On the Merits.
The plaintiffs were, originally, “squatters” on swamp land belonging to the State, and bedded their oysters in a stream over which the authority of the State was paramount. Beykin vs. Shaffer, 13 Ann. 129; Hamilton vs. R. R. Co., 34 Ann. 970; Egan vs. Hart; 45 Ann. 1363; Leovy vs. U. S., 177 U. S. 621. That condition of affairs would not, however, have justified the defendants, having no better right upon the property, and in the absence of any complaint from the owner, in molesting the plaintiffs, whether by diverting the stream in which their oysters are bedded, or otherwise. And, whilst it may be that the *248“cut off,” as originally made, in 1888, did not amount to such molestation, the evidence shows that, in 1900, it had attained such proportions as to inflict serious injury.
If, therefore, the owner had held, and was still holding, aloof, we are not prepared to say that the plaintiffs would not be entitled to some relief. But-, after the closing of the “cut off,” in 1888, and the opening of the same, shortly afterwards, the plaintiffs took no further steps, and allowed the “cut off” to remain open for more than eleven years. In the meanwhile, the plaintiff, Bendich, and the defendant, Scobel, alike, obtained, from the Parish of Plaquemines, acting as the representative of the State, under, and by virtue of the authority conferred by Acts 110, of 1892, and 121, of 1896, leases of the land and water front occupied by them, respectively, the lease to Bendich bearing dale, January 16, 1893, and that to Scobel, December 31, 1899. It is not pretended that Bendich was ignorant of the fact that the “cut off” was open when he took his lease, but he appears to have made no demand of the lessor upon the subject, and his lease contains no reference thereto. The lease to Scobel, upon the other hand not only refers to, but includes, the “cut off,” as part of the water front, leased. Under these circumstances, and as the State did not assume the obligation of closing the “cut off,” of which the lessee had knowledge, and did not guaranty that it, or some other outlet, would not, eventually, divert, wholly, or, in part, the waters of the bayou, and as, upon the other hand, the lease to Scobel, made nearly seven years after that to Bendich, during which time the latter had remained silent, was entered into with express reference to the “cut off,”- as part of the leased property, we are of opinion that the action taken by the plaintiffs, in May, 1900, and the complaint, made in their petition, came too late, and, hence, that the judgment appealed from was correct, in so far as it dissolved the injunction and dismissed the suit.
Upon the question of the damages, claimed by Scobel in reconvention, we have found, as a fact, that the proof, as to the cause and extent of the alleged damages to his oysters and oyster beds, and as to traveling expenses incurred, and loss of time sustained, by him, is unsatisfactory and inconclusive. It seems more likely, from the proof referred to, that the damage to the oysters was caused by storms, rather than by the temporary closing of the “cut off,” whether in May, before the suit was filed, or after the filing of the suit, and the method of arriving at *249the proportion of oysters destroyed appears to have been a good deal a matter of guess work.
The defendant testifies as follows concerning his traveling expenses and loss of time: “I have spent over $100, in traveling expenses, for the purposes of that cut off. I have lost one month’s time in coming to court. My time is worth $45. I spent this time and my traveling expenses in trying to get my cut off restored.”
Properly speaking, the only damages that he would be entitled to recover in this suit would be such as he may have sustained by reason of the illegal resort to the writ of injunction. Act No. 50 of 1886. If it be conceded, for the purposes of the argument, that the plaintiffs are bound by the testimony as to other damages because of their failure to object to it, the fact remains, that the testimony relied on is insufficient. It gives no particulars and fails to inform us how much of the money and time referred to were expended in attending to the criminal prosecutions instigated by the defendants, and it is not pretended that any part of such expenditure was made for the purposes of this litigation. The only claim 'for attorney’s fees is that made by the defendant, Scobel, who asks to be reimbursed the fee paid, or incurred, in connection with the closing of the “cut off” in May, 1900, and for the purposes of the criminal prosecution which followed that occurrence; the claim of all the defendants, including Scobel, for the recovery of the fee of their attorney for obtaining the dissolution of the injunction in this case, being reserved. There is nothing in the law or jurisprudence of this State which authorizes the allowances of the claim as thus made. Bentley vs. Fisher Lumber Co., 51 Ann. 457.' The question of the punishment of the plaintiffs has been relegated to the Criminal Court, and the plaintiffs have been fined, in one proceeding, and, possibly, in another. We do not feel called upon to inflict a further penalty.
For these reasons, it is ordered, adjudged, and decreed, that the judgment appealed from be annulled, avoided, and reversed, in so far as the same condemns the defendants in damages; and it is, now, adjudged and decreed that the demand in reconvention of the defendant, Luke Scobel, as herein made, be rejected, at his cost. It is further ordered, adjudged and decreed that, in all other respects, said judgment be affirmed, the costs of the lower court, except as herein otherwise ordered, to be paid by the plaintiffs, and the costs of the appeal to be paid by the defendants.
Per Curiam.After the judgment of the court herein on appeal was rendered, William Y. Gilmore presented a petition for rehearing, setting forth that he is aggrieved by the said judgment in this, that he is the owner and in legal possession of the land through which the “cut off,” referred to in the opinion of the court, was made, and that his rights of ownership and possession will suffer prejudice and damage if the same are not provided' for or reserved in the judgment.
How and when his ownership and possession arose, and just what he claims, and what his grievance is, are set forth at length in his petition and supported by exhibits attached.
It suffices to say that Mr. Gilmore, not having been in any way connected with this suit, or a party to it, so far as the record discloses, is in no manner bound by the judgment rendered.
With regard to the application for rehearing made on behalf of defendant, Luke Scobel, a consideration anew of the evidence has not .lead to the conclusion that he should recover in reconvention the damages awarded him by the court a qua. Neither are we of the opinion that in respect to such damages (save as to attorneys fees) the judgment of this court should be one of non-suit instead of rejection. The claim for damages was in contestatio litis; the parties have had their day in court upon it; let it stand as the thing adjudged.
But as to the claim of the defendants, including Scobel, for the recovery of attorney’s fees for obtaining the dissolution of the injunction taken out by plaintiffs, the same was reserved in the opinion heretofore handed down, and, perhaps, should have been mentioned in the decree as reserved. Complaint is made that it was not.
It is, therefore, ordered that the decree of the court herein be amended by reserving to defendants the right to sue for recovery of damages as attorneys fees for obtaining the dissolution of the injunction sued out, and, as thus amended, the decree do stand as the judgment of the court.
Rehearing refused.