I respectively dissent from the decree rendered in this case in so far as it requires the defendant to pay the plaintiffs' claim of $1,050 for revenues derived from the land while the defendant possessed it in good faith. It is conceded in the original opinion rendered in *Page 760 this case that the defendant possessed the land in good faith, believing that he owned the whole tract, and not as the owner of half of it, or for the benefit of his co-owners.
The decisions cited in the prevailing opinion in this case are authority for the proposition merely that an owner of a part interest in a tract of land, who possesses the land for the benefit of all of the co-owners and not under the claim of being the sole owner, must account to the co-owner or co-owners for his or their share of the revenues, and cannot plead prescription in bar of the demand, when sued for a partition of the property. But the defendant in a petitory action, who owns only a part interest in the land, but possesses the whole of it in good faith, believing that he is the sole owner, does not have to account for the revenues which he has derived from the land before judicial demand was made upon him by the other co-owner or co-owners. Rev. Civ. Code, art. 3453. It is illogical to say that one who owns an interest in land which he possesses as sole owner, in good faith, is worse off, with regard to accounting for the revenues which he has derived from the land, than he would be if he had no interest at all in the property, but possessed it under the belief that he owned it. It is illogical also to say that a plaintiff in a petitory action who owns only a part interest in the land is better off than one who owns it all, with regard to compelling the defendant to account for the revenues, on the false theory that the owner of only a part interest in the land may destroy the effect of the defendant's good faith, and defeat the laws of prescription, by the simple expedient of asking for a partition, in his petitory action. That cannot be true. *Page 761
Standing or growing timber does not come within the category of "fruits," in the meaning of article 3453 of the Civil Code. Hence a possessor of another's land, who fells the forest timber, must account to the owner for the value of the timber, notwithstanding the possessor who felled the timber was in good faith, believing that he owned the land. Harang v. Bowie Lumber Co., 145 La. 96, 81 So. 769.
Davis v. Ruddock Orleans Cypress Co., 132 La. 985, 62 So. 114, cited in both of the prevailing opinions in this case, is authority for the proposition only that, where a part owner of a tract of land possesses the land as owner, in good faith, adversely to the other co-owners, and believing that he is the sole owner, he is protected by the prescription of one year against a suit by the other co-owners for their share of the value of timber which he felled and removed from the land. That decision ought to avail the defendant in this case.