*1009On Application for Rehearing.
Breaux, J.In the court below there was judgment in favor of the plaintiff for all the property that he claimed, subjecting same, in the particulars mentioned, to a servitude of use and habitation and of limited duration only, and taxed all costs against the defendant; in our opinion, we recognized the defendant’s servitude upon the land' occupied by the buildings and upon the buildings themselves, and decreed same to be apparent and continuous.
Having amended the judgment in this particular, our decree affirms' the judgment appealed from in all other respects, and taxed the plaintiff with all costs of both courts.
The application for rehearing rests upon the following grounds, to-wit:
1. That the court does not, either in its opinion or decree, recognize and pass upon the main demand of plaintiff, the lots of ground described in the plaintiff’s petition.
2. That the opinion and decree is an affirmance of the opinion and judgment of the District Court, yet the plaintiff who obtained judgment for his property in the District Court, though denied a portion of the claim set up by him, is condemned to pay the costs.
3. That that portion of the decree proposing to amend the judgment of the District Court is surplusage, and though decreeing an amendment in terms, in legal effect and intendment, does not amend the decree of the District Court, only and except as to the question of costs.
4. And because if the decree of the court, which is not in conson- ■ anee with the reasoning of the opinion, be given the effect which the-words will sustain, the plaintiff, Woodcock, is deprived of real property not affected by the servitude, simply because the defendant’s right of servitude is recognized on a portion of the property; that is to say, the decree of the court is open to the interpretation that the.-court has given Baldwin, the defendant, a judgment recognizing a: servitude on the whole of lot No. 4 (four), because by destination du pere de famille a small portion of the lot was destined to a servitude of' support of a house on another lot.
Feeling assured, by the terms used in the decree, that the court did' not contemplate or intend such injustice, the plaintiff moves and prays this Honorable Court to grant a rehearing and to amend the decree, and to recognize and confirm the plaintiff’s rights as owner of the. *1010property described in his petition, and to limit the servitude which the court recognizes simply and only to the extent of its user.
Again, in the course of their argument, counsel say:
i -“From the reasoning of the opinion of this Honorable Court, we understand that the purpose and intention of the court was to amend the judgment and decree of the District Court simply and only to the extent of removing the limit upon the servitude; that is to say, that the District Judge had limited the life of the servitude to the life of the buildings, but that your Honors are of opinion that the servitude had been acquired in perpetuity and that a servitude had. been established on lot 4 (four) for the use of the house and to the extent that it was used for all time.
“And we cannot understand or believe that your Honors had intended to decree, or did decree, that the whole of lot four (4) was by this destination acquired by the owner of lot (5) in fee simple.”
It was not the purpose or intention of either our opinion or decree to recognize defendant as having acquired servitude upon the whole .of lot four (4) to which plaintiff claimed title; on the contrary, it was, in express terms, limited to that portion only, of lot four (4) which ■was occupied by defendant’s buildings.
At page six (6) of our original opinion will be found the judgment of the District Court, reproduced in its entirety; and by our decree same is affirmed, unqualifiedly, except in one particular stated supra.
This is all the explanation that counsel of plaintiff requires, and it satisfies them in all respects except as to costs; and in that respect we think the plaintiff is entitled to have the original decree amended so as to leave the judgment of the lower court in respect to costs un- . disturbed — -only taxing him with the costs of appeal.
It is therefore ordered, adjudged and decreed that our original . decree be so amended as to tax the plaintiff with the costs of appeal .alone; and that as thus altered, the same remains undisturbed.
.Rehearing refused.
Mr. Justice Monroe takes no part as the case was reached and submitted prior to his appointment to this bench.