On Rehearing.
On rehearing, the attention of the court is attracted to the fact that four of the cattle guards asked for by relator are admitted by defendant in its answer to be necessary. Suck being the fact, the mandamus as to these four cattle guards must, as the logical consequence of the views expressed by the court, be made peremptory.
The learned counsel for defendant says that the said admission cannot be considered in disposing of the case, because, legally speaking, it has not been made; it figuring in the record only as a part of the answer to the merits, and the answer to the merits having been filed only in the alternative of a *17certain preliminary defense, pleaded toy wáy of exception, proving unavailing, and said preliminary defense having been sustained by the court.
The preliminary defense here referred to is the one which, on the contrary, was not sustained by the court, viz., that “mandamus does not lie to enforce the alleged rights of relator.” The decision of the court was that mandamus did lie to enforce the rights of relator as these rights were alleged in the petition, but that the defendant seriously contested the truth of the allegations of the petition, and thereby raised an issue of fact properly triable by jury, and that for the latter reason the suit of plaintiff would have to be dismissed. That r.eason is now shown to be inapplicable to four of the cattle guards. “Ratione eessante, cessat ipsa lex.” Hence as to these four cattle guards the decision of the court must be different. No good reason could be assigned why the clear duty which defendant admits as to these four cattle guards should not be enforced by mandamus.
It is therefore ordered, adjudged, and decreed that the defendant, the Colorado Southern, New Orleans & Pacific Railroad Company, be ordered to construct and install without delay a suitable cattle guard on the right of way which it expropriated in suit No. 17,718 of the docket of the Sixteenth judicial district court, parish of St. Landry, entitled “Colorado Southern, New Orleans & Pacific Railroad Company v. Edward M. Boagni,” across the land of the relator herein, Edward M. Boagni, at each of the following points: First, at a point 906 feet from the western boundary line of said land, being the point where the fence along the southern side of the public road leading from Opelousas to the Belmont plantation intersects the railroad of defendant herein, the same being cattle guard designated as “No. 3” on the exhibit annexed to the relator’s petition; second, at a point 2,605 feet from the western boundary of said land, being the point where the fence dividing the pasture from the field which is on the western side of the plantation intersects the railroad of the defendant herein, the same being the cattle guard designated as “No. 4” on the exhibit annexed to the relator’s petition; third,, at a point 6,872 feet from the western boundary of said land, being the point where the fence dividing the pasture from the field on the .eastern side of the plantation intersects, the railroad of the defendant herein, the same being the cattle guard designated as. “No. 6” on the exhibit annexed to relator’s petition; fourth, at a point 8,242 feet from the western boundary of said land, being the point where the fence dividing the woodland from the eastern field intersects the-railroad of the defendant herein, the same being the cattle guard designated as “No. 7” on the exhibit annexed to the relator’s petition — that as to the cattle guards herein specified the mandamus herein prayed be made-peremptory, that in other respects this suit be dismissed, but without prejudice, that the defendant pay the costs of the lower-court, and the relator the costs of appeal, and that, as thus amended, the decree heretofore handed down herein be reinstated and affirmed.