author: SWIFT, Judge.

text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, Plaintiff-Appellant, v. GIANT ENTERPRISES, INC. and American Fidelity Fire Insurance Company, Defendants-Appellees.
    No. 6879.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 1979.
    Rehearing Denied June 21, 1979.

      Landry, Watkins & Bonin, William 0. Bonin, New Iberia, for defendant-appellant.
    Deutsch, Kerrigan & Stiles by Marian Mayer Berkett, New Orleans, for defendant-appellee and defendant-appellant, American Fidelity Fire Insurance Co.
    Lewis Ray Sleeth, Jena, for defendant-appellee.
    Edward G. Randolph, Jr., Alexandria, for plaintiff-appellee.
    Before WATSON, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

The above numbered and entitled suit grew out of a contract dated January 31, 1972, between Central Louisiana Electric Company, Inc. (Cleco) and Giant Enterprises, Inc. (Giant) for the clearing of land to create a lake to be used in connection with Cleco’s proposed Rodemacher Power Station. It was consolidated for trial and appeal with No. 6880 on the docket of this court entitled, “Labor Services, Inc. v. CFC Construction Company et al.,” La.App., 371 So.2d 654. Although this opinion will deal with both cases, separate decrees will be rendered in each one.

In No. 6879 Cleco seeks damages from Giant and its surety, American Fidelity Fire Insurance Company (American), for alleged breaches of Giant’s clearing obligation. Giant’s defense is that Cleco failed to comply with its contractual obligations, mainly in not timely acquiring and making available for clearing the land and timber affected by the contract. American defended on the basis that it was released from its suretyship obligation by reason of alterations of the contract by the parties without its consent and Cleco’s failure to give it notice of Giant’s alleged breaches. American filed a third party demand against Giant, its president, Carl F. Childress, his wife and Lewis R. Sleeth on an indemnity agreement executed in connection with the issuance of the bond.

Labor Services, Inc. (Labor), the plaintiff in the suit No. 6880, sued CFC Construction Company (CFC), as Giant’s subcontractor or assignee, Cleco and American to recover under the Private Works Act (LSA-R.S. 9:4801 et seq.) sums allegedly due for services, labor and materials furnished on the project by Labor under a subcontract with CFC. Cleco third-partied Giant and American and the latter did the same to its in-demnitors.

A third suit, filed by CFC against Cleco for damages allegedly incurred from its attempted performance of the contract, was also consolidated for trial with the other suits. However, we are not concerned with it as no appeal was taken from the judgment denying recovery by CFC.

In our No. 6879 the trial court rendered judgment against Cleco denying recovery from Giant and American and the plaintiff therein appealed suspensively.

In the other suit judgment was rendered in favor of Labor against CFC and Cleco for $21,000.00, with interest and costs. On the third party demands, judgments were rendered in favor of Cleco against Giant and American for the amount of Labor’s judgment against Cleco and in favor of American and against the indemnitors named above for the amount of Cleco’s judgment against American, reserving to the latter the right to establish its claims for attorneys fees and expenses when finally determined. Both Cleco and American perfected suspensive appeals. None of the other parties appealed or answered the appeals in this suit.

THE ISSUES

The principal issues presented on these appeals are:

I. Whether Cleco substantially breached the contract, thereby precluding its claim for damages resulting from Giant’s nonperformance?

II. Whether American was released from its bond obligation by alterations of the original contract by its parties without the surety’s knowledge and consent?

III. Whether Labor is entitled to a personal action against Cleco under the Private Works Act and, if so, what items are recoverable therein?

THE FACTS

The lake to be developed through damming the cleared land was to be used for cooling the generators in an electric power plant which Cleco was constructing. It was scheduled to be in operation in June, 1975, before the peak load season, and to accomplish this Cleco believed it was necessary to begin impounding water behind the dam by November 1, 1972. Consequently, that was the completion date in the contract whereby Giant agreed to remove and dispose of all trees and other woody growth larger than two inches in diameter and/or eight feet in length below the 100 foot elevation of the clearing area. The consideration therefor was the lump sum of $494,218.00.

Although the contract was dated January 31, 1972, and contained a starting date of February 1, 1972, it was not actually signed by Giant and delivered to Cleco for its signature until February 22, 1972. However, Giant was notified by telephone and in writing shortly before February 1, 1972, that it was the successful bidder. The performance bond, which by agreement was reduced from the amount of the contract to $200,000.00 because that was all Giant could obtain, was not furnished until about May 1, 1972.

On May 9, 1972, Giant executed a subcontract and also an assignment of all its rights and obligations under the clearing contract to CFC. At this time Charles F. Childress was the owner of all of the stock and president of both corporations. This transfer of interest was never approved in writing by Cleco as required by the clearing contract with Giant. However, Cleco continued to deal with Mr. Childress, as president of both companies, in regard to the clearing subsequently done by CFC.

During the first two months of the contract period the work actually performed consisted simply of Giant’s engineers, Sample and Jenkins, staking the contours of the lake and Ray Dauzat, a subcontractor of Giant, clearing approximately 40 acres of land during a total of about five working days. Giant itself did not begin work on the project until April 6, 1972. This delay apparently came about because Mr. Chil-dress, the Giant’s project manager, and the equipment to be used were on another job in Oklahoma.

Cleco made repeated oral and written requests that Giant pursue the work more diligently and employ more men and equipment. Giant gave similar, but not nearly as many, notifications that its operations were being hindered and made more costly by the lack of available land to clear. Also, it complained of flooding caused by obstruction of the natural drainage by other contractors. However, as late as August 29, 1972, with much of the most difficult work left to be done, Giant continued to express confidence in its ability to perform. By this time Childress had decided they were not going to be able to successfully drain Grubb Lake and other swampy areas and to cut the timber therein with bulldozers as contemplated, so he proposed amending the clearing contract to provide for hand-cutting of the trees with chain saws and removing the logs and debris when they floated to the surface after the water was impounded. The amendment also called for a change in the price and required American’s approval. Although no definite agreement in this respect was ever reached by the parties, CFC went forward with chain saw operations.

While it had been discussed before and Giant had instructed its engineers not to stake the proposed fish habitats, it was not until January 15, 1973, that Cleco gave written notification that it was deleting 330 acres, previously pointed out for this purpose, from the clearing contract and requested negotiations for a price reduction as provided therein.

The contractor failed to finish the clearing by November 1, 1972, the completion date in the contract. However, impoundment of the reservoir was not begun until March, 1973. The last work done on the project by Giant or CFC was in early February of that year. By letter dated March 12, 1973 Giant was formally placed in default. At that time 160 acres of timber in the Grubb Lake area remained uncut. Also, in low areas surrounding the lake and in the fingers north of the dikes timber that had been cut by chain saws was left on the ground. Thereafter, Cleco employed others to complete the clearing operation at a cost of $305,992.54.

The trial judge held generally, “. that Cleco was mutually at fault with Giant in causing Giant’s breach, and that Giant too, for various reasons, was also responsible for its own failure to fulfill its contractual obligation to clear the lake area.” Therefore, neither Cleco nor CFC were entitled to recover in their respective suits. As authority, he cited Silverman v. Caddo Gas & Oil Co., 127 La. 928, 54 So. 289 (La.1911) and the court’s syllabus which reads:

“A party cannot claim damages for the nonperformance of a contract as to which he himself is in default.”

The Louisiana law on this subject is also generally stated in Olympic Insurance Company v. H. D. Harrison, Inc., 463 F.2d 1049, 1053 (5 Cir. 1972) as follows:

“Similar to other jurisdictions, Louisiana recognizes the principle that where one party substantially breaches a contra t the other party to it has a defense and an excuse for non-performance.”

Neither side finds fault with this principle of law. Nor do we.

Unquestionably, Giant defaulted in its obligation to clear the land according to the terms of the contract. But its surety, American contends, as it did successfully in the trial court, that Giant’s failure to fully perform was excused by substantial breaches of Cleco’s obligations under their contract in: 1) Failing to provide timely sufficient lands free of timber reservations on which Giant could work economically; 2) Failing to coordinate adequately the work of various contractors on the site; 3) Failing to pay monthly installments according to the terms of the contract; and 4) Interfering with Giant’s right to timber on the site.

Cleco emphatically denies it breached the contract in these respects and contends that Giant simply failed to timely and properly pursue the work with sufficient men and equipment.

I.

(1) Availability of Lands.

The record reflects that at the inception of the contract approximately one-half of the total acreage had been acquired by Cleco free of timber reservations and was available to the contractor for clearing. According to a letter dated January 21, 1972, from Cleco’s project engineer, J. T. Simms, Jr., to Giant’s then president and attorney, Louis R. Sleeth, confirming their discussions at a meeting on January 19:

“We discussed the fact that approximately xh of the total acreage within the confines of the clearing limits have not been acquired by Cleco, yet. We are negotiating with two land owners at present on a major portion of this and expect good news shortly. Presently about 1576 acres are in Cleco’s possession, within the confines of the clearing limits, of which about 644 acres are in swamp, 469 acres in hill timber or cut over lands, and 463 acres in pasture and pecan trees. The majority of the 644 acres in swamp is contiguous to itself and to the bayous that form a drainage outlet from the swamp. You felt sufficient acreage of all types was presently in Cleco possession to allow starting of work, and the unac-quired property would cause no hardship provided it was obtained in a reasonable time. If the contractor was delayed because of lack of property to work in, Cleco would discuss compensation for this, if contractor could show he was hurt by this delay.”

Mr. Childress testified in this regard as follows:

“Q Did anyone at Giant Corporation ever tell you how much land that was available for clearing before you moved on it?
A Yes, sir, they said it wasn’t all available, the exact acreage I don’t remember, but said it wasn’t all available.
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Q How did you get that information and from whom?
A Prom either Mr. Sleeth or Mr. Baker, Buddy Baker, one.
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Q When was that?
A It was between the bid date and the signing of the contract somewhere and I’d say in late January or February.
Q Was your advice sought as to whether Giant would go ahead and sign that contract knowing that all the land was not available at the time?
A Yes, sir.
Q Your opinion was sought as the project engineer?
A Yes, sir.
Q And it was your opinion that the . . - that Giant would go ahead even though all the land was not available?
A Yes, sir.
Q Did you make any inquiry of anyone as to exactly what land was available or would be available at the time of the signing of the contract?
A Yes, sir, Mr. Simms and I discussed it. I don’t remember what time it was, but Mr. Simms and I discussed the availability of land and how much it was there and how long it would be before they got the rest of it.
Q But you knew at the time the contract was signed what land was available at that time, did you not ?
A Yes, sir.
Q And you were satisfied that you could go ahead?
A Yes, sir." (Emphasis added)

Thus, it is clear Giant knew before the contract was signed what land and timber were available and was satisfied it could go ahead with its operations under the contract without hindrance from this factor. Mr. Childress did say Cleco had informed him it had the right to expropriation and could get the additional land within 90 days, if necessary. However, this was not confirmed by Mr. Simms, and it was not shown with any degree of certainty that Cleco failed to so obtain within such time any particular tract which Giant needed.

By letter of March 10, 1972, Cleco furnished Giant the names of the persons from whom it had acquired land, with the dates on which any reserved timber rights expired, and also a map prepared by Pan American Engineers locating the tracts. Cleco continued to cooperate with Giant in this respect.

Both parties agreed that the swampy areas, and particularly that referred to as Grubb Lake, should be cleared first. This was made clear by the testimony of both Mr. Sleeth and Mrs. Childress and also confirmed in the above mentioned letter of January 21, 1972 as follows:

“You plan to concentrate on the hardest to clear areas first. If a time problem developes in the future, some additional time beyond November may be allowed on clearing on the higher ground, while the lake is filling. You could and would do clearing from barges if necessary while the lake is filling, in the swampy areas, you said.”

Giant made two unsuccessful attempts to drain the swampy area, first by cutting a drainage ditch with a dragline and then extending same through blasting with explosives. It was not established whether or not the area could be drained by other methods. The trial judge traced Giant’s difficulty in draining Grubb Lake to negligent clearing which barricaded and prevented its natural drainage. He also concluded that the presence of an artesian well condition did not render the contract impossible of performance.

In any event, as heretofore mentioned, the contractor concluded that such drainage was not economically feasible and continued to fell timber in higher locations and eventually cut most of the trees in the swampy areas with chain saws rather than tractors.

Giant had no records to establish its contention that its operations were shut down or delayed at any particular times for definite periods by reason of the unavailability of lands. Mr. Childress testified that Giant’s activities were hampered frequently by the lack of timberlands to cut, but he was able to recall only one particular instance of this nature where he said he had paid $50.00 to an adjoining landowner to prevent interruption of the continuity of the clearing operations. On the other hand, Mr. Simms’ assistant, George E. DeSoto, kept detailed records of where and when the clearing took place and both insisted that timberland was always available for Giant’s operations. From our review of the record, we believe this was the case, but after the clearing was well underway it appears that most of the available acreage was in the swampy areas.

The contract, of course, provides that all of the land affected thereby be cleared. Consequently, there was sufficient timberland available for this purpose at all times. Certainly, it cannot be said that Cleco substantially breached the contract in this respect, in the absence of a showing that it was responsible in some way for the difficulties encountered in cutting the timber in the wet areas.

Paragraph 3 of the General Conditions of the clearing contract provides in part as follows:

“Contractor shall make a thorough field check for the purpose of verifying existing conditions that may affect the WORK, such as: possible errors in work previously done by others, difficulties that might be encountered in the execution of the WORK for any other reason, and dimensions and other questions relating to inter-connection of the WORK with the work of other.” (Emphasis added.)

Paragraph 9 of such conditions provides in part as follows:

“If completion of the WORK is delayed by an act or neglect of Purchaser or other contractor in the employ of Purchaser, by strikes, or by other exceptional conditions over which Contractor has no reasonable control the time of completion shall, upon receipt of Contractor’s written request, be extended by such period as the Consulting Engineers may consider reasonable. No such extension shall be allowed unless a claim therefor is presented in writing to Purchaser and the Consulting Engineers within seven days of the commencement of such delay. In case of a continuing cause of delay only one claim is necessary.” (Emphasis added)

Both Mr. Sleeth and Mr. Childress readily admitted that the latter had made all necessary inspections of the premises before bidding on the contract. There was water standing at a number of places on the land at that time. However, Giant was satisfied it could be drained and most of the clearing work could be accomplished with bulldozers. It is clear that Giant was well aware of the existence of the swampy areas. It simply erred in concluding from its own inspection that these could be drained and dried in a relatively short time.

Cleco made no representation in these respects. Therefore, it was in no way responsible for the real cause of Giant’s nonperformance within the completion date of the contract which was that the swampy areas were never drained.

We are convinced from our review of the record that the contractor would not have completed the work it was obliged to do under this contract by November 1, 1972, if all of the land and timber in the clearing area had been available for its operations on February 1, 1972, unless the swampy areas had been adequately drained so that the land could have been cleared with tractors as originally contemplated by Giant. Consequently, even if the lack of access to parts of the land could be considered a breach of this contract, it was not a substantial breach thereof because it was not an actual cause of the contractor’s failure to comply with its obligations. It is obvious Giant did not consider this to be a real cause of any delay in its work at the time, because it made no request for an extension of the completion date by reason thereof under Paragraph 9 of the General Conditions of the contract.

(2) Coordination of Contractors.

As shown above, Paragraph 3 of the General Conditions required Giant to make a thorough field check of the premises not only to ascertain the existing conditions but also any difficulties that might be encountered “relating to inter-connection of the Work with the work of others.” In addition, Paragraph 15 thereof requires the contractor to have a competent superintendent on the job to supervise and conduct the work in cooperation with Cleco and its consulting engineers, “and in coordination with all other work being done on the premises”.

From this it appears that the primary responsibility for coordinating the work of the project was on the contractors, not Cle-co. Be that as it may, there were only two minor complaints in this category. One concerned the blocking of a drain from the swamp by Louisiana Paving Company through the building of a road which was removed within a day or so following a heavy rain. The other involved the construction of permanent dikes by the same company in the northeast portion of the area behind which water collected.

Giant knew when and where the dikes were going to be built and most of the timber in the areas to the north thereof was cut by it in April and May of 1972 before construction began.

Cleco’s position in this respect was communicated to CFC in its letter of July 3, 1972, as follows:

“As you know, Louisiana Paving has started construction of flumes and dikes. Some of the areas that you have left behind and not cleared, that are wet in the bottom, will be cut off by the installation of the dikes. On several occasions we had requested of you that these areas be cleared so this drainage conflict would not occur. If heavy rains are experienced, these areas will flood and will be most difficult to clear. Since you have let good opportunities go by, and have instead selected to work on the much, much easier areas, we do not feel that extra compensation can be requested by you for any additional effort you must expend to clear these areas. As you know, the time is such that we cannot delay the installation of the flumes and dikes, and they must be complete in time for impounding of water in the lake. To assist you, however, in keeping these areas somewhat drained, Louisiana Paving have agreed to provide a ditch in the bottom of the flumes once they are dug, and to maintain these for a reasonable time, provided you are making every effort to clear behind the dikes. All of this was discussed with you on June 28th, also.”

In view of the general conditions mentioned above, we do not believe that either of these occurrences constituted a breach by Cleco of the clearing contract. Clearly, neither would amount to a substantial breach. It was not established that Giant incurred any additional expense by reason thereof and apparently they had no real adverse effect on its ability to timely complete the work. If such was the case, any delay caused by these acts of another contractor in the employ of Cleco would give rise to an extension of Giant’s completion date under Paragraph 9 of the General Conditions of the contract.

(3) Payment of Monthly Installments.

The clearing contract of January 31, 1972, provides for monthly payments to the contractor, subject to a 15% retainer, based on “. . . the mutually-agreed-upon value of the materials delivered on the premises and/or work done as estimated by Contractor and approved by the Consulting Engineers. In no case, however, shall Contractor be entitled to a payment which in the judgment of the Consulting Engineers will leave the balance withheld insufficient to complete the WORK.”

Actually, the partial payments were not made every month, but as and when submitted by Giant and “agreed-upon” by Cle-co’s representative. None of these were submitted for approval to Sargent & Lun-dy, Cleco’s consulting engineers.

Mr. Childress testified that Cleco was never willing to pay for the full amount of clearing done and rather than delay receipt of the money his company simply revised its estimates to correspond with Cleco’s figures and accepted payments based thereon. On the other hand, Cleco’s representatives testified the contractor was paid without undue delay for all work accomplished after the clearings set forth in the estimates had been checked and the only disagreement between the parties they recalled concerned Estimate No. 5. This was mutually resolved within a short time.

The record shows that all of the estimates were signed by the contractor and Cleco and were paid within a few days after being submitted to the latter except Estimate No. 7, the last. It was submitted on March 9, 1973, when Cleco was in the process of terminating the contract because no work had been done since early February. Cleco’s Mr. DeSoto said the last estimate was not paid because the quantity of work for which the payment was requested had not been done. In addition, its sum, the previous payments and the amount to be paid for the remaining uncleared area on the basis previously employed would exceed the total consideration for all of the work in the contract.

Cleco presented detailed evidence on the progress of the work. Giant introduced only the statement first submitted for work involved in Estimate No. 5 and the general testimony of Mr. Childress that his company had been underpaid.

The contract did not provide any monetary basis for computing the amounts to be paid monthly as the work progressed. Therefore, it was mutually agreed between the parties to use the unit prices which Giant had submitted in its bid for any extra work. After it was agreed between Cleco and Giant as to the type and amount of acreage cleared in each period, it was paid for at those prices, less 15%.

Apparently, no real dispute occurred until the last estimate was submitted as both parties signed each estimate and the contractor was paid on the basis of their mutual agreement. No letters of protest or demands were made by Giant in this connection. Nor did it ever request that its estimates be submitted for approval to the consulting engineers. Actually, there would be no reason to submit such estimates for anybody’s approval in the absence of a dispute between the parties.

The fact that Giant did not choose to submit estimates of the work done every month and receive payments therefor at the end of each period did not constitute a breach of contract by Cleco. The same can be said with respect to Giant’s failure to request approval of the payments by the consulting engineers. Certainly, they were available if a real dispute had arisen requiring their approval. The evidence does not indicate in any way that Cleco was not ready and willing to pay the contractor monthly for all work actually performed by it on the basis of its “mutually-agreed-upon value.” Under the circumstances, this court concludes there was no substantial breach of the contract in this respect by Cleco.

(4) Dispute Over Timber Rights.

It is also contended that Giant’s ability to perform under the contract was hampered by a dispute with Cleco as to the ownership of the timber on the premises.

Section 2-103.2(e) in the Technical Requirements part of the contract provides as follows:

“Contractor shall have full property rights to all timber cut by him, but shall not conduct any sales of merchantable timber, nor do any processing of merchantable timber, on the site.”

Giant’s position was that by this provision it acquired title to all of the timber in the clearing area which it could have sold, either to timber harvesters or others, and realized some $199,000.00 therefrom to finance its own operations under the contract. Because Cleco disputed its ownership of the timber and permitted other parties to harvest some, Giant realized less than $10,-000.00 from the timber and was deprived of necessary working capital.

Like the trial judge, it is our opinion that Giant erroneously interpreted the above quoted contractual provision. This was a clearing contract, not a timber sale. The contractor only acquired ownership of the timber cut by him and was specifically prohibited from selling the standing timber. Mr. Sleeth informed Mr. Simms at the beginning that Giant had no interest in the timber. It was well aware of the fact that Cleco intended to harvest some of the trees through others. This was made clear by the following exceptions in Giant’s bid and the contract:

“7.3 Owner agrees that any timber removed from the project area will be cut to meet the Specifications of this Contract.
“7.4 Contractor will not be delayed by the timber contractors who may be working in the contract area.”

Also, there is correspondence between the two parties in the record confirming that the height of the stumps left by Cleco’s timber harvesters conformed to the clearing contract. There is no evidence of any protest by Giant in regard to the operations of any harvester that Cleco permitted on the premises.

While Cleco did later agree that Giant could sell some standing timber to another party it was not obligated to do so. Therefore, its prior position to the contrary was not a breach of the clearing contract between these parties.

We are convinced that Cleco did not substantially breach the contract. Having concluded the trial judge was manifestly in error in this respect, the judgment in Giant’s favor must be reversed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

II.

American also contends that it was released from its suretyship obligation because of alterations of the bonded contract by the parties without its knowledge and consent.

The surety has the right to stand on the terms of the contract as written and if a change therein is made without his knowledge and consent he is released. C. & W. Construction Co. v. Travelers Indemnity Co., 147 So.2d 706 (La.App. 1 Cir. 1962). However, not every unauthorized change or alteration will discharge the surety. Those which do not materially affect the surety’s liability or exposure will not relieve it of liability, particularly where the contract contemplates changes. State v. Preferred Accident Insurance Co. of New York, 149 So.2d 632 (La.App. 1 Cir. 1963). In addition, for an alteration of contract to release a compensated surety, the alteration must not only be material, but must prejudice the rights of the surety. E. E. Rabalais and Sons, Inc. v. United Bonding Insurance Company, 226 So.2d 528 (La.App. 3 Cir. 1969).

Paragraph 16 of the General Conditions of the contract provides in part as follows:

“CHANGES IN THE WORK: Purchaser shall have the right to make any changes in the WORK, the contract price being increased or decreased accordingly. The charge or credit for any such changes shall be determined, at Purchaser’s option, by any of the following methods: (1) agreed upon lump sum price, (2) unit prices named in the Contract or subsequently agreed upon in writing, or (3) cost plus provision if named in the Contract.”

Thus, the contract which American bonded specifically authorized changes in the work by Cleco, subject to a change in the price.

With this and the jurisprudence in mind, we will proceed to review the surety’s contentions as to changes or alterations made by the parties to the clearing contract.

American first contends that the contract was altered by permitting Cleco to harvest some of the timber despite Giant’s ownership thereof, that some areas were to be deleted from the contract and that Giant began work even though Cleco was in default of its obligation to acquire and make available all timberland.

As pointed out above, the clearing contract did not vest title to the standing timber in Giant and it specifically recognized that some of it would be harvested by Cleco through others. So far as we can determine the only areas which Cleco attempted to delete from the contract and reduce its price were the fish habitats. Such a change in the work, of course, was expressly provided for in the contract. We do not find any provision of the contract whereby Cleco agreed to make all of the timberlands involved in the contract available on its starting date. We have heretofore stated why Cleco’s failure to do so did not constitute a substantial breach of the contract. In our opinion the terms of the contract were in no way changed by these actions. Nor has it been shown that American was prejudiced thereby. American next complains of Cle-co’s requirement that the harvester of the standing timber under the contract with Giant make his checks therefor payable jointly to Cleco and Giant. The contract contains no provision in this regard, so the procedure followed did not constitute any change thereof. Also, we have previously pointed out that Giant really had no standing timber to sell. Certainly, the surety was not prejudiced in any way by such actions.

American’s contention that the contract was changed by a side agreement as to the unit prices and methods used in computing the monthly payments likewise is without merit. As heretofore mentioned, because the contract was silent in this respect Cleco agreed with Giant to use the latter’s unit prices for extra work, as set forth in its bid proposal. Obviously, this did not constitute a change in the contract.

The same may be said in regard to American’s claim that the contract was impliedly modified by the parties ignoring certain portions of it. There was no obligation on Giant to furnish any soil boring tests or to establish the contour lines of the lake. Consequently, its failure to do so did not change the contract between Cleco and Giant.

Lastly, American complains that the contract was altered by the failure of Cleco to pay monthly for the work done on the project. Except for the last, the estimates were paid within a few days after they were submitted by the contractor. Although the latter failed to do so every month, there is no indication that there was any kind of agreement between the parties not to pay each month or to avoid the consulting engineers in this regard. The parties having agreed as to all of the estimates that were paid, there was really nothing which required the engineers’ approval except possibly to see that the total monthly payments did not exceed 85% of the contract price. It was not shown that American was prejudiced in any way by reason of the method employed to make the advance payments.

Accordingly, we conclude that there were no alterations or changes of the original contract by the parties which released American from its bond obligation. Also, since Giant defaulted in ¡is obligations under the contract and Cleco did not commit any substantial breach thereof, the latter is entitled to recover damages from Giant and American. The surety is entitled to recover its damages from the indemnitors.

DAMAGES

The law in regard to recoverable damages for breach of a building contract was generally stated by this court in North American Contracting Corp. v. Gibson, 327 So.2d 444, 450, 451 (La.App. 3 Cir. 1976), writ denied, La., 332 So.2d 280, as follows:

“Under LSA-C.C. Article 2769, if an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he agrees to do it, he is liable in damages for the losses that ensue from his noncompliance with his contract. See also LSA-C.C. Article 1930. The damages due for the breach of contract are subject to certain codal restrictions, the amount of the loss sustained and the profit of which the party has been deprived. In general then, the measure of damages for breach of a contract is the sum that will place plaintiff in the same position as if the obligation had been fulfilled. Harelson v. Parish of East Baton Rouge, 272 So.2d 382 (La.App. 1st Cir. 1972). The amount of damages must, however, be determined in relation to the contract and the circumstances which surround it. Jolley Elevator Company v. Schwegmann Bros. Giant Super Markets, 230 So.2d 640 (La. App. 4th Cir. 1970). Generally, the damage attributable to a defect resulting from poor workmanship is the amount paid to remedy that defect. Co-operative Cold Storage Builders, Inc. v. Arcadia Foods, Inc., 291 So.2d 403 (La.App. 4th Cir. 1974).”
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“However, plaintiff’s demands will not be rejected merely because he cannot establish exactly the amount in which he is damaged. Under these circumstances, the court must fix the quantum as best it can. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971) and cases cited therein.”

Cleco’s proof of damages consisted mainly of evidence concerning contracts let to others to remove the timber and logs after the lake began to fill with water. These, of course, were not the same as the contract with Giant as it expressly excepted removal of floating material from the lake after impoundment of water. While there is no evidence directly on the subject, the water operation appears to be more costly than removing the felled timber with winches and trucks. Cleco contends an additional delay in impoundment and the starting of its power plant would cause a greater loss. However, there is no definite proof of this in the record. In any event, because of the different conditions we do not believe the plaintiff’s award can be computed on the basis of the total consideration for the subsequent clearing contracts, particularly in any judgment against the surety. State v. Smith, 167 La. 301, 119 So. 56 (1928).

Although great discretion is given a court in determining damages once the legal right to recover has been established, we are unable to make any reasonable assessment of the damages to which Cleco is entitled in this case without some evidence showing what it would have cost to remove the timber before Cleco took the necessary steps to fill the reservoir. Under the circumstances, we are convinced that justice would best be served by remanding the case to the district court for the purpose of taking further evidence from both sides on the issue of damages, and particularly estimates of the cost of completing the work according to the original contract had not the lake been filled, if such can be produced. Thereafter, the trial judge will determine under the jurisprudence just mentioned the amount of damages which Cleco is entitled to recover from Giant and American and the award of the latter against its indemnitors, and render formal judgment accordingly.

On the remand the trial court will take into consideration that 330 acres for the fish habitats were deleted by the parties from the clearing contract and its total price reduced by $140.00 per acre or $46,-200.00 to the total sum of $448,018.00.

III.

In an unsuccessful attempt to drain the Grubb Lake swampy area CFC entered into a subcontract with Labor to extend the length of a drainage ditch by blasting which had been dug by another concern with a dragline. This work was done during July, 1972. Labor filed an affidavit of its unpaid claim, with an itemized statement attached, in the office of the recorder of mortgages on December 21, 1972. Suit asserting such claim was instituted November 15, 1973, but no notice of lis pendens was filed.

Cleco and American contest liability for this claim under the Private Works Act for several reasons. The first is based on Smith v. Anderson Bros. Corp., 104 F.Supp. 117 (W.D.La.1952), wherein it was held that the clearing of the right of way for a pipeline was not within the purview of the lien statute. That case, of course, is persuasive but not binding on this court.

We have not been, cited and our research has not disclosed a case from our Louisiana courts holding specifically that the clearing of land for the erection of an improvement thereon constitutes work under the Private Works Act. However, Long Bell Lumber Co. v. S. D. Carr Const. Co., 172 La. 182, 133 So. 438 (La.1931), so ruled with respect to the Public Works Act then in existence. And in Hunt v. LaChere Maison, Inc., 316 So.2d 850 (La.App. 1 Cir. 1975), a claim for hauling dirt, operating a bulldozer and for performing landscaping service on a lot on which a house was built was held to be lienable under LSA-R.S. 9:4812.

In other jurisdictions courts have construed somewhat similar lien statutes as including the clearing of land on which structures were to be erected. Mazel v. Bain, 272 Ala. 640, 133 So.2d 44 (1961); Green v. Rese, 261 P.2d 596 (Okl.1953).

We believe the LSA-R.S. 9:4801(a), which affords a privilege to every “. . . subcontractor . . . workman who performs work . for the . improvement of immovable property . . ” should be similarly construed. Since Labor’s service or work was a necessary incident (though unsuccessful) of the contract for clearing between Cleco and Giant and the clearing was a part and parcel of the construction of the cooling reservoir, Labor’s claim was lienable as an improvement to the land. The contract not having been timely recorded, under LSA-R.S. 9:4812 Labor had a personal cause of action against Cleco for the amount of its claim for one year following the recordation of its lien affidavit. This suit was instituted timely.

We are not impressed by the contention that Labor’s work was not done with the consent of the owner because the latter’s contract was with CFC rather than Giant, and their sublease or assignment had not been approved. Cleco made no objection to CFC’s performing Giant’s work, and in fact gave express permission for blasting the drainage ditch.

Since there are no third parties involved in this matter, we do not believe that Labor’s personal action against Cleco and CFC can be defeated by an error in the lien affidavit as to the description of the property upon which its work was done. It was established that the blasting took place in the vicinity of Grubb Lake, which was on land then owned by Cleco and included in the clearing contract.

The contention that some of the items on Labor’s invoice were not lienable also lacks merit. The corporation acted through its employees and all of the items on the invoice were involved and expended in the performance of their work in connection with the improvement of the land as stated. Undoubtedly, the questioned items would have been estimated and included in any lump sum or per diem price quoted for such work and no valid objection could have been made as to the amount of the claim if it had been subcontracted on either basis.

We therefore conclude that the judgment of the trial court in suit No. 6880 is correct and should be affirmed.

For the foregoing reasons, the judgment appealed from in No. 6879 is annulled and set aside and the case is remanded to the trial court for further proceedings consistent with the views herein expressed. The cost in both courts will be assessed on final determination.

ANNULLED AND SET ASIDE AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    LABOR SERVICES, INC., Plaintiff-Appellee, v. CFC CONSTRUCTION COMPANY, and Central Louisiana Electric Company, Defendants-Appellants.
    No. 6880.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 1979.
    Rehearing Denied June 21, 1979.
    Landry, Watkins & Bonin, William 0. Bonin, New Iberia, for defendant-appellant.
    Deutsch, Kerrigan & Stiles by Marian Mayer Berkett, New Orleans, for defendant-appellee and defendant-appellant, American Fidelity Fire Insurance Co.
    Lewis Ray Sleeth, Jena, for defendant-appellee.
    Edward G. Randolph, Jr., Alexandria, for plaintiff-appellee.
    Before WATSON, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

For the reasons this day assigned in the consolidated case of Central Louisiana Electric Company v. Giant Enterprises et al., 371 So.2d 641, we affirm the decision of the trial court at appellants’ costs.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Susan BANKSTON, Wife of/and James Bankston v. Limon COOPER and State Farm Ins. Company.
    No. 10098.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied June 11, 1979.

      C. Gordon Johnson, Jr., and J. S. Thompson, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendant-appellee.
    Gordon Hackman, Hackman & Lewis, Boutte, for plaintiffs-appellants.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment seeking an increase in the quantum of damages she was awarded by the trial court.

Plaintiff’s automobile was rearended by defendant’s driver on June 19, 1976. She filed suit on January 13,1977, and after the case had been assigned for trial on six previous occasions the case proceeded to trial on March 29, 1978. Plaintiff had subpoenaed no medical witnesses and attempted to place in evidence, over defendant’s objection, depositions of Dr. Gessner and Dr. Mooring. The trial judge properly refused to consider these depositions since no basis was shown for their admissibility pursuant to LSA-C.C.P. Art. 1450(3).

Plaintiff also challenged the propriety of the trial judge’s refusal to continue the case the seventh time, but his decision was clearly within the realm of the discretion afforded him under C.C.P. Art. 1601.

Plaintiff testified: Immediately after the accident, on Saturday, she got a headache and felt stiff and sore. On the following Monday she saw her doctor and continued to see him daily for six weeks. Pain persisted in her neck despite medication and a cervical collar. She then saw an orthopedist who continued her on medication and the collar, and she next went to a chiropractor, Dr. Mooring. Her attorney referred her to a Dr. Gessner, who in turn referred her to a second orthopedist, Dr. Brent. A myelographic study, made by a neurologist on January 24, 1977, was placed in evidence and it contained in its summary of findings: “Normal study.” She was hospitalized between January 30 and February 3, 1978, by Drs. Gessner and Brent. For about six or seven months she had continuous pain and from then until the trial in March, 1978, she had pain “off and on.” Her condition interfered with her duties to her family as well as her recreational activities.

Plaintiff’s husband testified that she appeared to be in pain, had become mean and grouchy and seriously curtailed her activities.

Copies of various bills, the hospital record and the report of the myelographic study were filed in evidence.

In awarding plaintiff $3,000 for general damages the trial judge summarized the evidence, noting that the hospital record revealed no positive findings of injury or residual disability and that: “Unfortunately, plaintiff produced no medical testimony.”

We, have concluded that plaintiff has not demonstrated an abuse of discretion by the trial judge and the judgment will be affirmed.

We are constrained to note that the record was lodged in this court on November 3, 1978, and under our rules plaintiff had 25 days in which to file a brief. The case was assigned for oral argument and submission on April 5, 1979, and this assignment was duly posted on February 5, 1979. Plaintiff did not see fit to file a brief until April 4, 1979. Her tardiness in filing a brief and failure to request an extension of time in which to do so resulted in her forfeiture of oral argument. This record provides support for the view that the judgment appealed from reflects her own failure to prosecute her case with some reasonable degree of diligence. She cannot attribute this to error on the part of the trial judge.

AFFIRMED.


author: PER CURIAM.

text:
    Dale E. JACKSON, Plaintiff and Appellant, v. SOUTHDOWN SUGAR COMPANY and Liberty Mutual Insurance Company, Defendant and Appellees.
    No. 12722.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Gordon Hackman, Boutte, for plaintiff and appellant.
    John L. Lanier, Thibodaux, for defendants and appellees.
    Before ELLIS, LOTTINGER and LEAR, JJ.
   PER CURIAM.

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

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


text:
    Mrs. Georgia LEWIS v. QUALITY DEVELOPMENT CORPORATION and Santo Strangi, Jr.
    No. 51370.
    Supreme Court of Mississippi.
    June 6, 1979.
    Sekul, Hornsby, Wallace & Teel, Thomas L. Wallace, Biloxi, for appellant.
    Thomas J. Wiltz, Biloxi, for appellee.
    Before ROBERTSON, P. J., and LEE and COFER, JJ.
   AFFIRMED.


text:
    Janice Renfroe ADAMS v. William N. RENFROE.
    No. 51282.
    Supreme Court of Mississippi.
    June 6, 1979.
    Duncan L. Lott, Langston, Lott & Cadle, Booneville, for appellant.
    Russell & Russell, Frank A. Russell, Tom Childs, Fulton, for appellee.
    Before ROBERTSON, P. J., and SUGG and LEE, JJ.
   AFFIRMED.


text:
    Thomas H. PINE et ux. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 51165.
    Supreme Court of Mississippi.
    June 6, 1979.
    Guy, Dowdy & Whittington, William S. Guy, McComb, for appellant.
    Statham, Watkins, Starrett & Mitchell, William F. Watkins, Magnolia, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   AFFIRMED.


text:
    John Henry DOWNS v. STATE of Mississippi.
    No. 51263.
    Supreme Court of Mississippi.
    June 6, 1979.
    W. C. Trotter, III, Belzoni, for appellant. A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   AFFIRMED.


author: MADDOX, Justice.

text:
    PUTMAN REALTY & AUCTION, INC., a corp., David Terrell and Wanda Terrell v. Minnie E. BAILES.
    78-3.
    Supreme Court of Alabama.
    May 25, 1979.
    James A. Fleming of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellants.
    Patrick W. Richardson, Huntsville, for appellee.
   MADDOX, Justice.

A jury found that a mortgagee, who had accepted late payments from the original mortgagors, was not estopped to demand payments on time from the mortgagors’ grantee, and was not estopped to foreclose under the terms of the mortgage. We affirm.

In 1971, Minnie Bailes conveyed to Annie Sue J. Smith certain real property and received back from Mrs. Smith and her husband, Robert Smith, a promissory note in the amount of $24,000, and a mortgage on the property to secure payment of the note.

Under the terms of the instruments, payments on the note were due on the first of every month; however, the Smiths routinely proffered payment several days to a week after the due date. There was some evidence that Mrs. Bailes did not insist on timely payment by the Smiths, but only requested that they, make payment by the tenth day of each month so that she could deposit the money in the bank by that date, which would allow her to collect interest from the first of the month.

In 1976, the Smiths sold the property to Putman Realty and Auction, Inc. Prior to the sale, Bailes notified D. L. Putman, president of Putman Realty & Auction, Inc., that she objected to his company assuming the mortgage. Nevertheless, the sale was made. The payment for November, 1976, was sent to Bailes by the closing attorney on November 11, 1976. The check was dated November 9.

Bailes’ attorney, at her direction, returned the check and advised the Smiths and Putman Realty & Auction that due to their failure to make payment by the required day (November 1) she had elected to accelerate the entire principal balance secured by the note and mortgage. She also placed the note and mortgage with her attorney for collection and foreclosure, respectively.

Bailes received a check from Putman Realty & Auction for the December payment, but returned it. Thereafter, Putman Realty & Auction conveyed the property to David and Wanda Terrell, who assumed the mortgage and made all future monthly payments. Bailes retained the Terrells’ checks but did not negotiate them.

The mortgage provides:

“. . . [Sjhould said indebtedness hereby secured ... or any part thereof . . . remain unpaid at maturity . . . the whole of the indebtedness hereby secured . . . shall at once become due and payable at the option of said mortgagee, and this mortgage be subject to foreclosure and may be foreclosed as now provided by law in case of past due mortgages.
* * * * * *
“The undersigned agree that no delay or failure of the mortgagee to exercise any option to declare the maturity of any debt secured by this mortgage, shall be taken or deemed as a waiver of its right to exercise such option, or to declare such forfeiture, either as to any past or present default, and it is further agreed that no terms or conditions contained in this mortgage can be waived, altered or changed except as evidenced in writing, signed by the undersigned, and by the mortgagee, by an officer thereof.”

In March, 1977, Bailes filed a complaint against Putman Realty & Auction, the Ter-rells, and the Smiths. She alleged:

“The said mortgage contains a provision that in the event of default Plaintiff has the right to foreclose said mortgage as provided by law. Said promissory note contains a provision that in the event of default in the payment of any one of said monthly installments, when due, the entire balance shall become immediately due and payable. Defendants have defaulted in that they failed to make the payment due November 1, 1976, when due.”

Defendants denied the existence of a default, and by cross-claim, the Smiths asserted that Putman Realty & Auction was liable to them for any claim asserted against them in the action.

The case went to trial before a jury. In response to special interrogatories, the jury found that Mrs. Bailes was not estopped to foreclose the mortgage for the reason that the payment due November 1,1976, was not timely tendered.

The judge thereafter entered judgment, finding the mortgage to be in default and subject to foreclosure, with a balance due of $20,128.81. He also awarded plaintiff $1,000 in attorneys’ fees as set by the jury and granted the cross-claim of the Smiths.

The defendants contend that Mrs. Bailes had acquiesced in the Smiths’ practice of making late payments on the note, and that by accepting payments of the monthly installments from the original mortgagors after the due date, Mrs. Bailes was estopped to assert her right to foreclose for late payment tendered on behalf of a purchaser of the equity of redemption. Whether Mrs. Bailes was estopped was a jury question. The law is to the effect that where evidence of estoppel is present and susceptible to different reasonable inferences, the issue is one for the jury. Draughon v. General Finance Credit Corporation, 362 So.2d 880 (Ala.1978).

From a review of the record, we determine that the trial court was correct in presenting the question of estoppel to the jury, and that the court properly instructed the jury on the defense of estoppel. A pertinent portion of those instructions follows:

“Now, if you are reasonably satisfied from the evidence that at the time of the commencement of this suit, on March 9, 1977, the plaintiff, Mrs. Bailes, was entitled to foreclose it under the strict terms and conditions of the mortgage, then you would consider the defense of the defendants. The defendants assert that Mrs. Bailes is estopped to foreclose the mortgage based on the lateness of the payment, or the tender of the November 1, 1976, payment, because of her conduct in the past. .
4c * * * * *
“Now, the burden is upon the defendant to reasonably satisfy you from the evidence of the truthfulness of their plea of estoppel. . . • .
******
“Now, a person who claims an estoppel, who asserts estoppel, as the defendants do in this case, must show that he was induced to act, or to omit action on the fact of the purported estoppel. If the person did not act, or if he acted, not in reliance upon the purported estoppel, but for some other reason, then, of course, he would not show an estoppel to have been done by the plaintiff in the case.”

The judge, as noted; correctly instructed the jury concerning the defendants’ burden of proving that they justifiably relied upon the prior conduct of Mrs. Bailes as evidencing an intention upon her part not to insist upon prompt payment of monthly installments.

The note expressly provided that payment was due on the first of each month, and the mortgage states that failure of the mortgagee to declare a default shall not be deemed a waiver of the right to make such a declaration. Furthermore, there is no evidence that Putman Realty & Auction knew that Mrs. Bailes had allowed the Smiths any period of grace within which to make timely payment of the monthly installments.

We find that the verdict of the jury is supported by credible evidence; therefore, the judgment entered thereon should be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: TORBERT, Chief Justice.

text:
    Lola WIGGINS and Dorothy Nolen v. Grover S. McLEOD, Executor of the Estate of Magnolia Malone.
    78-5.
    Supreme Court of Alabama.
    June 1, 1979.

      Arthur D. Shores, Birmingham, for appellants.
    D. Lee Hodges, Birmingham, for appellee.
   TORBERT, Chief Justice.

Appellee, Grover S. McLeod, the executor of the estate of Magnolia Malone, brought suit to recover $26,400.00 allegedly taken unlawfully from the estate by appellants Lola Wiggins and Dorothy Nolen.

On July 19, 1973, Magnolia Malone, accompanied by her sister, Lola Wiggins, met with McLeod, an attorney, to discuss preparation of her will and what to do with a large sum of money she possessed. On McLeod’s advice, Malone decided to place the money in a safety deposit box. McLeod then called a representative of First Alabama Bank of Birmingham and made arrangements for the rental of a safety deposit box.

The following day, Malone returned to McLeod’s office with a sack containing a large sum of money. McLeod’s secretary and bookkeeper counted the money which amounted to “around $28,000.00.” McLeod testified that he then accompanied Malone and Wiggins to the bank and placed the sum in the safety deposit box which was in the joint names of Magnolia Malone and Lola Wiggins. It is controverted whether McLeod actually did accompany Mrs. Malone to the bank on July 20, and Ms. Wiggins testified that they did not take a sack of money to McLeod’s office though she did admit that Malone put an undetermined but small sum of money in the safety deposit box.

Several years later Magnolia Malone died. Two days after her death, on July 1, 1976, Lola Wiggins and Dorothy Nolen, her daughter, entered the safety deposit box. On July 3, 1976, McLeod learned of Malone’s death. Later that day he received a call from an unidentified source informing him that appellants were about to take a trunk belonging to Magnolia Malone and containing a great deal of money out of the state. McLeod went to Malone’s home the same day and took possession of the trunk. After obtaining a key from Lola Wiggins on July 6, McLeod opened the trunk and found $10,223.00 inside. Wiggins told him that she had removed $1,117.10 from the trunk to pay funeral expenses. The same day, McLeod, in the presence of Wiggins entered the safety deposit box and found only $1,600.00 therein.

McLeod, as executor of the estate of Magnolia Malone, filed suit in the amount of $28,000 for money had and received by appellants. At trial, McLeod amended his claim to $26,400.00 which was the sum he allegedly put in the safety deposit box minus the amount found therein after Malone’s death. The jury returned a verdict in McLeod’s favor of $15,049.90.

Appellants contend that the verdict is a result of arbitration and compromise and is contrary to both the facts and law. They argue that there is no evidence of the actual amount of money contained in the safety deposit box nor is there any evidence showing that the money in the trunk was taken from the box. Appellants conclude that the jury reached its verdict by subtracting the sum found in the trunk from the amount appellee sought to recover. Such a verdict, according to appellants, is mere speculation and conjecture.

A jury verdict is presumed to be correct, and refusal of the trial court to grant a new trial because of insufficiency of the evidence strengthens the presumption of correctness. First Southern Federal Savings & Loan Association of Mobile v. Nicrosi, 333 So.2d 780 (Ala.1976). Furthermore, a reviewing court, where sufficiency of evidence is at issue, must review only those tendencies of the evidence most favorable to the verdict and indulge such inferences as the jury was free to draw; the verdict will not be set aside unless the preponderance of the evidence is so against the verdict as to convince the reviewing court that it is wrong and unjust. Id.; Dixie Electric Co. v. Maggio, 294 Ala. 411, 818 So.2d 274 (1975).

In the instant case, testimony was adduced at trial that Malone brought a sum of money to McLeod. McLeod’s employees counted the money and reported that the amount was $28,000. McLeod says he went with Mrs. Malone and appellant Wiggins to the bank and deposited the money in a safety deposit box. No further entries to the box were made until appellants entered the box on July 1, 1976, two days after Malone’s death. The only other entry to the box occurred five days later, July 6, when McLeod found only $1,600.00 remaining in the box. The same day, McLeod obtained a key from Wiggins to a locked trunk owned by Malone containing $10,-223.00. There was sufficient evidence to support the jury’s finding that the amount of money missing was $15,049.90 (the amount placed in the safety deposit box less the sum of the money found in the trunk, the money remaining in the safety deposit box, and the funeral expenses).

Accordingly, the verdict of the jury must be affirmed.

AFFIRMED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: ADKINS, Justice.

text:
    The VILLAGE OF TEQUESTA, etc., et al., Petitioners, v. JUPITER INLET CORPORATION, etc., Respondent.
    No. 52223.
    Supreme Court of Florida.
    May 3, 1979.
    Rehearing Denied June 26, 1979.

      John C. Randolph of Johnston, Sasser & Randolph, West Palm Beach, for petitioners.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for respondent.
    Robert Grafton, Thomas J. Schwartz, John H. Wheeler and Stephen A. Walker, West Palm Beach, amicus curiae for South Florida Water Management District.
    John T. Allen, Jr., St. Petersburg, amicus curiae for Pinellas County.
    Louis de la Parte, Jr., Tampa, amicus curiae for West Coast Regional Water Supply Authority.
    Jacob D. Varn, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, amicus curiae for Pasco County, S. C. Bexley, Jr., L. S. B. Corporation, and Angeline Corpora- ' tion.

      John F. Wendel, of Wendel, Broderick & Chritton, Lakeland, amicus curiae, for Citrus County.
   ADKINS, Justice.

Pursuant to article V, section 3(b)(3), Florida Constitution, the Fourth District Court of Appeal in Jupiter Inlet Corp. v. Village of Tequesta, 349 So.2d 216 (Fla. 4th DCA 1977) certified to this Court as a matter of great public interest the following question:

Can a municipality be held responsible through inverse condemnation for a taking, from private ownership for public purposes, of underground shallow aquifer water, to the extent that the owner is deprived of the beneficial use of the aquifer?

Jupiter Inlet Corporation, plaintiff in the trial court, will be referred to as Jupiter, and The Village of Tequesta, defendant in the trial court, will be referred to as Te-questa.

Jupiter owned property near Tequesta on which it planned to build a 120-unit condominium project, “Broadview.” This property was located approximately 1200 feet from Tequesta’s well field number four. This well field contained seven wells, seventy-five to ninety feet deep, which pumped in excess of a million gallons of water a day from the shallow water aquifer to supply Tequesta residents with water. It was relatively inexpensive to withdraw water from the shallow-water aquifer.

As a result of the excessive amount of water withdrawn by Tequesta from the shallow-water aquifer, the fresh-water supply was endangered and salt water from the intercoastal waterway intruded into the shallow-water aquifer. There was testimony from a hydrologist that saltwater intrusion was caused by a reduction in the water levels in the interior to a point low enough that the fresh-water level could not withstand the pressure of the saltwater level in the intercoastal. The water which Teques-ta withdrew came from the shallow-water aquifer beneath its property. Because Te-questa would not supply Jupiter water, it was necessary for Jupiter to secure a special exception from the county. Tequesta opposed the permit application and it was denied. Jupiter was not permitted to drill wells to withdraw water from the shallow-water aquifer because of the endangered condition of the aquifer due to the excessive withdrawals made by Tequesta.

The only means by which Jupiter could supply water to its property was to drill a well to the Floridan aquifer located 1200 feet below the surface, at a substantially greater cost.

Jupiter instituted an action for inverse condemnation and injunction due to the excessive pumping by Tequesta. The theory of Jupiter’s action was that due to depletion by Tequesta of the shallow-water aquifer beneath its property Jupiter was effectively deprived of the beneficial use of its property rights in the shallow-water aquifer.

Considering any factual conflicts in the light most favorable to Jupiter, the trial judge granted a summary judgment in favor of the Village of Tequesta. Viewing the facts in the same light as did the trial court, the district court of appeal said:

The owner has been deprived by government action of the use and enjoyment of what was his, and so through a suit in inverse condemnation he can compel the government to pay for what it has taken.

349 So.2d at 217. The district court of appeal then certified the above question to this Court for consideration.

The following hydrological statements are fully supported by F. Maloney, S. Plager, and F. Baldwin, Water Law and Administration, page 141 (1968) (hereinafter referred to as Water Law) as well as the discussion in City of St. Petersburg v. Southwest Florida Water Management District, 355 So.2d 796 (Fla. 2d DCA 1977).

Water-bearing zones under the earth’s surface capable of receiving, storing, and transmitting water are called aquifers. Most aquifers in Florida are cavernous limestone or sand and shale beds. Aquifers are separated by relatively impervious layers of shales and clays which are called aquicludes.

There are two basic types of acquifers. One is the unconfined aquifer associated with the water table. It is free to rise and fall with the amount of rainfall and other surface-water influences such as rivers, lakes, irrigation, etc. Near the coast the water level in this aquifer fluctuates with the tidal action. It is referred to as the ground-water aquifer, water-table aquifer, and the shallow aquifer.

The other type of aquifer is an artesian aquifer. Water in this aquifer is confined within aquicludes. Water will either not pass through these aquicludes or will do so at a much slower rate than it can travel within the aquifer itself. Water enters artesian aquifers slowly through the surrounding aquiclude by virtue of fissures, sinkholes, or other openings in the aqui-clude. Water in the artesian aquifer is under pressure. One artesian aquifer is known as the Floridan aquifer. It underlies most of the state and furnishes most of the well-water supplies of the state.

In an early decision, Tampa Watchworks Co. v. Cline, 37 Fla. 586, 20 So. 780 (1896), we made a classification of water passing over or through lands as follows:

(1) In respect to surface streams which flow in a permanent, distinct, and well-defined channel from the lands of one owner to those of another; (2) in respect to surface waters, however originating, which, without any distinct or well-defined channel, by attraction, gravitation, or otherwise, are shed and pass from the lands of one proprietor to those of another; (3) subterranean streams which flow in a permanent, distinct, and well-defined channel from the lands of one to those of another proprietor; (4) subsurface waters which, without any permanent, distinct, or definite channel, percolate in veins or filter from the lands of one owner to those of another.

20 So. at 782.

Although we classified water as if its different physical states were separate and distinct, we recognize that these classes are interrelated parts of the hydrologic cycle. We are primarily concerned in this case with the rights of landowners in the shallow-water aquifer.

Ancient law gave no special consideration to ground water, treating all water like the air, the sea, and wild animals, as the property of no one or the property of everyone. Trelease, Government Ownership and Trusteeship of Water, 45 Calif. Law Review 638, 640 (1957). Technological ignorance about the existence, origin, movement and course of percolating ground waters resulted in the so-called “English rule” which essentially allowed a land owner to take or interfere with percolating waters underlying his land, irrespective of any effects his use might have on ground water underlying his neighbors’ lands. This doctrine, first enunciated in 1843 in an English case, Acton v. Blundell, 152 Eng.Rep. 1235 (1843) was based upon the maxim, “To whomsoever the soil belongs, he owns also to the sky and to the depths.” See Water Law at 155. With the growth of hydrological capabilities in pumping technology, the English rule was repudiated in most American jurisdictions. See Annots. 29 A.L.R.2d 1354, 1361 65 (1953); 109 A.L.R. 395, 399-403 (1937); 55 A.L.R. 1385, 1398-1408 (1928), and cases cited therein. The so-called “American,” or “reasonable use,” rule rejected the “to the sky and to the depths” notion for another maxim, “use your own property so as not to injure that of another.” See Koch v. Wick, 87 So.2d 47 (Fla.1956); Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535 (Fla.1917); Bassett v. Salisbury Manufacturing Co., 43 N.H. 569 (1862). The reasonable use rule adopted by most Eastern states, including Florida, was stated by one court as follows:

[A] landowner, who, in the course of using his own land, obstructs, diverts, or removes percolating water to the injury of his neighbor . . . must be [making] a reasonable exercise of his proprietary right, i. e., such an exercise as may be reasonably necessary for some useful or beneficial purpose, generally relating to the land in which the waters are found.

Finley et ux. v. Teeter Stone, Inc., 251 Md. 428, 435, 248 A.2d 106, 111 12 (Md.App.1968). See also Water Law at 158.

In applying the reasonable use rule this Court has not given definite answers as to the actual amount of water that may be taken by overlying land owners, nor have we considered the meaning of the term “ownership” as applied to percolating water.

In 93 C.J.S. Waters section 90, page 765 (1956), the rule is stated thus:

There can be no ownership in seeping and percolating waters in the absolute sense, because of their wandering and migratory character, unless and until they are reduced to the actual possession and control of the person claiming them. Their ownership consists in the right of the owner of the land to capture, control, and possess them, to prevent their escape, if he can do' so, from his land, and to prevent strangers from trespassing on his land in an effort to capture, control, or possess them. If percolating waters escape naturally to other lands, the title of the former owner is gone; while a landowner may prevent the escape of such waters from his land, if he can do so, yet he has no right to follow them into the lands of another and there capture, control, or reduce them to possession. [Footnotes omitted],

The common-law concept of absolute ownership of percolating water while it is in one’s land gave him the right to abstract from his land all the water he could find there. On the other hand, it afforded him no protection against the acts of his neighbors who, by pumping on their own land, managed to draw out of his' land all the water it contained. Thus the term “ownership” as applied to percolating water never meant that the overlying owner had a property or proprietary interest in the corpus of the water itself.

This necessarily follows from the physical characteristic of percolating water. It is migratory in nature and is a part of the land only so long as it is in it. There is a right of use as ii passes, but there is no ownership in the absolute sense. It belongs to the overlying owner in a limited sense, that is, he has the unqualified right to capture and control it in a reasonable way with an immunity from liability to his neighbors for doing so. When it is reduced to his possession and control, it ceases to be percolating water and becomes his personal property. But if it flows or percolates from his land, he loses all right and interest in it the instant it passes beyond the boundaries of his property, and when it enters the land of his neighbor it belongs to him in the same limited way.

The right of the owner to ground water underlying his land is to the usufruct of the water and not to the water itself. The ownership of the land does not carry with it any ownership of vested rights to underlying ground water not actually diverted and applied to beneficial use.

In Vails v. Arnold Industries, Inc. et al., 328 So.2d 471, 473 (Fla. 2d DCA 1976) the court said:

Water, oil, minerals and other substances of value which lie beneath the surface are valuable property rights which cannot be divested without due process of law and the payment of just compensation.

This case involved a post-trial apportionment award in condemnation as between fee-title owners and owners of reserved mineral rights. In order to effect a payment to the holders of the mineral rights, it was necessary for the court to find that these mineral rights were property rights and therefore subject to condemnation. The court relied upon Copello v. Hart, 293 So.2d 734 (Fla. 1st DCA 1974) and Dickinson et a 1. v. Davis et al., 224 So.2d 262 (Fla.1969). These cases held that minerals, gas, and oil are separate properties from the surface and may be conveyed and taxed separately. Neither case referred to property rights in water.

We overrule the dicta in Vails, supra, that water beneath the surface is a private property right which cannot be divested under any circumstances without due process of law and the payment of just compensation. The right to use water does not carry with it ownership of the water lying under the land. Of course, “property” in its strict legal sense “means that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or objects.” Tatum Brothers, etc. v. Watson, 92 Fla. 278, 109 So. 623, 626 (1926). This “right of user” may be protected by injunction, Koch v. Wick, supra, or regulated by law, Pounds v. Darling, 75 Fla. 125, 77 So. 666 (1918); Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909), but the right of user is not considered “private property” requiring condemnation proceedings unless the property has been rendered useless for certain purposes. For example, in Kendry et al. v. State Road Department, 213 So.2d 23 (Fla. 4th DCA 1968), the state agency caused such flooding on the owner’s property that it was rendered useless for residential purposes. This was a “taking.”

In the case sub judice, Jupiter was only subjected to the consequential damages incurred when it was required to draw water from the Floridan aquifer instead of the shallow-water aquifer. It still had a “right of user.”

There is a distinction when this right of user as to water has been invaded by circumstances showing an intentional invasion in an unreasonable manner or an unintentional invasion when the conduct was negligent, reckless, or ultrahazardous, resulting in a destruction of the right of user as to land.

For example, in Labruzzo et ux. v. Atlantic Dredging & Const. Co. etc., 54 So.2d 673 (Fla.1951), plaintiff sued for damages for the interruption and diversion of the natural flow of the underground waters which fed plaintiff’s spring. The defendant contended that there was no indication of the existence of a well-defined subterranean stream feeding plaintiff’s spring. Therefore, the source of the spring should have been considered percolating waters, the flow of which had been interrupted by the defendant in the lawful and reasonable use of its property. Under the reasonable use rule, defendant contended that plaintiff had no cause of action. The trial judge agreed and, upon appeal, this Court reversed, saying:

At the outset, it should be noted that we are not here dealing with a problem involving a proprietary competition over the water itself — that is to say, there is no conflict here between the respective rights of persons to make competing proprietary uses of subterranean waters to which they both have access. In such cases, the present trend among the courts of this country is away from the old common-law rule of unqualified and absolute right of a landowner to intercept and draw from his land the percolating waters therein; and the latter cases hold that the right of a landowner to subterranean waters percolating through his own land and his neighbor’s lands is limited to a reasonable and beneficial use of such waters. .
In the instant case, however, we are concerned with an interference with plaintiffs’ use of the spring on their land, caused by conduct of the defendant not involving a competing use of water and in which the effect on the subterranean water is only incidental to the defendant’s use of its land. Obviously, then, the rule of “reasonable use,” as engrafted upon the old common-law rule of absolute and unqualified ownership of percolating waters, insofar as the proprietary beneficial use of the water is concerned, has no application here where we are concerned with the proprietary use of land, and in which the water is only incidentally affected. Under such circumstances, even at common law, a person was subject to liability for interference with another’s use of water, either for (1) an intentional invasion when his conduct was unreasonable under the circumstances of the particular case, or (2) an unintentional invasion when his conduct was negligent, reckless or ultrahazardous. Restatement of Torts, Vol. IV, Section 849, and Sections 822-840. In the absence, then, of surface indications, an interference with subterranean water is, or course, unintentional and damnum absque injuria unless the conduct resulting therein is negligent, reckless or ultrahazardous. .
Since the allegations of plaintiffs’ declaration must be taken as true on demurrer, it is clear that plaintiffs have stated a cause of action for an intentional invasion by defendant of their water rights, for which it must respond in damages if its conduct was unreasonable under the particular circumstances. . . [Citations omitted],

54 So.2d at 675-77.

Article X, section 6, of the Florida Constitution forbids the “taking” of private property except for a public purpose and with full compensation. Unlike the constitutions of several other states, the Florida Constitution does not expressly forbid “damage” to property without just compensation. Arundel Corp. et al. v. Griffin et al., 89 Fla. 128, 103 So. 422 (1925).

When the governmental action is such that it does not encroach on private property but merely impairs its use by the owner, the action does not constitute a “taking” but is merely consequential damage and the owner is not entitled to compensation. Selden et al. v. City of Jacksonville, 28 Fla. 558, 10 So. 457 (1891).

In Poe v. State Road Department, 127 So.2d 898, 901 (Fla. 1st DCA 1961) the court said:

It is universally recognized that injury by the condemnor to remaining land caused by obstructing, diverting or increasing the flow of surface waters, but which do not amount to a permanent deprivation by the owner of the use of such remaining lands, is a consequential damage resulting from the taking in an eminent domain proceeding, and must be recovered in that proceeding, if at all. [Footnote omitted].

If the damage suffered by the owner is the equivalent “of a taking” or an appropriation of his property for public use, then our constitution recognizes the owner’s right to compel compensation. On the other hand, if the damage suffered is not a taking or an appropriation within the limits of our organic law, then the damages suffered are damnum absque injuria and compensation therefor by the public agency cannot be compelled. Weir v. Palm Beach County, 85 So.2d 865 (Fla.1956).

The district court of appeal, in its opinion, relied upon White v. Pinellas County, 185 So.2d 468 (Fla.1966), as authority for the principle that a taking can occur when any property rights are involved. This case involved trees and shrubs located on the property which were used as a windbreak and a privacy screen. In White there was a physical invasion of the property when the state, through its agents, cut down large trees and shrubs. In the case sub judice there was no physical invasion of Jupiter’s property by the agents of Tequesta, so no compensation is due for consequential damage.

The cases relied upon by respondent involve situations where there was damage to the land itself, a result which does not exist in this case. Cason v. Florida Power Co., supra, dealt with resulting damage to the fee because of the diversion of percolating water. Koch v. Wick, supra, dealt with damage to the fee by diversion of water therefrom to the point that the fee would become infertile and unsuitable for cultivation. In State Road Department et al. v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941), the construction of a highway embankment impeded the flow and raised the level of a millrace to such an extent as to destroy the use of plaintiff’s grist mill. This was held to be a taking.

The “reasonable use” rule insofar as the proprietary beneficial use of water is concerned has no application where the court is concerned with the proprietary use of land, and in which the water is only incidentally affected. See Labruzzo v. Atlantic Dredging and Construction Co., supra.

Property owners have been successful in seeking relief under the theory of inverse condemnation against the appropriate authority as a result of the excessive noise from low-flying jet aircraft. See Hillsborough County Aviation Authority v. Benitez, 200 So.2d 194 (Fla. 2d DCA 1967). The “taking” of an airspace above the land is not comparable to the “taking” of the water located in a ground aquifer beneath the land in the absence of a trespass on the land itself. The damage to the airspace was such as to deprive the property owners of all beneficial use of their property. The alleged damage to the shallow-water aquifer deprived Jupiter of no beneficial use of the land itself. Jupiter developed the property to its highest and best use and has suffered no more than consequential damage, which is not compensable through inverse condemnation.

The bare essential facts controlling this case are simple and direct. Tequesta utilized . all of the available percolating water of the shallow-well aquifer in the area of Jupiter’s land. Jupiter decided to become a competing user. This desire was thwarted because Tequesta had utilized all of the water which could be safely withdrawn from the shallow-well aquifer. This meant Jupiter had to go deeper to the Floridan aquifer to obtain its water and to spend more money than it would have if allowed to use the shallow-well aquifer. The costs were increased both in drilling and treatment of the water. It is a hydrologic impossibility to place a value upon the water which was withdrawn from underneath Jupiter’s land.

It is incumbent upon Jupiter to show, not only a taking, but also that a private property right has been destroyed by governmental action. Jupiter did not have a constitutionally protected right in the water beneath its property. In the cases cited by Jupiter, the courts supported compensation for the taking of a use which was existent and of which a party was deprived. Jupiter seeks to be compensated for a use which it had never perfected to the point that it was in existence. Jupiter had a right to use the water, but the use itself is not existent until this right is exercised.

The property rights relative to waters that naturally percolate through the land of one owner to and through the land of another are correlative. Reasonableness could only be determined after the conflict arises between users. The “reasonableness” of a given use depends upon many variables such as: the reasonable demands of other users; the quantity of water available for use; the consideration of public policy. Even an allocation between conflicting users has no durability, for the decision by another land owner to exercise his previously neglected right to use water could easily render all other uses unreasonable. A person developing his own land could make a substantial investment with no way of determining whether reasonable use by others would limit or destroy his development right even though it was the first in time.

The judicial system was ill-equipped to deal with such conflict and became oriented to a case-by-case approach to solving disputes. This Court recognizes that all conflicts between competing users must be determined from the facts and circumstance of particular cases as they arise. Cnsort v. Florida Power Co., supra. This “right to use” is not “private property” as contemplated by article X, section 6, Florida Constitution requiring full compensation before taking for a public purpose.

The State of Florida operates under an administrative system of water management pursuant to the terms of the Florida Water Resources Act. Ch. 373, Fla.Stat. (1972). The law prior to the Florida Water Resources Act did not allow ownership in the corpus of the water, but only in the use of it. Even then, the use was bounded by the perimeters of reasonable and beneficial use. Legislation limiting the right to the use of the water is in itself no more objectionable than legislation forbidding the use of property for certain purposes by zoning regulations. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); 54 A.L.R. 1016 (1928).

The Florida Water Resources Act, in recognizing the need for conservation and control of the waters in the state (Section 373.016, Fla.Stat. (1973)) makes all waters in the state subject to regulation, unless otherwise specifically exempt. § 373.023(1) Fla.Stat. (1973). The Department of Environmental Regulation and the various water management districts are given the responsibility to accomplish the conservation, protection, management, and control of the waters of the state. § 373.-016(3) Fla.Stat. (1973). In order to exercise such controls a permitting system is established which requires permits for consumptive use of water, exempting only “domestic consumption of water by individual users” from the requirements of a permit. § 373-219(1) Fla.Stat. (1973). Jupiter, in serving a 120-unit condominium, does not qualify as an individual user and thus must secure a permit in order to draw water from beneath its property. Without a permit Jupiter has no such property right to the use of water beneath its land for which, upon deprivation, it must be compensated through inverse condemnation.

The Water Resources Act of 1972 recognizes a right to use water under the common law as separate from the right to use water under a permit granted pursuant to the act. This is done by a provision concerning the termination of the common-law right and a transitional procedure. The holder of such a common-law water-use right was given two years to convert the common-law water right into a permit water right. § 373.226(3) Fla.Stat. (1973). In order to qualify for the initial permit under section 373.226(2) Florida Statutes (1973), the right must have been exercised prior to the implementation of the Florida Water Resources Act by a water management district with geographical jurisdiction in that area. Otherwise the right is abandoned and extinguished requiring a new application for a permit. Tequesta had acquired the permit and Jupiter was merely a proposed user. The Florida Water Resources Act makes no provision for the continuation of an unexercised common-law right to use water. Jupiter had perfected no legal interest to the use of the water beneath its land which would support an action in inverse condemnation.

Section 373.1961 Florida Statutes (1975) provides additional powers and duties for the governing boards of the water management district. Subsection (7) provides that the governing board:

May acquire title to such interest as is necessary in real property, by purchase, gift, devise, lease, eminent domain, or otherwise, for water production and transmission consistent with this section. However, the district shall not use any of the eminent domain powers herein granted to acquire water and water rights already devoted to reasonable and beneficial use or any water production or transmission facilities owned by any county, municipality, or regional water supply authority. [Emphasis supplied].

Condemnation of “water rights” is not granted in the first sentence of this subsection. The authority granted is specifically limited to the acquisition of land for the purpose of constructing and operating well fields and other withdrawal facilities and for the right-of-way necessary for the transmission of water to consumers. The second sentence prohibits the use of eminent domain to acquire such “water rights” which were already being put to a reasonable and beneficial use. The statutory prohibition of the use of eminent domain in one situation cannot be used as authority for its use by implication in another, as the statute must be strictly construed. Canal Authority v. Miller, 243 So.2d 193 (Fla.1970). All that Section 373.1961(7) Florida Statutes (1975) accomplishes is to further protect presently existing legal uses of water. No implication can be drawn that this section intends to include any “water right” other than the permit that may be granted by a water management district. After all, if a use of water is both preexisting and also reasonable and beneficial, after two years, it must be either under permit or it is conclusively presumed to be abandoned. There was no necessity for the Water Resources Act to provide for the condemnation of an uncxercised right to use water, as the owner became subject to the permit provisions of the law. There was no “taking” of this right.

In summary, wo hold:

1. Prior to the adoption of the Water Resources Act, Florida followed the reasonable use rule; that is, a landowner, who, in the course of using his own land, removes percolating water to the injury of his neighbor, must be making a reasonable exercise of his proprietary rights, i. e, such an exercise as may be reasonably necessary for some useful or beneficial purpose, generally relating to the land iri which the waters are found;

2. There was no ownership in the waters below the land, as the right of the owner to ground water underlying his land was to the use of the water and not to the water itself;

3. In applying the reasonable use rule, this Court has not given definite answers as to the actual amount of water that may be taken by overlying landowners;

4. The diversion of water from the shallow-water aquifer is not a “taking” or an appropriation of property for public use requiring condemnation proceeding unless there is a resulting damage to the land itself, for example, a diversion of water to the extent that the land becomes unsuitable for cultivation, raising the level of flowing waters to the extent that land is flooded, etc.;

5. The landowner does not have a constitutionally-protcc Led property right in the water beneath the property, requiring compensation for the taking of the water when used for a public purpose;

6. Just as legislation may limit the use of property for certain purposes by zoning, so it is that the right to the use of the water may also be limited or regulated.

7. The Water Resources Act now controls the use of water and replaces the ad hoc judicial determination in water management districts where consumptive use permitting is in force.

8. Jupiter’s remedy is only through proper application for a permit under the Florida Water Resources Act.

For the above reasons, we answer the certified question in the negative and hold that Tequesta cannot be held responsible for damages through inverse condemnation.

The decision of the district court of appeal is quashed and this cause is remanded with instructions to affirm the summary judgment entered by the trial judge in favor of Tequesta.

ENGLAND, C. J., and BOYD, OVER-TON AND SUNDBERG, JJ., concur.


text:
    Melody ROSENBERG, Petitioner, v. Michael ROSENBERG, Respondent.
    No. 53082.
    Supreme Court of Florida.
    May 31, 1979.
    James 0. Nelson, Miami, for petitioner.
    Charles R. Lipcon, Miami, for respondent.
   PER CURIAM.

This court adopts the dissenting opinion by Judge Hubbart, reported at 352 So.2d 867 (Fla.3d DCA 1977).

Accordingly, the opinion of the Third District Court of Appeal is quashed, and the case remanded with directions that the trial court set attorney’s fees for Petitioner’s counsel.

ENGLAND, C. J., and SUNDBERG, HATCHETT and ALDERMAN, JJ, concur.

BOYD, J, dissents.

Order on mandate, 372 So.2d 1022.


author: DOWNEY, Chief Judge.

text:
    Adelle L. MILTON, Appellant, v. Irvin W. LANDERS and Arnica Mutual Insurance Company, etc., Appellees.
    No. 76-1072.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1977.
    Malcolm Anderson, North Palm Beach, for appellant.
    Marjorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach, for appellees.
   DOWNEY, Chief Judge.

On October 1, 1975, appellant filed a complaint against appellees for damages arising out of an automobile accident which occurred in Lake Worth, Florida, on October 3, 1970. After appellant filed an amended complaint, appellees filed an answer which included an affirmative defense of the statute of limitations. Appellees then filed a motion for summary judgment, without filing any proof in support of the motion. Appellant filed opposing affidavits containing, for the most part, incompetent statements. The trial judge granted summary judgment for appellees and appellant perfected this appeal.

We are unable to find adequate support in the record to demonstrate that there is no genuine issue of material fact involved in this case. Specifically, the record does not adequately show whether or not the defendant-appellee Landers was a resident of Florida. Landers’s residential status is crucial to the outcome of appellees’ motion for summary judgment, for if at the time of the accident Landers was not a resident of Florida, or he became a nonresident after the accident, or he has been concealing his whereabouts since the accident, then he would have been subject to substituted serT vice of process under Section 48.171, Florida Statutes (1969); and the statutory period for appellant’s filing of a complaint may well have expired. On the other hand, if Landers was a resident of Florida throughout the period between the date of the accident and the filing of the original complaint, and if he has not been concealing his whereabouts, the periods of his absence from the state would have tolled the running of the statute of limitations and the statutory period may well not have expired. Section 95.07, Florida Statutes (1969). Since Landers’s residential status was in doubt, appellees, as the movants for summary judgment, failed to adequately demonstrate the nonexistence of all genuine issues of material fact.

Appellees contend that the filing of a complaint tolls the running of statutes of limitation, and since appellant could have filed suit at any time during the four year period in accordance with Section 95.11(4), Florida Statutes (1969), appellant’s failure to file a complaint within four years of the accident bars appellant from maintaining her action. We disagree. While Dibble v. Jansen, 129 So.2d 162 (Fla. 3d DCA 1961), seems to support appellees’ position, we cannot, for the reasons set forth in Friday v. Newman, 183 So.2d 25 (Fla. 2d DCA 1966), accept that position. As the Friday court pointed out, a defendant’s absence from the state of Florida tolls the applicable statute of limitations only if the defendant is not amenable to the service of process. In the present case, appellees did not demonstrate that Landers was not amenable to the service of process during the interval between the accident and the filing of appellant’s original complaint. As indicated above, this failure required denial of appellees’ motion for summary judgment.

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED and REMANDED.

CROSS, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    SUNRISE POINT, INC., a Florida Corporation, Appellant, v. RELIANCE REALTY, INC., a Florida Corporation, Appellee.
    No. 78-1508.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Rehearing Denied June 25, 1979.
    Sparber, Shevin, Rosen, Shapo & Heil-bronner, David A. Freedman, Miami, for appellant.
    Patton, Kanner, Segal, Zeller & King and Dennis G. King, Miami, for appellee.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

Appellant Sunrise Point, Inc., was the defendant-counterplaintiff in the trial court and appellee Reliance Realty, Inc., was the plaintiff-counterdefendant. The action arose under an exclusive contract for broker commissions upon the sale of condominium units in a condominium development. The contract was mutually dissolved prior to the action. Following a jury trial, a verdict was returned for the plaintiff realtor on its claim and for the defendant developer upon its counterclaim. Each party has appealed.

The appellant developer’s principal reliance is upon its point claiming that recovery could not be allowed the plaintiff realtor where the jury also found that the defendant was entitled to recovery for breaches of the same contract by the plaintiff. Our review of the record convinces us that there is no inconsistency in the verdict. Cf. Southeastern Builders, Inc. of Alabama v. Joe Brashears Steel, Inc., 336 So.2d 1228, 1230 (Fla. 1st DCA 1976). We have examined the other points presented by the appellant and have found them not to present error.

The cross-appeal asks us to examine the evidence upon the basis that there is no rational explanation for the amount awarded on the counterclaim. We affirm upon authority of the rule that “[t]he jury is the sole judge of such factual issue [damages] and neither the trial judge nor an appellate court may substitute its judgment on such issue for that of the jury.” Jefferson Realty of Fort Lauderdale, Inc. v. United States Rubber Company, 222 So.2d 738 (Fla.1969). Other points presented upon appellee’s cross-appeal do not present error.

Affirmed.