delivered the opinion of the court.
This suit was brought to' establish the boundary line between the adjoining land of plaintiff and defendant, lying on the banks of the Mississippi.
The petitioner complains of an encroachment upon his possessions by the defendant, who, in his answer, denies generally ; calls in warranty the syndics of Clague & Old-ham,' from whom he purchased ; avers that the existing limits between the lands of the parties, were established by the natural consent of those under whom they claim ; and concludes with a plea of the prescription of ten, twenty and thirty years.
The court rendered a judgment as of non-suit against the plaintiff, who appealed.
When the plaintiff fails to produce satisfactory evidence of his demand, on a plea of the general issue, he will he non-suited.The judge, at the instance of the plaintiff, directed,that a commission be forthwith issued to the parish surveyor, requiring him to survey the dividing- line of the lands claimed by the parties to this suit, upon notices given by him to each of them, of the day and hour of,the proceeding therein; and that he make return of such survey with the plat thereof, to this court, on or before the first day of the next term.”
The surveyor accordingly proceeded to run the line, whereupon, the defendant having refused to attend when notified, made his protest and opposition in the following words :
“ Manchac, May 19th, 1835. Stephen Roberts, Esq., deputy surveyor. Sir : In answer to your notification, bearing date May 13th, 1835, I hereby protest against any survey of my premises, and refer you for further instruction to article 833 of the Civil Code.”
At the trial of the cause, the plaintiff offered, in evidence, theprocés verbal of the survey made by the deputy surveyor, fixing the boundary line, to the introduction of which the defendant objected, on the ground, that the survey had been made, notwithstanding the opposition thereto.
The court overruled the objection, and defendant took his bill of exceptions to the opinion of the court.
It is not, however, necessary, for us to pronounce upon any points raised by this bill of exceptions, as they are not insisted upon by defendant’s counsel. ■ •
It appears to us as it did to the district judge, that the survey and plat made out by the parish surveyor, are very imperfect and unsatisfactory, and do not furnish the necessary information to enable the court to pronounce upon- the merits of the controversy between the parties.
We think, therefore, that the plaintiff has failed to make out his case, and that judgment as of non-suit, was correctly rendered.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.