On Application for Rehearing.
PER CURIAM.A re-examination of this case has not led to a result different, on the main demand, from that announced in the former opinion of the court.
In other respects, as will hereafter appear, there should be a modification of the opinion and decree of the court.
Defendant board was created by Act No. 89 of 1892, the ninth section of which granted to it the lands within the limits of the levee district belonging at the time to the state, or which might thereafter be acquired by the state within such limits; but by the terms of said ninth section this grant was not to become operative until formal act of conveyance of the lands so donated shall have been made to the levee board by the *639auditor of the State and the Register of the State Land Office.
Thus the section provides:
“It shall be the duty of the Auditor and Registrar of the State Land Office, on behalf of and in the name of the state, to convey to the said board of levee commissioners, by proper instrument of conveyance, all lands hereby granted or intended to be granted and conveyed to the said board whenever from time to time, the said Auditor and Registrar of the State Land Office, or either of them, shall be requested to do so by the said board of levee commissioners, or by the president thereof, and thereafter the said president of the said board shall cause the said conveyance to be properly recorded in the recorder’s office of the respective parishes wherein the said lands are located, and when the said conveyances are so recorded the title to the said lands, with the possession thereof, shall from thenceforth vest absolutely in the said board of commissioners, its successors, or grantees.” (Italics ours.)
It will be thus seen the intention of the act was and is that neither the title to, nor the possession of, the lands donated was actually to vest in the levee board until the state officials mentioned, to wit, the Auditor and Register of the Land Office, shall have acted in the way the statute directs, by making formal conveyance to the board, describing the lands; and only when this is done, and the act of conveyance duly inscribed in the conveyance records of the parish, was title and possession to the land so conveyed absolutely to vest in the board.
Now, the Auditor of the State and the Register of the State Land Office did not execute formal conveyance of the lands in question in this suit to the board until April, 1901. So that the board’s title and right of possession began only from that date. Nor did the Auditor and Register, in the act of conveyance so made at the time mentioned, assume to transfer to the board the right the state may have then had to collect from the plaintiffs rents for their possession and use of the land.
The levee board, therefore, is entitled to claim from McDade and his coplaintiffs rents for the year 1901 only, and years subsequent thereto.
The evidence is that 80 acres of the land was in cultivation in 1901, and that, including the use of the houses and fences upon the 80 acres, the rental value of the land was, that year, $5 per acre.
But the houses and fences were put there by plaintiffs, and were them property. This being so, the rent of the land, excluding the houses, cannot be figured beyond (say) $4 per acre, or $320 for the year 1901.
Plaintiffs insist that the cost of clearing this 80 acres of land was much more than $10 per acre, which was the allowance of the court. But in view of the fact that they (plaintiffs) are shown to have had the actual use of the land for several years before the Auditor and Register conveyed title to the levee board, and while the title was yet in the state, and that they cultivated the same, and enjoyed the fruits and revenues thereof, and have not been, and are not likely to be, called on by the state for rents while they so occupied and used it, they are not in a position to claim more than the allowance of $10 per acre.
Under the circumstances, it is questionable, indeed, whether they should be allowed anything under this head. But in a spirit of liberality the court stands by its former allowance of $10 per acre.
This makes $800 due the plaintiffs under this head, on which is to be credited the $320 due defendant board as the rent of the 80 acres for 1901, and a like sum for the year 1902.
After the state had, by Act No. 89 of 1892, declared its purpose of donating the lands it owned within the limits of the Bossier levee district to the board of commissioners of said levee district, for the use and benefit of the district, it was not competent for the plaintiffs to acquire any rights in and to any portion of the lands so belonging to the state, and included within the limits of the district, under the terms of Act No. 21 of 1886, granting pre-emption rights to actual settlers; and their going upon the lands in question, under the circumstances, is held to have been in bad faith.
In view of the foregoing, it is ordered that the decree heretofore rendered herein by this court be set aside, arid in lieu thereof the following decree be and is hereby made the judgment of the court, to wit:
*641It is ordered and adjudged that the judgment appealed from be set aside; that the defendant board be recognized as the owner of the land in controversy, and sent into possession thereof; that a writ of possession do issue; that defendant board do have and recover of the plaintiffs $320 as rent for 80 acres of the land in controversy for the year 1901, and the like sum for the year 1902, with reservation of its right to claim rents for 1903, or so long as plaintiffs are permitted to remain in possession; that the demand of the plaintiffs to be reimbursed the cost of clearing 80 acres of the land in controversy be recognized and enforced to the extent of $10 per acre, or $800 in all; that plaintiffs be, and are hereby, directed to take away or demolish, at their expense, the houses and fences built by them on the land in controversy, unless defendant board decides to keep the same, in which event, and not otherwise, it is ordered that defendant pay to the plaintiffs $1,025 for the houses, and $75. for the fences, on the land; and that said option be exercised and notified to the plaintiffs within six months of the date of this judgment; otherwise the present award against the defendant board for the value of said houses and fences to become final on due proof made summarily in the court a qua of the nonexercise of the said option.
It is further ordered, etc., that plaintiffs pay the costs of this litigation in both courts, and that the rehearing applied for be denied.