On Rehearing.
PROVOSTY, J.The three Messrs. Livaudais made a partition with their aunt, Mrs. Charbonnet, of a large area of swamp land situated in Lafourche parish, near the Gulf. Mrs. Charbonnet got all that part situated south of a bayou known as Bayou Vacherie. Of this land the defendant’s brief says:
“The land is wild unreclaimed swamp land. Until recently it was of practically no value. The whole 20,000 acres was at one time appraised at $900, less than 5 cents per acre.”'
In 1813, one year after the partition, Mrs. Charbonnet sold to the Livaudais brothers for $1,000 the southwestern part of this area by the following boundaries:
“The Bayou Vacherie, the back line of the lands fronting on Bayou Lafourche, and a straight line which will have to start from the bank of Bayou Vacherie on the other side of the willows which are at the end of the embankment of shells which borders said bayou, and which line will go and pass between the little woods and the eliactos.”
The property thus sold is the property in controversy. The defendant holds title under Mrs. Charbonnet, by mesne conveyances, and the plaintiffs, under the Livaudais brothers. The line, which was to start on the bank of Vacherie bayou at the end of the embankment of shells and go and pass between the little woods and the chactos, was located years ago by a surveyor named Rightor. One question in the case is whether this line was thus correctly located, and, if not, whether it is possible at this late day to locate it more correctly. We think the evi-1 denee shows that this line was correctly located. In several of the deeds under which defendant holds, this survey is referred to as part of the description of defendant’s land. The deeds also refer to the land of the Messrs. Livaudais as one of the boundary lines. Very true, defendant’s learned counsel would apply the latter references to a tract of land owned by a Mr. Livaudais 40 acres further, so that the land in dispute would be included in defendant’s title deeds. But this distant tract would be a boundary for the property for only about one-fifth of the distance, leaving some four miles of the distance without any boundary line at all on that side; and, in the second place, the references are to the lands of “the Messrs. Livaudais,” which could only mean the three Livauda'is brothers, and not to Mr. Livaudais. Mrs. Oharbonnet certainly did sell to the three Livaudais brothers the southwestern part of the area acquired by her in the partition, and this line was certainly surveyed and platted years ago as correct.
Defendant’s more serious reliance is upon a tax sale and on prescription. The tax sale was made in 1873 for taxes assessed to Le Beau and Charbonnet, two of defendant’s authors in title, and by the following description:
“A certain tract of land situated in the parish of Lafourche, interior, lying back of the sugar plantation belonging to the Consolidated Association of Planters in the settlement known as the Vacherie Dugué Livaudais, and designated on the map of the parish of Lafourche as a part of the B. Morían claim and containing fraction of T. 15 and 16 S. E. district, R. 18 or 19 E. The number of acres unknown, but according to the assessment rolls the tract of land above described and sold is supposed to embrace an area of about 20,000 acres, being the property of Le Beau and Charbonnet, as per assessment roll of the state of the years 1S71 and 1872, to satisfy a debt due said state for the unpaid taxes of 1871 and 1872.”
Of this description the plaintiffs’ brief correctly says:
“The description (?) in the tax deed places the property in different townships and ranges, *10093 to 12 miles from our property; it gives absolutely no boundaries; it says the property is. in the Vacherie:Livaudais, whereas our property is in the Vacherie-Charbonnet; it says it is the property of Le -Beau and Charbonnet, whereas these gentlemen never owned our property; it says it is back of a certain plantation, whereas our property is in front of said plantation.”
The tax purchaser caused his tax title to be confirmed by a judgment contradictorily with a curator ad hoc. In this judgment, and in the petition praying for the confirmation, the property sold, the sale of which is sought to be confirmed, is described as follows:
“A certain tract of land known as the Vacherie-Charbonnet, comprising 20,016 arpents and 66/ioo of an acre in superficies, and bounded by Bayou de la Vacherie, which separates it from the plantation now or late of Chas. Derbigny, and which is navigable as far as Lake Washa, or Barataría, by Bayou Catahoula and by lands now or lately belonging to Enoul Dugué Livaudais, the whole according to a plan of A. E. Rightor, deputy surveyor.”
Suffice it to say of this tax sale thus confirmed that the description in it does not cover plaintiffs’ land. The line of the Rightor survey, or, in other words, plaintiffs’ land, is given as one of the boundaries.
Defendant relies upon the prescription of 30 years both aequirandi causa and liberandi causa.
Defendant does not pretend to have ev.er taken, or had, possession, except until recently, otherwise than in accordance with its titles; and these, as already shown, do not cover plaintiffs’ land. Until recently the only kind of possession defendant had ever taken was by turning a herd of horned cattle loose to graze on this 20,000 acres of swamp land; it not being denied that the land was unfenced, -until recently, and that the cattle of the entire neighborhood enjoyed the same grazing privileges.
It is also to be noted that in calling the area “wild swamp,” the defendant’s counsel pays it a compliment which the greater part if it does not deserve, being, as we judge from the maps, merely low Gulf coast marsh, with coteaux, or ridges, here and there on which cattle can safely range.
Much importance is attached by defendant, in connection with possession, to the fact that the titles of plaintiffs were not recorded in the recorder’s office of the parish of Lafourche, whereas those of defendant were. But the registry of titles has absolutely nothing to do with the question of actual possession vel non. Actual possession can be shown only by visible outward acts upon the property itself of a character to challenge the attention of the owner of the property. The recordation of some document in the recorder’s office is not such an act. An owner does not have to go and examine the records to see whether some one has not been recording something against his property, and, as a matter of fact no owner ever does such a thing. Article 3503 of the Oode is express that the possession which is acquired without title, “extends only to that which has been actually possessed,” and the titles recorded by defendant, if the Rightor survey line- be adopted, did not include plaintiffs’ land.
As to the nonregistry of plaintiffs’ titles in the recorder’s office of the parish of Lafourche at the time the several acts were passed, such recordation was unnecessary. Parish Board of School Directors v. Edrington, 40 La. Ann. 637, 4 South. 574. Such registry as was then required, namely, registry in the office of a notary, was had.
[2] Defendant has not shown the possession required by law for the prescription aequirandi causa; and, in fact, defendant’s more serious reliance evidently is upon the prescription lberandi causa provided for by article 3548, O. C., reading:
“All actions for immovable property, or for an entire estate, as a succession, are prescribed by 30 years.”
*1011The contention is that an owner who, as plaintiffs did in this case, suffers 30 years to elapse without manifesting his ownership by some act, the property lying out for that length of time as if abandoned, loses his ownership, or, which is the same thing, loses his right of action to recover the property from any one who may have taken possession of it, even though the suit is filed the day after, or the day itself on which, the possession is taken.
The adoption of that conclusion would, to use the energetic expression of Baudry-Lacantinerie & Tissier, “bouleverser,” i. e., throw into confusion, topsy turvy, our whole theory of prescription. De la Prescription, No. 594. It dispenses with possession; whereas possession, actual or constructive, is the very foundation of prescription. Prescription without possession is a house without a foundation. The rationale, raison d’dtre, function of prescription, is to quiet and stabilize things in the interest of society, so that, after a certain length of time, the possessor may not be disturbed and the debtor may not.be troubled. By this new prescription the real owner is disturbed in his ownership and constructive possession, is thrown out of court, in the interest and for the protection of some usurper utterly without standing save his own wrong. A medicine is thereby turned into a poison.
The article of the Code Napoléon corresponding with our article 3548 reads:
“Art. 2262. All actions, real as well as personal, are prescribed by thirty years, without the one who invokes this prescription being obliged to produce a title, or its being possible to oppose to him the exception resulting from bad faith.”
The question of whether this article, which, it will be observed, makes no mention of possession, dispenses the party pleading this prescription as against the petitory action or action in revendication of real estate from the necessity of showing the possession requisite for the prescription of 30 years acquirandi causa was raised for the first time in the case of Orvise v. The Brothers of St. Viateur, Sirey, 1879, vol. 1, p. 313, Journal du Palais, 1879, p. 777. In that case Orvise, the plaintiff, sued to recover a tract of land which his father had sold to the defendant religious association more than 30 years back. His ground of action was that the sale had been null, had not divested the ownership of his father, because, religious organizations' being prohibited in France, these religious brothers had had no legal existence, and hence could not possibly have acquired the property. In the course of his argument Attorney General Robinet de Clery invoked this article 2262 as a bar to plaintiff’s action in revendication as well as to the action in nullity of the sale. The court sustained the prescription, but, as shown in the argument of Counselor Pothier, reproduced in Journal du Palais, 1907, First Part, p. 276, sustained it only as to the action in nullity, not as to the petitory action. This argument of the Attorney General, reported in an annotation to the said decision as found in 1 Dalloz Rep. for 1880, gave rise to a discussion of the question by the law-writers of France. The reporter of the decision, a Mr. Beudant, indorsed the views of. the Attorney General; and, so far as we have been able to ascertain, only one law-writer, Lacour, and that only in a review article, has coincided with him. All the other law-writers of France who have thought it worth while to discuss the question are on the other side: Laurent, vol. 32, No. 384; Hue, vol. 4, No. 245, and vol. 14, No. 434; Aubry & Rau (4th Ed.) vol. 2, pp. 322, 395, and vol. 8, p. 429; Baudry-Lacantinerie & Tissier (3d Ed.) Prescription, Nos. 593, 594, and long list of authorities cited in note 1. Finally, the question came up squarely before the Court of Cassation in the case of Cohu v. Morvan, Journal du Palais, 1907, p. 273, and *1013the prescription was held not to apply to the petitory action. The decision is short:
“Considering that, notwithstanding the sweeping terms of article 2262, according to which all actions, real as well as personal, are prescribed by 30 years, this text does not apply to the action in revendieation by the owner who has been dispossessed of his real estate, that, ownership not being lost as the result of non-usage of the thing, the action in revendieation which protects and sanctions this right can be exercised as long as the defendant does not establish that he has himself become owner of the real estate in question, as the result of a possession exhibiting all the characteristics required for the prescription acquirandi causa, whence it follows,” etc.
The question had previously come up in Belgium, whose Code is on this point precisely the same as that of France, and been decided in the same way. See note to Laurent, vol. 32, p. 404.
Yery true, article 3548 says that all actions are prescribed by 30 years, and says nothing of possession; but, says Morion, in his commentary on article 2262, you must add, “under the conditions regulated by law.” The clause here in quotation marks he takes from article 2219, C. N. (3457 of our Code). He continues:
“As to real actions, prescription is composed of two elements, lapse of time and possession. For I cannot lose my property simply, or the action in revendieation which follows it, from the mero fact that I do not exercise it during 30 years. I can lose it only as the result of some one else acquiring it; and, for acquiring it, it is necessary, according to article 2229, to possess it for the required length of time.”
Laurent, after having quoted the reason which Bigot-Preaenu, as the orator of the government in advocating the adoption of article 2262 of the Code Napoléon, had assigned, goes on to say:
“The assignment of reasons which we have here transcribed admits as a thing not doubtful that the 30 years’ prescription is acquisitive, and that it is founded upon possession. Some have contested this, basing themselves upon article 2262, where nothing is said of possession, whence the conclusion that the owner lost his right from the simple fact that he failed to exercise it during 30 years. To do this, was to take advantage of an incomplete drafting, and to go in opposition to the fundamental principle governing property. The owner does not' lose his right as the result simply of his not using it; his right is to use or not to use his property. How can he lose his right by abstaining from using it when his right is not to use it? He continues to hold possession, and all the rights attached to it so long as another has not usurped it- and dispossessed him. This is the unanimous doctrine of the law-writers, ancient and modern. * * * Prescription, then, may be invoked against the owner who revendicates only when the opposing party sets up against the owner an adverse possession uniting the conditions required by article 2229.”
From Baudry-Lacantinerie & Tissier, De la Prescription, No. 594:
“The truth is there is no distinction to be made between the right of ownership and the action in revendieation. Prescription is possible against the one or the other only if another person has possessed during the time and under the conditions required by law. Otherwise, by means of the prescription by which the action in revendieation is extinguished, we should come to protecting a possessor who did not unite in himself the conditions hereinabove expounded, one who possessed only by precarious title, or whose possession had been discontinuous, unless it should be preferred in such a case to attribute to the state an ownership which had not been lost by the owner nor acquired by any one else. At all events there would be' great injustice. Prescription which has been devised for making ownership more secure would result in the very opposite.”
The arrangement, distribution, or classification of the subject-matter of prescription in the Code Napoléon is not the same as in ours. The two prescriptions, liberandi causa and acquirandi causa, are there dealt with together, instead of separately as in our Code. Basing himself upon this, the learned counsel for the defendant in this case contends that these French decisions and authorities are not applicable. The answer to that argument is that the principles of prescription embodied in the two Codes are absolutely the same. Both Codes are very largely, if not entirely, derived in the matter of prescription from Pothier’s treatises, De la Propriété; De la Possession; De la Prescription; Introduction aux Coutumes D’Orleans, at the part dealing with Prescription; and Obligations. The French Code is more condensed than *1015ours, not expressing those things which 'follow as logical consequences; whereas ours expresses those consequences. That is the only difference. But what is thus expressed in our Code and not found in the Code Napoleon is found, mostly in the same words, in Pothier. Pothier in his treatise De la Propriété, has a chapter headed “Comment se Perd le Domaine de Propriété,” “How Ownership is Lost.” In this chapter he enumerates all the modes in which ownership may be lost; and any one familiar with his works knows that he may be trusted not to have overlooked or omitted any. Among the modes thus named by him, this mode of a prescription of 30 years liberandi causa, unaccompanied by possession, is not found. Of the prescription of 30 years he says:
“No. 276. Finally, we lose, without our consent, and even without our knowledge, the ownership of a thing belonging to us, when the one who has the possession of it acquires it by prescription. As soon as this possessor has, either by himself or through others, accomplished the time required for prescription, the law which has established the prescription, deprives us de plein droit [absolutely, pleno jure] of the dominion of ownership which we had of the thing, and transfers it to this possessor.”'
This is practically what our Code expresses by article 496, under the title “Of Ownership.”
“Art. 496. The ownership and the possession of a thing are entirely distinct.
“The right of ownership exists independently of the exercise of it. The owner is not less the owner because he performs no act of ownership, or because he is disabled from performing any such acts, or even because another performs such acts without the knowledge or against the will of the owner.'
“But the owner exposes himself to the loss of his right of ownership in the thing if he permits it to remain in the possession of a third person for a time sufficient to enable the latter to acquire it by prescription.”
Where the framers of our Code would have got this idea of a prescription running against the owner of real estate in the absence of continuous and uninterrupted adverse possession on the part of the person in whose favor the prescription was running, or, indeed, run against him without at the same time and ipso facto running in favor of some one else, it would be hard to say. Certainly not from the civil law. The civil law books will be searched in vain for any such idea, save for the discussion already referred to as having arisen under article 2262 of the Code Napoléon. At common law such a prescription could not possibly run against the owner, for the fundamental principle there is that:
“One claiming land adversely must, in order that his claim may .be effective as against the owner, be in actual possession thereof, for without such occupancy the law assumes the possession to be in the owner of the legal title.” 1 R. C. L. p. 692.
“The constructive possession of land is always in the owner of the best title, unless he has renounced it, and this constructive possession can never be ousted by anything less than an actual possession maintained for the necessary period.” 2 C. J. 53.
And see 2 C. J. 53, note 28, where the Supreme Court of Tennessee is quoted as follows:
“The inference that, because by the recent statute a mere claim of title, unaccompanied by adverse possession, gives a right of action against such claimant, the statute of limitations therefore attaches in his favor, by the mere force of such adverse claim, is utterly destitute of foundation in law.”
This principle is embodied in article 3434 of our Code:
“Since the use of ownership is to have a thing in order to enjoy it and to dispose of it, and that it is only by possession that one can exercise this right, possession is therefore naturally linked to the ownership.”
And where there are two constructive possessions, it is that of the best title which prevails; or, in other words, where there are two titles, possession follows the true title. Moore v. Morgan’s La. R. R. Co., 126 La. 888, 53 South. 22.
The whole argument of defendant’s learned counsel is founded upon the supposed ab*1017sence of all qualification to the terms of article 3548. The argument is that “all actions,” without qualification, with nothing said as to the necessity of adverse possession, are said by this article to be prescribed by 30 years, and that therefore this action in revendication is prescribed. The argument is founded upon the strict letter of the article. But the rigid letter of said article is to be tempered and qualified by the necessary general principles of prescription. Such, for instance, as those relating to imprescriptibility (for some actions are imprescriptible), interruption, suspension, etc.; and. we say, by the fundamental and necessary principle, that prescription cannot possibly either begin or continue to run in favor of a party out of possession or against one person without at the same time running in favor of some other person.
Needless to say that the idea of following the letter of said article unbendingly, as if said Article stood, alone in our statutory law, is totally inadmissible. That article has to be read in connection with article 3457, which says of prescription that it is:
“A manner of acquiring the ownership of property, or discharging debts, by the effect of time, and under the conditions regulated by law.”
Now, what are the condtions, “regulated by law,” under which an owner of real estate may lose his title?
To our mind it is utterly and plainly unjuridical to say that an owner may lose his title without some one else ipso facto eo instanti acquiring it. A title cannot remain up in the air. One party losing his title, and another party acquiring it, or one party acquiring the title and another party losing it, are the necessary converses of each other. It follows from this that when the Code provides the mode, and .the sole and exclusive mode, by which one party may acquire title by the prescription of 30 years, it necessarily, ipso facto, provides the mode, and necessarily the sole and exclusive mode, by which the former owner may lose his title. When, therefore, articles 3499, 3500, and 3501 of the Code provide the exclusive mode in which a party may acquire title by the prescription of 30 years, they necessarily provide the exclusive mode by which a party may lose his title by the prescription of 30 years. Article 3548, which provides that the action for an immovable is prescribed by 30 years, or, in other words, that an owner loses his title by the prescription of 30 years, must therefore necessarily be read in connection with said article 3499 et seq. which provide how a party may acquire title by said prescription. The losing of the title beng the mere converse of the acquisition by some one else, the affirmative as to the only mode in which the title may be' acquired by prescription of 30 years is pregnant with the affirmative of the only mode in which it may be lost.
But the Code 'does not leave us to mere inference in this matter, for by article 496, already quoted supra, it provides in express terms how an owner may lose his ownership:
“The owner exposes himself to the loss of his right of ownership if he permits it to remain in the possession of a third person for a time sufficient to enable the latter to acquire it by prescription.”
This, we say, is pregnant with the negative that he cannot lose it unless he leaves it in the possession of a third party.
The contention of defendant adds to this article a provsion that the owner loses his ownership by prescription, even though he does not allow any one to remain in the possession of it “a sufficient time to enable the latter to acquire it by prescription.”
True, the defendant has not said that the plaintiffs in this case have lost the title, and that the defendant has acquired it; but it *1019proposes to do what is the exact equivalent of that, to take the property away from the plaintiffs and give it to the defendant. If there is a difference between the two, we do not see it; and we are sure the litigants do not either.
The contention, of defendant nullifies, throws into the scrap heap, a jurisprudence long firmly established in this state, and iu the modern common law, and, we dare say, wherever title to real estate is allowed to be divested by prescription. It is the jurisprudence usually found under the heading Tacking of Possessions.
“Tacking Possessions of Same Person Teniporarily Interrupted. — Since the constructive possession of the time owner revives when actual possession by the adverse claimant ceases, a renewed adverse possession by him after temporally abandonment cannot be tacked to his prior possession to make out the statutory period. Nor can one adverse holder tack together his own several holdings when he has allowed another person to acquire the intermediate tortuous possession before his own has ripened into title.” 1 Oye. Í009.
“Several successive possessions cannot be tacked for the purpose of showing a continuous adverse possession, where there is no privity of estate or connection of title between the several occupants. Entries of this character, neither of which continues for the limitation period, are merely a series of independent trespasses which cannot ripen into title, because the law restores the possession of the rightful owner on every discontinuance of the possession of one who holds adversely .to him.” 1 R. C. L. 720.
“Between Whom Privity Mxists. — Privity denotes merely a succession of relationships to the same thing, whether created by deeds, or by other act, or by operation of law. If one by agreement surrenders his possession to another, and the acts of the parties are such that the two possessions actually connect, the latter commencing at or before the former ends, leaving-no interval for the constructive possession of the true owner to intervene, such two possessions are blended into one, and the limitation period upon the right of such owner to reclaim the land is thereby continued; indeed that purpose of continuous possession is the continuous ouster of the owner.” 1 R. O. L. 718.
It will suffice for us to quote from one decision by this court (Sibley v. Pierson, 125 La. 514, 51 South. 513):
“Defendants, on the other hand, say that the court erred in not according to their mother, and through her to them, the benefit of the possession of her vendor, their father, and in not, upon that basis, maintaining their plea of the prescription of 30 years. * * * There is no doubt that, where an heir (and the same may be said of a coproprietor, other than an heir) has possessed the whole or part of an estate separately for 30 years, he may successfully oppose a suit for partition. * * * But he must have possessed uninterruptedly and in the same character during the entire period ; and where a person, having acquired a particular described tract of land, has taken possession of adjoining tract, or, having acquired a specific interest in a particular tract, has taken possession of the whole, with a view of acquiring the additional tract, or interest, merely by holding possession of it under a claim of ownership, he does not convey such possession to a vendee to whom he sells the ti’act or interest described, and such vendee cannot, for the purpose of aiding himself in the acquisition by prescription of property not included in his title, add his vendor’s possession to his own, there being no privity between him and his vendor in that respect. Civ. Code, art. 35-20, Prevost v. Johnson, 9 Mart. (O. S.) 170; City v. Shakespeare, 39 La. Ann. 1033, 3 South. 340; Railway Co. v. Le Rosen, 52 La. Ann. 204, 26 South. 854; Jasperson v. Scharnikow, 15 L. R. A. 1192, 1202 (notes); A. & E. Enc. of Law (2d Ed.) vol. 1, pp. 842, 845; Cyc. vol. 1, p. 1007.”
The case of Railway Co. v. Le Rosen, 52 La. Ann. 204, 26 South. 854, here cited, is a well-known one in our reports. There, a lot in Shreveport had been possessed continuously and uninterruptedly under fence for more than 40 years, the successive possessors not suspecting that a certain part of the lot was not included in the description of the lot as contained in their successive titles. They pleaded in vain the prescription of 30 j'ears. The court held that the possessions of the successive holders could not be tacked, for the reason, as expi’essed in the Sibley v. Pierson decision, supra, “there being no privity between him, and his vendor in that respect.” The law ‘Testored the possession of the rightful owner on every discontinuance of the possession of one who holds adversely to him.” 1 R. C. L. supra.
This jurisprudence, thus .so well established, both in this state and at common law, is entirely inconsistent with the theoi’y of de*1021fendant, that for defeating the action of the owner of the property a continuous uninterrupted possession of 30 years is not required.
To our mind, the argument, in a nutshell, stands thus: A party cannot lose his title without at the same time some other party acquiring it. Until a party loses his title, or, which is the same thing, until some other party acquires it, there cannot possibly be any reason for not letting the title be judicially asserted. No one can pretend that ownership can be acquired by the prescription of 30 years without continuous, uninterrupted possession. Hence adverse possession during 30 years is necessary for depriving an owner of his right to assert his title judicially.
The fact is that, if this contention of adverse possession not being necessary for the prescription of an owner’s right of action were not being urged seriously, we should not consider it to be serious. Por how can prescription against a right of action run so long as there is no adverse party against which the action may be brought; and, moreover, so long as there is no cause or reason whatever why an action should be brought? An owner has a tract of swamp land which nobody is disturbing. If he wanted to bring suit against anybody about the land, he could not, there being no one disturbing the land. This situation of nobody disturbing the land, and of the consequent impossibility of bringing suit, continues for 30 years. On the first day of the thirty-first year some one disturbs the land, and the owner brings suit; and he is told that his right of action is prescribed. To contend a thing of that kind is to lose sight of the fact that before prescription can run against a cause of action the cause of action must exist. Prescription cannot run against a cause of action which does not exist; and a cause of action for the petitory action, or action in revendication does not exist until some party has taken adverse possession.
And this adverse possession must necessarily be continuous and uninterrupted in order that the prescription itself should not be interrupted, and a new course of prescription have to begin, for, by operation of the principle that, in the absence of adverse actual possession possession follows title, the possession of the owner of the title would revive the moment the actual possession ceased, and if actual possession were resumed after this interruption, this new actual possession could not be joined to the actual possession prior to the interruption for making out the sum of the prescriptive period. After every interruption, a new period of possession begins. O. O. art. 3495.
Defendant invokes also the prescription of 30 years provided for by article 1030 of the Code reading:
“The faculty of accepting or renouncing a succession becomes barred by the lapse of time required for the longest prescription of the rights to immovables.”'
This prescription is inapplicable to the case, for the reason that the plaintiffs accepted the succession of their ancestor through whom they derive title by inheritance within the 30 years.
But defendant contends that the said acceptance is inapplicable to, or did not cover, this particular property, because this property was not included in the inventory of- the succession; that there was no acceptance in so far as this particular piece of property is concerned. Article 986 of the Code reads:
“He who has the power of accepting the entire succession cannot divide and accept only a part.”
The plaintiffs had the power of accepting the entire succession of their ancestor, since they were the legal heirs. In attributing to them the acceptance of only a part of the said succession, the defendant supposes their having done something they were without power to do.
By not accepting the succession within 30 *1023years the heir loses his inheritance, and. the heir next in rank becomes vested with the right of inheritance; and this happens even though this heir next in rank has not been in possession of the property of which the succession is composed. Defendant points to this as illustrative of the possibility of an Owner losing his property by the prescription of 30 years without possession on the part of the persoh to whom he loses it. The inappropriateness of the illustration lies in the fact that, under the express terms of said article, what is barred by the prescription which it provides is not the right of an owner to recover his property, but, in the words of the article, “the faculty of accepting a succession.” Between the two cases there is no analogy whatever. The heir has 30 years within which he may elect to' accept, and thereby acquire the property.' Pending this 30 years thus running against him the property is not in his possession, either actually or constructively, but in the possession of the representative of the succession; and this representative of the succession does not hold for himself, but for whichever heir may eventually accept the succession, so that when the heir first in rank suffers his faculty to accept to prescribe, and the heir next in rank accepts, the latter heir has in fact possessed through the representative of the succession from the time of the opening of the succession. “The effect of the acceptance goes back to the day of the opening of the succession.” C. C. 957. The rationale of said article 1030 is that the public has an interest in not letting the ownership of property remain too long in uncertainty or suspense; and hence a time is fixed within which the heir must make up his mind Whether to accept or renounce, and thereby fix the ownership of the property. How totally inapplicable this is to the case of an owner losing his ownership because he has had no occasion to use it for a certain length of time is perfectly evident. We may add that no article in the French Code or in ours has been found to be more difficult of interpretation than this article 1030. The French writers have evolved no less than eight different systems, or theories, nut of it; and the justices of this court, in the Succession of Waters, 12 La. Ann. 97, frankly confessed their inability to solve it. Therefore to invoke it for throwing light upon the proper interpretation of some other article of the Code is simply to seek light out of Cimmerian darkness.
The plaintiffs are Dominique Harang and Mrs. Wid. Eugene F. Meunier, each claiming to own 2280/25920 of one-third undivided of the property in question, a full description of which is given in the judgment appealed from.
The painstaking care with which the learned trial judge has gone into the intricate facts of this ease, and the elaborate and lucid opinion he has written, have conduced very much to facilitate the work of the court, and has made unnecessary the going into greater detail than has been done in this opinion. It would have been practically a mere repetition. He found as we do in favor of plaintiffs.
Judgment affirmed.
MONROE, C. J., dissents and reserves right to hand down opinion. See 79 South. 789. O’NIELL and LECHE, JJ., concur in the decree.