| La. | Sep 15, 1840
delivered the opinion of the court.
This action is brought to obtain a right of passage and of way over the estates of the defendants. The latter resist this pretension, on the ground that the plaintiffs are not legally entitled to the exercise of any such right.
An examination of the testimony has brought us to the conclusion, that the defendants are justified, by law, in their resistance to the claim set up by plaintiffs.
The Lousiana Code, art. 695, provides that “ the proprietor, whose estate is inclosed, and who has no way to the public road, may claim the right of passage, on the estate of his neighbors, for the cultivation of his estate ; but he is bound to indemnify them, in proportion to the damage he may occasion.”
Article 696 says, “ the owner of the estate, which is surrounded by other lands, has no right to exact the right of passage, from which of his neighbors he chooses. The passage shall be generally taken on the sidejwhere the distance is the shortest, from the enclosed estate to the public road.”
The evidence shows, that the farms of plaintiffs, are not inclosed and surrounded by other lands, so as to have no way to the public road. It is only for lands so situated, that the right of passage is established by law. A road across the lands of the defendants, would appear to be for the plaintiffs, „ . . mi j-a matter more of convenience than or necessity. 1 he distance from their farms, to the several tracts of wood-land, owned by them in the Prairie Sorel, would be shorter through , • defendants’ land, than around it. One of the witnesses says, “ that there is .another road, which the plaintiffs might travel to the woods, but that it is longer, and runs across some low grounds, so that in the winter season it is sometimes impassable.” Another witness, speaking of this route, says, “that about fifteen or twenty arpents longer, would take persons round the pond, which, in winter, makes the longer road impracticable;” hence, it clearly appears, that the way claimed by plaintiffs would be more commodious, but is not absolutely indispensable to them. However great may be the inconvenience or hardships, resulting to them, from the refusal of the defendants, to allow them a passage through their propertv, this court does not consider itself authorized to inter-r', _, . lili • i*. fere. The right of passage should be restricted in its exercise, to those cases coming clearly within the purview of the law.