text:
    RIVER ROUGE MINERALS, INC., Plaintiff-Appellee, v. ENERGY RESOURCES OF MINNESOTA et al., Defendants-Appellants, and Wortley F. Scheller and Sara Cale Samuels, Defendants-Appellees.
    No. 12879.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    En Banc. Rehearing Denied May 24, 1976.

      Gamble & Sledge, by Jack R. Gamble, Jr., Mansfield, Gremillion & Williams, Baton Rouge, by L. Todd Gremillion, Houston, Tex., and Brian L. Williams, Baton Rouge, Vance R. Andrus, Lafayette, and Paul B. Saltzman, Minneapolis, Minn., for defendants-appellants.
    Wilkinson, Carmody & Peatross, by Arthur R. Carmody, Jr., Shreveport, Col-vin, Hunter, Brown & Plummer by Charles C. Hunter and D. Scott Brown, Mansfield, for appellees.
    Before BOLIN, MARVIN and SMITH, JJ-
   SMITH, Judge.

In this declaratory action we determine whether an oil, gas and mineral lease of common usage in Louisiana grants to a lessee thereunder the privilege of strip mining lignite coal. The lower court decided the oil, gas and mineral lease does not grant strip mining privileges. Defendants claiming under the lease appeal. We affirm.

In 1971, the defendant landowner executed three of the Bath form leases on certain properties to the defendant David E. Burk, Sr. Various rights and royalty interests under these leases were later assigned to other defendants.

In 1973, the landowner leased to plaintiff, simply called “River Rouge”, on a lease form entitled “Coal and Lignite Lease”, the same properties, expressly providing for strip mining of the resource. The 1971 oil, gas and mineral leases were recorded on the public records before the execution and recordation of the coal and lignite lease to River Rouge. River Rouge brought the declaratory judgment action against the landowner and the lessees and assigns under the 1971 oil, gas and mineral leases, seeking a declaration as to whether it had exclusive rights and privileges of strip mining coal under the 1973 coal lease, as against defendants claiming under the prior executed and recorded oil, gas and mineral leases. The lower court declared River Rouge had such exclusive rights and it is this declaration that we affirm.

There was expert testimony on similarities and differences between lignite coal and oil and gas. All three are fuels of considerable value and contain approximately 75 per cent hydrocarbon. As a raw material, each may be converted into many identical products. The essential distinction between solid coal, liquid oil, and natural gas is in the method of extraction from the ground.

The method of exploring for and producing oil and gas is well known in Louisiana. Production is obtained by drilling into the subsurface to reach a porous sand or cavity containing oil and/or gas. The resource is brought to the surface by its own pressure or by artificial pressure and is transmitted by pipeline to accessible reservoirs or other marketing points. The exploration for and production of oil and gas are relatively clean operations and occur without great disturbance of the surface owner’s enjoyment of the property, whether in rural or urban areas.

According to opinion testimony lignite coal cannot be produced by the methods used in the production of oil and gas. Lignite coal was discovered in DeSoto Parish many years ago. Only in recent years has it become economically feasible to produce and market this resource in Louisiana.

Lignite coal is found in veins of varying thickness below the surface at depths of 25 to 200 feet. The surface depth above the vein of coal, called overburden, must be entirely removed by powerful machines before extracting the coal for market. This process of extraction, called strip mining, completely eliminates the surface owner’s enjoyment of the portion of the property being mined. The Bath form lease expressly contemplates the surface owner’s continued enjoyment of the property during drilling and production. The word “drilling” appears repeatedly in the lease as does, to a somewhat lesser degree, the word “well”. These words are used throughout the fourteen paragraphs of the lease to set forth the rights, obligations, and conditions imposed upon each party. The word “mine” is used only once in the lease and there was testimony that “mining” is synonymous with the process of extracting oil and gas from the earth.

The Bath form lease as a whole, is inconsistent with the operations necessary in strip mining lignite. It provides for “ . . . laying pipe lines, building tanks, power stations, telephone lines, and other structures thereon . . . ” These activities are consistent with oil and gas operations but not with strip mining operations.

Paragraph three of the lease provides for royalty payments. Three subparts deal with liquid and gaseous hydrocarbons. Paragraph three (d) is the only provision dealing with “other minerals”. It provides that the royalty for “all other minerals” is to be “1/8 either in kind or value at the well or mine, at lessee’s election, except that on sulphur the royalty shall be 50^ per long ton.” Sulphur is extracted from the ground by the Frasch process, a drilling and extraction process which brings sulphur to the surface in liquid form. This process is much more similar to oil and gas production than strip mining of the solid lignite.

Expert testimony reveals that the conventional production royalty paid for lignite is generally 20 cents per short ton or 5 per cent as compared with the 12.5 per cent royalty provided in the instant case. Thus a holding that the Bath form oil, gas and mineral lease grants rights to lignite coal production would delay commercial development of lignite in Louisiana because of the reduced profit caused by a royalty 2% times that of the ordinary strip mining lease. It is the policy of this state to maintain property in commerce, Gueno v. Medlenka, 238 La. 1081, 117 So.2d 817 (1960).

Paragraph four provides for termination of the lease after one year or, alternatively, for maintaining it for the primary term by the payment of annual delay rentals if “operations for drilling are not commenced on said land on or before one year from this date.” The lease may be maintained during the primary term by production or by drilling or by paying delay rentals if no drilling operations have been commenced.

Paragraph five refers only to operations consistent with drilling, not strip mining. For example, that paragraph provides that if “at the expiration of the primary term oil, gas, sulphur, or other mineral is not being produced on said land but lessee is engaged in drilling or reworking operations thereon, the lease shall remain in force so long as operations are prosecuted with no cessation of more than thirty (30) consecutive days . . . ” (emphasis supplied).

Paragraph six refers to “pooling” or “unitization” which has no connection with or applicability to lignite production. Paragraph seven requires the lessee, if requested to do so by the lessor, to “bury all pipe lines below ordinary plow depth” and that “no well shall be drilled within two hundred feet of any residence or barn now on said land without lessor’s consent.” Strip mining is inconsistent with these provisions. Paragraph nine deals with retention by a lessee of an acreage around each “well” in the event the lease is cancelled or otherwise terminates.

A typewritten paragraph adds further support to our analysis of the whole instrument. It provides:

“Notwithstanding any language to the contrary, Lessee agrees to compensate Lessor for any damage done to the premises by drilling operations by Lessee or his assigns on said leased premises. And also Lessee agrees that after the abandonment of any well that the premises will be returned to the same condition as they were previous to the drilling operations.”

This supports our conclusion that the lessor intended to continue his use of the property during exploration and production.

The sense resulting from the entire act must be considered in determining whether coal is included in the term “all other minerals”, La.C.C. art. 1955; Edwards v. Terminix, 292 So.2d 851 (La.App. 2d Cir. 1974). We conclude the Bath form lease does not encompass lignite coal in the phrase “all other minerals.”

This conclusion is consistent with the Supreme Court’s interpretation of the phrase “other minerals” in a reservation of “the exclusive right to the iron, coal, and other minerals.” In Huie Hodge Lumber Co. v. Railroad Lands Co., 151 La. 197, 91 So. 676 (1922) the court concluded that such a reservation in a document executed when the existence of oil and gas was unknown, and making no mention of derricks, pipe lines, tanks, the use of water for drilling, or the removal of machinery used in drilling or operating oil or gas wells, did not include oil and gas. While the existence of the coal deposits may have been known when the instant lease was executed, no one then considered it economically feasible to extract it.

There is no reference in the Bath form lease to rights to the use of so much of the surface of the land as may be necessary for pits, shafts, platforms, drains, railroads, switches, side tracks, etc., to facilitate strip mining and removal of solid minerals. The exclusive reference to such particulars indicated to the court in Huie Hodge, supra, that oil and gas were not contemplated there. The absence of such reference and the attention here to provisions for pipelines, pooling and unitization, offset wells, and drilling, in the Bath form lease indicate that the strip mining of lignite coal was not contemplated.

The Supreme Court in Huie Hodge, supra, also noted:

“Besides, the rule ejusdem generis requires that the words ‘other minerals’ following the specific terms coal and iron be construed as intending or including other minerals of a character similar to coal and iron, such as solids or minerals in place, requiring mining, for their removal instead of drilling, etc.” id at 677.

We conclude the distinction was made there on the basis of the physical properties of the mineral—gas or liquid as opposed to solid—rather than elemental composition.

The Supreme Court addressed the problem 20 years later in Holloway Gravel Co., Inc. v. McKowen, 200 La. 917, 9 So.2d 228 (1942). Using the same principles of interpretation employed in Huie Hodge, supra, the court held the phrase “. all the mineral, oil and gas rights” was limited to minerals of the character of oil and gas and did not include sand and gravel. The court also noted that the digging of gravel, strip mining to a lesser degree than extracting lignite coal, would be incompatible with the agricultural use being made of the property.

The authority and reasoning of those two cases are applicable here. We find no real distinction between the phrase “all other minerals” and the phrases “and other minerals” or “all the mineral rights.” We hold the grant in the instant case was the right to explore for and produce minerals of the same physical properties as oil and gas, i. e. those minerals that are produced in liquid or gaseous form by drilling wells into the subsurface. Lignite coal is not included in the grant.

For the foregoing reasons, the judgment of the lower court is affirmed at appellants’ cost.

AFFIRMED.

      . Bath Form La.Spec. 14BRI-2811-631.


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, Plaintiff-Appellant, v. Reed R. MADDEN et al., Defendants-Appellees.
    No. 12876.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    En Banc. Rehearing Denied May 24, 1976.

      Skeels, Baker & Coleman by Donald L. Baker, Shreveport, for plaintiff-appellant.
    Samuel V. Prunty, Jr., Shreveport, for defendants-appellees.
    Before BOLIN, MARVIN and SMITH, JJ.
   BOLIN, Judge.

Plaintiff, General Motors Acceptance Corporation (GMAC), sued defendants, Reed Madden and Madden’s Garage, Inc., in tort to recover damages of $1,797.94. Plaintiff alleged Madden had removed parts he had installed at the owner’s request in a car on which plaintiff held a prior recorded chattel mortgage. The amount sought is allegedly the cost to restore the car to its condition after being repaired by Madden. The trial court found for plaintiff in the sum of $863.99. Plaintiff appeals seeking an increase in the award. We affirm.

Leroy Harris owned a 1973 Oldsmobile which was encumbered by a recorded chattel mortgage held by GMAC. In May 1974, the motor in the car became overheated causing the pistons to “freeze”. After an initial inspection at the Oldsmobile dealership, the car was towed to Madden’s Garage for repairs.

After examining the extent of the damage to the engine, Madden concluded that replacing the “burned out” motor was the most economical way to repair the car. By the first part of June 1974, Madden had replaced the motor and otherwise repaired the Oldsmobile for a total charge of $783.96. He retained possession of the car because Harris had not paid the hill for repairs.

Meanwhile, plaintiff alleges Harris defaulted on his note held by GMAC, with principal balance due being $3,178.48. On October 9, 1974, plaintiff obtained a writ of seizure and sale. A deputy sheriff’s attempt to seize the car at Madden’s garage on October 10, failed because the car was “in storage” at Madden’s residence. When the deputy returned the following day the car was at the garage, but Madden had removed the replaced motor and everything that was attached thereto. He also had taken the tires and given them to his mechanic. The transmission had been disconnected and put in the trunk. Two wheels were also missing.

In due course the car sold at public auction, with benefit of appraisement, to plaintiff for $200 to satisfy the mortgage. The present tort action follows wherein GMAC contends Madden’s action damaged it in the amount necessary to restore the automobile to its condition following Madden’s repairs.

Relevant to the issue on appeal are the following:

Louisiana Revised Statutes 9:4501, which provides in part:

Any person operating a garage or other place where automobiles or other machinery are repaired, or parts therefor are made or furnished, has a privilege upon the automobile or other machinery for the cost of repairs made, parts made or furnished, and labor performed. . . .
* * * * * *
This privilege may be enforced by the writ of sequestration, without the repairman having to furnish security therefor. This privilege has no effect against a vendor’s privilege, a chattel mortgage previously recorded, .
Louisiana Civil Code Article 3217 (2); The debts which are privileged on certain movables, are the following:
******
2. The debt of a workman or artisan for the price of his labor, on the movable which he has repaired or made, if the thing continues still in his possession.

From the foregoing provisions it is clear Madden had a lien and privilege against the Harris automobile for the amount due him for labor and materials in repairing the car, but this privilege was inferior to the prior recorded chattel mortgage held by GMAC.

Madden’s privilege existed against the "movable” (C.C. Art. 3217) or “automobile” (R.S. 9:4501). Once Madden affixed or installed parts on or in the Harris vehicle, these parts became an integral part of that automobile. Roberts v. Williams, 99 So.2d 392 (La.App.2d Cir. 1957).

While Madden’s remedy might have been an empty one, he was bound to utilize legal machinery in seizing the automobile and asserting his privilege. This he did not do but chose instead to dismantle and remove parts of the repaired vehicle.

Since Madden’s actions were tortious, this appeal resolves itself into an issue of quantum of damages.

In his written reasons for judgment the trial judge outlined the nature of the case, commented upon most of the evidence and, among other things, stated :

“The Court believes that at the time the Sheriff came for the seizure that the dismantling of the vehicle did damage in the amount of the contract price [for repairs] between defendant and the original owner in the amount of $783.99, plus removal of two tires which were estimated to be valued at approximately $80.00, or a total of $863.99. This is the amount for which the Court feels that the defendant is liable.”

The trial judge is vested with “much discretion” in assessing the damages in this type case. Civil Code Article 1934(3); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), and its progeny. We have carefully reviewed the entire record and find no abuse of discretion by the trial judge.

The judgment is affirmed at appellant’s cost.


author: HALL, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Curmin SHACKELFORD et al., Defendants-Appellees.
    No. 12893.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    En Banc, Rehearing Denied May 24, 1976.

      Jack C. Frugé, Sr., Vill Plattee, Johnie E. Branch, Jr., Bernard Malone, Jr., and Charles A. O’Brien, Baton Rouge, for plaintiff-appellant.
    Holloway, Baker, Culpepper & Brun-son by William H. Baker and Herman A. Castete, Jonesboro, for defendants-appel-lees, Curmin Shackelford and W. Ralph Feazel.
    Before HALL, MARVIN and SMITH, JJ-
   HALL, Judge.

In this expropriation proceeding arising out of the widening and improving of Highway 4 near Jonesboro, the State of Louisiana, Department of Highways, appeals from a judgment of the district court awarding the defendant landowner a total of $29,543.70 as just compensation for the taking of strips of land off the front of three separate parcels of land owned by defendant.

On appeal, plaintiff specifies the trial court erred (1) in its computation of the amount of land taken; (2) in the value it placed on the land taken; (3) in allowing compensation for trees and shrubs as a separate item apart from the land taken; (4) in allowing severance damages in connection with two of the parcels of land; and (5) in awarding excessive expert witness fees for defendant’s appraisers and in awarding any expert witness fee for defendant’s photographer.

Amount of Land Taken

The three strips of land expropriated are variously described as being all that portion of defendant’s property lying within approximately 50 to 60 feet to the northerly side of the center line of existing Highway 4, “exclusive of the existing right-of-way- of Route La. 4.” The Highway Department surveyor attempted to establish the right-of-way line generally along the outer edge of a ditch adjacent to the highway. Defendant contends the Highway Department right-of-way extends only to the edge of the existing pavement and the trial court so held. There is no deed or right-of-way in favor of the Highway Department of record.

The Highway Department’s pleadings, in effect, allege and concede defendant’s title to the property north of the center line of the highway, exclusive of the right-of-way itself. The Department seeks to expropriate full ownership of defendant’s property. The Department has not established any ownership or rights over defendant’s property beyond the existing pavement which would preclude recovery by defendant of just compensation therefor. The trial court correctly calculated the amount of land taken as being that portion of defendant’s land lying between the edge of the pavement and the outer limits of the required new right-of-way. See State, Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App.2d Cir. 1975) writ denied 318 So.2d 60; and State, Department of Highways v. Whitman, 313 So.2d 918 (La.App.2d Cir. 1975) writ denied 319 So.2d 443.

Value of Land Taken

Parcel No. 8-4

Parcel No. 8-4 expropriated by the Department is a strip of land between 63 and 83 feet in depth and fronting 368 feet on Highway 4, containing 21,173 square feet. It is part of a 10-acre tract owned by defendant on which is located a residence, carpentry shop, covered minnow tank, concrete slab and pump island, and driveways. A bait stand and service station was formerly operated on the property but was not in operation at the time of the taking.

The parcel is located on the north side of Highway 4 about 2 or 3 miles southwest of Jonesboro. The area is rural, with numerous residences and several commercial establishments located along the highway.

All of the appraisers used the market data approach to value, relying on so-called comparable sales. The appraisers found no recent sales along Highway 4 in this vicinity. Sales of commercial property relied on were mostly in or near downtown Jones-boro. Sales of residential property relied on were mostly in a subdivision a considerable distance off the highway. All appraisers conceded the so-called compara-bles were not very comparable and made substantial adjustments in an effort to establish the value of the subject property. The trial judge noted, and we agree, that the comparables were of little assistance.

The State’s appraisers, Maurice J. Chap-puis and Gene N. Cope, valued the land at $.05-$.06 per square foot, based on a valuation of $2,400-$2,500 per acre. They found the highest and best use of the property to be either residential or commercial. Both were of the opinion there was no difference in market value between residential use and commercial use in this rural area.

The defendant’s appraisers, H. L. Bass, O. L. Jordan and John Walker, based their evaluations on a highest and best use of one-half as commercial and one-half as residential. All valued the residential half at $.25 per square foot, and the commercial half at $.60, $.50 and $.60 per square foot respectively.

The trial judge accepted the highest and best use as being residential for half and commercial for half and fixed the values at $.20 and $.40 per square foot, or a total award for land taken of $6,351.90.

The evidence does not support a finding of a significant or substantial difference in value between residential and commercial property in this rural area. Lack of recent commercial development or sales, and the fact there are only 6-10 commercial establishments along an approximate 8-mile stretch of Highway 4, weigh against a significantly higher desirability or value of property for commercial purposes.

We affirm the $.20 per square foot value fixed by the trial court for the residential portion of this property and find that $.25 per square foot adequately reflects the small additional value of the commercial portion, or an average value for this parcel of $.22.5 per square foot. The amount awarded for the value of the land taken will be reduced to $4,763.93.

It is to be noted that the value fixed is consistent with the values fixed in State, Department of Highways v. Coblentz, 322 So.2d 276 (La.App.2d Cir. 1975) and State, Department of Highways v. Hammons, 322 So.2d 279 (La.App.2d Cir. 1975), in which three tracts along Highway 4 were valued at $.20, $.25 and $.30 per square foot respectively.

Parcel No. 9-7

Parcel No. 9-7 is a strip of land between 41 and 47 feet in depth and fronting 249.3 feet on Highway 4, containing 9,498 square feet. It is a part of a 1.43-acre tract owned by defendant, on which is located a single-family residence, a metal garage building, and a mobile home. This parcel is located within a mile of Parcel No. 8-4, discussed above, and the general characteristics of the area are the same. The State’s appraisers classified the property as residential or commercial and defendant’s appraisers classified it as residential.

The State’s appraisers valued the land taken at $.05-$.06 per square foot. The defendant’s appraisers valued it at $.25 per square foot. The district court fixed the value at $.20 per square foot. The evidence supports the decision of the trial judge.

Parcel No. 10-2

Parcel No. 10-2 is a strip approximately 54 feet in depth fronting 446 feet on Highway 4, with a flare at the eastern end for sight clearance fronting 171 feet on a secondary parish road, containing 21,010 square feet. It is a part of an irregularly shaped tract containing .879 acres, situated at the corner of Highway 4 and the Dave Duck Road and in the same general area as the two parcels discussed above. At the time of the taking there were no improvements on the tract, which was planted in pine trees. The State’s appraisers classified the highest and best use of the property as commercial or residential and two of defendant’s appraisers classified it as commercial. Defendant’s other appraiser classified it as partly commercial and partly residential.

The State’s appraisers valued the property at $.05-$.06 per square foot. Two of defendant’s appraisers valued it at $.75 and $.65 per square foot respectively, for commercial purposes. Defendant’s other appraiser valued it at $.25 per square foot residential and $.80 per square foot commercial. The trial judge fixed the value at $.60 per square foot.

Based on our finding of only a slight difference in value between residential and commercial property in the area, but giving some additional value to the corner location, we reduce the award for the land taken to $.35 per square foot or a total of $7,353.50.

Award for Trees and Shrubs

Located on Parcel No. 8-4 were 9 large, bearing pecan trees which added aesthetic, shading and screening value to the residential property. Located on Parcel No. 9-7 were 2 such trees. The trial court awarded $1,500 for the 9 pecan trees on Parcel No. 8-4 and $100 for other trees on that parcel. It awarded $800 for the pecan trees on Parcel No. 9-7.

The Highway Department attacks the award of the value of the trees separate and distinct from the value of the land, citing State of Louisiana Through Department of Highways v. Glassell, 226 La. 988, 77 So.2d 881 (1955). In Glassell, the court held it was error to make a separate award for native pecan trees growing indiscriminately on a large tract of land through which a strip of land was expropriated for highway purposes.

Glassell is not applicable to the instant situation where trees have been planted on residential property for aesthetic, shading and screening purposes. More closely in point is State, Department of Highways v. Moresi, 189 So.2d 292 (La.App.3d Cir. 1966), in which the loss of five large shade trees was considered as an item of severance damages. Although no separate and distinct amount was fixed for the shade trees, their loss was taken into account in arriving at the amount of damages to the remaining residential property.

All of the appraisers in this case attributed some value to the pecan trees and some loss or damage to the landowner by reason of their taking. The appraisers included some figures related to the trees either in their estimates of value or as separate items in the nature of improvements taken.

The trees had no particular value separate from the residential property on which they were located. They enhanced the value of the property as a whole. Their loss detracts from or diminishes the value of the remaining property. Their loss is, as stated in Moresi, an item of severance damage to be taken into account in establishing the before and after value of the remaining property. The remaining property is worth less after the taking than before because of the loss of the shade trees.

In connection with Parcel No. 8-4, no other elements of severance damage were claimed or awarded. Estimates of the appraisers related to the pecan trees ranged from $300 to $1,500. The trial judge fixed an amount of $1,500, which we view to be somewhat excessive. We award as severance damages to Parcel No. 8-4 the sum of $1,000 for the reduction in value of the remainder caused by the taking of the pecan trees. This award is in lieu of the $1,500 and $100 awards by the trial court for pecan and other trees.

Severance Damages

Estimates of severance damages to Parcel No. 9-7 ranged from zero by the State’s appraisers to $3,000, $3,000 and $2,406 by defendant’s appraisers. The principal element of severance damages claimed by defendant is that the new right-of-way line will be only 15 feet from the front porch of the residence located on this parcel, reducing its desirability and value for residential purposes. The State counters that although the right-of-way line will be closer to the residence, the actual construction line will be only a few feet closer than the present traveled portion of the highway, without adverse affect on value.

The trial court fixed severance damages to this parcel at $2,000. While this court agrees that the value of the remainder will be diminished to some extent by reason of the right-of-way line coming within 15 feet of the old residence on the property, we believe the figure of $2,000 to be excessive. However, taking into account the diminished value of the remainder caused by loss of the pecan trees, it is our opinion that total severance damages, or reduction in value of the remainder, amounts to $2,000. The award of $2,000 for severance damages is affirmed and the separate award of $800 for the pecan trees will be eliminated from the judgment.

As to Parcel No. 10-2, the trial court awarded $2,504.20 based on a finding that the remainder of 25,402 square feet had a before value of $.60 per square foot and an after value of $.50 per square foot. Estimates of severance damages by the appraisers ranged from zero by the State’s appraisers to $5,389, $6,600 and $3,823.30 by defendant’s appraisers. The evidence justifies a finding of severance damages by reason of reduction in remaining depth of an already irregular shaped tract of land.

This court, in an earlier section of this opinion, fixed the before value of the property at $.35 per square foot. We agree with the trial court’s percentage of reduction in value, that is, 1/6 or 16.6%. Applying this percentage to the before value of $8,890.70 gives $1,475.85 severance damages. The judgment will be amended to reflect this reduction in the award for severance damages.

Expert Witness Fees

The district court awarded expert witness fees in the amounts of the statements submitted by the witnesses as follows:

Lavelle Nunn $ 453.60
John Walker 1,950.00
O. L. Jordan 1,950.00
H. L. Bass 2,100.00
Richard Crawford 450,00
Total.$6,903.60

This court has considered expert witness fees for this same project, and other projects in the Jonesboro area, several times in recent months and found those awarded to be excessive. See State, Department of Highways v. United Pentecostal Church of Hodge, supra; State, Department of Highways v. Whitman, supra; State, Department of Highways v. Coblentz, supra; and State, Department of Highways v. Kilpatrick, 327 So.2d 452 (La.App.2d Cir. 1976).

Considering the cited cases, the value of the property taken and severance damages awarded, and recognizing that there were three parcels involved in this case, but each parcel involving substantially the same preparatory work, we disallow the fee awarded the photographer, Lavelle Nunn; affirm the fee awarded for the surveyor, Richard Crawford; and reduce the expert witnesses fees for the appraisers to the following amounts :

John Walker $1,200
O. L. Jordan $1,200
H. L. Bass $1,200

Summary and Decree

The trial court awarded defendant $29,543.70, subject to a credit of $3,506 deposited by plaintiff, the judgment being for the balance of $26,037.70. The net reduction in the award made by this court amounts to $9,304.82.

Accordingly, for the reasons assigned, the judgment of the district court is amended to reduce the amount awarded defendant from $26,037.70 to $16,732.88, and to amend the award for expert witness fees as set forth above. As amended, the judgment is affirmed.

Amended, and as amended, affirmed.


author: MARVIN, Judge.

text:
    Edward Maurice CORLEY v. TIDEWATER CONSTRUCTION CORP. and Liberty Mutual Insurance Company.
    No. 12892.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    En Banc. Rehearing Denied May 24, 1976.
    Writ Refused July 2, 1976.

      Bolen, Halcomb, Bolton & Erwin by Gregory S. Erwin, Alexandria, for defendants-appellants.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appel-lee.
    Before HALL, MARVIN and SMITH, JJ-
   MARVIN, Judge.

The employer and insurer appeal a workmen’s compensation award to plaintiff. We reverse.

For about 10 years prior to his injury while employed by defendant-employer, the 39-year-old plaintiff had worked off and on at various jobs: as a truck driver, in air conditioning and sheet metal work, on utility line construction and for the last two or three years in rough carpentry work. He was employed by the defendant construction company for about two or three weeks as such a carpenter when he fell, fracturing one or more ribs and injuring his back on July 18, 1973. The rib fractures healed uneventfully and without residual disability.

Plaintiff saw a general practitioner in Coushatta (Dr. Willis) who diagnosed and treated him for a strain of the back. The Coushatta doctor referred him to a Shreveport orthopedist (Dr. Fox) who confirmed the diagnosis and treatment. Plaintiff thereafter saw a Ruston doctor (Dr. Bleich) who hospitalized and treated him for about a week for a low back strain. After this hospitalization, plaintiff resumed his visits to Dr. Willis in Coushatta.

Another Shreveport orthopedist who visited professionally in Coushatta (Dr. Williams), saw plaintiff on one occasion there. This was on September 18, 1973. His diagnosis at that time was back sprain.

On November 2 and November 30, 1973, plaintiff saw Dr. Williams in Shreveport. In January, 1974, under Dr. Williams’ supervision, a myelogram was performed on plaintiff in a Shreveport hospital. The myelogram, according to Dr. Williams, but dispüted later by other doctors, “seemed to indicate a ruptured disc.” Plaintiff declined back surgery. Dr. Williams last saw plaintiff about January 16, 1974. He testified:

“In my opinion at that time he was disabled.
“[Q] . . . How long did you anticipate that his disability would continue, assuming he did not have the surgery?
“I cant’t—I don’t know the answer to that question.
“[Q] . . . But do you feel he would have any limitation in bending, stretching, lifting or anything, with his back?
“I would impose no limitation upon him.”
(Emphasis supplied).

On April 17, 1973 and April 30, 1975, at defendant’s request, plaintiff was seen by Dr. King, a Shreveport orthopedist. On July 1, 1974, and May 14, 1975, at defendant’s request, plaintiff was seen by Dr. Kingsley, an Alexandria orthopedist. Dr. Fox, Shreveport orthopedist, saw plaintiff as a treating physician at Dr. Willis’ request, on August 2 and 7, 1973, and [apparently at defendant’s request] on May 6, 1975. Dr. Willis of Coushatta saw plaintiff several times in 1973 and once, very briefly, on March 15, 1974. These doctors were generally in agreement that plaintiff suffered only a strain of his back in the accident of July 18, 1973, without residual effect, and that he did not have any symptoms of a ruptured disc.

Dr. Fox, Dr. King and Dr. Kingsley, all orthopedists, testified that the myelogram was accurate as a diagnostic tool only in about 75 percent of the cases where it has been employed. Dr. Kingsley stated that the myelographic x-ray studies did not show the presence of a disc defect and explained that the x-ray “defect” which “seemed to indicate a ruptured disc” to Dr. Williams, was caused by a leakage of the dye from the spinal canal.

Other significant facts in the record come from plaintiff and his mother, with whom he has been living. Plaintiff testified that he has not seen a doctor relative to complaints of back pain since March 15, 1974, and that he has not had any medication prescribed for him since that time by any doctor. Trial was held May 23, 1975. Plaintiff did testify that five or six months before trial he took some pills belonging to his mother but they did not do him “any good.” His mother testified that he has not appeared to be in pain in “two, three, four or five months, something like that.” Plaintiff testified that in October 1973 and again about the first of the year, 1974, he fell on the steps at home.

Drs. King, Fox and Kingsley also saw and examined plaintiff within the month preceding trial. Each testified to the ef-fact that plaintiff did not have any condition which would prohibit him from returning to work and performing, without difficulty, the stooping, bending, lifting and other activities of a carpenter. These doctors also were unanimous to the effect that plaintiff showed no evidence of an inter-vertebral disc injury in their respective examinations within the month before trial on May 23, 1975, and that plaintiff had fully recovered from any back strain he may have had.

Dr. Williams, who had last examined plaintiff in January, 1974, testified, that .the ruptured disc which seemed to be indicated by the 1974 myelogram was not completely extruded into the spinal canal, but was a “soft, bulging” disc, the type which could resolve itself without surgery.

Plaintiff testified that his back still “bothers” him and while he does not take any medication, he tries to avoid lifting, or sitting down the wrong way, or rolling the wrong way in bed. Plaintiff rides a motorcycle he acquired some time before trial without difficulty. In March, 1975, Plaintiff completed a four-week truck driving school and was briefly [and apparently superficially] examined by the school doctor on March 5, 1975, as a prerequisite to receiving his certificate. No mention was made of plaintiff having any back condition and he was certified by the doctor as physically able to be employed as a truck driver.

Plaintiff was paid compensation benefits through July 22, 1974, totaling some $3,000 for 50 weeks. Suit was filed September 19, 1974, and the trial occurred May 23, 1975. Compensation was discontinued on the basis of medical reports, particularly of Dr. Kingsley who saw plaintiff on July 1, 1974, that plaintiff had recovered from any injuries of the July 18, 1973, accident, was not disabled and was able to resume employment.

Summarizing, we note the complete absence of testimony by any medical doctor who has examined plaintiff since July 1, 1974, to the effect that plaintiff is yet disabled because of the July 18, 1973, accident. Indeed the testimony of three orthopedists who have examined him on and since July 1, 1974, is emphatically and unequivocally to the contrary. The testimony of Dr. Williams does not contradict the testimony of Drs. King, Fox and Kingsley. Dr. Willis and Dr. Bleich’s reports do not contradict Drs. King, Fox and Kingsley.

It is the totality of evidence, lay and medical, which must be considered in determining disability. Medical testimony, uncontradicted on complex scientific questions, is entitled to great weight. Likewise, lay testimony as to pain and disability is recognized to be of great probative value. See Tantillo v. Liberty Mutual Insurance Co., 315 So.2d 743 (La.1975). The totality of the evidence here compels only one conclusion and that is plaintiff was not disabled within the intent of the workmen’s compensation law on or after July 1, 1974. Plaintiff may have been disabled from the July 18, 1973 accident for several weeks thereafter. He may have been disabled in early 1974, either because of the accident or because of the occurrence at home after the accident. There is no evidence, however, from which we can find or reasonably infer that plaintiff is or was disabled on or after July 1, 1974. The lower court erred in concluding to the contrary.

APPELLEE’S MOTION TO DISMISS APPEAL

Under Articles 2088 et seq. and 5123 et seq., La.C.C.P., appellee provoked rules in the trial court to test the validity and sufficiency of the bond filed below by appellant. After hearing on the issue, the lower court denied and overruled appellee’s motion to have the bond declared invalid or insufficient. Appellee seeks to raise the identical issues here by a Motion to Dismiss Appeal. See La.C.C.P. Arts. 2161 and 2162.

In Guillot v. City of Kenner, 326 So.2d 359 (La. 1976), the court held that a blank, unsigned printed form was not a bond and an attempt at curing this defect almost one year later, was to no avail. The Court of Appeal dismissed on the grounds that it was without jurisdiction in the absence of a bond. The Supreme Court affirmed the dismissal. The Supreme Court recognized jurisprudence and procedural articles in Guillot, denying to appellate courts jurisdiction to consider the. form, substance and sufficiency of an appeal bond, leaving these matters to the trial court. The court did state that appellate courts have authority to determine whether what purports to be a bond is a bond and whether it was timely filed. What purports here to be a bond is a bond and is timely filed in our opinion.

There was no appeal by appellee or answer to appellant’s appeal, as to the correctness of the trial court’s rulings on the validity and sufficiency of the bond herein. These matters are not reviewable on a Motion to Dismiss. See also Succession of Roth, 230 La. 33, 87 So.2d 719 (1956), and Arrow Construction Company, Inc. v. American Employers Insurance Company, 273 So.2d 582 (La.App. 1st Cir. 1973).

Appellee’s Motion to Dismiss is denied.

At appellee’s cost, judgment below is

REVERSED, and

IT IS ORDERED, ADJUDGED and DECREED that the demands of plaintiff are rejected at his cost.

      . Dr. Williams also testified that plaintiff did not give him any history of having been hurt or injured between July 18, 1973, and the date the myelogram was done in January, 1974. Plaintiff, however, testified as to two different “falls” at home, one in October, 1973, and the other at the first of the year, 1974.

      . Dr. Willis testified:
      “On October 17 [1973], I again saw him. He gave a history of falling trying to go up steps and sustained what he felt like was a reinjury to the back and complained of numbness in his left leg . . .” Dr. Willis said he found abrasions of plaintiff’s back at that time. Plaintiff testified that he sneezed and got a “catch” in his back on the second fall, causing him to hit his head on the landing and “a big, black eye.”


author: PRICE, Judge. MARVIN, Judge

text:
    TUTORSHIP OF Terry Glynn VINES and Shawn Edward Vines. Mrs. Jennifer VINES, natural tutrix of minors, Plaintiff-Appellee, Mrs. Pauline VINES, undertutrix of minors, Defendant-Appellant.
    No. 12874.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    Dissenting Opinion, En Banc.
    Rehearing Denied May 24, 1976.
    Emmons, Henry & Reeves by Joseph A. Reeves, Jr., Jonesboro, for defendant-appellant.
    Holloway, Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

This suspensive appeal was taken by the under-tutrix from a judgment authorizing a tutrix to use funds belonging to her minor children to pay for a portion of the purchase price of a mobile home.

Mrs. Jennifer Vines, the mother of the minors, Terry Glynn and Shawn Edward Vines, was appointed natural tutrix of her children after the death of her husband, Jerry G. Vines. The paternal grandmother, Mrs. Pauline Vines, was appointed under-tutrix.

The tutrix was granted permission to sell the interest of the minors in the family home in Jackson Parish for the sum of $14,000 with the requirement by the court that the proceeds of the sale be deposited in a savings and loan institution and subject to withdrawal by permission from the court. This transaction was agreeable with and recommended by the under-tutrix.

Shortly after the sale of the residence, the tutrix brought this contradictory proceeding against the under-tutrix asking for permission from the court to withdraw the sum of $6,932.82 from the funds on deposit belonging to the minors to be used in connection with the purchase of a 14x70 foot Ritz Craft Mobile Home for use as a residence for herself and the two children. Permission is also sought to expend an additional sum not to exceed $1,000 for costs related to installation of a septic tank, sewerage lines, and the drilling of a water well to service the mobile home in the event it is not placed in a rental park which provides these facilities. The under-tutrix appeared at the hearing on the rule nisi and opposed plaintiff’s request. The trial judge rendered judgment authorizing the expenditure as requested by plaintiff. From this judgment, the under-tutrix has perfected this suspensive appeal.

A motion to dismiss the appeal has been filed in this court by appellee, alleging the suspensive appeal bond was not timely filed and that the bond as filed was defective. The following chronology of events subsequent to rendition of judgment are pertinent to this issue:

1) July 18, 1975, judgment was signed by the trial court.
2) July 25, 1975, a suspensive appeal order was granted by trial court fixing return date and amount of bond.
3) August 1, 1975, the trial court set aside its prior order granting a sus-pensive appeal and allowed seven days for application of supervisory writs.
4) September 25, 1975, this court in exercise of is supervisory power rendered judgment ordering a suspensive appeal.
5) October 2, 1975, a suspensive appeal bond was filed in the amount fixed by the court.

From the foregoing, it is apparent the bond was timely filed. Any objection to the deficiency in the bond should have been raised by an attack on its validity in the trial court and not by motion to dismiss. We find no merit to appellee’s motion to dismiss and order it overruled.

Appellant’s principal argument on the merits of this appeal is that the trial court’s judgment is contrary to the provisions of C.C.P. Article 4261 which provides as follows:

The tutor shall have custody of and shall care for the person of the minor. He shall see that the minor is properly reared and educated in accordance with his station in life.
The expenses for the support and education of the minor should not exceed the revenue from the minor’s property. However, if the revenue is insufficient to support the minor properly or to procure him an education, with the approval of the court as provided in Article 4271, the tutor may expend the minor’s capital for these purposes.

Appellant contends that the above article limits the expenditures for the support and education of minors to the amount of revenue produced from the minors’ property except where it is shown that this revenue is insufficient for these purposes. She further contends the evidence presented shows the minors’ income from the interest on the savings account when added to the Social Security benefits of $440 per month is adequate for their support and education.

Plaintiff testified she proposes to purchase the mobile home from a dealer in Jonesboro for a total sum of $10,399.30, and intends to pay one-third of this amount herself with the two children paying the other two-thirds from their funds.

Plaintiff testified she intends to move from Jonesboro to Baton Rouge where she has applied for employment. She also contends the agreement with the mobile home dealer includes transporting the unit to Baton Rouge. She further testified she cannot afford to pay the entire cost of the mobile home herself and considers it proper for the two children to provide two-thirds of the cost from their funds.

Her sole justification for setting this proportion is that the children would be two of the three persons to occupy the trailer and she felt they should pay two-thirds of the cost.

Although there are no pleadings request-' ing permission to mortgage the minors’ interest in the property proposed to be purchased and there is no authorization in the judgment rendered for such, there is some testimony in the record that plaintiff intends to pay her one-third of the purchase price on terms of credit. There is an inference in the testimony she may be required to mortgage her undivided interest in the mobile home as security which could jeopardize the undivided interests of the minors should a default occur in payment of her obligation.

The natural parent of a minor owes the obligation of supporting, maintaining, and educating him. Louisiana Civil Code Article 227. Under the tenor of C.C.P. Article 4261 the court should not authorize an expenditure of the capital belonging to the minor unless it is clearly shown to provide him with support or an education.

In the instant case, the evidence shows the revenue being received monthly by the tutrix on behalf of the minors is in excess of $440 per month. This is the amount received from Social Security benefits alone. The evidence is unclear on the amount of interest the sum invested in a savings and loan association amounts to per month. The sum on deposit appears to be approximately $15,000. Additionally, the mother receives $220 Social Security benefits for herself.

We do not find the evidence to show with sufficient clarity that it is necessary for such a substantial amount of the minors’ property to be spent to provide them with housing or that such an expenditure as proposed would be in their best interest, particularly in that the expenditure is for movable property subject to depreciation.

We are hesitant to interfere with the discretion of the trial judge in such a matter. However, the judge’s reasons which appear in the transcript convince us he reluctantly granted the permission requested because he felt he should accord great weight to the financial judgment of the parent who had the direct responsibility of rearing the children.

It is the duty of the court to substitute its own judgment for that of the natural tutor under Article 4261 where it is apparent the request of the tutor is not a prudent act of administration of the minors’ property.

In accord with the foregoing, the judgment appealed from is reversed and the permission sought by plaintiff to expend funds on deposit belonging to the minors in the purchase of a mobile home is denied.

All costs including this appeal are assessed to plaintiff.

Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.

ON APPLICATION FOR REHEARING

MARVIN, Judge

(dissents).

I respectfully dissent from the refusal to grant a rehearing.

The home of the widow and children was sold under court authority. Sometime later the widow-tutrix petitioned for authority to expend some of the minors’ funds to apply on the purchase of a mobile home for herself and the children. The under-tutrix opposed this. After contradictory hearing, the lower court granted the authority. The trial court noted that it was the tutrix’s responsibility of rearing and caring for her children and there was “no evidence that she had abused her authority or mismanaged the children’s money and that he could not say that the purchase of the mobile home was not in the best interest of the children.

The trial court’s observation is strengthened even more when the under-tutrix’s testimony. is considered. She (the paternal grandmother) offered to purchase a mobile home to be used as a residence if the tu-trix would put it on property adjoining the property where the under-tutrix lived.

The record also reflects continuing friction between the under-tutrix and tutrix. The trial court is in a better position in any individual case regarding administration of minor’s property and assets.

In the absence of a clear abuse of discretion, we should not substitute our judgment for the trial court’s judgment in these matters. The word discretion implies the existence of an area within which the court may legally act. I believe the lower court acted soundly and within the area of discretion which the law affords.

I would grant the rehearing in this case.


author: COVINGTON, Judge:

text:
    GULF INSURANCE COMPANY, the Workmen’s Compensation Insurer of Tom Hicks Transfer Company v. BOH BROS. CONSTRUCTION CO., INC.
    No. 10645.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.

      Robert N. Ryan, New Orleans, for appellant.
    Julian G. Baudier, Jr., New Orleans, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

Harold D. Sherwood, a truck driver employed by Tom Hicks Transfer Company (hereinafter referred to as Hicks), was killed on May 13, 1971, while making a delivery of pipe to a job site of Boh Brothers Construction Company, (hereinafter referred to as Boh). Gulf Insurance Company, subrogated workmen’s compensation insurer of Hicks, brought suit against Boh to recover workmen’s compensation benefits being paid by Gulf to the widow of Harold D. Sherwood.

Boh is a Louisiana corporation, authorized to do and doing business in the State of Louisiana, and Hicks is a common carrier operating pursuant to authority granted by the Interstate Commerce Commission and the Louisiana Public Service Commission.

We adopt a portion of the trial court’s Reasons for Judgment, viz:

“The thrust of plaintiff’s argument is that Sherwood’s sole responsibility was to pick up a load of pipe from Romar in Houston, Texas and to deliver the load to defendant’s job site where defendant’s employees unloaded the pipe and when the decedent began to unload the pipe he became the borrowed servant of Boh and therefore Boh became responsible for any injuries and/or damages sustained by the decedent. Therefore, Boh must reimburse plaintiff for all amounts paid decedent’s widow under its Workmen’s Compensation Insurance as Tom Hick’s Insuror.
“Plaintiff alleges that all trucking companies hauling merchandise over irregular routes operate as Intrastate Common Carriers under the control of the Louisiana Public Service Commission. That the Commission set certain specific rates carriers can charge for certain services. The rate known as the tariff, is based on per pound loads per mile with or without handling of the load. If the load was loaded or unloaded in addition to mere hauling a different tariff governed. Further, plaintiff contends that Boh was very familiar with tariffs because the very nature of its business required frequent use of common carriers and therefore were charged with knowledge that the load carried by the decedent required all unloading operations to be conducted by Boh and not by Hicks or its employees.
“Testimony is undisputed that shortly before the unfortunate incident causing sherwood’s (sic) death, Boh was doing some construction work in Terrebonne Parish along Bayou Pointe au Chien. Some heavy steel piling were required. Boh’s job superintendent sought prices from various companies who sold this material and Romar of Houston, Texas quoted him a price delivered to the Pointe au Chien site. Sherwood, an experienced truck driver, was dispatched to Romar to pick up the pipe. His truck was loaded for him and he drove to the Pointe ou Chien site.
“Upon arrival at the job site, Sherwood was told to wait, because the Boh employees were on a lunch break. The testimony is to the effect that before the pipe could be unloaded, a pipe rack had to be made that merely consisted of laying timber perpendicular to the bed of the truck and the pipe was rolled off of the truck onto the timbers. The timbers prevented the pipe from resting on the ground and permitted Boh’s crew to roll the pipe so as to resurface the pipe wherever it may have been damaged during shipment.
“After the Boh crew returned from lunch break, the job foreman pointed out the site for unloading to Sherwood and imT mediately thereafter Boh’s crew constructed the pipe rack. Sherwood instructed Boh’s men to place some blocks near the left wheels of his trailer he then drove the trucks so that the left wheels rested upon the blocks causing the trailer to tilt towards the right. He then loosened the chains binding the load.
“The pipe on the truck is stacked pyramid fashion with the bottom pipes held in place by two chocks; one in front and the other in the rear of the truck. Sherwood knocked the front chocks out and then went to the rear. When he knocked the rear chock out, the pipe tumbled upon him crushing him to death.
“Boh insists that it had no obligation to unload the truck. They had no knowledge of the tariff or rate charged by Hicks and their dealings were solely with Romar. Romar selected the trucking company and paid for the hauling of the pipe purchased by Boh.
“Furthermore, Boh insists that its employees were specifically ordered not to unload any trucks because this was a dangerous operation and the supervisor was only to point out to the driver the unloading spot.
“In Gaspard v. Travelers Insurance Co., 284 So.2d 104 (3rd Circuit, 1973) the Court held:
‘There is no general test that can be applied to the determination of the employee-employer relationship. This is recognized in the Richard and Hixson cases supra. In those cases, the consideration are best stated:’
“The essence of the relationship is the right to control. The four primary factors considered in deciding the above are —
1. Selection and engagement.
2. Payment of wages.
3. Power of dismissal.
4. Power of Control.
“In this case, plaintiff does contend that Boh selected Sherwood to perform serv ices after he reached the job site, however, Boh denies Sherwood did more than he was required to do and he was merely pointed the site to discharge his load. In this connection the Court in Lambert v. James A. Teague Rental Equipment, Inc., 278 So.2d 544 (1st Circuit) stated:
‘If the borrower has the right to control, it is immaterial whether he actually exercises same or merely directs the employee to do what is necessary, trusting to the employees’s expert skill for the proper result.’
“Secondly, the evidence clearly indicates at all times Sherwood’s wages were paid by Tom Hicks and Boh at no time paid him for any services rendered. Boh, on the contrary, denies Sherwood rendered any services, except those incidental to his employment with Hicks and these duties required unloading the truck and the merchandise aboard the truck did not belong to Boh until unloaded at the site pointed out to the driver.
“The third and fourth guides are indicative of the degree of the control exercised by the recipient of the services. Plaintiff does not show that Boh had the power to dismiss Sherwood: however, plaintiffs do indicate that if a truck driver does not perform as suggested by the recipient of the goods, he can be made to just sit and wait for a period of time. Of course, waiting for a truck driver represents loss of revenue because his income is derived from the number of trips he is able to work. Lost time due to waiting could therefore have effectively control the activities, of the truck driver and make him cooperative to the extent that he will do whatever the recipient of the load directs. This Court is not impressed with this argument. There is no showing that Boh held Sherwood’s truck beyond the lunch hour in order to influence Sherwood to unload his vehicle. Furthermore, this Court is convinced that the evidence carefully points out that customarily Boh’s operations on job sites were to require truck drivers to unload their own trucks and were only interested in the end result, the unloading of the pipe upon the boards laid down by Boh’s employees. This was a job that truck drivers were experienced in doing and the weight load was of no consequence.
“The Fourth Circuit stated this rule in Finch v. Jordano, 284 So.2d 641, wherein Judge Schott stated:
‘Thus if the employer possesses the right to direct the manner in which the work is performed by the employee, there is clearly a master-servant relationship established. However, if the employer or contractor is only interested in the end result and retains no right to supervise the manner in which the contract or work is performed, then the party rendering the service is characterized as an independent contractor.’
“Plaintiff cites Pfleiger v. Haws, 180 So.2d 892 as authority for his position. This case is clearly distinguishable from the case before this Court. In Pfleiger, an employee of Duplantis Truck Line, Inc. was ordered to deliver a piece of oil field equipment to the Humble Oil Company dock at Pointe au Chien in Terre-bonne Parish. Upon arrival at the dock Pflieger sojourned at a nearby store where he met defendant, Albert P. Haws, who was likewise awaiting the arrival of the barge to deliver a load of drill collars. Neither driver had a helper. Accordingly, it was mutually agreed each would assist the other in unloading their respective trucks. A ramp was provided at the dock landing for loading and unloading.
“The accident occurred when the drill collars on Haws’ truck were being unloaded. The load fell. In consequence, the injuries sued for resulted to plaintiff’s left foot. The Court found that Pflieger must be categorized as an employee pro hoc vice of John’s Trucking Service Inc. At the time plaintiff was injured he was engaged in an act of unloading a truck belonging to John’s Trucking Service, Inc. and was in no way performing any duty connected with his employer.
“This Court concludes that the decedent was performing a duty connected with his employment with Tom Hicks, that he was not directed, nor supervised in this work and Boh exercised no power to hire or fire him, but in fact, merely designated a specific area to spot his truck so that he could perform the unloading operations in his discretion and in the manner he was accustomed.”

Gulf Insurance Company, commenced paying and continues to pay weekly benefits to Mr. Sherwood’s widow. It also paid statutory funeral expenses. Gulf filed this suit against Boh to recover the amount paid and to be paid to Mrs. Sherwood up to a total of $25,500.00, alleging that Sherwood was a borrowed employee of Boh at the time of his death. In the alternative, Gulf prayed for 50% contribution of the amount paid and 50% of all future payments up to said total sum.

Gulf Insurance Company, appellant, complains that the trial court erred as follows:

“A. The trial judge erred in holding that Hicks was obligated to unload the shipment of piling.
B. The trial judge erred in holding that Mr. Sherwood was not a borrowed employee of Boh Brothers Construction Company, Inc. at the time of the accident sued upon.”

The principal issues to be decided are whether Boh exercised such control over Sherwood as to make him a “borrowed servant”, thus becoming solidarily liable with Hicks, and whether Hicks was obligated to unload the shipment of piling.

Appellant cites several cases to substantiate the fact that Sherwood was a “borrowed servant”. Among these cases are Lambert v. James A. Teague Rental Equipment, Inc., supra, and Gaspard v. Travelers Insurance Company, supra. The language quoted from those cases in the trial court’s Reasons for Judgment is contrary to appellant’s position.

We are unable to agree with the appellant. In the first place, plaintiff below has not borne the burden of proving that Sherwood was engaged in unloading the truck at the time of his death. Testimony was replete to the effect that it was the truck-driver’s duty to remove the binder and chains. It is difficult to make a legal distinction between such action, on the one hand, and the removal of the chocks, on the other, as being the business or duty of the consignee. To do so would equate removal of the chocks with unloading. Instead, it seems more logical, even if the consignee were to ultimately unload, for said consignee to have the driver remove the binder, the chains and the chocks before the unloading, whether it was to be accomplished by lifting the individual pipes or by rolling them off the truck. The fact that the driver tilted the truck slightly in order to make the rolling easier would be an act of accommodation at most.

Even if the removal of the chocks be made the equivalent of the act of unloading, the appellant fares no better. There was no evidence adduced at the trial which showed any more control of Sherwood by Boh than the trial judge observed in his Written Reasons for Judgment. In Gas-pard, the employer was in direct control of the employee, and the work was in direct furtherance of the employer’s business. The situation in Lambert was factually different than the case under consideration because in Lambert the employee of James A. Teague Rental Equipment, Inc., was under the direct supervision of Hennes.

The trial court found that Boh did not select Sherwood, that Boh at no time paid him for any services rendered and Boh lacked the power to dismiss Sherwood. We agree with the findings of the trial court that Sherwood was not a “borrowed servant” of Boh.

The question of Boh’s obligation under the terms of the tariff, to unload the pilings was also decided upon the “theory of control”. In 13 Am.Jur.2nd, Carriers, Section 319, pp. 814 and 815, it reads as follows :

Section 319. Loading and Unloading.

“As a general rule, the carrier has the primary duty to load and unload goods or inanimate freight shipped in less than carload lots, and is liable for damages resulting from its failure to perform that duty in a proper manner. However, the shipper or consignee has the duty to load and unload freight shipped in carload lots, or where for the shipper’s convenience the cars to be loaded or unloaded are placed at his warehouse or on public tracts.
“Whether the general servants of the carrier become the special servants of the shipper or consignee, or vice versa, in the loading or unloading of property, as affecting the question of liability for loss or injury due to their negligence, is usually determined either by the application of the general rule of master and servant that responsibility rests upon the party having the right to control the actions of the servant, or by putting the responsibility for the servant’s acts on the party who has the duty to load and unload the shipment. Similarly, the preceding ■ rules have been applied to the question whether a carrier is liable for damage to goods during loading and unloading, in cases where the consignor or consignee or their employees have assisted in such loading or unloading.” (emphasis added and footnotes omitted)

The general rule of master-servant, or that responsibility rests upon the party having the right to control, has been decided adversely to appellant. The trial court heard arguments from both sides relating to whose responsibility it was to unload the truck. Boh contended that it never contracted with Romar to unload the truck and that they never understood that they were to unload. Hicks, however, argues that the duty to unload was placed on Boh and that Boh knew as a matter of fact that it was obligated to unload. After hearing the evidence the trial court held that: “This court concludes that the decedent was performing a duty connected with his employment with Tom Hicks . . . .”

Boh never consented to unload the pilings and a tariff is an inappropriate instrument to legislate liability with respect to a non-consenting party; Middle Atlantic Conference v. U. S., D.C.1972, 353 F.Supp. 1109. Finding that Hicks was responsible for the unloading of the piling, and that Harold D. Sherwood was acting in the furtherance of his employer’s business, we affirm the judgment of the trial court. All costs are assessed against the appellant.

AFFIRMED.


text:
    Charles G. CLIFFORD v. BANK OF MORTON and Curtis Duncan.
    No. 48683.
    Supreme Court of Mississippi.
    May 4, 1976.
    Rehearing Denied June 1, 1976.
    Dannye L. Hunter, Forest, for appellant.
    O. B. Triplett, Jr., Forest, for appellee.
   Appeal from Chancery Court, Scott County; L. B. Porter, Chancellor.

Before PATTERSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Antonio Vincenza Pulis TURNER v. Jimmy Ray TURNER and wife, Garnie Mae Turner.
    No. 48557.
    Supreme Court of Mississippi.
    May 11, 1976.
    Rehearing Denied June 1, 1976.
    Lawrence Chandler, Calhoun City, for appellant.
    C. R. Easley, Jr., Bruce, Moore & Moore, Calhoun City, for appellee.
    Before PATTERSON, SMITH and BROOM, JJ.
   PATTERSON, Presiding Justice, for the Court.

Antonia Vincenza Pulis Turner sought the custody of Jimmy Antonia Turner, her daughter, by a habeas corpus proceeding before the Chancellor of Calhoun County. She alleged that her daughter’s custody was wrongfully withheld by Mr. and Mrs. Jimmy Ray Turner, the child’s grandparents. The trial judge awarded the custody of the child to the grandparents. Aggrieved, the mother appeals.

Antonia Vincenza Pulis Turner, hereinafter mother, was formerly married to Jimmy Ray Turner, Jr., the son of the ap-pellees, who is employed by an overseas oil company. Jimmy Antonia Turner, the daughter of the appellant and Jimmy Ray Turner, Jr., was born in Oxford, Mississippi, on September 29, 1966. Upon leaving the hospital the mother and child resided with the paternal grandparents in Calhoun County, Mississippi until July 1967 when they departed to join the child’s father in London, England.

The mother testified that when they arrived in London, the father was found to he living with another woman and that she returned to this country in August 1967 after being threatened by her husband. She and the child resided in New York City until June 1968. While in New York and without financial assistance from the child’s father, the mother became ill and requested Mrs. Garnie Mae Turner, the paternal grandmother, to assist her with the child. In response, Mrs. Turner traveled to New York and returned with the child to Bruce, Mississippi, her residence in Calhoun County. The child remained with the grandparents in Bruce until November 1968 when she was returned to her mother in New York City. In June 1969 the child again resided with the grandparents in Bruce and remained until October when she was returned to her mother. She remained in New York with her mother from October 1969 until June 1970. At this time the mother again requested the grandmother for assistance with the child and she was returned to the grandparents’ residence in Mississippi where she has remained until the present.

The evidence reveals the following salient facts. The mother is a citizen of the Isle of Malta and resides in a high-rise apartment in the city of New York. She is divorced from the child’s father who has never contributed toward the child’s support. The mother is without relatives in this country and depends upon her earnings as a waitress for her livelihood. The evidence abundantly establishes that the mother loves her child and sincerely believes that she is capable of supporting the child through her earnings. She testified that the child would be placed in a neighborhood Catholic day school during her periods of employment.

The appellees are unquestionably good citizens of this state who have unselfishly contributed to the well-being of Jimmy Antonia Turner, their granddaughter. They possess great love for their granddaughter and desire her custody. They have a nice home and the financial ability to provide for the child’s maintenance. Their residence is in close proximity to schools and churches in Bruce, Mississippi, which the child has regularly attended. Indeed, the compassion and generosity of the grandparents makes the case more difficult.

There is conflicting evidence relating to the contact of the mother with her child from June 1970 until June 1974. Overall, the evidence is insufficient for a finding that the mother had abandoned her child or was otherwise unfit for her custody and the chancellor did not so find. To the contrary, the evidence establishes that the relationship between the child, the mother and the grandparents was one of affection. The mother visited the child, called frequently and sent gifts on appropriate occasions. At one time she came to visit and accompanied the appellees with the child to Disney World in Florida on her vacation. The grandparents assumed financial responsibility for the child’s support. The mother did not contribute financially nor did the appellees request her to do so.

The circumstances which initiated this habeas corpus proceeding arose when the mother expressed a desire to take her child to the Isle of Malta to visit her parents. In January 1974 the mother informed the appellees that she intended to visit her mother and father in Malta and that she desired her daughter to accompany her on this trip so that they might become acquainted with each other. The mother apparently thought the appellees had agreed to the trip and purchased air passage to Malta and return for herself and daughter. Upon arriving in Mississippi shortly before her scheduled departure the appellees refused permission for the child to be removed from their home. Tempers flared, there were verbal recriminations, threats were exchanged, the child became upset and the sheriff was called. The mother was arrested, placed in jail and charged with assault and battery with intent to murder although there is no evidence to indicate that blows were exchanged. Thereafter the mother was released, obtained an attorney and this habeas corpus proceeding was filed seeking the child’s custody.

The chancellor found the best interest of the child would be served by granting her custody to the grandparents. At that time the grandmother was 55 years old and the grandfather, whose exact age was not shown, was drawing social security benefits. The chancellor transformed the ha-beas corpus proceedings into those of chancery under the provisions of Mississippi Code Annotated section 93-11-65 (1972) for the purpose, probably, of granting the mother visitation rights with her child. The chancellor’s finding is best stated in his concluding remarks:

Mississippi is strong on the proposition that parents are entitled to the custody of a child above anybody else. Yet that presumes the person who has the custody of the child that was given by somebody else, has a wholesome and suitable place to keep them.
Now, I don’t like the idea of letting one go off . . . way off in another state out of my jurisdiction, and I have never been confronted with this matter of one going overseas. But regardless of the bond and regardless of promises this court would be helpless if this child was carried to the Island of Malta and its mother refused to bring it back. I don’t think her present intention is that she would refuse to, but ... I think, honestly believe if these folks had let her gone on as they had previously agreed to, as she said, carried the child over there and returned it, that it would have all been well and good, but since they refused to let her do it, or to consent to it, and since this situation arose out there at the home, I am afraid to take a chance on it. And in the final analysis it is my responsibility, and I know that the child will be well cared for under the present situation. The mother admits she is being properly taken care of.
So the door will not be closed in the future. They will be entitled to the care, custody and control of the child until further order of the court. Of course, no further order to be entered without a further hearing. She will be entitled to the right of reasonable visitation, which I believe can be worked out between the lawyers in this case, and these folks.
I want to say this, aside from my opinion, that I hope Mr. and Mrs. Turner will welcome her to come back and see the child, and that she will be willing when she can to go and see it, if they can’t agree about that, then, of course, we will have to work out some other plan of visitation.
* * * *
Another thing that weighed heavily upon the mind of the court in making this decision was the situation with reference to the nervous condition of the child, and the fear that such a radical change, particularly since there has been a difficulty about it, might have a traumatic and harmful effect upon the welfare of the child, and that had a great deal to do with the court’s decision, and I wanted that in the record.
She will have a right at any time when she wants to, when it won’t interfere with the child’s school work, to come and take it anywhere in this area that she wants to, and stay as much as five or six days.

The effect of this finding was to deprive the mother of her child even though there is no evidence, much less clear and convincing evidence, that she is either morally unfit or has abandoned her child. Merged with the issue of the legal right of the mother to her daughter is inevitably the minor’s best interest, and more directly, the issue of removing the child from a favorable environment created by the grandparents in response to the mother’s natural and legal right to her offspring, but who probably has a less favorable environment. The issue presented much difficulty to the chancellor as he noted, and we add that it is not less difficult for us even though we think the law is well settled on the issue.

In Pace v. Barrett, 205 So.2d 647 (Miss.1968), we held:

The paternal grandparents have no right to the custody of their grandson, as against the mother, until they have charged and proved that she has forfeited her natural right to the custody of her minor son by abandonment or by immoral conduct, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another. Bunkley & Morse, Amis on Divorce and Separation in Mississippi, Section 8.01 (1957). The burden of proof is squarely on their shoulders . . .. (205 So.2d at 649)

In Rodgers v. Rodgers, 274 So.2d 671 (Miss.1973), we held in a contest between the natural mother of the child and third parties, the paternal grandparents:

[I]t is presumed that the best interests of the child will be preserved by it remaining with its parents or parent. In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the child, or (2) the conduct of the parent is so immoral to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child. . . . (274 So.2d at 673).

We repeat, there was no finding that the mother had abandoned this child or that she is unfit for her custody. Other citations to the same effect are unnecessary due to their great number. We therefore must conclude that the mother is entitled to her child and that the trial judge erred in not so finding. This conclusion will unfortunately bring heartbreak to the grandparents and, undoubtedly, upset the child, which we regret, but we hope that time will bring understanding.

This case was considered by a conference of the justices en banc.

REVERSED AND JUDGMENT HERE FOR THE APPELLANT.

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

SMITH, J., dissents.


text:
    MARQUETTE CEMENT MANUFACTURING COMPANY v. Danny Witsol ROBINSON.
    No. 48630.
    Supreme Court of Mississippi.
    April 20, 1976.
    Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Jackson, Larry E. Clark, Taylorsville, for appellant.
    Pittman & Nobles, Jackson, L. D. Pittman, Raleigh, for appellee.
   Appeal from Circuit Court, Smith County; George B. Grubbs, Judge.

Before PATTERSON, P. J., and SMITH and BROOM, JJ.

Reversed and rendered.

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


text:
    Leslie KNIGHTEN v. Glenda S. Knighten BRODERICK.
    No. 48675.
    Supreme Court of Mississippi.
    May 4, 1976.
    Rehearing Denied May 25, 1976.
    Leslie E. Knighten, pro se.
    Gordon & Myers, Pascagoula, for ap-pellee.
   Appeal from Chancery Court, Jackson County; L. C. Corban, Chancellor.

Before PATTERSON, P. J., and INZER and BROOM, JJ.

AFFIRMED.


author: WALKER, Justice, for the Court:

text:
    In re VALIDATION OF SIX HUNDRED AND FIFTY THOUSAND DOLLARS ($650,000) NURSING HOME BONDS. Ottis B. CROCKER, Jr., et al. v. BOARD OF SUPERVISORS OF CALHOUN COUNTY, Mississippi.
    No. 49293.
    Supreme Court of Mississippi.
    May 11, 1976.
    Rehearing Denied June 1, 1976.
    Ottis B. Crocker, Jr., Bruce, for apel-lants.
    Paul M. Moore, Sr., Calhoun City, William A. Bacon, Jackson, for appellee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   WALKER, Justice, for the Court:

This is an appeal from the Chancery Court of Calhoun County, Mississippi, which validated the issuance of $650,000 in general obligation bonds by Calhoun County for the purpose of erecting and eqiup-ping a nursing home and related facilities in said county. We affirm.

An election was held in Calhoun County on the question of whether bonds in the maximum principal amount of $650,000 for the above stated purpose would be issued. Approximately seventy-eight percent of the 3,435 persons voting favored the issuance of the bonds.

The principal assignment of error is as follows:

The Court erred in overruling Appellants’ objection to the validation of the bonds for the reason that the Resolution declaring the intention to issue the bonds sought to be validated in this case, which Resolution was passed by the Board of Supervisors of Calhoun County on September 6, 1974, fails to state whether or not the nursing home facility would be operated by Calhoun County separately or jointly with one or more counties, cities, towns or supervisors districts. . . .

Mississippi Code Annotated section 41-13-15 (Supp.1975) provides, in part, as follows :

Any county, city, town, supervisors district, judicial district or election district of a county, separately or jointly with one or more other counties, cities, towns, supervisors districts, judicial districts or election districts of the same or other counties, may acquire and hold real estate for a hospital, nurses’ home, health center health department, diagnostic or treatment center, rehabilitation facility, nursing home and related facilities and thereon establish, erect, build, construct, remodel, add to, equip, operate and maintain community hospitals, nurses’ homes, health centers, health departments, diagnostic or treatment centers, rehabilitation facilities, nursing homes and related facilities within the limits of any such political subdivision or parts thereof. . . . Mississippi Code Annotated section 41-13-19 (Supp.1975) states in part:
Such counties, cities and towns, supervisors districts, judicial districts and election districts of a county are authorized and empowered to make appropriations of the funds thereof for the purpose of sections 41-13-15 to 41-13-51, and are hereby authorized and empowered to issue and sell the bonds, notes or other evidences of indebtedness thereof, for the purpose of providing funds with which to acquire real estate for and to establish, erect, build, construct, remodel, add to, acquire, equip and furnish community hospitals, nurses’ homes, health centers, health departments, diagnostic or treatment centers, rehabilitation facilities, nursing homes and related facilities under the provisions of such sections. . . .
Before issuing any such bonds, notes or other evidences of indebtedness secured by a pledge of the full faith, credit, and resources of the issuing entity, the board of supervisors, acting for a county or supervisors district, judicial district or election district thereof, or the mayor and board of aldermen, or city council, or other like governing body, acting for a city or town, shall adopt a resolution declaring its intention to issue the same, stating the amount and purposes thereof, whether such hospital, nurses’ home, health center, health department, diagnostic or treatment center, rehabilitation facility, nursing home or related facilities are to be erected, acquired, remodeled, equipped, furnished, maintained and operated by such county, city, town or supervisors district separately, or jointly with one or more other counties, cities towns, supervisors districts, judicial districts or election districts of a county, and fixing the date upon which further action will be taken to provide for the issuance of such bonds, notes or other evidences of indebtedness. . . .
(Emphasis added).

The resolution adopted by the Board of Supervisors on September 6, 1974, declaring the intention of the Board to issue bonds of the county in the maximum principal amount of $650,000 for the purpose of erecting and equipping a nursing home and related facilities in said county and providing for the holding of a special election recited that the estimated cost of erecting and equipping such a home was estimated to be $650,000; and, that a special election would be held at each and all of the polling places established for the holding of general elections in said county and that all qualified electors of Calhoun County would be entitled to vote in the election.

The resolution did not state whether the nursing home was to be maintained and operated by Calhoun County separately or jointly with some other political subdivision. The appellants contend that the failure to make such a recital in the resolution constitutes a fatal defect and that all matters subsequent to the resolution pertaining to the proposed nursing home were void. We do not agree.

If the nursing home was to be operated by a subdistrict of the county or by Calhoun County with one or more other counties, cities, towns, supervisors’ districts, etc., then it would be necessary to recite such facts in the resolution. However, in the absence of such a recital and where the resolution provided that the bonds would be issued by Calhoun County; that the election would be held in all of the polling places of Calhoun County; and, that all of the qualified electors of Calhoun County were entitled to vote in such election without mention of another county, city or district, then it logically follows that Calhoun County as a whole would be the sole participant in establishing, erecting, maintaining and operating such facility.

We have considered the remaining assignments of error and find them to be without merit.

The judgment of the lower court is therefore affirmed.

AFFIRMED.

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


author: WALKER, Justice,

text:
    CITY OF JACKSON, Mississippi v. The TOWN OF FLOWOOD, Mississippi.
    No. 48553.
    Supreme Court of Mississippi.
    May 4, 1976.
    Rehearing Denied May 25, 1976.

      Watkins & Eager, George R. Fair, John E. Stone, Jackson, O. B. Triplett, Jr., Forest, for appellant.
    McLaurin & Nicols, W. E. McIntyre, Jr., Brandon, for appellee.
    Before INZER, SUGG and WALKER, JJ-
   WALKER, Justice,

for the Court:

This is an appeal from a decree of the Chancery Court of Rankin County, Mississippi, in which the boundaries of the present corporate limits of the Town of Flo-wood were extended.

The City of Jackson was the sole protestant to the proposed annexation and brings this appeal asking the Court to reverse the decree of the chancery court expanding Flowood’s boundaries, or in the alternative to reverse that portion expanding the boundaries to include the 1.69 square mile area on the northern edge of Flowood.

The facts essential to this case are as follows:

On May 7, 1974, the Town of Flowood adopted an ordinance which purported to extend the boundaries of the town so as to increase the area of Flowood from approximately 10.35 square miles to approximately 14.44 square miles. The extension involved the addition of four separate areas to the existing limits of Flowood. These areas are hereinafter referred to as follows : Area “A”, consisting of land located between the present eastern boundaries of Flowood and the Jackson Municipal Airport; Area “B”, located on the southeastern boundary adjacent to the City of Pearl; Area “C”, consisting of 1.33 square miles of land located on the southwestern boundaries of Flowood adjacent to the Pearl River and the City of Jackson (the Pearl River in this area is the common boundary between Jackson-Hinds County and Flowood-Rankin County); and, Area “D”, consisting of 1.69 square miles of land located on the northern boundary of Flo-wood.

Flowood subsequently filed its petition for approval of said ordinance in the Chancery Court of Rankin County, and made the City of Jackson, the City of Pearl and all other interested parties defendants pursuant to Mississippi Code Annotated section 21-1-31 (1972). The City of Jackson filed its objection to the ordinance within the time and in the manner required by law.

I.

The appellant first contends that the expansion proceeding was void because the appellee-petitioner failed to afford the appellant the right to an evidentiary hearing or notice on the issue of public convenience and necessity as required by statute.

This Court has held that that portion of Mississippi Code Annotated section 21-1-33 (1972) requiring the chancery court to determine the issue of public convenience and necessity is unconstitutional. This issue is a legislative question to be decided by the municipality’s governing board. Rouse v. City of Pascagoula, 230 So.2d 543 (Miss.1970); Dodd v. City of Jackson, 238 Miss. 372, 118 So.2d 319 (1960); Harris v. City of Newton, 238 Miss. 405, 117 So.2d 199 (1960); Smith v. City of Meridian, 237 Miss. 486, 115 So.2d 323 (1959); Ritchie v. City of Brookhaven, 217 Miss. 860, 65 So.2d 436, suggestion of error overruled, 217 Miss. 876, 65 So.2d 832 (1953).

The appellant argues that since it is not the responsibility of the chancery court to determine whether the expansion is required by public convenience and necessity, the statutory requirements as to giving notice of a proposed expansion shifted to Flowood’s Board of Aldermen who were under a duty to afford an opportunity to the appellant and all interested parties the right to object to the expansion and the right to an evidentiary hearing on the issue of public convenience and necessity before the Board.

We find no merit in this contention. The adoption of an ordinance by a municipality expressing its intent to expand its boundaries is purely a legislative matter and requires no public hearing or notice prior to its adoption. The adoption of the ordinance is itself a finding of public necessity and convenience by the governing authorities. Moreover, no appeal lies from the adoption of the ordinance since interested parties are afforded due process of law with respect to notice and hearing when the matter of adoption of the ordinance is submitted to the chancery court for ratification and confirmation as provided by Mississippi Code Annotated sections 21-1-29 through 21-1-33 (1972). At such hearing before the chancery court, the sole issue is the question of the reasonableness of the expansion. Rouse v. City of Pascagoula, supra; Lippian v. Ros, Registrar, 253 Miss. 325, 175 So.2d 138 (1965); Smith v. City of Meridian, supra; Ritchie v. City of Brookhaven, supra.

We therefore hold that a municipality is not required to give public notice to a proposed ordinance expanding its boundaries or to afford a public hearing on that question before the governing board of the municipality prior to the adoption of the ordinance.

II.

The appellant next contends that the expansion proceeding was invalid because the petitioner altered the boundaries of the area proposed to be annexed after the ordinance had been passed and the petition had been filed [in chancery court] without notice to anyone and without complying with the statutory requirements.

The City of Flowood did not present any evidence as to the reasonableness of the annexation of Areas “A” and “B”, and consequently the chancery court, not having any substantial evidence upon which to find that the annexation of these areas was reasonable, deleted those two portions from the annexation as originally proposed. The appellant contends that the failure of the city to go forward with evidence with respect to these two areas was pursuant to agreements not to annex them between the City of Flowood and the Jackson Municipal Airport Authority with respect to Area “A” and the City of Flowood and the City of Pearl as to Area "B”. The appellant contends this constituted an unlawful amendment to the annexation ordinance and points out that the statutory requirements with regard to the ordinance and the petition in an annexation proceeding provide that the governing board of the municipality define with certainty both (1) the territory to be annexed, and (2) the entire boundary as changed, Mississippi Code Annotated section 21-1-27 (1972) ; and, that a copy of the ordinance containing these descriptions be attached to the petition for the enlargement and modification of boundaries at the time it is filed with the chancery court. Miss.Code Ann. § 21-1-29 (1972). However, the appellee points out that section 21-1-33 provides: “. . . the chancellor shall have the right and the power to modify the proposed enlargement or contraction by decreasing the territory to be included in or excluded from such municipality, as the case may be.” This provision of the statute gives the annexation procedure flexibility, and the authority of the chancery court to omit areas from the proposed annexation has been upheld in the following cases. Lippian v. Ros, Registrar, supra; In Re City of Forest, 247 Miss. 340, 153 So.2d 688 (1963); In Re City of Philadelphia, 232 Miss. 582, 100 So.2d 100 (1958); Dodd v. City of Jackson, supra.

We therefore find no merit in the appellant’s contention that the agreement between Flowood and the Jackson Municipal Airport Authority and the City of Pearl with respect to Areas “A” and “B” constituted an impermissible amendment of the original ordinance of expansion. Flo-wood was not required to go forward with evidence as to the reasonableness of these areas which it determined were not desirable to be annexed and the court properly excluded them from its final order approving the expansion of the city.

III.

We have carefully considered the evidence in this case with respect to the reasonableness of the proposed annexation as modified by the chancery court and are of the opinion that there was substantial evidence upon which the lower court could find that the expansion, as modified, was reasonable.

We are of the opinion that the judgment of the lower court should be and is hereby affirmed.

AFFIRMED.

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


text:
    Theodore Jack REYNOLDS v. STATE of Mississippi.
    Misc. No. 645.
    Supreme Court of Mississippi.
    May 11, 1976.
    Dan C. Taylor, Ellisville, for appellant.
    A. F. Summer, Atty. Gen. by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before a Conference of the Judges En Banc.

REVERSED AND REMANDED FOR SETTING AMOUNT OF BAIL.