author: ROGERS, Judge.

text:
    Larry Phil HARRIS, Plaintiff-Appellee, v. Darbes J. LANDRY, Jr., Defendant-Appellant.
    No. 5899.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused July 1, 1977.
    J. Michael Veron, Alvin B. King and Charles S. King, Lake Charles, for defendant-appellant.
    Thomas W. Sanders, Lake Charles, for plaintiff-appellee.

      Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

Plaintiff, Larry Phil Harris, filed suit against defendant, Darbes J. Landry, Jr., to enjoin him from making certain use of lots in Lynwood Subdivision, in violation of restrictive covenants affecting the subdivision. The district judge granted a preliminary injunction against defendant and he has appealed.

The trial judge has deciphered the testimony well and we adopt substantially his reasons for judgment in this opinion.

“Lynwood Subdivision, where the restrictive covenants apply, is a small subdivision lying on the north side of the ‘Old Spanish Trail,’ a parish road running east and west between Sulphur and Westlake. The subdivision is rectangular in shape and has but one dedicated street in it, Lynwood Avenue, which runs north and south and forms a T-intersection with the Old Spanish Trail. On the north and south ends of the subdivision there are some alphabetically designated lots which are not covered by the restrictions. In between these alphabetically designated lots there are 28 numerically designated lots, 14 on each side of Lynwood Avenue, the 14 on the west side forming Block 1, and the 14 on the east side forming Block 2. The plaintiff in this injunction suit owns Lots 8 and 9 of Block 1; his dwelling is located on Lot 8 and is on the west side of Lynwood Avenue. Landry, the defendant, owns Lots 8 through 12 of Block 2, across the street. The numbering of these lots is from south to north, so that Harris’ ownership lies about midway of the subdivision, and Landry’s ownership begins about midway and goes nearly to the north end of the subdivision.

Landry has never used and is not now using any of the five lots for residential purposes. He has recently cleared all five lots with the confessed intent of utilizing them for commercial purposes, to expand his commercial business which lies adjacent to the subdivision.

It is not necessary to examine in detail the actual language of the restrictive covenants applicable to Lynwood Subdivision. It satisfies our purposes merely to say that the restrictions, which were established in 1957 and are still in effect, specifically limit the use of the lots as ‘residential lots’ that shall be used for ‘residential purposes only’ and prohibit the establishment thereon of any ‘noxious or offensive trade, pursuit or activity’ or anything ‘which may become any annoyance or nuisance to the neighborhood or adjacent owners.’ It is not necessary to examine these restrictions in greater detail because whether or not they are being violated is not an issue in this case. The defendant frankly and honestly admits the violation and in fact bases his entire defense on prescription. The defendant rests his entire case upon the contention that the lots, having been used for commercial purposes in violation of the restrictions for a period in excess of two years, are freed from the restrictions by virtue of liberative prescription.

° A little over 100 yards east of the intersection of Lynwood Avenue and the Old Spanish Trail, there is a public street called Landry Lane that goes north from the Old Spanish Trail. On the left side of this street and facing it, Landry owns a tract of land next to property of his father and other members of his family. This tract lies outside Lynwood Subdivision but is adjacent to the subdivision. Landry’s property on Landry Lane is contiguous to a portion of the rear boundary of Lot 13, all of the rear boundary of Lot 12, and a portion of the rear boundary of Lot 11, all in Block 2 of Lynwood Subdivision. This tract, which we will refer to as the Landry Lane property, was purchased by defendant in 1965. It measures 165' by 150'. .

Landry has his personal residence on the Landry Lane property, and also, since 1968, he has operated a sole proprietorship there known as ‘Brimstone Fabrication and Welding Company.’ This business will hereinafter be referred to as ‘Brimstone.’ The original Brimstone shop was built next to his house.

As its name indicates, Brimstone is a business that involves welding and metal fabrication. In 1972 and 1973, it was still pretty much a one-man operation. Landry first built a small shop next door to his house in 1968. ■ Living next door to his shop, he often went there and worked at night. His business grew. It enjoyed steady growth. From no more than two employees, two or three years ago, it now employs 26. From a small shop 20 feet long in 1968, the shop area has been increased presently to 80 feet in length.

Thfe raw materials for metal fabrication involve pipe and metal of various shapes and dimensions. With both a residence and a fabrication shop crowded together on a lot measuring 165' by 150', it is not hard to see that any business growth would require additional space. As Brimstone grew, and developed, handling a greater volume of business and employing more persons, its need for additional space grew commensurately. The additional space was needed not only for the storage of the metal pipe, plate, angles, etc., that are needed in such a business, but also more space was needed to actually do the work, because not all the fabrication work was done in the shop itself. There were times when painting and sandblasting was done outside the shop. Also, as the business expanded there arose a need for another access route for the shop in addition to access from Landry Lane.

Anticipating these needs, approximately two years ago Landry negotiated with the owner of Lot 13 of Block 2 of Lynwood Subdivision for a right-of-way for a road from Lynwood Avenue to the back of his shop. Landry actually constructed a rough earthen driveway across Lot 13 and used it a few weeks before negotiations broke down and he was forced to discontinue the use of Lot 13. He then looked about for other access and discussed with its owner, J. C. Carlin, the purchase of Lot 12, which lay immediately south of Lot 13 and also immediately west of the shop. This discussion took place sometime during the latter part of 1973 or early 1974. Carlin also owned Lots 10, 11, 9 and 8 in the block. An oral agreement to purchase all five lots was then reached, culminating in an actual transfer of ownership in late May of 1974. Prior to that time, with the approval of the owner, J. C. Carlin, defendant made some limited use of Lot 12. .

By September of 1974 there was a sufficient use of a driveway from Lynwood Avenue east across Lot 12 to defendant’s shop that labor union pickets, involved in some labor dispute with Landry at that time, were manning the entrance to his business on Lynwood Avenue.

In late 1975, defendant acquired a large contract which demanded immediate additional space. He moved bulldozers onto the five lots in Block 2 of Lynwood Subdivision and commenced clearing them. In early 1976, he caused oil to be poured on the ground and some 70 yards of shell deposited there. Heavy equipment began moving about on the lots. A build up of storage of metal raw materials also began to manifest itself on these lots.

It was this upsurge of commercial activity, occurring in latter 1975 and early 1976, that caused the plaintiff herein to file his suit seeking an injunction. The suit was filed on February 27, 1976.

The sole defense herein is based upon LSA-R.S. 9:5622(A), which reads as follows:

‘§ 5622. Restrictions in title to land ‘A. Actions to enjoin or to obtain damages for the commission or continuance of a violation of restrictions contained in the title to land are prescribed by two years, reckoning from the commission of the violation. When this prescription shall have accrued, the particular parcel of land shall be forever free from the restriction which has been violated.’

Relying upon Chexnayder v. Rogers, 95 So.2d 381 (La.App. 4 Cir. 1957), and Le- Blanc v. Bowen, 238 So.2d 369 (La.App. 4 Cir. 1970), defendant urges that the storage of pipe and raw materials on a portion of one lot (Lot 12) commenced a commercial use of all five lots and that since more than two years have elapsed since the inception of the commercial operation and February 27,1976, the date suit was filed, all five lots are free from the restriction against any type of commercial operation. Defendant urges that we apply the well-established rule of construction that stipulations contained in restrictive covenants are stricti juris and every doubt should be resolved in favor of the unencumbered use of the property.

The party who pleads prescription has the burden of proving it. Accordingly the defendant is required to prove that the liberative prescription of LSA-R.S. 9:5622(A) has accrued and that this present use of the property for commercial purposes is protected because the property is free of any restriction against commercial use.

In other words, the defendant is required to prove that the commercial use of these lots began no later than February 27, 1974, and has continued uninterruptedly since that time.

* * * * * *

The violation of a restriction for two years frees ‘only the particular parcel of land’ according to R.S. 9:5622(A). In this sense, with reference to the division of an estate ‘parcel’ can only mean the same as ‘lot.’ Where an owner owns several lots, each lot must be considered independently. Sherrouse Realty Company v. Marine, 46 So.2d 158 (La.App. 2 Cir. 1950). Considering each lot independently and with particular respect to Lots 8, 9 and 10 of Block 2, there is no evidence at all of any commercial activity on these lots until in recent months. Therefore, there is no question that they are still burdened with restrictions and all commercial activities thereon must be enjoined.

The most disputed issue of fact in this case, is what was taking place on Lots 11 and 12 on February 27, 1974. For it was on this date, two years before the filing of the present suit, that the two year libera-tive prescriptive period had to begin, that the establishment of a commercial business sufficient to amount to a violation of the restrictions had to commence, in order that its continuance for two years can now be said to have freed these two lots from the restriction that forbids their use for commercial purposes. There was only scant evidence to show a partial use of Lot 11 more than two years before suit was filed. A closer fact question exists as to Lot 12; the court concludes that defendant .has failed to prove a substantial use thereof on or before February 27, 1974. At best, the testimony for defendant establishes only that there was storage use of a small area at the back of Lot 12 during the latter part of 1973 or early 1974, and that a road of sorts was established across that lot at some time during the same general time period. Based on the testimony of defendant’s witnesses, alone, it is just as probable that these activities commenced after February 27,1974, as before. When all the testimony is considered, it is clear that defendant has failed to bear his burden of proof by a preponderance that a violation has occurred for two years.

J. C. Carlin, considered by defendant himself to be one of his key witnesses, and highly regarded by the court, gave testimony which the court considered most credible. Carlin was called by defendant to establish prescription. He was one of the developers of the subdivision. This witness testified that he visited with defendant concerning possible sale of the lots to him in late 1973 or early 1974, he could not remember when. He testified to having seen the use of a portion of the back of Lot 12, an area estimated by him to be 20' to 25' deep, for storage of metal material. He estimated two or .three tons of metal there, at a point close behind defendant’s shop and house. He did not think there was anything on Lot 11. He was certain there was nothing on Lots 10, 9 and 8. He said there was no further use of Lot 12 than this. He saw no evidence of clearing or dozer work, and he saw no road or driveway across Lot 12 or any other of these five lots. There was no work in progress on any of the five lots. When pressed to give the exact time that this observation occurred, Carlin was unable to do so. .

The public records indicate that defendant purchased these lots (not directly from Carlin but through an interposed party for tax purposes) on May 23, 1974.

The testimony of Carlin is illustrative of most of the testimony in this case, and the court accepts completely his description of activity in the area concerning the time he testified about, and accepts his version of the facts as the facts upon which the case is decided.

It is evident that some time in the past defendant began to use Lot 12 in connection with his business. Within six months prior to the filing of this suit when he dozed, cleared and shelled the property, his use of it has been obvious. Earlier, however, when he used only the back portion of it for storage, the use was not so obvious and could easily have escaped detection from the street. Neither defendant nor any of his witnesses was able to precisely identify the point in time when Lot 12 first began to be used as a passageway, or when the east end of Lot 12 first became used as a storage area. The earliest point in time at which it can be definitely established that a passageway existed was in September of 1974, when the pickets were established on Lyn-wood Avenue at that point. Even then it is not clear that it was a well-defined driveway, because it was not a well-defined driveway on the last day of the trial of this case. A. R. Walton, a licensed surveyor, and defendant’s last witness in the case, surveyed the property on the last day of trial and testified that there was a ‘driveway of a sort’ across Lot 12.

All of plaintiff’s witnesses testified that there was no driveway across Lot 12 at any time and that there was no observable use of Lot 12 or any of the lots for storage purposes during the time in question.”

The court concludes that the defendant has failed to prove a commercial use of the lots for the requisite period of two years and that for that reason, the violation of the restrictions must be enjoined.

While appellate courts in Louisiana have constitutional obligation to review both law and facts in civil cases, findings of fact by the trial judge shall not be disturbed absent a positive showing that the findings are manifestly erroneous on the face of the record. Storey v. State Farm Mutual Fire Insurance Company, 327 So.2d 687 (La.App. 1 Cir. 1976).

Stated in another context, where there is substantial conflict in the testimony, reasonable evaluation of credibility and reasonable inferences of fact made by the trier of fact, here the trial judge, should not be disturbed on appeal in the absence of manifest error. Pennington v. Panepinto, 328 So.2d 812 (La.App. 1 Cir. 1976). Additionally, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed by the appellate court even though the reviewing court might believe its own evaluations and inferences are as reasonable. Weaver v. Fleetwood Homes of Mississippi, Inc., 327 So.2d 172 (La.App. 3 Cir. 1976).

There is language in Chexnayder v. Rogers, cited supra, suggestive that prescription will not run on a business which is conducted secretively and surreptitiously so as to avoid detection. There is certainly no evidence in the instant case that the defendant’s conduct or his use of these lots has ever been anything other than open and above board, and clearly there has been no effort to avoid detection. However, due to the initial limited use of the back portion of the lot for flat storage and the natural obstruction to view from Lynwood Avenue caused by trees and undergrowth on the lots, the court can appreciate the plaintiff’s contention that the violation was not open and obvious until the lots were cleared and large areas of them began to be put to use in late 1975.

If the mere storage of pipe under these circumstances was sufficient to commence the tolling of prescription, it would be impossible to fix the exact point in time when the violation began.

Foy the above and foregoing reasons, we affirm the trial court’s judgment issuing a preliminary writ of injunction against defendant; appellant is cast with all costs.

AFFIRMED.

      . Defendant also pleaded estoppel based upon the contention that plaintiff estopped himself from complaining by raising rabbits on his own property. This defense was not seriously pursued.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    LAFAYETTE AIRPORT COMMISSION, Plaintiff and Appellant, v. J. Maxine ROY et al., Defendants and Appellees.
    No. 5902.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused June 15, 1977.
    Logan & deLaunay by William E. Logan, Jr., Lafayette, for plaintiff and appellant.
    Bailey & Hollier by W. C. Hollier, One-bane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Edward C. Abell, Jr., Lafayette, for defendants and appellees.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

The issue in this case is whether interest is legally owing on a judgment fixing expert witness fees taxed as costs in an expropriation matter. Lafayette Airport Commission and Lafayette Parish Police Jury were the expropriating authorities. The trial court awarded interest on the expert fees from date of judicial demand until paid. Lafayette Airport Commission urges as its principal assignment of error the award of interest because the defendants in the expropriation failed to pray for interest in their prayers for relief contained in their answers filed in response to the expropriation proceeding. Defendants, J. Maxine Roy, Sr. et. al., filed their answer on November 7, 1967, and defendant, Acadian Development Corporation filed its answer on January 30, 1967.

The interest awarded by the trial court was provided for in a judgment rendered by it March 12,1975, relating to expert witness fees, and this court affirmed the award of certain of the expert fees and rejected some. 328 So.2d 182. Appellants then declined to pay interest on the expert witness fees. On June 29, 1976, appellants deposited $19,608.00 in the registry of the court to cover the expert fees taxed as costs along with $224.50 in stenographer’s costs for the benefit of the parties entitled to the sums.

The judgment creditors in whose favor the judgment of March 12, 1975 ran comprise two groups who will be referred to simply as the “Roy Heirs” and “Acadian”. These judgment creditors filed a rule in the trial court on July 20, 1975. The object of the rule was to require appellant, Lafayette Airport Commission, to deposit in the registry of court interest due from November 8, 1966 on the sum of $9,755.00 and from January 31, 1967 and on the sum of $9,853.00 at the rate of five (5%) per annum and for costs of the rule.

The trial court ruled in favor of Acadian and the Roy Heirs and judgment was signed on September 27, 1976.

The Lafayette Airport Commission appealed devolutively from the judgment of September 27, 1976. This appeal brings up the issues presently before the court.

The pertinent language of the March 12, 1975 judgment of the trial court reads as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the expert fees below listed be and the same are hereby taxed as costs of court to be paid by plaintiff herein, together with legal interest from date of judicial demand until paid, to-wit: [Emphasis supplied.]

The decree of this Court of Appeal in 328 So.2d 182 at page 188 reads in part as follows:

The judgment of the trial court fixing the expert fees and taxing them as court costs to be paid by [the Airport Commission] is affirmed in all respects, except with reference to the awards to Thomas S. Broyles and Ralph L. Davenport, which must be deleted from that judgment. All costs are assessed against appellant, the Lafayette Airport Commission. [Emphasis Supplied.]

Were we to grant, arguendo, the validity of the argument that in a case of this nature interest may not be allowed where it was not prayed for, Lafayette Airport Commission can not avail itself of this proposition at this stage. The judgment awarding the interest and expert witness fees was appealed to this court and acted upon as reported in 328 So.2d 182. Rehearings were denied March 4, 1976. It is too late now to go behind the judgment. It has acquired the status of a thing adjudged. It is res judicata. Art. 2286, Louisiana Civil Code. The trial court correctly decided the rule.

Appellant Airport Commission urges that, if it can not be given relief on legal grounds, we should exercise “equitable jurisdiction” to review this final judgment. We can not. Derbes v. Dixie Mill & Supply Company, 16 La.App. 6, 131 So. 692 (Orl.1930).

One of the contentions raised in brief and in oral argument on behalf of Lafayette Airport Commission is that the March 12, 1975 trial court judgment is unenforceable as to interest because it is vague and ambiguous. It is argued that vagueness and ambiguity result because there is no certain date from which the interest can be said to begin to accrue. This is on the ground that interest was never demanded on any date. Appellant suggests several dates marking stages of this litigation that might possibly be selected as the date on which interest could conceivably be held to have begun to accrue. It then argues for and against each such date to prove that the provision for interest is vague and ambiguous. We see no vagueness or ambiguity.

The March 12, 1975 judgment explicitly provides for interest from date of judicial demand. Clearly this means the dates of the principal demands, the two separate dates on which the Roy Heirs and Acadian filed their answers or pleadings asserting demands in response to the expropriation proceeding. The dates are November 7, 1966 in the case of the Roy Heirs and January 30, 1967 in the case of Acadian. See Derbes v. Dixie Mill Supply Company, supra.

For the reasons assigned the trial court judgment of September 27, 1976 is affirmed. All costs are to be assessed against appellant, Lafayette Airport Commission.

AFFIRMED.

      . This litigation has been before this court on two prior occasions. Lafayette Airport Commission et. al. v. J. Maxine Roy et al., 265 So.2d 459 (La.App. 3rd Cir. 1972), writs refused September 27, 1972 and in 328 So.2d 182 (La.App. 3rd Cir. 1976).

      . These principal sums on which interest is claimed are for the Roy Heirs and Acadian respectively and the dates from which they are claimed are from the dates of their answers asserting judicial demand.

      . By stipulation, the “Roy Heirs” were included as parties to the rule, and the judgment on rule runs in their favor as well as “Acadian”.

      . The pertinent language of the judgment of September 27, 1976 reads as follows: “IT IS ORDERED, ADJUDGED AND DECREED that Lafayette Airport Commission pay to Acadian Development Corporation interest at the rate of five (5%) per cent per annum from January 31, 1967 on the sum of NINE THOUSAND EIGHT HUNDRED FIFTY THREE AND NO/100 ($9,853.00) DOLLARS, and further pay to the Roy Heirs interest at the rate of five (5%) per cent per annum from November 8, 1966 on the sum of NINE THOUSAND SEVEN HUNDRED FIFTY FIVE AND NO/100 ($9,755.00) DOLLARS. All costs of these proceedings are cast on Lafayette Airport Commission.”


text:
    SKYE REALTY COMPANY, Plaintiff-Appellant, v. STATE of Louisiana Through DEPARTMENT OF HIGHWAYS, Defendant-Appellee.
    No. 5907.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.

      David K. Balfour, Norman L. Sisson, Sharon P. Frazier by David K. Balfour, Baton Rouge, for plaintiff-appellant.
    William E. Skye, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

Plaintiff, Skye Realty Company, brought this action against defendant, State of Louisiana through the Department of Highways, for alleged damages to property resulting from the widening of a state highway. The trial court granted plaintiff judgment on one of its demands and awarded it damages of $2,913.00, and the court awarded two of plaintiff’s expert witnesses a sum total of $700.00 for expert witness fees. Separate appeals were lodged in this court, plaintiff taking a devolutive appeal and defendant a suspensive one.

The major issue presented by this appeal is whether the trial court erred in denying plaintiff compensation from the State for depreciation in value of its property, due to a public improvement project, where there had been no actual, physical taking of any portion of plaintiff’s property. Another substantial issue is whether the trial court erred in granting recovery to plaintiff for damage to a drainage system that was connected to the state highway drainage system without proper authorization.

Plaintiff, Skye Realty Company, a partnership composed of two brothers, William E. Skye and Jack B. Skye, is the owner of an apartment-office complex known as Park Place located at the intersection of Masonic Drive and Cummins Street in Alexandria, Louisiana.

A portion of the complex is a two-story structure which fronts Masonic Drive. Six commercial office spaces are located at the bottom of this structure which are leased by Skye Realty for business use for rents ranging from $90.00 to $180.00 per month. On the second floor is located the back side of apartments which front a courtyard containing a swimming pool and lawn furniture. The courtyard serves as the focal point of the apartment section of the complex which contains two other wings, one running perpendicular, and the other parallel to the structure which fronts on Masonic Drive.

Prior to 1974, that portion of Masonic Drive that ran in front of Park Place was a two-lane road within the state highway system. In the spring of 1974, the defendant Department of Highways decided to widen a 1.5 mile stretch of Masonic Drive into a four-lane thoroughfare, which included a portion of Masonic Drive that ran in front of Park Place. When Masonic Drive was first laid out, many years previous, defendant secured a right-of-way of sufficient width to eventually construct a larger highway. However, the initial two-lane highway did not take up the full width of this right-of-way.

When plaintiff constructed Park Place over ten years ago, plaintiff paved all the property from the edge of the then two-lane Masonic Drive to the front of his building, and then painted perpendicular parking spaces running the length of Park Place fronting Masonic Drive. The net result was that plaintiff had fourteen perpendicular parking spaces, all designated for use and located directly in front of the six commercial offices which he leased, and all fourteen of these spaces had direct ingress and egress over paved surface to Masonic Drive.

When the Department of Highways decided to widen Masonic Drive to four lanes, it was necessary to make use of a greater portion of its right-of-way. The Department found that the unlimited ingress and egress to these fourteen parking spaces was in violation of the regulations contained in the Louisiana Department of Highways Standard Plans for Driveways. As part of the construction project, the Department, pursuant to these regulations, constructed two points of ingress-egress from Park Place onto Masonic Drive of 35 feet each in width. The remaining space between the driveways located on the highway right-of-way was cleared of the paving previously placed by Skye Realty, and the exposed dirt was planted with grass and shrubbery, and curbed. Defendant informed plaintiff that these exposed areas could not be used for parking or as driveways. Due to these changes in the ingress-egress points on the right-of-way property, and the shallowness of the remaining paved parking area in front of the offices owned by plaintiff, a certain portion of this area was rendered inaccessible and unusable for parking purposes.

At the beginning of the trial, counsel for both parties stipulated that six. parking places, each approximately 9 feet by 20 feet, constituted the affected area owned by plaintiff.

In regard to the question of whether Skye Realty had ever sought a driveway permit from the City of Alexandria, or from the Department of Highways, prior to construction of the parking area, counsel for plaintiff stipulated that no such permit was found by him or his contractor.

The first issue presented by this appeal is whether compensation can be awarded for the “taking” or damaging of private property by the state when there has been no actual physical taking of, or encroachment on, the property. In the instant suit, the plaintiff apparently concedes that in the lay out of the widening project and the new driveways, no use was made of its property. All of the improvements were situated on property burdened by a right-of-way in favor of defendant. Plaintiff’s major claim for damages stems from the fact that due to these improvements, he has suffered the loss of use of 6 out of 14 parking places, with the result of a substantial depreciation in the value of his property.

Plaintiff contends his cause of action is based on Section II, art. 1 of the Louisiana Constitution of 1921, and its subsequent counterpart, Section IV, art. 1 of the Louisiana Constitution of 1974, the latter which reads in pertinent part as follows:

“Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.”

Plaintiff argues that his property, i. e., the six parking places, was “taken” since he has been deprived of the use for which it was intended. Plaintiff contends that since the space occupied by these parking places can no longer be used for parking, the loss is equivalent to an expropriation by the State. In urgence of this contention, plaintiff, in his voluminous brief, cites many cases dealing with the taking of property by a public body that entitled the property owner to compensation. All of these cases, however, are distinguishable from the instant one in that the public body actually took or expropriated some quantity of property of the private party, and therefore, the holdings are not applicable to the factual situation before us.

Plaintiff may still be allowed to recover under the Louisiana Constitution of 1974, Art. 1, ¶ 4, even though there was no “taking,” if his property was “damaged” through actions of a public body. The jurisprudence interpreting this article and its predecessor has set out two requirements that must be met before recovery is allowed. First of all, the damages suffered must be special or peculiar and not general damages sustained by other similarly situated properties. Secondly, the damages suffered must be substantial. Department of Highways, State of Louisiana v. Bennie Capone, d/b/a Capone Cleaners, 298 So.2d 94 (La.App. 1 Cir. 1974); Reymond v. State of Louisiana, through the Department of Highways, 255 La. 425, 231 So.2d 375 (La.S.Ct.1970).

The evidence fails to show that the alleged damages suffered by plaintiff are special or peculiar to his property. The widening project covered 1.5 miles. All property owners along this stretch suffered the same inconvenience as plaintiff.

Plaintiff has not been denied ingress or egress to its property; these points of entrance and departure have been merely restricted for legitimate traffic safety reasons.

Plaintiff’s loss of parking appears to be due to poor planning and failure to follow the laws and regulations relating to the construction and location of driveways that connect to state highways such as Masonic Drive. Plaintiff concedes in brief that the Department of Highways had the authority “to do what it did . . . ” so we need not dwell on that question other than to say that we are convinced after viewing the appropriate legislation and regulations that defendant was exercising a state police power with legitimate public purpose. The original fourteen parking places were available only due to plaintiff’s disregard of the fifth restriction of the Louisiana Department of Highways Standard Plan for Driveways which were promulgated by defendant pursuant to LSA-R.S. 48:344. The former provides in pertinent part that:

“(b) Generally no more than (2) combined entrances and/or exits shall be allowed any parcel of property the frontage of which is less than 200 feet.”
sis * Sft * * *
“(e) . . . The width of driveways for commercial establishments shall be governed by the angle at which the driveway intersects the highway. When the angle of intersection is between sixty-one (61) degrees and ninety (90) degrees, the maximum width shall be thirty-five (35) feet.”
SfS * * sis * *
“. . . The area between driveways and on either side of the driveways shall remain unimproved for vehicular travel or parking.”
S}S * * Sj< * *
“(e) The distance between the inner edges of entrance and exit shall not be less than ten (10) feet where they intersect either the right of way line or the road surface.”

In the preface to the Standard Plan for Driveways is found the following statement:

“Actual work on driveway is not to begin until the application has been approved by the Department.”

A review of the record indicates that plaintiff failed to secure the driveway permit required by the Department of Highways regulations, and further, that his parking lot layout did not conform to the standards set out above. We agree with the apparent conclusion of the trial court that plaintiff has no basis for compensation from defendant when all that defendant did was enforce laws and regulations for the public good that were in force prior to plaintiff’s construction, laws which plaintiff is held to have had knowledge.

We have already noted that plaintiff failed to prove the harm he suffered was different than that of other property owners along the affected 1.5 mile section of Masonic Drive and any inconvenience it has suffered we consider to be damnum absque injuria. We further hold that this loss is a direct result of plaintiff’s own fault in failing to comply with the appropriate laws and regulations in the original planning of its complex.

The next issue we must consider is whether the trial court properly awarded plaintiff two thousand nine hundred thirteen and No/100 ($2,913.00) dollars for alleged damages to its drainage system. In the specification of damages found in plaintiff’s petition, plaintiff sought this sum for plumbing repairs.

At the trial, plaintiff introduced evidence in an attempt to prove that in the course of the street widening project, drainage pipes connecting the complex’s swimming pool to the highway drainage system were rendered inoperable. The trial judge apparently concluded that plaintiff proved the stoppage of the drain was caused by defendant’s activities, and we are in accord with this finding. However, we are unable to agree with the trial judge that this loss is compensable. Again, as with the loss of parking, plaintiff was required to receive a permit prior to connecting its facility with the highway drainage system.

The applicable statute, LSA-R.S. 48:381, states in pertinent part:

“A. When not inconsistent with the purposes of state highways, the director may issue permits for the use and occupancy of the rights of way of state highways as follows: (1) For the installation, operation and maintenance of underground pipes, conduits or cables along or across the highways for the purpose of transporting or conveying fluids
B. All such installations shall be in accordance with the best modern practice and national underwriting standards and shall be so maintained. Permits shall be issued only to owners of the facility and shall be nonexclusive. Installations which will interfere with the proper operation and maintenance of highways are expressly prohibited.
C. No installation may be made except upon the explicit condition that the owner thereof shall, at no cost to the department, remove or relocate the facility when that is necessary to permit the widening, relocation or other improvement of the highway, . . . .”

During the course of the trial, the Department of Highways’ official responsible for the issuing of such permits testified that the highway drainage system was not equipped for the drainage of swimming pools and that such a permit would not have been granted. As given in quoted sections A. and B. above, permits are not granted for installations that would interfere with the highway system. Further, even had plaintiff complied with the prescribed procedure and received a permit, section C. unequivocably states that such permits are conditioned upon the applicant agreeing to absorb the cost for removal or relocation of the facility if highway improvements warrant such action. Therefore, we find the trial judge erred in granting the plaintiff compensation for the plumbing repairs, and we accordingly reverse that portion of his judgment.

Incidental to these main issues, we must also consider the trial judge’s awards to plaintiff’s expert witnesses. Hab Mons-our’s expert witness fee was fixed at $650.00 and J. Elgy Norman’s at $50.00. These sums were taxed as court costs which defendant was condemned to pay. Since we are denying all of plaintiff’s claims for compensation, there remains no basis for taxing defendant for costs of court, and therefore, that portion of the trial court’s judgment is reversed.

For the above given reasons, the judgment appealed from is affirmed as to the denial of plaintiff’s claim for compensation for the lost parking places, and is reversed as to the awards for the damaged drain and the expert witness’ fees. All costs are assessed against plaintiff.

AFFIRMED IN PART, REVERSED IN PART.

DOMENGEAUX, J., concurred in the result only.


author: GUIDRY, Judge.

text:
    PLACID OIL CO., Plaintiff-Appellee, v. Watson TAYLOR et al., Defendants-Appellants.
    No. 5910.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused July 1, 1977.
    Clyde Lain, Jr., Monroe, for defendants-appellants.
    Watson, Murchison, Crews & Arthur by R. Raymond Arthur, Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

This suit originally came before this court as a concursus proceeding instituted by Placid Oil Company to determine the ownership of certain mineral and royalty interests in two (2) twenty acre tracts of land, located in Natchitoches Parish, Louisiana. Impleaded as adverse claimants to the contested interests were certain Taylor heirs, who originally owned the land, and Mrs. Betty Beason, who claimed to own certain mineral interests therein. Following our decision in this matter on March 12, 1974, 291 So.2d 892 (La.App. 3rd Cir., 1974), the Supreme Court, on May 31, 1974 granted a writ of certiorari, 294 So.2d 832 (1974). The Supreme Court, 306 So.2d 664 (1975), reversed our decision, and remanded the case to us for consideration of an issue which we had not previously passed upon. The issue presented on remand was argued and judgment was rendered deciding that issue on May 5, 1975, 313 So.2d 626 (La.App. 3rd Cir., 1975). Writs were again applied for and the Supreme Court again remanded the case for re-argument under Article V Section 8 of the Constitution of 1974. The matter was re-argued before a panel of five judges and judgment was finally rendered on December 24,1975. 325 So.2d 313, writs refused, March 12, 1976, 329 So.2d 455 (1976).

Following final disposition of this matter the trial court ordered that the $190,879.00, representing mineral royalties deposited in the registry of the court by Placid Oil Company, be withdrawn and disbursed according to the dictates of the above referenced judgments.

On May 4, 1976 Nancy Williams Taylor, surviving spouse of Watson Taylor and one of the claimants in this matter, acknowledged receipt of $37,716.35, representing her royalty interest (8%2 of 14) in one of the two twenty acre tracts covered by the Placid Oil Company lease. As provided in that acknowledgment Nancy Taylor’s funds were to be distributed as follows:

“1. Nine Thousand Four Hundred Twenty-Nine and m/m ($9,429.09) Dollars to Watson, Murchison, Crews & Arthur for legal services rendered in my behalf.
2. The sum of Three Thousand Five Hundred Fifty-One and 53/100 ($3,551.53) Dollars to Exchange Bank & Trust Company in payment of my note, which I hereby authorize my attorneys to pay.
3. The sum of Nine Thousand One Hundred Twenty-Two and 83/100 ($9,122.83) Dollars to be held by the Law Firm of Watson, Murchison, Crews & Arthur in escrow, or will be placed into the Registry of the Court; this sum being disputed between myself and Mr. and Mrs. James B. Johnson.
4. The sum of Fifteen Thousand Six Hundred Twelve and "Am ($15,612.90) Dollars paid to me in hand on this date."

On May 27,1976, shortly following Nancy Taylor’s acknowledgment, James B. Johnson and his wife, Nancy moved for a rule to show cause why Daniel Murchinson of the firm of Watson, Murchinson, Crews & Arthur, should not be ordered to release to them the sum of $9,122.83 held in escrow. The rule was subsequently amended naming both, Daniel Murchison and Nancy Taylor as respondents.

In their pleadings relators allege that on March 23, 1974, by instrument recorded in Natchitoches Parish in Conveyance Book 316, page 871, and passed before Daniel Murchinson, Notary Public, Nancy Taylor sold them twenty-two acres of land. The sale, which was in consideration of the sum of $2,000.00 cash did not convey any mineral interest in the property. The Johnsons allege that no minerals were conveyed because the Notary would not include the same in the act of sale. The Johnsons further alleged that on March 30, 1974, Nancy Taylor, by act of sale passed before Buford Grappe, Notary Public, sold all of her oil, gas and mineral rights in the above described tract of land to them. The sale which was in consideration of the sum of $100.00 cash was recorded in Conveyance Book 317, page 185 of the records of Natchi-toches Parish.

Based upon this latter instrument the Johnsons aver that Nancy Williams Taylor owes them the sum of $9,122.83, being that portion of the funds credited to the account of Nancy Williams Taylor in the concursus proceeding for the period from March 30, 1974 to the date of disbursement, less 25% attorneys fees.

Following the filing of the aforesaid rule and on July 16, 1976, Nancy Taylor filed a petition for a declaratory judgment, praying that the instrument dated March 30, 1974, recorded in Conveyance Book 317, Page 185, records of Natchitoches Parish be rescinded, annulled and voided. Petitioner admits that she did sign a document which purported to be a sale of oil, gas and other minerals to James and Nancy Johnson for the price of $100.00. Petitioner, however, alleges that the instrument is without effect because it was obtained by fraudulent means, conduct and practices on the part of James and Nancy Johnson. Petitioner alternatively alleges that the purported sale is null and void because it is lesionary. After filing an exception of prescription the Johnsons answered plaintiff’s petition generally denying the allegations thereof. On August 13, 1973 a hearing was held on the claims set forth in the rule filed by the Johnsons and the petition for declaratory judgment filed by Nancy Taylor. The trial court awarded judgment in favor of the plaintiff, Nancy Williams Taylor, declaring that the instrument dated March 30, 1974, recorded in Conveyance Book 317, page 185, records of Natchitoches Parish was null and void. Accordingly, the trial court ordered that the funds held in trust by Daniel Mur-chinson, i. e., the sum of $9,122.83, be delivered to Nancy Williams Taylor. The trial court overruled the defendants exception of prescription.

Following the signing of the formal judgment the defendants filed a motion for a new trial and a motion to reopen the testimony. Defendants suggested that the matter should be reopened for the taking of additional testimony, namely that of Buford Grappe, the Notary Public before whom the annulled and voided sale was passed. A judghtent was signed denying both motions.

Defendants James B. Johnson and Nancy Johnson appeal.

Defendants contend that the trial court erred when it held that the mineral deed from Nancy Taylor to James B. and Nancy Johnson was a nullity due to fraud and misrepresentation. Specifically, the defendants argue that the evidence presented is not clear and convincing proof that fraud or misrepresentation was present in procuring the signature of Nancy Taylor. Defendants also contend that the trial court erred when it did not, on its own motion, raise the exception of no cause of action since the pleadings filed by Nancy Taylor did not allege fraud and misrepresentation by particular acts. Presumably the defendants have abandoned their claim that plaintiff’s action has prescribed since no mention is made of it in either brief or in argument before this court.

A review of the record indicates that shortly before March 23, 1974 (prior to the original litigation being finalized) Nancy Williams Taylor, James Bernard Johnson and Nancy Taylor Johnson went to the office of Mr. Daniel T. Murchinson in Natchi-toches, Louisiana. Daniel Murchinson testified that the Johnsons at this time requested that an instrument be prepared by which Nancy Williams Taylor would convey some twenty acres of land to them.

We here observe that Nancy Taylor Johnson was the niece of Nancy Williams Taylor. Nancy Johnson’s father was Pap Taylor, one of the claimants in the original action.

Murchinson testified that during this meeting with the Johnsons and Nancy Taylor the question of mineral rights was discussed. Daniel Murchinson, whose law firm had been representing Nancy Taylor for approximately 6 or 7 years, was totally familiar with the situation regarding the concursus proceeding. After reminding Nancy Taylor of the substantial amount of money on deposit in the court Murchinson stated that he advised her that the mineral rights should be excluded from the sale. Murchinson testified that Nancy Taylor agreed indicating that she wanted her niece and her niece’s husband to have her money upon her death. Nancy Taylor had no forced heirs. Murchinson further advised plaintiff that a last will and testament would be the proper way to accomplish this. Murchinson’s testimony reflects that Nancy Taylor was in accord with the procedures he had outlined. Following this meeting Nancy Williams Taylor and the Johnsons returned to Murchinson’s office on March 23, 1974 to execute the documents which he had prepared. Nancy Taylor signed the deed conveying her twenty two acres to the Johnsons. In this deed the vendor, Nancy Taylor, reserved all minerals underlying the property conveyed. At this same meeting Nancy Taylor executed her last will and testament which instituted James B. and Nancy Johnson as sole legatees.

One week later, on March 30, 1974, without the knowledge of Daniel Murchinson, Nancy Taylor executed an instrument by which she conveyed to James B. Johnson and Nancy Johnson all of her oil, gas, and mineral rights in the subject tract for the price of $100.00.

The testimony of Nancy Johnson was to the effect that her aunt, Nancy Taylor, definitely wanted the mineral rights to go with the property. Nancy Johnson testified that, in accordance with her aunt’s wishes, upon returning to her home in Monroe she contacted a lawyer who prepared a mineral deed covering the subject tract. Nancy Johnson and her husband then returned to Nancy Taylor’s home in Campti, Natchitoches Parish, the following weekend with the prepared mineral deed. Nancy Johnson testified that at this time she read and explained the deed to her aunt. Thereafter, Nancy Johnson, and her husband, James, accompanied by Pap Taylor, her father, and Nancy Taylor went to the office of Buford Grappe, a Notary Public in the Parish of Natchitoches, where the instrument was signed by the parties. Buford Grappe did not testify at the trial of this matter.

The testimony of Nancy Taylor reveals that she did not intend to sell her mineral interest to her niece and her husband, but wanted them to have it upon her death. She indicated that she wanted to keep her money to provide for her needs.

The record indicates that Nancy Taylor is an elderly black woman 83 years of age. She has no formal education. She is barely able to read and write and has for some time done neither due to poor eyesight. Generally her inarticulate testimony revealed that she could not remember the circumstances surrounding the transactions involved herein. She testified that she did not know what her mineral interest was worth. She admitted, however, signing a paper for which she received $100.00.

Nancy Johnson admitted that her aunt, Nancy Taylor was a person who could be easily influenced. Mrs. Johnson also admitted that her aunt was not capable of reading a legal document and would need an explanation thereof. Nancy Johnson has a master’s degree in speech as well as having earned 30 hours towards her doctorate in education.

We observe that although the original concursus proceeding had not been finalized at the time of the sale of the mineral rights, it was evident that no matter the outcome, whether the compromise agreement be recognized or the Taylor heirs deeds be recognized, and under whichever lease, be it the Beason or Taylor lease, Nancy Taylor was to receive a substantial sum of money. Nancy Johnson admitted she was apprised of the legal proceedings involving Nancy Taylor. Furthermore, Nancy Johnson’s father, Pap Taylor, was also a claimant in these proceedings, and as such was regularly informed by the attorneys regarding the monies which had been deposited into the registry of the court.

In reviewing the testimony of Pap Taylor, we find noteworthy his statement concerning what happened on March 30, 1974 at Nancy Taylor’s home. He explained (Transcript page 89):

“I was with my little Nancy, my daughter when we we went to Nancy W. Taylor’s house. Then she asked Nancy W. Taylor you know about buying the minerals there. Said you have it willed to us but now, I want to buy it. It won’t be no difference. An she said, well it won’t be no difference I’ll sell it to you.”

(Emphasis supplied).

The law of this state is unquestionably clear that a contract, the consent to which was obtained by fraud, is null and void. LSA-R.C.C. Article 1847. In order to ascertain whether or not a contract is vitiated by fraud, the evidence in support thereof must be evaluated in accordance with the provisions of LSA-R.C.C. 1848, which reads:

“Fraud, like every other allegation, must be proved by him who alleges it, but it may be proved by simple presumptions or by legal presumptions, as well as by other evidence. The maxim that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence. ”

The jurisprudence holds that fraud must be proven by evidence weighing well beyond the preponderance, that is strong, convincing evidence. National Bank of Bossier City v. Fornea, 272 So.2d 411 (La.App. 2nd Cir. 1973), writs refused March 1, 1973. Since the accusation is a grave one the courts have required strict proof thereof. Chrysler Credit Corporation v. Henry, 221 So.2d 529 (La.App. 4th Cir., 1969).

In applying the principles enunciated in R.C.C. Articles 1847 and 1848, and the jurisprudence interpretive thereof, we agree with the finding of the trial court that Nancy Williams Taylor was fraudulently induced into signing the mineral deed executed on March 30, 1974. There is no question but that in view of her age, physical infirmities, and lack of education, which were all well known to the Johnsons, the nature of the document presented to her was misrepresented. Nancy Taylor could not ascertain herself the nature or the ramifications of the document she signed, but relied solely upon the representations made by her niece, Nancy Johnson. Nancy Taylor obviously thought she was signing a document which would be no different from the testament which she had executed upon the advice of her attorney a week earlier. (See testimony of Pap Taylor quoted heretofore).

We find that the highly suspicious facts and circumstances surrounding the transaction on March 30, 1974, considered along with the testimony of Nancy Taylor and Pap C. Taylor and the events of the previous week, furnish clear and convincing proof that Nancy Taylor was fraudulently induced into signing the contested document. We therefore conclude, as did the trial court, that the mineral deed executed by Nancy Taylor on March 30, 1974 is null and void by reason of fraud. Chrysler Credit v. Henry, supra.

Defendants finally argue that plaintiff has failed to state a cause of action in that she has failed to allege fraud and misrepresentations by particular acts as required by LSA-C.C.P. Article 856. We find no merit in this contention. LSA-C.C.P. Article 856 provides:

“In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.”
To summarize, the plaintiff’s petition alleges:
1. Petitioner shows that the sale of March 30, 1974 should be rescinded for reasons that it was obtained by fraudulent means and practices on the part of defendants.
2. Petitioner shows that defendants took advantage of her age, health and lack of education by persuading her to execute the document on March 30, 1974.
3. On March 30, 1974 defendants took plaintiff for a ride and told her that they would give her some money, but she would have to sign a paper for them in return. Petitioner did not know the contents of the paper, was not able to read, and it was not read to her. Petitioner simply trusting the defendants signed the document.

Clearly the above acts alleged in plaintiff’s petition set forth the circumstances constituting fraud with sufficient particularity as to satisfy the requirements of C.C.P. Article 856 and accordingly are sufficient to establish a cause of action for fraud against James B. Johnson and Nancy Johnson.

• For the above and foregoing reasons the judgment appealed from is affirmed. All costs to be borne by the defendants-appellants, James B. Johnson and Nancy Johnson.

AFFIRMED.

      . Originally the trial court held that the Copeland mineral deeds (Betty Beason’s ancestor in title), which were acquired from the Taylor heirs, were null and void since the major consideration therefor was Copeland’s agreement to render legal services in violation of LSA-R.S. 37:213. A contract which was executed and recorded with Copeland’s mineral deeds stated that the major consideration was services rendered by Copeland in removing clouds from the titles of the Taylor heirs. Copeland was not a lawyer. The trial court however, recognized Beason’s title to the contested mineral rights giving effect to compromise agreements which had been executed between the Taylor heirs and Mrs. Betty Beason. While the suit was pending in the trial court Mrs. Beason entered into five separate compromise agreements with the nine Taylor heirs who had attacked her title. The compromise agreements provided that those Taylor heirs were to be paid all of the royalties which would have accrued to them up to a specified date had they fully prevailed in the concursus proceeding, and that all royalties accruing thereafter were to be paid to Mrs. Beason. The agreement related solely to the distribution of funds which had been deposited and those which thereafter would be paid by Placid. It did not purport to set out the specific mineral interest which was owned by each of the parties to that agreement.
      We note that Placid Oil Company had mineral leases from both adverse claimants, Mrs. Betty Beason and the Taylor heirs. The mineral leases from the Taylor heirs provided for a Vs royalty whereas the lease of any mineral interest owned by Mrs. Beason provided for a Vt royalty.
      The trial court not only held that the Taylor heirs were to receive funds as per the compromise agreement but also determined that the Taylor heirs who were parties to the compromise agreements were entitled to a Vrth royalty under Mrs. Beason’s lease rather than a Vsth royalty under the leases previously executed by them.
      From the trial court judgment only Placid Oil Company appealed. The other claimants neither appealed nor answered the appeal of Placid.
      On appeal, 291 So.2d 892 (La.App.1974), we agreed with the trial court that the Copeland deeds were null and void, however we reversed in part, finding that due to the nullity of these deeds the compromise agreements could not be given effect. We concluded that the Taylor heirs were owners of all of the minerals in dispute in this concursus proceeding and that the minerals were subject to the Taylor heirs’ leases. The Supreme Court granted a writ of certiorari.
      The Supreme Court, 306 So.2d 664 (1975) determined that the Copeland deeds were not nullities. The Supreme Court also found that the compromise agreements could not be rescinded on the ground of nullity of the title upon which they were based because the parties expressly compromised the nullity as permitted by law. The Supreme Court recognized both the validity of the Copeland deeds and the compromise agreements.
      The case was remanded for consideration as to whether or not the Taylor heirs had leased their interest prior to recordation of the Copeland deeds, so that as to the interest of these heirs Placid’s oil royalty liability would not exceed Vs, as provided by such lease.
      Upon remand, 313 So.2d 626 (La.App.1975), we decided that the lease from Pap C. Taylor and Watson Taylor (deceased husband of Nancy Taylor Williams) to Placid Oil Company dated March 19, 1964 and recorded on April 3, 1964, which lease provided for a Vsth royalty, must be given full force and effect, and consequently Placid’s royalty liability, as to these mineral interests did not exceed Vs.
      The Supreme Court remanded the case to us for reargument under Article V, Section 8 of the Constitution of 1974. The matter was re-argued before a panel of five judges (325 So.2d 313 (App.1975)), again the issue being whether Placid as lessee was obligated to pay royalties of Vsth or ‘Ath of the oil and gas produced from the leased property, insofar as the mineral interests formerly owned by Watson Taylor and Pap C. Taylor were concerned. We reversed our prior decision and held that the mineral lease to Betty Beason’s ancestor in title of February 5, 1965 superseded the leases executed by Pap C. Taylor and Watson Taylor on March 19, 1964. Accordingly Placid’s royalty liability as to all of the property covered by the 1965 lease, including the mineral interests formerly leased by Watson and Pap C. Taylor was ‘Ath of the oil and gas produced from the leased premises. The Supreme Court denied writs, 329 So.2d 455 (1976).

      . We note that as per the compromise agreement executed between Nancy Williams Taylor and Betty Beason, Nancy Taylor’s interest was to terminate after payment was made from the registry of the court, such interest to be thereafter owned by Betty Beason.

      . The mineral rights conveyed were subject to the Placid Oil Company leases which have been discussed in Footnote T

      . Nancy Taylor admits that she sold to the Johnsons 22 acres of land by deed dated March 23, 1974. The validity of that sale is not at issue.

      . James B. Johnson simply testified that his testimony would be the same as his wife, Nancy Johnson.


author: FORET, Judge.

text:
    Clarence Leon RICHEY, Plaintiff-Appellant, v. TENNECO, INC., Defendant-Appellee.
    No. 5900.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused July 1, 1977.
    Pugh, Buatt, Landry & Pugh by Lawrence G. Pugh, Jr., Crowley, for plaintiff-appellant.
    Oscar E. Reed, Jr., Lafayette, for defendant-appellee.
    Before HOOD, FORET and HEARD, JJ.
   FORET, Judge.

The trial court has handed down excellent written reasons for judgment in this matter, and with minor supplementation, we adopt his reasons as our own. We quote:

“This is a suit for damages for the alleged negligence of the defendant, Ten-neco, Inc., to properly maintain a valve site servitude on plaintiff’s land.
“The servitude in question was acquired by a judgment of expropriation awarded to Tenneco in Civil Suit No. 34,437, Tenneco, Inc. v. Clarence Leon Richey, Fifteenth Judicial District Court, Parish of Acadia. Said judgment was rendered on December 1, 1971. The judgment of expropriation forms a part of the record and is identified as Exhibit P-1. Plaintiff Richey contends that the defendant agreed to level, shell, fence and surround the servitude area with earthen levees so that it would always present a neat and attractive appearance. Plaintiff further contends that the area is now rutted and overgrown with weeds and brush so that it is very unattractive and presents a nuisance to him and his family. Plaintiff alleges that he continually requested Ten-neco to correct the situation, received assurances that they would do so, but to this date Tenneco has failed to take any steps toward remedying the situation. Plaintiff feels he had no other recourse but to file this proceeding.
“Tenneco answered plaintiff’s suit and supplemented its original answer with an affirmative plea of transaction and compromise. Defendant later filed an Exception of Res Judicata based on a Memorandum of Agreement entered into between Richey and Tenneco. The Memorandum forms part of the record as an attachment to a Request for Admission of Facts and Authenticity of Documents. Richey’s admission as to the authenticity also forms part of the record. The Court and all parties agreed to refer the Exception to the Merits of the case.
“The Court will first consider the exception of res judicata. If the Memorandum of Agreement is in fact a release, plaintiff’s cause must fall. LSA-C.C. 2286. Richey argues that the memorandum in question was a release of the clean-up and restoration duties for which Tenneco was bound to furnish pursuant ito the judgment of expropriation, but the release was only for those portions of the right of way relating to the construction of the pipeline. Richey further urges that the release does not encompass the valve site which is the object of this proceeding.
“A plain reading of the release does not support this argument. The release clearly states that it is a settlement of all differences arising out of the expropriation judgment.
“It being intended by this compromise settlement and release that all differences between the parties arising out of the acquisition of the right of way and easement and the litigation which resulted in the judgment rendered by the 15th Judicial District Court in and for the Parish of Acadia, Louisiana, entitled “Tenneco, Inc. v. Clarence Leon Richey, Docket Number 34,487”, and the construction of the pipeline across subject property are hereby resolved and released. It is specifically understood that the release herein granted by Clarence Leroy [sic] Richey to Tenneco, Inc., its agents, contractors, and employees relieves the said Tenne-co, Inc., its agents, contractors and employees from the performance of any additional clean up or restoration operations and Clarence Leon Richey assumes full and complete responsibility for such clean up and restoration of the total area utilized during the construction of the pipeline.” (Emphasis added by Court.)
“Reviewing the judgment rendered in the expropriation suit, the Court finds said judgment included the area that is in dispute:
“ . . . plaintiff (Tenneco) shall have the right to utilize the tract of land described as Parcel “A — 1” on the attached plat upon which there will be constructed certain tie-over and valve settings, part of which will be above ground installations and Plaintiff (Ten-neco) may fence said parcel of ground in order to protect Plaintiffs installations thereon.” (Emphasis added by Court)
“After reading the two instruments, the Court can reach no conclusion other than a settlement and release was entered into between Richey and Tenneco releasing Tenneco of all clean-up and restoration obligations it owed on Richey’s land. For this reason the Exception of Res Judicata is hereby sustained, dismissing plaintiffs suit for damages.
“Plaintiff also filed a Rule to recover attorneys fees for the alleged arbitrary refusal of the defendant to answer certain written interrogatories. This matter was also submitted to the merits of the case. After reviewing the record in this matter, the Court finds that the defendant’s refusal to answer the interrogatories in question was neither arbitrary nor capricious. The prayer for attorney fees is denied. LSA-C.C.P. 1511.
“For the above and foregoing reasons, the exception of res judicata is sustained, dismissing plaintiff’s suit. The prayer for attorney’s fee is denied. All costs of these proceedings are to be paid by plaintiff.”

The judgment of the trial court is affirmed. Costs .of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

      . Louisiana Civil Code provides as follows with reference to a transaction or compromise:
      “Article 3071 A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner in which they agree on, and which every one of them prefers to the hope of gaming, balanced by the danger of losing.
      “This contract must be reduced into writing. “Article 3073 Transactions regulate only the differences which appear clearly to be com-pr-hended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them. .
      “Article 3078 Transactions have, between the interested parties, a force equal to the authority of things adjudged. . . . ”

      . LSA-C.C. 2286 “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”


text:
    Mason QUINNEY, Jr., Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al., Defendants-Appellees.
    No. 6063.
    Court of Appeal of Louisiana, Third Circuit.
    April 22, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused June 10, 1977.
    William E. Skye, Alexandria, for plaintiff-appellant.

      Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ON MOTION TO DISMISS

ROGERS, Judge.

The defendants-appellees, Mrs. Lessie T. Brister, Joe E. Brister, Motor Parts & Bearing Supply Company, Inc., and United States Fidelity & Guaranty Insurance Company, move to dismiss the devolutive appeal of the plaintiff-appellant, Mason Quinney, Jr., on the grounds that the plaintiff’s appeal was not timely perfected.

We dismiss the plaintiff-appellant’s appeal.

Formal judgment was signed and rendered in this case on December 10, 1976. Notice of judgment was mailed by the clerk on the same date, and no application for a new trial or rehearing was ever filed by either party.

On March 2,1977, the plaintiff moved for and obtained an order for his devolutive appeal to this court. Plaintiff posted his appeal bond the next day, March 3, 1977.

Act 201 of 1976, amending Art. 2087 of the Louisiana Code of Civil Procedure, changed the delay for applying for a devol-utive appeal from 90 days to 60 days. The act became effective October 1, 1976.

The plaintiff-appellee concedes that his devolutive appeal was not perfected until more than 60 days after the expiration date for applying for a new trial, but argues that Act 201 of 1976, amending Art. 2087 of the Code of Civil Procedure, does not apply to civil proceedings filed prior to the effective date of the act, and since his suit was filed on January 14, 1975, he had 90 days in which to perfect a devolutive appeal in this case.

We disagree. Art. 2087, and its amendment, Act 201 of 1976, are procedural legislation, and it is Hornbook law that procedural statutes may be changed by the legislature at anytime, and that in the absence of contrary language, the change would be equally applicable to pending as well as subsequent litigation. Hammond Asphalt Co., Inc. v. Joiner, 270 So.2d 244 (La.App. 1 Cir. 1972); Manuel v. Carolina Casualty Insurance, 136 So.2d 275 (La.App. 3 Cir. 1961). Act 201 of 1976 contains no language limiting its effect to prospective litigation, and therefore, plaintiff’s appeal being taken after the effective date of the act, same is governed by the provisions thereof.

For the reasons assigned, the appeal of the plaintiff-appellee is hereby dismissed.

APPEAL DISMISSED.


text:
    Issac YOUNG v. STATE of Mississippi.
    No. 49581.
    Supreme Court of Mississippi.
    April 27, 1977.
    Fraiser & Burgoon, John J. Fraiser, Jr., Albert Lee Abraham, Jr., Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; Arthur B. Clark, Judge.

Before INZER, P. J., and SUGG and LEE, JJ.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ.


text:
    Joe E. WOOD v. STATE of Mississippi.
    No. 48672.
    Supreme Court of Mississippi.
    April 27, 1977.
    Jimmy D. Shelton, Leroy Henderson, Jr., Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Vera Madel Speakes and John C. Ellis, Sp. Asst. Attys. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Itawamba County; L. T. Senter, Jr., Judge.

Motion to hold bond forfeiture in abeyance sustained.

ALL JJ. concur.


text:
    CLARK HOUSE MOVERS, INC. v. Hattie M. BUSBY.
    No. 49037.
    Supreme Court of Mississippi.
    April 27, 1977.
    Sekul, Hornsby & Wallace, Thomas L. Wallace, Biloxi, for appellant.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

REVERSED AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER and LEE, JJ., concur.


text:
    Norman MALLOYD v. STATE of Mississippi.
    No. 49641.
    Supreme Court of Mississippi.
    April 27, 1977.
   Appeal from Circuit Court, Grenada County; Marshall Perry, Judge.

Leon E. Provine, Grenada, for appellant.

A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Sidney SHURDEN v. Robert Ann SHURDEN.
    No. 49326.
    Supreme Court of Mississippi.
    April 27, 1977.
    Townsend, McWilliams & Holladay, Robert Lawson Holladay, Drew, for appellant.
    John L. Hatcher, Cleveland, for appellee.
   Appeal from Chancery Court, Sunflower County; Ernest Kellner, Chancellor.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


author: PATTERSON, Presiding Justice,

text:
    ALLSTATE INSURANCE COMPANY v. David L. ESTES.
    No. 49381.
    Supreme Court of Mississippi.
    April 27, 1977.
    Bacon & Smith, William A. Bacon, Jackson, for appellant.
    Williams, Rogers, Gunter & Fulgham, Guy N. Rogers, Jackson, for appellee.

      Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Presiding Justice,

for the Court:

This appeal is from the Circuit Court of the First Judicial District of Hinds County wherein David L. Estes, the appellee, was awarded possession of an automobile. It involves a question of “title” under Mississippi Code Annotated section 75-2-403 (1972).

The evidence discloses that Estes purchased a 1974 Chevrolet Caprice Sport Coupe from James E. Howard, ostensibly an individual in the automobile business. Further proof revealed the car to have been stolen from a Chevrolet dealership in Florida and after a circuitous route, the sport coupe eventually came to rest in Hinds County. Estes was unquestionably a good faith purchaser.

Section 75-2-403 of the Mississippi Uniform Commercial Code, as relevant, provides:

(1) A purchaser of goods acquires all title which his transferor had or had power to transfer . . . . A person with voidable title has power to transfer a good title to a good faith purchaser for value. .

Appellee contends that the facially valid Mississippi title, ultimately based upon an Alabama tag receipt issued pursuant to a forged bill of sale, resulted in “voidable title” in Howard with its concomitant power. The appellant, Allstate Insurance Company, who obtained valid title subsequent to paying the Florida dealer’s loss, contends its ownership was unaffected by the intervening good faith “equities” of Estes.

The dictate of Section 75-2-403 is clear. Regardless of the number of transactions, one cannot remove himself from the confines of the rule: A purchaser can take only those rights which his transferor has in the subject goods; a thief has neither title nor the power to convey such. Gurley v. The Phoenix Ins. Co., 233 Miss. 58, 101 So.2d 101 (1958). Accordingly, title remained in Allstate and the circuit court order granting possession to Estes was erroneous.

REVERSED AND RENDERED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: GILLESPIE, Chief Justice,

text:
    Joseph William ROYALS v. STATE of Mississippi.
    No. 49608.
    Supreme Court of Mississippi.
    April 27, 1977.
    Ladner & Emil, Oscar B. Ladner, Gulf-port, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before GILLESPIE, SMITH and WALKER, JJ.
   GILLESPIE, Chief Justice,

for the Court:

Laying aside all the other questions raised and after the most painstaking study and restudy of the record, the Court is of the opinion that there is no evidence to sustain the conviction of the defendant of the crime of aggravated assault on an officer.

There were seven or eight people in the trailer when Officer Carvin entered. As he entered the trailer all of these people were sitting around a table and one of them began scuffling with Officer Carvin. Car-vin stated that he was an officer and for everyone to keep their seats. The defendant Royals got up and ran to the back of the trailer. Carvin put his gun on him and told him, “Keep your seat, I’m a police officer.” While still scuffling with another person, Officer Carvin “stuck his head” outside the door and called for his fellow officer. When “he stuck his head back inside the door,” he does not remember anything until he was on his knees with blood coming from his head. He did not hear a gun shot although he was shot and virtually scalped. Officer Carvin did not see who shot him, did not see any gun, and according to his statement, before he was shot there was a lot of shouting, screaming, running and jumping around. The State does not argue that the seven or eight people in the trailer were acting in concert and the fact that Royals got up and ran toward the rear of the trailer is not evidence that he shot Officer Carvin.

The Court feels that an injustice is resulting from the failure of the State to be able to prove who shot Officer Carvin, but there is no evidence on which this conviction can be sustained. The motion for a peremptory instruction should have been sustained. For this reason the case is reversed and defendant discharged.

REVERSED AND DEFENDANT DISCHARGED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: ALMON, Justice.

text:
    Phillip D. CASHION and Donna T. Cashion v. Timothy P. AHMADI et al.
    SC 1783.
    Supreme Court of Alabama.
    March 4, 1977.
    As Modified on Denial of Rehearing April 29, 1977.
    Irvin Grodsky, Mobile, for appellants.
    Richard L. Thiry, Mobile, for Timothy P. Ahmadi and Nettie C. Ahmadi and Vergos Realty Co.
    Ray G. Riley, Jr., for Tonsmeire, McFadden & Riley, Mobile, for Pope and Quint, Inc.
    Robert J. Russell, Montgomery, for Alabama Assn, of Realtors, amicus curiae.
   ALMON, Justice.

On September 10, 1973, Phillip and Donna Cashion, appellants, purchased a used home from Timothy and Nettie Ahmadi, appellees, through the realty firms of Pope and Quint, Inc., appellee, and Vergos Realty Company, appellee. Within a few days thereafter, Mrs. Cashion entered the home for the first time after the purchase and discovered approximately 1% inches of water in the basement; the “basement” consisted of two finished bedrooms, an unfinished room, an unfinished bathroom (without fixtures), and a hallway. The Cashions subsequently nioved into the house and expended funds in remodeling parts of the upstairs and in unsuccessfully trying to stop the leak or seepage in the basement. Between September, 1973, and May, 1974, when the Cashions quit making payments on the house and moved out, water seeped into the basement three or four times. The Cashions sued the owners and the realty firms contending that they are liable for the damage for not having told the Cash-ions of the problem prior to the sale. The case is before us on dismissal of some of the counts and on a grant of summary judgment in favor of appellees as to others. The summary judgment was based on depositions of Phillip and Donna Cashion, Dr. Timothy Ahmadi, Marge Mills, realtor for Pope and Quint, Frank Hicks, ex-realtor for Pope and Quint, Arthur Pope of Pope and Quint, and Gus Vergos of Vergos Realty.

Marge Mills, realtor for Pope and Quint, was initially contacted by Mrs. Cashion because of a newspaper advertisement either about the house in question or another house. The house in question had been previously listed by Pope and Quint, but at the time Marge showed it to Mrs. Cashion, it was listed under an exclusive contract with Vergos Realty and Bauer Realty (not a party to this suit). At no time did the Cashions converse directly with Gus Vergos or the Ahmadis.

The Cashions sued the appellees alleging a confidential relationship existed between themselves and the Ahmadis, Pope and Quint, and/or Vergos Realty, and because of the confidential relationship, anyone or all of the appellees had a duty to disclose that the house had a water problem which the appellees knew about. The complaint also contained allegations of misrepresentation; however, the parties stipulated that no affirmative misrepresentation occurred. The trial judge dismissed the counts based on confidential relationship, apparently on the basis that the facts alleged did not show such a relationship.

By amendment, the Cashions alleged further (1) that they employed Pope and Quint to find them a residence to purchase, that they reposed trust and confidence in Pope and Quint, that Pope and Quint knew about the water problem, and that Pope and Quint breached their obligation arising out of their confidential relationship in failing to inform the Cashions about it, and (2) that Vergos Realty, as agent for the Ahmadis negligently failed to disclose the water problem. The trial court granted a summary judgment in favor of Pope and Quint as to the first amended count, and a motion to dismiss as to the second.

The Cashions contend they should have been allowed to prove that Pope and Quint was their agent, or, alternatively, that a confidential relationship existed because of the “particular circumstances” (Tit. 7, § 109, Code of Alabama 1940, Recompiled 1958) associated with this case. The Cashions also argue that they should be allowed to prove that the appellees committed certain acts of concealment designed to fraudulently mislead; however, we see nothing in the pleadings or the record to indicate that the issue of fraudulent concealment was raised in the trial court, and we will consequently not consider it on appeal. Cox v. Howard Hall Co., 289 Ala. 35, 265 So.2d 580 (1972).

A real estate broker may be hired to find a buyer or to find a seller. In either case the broker owes a duty of faithfulness to his principal.

“A broker is a fiduciary and holds a position of trust and confidence. He is required to exercise fidelity and good faith toward his principal in all matters within the scope of his employment, and to account for all funds or property rightfully belonging to his principal. He cannot put himself in a position antagonistic to his principal’s interest, by fraudulent conduct, acting adversely to his client’s interests, or by failing to communicate information he may possess or acquire which is or may be material to his employer’s advantage, or otherwise.” 12 Am.Jur.2d, Brokers, § 84.
“As a general rule, a broker who is not a mere middleman, but is employed by a principal to act as his agent in a transaction, is bound to exercise reasonable care and skill, or the care and skill ordinarily possessed and used by other persons employed in a similar undertaking. He must exert himself with reasonable diligence in his principal’s behalf, and is bound to obtain for the latter the most advantageous bargain possible under the circumstances of the particular situation. Thus, a broker employed to sell property has the specific duty of exercising reasonable care and diligence to effect a sale to the best advantage of the principal — that is, on the best terms and at the best price possible. And whether the broker is engaged to effect a sale or a purchase, the employer is entitled to the benefit of his skill, and also his knowledge and best judgment, and it has been held that this is so even though he is rendering his services gratuitously.
“If a broker does not perform his duty, or is guilty of negligence, misconduct, or unskilfulness [sic], he not only becomes liable to his principal for the damages the latter may have sustained, but also forfeits his claim to compensation. He is liable to his principal for all damages which flow naturally from his negligence and which are a direct consequence thereof.” 12 Am.Jur.2d, Brokers, § 96.

See Alford v. Creagh, 7 Ala.App. 358, 62 So. 254 (1913); Alexander v. Smith, 180 Ala. 541, 61 So. 68 (1913).

The more common situation appears to be where the broker is hired by the seller to find a buyer for a percentage of the sale price, to be paid by the seller. From there, the house may be placed on a multiple listing, whereupon any number of realty firms may partake in the commission by finding a buyer.

In the instant case the house was listed under an exclusive contract with Vergos and Bauer Realties. However, Pope and Quint was allowed 50% of the commission for finding a buyer. In essence, the sale was treated as if it were a multiple listing. Marge Mills explained the procedure as follows:

“A. No. Nothing is oral. All right. Here is how it operates. Let’s assume that the listed price was fifty thousand dollars and the Cashions and I write an offer for the Cashions for forty-two. I give this to Dirk [Dirk Trusty, Sales Manager for Pope and Quint]. He calls Gus Vergos, tells him he has an offer. ‘Shall I bring it to you or will you come pick it up?’ Now, I don’t know what happened. They get together; then Vergos has a certain length of time to get to his customer and decide if they are going to counter or if they are going to accept. There was obviously no counter on this. All I’m going by is the paperwork. So, evidently, Mr. Vergos accepted the offer and called Dirk Trusty back and told him that the offer was accepted and brought him, signed by Doctor Ahmadi, an accepted offer. Now, this is our usual procedure. There is nothing unusual about this at all.”

(This quotation from Marge Mills’ deposition is given for illustrative purposes rather than as a fact to be attached to this case as there was some implication that Arthur Pope dealt directly with Dr. Ahmadi.)

The question raised by the Cashions is where did Pope and Quint’s duty of faithfulness lie in this sale, with the sellers, the Ahmadis, or the buyers, the Cashions. Interestingly, Marge Mills, Frank Hicks (ex-broker for Pope and Quint), and Gus Vergos all acknowledged that if they were aware of a material defect in a residence they were selling, they should and would inform the buyer of the defect. (The question of whether there is a scintilla of evidence that any of the appellees knew about the water problem is addressed later.)

The Cashions would prefer to have us follow the California case of Lingsch v. Savage, 213 Cal.App.2d 729, 29 Cal.Rptr. 201, 8 A.L.R.3d 537 (1963), where the court held that if a broker, even if he is an agent for the seller, has knowledge of material defects and such defects are not known to or observable by the buyers, the broker is under a duty to disclose such defects and is liable for damages caused by nondisclosure; such a duty is also placed on the seller. However, we decline to follow Lingsch. In our opinion the doctrine of caveat emptor, while rightfully being eroded in many areas, should remain alive and well in the situation before us — where the alleged defect does not affect health or safety.

The Cashions contend that Pope and Quint was their agent and that it violated its duty of faithfulness to them in not disclosing the water problem. A broker, as well as any agent, may be an agent for both parties in a sale transaction; however, he opens himself to possible liability when he does so without full disclosure to both parties. As Judge De Graffenried stated in Minto v. Moore, 1 Ala.App. 556, 564, 55 So. 542, 544 (1911), this is merely an expression of the ancient principle that “a servant cannot serve two masters.” Any broker, though especially a broker working with a multiple listing in which he has to work through another broker who deals directly with the seller, often finds himself in the precarious situation of seeking the trust and confidence of the prospective buyer while still claiming faithfulness to the seller. He cannot have it both ways.

In the case before us the Cashions claim that Marge Mills suggested to them that the ¿sking price of the house was too high, and that they should submit a lower bid. While Mills denies the allegation, even she admits in her deposition that she suggested to Gus Vergos that the price was too high. See Alford v. Creagh, supra. Furthermore, while she contends that the Cashions were her customers and that the Ahmadis were her clients, she queried to the attorney deposing her, “Who represented Dr. Ahmadi if he [Gus Vergos] didn’t?” in response to the question of whether Gus Vergos would normally attend the closing.

Whether one is an agent of another is normally a question of fact to be determined by a jury. Birmingham News Co. v. Birmingham Printing Co., 213 Ala. 256, 104 So. 506 (1925); 16 Ala.Dig., Principal & Agent, @=>24. We believe that whether the total circumstances of this case require the conclusion that Pope and Quint, via their agent, Marge Mills, was an agent of Cashions, regardless of whether it may have been also an agent of the sellers, the Ahmadis, is a question for the jury under our scintilla evidence rule.

As to the question of whether Pope and Quint knew about the water problem, we note that while Marge Mills, Frank Hicks (ex-real estate agent for Pope and Quint) and Arthur Pope deny such knowledge, Dr. Ahmadi was sure that he had informed Hicks about the problem, though what seepage problem existed while he owned the house had been remedied several years prior to the sale to the Cashions. Dr. Ahmadi also stated that dampness in the basement was the reason the price of the house was reduced, though such is denied by the realtors. Again, the scintilla evidence rule makes disposal of the case based on this question premature.

The judgment in this cause is affirmed as to the Ahmadis and Vergos Realty Company and reversed as to Pope and Quint, Inc.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

BLOODWORTH, JONES and EMBRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.

OPINION CORRECTED; APPLICATION FOR REHEARING OVERRULED.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.