
    Charles M. Gillis & Co. v. Nelson & Donalson.
    The ^voces-verbal of a survey made under the order of the Court is admissible in ovidonce as a plan connected with the surveyor’s testimony and essential to its explanation. 6 N. S. 339.
    Prescription ceases to run, whenever the debtor or possessor makes acknowledgment of the right of the person whose title they prescribed. So that where defendants aggravated a servitude within ten years, prescription was interrupted, and the plaintiff’s right acknowledged.
    The verbal declarations of a defendant may be given in evidence even to charge land with a servitude, when they tend to interrupt prescription.
    He to whom a servitude is due has a right to make all the works necessary to use and preserve the same. Such works arc at his expense, and not at the expense of the owner of the estate which owes the servitude, unless the title by which it is established shows the contrary. C. C. 768,769.
    If the proprietor of two estates between which there exists an apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, ’the same shall continue to exist actively or passively in favor or upon the estate which 1ms been sold. C. C. 765, 771.
    
      Per curiam: It does not appear to us that a person not a party to an agreement, nor representing real property to which it has relation, can maintain an action upon it, unless there is an express stipulation in his favor, or one which results by a manifest implication.
    Appeal from tbe District Court of the Parish of Lafourche, Roman, J,
    
      Bush, Beattie & Attain, for plaintiffs. Clifford Belcher, for defendants and appellants.
   Meerick, C. J.

“ On the 29th day of November, 1843, the heirs of Thomas Bibh viere the owners of two plantations fronting on the Bayou Lafourche, and having a depth of eighty arpents. The upper one of these plantations was called the Cóulon Place, and the lower the Johnson Place. The two places were separated from one another by the plantation of the estate of John Mills, also fronting on the Bayou Lafourche, and having also a depth of eighty arpents.”

“Bernard Morvan was then the owner of a small tract of land in the rear of these three plantations.”

“ To facilitate the draining of the Ooulou plantation, and carry the surplus waters of the same into the swamp on tbe rear of the Jolinson Place, belonging to the same owners, the heirs of Thomas Bibb, one of the heirs purchased a narrow strip of land in the rear of the Mills plantation on which to make a ditch or canal from the Oonlon to the Johnson Place.”

“As the action in this ease is based principally upon this act, we shall copy it from the record.”

“ICnow all men by these presents, that Bernard Morvan and Marie Bondreaux, wife of said Morvan, both of the Parish of Lafourche Interior, for and in consideration of the sum of seventy-five dollars to them in hand paid, the receipt whereof is hereby acknowledged, have this day bargained, sold and delivered to Thomas Bibb, of the said Parish of Lafourche Interior, a parcel or lot of land situated in said parish, included, bounded and surrounded by the following lines, viz: Supposing a line drawn in a northerly direction on the lower or eastern line of the Coulon plantations, situated in said parish, belonging to the estate of Thomas Bibb; said line to run on the boundary between the plantation known as that belonging to the estate of John Mills and the said Coulon plantation, to continue to the end of the double concession, or until it strikes the plantation of Bernard Morvan. Prom this point, whence [where] such a line would strike the plantation of Bernard Morvan, commences the boundary and dimensions of the lot or parcel of ground sold by said Bernard Morvan to Thomas Bibb, to wit: Prom thence twenty-five feet in western direction, on the line between the Coulon plantation and the plantation of B. Morvan; thence northerly twenty-five feet, thence easterly twenty-five feet, from and parallel to the present line between the plantation belonging to the estate of John Mills and that of B. Morvan, to continue in the same direction twenty-five feet beyond or to the east of where said line would intersect a line drawn in a northern direction on the boundary between the Johnson plantation, belonging to the estate of .Thomas Bibb, and the plantation belonging to the estate of John Mills ; thence twenty:five feet south, until it strikes the boundary between the Johnson plantation and that of B. Morvan.”

In testimony whereof, the parties have signed their names, except the said Morvan and wife, not knowing how to sign, made their ordinary mark in presence of B. F. Cross and Henry E. Ledet, witnesses, this 29th November, eighteen hundred and forty-three.”

“ It is well understood, before the agreement is signed, that the said Bibb obligate and bound himself to throw the dirt on the north side of the dight, [ditch] and also to continue the said dight [ditch] so the water shall never interfere said Bernard."

Signed, Bernard Morvan, his M mark.

Marie Bondreaux, her M mark.

Thomas Bibb.

Witnesses signed : H. E. Ledet.

B. P. Cross. ”

“It should be observed here, that although this land was purchased in the name of a single one of the heirs of Thomas Bibb, it it is evident that it was acquired for all of the heirs, for the improvement of the property owned by them jointly, and they so treat it in a subsequent act.”

“This agreement, under private signature, was duly proved, and recorded in the conveyance office of the parish.”

“ On the 14th of February, 1846, Bibb’s heirs sold to the defendants, Nelson & Donnelson, the Coulon plantation, and in the sale is contained this clause:”

“ And it is hereby agreed and understood by and between the said parties, that the said purchasers shall have the right and privilege of draining the said plantation in the same manner that it has heretofore been drained, and that the leading canal or ditch on said plantation is to discharge into a swamp on the Johnson plantation, owned by the said vendors.”

' “ The leading canal or ditch here mentioned is that which had been cut on the land acquired of Morvan, and which, after reaching the Johnson Place, is continued for some distance on that place.”

Subsequently, the Mills plantation was acquired by Nelson <& Donnelson, and the Johnson Place was sold by the heirs of Bibb to'Egana.”

On the sixth of July, 1857, Morvan sold his land to H. E. Ledet & Bros.; and on the same day Ledet <& Bros, conveyed it by act of exchange to C. M. Gillis & Co.”

C. M. Gillis <& Co. are subrogated to the rights of Morvan.

In 1853 Egana <& Mitchell, then owning the Johnson plantation, made an agreement with the defendants, by which the former were to be permitted to close a small bayou running transversely across the Mills tract and the rear corner of the Johnson plantation, and terminating in a swamp where it is contended the rear ditch of defendants ought to terminate. In the instrument authenticating the contract, Egana & Mitchell agreed to open a ditch on the line between them and defendants from this bayou, “ running north to the main canal of the said Nelson & Donnelson, and on the line between the parties. Said canal or ditch to be made of sufficient width to carry off the water which has been heretofore carried off by said bayou, and which has drained that part of the plantation known as the Fields plantation. Said canal to be at least fifteen feet wide and as deep as the main canal of the said Nelson & Donnelson where it intersects or runs’into said canal. They also agree that the said Nelson & Donnelson may enlarge or widen their canal as wide as they may think necessary to carry off the water, say about fifteen feet on their side of said canal, and that they may extend said canal into the swamp as far as they think necessary, so as not to run south of their eighty arpent line.” The course of the Bayou Lafourche at this point is east. Hence, the rear of the plantations is on the north.

The action is set forth in the plaintiffs’ petition as follows :

“ That Nelson & Donnelson, exercising possession and ownership of the lot of land sold by Morvan to Bibb, open and now use on the said twenty-five feet of land, a large ditch to which they have not given a sufficient outlet, and to the north of which they have not thrown up a sufficient embankment, by means of which ditch the said Nelson & Donnelson accumulate all the surplus waters from the Coulon and Field plantation, both of which plantations are now in the possession of, and belong to, Nelson & Donnelson, and thereby overflow and inundate the greater portion of the Morvan land belonging to petitioners, contrary to, and in violation of, the express covenant of the said Bibb with the said Morvan, and contrary to law; which waters thence overflow, and inundate the crop plantation of petitioners, contrary to, and in violation of, the legal rights of petitioners.”

Plaintiffs’ damages are laid at five thousand dollars, and they also pray.for a specific performance of the covenants in the agreement between Bibb and Morvan, alleging that Nelson & Donnelson had assumed all of Bibb’s obligations by the purchase of the land.”

“ The defendants, after a general denial, aver that they bought by public act of the heirs of Thomas Bibb, deceased, the Coulon plantation, with.its rights, &c., and expressly with the right of draining the same in the same manner that it had hitherto been drained; and that the leading canal or ditch was to discharge into a swamp on the Johnson place, then owned by the said vendors : and further, that the obligation to continue the ditch declared the act under private signature is altogether personal to the parties thereto, and that defendants are not bound by it.”

“ They further allege that said Morvan actually continued said ditch as far as necessary, and to the entire satisfaction of said Morvan, and up to the time of the present suit no complaint was ever made in respect to the said ditch.”

“ They further allege, that they have always drained their said plantation in the same way and manner -that it was drained previous to their said purchase; and their said vendors are hound to warrant and defend them in their title so to drain their said plantation, and to indemnify them against the consequences of this suit. And moreover, they aver that by the said act of purchase a servitude was established in favor of the said Coulon plantation on the Johnson plantation, then owned by the said vendors and now by John T. de Egana, who has succeeded by reason of the law to all the obligations of the said vendors, but who enclosed the said swamp, or a part thereof, with a levee, and impeded the discharge' of waters into the said swamp, to which fact, and to no fault of defendants, the overflowing of defendants’ lands, if such ever occurred, which they deny, is imputed.”

“ The defendants cited the vendors, the heirs of Thomas Bibb, deceased, to warrant and defend them in this suit. They likewise brought Egana into the suit, but considering that the plaintiff was bound to bring his suit against the proper parties, dismissed their proceedings as to him.”

The heirs of Tlwmas Bibb excepted to the call in warranty, but the exception was overruled.”

“ The cause was tried by the Judge, who gave judgment in favor of the plaintiffs and against the defendants, condemning the latter to continue the ditch as more particularly set forth in the judgment. The Oourt likewise gave judgment against the defendants and in favor of their vendors called in warranty, on the ground, as stated in the opinion of the Oourt, that ‘ the defendants, at the time of sale having full knowledge of the existence of said servitude, which, besides, is a continuous and apparent one, are entitled to and allowed no judgment in warranty against their vendors.’

“ After an ineffectual motion for a now trial, the defendants have appealed, both as against the plaintiffs and as against their vendors called in warranty.”

Before proceeding to the merits of the case, we will consider the bills of exception presented by the defendants.

The first is to the introduction in evidence of the proces-verbal of the survey made under the order of the Oourt, for want of the requisite witnesses and for want of notice to the curator ad hoc. The Oourt did not err. The testimony of the surveyor was taken on the trial, and the survey was received as a plan connected with his testimony, and essential to its explanation, and therefore admissible. Milligan v. Hargrove, 6 N. S. 339.

There is a bill of exception taken by defendants to the testimony of II. E. Ledet proving certain verbal declarations of Nelson, one of the defendants, as to the ditch or canal draining the plantation of Nelson & Bonnekon, and as to a certain offer to extend the same, on the ground that parol proof is insufficient and inadmissible to charge lands with a servitude. The testimony was admitted to explain an assumed latent ambiguity in relation to the act under private signature ; and as a recognition of the existence and extent of the servitude therein stipulated ; the interruption of prescription, and the construction and understanding of the parties themselves.

The testimony was admissible to show an interruption of prescription ; and as the Judge confined its effect to that purpose in making up the judgment, it will be unnecessary to consider whether it was or was not admissible on the other grounds.

The third bill of exception was as to the introduction in evidence of the act between Morvan and wife and Bibb, on the ground that it was personal to the for-mor, and that no olher.Tperson could avail himself of its stipulations, and that it was not binding on the defendants, not having' been assumed by them expressly or publicly.

The act is pleaded in the plaintiffs’ petition, and the objection is to the effect of the instrument, which can be best considered with the merits. Its introduction in evidence did not prejudice the defendants, because it was still open to all objections, except as to its execution, and the defendants were at liberty to urge the same on the trial.

On the merits, the first questions seem to arise upon the construction to be given to the Morvan deed.

Its contemplation, reference being had to the situation of the lands, brings us to those conclusions, viz :

First: It was a sale from Morvan to Bibb, of a narrow piece of land for the purpose of allowing the latter to excavate a ditch therein, and throw the embankment on the north side of such ditch.

Secondly : It createdjin favor of the residue of the Morvan tract'a real servitude upon both the Ooulon and Johnson plantations, which they were bound to suffer and maintain in favor of said tract. The land sold and the possessors thereof being bound to keep the levee on the north side of the ditch sufficiently high to protect the residue of the tract, and the Johnson place being bound especially to continue the ditch so far as might be needed to convey off' the water, as the drain was upon the latter tract of land, the contract does not appear to us to be personal, for its object could only be for the advantage of the respective tracts of land. The contract, then, was a real contract, and bound the Bibb lands in favor of the Morvan tract, into whose hands soever they might pass. When Bibb’s heirs sold the Coulon tract to Nelson & Bonnelson, they expressly established another servitude upon the Johnson plantation (now owned by Egana) in favor of the Ooulon plantation, binding the one to submit in the form prescribed, lo"the drainage of the other; but here the works necessary to sucli drainage (if undertaken) were at the charge of the defendants’ plantation.

If the servitude had been permitted to remain as at first established, we think it is clear that the proprietors of the Morvan tract could have enforced it against the narrow tract of land sold and hold by defendants, and the Johnson plantation in the hands of Egana, or so much thereof at least as is affected by the servitude.

It now remains to be seen what effect the subsequent agreement in 1853 between Nelson c6 Bonnelson and Mitchell and Egana will have upon the controversy.

It has already been seen that the small bayou having its rise on the Mills tract and running transversely across the Johnson plantation, terminated at nearly the same point where the main ditch of the defendants terminates. But the proof shows, which is corroborated by the plan, that the side canal on the Mills tract-, excavated bj Mitchell and Egana, at nearly right angles with the rear canal of Nelson & Bonnelson, precipitates more water upon the Morvan tract than would have been the case if the sanie had been permitted to flow into the swamp by its natural course, the bayou. The servitude has thus been aggravated by the owners of the Egana plantation, with the consent of the defendants.

' Are there any covenants, then, in the agreements between the other parties, which may be viewed as stipulations between the plaintiffs or their land, and will thus maintain the action iu its present form without making Egana a party ? We cannot so construe the sale by Bibb’s heirs to defendants, nor their agreement with Miichell and Egana in 1853. It does not appear to ns that a person not a party to an agreement, nor representing real property to which it has relation, can maintain an action upon it unless there is an express stipulation in his favor, or one which results by a manifest implication.

The plaintiffs pray, among other things, that the defendants be decreed to open the ditch upon Egana’s land ; and it is so decreed by the Court. But it is neither the defendants nor Egana who owe the servitude; it is the land; and they may relieve themselves by surrendering the same to the plaintiffs. Hence, as between the plaintiffs and the defendants upon the rights reserved by the Mor-van deed, the latter cannot be condemned to enter upon Egana’s land and perform works there for the maintenance of the servitude and the benefit of the owners of the Morvan tract. See 769,675 and 771, O. 0.; Pardessus, No. 69 ; 2 Marcadé, Art. 699, pp. 625-628; 3 Toul. No. 680; Landry v. Mitchell, 3 An. 13.

The defendants also rely on the plea of prescription of ten years. If it should b e held that obstructions to natural drains may be legalized by the prescriptions of ten or thirty years under articles 761, 3470, 0. 0., it will not avail the defendants because, within ten years, they have aggravated the servitude by their agreement with Egana and Mitchell, which has resulted in the obstruction of the small bayou which carried off, at some distance, a portion of the water now precipitated on the borders of the Morvan tract, and because Nelson has, within the same period, acknowledged Morvan’s right, now held by plaintiffs. C. 0. 3486. The proof does not make out a case in favor of defendants against warrantors.

\ These views make it proper that the case should be remanded, in order that Lgana should be made a party, as it is evident that complete relief cannot be grante^plaiutiffs in his absence from the suit:

It, is,‘therefore, ordered, adjudged and decreed by the Court, that the judgment of -.tiré louver Court be avoided and reversed, and that this case be remanded to the lo\v& Court, with leave to the plaintiffs to amend and make further parties, •oh suplí condition as to the costs as may be equitable and just. And it is further or.de'ro'd, that the plaintiffs pay the costs of the appeal.

/•'VooKniBs, J., absent.  