Buckley v. Delaware Louisiana Fur Trapping Co. , 2 F.2d 180 ( 1924 )

DAWKINS, District Judge.

Plaintiff alleges himself to be the owner of some 30,000 acres of land situated in the parish of Terrebonne, this district, and seeks to enjoin the defendants from trespassing thereon by trapping for fur-bearing animals. Defendant Delaware Louisiana Fur Trapping Company, Inc., excepted to the jurisdiction ratione person®.

Plea to the Jurisdiction.

The plea to the jurisdiction in this case should be overruled for the reason that the proceeding is in the nature of an action in rem, in that it involves the right to or possession of certain real property, and the charge of trespass thereon by the defendants through their agents. Under the Louisiana Code of Practice, the possessory action is denominated a real action, and it is for the protection of that possession and the declaring of the plaintiff’s right thereto that this suit is brought. Besides, the defendants ap-peared and filed affidavits on the hearing to support their right to the possession, without exacting a rule upon the jurisdictional question, which has had the effect, in my opinion, of waiving the exception to the jurisdiction.

Eight to Preliminary Injunction.

On the question of the right to a temporary injunction, the same depends upon whether or not the defendants have a legal or equitable right to the use of the property. The affidavits and the correspondence filed on the hearing indicate rather clearly that the parties had been, for several months, endeavoring ,to get together on the terms of a lease for a period of years, but that it was contemplated by all a written agreement should be made to incorporate those provisions, and until this was done the defendants would not pay the price which was to have been given. Many letters passed between them and their common counsel, but the lease was never actually prepared or signed, until finally the plaintiff, by a telegram, directed that, negotiations be discontinued. Defendants then attempted to pay the price of $500 per annum through their said attorney, and to have the lease prepared and signed, but plaintiff declined to go further with the matter. In these circumstances, the matter never went beyond the negotiation stagey and hence there was no contract. Haas v. Bernhardt, 144 La. 927, 81 So. 402. It is true that defendants and the attorney assumed that the contract would be made and signed,' and accordingly defendants arranged with third persons to pursue trapping operations on the property; but this was not the fault of the plaintiff. The attorney appears to have been about as much the counsel of the one as the other.

My conclusion is that the plaintiff is entitled to the preliminary injunction to protect his rights of possession in the real property; and it is accordingly so ordered.