Petit v. Cormier , 1 McGl. 370 ( 1881 )

Moore, J.,

after stating pleadings and facts — It is contended by tbe defendant, appellant, that the judgment should be reversed, plaintiff’s suit dismissed and she be restored to the possession of the property. In brief, defendant’s counsel contend that the writ of injunction will issue on the ex parte application of complainant, only in its remedial or prohibitory form — that is to say, when the purpose is to prohibit or restrain the performance of something; that in its mandatory form, when it commands something to be done, it cannot be issued until a hearing on the merits; and they cite, in support of this proposition, the case reported in 31 La. An. 497.

The next proposition is, that 'when an interlocutory order has been granted in error, and the order has been executed beyond recall, the appellate court, thpugh it can give no adequate remedy, or practical relief, will annul the order at the costs of the plaintiff in injunction; and in support of this proposition we are referred to the ease reported in 26 La. An. 603.

They also urge, that one who relies upon possession alone, and shows no title, must show possession by enclosures, by inches, and they refer us to 9 Martin La. 174; 19 La. 257.

So far as concerns the first propositibn, we find that the rule established by the decision in 31 La. An. 497, cited by both parties, and also 7 Eob. La.. 442, according to our understanding, is, that although the writ of injunction in its mandatory form cannot issue ex parte, and before trial of the merits, yet, when a party has been prohibited by injunction, in its remedial form, from obstructing the exercise of a right, such as the right of passage or way, the right of possession, etc., he may be commanded to remove the obstruction, because the continuance thereof effects the injury that he is prohibited or enjoined^ from doing.

In McDonough v. Calloway, 7 Rob. La. 442, and in Pierce v. City of New Orleans, 18 La. An. 242, it was decided, that parties may be compelled to do, as well as to refrain from doing, certain acts. We are of opinion, therefore, that the order of the court a qua, granting the writ and effecting the removal of defendant from the premises in question, was not erroneous.

The second proposition'of defendant’^ attorney we cannot sustain, for the reason that we do not think their first tenable.

As to the third proposition, “ that one who relies upon possession alone, and shows no title, must show possession by enclosures, by inches,” we find, on a careful reading of the authorities referred to, that the cases there decided were cases where the parties defendant in the possessory action had set up a imssession adverse to that of plaintiff, and were mere intruders or usurpers; and the court was of opinion that the same rule that applied to the one applied to the other, and made no distinction between an intruder and a usurper. Had the de-. fendant, in the case at bar, set up by way of defence to plaintiff’s action, that she had possessed for more than one year, or for a sufficient length of time to have acquired the land by prescription, or the right of possession adversely to plaintiff, then perhaps these decisions would apply; but we do not think them applicable to this case. We are of opinion that the plaintiff has made her case certain by the evidence adduced on the trial.

As to the ruling of the court, admitting in evidence the inventory of the estate of J. H. Millspaugh, excepted to by plaintiff’s attorney, we think the reasons given by the judge a quo for his ruling, good. The evidence was not admitted to show title, but to show possession alone. The objection went really to the effect of the evidence. In our opinion, it did not prove what it was admitted to prove, and it was in for no other purpose. The plaintiff had a right to invoke the remedy by injunction. Vide C. P. Art. 298, No. 5; 29 La. An. 795, and authorities already cited.

She was entitled to the action for possession of the property. .She has shown that she possessed the property when she-was ■disturbed, through her agent; that she had possessed it ■quietly and without interruption, as owner, for more than one year prior to her being disturbed, having, during the whole time, leased tbe property to her tenants, and collected the rent; that she had suffered a real disturbance, in fact, and that she brought her . action within the year in which the disturbance, took place. C. P. Arts. 46, 47, 49, 53.

Judgment affirmed, with costs.