The opinion of the court was delivered by
McEnery, J.
The plaintiff company alleges that it is the owner of certain sea marsh land, acquired from the State in pursuance of Act No. 86 of 1880, by Robert S. Leovy, and by said company from Leovy on 17th March, 1872. Petitioner further alleges that for the purpose of creating oyster beds and cultivating and selling oysters, the plaintiff company has planted on said lands large quantities of oysters, and that said oyster beds have grown and increased in value since the oysters were planted thereon; that the defendants illegally combined and conspired for the purpose of wilfully slandering petitioner’s title to said lands, and have denied that the plaintiff is the owner of the same; that they have taken and removed oysters from said lands, and that pretending to some legal right on said lands, have combined for the purpose of taking plaintiff’s oysters planted on the company’s property, and have publicly stated that, on 1st September, following the filing of the suit, they would take oysters from the company’s beds and sell the same.
The plaintiff company allege damage to the amount of §1000, and pray, also, for an injunction restraining defendants from trespassing upon the lands claimed by the company, and pray to be decreed the legal and true owner of said lands, and be quieted in the title thereto. The injunction issued as prayed for.
The defendant filed peremptory exceptions and answered. Some of the exceptions need no notice, and others may be with propriety referred to the merits. Their defence is that the locus in quo where the trespass was said to have been committed was Bay Conquéte and Bayou Jacques, arms of the sea, where the tide ebbs and flows, and that they are navigable waters and are not susceptible of private ownership; that said Bays Jacques and Conquéte being [762]*762natural oyster beds were reserved from sale, to be held by the State for the common benefit of all its citizens for the purpose of fishing and catching oysters. There was with these special defences a general denial.
The defendants also filed a plea in reconvention for damages.
There was judgment decreeing the plaintiff to be the owner of the sea marsh described in his petition, except the Bay Conquéte, which was declared to be the property of the State.
The injunction was dissolved, plaintiff’s demand for damages rejected, and defendants’ reconventional demand dismissed.
The defendants appealed, in which the plaintiff joins.
Plaintiff objected to all evidence showing that Bay Conquéte was not a part of the purchase from Leovy, who acquired from the State, on the ground that the State Register of the Land Office had exclusive power to determine the extent of plaintiff’s purchase, and also that defendants could not set up special defences under the general denial.
The defendants do not pretend to question plaintiff’s title to the sea marsh, but contend that Bay Conquéte, where the trespass was alleged to have been committed, formed no part of plaintiff’s lands, as it was public property incapable of private ownership.
They were assuredly entitled to show this as a defence.
In trespass, guare clausum fregit, it is always competent for the defence to show that the plaintiff was not the possessor of the locus in quo.
The locus in quo was alleged by defendants to be the property of the State — declared to be the common property by Act No. 110 of 1892 of all the citizens of the State, to which they had the right to resort for the purpose of taking oysters. If their contention is well founded the plaintiff could not acquire ownership of the property, nor could it acquire adverse possession to the same. No one citizen can acquire, except under the regulations made by the State, an adverse possession, so as to exclude another. This reasoning will apply to both objections.
The whole controversy is in relation to the Bay ¡Conquéte, where plaintiff planted oysters, and where defendants are said to have committed the trespass. It will therefore be unnecessary to pass upon plaintiff’s title to the sea marsh claimed by the company, asno question is raised concerning it. Besides, the record shows that the con-[763]*763Urination to this part of plaintiff’s property has not been made by the-Federal Government to the State of Louisiana.
The testimony shows that Bay Oonquéte has an average depth of one to two and a half feet, which is the measure of the ebb and flow' of the tide. It receives its water through Bay Jacques, and is navi.-' gable for luggers of seven tons burden during the highest tide.
But it is land-locked in the interior of the State, and is in fact art inlet bordering on the Gulf of Mexico, and a part of the Gulf of Mexico within the jurisdiction of the State.
R. S. Leovy, from whom plaintiff purchased the land, acquired the same from the State September 28, 1892, after the passage of Act 110 of 1892.
Section 1 of the act provides ‘‘that all the beds of the rivers, bayous, creeks and lakes, coves and inlets, bordering on the Gulf of Mexico, and all that part of the Gulf of Mexico within the jurisdiction of this State, shall continue and remain the property of the State of Louisiana, and may be used as a common by all citizens of the State for the purpose of Ashing and taking and catching oysters and other shell fish, subject to the reservations and restrictions hereinafter imposed, and no grant or sale or conveyance shall hereafter be made by the Register of the State-Land Office to any estate, or interest of ■ the State, in any natural oyster bed or shoal, whether the said bed or shoal .shall ebb bare or not; and the citizens of this State shall have the exclusive privilege to fish or take oysters in any natural oyster bed or shoal subject to the restrictions hereinafter imposed.”
Section 2 provides “ that the rights of the owner or occupant of land on any of the shores or bays, bayous or inlets and lakes, shall extend to ordinary low water mark; but it is not intended thereby to deprive them of the privilege of bedding or planting oysters extended to all citizens^of this State under the several sections of this-act, and subject to the restrictions hereinafter imposed.”
The above act repeals all acts on the same subject matter.
But if it be contended that the patents issued in September, 1893, in pursuance of a previous location of the sea marsh, Act No. 106-of 1866 will apply with greater force, as the second section of said act is in the nature of a proviso, relating only to those who were the owners of land prior to the passage of said act.
The question then presented is one of fact — whether or not Bay [764]*764Oonquéte is a natural oyster reef or bed. There are several reefs in the oay, and the testimony is almost unanimous by witnesses for plaintiff and defendant that these reefs are hard, shell bottoms, ideal locations for the planting and growth of oysters.
For many years it was the resort of the residents of the Buras settlement in Plaquemines parish for a supply of oysters for domestic use.
Many were also taken for the purposes of sale. Defendant’s witnesses are unanimous in stating that oysters existed on the reefs in considerable quantities when plaintiffs took possession of the reef on which the company planted its oysters.
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The opinion of the court was delivered by
McEnery, J.
The plaintiff company alleges that it is the owner of certain sea marsh land, acquired from the State in pursuance of Act No. 86 of 1880, by Robert S. Leovy, and by said company from Leovy on 17th March, 1872. Petitioner further alleges that for the purpose of creating oyster beds and cultivating and selling oysters, the plaintiff company has planted on said lands large quantities of oysters, and that said oyster beds have grown and increased in value since the oysters were planted thereon; that the defendants illegally combined and conspired for the purpose of wilfully slandering petitioner’s title to said lands, and have denied that the plaintiff is the owner of the same; that they have taken and removed oysters from said lands, and that pretending to some legal right on said lands, have combined for the purpose of taking plaintiff’s oysters planted on the company’s property, and have publicly stated that, on 1st September, following the filing of the suit, they would take oysters from the company’s beds and sell the same.
The plaintiff company allege damage to the amount of §1000, and pray, also, for an injunction restraining defendants from trespassing upon the lands claimed by the company, and pray to be decreed the legal and true owner of said lands, and be quieted in the title thereto. The injunction issued as prayed for.
The defendant filed peremptory exceptions and answered. Some of the exceptions need no notice, and others may be with propriety referred to the merits. Their defence is that the locus in quo where the trespass was said to have been committed was Bay Conquéte and Bayou Jacques, arms of the sea, where the tide ebbs and flows, and that they are navigable waters and are not susceptible of private ownership; that said Bays Jacques and Conquéte being [762]*762natural oyster beds were reserved from sale, to be held by the State for the common benefit of all its citizens for the purpose of fishing and catching oysters. There was with these special defences a general denial.
The defendants also filed a plea in reconvention for damages.
There was judgment decreeing the plaintiff to be the owner of the sea marsh described in his petition, except the Bay Conquéte, which was declared to be the property of the State.
The injunction was dissolved, plaintiff’s demand for damages rejected, and defendants’ reconventional demand dismissed.
The defendants appealed, in which the plaintiff joins.
Plaintiff objected to all evidence showing that Bay Conquéte was not a part of the purchase from Leovy, who acquired from the State, on the ground that the State Register of the Land Office had exclusive power to determine the extent of plaintiff’s purchase, and also that defendants could not set up special defences under the general denial.
The defendants do not pretend to question plaintiff’s title to the sea marsh, but contend that Bay Conquéte, where the trespass was alleged to have been committed, formed no part of plaintiff’s lands, as it was public property incapable of private ownership.
They were assuredly entitled to show this as a defence.
In trespass, guare clausum fregit, it is always competent for the defence to show that the plaintiff was not the possessor of the locus in quo.
The locus in quo was alleged by defendants to be the property of the State — declared to be the common property by Act No. 110 of 1892 of all the citizens of the State, to which they had the right to resort for the purpose of taking oysters. If their contention is well founded the plaintiff could not acquire ownership of the property, nor could it acquire adverse possession to the same. No one citizen can acquire, except under the regulations made by the State, an adverse possession, so as to exclude another. This reasoning will apply to both objections.
The whole controversy is in relation to the Bay ¡Conquéte, where plaintiff planted oysters, and where defendants are said to have committed the trespass. It will therefore be unnecessary to pass upon plaintiff’s title to the sea marsh claimed by the company, asno question is raised concerning it. Besides, the record shows that the con-[763]*763Urination to this part of plaintiff’s property has not been made by the-Federal Government to the State of Louisiana.
The testimony shows that Bay Oonquéte has an average depth of one to two and a half feet, which is the measure of the ebb and flow' of the tide. It receives its water through Bay Jacques, and is navi.-' gable for luggers of seven tons burden during the highest tide.
But it is land-locked in the interior of the State, and is in fact art inlet bordering on the Gulf of Mexico, and a part of the Gulf of Mexico within the jurisdiction of the State.
R. S. Leovy, from whom plaintiff purchased the land, acquired the same from the State September 28, 1892, after the passage of Act 110 of 1892.
Section 1 of the act provides ‘‘that all the beds of the rivers, bayous, creeks and lakes, coves and inlets, bordering on the Gulf of Mexico, and all that part of the Gulf of Mexico within the jurisdiction of this State, shall continue and remain the property of the State of Louisiana, and may be used as a common by all citizens of the State for the purpose of Ashing and taking and catching oysters and other shell fish, subject to the reservations and restrictions hereinafter imposed, and no grant or sale or conveyance shall hereafter be made by the Register of the State-Land Office to any estate, or interest of ■ the State, in any natural oyster bed or shoal, whether the said bed or shoal .shall ebb bare or not; and the citizens of this State shall have the exclusive privilege to fish or take oysters in any natural oyster bed or shoal subject to the restrictions hereinafter imposed.”
Section 2 provides “ that the rights of the owner or occupant of land on any of the shores or bays, bayous or inlets and lakes, shall extend to ordinary low water mark; but it is not intended thereby to deprive them of the privilege of bedding or planting oysters extended to all citizens^of this State under the several sections of this-act, and subject to the restrictions hereinafter imposed.”
The above act repeals all acts on the same subject matter.
But if it be contended that the patents issued in September, 1893, in pursuance of a previous location of the sea marsh, Act No. 106-of 1866 will apply with greater force, as the second section of said act is in the nature of a proviso, relating only to those who were the owners of land prior to the passage of said act.
The question then presented is one of fact — whether or not Bay [764]*764Oonquéte is a natural oyster reef or bed. There are several reefs in the oay, and the testimony is almost unanimous by witnesses for plaintiff and defendant that these reefs are hard, shell bottoms, ideal locations for the planting and growth of oysters.
For many years it was the resort of the residents of the Buras settlement in Plaquemines parish for a supply of oysters for domestic use.
Many were also taken for the purposes of sale. Defendant’s witnesses are unanimous in stating that oysters existed on the reefs in considerable quantities when plaintiffs took possession of the reef on which the company planted its oysters.
Plaintiff’s witnesses state that there were few oysters on the z-eefs, and that they were scattered.
The preponderance of testimony is with the defendants, and even according-to plaintiff’s witnesses these reefs were not exhausted. There were oysters there in sufficient quantities, if undisturbed, to replenish the reefs.
To protect such natural oyster beds and to prevent their exhaustion, and to provide for the increase and growth of oysters upon them, was the object contemplated by Act No. 110 of 1892, by prohibiting their sale, and regulating their use in the hands of the State.
We agree with the district judge that the testimony shows that the defendants have not slandered plaintiff’s title except as to the ownership of Bay Conquete, and that there is also an absence of testimony to show the quantities of oysters taken by defendants or that those taken could be identified as the oysters planted by plaintiff.
Although plaintiff’s oysterswere planted in a public place, this did not authorize defendants to appropriate them. The proof is wanting as to the quantity and identity of oysters taken, but the inference is that the defendants appropriated some of plaintiff’s planting. They are not entitled to damages for the dissolution of the ir junction.
It is therefore ordered, adjudged and decreed that the judgments appealed from be amended so as to dissolve the injunction entirely, restricting the decree to the locus in quo, Bay Conquéte, which was never sold by the State to R. S. Leovy and by him to plaintiff. In all other respects the judgment is affirmed,' plaintiff to pay cost of appeal.
[765]*765The defendants, without applying for a rehearing in this case, suggest an amendment to the decree so as to apportion the costs in the lower court. It will be necessary to reverse the decree heretofore rendered.
It is therefore ordered, adjudged and decreed that the decree heretofore rendered be set aside, and in lieu thereof the following be entered:
It is therefore ordered, adjudged and decreed that the'judgment appealed from be annulled, avoided and reversed, and plaintiff’s demands be rejected and the injunction dissolved. It is further ordered that the reconventional demand of defendants be rejected, plaintiff to pay costs of appeal and in the lower court on principal demand; and defendants to pay costs in lower court on reconventional demand.