The opinion
WhitaKer, Judge,
dissenting:
I cannot agree with the opinion of the-majority. The Levee Board did furnish the right-of-way, as the. defendant agreed would be done. Neither the defendant nor the Levee Board kept plaintiff off of it. This was done by one Franklin, a stranger to the contract, who was under.the control of neither the defendant nor the Levee Board. It is true that Franklin denied the right of the Board to dig the canal *348 through his property and threatened to prevent it, but the project had been under way for five months before he took any overt act to carry out his threat. For five months he had applied for no injunction, nor taken any other step to stop the work. He had done nothing up until the time the work was just seven days from completion. Then, under no warrant of law, he came out with a pistol on his side and a shotgun in his hand and, by force of arms, stopped the work.
This was a course of action the defendant should not be expected to have foreseen, especially since the man of arms was a substantial and respected citizen in a civilized community. As soon as he did take such action, the defendant immediately appealed to the courts to stop him and diligently prosecuted the case until he was stopped.
I do not see how the defendant could be expected to have done more.
Plaintiff’s action, if any, is against Franklin, and not against the defendant.