author: PONDER, Justice. SIMON, Justice SIMON, Justice. PONDER, Justice

text:
    233 La. 444
    William R. SESSUM v. Don C. HEMPERLEY et al.
    No. 42722.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Dissenting Opinions April 25, 1957 and June 26, 1957.
    On Rehearing June 10, 1957.
    Rehearing Denied June 28, 1957.

      Bullock & Bullock, Shreveport, for defendants-appellants.
    Johnson & Morelock, Shreveport, for ap-pellee-respondent.
   PONDER, Justice.

Plaintiff brought an action in boundary-under Article 823 of the LSA-Civil Code alleging that the boundary line between his property and that of the defendants had never been fixed and prayed for a survey- or to be appointed by the Court to fix the boundary line. It was alleged by the plaintiff that the defendants refused to amicably settle the question thus making the action necessary. Defendant filed pleas of 10 and 30 years prescription under Article 852 and 853 or the LSA-Civil Code alleging that a fence was erected in 1904 and recognized by the parties to be the boundary, thus claiming beyond their title and in diminution of plaintiff’s title. The trial judge rejected the defendants’ pleas of prescription and on appeal to the Court of Appeal, Second Circuit, defendants obtained a reversal of this judgment. A rehearing was granted by the court of appeal and the judgment was reversed and judgment entered for the plaintiff. On application of defendants, this Court' granted writs of review and the matter is now submitted for our determination.

' Relators-defendants allege that the court of appeal erred in overruling their pleas of prescription; in holding that consent to the fence as a boundary could not be inferred from the circumstances; and in failing to recognize that active consent to a visible boundary may form the basis of 10 years prescription.

The plaintiffs land lies in the SW/4 of the SE/4 of Section 14, township 22N, R. 15W and the defendants land lies in the SE/4 of the SW/4 of Section 14, township 22N, R. 15W. It is the contention of the defendants that their properties have been separated from that of plaintiff by a fence which has been in continuous existence since 1904 and that hence their pleas of 10 and 30 years prescription under Articles 852 and 853 of the LSA-Civil Code should be sustained.

Plaintiff contends that courts have consistently held that the intention of the parties is an essential requirement in construing 30 year boundary prescription under Article 852 of the LSA-Civil Code. Hester v. Smith, La.App., 72 So.2d 549; Arabie v. Terrebonne, La.App., 69 So.2d 516; Jones v. Dyer, La.App., 71 So.2d 648; Williams v. Bernstein, 51 La.Ann. 115, 25 So. 411; Simmons v. Miller, La.App. 170 So. 521. Plaintiff alleges that the defendants carry the burden of proving the necessary facts (Sattler v. Pellichino, La.App., 71 So. 2d 689; Hester v. Smith, La.App., 72 So.2d 549), and that the defendants have failed to carry this burden as held by both the lower court and the court of appeal.

Relators (defendants) contend that acquiescence in a visible boundary, without an express agreement or understanding, may form the basis of 30 year prescription. Citing Article 852 of the LSA-Civil Code; Opdenwyer v. Brown, 155 La. 617, 99 So. 482; Wait v. Pearson, La.App., 88 So.2d 43; Crow v. Braley, La.App., 47 So.2d 357; Blanchard v. Monrose, 12 La.App. 503, 125 So. 891; DeBakey v. Prater, La.App.,. 147 So. 734; Cutrer v. Dyson, 11 La.App. 472, 123 So. 904; Jones v. Dyer, La.App., 71 So.2d 648. Relators contend that active consent to a visible boundary may form the basis of 10 year prescription. Article 853 of the LSA-Civil Code; Blanchard v. Monrose, 12 La.App. 503, 125 So. 891; Picou v. Curole, La.App., 44 So.2d 354; Opdenwyer v. Brown, 155 La. 617, 99 So. 482; Kobler v. Koch, La.App., 6 So.2d 55.

It must first be established if the two tracts have been separated by a visible boundary for thirty years or more. The evidence adduced at the trial is lengthy and very conflicting on this point. There is no doubt that following his purchase of the property (in 1903) James M. Hawkins early in 1904 erected a fence between his land and the property of his brother-in-law Jacob R. Hale. Since that time the property has been acquired by sale and partition by various members of the family and in-laws. The real dispute is whether the fence was erected with the consent of Hawkins and Hale to erect it as a boundary dividing their two tracts and whether these tracts have been divided by this visible boundary for thirty years or more. On these points the testimony is very contradictory, it being the position of the plaintiffs that there was no consent to the erection of the fence and that the fence did not exist for the whole 900 feet for thirty years, while the defendants claim that Hawkins caused a survey to be made by another member of the Hale family (not in accordance with law) and the fence was erected as a result thereof and has been in existence and maintained for thirty years or more.

After an exhaustive and careful reading of the testimony, we have concluded as did the trial judge that from the public road, the south line of plaintiff’s tract, there has been no fence for 50 or 60 feet north, probably since 1925 when A. H. Stanberry, Jr., acquired it. Although there is some evidence that the fence existed the full length of the properties for the required length of time, we are not convinced that the burden of proving this fact has been met with the certainty required by law and hence we must conclude that the plea of thirty year prescription was properly overruled. See Broussard v. Winn, La.App., 41 So.2d 486.

There remains for consideration the plea of ten year prescription under Article 853 of the LSA-Civil Code relied upon by the defendants. In support of their position they cite and rely upon Article 853 of the LSA-Civil Code; Blanchard v. Monrose, 12 La.App. 503, 125 So. 891; Picou v. Curole, La.App., 44 So.2d 354; Opdenwyer v. Brown, 155 La. 617, 99 So. 482; and Kohler v. Koch, La.App., 6 So.2d 55.

It is contended by defendants-relators that there has been active consent to the visible boundary for more than 10 years.

While relators contend that a survey was made by Jim Hale (brother of Jacob R. Hale) and concede that it was not a legal survey as contemplated by the articles of the code, they urge that this evidences consent to the marking of the boundary. A consideration of all of the testimony shows no consent or acceptance to the erection of the fence as a boundary between the two tracts of land.

In one of the cases relied upon by rela-tors, namely Blanchard v. Monrose, supra, the court held: “It, therefore, appears to us that the prescription of 10 years, as provided in R.C.C. art. 853, is not applicable unless the boundary has been fixed by a surveyor and an error has been committed, or unless the boundary has been fixed by the consent of the parties or by their active acquiescence with a realization of the fact that they were actually consenting to a boundary and acquiescing in the location thereof, and that the mere passive failure to object to the location of a fence cannot form the basis of a plea of prescription of ten years.” [12 La.App. 503, 125 So. 893.] (Italics ours.) In Opdenwyer v. Brown, supra, it was held that if visible bounds actually exist, which have been placed there by consent, the action to rectify any alleged error in the location thereof must be brought within 10 years or it will be prescribed under Article 853, LSA-C.C.

It is likewise held in the other cases cited by relators, Picou v. Curóle and Kobler v. Koch, that it is necessary to show that the erection of the visible boundary was done with the consent of the owners and the intent to regard it as a boundary.

The plea of 10 years prescription cannot be sustained upon the Hale survey, as it was not made in conformity with the articles of the code neither can it be sustained on the ground of consent by the then owners, for considering all of the testimony it shows no consent or acceptance to the erection of the fence as a boundary between the two properties.

We do not think that the evidence herein is sufficient to show consent or acquiescence as regarded in law to maintain the plea of prescription of ten years to the action of boundary.

For the reasons assigned, the judgment is affirmed.

SIMON, Justice

(dissenting).

After carefully reviewing the views expressed in the majority opinion as well as the several authorities cited therein, I am convinced that the holding of the majority does violence to the applicable codal articles and our jurisprudence.

This is purely a suit brought under the provisions of LSA-C.C. Art. 823 to establish a boundary line. The validity of any written title is in no way involved. Defendants rely upon LSA-C.C. Art. 852 in pleading the prescription of 30 years, the provisions of which article apply only in an action in boundary. Where title is claimed the codal article, supra, is not applicable. It cannot be denied that the boundary line as fixed in the respective written titles of the litigants is the ideal boundary, nor is there any claim set up that those titles conflict in any manner with each other.

Defendants contend that they and their authors, having had the possession of the strip of land in controversy herein, have acquired the ownership thereof by the pre-scripton of thirty years.

Article 852 of our LSA-C.C. reads: “Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one cannot prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.”

There is no dispute on the facts found by the trial judge, the intermediate appellate court and this Court, which briefly stated, are as follows:

In 1860 one George Hale acquired all of the property now involved in this litigation, and following his death it was conveyed to one Jacob Hale in 1894. In October of 1903 Jacob Hale sold to James Hawkins a 40 acre tract therefrom, its western boundary line being described therein as the center sectional line. Immediately following this acquisition Hawkins caused the property to be surveyed and in February, 1904 built a fence along the line thus established by the survey. It is conceded, however, that the survey was not conducted according to our codal requirements and that it encroaches on the Jacob Hale property presently owned by plaintiff, being a strip varying from 90 to 113 feet in width; thus, diminishing the Jacob Hale title by some two acres of land.

James Hawkins died in 1930, and his children inherited his estate. One of his surviving daughters, a defendant herein, still lives on the portion inherited by her. Another daughter sold her inherited portion in 1952 to Don Hemperley, the co-defendant in this proceeding.

Subsequent to 1904 Jacob Hale sold the remainder of his property acquired in 1894, or the other tract here involved, to one Pitts. The latter in turn sold said property in 1925 to one Allen Stanberry, who, after having lived thereon for some fifteen years, sold the property in 1940 to the plaintiff Sessum.

Following his acquisition in 1952 Don Hemperley questioned the location of the fence, contending it should be some 54 feet further east. Plaintiff thereupon had the entire property surveyed, and, upon discovering the dividing line between the estates belonging to him and the defendants according to the written title delineation to be the sectional center line, instituted this suit to have the boundary fixed according to law. He alleged that the boundary had never been previously fixed between the estates although he had erected a fence after his acquisition in 1940 on a purported line which wrongfully and erroneously established the boundary.

In their answer the defendants aver that no survey is necessary for the reason that the boundary line between the properties has been long established by a visible fence which was constructed along said line to the knowledge of all the parties in 1904 and which has existed and been recognized as such for more than thirty years; that this fence, being a visible and material boundary between the two properties, and defendants having actually and physically possessed the land enclosed therein openly and publicly, the plea of 30 years prescription should be maintained and plaintiff’s suit dismissed.

The trial court recognized the principle of law pronounced by LSA-C.C. Art. 852 that: “Where there is a visible boundary which has been in existence for thirty years or more and defendant in a boundary action and his predecessors in title have, in addition to the land described in the title, actually possessed land extending to that visible boundary, a plea of prescription will be sustained as a barrier to the action in boundary.”

This pronouncement eminently states the law; however the trial judge further held that before the fence line or other visible artificial boundary would be recognized “it must be first established that this visible boundary was erected and maintained as the result of the mutual consent of the respective owners, and that it would accordingly serve as the boundary marking the limits of their respective estates.” (Italics mine.) Accordingly, there being no proof of mutual consent, judgment was rendered in favor of plaintiffs.

The court of appeal, on first hearing, held that: “Where there is a visible boundary recognized and acquiesced in (not consented to) as such for 30 years or more, to which defendants and their predecessors in title have, in addition to the land described in their title, actually possessed, a plea of prescription of 30 years interposed by the defendants will be sustained in an action of boundary.” [83 So.2d 548.]

On rehearing, the court of appeals reversed its original opinion and affirmed the judgment of the lower court, holding that before a fence or other visible artificial boundary which has been erected and maintained as such can be given recognition as a boundary line under the thirty year prescriptive period “it must have been erected and maintained as the result of the mutual consent of the respective owners and for the purpose of serving as a boundary marking the limits of their respective estates” (Italics mine.)

No citation of authority is necessary to support the well-accepted principle that the party who alleges that a certain visible boundary is to be preferred to the ideal bounds called for by the titles has the burden of proving that the said visible boundary has been in existence and recognized as such for the required period of thirty years.

It is also well established that where, there is a visible boundary which has been in existence for thirty years or more and the defendant in a boundary action or his predecessors in title have, in addition to land described in the title, actually possessed land extending to that visible boundary, a plea of prescription of thirty years will be sustained. Beene v. Pardue, La.App.1955, 79 So.2d 356; Sattler v. Pellichino, La.App.1954, 71 So.2d 689; Adams v. Etheredge, La.App.1954, 70 So.2d 388; Duplantis v. Locascio, La.App.1953, 67 So.2d 125; Tate v. Cutrer, La.App.1951, 53 So.2d 285; Picou v. Curole, La.App.1950, 44 So.2d 354; Latiolais v. Robert, La.App. 1942, 8 So.2d 347.

In the case of Opdenwyer v. Brown, 155 La. 617, 99 So. 482, after reviewing many authorities we recognized that boundaries long established should not be disturbed. We further held that the holder of the junior title may retain any quantity of land beyond his title which he or those under whom he holds may have possessed for thirty years.

In Emmer v. Rector, 175 La. 82, 143 So. 11, 14, the Court said:

“Article 3475 of the Civil Code provides that: ‘Immovables are prescribed for by 30 years without any title on the part of the possessor, or whether he be in good faith or not.’ ” We went further on to say, “Under these codal articles actual possession by a party and his authors in title for more than 30 years gives the possessor title by prescription.”

In the case of Broussard v. Guidry, 127 La. 708, 53 So. 964, 967, this Court maintained a boundary which had stood undisturbed for more than thirty years, although said boundary did not correspond with the original survey and the defendant had in her possession 90 acres more than her titles called for, while plaintiff lacked more than 80 acres than his titles called for. We said: “Defendant and her authors having had possession, we maintained the prescription of 30 years.”

It seems clear to me that the now well-established rule, as a result of these decisions, is that where there is a visible boundary which has been in existence for 30 years or more and the defendant in a boundary action, or his predecessors in title have, in addition to the land described in the title, actually possessed land extending to that visible boundary, a plea of prescription of thirty years should be sustained. I am cognizant of the fact that in order for this rule to apply, two conditions must concur. First, there must be a visible boundary, artificial or otherwise, such as a fence or wall. Second, there must be actual possession, either in person or through ancestors in title, for thirty years or more of the land described in the title and also of the land beyond the title extending to, and as far as, the actual physical boundary. These conditions have been completely met in the instant case.

The trial judge found as a conclusive fact and the testimony contained in the record unmistakably shows that a visible, physical boundary, separating the property of plaintiffs and defendants, namely a fence, was erected by defendants or their authors in 1904, or more than thirty years prior to the filing of this suit, and that this fence was maintained to the present date; and that these defendants peaceably and publicly possessed the land contained within and extending to the said fence line.

The court of appeal on first hearing concluded that the defendants had not only established that this fence was constructed in 1904 but that it had been maintained since that time and was recognized as a boundary, the defendants having at all times possessed the land up to this fence line openly, and as owners.

On rehearing, the court, however, reversed this holding and affirmed the judgment of the trial court, holding that, irrespective of its prior conclusions on the facts, since the fence line admittedly constructed was erected and maintained without the mutual consent of the respective owners and for the purpose of serving as a boundary marking the limits of their respective titles, the plea of thirty years prescription was not available. (Italics mine.)

The majority opinion, I respectfully submit, falls into the same error.

LSA-C.C. Art. 852 and our applicable jurisprudence do not exact as a condition precedent the mutual consent of the respective owners. The adverse possession of land beyond a written title up to a visible boundary for a period of thirty years, whether in good or bad faith, is all the law demands and thus make effective the prescriptive plea of thirty years.

Some question is raised as to the fence line not extending the full depth of the properties in question, it appearing that conflicting evidence raised the inference that about 50 to 60 feet of the fence line had not been built.

Be that as it may, the record discloses and plaintiff admits in his pleadings that in 1940, the year he purchased the property, he himself actually constructed a continuation of the fence line built in 1904 to the public road, and that this extended fence has remained in existence for more than ten years prior to the institution of this suit. Under such a judicial confession, Art. 853 of our LSA-C.C. is clearly applicable in that the rectification of an error in fixing boundaries is prescribed by proof of adverse possession of that part of the land erroneously included during the period of ten years. Kobler v. Koch, La.App., 6 So.2d 55.

I respectfully dissent.

On Rehearing

SIMON, Justice.

This suit is brought under the provisions of LSA-C.C. Art. 825 to fix the boundary line between two contiguous estates. The validity of the respective written titles is not involved, for if it were, LSA-C.C. Art. 823 would be inapplicable. It is conceded that the boundary line as called for in said respective titles is the ideal boundary and there exists no conflict in regard thereto. Plaintiff contends that the boundary should be fixed in accord with a survey made in 1953 of the subject property which discloses the proper dividing line separating these estates to be the section center line as called for by the respective titles; that plaintiff and defendants failed to amicably adjust their differences with the consequence that the defendants herein are in possession of a strip of land belonging to petitioner comprising approximately two acres, forcing plaintiff to resort to this action in boundary. He prays that the boundary line be established in accordance with law.

Defendants assert that the boundary between their land and that of plaintiff has been long established by common consent or acquiescence in that in the year 1904 a fence was constructed which marked the limits of defendants’ possession and served as the boundary between their property and that of plaintiff’s author in title. Defendants further aver that this fence has existed as a visible and stationary boundary line since its construction in 1904 and that during that period of time to this date they have exercised all rights of possession and occupancy of the area so enclosed, and accordingly plead the prescription of thirty years under LSA-C.C. Art. 852 and that of ten years under LSA-C.C. Art. 853.

Plaintiff and defendants are the present owners of adjacent properties situated in Section 14, Township 22 N., Range 15 W., Caddo Parish, plaintiff owning 30.75 acres in the SW/4 of SE/4 and defendants owning the adjacent land in the SE/4 of SW/4 of said section, their respective titles emanating from a common author, George W. Hale, who acquired the property in 1860 by patent from the United States Government. Following his death the property was conveyed in 1894 to Jacob R. Hale, who in 1903 sold a 40-acre tract therefrom to James Hawkins, the eastern boundary thereof being described as the center section line.

Following his acquisition James Hawkins caused it to be surveyed by J. M. Hale, who is referred to in the record as a surveyor and who was a brother of Jacob R. Hale, the then owner of plaintiff’s property. Hawkins and his son, James B. Hawkins, erected a fence on the boundary line between the two tracts as was fixed by J. M. Hale, the surveyor. It is conceded, however, that this survey was not conducted in compliance with our codal requirements and that the line so delineated by said survey encroached on the Jacob R. Hale property, now plaintiff’s property, thus diminishing it by two acres more or less. James B. Hawkins, who is now 69 years old, testified that the fence was erected by him and his father on the line as surveyed by Hale and was placed in its present location for the purpose of serving as a boundary line between the Hawkins and the Hale properties. This fence line lay east of the center section line 89.5 feet at its north end and 113 feet at its south end. Jacob R. Hale did not actually participate in erecting the fence and it is not shown that he expressly consented thereto. It is significant, however, that he and James Hawkins were brothers-in-law, owning adjoining properties, and that he was a member of the Hawkins household at the time the survey was made and the fence erected. Obviously he knew or should have known of the construction as well as of the location of the fence line. There is no evidence showing any objection or protest to the construction and maintenance of said fence line until the year 19S3 when plaintiff complained of an existing error in the boundary line.

James Hawkins died in 1930 and the subject property was inherited by his two daughters, defendant Mrs. Agnes Hawkins Hemperley and Mrs. Ada M. Hawkins Stanberry. The latter sold her inherited interest to the co-defendant, Don C. Hemp-erley, in 1952.

The remaining portion of the property acquired in 1894 by Jacob R. Hale was sold to Albert L. Pitts on a date subsequent to the erection of the fence in 1904. Pitts transferred said property to Allen H. Stan-berry in 1925, who after living thereon for about fifteen years and occupying and possessing same up to the fence line established by defendants’ author in title, sold his acquisition to the plaintiff Sessum by deed dated March 12, 1940.

The defendants contend that no survey is necessary for the reason that the boundary between the contiguous properties has been established since 1904 by a well-defined and visible fence, erected and maintained by their author in title to the knowledge of plaintiff’s author in title, and that said fence line has been in existence and recognized as the boundary line between the contiguous properties for more than thirty years.

The trial judge found as a conclusive fact that a visible, physical boundary, separating the property of plaintiff and defendants, namely a fence, was erected by defendants or their authors in 1904, more than thirty years prior to the filing of this suit; that this fence was maintained to the present date; and that the defendants herein peaceably and publicly possessed the land enclosed within said fence line. Whereupon, in applying the provisions of LSA-C.C. Art. 852 the trial judge said: “ * * * where there is a visible boundary which has been in existence for thirty years or more, and defendant in a boundary action and his predecessors in title have, in addition to the land described in the title, actually possessed land extending to that visible boundary, a plea of prescription will be sustained as a barrier to the action in boundary.”

The foregoing is an eminent statement of the law. In his written opinion the trial judge recognized that the burden of proof rested upon the defendants to prove such facts as were necessary to support the prescription of thirty years. However, the trial court held that the very first fact that must be proved in order to justify a court in recognizing a fence or other visible artificial boundary over the ideal one is that such fence or other visible boundary was erected and maintained as the result of the mutual consent of the respective owners that it would serve as the boundary marking the limits of their respective estates. The trial court, having failed to find proof of the mutual consent of the parties, overruled defendants’ plea of thirty years prescription and thereupon recognized and decreed the boundary line between the two estates to be that as fixed by the official plat of survey made by the appointed court surveyor.

On appeal, the Court of Appeal, Second Circuit, in a review of the evidence, said [83 So.2d 550]:

“ * * * the conclusion is irresistible that James M. Hawkins and his son, J. B. Hawkins, erected in 1904 the fence on a line and at a location as surveyed by J. M. Hale as the boundary between the present properties of plaintiff and defendants. This fence was in existence from the date of its construction until the trial of this suit in 1953, or for a period of time considerably exceeding 30 years. The fence was generally considered in the vicinity as a boundary fence. While it was erected as a barrier to roaming livestock, its location was determined by a survey of a line between said properties. It was constructed as a boundary fence, recognized and maintained as such for more than 30 years. The owners of the property adjacent to said line and/or their predecessors in title and in possession, possessed as owners the lands to said fence.
“The plats of the surveys made by Dutton in 1952 and by Wilkerson, as the court appointed surveyor, show the existence and location of this fence, which, in a measure, corroborate defendants’ position. As we view the matter, in the light of the positive evidence as to the year in which the fence was constructed, the physical fact of the fence wire being grown and imbedded in trees at a much later date is a matter of little consequence and loses much of its weight and fails to carry the convincing and persuasive force contended by plaintiff.
“For instance, it would well be that where a fence is not completely maintained and kept in repair, as contended here, after the construction of the fence, the fence ‘row’ was permitted to ‘grow up’, which growth in time would take on the size of small trees to which, in the repair of the fence in later years, its wires may have been nailed or stapled. The age of the trees would serve as no indication of the age of the fence. In the absence of proof that the fence, when originally constructed, was attached to the trees, the positive testimony of those who assisted in its erection and construction and of other eyewitnesses has not been disproved or overcome.
“We are, therefore, of the opinion that defendants have sufficiently and-adequately borne their burden of proof in establishing the facts necessary to support their plea of prescription which rested upon them, Sattler v. Pellichino, La.App., 71 So.2d 689; Hester v. Smith, La.App., 72 So.2d 549, * * *”

Accordingly, the Court of Appeal, Second Circuit, reversed and annulled the judgment of the trial court and sustained the plea of thirty years prescription filed by defendants, recognizing the boundary line between the estates herein as that established by the fence line constructed in and existing since 1904. On rehearing the said appellate court reversed its original findings of law and affirmed the judgment of the trial court, holding in effect that a visible boundary, concededly in existence for thirty years or more, cannot serve as the true boundary under the prescriptive period of thirty years unless such artificial boundary is erected and maintained with the mutual consent of the respective adjacent owners for the purpose of serving as a boundary marking the limits of their respective estates.

After a thorough review of the record, though we find some conflict in the testimony of some of the witnesses, which is not unusual in matters having their incipiency more than half a century ago, we are in full accord with the findings and conclusions of fact reached by the two lower courts. We necessarily conclude, as they did, that the record preponderately establishes that the fence line in question was constructed in 1904 by defendants’ authors in title, separating the present properties of plaintiff and defendants; that it was maintained as a visible existing boundary between said estates; and, that the area of land comprising approximately two acres beyond defendant’s title enclosed within said fence line was actually and publicly possessed by said defendants for a period in excess of thirty years.

It is fundamental that resort to an action in boundary has for its objective the physical separation of one estate from another and to thereby mark the limits of each by visible bounds. LSA-C.C. Art. 826. The object sought to he attained may be accomplished either judicially or extra judicially. LSA-C.C. Art. 832.

An action in boundary may be resorted to when any one of the following three situations exists: (1) where a boundary line has never been established to separate the contiguous estates; (2) where although once established or the estates separated, the physical bounds have been completely eradicated; and (3) where there has been an incorrect fixing of the boundaries. LSA-C.C. Arts. 823, 853.

In the first instance, where the boundary lines have never been established or the estates separated, it is well settled that under LSA-C.C. Art. 845 the boundaries must be fixed according to the respective titles of the parties, and in the absence of titles on both sides, possession governs. In the second instance, where the boundaries have once been fixed and have become eradicated, such boundaries must be replaced as they formerly stood. Zeringue v. Harang’s Administrator, 17 La. 349; Opdenwyer v. Brown, 155 La. 617, 99 So. 482. In the third instance, where boundaries have been incorrectly fixed, the cause of action is to rectify or correct boundaries established in error. Williams v. Bernstein, 51 La.Ann. 115, 124-125, 25 So. 411. It is well settled that in the first and second instances the action is imprescriptible, the theory being that every land owner is entitled to have his land separated from adjoining lands, its limits ascertained and fixed., LSA-C.C. Art. 825.

In the third instance, where there exists actual visible bounds which have been extra judicially placed incorrectly or fixed by the consent of or the active acquiescence of the adjacent land owners, an action in either case to rectify an alleged error in the location of the boundary line must be instituted within ten years under the penalty of being prescribed. LSA-C.C. Art. 853. The consent as to visible bounds'made essential under said article to form the basis of ten year prescription must be more than a passive acceptance; it must be an affirmative recognition by both parties. Blanchard v. Monrose, 12 La.App. 503, 125 So. 891..

The mere erection of a fence or a hedge as a boundary, without the consent of the adjoining land owner, will not serve as the basis for ten year prescription, for this is said to he mere occupancy, and not adverse possession as required by LSA-C.C. Art. 853. Williams v. Bernstein, supra. Further, when boundary lines are fixed judicially, the fixing thereof becomes a part of and is merged in the judgment which, saving attacks on the ground of fraud made within one year, becomes res judicata.

LSA-C.C. Art. 852 says: “Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred,, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one can not prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.”

Under the provisions of LSA-C.C. Art. 852 it is observed that one who has maintained uninterrupted possession of property within existing visible bounds during thirty years may retain the quantity so possessed by him though it be beyond and more than called for by his title. This is the possession, that is essential to bring this article into operation, irrespective of the good or bad faith on the part of the possessor. There is nothing in the provisions of LSA-C.C. Art. 852 which demands the element of mutual consent of the parties. Its provisions clearly provide that'possession of surplus land beyond one’s title shall entitle him to retain the same once his possession has continued uninterrupted within visible bounds for a period of thirty years. Beene v. Pardue, La.App.1955, 79 So.2d 356; Sattler v. Pellichino, La.App.1954, 71 So.2d 689; Adams v. Etheredge, La.App.1954, 70 So.2d 388; Duplantis v. Locascio, La.App. 1953, 67 So.2d 125; Tate v. Cutrer, La.App. 1951, 53 So.2d 285; Picou v. Curole, La. App.1950, 44 So.2d 354; Latiolais v. Robert, La.App.1942, 8 So.2d 347.

In the case of Broussard v. Guidry, 127 La. 708, 53 So. 964, 967, this Court maintained a boundary which had stood undisturbed for more than thirty years, although said boundary did not correspond with the original survey and the defendant had in her possession 90 acres more than her titles called for, while plaintiff lacked more than 80 acres than his titles called for. We said: “Defendant and her authors having had possession, we maintain the prescription of 30 years.”

In Wemple v. Albritton, 154 La. 359, 97 So. 489, we held, in effect, that in the sale and delivery of a plantation having visible bounds and having been in the possession of plaintiffs and their authors for more than thirty years, the physical boundaries shall prevail over ideal bounds given in the deed of sale, and held distinctly that the purchaser succeeded to the possession of his vendor to the full extent of the property delivered under the deed.

In the case of Opdenwyer v. Brown, 155 La. 617, 99 So. 482, after reviewing many authorities we recognized that boundaries long established should not be disturbed. We further held that the holder of the junior title may retain any quantity of land beyond his title which he or those under whom he holds may have possessed for thirty years.

Clearly, the now well-established rule, as a result of our codal provisions and the cited authorities, is that where there is a visible boundary which has been in existence for thirty years or more and the defendant in a boundary action and his predecessors in title have, in addition to the land described in the title, actually possessed land extending to that visible boundary, a plea of prescription of thirty years should be sustained. It is our view that for the rule to be applicable two conditions must concur: First, there must be a visible boundary, artificial or otherwise; second, there must be actual uninterrupted possession, either in person or through ancestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within the visible bounds. The lack or failure of consent on the part of the adjacent owner cannot affect the rights that accrue by operation of law to the possessor under the thirty-year prescriptive plea. We feel that the foregoing conditions have been completely met in the instant case.

In sustaining the plea of thirty years prescription invoked by the defendants there is no need for us to inquire into the merits of their plea of ten years prescription under LSA-C.C. Art. 853.

Accordingly, for the reasons assigned, the judgment of the Court of Appeal, Second Circuit, affirming the judgment of the district court, is reversed, annulled and set aside and it is now ordered, adjudged and decreed that defendants’ plea of thirty years prescription be and the same is hereby sustained and, accordingly, the boundary between the estates of William R. Sessum, on the one hand, and of Don C. Hemperley and Mrs. Agnes Hawkins Hemperley, on the other, be and it is hereby fixed and established as along the fence line now existing between said estates and as was established and marked by the erection of said fence in 1904 and beginning at a point 89.5 feet east of the northwest corner of the SW/4 of SE/4, Section 14, Township 22 North, Range 15 West, Louisiana Meridian, Caddo Parish, Louisiana, and extending and running in a southerly direction to a point on! the north boundary of the road traversing said land 113 feet east of the west boundary-of the said SW/4 of SE/4.

It is further ordered, adjudged and decreed that the costs of these proceedings be taxed against the plaintiff-appellee.

PONDER, Justice

(dissenting).

I cannot agree with the majority in the conclusion that there existed a visible boundary, to-wit, a fence for- thirty years as required by Article 852 of the LSA-Civil Code.

There is a conflict in the testimony as to whether or not the fence was maintained and the property actually possessed by the defendants during that period of time. The district judge was of the opinion that the fence was not maintained nor the property possessed during that time and I feel that he was in a better position to pass on the credibility of the conflicting testimony. Furthermore the evidence indisputably shows that the fence did not extend all the way between the properties of the parties litigant. Therefore I respectfully dissent.

      . Foscue v. Mitchell, 190 La. 758, 182 So. 740, 745.

      . Foscue v. Mitchell, 190 La. 758, 182 So. 740, 745.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Johnnie STEVENS v. Mrs. Mary Rogers DELANOIX and Delta Fire & Casualty Co.
    No. 4467.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Cadwallader & Dameron,’ Baton Rouge, for'appellant!' ’’ ' ' ■

      Watson Blanche Fridge Wilson Posner & Thibaut and David N. Robinson, Baton Rouge, for appellee.
   ELLIS, Judge.

This is an action for property damages to plaintiff’s automobile sustained when plaintiff’s car was involved in an intersec-tional collision with one owned by the defendant and insured against liability by the co-defendant. The District Court dismissed the suit and plaintiff has appealed.

This collision occurred at the intersection of East Harrison Street and Carolina Street in the City of Baton Rouge. Plaintiff’s car was being driven west on East Harrison Street and defendant’s car was traveling north on Carolina Street. The right front of the defendant’s car ■struck the left front of the plaintiff’s automobile. There was a stop sign on the west side of Carolina Street facing north, which is to bring traffic which is traveling south on Carolina Street to a stop at Harrison Street. It seems there was formerly a stop •sign on the east side of Carolina Street facing south to also bring traffic going north "to a stop before entering the intersection. At the time of the accident this last stop ■sign was not there. There was some evidence to the effect that East Harrison Street bad been designated by the City of Baton Rouge as a favored or right-of-way street but no certified copy of the ordinance or ■other sufficient proof to this effect was introduced, and the courts do not take judicial cognizance of municipal ordinances. However, under the Louisiana Plighway Regulatory Act the plaintiff’s automobile ■clearly had a directional right-of-way even if no favored thoroughfare was proven :since it was approaching the intersection from the right. See LSA-R.S. 32:237, .■subd. A and Schech v. Pittman, La.App., 51 .So.2d 119.

Carolina Street, along which the defend.ant’s car was traveling is 22 .feet in width .and East Harrison Street, on .which the plaintiff’s car approached the intersection, is approximately 18 feet in width and neither street widens at their intersection. The point of impact of the automobiles occurred 14 feet from the east margin of the intersection and 8 feet from its west margin, and 12 feet from the south margin of the intersection, or 6 feet from its north margin. Although the plaintiff’s testimony as to the exact point of impact is somewhat misleading the exact spot was proven by two officers of the Baton Rouge City Police who investigated the accident shortly after its occurrence.

On the southeast corner of the intersection is located a grocery store which is close to both streets and this building obstructs the view of traffic approaching the intersection from the south headed north on Carolina Street and traffic approaching the intersection from the east headed west on East Harrison Street.

The driver of the defendant’s automobile, Mrs. Delanoix, which was headed north on Carolina Street, testified she was traveling about 25 miles per hour as she approached the intersection but she did not remember whether she attempted to slow her speed as she entered it. She admitted she was about two car lengths from the point of impact before she saw the plaintiff’s car and that she could not see it sooner because of the obstruction caused by the building on the southeast corner. She did finally testify that she applied her brakes when she was about one car length and a half from the plaintiff’s automobile. A passenger in this automobile stated it was traveling from 20 to 25 miles per hour approaching the intersection and that the car entered it iff about 20 miles per hour. A witness, standing on the street, who saw the accident, stated this car was traveling too fast to stop and avoid striking the plaintiff’s vehicle.

Clearly the driver of the defendant’s car was guilty of negligence, which was a proximate cause of the accident, when she entered the intersection without stopping and without observing the oncoming favored traffic. She was under a legal duty to stop and she had the opportunity to avoid the collision had she exercised the slightest care. There is no contention that she was not negligent, but the defendants urge the driver of the plaintiff’s car was guilty of contributory negligence which was a proximate cause of the collision.

Alvin Wilson, the driver of the plaintiff’s automobile, testified he was approaching the intersection at about 10 to IS miles per hour but that he slowed to 5 to 7 miles per hour as he entered it. Further, that he looked to the right or north and saw no vehicles approaching and also looked to his left but could not see if any vehicles were approaching from the south since the grocery building on the southeast corner of the intersection obstructed his view; that as soon as he had entered the intersection he looked again to his left and saw the defendant’s car coming toward him at a speed which he estimated to be about 35 to 40 miles per hour; that he applied his brakes and swung his automobile to the right in an attempt to avoid the collision but that the right front of the defendant’s car struck plaintiff’s car on its left front side. This driver stated positively he knew he was on a right-of-way street.

The lower Court concluded the driver of the plaintiff’s car was guilty of contributory negligence. We find no showing in the record that after this driver saw and realized or after he should have seen and realized, that the driver of the defendant’s vehicle was not going to stop at the intersection but proceed into it without notice of oncoming traffic on the favored street, that he had time or opportunity to do anything effective to prevent the accident.

The case of White v. Travelers Insurance Co., La.App., 94 So.2d 564, 565, discusses the degree of care with which a driver upon a favored street is charged. A traffic light system was in operation at the intersection involved in the White case but the degree of care, in our opinion, required of the respective drivers on favored and unfavored streets is the same whether traffic at the intersection be directed according to signal lights or designated as favored and unfavored streets by Statute. The White case says:

“There is no showing after plaintiff saw and realized, or after he should have seen and realized that defendant’s truck was not going to stop at the intersection so as to comply with the red signal light, he had time and opportunity to make an effort to do anything effective, such as applying his brakes, swerving his vehicle and taking another course in order to prevent the accident. Under the traffic light system a motorist proceeding on a proper signal should not be held to the same degree of care as if no such system prevailed but he is entitled to assume that the signals are understood and will be observed, and he is not required to anticipate that other motorists or pedestrians will, in violation of law, enter an intersection on an unfavorable signal. This principle is predicated on the proposition that the danger at such intersections is less than if there were no such signals and, there being less danger, less care is exacted.
“Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292; Niagra Fire Ins. Co. v. Schouest, La.App., 58 So.2d 739; Clark v. DeBeer, La.App., 188 So. 517, 520; Roll Osborne & Sons, Inc. v. Howatt, La.App., 167 So. 466, 469; Buckley v. Featherstone Garage, Inc., 11 La.App. 564, 123 So. 446, 450.
“Under the circumstances of this case, plaintiff, therefore, was not bound to anticipate the negligence of defendant’s driver in proceeding into the intersection against an unfavorable signal light. The importance of the observance by motorists of the rules and regulations pertaining to motor vehicular traffic in the interest of safety was emphasized by the Supreme Court in Kientz v.' Charles Dennery, Inc., supra, in quoting from a dissenting opinion of the Court of Appeal in the same case, where it was stated:
‘We are living in an advanced stage of the motor age. Heavy and congested vehicular traffic on the streets and highways is a daily rule rather than an exception. In these circumstances, it is vital to the public interest that the traffic rales and regulations be adhered to strictly (particularly with reference to the traffic semaphore system) as the motorist is, to a large extent, compelled to operate his car in the belief that the law will he obeyed by others. Hence, in gauging the fault which is attributed to one, who was operating his car in obedience to positive law, the courts should be convinced that the dereliction was most substantial and that it was such a direct factor that, without it, the accident would not have occurred.’ 17 So.2d 506-513-514.”

In Mason v. Price, La.App., 32 So.2d 853, 855, the rule is expressed as follows :

“It may be conceded, without affecting the outcome of the case, that by the exercise of a superlative degree of care by plaintiff the accident would and could have been averted. But, under the circumstances, was he required to do this? We do not think so. If, in such circumstances, a motorist should be required to bring his vehicle to a stop or reduce its speed to a snail-like pace at every intersection and await the action of motorists on less favored streets, the advantages the law intends to accord would, in a large measure, be lost. The right-of-way would not be such in reality. In cities where traffic is heavy and continuous on less favored streets, a motorist on a right-of-way street, if so required, would find himself greatly annoyed because of the constant shifting of gears and change in the rate of speed of his own vehicle although driving within the law. The purpose of the law, in .such circumstances, would not be accomplished; traffic movements would be hindered rather than promoted thereby.”

This rule is applicable even though the view of the intersection is obstructed. In Ehtor v. Parish, La.App., 86 So.2d 543, 546, a “blind corner” was the scene of an intersectional collision and therein it was stated “that a driver on a right-of-way thoroughfare has the right to entertain a belief that motroists on intersecting streets and roads will comply with the law and will not enter on the superior thoroughfare in his path, especially when he knows that a stop sign inhibits entrance from the inferior street.”

A similar intersectional collision case is found in Gutreaux v. Southern Farm Bureau Casualty Co., La.App., 83 So.2d 667, 669, wherein the law is reviewed as it pertains to intersectional collisions when one of the motorists has a directional right-of-way. We said:

“In the present instance, Mrs. Barrow’s negligence was undoubtedly a proximate cause of the accident when she entered the intersection when (as found the District Court) the Gaut-reaux vehicle was so close to the intersection, whether she stopped at the stopsign or not. However, Gautreaux was under no. duty (even if maintaining an adequate lookout) to expect her to proceed into the intersection if she had stopped or was slowing for the stop-sign. But, further, if Gautreaux was approaching at a speed of 20 mph (i. ¿., 29' per second) as he informed the investigating officers immediately after the accident and testified at the trial, while Mrs. Barrow as she claimed was crossing said intersection at a speed of 15-20 mph (i. e., 21.9'-29/ per second), . it does not appear to us even if Gaut--reaux observed Mrs. Barrow -failing -to stop at the stopsign, that he had— thus far having proceéded free of negligence and tinder no duty up until that time to anticipate the inferior motorist’s failure to observe her legal duty to stop- — physical opportunity to avoid the collision. It is to be remembered that Mrs. Barrow’s entry and crossing to the intersection occurred within 1 to I1/2 seconds. Thus the sole proximate cause of the accident was Mrs. Barrow’s negligent entry onto the main thoroughfare in the face of oncoming traffic, Robbins v. Mydland, La.App. 1 Cir., 81 So.2d 561.”

In Brashears v. Tyson, La.App., 86 So.2d 255, 257, we held that a driver entering an intersection from a less favored street, even though he stops, has not completed his legal duty, “but this act must be followed by a careful examination of traffic on the favored street and he should not enter the intersection unless he is certain he can do so without causing damage.”

In the Brashears case it was held that the duty to come to a full stop and examine traffic before crossing an intersection at a “blind corner” is imposed upon the motorist who does not have the directional right-of-way and that it was not contributory negligence for the motorist who does have the directional right-of-way to proceed past the “blind corner” into the intersection at a reasonable speed. There are many other cases holding drivers on the favored street are not contributorily negligent for failing to see the approach of vehicles on a less favored intersecting street when the view is blocked. In Stovall v. Washington, La. App., 88 So.2d 483, a driver with the right-of-way was held not to be guilty of negligence in failing to observe traffic to the left when the view was blocked by a truck.

Lewis v. Groetsch, La.App., 32 So.2d 396, is a similar holding, where the plaintiff was not found guilty of contributory negligence in failing to observe traffic to his left because his view was blocked by a street car. In Turner v. Southern Farm Bureau Casualty Co., La.App., 91 So.2d 436, the northeast corner of an intersection was overgrown with bushes and the driver who had the directional right-of-way was not found guilty of negligence in driving into the intersection at a speed of 25 miles per hour.

Of course there are also many cases in which the driver having a right-of-way was. found guilty of contributory negligence where there was no obstruction to his view and he could and should have seen the oncoming vehicle and avoided the collision. We so found in Starnes v. Mury, La. App., 90 So.2d 901. There the driver on the favored street had a reasonable opportunity to see the defendant’s car approaching and to realize that he was going to proceed into the intersection regardless of the right-of-way. She had this opportunity, as her view was not blocked, to observe oncoming traffic and also had time after seeing the other car was going to proceed into the intersection to have avoided the accident.

The recent case of Commercial Credit Corporation v. Serpas, La.App., 94 So.2d 83, 85, held the driver on a favored street not to be guilty of contributoi'y negligence under similar circumstances to the present case. Therein it is stated:

“Under the situation presented in this case, the petitioner had the right of way over the defendant, who was approaching from his left. We feel that the petitioner had the right to enter the intersection assuming that such persons would respect his superior right. This assumption would prevail unless it is shown that the petitioner knew of the apparent danger or should have known of the apparent danger in time to stop and avoid the accident. The petitioner claims that he looked and saw no one approaching. The mere fact he failed to see whether the other automobile stopped to respect his right of way or did not stop does not necessarily constitute contributory negligence. To bar recovery, the deficient lookout must be a proximate cause of the accident. See Gautreaux v. Southern Farm Bureau Casualty Company, La.App., 83 So.2d 667. A motorist crossing an intersection has the right to rely on the assumption that those approaching it will respect his right of way and accordingly he may proceed. If, however, in driving on the favored street he sees, or in the exercise of due care should see, that the other vehicle neglected to make the stop required by law, the motorist may himself be under a duty of stopping if by the exercise of reasonable care on his part the accident could have been avoided. Under the facts in the case at bar, plaintiff, who had the right of way, stated that he looked before entering the intersection of only 24 feet wide and saw no one. Assuming he had seen defendant’s vehicle at that time we are still of the opinion that he could not have avoided the accident. Plaintiff contends that in approaching the intersection he was traveling approximately 20 to 25 miles per hour and that he slowed down for the intersection and that at the moment of impact he may have been moving at about 15 to 20 miles per hour. According to the chart in Blash-field an automobile traveling at 20 miles per hour is moving at the speed of 29 feet per second, that it requires 22 feet for reaction time and a total distance of 40 feet in which to stop. At this speed some charts place the total stopping time distance at fifty-nine feet. Using either of these charts, we do not believe plaintiff’s deficiency was or can be considered a proximate cause of the accident when we consider the relative rights and duties of the respective parties and the width of the intersection.
* * * * * *
“This Court has recently upheld the rule that right of way traffic is entitled to approach and enter an intersection even if it observes traffic approaching on an inferior thoroughfare, because superior traffic is entitled to rely upon the assumption that the others will respect the superior’s right of way. Brashears v. Tyson, La.App., 86 So.2d 255; Bahry v. Folse, La.App., 83 So.2d 912; and Gautreaux v. Southern Farm Bureau, La.App., 83 So.2d 667. This rule applies unless the superior motorist should reasonably realize the danger in time to stop and avoid the accident. Miller v. Abshire, La.App., 68 So.2d 143 and Droddy v. Southern Bus Lines, La.App., 26 So.2d 761.”

In the present case the driver of the plaintiff’s car could not avoid the accident, although he braked his car and pulled to the right. We find no negligence upon his part, concluding the sole proximate cause of the accident was the negligence of the driver of defendant’s vehicle.

There is no dispute as to the quantum of damages in the sum of $235.66 caused to plaintiff’s automobile by the collision. Nor is there any denial as to the insurance coverage afforded by the defendant Insurance Company.

The judgment of the District Court is reversed and judgment is hereby rendered in favor of the plaintiff, Johnnie Stevens, and against the defendants, Mrs. Mary Rogers Delanoix and Delta Fire & Casualty Co., in the sum of $235.66, together with legal interest from date of judicial demand until paid, and all costs of this proceeding.


author: LOTTINGER, Judge.

text:
    Morris JACKSON v. H. B. BRUSER & Royal Indemnity Co.
    No. 4465.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Percy & Macmurdo, Baton Rouge, for appellant.
    Benton & Moseley, Baton Rouge, for appellees.
   LOTTINGER, Judge.

Petitioner filed suit in workmen’s compensation for total and permanent disability for injuries sustained during the month of February 1955, while working for H. B. Bruser, a distributor for Gulf Refining Company. Mr. Bruser’s compensation insurer, Royal Indemnity Company is joined as a party defendant. This suit was consolidated for trial with another suit filed by petitioner against Iowa Mutual Insurance Company, for injuries allegedly sustained as a result of an accident while working for Sands Products Company during April of 1956. The Lower Court rendered judgment for total and permanent disability against H. B. Bruser & Royal Indemnity Company, and dismissed the suit against Iowa Mutual Insurance Company. The petitioner took an appeal in his suit against Iowa Mutual Insurance Company and the defendants appealed in the suit against H. B. Bruser et al.

The facts show that petitioner was employed by H. B. Bruser, a resident of the Parish of East Baton Rouge, for several years prior to 195-5. His duties with'Mr. Bruser was the loading and delivering of gasoline and oil products. During the month of February 1955, the petitioner delivered certain products to a producer and while loading an oil drum on a truck, suffered pain to his back. He was treated for the injury by Dr. Pickell, a specialist in internal medicine, from the time of the injury until December of 1955. Dr. Pickell testified that his diagnosis showed a possible herniated disc, which would require surgery to confirm. Dr. Pickell testified further that his last examination of the petitioner was on December 28, 1955, at which time the petitioner was permanently and totally disabled to perform hard manual labor.

Subsequent to the accident of February 1955, the petitioner continued to work for Mr. Bruser doing lighter work. He was off for two or three weeks at a time due to his back injury and was fired by his employer because he was always complaining of his back and was unable to satisfactorily perform his work. Subsequent to his discharge by Mr. Bruser, the petitioner claims that he continued to suffer from his back. However, he claims that it was necessary for him to secure employment because of his family, and he went to work for Roys’ Produce Company delivering produce. Petitioner worked for Roys’ Produce Company for a period of about four days when it was necessary for him to quit because he was unable to load and deliver produce. He then went to work for Layton Sugar Company doing general plantation work. He only worked for these people a short while because he determined he was unable to do this work because of his back injury. On or about January 6, 1956, the petitioner applied for work with Sands Products Company. He was sent to Dr. John M. Hopper in Baton Rouge for a pre-employment physical examination. The petitioner admits that he did not tell Dr. Hopper of his injury in February 1955 because he needed work and he knew that if Dr. Hopper was informed of the injury he could not go to work for Sands Products Company. During the course of the examination by Dr. Hopper, petitioner claims that he suffered pain while bending and standing on his toes. However, as the doctor did not know of the injury or the pain he was approved as able to perform work with Sands Products Company. During his employment with Sands Products Company the petitioner drove a truck, lifted bags of cement weighing some 96 pounds each, and operated a cement mixer. He claims that this work was done under pain and that he wore a strap or corset from the time of his injury in 1955 until the time of the trial. During April of 1956, while in his employment with Sands Products Company, petitioner picked up a bag of cement and suffered such pain that it was necessary for him to lie down.

The petitioner first filed suit against H. B. Bruser and his insurer alleging that he was totally and permanently disabled as a result of the accident which occurred' in 1955. The defendants filed a plea of prescription which was overruled by the Lower Court evidently for the reason that he had returned to lighter work with them at full pay and that one year had not expired between the time of his discharge and the date of filing of the suit. The defendants then filed an answer which, in substance is a general denial. The suit against Mr. Bruser and his insurer was filed on March 13th, 1956. On November 19, 1956 the petitioner filed suit against Iowa Mutual Insurance Company, the insurer of Sands Products Company. The defendant denied that the petitioner received an accident or injury while working for its assured.

As stated above, the Lower Court gave judgment in the suit against H. B. Bruser et al., for total and permanent disability, at a rate of $30 a week commencing on February 1, 1955 for a period not to exceed 400 weeks, subject to a credit of $30 a week from February 1, 1955 through August 31, 1955, during which period petitioner was paid full wages although he was off for some time and did light work the other time. The Court also gave judgment for petitioner for medical expenses and all costs. In the suit against Iowa Mutual Insurance Company, the Lower Court gave judgment for defendant and dismissed the petitioner’s demand. No written decision was handed down by the Lower Court. The medical testimony, we think, conclusively shows that the petitioner suffered a back injury in February 1955, which was diagnosed as a possible herniated disc. Dr. Pickell testified that on his examination in Februaryof 1955 the petitioner was suffering from such an injury, and that he was still suffering from same on December 28, 1955, when petitioner was again examined by Dr. Pickell. Dr. Pickell testified that in his opinion the petitioner was totally and permanently disabled, and that the only treatment would be prolonged therapy or surgery.

Dr. Forman, a neuro surgeon, examined petitioner on June 7, 1956, and concluded that he was suffering from a ruptured inter-vertebral disc. Dr. Forman said that the petitioner gave him no history whatsoever of an injury during April 1956, but that the petitioner did claim that his injury was received as a result of the accident of February 1955. Dr. Forman testified that petitioner’s chances of recovery without surgery were nil. Dr. Dowell, an orthopedic surgeon, examined the petitioner on June 1, 1956. He testified that the petitioner gave a history of the accident in 1955, and stated that he did not recover from the 1955 injury but reinjured his back in 1956. Dr. Dowell also diagnosed the injury as a herniated intervertebral disc, which required surgery. The petitioner was referred to Dr. Dowell by Dr. Hopper, a general practitioner, and to whom the petitioner was sent following his injury of April 1956.

The petitioner himself testified that from the date of the accident in February of 1955, he has continuously suffered from his back. His pain has subsided somewhat with rest, however, whenever he did or attempted to do any labor, he did so under great pain. We feel that the evidence conclusively shows that the petitioner was totally and permanently disabled as a result of the accident of February 1955, as the jurisprudence of this state does not require a compensation claimant to do work while suffering pain. The question is, therefore, whether or not there was an accident during April of 1956 which caused a new injury, or aggravated a preexisting injury to such extent as to hold Iowa 'Mutual Insurance Company liable for compensation payments. Due to the difficulty with which the petitioner performed his work following his accident of February 1955, we do not think that he suffered an additional accident or injury while working for Sands Products Company which would come under the provisions of the workmen’s compensation act. The defendants, H. B. Bruser et al., has cited Williams v. Russell, La.App., 87 So.2d 761, as support of their position. In that case the petitioner suffered an old back injury some seven or eight years prior to the new back injury. Between the two injuries petitioner did heavy manual labor for a period of some seven or eight years without ill effects. In that case the Court held that if any trouble existed due to the old injury that trouble was latent, and that the disability of petitioner to earn a living was caused by the new injury. We do not feel that that case helps in the determination of our problem, as the facts there show that the petitioner had recovered to such an extent that he could successfully perform heavy manual labor, while in the present case, the evidence shows that the petitioner attempted to work for two employers without success before securing employment with Sands Products Company which was performed by petitioner under great pain. We have also been cited to Stansbury v. National Auto & Casualty Insurance Company, La.App., 52 So.2d 300. In that case the petitioner fractured his leg while working for a seafood company. He was treated for said leg and his doctor told him to use the leg as much as possible. Some time later he returned to work for the same company, doing lighter work. While working for the same company the same leg was' again fractured in the same location. Two suits were filed because the employer’s compensation insurance carrier had been changed between the accidents. The Court held that these were two separate and distinct fractures to the leg, and the record shows that petitioner was successfully recovering from the first fracture at the time he received the second fracture.

Defendants, Bruser et al., also cited White v. Taylor, La.App., 5 So.2d 337, 340. In this case plaintiff was injured on October 5 when a wheelbarrow loaded with ninety to one hundred bricks turned over on him and injured his back. He returned to work on October 7 for a sub-contractor and worked for one hour in pain when he twisted his hack. The court said:

“There is no doubt, in our minds, that the first accident would have caused total disability to deceased in a very short time in the condition he was and there is strong probability that the second accident, without the first having happened, would also have soon caused total disability, but ive are convinced that it took a combination of the two accidents to totally disable the deceased at the time that he became disabled on October 7,1939.”

For that reason all defendants were held liable in solido. But we do not think the facts and findings in that case to be applicable here.

We have also been cited to Estilette v. U. S. Fidelity and Guaranty Co., La.App., 64 So.2d 878, 881. In this case the plaintiff was working for a funeral home and was involved in an accident on November 5, 1950 and suffered a crushing injury to the chest with fractures of the left second, third, fourth, and fifth ribs, fractures of the sturnum or breastbone in two places, fractures of the upper alveolar process, and loss of some teeth. Some time later and while still suffering from the first accident, while working for himself on April 4, 1951 while helping lift a casket, he strained himself and the pain in his chest got worse. This court stated:

“First, defendant contends that plaintiff’s present disability was not caused by the accident of November 5, 1950 but was caused by plaintiff’s straining and exertion on April 4, 1951, at which time plaintiff himself was owner of the business. But we see no merit in this. While plaintiff •had made apparently satisfactory recovery after the accident in 1950 so that the doctor felt he was justified in first instructing him to resume light work and then later to increase the amount of work he was doing, actually plaintiff’s recovery had not been as full .as he and the doctor thought. Proof of this is seen in the subsequent events, to wit, that while obeying the doctor’s instructions and trying to do work customary in his employment he aggravated the area of the injury and caused definite disability again which, the medical evidence indicates, will not heal by natural processes. Plaintiff’s first accident on November 5, 1950 was the sine qua non. Without it there would have been no difficulty resulting from the lifting he did on April 4,1951.”

The situation in the present case is entirely different from the situation presented in the cited cases except the Estilette case. The record shows that the petitioner suffered total and permanent disability as a result of the accident of February 1955, and that said disability would continue until remedied by surgery or prolonged therapy. The facts further show that the petitioner suffered pain after the 1955 accident until the time of the trial, and that the only time the pain would subside would be when he rested or took dope pills which were prescribed by one of his' doctors. The petitioner testified that after working all day he would go home and attempt to sleep on a board because his back was paining him so much.

The petitioner testified that during the period from his injury in 1955 until the date of the trial it was necessary for him to wear a brace to protect his back.

We feel that the evidence conclusively shows that the petitioner was totally and permanently disabled as a result of the injury to his back while working for H. B. Bruser in February 1955, and that said disability continued until the time of the trial. Although the petitioner subsequently-attempted to work in order to support his family, we do not feel that Sands Products Company or their insurer can be held liable for compensation payments under the facts presented.

As to the plea of prescription filed in the suit against H. B. Bruser et al., we feel that same was properly overruled because the records showed that petitioner continued to receive full wages in lieu of compensation until his employment was terminated in August of 1955, and a full year had not elapsed between the time of his discharge and the time of filing suit. A separate judgment will be rendered in the suit against Iowa Mutual Insurance Company.

For the reasons assigned, the judgment of the Lower Court will be affirmed, all costs of this appeal to be paid by the defendants.

Judgment affirmed.


text:
    Morris JACKSON v. IOWA MUTUAL INSURANCE COMPANY.
    No. 4466.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Benton & Moseley, Baton Rouge, for appellant.
    Huckabay & Wall, Baton Rouge, for ap-pellee.
   LOTTINGER, Judge.

Petitioner filed suit in workmen’s compensation for total and permanent disability for injuries sustained during the month of April, 1956, while working for Sands Products Company. Iowa Mutual Insurance Company, the compensation insurer of Sands Products Company, was made the defendant. This suit was consolidated for trial with another suit filed by petitioner against H. B. Bruser, et ah, which was a compensation suit for injuries resulting from a prior accident. The cases were consolidated for trial, however, separate judgments were rendered.

The Lower Court rendered judgment in this matter in favor of the defendant and dismissed the petitioner’s suit. For the reasons assigned in the suit entitled Jackson v. Bruser, La.App., 96 So.2d 850, the decision of the Lower Court will be affirmed.

Judgment affirmed.