
    No. 1362.
    Wm. R. Archer et al. vs. Widow A. Daniels.
    In tlie absence of satisfactory evidence on a pivotal question of fact, the ease will be remanded, in furtherance of the ends of justice, for proof on the material, point.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.
    
    
      Foster & Mentz for Plaintiffs and Appellants:
    The writ of injunction must be granted “when the defendant disturbs the plaintiff in the actual and real possession which such plaintiff has had for more than one year, either of a real estate or of a real right, of which he claims either the ownership, the possession or the enjoyment.” C. P., Art. 298, Sec. 5.
    When one invades the real rights of another by placing apermanent barrier against the enjoyment of a servitude, as of drain or passage, by the erection of a dam, a fence, etc., the writ of injunction in the mandatory and remedial form, ordering the removal and destruction of such barrier, is the proper remedy. State ex rel. Yale et als. vs. Duffel, Judge, etc., 41 An. 516.
    
    The neighborhood of estates is not an essential condition to the servitude of drain, nor is it necessary that the estates be contiguous; it suffices that they be sufficiently near for one to derive benefit from the servitude on the other. C. C. Art. OBI.
    
      Foster & Broussard, for Defendant and Appellee,
    cited: C. C., Arts. 783, 820 and 821; 39 An. 210; 34 An. 938; 7 An. 292.
   The opinion of the court was delivered by

MoEnery, J.

In his reasons for judgment for the defendant in this ease, the District Judge says:

“The witnesses in the ease are numerous, their testimony is strangely conflicting and contradictory, the record is voluminous. * * * * As is usual, in matters of this sort, some acrimony and animosity is manifested, and this conflicting testimony of men of equal or surely nearly equal credibility induces me and forces me, in order 'to reach the real facts which must govern the case, to seek assistance from, and mainly rely on, those witnesses who, under orders of this court, and in a disinterested manner, have by means, the correctness and precision of which can not be and were not questioned, mathematically solved most of the vexed questions in this suit.”

We have found the same contradictory statements in the testimony of the witnesses, but we have not been able to solve the question at issue by aid of the maps and surveys accompanying the record. They do not afford us that information which we desire in order to intelligently render a judgment in the case.

Two surveys, made by different surveyors, are in the record, which . contradict each other.

We find it necessary to remand the case for an accurate survey. It is therefore ordered that this case be remanded for the sole purpose of an accurate surface land survey under the order of the court, of which due notice, according to law, is to be given to plaintiffs and defendant, for the purpose of showing whether or not the water which rests on plaintiffs’ land flows in the direction and through the drain closed by defendant and thence to its outlet, said survey to be made by a third competent surveyor.

Breaux, J. recuses himself.  