| La. | Aug 15, 1860
The principal facts in this case are correctly stated by defendant’s counsel as follows:
“On the 4lh of May, 1804, Olivier Devezm and Louis Judice made an exchange by means of which the latter gave to the former a tract of land having 17 arpen ts*607 in front on the western bank of the Bayou Teche, in exchange for a tract of land having 16 arpents in front on the eastern bank of said bayou. In this act, it was stipulated ‘que sur les 17 arpents sur la partie occidentale aux stipulations préeédentes que cede le sicur Louis Judice au .sieur Olivier Devezin, que le bois qui se trouve dossus sera partagé en deux parties égales par une perpendiculairo qui sera tirée on présenee de témoins, en prenant do la riviere en allant a la prairie; cette jouissanee do la moitié dudit bois, restera héréditaire aux hoirs ou ayant cause dudit sieur Louis Judice, sans que, dans aucun temps ni pour quelque raison que ce soit, que ni mondit sieur Olivier Devezin, ses hoirs ou ayant cause puissent inquiéter et porter aucun empéchement, opposition et contradiction a la pleine et cntiére exécution du contonu au present acte, sans en rien omettro ni réserver.
The plaintiff, by virtue of a number of mesne conveyances, claims the actual ownership of the lands on the eastern bank of the river Techo which were given in exchange to Louis Judtce, and upon which, he contends, the right conceded by the clause above quoted, is attached as a servitude.
“ The tract of land on the western bank of the river, given in exchange by Louis Judice to Olivier Devezin and upon which the plaintiff claims the servitude, by several mesne conveyances, became the property of diaries Olivier Duclozel. But in the act constituting his ownership to a portion of it, Mrs. Carmelite Amy, his vendor, has reserved for herself and assigns ‘que tout le bois qui se trouve sur la dito portion de torre et qui pourra y croitre par la suite, k partir du bayou jusqu’au grand cliemin, n’est pas eompris dans cette vento; la dame vcndercsso se le réservant expressément, ainsi que la faculté d’en user de la maniere qu’elle le jugora convenable!
“On the 10th of April, 1860, the defendant purchased from1 Mrs. Carmelite Amy her right to the exercise of the reservation made in her favor in the deed 'of sale just above referred to.”
“ Immediately after this purchase, Belisaire Borel, the defendant, set to fell timber on the land in question, and the plaintiff sued out the injunction which is the object of the present suit.”
Judgment having been rendered in favor of plaintiff defendant appeals.
The act of exchange between Olivier Devezin and I^ouis Judice of 4th May, 1804, was executed at a time when the Spanish- law was in force and consequently must receive its construction or interpretation with reference to that law, and the plaintiff cannot possibly have any greater right than Louis Judice had reserved, for the reason that he claims through him .by mesne conveyances.
It appears to us, to be clear that by the act of exchange Louis Judice transferred to Ohvier Devezin the property in the soil of the seventeen arpents of land on the west bank of bayou Teche, because he expressly declared in the act of exchange that he transferred all his rights to the -said land in full property to Devezin.
What than did he reserve? was it any part of the property thus alienated? This could not be, for there could not bo- two exclusive owners of the same thing.
The right there reserved was subordinate to that of the owner; of him who hold the dominium. If so, then the most favorable view we can take of Judice’s right is to consider it one of the servitudes allowed by the Spanish law.
Was it a real servitude? One established in favor of the plantation conveyed by Devezin? We cannot come to this conclusion, because there is no clause in the act so constituting the servitude, and Judice was the owner of other lands
It was then a personal servitude. But among' personal servitudes the right of the usufructuary is the most perfect. Wo will therefore assume that Judice retained the usufruct.
Here again under the Spanish law the usufructuary had only the right to grant leases of the property held by him and the usufruct terminated if he alienated his right; and it also terminated at the death of the usufructuary, as under our own law. 1 Moreau & Carleton’s Partidas, p. 424, 3, 31, law 24.
The term “ayant cause” used in the act could therefore only refer to lessees and the words of inheritance must be considered as not written. Were personal servitudes capable of such perpetuity by inheritance aud transfers as contemplated by plaintiff, it is obvious that titles to estates would become by their complications far removed from that simplicity which has even been the policy of our law to preserve. C. C. 705.
As the plaintiff has never acquired any servitude upon, nor any real right in or to the tract of land on the west side of the bayou iu question, it is useless to consider what are defendant’s rights. If plaintiff be without title, the acts of the former possessors of these tracts will not avail him.
It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of defendant with costs in both courts.