
    No. 7507.
    Mrs. R. Thompson et al. vs. Henry Meyers et al.
    Tho right of passage through an alleyway, granted for the common benefit of abutting lots, is prescribed and lost by non-user during ten years. The alloy is not a locus publicus, and the prescription sot up is not one acquirendi causa.
    
    APPEAL from the Fifth District Court for the Parish of Orleans. Royers, J.
    
      Sami. R. Rlanc, for Plaintiff and Appellee:
    1. Plaintiff sues to have opened to use, an alley, originally laid off for the use of her lot and six others.
    2. Defendants, and their authors, plead prescription of ten years, and ask to he quieted in their occupation.
    3. The servitude of passage was established by a common preceding owner of all the lots, on Ms own property, and when he sold the lots he gave each the use only, of this right of way over his land, the soil of which he never conveyed.
    4. • The prescription pleaded by defendants is acquirendi cama, for nnless they have acquired rights greater than the mere use, they cannot exclude lot No. 1 from its servitude or use of way.
    5. The elements or essentials for acquiring are entirely wanting. There was no good faith, but palpable bad faith. No one possessed under a just title. No possession during ten years. No object which could be acquired by prescription by the defendants.
    
    (>. Their possession, such as it was, was insufficient, for they did not possess as owners in fact, and in right. They had no possession continuous, uninterrupted, peaceable and unequivocal.
    7. As a fact, no one had occupied for ten years any part of the alley, and the two-thirds of it were in no way trespassed on before 1872.
    
      8. One having use of an alley in common with others, cannot seek an advantage to himself, to the disadvantage of a neighbor’s right, by asserting that that neighbor has ceased using the passage, when lie, himself, has prevented that use by obstructing the way.
    
      J. Q. A. Fellows, for Defendant and Appellant:
    1. The defendants claim, under tho prescription of 10 years, the release from a servitude claimed against them by the plaintiff.
    
      2. The common alley claimed is not a public place, but a private one, tlie use of which is the only right given the plaintiff by her title.
    3. This case is a servitude and is prescribed against by a non-user on abandonment of ten years. The prescription is one of liberandi eausa. TLje defendants claim a release from a burden.
    4. The defendants’ claim is one of release, and is not one aequirendi causa, and therefore the prescription of 30 years is not the prescription applicable to the case.
    5. The law of prescription is applicable, because it is against a private right.
    
      Brauglm, Bucle di JDinlcelspiel, same side, for Neugass & Friedlander :
    1. It is a petitory action to sue for recovery of any immovable right, to which real estate may be subjected. A suit for the recovery of a real servitude is such immovable right. C. C. 709, (705), 722, (718).
    2. Plaintiff, in a petitory action, can recover only on the strength of his own title, and not on the weakness of defendant’s; nor even in the absence of any title but that based on possession. Possideo quiapossideo. Louqne’s D. p. 520; Hennen's D. p. 1115.
    3. Aright to servitude is extinguished by the non-usage of the same during ten years. C. 0. 789, (785).
    4. The action for damages in matters of trespass is prescribed by one year. C. 0.3530, (3501).
    5. Ten years’ possession with a just title acquires title to immovables. C. C. 3474, (3137).
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action by the plaintiffs, who claim to have the ownership of a real right to which certain real estate is subjected indefinitely.

The object of tlie suit is to have it judicially declared that the plaintiffs, as owners of a certain contiguous piece of property, have a right of way, or passage, to a named street, through a certain strip of ground, in the possession of the defendants. The plaintiffs, besides, claim $6,000 damages.

The main defense is, that if the right to the servitude ever existed, it was extinguished by the non-usage of the same during ten years.

From a judgment in favor of the plaintiffs, this appeal is taken.

The evidence clearly establishes that, when the original plaintiff, Mrs. Thompson, purchased the lot described in her petition, she was entitled to a right of way,.such as was claimed, at the institution of this suit, through the spot in question.

It appears that in 1841, the whole property, comprising that of plaintiffs and that of defendants, was owned by tlie same person, who caused it to be divided into lots, for tlie common benefit of which the alley was established, the title to each lot, subsequently sold, mentioning this important appendage or accessory.

It is established that the alley was used by Mrs. Thompson, up to 1863, for domestic purposes, and that it has not been used by those subsequently in possession of her property, since 1864. This suit was instituted in 1878.

We have considered the testimony of a lady neighbor, witness for the plaintiff, which is to the effect that the alley was open in 1869 and 1870, when she had occasion to go through it after her son, who had a hahit of climbing Mrs. Thompson's fence to go to the grocery store, at the opposite corner of the square, not kept on Mrs. Thompson's lot.

That testimony is merely the result of hearsay, and is outbalanced by that of-almost every witness heard in the case, which shows that the alley was boarded up in 1864, and that the man who kept the grocery had moved from it some twelve years before the action was brought. Even if her testimony stood uncontradicted, it could not prove interruption of the prescription set up, because the act to do so, must be done, il‘ not by the person entitled to the use, or by persons represent ng at least by one going to and from his premises for the ordinary legitimate purposes for which the alley was provided. Neither the act of the witness, nor that of her son crossing the alley, was done in the exercise of the right of way, primitively consented. They were the unauthorized acts of strangers, not within the original intendment of the grantor and grantees, and contrary to the purpose in view. They cannot be considered as done with the sanction, or for the benefit of Mrs. Thompson, and should be viewed as the clandestine acts of intruders and trespassers, not done a l’occasion du fonds.” Pardessus des Serv. II, No. 302, 308; Dalloz Serv. Sec. 7, Art. 1, § 1, No. 1; Laurent 8, 409; Sirey, C. N. 706, No. 24; Dalloz, 1860, 3 Juillet; Duranton, V. p. 674, No. 684; Demolombe xii, No. 995.

In a petitory action, a plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary. In presence of the defense of non-user, aud particularly of the evidence in support, which establishes facts affirmatively, the plaintiffs, in order to recover, should have, if not primarily established, adduced at least in rebuttal, proof of use of the alley, by herself, or by some one under her authority, in her name. Up to a period clearly within the ten years preceding her action, she has not done so. 12 M. 70; R. C. C. 804; 1 R. 321; 20 A. 52.

The Code distinctly provides that a right to a servitude is extinguished by the non-usage of the same during ten years, which, for discontinuous servitudes, begin from the day they ceased to be used. By discontinuous or interrupted servitudes, are meant such as need the act of man tobe exercised, such as the right of passage, dra-wing water, pasture and the like. R. C. C. 783, (1) 789, 786, 722, 723; 20 A. 52; 1 R. 321; 12 M. 70; 14 A. 283; 12 A. 473; 3 Toull. Nos. 689, 691 ; Duranton 5, 436, 491; Merlin R. V. Servitudes, § 33, No. 11.

The theories that the original proprietor made a dedication to public use, and that the prescrix>tion invoked is one acqiwremdi causa, cannot be applied in this case. '

When tlie original proprietor sold the abutting lots, he did so with measurements to the borders of the alley, with the use of an alley in common to the seven lots, according to the plot mentioned in tho deeds and controlling them. The servitude was created in favor of tho seven lots and of the owners of tho same. The public was not given the right of using it, as it could have done a street or a highway. R. C. C. 458, 459.

A dedication to public uso is tire expropriation of the owner, by himself, for the benefit of tho public. Tho property thus dedicated becomes a locus piiblicus, the non-user of which by the public, does not vest title in individuals occupying or enjoying the same.

The defendants do not set up title of ownership in themselves to the soil through which the passage is claimed. Even if they liad, it is quite doubtful, to say the least, whether that pretension could be passed upon, contradictorily with the present parties to this litigation, for it is not so clear that, in giving the uso of the alley, the original owner has so divested himself of titlo to the soil, that he could not recover possession, titulo clomini, in tho event of a peremption or forfeiture of the right ofpassage by tho lot owners. R. C. C. 658, Hence, the prescription set up is not one acquirendi causa.

Wo think that tho plaintiff has failed to make out her titlo to the use and enjoyment of the alleyway, and that her claim thereto was improperly recognized.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed, and it is now ordered, adjudged and decreed, that there be judgment in favor of the defendants, rejecting plaintiffs’ demand, with costs in both Courts.

Rehearing refused.

Levy, J., absent.  