
    
      LARCHE vs. JACKSON.
    East'n District.
    
      March, 1821.
    The party who succeeds on the question of title in a land suit, is still bound to pay damages for his illegal and forcible entry.
    Appeal from the court of the parish and city of New-Orleans.
    Hennen, for the plaintiff.
    The appellant instituted her suit against John Mitchell, to recover possession of seven and half inches of ground, front on Dorsiere lane, with the depth of 121 feet, part of a lot of ground, 68 feet front, and 121 depth; which she alleges to be her property, and of which she avers that she has been in possession for twenty years. She also prays, that a brick wall, which has been placed on the said seven and half inches of land, by the said John Mitchell, may be demolished at his expence, and that he may pay her $500 for her damages. Mitchell answers, that by law, he is authorised to build a partition wall on the plaintiff's lot, to the extent of seven and half inches, which he is about to do, for Alexander Jackson, the owner of the adjoining lot. After the cause had been tried on these pleadings, and some months after the contestatio litis, A. Jackson was vouched by Mitchell to defend the suit. Jackson avers, first, that he is the proprietor of the said seven and half inches of ground—and if he is not, still he is authorised to build a partition wall on them. M. Larche answers A. Jackson, and avers, that he is not the proprietor of the adjoining lot, nor of any part of it, and calls upon him to produce his titles, if any he has.
    The plaintiff, by the evidence, established satisfactorily to this court, on the appeal brought heretofore by Mitchell, that she was in lawful possession of the seven and half inches of ground; and obtained a confirmation of the judgment, which gave her damages against him for the trespass.
    The question for the decision of the court, on the present appeal, is, whether A. Jackson has a right to build on the petitioner’s lot, or whether the wall must be demolished at his expence, and the petitioner be restored to the possession of the seven and half inches of ground?
    The petitioner has proved, most conclusively, by the survey, and by the different witnesses, that for many years she has been in possession of the seven and half inches of ground. This honorable court has already pronounced on this point, in the appeal brought by J. Mitchell, affirming the judgment of damages against him, for his trespass. She has also produced the title, under which she claims.
    A. Jackson, on the contrary, has produced no title of any kind, though required so to do; nor does he prove any possession of the adjoining lot. The petitioner in her answer to the claim set up by Jackson, avers, that he is not the owner of the lot of ground, on which he has undertaken to build, nor is he, under any circumstances, entitled to build on the seven and half inches of her lot.
    To entitle Jackson to the servitude of building a partition wall of seven and half inches, on the lot of the petitioner, he must certainly shew, that he is the proprietor of the adjoining lot; particularly, as he is called upon to produce his titles, and as it is averred, that he has none, and is not the proprietor of the adjoining lot. The Civil Code, 133, sec. 1, clearly considers such servitude as due only to the proprietor of the adjoining lot, for none other can exercise such right. The wall is to become the common property of the adjoining proprietors. A lessee, or usurper, cannot claim or exercise such right; if he should, the true owner may regain the possession, disavow the act, and throw down the wall, which the adjoining proprietor considered as his joint property. In this case, Jackson wishes to compel the petitioner to submit to this risk, when he produces no evidence whatsoever to shew that he is owner of the lot. Before this honorable court will thus jeopardise the rights of individuals, it assuredly will require some evidence of title. The present judgment cannot prejudice the rightful owner of the lot of ground which Jackson has usurped. His rights must remain untouched ; and whenever he shall regain his lawful possession, he will be at liberty to demolish the wall, which the usurper built on his lot, without his consent, Civil Code, 105, art. 12.
    Should it be said, that the petitioner has more ground inclosed in her lot than her title calls for, no argument could be deduced from it favourable to Jackson, even if he proved himself the owner of the adjoining lot, and that he had less than his title called for, it would be no reason to obtain from the petitioner any part of the lot in her possession. " In agris ad mensuram datis, non sequitur argumentum, ut quod alius plus habet, si mihi desit, restituere vicinus cogatur, 3 Mulleri Prompt. 
      216. Fines, n. 7. So in the city of New-Orleans, the lots having 18 feet more than called for by title, will not lose any part of the 18 feet in favour of the adjoining lots. 2 Martin’s Rep., Riviere vs. Spencer.
    
    The petitioner was in quiet possession of the 71/2 inches of ground. Neither A. Jackson, nor any one else, had a fight to disturb her in that possession; nor was she bound to give any reason for her possession. Possideo quia possideo, would always be a sufficient answer to the claims of all the world, until a better title should be produced against her, Civil Code, 479, arts. 23, 24. 5 Martin’s Rep. 662. 6 Febrero, 105, n. 248. 3 Part. 2, 28. Hoppius, 979. n. 1, in Instit. 4, 15, 4. Pothier Propriété, n. 307. 324. Domat, liv. 3, tit. 6, sec. 4, §1. Idem, 3, tit. 7, sec. 1, §15, 17. In this possession, the plaintiff was disturbed by J. Mitchell, by order of A. Jackson. Unless Jackson can justify by some better title, than this act of violence, the plaintiff must be restored to her lost possession. 9 Merlin, 410, n. 3. Nay, if Jackson had any title, by his violent proceedings, he has lost it.
    
      Part. 7, 10, 1 & 10. Novis. Recop. lib. 11, 34. 1 & 2. 2 Sala, 286, n. 27, 28. Villadiego, 431. And what is it that Jackson alleges in his defence? Any title, sale, or possession? Nothing like it; not even a colour of title is pretended. Without giving the least intimation of his intentions, either to the petitioner or to her tenant in possession, Jackson and his agents, entered upon the lot of the petitioner, threw down her inclosures and buildings, and placed the wall on her lot. Supposing Jackson had an indisputable right in law, to build his partition wall 7 ½ inches on the lot of the petitioner, yet, assuredly, he had no right to take the administration of justice in his own hands, without notice to his adversary.
    Supposing further, that Jackson had produced title to shew his ownership of the adjoining lot, has he any right to build this partition wall? The petitioner built first on her lot; she left an entry between her house and the adjoining lot, which would become useless to her, if diminished 71/2 inches. The article of the Civil Code, 133, art. 23, on which Jackson relies, contemplates, that both lots should be vacant, or not built on, as well as that they should not be inclosed in walls. If either of the conditions be wanting, no such servitude can be claimed. But had the legislature any authority to impose such servitude? Can the property of an individual be taken from him for private purposes, without any previous compensation? If the legislature has authority to say, that 71/2 inches of my ground may be taken by my neighbour for his benefit, there will be no security that I shall not lose the remainder. By the ancient laws of Louisiana, Fuero Real, liv. 3, tit. 4, chap. 5, no such servitude was admitted. Every individual was protected in the exclusive enjoyment of his soil. By the treaty of cession, art. 3, as well as by the constitution of the United States, amendments, art. 5, the right to private property is held inviolable. Could a legislature then, constitutionally invade this right?
    The form of the present action is objected to by the defendant, and he insists that it is neither a petitory nor a possessory action, but solely an action of trespass. Fortunately for us, we have no forms of actions; our statute requires us only to set forth our facts, and conclude with a prayer for relief, adapted to the case. The petitioner concludes with a prayer, that the wall erected on her ground, may be demolished at the expence of J. Mitchell; and in her answer to Jackson, that she may be maintained in her possession. She also prays, for all other and further relief which the nature of the case may require. Under the pleadings, this honourable court may order the wall to be demolished, and the petitioner to be maintained in the possession of the lot.
    We think she has shewn enough, to obtain such a decree from this honourable court, though the judge a quo has pronounced nothing relative to this part of the petition.
    It is of great importance to the petitioner, to have a judgment which will finally put an end to the controversy with the defendant, so as to leave no room for other suite. This can be done in no other way than by supplying what the judge a quo has omitted; that is, to pronounce on the prayer to demolish the wall. If the defendant, Jackson, has shewn no title, as we contend, to build this wall on the petitioner's lot, it must be demolished at his expence. If this honourable court shall, however, be of opinion, that the defendant, Jackson, had a right to build a partition well, as he contends, then let it be declared a common wall, and let the petitioner have the benefit of it.
    In whatever way the court shall determine, this appeal has been correctly brought, and the defendant must pay the costs.
    Livermore, for the defendant.
    The petitioner states, that she is the owner of a lot of ground in Dorsiere-lane, of sixty-eight feet front, by virtue of an act of sale, referred to; that there was, and is, a large brick house on said lot, and that she has been in possession of said lot for more than twenty years; that a large frame building on the adjoining lot, has been demolished, and that a brick building is about to be erected on the adjoining lot, by Alexander Jackson, who was then absent; and, that the undertaker, Mitchell, has entered upon her lot, and cut down her gate, and certain out-buildings, and left her property exposed. That said Mitchell has placed the wall of Jackson’s building, about seven or eight inches on her lot, although commanded not to do so; that she built first on her lot, and when the adjoining lot was vacant, and left merely a sufficient entry, and that she is not satisfied with the wall. Wherefore she prays an injunction, and that Mitchell be cited, and for damages against him, and that the wall may be demolished.
    An injunction issued, Mitchell was cited, and he appeared and answered—1. Denying the trespass—2. Stating that he was employed to build a house for Jackson, and that, supposing the seven inches to belong to the petitioner, he had a right to place half the wall on her land—3. A general denial of the allegations contained in the petition.
    Jackson was not cited; but, upon his return, Mitchell prayed, that he might be made defendant, which was granted, and he appeared and anwered—1. That the allegations in the petition were untrue—2. Denying the title of the petitioner—3. Claiming the right to erect a partition wall, in case the seven inches should appear to belong to the petitioner.
    To this answer the petitioner replied, that her action was possessory, and did not put the right of property in issue—2. Denies Jackson’s title, and claims possession for twenty years.
    The court dissolved the injunction, and gave judgment for the petitioner, against Mitchell, for five dollars, damages and costs. From this judgment, dissolving the injunction, the petitioner has appealed.
    The plaintiff’s counsel seems to find some difficulty in giving a name to her action; and from the course of his argument, and from the authorities adduced, it would seem to be doubtful in his mind, whether this be the action communi dividundo, or finium regundorum, or one of the interdicts, either uti possidetis, unde vi, de adipiscenda possessione, or de recuperanda possessione. In point of form, however, it is neither of these, but a common law action of trespass. She does not pray for any division of property, for any fixing of boundaries, nor that the possession may be adjudged to be hers. The petition alleges property in, and possession of a lot of sixty-eight feet, and that the defendant had entered upon the lot aforesaid, and cut down a gate and certain out-buildings thereon. This the defendant denies. He denies the trespass, and all the allegations in the petition. It was then incumbent upon the plaintiff, to prove her case, as she had stated it. Instead of which, her own evidence shews, that the alleged trespass was not committed upon the lot, which she claimed as owner and possessor, and that the wall complained of, does not approach within two feet of her land. Is not this a sufficient answer to her petition? And, upon this appearing, could the defendant be required to produce a title? The possession, stated in her petition, is the same as that proved. It is a possession of the city-hotel, which is on the west end of her lot. Could she have been allowed to prove any different possession, or to have made out in evidence, a possession, or right of possession, of two feet of land not claimed in her petition? It is now pretended in argument, that a possession of one year, of the seven inches, part of the land on which the wall stands, has been shewn in evidence. If this has been shewn, and if the court should be of opinion that the plaintiff has given evidence of possession of seventy feet, instead of sixty-eight, the evidence then does not correspond with the allegations, and must be rejected.
    But, I contend, that the plaintiff has proved no possession, different from her title. She has proved possession of the city-hotel, and the law presumes her to have possessed it according to her title. If she claims more, she is bound to make out her claim by evidence. The burthen of proof is upon her, and she has not shewn possession beyond her boundary. It appears there was a gate, and a gate post formerly; but it does not appear by whom the gate and gate post had been placed there, nor to whom they belonged. It seems, that when the gate was open, no part of it was on the plaintiff’s lot, and that, when shut, it enclosed a part of her lot, and a part of the lot adjoining.
    It is however, contended, that in this action the burthen of proof is no more upon one party than the other, and for this the counsel cites, D. 10, 1, 10, and Inst. 4, 15, 7. But this is not the interpretation which is put upon the texts cited. The interdicts uti possidetis, and unde vi, are indeed styled duplicia, but this only means that either party may sustain the cha- racter of plaintiff or defendant. But he is the plaintiff who brings the suit, D. 5, 1, 13, de jud.; see also the commentaries of Vinnius and Huberus, upon the section of the institutes above cited, Vinnius says “ Eum tamen actoris partes obtinere in his interdictis plerique censent, qui prior ad judicium provocavit, idque non tantum quoad litis ordinationem, sed etiam quoad litis defini-
      
      tionem: ac proinde non probante eo, qui provocavit, reum absolvi." The interdicts recuperandœ vel adipiscendœ possessions, are always styled Simplicia, Cujac. obs. lib. 4, c. 11.
    Another point made by the plaintiff is, that the defendant Mitchell has admitted the seven inches of land to belong to her. To this I object—1. That his admission cannot prejudice Jackson—2. That the admission cannot extend beyond the allegations in the petition, and that the allegations of title and possession are determined by the survey—3. That Mitchell must be presumed to have made the admission in ignorance of the rights of the real parties in controversy—4. That he has made these several defences, and may rely upon either to defeat the writ. If his several pleas are inconsistent, the plaintiff should have moved, that he make his election by which to abide.
    If, however, the court should be opinion, that the possession, or title of the parties to the ground in question, is put in issue upon this petition, and that the plaintiff has fully proved possession, still I think there can be no question as to the right of building a party wall, under the regulations prescribed by the Civil Code. This party wall need not be eighteen inches in thickness. It cannot exceed eighteen inches, and it is merely necessary that it should be sufficient. This sufficiency is fully proved by Pilie. It is contended, that, as the plaintiff had built a brickhouse on the west end of her lot, and had there placed half the wall on Mr. Paulding’s lot, the person building afterwards on the lot adjoining her eastern boundary, shall not place half his wall on her lot, because she had built first. The intention of the law is, however, that every lot may be divided by a party wall, and the only exception is, where the lot is surrounded with walls.
    The last point which I shall make, is upon the appeal. The petitioner calls this a possessory action, and disclaims any intention of putting her title in issue. Certainly, if the action be petitory, she has not supported it; for the survey shews, the land not to be within her title, and she cannot claim title under a possession of ten or twenty years, because the possession would not be in good faith and with just title. We must then suppose it to be possessory, although she does not pray that the possession should be decreed to be hers, nor that it should be acquired to her; nor that it should be restored to her. But, we will suppose the general prayer to be sufficient, and that the parish court had decreed upon the possession, which it has not. Still there could be no appeal, because the judgment is not final between the parties, and the enquiry is not of that nature, which the law considers irreparable. For the judgment upon an interdict, decides nothing more than which party shall be the plaintiff and which the defendant, in a petitory action. The advantage of possession is merely, that the possessor shall be presumed owner; but this presumption will yield before proof of title. Upon this point, the authorities are express and positive. Sala, lib. 3, tit. 11, n. 11. Salgado de reg. protect. p. 3, c. 12, n. 30, 34. Gomez ad l. Tauri, 45, n. 194, and the reason is given by Gomez, “ quia talis sententia parit modicum praejudicium, cum de facili potest reparari in judicio proprietatis.” But in this case, the decree is merely a decree dissolving an injunction, which is not final upon any thing, and from which no appeal lies. Young vs. Grundy, 6 Cranch. 51.
   Porter, J.

The petition alleges property in the plaintiff, of a certain lot of ground, situated in this city, on Dorsier-lane; and that a certain J.Mitchell,had entered upon the premises, and cut down and destroyed the gate therefore belonging to the petitioner, to her damage of $500. It is further alleged, that the defendant, acting under the orders of one A. Jackson, had commenced building a brick wall on a lot adjoining, and had placed a part of the said wall, on the lot before mentioned, although expressly forbidden, and warned not to do so. An injunction is prayed for, prohibiting the said Mitchell, from proceeding any further in the erection of the wall, and judgment is asked for the damages already mentioned.

The judge granted the injunction.

The defendant answered, denying the facts and allegations, and setting up special matter in defence. This answer was afterwards withdrawal and a supplemental one filed, vouching A. Jackson, as the owner of the lot, and the person interested in the defence of the suit.

A. Jackson, the person thus cited, in warranty appeared, and filed an answer, which contained the general issue, that he was the owner of the lot, and had been in possession of it for ten years. But that if it should be decreed to be the property of the petitioner, still, he had a right of placing half a wall there, not more than 18 inches thick.

Testimony, both oral and written, was taken down on the trial of the cause, which, from the manner the cause comes up, it is unnecessary to set forth at length.

The court gave judgment, dismissing the injunction, but decreeing, that the defendant pay $5, and costs of suit, for the trespass.

From this decision, the defendant appealed, and alleges, that it is inconsistent in dissolving the injunction, and yet decreeing him to pay damages and costs.

It has been already decided by this court, in the case of White vs. Well's executors, 5 Martin, 652, that the party who succeeds on the question of title, in a suit for land, may yet be obliged to pay damages, for an illegal and forcible entry on it.

That decision proceeded on the principle that men should not be permitted to do justice to themselves, by an act of violence ; and from a wish to enforce that principle of our law, which guards and protects possession, until title is shewn and proved.

I am of opinion, that the doctrine laid down there, was sound and correct, and applicable to this case.

The evidence supports the conclusion which the parish judge drew from it, and I think the judgment rendered below, should be affirmed with costs.

Martin, J.

I concur in this opinion.

Mathews, J.

I do also.

It is therefore ordered, adjudged, and decreed, that the judgment be affirmed with costs.

GENERAL RULE.

Whenever a case is to be argued in writing, the plaintiff’s attorney shall deliver to the defendants, a copy of his argument, who shall be bound to return it in ten days with his answer, and the plaintiff in ten days after receiving the same, shall deliver the whole, with his reply, to the clerk of the court, or to one of the judges, and if in such reply he shall quote new authorities, he shall be bound to furnish the defendant's attorney with a note of said authorities and of the points to which he thinks they

apply ; and that there may be no altercation relative to the time of delivering the copies of such arguments. It is ordered that no evidence thereof shall be received, but the acknowledgement of the delivery under the hand of the party to whom the argument was given, or if refused, an affidavit of that fact.

And it is further ordered, That if any party shall delay to deliver his argument within the time above limited, the other may deliver his notes to the court, who will then proceed to examine and decide the case.

Provided, That in all cases, the court may, under special circumstances, enlarge the time for the delivery and the return of arguments, if such enlargement be applied for before the expiration of the time herein limited.  