author: WATSON, Judge. DOMENGEAUX, Judge,

text:
    Charles Curtis WEYERMAN, Plaintiff-Appellant, v. Lana Ann Weyerman CARTER, Defendant-Appellee.
    No. 6727.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Edwards, Stefanski & Barousse, James M. Cunningham, III, Crowley, for plaintiff-appellant.
    Everett & Everett, Glennon P. Everett, Crowley, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

This action originated as a petition by Charles Weyerman against his former spouse for custody of the two minor children born of their marriage. Mrs. Carter answered and also filed a petition for a writ of habeas corpus against Weyerman demanding return of the children to her under a 1971 Texas decree of custody. The trial judge held, without assigning reasons, that custody of Curtis Wade Weyerman was to remain with the defendant, Mrs. Lana Wey-erman Carter, presently residing in New Mexico. No judgment was entered as to the other child, Charles Spencer Weyerman, who was not in the State of Louisiana at the time of the hearing and not subject to the jurisdiction of the trial court. Plaintiff has devolutively appealed.

Charles Weyerman and Lana Weyerman Carter were divorced in Texas on September 10, 1971. At that time, a decree was issued granting custody of the children to Mrs. Carter. The children resided with their mother until December of 1977, when they came to Louisiana to visit their father. While here the children apparently indicated that they preferred to stay with their father. Mr. Weyerman then enrolled the children in Acadia Parish schools. Mrs. Carter had the academic transcripts of both children sent to the appropriate Acadia Parish school.

On January 23,1978, Mr. Weyerman filed a petition for custody with the Fifteenth Judicial District Court, Parish of Acadia. Mrs. Carter answered the petition through her court appointed attorney and also filed a petition for habeas corpus on February 17, 1978, seeking the return of the two minors. Shortly thereafter, Mrs. Carter journeyed to Louisiana, and, without the knowledge of Mr. Weyerman, removed the younger child from school and took him out of the State of Louisiana.

The petition for custody and the writ of habeas corpus were heard contemporaneously. The trial court allowed Mrs. Carter to retain custody of the older boy.

The appellant urges that the trial court has made a determination adverse to the child’s “best interests” and did not give sufficient weight to his stated desire to remain with his father in Louisiana.

It is incumbent upon the party attempting to change custody to prove that a change will be in the best interest of the child. Bushnell v. Bushnell, 348 So.2d 1315 (La.App. 3 Cir. 1977). The trial judge is given much discretion in making this determination, which is accorded great weight by a reviewing court. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). The record shows no abuse of discretion here.

Curtis Wade Weyerman, age 14, testified that he preferred to live with his father, at least partially because of the duties assigned to him and his brother at the recently acquired family restaurant in New Mexico, where he and his brother helped to clean, operate the cash register, and wait tables. Nevertheless, both children were able to maintain good grades at school. (TR. 5 & 15). Curtis Weyerman had previously expressed a desire to live with his father but returned to his mother after a stay of 6 months with his father. A full consideration of all the testimony may have led the trial judge to believe Curtis’ present preference would be similarly short lived.

Even though the desires of a child who can sufficiently discern a parental preference should be considered, they “should not be controlling in determining to whom custody should be awarded”. Hebert v. Hebert, 255 So.2d 630 (La.App. 3 Cir. 1971). The trial court apparently gave proper consideration to Curtis Weyerman’s preference.

The children have lived with their mother for over six years and have been well cared for. A court is obviously reluctant to change custody under such circumstances.

There is no abuse of discretion in the trial court’s decision. It is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

I agree with the result reached in this case. However, I disagree with the statement in the majority opinion concerning the Bushnell case. I remain steadfast in my opinion that in change of custody cases the double or heavy burden rule is the standard to be followed. See my dissent in Bushnell, commencing at 348 So.2d 1317. In line with my dissent in Bushnell is the case of Lan-guirand v. Languirand, 350 So.2d 973 (La. App.2nd Cir. 1977), in which instance the Second Circuit forcefully recognized that the double or heavy burden rule in change of custody cases is still the law. In Langui- rand the Supreme Court denied writs, 352 So.2d 236 (La.1977); in Bushnell writs were not sought.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Jimmy THRASHER, Plaintiff-Appellee, v. Johnny LEGGETT, d/b/a Johnny Leggett’s Cajun Country, Defendant-Appellant.
    No. 6737.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Writ Granted Feb. 9, 1979.

      Michael F. Kelly, Marksville, for defendant-appellant.
    Riddle & Bennett, John T. Bennett, Marksville, for plaintiff-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a suit for damages by Jimmy Thrasher for injuries received when he was removed from a bar owned and operated by defendant, Johnny Leggett. From a judgment in favor of plaintiff, defendant appeals.

We reverse.

There is little dispute in the facts of this case. The evidence reflects that on July 8, 1977, plaintiff, after drinking beer most of the day, had entered defendant’s bar known as Johnny Leggett’s Cajun Country, in the early evening around 7:00 P.M. Plaintiff had some drinks and began arguing and cursing his estranged wife who was present with a friend. After a short time plaintiff was told to leave by Dale Perkins, a bouncer for defendant. Plaintiff left and went to other bars and returned to the Cajun Country later in the night and continued drinking. Plaintiff became highly intoxicated and again he started loudly cursing and threatening his estranged wife. The bouncer again warned plaintiff to quieten down or he would have to leave. Plaintiff persisted in his abusive and provocative activities. The bouncer, Dale Perkins, then escorted plaintiff out the door of the establishment. Outside the door is a 4-foot wide platform with 3 steps leading to the ground. Perkins escorted plaintiff down the steps and told plaintiff to leave. The plaintiff followed Perkins back up the steps cursing and telling Perkins that no one was going to keep him out of the bar. Plaintiff grabbed the door handle and so did Perkins. The plaintiff then struck at Perkins. Perkins threw up his arm to block the blow. Plaintiff, as a result of this encounter, fell down the steps, injuring himself. After plaintiff fell, Perkins, along with another employee of defendant, assisted plaintiff by sitting him on the steps. Another patron of the club took plaintiff to his home a short time later. The medical evidence reveals that plaintiff sustained a broken ankle in the fall.

Plaintiff filed suit against Johnny Leg-gett d/b/a Johnny Leggett’s Cajun Country. The trial court rendered judgment in favor of the plaintiff and against defendant on the ground that:

“Whether he fell because he attempted aggressive action, or because he lost his balance, does not seem material to the court, because he was in a helpless and irrational state of intoxication. Defendant had the last clear chance to see that Plaintiff would not injure himself. If defendant was unwilling to escort him to a place of safety, the sheriff’s department could have been called, or the City Police, could have come for him and incarcerated him in a place of safety.”

The trial court applied the “last clear chance” principles enunciated in the case of Pence v. Ketchum, 326 So.2d 831 (La.1976). Defendant appeals assigning five specifications of error as follows:

1. The District Court erred in concluding that Thrasher became intoxicated on his first visit to Cajun Country.
2. The District Court erred in concluding that Thrasher returned to Cajun Country after he left the first time only a half hour to one hour later.
3. The District Court erred in concluding that it was negligence for defendant’s employees to remove Thrasher from the night club.
4. The District Court erred in concluding that the defendant had the last clear chance to avoid plaintiff’s accident.
5. The District Court erred in failing to apply the aggressor doctrine.

ERRORS NOS. 1 AND 2

The first two assignments of error present questions of fact. The trial judge concluded that plaintiff became highly intoxicated as a result of his drinking at defendant’s establishment. It was also concluded that plaintiff was gone from the bar, after leaving the first time, for a period of one-half to one hour. We have reviewed the testimony of the various witnesses and find that the trial judge’s findings in this regard are amply supported by the record. These findings will not be disturbed by this court absent a showing of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973).

ERRORS NOS. 3, 4 AND 5

We have no dispute with the trial judge in his conclusion of fact, but we disagree that the doctrine of “last clear chance” is applicable to the facts herein.

In the Pence case plaintiff brought suit against the owners of a bar and the driver of a vehicle for the recovery of damages sustained by the plaintiff when she was struck by the motorist after plaintiff had been removed from the bar in an intoxicated condition. The allegations of plaintiff’s petition reflected that plaintiff had been allowed to consume an excessive amount of alcohol while in the bar and that the owners of the bar had knowledge of, or should have known of, her intoxicated condition but still ejected plaintiff, allowing her to attempt the crossing of a highway adjacent to the bar where she was struck and injured. The owners of the bar filed an exception of no cause of action which was sustained by the trial court. The judgment of the trial court was affirmed on appeal with that court relying on a ruling in the case of Lee v. Peerless Insurance Company, 248 La. 982, 183 So.2d 328 (1966).

The Supreme Court reversed and held that the petition stated a cause of action in that the petition alleged that the bar owners had violated their statutory duty imposed by LSA-R.S. 26:88 which reads as follows:

“No person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
“(2) Sell or serve alcoholic beverages to any intoxicated person.”

The court concluded that if a bar owner violates this statute he has a duty as a business invitor to avoid affirmative acts which would increase the danger of an intoxicated person. Secondly, the court also concluded that, under the facts alleged, the doctrine of last clear chance was applicable as an exception to the general rule that contributory negligence, through intoxication, bars plaintiff’s recovery. The court overruled Lee.

There was no reference in the petition to any disturbance, obscenities, threats, or aggressive action by plaintiff in Pence. The allegations reflected only an ejection of plaintiff from the bar in an intoxicated condition, allowing the plaintiff, in that condition, to wander onto an adjacent highway and becoming involved in a pedestrian accident with resulting injuries.

The facts in this case are easily distinguishable in that the intoxicated plaintiff created a disturbance in the defendant’s bar, using loud, obscene, and threatening language. He was removed when he refused to terminate this activity. He engaged in aggressive action after he was outside by attempting to strike defendant’s employee, which aggressive action caused him to fall, resulting in injuries.

The trial court was in error in applying the doctrine of “last clear chance” to the facts herein. There is no evidence, nor does the trial court conclude, that unreasonable force was used by defendant’s employee in plaintiff’s removal from the bar. The trial judge invoked the doctrine of “last clear chance” on the ground that “Defendant had the last clear chance to see that Plaintiff would not injure himself.” The attempted attack on the employee by plaintiff was sudden. The bouncer had no opportunity to reflect and avoid the plaintiff’s fall as a result of such attack. The doctrine is not applicable.

In addition to the duty imposed on bar owners not to sell alcoholic beverages to intoxicated persons, that law further provides that the bar owner shall not permit any disturbance of the peace or obscenity on the licensed premises. When this occurs, the owner of the bar has not only the right but the duty to remove a customer from the premises. The removal, however, must be done in a reasonable manner with such force as is reasonably necessary.

This court in the recent case of Ethele Gabriel v. Claude Boudreaux, d/b/a Blue Angel Restaurant & Bar, et al., No. 6666, handed down October 13, 1978, invoked the long standing rule of removal by reasonable force holding:

“It is the right and the duty of the proprietor of a place of public entertainment to maintain order and decorum to the extent necessary to protect his patrons from injury, as well as from boisterous or otherwise offensive conduct. To accomplish this purpose, a proprietor may lawfully expel any person guilty of disorderly conduct with such force as is reasonably necessary. Planchard v. Klaw & Erlanger New Orleans Theaters Company, 166 La. 235, 117 So. 132 (La.1928); Gorman v. United Theaters, Inc., 177 So. 463 (La.App. Orleans 1937); and Russo v. Orpheum Theater & Realty Company, 136 La. 24, 66 So. 385 (La.1914).”

We conclude that the defendant, through its employee, had the right and the duty to remove plaintiff from the premises. Such removal was done in a lawful manner with such force as was reasonably necessary. Plaintiff’s,injury was not caused by any failure or neglect of duty by defendant in the protection of other patrons from boisterous and offensive conduct or possible injury. Plaintiff’s injury was caused by his own aggressive action, and he is barred from any recovery for damages.

For these reasons, the judgment of the trial court is reversed, and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed. Plaintiff is to pay all costs of the trial court and of this appeal.

REVERSED AND RENDERED.

      . Pence v. Ketchum, 314 So.2d 550 (La.App. 1st Cir. 1975).

      . LSA-R.S. 26:88(5) provides as follows:
      “No person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
      ******
      “(5) Permit any disturbance of the peace or obscenity, ... on the licensed premises."


author: GUIDRY, Judge.

text:
    STATE of Louisiana In the Interest of James Russell JOINER.
    No. 6739.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Kramer & Davis by James D. Davis, Alexandria, for defendant-appellant.
    Philip G. Hunter, Asst. Dist. Atty., Colfax, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Gene C. McManus and James Russell Joiner were adjudicated delinquent by the Grant Parish Juvenile Court, based upon a finding that on November 9, 1977 they did attempt to kill wild game at night in violation of LSA-R.S. 56:124(7), (9). The juveniles were jointly tried on May 1, 1978.

Counsel for the juveniles filed a pre-trial motion seeking to suppress an inculpatory statement allegedly made by McManus to a State Game Warden, Earl H. Corley, while the juveniles were being booked at the sheriff’s office. It was alleged that the inculpa-tory statement was elicited in violation of McManus’ constitutional privilege against self-incrimination. After a hearing held on May 1, 1978, the trial court denied the motion to suppress.

At trial on the merits, the only testimony taken was that of agents Earl H. Corley and David R. Edwards. In the course of their testimony, each witness alluded to the statement made by McManus. The trial court concluded that McManus and Joiner were guilty of unlawfully hunting wild game at night, and adjudged both juveniles to be delinquent. McManus and Joiner have appealed. We this day render a separate opinion in the companion matter of State in the interest of Gene C. McManus, our docket number 6740.

On appeal McManus and Joiner assign the following two specifications of error:

(1) Gene McManus’ inculpatory statement should not have been admitted into evidence, as doing so violated the principles set forth by the Louisiana Supreme Court in State in the Interest of Dino, 359 So.2d 586 (La.1978); and,

(2) The state failed to establish a prima facie case that the defendants had been hunting in violation of LSA-R.S. 56-124(7), (9).

The record reveals that on November 9, 1977, at approximately 8:00 p. m. agent Edwards noticed a light shining out of the window of an automobile which was slowly moving through a wooded area in Grant Parish, Louisiana. He testified at trial that the light was being directed along the grassy areas at the base line of the trees. Agent Edwards stopped the vehicle and found a portable light and a twelve gauge shotgun with four shells in the magazine on the front seat of the car. Extra shells for the shotgun were found on the front seat of the car as well. The car was occupied by four persons, the juveniles and two adults. They were all placed under arrest by Edwards and given their “Miranda ” warnings. They were then instructed to follow Edwards to the sheriff’s office for booking. While the parties were being booked, agent Corley asked McManus if he had been out hunting deer, and the defendant allegedly replied that he had been hunting rabbits. Agent Edwards testified that he was present when this statement was made.

Appellants urge that the elicitation of this inculpatory statement violated the principles set forth in Dino, supra, and was therefore inadmissible. In Dino, our Supreme Court categorically held that a juvenile could not waive his right to remain silent without the advice of an informed adult or an attorney. However, in light of the very recent Supreme Court pronouncement in State of Louisiana v. Donnie Franklin Collum (La.1978) 365 So.2d 1272, we find that the precautionary measures prescribed in Dino for the proper admission of a minor’s inculpatory statement do not apply to the instant case. In Collum, the Court held that Dino was not to be applied retroactively, but was to apply only to matters which were tried after June 15, 1978. In the instant case, the trial on the merits was held on May 1,1978, prior to the date on which the requirements set forth in Dino became effective.

Prior to the effective date of the Dino rule, the well settled test for determining whether a juvenile had knowingly and intelligently waived his right against self-incrimination was the “totality of circumstances” test. State v. Hall, 350 So.2d 141 (La.1977); State v. Hill, 354 So.2d 186 (La.1977); State v. Ross, 343 So.2d 722 (La. 1977); State v. Ghoram, 328 So.2d 91 (La. 1926); State v. Sylvester, 298 So.2d 807 (La.1974); State v. Melanson, 259 So.2d 609 (La.App. 4th Cir. 1972).

Although appellants have not asserted a claim of involuntariness, we have nevertheless examined the circumstances under which McManus made the inculpato-ry statement and we conclude that this statement was the product of a knowing and intelligent waiver of his constitutional right against self-incrimination. In this regard, we find the following factors to be relevant: At the time of his arrest, Gene McManus was sixteen years old. Before he made the statement, he was advised of his right to remain silent and to have an attorney present. Likewise, he was warned that any statement he made could be used against him in court. There is no evidence in the record to indicate that he was interrogated at any time prior to or at the time that he made the statement, or that he was in any way harassed or intimidated by either the police or the game wardens who arrested him. On the contrary, the record reveals that McManus was permitted to drive himself to the sheriff’s office to be booked following his arrest, and that while at the sheriff’s office the juveniles were allowed to telephone their parents and have them present. After examining the totality of the circumstances under which the incul-patory statement was made, we find that the state has met its burden of establishing that the statement was free and voluntary and was made with full understanding by McManus of his constitutional right against self-incrimination. We therefore find no merit in this assignment of error.

Appellants next urge that the state failed to prove that McManus and Joiner were engaging in night hunting at the time of their arrest relying principally on the Supreme Court holding in State v. Bass, 321 So.2d 520 (La.1975). Our review of the record reveals that this assignment of error is likewise without merit.

In State v. Bass, supra, the Court found that the trial court erred in failing to grant a directed verdict in favor of two defendants who had been convicted of night hunting when the state failed to prove an essential element of the crime charged. In Bass, however, the court made the following observations:

“In response to questions it was revealed that the Agent found no headlights, such as those often used in night hunting, but arrested the relators because they had high-powered, loaded rifles on a flooded rural road at a late hour.” at pp. 521-522.

It was likewise observed:

“The State’s witnesses were unable to testify that they saw the relators, or either of them, holding a weapon, or stalking an animal, or behaving in a manner which clearly indicated that they were engaged in an attempt ‘to chase or search for (game or other wild animals) for the purpose of catching or killing.’” at p. 522.

The juveniles in the instant case, however, were not arrested solely because they had a shotgun on the front seat of their vehicle. Agent Edwards witnessed a light being shone in the grass along the base of the trees, and found that light in plain view on the front seat of the ear when he stopped it. It should also be noted that in Bass neither defendant admitted that he had been hunting at the time of his arrest. We find, therefore, that Bass is factually distinguishable from the instant case. We conclude that in light of the above facts the state did establish beyond a reasonable doubt that at the time of their arrest, McManus and Joiner were engaged in night hunting in violation of LSA-R.S. 56:124(7), (9).

For the above and foregoing reasons, the judgment of the juvenile court declaring James Russell Joiner and Gene C. McManus to be delinquent is affirmed.

AFFIRMED.

      . LSA-R.S. 56:124(7) in pertinent part provides: No person shall
      (7) Take or hunt deer or fur bearing animals with headlights or bull’s eyes. .
      LSA-R.S. 56:124(9) in pertinent part provides:
      (9) Hunt with firearms of any type . . . after one-half hour after official sunset and before one-half hour before official sunrise.

      . The portable light was described by the agents as one which is plugged into the car’s cigarette lighter and thus affords a light powerful enough to night hunt.


text:
    STATE of Louisiana in the Interest of Gene C. McMANUS.
    No. 6740.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Kramer & Davis by James D. Davis, Alexandria, for defendant-appellant.
    Philip G. Hunter, Asst. Dist. Atty., Colfax, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

For the reasons this day assigned in the companion matter entitled, State of Louisiana, in the interest of James Russell Joiner, La.App., 365 So.2d 1152, we affirm the judgment of the juvenile court declaring Gene C. McManus to be a delinquent juvenile.

AFFIRMED.


text:
    James M. BURR v. Larry LEGUIN.
    No. 6741.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Writ Refused Feb. 16, 1979.
    George C. Murray, Jr., and Nathan M. Calhoun, Vidalia, for plaintiff-appellant.
    Lyman S. Gore, Vidalia, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

This case comes before us on appeal from a judgment awarding the plaintiff, James M. Burr, d/b/a J. M. Burr Real Estate, the sum of $1200.00 for services rendered in connection with an exclusive listing agreement between plaintiff and defendant, Larry LeGuin.

The record indicates that on October 17, 1977 William A. McDonough, a real estate broker in plaintiff’s employ, obtained a written listing agreement from Mr. LeGuin under which the plaintiff would be the exclusive selling agent for the defendant’s home for a period of one month from the date of contract. Defendant does not dispute the fact that he executed this agreement. Provision was made in the agreement for the plaintiff to receive a commission if and when the house was sold. On November 11, 1977 the home was sold to Mr. Kenneth Dunn for the sum of $42,-500.00. The defendant thereafter refused to pay plaintiff any commission on the sale and this suit followed.

Plaintiff’s suit alleges that he is entitled to a commission of $2,850.00, representing 6% of the sum of $47,500.00, the amount which had been stipulated in the agreement to be the “Total Sales Price” of the home. In the alternative, plaintiff prayed for judgment in the sum of $2,550.00, representing 6% of $42,500.00, the actual sales price of the home. Defendant contends that a stipulation in the agreement providing that the “Owner will net $44 000.00 min.” brought an end to any obligation he may have had to pay the plaintiff a commission, since he ultimately chose to sell his home for less than this amount.

The trial court concluded that plaintiff was not entitled to the entire amount stipulated in the agreement, and awarded him $1,200.00 for services actually performed, such award being made on the basis of quantum meruit.

Plaintiff has appealed seeking an increase in the award. Defendant did not appeal nor answer the appeal of plaintiff.

We are of the opinion that the written agreement signed by Mr. LeGuin on October 17, 1977 was a binding contract, enforceable for the period stated therein, and accordingly, plaintiff is entitled to judgment based upon the express terms of the contract and the trial court erred in basing plaintiff’s recovery on quantum meruit. Barnes v. McDonald, 119 So.2d 169 (La.App. 1960).

The controversy revolves around the interpretation of the terms of the listing agreement entered into between the defendant and plaintiff. Pertinent portions of this agreement provide as follows:

“FINANCE DATA
‘Total Sales Price $47.500- .
ADDITIONAL INFORMATION
SECTION ‘E’
Owner will net 44,000 min. SECTION ‘F’
I authorize you to accept offer as outlined in the above and enter into a contract of sale of the property on those terms. Should you receive a lesser offer for the property, or an offer of the same amount on different terms, please submit that offer for my consideration or acceptance. For and in consideration of your listing this property for sale in your office and your making a reasonable effort to sell the property, I agree that you shall have the exclusive right to sell the property for a period of 1 month(s) from this date, during which time I shall not list it with anyone else for sale, and I agree to refer to you any offers which may be made direct to me to purchase the property. If and when I receive an acceptable offer to purchase the property, I agree to pay you a commission of 6% .
I further agree that should this property be sold by me, by you or any other agent during the existence of this contract, or should it be sold or exchanged within ninety (90) days after termination of this contract to anyone to whom this property has been exhibited, quoted or offered for sale by you, I agree to pay the stipulated commission as a consideration for your efforts to sell the property. . .

We do not construe the above quoted portions of the agreement to mean that Mr. LeGuin could unilaterally determine, during the period of agreement, to accept an offer of sale netting him less than $44,000.00 and thereby effectively terminate the agreement and deprive plaintiff of any commission on the sale. Rather, we interpret these terms to give to the plaintiff the express authority to enter into an agreement to sell the property on the owner’s behalf to any prospective buyer willing to pay $47,500.00 provided such price would bring to the owner the sum of $44,000.00 net. However, under the agreement, before the plaintiff could agree to sell the house for a price less than that stipulated the owner would have to be contacted, and the sale at the reduced price would have to be expressly authorized by Mr. LeGuin. There is no dispute that the defendant agreed to the sale at a reduced price or that such sale was executed during the life of the listing agreement.

It was stipulated by both parties at trial that subsequent to the execution of the listing agreement, Mrs. Kenneth Dunn contacted the J. M. Burr Real Estate firm and was told that the LeGuin home was up for sale. Ms. Stutzman, a real estate broker with plaintiff’s firm, informed Mrs. Dunn that the selling price of the home was $47,-500.00, and then she took Mr. and Mrs. Dunn to view the home in the presence of the defendant.

Mr. McDonough testified at trial that Mr. Dunn made an offer to him to buy the home for $46,000.00, and that he conveyed this offer to the defendant. Mr. LeGuin admitted that he thereafter contacted Mr. Dunn himself and consummated a deal with him for the sale of the house at the price of $42,500.00. There is discrepancy in the testimony adduced at trial as to whether the plaintiff was informed of these negotiations between the Dunns and LeGuin and whether or not he approved of the sale at the reduced price.

The contract between the plaintiff and defendant expressly provided that should Mr. LeGuin himself sell the property during the contract period to anyone to whom it had been exhibited, quoted or offered for sale by the plaintiff, that the plaintiff would be paid the stipulated commission in consideration of his “efforts to sell the property”. If Mr. LeGuin chose to accept an offer of less than that which he had originally hoped to receive, then he did so subject to his obligation to compensate the plaintiff for his efforts in selling the property.

In the case of Acadian Inv. Co. v. Laird, 138 So.2d 429 (La.App. 3rd Cir. 1962) this court stated:

“. . . When the real estate broker has a contract giving him the exclusive right to sell the property during a specified period of time, he is entitled to a commission upon any sale of the property made during that time, whether the sale be made by the owner personally or by another broker. Donlon v. Babin, La. App., 1 Cir., 44 So.2d 134, and the many cases cited therein . . 138 So.2d at 431.

There is no dispute that the property in the instant case was sold during the period which the plaintiff had an exclusive listing on it. Thus we find that under the terms of the listing agreement, plaintiff is entitled to recover 6% of the sales price.

For the above and foregoing reasons the judgment of the trial court is amended to increase the principal amount of the award from $1200.00 to $2550.00. In all other respects the judgment appealed from is affirmed at appellant’s costs.

AMENDED AND AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Ammeralla Marcantel McDANIEL, Plaintiff-Appellant, v. Aleak ORTEGO, Defendant-Appellee.
    No. 6743.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    J. Jake Fontenot, Mamou, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is a suit brought by Ammeralla Mar-cantel McDaniel, one of several naked owners of immovable property, against Aleak Ortego, a lessee of the property, in order to obtain damages and an injunction ordering him to remove himself from the property and restore it to its former condition.

The factual portion of the record consists largely of stipulations made between counsel, which we set forth below.

Plaintiff’s mother and father, Mr. and Mrs. Tonise Marcantel acquired a 46 acre tract of land in Evangeline Parish. Mr. Marcantel died intestate on April 29, 1977, leaving his wife and five daughters. Consequently, Mrs. Marcantel owns an undivided one-half interest in the 46 acres of land and has the usufruct over the other half by operation of law. The five daughters each own an undivided one-tenth interest in the above land in naked ownership, subject to the usufruct of their mother.

At some time subsequent to the death of her husband, Mrs. Marcantel entered into a verbal lease arrangement for the land with Aleak Ortego, the defendant, by which he was allowed to farm the land for the crop year of 1978 in exchange for $1,200.00 in rent. Mr. Ortego had been leasing the above described land in a similar fashion for the previous two years. Two of the daughters, Mrs. Howard Campbell and Mrs. Wilson Veillon, acquiesced in the lease arrangement. Plaintiff, another one of the daughters, did not acquiesce to the lease, nor did she give defendant permission to go upon the land. By letter dated January 31,1978, she notified the defendant not to go upon the property and not to commence farming operations. This letter was received by Mr. Ortego.

On March 21, 1978, Mrs. McDaniel filed suit seeking a mandatory injunction in order to require plaintiff to remove himself from the land and to restore it to the condition in which it existed before plowing and farming operations commenced. She also sought damages in tort for trespass and continuing trespass in the amount of $45,-000.00. A rule to show cause why the injunction should not issue was heard on April 6,1978. The trial judge dismissed the rule and denied the injunction, at plaintiff’s costs. Plaintiff appeals.

The sole issue presented on appeal is whether a lease granted by one, who is the owner of an undivided one-half interest in immovable property and who holds the usu-fruct of the other one-half interest, has the right to grant a valid predial lease for the land.

Plaintiff’s argument at trial and her argument on appeal involves an analogy drawn between agricultural leases and mineral leases. Plaintiff presents the basic rule of law that in situations involving mineral rights, it is the naked owner who has the right to lease and explore for minerals, and that this right is unaffected by the fact that the land is burdened with the usufruct. Plaintiff couples this proposition with the fact that Louisiana cases have indicated that the payment of a royalty under a mineral lease is similar to the payment of rent under a regular lease. She reasons that payment of a mineral royalty, therefore, would be similar to payment of rent for an agricultural crop. Having drawn the analogy between mineral royalties and agricultural crops, she then maintains that mineral leases and agricultural leases should be treated similarly. The conclusion is reached that, inasmuch as the naked owner is the only person with the right to grant a valid mineral lease, at least, the consent of the naked owner should be necessary to grant a valid agricultural lease.

We feel that plaintiff’s analogy between minerals and agricultural crops is faulty and without merit. We hold that the usu-fructuary has the right to grant a valid predial lease in favor of defendant. We thus affirm the trial court’s judgment.

In principle, the usufructuary’s right of enjoyment should include the right to lease the property to another. See Yiannopoulos, Personal Servitudes § 38 in 3 Louisiana Civil Law Treatise 183 (2nd ed. 1978). In Louisiana, this right is expressly recognized in Article 567 of the Civil Code (formerly Articles 551 and 561), which provides, in part:

“The usufructuary may lease, alienate, or encumber his right. All such contracts cease of right at the end of the usufruct.”

Mineral leases, however, present different and unique situations. Because of the very nature of mineral leases, it has long been established that the right to grant a mineral lease rests with the naked owner. There are exceptions, of course, as, for example, when the usufruct is conventional and the instrument expressly grants the right to lease to the usufructuary, or when minerals are being produced from the land at the time that the usufruct commences. The law governing the right of the usufructuary in the realm of minerals is set forth in Article 188, et seq., of the Louisiana Mineral Code, La. R.S. 31:188 et seq.

Obviously, mineral leases present many problems which are not found in other types of lease arrangements. As a result of these unique problems, the law governing the right of the usufructuary is withdrawn from the Civil Code and placed into the Mineral Code. Louisiana Civil Code Article 561. We feel that there is absolutely no authority in Louisiana for us to treat an agricultural lease granted by a usufruc-tuary in the same or a similar fashion as a mineral lease.

We point out that this case simply deals with the right of the usufructuary to grant an agricultural lease. It does not present any of the many problems sometimes involved in leases granted by the usu-fructuaries, as, for example, those which arise when the lease is for a term greater than the usufruct. This case also does not deal with whether the instant lease arrangement would be binding upon the naked owners or the plaintiff herein at the expiration of the mother’s usufruct. We merely hold that the usufructuary of immovable property has the right to grant an agricultural lease on that property, absent any agreement to the contrary.

For the above reasons the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Hubert DOUCET, Plaintiff-Appellant, v. MUTUAL OF OMAHA INSURANCE COMPANY, Defendant-Appellee.
    No. 6745.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Dubuisson, Brinkhaus & Dauzat, James G. Dubuisson, Opelousas, for plaintiff-appellant.
    Lewis & Lewis, John M. Shaw, Opelousas, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a suit for disability benefits under two health and accident insurance policies issued to plaintiff, Hubert Doucet, by defendant, Mutual of Omaha Insurance Company (hereinafter referred to as Mutual).

The issue presented on appeal is whether plaintiff is entitled to penalties and attorney fees under the provisions of LSA-R.S. 22:657a.

Plaintiff was injured on August 2, 1971, while working for defendant’s insured, Mercury Freight Lines. He was employed as a truck driver but also participated in loading and unloading cargo. While attempting to lift a roll of wire, plaintiff received a back injury. Plaintiff was referred to the company physician who then referred plaintiff to Dr. Thomas B. Flynn, a neurosurgeon. Dr. Flynn hospitalized plaintiff and on August 26,1971, excised a ruptured disc at the L-4-5 level. Dr. Flynn kept plaintiff under his care and felt that recovery was progressing in a normal way. Plaintiff continued to complain of pain. Dr. Flynn continued to see plaintiff intermittently and in April of 1972 referred him to Dr. Richard L. Bolton, an orthopedic surgeon, for evaluation. Dr. Bolton examined plaintiff on April 5, 1972, and was of the opinion that plaintiff was still suffering from residuals of the operation. He recommended physical therapy. Dr. Bolton performed a second examination on June 21,1972. He then felt that plaintiff could return to light work. Dr. Flynn saw plaintiff on June 30, 1972, and advised him that he could not explain plaintiff’s persistent complaints of pain. He offered to perform another myelogram but this was not accepted by plaintiff.

Plaintiff subsequently consulted with Dr. Emile Ventre, a general practitioner, on four occasions, August 21, 22, 28, and November 3, 1972. This physician felt the plaintiff had another disc problem. Dr. Ventre then referred plaintiff to Dr. L. Lazaro, an orthopedist, who examined plaintiff on August 31, 1972. This physician found that plaintiff’s complaints of pain could not be explained orthopedically and stated that plaintiff had “a normal orthopedic examination.” Based upon these developments, the defendants terminated plaintiff’s disability payments on August 14, 1972.

On January 31,1973, plaintiff, by referral of his attorney, was examined by Dr. David J. Rees, a psychiatrist. This physician concluded that plaintiff suffered a chronic depressive neurosis secondary to the back injury of 1971. He stated that plaintiff was incapacitated for employment because of this condition. Dr. Rees examined plaintiff again on October 31, 1974, with the same result.

On January 28, 1974, plaintiff’s counsel sent plaintiff to Dr. John D. Jackson, a neurosurgeon, for examination. This physician examined plaintiff and took X-rays. He examined the prior myelogram pictures taken by Dr. Flynn. He concluded that plaintiff was suffering from two problems. First, he diagnosed traumatic neuritis at the L-4-5 level. He explained that this was a nerve root problem that can result from the prior operation. He also diagnosed a possible disc problem at the L-5/S-l level. He recommended a discogram which he felt would prove the existence of the disc problem.

At this juncture in the medical chronology, this suit was filed February 22, 1974. There is no proof in the record that the defendant was informed or otherwise made aware of the opinions of either Dr. Rees or Dr. Jackson before suit was filed. A second psychiatrist, Dr. David B. Regan, examined plaintiff after suit was filed. He examined plaintiff in November, 1974. He found plaintiff suffering from depressive neurosis which was an emotional condition intimately associated with plaintiff’s injury of August, 1971. He stated that plaintiff’s prognosis was poor in that the emotional condition was fixed and plaintiff was in no condition to work. According to the record, defendant was first made aware of the examinations and diagnoses of Drs. Jackson, Rees, and Regan when their depositions were taken for trial purposes in May of 1975.

The trial judge rendered written reasons for judgment in favor of plaintiff awarding benefits under both policies issued by defendant. He found that plaintiff was totally disabled due to the plaintiff’s disc problem and traumatic neuritis and that plaintiff had a “secondary mental involvement.” The trial court denied penalties and attorney fees. On denial of a motion for a new trial, the trial court gave its reasons for denial of penalties and attorney fees as follows:

“Plaintiff now argues that if proof of disability develops after suit is filed the plaintiff is entitled to penalties and attorney fees. However, the Court had not been referred to cases so holding. [Emphasis by the court]
“Actually, the mere failure to pay does not of itself trigger penalties and attorney fees. There must be arbitrary, etc. refusal. In this case, the Court ruled that the failure to pay was not arbitrary and capricious, for, until suit was filed, evidence of disability was not presented to the defendant.”

Plaintiff appeals on the single issue of penalties and attorney fees contending that the trial court erred in its position that penalties and attorney fees could not be awarded since the medical evaluations of the two psychiatrists and Dr. Jackson were not made available to defendant until after suit was filed.

We agree with the plaintiff’s position and conclude that the trial court erred in its conclusion of law as to penalties and attorney fees. In the case of LaCalle v. Ashy Enterprises, 353 So.2d 439 (La.App. 3rd Cir. 1977), writ denied 355 So.2d 266 (La.1978), suit was filed on March 24, 1976 after defendant terminated disability payments in February 1976 based on attending physician reports. A psychiatrist examination and opinion of disability were not made known to the employer, defendant, until August 13,1976. This court held that “the employer was arbitrary and capricious in not resuming, and bringing up to date, payment of weekly benefits to plaintiff.”

In this case we conclude that the defendant was entitled to discontinue the disability payments as of August 14, 1972, based upon the reports of the several physicians stating that plaintiff could return to work. By May 25, 1975, however, the defendant had participated in the taking of depositions of Drs. Rees, Regan and Jackson, which apprised defendant of the continued disability of plaintiff due to the August 1971 accident. After the depositions were taken the defendant took no steps to gather further medical information. The defendant filed its answer on September 3,1976 without setting up any special defense of lack of coverage. When defendant was apprised of the medical developments in May of 1975, it was arbitrary and capricious in not resuming and bringing up to date payment of disability benefits to plaintiff. LaCalie, supra.

We find that defendant is liable for penalties and attorney fees under the provisions of LSA-R.S. 22:657. We have considered the approximate time spent by plaintiff’s counsel in the preparation, trial and appeal of this case, and conclude that attorney fees in the amount of $3,000.00 would be adequate.

Defendant filed, in this court, an exception of no cause or right of action on the ground that the policy contained a provision which excluded disability due to mental disease or disorder. This exception is without merit. The defendant did not appeal from that portion of the judgment which awarded disability payments. Thus the awards for disability are not before this court except in connection with penalties to be awarded.

The defendant also filed a motion to remand on the ground generally that the case should be reopened to take evidence of plaintiff’s present ability to. work. The motion is without merit. No appeal was filed by defendant.

For the above reasons, the portion of the trial court’s judgment denying penalties and attorney fees is reversed and set aside. It is hereby ordered, adjudged and decreed that the past due disability benefits awarded to the plaintiff under each of the two policies be doubled; that is, past due disability payments under Policy No. 87DS100 —723629-29M are set at $200 per month, and under Policy No. 97DL — 723571-29M, past due payments are set at $10.00 per day. Attorney fees are set at $3,000.00. In all other respects the judgment of the trial court is affirmed. Defendant is to pay all costs of this appeal.

REVERSED IN PART; AFFIRMED IN PART AND RENDERED.

      . LSA-R.S. 22:657 provides in pertinent part:
      “A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. . . . "


author: WATSON, Judge.

text:
    STATE of Louisiana through the DEPARTMENT of HIGHWAYS, Plaintiff-Appellant, v. Leroy OLIVIER, Defendant-Appellee.
    No. 6746.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Donald Soileau, Mamou, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

This is an expropriation case, in which the Department of Highways has appealed, contending that the value assigned to defendant’s land by the trial court is excessive and that there is no basis for the award of severance damages. Defendant, Leroy Olivier, has answered the appeal, asking for an increase in the amount awarded. The facts and pertinent evidence are well-presented in the trial court’s reasons for judgment, as follows:

“Leroy Olivier ... is the owner of a certain tract of land in the L’Anse aux Pailles Community of Evangeline Parish, located at the intersection of La. Highway Nos. 104 and 1167, about six miles southeast of the City of Ville Platte.

“The site originally contained 0.83 acres and was reduced to 0.53 acres as a result of the taking. 0.30 acres of land was taken by the State. This consisting of a strip of land fronting on Highway 104 along the West end measuring a distance of 95 feet and along the East end a distance of 25 feet. A total of 120 feet of frontage of defendant, Leroy Olivier’s property along Highway 104 was taken. In addition, a strip of land 15 to 20 feet wide was taken to a point measuring 80' X 50' on the Northern side of defendant’s tract reducing the frontage on Highway 1167 from 260 feet to 180 feet. In addition, along the Eastern boundary a strip of 25 feet wide was taken all along the Eastern boundary reducing that frontage by 150 feet. Almost 40% per cent of the property was taken.

“The Department of Highways deposited the sum of $326.00 in the Registry of the Court.

“The matter was heard on February 16, 1978.
“The issues for resolution in this case are:
1. The value of the property expropriated; and
2. The amount of severance damages, if any, to which the defendant is entitled.

“Leroy Olivier, the owner of this tract of land, has been a country storekeeper for about 25 years. He formerly owned and operated a general merchandise store almost immediately across the road from the land in question. He decided to build a new store building on this triangular shaped piece of land as he found it more suitable and convenient. Mr. Olivier testified that he had also intended to build a filling station and welding shop, but that after the taking of his land by the Department of Highways, was unable to do so as the tract of land was now not large enough for that purpose. He did build a concrete block building to use as his store building, and presently operates his store there.

“The Department of Highways called Mr. Stanley Tiger as an expert appraiser. Mr. Tiger testified that when he first viewed the site in October, 1974, it was vacant and there were no improvements thereon. At that time it was covered with grass and weeds.

“He testified that, in his opinion, the highest and best use of the property was for a rural homesite, or rural commercial. He looked for comparable sales in the area, and located 15, but relied particularly on six of them. These six were all within two miles or so from the Olivier property, .

“Comparable Sale No. 1 is a 22 acre tract of land with improvements which sold for $21,000.00. Mr. Tiger estimated the value of the land above at $682.00 per acre. It is located on a gravel road.

“Comparable Sale No. 2 concerns a 32 acre tract of land, with improvements, and Mr. Tiger estimated the value of the land at $516.00 per acre. It is located on a secondary parish gravel road.

“Comparable Sale No. 3 is a 20 arpent tract of land with improvements. Mr. Tiger estimates the value of the land at $650.12 per acre. It is located on a parish blacktop road.

“Comparable Sale No. 4 is a 9.95 acre tract of vacant land. Mr. Tiger estimates it at $1,000.00 per acre, the amount of the sale. It is not located on a public road but must be reached through a third person’s property, or by a private lane.

“Comparable Sale No. 5 consists of a one-half acre vacant lot which sold for $500.00. Mr. Tiger places the value at $1,000.00 per acre. It was located on a gravel road at the time of the purchase.

“Comparable Sale No. 6 consists of a one-half acre vacant lot which sold for $500.00. Mr. Tiger places the value at $1,000.00 per acre. It was also located on a gravel road at the time of the purchase.

“According to Mr. Tiger, the highest and best use of these six tracts of land were for rural residential homesites, or in some cases, for pasture land.

“He also has in his appraisal report nine additional supplementary sales but they were not given as much weight by Mr. Tiger as the six above-mentioned sales. In these sales the price range is from $217.00 per acre to $1,667.00 per acre, and the properties vary in size from 2.89 acres to 454.48 acres.

“Incidentally, of the six comparable sales relied on by Mr. Tiger, five were executed in 1973 and one in 1974, and of the nine supplementary sales, eight were executed in 1973, and one in 1974.

“Mr. Tiger assigns a value of $1,200.00 per acre to Mr. Olivier’s property before the taking. He places a value of $192.00 on parcel No. 1-3, which consists of 0.16 acres; and $168.00 on parcel No. 1-3-D-l, which consists of 0.14 acres; or a total of $360.00 for the value of the land taken.

“He considers that there was no severance damage to the remainder of the property.

“He also testified that there was no inflationary trend, and no major fluctuations in value, and consequently, did not take this into consideration, or make adjustments in value, in estimating the property.

“Mr. Richard Reed, the owner of an insurance agency, and a Real Estate Broker, who lives in Mamou, Louisiana, testified as an expert appraiser in behalf of the defendant.

“He visited the site in question before and after the taking. He obtained two comparables. He took into consideration the location of the property which he calls ‘a unique tract’ in that it is located at an intersection where there is much traffic, and is situated in a very thickly populated area. He testified that, in his opinion, the highest and best use of the property was rural commercial, and not rural residential.

“Mr. Reed could not find comparable sales in the immediate vicinity, or anywhere nearby, and the two comparable sales he used were of property located about 12 or 14 miles from the Olivier property, near the intersection of La. Highway No. 10 and La. Highway No. 13 in a rural area very near the center of Evangeline Parish.

“His comparable No. 1 is for a tract of land consisting of a little more than half an acre of land. This sale took place in 1974. The consideration was $18,000.00 with improvements. Mr. Reed estimated the value of the land $12,000.00. Comparable No. 2 is a lot of land 50 by 121 feet, and Mr. Reed places a value on the land of $5,500.00. The sale was in 1972.

“He testified that the value of land has gone up about 10% since 1972.

“To sum up his testimony, using his com-parables and experience, he places a value on Olivier’s property of $24,000.00 per acre, which would be $19,920.00 which he rounds off at $20,000.00. He estimates the part taken at $7,200.00, and the severance damage at $5,609.00, or a total of $12,809.00.

“He testified that the property was damaged by the taking, and for many reasons, it is now less desirable as a commercial site. On the reduction of the site, as a result of the taking, Mr. Reed said, “It’s got to be bad.”

“The attorney for Olivier requested the Court to view the property in question; and the attorney for the Department of Highways requested the Court to view and observe every intersection on La. 104 from the St. Landry Parish line westward to its intersection about eight miles west with La. 29. The Court has done so.

“There are two state routes that intersect with La. 104 along this stretch of road. They are La. 1166 and La. 1165. However, there are no comparable or like intersection such as La. 104 and La. 1167, on that section of La. 104. It may be observed that the only grocery store, indeed the only business establishment on La. 104 from the St. Landry Parish Line to La. 29, is Mr. Olivier’s store.

“As almost invariably happens in expropriation cases, there is a direct conflict between the opinion of the experts, and in this case it is irreconcilable.

“In the Court’s opinion, Mr. Tiger places an extraordinarily low value on the property, and Mr. Reed too high a value. It thus becomes necessary to fix a valuation on the property taken, and on the severance damage which will be fair and equitable to both parties.

The Court makes the following findings of fact:

1. The highest and best use of the tract of land in question was for rural commercial.
2. The property was damaged by the taking.

“After a very careful review of the pleadings, evidence, and briefs filed herein, the Court finds that the value of the property prior to the taking was worth $12,000.00 per acre, which gives a value to Olivier’s property of $9,960.00, which the Court rounds off at $10,000.00.

“Accordingly, the Court will award the defendant landowner the sum of $3,600.00 for the part taken, and the additional sum of $2,804.50 for damages to the remainder caused by the taking, plus interest from June 17, 1975, until paid, and for all costs.

“The fee of the expert witness, Richard Reed, is fixed at $300.00, and taxed as costs. Plaintiff is entitled to credit for the amount deposited. (TR. 43 — 48).”

The trial court found it necessary to reject the appraisal conclusions of Mr. Tiger and to modify the appraisal conclusions of Mr. Reed. In this endeavor, the court viewed the property in question and other property in the area and concluded that a fair and reasonable allowance for the value of the subject property was on the basis of $12,000 an acre, representing 50% of the value assigned by Mr. Reed. The court apparently concluded that the comparables located at the intersection of Highways 10 and 13 had a value twice as high as that of the subject property. Thus the court awarded the sum of $3,600 for the land taken. The award does not represent an abuse of discretion and is neither excessive nor inadequate.

A more difficult question arises with reference to the severance damages. A careful reading of the testimony of Mr. Reed, the landowner’s expert, and a careful study of the trial court’s opinion does not reflect any sound legal basis for an award of severance damages. There is no evidence of a different market value for Mr. Olivier’s remaining property before and after the taking. State Dept, of Highways v. Gormley, 357 So.2d 859 (La.App. 3 Cir. 1978). Since there is no basis for calculating this item of damages, we must reverse that portion of the judgment.

Therefore, the award in favor of Leroy Olivier and against the State of Louisiana, through the Department of Highways, in the amount of $3,600, representing compensation for the land taken is affirmed, but the award of $2,804.50 for severance damages is reversed. The State is, of course, entitled to a credit for the deposit.

Costs insofar as allowed by law are taxed against the State of Louisiana.

AFFIRMED IN PART AND REVERSED IN PART.


text:
    Norman Jack FONTENOT, Plaintiff-Appellant, v. Freeman LAVERGNE et al., Defendants-Appellees.
    No. 6755.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Stoekwell, Sievert, Viccellio, Clements & Shaddock, John S. Bradford, Lake Charles, for plaintiff-appellant.
    Jack J. Rogers, Lake Charles, J. Michael Veron, Lake Charles, for defendants-appel-lees.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

Norman Jack Fontenot sues Freeman Lavergne, d/b/a Lavergne’s Bail Bonds, and Ron Biggs for damages as a result of an alleged false imprisonment at the instance of the defendants. From a judgment in favor of defendants, plaintiff appeals. We reverse.

This case involves the problem of false imprisonment through mistaken identity due to a similarity of names. Freeman Lavergne was engaged in the bail bond business doing business as Lavergne’s Bail Bonds. Employed in the business were Mr. Lavergne’s wife, Betty, his daughter, Cheryl McGee, and defendant Ron Biggs. Lav-ergne’s Bail Bonds issued a bond for a Norman Fontenot in the amount of $500.00 resulting from a felony theft charge. The address on Lavergne’s information card showed Fontenot’s address as being 615V2 Highway 171. Norman Fontenot failed to appear in court and a bench warrant was issued for his arrest. Lavergne was notified of the non-appearance and forfeiture possibility.

On the morning of February 11, 1977, Cheryl “Cookie” McGee was called by plaintiff, Norman Jack Fontenot, and asked if they would issue a bond for plaintiff’s girl friend who was in jail on a minor charge. Mrs. McGee testified that she met plaintiff at the City Police Station to attend to the bond. Upon meeting Fontenot she asked him if he had ever been bonded out of jail by Lavergne. He replied that Lavergne had never bonded him out but that he had always used another agency. She told plaintiff that Lavergne’s Bail Bonds was looking for a Norman Fontenot who had failed to appear in court. She stated that Fontenot told her that he wasn’t the Norman Fontenot they were looking for. Mrs. McGee executed the bond requested by plaintiff.

That afternoon, February 11,1977, Deputy Carl Beaugh, shift supervisor at the jail, received a call from Mrs. Betty Lavergne, stating that a bench warrant had been issued for Norman Fontenot and that he could be found at 3029 Reidway Street in Lake Charles. Deputy Beaugh checked his warrants and found one for a Norman Fon-tenot. He ordered the arrest of plaintiff at the Reidway address. The arrest was made and plaintiff was brought to the jail. He continually protested to the deputies that they had arrested the wrong Norman Fon-tenot. In view of these protests, Deputy Beaugh called Lavergne’s Bail Bonds and asked that someone be sent to the jail to identify the person arrested as being the one they had bonded.

Ron Biggs was sent to the jail where he identified plaintiff as being the Norman Fontenot they were looking for and the one that Lavergne’s Bail Bonds had bonded. Biggs, in his testimony, testified that he had previously located a Norman Fontenot as living at the Reidway address. He stated that he had not talked with Fontenot and did not know as a fact that the Norman Fontenot at the Reidway address was the Norman Fontenot that had been bonded by Lavergne’s Bail Bonds. Biggs stated that he had given the Reidway address to the Lavergne office. Deputy Beaugh testified that when Biggs made the positive identification of plaintiff, he imprisoned plaintiff.

The following morning, Herbert Rhodes, Jr., a friend of plaintiff, visited the jail and talked to the deputies about the mistake in their arrest of the plaintiff. Rhodes testified that he also talked to Freeman Lav-ergne at the jail and Lavergne insisted that the right man was in jail.

The following morning, Sunday, the shift supervisor at the Calcasieu Parish Jail, Deputy John Scott Doyle, learned of the above situation. He investigated the matter and found that Lavergne’s Bail Bonds had issued a bond on Norman Dwayne Fontenot. Deputy Doyle could find no bond on Norman Jack Fontenot (the plaintiff) issued by Lavergne’s Bail Bonds. Deputy Doyle concluded that the wrong Norman Fontenot had been arrested and released the plaintiff on Sunday afternoon. On Monday morning Deputy Doyle continued his investigation. He found four warrants for the same charge on Norman Dwayne Fontenot, whose address was learned to be 516V2 Highway 171, Lake Charles. He examined the original warrant, the mug shots, and the bonds in his files. (These files were not available to him on Sunday as this division of the Sheriff’s Department is closed on that day.) The only bond he could find on Norman Jack Fontenot was signed by J. H. Leger of the Imperial Insurance Company. He further found that the bonds on Norman Dwayne Fontenot were signed by Lav-ergne’s Bail Bonds. This confirmed that the wrong Norman Fontenot had been imprisoned.

The trial court held that the plaintiff had not proven malice by defendants and on this ground judgment was rendered in favor of defendants dismissing plaintiff’s suit. Plaintiff appeals.

The issue presented is whether malice is a necessary element of this type of tort.

The trial court erred in its conclusion that malice is a necessary ingredient to this type of tort. The Louisiana Supreme Court in the early case of Wells v. Johnston, 27 So. 185 (La.1898), where an arrest was made as a result of mistaken identity, held as follows:

“. . Two things are essential to constitute the offense [of false imprisonment]: First, detention of the person; second, the unlawfulness of such detention. The unlawfulness of the detention is the gravamen of the offense. Hence it may be committed without malice on the part of the person causing the detention. It is not necessary that the unlawful act (false imprisonment) be committed with malice or ill will, or even the slightest wrongful intention. Consequently the question of malice is immaterial, except as it may affect the question of damages.”

We also find that, as the tort of “false imprisonment” developed, the courts have categorized “false imprisonment” as a type of tort to be decided according to Louisiana’s basic tort law found in C.C. art. 2315. Jones v. Simonson, 292 So. 251 (La.App. 4th Cir. 1974), and Arellano v. Henley, 357 So.2d 846 (La.App. 4th Cir. 1978).

In Arellano, the court, in speaking of “false imprisonment”, held as follows:

“We are called upon to decide whether these actions on the part of the defendant constituted fault under Article 2315 so as to entitle these plaintiffs to damages for the injuries which they have certainly suffered. This court in Jones v. Simon-son, 292 So.2d 251 (La.App. 4th Cir. 1974), aptly set forth the applicable considerations:
‘Great caution is necessarily demanded in determining “fault” in the context of society’s efforts to suppress crime. Our Civil Code does not intend, and society could not tolerate, that reasonable efforts towards crime suppression be punished, and therefore curtailed, by civil liability for simple mistake. However, the efforts must be reasonable; the individual remains obliged to act as a reasonable person would, taking into consideration all of the circumstances. “Falseness” and “malice” serve conceptually to emphasize that not every mistake in defending one’s self or community against crime is actionable “fault,” but only such mistake as is not reasonably justified by the surrounding circumstances.’ (Emphasis added.) 292 So.2d at 253.”

Applying these principles to the facts and circumstances we conclude that defendants were not reasonable in their actions herein. Ron Biggs made a positive identification of the plaintiff as being the Norman Fontenot that Lavergne’s Bail Bonds had bonded. He did this even though he admitted in his testimony that he didn’t know as a fact that plaintiff was the man they were looking for. Further, Freeman Lavergne insisted they had arrested the right man even though he had no personal knowledge of the identity of plaintiff. The agency was put on notice immediately after the arrest that there existed a question of identity of the arrested person. Also, on the morning before the arrest, plaintiff told “Cookie” McGee, an employee of Lavergne’s Bail Bonds, that he was not the Norman Fontenot they were looking for. No steps were taken by the agency to verify identification. Under these circumstances, we conclude that the defendants were clearly at fault in causing the arrest and the imprisonment by their identification without having the personal knowledge to properly do so. For this reason, plaintiff is entitled to recover any damages he may have incurred.

We move now to the consideration of damages. Plaintiff contends that this approximate 48 hours of incarceration caused him to suffer both mentally and physically to the extent that he had to terminate his attendance at McNeese University and also to quit his job with a roofing concern.

Dr. Gilíes Morin, a psychiatrist, examined plaintiff, 34 years of age, on June 10, 1977. He testified as follows:

“In summary, in my opinion, we are dealing with a rather rigid individual, who has had problems with anxiety and depression for a number of years, and was trying to cope by the abuse of alcohol. It may be that the false arrest triggered off a somewhat deeper depression, but I do not feel that this would stop him from functioning or returning to school.”

Dr. Morin also stated that plaintiff told him that his girl friend had died a few days before the examination. This plus his drinking could be a cause of the depression which was present when Dr. Morin saw plaintiff.

Dr. Harry S. Snatic saw plaintiff the day after he was released, February 14, 1977, and stated that plaintiff was nervous. He prescribed valium. He also saw plaintiff on other occasions for nervousness and prescribed valium. This physician was not able to say that plaintiff’s nervousness was caused by the incarceration. He thought the incarceration may have “shook up” the plaintiff thereby aggravating an existing condition.

The plaintiff testified that he had had problems in his past. He and his wife were to get a divorce in July, 1977. He had drinking problems which led to his being arrested several times.

The physicians’ testimony convinces us that plaintiff may have suffered some temporary aggravation of an existing condition but such was not the cause of his termination of college or work. His unlawful incarceration was for a period of approximately 48 hours. We conclude that an award of $4,000.00 for general damages would be adequate. He also will be allowed $118.64 for medical and drug expenses.

For the reasons assigned, the judgment of the district court is reversed, and it is hereby ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Norman Jack Fontenot, and against defendants, Freeman Lavergne, d/b/a Lavergne’s Bail Bonds, and Ron Biggs, in solido, in the full sum of $4,118.64, with legal interest thereon from date of judicial demand until paid. All costs, including costs of appeal, are assessed to the defendants.

REVERSED AND RENDERED.


author: FORET, Judge.

text:
    Doug ASHY et al., Plaintiffs-Appellees, v. COSMOPOLITAN CREDIT & INVESTMENT CORPORATION et al., Defendants-Appellants.
    No. 6756.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Donald R. Miller, Shreveport, for defendants-appellants.
    Ross A. Brupbacher, New Iberia, for plaintiff s-appellees.
    Jon Sarver, Norris Sarver, Lake Charles, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

This is a suit filed on March 14, 1978, by two of eight guarantors against four of the remaining guarantors of a continuing guarantee agreement. No answer was filed by any of the defendants, and on April 10, 1978, plaintiff allegedly entered a preliminary default against two of the defendants and then after a hearing on April 27, 1978, confirmed the default as to the two defendants, Cosmopolitan Credit & Investment Corporation and Elizabeth Erholm. They have timely appealed the default judgment.

Upon appeal, Cosmopolitan and Er-holm urge that the trial court erred in entering a judgment of default when a preliminary default was not entered prior to such confirmation. We have determined that the defendants are correct in this allegation, and we thus reverse the decision of the trial court without need to consider other assignments of error.

Articles 1701 and 1702 of the Louisiana Code of Civil Procedure provide for the taking of a judgment by default:

“Art. 1701. Judgment by default
If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.” Amended by Acts 1968, No. 126, § 1. “Art. 1702. Confirmation of default judgment
A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.”
Amended by Acts 1968, No. 88, § 1.

In the present suit, the only “preliminary default” shown is entered as follows at Page one (1) of the transcript:

“Lake Charles, Louisiana, April 10, 1978.

Court met, His Honor L. E. Hawsey, Jr., Judge presiding, with Alphonse Mancuso, Deputy Sheriff, and Agnes Kloor, Deptuty [sic] Clerk of Court, in attendance.

THE COURT ORDERS A PRELIMINARY DEFAULT ENTERED IN EACH OF THE FOLLOWING CASES:

78-2045 Doug Ashy, et al. vs. Forrest Village Partnership”

No place in the record is there entered a preliminary default against Cosmopolitan or Erholm, appellants herein. Who or what Forrest Village Partnership is or was is not revealed by the record of the case.

The presumption that a default judgment is founded on sufficient evidence is only a prima facie presumption which may be overcome by evidence in the record to the contrary. Robertson Factories, Inc. v. Southern Apartment Furnishings, 316 So.2d 145 (La.App. 2 Cir. 1975); Baker Finance Company v. Hines, 255 La. 971, 233 So.2d 902 (1970). As there is no evidence in the record of a preliminary default being entered against the appellants, the default judgment against them must be vacated.

“LSA-C.C.P. Arts. 1701 and 1702 provide that a judgment by default may be rendered against the defendant who fails to answer and may thereafter be confirmed after two days from the entry of the judgment of default. A plaintiff must obtain a preliminary default against a defendant as a prerequisite to obtaining a valid judgment of default against him. Welch v. Welch, 169 So.2d 713 (La.App. 4th Cir. 1964).”
American Fidelity Fire Ins. Co. v. Binnings Const. Co., Inc., 302 So.2d 320 (La. App. 4 Cir. 1974).

There is no joinder of issue between a plaintiff and defendant until defendant files an answer or the plaintiff obtains the legal entry of a preliminary default against the defendant. Morgan v. Toups-Cook Truck Sales, Inc., 178 So.2d 786 (La.App. 1 Cir. 1965); Gossett v. Nealy, 230 So.2d 671 (La.App. 3 Cir. 1970); Guaranty Bank & Trust Co. v. Quad Drilling Corp., 284 So.2d 351 (La.App. 1 Cir. 1973), writ refused.

Finding no valid preliminary default was entered against these two named defendants as required by Code of Civil Procedure Article 1702, the default judgment entered by the trial court is reversed and remanded to the trial court for further proceedings.

Costs at the trial level and of this present appeal shall be assessed by the trial court, as in its judgment appears equitable, after further proceedings in the matter at the trial court level.

REVERSED AND REMANDED.

      . Cosmopolitan had been served with process on March 16, 1978, and Erholm had been so served on March 20, 1978.


text:
    Clifton J. DUPRE, Plaintiff-Appellant, v. Sarah MAY, Defendant-Appellee.
    No. 6765.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Pucheu & Pucheu, Jacque B. Pucheu, Eunice, for plaintiff-appellant.
    Young & Burson, M. Terrance Hoychick, Eunice, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff appeals from a judgment ordering him to pay child support in the amount of $400 per month for Christopher Dale Dupre, age six, the only child of the now divorced parties. The sole issue presented is whether the trial judge abused his much discretion in making the child support award.

Under Civil Code Article 231, child support payments are fixed on the basis of the ability of the parent to pay and the child’s needs. Appellant cites several cases attempting to show that most prior awards of this amount were assessed against “professionals,” i. e., doctors, lawyers, dentists, etc. His claim is that children from those homes have a higher station in life and likewise, higher needs. We cannot agree with this proposition.

As appellant is aware, each case must stand on its own particular facts. The fact that plaintiff is an electrician does not prevent him from providing a high standard of living for his children. With an annual salary of approximately $25,300, Mr. Dupre is above the income of many labeled “professional”. The title and status of one’s vocation will not determine whether the award is proper. Our courts will look to the particular circumstances and facts of each particular case.

Appellant further suggests that the needs of the child do not justify such an award. The expense list of defendant apportions $595 per month as the base amount of support needed for support of Christopher Dale. This amount was reduced to approximately $527 because of a stipulation between the parties. Plaintiff would now have us further reduce the apportionment by finding it unreasonable.

The trial court is vested with considerable discretion in fixing child support payments. Such determinations will not be disturbed unless there appears to be an abuse of that discretion. Gravel v. Gravel, 331 So.2d 580 (La.App.3rd Cir. 1976). After having read the record, we find that the support award is within the limits of discretion allowed the trial judge.

For the reasons stated above, the judgment appealed from is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., and Parish of St. Landry, Plaintiffs-Appellees, v. TWO O’CLOCK BAYOU LAND COMPANY, INC., et al., Defendants-Appellants.
    No. 6768.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Writ Refused Feb. 9, 1979.

      Dubuission, Brinkhaus & Dauzat, Jerry J. Falgoust, Opelousas, for defendants-appellants.
    David C. Kimmel, Asst. Atty. Gen., Baton Rouge, Morgan J. Goudeau, III, Dist. Atty., Opelousas, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Plaintiffs, the State of Louisiana and the Police Jury of the Parish of St. Landry, asked that defendants, Two O’Clock Bayou Land Company, Inc., and its lessee, Creighton James Nall, be enjoined from maintaining a cable across Two O’Clock Bayou. Plaintiffs also sought a declaration that the stream is navigable and subject to public use. The trial court declared the stream navigable and granted the permanent injunction. Defendants have appealed.

The question presented is whether the bayou is navigable, entitling the Parish and the State to enjoin its obstruction by privately owned barriers. LSA-C.C. art. 453; LSA-R.S. 14:96, 97; Discon v. Saray, Inc., 262 La. 997, 265 So.2d 765 (1972).

Two O’Clock Bayou runs roughly north and south through St. Landry Parish in the Atchafalaya Basin Swamp area, crossing sections 14 and 13, T-6-S, R-6-E, and sections 11 and 12, T-6-S, R-7-E. The bayou, at one time, connected with Darbonne Bay on the north and Craft Lake on the south, but dams have now closed off boat access to these areas. Two O’Clock Bayou crosses Cowan Bay and Close Lake. A recent dam was built by a pipeline company roughly halfway between Close Lake and Craft Lake.

In 1808, the bayou appeared on the Darby survey as an unnamed tributary feeding into Bayou De Grasse. Two 0’Clock Bayou’s northern portion, above Cowan Bay, has apparently moved half a mile to the west. Although it was not meandered by Darby, defendants’ expert forester, Lewis C. Peters, admitted that the bayou could in fact have been navigable in 1808. Darby also failed to meander Bayou Courtableau, a primary navigable stream in the area. At times, in the intervening years, the bed of Two O’Clock has been dry enough to allow germination of cypress trees. The younger trees are approximately 100 years old, showing that the bed was dry 100 years ago. The stumps of the older cypress trees were about four hundred years old when cut in the early nineteen hundreds. Photographs in evidence show large trees and stumps in the bayou, but there is a passage space 10 to 12 feet wide between the old cypress stumps. (TR. 112). The water level at the time the photos were taken was admittedly low.

Creighton James Nall, the lessee, testified in deposition that there are pilings and a trestle at Cowan Bay which he believed to be the remnants of a dummy railroad line used for timbering operations. Nall testified on oral examination that he placed the cable at the northern end of the bayou just south of the old Missouri Pacific right of way to control access by the public. A dam had been built just north of the cable’s location some ten years before by Walter Buchanan. Nall said the shallowest portion of the bayou is from SV2 to 7 feet deep. At the narrowest part of the bayou, where there are old pilings at the abandoned railroad right of way, there is an opening 8 to 10 feet wide, (photograph # 15; TR. 111).

Preston Scruggins testified in deposition that he helped build the railroad trestle at Cowan Bay around 1935, when there was only a foot of water in the bayou. According to Scruggins, Two O’Cloek was only suitable for pirogue use at that time.

Joe Elder testified in deposition that he is a lumberman and had a mill at Bayou Close near Lottie in 1931. His company harvested timber around Two O’Clock Bayou, snaked the logs to the bayou and floated them out behind small motor boats. The logs were tied together in rafts or cribs about four feet wide.

Fifteen people attested to their use of Two O’Clock Bayou for fishing over various periods of time, commencing as early as 1930. Emile Miller testified that he had used the bayou for fishing for 26 or 27 years. Ernie Kovack did sport fishing in the bayou, going as far south as Craft Lake in a boat with a two foot draft. A. K. Miller said he had fished the bayou since around 1936 and had seen many commercial fishing boats there.

W. A. Welch has utilized the bayou for fishing since the mid fifties and has traversed the bayou its entire length beginning at Craft Lake on the south. Welch witnessed use of the bayou by a motion picture company filming “Nevada Smith”. The company operated barges on the bayou measuring about 12 feet wide and twenty feet long. Their draft was estimated by Welch at about three feet. According to Welch, the bayou is about three feet deep in the shallowest part of the main channel at low water.

Arthur Roy Shay said he had used the bayou for fishing since 1948, using motors up to 50 horsepower in size. A dam at the northern crossing of old highway 190 and the Missouri Pacific Railroad now obstructs passage into Darbonne Bay on the north. Shay measured a spot 37 feet deep in the bayou where it empties into Close Lake on the south. Another spot at the northern edge of Cowan Bay is twenty feet deep. Shay estimated the average depth of the bayou at nine feet. In his opinion, based on frequent use of a depth finder, the bayou’s depth fluctuates three or four feet during periods of high water.

Sherby J. Skrantz testified that he had been familiar with Two O’Clock Bayou since 1949 when he assisted his father in commercial fishing operations there, using a “Joe-boat” four feet wide and fourteen feet long. They caught two to three hundred pounds of fish a night, fishing as far south as Craft Lake. He knew of four other commercial fishermen who used the bayou. Some garfish from Craft Lake weighed in at up tó 110 pounds.

In evidence are 1860 patents to sections 14 and 11 and part of section 13 issued by the Louisiana Land Office.

Tax receipts were introduced in evidence to prove that Two O’Clock Bayou Land Company had paid taxes on all of section 13 and 14, T — 6-S, R-6-E, without any deduction for a navigable waterway. The land company also paid taxes on the part of section 11, T-6-S, R-7-E, crossed by the bayou, but the tax receipt notes that this W V2 of the W V2 of section 11 “Includes 13 acres used by the U.S. Government for levee and high level crossing rights-of-way.” (TR. 44). Payment of taxes on section 12, T-6-S, R-7-E, where the southern part of the bayou empties into Craft Lake is not claimed by the land company;

Savano Bernard Langlois, an expert surveyor, testified that Two O’Cloek Bayou appears in its present location south of Cowan Bay on Darby’s 1808 survey notes and the U.S. geodetical map (Exhibit 8) but not north of Cowan Bay. The northern portion of Two O’Clock Bayou is a new stream a half mile to the west. In Lan-glois’ opinion, the 1829 and 1842 maps and surveys indicate that Two O’Clock Bayou was not considered navigable when they were made.

The trial court concluded that the bayou has an average depth of nine feet, and averages 18 to 30 feet in width. The trial court made a factual finding that the bayou is capable of sustaining commerce despite occasional obstructions in its flow.

Navigability is not presumed; the burden of proof rests with the party seeking to establish it. Johnson v. State Farm Fire and Casualty Company, 303 So.2d 779 (La.App. 3 Cir. 1974); Burns v. Crescent Gun & Rod Club, 116 La. 1038, 41 So. 249 (1906). The trial court concluded that plaintiffs had sustained the burden of proving Two O’Clock Bayou to be a navigable stream.

A body of water is navigable in law when it is navigable in fact. State v. Jefferson Island Salt Mining Co., 183 La. 304, 163 So. 145 (1935) cert. den. 297 U.S. 716, 56 S.Ct. 591, 80 L.Ed. 1001, rehearing denied 297 U.S. 729, 56 S.Ct. 667, 80 L.Ed. 1011. The factual question turns on whether the evidence shows a body of water to be suitable by its depth, width and location for commerce. However, lack of commercial traffic does not preclude a finding of navigability. State v. Capdeville, 146 La. 94, 83 So. 421 (1919) cert. den. 252 U.S. 581, 40 S.Ct. 346, 64 L.Ed. 727. A stream, to be navigable, must be usable for commerce in its natural state or ordinary condition. Madole v. Johnson, 241 F.S upp. 379 (1965); The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1870); Delta Duck Club v. Barrios, 135 La. 357, 65 So. 489 (1914). Construction of a dam across a bayou does not change its status as a navigable stream. Beavers v. Butler, 188 So.2d 725 (La.App. 2 Cir. 1966) writ refused 249 La. 739, 190 So.2d 242. A body of water can be navigable despite natural or man-made obstructions. Terre-bonne Parish School Board v. Texaco, Inc. 178 So.2d 428 (La.App. 1 Cir. 1965) writ refused 248 La. 465, 179 So.2d 640, cert. den. 384 U.S. 950, 86 S.Ct. 1568, 16 L.Ed.2d 546.

In the instant case it is difficult to determine whether Two O’Clock Bayou was navigable in its ordinary condition because the bayou is not presently in a natural state, having been dammed, bridged and otherwise interfered with over a period of time.

The question of navigability of Two O’Clock Bayou in 1812 is only pertinent to the question of ownership of the bed of the bayou. It has no relevance to the question of whether or not passage on the stream can be obstructed by defendants. Begnaud v. Grubb & Hawkins, 209 La. 826, 25 So.2d 606 (1946); Discon v. Saray, Inc., supra. Therefore, the evidence that parts of the bayou bed were dry as recently as 100 years ago does not affect the State’s right to enjoin its obstruction if it is in fact a navigable waterway. Discon v. Saray, Inc., supra. Here, unlike the situation in National Audubon Society v. White, 302 So.2d 660 (La.App. 3 Cir. 1974) writ denied 305 So.2d 542 (La., 1975) and Vermilion Corp. v. Vaughn, 356 So.2d 551 (La.App. 3 Cir. 1978) writ den. La., 357 So.2d 558, the waterway is not privately constructed and does not lie wholly within the confines of the property owned by the defendant land company.

The evidence allows a reasonable inference that Two O’Clock Bayou is navigable in fact, except for various man-made obstructions. It has in the past sustained commercial fishing and logging, which are types of commerce. There is no prescription right to obstruct navigation on a navigable stream. Ingram v. Police Jury of Parish of St. Tammany, 20 La.Ann. 226 (1868). The bayou, in its natural state, afforded a channel for navigation although there are now certain difficulties in the form of natural and man-made barriers. The fact that bridges have been built, with or without legal authority, and there is a resulting accumulation of timber, which, to some extent, obstructs and impedes navigation does not preclude a finding that a stream is navigable. Goodwill v. Police Jury, 38 La.Ann. 752 (1886). See the discussion of navigability in fact and law in D’Albora v. Garcia, 144 So.2d 911 (La.App. 4 Cir. 1962) cert. den.

The trial court’s conclusion that Two O’Clock Bayou is navigable is not manifestly erroneous and therefore must be affirmed.

For the foregoing reasons, the judgment of the trial court herein is affirmed at the cost of defendants-appellants.

AFFIRMED.

      . Title to the bed of the bayou is not at issue. Obstruction of the bayou can be enjoined if it is navigable, D’Albora v. Garcia, 144 So.2d 911 (La.App. 4 Cir. 1962) writ denied; Discon v. Saray, Inc., 262 La. 997, 265 So.2d 765 (1972). Here, in contrast to Vermilion Corp. v. Vaughn,
        356 So.2d 551 (La.App. 3 Cir. 1978) writ denied 357 So.2d 558 and National Audubon Society v. White, 302 So.2d 660 (La.App. 3 Cir. 1974) writ denied 305 So.2d 542 (La., 1975) the bayou is not artificial and its bed does not lie wholly within the confines of defendants’ land. See 33 La.Law Review 172.

      . From Craft Lake, Adams Bayou leads into Mary Cane Lake, which feeds into Big Bayou De Grasse and Bayou Big Graw. Darbonne Bay connects with Bayou Courtableau.

      . The latter estimate is apparently based on study of the various maps and exhibits. See the testimony of Peters at TR. 123 and 124 that the bayou's width at one point was seventy-five links or fifty feet.

      . Testimony was taken at the hearing for a preliminary injunction which was denied by one division of the trial court because of the close question presented. The hearing on the merits was scheduled before another division of the trial court, but counsel elected to submit the matter on the record and depositions. The author of the opinion believes the manifest error rule to be applicable. Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La., 1974); State Through Dept, of Highways v. Mclnnis, 360 So.2d 887 (La.App. 3 Cir. 1978). No contention to the contrary has been made by appellants.