On Rehearing.
PRO YO STY, J.A plaintiff may, of course, at any time convert his possessory action into a petitory action by dismissing the one suit and instituting another; but he cannot, after issue joined, operate this change by supplemental petition, unless with the consent of defendant. It would be changing the issue. O. P. art. 419.
To maintain the possessory action, the plaintiff must show acts of possession, or, in other words, a possession in fact; mere civil or legal possession will not suffice. C. P. art. 49. In the present case the only acts of possession proved by the plaintiff have been the payment of taxes and having some one look after the land or watch for trespassers. Such acts as these have been held insufficient to support a possessory action. Albert Hanson Lumber Company v. Baldwin Lumber Company, 126 La. 347, 52 South. 537.
Plaintiff is well founded in contending *843that, in view of the fact that the defendant is possessing without title, his possession is bounded by his actual occupancy. Moore Planting Co. v. Morgan’s L. & T. R. R. Co., 126 La. 888, 53 South. 22. In fact, many cases hold that in order to be effective a possession without title must be by inclosure. Ellis v. Prevost, 19 La. 251; Albert Hanson Lumber Company v. Riggs Cypress Co., 58 South. 567, ante, p. 772. But we do not see that the extent of defendant’s possession can play any part in the present case. It is for plaintiff to show possession; and until plaintiff has done so, defendant is not called upon to make any proof.
[4] It is well settled that attorney’s fees for dissolving a writ of sequestration can be allowed only when trial on the writ has been separate from that on the merits; and this has not been done in the present case. The trial court erred, therefore, in allowing damages, and in that respect the judgment appealed from must be amended.
It is therefore ordered, adjudged, and decreed that the former judgment of this court be amended in so far as it allows damages to the defendant, and that the claim of defendant for damages be rejected, and that the said judgment be in all other respects reinstated and affirmed. Defendant to pay costs of appeal.