By the court:
Rost, J.The servitudes claimed by the appellant, are to be exercised through doors and windows in a wall standing on the division .line between his lot and that of.the defendant. Every such wall is presumed to be in common, if there be no proof to the contrary. C.' C. 673. For want of any such proof in this case, we must assume that, at the probate sale of those two lots, made in the succession of Joseph Tabony, who in his life time owned both, the purchasers acquired this wall in common, and under that state of facts, the previous destination du pere de famille resulting from the openings Tabony had made in the wall, was abrogated by the sale of an undivided half of it to the defendant, and the case is to be determined under article 681 of the Code.
Under the express provision of that article, the defendant might have compelled the plaintiff to close all the openings in the common wall, and rested his buildings upon it; but it was optional with him so to do, or to give up the right of Common,.and erect a new wall as he has done. The plaintiff has no cause of action against him. See Cuelin v. Renaud, 19 Sirey, 2d part, 277. It may be observed that the servitude of passage claimed, is not a continuous servitude, and could, under no circumstances, result from the destination of the pere de famille.
Judgment affirmed with costs.