author: McCALEB, Justice.

text:
    231 La. 840
    STATE of Louisiana ex rel. Edgar L. TORRANCE et al. v. CITY OF SHREVEPORT.
    No. 42775.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.

      C. B. Prothro, Harry R. Nelson, Charles C. Gray, Shreveport, for plaintiffs-appellants.
    William L. Murdock, James W. Hammett, Robert E. Eatman, Shreveport, for defendants-appellees.
   McCALEB, Justice.

This is a mandamus proceeding in which plaintiffs seek to compel the City Council of the City of Shreveport to repeal, revoke and rescind Ordinance No. 108 of 1954 revoking the dedication of a portion of Thomas Street, which street is situated one-half in the City of Shreveport and one-half in Caddo Parish, outside the corporate limits of Shreveport. Similar action was taken by the Police Jury of Caddo Parish by resolution passed on September 9, 1954 and plaintiffs filed a companion suit against Caddo Parish Police Jury seeking the same relief as prayed for herein. That suit was consolidated for trial with this one.

The City Ordinance and tlie resolution of the Police Jury were adopted pursuant to petitions presented to the respective governing bodies by J. I. Roberts and R. O. Smith, who owned the property abutting Thomas Street. Plaintiffs, who own property abutting Thomas Street north of the part that was closed by the ordinance and resolution revoking the dedication, allege in their petitions that the action of the respective governing bodies was capricious, arbitrary and shortsighted; that the street was closed without their knowledge and for the benefit of J. I. Roberts and R. O. Smith and that they and the public generally have sustained damage and injury by the unjustified action as Thomas Street was never abandoned nor was it ever unnecessary or unneeded for public use. It is further averred in a supplemental petition that, prior to the action of the governing bodies, the portion of Thomas Street closed by the ordinance and resolution had been used by the public as a passageway not only by people living in the immediate neighborhood but also by those engaged in business.

Conformably with plaintiffs’ prayer, an alternative writ of mandamus was issued and made returnable on November 18, 1955. On that day, each defendant filed, in addition to its answer, various dilatory and peremptory exceptions, including an exception of no cause of action. This latter exception was founded on the theory that, since the revoking of the dedication of a street is within the discretion of the appropriate governing authority, a writ of mandamus will not lie to compel such authority to perform or set aside an act which is discretionary rather than ministerial in character. The lower court sustained the exception and dismissed plaintiffs’ suit. Plaintiffs are appealing.

Defendants’ authority to revoke and set aside the dedication of a portion of Thomas Street is found in R.S. 48:701 which reads, in part, as follows:

“The parish governing authorities and municipal corporations of the state, except the parish of Orleans, may revoke and set aside the dedication of all roads, streets, and alleyways laid out and dedicated to public use within their respective limits, when the roads, streets, and alleyways have been abandoned or are no longer needed for public purposes.”

This statute plainly confers discretionary power upon the appropriate authorities to revoke the dedication of roads, streets and alleyways. Caz-Perk Realty v. Police Jury, 207 La. 796, 22 So.2d 121. And no doubt, in case of an abuse of discretion, anyone having an interest, who has sustained injury thereby, may have the illegal action declared null in appropriate proceedings. However, the precise question here is whether a writ of mandamus will lie to compel a governing authority to repeal its act revoking a dedication in the event the revocation is found to be an abuse of discretion.

Mandamus, a summary writ of very ancient origin, is an extraordinary remedy to be used as a supplementary means of obtaining substantial justice where there is a clear legal right and no other adequate legal remedy. Ferris, Extraordinary Legal Remedies, Sec. 190, pp. 221-222 and High, Extraordinary Legal Remedies, 3rd Ed., Sec. 6, p. 10.

It is defined in our Code of Practice, art. 829, as “an order issued in the name of the State by a tribunal of competent jurisdiction, and addressed to an individual or corporation, or court of inferior jurisdiction, directing it to perform some certain act belonging to the place, duty or quality with which it is clothed.”

While it is the general rule that mandamus may be invoked only to coerce performance of duties that are purely ministerial in nature, it is well settled in this state as well as in other jurisdictions that the writ may also be employed to reach and correct an arbitrary or capricious abuse of discretion by public boards or officials. State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999, 67 L.R.A. 70; State ex rel. People’s State Bank v. Police Jury, 154 La. 389, 97 So. 584; State ex rel. Meaux v. Village of Morse, La.App., 6 So. 2d 221; Charbonnet v. Board of Architectural Examiners, 205 La. 232, 17 So.2d 261; State ex rel. Kohler’s Snowite Laundry & Cleaners v. State Board of Commerce and Industry, 205 La. 622, 17 So.2d 899; State ex rel. Murtagh v. Department of City Civil Service, 215 La. 1007, 42 So.2d 65; 55 C.J.S., Verbo Mandamus, § 63(c) and 34 American Jurisprudence, Verbo Mandamus, Sec. 66-69.

However, from an examination of the authorities just cited, it is evident that mandamus will lie only to correct an abuse of discretion in the performance (or nonperformance) of an administrative or quasi-judicial act, such as the arbitrary refusal to grant a license (see Charbonnet v. Board of Architectural Examiners, supra) or the improper discharge of a civil service employee, State ex rel. Murtagh v. Department of City Civil Service, supra. It cannot be used either to force or undo legislative action, it being well established that the courts will not interfere by mandamus with the legislative branch of the government in the legitimate exercise of its powers (except to enforce mere ministerial acts required by law to be performed by some officer thereof) since any such action would do violence to the doctrine of separation of powers. Article 2, Sec. 2 of the Louisiana Constitution; 34 American Jurisprudence, Verbo Mandamus, Sec. 128; 55 C.J.S., Verbo Mandamus, § 130 and Ferris, Extraordinary Legal Remedies, Sec. 285, p. 362. See also Durrett Hardware & Furniture Co. v. City of Monroe, 199 La. 329, 5 So.2d 911, 140 A.L.R. 433, holding that a court of equity may not ordinarily enjoin a municipal body from passing an ordinance where it is acting under the guise of its legislative powers.

In passing the ordinance and resolution revoking the dedication of a portion of Thomas Street, the governing bodies in the instant case were acting in their legislative capacity and, obviously, they could not have been coerced by mandamus to enact such discretionary legislation. A for-tiori, the writ cannot be employed to force them to repeal the legislation. If the action complained of by plaintiffs is unlawful, they have a remedy by ordinary process; the right to resort to summary proceedings cannot be extended beyond the cases expressly authorized by law. Houeye v. St. Helena Parish School Board, 213 La. 807, 35 So.2d 739 and cases there cited.

The judgment appealed from is affirmed.

      . The ordinance of the City Council of the City of Shreveport revoked the dedication of: “the East half of Thomas Street, lying within the city limits of the City of Shreveport, also lying North of the North line of North Market Street and South of a line which would coincide with the North line of Lot 28 of the Tacony Subdivision if extended Bast to the East line of Thomas Street.”
      The resolution of thé, Caddo Parish Police Jury revoked the dedication of: “That portion of Thomas Street over which the Caddo Parish Police Jury has jurisdiction, lying between the North right-of-way line of State Highway No. 8 (North Market Street), and, a line running East and West across Thomas Street and formed, located or obtained by projecting due East across Thomas Street, the common boundary line between Lots 27 and 28 of the Tacony Subdivision, * * *


source: Caselaw Access Project

license: Public Domain

text:
    231 La. 848
    STATE of Louisiana ex rel. Edgar L. TORRANCE et al. v. CADDO PARISH POLICE JURY.
    No. 42776.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.
    C. B. Prothro, Harry R. Nelson, Charles C. Gray, Shreveport, for plaintiffs-appellants.
    Edwin L. Blewer, John A. Richardson, Shreveport, for Caddo Parish Police Jury, defendants-appellees.
   McCALEB, Justice.

This case was consolidated for trial in the lower court and here with State ex rel. Torrance v. City of Shreveport, 231 La. 840, 93 So.2d 187, and presents the same issues.

For the reasons given in that matter, the judgment appealed from is affirmed.


text:
    231 La. 849
    Joseph MOTICHEK et al. v. John J. PERRILOUX.
    No. 42696.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.

      Fred J. Heintz, Covington, Benj. W. Miller, Bogalusa, for defendant-appellant.
    Philip E. Pfeffer, Covington, for plaintiffs-appellants.
   McCALEB, Justice.

Plaintiffs, the heirs of Jacob Motichek, claiming that defendant trespassed on land owned by them in St. Tammany Parish and removed the timber from I1/2 acres thereof, seek recovery of damages in the sum of $8,-250, the alleged manufactured value of the removed timber, contending that defendant acted in moral bad faith.

Defendant filed an exception of no cause of action, which was overruled, and thereafter answered denying generally the allegations of plaintiffs’ petition. A trial on the merits resulted in judgment in favor of plaintiffs for $1,880. The judge found that defendant had cut and removed the timber from the eastern 1Y2 acres of plaintiffs’ land as alleged but that, being in good faith, defendant was liable only for the stumpage value of the timber which amounted to $1,-880. Both litigants have appealed from this judgment, defendant contending that he did not trespass on plaintiffs’ land and plaintiffs asserting that the judge should have held that defendant was in moral bad faith.

It appears that on July 23,1903 one Louis Galatas and others, heirs of Rudolph Gala-tas, caused a survey to be made by the late J. M. Yates, formerly the Parish Surveyor of St. Tammany Parish, of a certain parcel of land owned by them in Section 14, Township 7 South, Range 10 East, Greensburg District of Louisiana, designated as Lot 16. This survey, which was introduced in evidence, indicated that Lot 16 contained 10 acres, more or less.

On April 2, 1906 the Galatas heirs sold to John Thomas the eastern four acres of this property described in the deed as follows:

“All that certain lot or parcel of land situated in the Parish of St. Tammany, State of Louisiana, described as being Four (4) acres of land situated in Section No. 14, Township Seven (7), South of Range Ten (10) East, of St. Hel. Mer. and bounded as follows to-wit:
“On the North by a 50 foot road, East by a 30 foot alley, South by the present vendors, and West by land of Victor Baham.”

On March 10, 1908 the Galatas heirs sold to Henry and J. E. Edwards certain other property situated in the same section and described as follows:

“Six acres of land situated in the Parish of St. Tammany, State of Louisiana, in the S.W. quarter of Section 14, T.S.7,S, of R. 10 E. Greensburg District of Louisiana, being a portion of Lot 16, bounded on the North by Fifty foot road, South and West by Section lines of Section 14, and 44, East by Lot of John Thomas, or balance of Lot 16.”

This property was subsequently acquired under the same description by Henry Edwards and sold by him on May 22, 1912 to Jacob Motichek, father of the present plaintiffs.

Defendant, prior to cutting and removing the timber from land which plaintiffs allege they own, engaged Mr. Lowell E. Cummings, a licensed surveyor, to survey the Motichek property situated in Section 14. Using the Yates plat as a basis, Mr. Cummings surveyed out 6 acres as belonging to plaintiffs and defendant proceeded to cut and remove timber from the remainder of Lot 16. Mr. Cummings did not make a survey of the 4 acres conveyed to John Thomas in 1906. Upon interrogation by the court, using the Yates plat as a basis and applying thereto his own findings, he ascertained the entire acreage of Lot 16 to be 10.31 acres.

It is plaintiffs’ position that defendant cut and removed timber not only from the 4 acres owned by John Thomas but also from lYz acres owned by them. To substantiate this contention they offered in evidence a survey of the Motichek property in Sections 14 and 44 made by Mr. C. M. Moore subsequent to defendant’s alleged trespass. This survey, also based on the Yates plat and using John Thomas’ lot as the eastern boundary, revealed that plaintiffs have title to 7Yz acres in Lot 16. In other wordg, Mr. Moore ascertained Lot 16 to comprise lU/i acres. His survey indicates, .and Mr. Moore so testified, that two rusty iron stakes mark the boundary between plaintiffs’ 7i4-acre tract and the 4 acres belonging to John Thomas. He also found the remains of an old rail fence that, in his opinion, formerly separated the two tracts.

Defendant concedes that he cut and removed timber from all of Lot 16 other than from the 6 acres surveyed out by Mr. Cummings but he contends that, in conformity with the language contained in the 1912 deed from Henry Edwards to Jacob Moti-chek, plaintiffs acquired no more than the western 6 acres of land in Lot 16.

We think the trial judge was correct in sustaining plaintiffs’ position as the deed from Henry Edwards to Jacob Moti-chek exhibits that it is a sale per aversion-em, or between fixed boundaries, even though it specifies that six acres of land are conveyed. The description in this deed sets forth that the six acres of land conveyed are “bounded on the North by Fifty foot road, South and West by Section lines of Section 14 and 44, East by Lot of John Thomas, or balance of Lot 16.” This clearly evinces the intention of the vendor to convey all of the property owned by him within the given boundaries and, therefore, falls within the provisions of Article 854 of the Civil Code which declares:

“If any one sells or alienates a piece of land, from one fixed boundary to another fixed boundary, the purchaser takes all the land between such bounds, although it give him a greater quantity of land than is called for in his title, and though the surplus exceed the twentieth part of the quantity mentioned in his title.”

In contending that plaintiffs’ ancestor did not acquire more than six acres of land, as specified by their title, counsel for defendant argue that the boundaries contained in the description should not be controlling as to the acreage conveyed because the eastern boundary designated as “Lot of John Thomas” is followed by the disjunctive phrase “or balance of Lot 16” which was inserted in the deed to provide an alternative eastern boundary in the event the first eastern boundary, i. e., the lot of John Thomas, defined a tract in excess of six acres.

This argument is not impressive. The clause “or balance of Lot 16”, as used in the last line of the description, cannot be regarded as prefacing an alternative boundary. On the contrary, it is merely explanatory of the statement that the eastern boundary of the property is the lot of John Thomas. The conjunction “or”, as used in the description, is synonymous with “to wit”, “in other words” or “that is to say” and is employed to clarify the preceding phrase “Lot of John Thomas”. See Black’s Law Dictionary, 4th Ed., page 1246 and Peck v. Board of Directors, 137 La. 334, 68 So. 629.

Furthermore, there is no language contained in the deed from Henry Edwards to Jacob Motichek which would justify a conclusion that the vendor intended to retain for himself any land between the property he was selling and that of John Thomas. Conversely, we think the deed evidences a clear design on the part of the vendor to convey his entire ownership in Lot 16.

The next question to be ascertained is the extent of defendant’s trespass. The trial judge, in finding that plaintiffs owned 7l/2 acres in Lot 16 and that defendant, who admittedly cut timber on all but 6 acres in Lot 16, trespassed on D/2 acres of plaintiffs’ property, accepted the calculations of Mr. Moore over those of Mr. Cummings.

We are in accord with this conclusion. Mr. Moore arrived at his figure after surveying all of Lot 16 while Mr. Cummings’ result was based on a survey of six acres only, the findings from which he applied to the Yates plat to determine a total acreage of 10.31 acres.

Plaintiffs complain that the judge should have found that defendant acted in moral bad faith. The evidence reveals that, prior to the cutting of the timber, defendant went to one of the plaintiffs, Joseph Moti-chek, to ascertain the eastern boundary of plaintiffs’ land. Joseph Motichek admits that defendant called on him and states that he showed defendant the boundary line. But defendant testified that Motichek did not know the boundary line and it was for this reason that he hired Mr. Cummings to compute the eastern boundary of plaintiffs’ property. It is admitted that he did not cut timber west of the boundary line calculated by Mr. Cummings. The judge gave credence to defendant’s testimony and we subscribe to his finding that defendant was in neither moral nor legal bad faith when he cut and removed plaintiffs’ timber.

Plaintiffs urge for the first time on this appeal that defendant’s moral bad faith is evidenced by his failure to show that he had any right to cut timber from even the Thomas tract. While it is true that defendant offered no specific proof that he had purchased the timber on the Thomas tract, it is implicit from the pleadings and testimony that he had lawful authority to cut and remove the timber from that property. Accordingly, since defendant’s cutting of plaintiffs’ timber was in good faith, he believing that he was authorized to remove it and there being no valid reason for him to suppose otherwise, the trial judge properly found him liable only for its stumpage value. Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847 and cases there cited.

The judgment appealed from is affirmed.

      . It is well established that the method of identifying land by acreage is the weakest method known, yielding to every other method. See W. B. Thompson & Co. v. McNair, 199 La. 918, 7 So.2d 184.

      . A trespass is in moral bad faith when it is reckless and willful while it is said to be in legal bad faith when the trespasser believes himself to be the owner but should have known otherwise, either from information available to him or ascertainable facts which would have placed a reasonably prudent man on notice. Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847.


text:
    231 La. 859
    CALVERT FIRE INSURANCE COMPANY v. Jack LEWIS.
    No. 42725.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.
    Norman R. Tilden, New Orleans, for plaintiff-appellant and respondent.
    A. J. Marciante, New Orleans, for defendant-appellee and relator.
   McCALEB, Justice.

This suit for damages, which comes to us on a writ of certiorari granted to defendant, arises out of an automobile collision which occurred in the city of New Orleans on a rainy morning (November 10, 1950) at the intersection of North Broad and St. Philip Streets when a Studebaker automobile owned and operated by the defendant, Jack L. Lewis, was struck on its right rear door and fender by a Packard car owned and driven by one Louis M. Cherry of Meridian, Mississippi. As a result of the accident, defendant’s car was damaged in the amount of $138.38 and Cherry’s car sustained damage to its front portion, hood, radiator, etc., necessitating repairs costing $454.15.

Cherry carried a $50 deductible collision policy with the plaintiff, Calvert Fire Insurance Company, and the latter paid $404.-15 of the total damage and took a conventional subrogation from Cherry for this amount. Thereafter, it instituted this suit against Lewis for reimbursement of the $404.15, claiming that the accident was entirely attributable to his negligence. Lewis answered denying generally the allegations of the petition and also filed a reconven-tional demand charging Cherry with certain specific acts of negligence and praying for judgment against him for the $138.38 damage sustained by the Studebaker car.

The point of impact between the two cars was the riverside roadway of North Broad Street at its intersection with St. Philip Street. North Broad Street is a paved dual highway running from Canal Street to Gentilly Road. It is separated by a neutral ground 25 feet in width and its two roadways are 35 feet wide. The lakeside roadway accommodates traffic proceeding towards Canal Street and the riverside roadway is devoted to traffic travelling towards Gentilly Road. The street is intersected at right angles by St. Philip Street which is a 35-foot one-way paved street running from Bayou St. John towards the Mississippi River.

At the time of the accident, Cherry was driving his Packard car on the riverside roadway of North Broad Street and Lewis was crossing over the intersection from the lake side of St. Philip Street to the river side and had reached and. preempted the riverside roadway crossing when the right rear side of his car was struck by the front end of the Packard as it came into the intersection.

On the trial of the merits, only the participants testified as to the cause of the accident and the trial judge, finding both drivers guilty of negligence, rendered judgment dismissing the main demand and the demand in reconvention. Thereafter, plaintiff applied for a rehearing contending that, since defendant, who was found to be at fault, had failed to plead Cherry’s contributory negligence as a special defense, there should have been judgment in favor of plaintiff.

The trial judge refused the rehearing. Plowever, he granted a new trial, ex pro-prio motu, at which he permitted defendant to amend his pleadings by inserting in his reeonventional demand, after the allegations of negligence, the words: “that plaintiff was contributorily negligent”. No further pleadings or evidence being offered by either litigant on the new trial, the original judgment was reinstated.

On plaintiff’s appeal from this judgment, the Court of Appeal for the Parish of Orleans reversed the lower court as to the main demand and awarded plaintiff judgment for $404.15. The basis of the appellate court’s opinion was that the defense of contributory negligence could not be considered since it had not been pleaded and, further, that it was improper for the trial judge to permit an amendment to pleadings injecting a new defense (contributory negligence) after the case had been fully tried on its merits. See 83 So. 2d 139.

Before considering the correctness of the respective rulings anent the sufficiency of the pleadings to present the defense of contributory negligence, we must first determine whether plaintiff has established that defendant was guilty of negligence which was the proximate cause of the accident. This presents, of course, solely an issue of fact.

Plaintiff specifies in its petition that Lewis was guilty of negligence in failing to stop in obedience to a “Stop” sign located at the entrance to the lakeside lane of North Broad Street; that he proceeded across the intersection at 30 miles per hour and that he also violated Section 10(b) of Article VI of the Traffic Ordinance of the City of New Orleans in failing to come to a full stop on the neutral ground of North Broad and St. Philip Streets and in not blowing his horn before entering the intersection.

The only .evidence offered to substantiate these charges of defendant’s fault was that of Cherry himself. The substance of his testimony is that he was travelling on North Broad Street, approximately 7 feet from the neutral ground curbing, at a speed of 20 to 25 miles per hour; that, as he was approaching the intersection of St. Philip Street, he noticed another automobile overtaking his car from the rear on the right-hand side; that he did not see defendant’s Studebaker coming across the neutral ground and entering the intersection until his car was about 30 feet from it; that defendant’s car was travelling at approximately 20 to 25 miles an hour; that it did not stop on the neutral ground but came right into the intersection and that, although he applied the brakes of the Packard car, which caused it to skid some 10 feet, he was unable to avoid colliding into the right rear side of the Studebaker. Cherry says too that, at the time he struck defendant’s car, the other automobile which had been travelling to his right in the Broad Street roadway had overtaken his car and that this automobile also struck the car of the defendant.

Opposed to this version of the accident is the testimony given by defendant, the only other witness thereto. He says that, on reaching North Broad Street, he came to a complete stop at the lakeside corner in obedience to the “Stop” sign located at the intersection; that he then negotiated the lakeside roadway of North Broad Street and that, when he reached the neutral ground, he again came to a complete stop and looked to his right for traffic proceeding on the riverside roadway; that he observed an automobile (which Cherry apparently contends was the automobile attempting to overtake his Packard) on the right-hand side of the roadway approaching at a slow rate of speed and, feeling that he had ample opportunity to cross, he put his car in low gear and started over the intersection; that, just as he was leaving the neutral ground, he noticed Cherry’s car about 75 feet away; that this car had pulled out from behind the car on the right and was proceeding to pass that car at a fast rate of speed and that, after he (defendant) had preempted the roadway, Cherry’s car crashed into the right rear side of the Studebaker despite application of the brakes by Cherry, which caused the Packard to skid forward over the wet pavement for some 30 feet. Defendant estimates that Cherry was driving at approximately 50 miles an hour and stated that the impact was so great that it spun his Studebaker twice around. He also contradicts Cherry’s statement that the unknown car struck the Studebaker; he says that the car stopped short of the intersection to allow him to cross.

It is seen from the foregoing that the testimony of the participants is in hopeless conflict as to the cause of the accident and as to the conduct of each just prior to the impact. Under such conditions, it is proper to look to the physical facts and other surrounding circumstances in an effort to ascertain the truth. But in this case there is no corroboration of the statement of either participant and no physical facts to which we may turn other than the fact that Cherry’s car struck the Studebaker after it had preempted the crossing. This fact, while not decisive, would seem to indicate that Cherry did not have his car fully under control or was not exercising a proper lookout and, to this extent, may be said to be favorable to defendant.

In holding that the evidence in the case convicts both parties of negligence, the trial judge remarked that he accepted the testimony of the participants “at face value” and the Court of Appeal, without discussing the conflicting testimony, merely stated that the record conclusively showed that both drivers were at fault.

In view of the irreconcilable statements of Cherry and Lewis, we think that both courts erred in their appreciation of the evidence. Obviously, it was impossible for the trial judge to accept the testimony of each driver at its face value as one or the other is not telling the truth or is mistaken. If Cherry is believed, then defendant is guilty of gross fault and, if Lewis is correct, it cannot be gainsaid that the accident is exclusively attributable to Cherry’s dereliction. Under these circumstances, without the aid of corroborating evidence and any physical fact, other than the one to which we have above adverted, it is clear that plaintiff’s demand must be rejected as it carried the burden of establishing defendant’s negligence by a preponderance of evidence. And, when we analyze the opposing versions of the participants in the accident, we cannot say that Cherry’s testimony is more credible and more in accord with the reasonable probabilities than that of Lewis. Indeed, after a careful examination of both statements, we find no reason to hold that Lewis was at fault in any particular.

In view of this conclusion, it is not essential that we consider whether defendant’s pleadings were sufficient to raise the defense of contributory negligence. Nor need we consider defendant’s reconventional demand as that demand is directed against Cherry, who is not a party to the suit.

The judgment of the Court of Appeal is reversed and the judgment of the district court is reinstated and affirmed. Plaintiff is to pay all costs.

HAMITER, J., concurs in the decree.

      . The assertion of the reeonventional demand against Cherry was improper because Cherry was not a party to the suit and Calvert Fire Insurance Company, plaintiff and subrogee of Cherry under the collision insurance policy, was not the public liability insurer of Cherry. However, despite the attempts of the attorneys for Cherry’s public liability insurer, Bruce, Dodson & Company (who were permitted to make themselves counsel of record in the case) to have the reeonventional demand dismissed, the trial judge insisted on taking this demand into consideration theorizing that the damages pleaded by defendant could be offset or compensated against whatever judgment plaintiff, Cherry’s sub-rogee, might obtain against him if Cherry was guilty of negligence. There is no substance in this theory for the reason, among others, that compensation or offset, which takes place by operation of law, applies only as to liquidated debts and has no pertinency to tort claims. Civil Code Articles 2207-2216.

      . The judge stated at the new trial that he did not think the amendment necessary since defendant had charged, in Ms reconventional demand, that Cherry was guilty of negligence but be permitted the amendment “out of an abundance of caution”.


author: PONDER, Justice.

text:
    231 La. 869
    RECREATION AND PARK COMMISSION OF EAST BATON ROUGE PARISH v. Mrs. Adella B. PERKINS et al.
    No. 42809.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Deb. 25, 1957.
    J. St. Clair Favrot, Dist. Atty., Baton Rouge, for plaintiff-appellant.
    Laycock & Stewart, for defendants-appellees.
   PONDER, Justice.

The plaintiff has appealed from a judgment of the lower court awarding the defendants $131,370 for the lands expropriated by the plaintiff. The plaintiff takes the position that the award should be decreased to $57,867. The defendants have answered the appeal asking that the award should be increased to $148,853.25.

The plaintiff expropriated 43.79 acres of the defendants’ lands situated in the City of Baton Rouge. It appears that the plaintiff offered the defendants $94,270 for the lands prior to the filing of the suit which was refused by the defendants. Thereafter, the plaintiff brought these proceedings and on the date of the trial the plaintiff offered the defendants $57,867 for the property, which was refused by the defendants. The case was then tried and the lower court awarded the defendants the the amount heretofore set out. The plaintiff has appealed and the defendants have answered the appeal.

The sole questions presented in this case are the value of the property expropriated and the fees to be paid the defendants’ experts who testified in the case.

It appears from the judgment of the lower court that the value of the lands was fixed at $3,000 per acre which was based on sales of similar property situated in the vicinity. However, we find that the lower court made no allowance for the improvements on the property. The improvements consisted of a house which the evidence shows was worth $6,000.

It appears from the record that a number of witnesses testified as to the value of the land, fixing its value at prices ranging from $753 per acre to $3,250 per acre. Only two of these expert witnesses, defendants’ witnesses, based their appraisal of the value of the land on recent sales of similar property located in the same vicinity. One of these witnesses fixed the price at $3,200 an acre and the other at $3,250 an acre. These figures were based primarily on the sale of property for the Howell Elementay School site which adjoins the property in dispute herein which was recently sold for $3,220 per acre.

The testimony of the experts offered by the plaintiff was to the effect that they had', to adjust the price of the Howell School site because the property was inundated in 1953. These expert witnesses based their appraisal of the property on their opinion as to what it would be worth as a subdivision without taking into consideration the sales of comparable property in the vicinity.

The defendants offered in evidence copies of deeds of recent sales in the near vicinity of similar property ranging in prices from approximately $3,000 per acre to $9,000 per acre. The evidence shows that all of the property in that vicinity is subject to overflow from Hurricane Creek and that the only occurrence of inundation was in 1953. It does not appear that this property was anymore affected than the other property that had sold for prices in excess of $3,000 per acre.

The trial judge undoubtedly accepted the estimates of the value of the lands fixed by the two experts who based their opinions on recent sales of similar property in the vicinity. We agree that the trial judge was correct in his conclusion because the owner is entitled to the market value of the property and best criterion of that value is the value paid for similar property in recent sales in the vicinity. Caddo Parish School Board v. Willer, 227 La. 201, 78 So.2d 833; Greater Baton Rouge Port Commission v. Watson, 224 La. 136, 68 So.2d 901; City of New Orleans v. Noto, 217 La. 657, 47 So.2d 36. However, it does not appear that the trial judge allowed the defendant any award for the improvements located on the property and the judgment should be amended in this respect by allowing the defendants and additional amount of $6,000 for these improvements.

The question of the fees allowed the expert witnesses in this case has given us much concern. The two realtors were awarded $1,700 each, consisting of $200 for two days attendance in court and $1,500 for preparation to testify. The engineer was awarded $800 for his services rendered m preparation and testifying in the case.

It does not appear that any of these witnesses appeared in court more than two days. It is contended that under the provisions of R.S. 13:3666 expert witnesses are not only allowed a fee for testifying in the case but are entitled to an additional fee for the preparation founded on study and examination. The following cases are cited in support of this contention: State v. La Bauve, La.App., 75 So.2d 862; East Baton Rouge Parish School Board v. Ford, La.App., 76 So.2d 20; Lotz v. Polizzotto, La.App., 161 So. 901, Duvernay v. Airey, La.App., 172 So. 815. We have examined these cases and find that an expert is entitled to a fee for the time used in preparation for testifying in court and the time allowed for appearance in court But only one case fixes the amount for such preparation and appearance and that is State v. La Bauve, supra, wherein the experts were allowed a fee of $50.00 per day for the time they actually appeared in court and approximately $100 for preparatory work.

Fees to be paid experts depend much on the time lost and the extent of their examination of matters on which they express an opinion and it appears that no absolute rule can be fixed as to the amount to be allowed in all cases. Unquestionably under the provisions of LSA-R.S. 13:3666 experts are entitled to not only a fee for their appearance in court but also an award for their preparatory work, but these fees must be reasonable and somewhat in line with the fees heretofore allowed by the courts of this state.

Under the evidence in this case, it is impossible to tell how much time was consumed by these experts in preparatory work and it does not appear that the preparatory work interfered with the carrying on of their usual business activities. Under the circumstances, we feel that $50 per day for attendance in court and $150 for preparatory work is a reasonable amount.

There was evidence introduced to show that a greater amount was paid by plaintiff to its witnesses. The simple answer to this is that the amount agreed to be paid by the parties is no criterion to be used by this Court in fixing expert fees.

For the reasons assigned, the judgment of the lower court is amended by increasing the award to the defendants in the amount of $6,000 for the improvements located on the expropriated lands; the judgment is further amended by decreasing the award to the expert witnesses so as to allow each of the three expert witnesses $250 each for attendance in court and preparatory work and as thus amended the judgment of the lower court is affirmed.


text:
    231 La. 877
    STATE of Louisiana v. John B. CANNON.
    No. 43134.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied rfeb. 25, 1957.

      Joseph F. Giglio, III, James J. Dormer, Shreveport, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Edwin L. Blewer, Dist. Atty., Shreveport, for plaintiff-appellee.
   PONDER, Justice.

This is an appeal from a conviction of murder. The appeal is predicated upon four bills of exception.

Bills of Exception 1, 2, and 3 were taken to the ruling of the trial judge excluding the introduction of evidence of bad character on the part of the deceased. These three bills recite that: “the evidence that had been previously adduced showed an overt act in the ‘walking toward’ the defendant of the deceased at the time of the shooting and thus the introduction of the evidence as to bad character was proper.” The trial judge in his per curiaras to these bills states that he sustained the objection to the questions for the reason that up to this point in the trial there had been no evidence whatsoever of a hostile demonstration or of an overt act on the part of the deceased as is required by the Code of Criminal Procedure, Article 482, LSA-R.S. 15:482.

An examination of the record reveals that there is no evidence attached to these bills and hence we cannot say that the statement of the trial judge that there was “no evidence” of an overt act is incorrect.

Evidence that is not attached to and made part of a formal bill of exceptions cannot be considered by this Court. State v. LeBleu, 203 La. 337, 14 So.2d 17 (and the authorities cited therein); State v. Bellam, 255 La. 445, 73 So.2d 311. And where the defense has not requested that evidence on the bills of exception be taken down and attached to or made part of the bill, the per curiam of the trial judge as to the facts is controlling. State v. Bradford, 220 La. 176, 56 So.2d 145; State v. McMullan, 223 La. 629, 66 So.2d 574.

Counsel for the defendant stated in argument in this Court that the reason for not having this evidence taken down by the court reporter was the indigent circumstances of the defendant, and for this reason we have carefully examined the bills in connection therewith. But an examination of these bills reflects that the overt act complained of by the defendant was the act of “walking toward” the defendant of the deceased at the time of the shooting. We do not consider this fact an overt act or hostile demonstration and there is no other evidence set out in the hills so reserved. Therefore, Bills of Exception Nos. 1, 2, and 3 are without merit.

Bill of Exception No. 6 was taken to the overruling of a motion for a new trial on the grounds that the verdict was contrary to the law and evidence. This bill presents nothing for review. State v. McMullan, 223 La. 629, 66 So.2d 574, supra; State v. Thomas, 224 La. 431, 69 So.2d 738.

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


author: SIMON, Justice. McCALEB, Justice

text:
    231 La. 881
    Octave BRUCE et al. v. Bertoul CHERAMIE et al.
    No. 42347.
    Supreme Court of Louisiana.
    Dec. 10, 1956.
    Rehearing Denied Feb. 25, 1957.

      Caillouet & Wise, Knobloch & Knobloch, Thibodaux, for plaintiffs-appellants.
    Harvey Peltier, Donald Peltier, Thibo-daux, Kalford K. Miazza, New Orleans, Edmond L. Deramee, Thibodaux, Smither-man, Smitherman & Purcell (by David E. Smitherman), Phillips & Risinger (by W. M. Phillips), Shreveport, for defendants-appellees.
   SIMON, Justice.

On February 17, 1951, plaintiffs, claiming to be the legal owners of certain real property located in the Parish of Lafourche and alleging that defendants, Bertoul Cheramie, Dolte Cheramie, and the heirs of the deceased spouse of Bertoul Cheramie, were possessing and claiming to be the owners thereof, instituted this petitory action seeking to be declared the legal owners and to have defendants account to them for all oil, gas or other minerals removed from the subject land.

By supplemental petition the Spartan Drilling Company, Burford Oil Company and M. H. Marr, as the owners of an oil and mineral lease from defendants of the land in controversy, were made parties defendant herein.

The plaintiffs claim the land in question as heirs of their father, the late Joseph Bruce, who had purchased a large tract of land from Louis Bouvier on July 22, 1905, measuring three arpents, more or less, front on Bayou Lafourche by depth of confirmation and being the uppermost three arpents which Louis Bouvier acquired from Sheldon Guthrie on July 1, 1903. Plaintiffs allege that their father, though alienating certain lots or portions of the property so acquired,, had never divested himself of title in and to' the property here in dispute.

The property in controversy is described as follows:

“A certain tract of land situated in the Parish of. Lafourche, State of Louisiana, on the right descending bank of Bayou Lafourche, about 55 miles below the City of Thibodaux, having a frontage of one hundred thirty-five and 38/100 (135.38'') feet at a distance of approximately seven arpents from Bayou Lafourche and parallel thereto, extending back between parallel lines to the range line separating Range 21 East from Range 22 East, located in Section 12, Township 19 South, Range 22 East, and bounded as follows:

“On the North or above by land owned in indivisión by Philocles C. Authement, and heirs of Joseph Bruce, which land is commonly referred to as Tract ‘B’, on the East or toward Bayou Lafourche, by land belonging to Bertoul and Dolte Cheramie,. now or formerly, on the South or below by land belonging to Philocles Cheramie, which land is commonly referred to as Tract ‘D’, and on the West or rear by the-Range Line separating Range 21 East from' Range 22 East,” which said tract of land is commonly referred to as Tract “C”.

In their answer defendants alleged (l)1 the acquisition of Tract “C” (the property in dispute) by P. C. Authement from Mr. and Mrs. Oscar Authement by deed dated January 26, 1918, hereinafter for brevity referred to as the “1918 deed”; (2) the sale of Tract “C” by P. C. Authement to Bertoul Cheramie by deed dated May 3, 1924, hereinafter for brevity referred to as the “1924 deed”; and (3) actual, physical, open, notorious and continuous peaceful possession of Tract “C” by P. C. Au-thement until his sale to Bertoul Cheramie and by the latter and his children since their acquisition up to the date of the filing' of this suit. Defendants also filed pleas of estoppel and of prescription of ten and thirty years acquirendi causa, which pleas were referred to the merits.

At the outset of the trial, plaintiffs introduced uncontroverted evidence in proof of their heirship from Joseph Brace. They also filed in evidence their complete chain of title from the government patent to the date of Joseph Bruce’s acquisition, as well as the sales by Joseph Brace of the front portion of the original tract of land which, however, is not here in controversy. The property here in question involves only that portion of the Joseph Bruce property in the rear of the seven-arpent line, title to which, plaintiffs allege, had never been divested by Joseph Bruce.

Defendants made no attempt to show a separate and independent chain of title, having none to offer, but relied solely on their prescriptive pleas of ten and thirty years acquirendi causa.

There was judgment in favor of defendants, maintaining the plea of ten years’ acquisitive prescription of the land in controversy and dismissing plaintiffs’ suit at their cost. The plaintiffs appealed de-volutively.

The pleas of estoppel and of prescription of thirty years have been abandoned by defendants on this appeal, leaving the sole issue to be whether, under the deeds referred to and the possession alleged, defendants have acquired title to Tract “C” by the prescription of ten years acquirendi causa.

Defendants base their claim of title upon the 1918 deed, by which Mr. P. C. Authement acquired the following described property:

“A certain tract of land situated in the Parish, of Lafourche, State of Louisiana, on the right descending bank of Bayou La-fourche, State of Louisiana, at about Fifty-two (52) miles below the Town of Thibo-daux, and measuring Two and Three Quarters (2)4), of an arpent front more or less, on said Bayou Lafourche, by depth of survey and Patent.
“Bounded above, the lands of Ozeme Cheramie, and below by lands of Louis Terrebonne. Together with all the buildings and improvements thereon.
“Above described property having been acquired, by the said Mr. and Mrs. Oscar Authement, from Leonce J. Pitre, as per act of sales executed before me, Notary, under date of October 28th, A.D., 1914.”

Defendants also base their claim of title on the 1924 deed by which Mr. Cheramie acquired the following described property:

“1st. A certain tract of land situated in the Parish of Lafourche in the State of Louisiana on the right descending side of Bayou Lafourche at about Fifty Three Miles from the Town of Thibodeaux measuring Thirty-Eight Feet front facing Bayou Lafourche by the depth of Four Hundred and Fifty Feet from water edge bounded above by the land of Adam Chera-mie and Bertude Cheramie and below by the land Vendor Lane, and in rear by the land of vendor described below.
“2sd. A certain tract of land situated in the Parish of Lafourche, State of Louisiana, on the right descending of Bayou Lafourche at about Fifty Three miles from the Town of Thibodeaux measuring One Hundred and Thirty Eight Feet front facing Bayou Lafourche by the depth thereto belonging and appertaining bounded above by the land of Dunbar Dukate & Co., and in front by the land of Ber-tude Cheramie more described above in 1st, and below by the land of Vendor Lane with all improvement thereon belonging and appertaining.”

The property here involved is that described in Paragraph “2sd” of Cheramie’s deed.

Mr. and Mrs. Oscar Authement acquired from Leonce J. Pitre by deed dated October 28, 1914, the following described property:

“A certain tract of land, situated in the parish of Lafourche, on the right descending hank of Bayou Lafourche, at about fifty-two (52) miles below the Town of Thibodeaux, and measuring one and one half (1}4) arpent front, More Or less along said Bayou Lafourche, by seven (7) arpents more or less in depth: Bounded above by lands of Mrs. Oscar Authement (purchased this day from said Leonce Pitre), and below by lands of Louis Terre-bonne.
“Above property, being part of the same property acquired by said Leonce J. Pitre, at Sheriff’s sale, on February 15th, 1913.”

The title asserted by defendants, being a prescriptive one, is necessarily based on Article 3478 of the LSA-Civil Code, which provides that “He who acquires an immovable in good faith and by just title prescribes for it in ten years * * * And on Article 3479, which declares that “To acquire the ownership of immovables by the species of prescription * * *, four conditions must concur:

“1. Good faith on the part of the possessor.
“2. A title which shall be legal, and sufficient to transfer the property.
“3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
“4. And finally an object which may be acquired by prescription.”

Other applicable articles of the Revised Civil Code are:

Article 3481: “Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor, must prove it.”
Article 3482: “It is sufficient if the possession has commenced in good faith; and if the possesion should afterwards be held in bad faith, that shall not prevent the prescription.”
Article 3483: “To be able to acquire by the species of prescription mentioned in this paragraph, a legal and transferable title of ownership in the possessor is necessary; this is what is called in law a just title.”
Article 3484: “By the term just title, in cases of prescription, we do not understand that which the possessor may have derived from the true owner, for then no true prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the ownership of the property.” (The words “just title” italicized in the statute; all other italics ours.)
Article 3485: “And in this case, by the phrase transfer the ownership of the property, we understand not such a title, as shall have really transferred the ownership of the property, but a title which by its nature, would have been sufficient to transfer the ownership of the property, provided it had been derived from the real owners, such as a ‘ sale, exchange, legacy or donation.
“Thus, prescription could not be acquired under a title resulting from a lease or loan, because these contracts do not transfer the ownership of the property.”
Article 3487: “To enable .one to .plead the prescription treated of in this paragraph, it is necessary that the possession be distinguished by the following incidents:
“1. That the possessor shall have held the thing in fact and in right, as owner; when, however, it is only necessary to complete a possession already begun, the civil possession shall suffice, provided it has been preceded by the corporal possession.
“2. That the possession shall have been continuous and uninterrupted, peaceable, public and unequivocal; a clandestine possession would give no right to prescribe; but he who possesses by virtue of a title can not be considered as a clandestine possessor, for his title leads to the supposition that the possession commenced in good faith, and that is sufficient to enable him to plead prescription.”
Article 3493: “The possessor is allowed to make the sum of possession necessary to prescribe, by adding to his own possession that of his author, in whatever manner he may have succeeded him whether by an universal or particular, a lucrative or an onerous title.”

The record contains a photographic copy of the 1918 deed. That portion of the deed describing and delineating the property therein conveyed shows that the words “seven (7) arpents, more or less, in depth” were X’d over and stricken, and in lieu thereof the phrase “of the depth of survey and patent” was written.

Plaintiffs contend that the said description in the 1918 deed was not adequate to transfer the title to the property described, and that the correction made immediately before execution of the deed by the parties was an obvious attempt to increase the amount of property purchased. They further contend that the vendors, not being the owners of the property from the seven-arpent line to the range line, could not and did not sell and convey title to that area; that the only title which could be legally conveyed to the purchaser was the title to the property having a depth of seven ar-pents, more or less.

With reference to the correction contained in the 1918 deed, the purchaser, P. C. Authement, testified that when the deed was originally presented by the notary to him and to the vendors for their signatures, the description of the property to be conveyed thereby was described as having a depth of seven arpents; that, it being his understanding that the vendors owned the property to the rear of the seven-arpent line with a depth to the range line and being desirous of purchasing this entire area, he refused to accept the property limited to a seven-arpent depth; that the notary, in the presence of the vendors, X’d out the phrase “seven arpents, more or less, in depth” and in lieu thereof interlined the words “depth of survey and patent”, thus describing the property as extending from Bayou Lafourche in the front to the range line in the rear; and that with this change the parties affixed their signatures to the deed. He further testifies that he thereafter took actual and physical possession of the entire area so conveyed.

It is significantly noted that the testimony of the officiating notary corroborates in its salient points the testimony of P. C. Authement, the purchaser.

The 1918 deed recites: “Above described property having been acquired, by the said Mr. and Mrs. Oscar Authement, from Leonce Pitre, as per act of sales executed before me, Notary, under date of October 28th, A.D., 1914.” It is observed that the property conveyed by the Pitre deed is described as having a depth of seven arpents, more or less. Upon this recital plaintiffs seek to impose the presumption that since the same notary executed the Pitre deed and the 1918 deed the said notary secured the description as originally shown in the 1918 deed from the Pitre deed.

For this reason plaintiffs contend that when an instrument of sale makes reference to another sale for a more perfect description as to the thing sold the two deeds must be construed together, and the purchaser is bound by such notice and must look to the reference deed to determine the extent of his acquisition. In support thereof plaintiff cites: Lawler v. Bradford, 113 La. 415, 37 So. 12; Lee v. Long, 166 La. 1084, 118 So. 320; Tennent v. Caffery, 170 La. 680, 129 So. 128; Emerson v. Cotton, 209 La. 1003, 26 So.2d 16; Saucier v. E. Sondheimer Co., 212 La. 490, 32 So.2d 900.

We do not consider the cited cases applicable to or decisive of the facts and circumstances of this case. We deem the description contained in the 1918 deed as being fully adequate, without any reference to the Pitre deed, to convey title to the property as described in said 1918 deed. The 1918 deed to P. C. Authement fully describes by metes and bounds the four boundaries of the area in question, fronting or having an east boundary on Bayou La-fourche by a depth or west boundary as called for by the survey and patent and bounded above or north by the lands of Ozeme Cheramie and below or south by the lands of Louis Terrebonne. In regard to the phrase “by depth of survey and patent”, as stated in the 1918 deed, an examination of the survey and patent to the subject property unmistakably shows a depth to the range line separating South Range 21 and South Range 22.

Manifestly, this description with four given boundaries was fully adequate so as not to impose upon the purchaser, P. C. Authement, notice of any defect in the title of his vendors. The reference to the Pitre deed, in the face of such a full description, cannot be considered to have aroused the doubt of the purchaser or have placed him on guard as to any defect in title to the depth of property which he was acquiring.

The record is replete with undisputed evidence that upon his acquisition of the subject property in 1918, P. C. Authement took actual, physical, open and notorious possession of the high land extending about five and one-half arpents from Bayou Lafourche, leasing same for farming purposes, and he further exercised the same dominion of ownership over that part of the land which is exclusively marsh land which that said property was susceptible to, such as the leasing thereof to trappers and its actual use by them for trapping until said property was sold by Bertoul Chera-mie by deed dated May 3, 1924. During this six-year period of the possession thus exercised by him no notice of any claims or protest by Joseph Bruce, author in title of plaintiffs, was made as to the ownership of said property.

The other deed upon which the prescriptive title asserted by the defendants is based is the 1924 deed. Plaintiffs urge the inadequacy of the description in this deed and contend that the deed shows no intention to sell a depth beyond the seven-arpent line; that in fact the deed makes no reference to the seven-arpent line or to the range line. Plaintiffs deny that the descriptive phrase “depth thereto belonging and appertaining” contained in the 1924 deed, embraces the land in controversy, i. e., the land beyond the seven-arpent line and extending to the range line. They argue that such a descriptive phrase indicates that the vendor intended to sell only the full depth of the property legally owned by him; that the said vendor, P. C. Authement, not having legally acquired the property in dispute could not and did not legally convey same to defendants in the' 1924 deed. Notwithstanding this contention, P. C. Authement, who has no interest in the subject property or the outcome of this suit, testified that when he executed the 1924 deed he intended to and did convey and sell the property fronting Bayou Lafourche on the east to a depth extending westerly to the range line, with given northern and southern boundaries, and that he delivered possession thereof. Manifestly, P. C. Authement intended to sell to the depth of which he acquired, namely, by depth of survey and patent.

Thus the descriptive words “by the depth thereto belonging and appertaining”, contained in the 1924 deed, unquestionably refer to the descriptive phrase “by depth of survey and patent” contained in the 1918 deed.

Much argument is offered in connection with the freehand drawing of the diagram of the property under consideration appearing in the 1924 deed, a photostatic copy of which is in the record. The said diagram is obviously not drawn according to scale. The notary, however, testified that by said drawing he was attempting merely to show the intention of the parties that the property being transferred extended in its depth to the range line, and that it was his understanding from the parties that that was the depth of the property being conveyed.

It is not disputed that immediately following his purchase by the 1924 deed, Ber-toul Cheramie took physical, open and notorious possession of the entire area purchased by him. He constructed buildings on the front or high portion of the property and leased the remainder of said high land for farming purposes. He leased the remainder of the area, which was mainly marsh land, for trapping purposes. The trapping lessees exercised their lease right from 1924 until 1937 over the property extending to the range line. During 1934 and 1935 trespassers were legally repulsed. In October of 1938 the defendants leased the land fronting Bayou Lafourche and extending to the range line for oil and gas exploration. In 1940 mineral operations were conducted thereon, to the full knowledge of all the inhabitants in that area. Today, said land is oil-producing property.

It appears that during this entire time in which possession of said property was exercised by defendants, as aforestated, there were no objections, claims or protests made by Joseph Bruce, or his heirs, plaintiffs herein, following his death in 1950, as to the title or ownership of said property until this suit was filed on February 17, 1951. The first evidence adduced by plaintiffs of any possible claim of ownership of the property is that shown by a mineral lease executed by Joseph Bruce to The Texas Company on May 4, 1937. That mineral lease shows that said lessor gave at the most an indefinite description of the land leased, for therein is shown that it was the intention of the said lessor to lease for gas and oil exploration “whatever lands he owned or claimed” in Section 12, Township 19 South, Range 22 East. This governmental section contains, besides other lands, the land here in controversy. It appears that no operations were conducted under said mineral lease. There is no evidence of any annual payments made under said lease or that it ever came to the knowledge of defendants herein.

The cardinal rule in determining the adequacy of descriptions of property is pronounced in the case of Snelling v. Adair, 196 La. 624, 199 So. 782, 786, wherein we said:

“ ‘The law does not require that a deed, to support the prescription of 10 years, shall contain such a description that the land can be identified without reference to other records. Article 3479 of the [LSA] Civil Code requires merely “a title which shall be legal, and sufficient to transfer the property.” Article 3483 declares that, to support the prescription of 10 years, “a legal and transferable title of ownership in the possessor is necessary; this is what is called in law a just title.” Article 3484 declares that the term “just title” does not mean a title from the owner, but a title from any person whom the purchaser honestly believed to be the true owner, “provided the title be such as to transfer the ownership of the property.” Article 3485 defines the phrase “transfer the ownership of the property” as meaning, “not such a title as shall have really transferred the ownership of the property, but a title which, by its nature, would have been sufficient to transfer the ownership of the property, provided it had been derived from the real owner.” And article 3486 declares that, to support the plea of prescription of 10 years, the title must be certain; that is, it must fix exactly the origin or basis of the possession. Article 3437 declares that it is sufficient for a person wishing to take possession of an estate to enter upon and occupy a part of the land, provided it be with the intention of possessing all that is included within the boundaries. The word “boundaries,” in that article, means the limits or marks of inclosures if the possession be without title, or the boundaries or limits stated in the title deed if the possession be under a title. * * Leader Realty Co. v. Taylor, 147 La. 256, 84 So. 648, 650.”

Further, in Snelling v. Adair, we said:

“It is a settled rule of law in this state that if a portion of the description of property in a deed is either erroneous or misleading, it is nevertheless susceptible of conveyance if the property intended to be conveyed by the parties can be ascertained with certainty by the aid of such extrinsic evidence as is admissible under the rules of evidence. Thornhill v. Burthe, 29 La. Ann. 639; Bryan v. Wisner, 44 La.Ann. 832, 11 So. 290; Willis v. Ruddock Cypress Co., 108 La. 255, 32 So. 386; Suthon v. Laws, 127 La. 531, 53 So. 852; Suthon v. Viguerie, 127 La. 538, 53 So. 855; Bayard v. Baldwin Lumber Co., 157 La. 994, 103 So. 290; Tircuit v. Burton-Swartz Cypress Co., 162 La. 319, 110 So. 489; Harrill v. Pitts, 194 La. 123, 193 So. 562; 13 Cyc. 627; and 36 Cyc. 591. And ‘a deed, which was sufficient to convey property as between parties thereto * * * would be sufficient * * * basis upon which to rest plea of prescription of 10 years.’ Harrill v. Pitts, supra.

In the case of Keller v. Summers, 192 La. 103, 187 So. 69, 71, we said:

‘Bad, faith is not to be imputed to a purchaser merely because an examination of the records would have disclosed a defect in the vendor’s title. What is meant by deed valid in form, or prima facie trans-lative of property, is one that has no defect apparent upon its face.’ Delouche v. Rosenthal, 143 La. 581, 78 So. 970, 972. ‘If no one could invoke successfully the prescription of 10 years who could have discovered by an examination of the public records before buying the property that the seller had no title, the plea would never be available, because no one could invoke it except one having a valid title and having therefore no need for the prescription.’ Land Development Co. of Louisiana v. Schulz, 169 La. 1, 124 So. 125, 127. (Italics ours.)”

Plaintiffs contend that the trial judge was in error in maintaining the plea of prescription acquirendi causa of ten years, under LSA-Civil Code Article 3478, and that the defendants were not in moral or legal good faith as required by LSA-Civil Code Article 3479.

We find the legal or moral good faith of the defendants to' be unassailable. As aforestated, the fact that reference to the,Pitre deed was made in the 1918 deed is not in itself sufficient to have given notice to P. C. Authement of any possible defect in the title to the land being conveyed, for the reason that the description contained in the deed as corrected and executed was ample, sufficient and adequate to transfer title to the land contained within said description. Nor can P. C. Authement on the one hand as purchaser under the deed of 1918 or the defendants who acquired under deed of 1924 be held in legal bad faith for not having examined the public records to determine the validity of title so acquired as a condition precedent to executing the respective deeds.

One is not required to examine the public records to determine the validity of the title to real property he contemplates purchasing as a condition precedent to relying upon a plea of prescription or statute of repose. If the essential elements prescribed by LSA-Civil Code Articles 3478 and 3479 exist, he is fully protected by the plea of prescription of ten years. Good faith is always presumed, and bad faith is not to be imputed to a purchaser merely because of his failure to have examined the records which upon examination would have disclosed defect in his vendor’s title. Keller v. Summers, supra; Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369; Richardson & Bass v. Board of Levee Commissioners, 226 La. 761, 77 So.2d 32.

There is no evidence in the record to show that P. C. Authement doubted or had reason to doubt at any time that the property being purchased by him did not belong to his vendor or that the corrections in the description required by him contemporaneously with the execution of the 1918 deed was an attempt by him in legal bad faith to greatly increase the amount of property to be acquired by him.

The good faith of Bertoul Cheramie ■has been assailed on the basis of alleged acts committed by him subsequent to the date of his acquisition by the 1924 deed. The good faith at the time of his acquisition is not questioned by plaintiffs. However, we find that the acts complained of subsequent to Cheramie’s acquisition are not convincing evidence of alleged bad faith.

We are further confirmed in our view as to the good faith of both Authement and Cheramie by the uncontradicted facts that both parties, respectively, paid a purchase price commensurate with the value of the property at the time of their respective purchases; that both expended considerable sums on its improvement and development; paid the annual accruing taxes levied thereon; possessed the property continuously, notoriously and openly by use to which it was susceptible, such as farming and trapping operations, from the date of their respective acquisitions, the granting of mineral leases for oil and gas explorations thereon, followed by mineral development and production; all of these acts of respective ownership being exercised without complaint or protest by the plaintiffs or their author in title until the date of the filing of this suit, as aforenoted.

Under the evidence adduced at the trial of this matter and under the jurisprudence as above indicated, we conclude that the 1918 deed from Mr. and Mrs. Oscar Authement to P. C. Authement was translative of title, and P. C. Authement took possession of the property immediately on his acquisition in good faith, believing that he had acquired valid title to all of the property thereby conveyed and he possessed the same from front to rear openly, i. e., from Bayou Lafourche to the range line; that in 1924 Bertoul Cheramie acquired the said property and the property in front of it by deed translative of title and immediately took possession of same in good faith, believing that he had acquired valid title to all the property thereby conveyed; that under LSA-Civil Code, Article 3493 through the tacking of the possession of P. C. Authement and Bertoul Cher-amie the latter’s title ripened into valid ownership ten years after the date of the purchase by P. C. Authement, or on January 26, 1928.

Accordingly, for the reasons assigned, the judgment of the trial court is affirmed.

McCALEB, J., dissents with written reasons.

McCALEB, Justice

(dissenting).

I am in agreement with the majority that the description contained in the 1918 deed “by depth of survey and patent” was sufficient to translate to P. C. Authement the property in dispute, which lies in the rear of the 7-arpent line. And, although I entertain some doubt as to the legal good faith of Authement in his purchase from his mother and father, in view of the uninitialed change in the description of the depth of the land conveyed from “Seven (7) arp'ents more or less in depth” to “depth of survey and patent”, Authement’s explanatory testimony would seem sufficient to sustain the conclusion that he had no actual notice that his parents’ title did not extend beyond the 7-arpent line and, therefore, that plaintiffs have not overcome the presumption that he was a possessor in good faith.

Conversely, I cannot subscribe to the majority view that the 1924 deed from Authement to Bertoul Cheramie translated the property involved herein as I do not regard the clause “by the depth thereto Belonging and appertaining — ” as describing a title beyond the 7-arpent line or to the range line. It seems to me that these words clearly indicate the intention of the vendor to convey whatever area in depth to which he had title at the time of the transfer and signify that he did not wish to warrant title to any property that he did not legally own. For, if this were not his intention, it would have been appropriate for the act to provide the same depth “of survey and patent” that was contained in Authement’s acquisition or some other accurate description of the depth of the area. To say the least, a description of the depth of property conveyed as that “thereto Belonging and appertaining” is most indefinite and it is manifest that one purchasing under such a description is unable to determine from the face of the deed the extent of his acquisition.

That an adequate description of the land conveyed is essential to establish the ten-year acquisitive prescription is well setteld by the jurisprudence. Bendernagel v. Foret, 145 La. 115, 81 So. 869; Hunter v. Forrest, 195 La. 973, 197 So. 649; Pierce v. Hunter, 202 La. 900, 13 So.2d 259 (and authorities therein discussed) and Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225, 236. In the last cited case, it was observed: “* * * plaintiffs are required to prove, in addition to good faith possession for the required time, that the deed under which they claim describes and indentifies the land with clarity and that it is prima facie translative of the property. It is not enough that the description in the deed might be construed to include the land in question.”

Obviously, when the depth of property is stated to be “thereto Belonging and appertaining” the purchaser cannot ascertain the area or the location of the land he is acquiring and must look to other acts to determine the extent of his title. And, when such a vague description necessitates investigation of other acts, it involves an examination of the title. And, if an examination of title is required, one cannot become a purchaser in good faith unless he pursues every lead and ferrets out all the facts to the end that he may not purchase until he has complete information before him. Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369, quoting with approval from Dinwiddie v. Cox, La.App., 9 So.2d 68. See also Richardson & Bass v. Board of Levee Commissioners, 226 La. 671, 77 So.2d 32.

In the case at bar, a complete examination of the title would have readily shown that Authement did not own any property in depth beyond the 7-arpent line and, therefore, Mr. Cheramie could not rely on the statement contained in Authement’s acquisition deed that the property had a depth in accordance with the original survey and patent.

I respectfully dissent.


author: HAMITER, Justice.

text:
    231 La. 908
    WATERWORKS DISTRICT NO. 3 OF RAPIDES PARISH, Louisiana, v. CITY OF ALEXANDRIA and City of Pineville.
    No. 43150.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.

      Gold, Hall & Skye, Alexandria, for appellant.
    Frank H. Peterman, Grove Stafford, Alexandria, for defendants-appellees.
   HAMITER, Justice.

In separate actions Waterworks District No. 3 of Rapides Parish sued the City of Alexandria for $6,000 and the City of Pine-ville for $4,800, allegedly the amounts due for water which it furnished under contract during July and August of 1955 to the respective cities.

To the petitions the defendants tendered exceptions of no right and no cause of action. These were sustained and the suits dismissed.

From the judgments plaintiff appealed. The appeals were docketed here under one number inasmuch as the contracts involved are substantially identical and both suits present the same factual and legal questions.

In this discussion we shall make reference only to the action against the City of Alexandria. However, what is said in that' regard will apply equally to the demand against the City of Pineville.

The allegations of fact of plaintiff’s petition and the contents of the documents attached to that pleading, which necessarily govern in determining the exceptions of no right and no cause of action, reveal the following: The written contract for the furnishing of water and service by plaintiff to the defendant was entered into on May 4, 1950. Section 6 thereof, in its pertinent parts, recites; <‘ * * * To and including the first day of the third month next succeeding the end of the first complete fiscal year in which Seller’s water system shall have been in operation throughout the year (fiscal year for the purposes of this agreement being a year commencing on January 1st and ending on December 31st), the price to be paid by Buyer to Seller shall be ten cents (.10<á) per 1,000 gallons. Thereafter in each succeeding fiscal year for the life of this agreement the price shall remain ten cents (.100) per 1,000 gallons, as above provided, unless after negotiation and taking into full consideration the expenses of administration, operation and maintenance of the system * * * the rate may be adjusted and changed by the mutual consent of the parties ; provided nothing herein shall be construed as creating a legal obligation on the part of Buyer to pay more than 10^ per 1,000 gallons.

“The minimum amount of the bill for each billing month during the first fiscal year, as defined, shall be Nine Hundred Twelve and 50/100 ($912.50) Dollars, * * * and for the fifth fiscal year and for each fiscal year thereafter shall be Fifteen Hundred Twenty and 82/100 ($1520.82) Dollars, for each billing month in which Seller has been ready, willing and able to deliver water as is hereinabove provided whether or not such water is accepted, used or resold by Buyer, * *

On November 15, 1951 plaintiff commenced to furnish water to the defendant, and since that date it has continued to do so. However, the financial return under the contracted rates (and those under •which water was sold to other customers) •proved grossly insufficient to adequately provide for the payment of the expenses of the district’s operations and of principal and interest on bonds issued. Therefore, ■on January 31, 1955 plaintiff, by letter, informed the city of these circumstances and asked for an early meeting to negotiate an upward adjustment of the rates.. But the •defendant failed to act as requested. Consequently, on June 24, 1955 the district notified the defendant that unless adjustment negotiations were undertaken by June 30, 1955 it would proceed to establish new rates effective for the month of July, 1955 and thereafter.

On June 29, 1955 plaintiff received a letter from the defendant stating that the latter refused to negotiate for an upward adjustment of the rates. Thereupon, on June 30, 1955, the Board of Commissioners of the District adopted-a resolution establishing the folowing increased rates:

$3,000 per month for the first 15,000,000 gallons, plus 7.5‡ per 1,000 gallons for all usage in excess of 15,000,000 gallons.
Contract demand — 1,000,000 gallons per day.
Minimum charge — $3,000 per month, for 500,000 gallons per day, and 15,000,000 gallons per month.

Immediately thereafter the defendant was notified of the rate change and of its effective date of July 1, 1955.

The city used 6,457,000 gallons of water during July, 1955 and 14,230,000 gallons during August, 1955. And on the expiration of each of those months the plaintiff sent to the defendant a bill for $3,000, this being the minimum monthly charge under the new rates. However, on receipt of each bill the defendant remitted with a check for only $1,520.82 — the minimum monthly charge under the rates as originally fixed by agreement — in full payment of its indebtedness.

Plaintiff returned the checks, and on September 21, 1955 it filed this suit to recover $6,000 for the water furnished during July and August, 1955 — a charge of $3,000 per month. Each of these monthly charges represents the minimum of $1,520.82 as fixed by the originally executed contract, which the defendant admittedly owes and sought to pay by check, plus $1,479.18 allegedly due under the increased rates established by plaintiff alone.

Under the exceptions of no right and no cause of action, which were sustained by the district court, the defendant contends that the Board of Commissioners of the water district had no legal authority to increase by unilateral action the contracted rates and, further, that its attempt to do so was in violation of the Louisiana Constitution. However, for the hereinafter assigned reasons such contentions cannot now be considered.

The exceptions are leveled at the petition and annexed documents which clearly disclose that the defendant is indebted to plaintiff at least to the extent of the originally contracted monthly minimum charge of $1,520.82 for the water used in July and August, 1955. As to that minimum charge (a total of $3,041.64) the petition undoubtedly states a right and a cause of action. And it is well settled in our jurisprudence that “a petition stating a cause of action as to-any ground for or portion of the demand will not be dismissed on an exception of no cause of action.” Ane v. Ane, 225 La. 222, 72 So.2d 485, 486. See also Adkins’ Heirs v. Crawford, Jenkins & Booth, Inc., 200 La. 561, 8 So.2d 539; Ingersoll Corporation v. Rogers, 217 La. 79, 46 So.2d 45; C. W. Greeson Company v. Harnischfeger Corporation, 219 La. 1006, 54 So.2d 528; Schackai v. Messa, 223 La. 626, 66 So.2d 573; and Acme Stores, Inc., v. Better Business Bureau of Baton Rouge, Inc., 225 La. 824, 74 So.2d 43.

For the reasons assigned the judgments appealed from are reversed and set aside, the exceptions of no right and no cause of action are now overruled, and the case is remanded for further proceedings according to law. All costs are to await the final determination of the litigation.


text:
    231 La. 914
    Sallie H. FIELDS v. RAPIDES PARISH SCHOOL BOARD.
    No. 42798.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.
    See also, 81 So.2d 842.
    Louis Berry, Alexandria, Vanue B. Lacour, Shreveport, for plaintiff-appellant.
    Ben F. Thompson, A. M. D’Angelo, Edwin O. Ware, Alexandria, for defendant-appellee.
   HAMITER, Justice.

In this action, instituted against the Rapides.Parish School Board, Sallie Holmes Fields seeks reinstatement as a teacher in the Rapides Parish School System and a judgment of $26,239.38, allegedly the amount due her as back salary accruing since the 1947-1948 school term.

The district court sustained the defendant’s plea of laches and dismissed the suit. Plaintiff is appealing from the judgment.

The record discloses that in 192S plaintiff commenced teaching in the Rapides Parish School System and that subsequently she achieved the status of a permanent teacher as provided for in LSA-R.S. 17:441 et seq. Because of a tonsilitis attack, which occurred during a visit to California, she failed to report for duty at the commencement of the school term in September, 1946. Correspondence with Rapides Parish School authorities relative to her illness followed; and in a letter of August 11, 1947 the superintendent informed her that she was never granted a leave of absence, that her failure to show up for work constituted “desertion of your job”, that another teacher had replaced her, and that “you have no claim to a position here”.

On February 25, 1948, after amicable demands were unavailing, she instituted a suit to compel reinstatement and to recover back salary. Approximately one and one-half months later a similar action was filed. Both suits were dismissed on dilatory exceptions in May of 1948, and from the judgments no appeals were prosecuted.

Further judicial proceedings were not commenced by plaintiff until January, 1951 (approximately two years and eight months later), although in the meantime she, on several occasions, sought in vain an amicable adjustment of her claim. The third suit, seeking reinstatement and restitution, was brought in her name; however, by a supplemental petition, her husband (Richard Fields) was substituted as party plaintiff in her place and stead. Therein the defendant filed exceptions of no right and no cause of action, a plea of laches, and an answer. The mentioned exceptions and plea were overruled, and after a trial of the merits judgment was rendered in favor of Richard Fields. It decreed reinstatement of his wife and payment of all back salary due her at that time. On an appeal to this court we held (on March 21, 1955) that the exception of no right of action was well founded (it questioned the interest of the husband in bringing the action) and ordered a dismissal of the suit. See State ex rel. Richard Fields v. Rapides Parish School Board, 227 La. 290, 79 So.2d 312.

As heretofore shown the instant action, instituted August 15, 1955, was dismissed by the district court on defendant’s plea of laches. The plea, similar to one urged in the referred to third suit but not passed on by us since we concluded that the exception of no right of action was meritorious, is grounded on the contention that plaintiff permitted an unreasonable period of time (two years and eight months) to elapse between the dismissal of her first two suits and the filing of her third action.

The doctrine of laches with respect to a public employee, invoked by this defendant, is well stated in Williams v. Livingston Parish School Board, La.App.First Circuit, 191 So. 143, 144, as follows: “Sound public policy requires that an employee of a public body who claims to have been illegally discharged should press his claim for reinstatement with diligence and without unnecessary delay. The rule that laches on the part of such public employee will bar his claim for reinstatement is not based on any law of prescription or limitation of actions, but it arises from reasons of public policy. The processes of government must go on and employees and officials must be paid out of public revenue for carrying on the functions of government. Where a discharged employee sits idly by for an unreasonable length of time without pressing his claim for reinstatement, those charged with the duty of securing the necessary working personnel cannot hold up the administrative functions of government awaiting a decision on the part of the discharged employee as to what course he will take. The prevention of duplication of positions and the payment of double salaries requires such discharged employee, not only to press his demands, but also to submit his claim to the courts for adjudication without unnecessary delay.”

The holding of the trial court in this cause that plaintiff’s claim is barred by laches is in keeping with the above pronouncement and is amply supported by the well settled jurisprudence of this state. Incidentally, the delay in each of the previously decided cases was much shorter than that involved in the instant controversy. See State ex rel. Calamari v. Orleans Parish School Board, 189 La. 488, 179 So. 830 (delay of one year, less four days); State ex rel. McMurray v. Orleans Parish School Board, 189 La. 502, 179 So. 834 (delay of about one year); Fontenot v. Evangeline Parish School Board, La.App., 185 So. 104 (delay of about two years); Williams v. Livingston Parish School Board, supra (delay of eleven months); State ex rel. Eberle v. Orleans Parish School Board, 221 La. 243, 59 So.2d 177 (delay of one year, less three days).

But plaintiff insists that the cited decisions are not controlling here. She takes the position that they (except the last one which she attempts to distinguish as., hereafter shown) were rendered prior to the adoption of Act 250 of 1944, LSA-R.S. 17:441 to 17:444; and that such statute abolished the doctrine of laches as an equitable defense in claims arising under the Teacher Tenure Law, substituting therefor a prescriptive period which begins to run only after the school board’s holding of a legal hearing in accordance with certain required regulations — a hearing that has not been accorded this plaintiff. That part of the statute thus relied on, LSA-R.S. 17:443, recites: “If a permanent teacher is found guilty by a school board, after due and legal hearing as provided herein, on charges of wilful neglect of duty, or of incompetency, of dishonesty, and ordered removed from office, or disciplined by the board, the teacher may, not more than one year from the date of the said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. If the finding of the school board is reversed by the court and the teacher is ordered reinstated and restored to duty, the teacher shall be entitled to full pay for any loss of time or salary he or she may have sustained by reason of the action of the said school board.”

We find nothing in the quoted statute indicating an intention of the Legislature to abolish the equitable doctrine of laches as has been applied in our jurisprudence to claims arising under the Teacher Tenure Law and the pressing of which through judicial action has been unreasonably delayed. Its purpose, as the terms thereof clearly reveal, was and is only to provide a prescriptive period for obtaining a court-review when a “permanent teacher is found guilty by a school board, after due and legal' hearing * * No reference is made-therein to the judicial enforcement of stale-demands.

Of course, the doctrine of laches would', not be applicable here if the discussed unreasonable delay had been occasioned by the-school board’s leading plaintiff to believe that she would be reinstated, thereby lulling her into a false sense of security. However,, that situation is not revealed by the record.. On the contrary it discloses that she well knew of her complete and final discharge,, this being evidenced by her having filed two suits in the early part of 1948; and that during the period of two years and eight months which intervened between the dismissal of those suits and the institution ofher third action she received no employment. encouragement whatever from the school. board authorities.

Plaintiff has urged that our decision in State ex rel. Eberle v. Orleans Parish School Board, supra, which applied the doctrine of laches after the enactment of Act: 250 of 1944, is not appropriate here inasmuch as the claimant therein was a mere substitute teacher (not a permanent one .as plaintiff) for whom the statute did not require a hearing. In view of our conclusion that such statute did not abolish the ■doctrine of laches we deem it unnecessary to determine whether the suggested distinction is proper.

In .a supplemental brief, filed subsequent to the writing of the foregoing, counsel for plaintiff maintained that our decision in Young v. Charity Hospital of Louisiana at New Orleans, 226 La. 708, 77 So.2d 13, is decisive of the issue under consideration here. We do not .agree. Therein no plea of laches was involved. Furthermore, the public employee claimant in that cause sought court redress one month after learning from the Civil Service Commission that she would not be reinstated.

For the reasons assigned the judgment appealed from is affirmed.