author: HUMPHRIES, Judge.

text:
    Walter VINCENT, Plaintiff-Appellee, v. Dave MEAUX, Jr., et al., Defendants-Appellants.
    No. 5204.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.

      Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, for defendants-appellants.
    Ruele P. Bourque, Kaplan, for plaintiff-appellee.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HUMPHRIES, Judge.

This is an appeal by defendants-appellants from an adverse judgment granting plaintiff the right to use water from a deep water well.

Walter Vincent, plaintiff-appellee, filed suit for a declaratory judgment seeking to have his rights under a 1941 partition agreement determined. A certain tract of land was partitioned into three lots. In 1941 the use of a deep water well, located on lot #3, was reserved for lots #1, #2 and #3. The Act of Partition contained the following stipulation:

“It is further agreed and understood that the deep water well located on tract number one is reserved for the use and benefit of lots #1, #2 and #3. The owner of either of said lots enjoying the right of use of said well for irrigation purposes when so desired or upon necessity.”

The plaintiff-appellee is the owner of lot #2. Lloyd Abshire and Lena J. Abshire (wife of David Meaux, Jr.) own lot #1. Agnes Vincent Hebert is the owner of lot #3.

This conventionally created right is a servitude. C.C. Art. 723.

“The right of drawing water from the spring of another is also a servitude.”

The servitude created is a real servitude. C.C. Art. 646 divides servitudes into two kinds — personal and real. In this case the servitude is a real or predial or landed servitude because the act creating it specifically provides that it is for the benefit of the other estates. The act creating the servitude did not grant it to a particular person.

David Meaux, Jr. claims an interest in the well. He claims that he purchased Lloyd Abshire’s interest in the well. There is no explanation in the record regarding this supposed transaction. Certainly he can not purchase Abshire’s interest in the well unless he purchases the land as well. The servitude was created in favor of an estate and not in favor of one particular individual.

The deep water well in question is located on lot #3 which is owned by Mrs. Hebert. Mrs. Hebert disclaims any interest in the well. She claims that she verbally gave her interest in the well to Ovey Ab-shire, father of Lena and Lloyd Abshire. This is not explained in the record.

In 1951 the well dried up due to a lowered water table. In this year Ovey Ab-shire employed a contractor to re-dig the well. Not only was the well dug deeper but steel casing for wooden Cyprus casing was substituted. Following this Ovey Ab-shire claimed all interest in the well.

Subsequent to the partition, plaintiff’s lessees, with one or two years exception, planted crops on his land and used the well in question for irrigation purposes. Prior to 1951 the plaintiff did not pay anything for procurement of water from the well located on lot #3. After 1951 the plaintiff was required to pay J/^th of his crop for the use of water from the well on lot #3.

Plaintiff-appellee contends that he should have the free and uninhibited use of the well pursuant to and by virtue of the servitude created in the 1941 act of partition. Defendants-appellants contend that the object of the servitude ceased to exist in 1951 when the well dried and hence the servitude was extinguished. The defendants also contend that the servitude has been extinguished by the 10 year prescription period of non-usage provided by C.C. Art. 789. Defendants contend that by paying for the use of the well the servitude was not used in the mode intended at its inception and hence the prescriptive period has run. In order to have kept the servitude viable, it was necessary for the plaintiff to have used it at least once every ten years since its creation in 1941. The evidence revealed that although the plaintiff never personally planted his land or used the well for irrigation purposes, there was never a period of ten years wherein his lessees did not use the land and well. This was sufficient to interrupt the running of prescription. C.C. Art. 793 provides that the servitude may be preserved by persons other than the owner.

“To preserve the right of servitude and prevent prescription from running against it, it is not necessary that it should be exercised exclusively by the owner to whom it is due, or by those who use his rights, or who represent him directly, as the usufructuary, the lessee or tenant, the attorney in fact or agent. It suffices if the servitude has been exercised by workmen employed by the owner, or by his friends, or those who come to see him.”

The question becomes whether the paying for the water is a “use” of the servitude. The servitude was the use of a well. The servitude was used whenever plaintiff, through his lessees, used the well for irrigation purposes. The payment for the water from the well does not obviate the fact that the well, and hence the servitude, was indeed used and prescription interrupted.

The defendants-appellants also advanced the proposition that the servitude ceased to exist when the original well became dry. As authority of their contentions they cite C.C. Articles 783-786 which deal with the destruction of the estate which owes the servitude. It is the position of the defendants that the deepening of the old well did not re-establish the servitude.

The well existing in 1941 ceased to be functional due to a lowered water table. Drilling on the same site, defendants’ ancestors lowered the original well shaft to a point which was concurrent with the then existing water table and set a new and different type of casing. This did not create a new well. It was a reestablishment of the thing. Although the Civil Code does not, except in rare circumstances, impose an affirmative duty upon the owner of the servient estate to do work to keep the object of the servitude usable, neither does it prohibit him from so acting. The tenor of Articles 772-775 indicates that the redactors of the Code sought to make preservation of the servitude, through necessary works, as convenient as possible. The deepening of the well by the defendants’ ancestors was “works necessary to use and preserve the servitude.” C.C. Art. 772 and 773.

We are of the opinion that the servitude was not extinguished by the destruction of the object of the servitude, nor was it extinguished by ten years of non-usage. Plaintiff was the beneficiary of the servitude created in 1941 and maintained through the years. He- is entitled to the use of that servitude.

This Court is also of the opinion that plaintiff would be unjustly enriched if he were not compelled to pay his pro rata share of the costs of the operation, maintenance and preservation of the well. The cost of work necessary for the preservation and use of the servitude must be shared by those persons to whom the servitude is due. C.C. Art. 773.

We must remand this case to the trial court as an indispensable party was omitted from the proceedings below. C.C. P. 641. Mrs. Agnes Vincent Hebert, the owner of the lot upon which the well is located must be a party even though she sought to disclaim any interest therein. Her interest, however, is very much at issue. C.C. Art. 654 provides:

“Servitude is a right so inherent in the estate to which it is due, that the faculty of using it, considered alone and independent of the estate, can not be given, sold, let or mortgaged without the estate to which it appertains, because it is a servitude which does not pass to the person but by means of the estate.”

Mrs. Hebert sought to divest herself of her interest in the well without divesting herself of the estate, an act' clearly contrary to the Code.

The costs of appeal are divided equally between appellants and appellee. All other costs are to await further proceedings.

Remanded.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Robert L. DUNN, Plaintiff-Appellee, v. Walter T. PIPES et al., Defendants-Appellants.
    No. 12792.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    Smith & LaGrone, by M. Daniel La-Grone, Jr., Shreveport, for defendants-appellants.
    Cook, Clark, Egan, Yancey & King, by Edwin L. Blewer, Jr., Shreveport, for plaintiff-appellee.
    Before PRICE, GLADNEY and MARVIN, JJ.
   PRICE, Judge.

Robert L. Dunn brought this action for an injunction to restrain Walter T. Pipes from disturbing his alleged peaceful possession of a tract of land in Caddo Parish. Pipes reconvened asking for similar relief alleging he has had possession of the disputed area for more than one year prior to the filing of the demand.

From an adverse judgment awarding Dunn a preliminary injunction and rejecting his reconventional demand, Pipes has appealed.

The tract which Dunn claims to have possession of is described in his petition as follows:

“The West half of Lot 9 and the eastly portion of Lot 8 of Block 2, Manchester Subdivision and all other property outlined in red in the attached plat.”

The pertinent portion of the plat referred to is reproduced as follows:

The record shows the plaintiff, Dunn, purchased the residence situated on Lot 10 and the east portion of Lot 9 of the Manchester Subdivision from his mother in December, 1971. Plaintiff testified that after his father acquired the residence in about 1940, the disputed area in this action was possessed by his family as part of the homeplace. A fence was constructed at that time which is shown on the above plat running just west of the center line of Lot 8. The garage and other inprovements shown on the plat were built by the family during the years following 1940. The disputed area was apparently used as a back yard in connection with the residence purchased by the Dunn family.

Plaintiff contends he has maintained possession of the subject tract since his acquisition of the family residence in 1971 through tenants who have occupied the residence and continued to use and maintain the area in dispute up to the old fence as a yard and garage area.

The record shows Pipes purchased several lots in the Manchester addition on April 8, 1974, including Lot 8 and the west one-half of Lot 9 which comprises the area in dispute herein. He contends his vendor, J. & T. Investment Company, Incorporated, bought the property in August, 1973, and after having the property surveyed, discovered the garage and fence of Dunn were on this property and notified Dunn of this encroachment. The two principals of the J. & T. corporation were called as witnesses for Pipes. They testified that the corporation performed work with heavy equipment on its property to the west of the disputed area and removed a section of the existing fence to gain access for equipment. They further testified some equipment was parked on the disputed area during the course of the work. This work was carried on between August of 1973 and April of 1974, according to their testimony.

Pipes testified that after he acquired the land from J. & T., he discussed the use of the disputed area with Dunn’s tenants and gave them permission to use it temporarily. He thus takes the position the use of this area by the tenants was through him rather than Dunn. We do not find any evidence to corroborate his testimony in this respect.

Dunn presented the testimony of Main Terry who did yard work for a Mrs. Whittle, who occupied the residence for many years as a lessee of Dunn. Terry testified he mowed the entire disputed area up to the fence which was used as a back yard for the adjoining residence during the several years he worked for Mrs. Whittle. After this tenant moved the record shows Dunn had a succession of renters for shorter periods. We find the evidence to preponderate that these tenants continued to keep the area mowed and that they used the garage situated thereon for various purposes associated with the rental of the residence. There is some testimony that one lessee maintained a horse and calf within the confines of the old fence in the back of the house.

Pipes contends the actions of J. & T. Company, Incorporated, in surveying the property and removing a section of the old fence constituted a disturbance of Dunn’s peaceful possession and as this occurred more than a year prior to the bringing of this action, the requirements of paragraph (2) of Louisiana Code of Civil Procedure 3658 have not been met to entitle Dunn to maintain the possessory action.

We do not find that the evidence shows the activities of the surveyor who made the survey for J. & T. were of such a nature to cause concern to Dunn or his tenants. The evidence is not clear as to the amount of fencing that was removed by the J. & T. personnel. It apparently was not to such an extent that it caused any interference with the continued use of the area by the tenants for yard and garage purposes.

The first real disturbance occurred by the action of Pipes in dumping a quantity of used automobile tires next to the garage in April, 1975, and the threat to construct a chain link fence through' the subject area on June 13, 1975. At this time, Dunn had ceased renting the property and was using it himself in connection with his aluminum siding business.

From our review of all the evidence in the record, we can find no manifest error in the conclusion reached by the trial judge that Dunn has proven by a preponderance of the evidence the necessary possession for more than a year prior to being disturbed in this possession by Pipes in April, 1975, and in accord with the provisions of Article 3658 entitled to maintain the pos-sessory action to be restored to peaceful possession of the subject property.

In accord with the foregoing, the judgment appealed from is affirmed. Costs of this appeal are assessed to appellants.


author: HALL, Judge.

text:
    C. E. ALLEN, Plaintiff-Appellant, v. Earl F. BRADSHAW, Defendant-Appellee.
    No. 12790.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    Bruscato & Loomis by Albert E. Loomis, III, Monroe, for plaintiff-appellant.
    McKinley Law Offices by Leslie L. LaCroix, Jr., Monroe, for defendant-appel-lee.
    Before BOLIN, HALL and GLADNEY, JJ-
   HALL, Judge.

Plaintiff, C. E. Allen, sued defendant, Earl F. Bradshaw, in the City Court of Monroe for $999 in damages to his personal property suffered as a result of a fire he alleges was caused by the negligence of defendant. From a judgment rejecting his demands Allen appeals. We affirm.

Allen leased from Bradshaw an upstairs apartment in a four-unit building on South First Street in Monroe. On November 3, 1970, sometime in the late evening, a fire erupted in the apartment directly below Allen’s, resulting in damage to Allen’s furniture and personal belongings located in his apartment. The apartment below was vacant at the time and had been for the preceding three or four weeks.

On appeal Allen argues that he adequately proved by circumstantial evidence that the cause of the fire was defendant’s negligence in leaving flammable painting materials in a vacant apartment. Allen contends defendant and his wife began cleaning and painting the vacant apartment in preparation for a new rental. He asserts that inflammable, combustible materials consisting of paint, shellac and paint rags were left in the middle of the floor of the bedroom of the downstairs apartment (the bedroom was the center room of the apartment), and that the fire started there.

Allen relies mainly on the testimony of District Chief J. K. Clowers of the Monroe Fire Department, a veteran fire fighter and investigator. Testifying at the" trial more than a year after the fire and referring to his report prepared at the time of the fire, Chief Clowers stated his investigation led to the conclusion the fire started in the center of the downstairs bedroom. His recollection was that both Mr. and Mrs. Bradshaw told him the night of the fire they had left paint and rags in the center of the room in the course of painting. Based on this information the Chief was of the opinion the fire started as a result of spontaneous combustion of these materials.

The testimony of Bradshaw and his wife was directly contradictory to the information on which Clowers relied in reaching his conclusion as to the cause of the fire. Their testimony is to the effect that no painting had yet begun in the vacant apartment. An unopened can of water base paint and a clean paint brush were left in the middle of the room. Soapy cleaning rags were left in the kitchen sink. A can of shellac left by the previous tenant was in another room. The Bradshaws testified Mrs. Bradshaw did not talk to Clowers.after the fire as she was at home in bed with the flu.

The trial court, in written reasons for judgment, found there was a complete lack of evidence of negligence on the part of the Bradshaws. No physical evidence of highly inflammable materials was found at the scene of the fire. The evidence establishes that the paint left in the room was a water base paint. The materials left in the room were in the center of the room which Clowers testified was the safest place for them. Clowers’s theory was based on conversations, the details of which were rather vague.

Appellant contends he has proven his case by circumstantial evidence, which excludes, with a fair amount of certainty, every other reasonable hypothesis as the cause of the fire, citing McFatter v. Welch, 205 So.2d 607 (La.App. 3d Cir. 1967) as to the burden of proof in a case based on circumstantial evidence.

Although no other explanation of how and why the fire started is offered, the evidence does not substantiate Clowers’s explanation with reasonable certainty. Plaintiff has not met his burden of proof because he did not establish by a preponderance of the evidence the factual or eviden-tiary basis upon which Clowers’s opinion rested. It was not proved that the Brad-shaws left combustible, inflammable materials in the vacant apartment. Plaintiff failed to prove that defendant negligently created a dangerous situation. It was not established that the materials left by defendant in the center of a room created a hazardous or dangerous condition or constituted an undue risk of harm to others or amounted to substandard conduct on the part of defendant.

It is the failure of plaintiff to prove the existence of a dangerous situation created by defendant’s negligence which prevents the applicability to this case of the reason-, ing of Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972). The Boudreaux case was not cited in brief by either party. The impact of Boudreaux on this area of our law, however, makes it appropriate to make mention of the case. In Boudreaux the existence of the hazard and the negligence of the defendant in bringing it about were proven. Res ipsa loquitur then provided the link by which it was inferred that it was more probable the fire was caused by such negligence than by any other cause. For Boudreaux to apply it would have to be proven that hazardous materials were left in the bedroom by defendant.

The trial judge determined that the plaintiff failed to show that hazardous materials were present in the apartment. We find no manifest error in that decision and for the reasons given, affirm the judgment of the district court, at appellant’s costs.

Affirmed.


author: HOOD, Judge.

text:
    David L. CAGLE, Plaintiff-Appellee, v. SPADE DRILLING COMPANY, INC., and Bituminous Casualty Corporation, Defendants-Appellants, and Noble Wiley and Travis Goss, Defendants-Appellees.
    No. 5127.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 31, 1975.

      Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendants-app ell ants.
    Reeves, Lossin & Owens by Jack F. Owens, Jr., Harrisonburg, for plaintiff-appel-lee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

Plaintiff, David L. Cagle, claims damages and workmen’s compensation benefits resulting from injuries which he sustained while working for Spade Drilling Company, Inc. Defendants are Spade Drilling Company, Bituminous Casualty Corporation, Noble Wiley and Travis Goss. A default judgment was rendered against defendant Goss, condemning him to pay damages to plaintiff, but that judgment was set aside and a new trial was granted.

After trial on the merits, judgment was rendered by the trial court in favor of plaintiff, condemning Spade Drilling Company to pay plaintiff workmen’s compensation benefits of $31.92 per week for 500 weeks, and assessing all costs of the suit to Spade Drilling Company and its insurer.

Defendants, Spade Drilling Company and Bituminous Casualty Corporation, appealed. Plaintiff answered the appeal, praying principally (1) that the default judgment rendered against Goss be reinstated; and (2) that penalties and attorney’s fees be allowed; and alternatively, (3) that damages be awarded in favor of plaintiff against Wiley and Goss; and (4) that the amount of compensation benefits which Spade Drilling Company was condemned to pay be increased from $31.92 to $65.00 per week, for 500 weeks.

The principal issues presented, we think, are whether any of the defendants were negligent, and whether plaintiff has recovered from the injuries and resulting disability which he sustained as a result of the above accident.

Cagle sustained an injury to his right knee on October 26, 1973, while working as a roughneck for Spade Drilling Company. That company was engaged in drilling an oil well at that time, and plaintiff was assisting in moving some drill pipe from a pipe float to a pipe rack. While doing so, he stepped in a rut which had been made by a caterpiller tractor, causing him to slip and to twist and injure his right knee. His injury was diagnosed later as a torn medial meniscus.

Bituminous was the liability and the workmen’s compensation insurer of Spade Drilling Company when plaintiff was injured, and the parties stipulated that there was also “executive officer coverage with the same company” at that time. Defendant Goss was president of Spade Drilling Company and the owner of all of the stock in that corporation. Wiley was working as a “tool pusher” for that company, and he was in charge of the operations which were being conducted at the rig where the accident occurred. He was not an officer, director or stockholder of the corporation.

Although the judgment appealed from did not specifically reject plaintiff’s demands against defendants Wiley and Goss, it is apparent from the reasons for judgment assigned by the trial judge that the court intended to do so. The issue of whether those defendants were liable to plaintiff was presented by the pleadings, and evidence was received relating to that issue.

The law is settled that all of the issues presented by the pleadings and on which evidence has been offered will be considered as having been disposed of by a final judgment in the cause, and that demands passed over in silence will be considered as having been rejected by the trial court in the absence of a special reservation. Where a suit against two or more defendants is tried on its merits, and a final judgment is rendered against some of them, being silent as to the others, the judgment will be considered as having rejected plaintiff’s demands against the defendants not mentioned in the decree. Villars v. Faivre and Matthews, 36 La.Ann. 398 (1884); Mexic Bros., Inc. v. Sauviac, 191 So.2d 873 (La.App. 4 Cir. 1966); Hebert v. Valenti, 235 So.2d 193 (La.App. 4 Cir. 1970); Gulfco Finance Company of Livingston v. Lee, 241 So.2d 301 (La.App. 1 Cir. 1970); Soniat v. Whitmer, 141 La. 235, 74 So. 916 (1917). See also 32 La.L. Rev. 315.

We conclude that the judgment rendered in the instant suit rejected plaintiff’s demands against Wiley and Goss. Those two defendants did not appeal, and neither did plaintiff take an appeal. Plaintiff thus is not entitled to have the judgment of the trial court modified, reversed or revised insofar as it rejected his demands against Wiley and Goss. Broussard v. Annaloro, 265 So.2d 648 (La.App. 3 Cir. 1972); Shaw v. The Travelers Insurance Company, 293 So.2d 568 (La.App. 3 Cir. 1974).

Bituminous, however, was the liability insurer of Goss, and perhaps of Wiley, and as such it is responsible within policy limits for the damages which plaintiff might have been entitled to recover from those defendants. Bituminous appealed, and plaintiff answered that appeal, so plaintiff is entitled to have the judgment revised insofar as its demands against Bituminous are concerned. It is necessary, therefore, for us to determine whether Wiley and Goss, or either of them, were guilty of actionable negligence, and thus whether they would have been personally liable as executive officers of Spade Drilling Company for the damages sustained by plaintiff, except for the latter’s failure to appeal.

In Canter v. Koehring Company, 283 So.2d 716 (La.1973), our Supreme Court set out the criteria for imposing individual liability upon executive officers for the breach of employment-imposed duties. Neither in that case nor in any other case, however, has individual liability been imposed on an executive officer unless the evidence established that there was some breach of duty, some negligence or some fault on the part of that officer. We have decided that the evidence fails to show any breach of duty, negligence or fault on the part of defendants Wiley and Goss.

The drilling rig on which plaintiff was working was located in a bean field. The rig and other drilling equipment had been moved to that location by trucks, floats and caterpiller tractors. The trucks and caterpiller tractors had made numerous ruts on the ground in and around that area. It rained almost every day immediately after the rig was moved, and a day or two before the accident occurred there was a two-inch rain in that area. On the day of the accident the ground was very wet, with water standing in some of the truck and caterpiller tractor ruts.

A float, or trailer, loaded with drill pipe had been backed up beside or next to a stationary pipe rack immediately adjacent to the rig, and plaintiff was assisting two fellow employees in moving or “rolling” the pipe from the float onto the pipe rack. In doing so, it was necessary at times for plaintiff to stand on the wet, muddy ground and assist in lifting a joint of pipe from the float to the rack. While lifting and moving a joint of pipe on one occasion, he stepped in a rut which had been made by a caterpiller tractor, and that caused him to slip and to twist and injure his knee.

Plaintiff contends that Wiley and Goss were negligent in having failed to provide him with a safe place in which to work, and thus in subjecting him to an unreasonable risk of injury. He argues, more specifically, that those defendants were negligent in having failed to see that the float, or trailer, was level with the pipe rack and in proper position before requiring plaintiff to assist in moving the pipe, and in having failed to provide plaintiff with a proper “footing or flooring” on which to work.

Plaintiff estimated that the float was “maybe eight inches or a foot” from the pipe rack, and that it was six inches, more or less, lower than the rack, making it necessary for him and his fellow employees to lift the pipe up a few inches in order to move it onto the rack. He stated that the float sank down in the mud after it had been placed in that position, causing it to be unlevel and lower than the pipe rack. He testified that if the float had been level with the pipe rack, it would not have been necessary for him to stand on the ground and lift the pipe up to the rack, and that he thus would not have stepped into a rut and slipped as he was moving the pipe.

Cagle was thoroughly familiar with oil field work. He had been employed to work on drilling rigs for about three years, he had moved pipe from floats to pipe racks on prior occasions, and he had been working on the rig where this accident occurred for five or six days before he was injured. He knew that there were cater-piller tractor ruts on the ground at the exact place where he was working, that it had been raining, and that there was water and mud on the ground and in the ruts at that location. He conceded that the area was properly lighted and that he could see the rut into which he stepped. He stated “there was water in the rut, but I could see the rut.”

There is a conflict in the evidence as to whether the bed of the float was actually lower than the surface of the pipe rack.

Defendant Wiley, the tool pusher, testified that there may have been a difference of “an inch or two” between the level of the pipe rack and the float, but that it is never possible to get the float and the pipe rack “perfectly even.” Lester Hardy, who was working on the rig when the accident occurred, testified that he watched plaintiff and his co-employees rolling the pipe from the float to the pipe rack, that “there’s just one way to do it” and that they were rolling the pipe as it is usually done, that the pipe float was set “up against” the pipe rack, and that he didn’t recall whether they were at the same level. James L. Cagle, another roughneck on the job, testified that the float was higher, instead of lower, than the pipe rack, that the float was “as close as they could get it” to the pipe rack, and that he continued to unload the pipe, the same way that plaintiff had done it, immediately after plaintiff’s shift ended a few minutes after'he was injured.

Plaintiff, when asked whether the level of the float could have been corrected, stated that the only way to correct it was by moving the pipe float out, leveling the ground with a caterpiller tractor, and then moving the float back in. He conceded, however, that he “couldn’t say whether that would hold it up or not, because it was muddy, and like I said, everything was sinking into the mud.”

The trial judge held that “there was no negligence proven against either Goss or Wiley, nor was it proved that they knew of any defect in the oil rig.”

We agree with the conclusions reached by the trial court. We find that there was no duty on the part of any of the defendants to maneuver the float into such a position that it was exactly even or level with the pipe rack, even if that were possible. Also, there was no duty on their part to construct a platform or floor on which plaintiff or other employees could stand while rolling the pipe from the float to the pipe rack. Plaintiff was an experienced oil field worker. He was aware of the fact that the ground was muddy and that there were ruts at the place he was working. He, in fact, could see the rut into which he stepped. He was accustomed to moving pipe from a float to a pipe rack, and he was thoroughly familiar with the dangers associated with performing that type work.

Our conclusion is that there was no breach of duty, no negligence, and no fault on the part of either defendant Wiley or defendant Goss. We thus affirm that part of the judgment appealed from which rejects plaintiff’s demand for damages against those defendants or their insurer, Bituminous.

We turn now to the question of whether plaintiff Tías recovered from the injuries he sustained as a result of the above accident.

Cagle was treated initially by Dr. William Coney, a general practitioner. A few days after the accident occurred, however, plaintiff was referred to Dr. Eugene Taylor, an orthopaedic surgeon, who treated him thereafter for his injury. Dr. Coney did not testify at the trial, and he thus has expressed no opinion as to the nature, extent or duration of plaintiff’s disability.

Dr. Taylor first examined plaintiff on November 5, 1973, and concluded at that time that his injury consisted of a strain of the knee, with the possibility that “he may have torn his meniscus.” He released plaintiff to return to work on November 12. Two days later, however, plaintiff returned with the complaint that his knee had locked and that he had experienced more pain as he was climbing a fence. Dr. Taylor then concluded that he had a torn medial meniscus. He performed surgery on Cagle’s knee on November 21, removing the torn cartilage, and plaintiff’s recovery from that surgery was uneventful. Dr. Taylor released plaintiff to go back to his regular employment as a roughneck on January 3, 1974. He suggested that plaintiff return for another examination about three months later, but plaintiff did not do so. Dr. Taylor felt that plaintiff had fully recovered from that injury by January 3, 1974, without any residual disability.

Dr. F. C. McMains, also an orthopaedic surgeon, examined plaintiff on March 6 and on September 11, 1974. He found that plaintiff had made an excellent recovery from his surgery and that he could return to work as a roughneck at the time he first saw him. Dr. McMains felt, however, that although plaintiff could return to heavy manual labor, he nevertheless had a 10 to 15 percent permanent disability of the leg. He reasoned that after the removal of a torn cartilage, the knee is “never as good a knee as it used to be”, and that “the patient 10, 15, 5 or how many years down the road is more likely to and very likely will develop a certain amount of traumatic arthritis in*the knee as a result of the loss of the shock absorbing power of the knee cartilage.”

Both of the medical experts who testified, therefore, agree that plaintiff recovered from his disability by January 3, 1974, and that he has been able to perform heavy manual labor, and particularly the work of a roughneck, since that time. Dr. Taylor feels that plaintiff has no residual effects of his injury, while Dr. McMains feels that, although plaintiff is able to return to his former employment, he has a 10 to 15 percent permanent loss of use of the leg.

Plaintiff, commendably, concedes that he “probably” could perform the work of a roughneck now if he had a job, and that he “would have to try it to know.”

The trial judge, in his written reasons for judgment, concluded that plaintiff was able to return to work on January 3, 1974, but he accepted Dr. McMains’ testimony that plaintiff has some residual disability of his leg. Although Dr. McMains estimated a 10 to 15 percent disability of the knee, the trial judge felt that that was “a bit conservative,” and he held that “a 20 percent disability would be more in line.

We conclude that plaintiff recovered from his disability by January 3 1974, and that he has been able to perform heavy manual labor, and particularly the duties of a roughneck, since that time. We cannot say, however, that the trial judge erred in accepting the opinion of Dr. McMains that plaintiff has sustained some partial loss of the use of his leg as a result of this accident, although we cannot agree that he had a 20 percent loss of use of the leg, since the highest percentage of loss expressed by any medical expert was 15 percent. We have decided that plaintiff sustained a 15 percent permanent partial loss of the use of his right leg as a result of this accident, although it does not disable him from performing the duties of his regular employment.

Cagle thus may recover compensation for the permanent partial loss of the use of function of his leg, under LSA-R.S. 23:1221(4)(h) and 1221(4)(o). Under the cited statute, he is entitled to 15 percent of 65 percent of his weekly wages for 175 weeks.

Plaintiff was earning $159.60 per week at the time the accident occurred. Fifteen percent of 65 percent of $159.60 amounts to $15.56. At the time the accident occurred, the minimum rate of compensation was $17.50 per week. (See LSA-R.S. 23:1202, as amended by Act 71 of 1973). We find, therefore, that plaintiff is entitled to recover compensation at the rate of $17.50 per week, beginning on October 26, 1973, and continuing for a period of 175 weeks, subject to a credit for all compensation payments which heretofore have been made to plaintiff.

We recognize the fact that Cagle was entitled to compensation at the rate of $65.00 per week from the date of his injury, until January 3, 1974. The record indicates, however, that he has already received payment of all of the compensation due during the period of his total disability. And, since defendants are entitled to credit for the amounts heretofore paid, we think the judgment rendered here should be solely for the compensation due under LSA-R.S. 23:1221(4)(h) and 1221(4)(o), subject to a credit for the amounts previously paid.

There is no merit to plaintiff’s argument that he is entitled to have the default judgment rendered against defendant Goss reinstated. We have already pointed out that neither Goss nor plaintiff has appealed, and plaintiff thus is not entitled to have the judgment reversed or modified insofar as it rejects his claim against defendant Goss. The answer which plaintiff filed to the appeals taken by other defendants does not entitle him to have the judgment modified as to a non-appealing defendant.

Plaintiff also contends that he is entitled to recover penalties and attorney’s fees from Spade Drilling Company and its insurer, Bituminous.

The evidence does not show when compensation benefits were paid to plaintiff. He alleges in his petition only that “defendant has failed and refused to pay plaintiff any compensation since January 6th or 7th, 1974,” which was after Dr. Taylor had released Cagle to go back to work. This at least implies that payments were made regularly up to that time. Plaintiff admits in his testimony that he has received some compensation payments, and he alleges in his answer to this appeal that defendants were arbitrary in failing "to continue to pay,” such benefits. The evidence thus does not show that defendants have failed to pay compensation benefits as they became due.

Assuming, however, that weekly compensation payments have not been made promptly since January 3, 1974, the evidence shows that defendants nevertheless were not arbitrary or capricious in failing to make those payments timely.

Dr. Taylor concluded originally that plaintiff had sustained only a relatively minor injury, and that he recovered from it within three weeks after the accident occurred. Plaintiff sustained another accident two days after Dr. Taylor found that he was able to return to work, while he was climbing a fence. That accident did not occur during the course of his employment, and a serious question was presented as to whether the torn medial meniscus was sustained as a result of the work-connected accident or as a result of the accident which occurred while he was climbing the fence.

Dr. Taylor also reported after he had performed surgery on plaintiff’s knee, that Cagle had fully recovered from his injury by January 3, 1974, without any residual disability. The medical evidence is uncon-tradicted to the effect that plaintiff has not been disabled since that date, the oijly disagreement between the two doctors who testified being as to whether plaintiff sustained a partial loss of the use of a member as a result of the accident. Dr. Mc-Mains, the only doctor who felt that plaintiff suffered a partial loss of use of the leg was not a treating physician, and he did not make that finding until more than two months after Dr. Taylor had reported that plaintiff was fully recovered. The evidence shows that plaintiff has performed heavy manual labor since that time.

In view of these conflicts in the .medical testimony, and some uncertainty as to the cause and extent of plaintiff’s injury, we do not find that defendants were arbitrary or capricious in failing to pay compensation benefits to plaintiff promptly, if they in fact failed to do so.

Finally, defendants contend that plaintiff did not sustain a torn medial meniscus as a result of the work-connected accident which occurred on October 26, 1973, but that instead he sustained that injury two or three weeks later as the result of an accident which occurred at his home, while he was not in the course of his employment.

Plaintiff testified that on or about November 14, 1973, after Dr. Taylor had released him to go back to work, he “started to climb over a fence,” that his “leg caught again,” and that he fell, causing him to suffer pain in his knee. The trial judge obviously concluded that the torn medial meniscus was sustained as a result of the first accident, and not while he was climbing the fence, and that plaintiff thus is entitled to workmen’s compensation benefits for his injury. We agree. The evidence convinces us that he sustained the torn meniscus as a result of the first accident, and that his leg “caught” on November 14 because of that condition.

For the reasons assigned, the judgment appealed from is amended and' recast to read as follows:

“IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of plaintiff, David L. Cagle, and against defendants, Spade Drilling Company, Inc., and Bituminous Casualty Corporation, in solido, for workmen’s compensation benefits at the rate of $17.50 per week, beginning October 26, 1973, and continuing for a period of 175 weeks, with legal interest on each delinquent payment from the time it became or becomes due, until paid, and for all costs of this suit, subject to a credit for all compensation payments previously made to plaintiff.
“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all of plaintiff’s demands for damages, and particularly his demands against defendants Noble Wiley and Travis Goss, be and they are hereby rejected.”

All costs of this suit and of this appeal are assessed to defendants, Spade Drilling Company, Inc., and Bituminous Casualty Corporation, in solido.

Amended and affirmed.


author: BEER, Judge.

text:
    GENERAL FINANCE COMPANY OF LOUISIANA v. Paula T. WINSTON, aka Paula Williams.
    No. 7549.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 1976.
    Maurice E. Clark, Jr., Paul W. Oden-wald, New Orleans, for plaintiff-respondent.
    Barbara Hausman-Smith, New Orleans, for defendant-relator.
    Before SAMUEL, GULOTTA, and BEER, JJ.
   BEER, Judge.

This matter comes before us pursuant to our granting of a writ of certiorari on December 15, 1975. On that date we further ordered that such briefs and/or per cur-iams as respondent and the Honorable A. J. O’Keefe, Jr., Judge shall wish to submit be filed by January 10, 1976. None were filed as of that date.

We have reviewed the record and particularly the testimony of Paula Winston and conclude that the denial of her motion to proceed in forma pauperis was error and must be recalled.

Accordingly, the denial of the rule by the First City Court on December 12, 1975 is recalled and set aside and it is now ordered, adjudged and decreed that Paula T. Winston a/k/a Paula Williams be permitted to proceed in forma pauperis in these proceedings.

Recalled, set aside and rendered.


author: GLADNEY, Judge.

text:
    Mary Alice WALKER, Plaintiff-Appellee, v. Jody Reese WALKER, Defendant-Appellant.
    No. 12771.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    Love, Rigby, Dehan & Love, by Samuel P. Love, Jr., Shreveport, for appellant.
    Freeman & Hall, by J. Stacey Freeman, Shreveport, for appellee.
    Before PRICE, GLADNEY and MARVIN, JJ.
   GLADNEY, Judge.

Mary Alice Walker instituted this action for divorce from her husband Jody Reese Walker. The petition ruled the defendant to show cause why he should not pay pen-dente alimony in the sum of $400 per month. After trial on the rule the defendant was ordered to pay his wife $325 monthly alimony with the first payment due May 9, 1975. He perfected a devolu-tive appeal to this court.

Appellant contends that as his net monthly income is approximately $650 and his living expenses allegedly around $605 per month, the judgment rendered by the trial court is excessive and beyond the discretion of the trial court. The sole issue before this court is the appropriateness of the trial court’s award.

The evidence adduced on trial of the rule is not seriously conflicting. Both parties presented a prepared list of their expenses which was introduced in lieu of their actual testimony.

Mrs. Walker lives in an apartment. She has no income. She maintains one child of a prior marriage and receives $100 per month for the child’s support from the father. The record discloses that a friend of both Mr. and Mrs. Walker occasionally stays at plaintiff’s apartment and began doing so at the invitation of defendant prior to the separation. The evidence did not establish that the household expenses of Mrs. Walker are increased by reason of the guest. Mrs. Walker adequately explained her itemized expenses totaling $333.95. The expenses were reasonable in every respect; the trial court even characterized them as “ultraconservative.”

The defendant testified that his net income was about $650 per month. He itemized his expenses which totaled $605 per month, but gave no further explanation of them. He did testify that he could reduce his expenses somewhat if necessary, but gave no indication as to how much they could be reduced.

Under the provisions of Civil Code Art. 148, if the wife does not have a sufficient income for her maintenance pending the suit for separation from bed and board or divorce, the judge shall allow her a sum for her support proportioned to her needs and to the means of her husband. The wife is entitled to a sum sufficient to support her in a standard of living comparable to that which she enjoyed before the separation. There is no hard and fast restriction on alimony pendente lite as is provided in Article 160 for alimony after divorce which may not exceed one-third of the husband’s income. The award must only be proportionate to the ability of the husband to pay.

Although the sum awarded by the trial court amounts to rpughly half the husband’s net income, we find no manifest error in the award by the trial judge. Trial courts have great discretion in such matters and there has been no abuse of that discretion in this case.

For the reasons assigned, the judgment of the lower court is affirmed. Appellant is to bear all costs.

Affirmed.


author: COVINGTON, Judge:

text:
    Melvin LACOSTE v. STATEWIDE TRAILER SALES, INC.
    No. 10570.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 13, 1975.
    Keith M. Whipple, Houma, for appellant.
    Charles Hanemann and J. Mark Graham, Houma, for third party defendant Guerdon Industries, Inc.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

The appellant neither filed a brief nor appeared when the case was called for argument; therefore, under Rule VII, Section 5(B) the appeal is considered abandoned.

Further, appellee who filed an answer to the appeal abandoned said answer in open court.

Therefore, the case is dismissed at appellant’s costs.

Dismissed.


author: GULOTTA, Judge.

text:
    In the Interest of the minor Wayne GARCIA.
    No. 7196.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.

      William D. O’Regan, LaPlace, for juvenile-appellant.
    Melvin P. Barré, Edgard, Victor E. Bradley, Jr., Norco, Abbott J. Reeves, Gretna, for the State.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   GULOTTA, Judge.

This is an appeal from a judgment finding an 11 year old boy delinquent based on a petition that he “did unlawfully shoot a B.B. gun at the door of a residence owned by Carl Howell”. The juvenile was placed on informal probation for a period of six months.

The thrust of the juvenile’s appeal is that the finding of delinquency is based upon a fatally defective petition which does not allege the specific statute or ordinance violated and does not allege the juvenile to be in need of supervision, care or rehabilitation as required by LSA-R.S. 13:1574 (C)(1).

It is the position of the state that LSA-R.S. 13:1574 allows an “informal adjustment” without the filing of a petition in certain cases, as in the instant one. Additionally, according to the state, although the statute or ordinance allegedly violated was not specifically set forth in the petition, sufficient facts were alleged to meet the requirements of a valid petition. The state further contends that although the petition does not specifically allege “that the child is in need of supervision, care, or rehabilitation”, this statutory language is merely a formal requirement and not essential to the validity of the petition.

LSA-R.S. 13:1574(C) (1) sets forth the content requirements of a petition when delinquency is alleged. Those requirements are as follows:

“§ 1574. Information; investigation; petition
* * * * * *
C. The petition shall set forth with specificity:
1. the facts which bring the child within the provisions of this chapter, together with a statement, when delinquency is alleged, that the child is in need of supervision, care, or rehabilitation. If a violation of law is the basis for filing the petition, the petition shall cite the statute or municipal ordinance which the child is alleged to have violated;”

It is clear that when delinquency is alleged, the petition shall specifically set forth 1) the facts constituting the delinquent act; and, 2) that the child is in need of supervision, care or rehabilitation; and, 3) if the basis for the alleged delinquent act is a violation of law, the petition shall cite the statute or municipal ordinance allegedly violated.

LSA-R.S. 13:1569(13) defines a delinquent act as follows:

“ ‘Delinquent act’ means an act designated a crime under the statutes or ordinances of this state, or of another state if the act occurred in another state, or under federal law.”

A delinquent child is defined also in LSA-R.S. 13:1569(14) as follows:

“ ‘Delinquent child’ means a child who has committed a delinquent act and is in need of care or rehabilitation.”

The petition in the instant case does not allege that Wayne Garcia committed a delinquent act, nor that he is a delinquent child as defined in the statute. Further, it does not contain a statement, as required in the statute, that the child is “in need of supervision, care or rehabilitation”. Although the petition alleges an unlawful act which appears to be a violation of a criminal statute (LSA-R.S. 14:94) , the petition does not cite the statute or municipal ordinance which the child is alleged to have violated. The petition, in the instant case, fails to meet the requirements of a petition invoking the jurisdiction of the juvenile court based on an allegation of delinquency. The petition is fatally defective and will not support a finding of delinquency. Consequently, the trial judge’s finding that Wayne Garcia “is guilty as charged in the complaint and is therefore found to be delinquent” is null and without effect.

However, in the event that a child is alleged to have committed acts which do not constitute a violation of a crime under our statutes or ordinances, a petition may be filed in accordance with the provisions of LSA-R.S. 13:1569(15) relating to a “child in need of supervision”. This statute, in pertinent part, reads as follows:

“ ‘Child in need of supervision’ means a child who:
* ‘ * * * * *
c. has committed an offense not classified as criminal or one applicable only to children; and
d. in any of the foregoing, is in need of care or rehabilitation.”

A petition may be fatally defective because it fails to properly allege delinquency or that the child committed a delinquent act. However, it may satisfy the statutory requirements for invoking the jurisdiction of the juvenile court on the grounds that the child is “in need of supervision.”

A petition which seeks to bring a child within the jurisdiction of the juvenile court based on this provision, i. e., LSA-R.S. 13:1569(15) must specifically set forth facts which cause the child to be in need of supervision (LSA-R.S. 13:1574). The petition must also allege that the child is “in need of care or rehabilitation”. See LSA-R.S. 13:1569(15) (d). The petition fails to meet these requirements. The petition does not state the date and time that Wayne Garcia allegedly shot the B.B. gun or the address at which the alleged occurrence took place. Further, it does not state that the child is “in need of supervision, care or rehabilitation”. We might also note that the petition fails to state the date of birth and the sex or race of the child as required by LSA-R.S. 13:1574.

Further, we might point out that the petition in the instant case does not purport to invoke the jurisdiction of the juvenile court based on the allegation that the child is in need of supervision. This matter has been treated as a complaint alleging delinquency. The trial judge found that Wayne Garcia “is guilty as charged in the complaint and is therefore found to be a delinquent”.

In any event, whether the petition purports to .allege delinquency or purports to allege that the child is in need of supervision, it is fatally defective and is without force or effect.

Likewise, the trial court’s order placing Wayne Garcia on informal probation for a period of six months can have no force or effect. LSA-R.S. 13:1580 provides that the court may place a child on probation when the child is found to be neglected, delinquent or otherwise in need of protection of the state. Because we have concluded that the finding of delinquency was based on a fatally defective petition and therefore null, any disposition by the trial court based on such a finding is also null.

The remaining issue with which we are confronted is whether or not the trial judge made an “informal adjustment” not requiring the filing of a formal petition as contemplated by LSA-R.S. 13:1574. Pertinent provisions of the statute read as follows:

“§ 1574/ Information; investigation; petition
A. Whenever any person informs the court that a child is within the purview of this chapter, the court shall cause to be made an inquiry to determine whether the interests of the public or of the- child require that further action be taken. Whereupon the court may make such informal adjustment as is practicable without a petition or may authorize a petition to be filed by any person; provided, however, that whenever any person informs the court that a child is within the purview of this chapter, the district attorney may file a petition without authority of court. Whether the petition is filed with or without court authority, the proceedings shall be entitled “The state of Louisiana in the interest of . . ., a child under seventeen years of age.”

State in Interest of Toler, 262 La. 557, 263 So.2d 888 (1972) involved the immediate removal of minor children from their home and temporary placement with a neighbor and friend pending further proceedings. The Louisiana Supreme Court recognized that in some cases requiring prompt action for the protection of the child (as in Toler), the court may make “an informal adjustment” without the necessity of filing a petition. The Toler court went on to point out:

“However, all the other provisions contemplate an adversary proceeding like any other lawsuit, i. e., the necessity of the filing of a formal petition before the court can hear and decide the question of whether the minor is neglected or delinquent and issue a custody order for an indefinite period in accordance with R.S. 13:1579.1. * * *”

As we interpret the statute and the language of the trial court in the Toler case, “informal adjustment” is action which might be taken as an alternative to the filing of a petition. This action may be taken because of the requirement for prompt action (as in Toler) or for other reasons which the court may deem appropriate. However, an “informal adjustment” is not a disposition made by a court based upon a finding of delinquency. In the instant case, because a petition was filed, the provisions of the statute relating to “informal adjustment” cannot properly be invoked.

Accordingly, the judgment of the trial court is reversed. The finding of delinquency of Wayne Garcia is rescinded and set aside, and the juvenile is released from further custody herein.

Reversed and rendered.

      . We reject the State’s contention, raised in oral argument and supplemental brief, that a delinquency petition which does not cite the statute or ordinance violated is not fatally defective if it alleges specific facts upon which to base a complaint. In State v. Franks, 284 So.2d 584 (La.1973), cited by the State, the Supreme Court stated that it is not necessary to cite the statute when the offense can be charged in the short form indictment. Clearly this case is not applicable to a juvenile proceeding. Short form charges are foreign to our juvenile procedure.

      . LSA-R.S. 14:94(A) reads as follows:
      “§ 94. Illegal use of weapons or dangerous instrumentalities.
      A. Illegal use of weapons or dangerous in-strumentalities is the intentional or erimi-nally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.”


author: PETERS, Judge ad hoc.

text:
    Neil DASPIT, Plaintiff-Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellee.
    No. 5278.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    . Pharis & Pharis, by James A. Pharis, Jr., Alexandria, for plaintiff-appellant.
    Bernard L. Malone, Jr., D. Ross Banister, Wm. W. Irwin, Jr., Johnie E. Branch, Jr., Baton Rouge, for defendant-appellee.
    Before MILLER, WATSON, and PETERS, JJ.
   PETERS, Judge ad hoc.

This is an action for compensation for land damaged by the Department of Highways for drainage purposes. The district court held that defendant'had no obligation to pay compensation for private property taken in widening and deepening a natural drain, citing LSA-R.S. 48:223(C) as authority therefor.

Plaintiff owns a tract of land in Alexandria consisting of approximately 4.543 acres. The tract is located on the southerly side of Louisiana Highway One, with a frontage of about 242 feet and about 900 feet deep. There is a swale or natural drain called Sandy Bayou which runs diagonally across the tract from the northeast corner of the property to the south edge of the tract and from there along the south edge to the back of the property. The swale cuts the subject property into two sections, only one of which fronts on Highway One, but plaintiff installed culverts in the swale to connect the two sections. He therefore had access to the whole of the property from Highway One. At some time in 1972, the Department of Highways went on the property and dug a canal through Sandy Bayou. The culverts were removed and left strewn about on plaintiff’s property. Spoil dirt from the canal was left piled up on the property. About ten cypress trees were cut and debris from these trees was left lying in the spoil dirt which had been dumped on the property. The stumps from the cypress trees were left in the ground and buried by the spoil. The property was effectively cut into two separate tracts with only the small, front tract having access to Highway One. Defendant made no effort to negotiate with plaintiff for a right of way and paid him no compensation whatsoever.

Defendant contends that because Sandy Bayou is a natural drain, LSA-R.S. 48:223(C) gave it the right to widen and deepen Sandy Bayou without the payment of compensation. LSA-R.S. 48:223(C) reads as follows:

“The agents and employees of the department (Department of Highways), under the direction of the chief engineer, may enter and clean or improve by widening or deepening, if necessary in the opinion of the chief engineer, such natural and public drainage channels, ditches, or canals that are adjacent to and form part of the drainage system of any state highway.”

Defendant presented no evidence that Sandy Bayou forms a part of the drainage system of Highway One or any other state highway. However, this is of no importance for even if it is assumed that Sandy Bayou is a natural drain for Highway One, defendant’s position, concerning the payment of compensation is untenable. The statute relied upon authorizes the widening or deepening of a natural drain but has no provisions concerning compensation. Section 223 is found in that part of Title 48 dealing with “General Administrative Functions of the Department.” It is apparent that Section 223 was intended to delineate some of the functions of the Department of Highways and was not intended to imply that the Department need not pay compensation for damages caused by the exercise of those functions. In Scott v. Red River-Bayou Pierre Levee and Drainage District of Louisiana (La.App.2nd Cir., 1942), 7 So.2d 429, defendant Drainage District widened and deepened Flat Bayou, a natural drain, and contended that a statute giving Drainage Districts control over the land within 100 feet of either side of all drainage channels relieved the Drainage Districts of any obligation to pay compensation for land taken or damaged within 100 feet of such channels. The court rejected this contention and held that the statute merely gave control over the area bordering the channels to the Drainage Districts in order that the Drainage Districts could maintain the efficiency of all drainage channels; ' the landowner continued to own the land and was entitled to compensation if the land were taken or damaged by the Drainage Districts in exercise of their right of control.

Art. 1, Sec. 2 of the Constitution of 1921 provides that private property shall not be taken or damaged without adequate compensation. The swale running across plaintiff’s land was part of his private property. The evidence clearly shows that plaintiff’s property was “taken” or “damaged” for public purposes and therefore adequate compensation must be paid. Scott v. Red River-Bayou Pierre Levee and Drainage District of Louisiana, supra; Bernard v. State Department of Highways (La.App.3rd Cir., 1961), 127 So.2d 774.

The trial court cited Hornsby v. State Department of Highways, 241 La. 989, 132 So.2d 871 (1961), in support of its position that no compensation was due for the damage caused by the construction of the canal across plaintiff’s land. The Hornsby decision is easily distinguished from the present pase. Hornsby involved land bordering a navigable river and dealt with the legal servitude imposed on such land by LSA-C.C. 665 and 707. In the instant case, t(iere is no claim of a legal servitude under either of the above cited articles.

We find that plaintiff is entitled to a recovery of $7,000.00. Defendant’s own witness, Perry E. Futrell, Jr., an expert appraiser, testified he felt the market value of the subject property had been diminished about $4000.00 by the actions of defendant. He believed an informed buyer would offer $4000.00 less for the 4j4 acres than he would have offered before defendant dug the canal. He testified that an informed buyer would consider the irreparable damage done (the loss of the cypress trees and deepening of the swale) and the cost of restoring the tract as much as possible to its original state. Mr. Futrell failed to consider that there were about ten cypress stumps still in the ground beneath the spoil dirt. He had a contractor submit a bid for leveling the spoil dirt and removing debris. The contractor submitted a bid of $1000.00 but failed to take into account that there were cypress stumps under the spoil dirt which would have to be removed. Plaintiff had had some experience in removing stumps and testified that it costs about $300.00 to remove a stump. We therefore find the removal of these stumps would have cost about $3000.00. An informed buyer would consider this expense in determining the value of the property and thus would offer about $7000.00 less than he would have offered before the canal was dug; i. e. $3000.00 for irreparable damage, $1000.00 for leveling the spoil and removing debris, and $3000.00 for removing the cypress stumps.

All costs in this court and in the court below are to be paid by defendant-appellee except those excused by LSA-R.S. 13:4521. We set the fee of Mr. Joseph T. Glorioso, plaintiff’s expert witness, at $750.00 and include this sum in those costs to be paid by defendant. LSA-R.S. 13:3666. We also find plaintiff is entitled to reasonable attorney’s fees taxed as costs against defendant and fix these fees at $2800.00. LSA-R.S. 13:5111.

Reversed and rendered.


author: REDMANN, Judge.

text:
    James Victor SMITH v. T. SMITH & SON, INC., and John Doe.
    No. 7131.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Aubrey E. Pate, Kenner, for plaintiff-appellant.
    James H. Drury, Madison C. Moseley, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   REDMANN, Judge.

Having appealed from judgment on jury verdict dismissing his suit for damages from a minor collision with a fork-lift truck alleged to have been defendant’s, plaintiff filed no brief but advised through counsel that he was not abandoning his appeal.

There is evidence in the record supporting the jury’s evident finding either that defendant did not own the fork-lift or that the accident did not injure plaintiff.

The judgment is affirmed.


author: COVINGTON, Judge.

text:
    In re INVESTIGATION OF ALLEGED VIOLATIONS OF the CIVIL SERVICE LAW AND RULES BY W. L. McCRAY et al.
    No. 10539.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 13, 1975.
    Louis di Rosa and Michael E. Soileau, New Orleans, for appellant.
    R. Gray Sexton, Atty. for Civil Service Commission, Baton Rouge, for appellee.
   ON APPEAL FROM THE STATE CIVIL SERVICE COMMISSION.

Before LANDRY,- COVINGTON and BARNETTE, JJ.

COVINGTON, Judge.

The appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice. .

Appeal dismissed.


author: SAMUEL, Judge.

text:
    Harry HERMAN v. STYLE LINE GREETINGS, INC.
    No. 7096.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.

      Herman & Herman, David L. Herman, New Orleans, for plaintiff-appellee.
    Little, Schwartz & Dussom, A. D. Freeman, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN and GU-LOTTA, JJ.
   SAMUEL, Judge.

This appeal from a judgment of eviction was taken by one of the named defendants, James G. Salles, an alleged tenant by sublease of the ground floor of the building in suit. After the judgment was rendered appellant voluntarily departed the premises, reserving to himself the right to contest the appellee-owner’s possession and to seek damages. Appellant’s sole defense to the eviction proceeding was and is an alleged right of occupancy based on the written sublease, the term of which expired on September 30, 1975.

Prior to July, 1975 appellee had filed motions to dismiss this appeal on the grounds of acquiescence and mootness. We denied those motions on July 8, 1975. Insofar as concerns the claim that the matter would become moot prior to November 3, 1975, the date it was posted for argument in this court, we held the motions were premature in that the appeal was viable because the term of the sublease had not expired and therefore there remained a possibility that the appellant could be restored to possession if successful on appeal prior to such expiration. We now find it necessary to dismiss the appeal because the matter has become moot at this time.

When an appeal from a judgment of eviction is based upon the right of possession under a lease, or an extension thereof, which has terminated by its own terms, the question presented is moot and the appeal must be dismissed. In People’s Bank v. Levy, which dismissed as moot an appeal from a judgment of eviction, the court stated the matter as follows:

“The only defense to the suit was defendants’ contention that the term of the lease had been extended. The only relief prayed for in defendants’ answer to the suit was that it should be dismissed. The alleged extension of the term has already expired. A reversal of the judgment appealed from would therefore serve no purpose.”

In the instant case, dismissal of the eviction suit was the only relief prayed for in appellant’s answer to plaintiff’s petition. The sole question thus presented was whether the appellant should be evicted or allowed to remain in possession. Possession of the premises in suit also is the sole issue presented in this court. As the sublease upon which appellant bases his claim to possession has expired by its own terms, any change in the trial court judgment by this court would serve no purpose. Appellant cannot now be placed in possession and, consequently, this appeal must be dismissed as moot. Although some claim for damages might survive the expiration of the sublease in suit, no such claim is before us at this time.

For the reasons assigned, the appeal in this matter is dismissed; all costs in this court are to be paid by the appellant.

Appeal dismissed.

      . Herman v. Style Line Greetings, Inc., La.App., 315 So.2d 903.

      . At that time it was possible the appeal could be argued, submitted and decided prior to September 30, 1975. However, there was no motion to advance the case on our docket and it was heard in its regular posted order on November 3, 1975.

      . 151 La. 583, 92 So. 124; also see Goldblum v. Harden, La.App., 183 So.2d 756; Barcom, Inc. v. Doll, La.App., 119 So.2d 544.


author: MARVIN, Judge.

text:
    Arthur CRUMP v. The GOODYEAR TIRE & RUBBER COMPANY.
    No. 12803.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    Thomas, Prestridge & Burchett by Dewey E. Burchett, Jr., Bossier City, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Wilton H. Williams Jr., Shreveport, for defendant-appellee.
    Before BOLIN, MARVIN and GLAD-NEY, JJ.
   MARVIN, Judge.

Plaintiff-employee, Arthur Crump, in this workmen’s compensation proceeding appeals the rejection of his demands. We affirm.

Crump worked as a laborer-serviceman and deliveryman for Goodyear for approximately two years before he was terminated on March 18, 1972, because of habitual and unexcused absences from work for which he had been often reprimanded. After he was fired, Crump brought suit alleging total and permanent disability under the compensation law because of an accident which occurred during the week of March 12, 1972, when he fell while manipulating a refrigerator on a hand delivery truck and injured his back. The refrigerator fell on him while he and another employee were delivering the refrigerator to a retail customer of the Goodyear store. Crump performed his normal duties without incident afterwards. Two or three days after the incident, when he was arising one morning from bed, painful symptoms of an intervertebral lumbar disc struck the plaintiff. He thereafter saw his doctor for treatment. Until the suit was filed on June 15, 1972, and served, the employer was not notified of the alleged accident.

A sister of the customer who purchased the refrigerator saw the accident occur and corroborated plaintiff’s testimony about him falling and the refrigerator falling on him. She acknowledged that plaintiff made no complaints of injury and that he proceeded afterwards with the delivery.

Plaintiff’s treating physician, an orthopedic, saw plaintiff on March 3, 1972. Plaintiff informed him that a general practitioner had been treating plaintiff for back and leg pain for some four months. The orthopedic noted at that time objective symptoms of a ruptured disc at the L5-S1 vertebral interspace. Conversative treatment was. prescribed. On March 22, 1972, the orthopedic next saw plaintiff and noted Pam worse — Lifted refrigerator last week —Worse since — Constant pain . . .” Plaintiff was hospitalized for two periods of time after this visit. A myelogram, done in May 1972, revealed the disc defect at L5-S1. Finally, on August 22, 1972, the discsectomy was performed. Medical disability was estimated by the orthopedic as “ten percent total body disability” when the orthopedic last saw plaintiff in March, 1973.

There is no question but what the plaintiff proved that he sustained the accident referred to as the refrigerator incident within the several days before he was fired on March 18, 1972. The question in this case is not “accident,” but of causal connection or cause-in-fact between the refrigerator incident (certainly a work-related activity of the employee) and the thing (the ruptured disc or aggravation thereof) which resulted in the disability. Essentially this is a question of fact. See Francis v. Gerlach Meat Co., Inc., 319 So.2d 534 (La.App.2d Cir. 1975).

The orthopedic doctor knew the plaintiff’s history and further hypothetically assumed that for two or three days before the refrigerator incident and for two or three days after the refrigerator incident the plaintiff to have been free of disc 'symptoms. The questions were asked and answered in these words:

“Q Is it not a fact, Doctor, that based upon that assumption of facts there is no way in the world that you could express an opinion with any medical certainty at all that the refrigerator episode had anything to do with injuring this man’s back or even aggravating any pre-existing injury that he had?
“A No, sir, I can’t say that. I just don’t know.”
Record, page 93.
“Q There was some question as to the cause of the rupture of this man’s disc and I believe it would be fair to say, would it not, Doctor, that you would certainly not be in a position to say that by' reason of anything that may have been associated with his employment, opposed to one of these other causes we were talking about a while ago, bending the wrong way at home or getting out of bed the wrong way or something—
“A I can’t say.”
Record, page 100.

Even on direct examination, the doctor stated: “Now I know the reason for this case is to decide whether or not Mr. Crump’s ruptured disc is secondary to his job. And frankly, I don’t think I am going to be able to answer that.”

The lower court held that plaintiff did not prove the causal connection. Finding no manifest error, and at appellant’s cost, judgment below is

Affirmed.


text:
    Albert JOHNSON v. PARKCHESTER REALTY CORPORATION et al.
    No. 7112.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.

      George J. Kambur, New Orleans, for plaintiff-appellant.
    Ignatz G. Kiefer, Roy C. Cheatwood, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal of his demands against a tortfeasant driver’s employer and the employer’s insurer.

The accident occurred over an hour after the driver had finished work for the day. The driver sideswiped four or five parked cars. There is ample testimony that the driver was never authorized to • drive the employer’s truck at all, although plaintiff argues he was authorized to drive since no criminal charges were filed against him and he was not fired. The driver was employed as a truck driver’s helper; he did not have a driver’s license. Although plaintiff and his wife’s brother-in-law testified that they had seen the driver previously (and subsequently) driving the employer’s truck as if in normal business usage, we must conclude that the trial judge rejected this testimony (or else he would presumably have held the insurer liable under Waits v. Indemnity Ins. Co. of N. America, 1949, 215 La. 349, 40 So.2d 746).

That rejection is largely the result of a credibility evaluation which we simply cannot say was erroneous.

The judgment is affirmed.