*432Same Case — On a Re-hearing.
The plaintiff has applied for and obtained in this ease a re-hearing, and he insists upon two grounds for setting aside our former decree.
First. That the appeal should be dismissed, and
Second. That if the case be remanded, it should be remanded at defendant’s costs.
On the first ground it is urged that there was no serious demand for more than two hundred and ninety dollars. It does not appear to us that the plaintiff who filed a petition demanding $1000, and who obtained a vérdiet for $800, can successfully maintain that the demand is not serious quoad the defendant for a sum over $300.
By reference to the petition, the answer and minutes of the court, which compose the record, so far as the test of the matter in dispute at the time of trial is concerned, it is shown, that when the verdict of the jury was given and the judgment of the court was rendered, the demand was for $1000. As the record then stood, the plaintiff might have demanded, and risking a new trial, taken judgment for eight hundred dollars, notwithstanding his previous offer to amend by reducing his demand. If the judge erred, it was an error which might have been prejudicial to the defendant, as well as the plaintiff. This demand in the petition cannot be considered a purely fictitious claim wrought for the purpose of giving the Supreme Court jurisdiction. Whatever the plaintiff may now say, his demand was a real one when brought and when passed upon by the jury. And it has not yet leen reduced on the record to a sum below three hundred dollars, and cannot be reduced to have a retro-active effect until the decision of the District Court on the interlocutory question is considered and overruled, which is an examination of the case here on the merits. We are not therefore satisfied that there was error in our former decree sustaining the jurisdiction of the court.
On the second ground, we considered that the case ought not to be remanded at the cost of the plaintiff, for non constat but the judgment of the lower court might be right, and the plaintiff might be entitled to a final judgment on the merits. And we concluded further, that having jurisdiction for one purpose, we had jurisdiction for all, and that the-case, in justice to both parties, ought to be examined on the merits.
We have, therefore, given the case the examination which the questions on the merits demand.
The plaintiff resides, as he alleges, on the left bank of the Bayou La-fourche, about 28 miles from Thibodeaux, and there cultivates a small tract of land. The defendants, who cultivate a plantation some distance above, also own two tracts of wild land on the same side of the bayou, about thirty-five miles below Thibodeaux, that is, about seven miles below the plaintiff’s land, and fronting on the bayou.
In 1856, there were two periods of high water, in which crevasses *433occurred on the uncultivated property of defendants, during the last of which some damage was done to the plaintiff’s crops from the water which flowed through the crevasses on the lands of defendants and others in that vicinity.
The petition charges want of care, and wilful and culpable negligence on the part of defendants. The record is very voluminous, but the view we have taken of the case makes it unnecessary to consider more than a single point presented by the testimony.
The case rests upon the 25th section of the Act of 1829, p. 91, which is in these words, viz, “Every proprietor whose levee shall have been broken by his own neglect to comply with the provisions of this Act, shall be liable towards the planters who shall suffer by it, for all damages and losses, agreeably to articles 2294 and 2295 of the Civil Code, under the head of offences and quasi-offences.”
The proof shows that the defendants, in the fall of 1855, put their levees in good repair, so that the same were accepted by the inspector^ who gave his certificate to that effect.
Again, when during the first rise in 1856, a single crevasse occurred upon one of the tracts of land, the defendants sent hands to close the same, and they were kept at the work until they were sent home by the levee inspector. During the second rise the defendants kept the proper number of hands upon the place to watch the levees, and when they broke a second time they sent their force from their plantation, some distance above, to close the same. Wé can see no want of care on the part of the defendants. They obeyed the instructions of the levee inspector, and they are not bound for any error or misdirection of this officer, made in good faith in the lawful discharge of his duties.
Again, crevasses on six other plantations in the immediate vicinity of defendant’s lands; and it is shown that from natural and artificial causes the bayou Lafourche below Lockport has not capacity, with any ordinary levees which can be made, to carry off at this point the water which enters from above. The subject has given the public authorities solicitude, and from accurate measurements of the volume and velocity of the amount above and below, it is demonstrable that the bayou has not one half and scarcely one third of the capacity at this point it has atDonaldsonville, and it is made sufficiently certain that levee at this point below Lockport can never withstand the volume of water which will be thrown upon them by any considerable rise of the Mississippi, until either the Lafourche is partially closed at Donaldsonville, or a new system of levees of enormous magnitude is devised.
The more rapid current is sufficient to keep the channel open above and to hold the earthy particles of the water of the Mississippi in suspension. At this point the current is not so swift, and hence there is a constant tendency to make deposits of sand from islands and All the channel of the bayou. , As a consequence of the change of the current from an *434inclined to a more level plane, in every high water the levees give way and this part of the bayon is relieved by a great number of shallow outlets formed by the crevasses.
On the whole, we see nothing in the record which can maintain the judgment of the District Court in this case.
It is therefore ordered, adjudged and decreed, that the judgment heretofore pronoimced by us be set aside, and it is now ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendant, with the costs of both courts.