dissenting. I have not been able to concur in the view taken of this cause by the majority of the court.
The principal defence to the action, is the plea of prescription of ten 3rears.
The Judge of the lower court was of the opinion that the defendant was a possessor of the land in question in good faith, but that the proof did not show a possession extending back a sufficient period to enable him to prescribe against the plaintiff's title. The tract of land seems to have been cultivated many years ago, and being covered with coco, was abandoned by the plaintiffs about the year 1827 or 1828. It is not shown that they exercised any act of ownership over the land, from that period until the institution of the suit, a period of twenty-two or twenty-three years, and under Article 3467 0. C., it would seem that the plaintiffs have lost their civil possession because they did not pay taxes, keep up the roads and levees, or do other similar acts.
The Judge of the lower court seems to have believed the witnesses who testified as to defendant’s acts of ownership, but he did not think they proved enough to establish the plea of prescription.
It appears that the defendant Barrow caused his title to be recorded.
He published a monition in the parish where a part of the plaintiffs reside, describing the tract of land in controversy, and obtained a judgment homolo-gating the tax title.
R. 0. Davis, a witness, says: “ At Barrow's request, I worked on the road with the slaves of Barrow, in the early part of 1838, and afterwards repaired the roads and levees and ditches on the land. Barrow had then and still has the actual and exclusive possession of said land as owner and proprietor thereof. I had for many years, and since 1838, brought a number of negroes every year, working on the land, repairing the roads, levees, etc., cutting ditches on *90tlie whole front of the land, and also towards the rear, I cannot say how far back. The land was certainly in possession of B. B. Barrow in the spring of 1838. I heard him say he purchased it on or about May, and it is now in his possession and has been since he purchased it, in 1838.”
A. V. Rogers says: “In the early part of the year 1838, I met with said Barrow on the land, working the road with negroes, and ditching.”
In another place, he says : “I saw Barrow working on the land, that is on the road, with his negroes, in the early part of the year 1838.”
Dr. T. A. Dozier testifies that he resided with B. B. Barrow prior to 26th of November, 1838 ; that some time previous to this date, “ whilst riding along the bayou, he saw ten or fifteen negroes working with different implements, such as hoes, spades and axes, as it appears to him, but does not recollect exactly ; working in different directions on the plantation and on the road.” He ascertained at the time that the negroes belonged to -Barrow ; thinks there wore one or two white men there; he stopped a few minutes and talked with them. After this, he saw them again at work there.
Harrison Benton says, that in 1838 or 1839, he saw 12 or 15 negroes of Barrow working on the ditches and road in front of the land.
It is also established by abundant testimony, that in May or June, 1840, there was a crevasse upon this land. That to prevent it, Barrow had sent for some negroes owned by him in partnership with another; that he employed and paid the white laborers upon the crevasse, and that the overseer and slaves remained in an old store-house (magasin) whilst they wgre there at work. The proof shows that Barrow continued to keep up the roads and levees, and that in 1844 or 1845, he enclosed the land and cultivated it as a part of his sugar plantation.
If this testimony is to be believed, and it is opposed by negative testimony onljr, I think that the plea of prescription is sustained by it. As already observed, not the slightest act of ownership had been exercised over the place by Dodeman or his children, after its sale for taxes.
Barrow gave notice to all the world, in 1838, by his monition published in French and English, that he claimed the land, and it was adjudged to him by the court; hence his acts had unusual publicity.
The testimony shows that the land was probably of no value for cultivation to the plaintiffs. One of the witnesses says it was nothing but a “ coco patch.”
I think, therefore, the acts of Barrow were all that were needed to vest the possession in him. He had paid a full price for the land. He had done every act indicating ownership which the nature of the land admitted. It was probably useless for all purposes of cultivation, except for sugar, and it did not become valuable for that purpose until he bought the adjoining lands which then gave sufficient size for a plantation.
The Civil Code defines possession to bo the detention or enjoyment of a thing which we hold or exercise by ourselves or another who keeps or exercises it in our name. C. C., 3389.
Detention consists in keeping a thing under our power. 1 Zacharie, section No. 184.
To be able to acquire possession of property, two distinct things are required:
1st. The intention of possessing as owner;
2d. The corporeal possession of the thing. C. C., 3399.
The Civil Code gives examples of this corporeal possession in Article 3391, *91but it leaves it to the discretion of the court to judge what act constitutes possession. It is express!}'' provided by the Code that “ It is not necessary however that a person wishing to take possession of an estate, should pass over every part of it. It is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included in the boundaries. O. 0., 8400.
That able jurist, Judge Bullard, in the case Lecomte v. Smart, 19 L. R., 489, says: “If the defendant had taken possession of the land under an apparent title, we should regard slight acts as evidence of an intention to take possession; but when a man, without ¡my pretence of title, goes upon land which he is informed is claimed by another, he must show unequivocal and continued acts of possession for more than a year, to maintain the plea of prescription.” While the positive acts of the defendant are shown on the one hand, much can be inferred on the other, from the passive conduct of the plaintiffs, which seems to amount to an intention to rid themselves of the burden of taxes and keeping up levees, abandoning the property to Mooney and his vendees. Quem ad mo-dum nulla possessio, adquiri nisi animo et corpore potest: ita nulla amittitur, nisi in qua utrumique in contrarium actum est. ff. Lib. 41; T. I). L. 8 ; C. C., 3467.
Three fourths of the territory of the State, consisting of forests, prairies, swamps and woodlands, for the present at least, admit of scarcely any other possession than that shown by the defendant in this case. To require this sort of real estate to be enclosed, in order to prescribe, would be the virtual abrogation of the provisions of the Code on the subject of prescription as to a large part of the wealth of the State.
I think that prescription should protect the defendant against the claim of all of the plaintiffs, except perhaps the minor Angelique Dodeman.