On Rehearing.
(Nov. 30, 1903.)
Statement of the Case.
MONROE, J.For many years the main and only country road leading northwest from Shreveport was the Tim Mooring and Shreveport road, travelers upon which passed over Cross Bayou at Isaac Bell’s, as indicated on the subjoined sketch.
A few years since (several witnesses say two or three years prior to April, 1902, and one says six or seven years prior to that date) a ferry, which was afterwards made free, was established on the bayou some distance to the westward of Bell’s; and whether because it was free and Bell’s was not, or because it afforded more convenient access to some parts of the city, the tide of travel turned out from the old main road at the point A (as indicated on the sketch), and followed the dotted line to the point C, otherwise designated as Ddck’s Ferry. This dotted line runs entirely through private property, part, and perhaps the greater part, of which belonged, at the date of the accident of which the plaintiff complains, tó the defendant, and it does not appear that the defendant or any of the owners had anything more to do with the use thus made of their property than that they did not object to it. Nor does it appear'that the parish authorities dealt with the road thus established as a public highway, or assumed any jurisdiction over it. It was nevertheless used, and continued to be used, by the public, without let or hindrance, until practically all the country travel passed over it, and that portion of the old road extending between Blind Bayou, at the point A, and Bell’s ferry, was, in the same ratio, deserted, until in June, 1901, the police jury passed an ordinance declaring it abolished, and (so far as a mere declaration to that effect could accomplish it) established a new road along the line of the T. S. & N. R. R. *81(indicated on the sketch by the words “Projected New Road”). Hoi- some reason, however (probably because of the difficulty in obtaining the right of way), the establishment of the new road went no farther than the declaration, and the two branches, from A to O and from A to Bell’s, continued to be used as they bad been used. In the meanwhile, the defendant had decided to utilize Blind Bayou for the bringing of an additional supply of water from Twelve Mile Bayou (with which Blind Bayou connects at the point E on the sketch), and, in connection with or in pursuance of that design, bought most, if not all, of the property through which Blind Bayou runs, including that over which the dotted line or road A-0 passes, and began the conversion of the bayou into a canal. Among others, it purchased a tract, lying to the westward of Blind Bayou near its junction with Gross Bayou, from John Dixon. As, however, the vendor retained some of his holdings in that neighborhood, from and to which he required ingress and egress, there was inserted in the conveyance from him to the defendant the following stipulation, to wit:
“The Shreveport Water Works Company further agree to ' construct and maintain across Blind Bayou, or any canal to be hereafter built by them, a bridge and approaches, at a point not to exceed 300 feet from where Blind Bayou now intersects Cross Bayou; said bridge to be strong enough and sufficient to meet the demands of ordinary wagon traffic; and to grant a right of way to and from said bridge, across any property that the Shreveport Water Works Company may own, to their boundary line or public thoroughfare.”
The point thus indicated for the bridge was about .that at which the road A-C crosses Blind Bayou, and, as the bayou at that point amounted to but a slight depression in *83the ground, sometimes dry, or nearly so, the crossing was, at most, a ford. The defendant, however, put in a culvert, or did some work in the line of canal building, and, then, probably more for its own convenience than in compliance with its contract with Dixon, constructed a bridge, as a substitute for the otherwise boggy passage across the bayou, and it was this bridge that gave way beneath the plaintiff and his mule, with the results which are sufficiently set forth in the original opinion.
*81
*83Opinion.
It is not denied that the defendant and certain natural persons own the land over which the road A-C passes and upon which the bridge in question is built. On the contrary, the plaintiff alleges in his petition that both road and bridge were used by the public “with the permission and at the invitation of the” defendant. The road had, however, been used, at most, for six or seven years, and the bridge for but a few months.
The right of passage is a discontinuous servitude (Civ. Code, art. 727), and discontinuous servitudes, whether apparent or non-apparent, can be established only by title. “Immemorial possession itself is not sufficient to acquire them.” Civ. Code, art. 766.
Applying this law, it has more than once been held by this court that, in the absence of proof of intention on the part of the owner to dedicate his property to public use, the mere use of the passage by the public, for however long a time, cannot supply a title or serve as the basis of prescription. Torres et al. v. Falgoust, 37 La. Ann. 500; Cross-man v. Vignaud, 14 La. 173; Morgan v. Lombard, 26 La. Ann. 462; McCearley v. Lemennier, 40 La. Ann. 253, 3 South. 649; De Grilleau v. Frawley, 48 La. Ann. 184, 19 South. 151; Railroad Co. v. Mayor et al., 48 La. Ann. 1115, 20 South. 664. It is true that a provision in a contract between two individuals, or, as. in this case, between a private corporation and an individual, whereby the one agrees to afford to the public a passage through his land, might be regarded either as evidence of the intention to dedicate such passage to public use or as a stipulation pour autrui. But in the contract between Dixon and the defendant there is no such provision, and both parties thereto distinctly repudiate the idea that their contract was intended to be so construed.
It follows from this that the bridge in question belongs to the defendant, that the plaintiff was a licensee by implied invitation thereon at the time that he was injured, and that his rights and those of the defendant in this suit must be determined upon that basis.
“When one opens a public way he impliedly licenses the public to use it; and so if he knowingly permits the public to use his land, leaving it open in such a way as to lead others to think that they are invited to use it.” Am. & Eng. Enc. of Law (2d Ed.) vol. 18, p. 1133. “An implied invitation to enter may arise where one leaves his property open to the public in such a way as to lead the public to use it.” Id. p. 1138. “When the licensee is invited to go upon the land, either expressly or impliedly, * * * the licensor assumes the obligation to see to it that the premises are in a reasonably safe condition, * * * the question of care being for the jury.” Id. p. 1138.
Accepting the foregoing propositions as sound, and applying them to the facts in this case, the plaintiff, as one of the public, was invited by the defendant to make use of the bridge which it had constructed at the ford by means of which he was in the habit of crossing Blind Bayou, and he had the right to assume that the defendant had seen, and would see, to it that the bridge was in a reasonably safe condition. As it turned out, however, the bridge had been negligently constructed originally, and, so far as we are informed, had received no attention thereafter, and it gave way beneath the weight of the plaintiff and his mule, with the result that both were seriously injured. It cannot, therefore, be said that the bridge was reasonably safe; nor do we think that the defendant was entitled to notice of its condition at the time of the accident, since, as we understand the testimony, that condition was mainly attributable to the fact that at least one of the timbers, which, extending from bank to bank of the bayou, supported the floor of the bridge, was too short—a defect in the original construction of which the defendant must have been cognizant, and which was remedied when the bridge was replaced. Under these circumstances, the *85case comes within the rules which have been stated above, and falls among a class of which there are many examples. Thus, in Tomle v. Hampton, 129 Ill. 379, 21 N. E. 800, it was held that where a man, by connecting it with the sidewalk, invites the public to u'se part of his land, he must use due diligence to keep it reasonably safe. And to the same effect are Sweeny v. Old Colony, etc., Co., 10 Allen (Mass.) 378, 87 Am. Dec. 644; Nicholson v. Erie R. R. Co., 41 N. Y. 525; and other cases cited in A. & E. Ency. of Law, vol. 18, p. 1137.
It is therefore ordered, adjudged, and decreed that the judgment heretofore rendered be now reinstated, and made the final judgment of this court.