the dumping ground and -to some extent injured the cane lying upon the same.

To remedy this, permission was granted by Lewis to throw a wire fence around the interior lines of the dumping ground. In the meantime, the passing' of the loaded cane carts through the pasture having •considerably cut it up, Lewis gave permission to the farmers selling •cane to the plaintiffs to open, a gate opposite to the dumping’ ground through the fence lying along the public road on the northern boundary, they to be responsible for it. It was through this gate that the farmers mentioned had i access to the dumping ground in 1894 and 1895. The interior wire' fence to which reference has been made ■served the double purpose of protecting the farmers’ cane from injury from cattle, and also of preventing animals who might accidentally get into the dumping ground through the gate, from passing into the •pasture or field beyond. At some time, not fixed with certainty, this interior fence was removed by the defendant. In 1895, just after the grinding season of 1894 had closed, defendant caused Ihe gate oppo•sito the dumping ground to bo taken out and placed on the other side of the public road, and the gap in the fence made by such removal -to be closed by wires stretched across the same. Defendant on the ■stand gave as his reason for so doing that the gate had become dilapidated and no longer served as a protection ¿gainst the ingress and ■egress of cattle. Just before the commencement of the grinding-season of 1896, plaintiffs sent two persons to ask defendant to replace the gate. On his failing to do so, plaintiffs instituted the present proeeedings. The testimony in the case and defendant’s pleadings show that a disagreement of some kind had taken place between the plaintiff's and the defendant, either in respect to the purchase of'the cane cultivated by defendant’s tenants, or to their right to avail them- , selves 'of the cars upon the tramway to transport their cane to other places. The facts of the ease are not shown, but defendant in his .answer, sets up a claim in reconvention of seven hundred and fifty dollars for damages for loss of cane, and in his testimony referring to the demand on him to re-open or replace the gate, stated that he answered the parties sent to him for that purpose that he “would not puc in the gate;” that he thought Mr. Patout had treated him very badly. Defendant denied that he was asked to “re-open the fence;” and insisted that, the demand upon him was “to put in the gate.” One of the two parties who made the demand upon him, testified to the same effect, but the other testified that he had called upon defendant '“to open the gate.”

We understand the District Court to have reached the conclusion in view of all the circumstances and probabilities of the case, the relation of parties and the business in which they were respectively engaged; the situation of the properties and the benefits to be derived by each that the notarial act before Weeks, notary, evidenced not a transfer of the ownership of the property described therein, but the creation of a servitude; that therefore, the fence surrounding Lewis’ land remained his property and he had the legal right to take out the .gate which the farmers had placed in the fence, and close the gap; particularly at a time when the servitude was not being exercised. That there was nothing in the act of January, 1893, entitling the plaintiffs to deprive defendant absolutely of the exercise of that right; that the evidence left the exact legal location of the dumping ground in doubt, and it was a question whether, under the act, it was not entirely inside of the pasture away from the fence and the northern boundary line of Lewis’ land. The court in its reasons for judgment, said:

' “The fence formed no part of the property donated; it was and still is his property, of which he may dispose as he judges proper, provided he does so in a legal manner, although others might be inconvenienced by his action. He could certainly close his gate, which is a part of the enclosure of his lands and prevent ingress and egress through Tt, unless it be shown that by some act of his he has divested himself of 'the power to do so. The act of donation is mute on the subject; there is no proof other than that he allowed the use of that gate by sufferanee and to accommodate Ms neighbors. He therefore cannot be hampered in the use he may desire to make of his property. The court is of the opinion that the plaintiffs have no real right that they can exercise on the gap or gate in question. They have no right of way through the gate without the consent or permission of the defendant. The court was of the opinion that under no circumstances were the plaintiffs authorized to deal with the fence in maimer such as to-leave defendant’s field unprotected.

Defendant’s counsel says: “It will be noted that one of the conditions of the act on which plaintiff bases his right was that the plaintiff should keep up all necessary gates, hence it was his duty to keep up this gate opening into the dumping ground, but while he looks upon it as such a necessity as to warrant him in calling upon the court, he did not take care to see that it was kept in standing order. Plaintiff’s laches in this matter made it necessary that defendant should act to protect Mmself, and finding the gate broken and down he closed the gate with wire. The dumping ground was not in use at that time of the year and the closing did not and could not injure any one or in any manner interfere with the rights of plaintiff. Neither was it a trespass on the land of plaintiff since he had no ownership in the land, but the use of it only at a certain season of the year.”

“The failure of the defendant to obey plaintiffs’ order to him ill suited their imperious temper, and without hesitation they invoked the machinery of the court to enforce their mandate.

“The Deputy Sheriff who executed the writ and Mr. Davis, both witnesses for the plaintiffs, say that it only required ten minutes work with a hatchet to remove the wires obstructing the gate. Mr. Davis-says thére was no physical or other opposition made to the opening of the gate, and Mr. Lewis swears that he never made or threatened to-make any objection.”

“Then, if no objection was made by defendant or any other person, why did not the plaintiff open the gate himself, instead of. suing out an injunction and having the sheriff to open it, and that sometime before it was necessary for use and while he was obligated to keep up all necessary gates.”

“The evidence showed that no threat was made by Mr. Lewis, and no reason at all can be given by the plaintiff for apprehending opposition to opening the gate, or that it would be again obstructed by defendant.”

The first point to which we direct our attention is the contention made by the defendant that the dumping ground was improperly located and that plaintiffs had no rights whatever at the particular spot where defendant barricaded the fence. For the purposes of this suit we must assume the location was the proper one. A fixed status or condition of thing's reaching over a number of years, the consent to which is evidenced not only by the silence and acquiescence of defendant, but by affirmative acts on his part, cannot be ignored and collaterally drawn in question as has been attempted to be done by defendant.

The switch was constructed years ago, and the dumping ground has been occupied where it now exists ever since, not only under the eyes of Mr. Lewis without complaint, but by his express permission the farmers of the neighborhood were permitted to have access at first through the pasture gate, and subsequently through the gate opposite the end of the switch. It was the duty of the defendant under Article 779 of the Civil Code, if the manner in which the servitude was to be used was uncertain, and if the place necessary for the exercise of the right of passage was not designated in the title to fix the place where he wished it to be exercised. We think he has done so in this case.

Defendant insists that there was no mention in the act before Weeks of any grant to plaintiffs or others to enter upon the dumping ground through his northern boundary fence; that even if it had been located along that line the act cannot be extended beyond its exact terms as to the character and extent of the rights granted; that in point of fact the dumping ground was intended to have been located entirely within and away from the fence, and he was not called upon to grant a right of way from it to the public road. That the act contained not a word of restriction upon his right or ownership in respect to the fence.

There was no necessity for the plaintiffs to have expressly granted to the defendant and the parties from wlj.om he purchases cane, a right of ingress to, and egress from the dumping ground to the public road through the fence, nor a right of way to and from the same over intermediate land of the defendant, if such there was. Defendant was fully advised as to the object intended to be accomplished by the switch and dumping ground, and in consenting thereto, necessarily consented to everything necessary to be done to make the grant effective in the manner contemplated by the parties.

The principle announced in Article 2490 of the Civil Code, which casts upon a vendor “the obligation of delivering the thing sold in-eluding the accessories and dependencies without which it would be of no value or service, and likewise everything that has been designed to its perpetual use” has application in this matter.

The same principle finds expression in Articles 701, 702, 1903, 1930, 1954 and 1964 of the Civil Code.

There was no necessity for the act to have contained any express ■ declaration by defendant that he did through the agreement to which he was then consenting, impose any restrictions upon his rights of ownership in respect to the fence. The acquisition of rights by the plaintiffs carried with it, ipso fado, as a consequence, all restrictions upon defendant’s rights which would be necessary to give effect to the rights conveyed.

Article 772 of the Civil Code, declares that he te whom a servitude is due has a right to make all the works necessary to use and preserve the same, and Article 774 gives to the owner of the estate to which a conventional servitude is due, the right to go on the estate, which owes the servitude, with his workmen, in the place where it is necessary to ■construct or repair the works for the exercise of the same.

Plaintiffs were entitled to place a gate in the boundary fence,- in order to give to those from whom he purchased cane, ingress and ■ egress from the dumping- ground. He was also authorized to enclose the dumping ground on the interior of the pasture by a wire fence, to protect the cane thereon from being injured by cattle. This fence was not only necessary for the use of the servitude granted, but it was beneficial to defendant, in barring the entrance of cattle from without upon defendant’s pasture. (O. C. 662).

It may be conceded that the granting of the servitude to plaintiffs ■ did not withdraw from the defendant the right of repairing- the g-ate .and taking steps to in-otect his field or pasture from outside depredations by temporarily extending wires across the place occupied by the g-ate during the period when the servitude was not being exercised, but this is something other than a right to take down and remove the gate and to bar future entrance to the dumping ground, for Article '777 of the Civil Code declares that “the owner of the estate which owes the servitude, can do nothing tending to diminish its use or to make it more inconvenient, thus he cannot change the condition of the premises.”

Defendant intimates that it was not his intention to do more than ■to temporarily protect himself; that he nowhere declared that plaintiff and his vendors of cane should not thereafter have access to the dumping1 ground; that it only required a hatchet and a few minutes work to have replaced matters in their original situation; that plaintiff or his workmen could have done this themselves, and plaintiff acted maliciously in having recourse to judicial assistance.

We are of the opinion that the plaintiffs had the right to replace matters themselves, if they could have done so, without the danger of a breach of the peace, but we do not see that they incurred any increased responsibility, or lost any of their rights by asking'and obtaining the aid of the court in'enforcing this right. We are not called upon to say whether the court could not have legally declined such assistance, or whether such aid having been ordered to be given, defendant could not, before it was executed, have stayed the order.

The order has been given and executed, and the replacing of matters in their original status has become an accomplished fact.- We do not see how, as matters stand, defendant was prejudiced 'by the fact complained of.

We are not prepared, under the circumstances of this case, to regard defendant’s action in taking down and removing the gate and stretching wires across the gap, as having- been intended to be merely temporary, and done with the object of temporary protection to his field. We are of the opinion, on the contrary, that defendant intended to-permanently close the fence and bar -future entrance to the dumping ground, and that plaintiff had reason to believe that the obstruction to such entrance, placet! there by defendant, and then existing, was intended to be permanent; that the removal of same, if attempted, might be resisted, and if removed, that it would be replaced.

We are of the opinion that plaintiff was justified in seeking a restraining injunction. We do not understand its effect will be to prohibit defendant from exercising hereafter any rights which he may legally have, touching the fence in question, but simply in preventing him from doing anything tending illegally to diminish the use of the servitude or to make it more inconvenient — from changing the condition of the premises to the prejudice of plaintiff’s rights. With that construction given as to the scope, extent and effect of the injunction which issued herein, we are of the opinion that the judgment of the District Court was erroneous and it should be set aside.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is herehv a.nimTled. avoided and reversed, and the injunction is re-instated and the cause remanded to the District Court, costs of appeal and of the District Court to be borne by the defendant and appellee.


text:
    No. 12,975.
    Levert, Burguieres & Co. vs. Amedee N. Hebert; Intervention of Mrs. Agnes Lee Hebert.
    Syi.t ABUS.
    Plaintiffs alleging themselves to be owners of certain described movables, averring that they are in the possession of defendants and praying to be put in possession of the articles enumerated as their property, show a cause of action
    It does not follow, because no money actually passed between the parties at the time of the sale, that therefore the sale was unreal. (C. C. 1900 ; Weld vs. Peters, 1 Ann. 432.) A pre-existing debt due by the transferrer of property to his transforree, supports the transfer.
    ON APPEAL from the Fourteenth Judicial District Court fo1" the Parish of Iberville. E. B. Talbot, J.

      Lozano & Hebert for Plaintiffs and Appellees.

      Hebert & Hebert for Defendant and Intervenor, Appellants.
    Argued and submitted November 20, 1898.
    Opinion handed down January 9, 1899.
    Rehearing refused February 6, 1899.
   The opinion of the court was delivered by

Nicholls, C. J.

On or about the 31st of January, 1898, the plaintiffs filed in the District Court, a petition in which they alleged that they were the owners of certain moveable property. That it was then in the possession of defendant, who was unlawfully and illegally holding the same, and absolutely refused to deliver the same to petitioners. notwithstanding amicable demand. That they feared the defendant having and holding illegal possession of same, would send the same our of the jurisdiction of the court during the pendency of the suit then being brought.

They prayed for a writ of sequestration, for citation upon defend.ant, and that after due hearing there be judgment in their favor, ordering and directing the sheriff to place them in full and complete possession of their property, and for all general, special and equitable relief.

Defendant excepted that plaintiffs’ petition declared no cause, nor right of action. He also moved to have the sequestration set aside on the ground that the allegations of plaintiff’s petition were insufficient in law to maintain the action, and that the affidavit annexed to the petition was necessarily insufficient to maintain a sequestration.

The exception and the motion having both been overruled (on the Yth of May, 1898), defendant answered, pleading the general issue. On July 12th, 1898, Mrs. Agnes Lee Robert, wife of the defendant, filed an intervention in the suit in which she alleged that she was married to defendant in 1892, under a marriage contract, which stipulated that there should be no community of property between them. That at various times since her marriage she had had funds and moneys in bank aggregating1 the sum of forty-two hundred dollars, and that in the course of time she purchased in her own right and name, through her said husband, whom she had authorized to draw cheeks, drafts, etc., as her agent, all of the property sequestered by the plaintiffs in their suit against her husband. That the plaintiffs averring themselves to be the owners of said property, prayed the court to be put in possession thereof, and averring further that they believed that the defendant, Hebert, would remove the property out of the jurisdiction of the court, had obtained a writ of sequestration, and had had all of said property seized by the sheriff. That having money in bank, as alleged, she bought the machinery, implements, mules and horses sequestered by the plaintiffs; that a certain boiler mentioned, and the thresher, were originally the property of her husband, having been bought by him in the year 1892, and paid for by the plaintiffs, who were then her commission merchants. That finding himself in need of the money in the year 1894, in order to assist him in his planting operations, and thus bear a part of the family expenses, she undertook to furnish the machinery, mules, horses and implements necessary to make a crop; that at that time she purchased from her husband the boiler and engine and thresher, he using- the money to make his crop; that from time to time since 1894, and previously, petitioner had furnished all the machinery, implements and stock necessary to run her husband’s business, and had permitted him to make use of the same, thus bearing a part of the expenses; that she had paid with the monies all the repairs, etc., to all the machinery, etc., sequestered by the plaintiff, and during the last year she had used them to make a crop for her own account.

That at the time of the sequestration all of “the property seized was in her possession, and they had, in fact, always been in the actual physical possession of herself and her husband, acting as her agent; that she had never made nor authorized any one to make for her a sale of said property; that the plaintiffs had never had possession of said property alleged to be theirs, actual or constructive, therefore their pretended ownership of it is illegal, fraudulent and untrue, and intended to deprive her of her property. That she was the bona fide owner of said property. She prayed to intervene the suit; that plaintiffs and defendant be cited; that there be judgment in her favor, decreeing- her to be the' owner of all said proprty and quieting- her possession of same, and that pilaintiff’s suit be dismissed, and for all and general relief. The intervenor bonded the property sequestered under order of the court.

The defendant, Amedo Hebert, answered this intervention, admitting- that all the facts and allegations were true and correct; that his wife being separate in property from him, and having monies in her own right, purchased the property described in her petition as therein set forth; that said property had never been out of her xoossession; that said property was at that time being employed by her in the making of a crop. for her account.

The plaintiffs answered the intervention, pleading, first, the general issue.

They averred that they acquired all of the said property by an act sous saing prive on the 12th of February, 3897, through their agent, A. K. Grace, from Amede II. Hebert, in good faith and for a free consideration, to-wit: three thousand, three hundred and ninety-two dollars cash. That said act of sale was recorded in Iberville on the 19th of February, 1897. That actual delivery of said property was made to their agent on the 12th of February, 3897, in the presence of two witnesses, and on the same day said property was leased to said Hebert for the year 1897, at a rental of two hundred and seventy-one 86-100 dollars. That said purchase was made without notice from any one of a claim of ownership thereof. That the record of the sale to themselves was notice to intervenor of said transaction, and she never objected thereto, until the filing of their suit for the recovery of their property. That the marriage contract between intervenor and her husband was never recorded in Iberville parish, nor was any property assessed in intervenor’s name in said parish. ‘

They denied that intervenor had ever possessed any money or funds in her own right, as by her alleged; that such funds, if any she had, were funds of her husband, deposited by him in the name of the intervenor in pursuance of and in continuance of a. concocted scheme of fraud and simulation; that each and every transaction between intervenor and her husband was a simulation and scheme fraudulently entered into between them for the purpose of shielding the pioperty of the husband from the pursuit of his creditors and to enable him, at his will and pleasure, to fraudulently deceive persons dealing with him, so that he might falsely and fraudulently acquire property and enrich himself and intervenor at the expense of others, and particularly, petitioners. They prayed that the demand of the ' intervenor be rejected, and that they themselves be decreed to be the ■ owners of all the property, and that they be placed in possession ' thereof.

The District Court rendered judgment in favor of plaintiffs, recog- ■ nizing their title to the property described in their petition, and ordered that they be placed in possession thereof. It rejected intervenor’s demand. Defendant and intervenor appealed. Appellant contends here that plaintiffs’ action was a possessory action for movables, which character of action is expressly disallowed by the Code of Practice.

Plaintiffs alleged themselves to be owners of certain described', movables; they averred that they were in the possession of the defendant Hebert illegally; they prayed for citation upon him, and that' the court order that they be placed in possession of their property.

The prayer substantially was that the court order that the plaintiffs be placed in possession of the articles enumerated as their property. The language used might have beon more specific and better chosen, but the action vras properly permitted to stand as against an exception. .of no cause of action. If on the trial of the cause it had developed .that plaintiffs were advancing their claims merely as holders and not as owners of the articles, the action would have properly failed, hut the ultimate trial established very clearly (what we think the pleadings themselves sufficiently showed), what the character of plaintiffs1 pretensions were. They rested upon an allegation made, and, in our > opinion, established of ownership of this property. Plaintiffs showed that by act under private signature (of February 12th, 1891), they purchased from the defendant (intervenor’s husband) the personal property involved in this litigation, for the price of $3,392.03; that the act of sale recited the delivery of possession to the purchasers; that on the same day the vendor, Ilebert, leased the same property from the plaintiffs for the year 1891, at a rental of two hundred and seventy-one dollars. The intervenor does not pretend to be a creditor of her husband, nor does she contend that she acquired any portion of this- property from him with the exception of the boiler and thrasher, 'and her claim as to this was not attempted to be followed up by proof. Her claim rests upon a direct purchase alleged to have been made by herself of these movables from the dealers selling the same. Under such ■conditions she is not concerned in knowing whether, at the time Grace acted as the agent of the plaintiffs in making the purchase which he did in their behalf, he then held their power of attorney or not. By claiming the benefit of his acts they have ratified the same. Questions of delivery and price play no part in this controversy. The act sous seing prive signed by the defendant and not attacked by him, concludes him as to the transfer and delivery of the property. Tt does not follow that because no money actually passed between the parties at the time of the sale that therefore the transfer of property was unreal. (C. C. 1900; Wald vs. Peters, 1st Ann. 432). A preexisting debt due by transferrer of property to his transferrees, sup•ports the transfer. It is contended by intervenor’s counsel that she has shown that by marriage contract between herself and her husband it was stipulated there should be no community between them; that she has shown that at the time of the sequestration in this suit she was in-possession of the personal property which was sequestered, claiming the same as her property. That under these circumstances, plaintiffs having failed to show adverse title, there was no necessity that she .should offer proof of her ownership of the property in dispute.

She maintains, however, that she has shown affirmatively that this property was purchased for her by her husband, acting as her agent. Neither intervenor nor defendant took the stand as witnesses. No evidence was introduced to show that at the date of her marriage, or at any time since, was she possessed of any paraphernal property or monies, or that she had any industry from which she could acquire property other than a lease to her for one year of the Avery plantation, executed just a few days before the sequestration was issued in this ease. In this lease her husband appeared as acting for her under a power of attorney, but the power was not 'annexed to the act, nor was any such power shown to have been executed. It was shown that Amedeo N. Hebert opened an account in his own name in the Louisiana National Bank on October 17th, 1894, depositing that day two thousand, five hundred and ninety-one dollars. That at different times between that date and January 14th, (January, 1895) he drew out the whole of this amount except one thousand, three hundred and thirty-six dollars. That .on that day he closed his own account and opened an account on the books of the same bank1 by transferring this balance to the credit of “Mrs. A. N. Ilebert,” A. N. Hebert, “Agent.” That this account had had various deposits placed to its credit between the 14th of January, 18’95, and February 1st, 1898, the whole making an aggregate of seven thousand, five hundred and sixteen dollars. That during this time Amede N. Herbert drew constantly against the account, signing the checks “Agent.”

From what source Mrs. Hebert acquired these various deposits is not attempted to be explained. It was shown that Hebert, the husband, had himself been in active business as a planter in 1894, and presumably he continued in business thereafter. We find him suddenly closing his bank account and transferring the balance standing to his credit to an account opened in his own name as agent of his wife, to which he could add deposits from time to time as he pleased, and from which he could draw without let or hindrance. It is not shown that Mrs. Herbert, personally had anything to do with the opening of this account, nor through what cause she had become entitled to the amount of one thousand, three hundred and thirty-six dollars, with which it opened. 8he alleges in her intervention that she had authorized her husband to draw checks, as agent, in her behalf, but that statement was not verified in any way.

There was nothing to show that Mrs. Herbert’s signature was ever procured by the bank, or that it acted in paying out monies on this new account under any power of attorney shown to it from the wife. The monies having been deposited by the husband himself, as agent of Mrs. A. N. Hebert, the bank obviously recognized the right of the same party to control the fund and to check against it as agent. The wife does not pretend to know when or for what the various checks drawn by her husband were given. She does not attempt to identify any one check as having been given in payment of any particular piece of property. She claims that the whole of this property was in her possession at the time of the sequestration, but the only evidence on this subject is that of the deputy sheriff, who stated that at the time of the sequestration they were on the Avery plantation and being used in the cultivation thereof. It does not follow from that faej; that they belonged to her, cr that they were in her possession as owner. The husband, (particularly, if he was embarrassed in his planting operations), might well allow his wife, separated in property from him, to be substituted for himself as lessee for the opening year and utilize his mules, ploughs, wagons and farming utensils in making the crop. We are satisfied that no portion of the monies standing on the books of the Louisiana National Bank to the account of Mrs. A. N. Hebert belonged in fact to the wife; but, on the contrary, that they belonged to her husband. That conviction carries with it the affirmance of the judgment appealed from.

The judgment is affirmed.