author: MOISE, Justice. PONDER, Justice. MOISE, Justice HAWTHORNE, Justice HAWTHORNE, Justice. McCALEB, Justice

text:
    229 La. 191
    The TEXAS PIPE LINE COMPANY v. Alfred M. BARBE and Lucius L. Moss.
    No. 41438.
    Supreme Court of Louisiana.
    Feb. 14, 1955.
    On Rehearing June 30, 1955.
    On Second Rehearing Jan. 16, 1956.

      Richard S. Lake, D. Douglas Howard, New Orleans, Oliver P. Stockwell, Plauche & Stockwell, Lake Charles, of counsel, for plaintiff-appellant.
    Porter & Stewart, by Thomas F. Porter, Lake Charles, for defendants-appellees.
   MOISE, Justice.

A devolutive appeal was taken by The Texas Pipe Line Company from a judgment of the district court, which granted to plaintiff a sixty-foot right-of-way during the construction of a pipe line, to revert to a thirty-foot permanent right-of-way; and awarded to Alfred M. Barbe and Lucius L. Moss the sum of $1,140 for the thirty-foot right-of-way traversing 1.114 acres and $11,250 as severance damages on Tract No. 1; and awarded to Alfred M. Barbe the sum of $2,205 for the thirty-foot right-of-way traversing 2.205 acres and $22,500 as severance damages on Tract No. 2.

The issue on this appeal is the alleged excessive awards of the lower court for the right-of-ways and alleged erroneous awards for severance damages. The defendants answer the appeal and plead the inadequacy of the awards. The appellant ■has paid the amount of the awards into the Registry of the Court, in order not to' delay the construction of the pipe line.

It is the jurisprudence of this Court that, where there is a willing seller and a willing buyer and the lands are adjoining, adjacent and similar to the property sought to be expropriated, the sales value of such lands will often act as a criterion of value. However, other factors will be found in the evidence in this record that will show that such is not always a fair test.

There is in the record testimony to the effect—

“That these lands are near a deep water channel to the Gulf; that they are highly suitable for industrial purposes, because of the qualifications of this area as one of the prime industrial areas of the Gulf Coast and its close proximity to ship channel, the railroad facilities, the access of paved concrete highways (and one in particular from Sulphur passing only a few hundred feet from the property.
“The property itself is adequately separated from other industries. The fact that there is some intervening space would make it more suitable than if it was closer to existing industries.
“There is abundant available fuel in this area — there being thirty-three oil and gas fields within an area of thirty miles from Lake Charles, which is only a few miles from this property. Not only is gas and oil available in sufficient quantities for fuel, but it is available for other basic materials for pet-ro-chemical industries that might locate in this area.
“Two deep water channels to the Gulf are available, and nearby industries make available by-products needed for certain industries.
“This area offers very attractive advantages to industries, because of cheap fuel, sufficient labor, good climate, and availability of by-products from near-by industries.”

This is a description of the location of the property, and such a description makes that property available for industrial purposes.

The trial judge, in a well considered opinion, discusses the evidence in detail and fairly disposes of the issues involved. We have, therefore, adopted his reasons as our own.

“The first issue to be determined is that of public necessity and purpose. The rule of law is stated in the case of Louisiana Railway and Navigation Company v. Xavier Realty, Limited, 115 La. 328, 39 So. 1. Mr. C. H. Albitz, assistant general manager in operation for plaintiff, and Mr. G. E. Musselman, senior Civil engineer for plaintiff, testified in behalf of plaintiff on the issue of public necessity and public purpose. The evidence discloses that plaintiff has now in existence south of the proposed pipe line, a 22 inch crude oil line running from Hou-ma, Louisiana to Port Arthur, Texas. The proposed 16 inch pipe line will run from Port Arthur, Texas to Baton Rouge and thence by way of the Plantation System to the Southeastern states. It is also necessary that the 16 inch line connect with Cities Service Refining Company at Lake Charles, Louisiana, this being one of the reasons why the servitude used in the 22 inch line could not be used in the erection of the 16 inch line. It was also testified that plaintiff had obtained a certificate of necessity from the office of Petroleum Administration for defense, a federal agency. The 16 inch line will carry gasoline and other refined products from Texas to Baton Rouge and thence to the Southeastern states. The court is of the opinion that plaintiff has shown public necessity and purpose and have the right to expropriate in the case at bar.
“The court having concluded that the plaintiff has shown public necessity and purpose it will now proceed to the next contention advanced by defendants. They contend that the right of way is excessive. The court concluded in other cases tried recently that a thirty foot servitude would be sufficient. Defendants offered a deed from Mrs. Matilda Geddings Gray et al in favor of plaintiff to show that plaintiff did not need the right of way in question. The vendors in the deed to plaintiff were defendants in a case similar to the one at bar before this section of the court. There were many preliminary hearings had and the parties finally compromised their differences and dismissed their suit. The deed introduced as D-3 was the result of the compromise. However, giving the deed full force as a conventional sale while the right of way or servitude is less than 60 feet wide, plaintiff is not limited to the width of the pipe line for the purposes necessary or incidental for said operation as a reading of the deed will show.
“The Supreme Court in reviewing the subject as to excessive taking said in the cases Crichton v. Louisiana Highway Commission, 172 La. 1033, 136 So. 43 and State v. Cooper, 213 La. 1016, 36 So.2d 22, that they would not disturb the decision of qualified officials, such as engineers, whose duty it is to determine the amount of land needed unless acted arbitrarily and also that the requirement as to land need not be restricted to the needs of the immediate future. However, •counsel for plaintiff conceded in oral argument that a 30 foot servitude would suffice. The Court concludes that a 30 foot servitude is sufficient. The court will allow plaintiff to use the 60 feet it requested in its suit during the construction of said pipe line but as soon as it is completed the use of said land shall be limited to a servitude 30 feet wide.” (Italics ours.)
“The court will consider next the question of compensation and damages due defendants as a result of the taking.
“The law on the subject of compensation and damages is stated in the case of Louisiana Highway Commission v. Israel, 205 La. 669, 17 So.2d [914] 915, 916, in the following language namely:
“ ‘The law is well settled, and counsel for the respective litigants agree, that the amount due for private property expropriated for public purposes is its market value when taken, Louisiana Highway Commission v. Guidry, 176 La. 389, 146 So. 1. The market value of property is its fair value between one who wants to purchase and one who wants to sell, under ordinary and usual circumstances. Opelousas, G. & N. E. Railroad Company v. Bradford, 118 La. 506, 43 So. 79; Louisville & N. Railroad Company v. R. E. [E.] De Montluzin Company, Inc., 166 La. 211, 116 So. 854; Harrison v. Louisiana Highway Commission, 191 La. 839, 186 So. 354. It does not mean speculative value. Louisiana Highway Commission v. Lasseigne, 177 La. 440, 148 So. 672. Furthermore, compensation is due to the owner not only for the value of the property actually taken but also for damage caused to his remaining portion after the taking. Louisiana Highway Commission v. Guidry., supra.’ See State v. Landry, 219 La. 721, 53 So.2d 908.
“In Texas Pipe Line Co. v. National Gasoline Co. of Louisiana, Inc., 203 La. 787, 14 So.2d 636, the court said that an existing pipe line may be an element'used in assessing damages.
“The question of value and damages took up the major portion of the time in the case. While the ' opposing experts disagreed on values and damages they were all in agreement to the fact that the best and highest use of the land belonging to defendants would be for industrial purposes.
“Plaintiff used as experts Mr. George B. Hines, William B. Coleman and J. G. Love, all licensed realtors from Lake Charles, Louisiana.
“The experts for plaintiff placed a value on the servitude at from $550.00 to $725.00 per acre. Because of the right of way was a servitude they concluded that the land had a 50% loss of value. The experts for plaintiff testified that no damage would result to the land because of the proposed pipe line. Plaintiff also introduced sales of land in the vicinity ranging from about $150.00 to $500.00 per acre. Defendant A. M. Barbe testified he had agreed to take $500.00 per acre for his land and had then withdrawn his offer. Plaintiff also placed on the stand Mr. L. D. Mann, President and General Manager of Cities Service Refining Company, a large oil refinery in the vicinity of the land .belonging to defendants. On direct examination he testified that the fact that a 16 inch pipe line, which is the one proposed in this case ran diagonally across the property would not in his opinion affect the value of the land for industrial purposes. However, on cross examination he stated that if he were buying the land for an industrial site he would remove the pipe line from the property.
“Defendants had as experts large land owners or managers, namely, S. Arthur Knapp, Mr. Harry G. Chalkley and Mr. W. E. Godwin. They placed a value on said land at from $1250.00 to $1500.00 per acre. They testified that the running of a pipe line diagonally across said tracts would ruin it for industrial purposes and then it would have to be used for either agricultural or grazing purposes with a value as testified by one expert of 'not more than $250.00 per acre.
“Mr. Rowland Preis, as a witness for defendants, testified he had offered a land owner having a tract of land near lands of defendants $1250.-00 per acre for his land. Plaintiff objected to the introduction of evidence to show an offer to buy, ' citing as his authority Louisiana Railway & Navigation Co. v. Morere, 116 La. 997, 41 So. 236 [238]. The Supreme Court said in this case:
“ ‘The evidence as to offers of purchase was properly rejected. Offers of purchase are a class of evidence safer to reject than to receive.’
“The Court reserved its ruling on the admissibility of the evidence by Mr. Preis. In view of the above ruling the evidence by Mr. Preis is excluded from the record for purposes of decision.
“The evidence discloses that defendants property is about V/z to 2 miles from the physical plants of Cities Service Refining Company, Firestone and other industrial plants of large magnitude in the area. The evidence discloses further that some of the corporations in the vicinity have purchased lands for future use which adjoin a portion of the lands belonging to defendants.
“Defendants also had to testify in their behalf a Mr. John C. Calhoun, Jr., a civil engineer from Texas, who had also experience in locating plants. He stated that the defendant’s land would be more valuable if sold as a unit rather than in separate tracts and that the running of a pipe line in a diagonal direction would have the effect of cutting the land in smaller parcels thereby, making it less valuable for industrial sites. Oh cross examination he testified that some of the property could be used for industrial sites. The record discloses that some of the existing industries in the area own tracts which consist of 60 and 80 acres on which their plants are located.
“There are two tracts involved. Tract No. 1, consisting of 80, acres,, is owned in indivisión by Alfred M. Barbe and Lucius L. Moss.
“The 30 foot right of way or servitude consists of 1.14 acres. Considering the testimony of all the witnesses the court is of the opinion that $1,000.00 per acre or $1,140.00 would be adequate compensation for this tract. As said by Justice O’Niell in Texas Pipe Line Co. v. National Gasoline Company of Louisiana, 203 La. 787, 14 So.2d 636, there is not much difference between the value of the right of way or servitude and the land embraced in it.
“The next item is one of damages. The North half of the 80 acre tract will be intact after the granting of the right of way.
“The servitude cuts the south half of the tract leaving about 15 acres cut off from the 80 acre tract. It was conceded by John C. Calhoun, Jr., witness for defendants, that 65 acres could be used for an industrial site. The 15' acres can still be used for agriculture or pasturage uses. ' The court fixes the damagés to the land at $11,250.00 which is the difference between the valúe the 15 acre tract would have for industrial purposes of $1,000.00 and the value it would have for agriculture or pasturage purposes of $250.00 or a difference of $750.00 per acre.
“The total award for tract one . is fixed at $12,390.00 to be divided equally between defendants Alfred M„ Barbe and Lucius L. Moss.
“Tract No. 2 consists of 200 acres and is owned in its entirety by Alfred M. Barbe.
“The amount of land in the right of way is 2.205 acres. The acreage at $1,000.00 per acre totals $2,205.00 which amount the Court fixes as compensation for said servitude.
“The next matter is to determine the amount of damages to Tract 2.
“The 200 acre tract owned by defendant Alfred M. Barbe is all located in Section 26, Township 10 South, Range 10 West.
"The proposed pipe line servitude runs through portions of NEJ4 of SW ¡4, SWJ4 of NEJ4, and NW}4 of SE of Section 26 in a diagonal direction running northwesterly through said tract. It is difficult for the court to place the damages which should be assessed as to Tract No. 2.
“It is more difficult for the court to determine the damages which .will be suffered by defendant, Alfred M. Barbe as a result of the pipe line going through his 200 acre tract. As stated before there are 3 40-acre tracts directly affected by the proposed pipe line. There is no question in the mind of the court that a 16 inch gas pipe line would affect the location and building of a petro chemical plant or any other similar plant due to the danger involved by reason of an existing gas pipe line. There are 2 40-acre tracts over which the pipe line does not traverse. However, these tracts will be affected to some extent considering that some of the tracts will be divided in triangles by the proposed pipe line. The court is of the opinion that the entire tract will suffer a 15% decrease in value for the purpose of industrial site or sites; that it will be available for grazing and farming and that an award of $22,500.00 as damages to the entire tract is proper. Accordingly, the amount awarded to the defendant Alfred M. Barbe for compensation and damages is the sum of $24,705.00.
“For the written reasons assigned judgment is hereby rendered as follows :
“As to Tract No. 1 in favor of plaintiff Texas Pipe Line 'Company and against defendants, Alfred M. Barbe and Lucius L. Moss granting to plaintiff, a right of way or servitude 60 feet in width over the land belonging in in-división to defendants and described in this suit, during the construction of said pipe line and at the completion thereof said pipe line to revert back to 30 feet wide and to remain at said width for the duration thereof. The ownership of said servitude to vest in plaintiff upon its paying to Alfred M. Barbe and Lucius L. Moss each the sum of $6,195.00.
“As to Tract No. 2 in favor of plaintiff, Texas Pipe Line Company and against Alfred M. Barbe, granting to plaintiff a right of way or servitude 60 feet in width over the land belonging to defendant, and described in this suit, during the construction of, said pipe line and at the completion thereof, said pipe line to revert back, to 30 feet wide and to remain at said width for the duration thereof. The ownership of said servitude to vest in plaintiff upon its paying to Alfred M. Barbe the sum of $24,705.00.
“Plaintiff to pay all costs of this suit.”
Judgment affirmed.

McCALEB, J., dissents, being of the opinion that the awards are excessive.

On Rehearing

PONDER, Justice.

We granted a rehearing in this case in order that we might reconsider our decree relating to the severance damages that might be occasioned to the lands of the defendants adjoining the pipe line right-of-way, and the rehearing was limited to this question.

The pipe line right-of-way traverses diagonally a 200 acre tract of land owned by the defendant, Barbe, and an 80 acre tract of land owned by the defendants, Barbe and Moss. There is to be laid a sixteen inch high octane gas pipe line in this right-of-way.

The evidence shows that the best possible use of these lands would be for industrial purposes and that it has not been so used up to the present time. The nearest industry to the lands is some one and one-half to two miles distant. There is no evidence in the record that any one has sought to acquire these lands for industrial purposes. The land is now used for pasturage purposes.

The evidence as to whether or not the pipe line would depreciate the value of the property adjoining the right-of-way is very conflicting and uncertain. Three licensed realtors and the President and General Manager of Cities Service Refining Corporation, an industry located in the vicinity, testified that the pipe line right of way would not damage or depreciate the value of the adjoining property. On the other hand, two engineers, and one of the defendants, testified that it would damage the adjoining property and render it unsuitable for industrial purposes and make it suitable only for pasturage and farm purposes, thereby reducing its value. These are the only witnesses who testified as to the severance damage.

The testimony is conflicting and is such that the damage, if any, is speculative and remote. We cannot say from the evidence that this property will ever be used in fact for industrial purposes or that it cannot be so used in the future.

We are aware of the decisions of this Court allowing damages when there is positive proof of such, but the damages claimed must not be anticipated damages, nor remote or speculative. Louisiana Highway Commission v. Lasseigne, 177 La. 440, 148 So. 672; Louisiana Highway Commission v. Paciera, 205 La. 784, 18 So.2d 193; American Tel. & Tel. Company of Louisiana v. Maguire, 219 La. 740, 54 So.2d 4; State of Louisiana Through Department of Highways v. Glassell, 226 La. 988, 77 So.2d 881. Therefore, under the circumstances, we cannot say that the defendants have proven by a preponderance of evidence that the adjacent lands would be damaged by the pipe line right of way.

For the reasons assigned, the award in the judgment of the lower court for severance damages is set aside and the judgment is now amended so as to award Alfred M. Barbe $2,775 and Lucius L. Moss $570 and, as thus amended, the judgment is affirmed. All costs to be paid by the plaintiff, The Texas Pipe Line Company. Defendants right to apply for a rehearing is reserved.

MOISE, Justice

(dissenting).

The opinion on rehearing disallows all severance damages. Severance damages were allowed because of the harm done, in the opinion of the district court judge, to the remaining land. His judgment is now reversed on rehearing, as well as the original judgment of this Court. The reservation of the right to apply for a rehearing should have been made.

The object of judicial investigation is the ascertainment of truth. Evidence is the means by which that is effected. It variously adjusts itself, to perform its task in most certain and direct ways some things are self-evident — others are proven by the senses. But, there are other subjects which address themselves to no palpable standards of truth, but to human experience and the demonstrative physical facts.

The trial judge, from the testimony of the experts, concluded that the property was an ideal location for industrial purposes and that such, on his part, was predicated in the main on expert testimony.

Mr. Calhoun is an engineer of long, experience, and he concluded his opinion on the basis of demonstrative physical facts. He said that this area is one of the prime industrial areas of the Gulf Coast; that it was in close proximity to the ship channel; that there were railroad facilities; that it has access to a highway close by; and that there was a paved concrete highway from Sulphur passing -only a few hundred feet from this- property. He stated' that it was adequately separated from the other industries; and that the fact that there is some intervening space would, .in his opinion, make it more suitable than if it were closer., to existing industries. (Tr. Vol. 3, pagej 346) ; that there is abundant available fuel in this area; that there are thirty-three oil’ and gas fields within an area of thirty miles of Lake Charles, which is only a few miles from this property; that not only are gas and oil available in sufficient quantities for fuel, but they are .available for basic materials for petro-chemical industries that might locate in this area. (Tr. Vol. 3, page 347) ; that both fresh and salt water, necessary for some industries, are available. (Tr. Vol. 3, page 348); that nearby industries make available, by-products needed for certain industries; that it is a common practice to locate processing industries adjacent to such industries as are already located in this area. (Tr. Vol. 3, pages 348, 349).

With all of these magnificent facilities available for commercial purposes, it would hardly be fitting to say that such land is suitable only for pasturage purposes.

Mr. Coleman, a witness for the Pipe Line, admitted that this area offered very attractive advantages to industries, mentioning cheap fuel, sufficient labor, good climate, and availability of by-products from nearby industries. (Tr. Vol. 3, page 215).

Mr. Hines, also a witness for the Pipe Line, said that this area was highly suitable for industries, and mentioned, in addition to the desirable features, the availability of sufficient quantities of salt and sulphur, which are essential to the production of certain chemicals.'

We merely mention these demonstrative facts to show that this record contains an abundance of evidence why we should not adopt mere legal abstractions or things that are supposed.

The defense witnesses were of the opinion that the running of this servitude diagonally through the two tracts was ruining the land for future industrial purposes. See the testimony of Barbe, Tr. Vol. 3, pages 237, 238, 239; Chalkley, Tr. Vol. 3, page 258; Knapp, Tr. Vol. 3, page 270. The industrial engineer, Mr. Calhoun, was of the same opinion, and he said that no industry would want a pipe line on its property. Mr. Calhoun also said that no industry would locate a building close to a pipe line. (Tr. Vol. 3, page 365).

These facts demonstrate severance damages that.should be imposed for the remaining land not taken.

■Mr. Mann, President and General Manager of the Cities Service Refining Company, said that it would not be a good situation to. have men going through his plant day and night inspecting, maintaining, repairing and replacing pipe lines, and that if he had one on his property he would move it.

Mr. Calhoun said that it was possible that an industry might want the sixty-five acres remaining of Tract One, but that he could think of no industry locating in this area that would want small tracts. (Tr. Vol. 3, page 375).

Now, as a fact, what did the Pipe Line do after expropriating this property? It cut Tract No. 2 into two triangles, and by cutting a triangular piece of land off of Tract No. 1 it has greatly lessened the opportunity to sell the land to industries of any size, and has almost certainly made it impossible to sell to larger industries.

Before this expropriation of the right-of-way, the defendants had 280 acres of land in one block. Now they have two triangular shaped tracts and one irregular shaped tract. In Tract No. 1 there is cut off 15 acres, which rendered that acreage virtually valueless for industrial purposes, if we are to take the testimony of the expert witnesses of both sides.

The judgment on rehearing allows for a valuation of the land of $1,000 an acre. The 15 acres separated from the land, which rendered it unfit for industrial purposes, has a valuation of only $250 an acre, and that is for pasturage purposes.

From the very concession of the opinion on rehearing, there must be severance damages as to the difference of land at $1;000 an acre for 15 acres of land, which is reduced in value from $1,000 to $250. That, on its face shows a severance damage of $11,250. So, how could there be any dis-allowance of all severance damages?

There are two facts that stand in bold relief. The trial judge saw and heard the •witnesses, and he is in -a better position than we to evaluate their testimony.' The trial judge is familiar with the location of the property.

The facts and the demonstrative physical facts are the true and only foundation for belief.

I, therefore, respectfully dissent.

HAWTHORNE, Justice

(dissenting-.in part).

The judgment of the district court awarded the defendants in this case large ■sums as severance damages, or damages •caused to the remaining portion of the property after the taking, and on original hearing this court affirmed that judgment. I voted for a rehearing in this case because I was of the opinion that the amount awarded for severance damages was excessive and that further consideration should be given to the amount of this award.

I do not agree, however, with the holding ■of the majority on rehearing that the severance damages sought are speculative and remote and that the defendants are ’not entitled to any such damages. It is my view that there is ample evidence in the record to justify an award of severance damages; the only question in my mind is the proper amount.

On Second Rehearing.

HAWTHORNE, Justice.

We granted another rehearing in this case so that we could give further consideration to the judgment of the lower court awarding these landowners severance damages. Moss and Barbe were allowed $11,-250 as severance or consequential damages, resulting from the expropriation of a 30-foot- right- of way across 80 acres of land owned by them (Tract No. 1), and Barbe was given: $22,500 as damages resulting from the expropriation of the right of way diagonally across a tract of 200 acres- owned by him, (Tract No. 2). .The right of way is to be used by the Texas Pipe Line Company -in the construction of a 16-inch pipeline for the transportation of high octane gasoline.

The property crossed by the right of'way is near large industrial plants; two ship canals, a railroad, and a public highway. Due to the location of these two tracts it is conceded by all parties that they are suit-’ able as industrial sites and have a high market value. . Plaintiff’s experts fixed the value of.the land at from $550 to $725 an acre, and testified that the construction of the pipeline would not cause any damages whatever to the land adjoining the right of way. In contrast, defendants’ experts placed.a value on the property of from $1,250 to $1,500 per acre immediately prior to the expropriation,, but testified that the construction of the pipeline across these two tracts would spoil them for any industrial use. whatever and leave them suitable only as agricultural or grazing lands. For this reason defendants contended in the lower court that they were entitled to recover as severance damages the difference between the value of the property for industrial uses ($1,250 to $1,500 per acre) and its value for agricultural or grazing purposes '($250 per acre).

The trial judge found that the land in both tracts had a value of $1000 per acre, and in our original opinion in this case we upheld this finding. Tract No. 1, owned by Moss and Barbe, contains 80 acres, and the right of way cuts across the south portion of this tract, leaving 15 acres in a triangle on the south side of the right of way and 65 acres on the north side. As severance damages the trial judge awarded $11,250 to the owners of this tract because he was of the opinion that the 15-acre triangular piece had been ruined for industrial purposes, and that defendants were entitled to receive the difference between its value prior to the expropriation of $1,000 per acre and the value of $250 per acre it would have for agricultural or pasturage purposes after the pipeline was laid. Tract No. 2 comprises approximately 200 acres, and the right of way crossing this tract cuts it into two somewhat irregularly shaped parcels of approximately equal size. The trial judge reasoned that the owner Barbe had suffered consequential damages to this 200-acre tract of 15 per cent of the difference between its value for industrial purposes and its value for agricultural purposes, and since 200 acres were involved he awarded Barbe $22,500, or 200 x 15% of $1,000— $250.

It must be borne in mind that we are not here dealing with a right of way for a road or highway or a cable buried below plow depth, but are dealing with a right of way for a 16-inch high pressure pipeline transporting high octane gasoline. This pipeline is potentially dangerous. Leaks are expected to occur in the line from time to time, and when leaks do occur explosions may result. The record shows that the pipe extending across these two tracts, for instance, will hold approximately 48,000 gallons of high octane gasoline, and that it would be dangerous to locate any structure or industry over the line or in its immediate vicinity. For these reasons we are convinced that defendants have suffered damages to their remaining property because of the expropriation.

In Texas Pipe Line Co. v. National Gasoline Co. of Louisiana, Inc., 203 La. 787, 14 So.2d 636, 638, plaintiff (apparently the same company as the plaintiff in the instant case) expropriated a right of way for the construction of a high pressure eight-inch gasoline pipeline buried 18 inches below the surface. In that case the court found that, although there was not much actual danger that a leak would occur in the pipeline, the mere fact that the high pressure pipeline was there had the psychological effect of deterring prospective purchasers of the adjacent land and of impairing the commercial value of the property adjoining the right of way. In affirming a judgment of the lower court awarding severance damages to defendant in that suit this court said:

“The argument for the plaintiff that there is no real danger or reason for such fear has no force against the fact that the fear exists and is unavoidable. The fear of danger in some cases is as bad as the danger itself — it is a condition — not a theory.”

In the instant case we think the evidence shows that a real danger exists, and for this reason if for no other it is clear to us that the value of the adjacent land has depreciated and that defendants here have suffered severance damages. Although plaintiff’s experts testified at the trial that defendants’ remaining property was not injured by the pipeline, they offered no reasons for this opinion, and therefore it remains only a conclusion on their part and is not impressive.

Although we do not agree with the landowners’ contention in the lower court that the property in question has been ruined for all industrial purposes, we think that the percentage method used by the trial judge in computing the severance damages is legally incorrect, and the award appears to us to be excessive.

“It is the well-settled jurisprudence that the damages allowable under Section 2 of Article 1 of the Constitution of 1921, resulting from expropriation of property rights are the difference between the market value of the property for sale or rental purposes, immediately before and immediately after the expropriation. Mere consequential injuries to the owners arising from discomfort, disturbance, injury to business and the like are damnum absque injuria. See Harrison v. Louisiana Highway Commission, 191 La. 839, 186 So. 354 and cases there cited.” American Tel. & Tel. Co. of Louisiana v. Maguire, 219 La. 740, 743, 54 So.2d 4, 5, Note 2.

Since we have concluded that defendants in the present case have suffered some severance damages, we have decided, in the interests of justice and under the authority of Article 906 of the Code of Practice, to remand this case to the lower court to permit the defendants to establish by competent evidence the difference between the market value of each tract for sale or rental immediately before and immediately after the expropriation, and in determining this market value the use to which the right of way is being put and the size and irregular shape of the lands on each side of the pipeline must be considered. To malee ourselves perfectly clear, defendants must effectively show the market value of each tract immediately before and immediately after the expropriation in order to establish the quantum of their severance damages.

The case is remanded to the lower court for further proceedings consistent with the views herein expressed; all costs are to be paid by Texas Pipe Line Company.

McCALEB, Justice

(dissenting).

I have been and still am of the opinion that the defendants in these cases have been handsomely paid for the farm lands expropriated herein for the use of plaintiff’s sixteen inch pipe line for transportation of high octane gasoline. Their claims for severance or residuum damages are highly speculative and this court’s rejection of them on the first rehearing was fully supported by the record and the pertinent authorities on the subject.

The view on this second rehearing is that a pipe line containing gasoline is dangerous and has the psychological effect of deterring prospective purchasers of the adjacent land, thus necessarily impairing the commercial value thereof. In such circumstances, it is said that justice requires a remand of the case in order to give defendants another day in court to introduce testimony to show that the market value of the land has been lessened since the taking. The case of Texas Pipe Line Co. v. National Gasoline Co. of Louisiana, Inc., 203 La. 787, 14 So.2d 636, is cited as supporting authority.

I see no applicability of the decision relied on to the facts of this case. In that matter, the land being expropriated had a marketable value for residential purposes and, in fact, had been purchased by defendant in 1928 with the specific design of constructing a residential subdivision adjacent to Bossier City. The claim for severance damages was founded on the theory that the adjacent land for a distance of SO feet on each side of the 20 foot right-of-way taken by plaintiff was diminished in value as a result of the psychological effect it had in deterring prospective purchasers of homesites. This claim was sustained by evidence and the jury of freeholders allowed severance damages amounting to 50% of the market value of the land lying within 50 feet from the right-of-way.

In the case at bar, there is no claim that the lands are suitable for residential purposes. The only showing is that, in in addition to their natural fitness as cut over pasturage lands, they have a potential adaptability, by reason of location, for use as sites for commercial or industrial enterprises. There is no proof that persons, who may some day be interested in any of the land for such purposes, will be deterred from purchasing it because of the proximity of part of it to plaintiff’s pipe line or that they may fear that whatever business they intend to pursue upon the land may be endangered by its nearness thereto. Nor is it claimed by defendants that the case should be remanded or that, upon the remand, any such evidence will be available.

To send the case back to the lower court under these conditions for the purpose of permitting defendants to establish the market value of each tract of land for sale or rental immediately before and after the expropriation is to invite the admission of more ■ speculative testimony as it should be obvious that whatever evidence is elicited on the remand, touching upon whether a willing industrial purchaser would be deterred, by the nearness of the pipe line, from offering as great a sum for any of the lands as he would otherwise be willing to pay, would not be founded on fact but would necessarily emanate from opinions based on pure conjecture.

I respectfully dissent.


source: Caselaw Access Project

author: PONDER, Justice.

license: Public Domain

text:
    229 La. 223
    STATE of Louisiana v. George WAGNER.
    No. 42596.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Matthew S. Braniff, New Orleans, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen,, M. E. Cul-ligan, Asst. Atty. 'Gen., Leon D. Hubert, Jr., Dist. Atty., Phil Trice, Asst. Dist Atty., New Orleans, for appellee.
   PONDER, Justice.

The defendant was convicted of the crime of administering dilaudid, a narcotic drug, in violation of LSA-R.S. 40 :962 and sentenced to serve ten years in the State Penitentiary. He has appealed.

During the course of the trial, counsel for the defendant reserved ten bills of exception to the rulings of the trial judge. Bills of Exception Nos. 4, 7, and 10 have been abandoned.

Bills of Exception Nos. 1, 3, 5, and 6 involve the same legal question, viz.: the admissibility of evidence to prove that the defendant together with others burglarized a doctor’s bag containing dilaudid tablets some six days prior to the commission .of the alleged offense.

The defendant was charged in a bill of information with the administering of a narcotic drag, to-wit: dilaudid, to three named persons under the age of seventeen years. The defendant and others burglarized the automobile of Dr. Warren Schul-ingkamp on February 24, 1954, while the car was in the parking lot of the Baptist Hospital and took the physician’s bag1 containing, among other things, a small bottle of dilaudid tablets. They left the scene and drove- directly to the defendant’s dance studio several blocks. away where the physician’s bag was examined and the contents taken therefrom. On March 2, 1954, the defendant and his same companions met at the dance studio and engaged in a narcotic binge using the dilaudid tablets taken from the doctor’s bag. The dilaudid tablets were produced by the defendant and prepared for injection. The dilaudid solution was injected into the arms of the persons present. The State’s witnesses to whom the drug had been administered had never used dilaudid before or since and were unable to tell whether they had received injections of that particular drag, or some other drug, or a derivative thereof. In order to identify this drug and its exact nature,' it was necessary to trace the possession of the drug to some qualified person who could identify it. The last person who had possession of the narcotic before it came into the hands of the accused was Dr. Schulinglcámp and it was essential to prove that the drug was that which belonged to the doctor and was in fact dilaudid. When the accused was arrested, .he admitted the theft of the dilaudid from Dr. Schulingkamp’s automobile.

The defendant would necessarily have to have possession of the drug in order to administer it and, as pointed out in the case of State v. Montgomery, 170 La. 203, 207, 127 So. 601, 602, “Whenever the evidence of the commission of another crime, other than the crime for which the defendant is on trial, is relevant to the question of his guilt or innocence of' the -crime charged, the evidence of the commission of the other crime should not be excluded merely because of'its prejudicial effect.” Under the provisions of Arts. 445 and 446, now LSA-Revised Statutes 15:445 and 15:446 of the Code of Criminal Procedure, evidence is admissible to show guilty knowledge. In Article 441, now LSA-R.S. 15 :441, it is provided: “Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. Facts necessary to be known to explain a. relevant fact, or which support an inference raised by such fact, are admissible.” Under the provisions of our law the evidence is admissible because it was relevant to show an essential element of the crime charged. In State v. Johnson, on rehearing, 228 La. 317, 82 So.2d 24, wherein the defendant was charged with possession of narcotics, this Court pointed out that the commission of a prior offense was admissible to show guilty knowledge or' evil motive.

Bills of Exception Nos. 2 and 9 are levelled at the wording of the bill of information wherein it was charged that the defendant administered narcotics to. persons under the age of seventeen years. Counsel for the defendant takes the position that because of such allegations in the bill of information it does not charge an offense under our law. On examination of the jurors on their voir dire, this issue was sought to be raised and the judge instructed the jury that they should disregard any mention made on their voir dire examination of the ages of the persons to whom the drug was allegedly administered. No proof was offered as to the age of the three persons to whom the narcotic had been administered. While the defendant filed a motion to quash the bill of information based on other grounds, no such objection was. raised to this portion of the bill of information.

While the statute, LSA-R.S. 40:962, provides that it is unlawful to administer narcotic drugs to any person without designating age, yet LSA-R.S. 40:982 provides a. greater1 penalty if the person who has been given the narcotic is under the age of twenty-one. The allegation in the bill of information as to the age of the persons to. whom the drug was administered would not. render the bill of information defective and since no proof was offered as to the age of these persons the defendant could suffer no harm. Moreover, all unnecessary allegations in an indictment, provided that an offense is charged, must he treated as surplusage. LSA-Revised Statutes 15:-240. Furthermore, the objection to the bill of information in this case was not properly raised before arraignment. LSA -Revised Statutes 15 :284.

In Bill of Exception No. 8 the defendant raised the question, by motion for a new trial, that the corpus delicti was not proven, viz.: that there was no evidence to prove that a narcotic drug, to-wit: dilaudid, was administered. From the facts pointed out heretofore in this opinion, it is apparent that there was evidence proving this fact.

For the reasons assigned, the conviction and sentence are affirmed.


author: TATE, Judge.

text:
    Thurman Henry COCHRAN, Jr., Plaintiff-Appellant, v. VERNON PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 4125.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Pickett & Pickett, Many, for appellant.
    Peter S. Anderson, Leesville, for appellee.
   TATE, Judge.

This suit is for damages (loss of salary of $2,700) allegedly caused by the refusal of the Vernon Parish School Board to employ plaintiff, a qualified agricultural teacher, to teach in the Vernon Parish school system; which Board allegedly hired instead a teacher not qualified by law.

Since this-suit is for monetary judgment in an amount exceeding $2,000 and is not for workmen’s compensation benefits or for damages for physical injuries, appellate jurisdiction is vested not in this court, but in the Supreme Court; Article 7, § 10, Louisiana Constitution of 1921, LSA.

For the foregoing reasons the appeal is ordered transferred to the Honorable the Supreme Court of Louisana, and plaintiff is allowed 60 days from the final date of this judgment within which to perfect the appeal by filing proper transcript in said Court; otherwise the appeal shall be considered as dismissed. Plaintiff-appellant to pay the costs of this appeal. All other costs to await final determination of this cause.


author: HARDY, Judge.

text:
    Willie S. STROY, Plaintiff-Appellant, v. J. Hadley HEARD, Administrator of the Division of Employment Security of the Department of Labor of the State of Louisiana, and M. L. Bath Company, Limited, Defendants-Appellees.
    No. 8461.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.
    Myers, Gatti & Egan, Shreveport, for appellant.
    Lewis D. Dunbar, Baton Rouge, for ap-pellees.
   HARDY, Judge.

This is an appeal by plaintiff from a finding by the Board of Review of the Department of Labor of the State of Louisiana denying plaintiff’s application for unemployment benefits. From a judgment of the District Court denying plaintiff relief, he has brought this appeal.

The facts are that plaintiff, an employee of M. L. Bath Company of Shreveport who sustained an accidental injury in the course and scope of his employment, made application for the benefits of unemployment compensation, which was rejected. After hearing the Referee reversed the finding of the Administrative Board and ordered payment of benefits. Upon application of the employer the matter was appealed to the Board of Review, which reversed the finding of its. Referee on the following ground:

“The Board has very carefully reviewed and considered all of the available evidence in connection with this case, and is of the unanimous opinion that the disqualification assessed by the Agency is in order. There is sufficient evidence to show that the claimant left suitable employment, within the meaning of the Act, and wau properly disqualified.”

Under the provisions of LSA — R.S. 23:1634 plaintiff applied for a judicial review which was accorded by the District Court of Caddo Parish. The District Judge, in a well reasoned opinion, upon the authority of Richardson v. Administrator, Division of Employment, Security Department of Labor, La.App., 28 So.2d 88, determined that its only jurisdiction was for the purpose of' an .inquiry as to , whether the decision of the Board of Review was supported by evidence. The court declared:

“It is not the function of the courts to substitute their judgments ' on ■ the evidence for the judgments of the constituted administrative agencies charged with the determination of the. facts.”

Finding that there was evidence in support of the finding of fact by the Administrative Agency, the court declined to. weigh the evidence on the ground that its jurisdiction was confined to questions of law.

With this holding, in'view of the statutory provisions regulating the judicial review, we are forced to concur.

Undér the provisions of LSA-R.S. 23 :- 1634 the findings of the Board óf Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of the court shall be confined to questions of law. It is true that the section of the statute permits the remanding of'the case for the taking of additional evidence, which provision is of somewhat doubtful efficacy in view of the fact, as in this case, that no additional evidence is shown to exist.

Examination of the record fails to disclose the existence of any question of law, as such, under the statute. If this had been a case on appeal which involved the weighing of evidence and a determination as to the possibility of manifest error on the part of a lower court, both the district court cmd this court would have been privileged, as reviewing judicial tribunals, to make pronouncements upon the question of fact. But, since the statute specifically denies such jurisdiction and confines the so-called “judicial review” to an examination of law and the existence of fraud and impels an affirmation of the Board of Review in the event of the existence of any evidence which may support its finding, the result is that a reviewing 'judicial tribunal is impotent to grant relief even if the evidence adduced'' shoüld -preponderate in favor thereof.

Since 'our' consideration, interpretation and determination of issues tendered for “judicial review” is so expressly limited by statutory circumscription,- it follows that neither the District Court nor this Court has any alternative to" the acceptance and affirmation of the determination by the Board of Review.

For the reasons assigned the judgment appealed from is affirmed.


author: AYRES, Judge.

text:
    Harry GAMBURG, Plaintiff-Appellant, v. CITY OF ALEXANDRIA et al., Defendants-Appellees.
    No. 8383.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.

      J. B. Nachman, Alexandria, for appellant.
    Frank H. Peterman, Alexandria, for ap-pellees.
   AYRES, Judge.

This appeal is taken by plaintiff from a judgment of the trial court rejecting his demands and prayer for both a prohibitory and mandatory injunction in connection with a certain paving project on North 18th Street from Bolton Avenue to Rapides Avenue in the City of Alexandria. The appeal was taken to the Supreme 'Court of Louisiana and that court transferred the matter to us. 227 La. 687, 80 So.2d 372. By injunctive process, plaintiff sought to enjoin the alleged illegal abandonment and obstruction of a part of North 18th Street in Alexandria, Louisiana, and compel the removal of a concrete curb erected almost entirely across the street, and prohibiting the inclusion in the cost of paving of said project the expense of paving of a part of Shirland Avenue, as well as the expense for the curb and gutters not only on said Avenue but surrounding a circle constructed at the intersection of said Avenue and 18th Street.

Plaintiff is the co-owner of property located at the intersection of North 18th Street and Rapides Avenue, upon the latter of which said property fronts, the rear extending northward on 18th Street, with an entrance to the back by an alley from said street.

The defendants áre the City of Alexandria, W. H. Lambdin, Street Commissioner, and Charles W. Cook, Acting City Engineer.

On July 13, 1953, plaintiff and a group of other property owners and taxpayers of the City of Alexandria petitioned the Commission Council of said City as follows :

“We, the undersigned, owners of real estate abutting upon North 18th Street from Bolton Avenue to Rapides Avenue hereby request and petition your Honorable body, by proper ordinance and proceedings, to cause the paving of the street between designated points with six-inch Portland cement concrete, together with necessary concrete curb and 'gutter and drainage structures; said work to be done and paid for as provided for in the 5-payment plan, Sections 3381 to 3391 inclusive of Title 33 of the Revised Statutes of 1950, as revised.”

A brief description of the locale of these streets is deemed necessary for an understanding of the issues presented and the discussions which will follow. Bolton Avenue, running in a northwest-southeast direction, and Rapides Avenue, in an east and west direction, are principal thorough■fares for traffic entering and leaving the western and northern sections of the City. Their intersection forms the apex of a triangle with North 18th Street, running north and south, forming its base connecting these two thoroughfares. Shirland Avenue runs east and west parallel to Rapides Avenue and crosses North 18th Street near but south of its interséction with Bolton Avenue and then continues a short distance eastward to its own .intersection with Bolton Avenue.

Plaintiff alleges that, pursuant to petition addressed to the City Council by property owners of property abutting North 18th Street under the provisions of LSA-R.S. 33:3381 et seq., petitioners requested said North 18th Street be paved with Portland cement concrete and that the necessary concrete curb, gutter and drainage structures be constructed. The record establishes that this petition was presented to the Commission Council on August 3, 1953, which was on that date referred to the Acting City Engineer for checking, a report on which was made September 23, 1953, on which date the Council by resolution ordered the paving of North 18th Street from Rapides Avenue to Bolton Avenue and directed the Secretary-Treasurer of the City to advertise for bids, to be opened on October 19. Pursuant to that authority, an appropriate advertisement for bids was inserted in the “Town Talk” in its issues published September 28 and October 5, 1953, which bids were received and opened in connection with said work. The bids were referred to the Street Commissioner and Acting City Engineer for tabulation, a report of which was made to the Commission Council November 2, 1953, on which date a resolution was introduced to award the contract to W. R. Aid-rich & Company, notice of which was given by publication in the “Town Talk” of November 3, 1953. The resolution authorizing the execution of the contract was adopted on November 12, 1953, wherein the Mayor was authorized to sign the contract for and on 'behalf of the City, which was done on that date.

By the terms of this contract, Aldrich & Company agreed to pave North 18th Street from Rapides Avenue to Bolton Avenue “as provided for in the plans, specifications, proposal and other contract documents and under the supervision and according to the instructions of said Engineer, etc.” Work under the contract began January 14, 1954, and continued until February 5, when plaintiff made a protest as to the manner in .which the work was being done at the intersection of the street with Shirland Avenue. Conferences were held by the Commissioner and plaintiff February 6 and 8 wherein the Commissioner, on the recommendation of the Acting City Engineer, agreed to reduce the size of the traffic island contemplated to be ■ constructed in said intersection and to set the curb back a few feet in front of the Colonial Cafe located on the west side of North 18th Street north of Shirland Avenue and south of Bolton Avenue. Plaintiff was not • satisfied with this arrangement, contending that the petition and the proceedings based thereon authorized only the paving of the street between the two avenues and from one to the other; that, accordingly, the Commission Council was without authority to erect or construct a circular curb across practically the entire width of North 18th Street and direct traffic around the same and in 'between a traffic island located at the intersection of Shirland Avenue and North 18th Street and thereby abandon a portion of said street and pave a portion of Shirland Avenue pursuant to a petition requesting only the paving of North 18th Street between the avenues referred to.

North 18th Street has. a width of 60 feet. The paving, as constructed, had a width of 36 feet, leaving unpaved 12 feet on each side between the concrete slab and the street line. The circular curb in the front of the aforesaid Colonial Cafe projected -a distance of approximately 45 feet from the west line of the street right-of-way, or about 33 feet from- the west curb line of North ■ 18th Street, as shown by scale of the drawings filed in evidence, •which was reduced by order of the Commissioner as aforesaid-to approximately 30 feet from the said west curb line of said street.

Plaintiff contends that the paving should have been done in accordance with the provisions of the petition, which requested the paving of North 18th Street as “dedicated” and between Rapides and Bolton Avenues; that the Commissioner and the Acting City Engineer altered the plans and specifications without the authority of either the petition of the property owners or of the Commission Council; that the aforesaid curb extending almost entirely across North 18th Street interfered with and impeded the flow of traffic and constituted an obstruction and a hazard to traffic, and that as a result of the aforesaid impediment to traffic entering North 18th Street, he had sustained a pecuniary loss and a depreciation of his property. Plaintiff further contends that petitioners did not authorize the paving of the prongs or aprons into Shir-land Avenue, and that he should not be assessed with any part of the-costs of such unauthorized undertaking.

Certain municipalities and all incorporated parish seats are authorized under the statute under which this improvement was undertaken, on the initiative of their governing authorities, to pave and/or otherwise improve their streets and alleys. Where such improvement is undertaken on the initiative of the 'governing authorities, the municipality shall pay of the total cost the proportion that the net area, of the street intersections bear to the total area of the street, alley or curbing to be improved. Where, however, the improvement is initiated by and undertaken upon authority of a written petition of the owners of more than SO percent of the lineal front footage of the property abutting on any street or alley, the entire cost of the improvements is assessable to the owners of the real estate abutting on the street or alley to be improved according to the front footage of the property owned by them. The project here concerned was instituted under this latter procedure.

The provisions of this statute are in nowise mandatory but merely permissive. The statute provides that the municipalities may undertake these improvements. Inasmuch as the improvements contemplated here were only undertaken on the initiative of the property owners upon their written petition addressed to the Commission Council, the petition constituted the authority of the Commission Council to undertake this work. - Under the statute the consent of the property holders is the sine qua non of the ordering of such improvements.

In Barber Asphalt Paving Co. v. Watt, 51 La.Ann. 1345, 26 So. 70, 72, the Court of Appeal stated general rules governing controversies of this nature. That case, like' the instant one, involved street paving undertaken pursuant to a petition signed by the abutting property owners: There the petition limited the cost of the improvements to be undertaken at an amount not to exceed $3.75 per running foot; It was there contended and held that the City Council was without authority to ■award a contract for a larger price per foot. What the court stated there is clearly applicable here. It was said:

“Statutes exercising the power of taxation in any of its forms, or delegating that.power to political subdivisions of the state, must be strictly construed and closely pursued. In interpreting such a statute, all doubts and ambiguities are.to be construed against ■the taxing power; and, if the act be susceptible of more than one reasonable interpretation, that one must be ■adopted which is the less onerous to the taxpayer — which imposes the least burden upon him and his property. Suth.St.Const. §§ 363, 365; Black, Interp.Laws, p. 300, § 115; Id. p. 317, §; 119; Cooley, Tax’n, p. 419. These familiar principles of law are peculiarly applicable to that system of taxation known as 'local assessments,’ based up.on the theory of benefits conferred, so much in vogue at the present time, and seemingly on the increase. Acts authorizing local assessments affect arbitrarily private property. The power may be delegated by the legislature, but only in plain and unambiguous terms; and a departure in any material part, by the authority to whom the delegation is made, will be fatal. This is so, because such statutes are against common right. Statutes against common right are those which operate exceptionally to the prejudice of particular persons; those which do not have general application; those which operate on a few while the rest of the community are exempt. A statute is in derogation of common right which imposes special burdens upon individuals, or upon one class of the community, not shared by others. Black, Interp.Laws, p. 300, § 115. Municipal authorities, dealing with such statutes and exercising the powers they confer, must track the strict letter of the law. They cannot by their ordinances increase in any respect the burden upon the property of the citizen, and, where such ordinances do this, they are null to that extent. Courts will reduce their scope and effect to and within the strict limits of the law, where the circumstances permit, and, where not, will annul entirely such ordinances, reserving to the municipal body, so transgressing the law, to readjust its ordinance on legal lines. In construing statutes such as that- under consideration, there is scant, if any, ground for what is sometimes -called ‘equitable’ interpretation. It is the plain letter of the statute that must be followed. Indeed, the tendency of modern decisions of the courts is to reduce to a minimum the difference between strict and liberal construction. ‘When,’ says Mr. Black (pages 282, 283, § 113), ‘strict construction is appropriate, the courts, standing upon the letter of the statute, will accept it .as they find it, and will not undertake to amend or reform the language the legislature has seen fit to employ. They will not put a forced or strained interpretation upon the words of the law ■* * * in search of a supposed legislative intent, nor supply apparent omission or oversights.’ ‘Strict construction’ is that which refuses to expand' the law by implications or equitable considerations, but confines its operation’ to cases which are clearly within the letter of the statute, as well as within its spirit or reason. When the sense is manifest, and leads to nothing absurd, there can be no reason not to adopt it. To go elsewhere in search of conjectures, in order to find a different meaning, is not so much to interpret the statute as to elude it.”

It was held that the statute authorizing the improvement was not strictly complied with and that the ordinance and the contract broadened the scope and the spirit of the law. The court concluded:

“Wé hold, furthermore, that defendant’s liability as just stated, or, rather, that of the property he owned at the time this paving work was done, is limited to not exceeding, in any event, $3.75 per running foot. This is so for the very good reason that property holders must be held as having consented to the improvement only upon the condition that the cost of paying and" curbing should not exceed that rate. The petition of property holders mentions that rate as the price beyond which they were not willing to go. Non constat that a majority of the property holders would, by not opposing, have consented to, the work if its cost had been fixed at a higher rate, or been left to the discretion of the city council in accepting bids. Under the statute, the consent of the property holders is the sine qua non of the ordering of such improvements. It- follows -that the conditions • upon which this consent is predicated must be strictly observed. The city council was without authority to award this contract, so far as the property holders are concerned, for a sum greater than that named in the petition of property holders; and, to the extent that the prescribed rate is exceeded, defendant is not liable.”

The Supreme Court, in Adams v. Town of Leesville, 210 La. 106, 26 So.2d 370, 372, after observing that a contract for street paving must conform to the advertisements and bids, citing the case of Barber Asphalt Paving Co. v. Watt, supra, wherein it was held that a departure in any material particular from the plain terms of a statute authorizing local assessments would be fatal, held:

"' * * * If a contract differing therefrom in terms be awarded or made, it cannot be said to have been the result of the competition which the statute requires, and it is invalid. The rule that the contract must conform to the plan, specification, bid, and advertisement applies, although but one bid was made, and although there is no allegation or suggestion of fraud, and although the change made in the contract is to the advantage of the city.’
“In the case of Barber Asphalt Paving Co. v. Watt, 51 La.Ann. 1346, 26 So. 70, the Louisiana Supreme Court, in an opinion by Justice Blanchard, held that ‘ * * * A departure in any material part from the plain terms of a statute authorizing local assessment will be fatal.' ”

All these observations apply with equal force to the action of the defendant’s Commission Council. The petitioners requested that the street be paved from Rapides Avenue to Bolton Avenue. These avenues constituted two definite points between which the paving was requested. The petition did not request or authorize the paving of any part of Shirland Avenue or the erection of a barrier, curb or other obstruction over and almost entirely across the street requested to be paved. As heretofore stated, it was discretionary with the Commission Council whether it would accept the petition and proceed with the work as requested; it was not mandatory that it do so. Had it determined upon a course of construction, as it did, not in accord with but beyond the terms of the petition, it could have declined to accept the petition or to pursue the work in accordance therewith. The Commission Council had ample authority, had it so elected to do, to proceed on its own initiative, with the provision that it pay its proportionate part of the cost based upon the area of the intersections ; otherwise, attention could have been directed to the petitioners of its unwillingness to undertake the improvements in accordance with the terms of the petition and attempt to secure their consent to either a new petition or one modifying its terms consistent with the conclusions of the members of the Council. Neither course open to defendant was pursued nor attempted to be pursued.

While the statute may dispense with the necessity of a petition or the consent of the property owners as a condition precedent to the making of public improvements, such as the paving of a street and as the statute in question so provides, yet, however, where the petition or consent of the property owners to be assessed is required by statute as a condition precedent to the making of an improvement, compliance with such petition is necessary. The only manner in which the Commission Council may assess the entire cost of a street paving project against the abutting property owners under the authority of the statute invoked here is upon a petition of such property owners. If the governing authority elected to proceed on its own initiative then the proportionate costs of the street intersections must be borne by the municipality and is unassessable against the abutting property owners. Where the petition or consent of the property owners to be assessed is required by charter or statute as a condition precedent to the making of improvements by the municipality, a compliance with the provisions of such charters or statutes is necessary. Such requirements are to be strictly construed, and since the right of petition or consent depends solely on legislative grant, it will not be extended beyond the clear implication of the charter or statute.

63 C.J.S., Municipal Corporations, § 1089, p. 734, states that a petition for an improvement may be considered in the light of an offer which becomes binding on the acceptance of it by the municipal authorities.

The authority conferred upon the Commission Council to undertake the improvement contemplated here was derived from the petition of the abutting property owners, the primary purpose of which was that North 18th Street would be paved from Rapides Avenue to Bolton Avenue. This was not complied with. The area of the circular curb hereinbefore referred to has a length of approximately 90 feet along the curb line of the west side of 18th Street, which area has, as aforesaid, a maximum width of approximately 30 feet. This was included within the terms of the petition and in the contemplation of its signers as a part of the street to be paved. It should have been paved pursuant to the wishes of the parties, as expressed in their petition. That petitioners would have signed the petition agreeably to the action subsequently taken by defendant is purely conjectural. It suffices that they did not authorize the improvement as attempted in this instance.

In State ex rel. Wheless Inv. Co., Limited v. City of Shreveport, La.App., 142 So. 641, 644, this court, through the late Judge Talia-ferro, stated:

“For one to sign a petition asking a municipality to do certain things authorized by law certainly does not preclude the petitioner from thereafter contesting the legality of what is done pursuant to the petition. If that were true, property owners would be reluctant to petition for public improvements to be made. When property owners file a petition with the municipal authorities asking that certain improvement be made, it has no further significance than their consent for the work to be done in the manner prescribed by law.”

The author of that opinion, later in City of Natchitoches v. Kile, La.App., 54 So.2d 834, 836, stated:

“Laws that provide for the coming into existence of liens and privileges are strictly construed, and where it is provided that they may arise only after the performance of certain definite acts by a governing authority, strict adherence to such requirements is mandatory as a condition precedent thereto.”

The petition of plaintiff and the other abutting property owners to pave North 18th Street between designated points, that is, from Rapides Avenue to Bolton Avenue, could be construed in no other light than to require the paving of the street between Rapides Avenue as one terminus and Bolton Avenue as the other. The petition was definite and concise as to the location and termini of the improvements to be made.

While defendant contends that plaintiff is without standing at all in this litigation unless he could show some real, actual damage, the record discloses that he does possess a pecuniary interest, even though it should be conceded that he has not been damaged by the depreciation of his property by virtue of the obstruction and impediment to traffic entering a street from which his property is serviced. As a signer of the petition, it could hardly be successfully contended that he was without right to complain when the governing authority either fell short of accomplishing the purpose intended by its failure to pave the entire street requested or to go beyond the work sought to be done by extending it to public thoroughfares not covered by the petition, such as extending the paving into Shirland Avenue. His interest certainly extends to a possible assessment against him for the cost of such additional paving and the curb surrounding the area so selected to be paved. He had an interest in and most positively has a right and a remedy relative to the completion of the work and improvements as petitioned for and as accepted to be done by the governing authority of the municipality.

It is strenuously urged that the acts of the Commission Council, in departing from the language of the petition and in creating; the intersection with Bolton Avenue, as it did, and in the paving of a portion of Shirland Avenue in connection therewith, all under the authority of the petition of plaintiff and the other property owners, were discretionary; that its acts were in pursuance of a legislative function and that the courts should not interfere therewith or substitute its own judgment in lieu of that of the Municipal Council. We recognize the general rule that the exercise of discretionary powers by municipal authorities within the prescribed legislative limits, where there is no fraud, oppression or arbitrary action, will not be reviewed by the courts. Hagmann v. City of New Orleans, 190 La. 796, 182 So. 753; Caz-Perk Realty, Inc., v. Police Jury of East Baton Rouge Parish, 213 La. 935, 35 So.2d 860; Jeffries v. Police Jury of Rapides Parish, La.App., 53 So.2d 157.

This, of course, includes matters of eminent domain and the laying out of streets, alleys, avenues and parks, and the straightening or widening of streets and in changing the grades thereof, as well as the abandonment of public streets or alleys where they are no longer needed for such purposes. The expediency in the determination of these matters rests primarily in the discretion of the municipality, and in the absence of fraud, collusion or arbitrary action is not to be interfered with. However, as pointed out hereinabove, there is a clear departure from the terms of the petition, which, upon its acceptance by the municipality, became binding upon it. There has been neither a strict nor even a reasonable compliance therewith.

The other defenses as to the discretion of the Municipal Council in constructing intersections, traffic islands and other structures relative to traffic regulations or traffic safety .have no bearing on the primary and principal issue that the Council failed to comply with the petition in causing North 18th Street to be paved. Its failure under the circumstances could not be said or classified less than as arbitrary and illegal. That the action taken by it may, in its opinion, be consistent with good engineering. practice and in the interest of traffic safety affords-no just ground for a departure from the obligations assumed or undertaken on the acceptance of the property owners’ petition.

Defendants question plaintiff’s use of the word “dedicated” in referring to the street upon which the improvements were to be made as if the word “dedicated” contravened or modified the terms of the petition and the proceedings had in connection therewith. We do not so construe the word as significant in that respect. Reference to the street to be paved and particularly as to the termini of the project at Rapides and Bolton Avenues necessarily referred to all of those streets to be paved as contained in the official maps of the City and as platted. “Dedicated” in this instance refers to the streets as located and is synonymous with “platted”.

As pointed out heretofore, the acceptance of the petition of the abutting property owners by the City created a contractual relationship between such owners and the City. A departure from any material part of the plain terms of such relationship is a breach thereof. The failure of the City to carry out the plain, unambiguous terms of the petition accepted by it constitutes a breach of such contractual relationship. The absence of allegation, suggestion, or proof of fraud and the establishment that a change, alteration or modification of the terms thereof was to the advantage of the City is a matter of no consequence. Barber Asphalt Paving Co. v. Watt, supra; Adams v. Town of Leesville, 210 La. 106, 26 So.2d 370.

In the cases of breach of contract, where the parties have the power of performing their obligations under the contract, since performance is the more complete remedy, it should be allowed where it is available and demanded. Such is the situation in the present controversy. Plaintiff and other property owners petitioned for the paving of a street between certain definite points. The obligations imposed upon, the City by its acceptance of the petition have not been complied with. LSA-C.C. Articles 1926 and 1927 provide that 'on the breach of an obligation to do or not to do, the obligee is entitled, in cases which permit it, to a specific performance of the, contract, particularly where the- other party has the power of performing the contract. The Code further provides that the obligee may require that anything which has been done in violation -of a contract be undone, if the nature of the cause will permit, and that restoration be made to the former situation, LSA-C.C. Art. 1928, and that he may demand that the obligor be restrained from doing anything in contravention of.his-obligation. An injunction may compel a party to do, as well as. to constrain him from doing. Baton Rouge Bldg. Trades Council v. T. L. James & Co., Inc., 201 La. 749, 10 So.2d 606, 625; Petit v. Cormier, 1 McGloin 370; Pierce v. City of New Orleans, 18 La.Ann. 242; McDonogh v. Calloway, 7 Rob. 442; Borne v. Perret, 1 Rob. 342.

It was also held in Commercial-Germania Trust & Savings Bank v. Russell, 148 La. 334, 86 So. 831, and in Gulf Refining Co. of Louisiana v. Hayne, 148 La. 340, 86 So. 891, that the only reason why the breach of any contract gives rise ordinarily only to an action in damages is that, generally, specific performance cannot be enforced. However, performance being the more complete remedy, there can be no reason why it should not be allowed in cases where it is available and is demanded. If the contract entered into does not cover the completion of the work as petitioned, we know of no reason why the City may not resort to proceedings leading to the execution of another contract for the performance of the work remaining to be done in order to complete the project.

What are plaintiff’s rights as to a mandatory injunction? In Broussard v. Cormier, 154 La. 877, 98 So. 403, 404, wherein a servitude was recognized under LSA-C.C. Art. 660 in favor of an upper estate against a lower estate burdened with receiving the waters which run naturally from the upper estate, the owner of the lower estate had impeded the flow of the water from the upper estate by the closing and building of' a levee. A mandatory injunction was sought to compel the opening of passages in the levee to permit the water to flow. In this connection the court- stated:

“Objection was made to the right of the judge.to issue a mandátory injunction in a case like this, even after hearing on a rule nisi. We think the ruling of the court was correct. The general rule is that an injunction will issue only in its prohibitory form, but when a defendant obstructs a plaintiff in the enjoyment of a real right, as by fencing a common passagewdy or building a levee across a drainage course, the latter is entitled to a prohibitory "in junction restraining the disturbance and to a mandatory injunction for the removal of the obstruction or to undo what has been illegally done. State ex rel. Yale v. Judge, 41 La.Ann. 516, 6 So. 512; Black v. [Good Intent] Towboat Co., 31 La.Ann. 497; Vicksburg, S. & P. Ry. Co. v. Webster Sand, Gravel & Const. Co., 132 La. 1051, 62 So. 140, 47 L.R.A.,N.S., 1155." (Emphasis supplied.)

This principle was recognized in Harris v. Pierce, La.App., 73 So.2d 330, 334, relative to the removal of a construction erected in violation of a restrictive covenant affecting property in a subdivision of Jefferson Parish, wherein it was stated:

“The general rule is that an injunction will issue only in its prohibitory form, but when a defendant obstructs plaintiff in the enjoyment of a real' right, the latter may be entitled to a prohibitory injúnction restraining the disturbance and also to a mandatory injunction for the removal of the obstruction or to undo what has been illegally done. Broussard v. Cormier, 154 La. 877, 98 So. 403.” (Emphasis supplied.)

It was recognized, however,- that a mandatory-injunction should not issue save aftT er a hearing on the merits of the case or in aid of the enforcement of a prohibitory injunction which has already been allowed. Board of Commissioners of Petite Anse Drainage Dist. v. Iberia & Vermilion R. Co., 117 La. 940, 42 So. 433; Broussard v. Cormier, supra; Harris v. Pierce, supra.

Howevér, as was stated by the trial judge in his opinion, this matter was dealt with as being on the merits and was so tried. Judgment was rendered as after a trial on the merits, rejecting plaintiff’s demands and denying his prayer for injunctions. As was observed by Iffis Honor, “Plaintiff seeks to compel the removal- of the curbing in front of the Colonial Cafe and around the island and to have paved that portion of North 18th Street embraced within these curb-ings”, and our view is that this case is one directly attacking as illegal or ultra vires the actions of the municipality and its officers and agents, having for its purpose the undoing of that which has been done unlawfully or without authority, and to require the performance of the acts which they were legally required to do, as well as to enjoin the assessment for improvements constructed beyond the confines of the street petitioned to be paved.

Our review of the record has led us to the conclusion of the correctness of plaintiff’s position and the justice of his cause. He is entitled to the relief sought. Accordingly, the judgment appealed will have to be reversed.

For the reasons assigned, the judgment is avoided, reversed and set aside and there is now judgment in favor of Harry Gam-burg, plaintiff, and against the defendants, City of Alexandria, W. H. Lambdin, Commissioner of Streets, and Charles W. Cook, Acting City Engineer, and their agents, servants and employees, and other persons, firms or corporations, acting for or pretending to act in their behalf, restraining, prohibiting and enjoining them and each of them from obstructing and closing North 18th Street, particularly by the placing of a concrete curb extending outwardly into or partially or entirely across said Street near its intersection with Bolton Avenue, and further restraining, prohibiting and enjoining the City of Alexandria and the Commission Council thereof, as its governing authority, from assessing the cost of the paving laid beyond the limits of North 18th Street between Rapides and Bolton Avenues, and particularly the cost of the paving of a part of Shirland Avenue near its intersection with North 18th Street, as well as the cost of the curb and gutters thereon and those surrounding the traffic island and circle erected at North 18th Street, or any part thereof, to plaintiff, Harry Gamburg, or against his one-half interest in and to Lots 4, 5, and 6 of Block 7 of the Race Track Addition to the City of Alexandria, Louisiana, as shown on that certain plat recorded in Plat Book 2, Page 151, of the Records of Rapides Parish, Louisiana.

It is further ordered, adjudged and decreed that a mandatory injunction issue herein commanding, directing and ordering the City of Alexandria, W. H. Lambdin, Commissioner of Streets, and Charles W. Cook, Acting City Engineer, their agents, servants and employees, to remove from North 18th Street the curb and gutters surrounding the circle extending from the west side of said street and extending eastward across the same near its intersection with Bolton Avenue and that curb and gutter in said Street surrounding the traffic island located partially thereon.

It is further ordered, adjudged and decreed that the defendants, City of Alexandria through its governing authority; W. H. Lambdin, Commissioner of Streets, and Charles W. Cook, Acting City Engineer, proceed in the manner and form prescribed by law, and, after compliance therewith, to pave the remaining unpaved portion of North 18th Street from Rapides Avenue to its intersection with Bolton Avenue, as petitioned for, and particularly that portion surrounding which the aforesaid curb and gutter have been ordered removed.

It is further ordered, adjudged and decreed that the defendants pay the cost of the stenographer’s fee.

Reversed and rendered.


author: GLADNEY, Judge.

text:
    WYATT LUMBER COMPANY, Inc. Plaintiff-Appellant, v. Hoy ARNOLD, Defendant-Appellee.
    No. 8438.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.
    Pickett & Pickett, Many, for appellant.
    Fraser & Fraser, Many, for appellee.
   GLADNEY, Judge.

This action is for the recovery of damages for timber allegedly removed through trespass from the lands of plaintiff. After trial, judgment was rendered rejecting the demands of plaintiff who has perfected this appeal.

Plaintiff alleges itself to be the owner of certain property described in the petition, situated in Sabine Parish, Louisiana, from which lands it is charged defendant in moral bad faith wrongfully removed timber on three separate occasions: (1) October 30, 1952, 19,378 board feet of pine from Section 3, Township 4 North, Range 12 West, valued at $968.90; (2) During June or July, 1953, 31 poles from Section 35, Township 5 North, Range 12 West, valued at $231.03; (3) During July 1953, 60 logs from which crossties were made from Section 35, Township 5 North, Range 12 West, valued at $54. The defendant first filed a plea of vagueness, and answer in which he denied each of the allegations of plaintiff’s petition, and finally a plea of prescription of one year directed at plaintiff’s first count for damages.

We address ourselves first to the contention by counsel for appellant that respondent in his answer admitted the ownership of plaintiff’s land in Section 3. This point has relevancy for plaintiff’s evidence of ownership was unsupported by documentary evidence of title and proof thereof must come from the testimony of certain witnesses or the asserted admission. The pleaded allegations of article 2 of plaintiff’s petition are: “That petitioner is the owner of the following described property, to-wit: Section 3, Township 4 North, Range 12 West; and the West % of Section 35; Township 5 North, Range 12 West.” The answer to this is: “Except as the same may conform to the public records of Sabine Parish, Louisiana, the allegations of article 2 of said petition are denied.” For support of his position, counsel declares upon the plain provisions of the Pleading and Practice Act, now incorporated in LSA-R.S. 13:3601, sub-paragraph 3, which provides:

“All material allegations of fact contained in the petition which are not denied in the answer shall be deemed to be admitted.”

In our opinion, counsel can derive but small comfort from the phraseology contained in respondent’s answer to article 2 contained in the words: “Except as the same may conform to the public records of Sabine Parish, Louisiana * * We think that such verbiage is mere surplusage and does not have the significance attributed to it. As we evalúe it, it can be said only to indicate that defendant denies and will persist in such denial of plaintiff’s ownership of the property, unless and until upon the -trial of the case it can show to the contrary by'recorded title.

Counsel for appellant urges further, that since appellee has not claimed title to the land in question, plaintiff by declaring ownership in its petition presents a prima facie case of ownership which must be accepted by the court. A careful review of the record, does not show any evidence of plaintiff’s corporeal possession of the land, upon which the alleged trespasses were committed. The record only reflects that the character of the possession, if any, by plaintiff was of civil rather than corporeal nature. The point under consideration seems to have been discussed in Foshee v. Kirby Lumber Corporation, 1947, 212 La. 44, 31 So.2d 419-421, in which case Chief Justice O’Niell stated:

“The plaintiff argues that in a suit of this nature the defendant cannot question the plaintiff’s title, and cites the following decisions as authority: Kernion v. Guenon, 1828, 7 Mart.,N.S., 171, 172; Bonis v. James, 1844, 7 Rob. 149; Mott v. Hopper, 1906, 116 La. 629, 40 So. 921; Collins v. Dalton Clark Stave Co., 1911, 128 La. 250, 54 So. 788; Smith v. Grant Timber & Mfg. Co., 1912, 130 La. 471, 58 So. 153; Akers v. Iberia Cypress Co., 1912, 131 La. 833, 60 So. 363; Gould v. Bebee, 1913, 134 La. 123, 63 So. 848. That rule applies only to cases where the plaintiff is in possession of the land on which the defendant has trespassed. In such cases the action for trespass is in the nature of a possessory action and is governed by Article 53 of the Code of Practice, which provides that in a possessory action the defendant cannot contest the plaintiff’s title. But the rule has no application to a case like this, where the plaintiff is not in actual possession of the land and is suing merely for damages for timber cut and removed from the land. In such a case the plaintiff cannot by merely charging the defendant with being a trespasser deprive him of the right to question the plaintiff’s title. Smith v. Grant Timber & Mfg. Co., supra; Akers v. Iberia Cypress Co., supra.”

Under our jurisprudence, as we so interpret it, plaintiff was not relieved of proving ownership of the land upon which it claims damages for trespass. In Tircuit v. Burton-Swartz Cypress Company, 1926, 162 La. 319-334, 110 So. 489, 494, the Supreme Court had this to say:

“We have reached the conclusion, on the further consideration of the case, that plaintiffs have not made such a showing as would warrant us in rendering a judgment in their favor. Viewing their present contention in all its phases, we cannot escape the stubborn fact that in order to be entitled to a recovery for the alleged trespass of defendant, it was incumbent upon plaintiffs to show they were the owners of the land. Sorrel v. Carlin, 23 La. Ann. 528; Collins v. Louisiana Sawmill Co., 132 La. 161, 61 So. 150; Cusachs v. Salmen [Brick & Lumber] Co., 146 La. 676, 83 So. 893. They were unable to do this.”

In the light of the foregoing authorities we find that plaintiff’s claim of ownership was placed at issue by a denial thereof in respondent’s answer, and, therefore, it was incumbent upon appellant to present proof of ownership. It may well be conceded that sufficient proof of title may be evidenced by admission upon trial by the trespasser, but a careful reading of Arnold’s testimony does not warrant us in concluding such was made. This statement should be qualified, however, by stating that Arnold did admit the removal through error on September 9, 1952, of one load of logs from plaintiff’s land in Section 3.

Returning to a consideration of the alleged trespass denominated as No. One (1) above, with the exception of the one load of logs above referred to, we find the evidence supporting this claim unsatisfactory. There was no substantial showing that more than one load of logs was removed by defendant from appellant’s land in Section 3. Although Loyd King testified he scaled 19,378 feet of pine timber and that all of said timber was cut within a period of ten days prior to October 29, 1952, the testimony of Arnold, his four crew members and of M. A. Walker, is in conflict and King’s testimony was not altogether satisfactory. It was further evidenced by the testimony of a number of witnesses that two other timber cutters were cutting on Section 3 during the summer of 1952. It was the testimony of Arnold and several other witnesses that during the month of October, 1952, defendant was cutting a large tract of timber owned by one Ivy Miller. Our review of the evidence has convinced us the trial court did not err in finding plaintiff failed to present sufficient evidence in support of its first claim.

With respect to trespass No. 2, plaintiff’s evidence consisted of testimony that certain pole timber had been cut by someone in Section 35, that Mr. E. E. Weldon had purchased 31 poles from Mr. Arnold during the months of June and July, 1953, and further that the poles had a value of $231.03. Certain poles were hauled by W. B. Woodle to the Weldon yard and Mr. Woodle testified that the same were picked up by him on the defendant’s land. There was no other evidence connecting defendant with the alleged trespass. Both the defendant and Mrs. Arnold testified they alone cut the poles upon their own property. Under such a state of facts we think it is reasonably clear plaintiff has failed to substantiate the charge that Arnold wrongfully trespassed and removed the poles from defendant’s property situated in Section 35.

The third alleged trespass by Arnold is concerned with the removal of 60 logs for conversion into crossties. The testimony reveals that defendant sold to Mr. M. A. Walker 60 logs which Arnold cut at the request of his nephew, Homer Fondron, who owned 40 acres of land lying adjacent to Section 35. Subsequent to the cutting Mr. R. V. Leone, a surveyor, ran the line between the Fondron property and Section 35. The testimony of Leone was not made from his field notes but only from memory and was somewhat vague and uncertain. Defendant insisted he cut the poles from the Fondron property and his testimony was supported by Homer Fondron. There was no other evidence to connect defendant with the removal of the poles and we are of the opinion the evidence of this alleged trespass was inadequate, falling short of sustaining the burden imposed by law upon appellant.

It thus appears to us that appellant has failed to point out manifest error in the findings of the trial court. Proof to a legal certainty has been adduced only with respect to the removal of one load of logs from Section 3 by the defendant. The preponderance of the evidence as to this removal, which Arnold testified was by mistake, shows that said timber was removed on or about September 9, 1952, more than a year prior to the filing of this petition on October 28, 1953. The production of this evidence resulted in the filing by defendant of a plea of prescription of one year, which, in our opinion, should be maintained as to the logs removed by defendant from Section 3.

It follows from our findings as herein-above set forth, that plaintiff has failed to make out its case and show to a legal certainty commission of the three separate acts of trespass and resulting damages therefrom. Therefore, the judgment from which appealed is affirmed at appellant’s cost.