BROUSSARD vs. ETIE, 11 La. 394

Martin, J., delivered the opinion of the court.

The plaintiff states, that his plantation is so surrounded by marshes, trembling prairies, and the lands of the defendant, that he cannot have access to the public road without traversing a part of the land of the latter ; that he and those under whom he holds, have, for more than thirty years before the institution of this suit, been in the habit of traversing and passing over said land, in order to reach the public road, by crossing a coulee at a certain place, a short distance from defendant’s house, and which is the nighest way to the road; hence the passage across defendant’s land has become a legal servitude due to his estate ; that, the defendant has stopped up said passage, by putting a fence across it.

The plaintiff further states, that, in consequence of the length of time he has occupied and used this passage, he has acquired the right to it by prescription, and that the defendant is barred by prescription, from setting up any claim to indemnification. The defendant pleaded the general issue ; and that if the plaintiff is entitled to a right of way that it be accorded to him, over that part of his land the least inconvenient and injurious to him, and not as he claims it; and not without an indemnification. There was judgment for the plaintiff, and the defendant appealed.

The plaintiff’s claim to a legal right of way by prescription cannot be admitted, because this right from its nature, is discontinuous or interrupted. The code says “ interrupted ser-vitudes are such as need the act of man to be exercised. rN i i * i /» . Such are the rights of passage, of drawing water, pasturage, or the like.” Louisiana Code,

article 723. A proprietor whose estate is surrounded by his neighbor, may claim the right of passage over the land of the latter $ but this right he must acquire by obtaining it from the owner of the estate who is to give it, or contradictorily with him, designating the place on which it is to be exercised, and the amount of indemnification.

The owner of an estate, claiming a servitude on,or in exercising a right of passage over die uninclosed lands of his neighbor, to the public road, does not thereby render himself liable to a suit, and give such a claim to indemnification to the other, as if not exercised within thirty years, will be barred by prescription. “ Interrupted servitudes, whether apparent or not, can be established only by a title.” Ibid., 762.

The plaintiff has, indeed, shown, that from the situation of his estate he “ may claim the right of passage on that of the defendant; but he has not shown that he has this right on any determinate part of it. This right he must acquire by obtaining from- the defendant, or contradictorily with him from the court, a designation of the place on which it is to be exercised. He has not done this, and he cannot, therefore, complain of the erection of a fence by the defendant, on any part of his estate.

The code expressly says, that a,passage shall be fixed in the place the least injurious to the person, on whose estate it is granted. Louisiana Code,

article 696, and (he latter clause. This provision seems to give to the defendant, such place as is least injurious to himself, for he is to be considered the best judge. The pleadings in this case, seem to authorize us to consider the suit as a claim for the right of passage, but the defendant has objected to the' place on which this right of passage is demanded, and urged his claim to indemnification.

The plaintiff has replied, that although the right of passage may not be acquired by prescription, the claim to indemnification is barred by it, because he and those under whom he claims, by exercising the right of passage for upwards of thirty years, have given to the defendant, and those under whom he claims, a right to indemnification, which they have not claimed.

It does not appear to us that by passing over the defendant’s land, the owners of the estate for which the servitude is claimed, rendered themselves obnoxious to the suit, or claim of the owners of the estate on which it is demanded, because it is not shown that the land was inclosed. In this country any one may hunt on the lands of others until he be forbidden, without being liable to an action ; a fortiori may he pass over it. Louisiana Code,

article 3378. As the claim to the right of passage is now for the first time made, the defendant is in time to urge his claim to indemnification. In. order to give to the latter the opportunity of pointing out the place least injurious to him, for the exercise of the plaintiff’s right; and as the indemnification to which the defendant may be entitled, may vary from that which would be due if the passage was taken where the plaintiff claims it, justice requires that the case should be remanded.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded for further proceedings according to law; the plaintiff and appellee paying the costs of the appeal.