text:
    James E. LaCROIX et al., Plaintiffs-Appellees, v. TRAVELERS INDEMNITY COMPANY et al., Defendants-Appellants.
    No. 12906.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.

      Watson, Murchison, Crews & Arthur by R. Raymond Arthur, Natchitoches, for defendants-appellants.
    Gerard F. Thomas, Jr., Natchitoches, for plaintiffs-appellees.
    Before BOLIN, PRICE and MARVIN, JJ-
   BOLIN, Judge.

The Town of Winnfield and Travelers Insurance Company appeal from a judgment rendered against them for damages allegedly sustained by plaintiffs as a result of the backup of sewage into their home on March 16, 1973. LaCroix has filed a motion to dismiss the appeal and, alternatively, has answered the appeal asking an increase in the award. We affirm the judgment as to liability and amend the judgment to eliminate the award for damages for diminution of the value of the property.

Prior to our discussion of the issues on appeal we address the question raised by the motion to dismiss. The basis for the motion was that Judge Hiram J. Wright, who would ordinarily have heard this trial, was expected to be called as a witness and he therefore recused himself. After the trial judge had granted the appeal, the clerk of court filed a motion for extension of time within which to prepare and file the record on appeal. This extension of time was granted and signed by Judge Wright, the recused judge. Plaintiffs contend that under the law, as enunciated in State v. Price, 274 So.2d 194 (La.1973), any action taken by the judge who has been recused in the case is an absolute nullity. It is further contended the extension, being a nullity, was ineffective; that the time for filing the record had lapsed and the appeal is not before this court; that the defect has become a jurisdictional matter under Louisiana Code of Civil Procedure Article 2162 and this court has no jurisdiction over the appeal.

In opposition to the motion to dismiss defendants point to the following provisions of Louisiana Code of Civil Procedure:

Art. 2127.
The clerk of the trial court shall have the duty of preparing the record on appeal. He shall cause it to be lodged with the appellate court on or before the return day or any extension thereof, upon the timely payment to him by the appellant of all fees due in connection with the appeal, including the filing fee required by the appellate court to lodge the appeal. Failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal. (Emphasis supplied)
Art. 2161.
An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.

We find State v. Price, supra, inapplicable to the instant case since it is not shown appellants were instrumental in procuring the extension from the recused judge nor was it shown appellants caused any delay in the preparation and timely filing of the record.

Under the clear language of C.C.P. Articles 2127 and 2161, appellants are not to be prejudiced by failure of the clerk to obtain a lawful extension of time. See Wischer v. Madison Realty Co., 242 La. 334, 136 So.2d 62, 66 (1961); Desselle v. Petrossi, 203 So.2d 567 (La.App. 4th Cir. 1967). We deny the motion to dismiss.

The record establishes that at about 2:30 a. m., on the night of the occurrence giving rise to this litigation, Mrs. LaCroix notified the mayor that the sewage was backing up through the drains in their shower, bathtubs and toilets and flowing into the bedrooms and other parts of the house. An employee of the town was dispatched to the area and this employee determined the pump at the “lift station” was “off”. When this pump was activated the flow of sewage began to recede. Plaintiffs spent the remainder of the night and the next day mopping up the effluence and attempting to rid their home of the stench.

Plaintiffs testified it was necessary to tear up the carpets in some of the rooms and to move the furniture into other rooms which had not been flooded in order to sleep and eat. Both plaintiffs testified the odor was horrible and that the children, who aided in the cleanup, wanted their parents to move to Natchitoches.

The trial judge stated his findings of fact and his reasons for judgment in a written opinion. He found the system to carry off sewage was installed by the town in 1968 [actually 1958] and residents in plaintiffs’ neighborhood were required to connect their plumbing to the municipally owned system, for which they paid a monthly service charge. Prior to this litigation plaintiffs’ home had been damaged by a similar incident while occupied by the previous owner. Judge Wright, whose home was located across the street from plaintiffs, had earlier experienced the same problem with sewage damage. The trial judge further found the difficulty in the instant case was due to the failure of the pump at the lift station which caused an accumulation of waste to build up and back into the drains of plaintiffs’ home, and that at the time of the flooding the town’s system was unimpaired by any action of plaintiffs.

The court concluded the municipality was negligent in the discharge of its obligation to operate this portion of its sewerage system in a prudent manner; that a simple inspection would have revealed the inoperative condition of the switch; and that the whole incident would have been avoided by the act of manually turning on the pump. He concluded liability had been created under Louisiana Civil Code Articles 667 and 2317, and rendered judgment in solido against defendants and in favor of James LaCroix for $5,622.50, representing $750 for mental anguish, inconvenience and disruption of home life; $862.50 for actual damage to the interior of the house; and $4,000 for diminution in the value of the property. Additionally, the court awarded $750 each to Mrs. LaCroix and the four children of plaintiffs for mental anguish, inconvenience and disruption of family life; fixed the fees of the appraiser at $316.50; taxed this amount as costs and assessed all costs against defendants in solido.

Appellants assign as error the trial court’s finding (1) that the Town of Winn-field was negligent in its operation of the sewer system; (2) in failing to find plaintiff LaCroix contributorily negligent for his actions in interfering with the overflow line; (3) in failing to properly interpret and apply to this case the holdings in Sharon v. Connecticut Fire Insurance Co., 270 So.2d 900 (La.App. 1st Cir. 1972), writ denied, and Carr v. City of Baton Rouge, 314 So.2d 527 (La.App. 1st Cir. 1975), writs denied; (4) in allowing $4,000 diminution of value for the home when such was not supported by the evidence; (5) in awarding recovery for personal damages; (6) in awarding personal damages to the children; and (7) in awarding replacement cost rather than actual cash value for the specific damages alleged.

We shall examine the alleged errors in the order stated. The lower court expressed the view the municipality was negligent in discharge of its obligation to operate the pump in the lift stations of its sewerage system in a prudent manner so as to avoid the flooding which occurred. Although we find these facts do not support a finding of negligence, we do find the trial judge properly found the plaintiffs suffered damages which were caused by the sewer backing up. Further, the evidence clearly warrants imposition of liability on the basis of violation of La.C.C. Art. 667 as interpreted in Sharon v. Connecticut Fire Insurance Company and Carr v. City of Baton Rouge, supra.

Applications for writs were denied in each of the above cited cases, both of which involved damages resulting from the backing up of sewage from municipally owned sewer systems. In each case the court resolved the issue of liability on the basis of the duty imposed by C.C. Art. 667, which provides:

Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.

In Carr v. City of Baton Rouge, supra, [decided after the lower court judgment in the case before us], the court found: the responsibility for the operation and maintenance of the sewer system devolved upon the municipality which was the “proprietor”; the “works” (the main sewer line) was an activity of the proprietor; plaintiffs were “neighbors” who suffered damage caused by the malfunctioning of the “proprietor’s” sewer system; and plaintiffs were entitled to recover for damage inflicted. Under the facts, the court concluded that even in the absence of negligence on the part of the town, plaintiffs were entitled to recover under Article 667. See Lombard v. Sewerage amd Water Board of New Orleans, 284 So.2d 905 (La.1973).

We find the foregoing language appropriately describes the district court decision as to liability in the instant case, which is amply supported by the record. The record likewise supports the finding that no action on the part of plaintiffs interfered with the flow line or caused the sewage to back up.

The most perplexing problem confronting us is whether the diminution in the property value, for which the lower court awarded $4,000, is a recoverable element of damages. We have been cited to no cases nor has independent research revealed any allowing recovery for this item under C.C. Art. 667 where, as here, the malfunctioning “works” have allegedly resulted in diminution in value in addition to physical damage to property. We have examined the divergent views expressed in the current jurisprudence and find the questions surrounding the application of C.C. Art. 667 are central to the controversy which is yet to be settled. See Yiannopoulos, Violations of the Obligations of Vicinage: Remedies Under Articles 667 and 669, 34 La.L.Rev. 475, 512; The Work of the Louisiana Appellate Courts for the 1974— 1975 Term — Torts, 34 La.L.Rev. 335, 404 (1976).

The most recent pronouncement of the Louisiana Supreme Court is found in Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975). The lower court and the court of appeal had upheld an exception of no cause of action which in effect held that plaintiff was not entitled to recover for depreciation of land value resulting from lawful activity conducted by defendant pipeline company in constructing a pipeline on adjoining land within 15 feet of plaintiff’s property. [296 So.2d 345 (La.App. 4th Cir. 1975)]. The Supreme Court reversed and overruled the exception. On rehearing the court rendered the following per curiam:

The application for rehearing argues that Jeansonne v. Cox, 233 La. 251, 96 So.2d 557 (1957) is contrary to our holding in this case. Apparently, defendants misunderstand the consequences of our opinion. We have not held that allegations of damage based upon a depreciation of land value because of ordinary constructions and activities on a neighbor’s property necessarily state a cause of action. The opinion has held that allegations that the maintenance of an ultra-hazardous construction on defendant’s servitude has caused them damage does under the factual allegation state a cause of action. We have remanded for trial on the merits to determine if the proof in support of these allegations entitles plaintiff to recovery of damages for the fault of defendant under the theory of abuse of right as expressed by La.Civil Code arts. 667 and 668.

The evidence is persuasive that if the house were placed on the market and all the facts were disclosed to a prospective buyer the sale price of the house would be less than what it would bring without the potential threat of future damage from the sewer system. 'However, we find the sewer system was not an “ultra hazardous construction” as that term is used in the Hero Lands case. In view of our appreciation of the jurisprudence with respect to an award for diminution of property value under La.C.C.' Art. 667, we find such an award is without sound legal basis and that portion of the judgment is reversed.

The trial judge found plaintiffs were entitled to personal damages caused by the disruption of the normal living pattern of the family, inconvenience and annoyance and awarded $750 for each member of the family. Mr. and Mrs. LaCroix both testified all the children assisted them in cleaning up the offensive effluence; that the entire family had to move into two rooms of the house to sleep and eat because of the obnoxious odor which lingered in the house for weeks. We find no error in this award and it is affirmed.

Defendants contend the award of $862.50, representing the cost of removing and replacing carpets in the bedrooms and vinyl tile in the kitchen, was improper and that any such award should be based on cost of replacement less depreciation. We find it was necessary to replace the carpets since the floors in the bedrooms were concrete and required carpeting to be usable, and that the damage to the floor in the kitchen made it necessary to replace that covering in order to restore that portion of the house to a livable condition. Plaintiffs are entitled to restoration of the damaged property to as near its former condition as possible without being required to use second-hand or inferior materials. See Hayward v. Carraway, 180 So.2d 758 (La.App. 1st Cir. 1965) and cases cited. The award of $862.50 for cost of restoration is affirmed.

For the reasons assigned the judgment below is amended to delete the award of $4,000 for the diminution of the value of the property. In all other respects the judgment is affirmed. Costs of this appeal are assessed equally against appellants and appellees.


source: Caselaw Access Project

author: BEER, Judge.

license: Public Domain

text:
    Robert N. SAMUELS v. FIRESTONE TIRE AND RUBBER COMPANY.
    No. 7498.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied June 30, 1976.
    Writ Granted Sept. 29, 1976.

      Mmahat, Gagliano, Duffy & Giordano, Lucas J. Giordano, Metairie, for plaintiff-appellee.
    Monroe & Lemann, Benjamin R. Slater, Jr., William J. Hamlin, Michael R. O’Keefe, III, New Orleans, for defendant-appellant.
    Before STOULIG, SCHOTT and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, Robert Samuels (hereafter, “Samuels”), sought recovery from defendant-appellant, The Firestone Tire and Rubber Company (hereafter, “Firestone”). His claim was based upon the contention that he had, as a real estate broker, produced a purchaser ready, willing and able to buy — at Firestone’s price— a piece of property offered for sale by Firestone adjacent to its facility on Veterans Highway in Jefferson Parish and had, thereby, provoked an oral commitment from Firestone to pay him a commission of $5,000 even though the proposed transaction was never consummated. From a judgment in favor of Samuels, Firestone suspensively appeals. We reverse.

In essence, this case boils down to a finding of whether or not Samuels has sustained the burden of proof which is required by Louisiana Civil Code Article 2277, which states:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

The requisites of Article 2277 as they apply in this litigation are clear cut: testimony of one credible witness and other corroborating circumstances.

Equally clear is the fact that “other corroborating circumstances” must appear al-iunde and may not have their origin in the testimony of the “credible witness.” When this record is carefully examined, it becomes apparent that the second requirement of Article 2277 has not been fulfilled by Samuels. It is barren of any testimony or evidence which can properly be categorized as acceptable proof of “other corroborating circumstances.”

Although Samuels had some exchange of correspondence and telephone discussions with a representative of Firestone relative to the possible sale of the property, that evidence is not, in any way, indicative of “other corroborating circumstances” to support his claim that a commission of $5,000 was promised to him. At best, it does no more than support a finding that Samuels was attempting, as a broker, to confect a sale between his client, Mr. J. V. O’Quinn, and Firestone. In this capacity, he first forwarded an offer of $100,000 to Firestone which they rejected. Contemporaneously with the rejection, Firestone indicated a willingness to sell for $150,000. Samuels, in behalf of his client, then offered $116,466. Firestone turned that offer down. Samuels came back again with an offer of $125,000 in behalf of O’Quinn which Firestone also rejected. After this rejection, Samuels, in behalf of O’Quinn, made an offer of $150,000 which precipitated the now controversial telephone discussion between Samuels and Firestone’s representative, Burck, as to whether or not the offer was “net” to Firestone or “gross” to Firestone, and what flat figure or percentage figure might be paid to Samuels for putting the deal together if the offer was accepted by Firestone.

Samuels seeks corroboration of his own testimony that Burck orally agreed, in that telephone conversation, to pay him a $5,000 commission by producing the testimony of his then client, J. V. O’Quinn. But the only questionable light that Mr. O’Quinn can shed on the subject is to testify that Samuels told him (O’Quinn) that Burck told him (Samuels) that Firestone had agreed to pay him the $5,000 commission. Over objection, the trial judge permitted this testimony to be introduced. We find it to be irredeemable hearsay and, further, find that it is, by its very nature, clearly from the exact same source as the testimony of Samuels, who seeks to be his own “credible witness” in attempted compliance with the requirements of Article 2277. Even when we accept Samuels as his own credible witness, there is still no “other corroborating circumstances” satisfactorily supported by the evidence. None of the documentary evidence offered by Samuels supports, in any way whatsoever, the alleged oral commission agreement except a typed “purchase offer” which Samuels, himself, prepared but which was never accepted by Firestone or, in any way, approved or ratified by them. As a matter of fact, Firestone had, orally, rejected the last O’Ouinn offer before the written proposal ever reached them. Burck, under oath, categorically denied any agreement in behalf of Firestone to pay $5,000 (or any other amount) to Samuels.

Able counsel for Samuels has, in oral argument before us, essentially abandoned the alternative contention that Samuels had a basis for claiming some commission in an amount other than $5,000. This abandonment makes good sense for we find without merit, and thus reject, any contention that Samuels might have acquired a right to some commission figure based upon custom. His petition and, most important, his proof (such as it is) deal exclusively with the factual contention that Firestone, through Burck, orally negotiated an agreement to pay him a $5,000 commission in the particular, singular circumstances of this transaction.

Burck has put Samuels’ contentions with respect to their conversation about the negotiated commission of $5,000 squarely at issue. The trial judge apparently resolved this factual controversy in Samuels’ favor thus precipitating the observation by Sam-uels’ counsel, during argument before us, to the effect that he is entirely satisfied to have the case decided by application of Louisiana Civil Code Article 2277 since the trial court had, obviously, reached the above noted factual conclusion even though there are no written reasons for judgment. However, the trial court’s resolution of the conflict of the testimony between Samuels and Burck does not fulfill the requirements of Louisiana Civil Code Article 2277 insofar as “other corroborating circumstances” is concerned. It does, we agree, constitute (in the absence of manifest error) Samuels as a “credible witness” in his own behalf and, therefore, fulfills the first requirement of the codal article. Furthermore, we find no manifest error in this aspect of the trial court’s judgment. However, we do, also, find the record barren of any credible evidence to support the additional critical requirement of “other corroborating circumstances.”

The difference between the order of proof necessary in controversies involving less than $500 and more than $500 is obvious and basic. “Competent evidence” is all that is needed in the first instance. But, in the second instance, the requisite proof is far more stringent. The reason for this distinction is as apparent as the distinction itself. Larger amounts in controversy require clearer and more likely proof. This requirement is consistent with general business procedures and is obviously based on the common sense determination that transactions with significant fiscal implications should require greater factual validation.

The judgment of the Civil District Court for the Parish of Orleans is reversed and judgment is now rendered in favor of The Firestone Tire and Rubber Company and against Robert Samuels, dismissing plaintiff’s suit at his costs.

REVERSED AND RENDERED.


author: SCHOTT, Judge. BEER, Judge

text:
    Mary Louise Edwards JORDAN v. LIFE GENERAL SECURITY INSURANCE COMPANY.
    No. 7474.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearings Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.

      Morphy, Holbrook & Faulkner, Steven K. Faulkner, Jr., New Orleans, for plaintiff-appellee.
    Robert McComiskey, New Orleans, for defendant-appellant.
    Before STOULIG, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Defendant has appealed from a $10,000 judgment in favor of plaintiff as the beneficiary of a life insurance policy for that amount on her deceased husband. The policy was originally issued on June 1, 1972, and was reinstated on May 23, 1973. The insured died on December 23, 1973. Defendant resisted the claim on allegations that the decedent made representations in his application and reapplication which were false and known by him to be false, they were material and were relied upon by defendant, and had it not been for such misrepresentations the defendant would not have issued the policy.

In his original application on April 10, 1972, decedent answered the following questions in the negative:

“Have you or any family member to be covered ever had cancer, heart trouble, stroke, diabetes, high blood pressure, mental condition, alchoholism, drug addition, tuberculosis, nephritis? “In the past 5 years, have you or any family member to be covered received medical attention for any disease, injury, physical or mental condition ?”

In his reapplication on May 23, 1973, decedent answered the following question in the negative:

“Has anyone covered, or to be covered, under this policy ever had any illness or injury, treatment by physician, deformity, contagious disease, impairment of health, received any disability benefits in the last S years, or is anyone now pregnant?”

The evidence showed that on December 8, 1970, plaintiff had consulted a dermatologist in connection with a mole on his left scapula. The doctor thought the mole was malignant and removed it. It was later confirmed to be a malignant melanoma. Three days later the dermatologist did a wider excision which required local anesthesia and involved 24 sutures for closure. The sutures were removed on two followup visits. A chest X-ray was taken and was negative as to whether matastasis had occurred in the soft tissue or bone in the immediate area of the chest. On January 21, 1971, the physician mailed decedent a completed hospitalization claim form which contained the following entry:

“1) Maligant melanoma — left scapular area 12 cm. sutures — Wide excision under local anesthesia and biopsy.”

The dermatologist gave the following testimony relative to conversations he had with decedent and his wife in December 1970, and January 1971: He told decedent that he had a malignancy and felt that decedent knew “malignancy” meant cancer. He told plaintiff that he thought all of the tumor was removed, but because this disease had a bad prognosis in general any change of color in decedent’s skin should be investigated without delay.

Decedent’s family physician, Dr. William J. Johnson, testified: He saw decedent six times in the five years previous to April 10, 1972. He prescribed anti-hypertensive drugs from time to time and probably told him the reason for the prescription was that his blood pressure was somewhat elevated. As early as February, 1964, Dr. Johnson had been prescribing a mild hypertensive drug. On one visit on March 29, 1972, just twelve days before the original application was made, decedent was complaining about low back pain. On March 2, 1973, decedent was found to have slightly elevated blood pressure on a visit to his doctor.

Two days before his death, decedent was admitted to the hospital by Dr. Johnson, who stated in the admit note, “the chief complaint is aching, funny, then passed out. Patient had been under observation and treatment for skeleto-metastasis, dorsal spine, presumably from a malignant melanoma excised from left scapula region two years ago.” The death certificate showed the immediate cause of death to be “metastatic disease cerebrum due to, or as a consequence of: malignant melanoma, with generalized metastases.” Dr. Johnson testified that on the occasions when he saw decedent there was never any discussion or concern expressed about the removal of the melanoma and the possibility of decedent’s having cancer, until an admittance to the hospital in July or August of 1973 when he told plaintiff that her husband had cancer.

Representatives of the insurance company testified that the policy would not have been issued if they had known about decedent’s medical history.

The trial judge gave the following reasons for his judgment in favor of plaintiff :

“The crux of the legal issue is whether the representations made by the insured decedent were false, that said misrepresentations were material to the risk and whether they were made with the intent to deceive, (emphasis added) See Stoma v. Prudential Insurance Company of Am., (La.App.1973) 281 So.2d 871; LSA R.S. 22:619 A & B.
“The burden, of course, is upon the insurer alleging said defense to prove all elements thereof. Admittedly, the proof is difficult and must be circumstantial at best in view of the inability of the insured to appear. Fraud or deceit are never presumed and require substantial proof. In the instant case, the Court is satisfied that the defendant has proven the first two requirements for a defense and equally satisfied that defendant has failed to carry its burden in establishing the third — i.e. the intent to deceive. This conclusion is reached after a full consideration of the testimony as it relates to the character and work history of the decedent. The Court further finds that the testimony was inconclusive to establish the decedent’s absolute and unquestionable knowledge of his medical problems.”

The trial judge placed specific reliance upon the Stoma case from the Third Circuit. While we would not be bound by this decision, we are bound by Gay v. United Benefit Life Insurance Company, 233 La. 226, 96 So.2d 497 (1957) which was cited and followed in Stoma. In the Gay case the Supreme Court last had occasion to interpret the provisions of LSA-R.S. 22:619(B) which provides as follows:

“In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The" falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.” (Emphasis supplied)

The Supreme Court’s interpretation of the emphasized portion of the statute was:

“ . . . that in order to vitiate a policy a misstatement must have been made fraudulently or with the intent to deceive, — that is (or), knowing it to be untrue and believing it to be material to the risk (or of such nature that it would be only reasonable to assume that he must have believed that it was material)

With this interpretation, the Supreme Court has substituted the word “and” for the word “or” in the statute. While we do not agree with this interpretation we are nevertheless bound by it in deciding the instant case.

However, we have concluded that the facts and circumstances of this record are sufficient to prove that decedent did have actual intent to deceive when he falsely answered the question about his health.

We are not operating in the realm of credibility calls and findings of physical facts by a trial judge. Our problem is to find a dead man’s intent which can only be determined from surrounding circumstances at the time he made the misrepresentations. Because the trial judge was in no better position to draw inferences of decedent’s intent from the facts than we are, this case is not one which lends itself to the typical application of the manifest error rule.

The issue of the decedent’s intent to deceive in his application and reapplication for insurance must be resolved based upon (1) the finding that there was misrepresentation of fact and (2) the materiality and significance of the misrepresentation as it relates to the acceptance of the risk or the hazard assumed by the insurer.

It is incomprehensible that anyone could have received the regimen of medical treatment administered to the decedent and blandly deny having “received medical attention for any . . . physical . . . condition” without intending to deceive. It is illogical to conclude that decedent had no intention to deceive when he denied having ever had cancer or high blood pressure despite the extensive surgery for the malignant melanoma, the consistent treatment for high blood pressure, the conversations the two physicians had with him and his wife concerning his condition, and the dermatologist’s testimony that decedent knew malignancy meant cancer.

It is significant that plaintiff admitted that she filled out the original application and her hsuband read it. Surely she was acting as decedent’s agent at the time and she had the benefit of the dermatologist’s warning that skin cancer had a bad prognosis so that she should be vigilant regarding the possibility of a recurrence. As the beneficiary she would benefit by the issuance of the policy in the event of her husband’s death.

Finally, there is the fact, not heretofore mentioned, that decedent on his original application gave his weight as 220 pounds when only twelve days previously he weighed 253 pounds in Dr. Johnson’s office. It would be unusual for any person to understate his weight to such an extent inadvertently, but this is particularly significant when considered in the light of Dr. Johnson’s testimony that as early as 1964 he was prescribing for decedent a drug called tenuate, which the doctor described as an appetite suppressant.

Having concluded that defendant’s evidence was sufficient to establish its defense under R.S. 22:619(B) and even under the jurisprudence emanating from Gay v. United Benefit Life Insurance Company, supra, we reverse the judgment of the trial court.

Accordingly, there is judgment in favor of defendant, Life General Security Insurance Company and against plaintiff, Mary Louise Edwards Jordan, dismissing her suit at her cost.

REVERSED AND RENDERED.

BEER, J., concurs with written reasons.

BEER, Judge

(concurs).

I am in full agreement with the majority opinion. I wish only to make this additional observation:

The trial court’s finding that the decedent did not intentionally seek to deceive (with which we do not agree) is only understandable when viewed in light of the burden that one is required to carry in order to prove such intent.

The decedent’s incorrect and untrue re- ' sponses materially affected the acceptance of the risk. True and correct answers to certain critical questions would have resulted in outright rejection of the application. Thus, a plain and undistorted juxtaposing of LSA-R.S. 22:619(B) to the undisputed facts of this case would, were it not for Gay v. United Benefit Life Insurance Company, supra, require dismissal of plaintiff’s claim without the necessity to adjudicate the nebulous issue of decedent’s intent.


author: SCHOTT, Judge.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION and Mahlon R. Mclllwain v. GENERAL ELECTRIC COMPANY and ABC Corporation.
    Nos. 7466, 7467.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Law Office of Emile L. Turner, Jr., Emile L. Turner, Jr., New Orleans, and Mouton, Roy, Carmouche, Hailey, Bivins & McNamara, James W. Hailey, Jr., Lafayette, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for defendant-appellee General Electric Corp.
    Before STOULIG, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiffs, Mahlon R. Mclllwain, his sub-rogated insurer United Services Automobile Association, and his landlord’s subro-gated insurer Republic Underwriters Insurance Company, have appealed from judgments dismissing their claims for damages resulting from a fire which occurred on July 14, 1972, in Mclllwain’s apartment at 4719 West Metairie Avenue in Metairie, Louisiana. Among that apartment’s furnishings were certain kitchen appliances, including an electric range, a refrigerator-freezer, a dishwasher, and a toaster oven manufactured by defendant General Electric Company. Plaintiffs assert that this latter appliance was defective and caused the fire.

The fire occurred in the morning after Mclllwain and his wife had left for work and while the apartment was unoccupied. Soon after arriving at his office, Mc-lllwain received a telephone call informing him that a fire had occurred. It was soon extinguished by the local fire department. The damage was concentrated in the kitchen where, according to expert testimony at the trial on the merits, the fire originated.

In dismissing plaintiffs’ claim the trial judge said: “The court cannot conclude, from the testimony, that the sued-on General Electric product caused or contributed to the fire.” The sole issue on appeal is whether the evidence compels a different conclusion.

Plaintiffs at first rely on the doctrine of res ipsa loquitur to establish defendant’s liability. For that doctrine to apply plaintiffs must establish by a preponderance of the evidence that defendant’s negligence was the cause of the harm suffered. It may not be applied unless circumstances reasonably exclude every other cause of the accident except those attributable to defendant’s negligence. Lutheran Church of the Good Shepherd v. Canfield, 233 So.2d 331 (La.App. 1st Cir. 1970).

While plaintiffs produced evidence that the toaster oven was defective and caused the fire other evidence tended to show that the fire originated in a Gibson refrigerator-freezer or in an outlet box or in certain electric wires. Since these other causes were not reasonably excluded the doctrine of res ipso loquitur is inapplicable.

Plaintiffs alternatively contend that they proved the presence of the defect and causation by a preponderance of the evidence so as to warrant a reversal of the trial court. We disagree.

There was a hopeless conflict in the testimony of several expert witnesses as to whether or not the appliance demonstrated a defect in its solenoid in tests made after the fire, whether or not the appliance could conceivably generate enough exterior heat to ignite a fire, whether the fire started from inside or outside of the appliance or if it started inside of the Gibson refrigerator-freezer. The trial judge may have justifiably regarded plaintiffs’ theory as sheer speculation in the light of these conflicts.

Another shortcoming in plaintiffs’ case stems from the following requirements recently reiterated in Federal Insurance Company v. Cinnater, 305 So.2d 720 (La.App. 4th Cir. 1974):

“However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.”

Even assuming that the fire originated inside of the appliance there is no evidence that the fire was a sequel to the appliance’s normal use. Quite to the contrary; the Mclllwains had not intentionally operated the appliance since two days previous to the fire and the most believable theory as to how the appliance’s on button or switch was depressed was that one of the Mc-lllwains inadvertently put a teakettle on the switch, keeping its door closed, not later than the night before the fire with the result that the machine had been heating up and perhaps burning out some of its own parts for hours before they left the premises on the morning of the fire. This can hardly be classified as a “normal use” of the appliance which is a necessary element in the proof that it was defective. We hasten to add that one of defendant’s experts reasonably supported a firm opinion that no matter how long the appliance was left on it physically could not generate the heat required to ignite this fire.

Finding no error in the trial court’s conclusion, we affirm the judgments appealed from at plaintiffs’ costs.

AFFIRMED.


text:
    TERMPLAN MID-CITY, INC. v. Henry F. LAUGHLIN, Sr.
    No. 7475.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Wilson F. Shoughrue, Jr., New Orleans, for plaintiff-appellee.
    James W. Blackman, New Orleans, for defendant-appellant.
    Before STOULIG, SCHOTT and BEER, JJ.
   BEER, Judge.

Defendant-appellant, Laughlin, defaulted on a promissory note in favor of plaintiff-appellee, Termplan. Suit for the balance due on the note (which contained an acceleration clause) was instituted by Termplan. Laughlin answered, praying for double the amount of the finance charge as a set-off and cited, in support, the Consumer Credit Protection Act, 15 U.S.C.A. § 1601, et seq., and the regulations adopted thereto, published at 12 CFR 226.1 et seq., commonly referred to as “Regulation Z.” The Second City Court rendered judgment in Termplan’s favor and rejected all contentions of Laughlin, who now appeals.

Laughlin, through counsel, admits nonpayment of the note. Furthermore, his claim for double the amount of the finance charge would have prescribed under Section 1640(e), but he contends that LSA-C.C.P. Article 424 provides entitlement to plead the set-off allowed by Section 1640(a)(2)(A). Having thus dealt with the issue of prescription, Laughlin contends that Termplan’s disclosure statement did not fully explain the finance charge and, thus, violated 12 CFR 226.8(d)(3). Further, he contends that Termplan failed to disclose the existence of the acceleration clause contained in the note in contravention of 15 U.S.C.A. § 1639(a)(7) and 12 CFR 226.8(b)(4).

PRESCRIPTION

The Consumer Credit Protection Act arms the consumer with the right to sue the creditor for damages occasioned by the creditor’s failure to properly make those disclosures required by the Act. Had Laughlin timely initiated suit against Termplan, alleging deficiencies of its disclosure statement, he would be entitled to his day in court. However, action was not commenced within the one-year period provided for in Section 1640(e). Notwithstanding, LSA-C.C.P. Article 424 permits utilization of a prescribed right as a defensive contention. “Quae temporalia sunt ad agendum perpetua sunt ad excipiendum,” i.e. things which are temporary for the purposes of attack are permanent for the purposes of defense. See, also, Young v. Fremin-Smith, 265 So.2d 341 (La.App.4th Cir., 1972).

Thus, while Laughlin is time barred from initiating proceedings as allowed by Section 1640(e), he is, nonetheless, entitled to assert the alleged violations of the Act as a defense or partial defense. We hold that Laughlin is procedurally entitled to seek the set-off.

THE FINANCE CHARGE

Laughlin’s first contention is that the loan Disclosure Statement prepared in connection with the subject note is inadequate because it fails to disclose a “description of each amount included” in the finance charge as required by Section 226.8(d)(3) of Regulation Z which provides in relevant part:

“(d) ... In the case of a loan or extension of credit . . . the following items, as applicable, shall be disclosed :
“(d) ... (3) ... the total amount of the finance charge, with description of each amount included, using the term ‘finance charge.’ ”

In determining whether Regulation Z requires disclosure of each amount included in the finance charge where there is only one component, as in the instant matter, we look to the opinion letters of the Federal Reserve Board. Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971 (U.S.Ct.App., 5th Cir., 1974). On a point analogous to that here under consideration, the Federal Reserve Board addressed the issue of disclosure when the only element of the finance charge was an add-on charge. They concluded that:

“This is (on) the meaning of the requirement of Section 226.8(d)(3) that the creditor show the ‘total amount of the finance charge, with a description of each amount included, using the term “finance charge.” ’ . . .
“ . . . (I)t would be proper to simply disclose the dollar figure labeled as the finance charge. The requirement of disclosure of ‘each amount’ included is applicable only where the total amount of the finance charge includes more than one component. As you indicate, it would be preferable for the creditor not to obscure the clear impact of the disclosure of the ‘finance charge’ by adding additional verbiage with regard to the fact that it is an ‘add-on.’ ” Excerpt from Federal Reserve Board letter of April 25, 1973, no. 682, by Griffith L. Garwood, Advisor, 4 CCH Consumer Credit Guide, paragraph 30, 972.

In Gibson v. Family Finance Corp. of Gentilly, Inc., 404 F.Supp. 896 (E.D.La., 1975), the court, citing the above quoted excerpt, ruled that failure to disclose that the finance charge included only interest was not a violation of the lender’s duty. The Federal Reserve Board has since reiterated its original position as of November 21, 1975, when it determined that:

“A description of the amounts included in the finance charge is necessary only when the total charge includes more than one element. Therefore, where only a single type of charge comprises the finance charge, disclosure of the total dollar amount of such charge, using the term ‘finance charge,’ complies with the requirements of Sections 226.8(c)8(i) and 226.8(d)3, and there is no further requirement under those sections that the single type of charge be otherwise identified or described.” 1 CCH Consumer Credit Guide, 91 3567.05 (1975).

THE ACCELERATION CLAUSE

In Johnson v. McCrackin-Sturman Ford, Inc., 527 F.2d 257 (U.S.Ct.App., 3rd Cir., 1975), the court was “called upon to determine whether the Truth in Lending Act and Regulation Z thereunder require a creditor to disclose an acceleration clause where state law provides that the creditor must rebate the unearned [interest] portion of the finance charge.” The acceleration clause therein was similar to that presently before this court. In reversing the trial court’s decision, the court ruled that 15 U. S.C.A. § 1638(a)(9) [identical to 15 U.S. C.A. § 1639(a)(7)] and 12 CFR 226.8(b) (4) did not require disclosure of the acceleration clause. It held, in part:

“No provision of either of the sections specifically requires the disclosure of a creditor’s right to accelerate payment upon default.”

In so finding, the court observed its conclusion was “buttressed” by a Federal Reserve Board staff opinion letter interpreting 12 CFR 226.8(b) (4). See 4 CCH Consumer Credit Guide, paragraph 31, 173 (October 22, 1974).

The letter provides, in part:

“If, under the acceleration provision, a rebate is made by the creditor in accord-anee with the disclosure of the rebate provisions of Section 226.8(b)7 we believe that there is no additional ‘charge’ for late payments made by the customer and therefore no need to disclose under the provisions of Section 226.8(b)4. On the other hand, if upon acceleration of the unpaid remainder of the total of payments, the creditor does not rebate unearned finance charges in accordance with the rebate provisions disclosed in Section 226.8(b) 7, any amounts retained beyond those which would have been rebated under the disclosed rebate provisions represent a ‘charge’ which should be disclosed under Section 226.8(b)4.”

The contract in this case specifically incorporates Louisiana consumer credit law. See LSA-R.S. 9:3510, et seq. Section 3529 thereof provides for rebate of unearned interest on payment of the debt upon acceleration. This provision brings the matter at bar within the circumstances contemplated by the Federal Reserve Board ruling.

CONCLUSION

We are in accord with the expressions of the Federal Reserve Board and the views expressed in Philbeck, supra.

Accordingly, the judgment of the Second City Court for the Parish of Orleans is affirmed at appellant’s cost.

AFFIRMED.

      . 15 U.S.C.A. § 1640(e) states: “Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” The note and the acknowledgment of the disclosure statement are dated December 29, 1973. The answer to the suit on the note was filed January 28, 1975.

      . LSA-C.C.P. Article 424 provides: “A person who has a right to enforce an obligation also has a right to use his cause of action as a defense. A prescribed obligation may be used as a defense if it is incidental to, or connected with, the obligation sought to be enforced by the plaintiff.”

      . Iiaughlin’s procedural entitlement to seek the set-off under LSA-C.C.P. 424 is not, however, any extension or expansion, on our part, of the Consumer Credit Protection Act, and, if the Act itself (15 U.S.O. § 1640(h)) is determined by Federal Courts to proscribe such a proceeding, this court does not intend, by the above noted observation, to breathe new life into such a claim. In the final analysis, we defer to our brothers of the Federal Courts to make that ultimate determination.

      . The state of the law is unsettled and, at times, confusing. For example, when deciding Gibson v. Family Finance Corp. of Gentilly, Inc., supra, in September of 1975, U. S. District Judge Christenberry declined to follow the rationale of Johnson v. Associates Finance, Inc., 369 F.Supp. 1121 (S.D. Ill., 1974), which held that the failure to disclose that interest was the only component of the finance charge was a violation of Regulation Z. Yet, in Meyers v. Clearvieio Dodge Sales, Inc., 384 F.Supp. 722 (E.D.La., 1974), decided on October 31, 1974, U. S. District Judge Heebe cited Johnson, supra, with approval in connection with the applicability of Regulation Z in a related issue of disclosure involving a single component finance charge. It is also noteworthy that in Ives v. W. T. Grant Company, 522 F.2d 749 (U.S.Ct. of App., 2nd Cir., 1975), decided on July 31, 1975, the court, citing Johnson, supra, and Meyers, supra, stated:
      “Thus, defendant violated the Truth-in-Lending law by failing to identify the single element finance charge as only a time-price differential.”
      The law interpreting the acceleration clause is equally confusing. Johnson v. McCrachin-Sturman Ford, Inc., supra, reversed a state district court decision which had adjudicated a result similar to that reached by Judge Heebe in Meyers v. Clearview Dodge Sales, Inc., supra.


author: STOULIG, Judge.

text:
    FIRST NATIONAL BANK OF COMMERCE, NEW ORLEANS, Louisiana v. GALLERY APARTMENTS CORPORATION.
    No. 7462.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearings Denied June 30, 1976.

      Foley, Judell, Beck, Bewley & Landwehr, James Foley, III, New Orleans, for plaintiff-appellee.
    Garon, Brener & McNeely, Milton E. Brener, and David H. Seelig, New Orleans, for defendant-appellant.
    Before STOULIG, SCHOTT and BEER, JJ.
   STOULIG, Judge.

Plaintiff, First National Bank of Commerce (FNBC), obtained a judgment awarding $25,236.25, plus interest and attorney fees, in a suit on a promissory note and recognizing its right to enforce the provisions of one of the mortgages pledged to secure its repayment. Defendant, Gallery Apartments Corporation (Gallery), has appealed.

The note sued on was one of three originally delivered by Hilbert Loeb as partial security for a $28,500 loan in February, 1969. The Gallery note, signed by Gallery Apartments Corporation through its president Hilbert Loeb as maker, is payable to Bearer in the sum of $40,000 and is secured by a collateral mortgage on Orleans Parish real estate. The other two notes pledged included one payable to Bearer signed by Hilbert Loeb individually and a second payable to Bearer made by Jennie Apartments Corporation (Jennie) through Loeb as president. Both are $40,000 notes and are secured by collateral mortgages.

On June 1, 1969, Hilbert Loeb executed a $50,000 promissory note in favor of his former wife Marian Loeb as part of the property settlement agreement to divide the former community existing between them. It was secured by a collateral mortgage on the Jennie property in Jefferson Parish, which also was part of the mortgaged property involved in the FNBC loan-pledge transaction.

On July 1, 1969, Hilbert Loeb paid $500 of the principal on the February note and executed a renewal note for $28,000. On the reverse side of the instrument the three mortgage notes pledged were described.

On November 26, 1969, Marian Loeb proceeded via executiva in the 24th Judicial District Court for the Parish of Jefferson to seize and sell the Jennie property to satisfy her claim. Prior to sale, FNBC intervened claiming a preference under its earlier mortgage; however, its intervention was compromised by Marian Loeb’s agreement to pay the bank $7,500 to relinquish its alleged preferential claim to payment. The record fails to disclose what negotiations preceded the settlement or why the bank relinquished a preference that would have satisfied its entire claim against Loeb for a lesser consideration.

In any event, on May 26, 1971, the Jefferson Parish property pledged by Jennie Apartments was sold in the foreclosure proceedings at public auction to Marian Loeb for $220,000. The proces verbal states that after all liens and costs were paid there remained the sum of $35,332.91.

Appellant first contends the bank was obligated to satisfy its claim on the $28,000 note as a preferred creditor rather than accepting $7,500 to apply against the loan and subordinate its privilege to Mrs. Loeb, an inferior creditor. In so doing it contends the FNBC relinquished its right to payment.

Defendant cites Lindsley v. Copping to support this proposition; however, it is distinguishable. In Lindsley, the debtor had executed three separate mortgage notes which he delivered to Midtown Investment Company; Gentilly Investment Company; and Copping, Pujols and Copping, a partnership. One of the Coppings had an interest in all three firms. When the debtor made payments to Midtown and Gentilly, specifically designating these payments as such, one of the Coppings applied a part of either or both payments to the third note held by the partnership, contrary to the debtor’s instructions. The court held the payments must be applied to the debts for which they were tendered and the plea of prescription could not be defeated by the unauthorized application of the payments to the note held by Copping.

In this case FNBC did not misapply any funds voluntarily tendered to it by Hilbert Loeb. In fact there was nothing voluntary about the whole transaction. Because Loeb failed to pay his obligation, a creditor (his former wife), foreclosed. Since the property involved was one of the tracts on which the FNBC held a collateral mortgage, the bank intervened. It could have elected not to intervene and look to the balance of its security to insure repayment of the note, or it could have asserted its superior privilege in the Loeb v. Loeb foreclosure, as it did. Whatever action the bank took did not have to be submitted to Hilbert Loeb for approval. If it wished to subordinate part of its pledged collateral, it was free to do so.

Appellant next argues that in compromising its intervention in the foreclosure it not only released its claim under the Jennie mortgage, it also released Hilbert Loeb. Appellant contends: “The discharge of one solidary obligor discharges the others, unless the creditor has expressly reserved his right against the latter.”

This argument is meritless because Hilbert Loeb individually and Gallery Apartments are not solidary obligors. C.C. art. 2082 defines solidary liability as follows:

“When several persons obligate themselves to the obligee by the terms in soli-do, or use any other expressions, which clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, it is called an obligation in solido on the part of the obligors[.]”

The transaction before us is one of loan where Hilbert Loeb individually borrowed money and signed a promissory note for the sum received. As security, he pledged three negotiable instruments, two executed by separate corporations he controlled and the third by himself individually. Each mortgage secured a $40,000 note and the bank had the option of selecting whatever means was made available to it to recover its funds should the maker fail to meet his obligation on the note. There is no intent to create a solidary suretyship among those ultimately liable on the three pledged notes. C.C. art. 2093 provides an obligation in solido must be expressly stipulated if it does not result by operation of law.

Alternatively, appellant argues that Gallery was discharged after the Jennie foreclosure compromise on the theory that “ * * * a party secondarily liable on a negotiable instrument is discharged to the extent of the value of the security released by the holder.”

The flaw in this argument is that Gallery is not secondarily liable on the $28,000 note of Hilbert Loeb to FNBC. Gallery is not an endorser on the FNBC note. The liability of Gallery stems from a note it signed as maker that was unpaid after maturity and pledged as partial collateral to secure the Hilbert Loeb-FNBC loan.

In the event of default on the principal obligation by Loeb the bank could elect to exercise its rights against any and all collateral securities pledged for its payment up to the full amount of the indebtedness. However, the rights asserted by the bank could not be greater than those vested in its pledgor (the original pledgee), Hilbert Loeb.

In the cases cited by appellant the endorser, in assuming the liability as such, acted from the knowledge that something of value had been mortgaged to secure the payment of the obligation out of which the claim of the holder would first be satisfied before a demand would be made upon him. Therefore if the collateral is sold or released without the endorser’s consent he is entitled to be discharged to the extent of the value of the security released. These facts are not apposite of the instant matter since Gallery is not an endorser.

Appellant thus has failed to advance any valid theory that would exculpate it from liability because of the Marian Loeb-FNBC compromise. Even if the defendant’s contentions had merit, it would be of no avail, for under the expressed provisions of the note the bank reserved the right to release any of the securities pledged without obtaining the consent of the debtor.

For the reasons assigned the judgment appealed from is affirmed at defendant’s cost.

AFFIRMED.

      . 215 So.2d 543 (La.App. 1st Cir. 1968).

      . See Wyatt v. Buckley, 174 So. 387 (La.App.2d Cir. 1937), and cases discused therein.


author: STOULIG, Judge. LEMMON, Judge

text:
    Thomas C. FARRELL, Jr., et al. v. HODGES STOCK YARDS, INC., et al.
    No. 7305.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearings Denied June 30, 1976.
    Writs Granted Oct. 1, 1976.

      Provensal & Fitzmaurice, Sidney W. Pro-vensal, Jr., New Orleans, for plaintiffs-appellees.
    Henican, James & Cleveland, Carl W. Cleveland and A. Reed Sharpe, Jr., New Orleans, for Hodges Stock Yards, Inc., defendant-appellant.
    Curtis, Foster, Hyde & Mooney, Francis J. Mooney, Jr., New Orleans, for Louisiana Southern Railway Company, defendant-appellant.
    Monroe & Lemann, Walter J. Suthon, III, New Orleans for New Orleans Terminal Company, defendant-appellant.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Plaintiffs, Thomas C. Farrell, Jr., Joseph Merrick Jones, Susan Jones Lane and Eugenie Jones Huger, filed this suit to compel defendants, Hodges Stock Yards, Inc., Louisiana Southern Railway Company and the New Orleans Terminal Company, to remove all railroad tracks and appurtenances constructed across their property in St. Bernard Parish under two conventional servitudes which they allege have expired. Plaintiffs aver the rights-of-way, granted to permit cattlemen to move livestock to stockyards and slaughterhouses, had a dissolving condition which stipulated it would be extinguished when the trackage was no longer used for this purpose. Plaintiffs claim the tracks have not been used to service the cattle business since 1966. In the alternative, plaintiffs seek cancellation of the servitudes if defendants are not ordered to remove the tracks. Further in the alternative, should the court refuse to adjudicate the servitudes to be extinguished, they seek permission to relocate the tracks to a less burdensome area of their land.

Multiple dilatory, declinatory, and peremptory exceptions were overruled. Then defendants answered and (1) denied the occurrence of a dissolving condition and (2) alternatively, sought recognition of their right to the servitudes under the public utility unopposed usage theory jurispruden-tially created as the St. Julien doctrine. After this appeal was argued, the Supreme Court reversed the St. Julien line of cases and repudiated this extracodal mode of acquiring servitudes. The application of that result to this case will be considered later.

The trial court rendered judgment declaring the servitudes extinguished and can-celled. Defendants have appealed.

The servitudes in question cut through the middle of a large tract of property acquired by George Denegre, acting for plaintiff Thomas C. Farrell, Jr., and for Joseph Merrick Jones (since deceased, whose interest has devolved on the other three plaintiffs). The property, bounded by St. Claude Avenue, Bienvenue Street, Hernandez Street and Mehle Street, would appreciate in value if the tracks were either removed or relocated. Defendant Louisiana Southern Railway Company traces its right of servitude to a March 12, 1891 grant by Crescent City Live Stock Landing & Slaughter House Company to facilitate shipment of cattle by rail. This instrument contained a dissolving condition. We quote:

“ * * * and this grant of way shall be exclusively used for operating cattle-cars and such other rolling stock as may be required for the purposes of cattle yards and slaughter houses and attendant factories; and shall continue in full force as long as the said property of the said Crescent City Live Stock Landing & Slaughter House Company shall be used for the business for which it is now used or any other of like nature and no longer. * * * ”

Defendant New Orleans Terminal Company acquired its right to construct, operate and maintain a switch or spur track from Crescent City Live Stock Landing & Slaughter House Company on August 12, 1908 to enhance the facilities for handling livestock and products of the grantor, its attendant factories or industries. This agreement also contains a dissolution provision which reads:

“The right of way granted herein shall continue in full force and effect from the date of signing hereof as long as the property of the First Part[y] continues to be used for the business for which it is now used, or any other business of like nature, and no longer.”

When Denegre acquired from New Orleans Stock Yards, Inc. (the corporation’s name was changed later to Hodges Stock Yards, Inc.), the act recited the transfer was made subject to certain leases and reservations listed on Exhibit A entitled “RESERVATIONS.” We quote those pertaining to the railroad servitudes:

“(a) The agreement of Switch privileges granted by Crescent City Stock Yard and Slaughter House Company, Limited, and New Orleans Terminal Company, dated August 12, 1908, registered in MOB 17, Folio 158.
(c) The grant of strip of land by Crescent City Stock Yard and Slaughter House Company, Limited, et al, to the New Orleans and Western Railroad Company, as per Act before George C. Preot, Notary Public, dated October 15, 1895, registered in COB 18, Folio 461.
(d) Right-of-way, granted by the Crescent City Live Stock Landing and Slaughter House Company, to the New Orleans Gulf and Railroad Company, of the right-of-way over and across the land of said Company, as more fully shown in Act of Deposit, executed before Gustave Legar-deur, Jr., Notary Public, for the Parish of Orleans, State of Louisiana, dated March 17, 1891.
(f) The rights-of-way, servitudes and privileges established in the Act whereby the Crescent City Stock Yard and Slaughter House Company, Limited, conveyed' other properties in the same location, as per act executed before Conrad G. Collins, Notary Public, dated April 30, 1921, registered in COB 28, Folio 80.”

In 1966 plaintiffs applied unsuccessfully to the Louisiana Public Service Commission for permission to relocate the railroad tracks burdening their property. The Supreme Court affirmed this result in Denegre v. Louisiana Public Service Commission, When plaintiffs made a second attempt to improve the value of their land by removing or relocating the tracks by filing this suit, defendants urged numerous exceptions, some of which they based on the opinion in the appeal from the Public Service Commission ruling. Because they have been re-urged on this appeal, we will briefly consider them before passing to the merits.

RES JUDICATA

In essence defendants contend plaintiffs have previously litigated their rights to relocate the track and the result in that case should be res judicata to this section. To maintain this exception it must appear from the record the requisites of C.C. art. 2286 have been met. It provides:

“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.”

The object of the first suit (filed in 1966) was to obtain permission to relocate the railroad tracks to a more convenient site, and the viability of the conventional servitudes was not at issue. According to the evidence adduced in this case, the condition that plaintiffs allege caused the servitudes to be dissolved did not occur until after or during 1966. Plaintiffs’ request was rejected in the Public Service Commission case because it failed to show it was warranted by public necessity or that the relief sought would not adversely affect those served by the tracks sought to be removed. This suit has for its object the extinguishment of the servitudes through nonuser for the purposes they were dedicated. The issues are entirely different.

Johnson v. Lemons, cited by defendants, is inapposite. There the plea of res judi-cata was maintained because Johnson attempted to reurge his claim to ownership of a fractional interest in immovable property in a petitory action after the same claim, based on the same titles, had been rejected in a concursus proceeding.

The exception of res judicata was properly overruled.

NONJOINDER

Defendants urge this matter cannot be adjudicated without George Denegre, record owner of the tract, being joined as a party plaintiff. Interestingly enough, these same defendants objected to Denegre appearing as the litigant in the first suit and urged his petition should be dismissed for want of interest. To cure this objection Denegre obtained a power of attorney from the actual owners authorizing him to act on their behalf and ratifying the actions already taken. The Supreme Court maintained his right to bring the action and in footnote 1 of Denegre v. Louisiana Public Service Commission, 257 La. 503, 242 So.2d 832, 833-34 (1970), noted:

“It was developed at the hearing before the Commission that title was placed in petitioner’s name for purposes of convenience ; that he had executed a counter letter; and that the true owners of the tract at the present time are Thomas C. Farrell, Jr. and the Successions of Joseph Merrick Jones, Jr. and Eugenie Penick Jones. When this fact was discovered, the opponents to petitioner’s request moved for dismissal of his petition on the ground that he was without interest. However, subsequently, petitioner produced a power of attorney which not only authorized him to conduct these proceedings, but ratified all previous acts he had undertaken in their behalf.
“On this appeal opponents insist that their motion to dismiss should be sustained. We think the motion was properly overruled in view of the power of attorney given appellant by Farrell and the executors of the successions to which we have hereinabove referred.”

In this case defendants argue C.C.P. art. 681 and the jurisprudence interpreting it require the record owner of immovable property to bring any action that would effect title. This article states “ * * * an action can be brought only by a person having a real and actual interest * * * Denegre has no real and actual interest. He is simply an agent representing disclosed principals.

The cases cited by defendants are distinguishable. Tennessee Gas Transmission Company v. Derouen held naked owners are indispensable parties defendant in an expropriation suit. Unlike this case, the absent litigants had a real and actual interest because at the termination of the usufruct ownership would be perfected in them. Amrheim v. Champion, a decision of Code of Practice vintage, held that under a special statute a record owner must be joined in a suit to confirm a tax title. While the general rule now set forth by C.C.P. art. 681 was at that time somewhat similarly stated by C.P. art. 15, it was not applied to determine the joinder issue.

We hold Denegre need not be joined as a party plaintiff. 'While his appearance as a litigant would not have been objectionable under these particular circumstances and possibly his joinder would have been more expedient than defending his absence as a plaintiff, nonetheless plaintiffs correctly point out the exception is meritless.

NO CAUSE OF ACTION

This exception is predicated on the hypothesis plaintiffs never acquired the land upon which the tracks are laid; therefore, they can assert no cause of action. They rely on the previously quoted “reservations” in claiming the servitudes were retained by plaintiffs’ vendor, Hodges. We disagree. The deed simply imposes on plaintiffs the obligation of honoring the terms and conditions of the right-of-way grants enumerated. It also confers the same right to have the servitudes dissolved should the defendants fail to use them for the purpose for which they were dedicated. Had the deed conveyed all the land in the tract, less and except the land upon which the tracks and spurs are laid and Hodges actually excepted the strip of land itself from his conveyance, defendants’ position would be well founded. But this is not the case. A similar contention was rejected in Welsh Southern Oil Co. v. Scurlock Oil Co. and we quote as dispositive of the argument before us the rationalization and resolution reached in that case:

“The central contention of the plaintiffs’ suit is that, when Smedley’s wife sold the 86-acre parent tract in 1901 to Davidson et al., this 1901 conveyance expressly did not include the railroad right of way. The defendants are the descendants thus contend that they, as and their mineral lessees. The plaintiff descendants thus contends that they, as Smedley’s heirs, still own the unconvey-ed land (subject to the railroad right of way) and, most pertinently, the share of mineral production attributable to this surface acreage.
“Essentially, the plaintiffs’ central contention is founded upon the language of the 1901 conveyance by Mrs. Smedley to Davidson et al. This warranty deed described the property conveyed as an 86-acre tract ‘subject to and less a right of way 200 feet wide across said land for La.W.R.R.Co.’ See Exhibit 8, Tr. 134. The plaintiffs contend that their ancestors in title, the Smedleys, reserved by this excepting clause their title to the land itself across which the servitude of right of way existed in favor of the railroad company.

“However, the trial court held that the deed by which Mrs. Smedley sold to Davidson et al, the 86-acre tract ‘subject to and less a right of way’, conveyed the entire acreage described, subject only to a servitude of right of way across it — that the excepting clause reserved only the servitude from the conveyance, and not the land underlying it.

“In so holding, the trial court correctly relied upon decisions which under similar circumstances held that the conveyance of land subject to and less a right of way did not except from the conveyance the land described, but only a servitude across it. Rock Island A. & L. R. Co. v. Guillory et al., 205 La. 141, 17 So.2d 13; Sohio Petroleum Co. v. Hebert, La.App. 3 Cir., 146 So.2d 530. These decisions are based upon the general principle applicable that, where the language making an exception or reservation in a deed is doubtful, it must be construed most favorably to the grantee, as well as upon the principle that in construing conveyances the term ‘right of way’, in the absence of other indication, generally denotes a servitude only rather than also the surface acreage across which the right of way passes. See also Esso Standard Oil Co. v. Texas & New Orleans Railroad Co., La.App. 3 Cir., 127 So.2d 551.” 201 So.2d at 378.

PRESCRIPTION

Defendants, without getting to specific, argue the railroads have acquired prescriptive title to the realty burdened with the right-of-way or have at least acquired the right to have their tracks remain for their future use. We have reviewed the codal articles cited (C.C. arts. 3528 et seq.) and find no reason to maintain the exception of prescription. As we view it the tracks were used in 1966 for the purpose for which they were dedicated and not even the shortest prescriptive period of 10 years would have run before this suit was filed, if indeed, it would he applicable.

LACK OF JURISDICTION

Defendants contend La.Const. 1974 Art. 4, § 21 and L.R.S. 45:1165 vest exclusive jurisdiction to remove or destroy tracks in the Louisiana Public Service Commission. The constitutional article gives the Commission power to regulate common carriers and public utilities in the State and gives it general authority to adopt and administer the necessary rules to carry out this purpose. The revised statute sets up, in general terms, the right of commercial property owners to obtain rail service. Neither can be construed to divest state courts of the jurisdiction to adjudicate the validity of title to realty encumbered with servitude. To accomplish the objects of L.R.S. 45:1165 the Commission may authorize the railroads under its jurisdiction to expropriate certain lands to accomplish its purpose, but these takings are always subject to judicial review should the landowner demand it. The exception attacking jurisdiction is overruled.

MERITS

The servitude grants provided for their own dissolution should the rights-of-way ever not be used exclusively for freight hauling pertaining to the cattle business and stockyard. It appears from the record the last rail shipments of livestock across either of the two servitudes was made in 1966. At present the rails are used to service businesses involved with woodcraft and/or housewares. While there is a cold storage meat facility in the area, its owner did not testify he receives shipments of meat by rail. Apparently he uses trucks to ship and receive merchandise.

While we do not think a cold storage plant operation would constitute a modern successor to the type of business for which these grants were originally made, we need not decide this issue because the cold storage meat facility does not use rail service. Accordingly we agree with the trial court’s conclusion plaintiffs have a right to have the servitudes that burden their property declared extinguished and cancelled under C.C. art. 783, which provides in part: “Servitudes are extinguished: * * * 6. * * * by the happening of . the dissolving condition attached to the servitude.”

Finally, defendants contend the railroads’ unopposed usage of these tracks for many years confers on them servitudes under the St. Julien theory. We question the factual premises upon which the contention is based, in view of plaintiffs’ opposition to defendants’ occupancy even before the extinguishment of the servitudes. The Supreme Court decision in Lake, Inc. v. Louisiana Power & Light Company, La., 330 So.2d 914, proceeding No. 57085, of March 29, 1976, renders a discussion of the argument academic. It expressly overruled this doctrine.

For the reasons assigned, the judgment appealed from is affirmed and it is recognized that the servitudes described herein are extinguished and cancelled insofar as they affect the following described property:

“Those certain tracts or portions of ground, together with all the buildings and improvements thereon, and all the rights, ways, privileges, servitudes, appertenances and advantages there unto belonging to or anywise appertaining, situated in the Parish of St. Bernard, State of Louisiana. Said tracts being designated as Tracts ‘A, B, C, D, E, F, and G’ on a plan of survey by E. L. Eustis, Civil Engineer and Surveyor, dated December 28, 1959, a copy of which is annexed hereto and according to which said tracts measures as follows:

“Tract ‘A’, bounded by St. Claude Avenue, Aycock, Royal, and Mehle Streets, and is measured by starting at a point designated by the Letter ‘A’, on St. Claude Avenue, and thence running from said point in a southerly direction, towards Royal Street for a distance of 200 feet, to a point marked ‘B’, thence from said point marked ‘B’, on a line parallel to St. Claude Avenue, and running in a direction of, and to Ay-cock Street, a distance of 200 feet, to the letter ‘C’, thence from said point marked ‘C’, on a line fronting Aycock Street, and running in the direction of, and to the corner of Royal and Aycock Streets, a distance of 1276 feet, 8 inches, 6 lines, to a point marked ‘D’, thence from said point marked ‘D’, and running on a line fronting on Royal Street, in the direction of Mehle Street, for a distance of 355 feet, 9 inches, 4 lines, to a point marked ‘E’, thence from said point marked ‘E’, on a line parallel to Mehle Street, and running in the direction of St. Claude Avenue, for a distance of 1085 feet, 3 inches, 6 lines, to a point marked ‘F’ thence from said point ‘F’, on a line parallel to St. Claude Avenue, and running into a direction of, and to Mehle Street, for a distance of 100 feet, to the point marked ‘G’, thence from said point marked ‘G’, on a line fronting on Mehle Street, and running in the direction of, and to the corner of St. Claude Avenue and Mehle Street for a distance of 391 feet, 5 inches, to the point marked ‘H’, thence from said point marked ‘H’, on a line fronting on St. Claude Avenue, and running in the direction of Aycock Street for a distance of 255 feet, 9 inches, 4 lines, to the point of beginning, designated by Letter ‘A’.

“Tract ‘B’, bounded by St. Claude Avenue, Hernandez, Royal and Aycock Streets, and said tract is measured by starting at a point marked by the letter ‘J’, on St. Claude Avenue, and running from said point, on a line fronting on St. Claude Avenue, a distance of 85 feet, 3 inches, 2 lines (actual measurement), 80 feet, 7 inches, and no lines (title measurement), to a point marked ‘K’, thence from said point marked ‘K’, on a line fronting on Hernandez Street, and running in the direction of, and to the corner of Royal Street and Hernandez Street, for a distance of 1476 feet, 8 inches, 6 lines, to the point marked ‘U, thence from said point marked ‘L’, on a line fronting on Royal Street, and running in the direction of, and to the intersection of Aycock and Royal Streets, for a distance of 248 feet, 3 inches, 3 lines, to the point marked ‘M’, thence from said point marked ‘M’, on a line fronting on Aycock Street, and running in the direction of St. Claude Avenue, a distance of 1356 feet, 8 inches, 6 lines, to the point marked ‘N’, thence from said point marked ‘N’, on a line parallel to St. Claude Avenue, and running in the direction of Hernandez Street, for a distance of 60 feet, to the point marked ‘O’, thence from said point marked 'O’, and running on a line parallel to Mehle Street, in the direction of Royal Street, for a distance of 55 feet, to the point marked ‘P’, thence from said point marked ‘P’, on a line parallel to St. Claude Avenue, running in the direction of Hernandez Street, for a distance of 135 feet, to the point marked ‘Q’, thence from said point marked ‘Q’, running on a line parallel to Hernandez Street, and running in the direction of, and to St. Claude Avenue, for a distance of 175 feet, to the point of beginning marked by the letter ‘J’. “Tract ‘C’, bounded by Royal, Hernandez, Bienvenue and Aycock Streets, and which tract is measured by starting at the point marked ‘S’, at the intersection of Royal and Hernandez Streets, and thence running on a line fronting on Royal Street, in the direction of, and to Aycock Street, for a distance of 248 feet, 2 inches, 5 lines, to the point marked ‘T’, at the intersection of Aycock and Royal Streets, and thence from said point marked ‘T’, on a line fronting on Aycock Street, and running in the direction of Bienvenue Street, a distance of 309 feet, 3 inches, no lines, to a point marked ‘U’, thence from said point marked ‘U’, on a line parallel to Royal Street, and running in the direction of Hernandez Street, a distance of 136 feet, 2 inches, 2 lines, to a point marked ‘V’, thence from said point marked ‘V’, on a line parallel to Hernandez Street, and running in the direction of Bienvenue Street, a distance of 49 feet, no inches, 2 lines, to a point marked ‘W’, thence from said point marked ‘W’, on a line parallel to Royal Street, running in the direction of, and to Aycock Street, a distance of 136 feet, 2 inches, 2 lines, to a point marked ‘X’, thence from said point marked ‘X’, on a line fronting on Aycock Street, and running in the direction of Bienvenue Street, a distance of 318 feet, 6 inches, 4 lines, to the point marked ‘Y’, thence from said point marked ‘Y’, on a line parallel to Bienvenue Street, and running in the direction of, and to Hernandez Street, a distance of 247 feet, 3 inches, 6 lines, to the point marked ‘Z’, thence from said point marked ‘Z’, on a line fronting on Hernandez Street, and running in the direction of Royal Street, a distance of 676 feet, 9 inches, 6 lines, to the point of beginning, marked by the letter ‘S’.

“Tract ‘D’, bounded by Bienvenue, Aycock, Royal, and Hernandez Streets, and is measured by starting at the point marked ‘A-A’, at the intersection of Aycock and Bienvenue Streets, running on a line fronting on Aycock Street, in the direction of Royal Street, for a distance of 104 feet, no inches, no lines, to the point marked ‘A-B’, thence from said point marked ‘A-B’, running on a line parallel to Bien-venue Street, and running in the direction of, and to Hernandez Street, for a distance of 247 feet, 1 inch, no lines, to the point marked ‘A-C’, thence from said point marked ‘A-C’, running on a line fronting Hernandez Street, in the direction of Bien-venue Street, for a distance of 104 feet, no inches, no lines, to the intersection of Bienvenue and Hernandez Streets, marked by the point designated as ‘A-D’, thence from said point marked ‘A-D’, running on a line fronting on Bienvenue Street, and running in the direction of, and to Aycock Street, for a distance of 246 feet, 11 inches, 2 lines, to the point of beginning, designated by the letters ‘A-A’.

“Tract ‘E’, bounded by Bienvenue, Aycock, Pontalba and Hernandez Streets, and said tract is measured by starting at the point marked ‘A-E’, at the intersection of Bien-venue and Hernandez Streets, and thence running along a line fronting Bienvenue Street, in the direction of Aycock Street, for a distance of 246 feet, 10 inches, 4 lines, to the point marked ‘A-F’, at the intersection of Bienvenue and Aycock Streets, thence from said point marked ‘A-F’, and running along a line fronting Aycock Street, in the direction of, and to Pontalba Street, for a distance of 512 feet, 9 inches, and no lines, to the point marked ‘A-G’, at the intersection of Aycock and Pontalba Streets, and thence from said point ‘A-G’, running along a line fronting Pontalba Street, in the direction of Hernandez Street, for a distance of 136 feet, 2 inches, 2 lines, to the point marked ‘A-H’, thence from said point marked ‘A-H’, on a line parallel to Hernandez Street, and running in the direction of Bienvenue Street, for a distance of 183 feet, 9 inches, no lines, to a point marked ‘A-J’, thence from said point marked ‘A-J’, on a line parallel to Pontalba Street, and running in the direction of, and to Hernandez Street, for a distance of 110 feet, no inches, no lines, to the point marked ‘A-K’, thence from said point marked ‘A-K’, on a line fronting on Hernandez Street, and running in the direction of, and to the corner of Bienvenue and Hernandez Streets, for a distance of 329 feet, no inches, no lines, to the point of beginning, designated by the letters ‘A-E’.

“Less and except, from the above tract ‘E’, that portion of ground, designated as ‘Old Jail’, which commences at a distance of 244 feet, 5 inches, and no lines, from the corner of Bienvenue and Hernandez Streets, and measures 44 feet, 1 inch, no lines, fronting on Hernandez Street, the same width in the rear, by a depth of 51 feet, 6 inches, no lines, between equal and parallel lines.

“Tract ‘F’, bounded by Pontalba, Aycock, North Peters and Heranadez Streets, and is measured by starting at the point marked by the letters ‘A-L’, located at the intersection of Pontalba and Aycock Streets, and thence running on a line fronting on Aycock Street, and running in the direction of, and to North Peters Street, for a distance of 401 feet, 3 inches, 2 lines (actual measurement), 379 feet, no inches, 5 lines (title measurement), to the point marked ‘A-M’, at the intersection of Aycock and North Peters Streets, thence from point ‘A-M’, on a line fronting on North Peters Street, and running diagonally in the direction of Hernandez Street, for a distance of 179 feet, 11 inches, 5 lines, to the point marked ‘A-N’, thence from said point marked ‘A-N’, on a line parallel to Hernandez Street, and running in the direction of Pontalba Street, for a distance of 168 feet, no inches, 5 lines, to the point marked ‘A-O’, thence from said point marked ‘A-O’, on a line parallel to Pontalba Street, running in the direction of Hernandez Street, for a distance of 63 feet, 9 inches, no lines, to the point marked ‘A-P’, on Hernandez Street, and thence from said point marked ‘A-P’, on a line fronting on Hernandez Street, and running in the direction of Pontalba Street, for a distance of 95 feet, 8 inches, 5 lines, to a point marked ‘A-Q’, thence from said point marked ‘A-Q’, on a line parallel to Pontalba Street, and running in the direction of Aycock Street, for a distance of 94 feet, 6 inches, no lines, to the point marked ‘A-R’, thence from said point marked ‘A-R’, on a line parallel to Hernandez Street, and running in the direction of Pontalba Street, for a distance of 30 feet, to the point marked ‘A-S’, thence from said point marked ‘A-S’, on a line parallel to Pontalba Street, and running in the direction of Aycock Street, for a distance of 15 feet, 6 inches, to the point marked ‘A-T’, thence from said point marked ‘A-T’, on a line parallel to Hernandez Street, and running in the direction of, and to Pontalba Street, for a distance of 135 feet, to the point marked ‘A-U’, on Pontalba Street, and thence from said point marked ‘A-U’, on a line fronting Pontalba Street, and running in the direction of, and to Aycock Street, for a distance of 136 feet, 1 inch, 4 lines, to the point of beginning, marked by the letters ‘A-L’.

“Tract ‘G’, bounded by Royal, Aycock, Bienvenue and Esteban Streets, and is measured by starting at the intersection of Royal and Aycock Streets at the point marked by the letters ‘A-V’, and thence from said point marked ‘A-V’, on a line fronting Royal Street, and running in the direction of Esteban Street, for a distance of 137 feet, 2 inches, no lines, to the point marked ‘A-W’, thence from said point marked ‘A-W’, on a line parallel to Esteban Street, and running in the direction of Bienvenue Street, for a distance of 309 feet, 3 inches, no lines, to the point marked ‘A-X’, thence from said point marked ‘A-X’, on a line parallel to Royal Street, and running in the direction of Esteban Street, for a distance of 16 feet, 8 inches, 2 lines, to the point marked ‘A-Y’, thence from said point marked ‘A-Y’, on a line parallel to Esteban Street, and running in the direction of Bienvenue Street, for a distance of 367 feet, 6 inches, 6 lines, to the point marked ‘A-Z’, thence from point marked ‘A-Z’, on a line parallel to Bien-venue Street, and running in the direction of, and to Aycock Street, for a distance of 153 feet, 10 inches, 2 lines, to the point marked ‘B-A’, located on Aycock Street, and thence from said point marked ‘B-A’, located on Aycock Street, and running in the direction of, and to Royal Street, for a distance of 676 feet, 6 inches, 6 lines, to the point of beginning, at the intersection of Royal and Aycock Streets, designated by the letters ‘A-V’.

“Tract ‘A’ is composed of parts of original Squares ‘N, O, Q, R, T, U, X, and Y’.

“Tract ‘B’ is composed of all of original Squares ‘P, S, V,’ and part of original Square ‘Z’.

“Tract ‘C’ is composed of all original Squares ‘J and M’.

“Tract ‘D’ is composed of part of original Square ‘G’.

“Tract ‘E’ is composed of part of original Square ‘D’.

“Tract ‘F’ is composed of part of original Square ‘C’.

“Tract ‘G’ is composed of parts of original Squares T and L\”

Defendants are to pay all costs.

AFFIRMED.

LEMMON, Judge

(concurring).

I take a slightly different approach to the merits of the case.

The grant of the servitude tó Louisiana Southern’s ancestor stipulated that the servitude shall continue in existence as long as the grantor’s property “shall be used for the business for which it is now used or any other of like nature and no longer . . . ” I believe it is necessary to determine whether the property is so used in order to determine whether the dissolving condition has occurred.

In 1891 the grantor’s property was being used for cattle yards and slaughter houses, including auction sales and slaughtering of cattle, but no meat processing. In 1971 the property was no longer being used for cattle yards and slaughter houses, since those operations had been concentrated in another section of the country. Instead the property was being used for wood-crafts, housewares, lumber yard, glass company, and other uses. There is a meat packing plant on the property, but there are no live cattle and no slaughtering is done.

I do not believe that these limited meat packing operations were within the contemplation of the parties when the dissolving condition was confected. This belief is strengthened by the inclusion in the pertinent provision of a limitation on the use of the servitude exclusively “for operating cattle cars and such other rolling stock as may be required for the purposes of cattle yards and slaughter houses ...”

In my opinion this record supports the conclusion that the dissolving condition has occurred and that the servitude is extinguished.

In this respect I would also reject defendants’ contention that this is an extin-guishment of a part of a servitude, constituting a division of the rights of servitude prohibited by C.C. art. 656. Plaintiffs are not having the servitude divided, but rather are having it extinguished. If the owners of the other parts of the original property desire to permit continued use of the servitude as to their parcels, they may do so. But the happening of the dissolving condition resulted in the extinguishment of the entire servitude and not just of the servitude over that portion of the property owned by the party who declared the dissolving condition.

Furthermore, C.C. art. 656 is an article pertaining to predial servitudes, which are charges laid on an estate for the use and utility of another estate belonging to another owner. C.C. art. 647. The servitude at issue in this case is one in favor of a public railroad and thus is not a pre-dial servitude. Rather, it is a limited personal servitude, to be governed by the rules of predial and personal servitudes, applied by analogy. See 3 Yiannopoulos, Louisiana Civil Law Treatise, Personal Servitudes § 125 (1968). See also VIII La.L.Rev. 553 (1948). There is no dominant estate to which the servitude is due (either to the whole of the estate or to all of its parts). Conversely, the original servient estate in its entirety (and not just in part) has been freed of the servitude.

      . The servitudes are: (a) the agreement of switch privileges granted by Crescent City Stock Yard & Slaughter House Company and the New Orleans Terminal Company dated August 12, 1908, registered in MOB 17, Folio 158 in the Parish of St. Bernard; and (b) right-of-way granted by the Crescent City Live Stock Landing and Slaughter House Company to the New Orleans and Gulf Railroad Company over and across the land of said company as more fully shown in Act of Deposit executed before Gustave Legardeur, Jr., Notary Public for the Parish of Orleans, State of Louisiana, dated March 17, 1891.

      . St. Julien v. Morgan L. & T. R. Co., 35 La.Ann. 924 (1883).

      . Lake, Inc. v. Louisiana Power & Light Company, La., 330 So.2d 914. Proceeding No. 57085, rendered March 29, 1976.

      . 257 La. 503, 242 So.2d 832 (1970).

      . 157 So.2d 752 (La.App.2d Cir. 1963).

      . 239 La. 467, 118 So.2d 889 (1960).

      . C.C. art. 625.

      . 9 Orl.Ai>p. 246 (1912).

      . La.Acts 1898 No. 101.

      . 201 So.2d 376 (La.App.3d Cir. 1967).

      . H. C. Mauney, vice president of both the New Orleans Terminal Company and the Louisiana Southern Railway Company, testified the last rail shipment was made in 1966 when three cars of sheep were moved over the New Orleans Terminal Company tracks for the purpose of resting, feeding and watering them. They were later reloaded and shipped out.

      . The consideration of the grant was “the advantages and conveniences accruing to the shippers of cattle” and “the improvement and increased facilities thus offered to those engaged in the cattle trade on this market”.

      . O.O. art. 656 provides :
      “The rights of servitudes, considered in themselves, are not susceptible of division, either real or imaginary. It is impossible that an estate should have upon another estate part of a right of way, or of view, or any other right of servitude, and also that an estate be charged with a part of a servitude.
      “The use of a right of servitude may be limited to certain days or hours; but thus limited, it is an entire right, and not part of a right.
      “From thence it follows that a servitude existing in favor of a piece of land, is due to the whole of it, and to all the parts of it, so that if the land be sold in parts, every purchaser of a part has the right of using the servitude in toto.”