author: DIXON, Justice. PER CURIAM. TATE, Justice

text:
    Oliver LINER v. LOUISIANA LAND AND EXPLORATION COMPANY.
    No. 55750.
    Supreme Court of Louisiana.
    June 23, 1975.
    Rehearing Denied Sept. 25, 1975.

      Stanwood R. Duval, Jr., Duval, Arce-neaux & Lewis, Houma, for plaintiff-applicant.
    Donald L. Peltier, Peltier & Peltier; Thibodaux, J. B. Miller, Lawrence K. Benson, Jr., Milling, Benson, Woodward, Hill-yer & Pierson, New Orleans, for defendant-respondent.
   DIXON, Justice.

This possessory action was brought by Oliver Liner against Louisiana Land and Exploration Company as a result of conflicting claims to marshlands in Terre-bonne Parish. Liner’s land, he claims, lies in Sections 30, 31 and 32 of Township 20 South, Range 16 East, and in Sections 25 and 36 of Township 20 South, Range 15 East, all in Terrebonne Parish. The portion in dispute is the western end, west of the range line which separates Range 15 from Range 16. Liner’s title, in the record before us, includes only land in Range 16. Louisiana Land and Exploration Company’s record title covers all that portion of Liner’s claim lying in Range 15.

All the land involved is marshland. It forms, roughly, a parallelogram 2909 feet on the easterly side, 6823 feet on the northerly side and 7036 feet along the southerly side. Liner claims that the westerly boundary of his property is the easterly bank of Bayou Dufrene (also known as Ash Point Bayou). Defendant claims Liner’s westerly boundary is the line dividing Ranges 15 and 16.

The portion in dispute, which Liner claims that he and his family have possessed as owner for over one hundred years, is bounded on the'west side by the east bank of Bayou Dufrene, and is adjacent to Liner’s land in Range 16 East. The northern boundary of the disputed claim is about 580 feet in length and runs from Bayou Dufrene easterly through the marsh to the range line. The range line forms the easterly boundary of the disputed tract for about 3000 feet. The south line of the disputed tract runs about 2100 feet between the range line and the east bank of Bayou Dufrene.

The trial court gave judgment in favor of the plaintiff, finding that the evidence strongly supported his claim of possession. The Court of Appeal reversed (303 So.2d 866 (1974)), holding that the construction in the year 1956 and the continued operation of the Tennessee Gas Transmission Company’s 24 inch gas pipeline disturbed Liner’s possession, and that the disturbance was continuing and uninterrupted, a “usurpation” permitted by Liner for a period in excess of one year.

We granted writs in this case because it appeared that the construction of the pipeline across Liner’s claim was with his permission, and not such a usurpation (C.C. 3449) as would result in the loss of possession by Liner. See also C.C. 3490.

Oliver Liner’s contention is that he and his family have possessed the land involved since the acquisition of a tract of land by Jacob Liner, Oliver’s grandfather, in 1869. The description of the property acquired by Jacob Liner was: “A certain tract of land situated on both sides of the Bayou DuLarge in this parish of Terrebonne and described on the plan of said land on file in this office for reference as Lots Nos. 45 and 46 in Township 20 S. Range 16 E. measuring Fourteen arpents and Eighty-Three feet front on both sides of said Bayou with the depth of survey on confirmation, bounded as shown on said plan afore-referred to.”

The plan, or survey, referred to in the deed is apparently no longer in existence.

Jacob Liner’s widow sold the land to Pleasant Liner in 1910 by the same description, except that the description was enlarged to say that the tract was located “about 28 miles below the town of Houma” and was said to be bounded “above by land of est. A. St. Martin or assigns, and below by land of est. A. St. Martin or assigns

Oliver Liner’s deeds of acquisition of undivided interests from his kinsmen in 1928 contained the same description.

In spite of having no record title to land in Range 15, the Liner family, from earliest times, occupied and used all the land which lay between Bayou Dufrene and Bayou DuLarge, treating Bayou Dufrene as the' western boundary of the Liner tract. Unlike the defendants in Buckley v. Dumond and Theriot, 156 So. 784 (La.App.1934), which involved neighboring swampland, the Liner family possessed as owners.

Oliver Liner was seventy-seven years old at the time of the trial in 1973. For fifty-six years, he testified, he had occupied this land, trapping, raising cattle, and raising his family. For three or four months of each year, during the trapping season, the family would occupy a “camp” constructed on the bank of Bayou DuLarge.

Before 1909, his grandfather and an aunt lived in houses constructed on the bank of Bayou DuLarge. That part of the property used as a farm lay on the westerly side of Bayou DuLarge, and was fenced on the north and south sides between Bayou DuLarge and Bayou Dufrene. These houses and the fence were destroyed by a devastating storm in 1909. Oliver Liner and his family were also living on his grandfather’s place in 1909.

Oliver’s grandfather planted cotton, pecan trees and orange trees on the farm, and raised cattle. Liner testified that he helped his father replace the fences on the upper end after the storm of 1909, and some fence remained along the northern boundary until about twenty years before the trial. The southerly boundary was marked with stakes after the fence was destroyed, and the stakes along the property line were continually maintained by Liner and his family. One engineer who surveyed the property found evidence of old stakes and markers beneath the water line at almost every place where one of Liner’s markers was located.

Each year Oliver Liner followed a practice of burning the marsh — the beneficial nature of which practice is not explained by the record. (There was some testimony that this practice made the disputed tract “too poor to trap.”). Although the burning sometimes destroyed some of the property line stakes, they were replaced, indicating continuing activity on the part of the Liners in inspecting and replacing the boundary stakes.

The quality of the marshland deteriorated after the 1909 storm. Liner, however, continued to make his living on the land, using it all for the purposes of trapping and for raising cattle. The Liner boundaries, as staked by Jacob Liner, were recognized by other trappers in the area, even those employed by agents of Louisiana Land and Exploration Company. Oliver Liner and his family occupied the camp on the property every trapping season, for the purpose of tending the traps. Oliver Liner himself only missed the season preceding the trial of this case, having suffered a stroke; and during that season his unmarried son, Randolph, who lived with Oliver Liner, trapped the land involved in this litigation.

Liner’s cattle raising activities consisted of running a herd of cattle of between one hundred fifty to two hundred head along the banks of Bayou DuLarge for about ten miles, having made some arrangement with the owners of adjoining tracts.

The only source of income for Oliver Liner disclosed by the record during his entire life is the land which he thought he owned. There is no evidence in this record of any occurrence which might have cast any doubt upon the extent of Liner’s ownership until a survey of Louisiana Land and Exploration Company properties in 1952. As a result of that survey, Louisiana Land and Exploration Company set two Concrete markers and two iron pipes with Louisiana Land and Exploration Company signs along the 3000 feet of the range line which Louisiana Land and Exploration Company claims is the boundary between its land and Oliver Liner’s. The concrete markers were located at a section corner and a quarter section corner along the range line.

In February of 1956 Oliver Liner granted Tennessee Gas Transmission Company a pipeline right-of-way over land described as follows:

“A Certain tract of land, situated on both sides of Bayou du Large, in the Parish of Terrebonne, and described as lots # 45 & 46 in T. 20 S., R. 16 E., measuring 14 Arpents and 83 Feet front on both sides of said Bayou, with the depth of survey or confirmation.”

The record leaves no doubt but that Oliver Liner intended to grant a pipeline right-of-way across all the land he owned. Contrary to the finding of the Court of Appeal, there was no loss of possession “against his consent.” The pipeline canal and the pipeline which crossed Liner’s land were constructed with his knowledge and consent.

In 1958 Louisiana Land and Exploration Company undertook to mark the boundaries of its holdings in this area with a ditch, monuments and signs. The ditch was originally 6 feet wide and 4 feet deep, but had been somewhat widened by subsequent maintenance operations.

Oliver Liner testified that when he found the ditch on his land he did not know who had dug it, and saw no other activity. Therefore, he appropriated the ditch to himself, constructing bulkheads with planks at two points in the ditch. The purpose of the bulkheads was to minimize the intrusion of salt water with the tidal flow, and to maintain a source of fresh water for his cattle. These bulkheads remained in place until removed by Louisiana Land and Exploration Company in 1971. When removed, they were replaced by the Liners.

Several seismograph crews crossed the disputed area from 1958 to 1965, with permission from Louisiana Land and Exploration Company, only.

Louisiana Land and Exploration Company retraced its survey lines in 1965, following Hurricane Hilda, and undertook to clean out the boundary ditch. There was testimony by an engineer for Louisiana Land and Exploration Company that some of the Liner stakes were pulled up during this process.

In 1971 when Louisiana Land and Exploration Company again undertook to clean its boundary ditch with an amphibious dragline, Liner’s stakes were noticed by Louisiana Land and Exploration Company employees. On August 2, 1971 the boundary stakes were removed by the amphibious dragline. By August 17 it was reported that stakes were again in place along the Liner claim. On September 24 Louisiana Land and Exploration Company employees again removed the boundary stakes. On September 30 they returned and removed the remaining stakes. There was a confrontation with one of the Liners. On October 25 Louisiana Land and Exploration Company employees again removed the obstructions from the ditch and the Liner boundary markers.

On August 20, 1971 and on October 1, 1971 Oliver Liner’s attorneys notified Louisiana Land and Exploration Company that their employees had reportedly removed Liner’s boundary stakes. Louisiana Land and Exploration Company was requested to assist in the termination of such activities, in order to avoid legal proceedings. The defendant did not answer the letters, and no further action came to Liner’s attention until February of 1972. On that occasion a Louisiana Land and Exploration Company crew, with deputies for protection, again removed Liner’ boundary markers. Suit followed on February 9 — a possessory action alleging the February 3, 1972 incident as the disturbance of plaintiff’s possession.

Defendant advances two main reasons for affirming the Court of Appeal. The first is that plaintiff has failed to prove possession within enclosures; the second reason is that the extensive activities of Louisiana Land and Exploration Company on the disputed property during the year preceding February of 1972 prevented a finding that plaintiff was in peaceful possession for the time required to maintain the possessory action.

The possessory action in Louisiana is governed by article 3658 of the Code of Civil Procedure:

“To maintain the possessory action the possessor must allege and prove that:
“(1) He had possession of the immovable property or real right at the time the disturbance occurred;
“(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disburbance, unless evicted by force or fraud;
“(3) The disturbance was one in fact or in law, as defined in Article 3659; and
“(4) The possessory action was instituted within a year of the disturbance.”

The Code of Civil Procedure of 1960 revised the statutory basis for the possessory action in Louisiana. Yiannopoulos, Louisiana Civil Law Treatise, Vol. 2, § 138, fn. 245 (1967). The possessory action and the action in jactitation were combined; there was no intention in the Code of Civil Procedure of 1960 to otherwise change the law (except for some matters not here relevant). See Comment, C.C.P. 3658, 3659 and 3660.

C.C.P. 3658 requires the possessor to prove that he had possession at the time of the disturbance; that his quiet, uninterrupted possession shall have existed more than a year prior to the disturbance; that suit was instituted within a year of the disturbance.

Disturbance might have been one in fact or in law. The disturbance complained of in this suit is a disturbance in fact, defined in C.C.P. 3659:

“A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment.”

Possession is defined in C.C.P. 3660 as corporeal possession or civil possession preceded by corporeal possession. The redactors of the Code of Civil Procedure, with reference to article 3660, commented: “This article makes no change in the law, but is a restatement of its indirect sources and is declaratory of the established jurisprudence on the subject,”

A change, however, in terminology with reference to possession was effected in the 1960 revision. C.C.P. 3660 states that a person is in possession of immovables when “he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession . . . ” The Comment to C.C.P. 3660 explains the abandonment of the term “real and actual possession” of articles 43 and 49 of the Code of Practice.

The Civil Code approach to an understanding of possession begins with C.C. 3426 (possession is the detention or enjoyment of a thing), C.C. 3428 (natural possession is occupying a house, cultivating ground) and in C.C. 3430 (“the corporeal detention of a thing which we possess as belonging to us, without any title to that possession, or with a title which is void”). When possession is once acquired by “corporal” detention, the intention to possess as owner might continue, even though the possessor “may have ceased to have the thing in actual custody . . . ” C.C. 3442.

The intention of retaining possession is always supposed, “where a contrary intention does not appear decidedly . . . ” C.C. 3443. A possessor loses possession “against his consent” when he is driven off or prevented from returning, or when he allows the usurpation of the estate for a year without “having done any act of possession . . . ” C.C. 3449.

Possession commenced by corporeal possession (for acquisition by thirty years prescription) is “preserved by external and public signs, announcing the possessor’s intention to preserve the possession of the thing, as the keeping up of roads and levees, the payment of taxes, and other similar acts.” C.C. 3501.

The concept of possession is neither simple nor precise. (See Riseman, Elementary Considerations in the Commencement of Prescription on Immovable Property, 12 Tul.L.Rev. 608 (1938). The quality of possession required in a particular case depends not only on its classification as good faith or bad faith possession, but also on the type of land in dispute.

“ . . . Obviously the corporeal possession requisite in the case of agricultural land should not be the same as that in the case of wood land or swamp land, and it is submitted that the courts, in deciding whether the possession has been sufficient to commence prescription, first of all observe the type of land with which they are dealing.

The possession required to bring a possessory action has been treated as being the same required to commence the running of prescription.

“ . . . Observation of the cases on the subject leads to the conclusion that the court looks for the same sort of actual possession in the case of one -attempting to bring a possessory action as it does in deciding whether or not possession has been sufficient to commence prescription.

Oliver Liner’s possession of the disputed property satisfies all requirements for bringing the possessory action. The nature of the possession changed as the character of the marsh changed. From 1909, when the land was fenced and subject to some cultivation, the land deteriorated until the north boundary fence was abandoned after 1920. But the fence lines were continually marked. The camp was occupied each year. Trapping continued over the entire claim. Other trappers recognized Liner’s boundaries. Hunters and fishermen used Liner’s property only with his permission. He burned the prairie marsh every year. He ran his heard of cattle on the land.

Liner’s claim continued to have visible boundaries until Louisiana Land and Exploration Company destroyed them. His. possession had been preserved by “external and public signs” (C.C. 3501) recognized by neighbors.

Nor did Louisiana Land and Exploration Company’s “acts of possession” dispossess Liner. The 1952 survey did not. The boundary ditch was appropriated by him to his own use. The water control structure on Bayou Dufrene extended only to the east bank of that stream, which Liner claimed as his westerly boundary. The seismic explorations, although an act of possession, did not serve to end the possession of Liner nor to evict him. The Tennessee Gas Transmission Company’s pipeline ditch was dug with Liner’s consent— not against it.

Defendant’s second argument is based on subparagraph (2) of C.C.P. 3658 which requires the possessor to allege and prove that he “had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud.” Defendant would interpret the article literally, and maintains its actions for the year before February 3, 1972 prevent any conclusion that Oliver Liner had the quiet uninterrupted possession. The activities relied on by Louisiana Land and Exploration Company are: the August 2, 1971 cleaning of the property line ditch; the August 4, 1971 pulling of Liner’s stakes and the continued cleaning of the ditch; the use of an air horn to communicate between the dragline and the marsh buggy while cleaning the ditch; the presence of no trespassing signs along the ditch; the August 17, 1971 removal of the stakes Liner had used to replace those previously removed by Louisiana Land and Exploration Company; the awareness by Liner of the August 17 operation ; the September 24 and September 30, 1971 removal of Liner’s property line stakes, and Liner’s awareness shown by his attorney’s letter to the defendant; the October 25, 1971 removal of stakes and obstructions in the property line ditch; and, finally, the February 3, 1972 operation which precipitated the suit.

The redactors’ comments make it clear that no additional requirements for bringing the possessory action were intended by the revision in 1960. “This article makes no change in the law” is the first sentence in the redactors’ comment under C.C.P. 3658 and is the first clause in the comment under C.C.P. 3660. The intention is obvious that the redactors (as has the court, for more than a century, see Ellis v. Prevost, 19 La. 251 (1841) ) correlated the possessory action of the Code of .Practice and the Code of Civil Procedure with the Civil Code articles relating to the right of a possessor to maintain himself in possession or to regain possession. C.C. 3454.

The evidence in this case leaves no doubt but that Oliver Liner had the corporeal possession of the property here in dispute for many years. The quality of his possession was that of owner. It extended to visible boundaries. It was neither precarious, clandestine, violent nor ambiguous. Aubry & Rau, Civil Law Translations, Vol. 2, § 180 (1966). One having acquired the corporeal possession of an immovable does not thereafter lose it against his consent except in the manner prescribed by law. “Possession,” say Aubry & Rau, supra, § 179, “is not necessarily lost just because a third person has occupied the immovable. It is lost only if he remains occupied for a year (Art. 2243). If the former possessor lets this period elapse without any act of enjoyment or any claim for return of possession, he is considered as having lost it, whether he did or did not know of the adverse occupancy.”

Our Civil Code provisions make it clear that one who has acquired corporeal possession continues in possession until he transfers it or abandons it, or until another expels him from it, or until he permits the estate to be usurped and held for a year without doing any act of possession or without interfering with the usurper’s possession :

“Art. 3442. When a person has once acquired possession of a thing by the corporal detention of it, the intention which he has of possessing, suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody, either himself or by others.”
“Art. 3443. This intention of retaining possession is always supposed, where a contrary intention does not appear decidedly; so that, although a person may have abandoned the cultivation of his estate, he shall not therefore be presumed to have abandoned the possession, but shall be presumed on the contrary to have the intention of retaining it, and shall retain it in fact.”
“Art. 3444. To retain the possession of a thing when a man once has it, it is not even necessary that he should have such positive intention; a negative intention suffices, that is, it suffices that the positive intention, which he had in acquiring the possession, shall not have been revoked by a contrary intention; for, so long as this revocation does not take place, the possessor is supposed always to retain his first intention, unless a third person has usurped or taken from him the possession, or he has failed to exercise an actual possession for ten years.”
“Art. 3447. Possession of a thing may be lost either with or without the consent of the possessor.”
“Art. 3448. Possession is lost with the consent of the possessor:
“1. When he transfers this possession to another with the intention to divest himself of it.
“2. When he does some act, which manifests his intention of abandoning possession, as when a man throws into the street furniture, or clothes, of which he no longer chooses to make use.”
“Art. 3449. A possessor of an estate loses the possession against his consent:
“1. When another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from re-entering.
“2. When the possessor of an estate allows it to be usurped and held for a year, without, during that time, having done any act of possession, or interfered with the usurper’s possession.”

Continuous and uninterrupted possession for thirty years, even in bad faith, is a method of acquisition of ownership of immovables. C.C. 3500. C.C. 3501 explains that such prescription may be preserved, if it has not been interrupted, as follows:

“The possession necessary for this species of prescription, when it has commenced by the corporal possession of the thing, may, if it has not been interrupted, be preserved by external and public signs, announcing the possessor’s intention to preserve the possession of the thing as the keeping up of roads and levees, the payment of taxes, and other similar acts.”

The interruption referred to in C.C. 3501 is also explained.

“Art. 3516. There are two modes of interrupting prescription; that is, by a natural interruption, or by a legal interruption.”
“Art. 3517. A natural interruption is said to take place when the possessor is deprived of the possession of the thing during more than a year, either by the ancient proprietor or even by a third person.”
“Art. 3518. A legal interruption takes place, when the possessor has been cited to appear before a court of justice, on account either of the ownership or of the possession; . . . ”

The Civil Code articles, the ancient foundation for the possessory action in Louisiana, with which the redactors of the Code of Civil Procedure intended to harmonize, are:

“Art. 3454. Rights, which are common to all possessors in good or bad faith, are:
“1. That they are considered provisionally as owners of the thing which they possess, so long as it is not reclaimed by the true owner or person entitled to reclaim it, and, even after such reclamation, until the right of the person making it is established.
“2. That every person who has possessed an estate for a year, or enjoys peaceably and without interruption a real right, and is disturbed in it, has an action against the disturber, either to be maintained in his possession, or to be restored to it, in case of eviction, whether by force or otherwise.
“3. That such a possessor may, by prescription, acquire the property of the thing which he thus possesses, after a certain time, which is established by law according as he has possessed in good or bad faith.”
“Art. 3455. The action which a possessor for one year has against a person disturbing his possession, to be maintained in it or restored to it, as is said in the preceding article, shall be decided before pronouncing on the question of ownership, and the real owner shall not be allowed to repel it by endeavoring to prove his right.”
“Art. 3456. But this, which is called the possessory action, must be commenced by the possessor within a year, reckoning from the time when he was disturbed; for if he leaves the person evicting him in possession for one year, without complaint, he shall lose his possession, whatever apparent right he may have had to it, and shall be driven to his action for the ownership of the property.”

We must conclude then that the words “quietly and without interruption” do not mean that a possessor who suffers a “disturbance” on several occasions in the year preceding the suit has lost his right to bring the possessory action. The possessor may suffer disturbances throughout the year preceding the filing of the possessory action, and unless his possession comes to an end in such a way that he cannot show that he was in possession for more than a year prior to the disturbance complained of, he has the right to bring the action within a year of the disturbance.

A disturbance might interrupt possession. It might bring a corporeal possession to an end. (If, however, the disturbance results in an eviction by force or fraud, the one year possession requirement is eliminated). A disturbance may be an eviction, but it might also be “any other physical act which prevents the possessor of immovable property or of a real right from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment.” C.C.P. 3659.

The acts of Louisiana Land and Exploration Company for the year preceding February 3, 1972 did constitute a disturbance of Liner’s possession. However, he was not evicted. He and his son continued to trap on the disputed property. He continued to replace the boundary stakes removed by Louisiana Land and Exploration Company. Liner protested the August and September “invasions” by Louisiana Land and Exploration Company employees. Liner was not expelled, nor did he acquiesce in a usurpation. C.C. 3449.

C.C.P. 3658(2) cannot, without adding a new requirement to the possesso-ry action, be read literally. It cannot mean that there must be no adverse claim for a year before the disturbance. “Quietly” appears in C.P. 49 and may be compared to “peaceably” in C.C. 3454, subd. 2, and in contrast to the violence referred to in C.C. 3491:

“A possession by violence, not being legal, does not confer the right of prescribing.
“That right only commences when the violence has ceased.”
As stated in Aubry & Rau, supra, § 180:
“Possession is marred by violence, that means it is not peaceful, if it was acquired and continued by acts accompanied by physical or psychological violence.

Consequently, we interpret the requirement of C.C.P. 3658(2) to mean that there must have been no interruption of the possession for one year, prior to the disturbance which caused the suit.

Oliver Liner has proven each of the requisite elements of the possessory action set out in C.C.P. 3658. He is entitled to a judgment of possession.

For these reasons, the judgment of the Court of Appeal is reversed and that of the district court is reinstated, at the cost of defendant-respondent.

APPENDIX "A"

ON APPLICATION FOR REHEARING

PER CURIAM.

Our original opinion has adequately disposed of the contentions advanced by the application for rehearing. However, a strong argument has been made that we have misapplied La.C.Civ.P. art. 3658(2). This provision states, that, to maintain the possessory action, the plaintiff possessor must allege and prove that: “He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud * *

The applicant points out that in our opinion we pointed out several acts by which the defendant Louisiana Land disturbed the plaintiff Liner’s “quiet” possession during the year prior to the February 3, 1972 disturbance alleged as the basis for this suit.

The defendant correctly points out that each of these acts was a disturbance of possession which would entitle Liner to bring this possessory action, just as did the February 3, 1972 disturbance. Thus, Louisiana Land contends, due to these late 1971 disturbances, plainly Liner did not possess “quietly and without interruption” during the year preceding the February 3, 1972 disturbance upon which this suit is based.

This contention overlooks that the term to possess “quietly and without interruption”, as used in the Louisiana Code of Civil Procedure (and by Article 49(2) of the Louisiana Codes of Practice of 1825 and 1870 preceding it), is equated with its traditional meaning in the Louisiana Civil Code. There, as a substantive right of possession, the Code recognizes the right of a possessor for a year or more who has possessed “peaceably and without interruption” to bring a possessory action against one who disturbs his possession. Louisiana Civil Code of 1808, art. 23, p. 478; Louisiana Civil Code of 1825, art. 3417(2); Louisiana Civil Code of 1870, art. 3454(2). See Art. 3454, La.C.C.Comp.Ed. in West’s LSA-C.C., pp. 656-57 (1972).

Under the Civil Code, possession is not interrupted when it is merely disturbed. A possessor does not lose possession against his consent unless he is forcibly expelled or unless the disturber usurps possession and holds it for more than a year. See Civil Code Article 3449, which declares:

“A possessor of an estate loses the possession against his consent:
1. When another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from re-entering.
2. When the possessor of an estate allows it to be usurped and held for a year, without, during that time, having done any act of possession, or interfered with the usurper’s possession.”

Similarly, in speaking of interruption of prescription (rather than of possession) Article 3517 of the Louisiana Civil Code declares that “a natural interruption is said to take place when the possessor is deprived of the possession [enjoyment]* of the thing during more than a year, either by the ancient proprietor or even by a third person”.

Thus, an interruption of possession for purposes of the possessory action coincides with an interruption of acquisitive prescription under Article 3517 of the Civil Code. (Moreover, if so interpreted, the loss of the right to possess under Article 3449(2) of the Civil Code coincides in time with the acquisition of the right to possess by another under Articles 3454(2) and 3456 of the Civil Code.)

We therefore conclude that one may possess quietly and without interruption for more than a year so as to be entitled to bring a possessory action, La.C. Civ.P. art. 3658(2), even though during that year disturbances in fact or law have occurred, La.C.Civ.P. art. 3659.

The application for a rehearing is denied.

Rehearing denied.

TATE, J., assigns additional concurring reasons.

BARHAM, J., did not participate.

TATE, Justice

(concurring in denial).

The writer subscribes to the majority opinion and to the denial of rehearing. The additional sources and analysis are set forth below for what aid they may be in study for future applications of the article.

The Louisiana Civil Code and the Louisiana Code of Civil Procedure draw a distinction between a disturbance in fact that results in eviction and such a disturbance that falls short of eviction. In the first case, the possessor is evicted, and the person who caused the disturbance may commence to possess for himself. In the second case, the disturbance merely questions or places an obstacle to the enjoyment of quiet possession. Civil Code Article 3454 (2); La.C.Civ.P. arts. 3655, 3658(4), 3659.

Under the facts before us, as the majority states, Louisiana Land’s acts clearly amounted to no more than a disturbance. They did not amount, to an eviction. Nevertheless, whether an eviction or a disturbance, the possessor must within a year bring the possessory action. La. C.Civ.P. art. 3658(4).

The underlying issues, however, concern when a disturbance of possession constitutes an eviction and when an eviction is of sufficient magnitude or duration as to terminate the original possessor’s undisturbed possession.

I

According to Article 3658(2) of the Louisiana Code of Civil Procedure, the plaintiff in a possessory action must allege and prove that he and his ancestors in title had possession of the immovable property or real right “quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud.” (Italics mine.) This provision was derived from Article 49(2) of the Codes of Practice of 1825 and 1870. This prescribed that the plaintiff in the possessory action ought to have possession “quietly and without interruption . . . for more than a year previous to his being disturbed,” unless he had been evicted by force or fraud (Italics mine). An official comment under Article 3658 of the Louisiana Code of Civil Procedure indicates that “this article makes no change in the law.”

The redactors of Article 49(2) of the Code of Practice used the words “without interruption” to convey the same idea as in Article 3417(2) of the Louisiana Civil Code of 1825, corresponding with Article 3454(2) of the 1870 Code. There, posses-sory protection is available to every person “who has possessed an estate for a year, or enjoys peaceably and without interruption a real right, and is disturbed in it” (Italics added). The provision reflects language used in Article 23, p. 478, of the Louisiana Civil Code of 1808, taken al-' most verbatim from the text of Pothier. See Pothier, Traite de la Possession, Chapter VI, No. 83, 9 Oeuvres de Pothier 291 (ed. Bugnet 1861). There is no corresponding provision in the French Civil Code.

II

In drafting Article 23, p. 478 of the 1808 Code, however, the redactors were aware of Article 38, p. 482, which corresponds with Article 2229 of the French Civil Code. Article 38 declared: “Prescription requires a continued, uninterrupted, peaceable, public and unequivocal possession; it is also required that the person claiming the prescription shall have possessed animo domini, that is, as master or proprietor” (Italics added). This provision was amended in 1825, and eventually in substance became Article 3487 of the 1870 Code.

In speaking of interruption of prescription (rather than of possession), Article 3517 of the Louisiana Civil Code of 1870 declares that “a natural interruption is said to take place when the possessor is deprived of the possession [enjoyment] of the thing during more than a year, either by the ancient proprietor or even by a third person”.

The relevant issue is: Should the same concept be applied to the interruption of possession ? Is possession interrupted when the possessor is evicted or only when he has been evicted and stayed out of possession for a full year ?

III

Possession is not interrupted when it is merely disturbed. Possession is interrupted when possession is lost. See 3 Planiol et Ripert, Traité pratique de droit civil francais 170 (2d ed. Picard 1952).

According to Article 3448 of the Louisiana Civil Code of 1870, possession is lost with the consent of the possessor by abandonment or by transfer to another person. The following Article 3449 declares:

“A possessor of an estate loses the possession against his consent:
1. When another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from re-entering.
2. When the possessor of an estate allows it to be usurped and held for a year, without, during that time, having done any act of possession, or interfered with the usurper’s possession.”

The latter provision was first adopted in 1825. It derives verbatim from the text of Pothier. See Pothier, Traité de la Possession, Chapter V, Article II, Nos. 73-76, 9 Oeuvres de Pothier 289 (ed. Bugnet 1861); Batiza, The Actual Sources of the Louisiana Pro jet of 1823: A General Analytical Survey, 47 Tul.L.Rev. 1, 111 (1972). There is no corresponding provision in the French Civil Code.

Article 3449(2) of the Civil Code is closely related to the subsequent Article 3456. This latter provides that if the possessor “leaves the person evicting him in possession for one year, without complaint, he shall lose his possession, whatever apparent right he may have had to it, and shall be driven to an action for the ownership of the property.” Article 3456 first appeared as Article 27, p. 480 in the 1808 Louisiana Code, having been derived verbatim from the text of Domat. See Domat, Book III, Title VII, Section I, No. 18, 2 Oeuvres de Domat 195 (ed. Remy 1829) ; Batiza, The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance, 46 Tul.L.Rev. 1, 131 (1971).

IV

The proper interpretation of Article 3449 of the Louisiana Civil Code of 1870, quoted above, raises the question: Does this article establish two modes of loss of possession or just one?

Paragraphs (1) and (2) of Article 3449 are joined disjunctively. Pothier, from whose text the provision derives, first says that “we lose the possession of an estate against our consent, when somebody evicts us”, then goes on to say in a new paragraph that “a second manner whereby we lose the possession of an estate against our consent is when we allow somebody to usurp it, who takes possession of it, and enjoys it for a year and a day, without us having made during this time any act of possession.” 9 Oeuvres de Pothier 289 (ed. Bugnet 1861).

In France, in the absence of a provision in the Code Civil corresponding with Article 3449 of the Louisiana Civil Code of 1870, commentators indicate that possession is lost not merely upon eviction but upon the lapse of one year from eviction.

This conclusion is based on Article 2243 of the French Civil Code which corresponds with Article 3517 of the Louisiana Civil Code of 1870 and deals with the interruption of acquisitive prescription rather than of possession. See 2 Aubry et Rau, Droit civil francais 124 (7th ed. Esmein 1961): “Moreover possession is not necessarily lost by this alone that a third person takes hold of the immovable. According to our law, it is lost only when the occupation by a third person has lasted for more than one year. Article 2243. To the extent that the former possessor has allowed this term to lapse without re-entering in the enjoyment, or without bringing the action in order to recover it, he must be considered as having lost the possession, whether he knew or not of the usurpation; and that is so even if he has manifested hss intention to be maintained in possession by means of a juridical act, such as the payment of a contribution.”

Reading the two paragraphs of Article 3449 of the Louisiana Civil Code of 1870 as establishing two distinct modes of loss of possession may seem to be a tenuous interpretation. Logically, however, if possession is lost under 3449(1) upon eviction of the possessor, the second paragraph of the same article would be superfluous.

Pothier and the redactors of the Louisiana Civil Code of 1825 seem to have had in mind two distinct matters: on the one hand, loss of possession as loss of physical control; on the other, loss of the right to possess. Indeed, much confusion has resulted in Louisiana from the use of the word “possession” in the Civil Code and in the jurisprudence to denote both physical control and the right to possess.

For example, the word possession in Civil Code Articles 3426-3431, 3436-3438, means physical control over a thing that one has acquired with the intent to own it. (Possession as physical control leads, of course, to acquisitive prescription if it has the attributes required by Article 3487 of the Louisiana Civil Code of 1870.) This physical control alone, however, does not give rise to possessory protection or to acquisitive prescription. Possessory protection is predicated on acquisition of the right to possess. This right to possess is acquired by one who has been for a year in peaceable and uninterrupted possession of an estate. Civil Code Articles 3454(2), 3456; cf. id. art. 3449(2).

Exceptionally, however, possessory protection is accorded to any one who has been evicted by force or fraud, no matter how short the duration of possession. This is done in the interest of preservation of peace in society and as a deterrent against self-help. Technically, the action for the recovery of possession against a person who evicted another by force or fraud is not a possessory action. See 3 Planiol et Ripert, Traité pratique de droit civil fran-cais 794 (2d ed. Picard 1952); Yiannopou-los, Civil Law Property § 132 (1966). Thus, if evicted by force or fraud, the original possessor may bring the possessory action even though he cannot prove the requisite year’s possession prior to his eviction.

V

We may now return to the interpretation of Article 3658(2) of the Louisiana Code of Civil Procedure.

Does this provision contemplate interruption of possession by an ev.iction of any duration or only by an eviction that has lasted for more than a year?

In other words, does this provision contemplate interruption of possession by the loss of physical control (Civil Code Article 3449(1)), or only interruption of possession by the loss of the right to possess (Civil Code Article 3449(2)) ? In the final analysis, the question is open to either interpretation and must be resolved in the light of policy considerations.

If possession is interrupted within the meaning of Article 3658(2) of the Louisiana Code of Civil Procedure by the mere loss of physical control at sometime during the period of one year immediately preceding the disturbance, consider the following illustration. A is disturbed in his possession by eviction or otherwise .on January 4, 1974. He must bring the possessory action within one year and he must allege and prove that he was in possession on January 4, 1974, and that he was not evicted at all during the period between January 4, 1973, and January 4, 1974.

If possession is interrupted within the meaning of Article 3658(2) of the Louisiana Code of Civil Procedure by the loss of the right to possess during the period of one year immediately preceding the disturbance, consider the following illustration. A is disturbed in his possession, by eviction or otherwise, on January 4, 1974. He brings a possessory action on January 3, 1975, meeting the requirement of C.C.P. art. 3658(4). He must also allege and prove that he was in possession on January 4, 1974, and that he did not lose the right to possess during the period between January 4, 1973 and January 4, 1974. If he was evicted, at any time, for less than a year and recovered possession prior to January 4, 1974, he may still bring the possessory action. If he was evicted for more than a year but recovered possession prior to January 4, 1973, again he may still bring the possessory action. The possessory action is barred to him only if he recovered possession during the period from January 4, 1973 to January 4, 1974, after having been out of possession for more than a year, namely, if he was evicted prior to January 4, 1972, and his eviction lasted for more than a year.

The second interpretation is preferable. Under this interpretation, an interruption of possession for purposes of the posses-sory action coincides with an interruption of acquisitive prescription under Article 3517 of the Civil Code. Moreover, under this interpretation, the loss of the right to possess under Article 3449(2) of the Civil Code coincides in time with the acquisition of the right to possess by another under Articles 3454(2) and 3456 of the Civil Code.

This preferred interpretation accords with the apparent intent of the redactors of the Code of Practice and of the, Code of Civil Procedure. The redactors intended to accord possessory protection to a person who acquired the right to possess under Civil Code Articles 3449(2), 3454(2), and 3487.

Thus, the legislative intent of the provisions of Article 49(2) of the Code of Practice and 3658(2) of the Code of Civil Procedure seems to be that possessory protection is available to anyone who has previously acquired the right to possess and did not lose it in the year immediately preceding the disturbance.

VI

Finally this interpretation also accords with French tradition, legislation, doctrine and jurisprudence.

Article 23 of the French Code of Civil Procedure declares that “possessory actions are admissible if brought within one year from the disturbance, by those who, since at least one year, were in peaceable possession by themselves or through others, by a nonprecarious title.” Aubry et Rau observe that Article 23 does not give a complete enumeration of requirements, and, therefore, this article must be applied in combination with Article 2229 of the Code Civil. Thus, possessory protection is only available when the possession meets the requirements for acquisitive prescription: “It must be free of the vices of precariousness, clandestinity, and violence, it must be unequivocal, and, moreover, it must have lasted in a continuous and uninterrupted manner during the period of time required for the acquisition of the right to possess.” 2 Aubry et Rau, Droit civil francais 210 (7th ed. Esmein 1961).

The authors observe, however, that the requirements for acquisition of the right to possess need not exist in the year immediately prior to the disturbance. “It suffices that the previously acquired possession is not lost by a voluntary abandonment, or by an interruption for more than one year.” Id. at 211.

Thus, under both the text of the French Code of Civil Procedure and relevant doctrine, possessory protection in France is available unless possession was lost by interruption for a period in excess of one year prior to the disturbance. See also 3 Planiol et Ripért, Traité pratique de droit civil francais 1970 (2d ed. Picard 1952). The interpretation of the Louisiana code provisions as declaring to the same effect is thus in accord with the doctrinal sources of our law and with the pertinent general scheme of our own Civil Code.

      . This suggestion seems obvious enough. Certainly more possession should be required in the case of farm land than in the case of wood land, and more possession in the case of wood land than in the case of swamp land. In the case of swamp lands and certain types of wood lands, very little can be done which might indicate the taking of possession, and if the courts were to require as much corporeal possession in the case of this type of land as in the case of other types of land, it is submitted that the former could never be prescribed. See Chamberlain v. Abadie, 48 La.Ann. 587, 590, 19 So. 574, 575 (1896), in which the court was of the opinion that: ‘The corporeal possession necessary to support the prescription is governed by the use for which the land is destined’; and Boagni v. Pacific Imp. Co., 111 La. 1063, 1070, 36 So. 129, 131 (1904), where the court stated: ‘That which is essential for actual possession changes with the nature of the property. It is different when it relates to one kind, from what it is when it relates to another.’ In this connection see Ellis v. Prevost, 13 La. 230 (1839); Dodeman v. Barrow, 11 La.Ann. 87, 91 (1856), dissenting opinion of Merrick, O. J.; Giddens v. Mobley, 37 La.Ann. 417 (1885); Nugent v. Urania Lumber Co., 16 La.App. 73, 133 So. 420 (1031); Buckley v. Dumond, supra note 10.” 12 Tul.L.Rev. 608, 610-611.

      . Ellis v. Prevost, supra note 5; Davis v. Dale, 2 La.Ann. 205 (1847); Dickson v. Marks, 10 La.Ann. 518 (1855); Searles v. Costillo, supra note 19; Millard v. Richard, 13 La.Ann. 572 (1858); Dooley v. Gibson, 32 La.Ann. 192 (1880); Handlin v. Weston Lumber Co., 47 La.Ann. 401, 16 So. 955 (1895); State ex rel. Kenner v. Rost, 50 La.Ann. 995, 23 So. 978 (1898); Ramos Lumber Co. v. Labarre, 116 La. 559, 40 So. 898 (1905); Hanson Lumber Co. v. Baldwin Lumber Co., supra note 5; Hanson Lumber Co. v. Riggs Cypress Co., supra note 35; Ciaccio v. Hartman, 170 La. 949, 129 So. 540 (1930); Collins v. Heath, 15 La.App. 370, 131 So. 479 (1930).” 12 Tul. L.Rev. 608, 614.

      . The defect of violence presupposes that the possession is acquired by active means. If the possession originates peacefully, it does not become defective if troubles related to it are caused. by third persons; but there must be no natural interruption of the possession. . . . ”

      . The possessory action of February 9, 1972 was actually brought within a year of the earliest 1971 disturbance. It was therefore timely if founded on these 1971 disturbances. La.C.Civ.P. art. 3658. However, we prefer not to rest our holding on that ground.

      . An error in the English translation is noted : “possession” should be “enjoyment”. See Art. 3517, La.O.C.Compiled Edition in 17 West’s LSA-C.C. p. 688 (1972).


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    ECONOMY CARPETS MANUFACTURERS AND DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE, LOUISIANA, INC.
    No. 56390.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Bart Eaton, D. Bert Garraway, Percy, Macmurdo, Gray & Eaton, Baton Rouge, for plaintiff-applicant.
    Robert P. Breazeale and Van R. May-hall, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for defendant-respondent.
   SUMMERS, Justice.

Economy Carpets Manufacturers and Distributors, Inc., instituted suit against the Better Business Bureau of Baton Rouge, La., Inc., on May 9, 1975 claiming treble damages and attorney’s fees for conspiratorial actions by the BBB and others to restrain trade and commerce in violation of Section 122 of Title 51 of the Revised Statutes of Louisiana. See also La.R.S. 51:137. The cause of action is alleged to be founded upon the publication of a “Special Bulletin” by BBB in October 1974. False and misleading information in the bulletin charging Economy with unfair practices and other actions of BBB are alleged to have been calculated to injure, embarrass and humiliate Economy, damage its business and restrain trade.

Interrogatories were propounded by Economy to BBB. From these and other documents in the record we learn that the propriety of Economy’s advertising practices had been referred by BBB to Elmer Tapp of the Governor’s Office of Consumer Protection for investigation. He, in turn, enlisted the services of the Office of the Attorney General. Thereafter a motion for production was filed on May 15, 1975 by Economy in which it requested correspondence and complaints in BBB’s possession referring to Economy and other carpet manufacturers. When this matter came on for hearing on June 2, 1975, it was argued and submitted to the Court. Whereupon, the motion was granted.

At this time counsel for BBB orally advised the Court that Economy had placed a sign directly across the street from the Better Business Bureau office. As a retort, counsel for Economy advised the court that BBB had issued a special bulletin commenting upon this litigation. The Court then issued the following protective order:

“All parties to this lawsuit are hereby instructed and ordered to cease and desist from using any public advertisements, news media, private publications or other means whatsoever to draw attention to this litigation. All signs are to be removed within twenty-four hours.”

The First Circuit denied review. These reasons are assigned:

‘‘The trial judge has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the time so that justice is done. CCP Art. 1631. There is no abuse of the trial judge’s discretion by the issuance of the order complained of.”

Thereafter, when application was made here, a stay of execution was granted, and the court order was set aside, unless a showing to the contrary was made within five days by the trial judge.

A timely response by the trial judge set forth that shortly before the hearing of June 2 he had personally observed the sign referred to at the hearing. A photograph of the sign is attached to his response. He further stated that he had personal knowledge of another sign which had been erected by Economy on its premises. A photograph of this sign was also attached to his response. The photographs and signs contain reference to the Better Business Bureau and to Tapp with vulgar connotations. There is no reference to the litigation as such, but the implication that the signs are aimed at the controversy between Economy and BBB is clear, although the signs do not indicate they were attributable to Economy. In addition, the trial judge asserts that the dispute involved in this litigation had received wide publicity in the media. A number of newspaper clippings are attached to his response to substantiate this assertion.

Proscriptions set forth in the order, he submits, do not prohibit or prevent these litigants from responding to inquiries from the press or media. The order simply restricts the litigants from gratuitously erecting signs, inserting advertisements in the news media, or making private publications tending to further incite or inflame an already combustible controversy.

The protective order was issued upon these facts, the oral representations of counsel and the authority of Article 1631 of the Code of Civil Procedure granting the court “the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner.”

In a later response two more photographs of signs allegedly placed by Economy along the streets in Baton Rouge and more newspaper publicity, all occurring after the order of June 2, are claimed to threaten to reduce the trial proceedings to a debacle and warrant the withdrawal of the stay order imposed by'this Court.

Economy’s application to the Court of Appeal and to this Court presents three issues :

1) The protective order was an abuse of discretion by the trial judge, for it was not the result of a motion and no evidence was received in support thereof.
2) The order violates Economy’s rights under the First Amendment to the United States Constitution and Article I, Section 7, of the Louisiana Constitution.
3) There was no adversary proceeding and Economy was not notified in order that it might prepare and present its position.

Undoubtedly a court has the power to require that the proceedings be conducted with dignity and in an orderly and expeditious manner, and it is well-established that the judge can control the proceedings at trial to see that justice is done as Article 1631 of the Code prescribes. See also La.Code Civ.P. art. 191. Cf. La.Code Civ.P. arts. 221-27. This power and authority would comprehend the issuance of a protective order to assure these results under proper circumstances.

However, these orders, like all rulings, orders, decrees and judgments issued by courts of law must be based upon record evidence. Orders of court, except in the case of authorized ex parte orders, must be predicated upon evidence introduced into the record, affording ample opportunity to those affected thereby to contradict, rebut and otherwise support their position in the matter. La.Code Civ.P. art. 194, Dalbey v. Continental Supply Co., 155 La. 113, 98 So. 859 (1924); Lee v. Bennett, 3 La.Ann. 218 (1848).

Only the petition, answer, motions, orders and minutes of court in the record are properly cognizable by this Court, none of which provide support for the trial judge’s order. There is no transcript of testimony, stipulation of fact, documents properly introduced or other legal evidence in the record to which this Court may turn in this review to support the order of the trial judge. Merchant’s and Farmer’s Bank & Trust Co. v. Hammond Motors Co., 161 La. 288, 108 So. 485 (1926).

Surely it is elementary that photographs of signs and newspaper clippings attached to briefs and responses, or sketchy reference to representations made by counsel in oral argument, are not evidence. Discon v. Saray, Inc., 262 La. 997, 265 So.2d 765 (1972); Otis v. Sweeney, 43 La.Ann. 1073, 10 So. 247 (1891); Twichell v. Avegno, 19 La.Ann. 294 (La.1867); McAuliffe v. Destrehan, 9 Rob. 466 (La.1845); Smith v. Henderson, 9 La.App. 425, 121 So.2d 227 (1928).

One fact which the record does make clear, and which no party disputes, is that the protective order was issued without notice to either party that it would result from the hearing being held at the time, and without according either party an opportunity to offer evidence. No rule was issued to show cause why the order should not issue; there was, in fact, no contradictory hearing or adversary proceeding on the question as contemplated by law. Issued ex parte, the order gave Economy no opportunity to traverse. It is not based upon facts in the record or upon facts which transpired in the courtroom.

In our view the order was improperly issued. This conclusion makes unnecessary a consideration of the contention that the protective order denied Economy the right of freedom of speech as guaranteed by the United States and Louisiana Constitutions.

For the reasons assigned, the protective order of the trial court dated June 2, 1975 is annulled and set aside, and the case is remanded to the trial court to be proceeded with in accordance with law.

BARHAM, J., does not participate.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Samuel P. JOHNSON.
    No. 56343.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Bernard E. Fulghum, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Keith S. May, Research Atty., Research and Appeals Div., Gretna, for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, Samuel P. Johnson, was charged with violating R.S. 14:62, the commission of simple burglary of a gas station in Jefferson Parish on August 6, 1974. Defendant was tried by jury in September 1974, found guilty of simple burglary, and sentenced to three years at hard labor. Although four assignments of error were reserved by the defendant, only one was presented in brief and oral argument to this Court; therefore, the others are deemed abandoned. State v. Johnson, 286 So.2d 358 (La.1973).

The defendant assigns as error the refusal of the trial judge to grant his motion to suppress. He argues that his identification by a police officer on the morning in question and the clothes taken from his residence by the police should not have been admitted as evidence in his trial.

The circumstances surrounding the identification of defendant and the seizure of the clothes are these. In the very early morning hours of August 6, 1974, three men burglarized a gas station in Jefferson Parish. They were interrupted in the act by two police officers, Officer Lips and Officer Haase. The officers arrested two of the burglars, but lost the third, who fled the scene. The two burglars who were apprehended told the policemen that the third burglar was named “Sam” or “Sammy.” The policemen broadcast the description of the subject with the name “Sammy.” After hearing the broadcast, Officer Pallisel and his partner stopped fourth youths walking not far from the scene of the crime and asked them if they knew a young man named Sammy. One of the boys said he did, and told the officers the general area in which the young man lived. The officers went to this area, asking residents if a Sammy lived in the neighborhood. The second person they asked told them that Sammy Johnson lived in a particular house on the block, and the officers knocked on the door and asked a woman (who turned out to be defendant’s mother) if Sammy Johnson were at home. She brought her son to the door. Because he fit the general description which had been broadcast, the officers detained defendant Johnson in front of his house while they radioed the two officers who had interrupted the burglars. When these two officers arrived, one of them, Officer Lips, positively identified Samuel Johnson as the burglar whom he had seen fleeing the scene of the crime. Defendant Johnson was then formally arrested. Mrs. Johnson, defendant’s mother, was asked if she would allow her home to be searched, and she consented. The officers searched the home and in the second room of the house, which was being used as Mrs. Johnson’s bedroom, a green shirt was found which is the item defendant attempted to suppress.

Defendant complains that his detention outside of the house was unreasonable in violation of the Fourth Amendment to the Constitution of the United States. While the facts of defendant’s detention are neither stipulated nor totally undisputed, our assessment of what occurred is that defendant came to the door of his own accord and was requested by the police officers to step outside. Clearly there was not an invasion of the house by the policemen and forcible extraction of defendant from his home. The officers confirmed that the defendant’s name was Sammy and that he lived in this house which they knew was only three blocks from the scene of the crime in the general direction toward which the suspect had fled. When the officers saw that defendant met the detailed physical description of the suspect and wore a white bracelet as the suspect was wearing, they decided to detain him for a few minutes while they radioed the other two officers. Within thirty minutes Officers Lips and Haase arrived. Officer Lips positively identified defendant as the suspect who had fled. It was then that defendant was formally arrested.

Article 213 of the Code of Criminal Procedure provides that “a peace officer may, without a warrant, arrest a person when; . (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer.” We believe that the knowledge which the officers possessed constituted reasonable cause to prompt the arrest of defendant without a warrant. They knew that a crime had been committed in the area; they were searching for the burglar; and they had his description and first name. This case is distinguishable from our holdings in State v. Saia, 302 So.2d 869 (La.1974) and State v. Truss, La., 317 So.2d 177, 1975. In those cases we found that the officers did not have reasonable cause to detain and search the respective defendants because the officers had no reasonable cause to believe that a crime had been or was being committed. Here, however, the officers were searching for the perpetrator of a particular crime and were armed with specific information about him. These officers did have reasonable cause to arrest the defendant at the time they decided that he met the description, although they did not formally arrest him until Officer Lips had positively identified him. There was nothing impermissible about the detention or succeeding formal arrest.

Defendant argues, however, that even if the arrest was a valid one that the search was in violation of the Fourth Amendment of the United States Constitution.

Defendant was arrested in front of his home. He was not asked which room of the home was his bedroom or whether he would consent to a search. His mother did consent to the search and, with her consent but without a warrant, the officers searched the home. In a closet in the second room of the home, which was used as Mrs. Johnson’s bedroom, officers found in a laundry basket the green shirt which was the subject of defendant’s motion to suppress. In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the United States Supreme Court reaffirmed the principle that a search, without warrant and without probable cause, but with proper consent voluntarily given, is valid under the Fourth Amendment. In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974) the Supreme Court held that proper consent to search could be 'given by a third party if he possesses “common authority over [the] premises or effects.” In a footnote in Mattock, the Court notes that the “authority which justifies the third-party consent . . . rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” 94 S.Ct. at 993. In the Matlock case the consent to search was given by a woman who was cohabiting with defendant, but who was not his wife. Because there was evidence that she shared the bedroom that was searched and its only closet with the defendant, the Court held that she and defendant had common authority over the bedroom and the closet, making the search valid. Applying the rule of the Matlock case to the situation before us, we find that the defendant’s mother had common authority with the defendant and the others in the house over at least the second bedroom and the closet in it. Mrs. Johnson had authority to consent to the search which produced the shirt admitted at defendant’s trial.

The assignment of error lacks merit.

For the reasons assigned, the conviction is affirmed.

      . C.Cr.P. Art. 213 provides in full that:
      “A peace officer may, without a warrant, arrest a person when:
      (1) The person to be arrested has committed an offense in his presence, and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;
      (2) The person to be arrested has committed a felony, although not in the presence of the officer;
      (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
      (4) The peace officer has received positive and reliable information that another peace officer holds a warrant for the arrest.
      A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this article may enter another jurisdiction in this state and make the arrest.”


text:
    STATE of Louisiana v. R. Charles THOMAS and George Thomas.
    No. 56624.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Richard V. Burnes, Gravel, Roy & Burnes, Alexandria, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., Edwin R. Woodman, Jr., Staff Atty., William C. Pegues, Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

On July 16, 1975, defendants R. Charles Thomas and George Thomas were scheduled to be tried in the Thirtieth Judicial Court in and for Vernon Parish on a charge of public payroll fraud in violation of R.S. 14:138. The offense with which they were charged purportedly occurred on July 20, 1973. The offense charged was one punishable by confinement at hard labor or confinement without hard labor for more than six months, sometimes called a relative felony.

At the time that the indictment was returned, and at all times up to and through December 31, 1974, the mode of trial was fixed by Article 1, Section 9 and Article 7, Section 41 of the Louisiana Constitution of 1921 and Articles 780 and 782 of the Louisiana Code of Criminal Procedure. Under these provisions, every criminal defendant charged with a relative felony could be tried in one of two ways: by the judge alone, or by a jury of five, all of whom were required to agree in order to return a verdict.

On January 1, 1975, when the Louisiana Constitution of 1974 went into effect, defendants charged with relative felonies became entitled under Article 1, Section 17 of the Constitution of 1974 to trial by a jury of six persons, five of whom must concur to render a verdict. Under Article 1. Section 17 of the Constitution of 1974 and Article 780 of the Code of Criminal Procedure, a defendant can still elect to waive trial by jury and be tried by a judge alone. Moreover, the Legislature amended Article 782 of the Code of Criminal Procedure to provide that a jury would consist of six members, five of whom must concur to render a verdict, and to allow a defendant charged with committing an offense prior to December 31, 1974, but tried on or after January 1, 1975, to be tried in accordance with the jury provisions applicable under the Constitution of 1921. The article provides that prior to- commencement of trial, a defendant may elect to be tried under the Constitution of 1974.

Since the defendants in this case were charged with a relative felony which purportedly occurred on or before December 31, 1974, and will be tried after January 1, 1975, each of them is afforded the option granted by C.Cr.P. Art. 782 to be tried under the jury provisions of the Constitution of 1921, or to elect to be tried under the jury provisions of the Constitution of 1974.

On the morning of the trial of these defendants, defendant George Thomas elected to be tried under the 1921 Constitution by a jury of five persons, all of whom must concur in order to render a verdict; and the defendant R. Charles Thomas elected to be tried under the 1974 Constitution by a jury of six, five of whom must concur in order to render a verdict. Defendants had been jointly indicted, and neither defendant R. Charles Thomas, defendant George Thomas, nor the state had moved to sever, as is provided by C.Cr.P. Art. 704. This Article provides in full that :

“Jointly indicted defendants shall be tried jointly unless:
(1) The state elects to try them separately ; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.”

Since there had been no motion for a severance of the case, the trial judge ordered that the defendants be tried jointly under the provisions of the 1974 Constitution, thus forcing the defendant George Thomas to elect to be tried under the jury provisions of the 1974 Constitution, an election which he had not made. The defendants applied to this Court for writs of certiora-ri, prohibition and mandamus and a stay order. This Court granted the stay order and ordered the district judge to try rela-tors before the juries of their respective individual choices or to show cause to the contrary.

In its argument to show cause, the state insists that no severance should be granted because doing so would allow defendants to circumvent the statutory and jurisprudential criteria established to regulate the granting of severance. The state proposes that this Court order two separate juries to hear a joint trial, one jury constituted under the provisions of the 1921 Constitution to hear the case against defendant George Thomas and the other jury constituted under the provisions of the 1974 Constitution to hear the case against defendant R. Charles Thomas. Each jury would then deliberate separately and return separate verdicts. Alternatively, the state proposed that only six jurors be selected for a joint trial of both defendants. Under this plan, all six jurors would form the jury for defendant R. Charles Thomas, and five of them would form the jury for defendant George Thomas. The state argues that Article S, Section 5 of the Constitution of 1974 gives this Court authority to order such novel arrangements when it states this Court “may establish procedural and administrative rules not in conflict with the law.”

Our statutory law knows no such trial procedures as are suggested by the state. Although this Court may have the power to order such procedures under its general supervisory jurisdiction, we do not feel that the case before us warrants deviation from the normal. Defendants here have exercised their rights to elect particular types of juries. Although the exercise of their rights in this manner will cause a severance of the cases of co-defendants under circumstances which would not normally permit a severance, we conclude that we must allow them to exercise these rights. These options must be afforded to these defendants even though the practical effect-is to sever a case without compliance with Article 704. Although novel proposals by the state unsanctioned by statute would prevent violation of the severance article, we feel they would cause numerous other complications. We hold, therefore, that these defendants be afforded separate trials, each with the mode of jury he has elected.

We are not unmindful that the issue which we resolve here may affect any joint indictment now filed or hereafter filed which charges an offense occurring on or before December 31, 1974, and upon which trial has not yet been held. Nor are we unmindful that this decision applies to offenses which carry punishment necessarily at hard labor. But this conflict, which has occurred because of our transition from one Constitution to another, will not continue indefinitely. Accordingly, we order that the trial court sever the cases of these two defendants and hold two separate trials, one in accordance with the provisions of Louisiana Constitution Art. 7, Section 41 (1921) for defendant George Thomas and the other in accordance with the provisions of Louisiana Constitution Art. 1, Section 17 (1974) for defendant R. Charles Thomas.

      . Article 1, Section 9 of the Louisiana Constitution provides in pertinent part: “In all criminal prosecutions the accused shall have the right to a speedy, public and impartial trial in accordance with the provisions of this constitution.”
      Article 7, Section 41 provides in pertinent part:
      “All cases in which the punishment may not be at hard labor shall, until otherwise provided by law, be tried by the judge without a jury. Oases, in which the punishment may he at hard labor, shall he tried hy a jury of five, all of whom must concur to render a verdict; cases, in which the punishment is necessarily at hard labor, by a jury of twelve, nine of whom must concur to render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.” (Emphasis provided)
      Article 780 of the Code of Criminal Procedure provides:
      “A defendant charged with any offense except a capital offense may knowingly and intelligently waive a trial by jury and elect to be tried by the court.”
      Article 782, until December 31, 1974 provided in full as follows:
      “Cases in which the punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which the punishment is necessarily at hard labor shall be tried by a jury composed of twelve jurors, nine of whom must concur to render a ver-diet. Gases in which the punishment may he imprisonment at hard labor, shall he tried by a jury composed of five jurors, all of whom must concur to render a verdict. Except as provided in Article 780, trial by jury may not be waived.” (Emphasis provided)

      . Article 1, Section 17 of the Constitution of 1974 provides in pertinent part:
      “A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may he confinement at hard labor or confinement without hard labor for more thorn six months shall he tried before a jury of six persons, five of whom must concur to render a verdict. . . . Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury.” (Emphasis provided)

      . C.Cr.P. Article 782, as amended, effective January 1, 1975, provides:
      “A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which the punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may he confinement at hard labor, shall he tried by a jury composed of six jurors, five of whom must concur to render a verdict.

      B. Trial by jury may be knowingly and intelligently waived by the defendant except in capital cases.
      C. A defendant charged with the commission of an offense alleged to have been committed prior to midnight December 31, 1974 shall, except as hereinafter provided, be tried in accordance with the jury provisions applicable at the time of the commission of the offense. Prior to the commencement of trial in such cases, the court shall advise the defendant that he may elect to he tried under the jury provisions of the Louisiana Constitution of 197J, and failure of the defendant to so elect prior to the commencement of the trial constitutes a waiver of his right to be tried under the jury provisions of the Louisiana Constitution of 1974.” (Emphasis provided)

      .The state argues that the election of defendant R. Charles Thomas to be tried under the 1974 Constitution was not made “prior to the commencement of trial,” as is required by Article 782(C). C.Cr.P. Art. 761 states that a jury trial begins “when the first prospective juror is called for examination.” It is apparent from a review of the transcript, and the arguments of counsel, and the comments of the judge that defense counsel’s election as it first appears in the transcript was not the first instance in which he had expressed that election to the trial court and opposition counsel. It is apjjarent in reviewing the transcript and the unrebutted assertions of counsel for the defendant that defendants expressed their elections in chambers prior to the trial court’s taking the bench. There is no question but that the defendants exercised the elections afforded them by Art. 782(C) prior to the commencment of trial. Even if defendants had not made their election before it was made in the record, that election was still probably timely because it was made before any questions had been asked of any particular jurors. Although the jurors had been asked as a group whether they were citizens of the state and country, whether they were at least eighteen years old, and whether they were residents of the parish, these general questions did not signal the beginning of the trial, because no particular juror had been called for examination. See C.Cr.P. Art. 783, 784, 787. Moreover, at this time the case had not even been called.

      . The state has an absolute right to sever the cases of joint defendants, but the state does not wish to sever the cases of defendants Thomas and Thomas. The only other way that a severance can be effected under Article 704 is for the defendants to move for a severance, which neither has done, and for the trial judge, in his discretion, to determine that “justice requires a severance.” The jurisprudence has established that certain situations call for a severance. A severance may be granted when a defendant alleges and proves that the defenses of the accused will be antagonistic or that his right to call witnesses for his defense will be foreclosed by the coexistent right of his co-defendant not to be forced to take the stand. State v. Medlock, 297 So.2d 190 (La.1974).

      . At least two federal courts have approved of a similar procedure. See United States v. Crane, 499 F.2d 1385 (6th Cir. 1974); United States v. Sidman, 470 F.2d 1158 (9th Cir. 1972), cert. denied, 409 U.S. 1127, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973). In Champagne v. American Southern Insurance Co., 295 So.2d 437 (La.1974), the Louisiana Supreme Court, in a civil case, approved a procedure which allowed the district court to hold one trial with the jury making certain determinations and the judge certain other determinations. In that case the original defendant was an individual who had requested a jury trial. Although the plaintiff later brought in the State as a second defendant, this Court held that the individual defendant had not lost his right to a jury trial.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Wallace J. CLOUD et al., Appellants.
    No. 56245.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    Salvadore T. Mule, New Orleans, for Alpha Omega Cedan.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The three defendants were convicted of attempted armed robbery, La.R.S. 14:27, 64, and sentenced respectively to terms of eighteen years (Cloud and Blakes) and twelve years (Cedan) at hard labor. They appeal, relying upon five assignments of error. '

The assignments of error do not require reversal, for the following reasons:

1. Motion to suppress identification (Bill of Exceptions No. 1): We find no error in the trial court’s conclusion that the victim’s on-the-scene identification of the three would-be robbers did not constitute or result in an impermissibly sugges.tive identification.

The incident took place at a pressing shop. The hearing shows that, based on information supplied by the victim, the police picked up the three suspects within the immediate vicinity and returned them for her identification (or not) within thirty minutes of the incident. At the time of the attempted robbery, the victim had a rather extended observation of them during several minutes of threatening conversation, including when she let one of the accused speak by telephone to a co-worker in his alleged attempt to locate some missing clothes.

The totality of circumstances can properly be held to show that the victim’s identification of the defendants was based entirely upon her observation at the time of the attempted robbery and not at all induced by the on-scene identification shortly thereafterwards. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1975). An on-the-scene identification by a victim of one suspected of the offense may in some instances be suggestive, but it is not cause to suppress the victim’s identification unless the totality of circumstances indicate a substantial likelihood of irreparable misidentification. Neil v. Biggers, cited above; State v. Bland, 260 La. 153, 255 So.2d 723 (1971).

2. Motion to suppress evidence (Bill of Exceptions No. 2): Shortly after the robbery incident, the investigating police officers saw two of the accused in a crowd of twenty men outside a bar. The two fit the description by the victim of two of the men who had tried to rob her at the nearby pressing shop. When the officers saw them, the two immediately ran into the bar, with the policemen close behind. One of the two (Cloud) threw a pistol under a beer cooler. In a search incident to the consequent arrest, ten bullets were found in the pocket of the sweatshirt of the other (Blakes).

Thus, the officers had probable cause to arrest the two, and, incident to the lawful arrest, to search those areas within the immediate control of the defendants in which weapons or contraband might be secreted. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 484 (1971). This principle justifies the denial of suppression as to the bullets.

The gun was abandoned by the defendant as the police drew within five feet of him. It was properly admitted, since the initial assertion of authority by the police was based upon probable cause, and since the initial entry into the bar in hot pursuit was likewise justified. See State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970) and Fletcher v. Wainwright, 399 F.2d 62 (CA 5, 1968).

3. Chain of custody of evidence admitted (Bill of Exceptions Nos. 6 and 7): Clothing worn by one of the robbers, the pistol, and the ten rounds of ammunition were introduced into evidence over objection that the proper chain of custody had not been proved.

After initially securing the evidence from or near the respective defendants, the police officers had placed it into envelopes, sealed these envelopes, and signed th'eir names on them. The envelopes were then entered in the evidence book and brought by a desk sergeant to the clerk of the criminal district court until introduced into evidence at the trial.

Despite the objection that evidence should also have been introduced of custody from date of sealing into the signed envelope until the date the envelope was opened at the trial, we are unwilling to hold that evidence does not reasonably show the unbroken custody from the time of seizure until its introduction, nor that the evidence does not preponderantly show the requisite connexity between the defendants and the objects introduced. State v. Senegal, 312 So.2d 280 (La.1975); State v. Franks, 284 So.2d 584 (La.1973). This is especially so since, aside from the technical objection, no circumstance casts doubt on the identity of the evidence introduced with that seized from or near the defendants.

3. Motion for mistrial (Bill of Exceptions No. 5): We likewise find no merit in the contention that a belated motion for mistrial should have been granted because of a very indirect reference by a non-police witness as to one of the defendant’s whereabouts as “in the Parish”, in explanation of why he had not picked up a suit from the cleaning shop. The reference by the State witness was contained within a reply to a defense cross-examination question.

Upon defense objection, the trial court immediately instructed the jurors to disregard the reference—which, if they understood it, referred to that defendant’s being held in parish prison for a few months. The belated motion for mistrial was made at the conclusion of the witness’ testimony, some time after the sustained objection. Assuming the motion was timely, we cannot say that the trial court abused its discretion by denying it on the basis that this unsolicited response by a non-police witness was insufficiently prejudicial (if the jury understood the reference) to warrant a mistrial. La.C.Cr.P. art. 771(2).

5. Denial of motion for directed verdict (Bill of Exceptions No. 8): The motion, La.C.Cr.P. art. 778 (1966), was properly denied. It does not lie unless the State introduces no evidence at all from which the trial jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Douglas, 278 So.2d 485 (La.1973).

Decree

Accordingly we affirm the convictions and sentences.

Affirmed.


author: LANDRY, Judge.

text:
    Sidney J. McGRAW v. DIRECTOR OF POSTAL DATA CENTER et al.
    No. 10404.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.
    Jonathan C. Harris, Baton Rouge, for appellant.
    Marion Weimer and James A. McGraw, Baton Route, for appellees.
    Before LANDRY, BLANCHE and BAILES, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment affirming his disqualification for unemployment insurance benefits upon a finding that Appellant’s election to accept optional retirement from a position with the United States Postal Department (Employer) does not constitute good cause for leaving one’s employment as required by LSA-R.S. 23:1601(1). We affirm.

On December 28, 1973, Appellant voluntarily opted to resign his employment as Dispatcher and Distribution Expediter by his said employer. Appellant, then 61 years of age, did not face mandatory retirement until age 70. The reason Appellant assigned for taking “early retirement” was to take advantage of increased retirement benefits.

Upon being notified of Appellant’s application for benefits, Employer filed its form ES-931 with the State Employment Security Department (Department), which form recites:

“Optional Retirement. Employee retiring in order to receive cost of living increase to retirement annuity.”

After a hearing, the Department concluded Appellant had not left his employment for good cause connected therewith. Said determination was predicated upon the following specific factual findings:

“You voluntarily retired from your employment to take advantage of a cost of living retirement benefit.
Your leaving was for a personal reason and not good cause connected with the employment.”

The Department’s determination of disqualification was affirmed by the Board of Review.

It is conceded that prior to November, 1973, an employee like Appellant, who worked past the effective date of a cost of living increase to pensioners, was not eligible for such increases. While this regulation was in effect, an employee who retired to take advantage of an increase in retirement benefits was considered to have been induced to retire and was therefore deemed to have retired for good cause connected with his employment. An employee who resigned under such circumstances was not disqualified from unemployment insurance benefits.

Public Law 93-136, approved October 24, 1973, changed the above policy by providing that henceforth an employee retiring after the effective date of a cost of living increase would nevertheless receive the benefits of such increase in computing his annuity. Because of this change favorable to a retiring employee, an employee who retires after the effective date of Public Law 93-136 is deemed not to have been induced to retire, and therefore considered to have left his employment without good cause connected therewith. Consequently, such an employee is disqualified for unemployment insurance benefits.

Appellant correctly argues that applicable Federal regulations provide that the findings of a Federal agency employer as to an employee’s reasons for termination are final and conclusive upon state agencies charged with the duty of determining eligibility for state unemployment insurance benefits. 42 U.S.C.A. § 1367 expressly so provides. Our own courts have followed this guiding principle, Thompson v. Brown, La.App., 157 So.2d 239 (1963).

First, Appellant maintains he was induced to retire to be eligible for larger retirement benefits. He urges that this finding was made by his employer and is conclusive. Therefore, according to Appellant, he is entitled to unemployment insurance benefits. While the employer finding is factually conclusive, the legal effect thereof must be determined by the court which determines eligibility for state benefits. In this instance, the employer did not find that Appellant’s retirement was “induced”, rather it found said retirement “optional”. Controlling Federal regulations in effect upon the date of Appellant’s retirement did not require retirement in order to make Appellant eligible for cost of living increases in retirement benefits. There was no inducement, incentive, compulsion or necessity for Appellant to retire precisely when he did to become eligible for cost of living increases to his retirement benefits. Regardless of when Appellant retired, he was eligible for all costs of living increases either than effective, or which might thereafter become effective, if such increases would produce a greater retirement annuity.

Accepting employer’s finding that Appellant retired to receive cost of living increases, the Department, nevertheless, rightly concluded this was a purely personal reason unconnected with Appellant’s employment in that it was not provoked by employer inducement.

Alternatively, Appellant contends his retirement was for good cause because induced retirement is a species of induced termination, and induced termination has been recognized as good cause connected with one’s employment for purposes of determining eligibility for unemployment insurance benefits. It is argued that the induced retirement, in this and all other similar instances, includes the employer’s offer of the annuity under the optional early retirement plan, coupled with the employee’s subjective desire, motivation and/or intent to reenter the labor market after termination of his present employment, and thereby improve his economic status.

Appellant is contending that good cause for leaving one’s employment exists whenever an employee accepts an early retirement plan with the intent to reenter the labor market for the purpose of obtaining additional employment, the emoluments of which, when added to the retirement income, will enhance the employee’s economic position. It is contended that the offer of the early retirement, coupled with the subjective intent of the employee, which latter factor cannot be ignored, together constitute good cause for leaving one’s employment.

We find the argument most clever and ingenious, but lacking in merit. In our judgment, purely optional early retirement plans do not per se constitute an inducement to retire prior to mandatory retirement age. Such plans merely provide opportunity for early retirement for those who elect to take advantage thereof for whatever reason. That an employee elects the benefits of early retirement, coupled with the subjective motive of improving his economic status, does not, in our view, constitute good cause for leaving his employment.

We interpret Section 1601, above, to mean that the term good cause connected with one’s employment, as therein utilized, means cause connected with working conditions, ability of the employee to continue the employment, availability of transportation to and from work, and other factors which affect the employee’s ability or right to continue work or which affect the benefits he may receive from his employer either upon continuation of work or retirement.

In our judgment, it would be manifestly unreasonable and unwarranted to interpret the statute to afford unemployment insurance benefits to one who voluntarily retires from gainful employment with the hope of entering the labor market, and who thereafter fails to find gainful employment. Although the subjective motive of the employee may be related to his employment, it does not constitute good cause connected therewith because it is entirely personal.

The judgment of the trial court is affirmed; all costs to be paid by Appellant, Sidney J. McGraw.

Affirmed.