The judgment of the court (Slidell, J., absent,) was pronounced by
Rost, J.This is a suit for the removal of levees and embankments erected by the defendants, on their land, which it is alleged obstruct the natural flow of the waters falling upon or passing through the land of the plaintiff. The petition contains also a claim for damages.
The defendants having failed to answer, the plaintiff took a judgment by default, and there being no jury in attendance at the time, he waived the damages, in order to try his case, and adduced evidence in support of his allegations, after having dismissed the suit as to Nerault, one of the defendants.
The district judge dismissed the petition on the ground that this was purely an action of damages, and that as the damages had been waived, there was nothing before the court. The plaintiff has appealed, and the defendants have appeared in this court.
The judgment is manifestly wrong; the prayer for the removal of the obstructions, is as distinct as language can make it, and the testimony clearly establishes that the defendants have erected, on their upper line, (which is the lower line of the plaintiff,) a levee which completely closes his natural drains and renders his land unfit for cultivation.
As the case is before us, he is entitled to have those drains opened. If it be true, that the defendants had a good defence to make, they should have appeared and made it. We are not called upon to take better care of them, than they phoose to take of themselveg.
*45It is ordered, that the judgment in this case be reversed. It is further ordered, that the defendants be directed to remove the obstruction which arrests the natural flow of the waters, falling upon or passing through the land of the plaintiff, described in the petition, and to restore his natural drains to their original depth. It is further ordered, that a writ of distringas issue, if necessary to enforce this decree, and that the costs in both courts, except those made against the defendant, Neraull, be paid by the defendants ; the excepted costs to be paid by the plaintiff.