On the MeRits.
Morgan, J.In 1858 the Legislature passed an act entitled “ An Act to provide for leveeing, draining and reclaiming swamp lands in certain portions of the parishes of Orleans and Jefferson.” Three draining districts were established by this act, the first, second and third.
Plaintiff owns property comprised within the second district, as established by law.
Property situated within the districts was subject to a tax. Plaintiff paid the tax assessed to its property, under a judgment obtained against them, amounting to over $38,000.
The object of this suit is to recover the amount of that tax. The ground upon which the demand rests is that no portion of their land had been drained up to the year 1871, when the Legislature (act No. 30, 1871, p. 75) excluded them from the drainage district. The act in question is entitled “An Act for the drainage of New Orleans.”
We do not see from an examination of this act that it repeals the act of 1858. It changes in some degree the mode by which the drain age is to be accomplished, and the means to be applied thereto, but the act itself still stands.
The main reliance of the plaintiff is, that the lands belonging to the bank have not been, and are not to be, benefited by the drainage works which are now in progress. But the testimony of the witnesses shows that when the canals, etc., now in process of construction will have been completed, plaintiff’s lands will be drained. If this be so, and we order the defendant to return the money which has been received, the result would be that plaintiff’s land will be drained at others’ expense. We do not think that the law authorizes the judgment which was rendered in plaintiff’s favor.
It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendant, with costs in both courts.
Ludeling, C. J. I concur in the decree.Rehearing refused.