text:
    MOTORS SECURITIES COMPANY, Inc. v. John HINES, Defendant, Third Party Plaintiff and Appellant; Edward L. WILLIAMS, Jr., d/b/a Ed Williams Motor Company, Third Party Defendant and Appellee.
    No. 8442.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Comegys & Harrison, Shreveport, for John Hines, defendant, third party plaintiff, and appellant.
    Ferdinand A. Cashio, Shreveport, for Edward L. Williams, Jr., d/b/a Ed Williams Motor Company, third party defendant and appellee.
   GLADNEY, Judge.

This suit was brought against the purchaser of an automobile by the holder in due course of the note given as part payment of the purchase price. Defendant’s petition to make the vendor of the automobile and payee of the note a third party defendant as warrantor of a defective automobile was met by < exceptions which-were sustained and plaintiff’s third party -action was dismissed as of nonsuit. The correctness vel non of the ruling of the trial court on the exceptions presents the single issue in this appeal.

The Motors Securities Company, Inc., as a holder and owner in due course and without notice, sued upon an installment chattel mortgage note dated December 6, 1954, for the principal sum of $1,111.86, made and subscribed by John Hines, to the order of Ed Williams Motor Company, and endorsed by the latter without recourse. In his answer, Hines admitted the material allegations of the petition, but petitioned for relief on a claim of personal warranty against Edward L. Williams, the owner of the Ed Williams Motor Company, basing his claim on the defectiveness of the vehicle for which the note was given. After Williams, through the procedure prescribed by the Third Party Practice Act, LSA-R.S. 13:-3381-3386, Acts 1954, No. 433, was made third party defendant, he filed exceptions of no cause and no right of action grounded specifically upon the following averments:

“That the demand which the defendant is attempting to assert against the exceptor purportedly under the Third Party Practice Act is not in any way connected with the principal demand, and, hence, the purported proceeding under said act is wholly unauthorized.”

After due hearing, the trial judge maintained the exceptions and dismissed the third party petition filed- by Hines as of nonsuit, assigning full and complete ■ reasons for his decision. From the judgment Hines has perfected a devolutive appeal to this court, wherein he asserts the district court was in error in dismissing his -claim against the third party defendant.

In arriving at his decision, the judge a quo relied upon Federal'cases in which application of Federal Rule of 'Civil Procedure 14, 28 U.S.C.A, was considered, recognizing, however, certain differences do exist in practice under the State and Federal systems. This view is reflected in the following excerpts from his opinion:

“The Third Party Practice Act, R.S. 13:3381 et seq., Act 433 of the 1954 Louisiana Legislature, is such recent legislation that there are no reported cases’ from the appellate courts of this state interpreting the same. The pertinent portion ,of the Act provides:-
“ ‘In any civil action presently pending or hereafter filed the defendant in a principal action may by petition bring in any person (including a co-defend- 1 ant) who is his warrantor, or who is or' may be liable to him for all or part of the principal demand.’
“This provision of our statute -is similar to, though not identical with, Rule -14(a) of the Federal Civil Rules, which reads as follows:
“ ‘Before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice'to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of plaintiff’s claim against him.’
“The Federal cases interpreting this rule uniformly hold that the granting or denial of leave to a defendant to prosecute a third-party proceeding under this rule rests in the sound discretion of the trial court, and that the appellate courts will not review this exercise of discretion except in cases of abuse. See U. S. v. Acord, 10 Cir., 1954, 209 F.2d 709, certiorari denied 347 U.S. 975, 74 S.Ct. 766, 98 L.Ed. 1115; Ford Motor Co. v. Milby, 4 Cir., 1954, 210 F.2d 137.
“It would appear from a reading of the Louisiana statute that the trial judge is not vested with the same discretion in granting or denying a third-party pleading as the Federal Civil Rule grants. However, we think it manifest that the primary purpose of both the Louisiana statute and the Federal Rule is one and the same, namely, the disposition of disputes with common questions of law and fact in a single suit and the avoidance of multiplicity. Skupski v. Western Navigation Corp., D.C.N.Y.1953, 113 F.Supp. 726; Lane v. Celanese Corp. of America, D.C.N.Y.1950, 94 F.Supp. 528; Henry G. McMahon, 15 Louisiana Law Review 49 (December, 1954).”

The Third Party Practice Act was adopted by the Legislature upon recommendation of the Louisiana State Law Institute and is patterned upon- Federal rules of third party practice, especially Federal Rule of Civil Procedure 14(a), 28 U.S.C.A. Henry G. McMahon- relates in an article entitled “Courts and Judicial Procedure”, XV Louisiana Law Review, 38, 46-49, that prior to the enactment of Act 433 of 1954, the Louisiana counterpart to the modern third-party practice of Anglo-American jurisdictions has been the call in warranty, a procedural device borrowed from French law. Pointing out that in our practice the call in warranty has not worked effectively with respect to the personal warranty, the author comments:

“For years, our Supreme Court restricted its use to the instances — entirely theoretical — where there was privity between the original plaintiff and the defendant in warranty. In 1905, this utterly unworkable rule was repudiated in Muntz v. Algiers & G. Ry. [Co., 114 La. 437, 38 So. 410], and the way should have been opened for the effective use of this procedural device. Unfortunately, in the Muntz case, the court gratuitously threw in a dictum to the effect that ‘there must be a contract of warranty between such defendant and the person so called in.’ This was soon expanded into the direct holding that the call in warranty cannot be employed in cases involving personal warranty unless based upon a contract of warranty or upon a statutory provision expressly permitting the defendant in warranty to be called' in. The result has been an inability to use the device for the purpose of obtaining a judgment over, in the numerous cases where the third party is indebted to the defendant for all or a part of the obligation sued upon by plaintiff, but the liability of the third person arises ex lege rather than from an express contract of warranty.”

The same authority records three differences encountered in the ■ employment of the State and Federal devices for third-party practice. Under note 62 Id. pp. 47 and 48, he enumerates these:

“First, under federal practice, the third-party defendant must be ‘a person not a party to the action.’ Fed.R.Civ.P. 14(a). The proposed Louisiana article is broader: the third-party defendant may be ‘any person, including a co-defendant.’ See Art. 62, Pleading, op. cit. supra note 60. The purpose of this difference was to eliminate the necessity for any counterpart of the federal cross-claim. Cf. Fed.R.Civ.P. 13(g).
“Second, under federal practice the defendant must move for leave to bring in the third-party defendant, and the matter addresses itself to the judicial discretion of the trial judge. Fed.R. Civ.P. 14(a). The proposed Louisiana article, like the present Art. 382, La. Code of Practice of 1870, and Rule 56 of the Federal Rules of Admiralty [28 U.S.C.A.], grants to the defendant initially the right to bring'in a third-party defendant.
“Third, the only papers which must be served upon the third-party defendant in federal practice are the summons and a copy of the third-party complaint. Fed.R.Civ.P. 14(a). This is in accord with our present rule of requiring the service of only the citation and the answer embodying the call in warranty upon the warrantor. Art. 383, La. Code of Practice of 1870. The Law Institute thought it advisable to require the service of citation and a certified copy of all of the basic pleadings upon the third-party defendant.”

Manifestly, the adoption of the Third-Party Practice Act in this state came as a result of dissatisfaction with procedural limitations ' encountered in actions relating to personal warranty ¿rising under C.P. Art. 378. The Act is incorporated as Article 62 in the' project of the proposed new Code of Practice being written under the auspices of the Louisiana State Law'Insti-tuid. In Expose Des Motifs No. 7, Code of Practice Revision, Louisiana State Law Institute, Book II,' Rules of Pleading and Practice in Ordinary Process, ' Title I, Pleading under “Comments” following Art. 62, there appears this statement:

“ * * * The principal use of such a procedural device in Louisiana would be to pass on to a codefendant all or a part of the judgment recovered against the defendant by the plaintiff, and by permitting the defendant to call in such third person under the demand against third parties, this function of the cross-claim is eliminated.”

Recently there appeared the first published opinion construing the Louisiana Statute. This is the decision by Judge Tate, in Automotive Finance Company, Inc., v. Daigle, La.App.1955, 80 So.2d 579. In the cited case, as here, the court was confronted with a suit brought by the holder in due course of a note against the maker in which the latter attempted to exercise rights under the Third Party Practice Act. The appellate court, held that defendants were entitled to implead as third-party defendant, the vendor of the automobile, who was purchaser’s warrantor and who would be liáble over to the purcháser if allegations that the automobile was defective, were true. The decision, therefore, is contrary to that presented for review herein.

The viewpoint expressed in Automotive Finance Company, Inc., v. Daigle, so it.appears to us, is consistent with the end sought to be achieved by the authors of the Louisiana Act, who especially desired to discard the procedural restrictions upon actions in personal warranty theretofore imposed by jurisprudence which refused.to permit a defendant to call a third party in warranty unless a contract of warranty existed between the defendant and the third party sought to be called in warranty. It is our conclusion, therefore, that the judgment from which appealed maintaining the exceptions of no cause and no right of action directed at the third party action is in error. The judgment from which appealed is- reversed and set aside, but only insofar as it pertains to the exceptions of no cause and no right of action, which are hereby overruled; and it is further ordered that this cause be remanded for further proceedings not inconsistent with -the views herein expressed, costs of this appeal to await final determination of the case, . .


source: Caselaw Access Project

author: AYRES, Judge.

license: Public Domain

text:
    Gertrude BUVENS, Plaintiff-Appellee, v. E. M. PATRICK, Defendant-Appellant.
    No. 8447.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.
    Godfrey & Edwards, Many, for appellant.
    Pickett & Pickett, Many, for appellee.
   AYRES, Judge.

This action was originally instituted by Gertrude Buvens and by Felix N. Buvens and Dr. F. A. Buvens as trustees of the Gertrude Buvens trust. Dr. Buvens died April 25, 1954, and under its terms the trust agreement terminated, after which Gertrude Buvens remained as the sole party plaintiff.

This action arose out of a lease contract wherein, on April 29, 1949, plaintiff leased to one R. H. Kelly the surface rights on a tract of land comprising 210 acres, more or less, situated in Sabine Parish, Louisiana, for a period of five years, beginning May 1, 1949, for a cash consideration of $150, representing the payment of rent for the first six months at $25 per month, and on terms of $25 per month for the remainder of the period of said lease, payable on the first of each month in advance. Among the stipulations of said lease, lessor reserved the use and possession of one of the tenant houses situated on said property.

Under date of February 1, 1952, R. H. Kelly transferred and assigned to the defendant, E. M. Patrick, the aforesaid lease. The transferee bound and obligated himself to comply with all the terms, conditions and provisions of said lease and assumed the payment of the monthly rentals.

Following the ' aforesaid assignment, .an agreement was entered into between plaintiff and defendant whereby plaintiff was permitted to occupy the main residence, the old home place, in lieu of one of the tenant houses, in consideration of which the stipulated rent was reduced from $25 to $18 per month. Defendant paid the rent thus agreed upon but at the rate of $17 per month for two months. September 30, 1953, plaintiff instituted this action for the sum of $288, representing the rent allegedly past due and owing for 16 months.

From a judgment as prayed for in plaintiff’s favor, defendant prosecutes an appeal to this court

Defendant filed a plea of lis pen-dens and an exception of no cause or right of action in the trial court, which were overruled. They were neither argued nor briefed before this court and are, therefore, considered as abandoned.

In answer to plaintiff’s demands, defendant, in effect, admitted the agreement with plaintiff whereby she was to occupy the main residence and that the rent due by defendant was reduced, as she contended, except that he contended that plaintiff rented the main dwelling for the sum of $8 per month, which was to that extent to offset and reduce the payments due by him under the aforesaid lease. Thus, he claimed that the rent of the main residence was without any term for its duration and, therefore, on a month-to-month basis. On that assumption, defendant caused his counsel to write plaintiff May .31, 1952, informing her that thereafter the rent on the main dwelling would be $25, per month, which would offset and extinguish his monthly payments for the rent of the entire 210-acre tract.

The record discloses that thé main residence was in need' of considerable repairs at the time to make it fit for occupancy. Repairs were made to the extent of requiring expenditures by plaintiff’s brother of from $400 to $500. . . ' ;

The questions presented- are largely factual in nature and the trial court resolved the issues in plaintiff’s _ favor. We have found from the record, no manifest error in the judgment rendered.-

The facts do not support defendarit’s position that plaintiff occupied the main residence upon a month-to-month rental basis. It is not shown that plaintiff in any way agreed to or acquiesced in the terms of counsel’s letter offering or purporting to rent her the residence for ’$25 per month. There was no agreement as to any such modification of their former agreement. A lease, whether' verbal or written, is a contract, and such a contract can not be established except by a showing of the agreement of both parties to the terms thereof. ’ The residence at the time could hardly be said to be fit for occupancy and was only made so by the expenditures here-inabove mentioned.

No conclusion could be reached" other than that it was intended by the parties that their agreement relative to plaintiff’s occupancy of the main dwelling cover the period of time remaining under -the terms of the lease and that defendant is obligated to pay the rent. The difference to be paid by defendant was established to be $18 per month. The correctness of the amount does not admit of serious dispute.

The judgment appealed is, therefore, affirmed at appellant’s costs.

Affirmed.


author: HARDY, Judge.

text:
    James B. HAYNES, Jr., et al., Plaintiffs-Appellants, v. Jerry L. SMITH, Defendant-Appellee, J. S. Noel et al., Intervenors.
    No. 8470.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.

      Morgan, Baker .& Skeels, Shreveport, for appellant and intervenor.
    Charles M. Peters, Shreveport, for ap-pellee.
   HARDY, Judge.

This suit was instituted by six owners of property located on the north side of Cross Lake in Caddo Parish, Louisiana, later joined by two additional' property owners who appear as plaintiffs in' 'intervention. Plaintiffs own various tracts of land located on the said north shore of Cross Lake aggregating something in excess of 200 acres. Defendant is the owner of a tract of land consisting of two acres which also fronts on Cross Lake, and the property of the several plaintiffs adjoins that of defendant and extends for some hundreds of feet on either side thereof.'

Plaintiffs instituted this suit, praying for the issuance of a temporary restraining order, a preliminary injunction, and, finally, a permanent injunction prohibiting, restraining and enjoining defendant from the construction, upon the bed and over the waters of Cross Lake, below the 172 foot contour line; of a commercial boat shed or boat storage building to be used' in connection with the operation of a commercial fishing camp. Following the issuance of a temporary restraining order the matter was tried on the rule for a preliminary injunction and there was judgment rejecting demands of plaintiffs and dissolving the temporary restraining order, from which judgment plaintiffs have brought this de-volutive appeal.

Contemporaneously with the filing of answer defendant filed an exception of no cause or right of action which was referred to the merits and of which no specific disposition was made. Before this court counsel for defendant re-urges the exceptions, but, .after consideration, in view of .our conclusion th.at the basis of the exceptions is indistinguishable from the defense on the merits, we have concluded that our holding in the instant case should be predicated upon the merits as reflected by the record made up on trial of the rule for a preliminary injunction.

The property of plaintiffs and defendant is located in a. highly exclusive and restricted area. The property owned by the majority of the plaintiffs, and particularly by those most closely located to the property of defendant, was acquired from a common ancestor in title under a deed of conveyance restricting the use of the property. : There was no such' restriction in the deed by which defendant acquired title to his small tract of two acres. It was established that defendant and one of plaintiffs have- built and maintained their permanent homes on their .properties. , The other plaintiffs acquired or have constructed various types of camp houses or summer homes, several of which represent' substantial investments. All of plaintiffs and defendant maintain and use private boat houses and piers of one sort of another, some of which extend out into the lake for distances of almost 200 feet beyond ■ the 172 foot contour line, and all the parties, with one exception, maintain, use and operate a boat or boats upon the waters of the lake, some of which craft are operated by inboard and some by outboard motors.

Some months 'before the institution of this suit defendant began the operation of a commercial boat rental and bait selling enterprise on a small scale. Sometime during the month of September, 1955, it appears that defendant developed plans and began to negotiate for the construction of a pier and boat house, which latter construction was intended to accommodate the housing of some 40 boats. Defendant contemplated the maintenance of a number of boats for public rental and the lease of stalls in the boat house to private parties for the housing of their craft. In conjunction with this operation it was defendant’s intention to sell bait and to permit fishing- from the pier. According to defendant’s proposed plan the dimensions of the completed structure would be 133 feet in length by 38 feet in width with a six foot pier running through the center of such building and extending some 30 feet farther into the lake. In the effort to prevent the construction and the operation of this project plaintiffs filed this suit on September 24, 1955.

The basis of plaintiffs’ action is set forth in Article 9 of their original petition as follows:

“That the defendant is without legal right to construct upon the lake bed of Cross Lake and over the waters of Cross Lake the type and kind of boat shed and storage building which he proposes to construct and which he is in the act of commencing for the operation of a commercial fishing camp and boat storage and service facility all for the following reasons, to-wit:
“A. The water in Cross Lake and the Lake Bed of Cross Lake belongs to the State of Louisiana.
“B. The defendant has not obtained the permission or consent of the State of Louisiana for said construction nor of any other governmental authority.
“C. That the construction and operation of such a building would constitute a public as well as a private nuisance all for the reasons hereinafter set forth,”

Particularization and amplification of plaintiffs’. objections to defendant’s proposed action are enumerated in the subsequent articles of the original petition as follows:

“10.
“That the investment of petitioners in the property owned by them has been substantial and has been made, by reason of the fact that this particular area of the shores of Cross Lake have been devoted exclusively to residential purposes; that all petitioners and their ancestors in title have beautified the area, have cleared away all underbrush, and have made the area a real show place of natural beauty.
“11.
“That the construction of a large commercial boat shed measuring some 200 feet in length and sixty feet in width which the defendant proposes to construct upon the Lake Bed and over the water of Cross Lake, will immediately attract a large number of fisherman, both white and colored, with the result that the public attracted to said place on account of the facilities to be constructed over the waters of Cross Lake, will invade the private property of petitioners; that whereas the area is now quiet and comfortable, it will become noisy and congested; that whereas petitioners are not now bothered by the noise of motorboats, such a shed will attract a large number of noisy motorboats, which will be constantly racing in front of petitioners property, and that whereas petitioners now have a beautiful view of Cross Lake, this natural beauty and view will be marred by the construction of such a shed as the defendant has moved in materials to construct.
"12.
“That the construction and operation of such a building as defendant proposes to construct upon the bed of Cross Lake and over its waters is a nuisance per se.
“13.
“That if the defendant is permitted to continue with -the construction of such a building and iboat shed over the waters of Cross Lake and upon the bed of Cross Lake, the property of petitioners will immediately depreciate in value to a vast extent and petitioners will consequently suffer heavy financial losses; that the area will immediately lose its appear (sic) as a residential area and the area will no longer be fit to live in.
“14.
“That the construction of such a building over the waters of Cross Lake and upon the Lake bed will obstruct the free use of said waters and will interfere with petitioner’s boating use, and enjoyment of said Lake.”

By supplemental petition plaintiffs amended Article 9 of the original petition to read as follows:

“That the defendant is without legal right to construct upon the lake bed of Cross Lake and over the waters of Cross Lake the type and kind of boat shed and storage building which he proposes to construct and which he is in the act of commencing for the operation of a commercial fishing camp and boat storage and service facility all for the following reasons, to-wit:
“(a) The water in Cross Lake and the Bed' of Cross Lake belongs to the City of Shreveport, Louisiana, for its exclusive use as a good and wholesome water supply for the people of the City of Shreveport, Louisiana, having been so conveyed to the City of Shreveport, Louisiana, pursuant to the provisions of Act No. 31 of the Legislature of the State of Louisiana for the year 1910, which acts (sic) limits and restricts the property to a water supply for the people of Shreveport, Louisiana and for no other use.
“(b) The bed of Cross Lake belongs to the City of Shreveport subject to the restrictions contained in the law which provided for the conveyance to the City of Shreveport, Louisiana, and is therefore dedicated to good and wholesome water supply purposes.
“(c) That there is no law, rule, regulation or ordinance of the City of Shreveport which would permit or authorize a commercial structure upon the bed of Cross Lake and over its waters.
“(d) That the proposed acts of the defendant constitutes an appropriation of public property for private , use which is illegal, and unlawful.
“(e) That the .defendant is without lawful authority to construct such a structure upon the Lake ¡bed of Cross Lake and over its waters, and insofar as the defendant purports to have such authority, the same is illegal, null and void as there exists no law, rule, or ordinance which confers upon the right of anyone to confer upon defendant the authority to construct such a structure.
“(f) That the'Lake Bed and waters of Cross Lake have been dedicated by the Legislature of Louisiana for the purpose of supplying a good and wholesome water supply to-the people of Shreveport, Louisiana and cannot be used for the erection of a commercial structure for the purpose of carrying on a private business such as contemplated and planned by the defendant ; that only the Legislature -of Louisiana has the power to devote the Lake Bed and the waters of Cross Lake to any other purpose.
“(g) That the construction and operation of such a building would constitute ■ a public as well as a private nuisance all for the reasons hereinafter set forth.”

Before this Court counsel for plaintiff has narrowed the issues by the following declaration in its brief:

“Plaintiffs have alleged and are relying upon the following' propositions, -to-wit:'
“1. That the Waters of Cross Lake and the bed of Cross Lake belong to thé City of Shreveport and title is therefore in the Public.
“2. That the defendant has not obtained any valid permission of the public authorities to construct a Commercial enterprise upon the bed of Cross Lake.
“3. That the construction, and operation of such a building would con•stitute a public as well as a private nuisance.”

Additionally counsel argue that plaintiffs have

“a special interest and are particularly adversely affected by the construction proposed, by. the defendant on public property.”

Counsel urged that the Legislative Act and the deed from the State of Louisiana to the City of Shreveport pursuant thereto, transferring the bed of Cross Lake, limits and restricts the use of the. property to the provision of a whplesome water supply for the people of Shreveport; permits no other use thereof and .prohibits the use.of the lake bed or any part thereof for a commercial, privately owned building operated for the profit of an individual. It is , further urged that the City has never adopted any resolution or law which would permit the erection of

“any kind of a structure, let alone the commercial structure * * *.”

Summing up, learned counsel argues:

“The plaintiffs, having a special interest as they have, are attempting to enjoin the defendant from constructing a commercial enterprise upon public property, public property which has, by legislative action, been dedicated and restricted to supplying a wholesome water supply to the people of Shreveport, Louisiana.”

To say the least, plaintiffs’ general position is highly inconsistent with the facts. The record does not disclose why or how the maintenance and operation of a commercial boat house and fishing pier jeopardizes the purity and wholesomeness of the water supply, nor does it justify any conclusion that such a public and commercial enterprise would be more damaging than the private maintenance and operation of similar structures.

It is obvious that the maintenance of plaintiffs’ asserted position- that Cross Lake is limited and restricted to use as a water supply and cannot be used for any other purpose whatsoever would not only eliminate the operation of the commercial venture of which plaintiffs complain but would necessitate the elimination of plaintiffs’ own rights.to the use and enjoyment of the. watersi of the lake, which result would represent an absurdity that certainly is not contemplated.

It is clear that the only basis of plaintiffs’ objection is their desire to enjoy a completely private and restricted ‘ area on the shores of a lake which, though primarily intended and used as a water supply, incidentally offers to the general public of the City of Shreveport an opportunity for recreational use and enjoyment that far outweighs the purely exclusive and private rights which plaintiffs assert.

Pursuant 'to Act No. 31 of the Legislature of 1910 the State of Louisiana conveyed unto fhe City of Shreveport a body of land -containing something less than 12,000 acres constituting the bed of Cross Lake. The deed of conveyance executed by the Legislature of the State Land Office on May 18, 1914, provided that the conveyance was made: -

“ * * * to provide a water supply of good, pure and wholesome water for the citizens of the City of Shreveport, Louisiana, as now constituted or hereafter extended, reserving to the Sta-te of Louisiana all minerals, or mineral rights to and under said land * *

Aside from the declared. purpose of the conveyance as being intended to provide a water supply for-the people of the City of Shreveport, and except for the mineral reservation in favor of the State, there is no restriction nor limitation of any kind, nature or character contained in the Act.

Implementing the ownership of the property-itself, and obviously for the purpose of permitting the City to exercise extra-territorial authority outside of the limits of the municipality, the Legislature passed Act No. 39 of 1926: - -

“To authorize and'empower the City of Shreveport to adopt, exercise and enforce police and sanitary regulations and ordinances over the bed and waters of Cross Lake and the area surrounding same”.

The body of this Act' conferred upon the City full authority for the adoption of all needful police and sanitary ordinances and regulations for the protection of the bed and waters of Cross Lake. The Act further authorized the exercise by the City of the authority granted, through its Board of Health, Public Safety Department, Public Utilities Department, or otherwise.

The record in the instant case fails to establish the adoption of any ordinances, resolutions ‘ or regulations governing the construction of boat landings, piers, boat houses, or other similar structures either for private use or commercial operation. There is no showing that the property concerned in this litigation was zoned, and, indeed, it is patently evident from the record that there were no restrictions of any kind or nature, either by private covenant or public act, imposed upon or applicable to the use of the property of defendant.

Inter alia, plaintiffs complain, at one and the same time, that defendant has no authority from the City of Shreveport to conduct a commercial enterprise of the nature contemplated, and that the City, in any event, has no right to grant such authority. Neither of these two premises is supported. The testimony of City officials established the fact 'beyond question that there are no regulations nor ordinances with reference to the construction of boat houses, etc., and that, as a matter of custom, such questions are left for the sole determination of the Commissioner of Public Utilities. It is established that defendant requested permission for the construction of a boat house and pier in front of his property and was authorized to proceed with his plan, by letter from the Commissioner of Public Utilities of the City of Shreveport. It is to be presumed that he must and will comply with appropriate po-r lice and sanitary regulations, and, there being no other formal or informal regulations to be observed, the conclusion is inescapable, that he is entitled to exercise a right which has neither been denied nor circumscribed by any law.

In Hobson v. Walker, 41 So.2d 789, 794, this'court declared:

“The use of injunctive process which interferes with, restricts or restrains the exercise of the rights of those engaged in trade, business or commerce is one which has been carefully safeguarded and one which is not used except in those cases where the established facts are clear and convincing.”

There is some analogy with respect to the facts concerned in the instant case and those in the one cited, for, in the latter, the defendant was engaged in the operation of a bait selling enterprise which plaintiff sought to abate as a nuisance.

We pass over the complaints of plaintiffs as to disturbance by noise, invasion of their private property by the implied invitation to the general public to use the facilities of defendant’s commercial enterprise, impairment of view, etc., not because we would summarily dismiss these complaints but because they present no foundation nor justification for relief either in law or fact. We pause in this general dismissal of unestablished and untenable complaints only to observe that plaintiffs have failed to show, on any count, the possibility of any serious or material -discomfort to persons of ordinary sensibilities and in a normal state of health which could reasonably be expected to arise from the business contemplated by defendant. These requirements, with relation to the locality and the reasonableness of the business, applied by our courts to cases seeking the abatement of a nuisance, are equally applicable to the instant case which seeks to prevent the establishment of an enterprise which would constitute a future nuisance. Froelicher v. Southern Marine Works, 118 La. 1077, 43 So. 882; Meyer v. Kemper Ice Co., 180 La. 1037, 158 So. 378; Irby v. Panama Ice Co., 184 La. 1082, 168 So. 306; Moss v. Burke & Trotti, 198 La. 76, 3 So.2d 281; Myer v. Minard, La. App., 21 So.2d 72, Kellogg v. Mertens, La.App., 30 So.2d 777; Hobson v. Walker, supra, 41 So.2d 789.

There Í9 no fact adduced in connection with the instant case which would substantiate plaintiffs’ contention that the proposed venture on the part of defendant would constitute a nuisance, per se. The record establishes, and the Court, as a practical proposition, is thoroughly familiar with the fact that commercial boat renting and bait selling enterprises áre conducted by various individuals from locations on the shores of Cross Lake: Again we observe that these operations are regulated and supervised by the City authorities. The compilation of ordinances with reference to police regulations of Cross Lake, which was introduced in evidence, discloses, among other regulations, prohibitions against the operation of boats upon the lake between the hours of dark and daylight, prohibits the operation of motor boats without mufflers, except with respect to specific and limited occasions, and, in short, satisfactorily rebuts plaintiffs’ fears and apprehensions.

Plaintiffs, while conceding the right of the public to the use of the lake for recreational purposes, in effect, attempt to deny the right of access by the public to the restricted locality in-which they hold a. definite proprietary interest. Careful examination of the record fails to disclose any merit in law or fact which can be accorded this- position.

We note in brief of learned counsel for plaintiffs the reliance upon the mandatory requirements with respect to the issuance of a preliminary writ of injunction under the provisions of Code of Practice, Article 298, paragraphs 1, 2 and 3. The facts of the, instant case do not justify application of the mandatory remedy under any of the enumerated provisions' of the article;

For the reasons " assigned the judgment appealed from is affirmed at appellant’s cost.-


author: GLADNEY, Judge.

text:
    W. L. ALLISON, Jr., Plaintiff-Appellant, v. Jessie R. IVY et al., Defendants-Appellees.
    No. 8465.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.

      Roy M. Fish, Springhill, for appellant.
    McConnell & McConnell, Springhill, appellee.
   GLADNEY, Judge.

Plaintiff instituted this suit for the recovery of damages _ allegedly due for personal injuries inflicted upon him by Jessie R. Ivy and M. T. Ivy in a barroom encounter on May 9, 19SS, near Cotton Valley, Louisiana. M. T. Ivy, one of the defendants, was never served with citation and consequently is not a contestant herein. Following trial on the merits there was judgment rejecting plaintiff's demands.

The record shows Jessie R. and M. T. Ivy had been drinking in Brown’s Bar when plaintiff entered. Jessie Ivy addressed Allison by asking him if he should not apologize for having kicked him in an encounter had some time previously, and when Allison denied having kicked him, Ivy. told Allison that he knew Allison had kicked him. Thereupon, so Ivy testified, Allison struck him with his fist and both of the Ivys proceeded to strike Allison on the head with whiskey bottles. Allison denies that he ever struck Jessie Ivy but his'testimony in this respect was contradicted by W. E. Brown, the proprietor of the bar. Brown testified that Allison struck the first blow. Henry Emerson and Loyd Burnham, when called as witnesses by plaintiff, testified that they did not see the start of the altercation. Plaintiff’s attorney sought to impeach the testimony of Brown by himself testifying that Brown gave him a statement in conflict with Brown’s testimony on the trial. The foregoing represents substantially all the material evidence adduced upon the trial.

The rule is well settled in Louisiana that a plaintiff can recover civil damages in an action for assault and battery committed ‘without legal excuse unless he provoked the difficulty by conduct calculated to arouse the resentment or fears of the defendant. However, the courts have found sufficient fault on the part of plaintiff to bar his recovery where he struck or attempted to strike the..first blojy. See: LSA-C.C. art. 2315; Hopper v. Ross, D.C., 123 F.Supp. 371; Ogden v. Thomas, La.App.1949, 41 So.2d 717; Hartfield v. Thomas, La.App.1950, 45 So.2d 216; Esnault v. Richard, La.App.1951, 53 So.2d 494; Ashley v. Baggett, La.App.1951, 53 So.2d 678; Smith v. Parker, La.App. 1952, 59 So.2d 718; Gordon v. Pittman, La.App.1952, 61 So.2d 609; Mecom v. Marshall, La.App.1953, 64 So.2d, 515; Brown v. Lambert, La.App.1954, 74 So.2d 410; Robertson v. Palmer, La.App.1954, 74 So.2d 408; and Smith v. Bankston, La.App. 1954, 75 So.2d 880.

In our firm opinion plaintiff has entirely failed to make out his case with legal certainty. Upon the question of-provocation plaintiff alone presented testimony on his behalf, but his testimony is contradicted by , Jessie R. Ivy , and by -Brown. Manifestly, therefore, the trial .court was faced with an issue of fact that in its final analysis could only be determined according to the credibility of the witnesses involved. Whether or not defendant was the aggressor in the difficulty is a question of fact, and since the trial judge who saw and heard the witnesses testify resolved this issue against plaintiff’s contentions, unusually strong reasons would have to appear to warrant a reversal of his decision. . We are of ,the .opinion that his findings are correct and should not be disturbed.

The judgment from which appealed should be and is hereby affirmed at appellant’s cost.


text:
    Owen McCAULEY, Plaintiff-Appellee, v. PLANTERS SEED COMPANY et al., Defendant-Appellant.
    No. 8473.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellant.
    Philip H. Mecom, Shreveport, for ap-pellee.
   HARDY, Judge.

This is a suit against defendants as members of a commercial partnership for recovery of the sum of $1,324, representing the balance due on account for goods sold by plaintiff. Defendants, after admitting the indebtedness claimed by plaintiff, asserted a reconventional demand in the principal sum of $3,526, against which claim the amount due plaintiff should be allowed as a-credit. From a judgment in favor of plaintiff in the full amount of the sum claimed, and further judgment on defendants’ reconventional demand in the sum of $451, plaintiff has appealed. Defendants have not answered the appeal, and it follows that the only issue which is here presented concerns the correctness, vel non, of the allowance of $451 on defendants’ ré-conventional demand.

The facts may he briefly summarized. Plaintiff is a wholesale dealer and the defendant partnership is a retail dealer in the sale of 'seed. Under dates of Septembef 17th and September 21, 1953 plaintiff, sold defendants specified quantities of seed, -invoicing the price thereof, for the two. transactions, at $3,562.50 and $3,199, respectively. Defendants made prompt payment against the invoice of September 17th in the sum of $3,562.50, and on September 22, 1953, defendants issued their check in favor of plaintiff, in the amount of $3,199, in payment of the invoice of September 21st. Included in the quantities of seed sold by plaintiff were items representing 10,000 pounds of Kentucky 31 Fescue seed, billed on the September 17th invoice, and 5,000 pounds of Kentucky 31 Fescue seed billed ■on the invoice of September 21st. The price charged for the Fescue seed was $12.50 per hundred, and the aggregate amounts set forth on the two invoices were $1,250 and $625 respectively. ' Subsequent to its issuance defendants stopped payment •on the check of September 22nd in the sum of $3,199 for the reason that the 15,-000 pounds of Fescue seed purchased from plaintiff had been discovered to be unsaleable due to the presence of wild onion seed, a noxious weed, in quantities above the limit of tolerance allowed in the State of Louisiana. After some considerable negotiations plaintiff allowed defendants credit against the balance of their account for the 15,000 pounds of Fescue seed at the sale price of $12.50 per hundred, amounting to a total sum of $1,875. The credit in this allowance against the balance of $3,199 leaves the amount of’ $1,324 which plaintiff claims in this suit.

Defendants’ reconventional demands are made up of claims for loss of profits totaling $900 on the sale of 15,000 pounds of Fescue seed at $6 per hundred; expenses in the sum of $50 for picking up and returning unsaleable seed from customers; extra •expenses representing additional cost to defendants of $2.20 per hundred on 8,000 pounds of certified Fescue seed, obtained dor the replacement of an equivalent amount of'the tainted-seed sold and delivered to a customer, and, finally, the sum of $2,400 cláimed to be loss ’of profits at $6 per hundred on 40,000 pounds of Fescue seed represented by orders withheld during investigation. On the above items the opinion of the District Judge itemized his allowances as representing $6 per hundred o.n 3,750 pounds of Fescue seed which had been planted by defendants’ customers and could not be recovered; $50 for the item of expense in picking úp and returning unsaleable'- seed;’ and $176 for the -increased cost of supplying the-certified seed.

We think it unnecessary to narrate the somewhat detailed facts surrounding the negotiations between plaintiff and defendants relating both to the original purchase and to the attempted settlement of the differences resulting from the discovery of noxious seed. It suffices to say that plaintiff originally purchased quantities of .Fes-cue seed from a dealer in the State of Kentucky and was furnished analyses made by the Department of Entomology and Botany of the University of Kentucky. In accordance with what appears to be accepted custom,. the sacks of seed were identified by lot numbers, permitting reconciliation with- the laboratory reports, the results of which were evidenced by tags attached to the sacks. Plaintiff did not re-analyze the seed despite the fact that this appears, from evidence in the record, to be customary procedure. However, we do not find that this omission on the part of plaintiff has any real bearing upon his liability for. reasons which we shall attempt to, hereinafter set forth.

Examination of defendants’ answer, which incorporates 'the basis for the recon-ventional demand, convinces' us that defendants originally predicated their claim upon an alleged breach of warranty on the part 'of plaintiff. :The pleading to which reference is made repeatedly avers the representations, ' warranties !' and guaranties made by plaintiff prior to purchase of the Fescue seed by "defendants. ■ We conclude, as did the District Judge, that plaintiff did warrant the seed as being noxious-free, but we are further convinced, again in complete . accord with the findings of the District Judge, that plaintiff had no actual knowledge of the noxious weed content and that he was free of any actual bad faith.

We think it important to determine the legal basis upon which defendants rest their .claim for recovery, inasmuch as plaintiff resists such claims on the ground of an express and specific restriction of warranty on the part of plaintiff.'

If, as we believe, defendants’ claims rest upon an alleged breach of warranty, it would appear that the solution of this matter is comparatively simple.

Article 2531 of the LSA-Civil Code reads as follows: '

“Good’ faith seller — Right and Liabilities. — The seller who knew not the' vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those' incurred for the preservation of the thing, unless the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses.”

Article 2545, relating to the obligation of a seller who has acted in bad faith, provides :

“Restitution and damages — Liability for. — The seller, who knows the vice of the thing he sells and- omits to de- ■ clare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.”

Being convinced, as we have above noted, that plaintiff was not in bad faith and did not know, of the vices existing in the shipments of seed, it seems clear that ■ plaintiff’s liability would be limited to the restoration of the price/ under the. provisions of Article 2531. This restoration having alrteady, been accomplished by credit allowed to defendants would exonerate plaintiff from any further response by way of damages.

While we think the article above is controlling and serves to dispose of this matter, we are further impressed by the explicit contractual restriction of warranty which is evidenced by the record.

The very invoices which are the basis for plaintiff’s suit, and which were duly received by defendants, contain the following limitation of warranty:

“McCauley Seed — Warrants that the seeds it sells are, at the time of delivery, as described on the container, within recognized tolerances; but it limits its liability on seed warranty to the amount of the purchase price of such seeds, and gives no other or further warranty, express or implied.”

There being nothing against public policy in a limitation of the above nature, and since there is no evidence of bad faith on the part of plaintiff, we think defendants’ demands should have been refused. Examination of the Federal Seed Act found in 7. U.S.C.A. §§ 1551-1610 and the Louisiana Statute on the same subject, LSA-R.S. 3:1431 — 3:1447, not only fails to disclose any prohibition against a limitation of warranty such as that above shown, but indicates an implied recognition of such limitations.

A very recent case, decided by our brethren of the Orleans Court, involved a remarkably analogous matter both as to facts and law, Gilbert v. Reuter Seed Co., La.App., 80 So.2d 567. In the cited case the court gave full recognition and enforcement to then’use of a non-warranty clause by the seller of-seed, and we not only accord with the finding of the court in the cited case, but accept such finding as additional support for our position in the instant case.

For the reasons assigned the judgment appealed from is amended by rejecting defendants’ reconventional demands in their entirety, and, as amended, the judgment is affirmed. All costs of both courts are taxed against defendants.


text:
    O. L. ARCHER et al., Plaintiffs-Appellants, v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 8392.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.
    Jackson, Mayer & Kennedy, Comegys & Harrison, Shreveport, for appellants.
    William L. Murdock, Wilkinson, Lewis & Wilkinson, James J. Butler, Shreveport, for appellee.
   AYRES, Judge.

Plaintiffs, residents and property owners of the Bellmeade Subdivision to the City of Shreveport, sought by this action to have decreed unconstitutional, null and void Ordinance No. 49 of 1953, which rezoned and reclassified Lots 1 to 10, inclusive, of Block “C” of the aforesaid subdivision located at the southeast intersection -of Youree. Drive and Southfield Road from a classification of a one-family residential district, designated “A-l”, to a neighborhood commercial district, with a designated classification of “D-2”. In addition, plaintiffs prayed that the City be enjoined from homologating the Ordinance and from issuing any construction permit thereunder.

Upon the owners of said property instituting a mandamus proceeding against the City to compel the issuance of' a building permit for the erection of a neighborhood shopping center upon said lots, plaintiffs amended their petition and prayed for a temporary restraining order and, after due proceedings, for a temporary injunction prohibiting the issuance of the permit.' A temporary restraining order was issued and a rule nisi was issued and served upon the City’-directing it to show cause why such preliminary writ should not issue as prayed for. Chris Demopulos and Alexander Mi-jalis, owners of the property rezoned and applicants for the permit to erect the shopping center, intervened in this suit and joined the defendant in resisting plaintiffs’ demands.

After trial, judgment was rendered upholding the validity of the Ordinance under attack,’ rejecting plaintiffs’ demands and denying plaintiffs’ application and recalling the rule for a preliminary injunction.

From the judgment thus rendered and signed, plaintiffs devolutively appealed to the Supreme Court. There appellees filed a motion to dismiss the appeal, alleging that since the judgment appealed from was rendered, a building permit had been obtained by the intervenors from' the City and • that the intervenors were then engaged in constructing a community shopping center upon said property. Therefore, it was contended that the issues presented had become moot. This motion, however, was overruled. Archer v. City of Shreveport, 226 La. 867, 77 So.2d 517. Subsequently, for lack of jurisdiction in that Court, the appeal was transferred to this court. 228 La. 13, 81 So.2d 428.

In a supplemental brief appellees again urge that the issues presented by this appeal are moot and academic for the reason the building permit has been issued and the shopping district established and the buildings erected pursuant to such permit; that a reversal of the judgment could afford appellants no relief inasmuch as such a judgment would not have the effect of annulling the permit and an .injunction does not lie to undo that which has already been done. As stated above, the Supreme Court has already ruled adversely to this contention. In its ruling the Court stated [226 La. 867, 77 So.2d 518]:

“But the motion completely overlooks the fact that the suit is not merely for the purpose of obtaining an injunction, as appellees contend. It also provides' a specific attack on the validity of the ordinance under which the permit was issued, the plaintiffs having by appropriate allegations and prayer questioned its legality and constitutionality and having shown an immediate interest for doing so. - Incidentally, the question could have been raised by them, and presented for determination, without the aid of injunction proceedings. And substantial results would follow a decree of this court reversing the judgment from which the appeal was taken. In such event, for example, the zoning classification of interven-ors’ property would return to that which existed prior to the adoption of the 1953 ordinance. As pointed out in City of New Orleans v. Levy, 223 La. 14, 64 So.2d 798, 802, an ‘ * * * un_ constitutional amending statute or ordinance is in reality no law, and in legal contemplation is as inoperative as if it had never been passed. * * * > «

Accordingly, the Supreme Court determined that issue and the appellees are precluded by the judgment thus rendered from again presenting the question, which we could-not with propriety discuss again.

The property involved here was annexed to the City on two separate occasions. That portion of the subdivision facing Southfield Road to the depth of one lot was annexed in 1947. The remaining, but the greater portion, was annexed in 19S0. In 1948 the property at the four corners of the intersection concerned, which was the intersection of Youree Drive and Southfield Road, was zoned for D-2, commercial use, and was so zoned when plaintiffs purchased their property. Intervenors’ application contemplated the increasing of the area at the southeast corner of said intersection to develop a community center, to consist of a super market, drug store, laundry pick up station, a barber shop and other businesses usually found at such a community center. An off-street parking area was to be provided for 324 cars. On the northwest comer of the intersection a Pak-A-Sak store was in operation. Adjacent to the property petitioned to be rezoned is a tract upon which the St. Paul’s Episcopal Church has erected certain church edifices. Practically all the adjoining property was zoned A — 1 for residential use in 1948. South of the subdivision is the municipal boundary, outside of which property was not affected by any zoning regulations.

The objections of the opponents to the zoning ordinance were summarized by the trial judge in his written opinion, wherein he stated:

“The objections of the opponents to this ordinance are that the proposed development would create a nuisance by having traffic congestion, endanger the lives of their children, by having unusual and annoying noises, by having unsightly garbage receptacles and the litter from the operation of such a place, by insect pests such as roaches, mice, rats, etc., and attending unpleasant odors. They all testify that they anticipate their property being depreciated to a value from fifteen hundred to three thousand dollars, and have •asked the court for relief to protect •their investments.”

Opponents apparently had no objection to the commercial zoning classification of the property as it formerly existed but their objection was to the enlargement of that area.

The ordinance under consideration is attacked as unreasonable, arbitrary and capricious and as having no substantial re-' lation to the public welfare. The fact's established by the record rebut this contention. Typical of the testimony introduced oh this point is that of the then Mayor of the City of Shreveport, Mayor Fant, who had lived within a mile of this area for a number of years and was familiar with this section of the City, its growth and needs. According to his testimony, this locality lies within the direction in which 'the City was rapidly developing. Complaints had been made by residents of the area to him as mayor concerning the lack of shopping facilities. ‘ By consistent study, the mayor had acquired considerable knowledge and information of community development, zoning, and community shopping districts. From his intensive study of this location, its development, needs and progress, he concluded a community shopping center was justified. In his testimony he gave as his opinion that the area proposed to be rezoned was the proper location for such a community center.' Among the facts considered by him and upon which he based his determination are the central location of the proposed center, the population growth of the area, the thoroughfares making it accessible to the area and population to be served and the distance of eight-tenths of a mile to the, nearest other shopping center. Considered also was the adequacy of the development program to fulfill not only the present bu,t the future growth and development of the ar.ea, and particularly with reference to its off-street parking area. Such a development in his opinion was. much to be preferred to the small commercial centers lacking' in many desirable features, such as an off-street parking area. His was a general over-all view of the community and of its ' present and future needs. The area was said to contain - a population of 11,000.

Youree Drive, due to the re-routing of old Highway 20, now designated Highway One, will become a main thoroughfare for traffic entering the City from Alexandria^' Natchitoches and other localities-west of Red River. Southfield Road is likewise becoming a main. thoroughfare running east and west and continuing through the western portion of the City to Greenwood and other points on through-highways. The importance of this intersection as a center of development is well established.

Similar testimony was given by members of the City Council and of the Planning Commission. The reasons advanced by them are substantial reasons and bear a substantial relation to the public needs and welfare. They were sufficient, in our opinion, to justify the action taken by the Planning Commission in recommending that the property be rezoned. Likewise, they afford ample grounds for the passage of the ordinance by the City Council. Where there is any substantial basis or reasons for the action taken, it is not the prerogative of a court to take issue with the members of the Council and substitute its own judgment.

In State ex rel. Civello v. City of New Orleans, 154 La. 271, 283, 97 So. 440, 444, 33 A.L.R. 260, wherein the main question presented was whether a zoning ordinance for business establishments in a designated residential district was a valid exercise of the police power, the court stated:

“If the municipal council deemed any of the reasons which have been suggested, or any other substantial reason, a sufficient reason for adopting the ordinance in question, it is not the province of the courts to take issue with the council. We have nothing to do with the question of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot — not the courts.”

Justice Sutherland of the United States Supreme Court quoted extensively from the .Civello case in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303, and approved the ruling of the Louisiana Supreme Court. In that case we find this comment:

“Building zone laws are of modern origin. They began in this country ■about 25 years ago. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities.Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit- street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, t for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.
■ “The ordinance now under review, - and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line .which in this field separates the legitimate from the illegitimate assumption of power is not capable of' precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. In solving doubts,, the maxim ‘sic utere tuo Ut alienum non laedas,’ which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew. And the law of nuisances, likewise, may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of,the power. Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question-whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. Sturges v. Bridgeman, L.R. 11 Ch. [Div.] 852, 865 [— C.A.]. A nuisance, may be merely a right thing in the-wrong place, like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice v. [People of State of] New York, 264 U.S. 292, 294, 44 S.Ct. 325, 68 L.Ed. 690 [694]."

In Radice v. People of State of New York, supra [264 U.S. 292, 44 S.Ct. 326], cited in the Euclid case, the United States Supreme Court stated:

“Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the Legislature ; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set tip his opinion" in respect of it against the opinion of the'' lawmaker. The state Legislature' here cletermined that night employment of the character specified was sufficiently detrimental to the health and welfare of Women engaging in it to justify its suppression, and, since we are unable to say that tfie finding is clearly unfounded, we are precluded from reviewing the legislative determination. Holden v. Hardy, 169 U.S. 366, 395, 18 S.Ct. 383, 42 L.Ed. 780 [792].”

In City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503, 505, wherein the defendant on being charged with flying an airplane less than 1,000 feet above the waters of Cross Lake and bringing it to rest on the waters thereof, in violation of. a City ordinance, plead that the ordinance was illegal, ultra vires and unconstitutional upon the alleged grounds that the ordinance was not primarily adopted for the prevention of pollution and contamination of the waters of the Lake and that airplanes posed no 'real or. substantial threat to the purity of these waters, the. court stated:

“We are not concerned with the motives which induced the council to adopt the ordinance, -but only with the power of the city to adopt it. The motives of a municipal council cannot be' inquired into for impugning the validity of a public ordinance. City of New Orleans v. Griffin, 147 La. 1089, 86 So. 554. It is sufficient if the ordinance as a whole bears a rational relation . to the protection of these waters from pollution. and contamination. We cannot interfere with the city in the exercise of its powers ,to protect the health of its citizens from pollution of these waters. in the absence of a clear abuse of its discretion, unless the ordinance is manifestly unreasonable and oppressive. While the city has not been granted full police power, it has been granted sufficient police power to prevent the pollution and contamination of these waters, in order to protect the health of its citizens. . Its ■ authority to pass necessary ordinances for this purpose is governed by the rules applicable to the exercise of police po.wer. It is riot within the province of the courts, except in clear cases to interfere with the exercise of- a power, imposed by law in a municipal corporation, to pass ordinances relating to objects within the proper domain of the police power. This is especially true when the object is the protection of public health. Among the police powers none are more important than that for the protection of public health. It is the function of the legislative branch of the government to exert "what are known as the police powers of the state and to determine primarily what measures are appropriate dr needful for the protection of public health. City of New Orleans v. Schick, 167 La. 674, 120 So. 47. The Schick case is also authority that courts will not interfere with the action of local legislative authority in the exercise of a police power, unless it is plain and palpable that such action has no real or substantial relation to public health or safety or general welfare. The city has been granted sufficient police power to protect the health of its citizens from the pollution or contamination of its water supply and we are not prepared to say that the city abused its discretion in adopting the ordinance, or that it has no substantial relation to the pollution , or contamination of the waters of the lake.”

The court, in Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, 145, after quoting Section 2.01 of the Citjr Charter relative' to the exercise of powers concerning the general welfare of the City, further stated:

“Accordingly,-if fluoridation of the water supply bears any reasonable relation to the public health, it can be undertaken by the city under the express provisions of this section of its charter. Moreover, it is well settled that courts will not interfere with the legislative authority .in the exercise of its police power unless it is plain and palpable that such action has no real or substantive relation to the public health or safety or general welfare. City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503; City of Shreveport v. Bayse, 166 La. 689, 117 So. 775. There also exists a presumption that an ordinance adopted under the police power of the state is valid, and the burden of proving the contrary is on him who asserts the invalidity or nullity. City of New Orleans v. Beck, 139 La. 595, 71 So. 883, L.R.A.1918A, 120; Ward v. Leche, 189 La. 113, 179 So. 52; State v. Saia, 212 La. 868, 33 So.2d 665; State v. Rones, 223 La. 839, 67 So.2d 99.”

In State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613, 616, wherein relator owned certain real estate located at the corner of Baronne and Bordeaux Streets in the City of New Orleans, which was and had been used for many years as a retail grocery store, the operation of which was prohibited by a zoning ordinance adopted in 1927, the court stated concerning the attack upon the ordinance as unconstitutional, arbitrary, and unreasonable, and constituting a taking of his property without due process of law:

“That- zoning ordinances are within the police power of municipal corporations and are not violative of any constitutional- guaranty, state or federal,is now too well settled to require discussion or citation of authorities.
“And equally well settled is the rule that zoning ordinances will not be declared unreasonable and arbitrary, unless they are found to be plainly and palpably so.
• “In the instant case there is nothing-on the face of the ordinance and nothing in the record on which the court would be authorized or justified in declaring the attacked provision of the-ordinance harsh, arbitrary, or unreasonable.
******
“The matter is left to the sound judgment and discretion of the municipal authorities, and this discretion will not be interfered with by the courts, unless its exercise is found to be manifestly and palpably hostile and unreasonable.”

The jurisprudence of Louisiana is, therefore, well settled that zoning ordinances are within the police power of municipal corporations and do not violate any constitutional guaranty, and that such ordinances will not be declared unreasonable and arbitrary, unless they are found to be plainly and palpably so.

From Zoning Law and Practice By Hokley, Vol. 1, 1953 Edition, Sec. 185, Page 476, an excerpt reads as follows:

“In enacting a zoning ordinance the police power is exercised and there is no justification for holding the classification of property unreasonable unless it appears palpably arbitrary or unless there is no basis or reason to support it.”

The author cites in support of this proposition twenty-one recent decisions from various courts of the country. The author also states, on Page 185 in Section 84:

“No proposition of zoning law could be better settled, we think, than that a municipality has a right to amend its zoning ordinance so long as the amendment is reasonable and follows the procedure of the enabling statute making provision for a comprehensive ordinance.”

Cited as supporting this proposition are the following cases: Hendlin v. Fairmount Construction Co., 8 N.J.Super. 310, 72 A.2d 541; Johnson v. Evangelical Lutheran Church of Messiah, 79 Ga.App. 671, 54 S.E.2d 722.

It would appear that the same reasons and basis justifying zoning of an area in the first instance would likewise justify a change in classifications, if, and when, conditions and circumstances warranted and justified the same. The grounds justifying either, ordinarily,- would have the same application to both situations. •

The Supreme Court of Errors of Connecticut, the highest appellate court in that State in civil matters, had before it a very similar situation in ■ the case of Bartram v. Zoning Commission of City of Bridgeport, 136 Conn. 89, 68 A.2d 308, 311, wherein'one Rome petitioned for a change in classification of certain property for residential use to' use for commércial purposes as a shopping center. ' When the zoning was originally adóptéd • iñ that City, the area was sparsely settled and contained much open land. For many years people desiring to get away from the noise' and congestion of the City proper built their homes in that locality! Rome made the aforesaid application for a change in classification so as to build a shopping center very similar to • the one proposed in the matter before us. Opposition was made very much the same as the opponents made in this case. The zoning authority gave as its reasons that the location' for the proposed community center' was at least a mile from any other shopping center; that there were few residences that would be directly affected by the change, and that the regulations pertaining to liquor restrictions and off-street parking would alleviate the congestion in centralized shopping districts. The court upheld the reclassification of the property and stated:

“The property of no one was- taken by the commission’s decision; nor is there any finding or, indeed, evidence that property values would be affected. * * * Property owners in the neighborhood had no right to a continuation of the existing situation which could be effective against a decision by the commission reached legally and properly. ' The state, through the authority it vests in zoning authorities, ‘may regulate “any business or the use of any property in the interest of the public health, safety, or welfare, provided this'be doné reasonably. ‘ To that- extent'the public interest is'supreme and the private interest, must yield.’ Town of Windsor v. Whitney, 95 Conn. 357, 366, 111 A. 354, 356, 12 A.L.R. 669 * * *.
“How best the purposes of zoning can be, accomplished in any municipality is primarily in the discretion of its zoning authority; that discretion is a broad one; and unless it transcends the limitations set by law its decisions are subject to review in the courts only to the extent of determining whether- or not it has acted in abuse of that discretion. First National Bank & Trust Co. v. Zoning Board of Appeals, 126 Conn. 228, 237, 10 A.2d 691. A court is without authority to substitute its own judgment for that, vested by the statutes in a zoning authority. Piccolo v. Town of West Haven, 120 Conn. 449, 455, 181 A. 615; Mrowka v. Board of Zoning Appeals, 134 Conn. 149, 155, 55 A.2d 909. In view of the facts present in this case, the trial court could not properly find that the policy which determined the decision of the commission would so clearly fail to serve the proper purposes of zoning in the city that the court might set aside that decision; nor do the facts show that it was unreasonable to apply that policy in. the situation before us * * (Italics ours.)

We, therefore, conclude that, substantial basis or reasons having been established for the adoption of the ordinance, it is not amenable to the attack here made upon it. In view of the substantial basis and reasons for the adoption of the ordinance, the court would be unjustified and unauthorized in substituting a contrary opinion for that of the Planning -Commission or of the Commission Council.

Another attack upon the ordinance is that it is discriminatory in that it denies equal protection of the law. Plaintiffs, in brief, argue that inasmuch .as a similar area in the southwest corner of the aforesaid street intersection was not likewise zoned for a similar commercial purpose, a discrimination exists sufficient to warrant, annulling the ordinance. We do not so construe the ordinance as discriminatory for that reason. Neither are we certain that plaintiffs are entitled to urge the question. It has not been shown or pointed out that the owners of property in that area desire that said property be reclassified or that they have petitioned for such reclassification and have been denied in their application. The question of whether that property should be reclassified is not now before us and, so far as the record shows, the matter of its reclassification has never been brought to the attention of either the Planning Commission or of the ■ Municipal Council. The mere act of zoning presupposes the establishment of a line of demarcation between areas placed in different .classifications or from that placed in no classification. The determination of the limits or boundaries of such classified areas is also a legislative function, with which the courts are not concerned, except where they are unreasonable, arbitrary or capricious or lack some reasonable, substantial basis for their location. In other words, the same rules apply to the establishment of the boundaries as apply in zoning the property itself. We do not understand that the difference in use of property on one side of a line of classification from that of the use of property on the opposing side constitutes such discrimination as would affect the validity of the zoning ordinance. As stated, the line. of demarcation must exist somewhere, and unless shown, to have been. unreasonably or arbitrarily placed so as to include or exclude property without reason or a substantial basis therefor, its establishment could not be said to be discriminatory. No such showing has been made in this case. Therefore, we conclude that the ordinance is not discriminatory or that it denies equal protection of the law.

It is lastly contended that in adopting the ordinance the constitutional guaranty of due process was violated, both procedurally and substantively. Plaintiffs contend that the formalities required to be adhered to were not complied with by the Planning Commission in holding a public hearing or in making its recommendation to the Municipal Council. Defendants contend, however, that the statute relied upon by plaintiffs is not applicable to the City of Shreveport, but, if applicable, then that all of the formalities prescribed as a prerequisite to the valid enactment of the zoning ordinance under attack have been fully met.

The City’s contention appears to possess considerable merit. Section 1 of Act 27 of 1918, LSA-R.S. 33:4731, reads as follows :

“Section 1. Be it enacted by the General Assembly of the State of Louisiana that the municipal authorities of Cities of more than 50,000 inhabitants shall have authority by ordinance to define and regulate the kind, style and manner of construction of buildings and other edifices which may be erected on certain designated streets and thoroughfares and to permit or prohibit the establishment and operation of businesses and trades within designated limits.”

Pursuant to this statutory authority, the City of Shreveport, by adopting Ordinance No. 51 of 1935 amending Ordinance 100 of 1925, had rezoned Lot 14 of Waverly Place Subdivision from residential use, “Z-A”, to commercial use, “Z-D”. In Collett v. City of Shreveport, La.App., 168 So. 346, 348, owners of property adjoining the lot which was rezoned from residential to commercial attacked the validity of the ordinance, contended, among other things, that the ordinance did not comply with the provisions of Section 3 of Act 240 of 1926, LSA-R.S. 33:4723, requiring that such regulations he made in accordance with a comprehensive plan, but, on the contrary, that -said •ordinance was purely a local affair and passed at the request of individuals for their selfish purpose, not in accordance with any plan as comprehended by said Act No. 240 of 1926. It will be noted, however, that under Section 12 of said Act, LSA-R.S. 33:4721 note, that its provisions did not repeal or limit the power delegated to a city -of over 50,000 inhabitants'by Act 27 of the Legislature of Louisiana of 1918 but were to be considered only as supplementary thereto. This court stated:

“The city of Shreveport has a population of over 50,000 and, unless this act has been repealed, it is applicable here. Under the above-quoted act, there was no restriction placed upon the municipal authorities of the city of Shreveport as to their right to zone property within its limits -and, by doing so, d.eclare that in certain areas there shall be conducted and operated certain businesses and trades. It does not require that before doing this, anything be done other than the passage of an ordinance to that effect.”

The statute upon which plaintiffs rely was formerly Act No. 240 of 1926, Section 6, now LSA-R.S. 33:4726. Under this section it is suggested that when a change is proposed in the zoning law of the ordinance, three requisites must be complied with, (1) there must be a public hearing; (2) the zoning commission must make a report of its findings and recommendations, and (3) the legislative body must not act until it receives the'report of the commission. This section of the Revised Statutes reads as follows:

“In.order to avail itself of the powers conferred by R.S. 33:4721 through R.S. 33:4729 the legislative body of the municipality, shall appoint a zoning commission whose function it shall be to' recommend the boundaries of the various original districts as well as the restrictions and regulations to be enforced therein, and any supplements, changes or modifications thereof. Before making any recommendation to the legislative body of the municipality the zoning commission shall hold a public hearing. Notice of the time and place of the hearing shall be published at least three times in the official journal of the municipality, or if there be none, in a paper of general circulation therein, and at least ten days shall elapse between' the first publication and date of the hearing. After the hearing has been held by the zoning commission it shall make a report of its findings and recommendations to the legislative body of the municipality. The legislative body shall not hold its public hearings or take action until it has received the final ’report of the zoning commission. ' 1 ■ ■
“Where a municipal planning commission exists it shall be the zoning commission.”

From the facts established by the record plaintiffs’ complaints are unjustified. The minutes of the Planning Commission reflect that at a meeting on February 5, 1952,'in-tervenors, Chris Demo’pulos and Alexander Mijalis, owners’of the property in question, presented their application to rezone the property adjacent to the, property already zoned D-2. Thereafter, the Planning Com-missio.n, which is vested with the authority of a zoning commission, held the following meetings relative to this application, the first of which was held February 11, 1952, when the Commission approved the application for a public hearing. This public hearing was held on March 4, 1952, when a petition in, opposition to the application for rezoning was presented. On March 10, 1952, the' Commission postponed action for further study. It appeared at that time that there was a question of a drainage problem which affected the property 'to be zoned, and at the request of one of the commissioners action was delayed pending the correction of that problem.

At a meeting on January 26, 1953, applicants were instructed to supply the Commission with more detailed information. On March 9, 1953, a motion was made that the application be recommended to the Municipal Council for approval. However, on April 24, 1953, the Commission held a public hearing, which was attended by 16 resident-property owners and their attorney, all of whom testified in opposition to the recommendation. There five others present who did not testify. The Commission met again on April 27, 1953, and discussed the subject matter and held up action for further study. Following, on May 11, 1953, the Commission met and voted on the matter, and all.members recommended approval of the application, except one member who recused himself. On May 11, 1953, after the approval of the intervenors’ application, the Planning Commission furnished the City Council with its recommendations of approval and the minutes of the second public hearing held on April 24, 1953, for whatever action it might decide to take. On May 13, 1953, the Council passed" Ordinance No. 49 of that year zoning the property.

Ordinance No. 80 of 1948, the general zoning ordinance, Section 21, Paragraph B 2 provides that where changes are proposed by the City Planning Commission, the minutes of the public hearing, together with the Commission’s recommendation, shall be furnished the City Council for its consideration and action. Where, however, a change' has been proposed by any person, firm or corporation, the Commission shall likewise furnish the City Council for its consideration and action the minutes of the public hearing, together with its recommendations, as if the change was proposed by the Commission itself. Where, however, after holding a preliminary hearing, it should reject the application, then it is required to communicate to the City Council its reasons in writing for such rejection.

The trial court found that the ordinance in question was adopted after reasonable and substantial compliance with the requirements of the statute and of the aforesaid general zoning Ordinance of the City of Shreveport and upheld its validity. Our review of the record has disclosed no manifest error in his findings and conclusions reached on this point.

Accordingly, it is our opinion that the Planning Commission complied with all the conditions precedent to the creation of an amendment to the zoning ordinance by affording to plaintiffs full and ample opportunity to present their views, and it was only after repeated meetings at which the matter was most carefully considered that the application for the zoning change was recommended to the City Council. The Planning Commission was not required to report any specific findings of fact or a detailed analysis of their findings iri making its recommendations to the City Council. The evidence establishes to our satisfaction that the matter was handled entirely fairly as to the rights of plaintiffs and all others' concerned and that the procedural requirements were properly complied with.

For these reasons, the judgment appealed is affirmed at appellants’ costs.

Affirmed.


text:
    Tom PENFIELD, Plaintiff-Appellant, v. Mary Wendt Penfield SOWEL, Defendant-Appellee.
    No. 8474.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.
    Writ of Certiorari Denied March 26, 1956.
    Donald C. Dickson, Shreveport, for appellant.
    Robert G. Pugh, curator ad hoc, Shreveport, for appellee.
   AYRES, Judge.

Plaintiff instituted this action' against his former wife, seeking a judgment decreeing him to be the proprietor in full ownership of certain real estate purchased by- him in his name during the regime of the community of acquets and gains formerly existing between' them. Defendant, a nonresident, was cited through a curator ad hoc. The case was submitted to the trial court on evidence adduced on an attempted Confirmation of default.

From a judgment rejecting his demands and dismissing his suit, plaintiff has appealed to this court.

Plaintiff alleges that after he acquired the real estate of which he prayed to be recognized as the owner, the community of acquets and gains between him and his wife was terminated by judgments in separation and divorce proceedings dated more than 38 years prior to the institution of this suit; that in neither of these proceedings nor in' the judgments was said property mentioned and that defendant has never at any time claimed or accepted her interest in the com-' munity estate. It is plaintiff’s position that since defendant has never accepted the community and has made no claim, thereto for more than 30 years, “She has lost her right to claim any part of said lands,” and “That petitioner has acquired same by the operation of prescription.”

The opinion of the trial' court discloses that various deeds and documents, as well as the'proceedings and judgments in the separation and divorce proceedings, were introduced and filed in evidence and that Certain oral evidence was "adduced, none of which is contained in the transcript lodged in this court. The record, therefore, does not contain a statement of facts, assignment of errors or a note of evidence. However, where a complete summary of the facts, the conclusions based thereon and a discussion of the contentions of the parties and the law involved are contained in the trial judge’s written reasons for judgment, such written reasons may be accepted as a “statement of facts” as required by Code of Practice art. 603, when such statement is found sufficient for a determination of the questions involved. Rosen v. Shingleur, 47 So.2d 141, 144. We think the written reasons assigned by the trial judge are sufficient and adequate for a determination of the issues presented in this case.

The property, consisting of an undivided one-half interest in a tract of 15 acres, more or less, situated in Caddo Parish, Louisiana, was acquired by plaintiff in a cash deed dated in 1914. In the deed plaintiff was denominated the “husband of Mary Wendt”. The judgment of separation from bed and board was rendered between these parties in 1915 and a judgment of divorce between them rendered and signed in 1917. In none of these proceedings was any reference made to this property. On the trial of this case plaintiff testified that his wife had no knowledge of the purchase of this property. If she ever had any knowledge thereof prior to the filing of this suit, the evidence did not disclose it. According to plaintiff, he paid the taxes on the property since its purchase and had granted a lease on it. There is no evidence or showing that plaintiff or his predecessors in title ever had or exercised any physical or corporeal possession over this property.

In his written reasons assigned in this case, the trial judge stated:

“In our opinion, plaintiff’s suit should be dismissed. In the first place, the wife did not lose her right to her interest in the community property by failing to formally accept the community. Although former Article 2420 of the [LSA-] Civil Code which provided that ‘the' wife, separated from bed and board, who has not within the delays above fixed (meaning thirty days), to begin from the separation finally pronounced, accepted the community is supposed to have renounced the same,’ the Supreme Court in Phillips v. Phillips, 160 La. [813] 814, 107 So. 585 [586], held:
“ ‘Our opinion is that that article of ■the Code has been abrogated by the Act 4 of 1882 [LSA-R.S. 9:2821], allowing the wife, when the marital community is dissolved by a decree of separation from bed and board, or divorced * * * the right to accept the community under the benefit of inventory “in the same manner and with the same benefits and advantages as heirs are allowed by existing laws to accept a succession under the benefit of inventory.” ’
“This rule of the Phillips case was .approyed in Conrad v. Conrad, 170 La. 312, 127 So. 735, and again in Rawlings v. Stokes, 1940, 194 La. 206, 193 So. 589.
“But, plaintiff cites and relies upon Article 1030 of the [LSA-] Civil Code which provides:
“ ‘The faculty of accepting 1 dr • renouncing a succession becomes barred by the lapse of time required for the longest prescription of the right to im-movables.’
“In construing this article, the Supreme Court, in the case of Dew v. Hammett, 150 La. 1094, 91 So. 523 [524], said-:
■ “ ‘Article 1030 of the Civil Code declares that the faculty of accepting or renouncing a succession becomes barred by-the lapse of time required for the longest prescription of the rights to immovables. And articles 940, 941 and 942, provide' that a forced heir succeeds to an inheritance at the moment of the death of his parent and without having to take steps to gain possession of the inheritance. The right of possession which the parent had continues in the legal heir, as if there had been ño interruption. In view of the foregoing codal provisions, this court was constrained, in interpreting article 1030, to say, in Generes v. Bowie Lumber Co., 143 La. 811, 79 So. 413:
“ ‘ “How can it be said, then, that a forced heir, who is vested with the right of possession of the property of the succession by operation of law and without having to accept the succession, loses ‘the faculty of accepting’ by the prescription of thirty years? * * *
“ ‘ “But the legal heir who has not renounced * * * and in whom the law has vested seizin * * * without requiring an acceptance * * * has no other right or faculty to lose by prescription than the right or faculty of renouncing.” ’
“ ‘So long, then, as the property of a succession to which a forced heir is called by operation of law has not been acquired by anyone else in some manner provided' by law, the right of recovery remains vested in him. It is an axiom that a party cannot lose his title without at the same time some other party acquiring it. We affirm the ruling in the Generes Case, supra, and the question that an heir has no other right or faculty to lose by prescription under article 1030 of the Code than the right or faculty of renouncing may be considered set at rest. To maintain the prescription of 30 years ac-quirendi causa, it is conceded that the possession must not only be continuous, peaceable, and uninterrupted, but it must, be under a. claim as owner. Gerrold v. Barnhart, 128 La. 1099, 55 So. 688; Liles v. Pitts, 145 La. 650, 82 So. 735.
“This decision in Dew v. Hammett, supra, was approved in Dileo v. Dileo, 217 La. 103, 46 So.2d 53, 56 (Supreme ■Court) and Rodriguez v. Shroder, 77 So.2d 216, 223 (Orleans Appeal, cer-•■tiorari denied by the Supreme Court, -January 31, 1955).
“Plaintiff’s next contention that he has acquired his former wife’s interest in the property by the operation of prescription is untenable. He relies upon a statement from the syllabus by the Court in the case of Schultze v. Frost-Johnson Lumber Company, 131 La. 956, 60 So. 629, that, ‘An heir who permits ,30 years to elapse without asserting any rights to a succession is barred from thereafter doing so by prescription.’
“In Dileo v. Dileo, supra [217 La. 103, 46 So.2d 56], the Supreme Court said:
“ ‘Defendants contend that plaintiffs did not accept the .succession of Santo Dileo within thirty years from his death in 1914 and therefore they must be considered to have renounced it. In support of the proposition, the case of Schultze v. Frost-Johnson Lumber Co., 131 La. 956, 60 So. 629, is cited.
“ ‘The' point is not tenable. It is the firmly established jurisprudence that forced heirs do not lose by prescription their right of inheritance in failing to accept the succession within thirty years because, if they -have not renounced it, they are presumed to have accepted it. Le mort saisit le vif. Articles 940, 941, Civil Code; Generes v. Bowie Lumber Co., 143 La. 811, 79 So. 413; Bendernagel v. Foret, 145 La. 115, 81 So. 869; Dew v. Hammett, 150 La. 1094, 91 So. 523 and Tillery v. Fuller, 190 La. 586, 182 So. 683. The obiter dictum to the contrary in S duali-ze v. Frost-Johrison Lumber Co., supra, upon which -defendants depend, was based on the ruling in Succession of Waters, 12 La.Ann. 97, which was specifically overruled in Generes v. Bowie Lumber Co., supra.’ ”

However, under the facts and -circumstances of this case wherein plaintiff had concealed from his former wife the acquisition of this property as a part of the community of acquets and gains formerly existing between them, pleas of prescription, otherwise tenable, are inapplicable here.

In disposing of a plea of 30 days allowed by LSA-C.C. art. 2420, for a wife to accept the community on its dissolution by divorce, which Article was abrogated by Act 4 of .1882,.-LSA-R.S. 9:2821, and so held in Phillips v. Phillips, supra, and which was finally repealed by Act 49 of 1926, the Supreme Court, in Cuselich v. Cuselich, 159 La. 652, 106 So. 20, 21, with reference to applying the prescription directed against the wife, stated:

“It would be against good conscience, however, to apply the rule literally to a case where a husband has concealed all or a portion of the community property with the object of defrauding his wife out of her just share of said property. Fraud vitiates all things, and, whatever guise it may assume, one upon whom it had been perpetrated is not remediless when it is exposed. We must give effect to this principle in construing the codal provisions. In doing so we are bound to hold, as we do, that wherever a marriage has been dissolved by a judgment of divorce, and the. husband has practiced a fraud against his wife affecting her share of the community property, the delay within which she must accept the community does not begin to run until, said community has been restored in its integrity.”

Whether the plea of prescription is 30 day or 30 years is a matter of no importance and does not alter the principle involved. Consequently, should plaintiff’s plea of prescription otherwise possess merit, it loses its. force and effect in the face of the fraud acknowledged by plaintiff in this case.

The trial judge correctly disposed of defendant’s plea of 30 years’ acquisitive prescription. He stated:

“As pointed out in Dew v. Hammett, supra, ‘The burden of proof is on-him who pleads prescription of 30 years to show that his possession began and continued as owner and adverse to the true owner.’ In the case at bar plaintiff’s possession, which began with his purchase during the marriage and community between him and defendant, was not of the whole, but only of an undivided interest in the property. Phillips v. Phillips, supra. It so remained after the separation and divorce (there being ho evidence-to the contrary), the wife'having been seized of the right to possess her undivided half as in the case of the heir called to a succession. They were co-owners and plaintiff has failed to show adverse possession necessary to support acquisitive prescription.”

Accordingly, for the reasons herein assigned, the judgment appealed is affirmed at appellant’s cost.

Affirmed.