*428■ The opinion of the court was delivered by
.McEnery, J.On the 31st day of August, 1888, the plaintiff company purchased from the defendant a right of way over his property for the purpose of building a railroad.' The consideration and price of said sale was the great personal advantage and benefit to the defendant and to the neighborhood by the construction of the railroad, and the sum of twenty-five dollars cash. The plaintiff built the railroad in accordance with the stipulations to the act of sale.
On the 13th August, 1888, the following argreement was entered into between plaintiff and defendant: That the said Hermitage Planting Company obligates itself to pay off all of its hands employed on the Hermitage plantation from and after the 15th day of September, 1888, and further binds and obligates itself to give all •orders for goods and merchandise which the hands so employed may need on Frederick Higgason, of the parish of Ascension, store keeper at Darrow P. O., Ascension, La. And he the said Nolan, for and in the name of said planting company, binds himself and the said company to see that said Higgason is paid or secured for any advances which he may make to any of the hands employed on said Hermitage plantation (provided said advances be to a reasonable amount, and not to exceed the amount which said laborer or laborers, or hand or hands, may have earned, and which money be actually due him or them).
And now, in consideration of the said premises and .above covenants and agreement on the part of said Hermitage Company, the .said Higgason has this day signed before S. A. Gondran,- notary public, in and for the parish of Ascension, a certain contract granting ■unto the said Hermitage Planting Company a certain right of way ■across his lands for the purpose of establishing by the said Hermitage Planting Company a railroad on his lands. Should the Hermitage Planting Company fail to comply with and fulfil any of the •conditions and agreements herein contained and agreed to be carried out by them, then this right of way granted by the said Higgason this day, as per contract before said Gondran, shall be set •aside or left at his option to do so.
It is further understood by the parties hereto that said Higgason is to give notice to the said Hermitage Planting Company before the pay day of the hands of said plantation of any amount which may be due Mm by any of said hands or laborers on said Hermitage plantation*
*429The defendant, believing that the plaintiff bad violated the contract above recited, in May, 1893, went upon the right of way and' tore up the rails of the railroad track crossing the length of the right of way granted to plaintiff. In September, 1893, the plaintiff brought this suit, setting out the act by which the right of way was granted in its petition, and alleging that it had continuously up to date, and said road ever had been in the quiet and undisturbed possession of the same; that plaintiff, in May, 1893, tore up the track on the road bed crossing right of way granted by defendant to plaintiff; that defendant with malice did obstruct plaintiff in replacing the track on the said land, and that defendant’s acts were malicious, wrongful and tortious.
The prayer is that said defendant be enjoined from disturbing or placing any obstacles in the way of plaintiff from laying and replacing the track of their said road on and across said land, and from interfering with plaintiff in the use and enjoyment of their said, railroad until the further orders of this court.
The injunction issued as prayed.
The plaintiff did not annex to his petition, and we do not think ifc was essential that he should have done so, the contemporaneous: agreement made with defendant. The defendant answered, filing a-general denial, and specially urges as a defence the supplemental agreement referred to, and that plaintiff had failed to comply with the stipulations contained in the same, and he prays that there be judgment annulling the act. He also filed a reconventional demand for damages.
It is admitted that plaintiff is incorporeal and actual possessor of the part of land running through defendant’s line along the right of way, and all the acts of defendant in tearing up the track are also-admitted.
The pleadings also show that the plaintiff denies having violated the contract.
The pleadings being in this condition, on the judicial admission, plaintiff filed a motion that they entitled him to a judgment. The-motion was tried and the injunction perpetuated, reserving to both parties the right to sue for the amount of the contract. From this-judgment the defendant appealed.
The contention of the defendant is that the contract is subject to a resolutory condition, and that he has the right to plead in avoidance *430matters of defence showing a dissolution of the contract in order to reject the demand of plaintiff for a recognition of the right of servi" tude and its preservation thereof in perpetuity, and that the defendant being a non-resident of the parish he had the right to make any defence against plaintiff’s action and to institute a demand against plaintiff by way of reeonvention for any cause.
If this suit was based on the contract, and was intended to enforce the same, or for damages for its violation, the contention of the defendant would be well founded. 12 Rob. 472; 14 An. 627.
. The averments in the petition and the prayer of the plaintiffs stamp plaintiff’s action as possessory, pure and simple, and as such it must be governed by the law controlling possessory actions. There is no issue of title presented. It is contended by defendant that the exhibiting by plaintiff of his title to the right of way changed the character of the action and it became petitory.
The petition contains an allegation of ownership to show the nature and character of the possession, and the act of sale was exhibited, and annexed to plaintiff’s petition as evidence of the fact and nature of possession, not of title, as the prayer of the petition is alone to be quieted in peaceable possession of the premises. It was not necessary to exhibit the act of sale, or to disclose by what title the company held possession of the right of way, but by doing so the plaintiff company did not impress upon the action the character of a petitory one. Kempers’ Heirs vs. Hulic, 16 La. 46; Williams vs. Harmanson, 41 An. 705; Nieholl vs. Railroad Company, 44 An. 817.
As said by this court in 41 An. 705: “We are not concerned with the sufficiency or even with the existence of such title. The fact and nature of the possession alone is at issue,” and we may add that we are not concerned with the fact whether or not the contract has been violated and by-the resolutory condition the contract dissolved. This is a matter for future judicial determination under the reservations in the judgment appealed from if the parties see fit to resort to judicial process. It is certain the defendant had no right to take the law into his own hands and to disturb by violence the possession of the plaintiff. In such a case no inquiry is made as to whom the legal ownership of the property belongs, but the law is prompt in protecting the possessor, and to rebuke the unlawful act of disturbance by restoring the possession of the property to the party dispossessed. Nicholl vs. R. R. Co., 44 An. 817.
*431The defendant’s remedy was before the law and through the courts, and no act of violence can supplement his resort to legal process to fix and ascertain his legal ownership of the property. Nicholl vs. R. R. Co., 44 An. 8'7; Boniel vs. Block, 44 An. 515; Fox vs. McKee, 31 An. 69; Trader vs. Ins. Co., 237; Laloix vs. Ins. Co., 27 An. 113.
The defendant contends that the primary object of the suit is to obtain a judicial recognition of the right of way and to perpetuate the same by injunction.
We do not so understand it.
The judgment was restricted to the allegations in plaintiff’s petition, and the right of plaintiff to present possession was only recognized. The injunction is to prevent a disturbance of this possession. A judgment dissolving the contract would put an end to plaintiff’s possession and the injunction would expire with it.
Judgment affirmed.