Property may be justly said to be destroyed when it is rendered unfit for the object for which it was intended.

Now, the evidence establishes that the proposed action of defendants will render five or six acres of his land entirely worthless. That this land is and has been planted in cotton, and constitutes a part of the best portion of his plantation.

As, then, the action of defendants will render a part of the property of plaintiff unfit for the purpose for which it was intended, and as effectually destroy it for the object of cultivation as if the title had been divested, we consider that their proposed operations will divest plaintiff of a part of his vested rights, and thus violate article 105 of the constitution of Louisiana.

The case of Dubose v. Levee Commissioners, 11 La. Ann. 167, is not adverse to the principles in the present decision.

The judgment of the lower court perpetuated the injunction. It ought to be amended so as to perpetuate it until adequate compensation is previously made.

It is therefore ordered, adjudged, and decreed that the judgment be so amended as that the injunction shall be perpetuated, until adequate compensation be previously made to the plaintiff for the works contemplated by defendants, as described in the petition; and that the judgment, so amended, be affirined, and that defendants pay the costs of appeal.

SPOFFORD, J., delivered a concurring opinion.

PRIVATE PROPERTY CANNOT BE TAKEN FOR PRIVATE PURPOSE: Taylor v. Porter, 40 Am. Dec. 274; Embury v. Connor, 53 Id. 325, and note 336; Sharpless v. Mayor of Philadelphia, 59 Id. 759; but may be taken for a public use: Moale v. Mayor etc. of Baltimore, 61 Id. 276, and collected cases in note 282.

RIGHT TO PROPERTY IS VESTED RIGHT: Henderson & Nashville R. R. Co.

MURPHY v. CRAFTS.

[13 LOUISIANA ANNUAL, 519.]

PARTNER IS BOUND TO INDEMNIFY HIS COPARTNER for any loss arising from his breach of their partnership contract, unless such contract is superseded or waived, in the course of their business, with the express assent of the copartner.

The opinion states the facts.

Singleton and Clack, for the plaintiff.

Coxe and Breaux, for the defendant.

By Court, LAND, J. The plaintiff and defendant were commercial partners, transacting a general commission business under the name and style of Murphy & Crafts, in the city of New Orleans. Their contract of partnership was in writing, and the third article thereof was in these words: "We will not indorse any note, draft, or give our signatures separately or collectively, except for our legitimate business purposes." Crafts, in violation of this article of the partnership agreement, accepted in the partnership name, for the accommodation of his brother-in-law, John C. Robertson, of the city of Boston, bills of exchange to the amount of twelve thousand five hundred dollars. Robertson failed in business, and the firm of Murphy & Crafts lost, in consequence of these acceptances, the sum of five thousand five hundred and ninety-two dollars and ninety cents. The principal question in this case is, whether Crafts is liable to his partner for the loss. Article 2774 of the civil code under the head of "partnership," declares that contracts of copartnership are regulated by the rules laid down in the title of conventional obligations, in all things not differently provided for by this article.

And article 1920, under the head of "conventional obligations," provides that "on the breach of any obligation to do or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract; and in all these cases damages may be given where they have accrued, according to the rules established in the following section."

In the following section, article 1924 declares that "the obligations of contracts extending to whatsoever is incident to such contracts, the party who violates them is liable, as one of the incidents of his obligations, to the payment of the damages which the other party has sustained by his default."

Judge Story, in his Commentaries on the Law of Partnership, says: "One of the most obvious duties and obligations of all the partners is strictly to conform themselves to all the stipulations contained in the partnership articles, and also to keep within the bounds and limitations of the rights, powers, authorities, and acts belonging and appropriate to the due discharge of the partnership, trade, or business. Of course every known deviation, form, and every excess in, the exercise of such rights, powers, authorities, and acts, which produce any loss or injury to the partnership, are to that extent to be borne by the partner who causes or occasions the loss or injury, and he is

The same

bound to indemnify the other partners therefor. doctrine is recognized by Pothier as existing in the French law; and it seems, indeed, so clearly the result of natural justice as to require no particular exposition:" See Story on Part., sec. 173.

According to these rules, the defendant is clearly bound to indemnify the plaintiff for the loss resulting from his breach of the third article of their contract of partnership, unless the same was superseded, or waived in the course of their business, with the assent of the plaintiff. And this is the defense made by the defendant to the action; but we concur with the district judge that the evidence is insufficient to show that the partners came to a new arrangement, in the course of their business, and thereby superseded article third of their contract, or that the plaintiff ratified the acceptances in favor of Robertson.

The plaintiff further claims the sum of five hundred and fiftyix dollars and thirty cents, on a different account, and we concur with the district judge, that the same is established by the evidence.

It is therefore ordered, adjudged, and decreed that the judgment be affirmed, with costs in both courts.

DELAHOUSSAYE v. JUDICE.

[13 LOUISIANA ANNUAL, 587.]

PROPRIETOR BELOW CANNOT RAISE ANY DAM, or by any other obstruction prevent the water from running, when a servitude is due by the estate situated below to receive waters which run naturally from the estate situated above, and the proprietor above can do nothing whereby such servitude is rendered more burdensome.

CONTINUOUS ANd Apparent ServITUDE can only be acquired by prescription, by an uninterrupted possession for ten years. Such right cannot be founded upon a precarious enjoyment.

CREDITOR OF SERVITUDE TACITLY RENOUNCES IT when, to stifle the complaints of the debtor and prevent a lawsuit, he erects a work totally obstructing the servitude at the request of and by agreement with the alleged debtor.

THE opinion contains the facts.

De Blanc and Fuselier, for the plaintiffs.

Simon and Gray, and J. G. Olivier, for the defendants.

By Court, SPOFFORD, J. The defendants have appealed from ■ judgment of the district court ordering the stoppage of an artificial canal cut upon some of the defendants' lands, for the purpose of draining certain marais, or ponds, situated within

territory belonging to the defendant, into Pointe Claire coulée. The plaintiffs complain that, by this artificial work, their lands adjacent to the Pointe Claire coulée are subjected to an unnatural burden by receiving waters from which they would otherwise be exempt, and thus being made more liable to overflows.

The first point in the defense is a denial that the canal causes any grievance to the plaintiffs or subjects them to greater risk of overflow.

If it does not, it is difficult to see why the defendants seek to keep the canal open; if their marais would otherwise be drained as rapidly and well, the canal must be useless to them; it could only have been cut for the purpose of drainage; it must, of course, if it fulfills its office, swell the waters of the coulée into which it flows faster than they would be swollen through the more shallow natural outlet of these ponds into the same coulée by another and more devious course.

And to this effect is the testimony of the greater number of witnesses who have had the best means of judging; that the lands of the plaintiffs are burdened by a greater and more rapid flow of waters since the cutting of the canal in question than before, and that is occasioned by the canal, and not merely by certain trifling obstructions in the branch of the coulée into which it empties. The question of legal right has, therefore, to be determined.

It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.

The proprietor below is not at liberty to raise any dam or to make any other work to prevent this running of the water.

The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome: Civ. Code, 656; Orleans Navigation Co. v. Mayor, 2 Mart. (La.) 233; Martin v. Jett, 12 La. Ann. 503 [32 Am. Dec. 120].

The force of article 656, as interpreted by this court, is not impaired, as the appellants seem to contend, by the succeeding arti cle, which relates simply to the use of the water running through one's estate, but does not give the owner any right to swell its volume by the artificial drainage of lakes into it, to the detriment of an inferior estate. "He whose estate borders on running water may use it as it runs for the purpose of watering his estate, or for other purposes.

"He through whose estate water runs, whether it originates

there or passes from lands above, may make use of it while it runs over his land; but he cannot stop nor give it another direction, and is bound to return it to its ordinary channel where it leaves his estate:" Civ. Code, 657.

Although the beginning and the exit of this canal be upon premises owned by some of the defendants, and although it disgorges its waters into a natural coulée, which also runs through their lands, yet if it renders the natural servitude due by the plaintiff's lands to defendants' more burdensome, it is within the prohibition of article 656.

And we find that it does carry waters upon the debtor estates which did not run naturally there; the industry of man has been used to effect this result; the natural servitude due by the lower lands has been thus made more burdensome. It follows, then, that the canal complained of was, in its inception, an invasion of the plaintiffs' right.

But the defendants say that this is a servitude of aqueduct, which is a continuous and apparent servitude: Civ. Code, 720, 723, 724; that a continuous and apparent servitude may be acquired by a possession of ten years, if the parties be present, and twenty if absent: Civ. Code, 761; and that, having been in the enjoyment of this servitude for more than ten years, they have acquired it by prescription.

The canal was cut by Désiré Dugas, then proprietor of the land across which it runs, in the year 1833 or 1834. In 1844 he sold this land to Judice, one of the present defendants. But during the period of his ownership the canal was not uninterrupted, and he appears to have had but a precarious enjoyment of the servitude it created or augmented upon the plaintiffs' lands. He testifies as follows: "On one occasion Onèsiphore Delahoussaye, one of the plaintiffs, stopped it up; it remained closed for a month or two, during which time Mr. Delahoussaye was hauling wood for his sugar-house; when I saw that he had finished hauling said wood, I reopened said canal, as agreed on between me and Onèsiphore Delahoussaye, who remarked at the time that he would close up the canal again whenever it proved inconvenient to him, as witness had no right to divert the waters from their natural course." Such was the origin and nature of Dugas's enjoyment of the servitude which the defendants now claim by the prescription of ten years. As already stated, he sold the land with the canal upon it to the defendant Judice, in 1844. It seems that the drain continued from this time without interruption until about seven years ago, to wit, in