author: HALL, Judge.

text:
    Dudley B. PILLOW, Jr. et al., Plaintiffs-Respondents, v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT, Defendant-Relator.
    Nos. 13799, 13800.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1979.
    En Banc. Rehearing Denied May 3, 1979.

      William J. Guste, Jr., Atty. Gen., Gary L. Keyser, Asst. Atty. Gen., by Cuthbert H. Mandell, Staff Atty., Baton Rouge, for defendant-relator Bd. of Com’rs for the Fifth Louisiana Levee Dist.
    Lemle, Kelleher, Kohlmeyer & Matthews by Mack E. Barham and Ralph S. Hubbard, New Orleans, Sevier, Yerger & Bishop by H. C. Sevier, Jr., Tallulah, Voelker, Rag-land, Brackin & Crigler by, Frank Voelker, Jr., Lake Providence, for plaintiffs-respondents Dudley B. Pillow, Jr., et al., A. N. Yiannopoulos, Baton Rouge, of counsel.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Writs were granted on the applications of the defendant Levee Board, primarily to review the correctness of an order of the district court certifying this action as a class action. After review, we conclude this is not an appropriate case for a class action and we reverse and set aside the order of the district court.

I.

Thirty-five plaintiffs, owners of land and other real rights in the Fifth Louisiana Levee District which embraces the parishes of East Carroll, Madison, Tensas and Con-cordia, filed .this suit against the Board of Commissioners of the levee district in the district court for Madison Parish on July 7, 1978. The petition alleges that: (1) petitioners are the owners of lands, real rights and other rights in the Fifth Louisiana Levee District adjacent to or abutting or adjoining, or lying under or alongside, or in the vicinity of the Mississippi River or the levee alongside the Mississippi River, and/or the drains, drainage ditches or other drainage facilities related thereto; (2) the proceeding is brought by petitioners as a class action in their own behalf and on behalf of all other parties similarly situated, for injunctive relief and for declaratory judgment, in accordance with LSA-C.C.P. Arts. 591 through 597; (3) the members of the class are so numerous as to make it impractical for all of them to join or to be joined as parties; (4) the interests and rights asserted in the proceeding are common to all members of the class in that all or a portion of the properties and interests and rights therein of each member are currently or prospectively objects of appropriation by the levee district contrary to the provisions of the Constitution and laws of the United States of America and of the State of Louisiana; (5) existence of the criteria for a class action; (6) the defendant Levee Board, acting in concert with the United States Corps of Engineers and the Louisiana State Department of Public Works, beginning in 1973 and continuing for the -next ten to fifteen years, has appropriated or has plans for appropriating lands for the construction, reconstruction, raising, enlargement, repair, relocation, realignment, widening and improvement along the levee along the right descending bank of the Mississippi River from the Arkansas state line on the north to the southernmost, limits of the Board’s jurisdiction on the south; (7) certain contracts have been completed covering certain areas, other contracts are under way, and other contracts are being advertised for bids; (8) plaintiffs are informed they will receive no more than assessed value for those portions of their lands appropriated which lie landward from the levee, will receive no compensation for lands which lie riverward of the levee, and will receive no severance damages; (9) the resolutions of appropriation are null, void and of no legal effect and violative of the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, § 2 of the Louisiana Constitution, and lands can only be taken by expropriation as pro-' vided by the law of Louisiana'; (10) irreparable injury will result to petitioners if defendant is not preliminarily and in due course permanently enjoined from entering or disturbing the land and rights of petitioners and from taking any action pursuant to resolutions of appropriation; (11) that no part of the lands appropriated or to be appropriated are batture and that the right of a levee district to appropriate property is limited to batture; (12) $200,000 is estimated to be the cost of asserting this class action and petitioners are entitled to all costs including attorney’s fees; (13) alternatively, that a fund should be established for the payment of all costs consisting of amounts withheld by defendant under court direction from compensation paid or deposited at any time by defendant to or for the account of a petitioner or member of the class; and (14) petitioners specifically assert an action of “inverse expropriation” and actively seek and sue for redress as to all property taken or damaged by defendant without such proper exercise of expropriation.

Plaintiffs prayed for: (1) a preliminary injunction enjoining defendant from entering or disturbing the land, real rights or other rights of plaintiffs and the class; (2) perpetuation of the preliminary injunction, mandating that all land and rights previously or subsequently taken or damaged be compensated for at actual value with interest and attorney’s fees; (3) the action to be litigated as a class action or, alternatively, be maintained as an ordinary proceeding in inverse expropriation on behalf of the named plaintiffs; (4) declaratory judgment recognizing this inverse expropriation action and the rights of plaintiffs and each member of the class to full and just compensation as in expropriation and decreeing that appropriation of lands is illegal and unconstitutional; (5) judgment declaring the rights of plaintiffs and each member of the class to full, just and adequate compensation in damages and to recovery of all expenses and costs of this action; (6) a fund to be established for the payment of all costs, the fund to consist of amounts withheld by defendant under court direction from compensation paid or deposited at any time by defendant to or for the account of a plaintiff or member of the class and to continue in existence until terminated by court order; (7) defendant be ordered to withhold from each payment or deposit of compensation to a plaintiff or member of the class a proportionate share of the cost; (8) other alternative relief relating to the fund to be established; and (9) general and equitable relief.

Several exceptions were filed by the defendant. On October 4, 1978, pursuant to plaintiffs’ motion, the district court rendered an ex parte order certifying the suit as a class action and ordering that notice of the class action be given to all class members by mail and by publication, requiring class members to file an election to be excluded on or before October 30. By separate order dated October 4, 1978 the defendant was ordered to show cause why the ex parte order should not be affirmed and confirmed. Defendant filed additional exceptions. On October 17, the hearing was held on all pending motions and exceptions. Judgment was rendered overruling most of defendant’s exceptions and ordering that the certification of the action as a class action be maintained. From this order defendant filed two applications for writs, one directed primarily toward the propriety of this suit as a class action and the other directed primarily toward the propriety of this suit as an action for declaratory judgment. Writs were granted by this court, mainly to review the class action issue.

II.

LSA-C.C.P. Arts. 591 and 592 establish three requirements for a class action; (1) a class so numerous as to make it impractical for all of the class members to join or be joined as parties; (2) the character of the rights sought to be enforced for or against the members of the class is common to all members of the class; and (3) the joinder as parties to the suit of one or more members of the class who will fairly insure the adequate representation of all members.

The Louisiana class action is adapted from Federal Rule of Civil Procedure 23 as originally promulgated in 1937. The hybrid and spurious class actions of the federal rule were deliberately rejected by the Louisiana Legislature. Article 591 authorizes only the true class action. Williams v. State, 350 So.2d 131 (La.1977); Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La.1975).

In the Louisiana true class action the existence of a common question of law or fact does not by itself justify a class action as involving a common character of the right to be enforced. There must exist a relationship between the claims greater than simply that of sharing a common question of law or fact.

Whether the class action remedy sought should be allowed or disallowed depends upon the ultimate determination of whether “the class action will be clearly more useful than other available procedures for definitive determination of a common-based right, , in the interests of the parties (including both the class and the opponents) to it) and of the efficient operation of the judicial system.” The values of effectuating substantive law, judicial efficiency, and individual fairness involved in allowing or disallowing a class action are intertwined. These values were discussed in Stevens as follows:

“In determining how the legislature intended the courts to define and apply the concept of allowing a class action to enforce rights with a common character, we are mindful of the basic goals or aims of any procedural device: to implement the substantive law, and to implement that law in a manner which will provide maximum fairness to all parties with a minimum expenditure of judicial effort. Implicit, then, in decision that rights are of a common character is a consideration of the extent to which a clear legislative policy might be thwarted, or hampered in its implementation, by the lack of availability of the class action device.
“But this does not end the inquiry. Fairness to the parties demands at the least that the relationship between the claims of members of the class should be examined to determine whether it would be unfair to the members of the class, or to the party opposing the class, to permit separate adjudication of the claims. In determining whether it would be unfair to require separate adjudications, for instance, the courts should consider the precedential value of the first decision, as well as the extent of injustice that will be produced by inconsistent judgments in separate actions. Another factor to be considered, for example, is the size of the claims of the absent members of the class, for the greater the claim, the greater the interest of its owner in prosecuting it in a separate action.”

In Stevens and Williams the court noted certain functional and pragmatic factors or criteria, drawn from Federal Rule 23(b), which should be taken into consideration by the court in making its determination of whether to allow a class action. The guidelines established by Rule 23(b) are:

“ * * * An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1)the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”

In Williams the court also referred to similar but more detailed criteria set forth by the Uniform Class Actions Act. Williams, 350 So.2d p. 134, footnote 3.

III.

In making the determination of whether the class action should be allowed in this case it is necessary to analyze plaintiffs’ cause of action and the nature of the relief sought.

The'class is defined as “the owners of lands, real rights and other rights in the Fifth Louisiana Levee District in the State of Louisiana adjacent to or abutting or adjoining, or lying under or alongside, or in the vicinity of the Mississippi River or the levee alongside the Mississippi River, and/or drains, drainage ditches or other drainage facilities related thereto.” Plaintiffs allege that the Levee Board has appropriated and will in the future appropriate lands along the right descending bank of the Mississippi River for levee construction and reconstruction purposes with payment of only the assessed value as compensation or with no compensation at all. Plaintiffs pray for permanent injunctive relief (plaintiffs originally prayed for a preliminary injunction but have abandoned this claim for relief), enjoining defendant from taking and damaging any land without prior payment of just and full compensation; judgment recognizing this action as one in “inverse expropriation” and the right of each member of the class to full compensation as in expropriation; judgment decreeing that appropriation of land is illegal and unconstitutional; judgment declaring the rights of each member of the class to full, just and adequate compensation for all property and rights of which they may be divested by defendant; and the establishment of a fund to cover attorney’s fees and other costs out of payments of compensation hereafter made by the Levee Board to any member of the class. Although the prayer of plaintiffs’ petition is not entirely clear in this respect, plaintiffs disclaim in brief and oral argument before this court any prayer for a money judgment in favor of any member of the class in this proceeding.

In order to analyze plaintiffs’ cause of action it is necessary to consider the law relating to appropriation for levee purposes as it exists and has existed during the period involved in this suit.

Riparian property (property adjacent to a navigable stream) is subject to the levee servitude (an ancient-servitude codified in Civil Code Article 665) and may be appropriated (as distinguished from expropriated) for levee purposes, if the property was riparian when severed from the public domain and if the property is within the range of the reasonable necessities of the situation as produced by the forces of nature unaided by artificial causes. Use of property subject to the levee servitude for levee purposes is not a taking of private property for which compensation is due under either the Louisiana or Federal Constitutions, any compensation provided for by Louisiana constitutional or statutory law being a mere gratuity. The rationale of decisions upholding the constitutionality of appropriation for levee purposes is that the levee servitude was reserved to the public at the time riparian property was severed from the public domain and that title to such riparian property is held subject to the servitude. Eldridge v. Trezevant, 160 U.S. 452, 16 S.Ct. 345, 40 L.Ed. 490 (1896); Delaune v. Board of Commissioners, 230 La. 117, 87 So.2d 749 (1956); Dickson v. Board of Com’rs of Caddo Levee Dist., 210 La. 121, 26 So.2d 474 (1946); Deitic Farm and Timber Co., Inc. v. Board of Commissioners for the Fifth Louisiana Levee District, 368 So.2d 1109 (La. App. 2d Cir. 1979); and numerous other eases cited in the foregoing decisions.

Article 16, § 6 of the Louisiana Constitution of 1921 provided for payment for lands used or destroyed for levee purposes at a price not to exceed the assessed value. Article 6, § 42 of the Louisiana Constitution of 1974, which went into effect at midnight on December 31, 1974, provides that lands and improvements actually used or destroyed for levee or levee drainage purposes shall be paid for as provided by law. Article 14, § 32 of the 1974 Constitution provides that the provisions of Article 16, § 6 of the 1921 Constitution shall be continued as a statute, subject to change by the Legislature, and the amount of compensation therein required to be paid for property used or destroyed for levee or levee drainage purposes shall be paid as provided in that Section until the Legislature enacts a law to effectuate Article 6, § 42 of the 1974 Constitution.

Act 314 of 1978, effective July 10, 1978, provides that all lands and improvements hereafter actually used, damaged or destroyed for levees or levee drainage purposes shall be paid for at fair market value to the full extent of the loss and just compensation for both the land and improvements taken or destroyed and for damages suffered by reason thereof shall be paid to the owner. The Act further provides that the owner shall be compensated as provided in the Act only when and to the extent that the Legislature, the Levee Board or the federal government appropriates the funds therefor. The Act provides that the compensation defined therein shall apply to all lands and improvements taken, damaged or destroyed after the effective date of the Act and to the determination of just compensation in any expropriation or appropriation suit pending on July 10, 1978, involving lands and improvements taken, damaged or destroyed for levee and levee drainage purposes.

Act 113 of 1975, enacting Louisiana R.S. 38:301 through 301.45, effective September 12, 1975, provides a procedure for expropriating property needed for levee purposes whenever any levee district cannot appropriate or amicably acquire such property. The statute requires the filing of a suit and the deposit into court of the estimated full extent of the owner’s loss for the expropriation or the damage caused by the taking.

The principal thrust of plaintiffs’ case is that Eldridge v. Trezevant, supra, was incorrectly decided and that the Fifth Amendment to the United States Constitution prohibits use of any property for levee purposes without payment of just compensation. Plaintiffs are also urging that there is no levee servitude as defined in the well-established Louisiana jurisprudence and that there is no right of appropriation for levee purposes. Alternatively, plaintiffs are urging that the levee servitude and right of appropriation is limited to certain lands, under various and multiple theories, depending on varying origins of title, and other varying factors. Plaintiffs are urging, in the further alternative, rights to full compensation based on provisions of the 1921 Constitution, 1974 Constitution, and statutes enacted in 1975 and 1978.

A principal object of plaintiffs’ suit, which was filed on July 7, 1978, a few days prior to the effective date of Act 314 of 1978, is to bring plaintiffs and members of the class within the provisions of the Act relating to the determination of just compensation “in any expropriation or appropriation suit pending on July 10, 1978.”

Although the full extent of the multiple theories advanced by plaintiffs is not disclosed by the pleadings, briefs and arguments at this point in the litigation, it is perfectly clear that plaintiffs seek a judgment determining whether each plaintiff and each member of the class is or is not entitled to full compensation for property previously used or which may in the future be used for levee purposes. Plaintiffs’ brief, argument and testimony at the hearing reveal that if they are unsuccessful in their principal objective, the overturning of well-established jurisprudence and a resulting declaration that no property can be used for levee purposes without payment of full compensation, then numerous divergent questions of law and fact must be determined as to different plaintiffs and members of the class in deciding whether each is or is not entitled to full compensation. For example, in testimony at the hearing counsel for plaintiffs stated that guidelines could be established for the court in regard to high water, low water, riparian, nonripa-rian, and other factors, so that the court could determine which, if not all, members of the class are entitled to full compensation. In a supplemental brief, counsel states that different results as to different members of the class can result if interpretation and application of Act 314 of 1978 is required. Different results might ensue as to different plaintiffs based on when the property was or will be used, the nature of the use, the location and nature of the property used, origin of title, and other varying factors.

Thus, plaintiffs’ action presents many questions of law or fact that are not common to all members of the proposed class. Plaintiffs’ contention that the one common overriding issue is whether all members of the class are entitled to full compensation under the Fifth Amendment is an over-simplification of the case, as postured by plaintiffs themselves. Multiple sub-issues are presented, dividing the proposed class into numerous sub-classes, and possibly requiring a separate determination of the respective rights of the Levee Board and each individual owner in relation to each individual tract of land.

IV.

We find the class action is not allowable. The criteria we deem decisive include:

(1) The persons constituting the class as defined by plaintiffs are so numerous as to make it impractical for all of them to join or be joined as parties. However, the class as defined is too vague and indefinite, at least geographically. The class members should be easily identifiable. It might be difficult to determine whether a particular person was the owner of land, real rights or other rights “in the vicinity of the Mississippi River or the levee alongside the Mississippi River, and/or the drains, drainage ditches or other drainage facilities related thereto.” The possibility of subsequent litigation to define the class or to identify a member of the class defeats the purpose of a class action. Since the judgment in a class action would be res judicata as to all members of the class it is necessary that the members of the class be identified with particularity. Further, the vagueness of the class makes it difficult to evaluate the requirement of a common character of right among the members of the class and the requirement of adequate representation.

(2) The prosecution of separate actions by individual members of the class would not create an undue risk of inconsistent or varying adjudications nor as a practical matter be dispositive of the interests of other members or substantially impair their ability to protect their interests.

The number of forums available to members of the proposed class is not great and there is little reason to anticipate varying results. The appellate process is available to reconcile varying results in trial courts. Although plaintiffs argue that over 1,000 suits may be filed, the fact is that the project has been going on since 1973 and only a few cases have been filed. Under Louisiana’s restrictive application of res ju-dicata and nonapplication of collateral es-toppel, plaintiffs’ suit would not be disposi-tive of the interests of other members of the class who could protect their interests by litigating their rights to just compensation, regardless of the outcome of this suit.

(3) Although the Levee Board has refused full compensation to landowners whose property is subject to the levee servitude and to this extent has acted on grounds generally applicable to most riparian owners, the class as broadly defined includes others who do not fall in that category. Further, it is not demonstrated that the Levee Board will act in the same manner as to property used after the effective date of Act 314 of 1978. Final injunctive or declaratory relief with respect to the class as a whole is not appropriate.

(4) The questions of law or fact common to the members of the class do not predominate over questions affecting individual members. This factor is discussed more fully in section III above.

(5) The class action is not superior to other available methods for the fair and efficient adjudication of the controversy. As landowners whose properties are differently situated and differently affected by the Levee Board’s actions, the interests of individual members of the class in individually controlling the prosecution of separate actions is substantial. We perceive no particular desirability, from a judicial efficiency standpoint of concentrating the litigation of the claims of the members of the class in the district court for Madison Parish. Considering the divergence of the claims under plaintiffs’ alternative theories and demands, the management of the class action could become not only difficult, but virtually impossible.

It is not demonstrated that the cost of litigating claims to full compensation by landowners who desire to do so is so great as to deter or impede the prosecution of such claims. Obviously plaintiffs, who allege ownership of lands valued in excess of $5,000,000, are in a position to prosecute their action without the necessity of calling on other members of the class to share in the cost. Most landowners who wish to assert similar claims to full compensation should be in a position to do so. It should be noted also that at the conclusion of this declaratory judgment action it will still be necessary where disputes exist for the compensation demands of each individual member of the class to be adjudicated in separate actions.

(6) The action does not seek to enforce or implement a clear legislative policy. To the contrary, it seeks primarily to overturn well-established jurisprudence and seeks to have declared unconstitutional Louisiana constitutional and statutory provisions.

As stated in Stevens, the ultimate determination is whether the class action will clearly be more useful than other available procedures for definitive determination of a common-based right, in the interest of fairness to the parties and of judicial efficiency. Our conclusion is that the values of effectuating substantive law, judicial efficiency and individual fairness will not be served by allowing this action to proceed as a class action. The class action would impair, not serve, these values. It should not be allowed in this case.

V.

Numerous other issues are presented by the exceptions filed by the defendant in the trial court and by the applications for writs filed in this court. It is specifically noted that no ruling of the district court and no issue other than the allowance of the class action has been considered or ruled upon by this court at this interlocutory stage of the proceeding.

For the reasons assigned, the orders of the district court certifying and confirming this action as a class action are reversed and set aside. Defendant’s exceptions are sustained insofar and only insofar as they oppose certification of this action as a class action. The case is remanded to the district court for further proceedings in accordance with the views expressed in this opinion and in accordance with law. Assessment of costs shall await final determination of the action.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    James D. STRANGE, Plaintiff-Appellee, v. Curtis Franklin IVEY et al., Defendants-Appellants.
    No. 13812.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1979.

      Bruscato & Loomis by Anthony J. Brus-cato, Monroe, for defendant/appellant, Claudie Lee Ivey, and for defendants-appel-lees, Curtis Franklin Ivey, et al.
    Sedric E. Banks, Monroe, for absent defendants/appellees.
    Farrar & Perry by Harvey Perry, Monroe, for plaintiffs/appellees, Bennie Mac Farrar and John Bishop Johnston, III.
    Kostelka & Swearingen by Lawson L. Swearingen, Jr., Monroe, for plaintiff/ap-pellee, James D. Strange.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Claudie Lee Ivey appeals from an “amended judgment” in a proceeding for partition by licitation which held that he was not the owner of an undivided Vu interest in the property as he had earlier asserted by informally intervening in the proceeding and as a default judgment had earlier recognized. We affirm the result.

The property was at one time apparently owned by the parents of Claudie Lee Ivey. In 1954 the one-half community interest of Claudie Lee Ivey’s father was sold at sheriff’s sale. The seven Ivey children later purchased the one-half interest.

In 1968, Claudie Lee Ivey sold by warranty deed an undivided Vi interest in the property, notwithstanding that he only owned Vi of Vi, or a Vu interest. Claudie Lee Ivey’s vendee later sold by warranty deed the Vi interest to Johnston and Farrar, appellees herein.

In 1969, Claudie Lee Ivey’s mother died and in 1971 he was judicially placed into possession of an undivided Vu interest of the whole of the property.

This partition suit was brought in 1976. Claudie Lee Ivey was not mentioned or named as a defendant in the suit. Fifteen defendants were named as owning various fractional interests, including Johnston and Farrar, who were alleged to be co-owners of an undivided Vi interest.

On June 30, 1977, a pre-trial statement was signed and filed by several attorneys representing some of the respective named defendants. This pre-trial statement did not mention Claudie Lee Ivey. One of the attorney-signers later became the attorney for Claudie Lee Ivey. On October 19, 1977, Claudie Lee Ivey, in a pleading simply styled “Motion”, asserted that he acquired a Vm interest in the property by inheritance from his mother and that he desired to have the judgment reflect his fractional ownership. This motion was not served on Johnston and Farrar nor on any other defendants in the principal action. Plaintiff and three of the 15 defendants filed a pleading on October 19, 1977, stating that they had “no objection” to Claudie Lee Ivey’s filing his motion.

We deem Claudie Lee Ivey’s motion to have been intended to serve as a petition of intervention asserting his rights to a fractional interest in the property. See CCP Arts. 1091-1094. Service on all parties to the principal action as provided in CCP Art. 1314 was absolutely necessary. CCP 1093.

A preliminary default had been entered against Johnston and Farrar and four other defendants on June 1,1977. On October 19, 1977, the date Claudie Lee Ivey filed his motion (petition to intervene, as we deem it), judgment on the principal demand was signed recognizing various fractional interests in the property and ordering partition by licitation. As to Johnston and Farrar, it was a judgment by default. The judgment was not served on Johnston and Farrar. It recognized them as co-owners of only a Vu interest and recognized Claudie Lee Ivey as the owner of a Vu interest.

On January 17,1978, alleging the discrepancy between the allegations of the principal action and the judgment of October 19, 1977, and their reasons for not contesting the principal action, Johnston and Farrar filed a petition to enjoin the partition sale scheduled for the next day. Eventually the sale occurred and Johnston and Farrar on the one hand, and Claudie Lee Ivey on the other hand, were ordered to brief the issue of their respective ownership, if any, for the trial court and the contest was relegated to the proceeds attributable to the disputed Vu interest which was claimed by Claudie Lee Ivey in his intervening “motion”.

Written reasons for judgment below, stated: “The [lower] court granted a new trial and ordered it submitted on briefs . as relates to . the specific interest the parties have in and to the property in question . . [Johnston’s and Farrar’s] memorandum brief urges the impropriety of the judgment [of October 19, 1977, granting Claudie Lee Ivey an undivided Vi4 and granting them only a Vu interest] and asserts their ownership of an undivided one-seventh (Vi) interest by way of after acquired title.” The court then said:

“. . .in reviewing the memorandum filed by each party and the cases cited therein, and in reviewing the case of Tillery v. Fuller, 190 La. 586, 182 So. 683, finds that it was the intent of the original vendor to sell a one-seventh (Vi) interest at the time of the sale, even though there was only a one-fourteenth (Vu) interest marketable. The Court finds that there was not an intention to sell the succession of a living person as prohibited by the Code, but rather to sell his interest in and to the property which he had. The vendor sold all of his interest in said property which was a one-fourteenth (Vu) interest at that time and when the vendor later acquired an additional interest by succession, making his total interest a one-seventh (Vi), the totality of his original intent, i. e., one-seventh (Vi) interest was then consummated. The Court finds it was then conveyed to the vendees and defendants herein, Farrar and Johnston, by the doctrine of after-acquired title.
“Therefore, the Court finds that the defendants, Farrar and Johnston, have a total of an undivided one-seventh (Vi) interest in and to the property or a one-fourteenth (Vu) interest each.
“Further, the Court finds that a default was entered against the defendants, Farrar and Johnston, and that default was confirmed. The Court finds through Article 1703 of the Code of Civil Procedure that the judgment cannot differ in kind or exceed in amount from the original prayer. Thus the original judgment signed was an error in calculation by the Court and the Court orders it amended to reflect the amounts and kind as originally set out.”

An “amended judgment” was signed to this effect on August 2, 1978, from which Claudie Lee Ivey appeals. He raises several procedural issues here, which in a different setting perhaps would have some merit. This procedural setting, however, was provoked entirely by Claudie Lee Ivey’s failure to make the required service of his “motion” of October 19, 1977, as required by law.

By asserting his alleged Vw inherited interest, Claudie Lee Ivey, in effect, was contesting with Johnston and Farrar the question of whether he or they owned the Vi4 interest he inherited from his mother after having sold by warranty deed an undivided Vi interest. He could have done this in a direct action or by way of intervention. The judgment recognizing him as a Vu owner, insofar as it affected Johnston and Far-rar, is an absolute nullity because Claudie Lee Ivey’s motion (petition of intervention) was not served on the parties to the principal action as required by CCP 1093.

The prayer of a petition must be read in connection with the allegations of the petition in order to determine the effect or validity of a default judgment under CCP 1703. Royal Furniture Company of Baton Rouge v. Benton, 260 La. 527, 256 So.2d 614 (1972). The default judgment as to Johnston and Farrar (a Vi4 interest instead of a Vn interest as alleged) then was also null. Since this nullity was so interrelated with the nullity of that part of the judgment recognizing Claudie Lee Ivey as the owner of a Vu interest, we shall consider the effect as one. A judgment which is absolutely null because of lack of service may be questioned by anyone against whom it is interposed and whenever and wherever it is asserted, even collaterally by injunction. Succession of Barron v. Oden, 345 So.2d 998 (La.App. 2d Cir. 1977).

Claudie Lee Ivey responded to the lower court’s order that the issue of ownership of the disputed Vu interest be submitted on briefs. No claim or showing of prejudice is raised that Claudie Lee Ivey was deprived of procedural or substantive due process by this procedure. The factual contentions of each party were fully presented and argued below. The court which rendered the judgment which we have agreed was null insofar as it pertained to the disputed Vu interest, had jurisdiction and had the proper disputants and facts before it. However loosely, and notwithstanding procedural mislabeling and misstatement of the issues, the crucial determination now before us is whether or not the lower court was correct in applying the warranty concept of after-required title under the circumstances.

We find the lower court correctly applied the law. One who sells by warranty deed an interest in land which he does not then own and who later acquires an interest by inheritance, cannot claim the inherited interest against those vendees to whom he has warranted the interest, because such after-acquired title must legally inure to the benefit of those vendees. “This doctrine is so well established that it [is] unnecessary to discuss it further.” Jackson v. United Gas Public Service Co., 196 La. 1, 198 So. 633, 637 (1940). CC 2476. See also our discussion of the effect of the seller’s warranty in Dillon v. Morgan, 362 So.2d 1130 (La.App. 2d Cir. 1978). Claudie Lee Ivey did not sell the succession of a living person contrary to CC Arts. 2454, 1887. The sale of an undivided W interest in a specifically described tract of land is not contrary to CC Art. 2454.

The result below is correct. For these reasons, and for reasons assigned below to the extent modified here, at appellant’s cost, judgment is

AFFIRMED.

      . These issues concern:
      The authority of a trial court to grant a new trial on its own motion after delays have expired;
      Whether the judgment of October 19, 1977, relating to the 7m interest in question was an error of calculation and whether an amendment of that judgment was form or substance;
      Whether defendants should have been allowed to present evidence or legal argument after October 19, 1977, when they did not plead to the plaintiffs petition in the principal action; and
      Whether the judgment of October 19, 1977 exceeded the prayer of the petition in the principal action which sought only a partition of the property.


author: PRICE, Judge.

text:
    Toxie GIVENS, Plaintiff-Appellant, v. The RICHLAND-MORRIS AGENCY, INC., Defendant-Appellee.
    No. 13818.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1979.

      Michael E. Kramer, Winnsboro, for plaintiff-appellant.
    Adams & Reese by Robert E. Couhig, Jr., New Orleans, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Plaintiff filed suit against defendant, an insurance agency, for its alleged failure to secure builder’s risk insurance in the amount of $100,000 on the construction of plaintiff’s slaughterhouse and produce processing plant which was substantially destroyed by a tornado on March 28, 1977. Plaintiff alleged damages to the partially completed structure in excess of $200,000; alleged business losses of $238,750 from the slaughterhouse operations and produce processing suffered because of defendant’s alleged failure to remit insurance proceeds so that plaintiff could timely rebuild and repair his damaged facility; requested a trial by jury; and prayed for statutory penalties and attorney fees under La.R.S. 22:658.

Defendant filed an exception of no cause of action, a motion for summary judgment, and a motion to strike the order for jury trial.

The trial court, in written reasons for judgment, sustained defendant’s exception of no cause of action relating to statutory penalties and attorney fees; denied defendant’s exception of no cause of action seeking to limit damages to the alleged policy’s limits; granted summary judgment dismissing plaintiff’s claim relating to the alleged 1977 business losses; and denied defendant’s motion to strike the court order for jury trial.

As we find no authority for the sustaining of a partial no cause of action, and that the granting of summary judgment was improper in this ease, we reverse the judgment in these respects.

Although plaintiff does not contend in his specifications of error that the sustaining of a partial no cause of action was improper, this court has the authority under La.C.C.P. Art. 2164 to render any judgment which is just, legal, and proper upon the record on appeal irrespective of whether a particular legal point or theory is made.

This court recently considered whether it was appropriate to sustain an exception as to a part of a cause of action only. In Walker v. Western-Southern Life Ins. Co., 361 So.2d 892 (La.App. 2d Cir. 1978) we said:

Our Code of Civil Procedure does not provide for an exception of partial no cause of action. The effect of sustaining a peremptory exception is that the action shall be dismissed, not that part of the action be dismissed. La.C.C.P. Art. 934. Since defendant’s exception is leveled at only the allegations of and prayer for nonpecuniary damages, not the sufficiency of plaintiff’s demand for breach of contract, the exception should have been overruled.
Defendant’s use of the exception of no cause of action to strike an element of claimed damages represents an improper use of the procedural vehicle and illustrates the problem of piecemeal litigation which can result from the misuse of provisions intended to streamline our civil procedure.

In view of our decision in Walker, use of the exception of no cause of action to strike statutory penalties and attorney fees is improper and should be overruled.

The Code of Civil Procedure provides that summary judgment is to be rendered only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and the mover is entitled to judgment as á matter of law. La.C.C.P. Art. 966. Plaintiff alleges that the 1977 business losses from his slaughterhouse and produce operations were caused by defendant’s failure to remit insurance proceeds in order that plaintiff might proceed to repair and reconstruct his badly damaged building. Defendant, on the other hand, claims that the 1977 business losses were caused solely by the windstorm and not by any fault or failure of defendant. The trial judge in his written reasons concluded that plaintiff’s loss of the use of his building in 1977 was due to the tornado and not by any fault of defendant and granted summary judgment rejecting plaintiff’s claim as to the 1977 business losses.

The question presented by a motion for summary judgment is whether there is a genuine issue of fact and not how that issue should be determined; a genuine issue of fact cannot be resolved on a motion for summary judgment. La.C.C.P. Art. 966, Walmsley v. Gilmore, 144 So.2d 625 (La. App. 4th Cir. 1962). The trial court in this instance resolved the question of material fact as to the cause of the 1977 business losses, which was an improper use of summary judgment procedure.

For the reasons assigned the judgment sustaining the exception of no cause of action and the summary judgment is reversed and set aside. The judgment overruling the motion to strike plaintiff’s request for a jury trial is affirmed. The case is remanded for further proceedings in accordance with law and consistent with the views expressed herein. Costs of this appeal are assessed to defendant. Assessment of all other costs is to await final disposition of this matter.


text:
    Charles E. ROEMER, II, Plaintiff-Appellant, v. John E. CAPLIS, Jr., et al., Defendants-Appellees.
    No. 13819.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1979.

      Mayer, Smith & Roberts by Paul R. Mayer, Shreveport, for plaintiff-appellant.
    Bethard & Davis by Henry W. Bethard, III, Coushatta, for defendants-appellees John E. Caplis, Jr., Congregation of the Daughters of the Cross, Beatrice Caplis, Adolphe C. Renaud, Sr., Adolphe C. Renaud, Jr., William A. Renaud, Mrs. Ruth Renaud Gras and Commercial Nat. Bank in Shreveport.
    Gordon, Arata, McCollam & Watters by John M. McCollam and Andrew L. Gates, III, New Orleans, for defendants-appellees Alexandrine Caplis Ryan and James J. Ryan, Jr.
   HALL, Judge.

This declaratory judgment action involves the ownership of the minerals below 3100 feet under the Hopewell Plantation, a tract of land containing approximately 640 acres located in Bossier Parish. Plaintiff, Charles E. Roemer, II, is the present owner of the land, on which a producing well was drilled to a depth below 3100 feet in 1972. Defendants are members of the Caplis family, or their successors in title, who formerly owned the land which was conveyed to one member of the family in 1949 pursuant to a partition, and was eventually sold to Roemer in 1959.

Plaintiff’s position essentially is that two separate mineral servitudes, one affecting the minerals above 3100 feet and one affecting the minerals below 3100 feet, were created in favor of the Caplis daughters by mineral sales in 1949, at which time the land was conveyed to one Caplis daughter. At that time oil was being produced from above 3100 feet and that production has continued until the present time. There was no drilling or production below 3100 feet until 1972. It is plaintiff’s position, therefore, that the servitude affecting the minerals below 3100 feet created in 1949, and another servitude created in favor of his vendor when he bought the property in 1959, have prescribed, and that as landowner, he is the owner of all the minerals below that depth.

Defendants’ position essentially is that only one servitude as to all depths was created by the 1949 instruments and that prescription against that servitude has continued to be interrupted by the continued production from above 3100 feet. Defendants contend Roemer owns only the fractional mineral interest he acquired from his vendor in 1959.

The district court, pursuant to written reasons for judgment, rendered judgment for defendants and plaintiff appealed.

I.

The Hopewell Plantation, along with other property, was owned by William A. Ca-plis and his wife, Hallie Mooty Caplis, as community property. Mrs. Caplis died in 1939, survived by her husband and seven children, two sons and five daughters, namely, John Edmond Caplis, William A. Caplis, Jr., Ruth Caplis, known as Sister Constance, Beatrice Caplis, known as Sister Miriam, Marguerite Caplis Renaud, Hallie Mae Caplis and Mrs. Alexandrine Caplis Ryan. Thus, in 1949, the property was owned in indivisión one-half by Mr. Caplis, Sr. and one-fourteenth (Vu) each by the seven children, subject to their father’s usu-fruct of their interest. The land was subject to three oil, gas and mineral leases and there was production of oil or gas from a depth above 3100 feet.

On March 1, 1949, four instruments, all dated January 29, 1949, were simultaneously filed of record, as follows:

(1) An instrument (identified in the record as Roemer-2) entitled “Mineral Deed” by which the father, two sons, and Mrs. Ryan conveyed to the other four daughters all of their right, title and interest in and to the oil, gas, sulphur and other minerals located above 3100 feet from the surface under the Hopewell Plantation containing 692 acres. The grant was made subject to any valid mineral leases affecting the property but included the royalties accruing under the leases. Mr. Caplis, Sr. renounced his usufruct in favor of the vendees. The stated consideration was $1,000 and other valuable consideration. The instrument contained the following recitation:

“The said above described lands being the same property as described in the deeds conveying the said Hopewell Plantation to the said Mrs. Alexandrine Caplis Ryan and to the said Miss Hallie Mae Caplis, said deeds being dated with this act and recorded on or about the same date as this instrument is recorded.”

The instrument was signed by all members of the family.

(2) An instrument (identified in the record as Roemer-3) by which the father and two sons conveyed to the five daughters all their right, title and interest in and to the oil, gas, sulphur and other minerals lying below 3100 feet from the surface under the Hopewell Plantation containing 692 acres. The grant was made subject to any valid mineral leases affecting the land but included royalties accruing under said leases. Mr. Caplis, Sr. renounced his usufruct in favor of the vendees. The recited consideration was $1,000 and other valuable consideration. The instrument contained the same recitation concerning the sales to Mrs. Ryan and Miss Caplis as contained in the instrument identified as Roemer-2. All members of the family signed the instrument.

(3) An instrument (identified in the record as Roemer-4) entitled “Cash Sale” by which the father, two sons and four of the daughters conveyed to Mrs. Alexandrine Caplis Ryan the Hopewell Plantation containing 692 acres, less 52V4 acres being deeded to Hallie Mae Caplis. The deed did not contain language specifically reserving minerals, but did contain the following clause:

“This deed and transfer however is being made subject to all sales of minerals and royalties and rights pertaining thereto made this date by and between the parties hereto; and likewise it is being made subject to any oil and gas and mineral leases effecting said property which may have been heretofore made at any time.”

The deed recited a consideration of $1,000 cash and other valuable considerations, “as per partition and agreement of settlement of this date between all parties hereto of the Succession effects and property of the late Mrs. Hallie Mooty Caplis, deceased, wife of said William A. Caplis, Sr., and mother of the remaining parties to this deed; the said William A. Caplis, Sr., joining in this deed and settlement to contribute to equalize and validate said settlement and allegations therein set forth.” The instrument was signed by all of the family members.

(4) An instrument (identified in the record as D-10) entitled “Cash Sale” by which the father, two sons and four daughters conveyed to Hallie Mae Caplis a tract containing 52V4 acres out of the Hopewell Plantation. The deed contained the same clause relative to it being made subject to all sales of minerals and oil and gas leases and also contained a similar consideration clause referring to a partition agreement between the parties of the same date. The deed was signed by all of the family members.

By instrument dated November 7, 1955; recorded November 16, 1955, Mrs. Ryan donated the property to her son James Joseph Ryan, Jr. The act of donation recited that the property is subject to all sales of minerals and royalties and rights pertaining thereto and subject to any and all oil and gas and mineral leases affecting said property which may have been made at any time.

By instrument dated December 18, 1959, recorded December 28, 1959, Mrs. Ryan and James Joseph Ryan, Jr. sold the property to Charles E. Roemer, II. The deed contained the following mineral reservation:

“Vendors hereby reserve one-half of all their right, title and interest in and to the minerals in and under the property herein conveyed.”

As previously mentioned, there has been oil production under the three old leases from a depth above 3100 feet from prior to 1949 to the present date. There was no drilling or production from a depth below 3100 feet until December 29, 1972, when a well was drilled which is now producing from below that depth.

This suit was filed by Roemer in 1976. Named as defendants are the five Caplis sisters or their successors in title. The defendants can be divided into two groups since their interest and legal positions are not identical: (1) the four sisters, Ruth, Beatrice, Marguerite and Hallie, and their successors; and (2) the fifth sister, Mrs. Ryan, and her son.

At trial, after plaintiff’s objection was sustained, an unsigned carbon copy of a partition agreement purportedly executed by the Caplis family on January 29, 1949, the same date as the four instruments described above, was identified by the attorney who prepared it and the other instruments and by one of the sisters who signed it, and was filed into the record under an offer of proof. The instrument evidences an agreement by W. A. Caplis, Sr. and all of his children to make a partition and settlement of all the family property, including the Hopewell Plantation. The two sons had already received property. The instrument provided that the old home place located on the Hopewell Plantation, together with “surface rights” to 50 acres of land around it, should be deeded to Hallie Mae Caplis. Stocks and bonds and certain income producing property were to be conveyed to the four daughters other than Mrs. Ryan. Provision was made for income to be paid to Mr. Caplis, Sr. The “surface rights” to Hopewell Plantation, less the tract transferred to Hallie Mae Caplis, were to be conveyed to Mrs. Ryan. Pertinent to the mineral rights, the instrument provides:

“5. All royalties or royalty interests being received from production from any and all the oil and gas wells located on the said Hopewell Plantation, including any and all interest in any payments for gas, oil or other minerals now being received from production of said oil and gas wells; also any and all other mineral interests which may inure to the benefit of the said estate of the said Mrs. Hallie Elizabeth Mooty Caplis, located at a lesser depth than 3100 feet, shall be transferred by proper deeds or assignments, showing the proper consideration, to the said four daughters above named, not including the said Mrs. Alexandrine Ca-plis Ryan. Likewise any and all royalties or royalty interests or oil or gas payments of whatsoever nature which may be due and payable from any new wells or production therefrom which may be drilled to the same depths or sands from which the present wells are now producing, not exceeding 3100 feet from the surface, shall be transferred or assigned and made payable to the said four daughters, not including Mrs. Alexandrine Caplis Ryan; the said daughters however to give their said father a one-half (V2) of the amounts of the royalties, etc., to be paid from said wells during his lifetime;
“6. All interest held by said Succession in and to all minerals located in and under the said Hopewell Plantation and located below the 3100' level or depth, shall be deeded and transferred to the said five daughters in equal proportions;”

The instrument further provides:

“. . . and the said Caplis hereby grants, assigns and transfers with full subrogation of all rights unto his said four daughters, — all the royalties, oil payments or other rights inuring to his benefits of, from and to, all oil or gas or other minerals now being or may hereafter be produced from all oil or gas wells, either or both, located on said Hopewell Plantation, and likewise from any future wells drilled to a depth not exceeding 3100 feet on said Hopewell Plantation, and he hereby agrees to execute proper assignments, transfers or deeds conveying said royalties or mineral interests just referred to, and as a consideration therefor, this transfer of royalties, etc., is being made subject to the payment to the said Caplis (therefrom) during his natural lifetime or amounts equalling one-half (V2) of such royalties, oil payments, etc., received by the said four daughters;
“And the said William A. Caplis, Sr., further declares that he does by these presents renounce in favor of said five daughters all rights and interests he may have to the right or usufruct in and to any and all other minerals, oil and gas or production therefrom lying in and under said Hopewell Plantation at a depth in excess of or at a greater than 3100 feet from the surface thereof, and agrees to execute proper releases and relinquish-ments, assignments or transfers to the said five daughters of such royalties, mineral interests, etc., and he likewise as a consideration therefor shall be paid by the said assignees, during his lifetime only, amounts equalling to one-half of such royalties, oil payments, etc., that may be received from the said assignees from said minerals, oil and gas.”

After the case was submitted the trial court reversed itself on the admissibility of the partition agreement and considered it in deciding the case. The trial court held that Roemer-2 was a sale of royalty above 3100 feet to the four sisters, that Roemer-3 was a sale of all minerals to all depths to the five sisters, subject to the four sisters’ right to royalty above 3100 feet. The court found there was only one servitude created by Roemer-3 and that since the sisters’ mineral interest extended to all depths, production from above the 3100 feet interrupted prescription as to all of their mineral interest. Consequently Roemer was recognized as the owner of only the one-half of one-fifth (Vio) interest he acquired from the Ryans, the remaining mineral interest being vested in the Caplis family members or their successors in title. Specifically, the judgment recognized the minerals as being owned as follows:

(A) Congregation of the Daughters of the Cross, legatee of Ruth Caplis, known as Sister Constance, Vs;
(B) Beatrice Caplis, known as Sister Miriam, Vs;
(C) Heirs and legatees of Marguerite Ca-plis Renaud, Vs;
(D) John E. Caplis, residuary legatee of Hallie Mae Caplis, Vs;
(E) James J. Ryan, Jr., V10;
(F) Charles E. Roemer, II, V10.

The judgment recognizes that the mineral ownership is subject to the right of the four sisters or their successors in title (the first four parties named above) to all royalty received from production above 3100 feet in the proportions of Vi each.

II.

On appeal plaintiff specifies the following errors:

(1) Receiving into evidence the unrecorded written agreement between the members of the Caplis family;
(2) Alternatively, considering the unrecorded agreement, in concluding that by its terms the parties intended to create and maintain a single mineral servitude, with a division of participation in the royalties between the members of the family derived above 3100 feet and that derived from below 3100 feet;
(3) Construing the intent of the parties to the instruments to the prejudice of plaintiff, an innocent third party purchaser, who had purchased relying upon the unambiguous terms of the recorded instruments;
(4) Separating the minerals from the fee in analyzing the V4 each inherited interest of the children and treating it as a servitude that had been maintained on the entire tract to all depths;
(5) Holding that the inherited interest, fee and minerals, was not transferred by the deed from the family to Mrs. Ryan; and
(6) Failing to recognize and hold that separate instruments conveying minerals create separate servitudes and that in order to avoid the running-of 10 years liberative prescription each must be exercised or used.

Plaintiff argues that two separate servi-tudes were created by the two mineral sale instruments. He further argues that since the deed from the other family members to Mrs. Ryan did not contain a mineral reservation by the four sisters who joined therein as vendors, the inherited one-fourteenth interest each of the four sisters was conveyed to Mrs. Ryan. Plaintiff further argues that the servitude created in 1949 in favor of the four sisters covering the minerals below 3100 feet terminated in 1959 because of non-use and that the servitude created in 1959 by the reservation contained in the sale from the Ryans to him terminated in 1969 because of non-use and that he, as landowner, now owns all the minerals below 3100 feet.

The four sisters group contends primarily that only one servitude was created in 1949. They argue first that “horizontal” servi-tudes, or servitudes as to separate horizontal strata, are not permitted under the Louisiana Mineral Code or jurisprudence. They argue secondly that there was no intent to create two servitudes, even if it can be legally done.

The Ryans support the position of the four sisters group. Alternatively, the Ryans contend, following plaintiff’s theory that the four sisters’ inherited interest in the minerals was not reserved and was conveyed to Mrs. Ryan, that Mrs. Ryan as landowner had fractional mineral rights both above and below 3100 feet, one-half of which was reserved in the deed to Roemer. Consequently, it is argued, production above 3100 feet has continued to interrupt prescription running against the Ryan interest and servitude, even if the servitude held by the four sisters below 3100 feet has been lost.

III.

The trial court erred in admitting the copy of the unrecorded partition agreement into evidence and in considering it in deciding this case.

Instruments relating to immovable property shall have effect against third persons only from the date of their deposit in the office of the parish recorder. LSA-CC Arts. 2246, 2254 and 2264. Such instruments which are not recorded shall be utterly null and void except between the parties thereto. LSA-CC Art. 2266. These provisions are clear and unambiguous and are enforced as written. McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909). No instrument relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder, and neither secret claims nor equities nor other matters outside the public record shall be binding on or affect such third parties. LSA-R.S. 9:2721. The conveyance records are the only thing to which one dealing with real estate needs to look and third persons purchasing upon the faith of the public records are not bound by any knowledge except such as is disclosed by such records. Neither fraud nor want of consideration nor secret equities between the parties who have placed on the public records a title valid upon its face can be urged against a bona fide purchaser for value who has acted on the faith of such recorded title. Cole v. Richmond, 156 La. 262, 100 So. 419 (1924); Brewster Development Company, Inc. v. Fielder, 271 So.2d 299 (La.App.2d Cir. 1972), writ denied, 272 So.2d 695 (La.1973); Sklar Producing Co. v. Rushing, 262 So.2d 115 (La.App.2d Cir. 1972), writ denied, 262 La. 310, 263 So.2d 47 (1972); Hasslocher v. Recknagel, 160 So.2d 421 (La.App.2d Cir. 1962), writ denied, 245 La. 964, 162 So.2d 14 (1964); Jackson v. Golson, 91 So.2d 394 (La.App.2d Cir. 1956), writ denied (1957).

It is also the law that all persons have constructive notice of the existence and contents of a recorded instrument affecting immovable property, and where such an instrument contains language that fairly puts a purchaser on inquiry as to the title and he does not avail himself of the means and facilities at hand to obtain knowledge of the true facts he is to be considered as having bought at his own risk and peril. Hasslocher v. Recknagel, supra.

Defendants contend that the reference to the partition agreement in the deed to Mrs. Ryan constituted notice to the plaintiff of the existence of such an agreement and that he should have made inquiry concerning the agreement and, having failed to do so, took title subject to the agreement. Defendants further argue that the unrecorded partition agreement was properly admitted into evidence because the recorded instruments are vague and ambiguous, and the agreement was admissible to show the true intent of the parties. Defendants further argues that plaintiff had actual knowledge of the true intent of the Caplis family.

The reference in the deed to Mrs. Ryan to the partition agreement appears only as a part of the statement of the consideration for the conveyance to her. There is no language or indication whatsoever that the conveyance was made subject to any terms contained in a separate partition agreement. The reference does not even state that the partition agreement referred to is in writing. In any event, the partition agreement, even though referred to in the recorded instrument, is not itself recorded and insofar as third parties are concerned, has no effect. Sklar Producing Co. v. Rushing, supra. There was nothing about the reference to the partition agreement to excite further inquiry on the part of a subsequent purchaser.

Neither is the unrecorded agreement admissible to show the true intent of the parties to the 1949 instruments. The recorded instruments, although not artistically drawn or confected, are not vague and ambiguous and are subject to reasonable construction on the face of the instruments. The cases cited by defendants allowing pa-rol evidence to be introduced to explain vague contracts in a contest between the parties to the contracts, and the cases cited dealing with notice that would affect a purchaser’s good faith for purposes of acquisitive prescription, are not applicable to the case at bar which involves the right of a third party purchaser to rely on the face of the records. Plaintiff’s actual knowledge of the parties’ intent was not established by the evidence and, regardless, would not affect his right to rely on the public records.

Ownership of the immovable property in dispute must be determined from the instruments recorded in the public records. The four instruments filed on the same day at the same time and referring to each other obviously were part and parcel of one partition transaction concerning the Hopewell Plantation. All four instruments must be read together in order to determine what the parties intended to do and did.

Considering the four instruments of record, it is certainly perfectly clear that ownership of the 640-acre tract was conveyed to Mrs. Ryan. It is a fundamental rule of law that a conveyance of land carries with it all of the incidents of ownership, including mineral rights, except such rights as may be expressly reserved. Dillon v. Morgan, 362 So.2d 1130 (La.App.2d Cir. 1978); Herring v. Price, 4 So.2d 17 (La. App.2d Cir. 1941), writ denied (1941); Powell v. Roy, 14 La.App. 663, 130 So. 629 (2d Cir. 1930). Thus, Mrs. Ryan acquired full ownership subject only to any reservations or exceptions contained in the instruments, which must be construed together. The deed provides that the sale was made subject to the mineral sales executed the same date. Although “subject to” is not ordinarily language of reservation, when all four instruments are read together, it is clear that the parties intended that the rights granted in the two mineral sales were to survive the conveyance to Mrs. Ryan.

The first mineral sale instrument vested in the four sisters all mineral rights affecting the minerals lying above 3100 feet. The instrument was signed by the father, two sons and by Mrs. Ryan, as grantors. Mrs. Ryan granted to the four sisters all of her right, title and interest in and to the minerals above 3100 feet which clearly shows the intent that she was not to acquire any minerals above 3100 feet by virtue of the transactions. The conclusion made by the trial court that this instrument conveyed only a royalty interest, as distinguished from a mineral interest, is not warranted. The instrument is entitled a “Mineral Deed” and contains language customarily found in a conveyance of minerals or a mineral servitude. The language is identical to that contained in the other instrument conveying the minerals below 3100 feet to the five sisters. There is no basis for making a distinction between the nature of the interest conveyed by the two instruments.

The second mineral sale was signed only by the father and two sons as grantors and conveyed to the five sisters all of their right, title and interest in the minerals below 3100 feet. The rights conveyed by the father and two sons amounted to their 9/u interest.

Thus, the only rights excepted from the conveyance to Mrs. Ryan were, (1) all mineral rights above 3100 feet conveyed to the four sisters by the first mineral sale, and (2) 9/w of the mineral rights below 3100 feet conveyed to the five sisters by the second mineral sale. All other rights of ownership, including the remaining fractional interest in the mineral rights below 3100 feet, were vested in Mrs. Ryan by virtue of her land ownership.

This may not be what the Caplis family had intended, but this is what they did on the records and this is what they are bound by-

TKe remaining issue is whether the instruments created one servitude or two separate servitudes. Defendants argue first that Louisiana law does not allow the creation of separate servitudes as to separate horizons or levels, or so-called “horizontal” servitudes.

Defendants cite Gulf Oil Corporation v. Clement, 239 La. 144, 118 So.2d 361 (I960); Gunby v. Commercial Solvents Corporation, 170 So.2d 259 (La.App.2d Cir. 1964) and Article 68 of the Louisiana Mineral Code (LSA-R.S. 31:1 et seq.) in support of their position. Gulf Oil held that a mineral interest granted in a single instrument covering the whole of a tract of land creates a single servitude even though oil production from a depth under a certain portion of the land was excepted from the grant. Gunby held essentially that a single reservation of mineral rights on contiguous tracts of land creates a single servitude even though á certain part of the land was already subject to an outstanding mineral servitude. Article 68 of the Mineral Code provides that a single mineral servitude is established on a continuous tract of 'land notwithstanding that certain horizons or levels are excluded or the right to share in production varies as to different portions of the tract or different levels or horizons.

Those cases and the Mineral Code article permit the establishment of a single servitude under the circumstances involved in those cases and enumerated in the code article, and would allow the establishment of a single servitude under the situation existing in the case before the court. The cases and code article do not, however, prohibit the establishment of separate servi-tudes where an intent to create separate servitudes is evidenced by the instrument or instruments creating the mineral rights. Nor does any other law prohibit the creation of separate servitudes as to separate horizons or levels. Article 72 of the Mineral Code provides that the parties to an act creating a mineral servitude may alter the applicable legal rules subject to the limitations provided in Articles 73 through 79. The articles referred to do not contain any prohibition against the creation of separate servitudes as to separate horizons or levels.

Implicit in Article 68 (which is essentially consistent with and a codification of existing jurisprudence; see GMB Gas Corp. v. Cox, 340 So.2d 638 (La.App.2d Cir. 1976) and comment following the article) is the concept that certain levels or horizons may be excepted from a mineral servitude, or that a mineral servitude may be created affecting less than all levels or horizons under a tract of land. It logically follows that separate servitudes may be created affecting separate levels or horizons.

Several cases decided prior to the adoption of the mineral code indicate that separate servitudes may be created as to separate depths. White v. Frank B. Treat & Sons, Inc., 230 La. 1017, 89 So.2d 883 (1956), held that a compulsory unit restricted to a particular zone or zones maintains the servitude as to all depths, since in that case the servitude was “not contractually restricted as to formations”. In Goldsmith v. McCoy, 190 La. 320, 182 So. 519 (1938), the Louisiana Supreme Court held a mineral servitude restricted to below 300 feet had prescribed. Iberville Land Company v. Texas Co., 4 La.App. 221, 128 So. 304 (1st Cir. 1930), interpreted language reserving the soil under 500 feet as creating a mineral servitude to that depth, since Louisiana does not allow sub-surface estates in land. See also “The Louisiana Mineral Servitude and Royalty Doctrines, a report to the Mineral Law Committee of the Louisiana State Law Institute,” by Eugene A. Nabors, 26 Tu.L.R. 23. There, on page 38, the author noted: “A restriction of a mineral servitude to specified minerals and provisions imposing depth limitations or making the servitude applicable to designated strata seem to be permissible forms of contracts. The decisions which apply liberative prescription to sub-surface estates by implication recognize the validity of depth limitations on mineral servitudes.”

A mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership. Article 21. We perceive no reason why a mineral servitude cannot be granted limited to exploration and production of minerals from a particular level or horizon. It follows that separate mineral servitudes may be granted to the same person, or to different persons, affecting separate levels or horizons. We hold specifically that Louisiana law permits the creation of separate servitudes as to separate depths, levels or horizons.

The question in this case narrows down to whether or not the instruments of record created one servitude or created two servitudes, one affecting the minerals above 3100 feet and the other affecting the minerals below 3100 feet. A very similar issue was presented in Whitehall Oil Company v. Heard, 197 So.2d 672 (La.App.3d Cir. 1967), writ denied, 250 La. 924, 199 So.2d 923 (1967), which dealt with mineral reservations contained in a partition in kind of a tract of land into contiguous tracts. The court in that case held that determination of whether the parties intended to create a single servitude or multiple servitudes depended upon construction of the particular conveyances. The court noted that it has been held that two separate deeds by the same landowner conveying mineral interests in two contiguous tracts of land create separate mineral servitudes although acquired by the same mineral owner, citing Cox v. Acme Land & Investment Co., 192 La. 688, 188 So. 742 (1939). Thus, whether the parties intended to create a single or multiple interests by a particular transaction must depend upon principles of contractual construction. The issue is to be decided in accordance with the intent of the parties as reflected by their agreement.

Another applicable principle of construction noted in the Whitehall Oil Company ease is that where an instrument can be reasonably interpreted in more than one way the proper interpretation is that which least restricts the ownership of the land conveyed, as in the case of mineral servi-tudes. In Whitehall the court relied on the legislative mandate that “ ‘Servitudes which tend to affect the free use of property, in case of doubt as to their extent or the manner of using them, are always interpreted in favor of the owner of the property to be affected.’ LSA-C.C. Art. 753.”

In our opinion, the recorded agreements in this case "reflect an intent on the part of the parties to create two separate mineral servitudes. First of all, there are two separate grants or reservations contained in two separate instruments. Following the Whitehall Oil Company and Cox-eases, this is strong evidence of an intent to create separate servitudes. Further, each grant covers entirely separate and distinct horizons or levels. Ownership of the mineral rights affecting the separate horizons or levels is different. The intent as evidenced by the instruments themselves was to create one servitude in favor of the four sisters affecting the minerals above 3100 feet and another separate servitude in favor of the five sisters affecting the minerals below 3100 feet.

It follows that production from the horizons affected by the first servitude would not interrupt prescription running against the second servitude. “Where there are distinct and separate servitudes, there must be development on each servitude to prevent the running of prescription against it, and the development of one of the servi-tudes, no matter how extensive, will not interrupt the running of prescription against the other servitude.” Cox v. Acme Land & Investment Co., supra.

Since there was a separate servitude created in 1949 affecting the minerals below 3100 feet and since there was no use of that servitude during the ten years after its creation, it prescribed and terminated in 1959. The entire mineral rights below 3100 feet were vested in James J. Ryan, the landowner at that time. When Ryan sold the land to Roemer later in 1959, he reserved V2 of the mineral rights owned by him, creating a new servitude. There was no use of that servitude for a period of ten years, and it, therefore, prescribed and terminated in 1969. The mineral interest reverted to the then landowner, plaintiff Roemer. Plaintiff is entitled to be recognized as the owner of all the minerals or mineral rights lying below 3100 feet from the surface of the earth under the land owned by him.

For the reasons assigned, the judgment of the district court is reversed and set aside. It is ordered, adjudged and decreed that plaintiff, Charles E. Roemer, II, as owner of the following described land, to-wit:

NV2 of SEVk of Section 23 and woodland' Lots 3, 4 and 5 and cleaned Lot 3 of the John L. Hodges Partition as recorded in Conveyance Volume 7, page 232 of the records of Bossier Parish; also cleaned Lot 4 of said partition, less 36 acres sold to L. K. Hodges by deed recorded in Volume 13, page 645 and less 26.79 acres sold to John S. Young by deed recorded in Volume 14, page 560; all being in Sections 23, 24, 25 and 26, Township 16 North, Range 12 West and being that property acquired by W. A. Caplis from the Merchants and Farmers Bank of Shreveport, Louisiana, by deeds recorded in Conveyance Volume 16, page 257 and Volume 19, page 72 of the records of Bossier Parish, Louisiana; less 2.1 acres sold to Bossier Parish School Board as per deed recorded in Volume 55, page 398 and less 9.87 acres sold to Bossier Parish School Board as per deed recorded in Volume 292, page 571, records of Bossier Parish, and less that certain tract sold to Hallie Mae Caplis described in deed dated January 29, 1949 and recorded March 1, 1949 in Conveyance Book 198, page 136 of the records of Bossier Parish, Louisiana, together with all batture, accretion and alluvian lands thereunto accruing and belonging, and all buildings and improvements thereon.

is the owner of, that is, has the exclusive right to explore and develop the said land for the production of and to reduce to possession and ownership, all of the minerals lying below 3100 feet from the surface of the said land described above.

Reversed and rendered.


text:
    Woodrow SHEPARD et ux., Plaintiffs-Appellants, v. LOUISIANA POWER & LIGHT CO., INC., et al., Defendants-Appellees.
    No. 13820.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1979.
    En Banc. Rehearing Denied May 3, 1979.

      McKeithen, Burns & Wilkins by Paul B. Wilkins, Columbia, La., for plaintiffs-appellants, Woodrow Shepard and Elba Shepard.
    Theus, Grisham, David & Leigh by J. Michael Hart, Monroe, for defendant-appel-lee, Louisiana Power & Light Co., Inc.
    Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendant-appellee, Niagara Fire Ins. Co.
    Hudson, Potts & Bernstein by William J. Knight, Monroe, for defendant-appellee, Allstate Ins. Co.
    Davenport, Files, Kelly & Marsh by Mack J. Marsh, Monroe, and Blanchard Walker, O’Quin & Roberts by William Timothy Allen, III, Shreveport, for defendants-appel-lees, Bd. of Trustees for State Colleges and Universities.
    Benjamin M. Peters, Asst. Atty. Gen., Monroe, for defendants-appellees, John David Crow and James T. Coats.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendant-appellee, William J. Roszelle.
    Snellings, Breard, Sartor, Shafto & Inab-nett by Kent Breard, Monroe, for defendant-appellee, State Farm Mut. Auto. Ins. Co.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

In this wrongful death action the appeal is from summary judgments rejecting the demands of the surviving parents against the employer and co-employees of their late son. We affirm.

The 18-year-old decedent was a student at Northeast Louisiana University, where he was also employed as one of the student managers of the football team. With other employees he was moving a metal observation tower from one practice field to another when the tower came in contact with an electrical power line causing his death by electrocution on August 30, 1977.

Plaintiffs alleged that their son was not in the scope and course of his employment when the fatal accident occurred. Affidavits in support of the motion for summary judgment clearly establish the contrary. Plaintiffs did not file counter affidavits. Plaintiffs do not contend they were financially dependent upon their late son. If the son had not suffered fatal injury, his demands against his employer and supervisory or co-employees would have been exclusively under the Workmen’s Compensation Law. L.R.S. 23:1032, as amended by Act 147 of 1976.

Plaintiffs contend that R.S. 23:1032 makes the workmen’s compensation remedy exclusive only to those persons who áre entitled to death benefits because they are dependent upon the deceased employee within the meaning of the law. They contend that since their son left no dependents who were eligible for benefits under the Workmen’s Compensation Law, the exclusivity of the law should not apply to bar their wrongful death action against the employer and co-employees of their son. They argue that this is especially so in this ease because their son was an employee of a public body and that their remedy should not be determined by R.S. 23:1032, but by R.S. 23:1034, which reads in part:

“The provisions of this chapter shall apply to every person in the service of the state . . . and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this chapter shall be exclusive, compulsory and obligatory . . ” . (Emphasis supplied by plaintiffs)

Because there was no payment of compensation here either to the decedent or to them, plaintiffs urge that they should be allowed to pursue their wrongful death action against the public employer and co-employees of their son.

Our eminent authority on the subject, Professor Malone, observes that the law is otherwise:

“Section 34 of the Act [LSA-R.S. 23:1032] provides that the compensation remedy is exclusive of all other rights of the employee’s personal representative, his dependents or his relations. Accordingly our courts have held the compensation provided for a dependent member of the family is all that the dependent can recover upon the death of the worker. The objection that the above provisions is a denial of due process of law as against non-consenting third persons has been effectively answered. The right to tort damages for wrongful death did not exist at common law or in Louisiana until it was conferred by statute. Since it is a creature of the legislature, it is subject to legislative repeal.
“Where the tort plaintiff is not entitled to compensation under the terms of the Act (because, for example, dependency cannot be established) yet the same individual would be a proper claimant under Article 2315 of the Civil Code (which makes no mention of dependency), the problem is more difficult. The Louisiana Supreme Court has held that the tort rights of a non-dependent relative are extinguished by the Compensation Act even though there was no dependent relative to claim compensation. This conclusion seems justified under the language of Section 34. Furthermore, the position of the court is in accord with the idea that the Act contemplates a reciprocal yielding by all parties affected in order to make possible the enlarged benefits provided for those whose need is greatest. A holding to the contrary would lead to the anomalous situation in which a non-dependent relative would receive a much larger award than one who was dependent and whose claim, therefore, was limited to compensation as provided in the Act.” (Footnotes omitted.)
Malone, Louisiana Workmen’s Compensation Law and Practice, § 363, pp. 468^469 (1951)

Prior interpretation of the sections of the law pertaining to private and public employees has not produced the distinction or the result argued for by plaintiffs’ astute counsel. See Miller v. Hoyle, 328 So.2d 757, 759 (La.App. 1st Cir. 1976), again quoting Malone:

“ ‘This difference in the treatment of public and private employers reveals the basic conviction of the draftsmen of the Act that sound policy demands broader coverage than could practically be imposed on private employers at the time the Act was adopted. Hence, the State and its subdivisions were subjected to the act to the fullest extent, while private employers were included only if their business were hazardous, and even then, only if they elected to accept coverage, Page 168, Louisiana Workman’s Compensation Law and Practice, Wex Malone, 1950.’ ”

Act 583 of 1975 repealed sections 1038 and 1039 relating to election of workmen’s compensation coverage by the employee in private employment. Coverage is now mandatory in certain private employment and in all public employment, whether or not the business or the duties of the employee are hazardous. See R.S. 23:1044. Section 1034 in its opening sentence expressly states that the provisions of “this chapter” (the Workmen’s Compensation Law) shall apply to those who are employed by the State.

Plaintiffs’ argument has been answered in earlier cases. See Atchison v. May, 201 La. 1003, 10 So.2d 785 (1942); Hawkins v. Employers Casualty Company, 177 So.2d 613 (La.App. 3d Cir. 1965) and Williams v. Bodgett Const. Co., 146 La. 841, 84 So. 115 (1920).

As to their claims against the employer or fellow employees, parents of an employee who suffers a fatal accident while in the course and scope of employment under the Workmen’s Compensation Law are relegated exclusively to the Workmen’s Compensation Law. They have no claim under the general law such as CC Art. 2315 in the case of wrongful death occurring other than in the course and scope of covered employment. See Hawkins, Atchison, Malone and R.S. 23:1032, supra.

Concepts of equity or socio-economic considerations do not affect the statutory scheme and the legislative intent relating to the rights and obligations imposed by the Workmen’s Compensation Law respectively on employees, their relations, and on employers. See Gentry v. Pugh, 362 So.2d 1154 (La.App. 2d Cir. 1978) and cases cited therein. Considering section 1034 with the other provisions of the law and cases interpreting the law, we find no legislative intent to distinguish between public employees and private employees insofar as exclusivity of remedy is concerned.

The decedent was a public employee who was in the course and scope of his employment when he was fatally injured. His parents are relations whose claims against the employer and fellow employees of their son are relegated to the Workmen’s Compensation Law, exclusive of remedies which might be available to them in other circumstances.

For excellent reasons assigned below and summarized here, the judgments appealed from are affirmed at appellants’ cost.

      . “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease


author: BOLIN, Judge.

text:
    John O. CLAY et al., Plaintiffs-Appellees, v. Robert D. CLAY, Defendant-Appellant.
    No. 13822.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1979.
    En Banc. Rehearing Denied May 3, 1979.
    Theus, Grisham, Davis & Leigh by Edwin K. Theus, Jr., Monroe, for defendant-appellant.
    Shotwell, Brown & Sperry by Burt W. Sperry and Thomas E. Richard, Monroe, for plaintiffs-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Defendant appeals from a judgment rendered in a quo warranto proceeding. We reverse for the reason that the Louisiana Long Arm Statute [La.R.S. 13:3201-07] cannot be used to obtain personal jurisdiction over a non-resident in a summary proceeding ordering defendant to show cause in less than ten days from the date of the order.

On July 31, 1978 plaintiffs filed a petition seeking a writ of quo warranto directing the defendant, and Ohio resident, to show by what authority he claimed certain corporate offices of Clay Oil & Gas Corporation, a Louisiana corporation. The writ was made returnable on August 9, 1978. The petition requested there be judgment prohibiting defendant from possessing all tangible effects, books and papers of the corporation and from usurping the powers and duties of the corporate offices, and that plaintiffs be recognized as the duly elected and qualified members of the board of directors and officers of the corporation.

A certified copy of the pleadings seeking the writ was sent by registered mail and received by defendant on August 3, 1978, at his residence in Ohio. On August 4, through Louisiana counsel, defendant filed exceptions objecting to the jurisdiction of the court. Defendant contended the long arm statute was not applicable in summary proceedings and that he received no citation as required by that statute.

The trial court overruled the exception to jurisdiction on August 9, and defendant filed a notice of intent to apply to this court for supervisory writs. A request for a stay of proceedings pending this court’s decision on the writ application was denied by the trial court. The quo warranto proceedings were heard on August 9th. On August 16 judgment was rendered in plaintiffs’ favor. On August 23 this court denied writs because applicant had an adequate remedy by appeal. By this appeal defendant questions the correctness of the ruling which overruled his exception to the jurisdiction and of the ruling on the merits.

Louisiana Code of Civil Procedure article 3901 provides:

Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.

Summary proceedings may be used for the trial of quo warranto proceedings. La. C.Civ.P. art. 2592(6).

In order to determine if it is legally permissible to obtain jurisdiction under the long arm statute under this particular summary proceeding, it is helpful to examine the following Code of Civil Procedure articles:

Art. 2591.
Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings.
Art. 2593.
A summary proceeding may be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise provided by law.
Exceptions to a contradictory motion, rule to show cause, opposition, or petition in a summary proceeding shall be filed prior to the time assigned for, and shall be disposed of on, the trial. An answer is not required, except as otherwise provided by law.
No responsive pleadings to an exception are permitted.
Art. 2594.
Citation and service thereof are not necessary in a summary proceeding. A copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served upon the defendant.
Art. 2595.
Upon reasonable notice a summary proceeding may be tried in open court or in chambers, in term or in vacation; and shall be tried by preference over ordinary proceedings, and without a jury, except as otherwise provided by law.
The court shall render its decision as soon as practicable after the conclusion of the trial of a summary proceeding and, whenever practicable, without taking the matter under advisement.

A comparison of these provisions with the structure of the long arm statute leads to the conclusion that the latter was not designed for use in a summary proceeding where the non-resident is ordered to appear in less than ten days. The statute contemplates that the non-resident be given a sufficient length of time in which to appear. For example, R.S. 13:3205 provides for a minimum period of thirty days before a default judgment can be taken against the non-resident defendant:

No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who either:
(a) mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mails, to which shall be attached the return receipt of the defendant; or
(b) actually delivered the process to the defendant, showing the date, place, and manner of delivery.

The longer period allowed for answering is viewed as a protective device for the non-resident which lends strong support to the constitutionality of the long arm statute. See Comments of the Louisiana State Law Institute under La.R.S. 13:3205; cf. Comment, Jurisdiction and Venue, 22 Loy.L.Rev. 3, 29 (1976); Comment, Jurisdiction in Personam — The Due Process Framework and the Louisiana Experience, 26 La. L.Rev. 351, 371 (1966). To comport with due process a non-resident must be afforded a sufficient period of time in which to make an appearance. Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 4 L.Ed. 520 (1900).

The long arm statute, as presently written, was not intended to be used to assert jurisdiction over non-residents in summary proceedings where the defendant is ordered' to appear in less than ten days. Perhaps the use of the long arm statute in all summary proceedings is impermissible, but we only hold the statute may not be utilized to obtain jurisdiction over a non-resident in summary proceedings unless the non-resident is afforded the same delays he would be entitled to in ordinary proceedings.

Having so ruled, it is unnecessary to address the other issues raised by this appeal. The judgment overruling the exception to the jurisdiction is reversed; the exception is sustained and plaintiffs’ summary proceedings are dismissed at their cost.