author: EDWARDS, Judge.

text:
    Mrs. Gail Verberne McCLENDON v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS.
    No. 11788.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 2, 1978.

      John W. deGravelles, of Dué, Dodson & deGravelles, Baton Rouge, for plaintiff.
    Richard Rudolph, Baton Rouge, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is a suit filed by Gail Verberne McClendon for damages resulting from the death of her parents, Dolly Lawrence Ver-berne and Ellsworth Charles Verberne. Named as defendant is the State of Louisiana, through the Department of Corrections. Plaintiff appeals the dismissal of her suit on a peremptory exception of prescription and/or peremption.

On February 22, 1974, plaintiff’s parents were murdered at their home in Washington Parish, Louisiana by a then unknown assailant. The assailant also allegedly stole approximately $90,000.00 in cash and personal property from a safe located at the residence. A full investigation of the incident by the public authorities failed to identify the perpetrator of the crime, until Frank M. Scianna, an inmate of the Louisiana State Penitentiary, who had been released from Angola on a weekend pass or furlough at the time the murders occurred, was indicted by a Washington Parish grand jury on March 10, 1976.

On June 29, 1976 (more than a year following the deaths, but' less than a year after the discovery of the identity of the alleged murderer), plaintiff instituted this suit against the Department of Corrections. Plaintiff contends that the Department should be held strictly liable or, in the alternative, negligent in granting a furlough to Scianna, a man with a record of two previous homicides.

The Department interposed a peremptory exception of prescription and/or peremption, contending that plaintiff’s suit, filed more than a year after the death of her parents, was untimely.

The trial court, in sustaining the exception, found that plaintiff’s sole cause of action is an action for wrongful death under LSA-C.C. art. 2315; that the time limitation applicable to the wrongful death action is set forth in LSA-C.C. art. 2315; that this time limit is peremption rather than prescription; and that plaintiff’s action is extinguished since it was not enforced within one year after the death of her parents.

Plaintiff assigns three specifications of error:

I. The trial court erred in finding that plaintiff did not possess and properly allege two distinct causes of action based on (1) wrongful death and (2) the heritable right of property conversion.

II. The trial court erred in finding that the action for property conversion was barred by the one year limitation of LSA-C.C. art. 2315.

III. The trial court erred in finding that the action for wrongful death was controlled and barred by the one year limitation of LSA-C.C. art. 2315.

I.

Plaintiff contends that the trial court erred in finding that her sole cause of action was an action for wrongful death.

Our examination of plaintiff’s petition reveals that this contention is well founded. Paragraph 8 of the petition provides, in part:

“Plaintiff, as the sole heir and next of kin of her lawful parents, itemizes damages which she is entitled to recover from defendants as follows:
5. Loss of property and estate resulting from the theft of at least $90,000.00 from the safe located at her parents’ residence.”

Clearly, plaintiff was including, in the instant suit, her claim for the personal property allegedly stolen by her parents’ murderer. This “conversion” action is distinct from plaintiff’s cause of action based on her parents’ wrongful death, Lincecum v. Smith, 287 So.2d 625 (La.App. 3rd Cir. 1973), writ refused 290 So.2d 904 (La.1974), and was a tort committed against the plaintiff herself, if the property was appropriated by the murderer after the death of plaintiff’s parents. LSA-C.C. art. 2315(1). See LSA-C.C. arts. 940 and 941; Dion v. Knap, 230 So.2d 842 (La.App. 1st Cir. 1970). Alternatively, if the property was converted prior to the parents’ death, plaintiff’s recovery would be predicated upon LSA-C.C. art. 2315(2) which provides:

“The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.”

Plaintiff, therefore, has alleged two distinct causes of action, one for wrongful death and the other for conversion of property.

II.

Next, plaintiff contends that the applicable time limitation on assertion of her right to recover damages to property is contained in LSA-C.C. art. 3536. Plaintiff further contends that her action has not prescribed since, she argues, the prescriptive period was suspended under the doctrine of contra non valentem agere non currit prescriptio.

There is no time limitation expressed in LSA-C.C. art. 2315 regarding either the personal right to sue for quasi offenses or the heritable right to recover damage to property. Accordingly, the general prescriptive period for offenses and quasi offenses contained in LSA-C.C. art. 3536 is applicable. This article with its companion, LSA-C.C. art. 3537, provides a one year prescriptive period running from the time the damage is sustained. There is no provision which extends the one year period when the claim for property damages is inherited under LSA-C.C. art. 2315. Therefore, plaintiffs claim, whether it be personal or inherited, began to prescribe on the date the property was stolen (February 22, 1974) and expired one year later, unless some interruption or suspension of that period occurred.

Plaintiff argues that the prescriptive period was suspended, relying on the doctrine of contra non valentem.

The most often cited case recognizing the existence of this doctrine in Louisiana is Hyman v. Hibernia Bank & Trust Co., 139 La. 411, 71 So. 598 (1916). In discussing Hyman, Judge Sartain of this Court stated in Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916, 918 (La.App. 1st Cir. 1970):

“The case of Hyman v. Hibernia Bank & Trust Company, 139 La. 411, 71 So. 598 (La.Sup.Ct., 1916) contains an exhaustive review of the Louisiana cases where the doctrine of contra non valentem was considered. The doctrine itself is of Roman origin and is an exception to the general rules of prescription. Simply stated it means that prescription does not run against a person unable to bring an action or a person who for some reason is unable to act. The equitable nature of the circumstances in each individual case has determined its applicability. Louisiana has on numerous occasions recognized and applied this maxim but has done so in a limited and restricted sense. See also 32 Tul.L.Rev. 783, 784.
“The leading authority on this subject is the Hyman case. Undoubtedly the Supreme Court felt it necessary on this occasion to deal exhaustively with the subject because there was language in Cox v. Von Ahlefeldt, 105 La. 543, 30 So. 175 (La.Sup.Ct., 1900) to the effect that the doctrine itself was not recognized in this state.
“The Hyman decision carefully analyzes Louisiana jurisprudence on the subject and in each and every case therein cited as applicable two primary factors have emerged. One is that prescription does not begin to run until the cause of action had manifested itself with sufficient certainty to be susceptible of proof in a court of law. Jones v. Texas & P. Ry. Co., 125 La. 542, 51 So. 582 (La.Sup.Ct., 1910) and Woodward-Wight v. Engel Land & Lumber Co., 123 La. 1093, 49 So. 719 (La.Sup.Ct., 1909). These two cases followed the Cox decision. On this same point is the later case of Perrin v. Rodriguez, La.App., 153 So. 555 (Orl.App., 1934) involving a medical malpractice suit which held that it was not until the plaintiff had changed physicians that he learned that his trouble was due to his former physician’s (Rodriguez) negligence.
“The other factor which has justified the application of the doctrine of contra non valentem involved situations' where the defendant had knowingly concealed information from the plaintiff or had through his own conduct misled or lulled the plaintiff into inaction. Martin v. Jennings, 10 La.Ann. 553 (1855); and Boyle v. Mann, 4 La.Ann. 170 (1849). * * * ” (footnote omitted)

Cases subsequent to Hyman stress the need for some concealment or misleading action as a requirement for plaintiff to avail himself of the benefits of the doctrine. See e. g. McGuire v. Monroe Scrap Material Co., 189 La. 573, 180 So. 413 (1938); Favors v. Southern Industries, Inc., 344 So.2d 693 (La.App. 1st Cir. 1977); Dagenhart, supra; Perrin v. Rodriguez, 153 So. 555 (La.App. Orl.Cir. 1934).

In Aegis Insurance Co. v. Delta Fire & Casualty Co., 99 So.2d 767, 787 (La.App. 1st Cir. 1957) it was stated:

“In summary, the cause of action herein was created by the wrongful act of the tortfeasor. Prescription, which would ordinarily have run against the owner’s rights to recover damages commencing with the date of the wrongful act, does not do so when as here it has been suspended by the active fraud and concealment of the whereabouts of the property, whether by the tortfeasor or another. The basic reason that prescription was initially suspended, even before the negligent act creating the present cause of action in tort, was because the owner could not enforce his rights concerning his property because its whereabouts had been actively concealed from him. This basic reason for the application of the ‘contra non’ doctrine is not affected by the circumstance that the stolen property is damaged or destroyed by the negligent act of yet a third person, for the whereabouts of the property still remain unknown to the owner through the fraud and active concealment of another, the original thief. Prescription does not commence running against his action to recover for damage to his concealed property until he actually learns of its location or until he should have done so by the exercise of reasonable diligence.” (emphasis supplied)

In the instant case, Scianna, the alleged murderer and thief, actively sought to conceal his connection with the crime. In fact, Scianna was rather successful, with more than two years elapsing before suspicion fell upon him and he was indicted for the crime. Under these circumstances, the application of contra non valentem to suspend the one year prescriptive period is justified.

Regarding the State, it is true that the State did not conceal the action or mislead the plaintiff. Rather, the State, through its law enforcement agencies, actively sought the identity of the murderer/tortfeasor. Nonetheless, until the identity of the murderer was made known and his status as a prison inmate established, plaintiff had no possible way of knowing that a cause of action existed in her favor against the State. Prior to that time, plaintiff’s cause of action against the State had not manifested itself with sufficient certainty to be susceptible of proof in a court of law. Accordingly, the concealment and fraud of the murderer allows plaintiff the benefit of contra non valentem even in her claim against the State. Aegis, supra. See also Hyman, supra.

The record indicates that plaintiff exercised due diligence to discover the identity of her parents’ murderer by cooperating with the law enforcement authorities. Plaintiff acted promptly to assert her cause of action once she learned the identity of the alleged murderer.

We find, therefore, that plaintiffs’ claim for damage to property had not prescribed.

III.

Finally, plaintiff contends that the trial court erred in finding: that the time limitation applicable to the wrongful death action is set forth in LSA-C.C. art. 2315, rather than LSA-C.C. art. 3536; that this time limit is peremption rather than prescription; and that plaintiff’s action had per-empted. Plaintiff again urges the doctrine of contra non valentem.

The pertinent provision of LSA-C.C. art. 2315 provides:

“The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. * * *”

This provision contemplates two separate and distinct actions: first, the survival of an action for damages that an injured person would have had, had he lived, in favor of certain designated beneficiaries; second, a wrongful death action, in favor of the same beneficiaries, for the damages that they sustained as a result of the death. Succession of Roux v. Guidry, 182 So.2d 109 (La.App. 4th Cir. 1966), writ refused 248 La. 1106, 184 So.2d 27 (1966).

The delay within which the “survival” action must be exercised is provided in LSA-C.C. art. 2316, i. e. “the right . shall survive for a period of one year from the death of the deceased.” Since the article which creates the survival action also provides the time period- within which the right is to be executed, the time period is one of peremption. Guillory v. Avoyelles Railway Co., 104 La. 11, 28 So. 899 (1900). After the 'peremption period has expired no cause of action or substantive right exists. Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971). Indeed, the survival action has been held subject to peremption rather than prescription. Gabriel v. United Theatres, Inc., 221 La. 219, 59 So.2d 127 (1952); Romero v. Sims, 68 So.2d 154 (La.App. 1st Cir. 1953); Miller v. American Mutual Liability Insurance Co., 42 So.2d 328 (La.App. 1st Cir. 1949).

However, the instant case is a wrongful death action under LSA-C.C. art. 2315. The appropriate time limitation for enforcement of a wrongful death action and the nature of this time limit (i. e. prescription or peremption) are not clearly settled. There are at least four discernible approaches employed by the courts. See Johnson, Death on the Callais Coach, 37 La.Law Rev. 1 (1976). Some cases have held that the wrongful death action is governed by the time limit contained in LSA-C.C. art. 2315 and that this time is peremption not subject to interruption or suspension. Goodwin v. Bodcaw Lumber Co., 109 La. 1050, 34 So. 74 (1902); Succession of Roux v. Guidry, supra; Matthews v. Kansas City Southern Railway Co., 10 La.App. 382, 120 So. 907 (La.App. 2nd Cir. 1929). Other cases have held that the time limit is per-emption, but subject to interruption. Smith v. Monroe Grocery Co., 171 So. 167 (La.App. 2nd Cir. 1936). See Thompson v. Gallien, 127 F.2d 664 (5th Cir. 1942). Still other cases call the time limit a “prescriptive or peremptive period” and treat the two concepts as functionally indistinguishable. Wick v. Sellers, 309 So.2d 909 (La.App. 3rd Cir. 1975); Marshall v. Southern Farm Bureau Casualty Co., 204 So.2d 665 (La.App. 3rd Cir. 1967), writ refused 251 La. 860, 206 So.2d 711 (1967). Finally, there is a distinct line of cases which hold that the applicable time limitation for the wrongful death action is the prescriptive period of LSA-C.C. art. 3536. Trahan v. Liberty Mutual Ins. Co., 314 So.2d 350 (La.1975); Stephenson v. New Orleans Ry. & Light Co., 165 La. 132, 115 So. 412 (1927); Favors v. Southern Industries Inc., supra; Sansone v. Louisiana Power & Light Co., 164 So.2d 151 (La.App. 1st Cir. 1964); Flowers v. Pugh, 51 So.2d 136 (La.App. 1st Cir. 1951). Because of this wide range of decisions, it is not possible to discern a trend of jurisprudence constante on the issue as defendant contends exists. This court must therefore search for the most logical and well reasoned view of the article.

The wrongful death portion of LSA-C.C. art. 2315 does not expressly specify a one year limitation. This one year limitation, which undoubtedly is peremption, is contained in the portion of the article dealing with the survival action. See La. Acts 1855, No. 223. In Matthews v. Kansas City Southern Railway Co., supra, the court seized on the word “also” in the sentence on wrongful death, and found that this meant that the wrongful death action was based on the same conditions as the survival action and was subject to the same one year limitation. The court, however, failed to see that the two actions are separate and distinct (either one may arise without the other), and that it might be quite reasonable to provide different time limitations on enforcement of the actions. The survival action provision, allowing the action to survive for one year following the injured party’s death, has the effect of extending the normal one year period of LSA-C.C. art. 3536 governing the injured party’s personal action because that victim died before his right to damages was fully enforced. The wrongful death action, however, is not of the same nature; the death itself is the injury and the named beneficiaries are themselves the victims.

We believe the better view of the word “also” in the wrongful death provision is that it means “in addition to” the right previously granted, rather than “together with” as interpreted by the court in Matthews. Under this view, the fact that the wrongful death provision does not provide its own time limitation leads to the conclusion that the action must be governed by the general prescriptive period for offenses and quasi offenses contained in LSA-C.C. art. 3536, i. e. a one year period subject to interruption and suspension from the time the damage is sustained. This period began on the date of the murders, February 22, 1974, and expired one year later, unless some interruption or suspension of that period occurred.

As in the above discussion concerning plaintiff’s claim for damage to property, prescription on the wrongful death claim was also suspended based on the doctrine of contra non valentem.

Accordingly, the trial court erred in sustaining the exception of prescription and/or peremption, and in dismissing plaintiff’s suit.

For the above reasons, the judgment appealed is reversed and this suit is remanded to the trial court for trial on the merits. Costs to await a final disposition of the case.

REVERSED AND REMANDED.

      . No prescription runs against a person unable to bring an action.

      . The only prescriptive period in LSA-C.C. art. 2315 is contained in the article’s third paragraph which does not apply to damage to property.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY and Continental Can Company, Defendants-Appellees.
    No. 13496.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.

      William W. Irwin, Jr., Johnie E. Branch, Jr., Bernard L. Malone, Jr., by Bernard L. Malone, Jr., Baton Rouge, for plaintiff-appellant.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendants-appel-lees.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

In this expropriation suit the Department of Highways appeals from judgment awarding defendants, Chicago, Rock Island and Pacific Railroad Company and Continental Can Company, Inc., $49,210 as the fair market value of property taken and $9,300 as the three-year rental value of a construction servitude required by the Department’s work in widening U.S. Highway 167 between the Town of Jonesboro and the Village of Hodge. Plaintiff alleges as error the trial judge’s valuation of the property and also argues that expert witness fees assessed by the court are excessive.

The property expropriated is a strip of land 25 feet wide and 2,443 feet long, containing 44,726.12 square feet along the railroad right-of-way fronting on U.S. Highway 167. The construction servitude was 31,319.64 square feet, used for three years. The railroad right-of-way is 100 feet wide and has a single mainline track running along its center line. All experts who appraised the property said its highest and best use was commercial.

L. J. Roy, testifying for the Department and using comparable sales adjusted for the presence of the railroad tracks, valued the property taken at $.60 per square foot or $26,842 and valued yearly rental of the construction servitude at 10 percent of the value computed over a three-year period or $5,637, for a total of $32,479. Plaintiff’s other expert, Dan Carlock, using comparable sales also adjusted for the presence of the railroad tracks, determined the fair market value to be $.75 per square foot. His total of $39,189 was broken down to $33,552 for the part taken, and 8 percent annual rental computed over three years, or $5,637, as the value of the construction servitude.

Defendants’ experts, O. L. Jordan and H. L. Bass, using sales of commercial property along Highway 167 as comparables, estimated $1.75 and $2 per square foot, respectively, as the value of the subject property. Jordan and Bass estimated the rental value of the construction servitude at 10 percent of the value for a total of $16,443 and $18,800, respectively, over three years. Defendants’ appraisers stated that their estimates were based on the highest and best use of the property as commercial property available for development at the time of taking. The trial judge, finding that the value of the land was $2 per square foot, determined that the presence of the railroad tracks on the tract could not be ignored and adjusted the value downward to $1.10 per square foot.

Plaintiffs contend the trial judge should have totally disregarded the opinions of defendants’ experts since they were premised on the value of the land with no recognition of existing improvements and should have accepted the highest estimated value of plaintiff’s experts who did consider the existence of the railroad tracks.

The Department’s appraisers took into consideration the existence of the mainline railroad track and the unlikeliness that a strip of at least 25 feet on each side of the track would be available for any other use in the foreseeable future. Treating the remaining 25 feet on the west side of the track, which was the property taken, as surplus property available for sale and commercial development, the appraisers valued it separately from the whole as commercial property, making a substantial adjustment downward in value compared to commercial property in the area because of the narrow 25 foot depth.

The defendants’ appraisers, on the other hand, valued the property as commercial without adjustment for or giving consideration to the special character of the property and its unavailability, as a whole, for commercial use.

Establishing just compensation for a taking of special use property is difficult. There is no single, exclusive approach which must be applied by appraisers or by the court. Various methods and combinations of methods may be used. Although fair market value is the usual measure of just compensation, some other method or measure may be used in arriving at just compensation in the case of unique or specialty property such as schools, parks, cemeteries, railroad rights-of-way, and the like. See and compare Town of Eunice v. Louisiana Western Ry. Co., 135 La. 882, 66 So. 257 (1914); State, Dept. of Highways v. New Orleans Term. Co., 319 So.2d 568 (La. App. 4th Cir. 1975); Orleans Parish School v. Montegut, Inc., 255 So.2d 613 (La. App. 4th Cir. 1971); Arkansas Louisiana Gas Company v. Louisiana and Arkansas Railway Company, 234 So.2d 231 (La. App. 2d Cir. 1970); Arkansas Louisiana Gas Company v. Louisiana & Arkansas Railway Company, 165 So.2d 317 (La. App. 2d Cir. 1964).

The trial court, recognizing that neither approach used in this case was entirely fair in arriving at just compensation but giving weight to the factors considered in each approach, arrived at a value in between those reached by the respective appraisers. On the basis of the evidence and methods of evaluation presented to the court, its conclusion was reasonable and constitutes just compensation for the property taken.

The fees of the expert witnesses, $1,125 and $1,000, supported by itemized statements in the record, are not unreasonable.

The judgment is affirmed at appellants’ costs.


author: PRICE, Judge.

text:
    AMERICAN BANK AND TRUST COMPANY IN MONROE, Plaintiff-Appellee, v. F & W CONSTRUCTION, INC., Defendant-Appellant.
    No. 13498.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    En Banc. Rehearing Denied May 10, 1978.

    Writ Refused June 30, 1978.

      Charles H. Ryan, Monroe, for defendants-appellants Curtis Matlock, Wallace Plumbing Co., Inc., Key Millwork and Supply, Inc., Century Ready-Mix Co., Inc. and Architectural Clay Products, Inc.
    Boles, Mounger & Hallack by Joe H. Dixon, Jr., Hayes, Harkey, Smith & Cascio by Joseph D. Cascio, Jr., Monroe, for plaintiff-appellee American Bank & Trust Co. in Monroe.
    Before BOLIN, PRICE and MARVIN, JJ.

       JONES, J., took no part in rehearing.

   PRICE, Judge.

This is an appeal by lienholders who contend the trial court improperly ranked their liens inferior to the collateral mortgage executed by the owner to secure advances from appellee, American Bank & Trust Co. in Monroe.

The trial court ruled that since the collateral mortgage foreclosed upon by American Bank was recorded prior to the date the first material was delivered to the job site, it is superior to the liens of appellants even though the note identified with the mortgage was not pledged until a later date.

There are two issues presented: (1) Is the appeal moot, and (2) If not, is a collateral mortgage superior to the liens of unpaid materialmen under the Private Works Act (La.R.S. 9:4801, et seq.) where materials are delivered to the mortgaged property after the collateral mortgage is recorded, but before the mortgage note is pledged to the lender. We overrule the motion to dismiss the appeal and reverse the judgment in part as to the ranking of liens.

This litigation arises from the following chronology of events: On July 7, 1976, F & W Construction, Inc., in anticipation of construction of a residence on Lot 16, Unit 3 of Pecan Bayou subdivision, Ouachita Parish, executed a collateral type mortgage to secure a note payable to any future holder. The mortgage was filed on July 15, 1976. On July 21,1976, delivery of the first materials was made to the mortgaged lot. The following day, July 22, F & W Construction pledged the collateral mortgage note to secure construction advances under a written pledge agreement to American Bank. That same day the first advance was made and a hand note was given to the bank for the amount borrowed. F & W did not pay for the materials supplied on this job by appellants, and the subject liens were timely filed against the property. American Bank as pledgee of the collateral mortgage note petitioned for executory process to have the property sold to satisfy advances made by it to F & W during construction. Prior to the sheriff’s sale, an intervention was filed in the executory proceeding to have the court determine the rank of the several liens in conjunction with the mortgage being foreclosed upon.

MOTION TO DISMISS

American Bank contends the appeal from the judgment ranking the mortgage and liens is moot because the property was seized and sold pursuant to executory process at a sheriff’s sale, and thereafter, appellants’ liens were cancelled in an ex parte mandamus proceeding. The bank alleges that since no suspensive appeal was taken, nor any attempt made to enjoin the sheriff’s sale, the sale and subsequent cancellation of the liens render the issue of ranking the liens moot. Appellants, whose rule to determine ranking had not been decided, received no notice of the mandamus proceeding and were not parties thereto; therefore, their lien rights were not affected by the cancellation. State v. City of New Orleans, 188 So.2d 88 (La.App. 4th Cir. 1966), State v. Code, 215 La. 485, 41 So.2d 62 (1949), Savage v. Holmes, 15 La.Ann. 334 (La.1860). Although appellants can no longer attack the validity of the seizure and sale, Simmesport State Bank v. Couvillon, 164 So.2d 698 (La.App. 3rd Cir. 1964), State v. Mutual Inv. Co., 214 La. 356, 37 So.2d 817 (1948), their right to enforce the liens against the property by ordinary process continues to exist under C.C.P. Art. 2378 if judgment is ultimately rendered ranking their liens superior to the bank’s mortgage; therefore, the issue of ranking appellants’ liens is not moot.

ISSUE OF RANKING

Since no written contract was executed or recorded in connection with the subject construction, the appropriate section of the Private Works Act to determine the ranking of the liens and mortgage in question is La.R.S. 9:4812. See Courshon v. Til, 344 So.2d 719 (La.App. 2d Cir. 1977). This section of the statute provides in pertinent part:

The said privilege shall be superior to all other claims against the land and improvements except ... a bona fide mortgage ... if the ... mortgage exists and has been duly recorded before the work or labor is begun or any material is furnished.

Appellants contend the mortgage in question does not prime their liens under the above quoted language of the statute as it was not a bona fide and existing mortgage until the collateral mortgage note was pledged to the lender.

American Bank to the contrary contends this is not a correct interpretation of this section of the statute relying on Courshon v. Mauroner-Craddock, Inc., 219 So.2d 257 (La.App. 1st Cir. 1968). There is a crucial distinction in Courshon in that the mortgages in question were recorded and the notes delivered to the lender prior to delivery of any materials. There was no issue made in that decision as to whether the mortgage “existed” on the critical date for want of delivery of the note in pledge.

In the same Courshon decision the court defines a bona fide mortgage under § 4812 as one which “in legal terminology means valid in law.” Courshon, supra, 266.

Although we are not aware of any appellate decisions which have resolved conflicting ranking of a materialman’s lien and collateral mortgage under the Private Works Act, there are several cases concerning the ranking of other mortgages and liens with collateral mortgages. These decisions support appellants’ argument that the rank of a collateral mortgage will be determined from the date the note is pledged and not from the date of recordation of the mortgage. See Installment Plan Inc. v. Justice, 209 So.2d 68 (La.App. 4th Cir. 1968); Wallace v. Fidelity National Bank, 219 So.2d 342 (La.App. 1st Cir. 1969); Rex Finance Co. v. Cary, 145 So.2d 672 (La.App. 4th Cir. 1962).

The nature of a collateral mortgage includes elements of both mortgage and pledge. 41 TLR 785, 799. As to the pledge of a promissory note under the provisions of La.C.C. Art. 3158, delivery is essential to affect third persons. Nathan and Marshall in their comprehensive article, “The Collateral Mortgage,” 33 LLR 497, explain the distinction between the ranking of ordinary and collateral mortgages:

. in the situation of the ordinary conventional mortgage, where the debt is either in existence or comes into existence at the same time as the execution of the mortgage, the mortgage is effective as to third persons from the time that the act of mortgage is filed for recordation, provided that it is thereafter promptly and actually recorded in the mortgage books. Since the general rule for ranking purposes is “first in time, first in rank,” it is fairly easy to determine ranking priorities among ordinary conventional mortgages. The collateral mortgage departs from this ranking scheme and, . . . cannot be determined by examination of the public records. Except for the fact that filing and recordation are essential for the mortgage to be effective as to third persons at all, neither filing nor recordation time determines rank; it is the date of issuance (or reissuance) of the “ne varie-tur” note identified with the mortgage that determines the ranking of the collateral mortgage. [Page 512]
The pledge of the “ne varietur” note to secure the hand note is commonly referred to as “issuance.” The term “issuance” is important for, unlike the ordinary conventional mortgage that is effective upon filing in the mortgage office (if it is actually and promptly recorded thereafter) the act of collateral mortgage may be recorded and remain dormant for months, if not years, and only obtains ranking against third parties from the time of “issuance,” i. e., when the “ne varietur” note is pledged to secure the debt. . . [Page 504]

We therefore find that the term “bona fide” mortgage, as used in the Private Works Act in so far as the ranking of collateral mortgages is concerned, has reference to the date the collateral mortgage note is pledged to the lender.

For the foregoing reasons, the judgment is reversed in so far as it recognizes that the mortgage foreclosed upon by ap-pellee, American Bank & Trust Company in Monroe, is superior to the materialmen’s liens of appellants, and it is ordered and adjudged that there be judgment in favor of appellants and against appellee declaring that the mortgage executed by F & W Construction, Inc. on July 7, 1976, to any future holder, covering Lot 16, Unit 3 of Pecan Bayou Subdivision as per plat in Book 13, Page 144 of the records of Ouachi-ta Parish, is inferior to the following liens recorded by appellants:

Wallace Plumbing Co., Inc., lien for $2,124.00, recorded January 4, 1977, in Mortgage Book 860 at page 378.
Architectural Clay Products Inc., lien for $1,091.30, recorded January 7, 1977, in Mortgage Book 860 at page 700.
Key Millwork & Supply, lien for $1,296.26, recorded January 11, 1977, in Mortgage Book 860 at page 831.
Century Ready Mix Corp., lien for $732.51, recorded January 11, 1977, in Mortgage Book 860 at page 839.
Curtis Matlock, lien for $1,443.00, recorded January 12, 1977, in Mortgage Book 860 at page 893.

The judgment is otherwise affirmed. All costs of these proceedings are taxed against appellee.


author: JONES, Judge.

text:
    Joseph G. KEY, Plaintiff-Appellee, v. LOUISIANA, DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 13499.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    En Banc. Rehearing Denied May 10, 1978.
    Writ Refused June 30, 1978.

      Johnson & Johnson by Don H. Johnson, Monroe, for State of La., Dept, of Highways, defendant-appellant.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for Joseph G. Key, plaintiff-appellee.
    Brown, Wicker & Lee by 0. P. Barnes, III, Monroe, for third party defendant-ap-pellee, Louisiana Paving Co., Inc.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Defendant in this inverse condemnation proceeding appeals a judgment awarding plaintiff damages as a result of flooding and silting of his residential rent property and denying its third party demand against the contractor. The award was based upon a finding that plaintiff’s damages were caused by defendant’s construction activities in widening U. S. Highway # 167 in Jonesboro, Louisiana.

We modify the judgment of the trial court by reducing the damages awarded and eliminating the $950 expert witness fee, and as modified, affirm.

In the spring of 1974 plaintiff acquired by donation his father’s nice frame home located on Cooper Street in Jonesboro. The lot fronted 68 feet on Cooper Street and was located approximately 200 feet north and east of # 167 with an elevation 17 feet lower than # 167. The lot was subject to a servitude of natural drain from property south and east of it. Cooper Street runs north-south and intersects # 167. Although # 167 generally runs north-south, near its intersection with Cooper Street, it curves sharply, to the east.

Because of the lower elevation of plaintiff’s lot, his father, following construction of the home in 1950, constructed an eight inch retainer wall along its south line and along its east line adjacent to Cooper Street. These walls served as a barrier to water draining from the south and east and aided in channeling it into underground drainage lines constructed to drain the property. There was a fifteen inch underground drainage line along the front of the property which carried water from the south into an east-west ditch located along the north line of plaintiff’s property. This ditch drained into a large drainage ditch which lay along plaintiff’s west line. There was a four inch underground drainage line of clay tile across his back yard originating near the south side of plaintiff’s lot. This line terminated in the large drainage ditch on the west end of plaintiff’s property. Although this lot was lower in elevation than the area south and east of it, the drainage facilities initially constructed by plaintiff’s father adequately prevented any serious flood problems until highway construction activities on # 167 commenced in the fall of 1974.

In connection with this work defendant expropriated the south end of the lot located immediately south and adjacent to plaintiff’s property. Defendant necessarily moved a considerable amount of dirt along its # 167 right-of-way in the proximity of plaintiff’s property, including that area expropriated from the lot lying immediately south of plaintiff’s property. This loose dirt was the source of most of the silt.

Defendant moved the house from the adjacent lot south of plaintiff as well as a curb along the highway in front of this lot. Before their removal these structures had diverted some water draining from the highway and property to the south in a westerly direction down the highway away from plaintiffs property. After their removal all water from the south drained across the now vacant lot onto plaintiff’s property.

Defendant also removed a one inch concrete elevation along the north side of # 167 at its intersection with Cooper Street which had constituted a small barrier and its removal increased the water flowing down Cooper Street to plaintiff’s lot. In building the new highway defendant substantially improved the drainage along the highway by constructing catch basins, connecting drain pipes, curbs and widening pavement. All of these factors increased the speed with which water flowed upon plaintiff’s property from the higher # 167 located to his south and east.

Following commencement of these construction activities plaintiff sustained flooding and silting in the garage and utility room on the Cooper Street lot. Heavy silting occurred in his front and back yard. This condition continued to exist during heavy rains from the late fall of 1974 until the early spring of 1977 when plaintiff completed the drainage improvements hereafter described.

Initially plaintiff attempted to alleviate the condition by replacement of drainage pipes in his front and back yards. These changes failed to stop the excessive flooding and silting. Because the silting filled in behind the retainer walls causing water and silt to flow over the top of them, plaintiff constructed a much higher retainer wall along his south line and increased the height of the retainer wall along his front yard. He constructed an open concrete conduit traversing his back yard and connecting with the drainage ditch located on the west end of his property. He constructed a concrete driveway some twenty feet wide along the south side of his property specifically designed to carry the water which drained from the south and east into the conduit which crossed his back yard. The higher retainer walls created a barrier and stopped the water from the south and east from flowing directly upon plaintiff’s property at the point where they were located and aided in directing the water into the drain pipe located along plaintiff’s east line, onto the driveway and through the conduit across plaintiff’s back yard.

Following addition of all these structures designed to more efficiently drain plaintiff’s property, the excessive flooding and silting he experienced from the time the widening activities commenced in the fall of 1974 ceased.

The trial court awarded the damages relying on Reymond v. Department of Highways, 231 So.2d 375 (La.1970).

Defendant assigns as error (1) the finding it was liable for any damages to plaintiff’s property; (2) the amount and extent of the award, and (3) the rejection of its third party demand.

In Reymond the Supreme Court recognized the Department was liable for physical damages which the property sustained as a result of highway construction, even though no portion of the property damaged had been expropriated in connection with the project:

“Article 1, Section 2, of the Louisiana Constitution reads in part: ‘ * * * Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.’ (See also Article 4, Section 15.) Sections 19 and 19.1 of Article 6 authorize the Legislature to define the Department of Highways’ exercise of eminent domain, and under the authority of R.S. 48:441 et seq. the Department has expropriated property for Interstate 10 in the vicinity of plaintiff’s property. Since a taking or damaging of property may in fact occur without expropriation proceedings by a public body through oversight or lack of foresight, there must be some proceeding whereby an owner may seek redress when his property is damaged or taken without the proper exercise of eminent domain. Such an action is often referred to as ‘inverse condemnation’, and our Article 1, Section 2, and Article 4, Section 15, support a proceeding in the nature of inverse condemnation by such an affected property owner.” Id. page 383 (See 1974 Constitution, Art. 1, § 4).

Defendant recognizes plaintiff’s property has been subjected to flooding and silting but contends that these occurrences did not create liability on its behalf because plaintiff’s property is subject to a drainage servitude within the provisions of La.C.C. Art. 660. Defendant contends its activities on the dominant estate did not render the servitude more burdensome.

Our jurisprudence recognizes activities upon the dominant estate which improve its drainage and increase the speed with which water flows across the servient estate but which do not increase the volume of water received by the servient estate do not fall within the prohibitive provisions of C.C. Art. 660 wherein “the proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome” Long v. Childress, 255 So.2d 822 (La.App., 2d Cir. 1972, writ refused).

The evidence establishes plaintiff’s property probably is receiving no more water than it received before construction began though it is receiving the water much faster. This fast-moving water from the dominant estate carried large volumes of silt picked up as it passes over construction areas in the highway right-of-way, including that expropriated portion of the right-of-way immediately south of plaintiff’s lot.

Pictures in evidence reflect this silt was deposited in large volumes on the plaintiff’s lot. Under these circumstances defendant’s activities on the dominant estate made the servitude of natural drain over plaintiff’s property substantially more burdensome. Kendall v. State, Dept. of Highways, 168 So.2d 840 (La.App., 2d Cir. 1964). Plaintiff’s property has been damaged for public purposes even though his property was not expropriated. He is entitled to compensation for those damages.

“The damage which a property owner may claim against one exercising the power of eminent domain would exclude non-physical damage, and the physical damage which is recoverable must be proximately caused by the improvement as designed and constructed or must be the probable, the immediate, the direct, and the necessary result and effect of the activities engaged in during construction. In short, compensable physical damage to adjacent property is restricted to that which is actually a consequence of the activity complained of.” Reymond, supra, page 384.

The trial court found that plaintiff expended $3,714.11 together with $200 of his own labor to protect himself from water and silt, and the record fully supports this finding. These damages awarded by the trial court are in the nature of the cost of cure which is a proper manner to determine damages in this unusual situation. Reymond; Kendall.

The trial court awarded plaintiff $5,000 for depreciation of the value of his property as a result of construction of the drainage facilities to protect his property. This award was based upon testimony of plaintiff’s expert witness who concluded that the existence of these structural aids to drainage would lower the value of the property by $10,000. The appraiser opined that a prospective purchaser, upon observing the drainage facilities around the property, would be less enthusiastic about acquiring it because he would be knowledgable that the property had drainage problems.

Plaintiff’s property has always been located in a valley-type situation and had structural aids for drainage prior to defendant’s activities. The more elaborate aids plaintiff constructed following defendant’s activities are attractive, more effective and therefore should not cause a prospective purchaser to be more concerned about the adequacy of plaintiff’s drainage than he would have been upon observing the previously existing retainer walls and underground drainage pipes. The logic of the appraiser being fallacious, there is no evidence in the record to support this damage award by the trial judge.

The trial court awarded plaintiff $1,000 for “mental pain, worry and anguish”. This element of damage is not compensable in an inverse condemnation proceeding. Reymond, supra. See also Kendall, supra.

There is no evidence plaintiff’s damages were due to negligence on the part of the contractor, nor were they due to its failure to properly perform its contractual obligations according to the plans and specifications. There is no substantial evidence in the record of any safeguards or protection that it should have used which would have prevented the damages sustained by plaintiff as a result of the construction.

Our review of the evidence fails to establish that the trial judge committed manifest error in rejecting defendant’s third party demands against the contractor.

Plaintiff is not entitled to the expert witness fee because the expert testimony failed to establish damages to which plaintiff was entitled.

The judgment of the district court is amended to eliminate the $1,000 award for mental pain and anguish, the $5,000 as depreciation to plaintiff’s property and the $950 expert witness fee.

As modified, the judgment is affirmed, and the defendant is cast with cost to the extent permissible under R.S. 13:4201.

      . “Art. 660. Natural drainage
      “It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.
      “The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.
      “The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.”


text:
    William Alto PORTER and Gladys Lorene Porter, Plaintiffs-Appellants, v. UTICA MUTUAL INSURANCE COMPANY and Harold Breard d/b/a Breard Mutual Insurance Agency, Defendants-Appellees.
    No. 13500.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.

      Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for defendants-appel-lees.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

This is a suit by homeowners, Mr. and Mrs. W. A. Porter, against an insurance agent, Harold Breard d/b/a Breard Mutual Insurance Agency, and his errors and omissions insurer, Utica Mutual Insurance Company. Plaintiffs seek to recover the value of their residence in Union Parish and its contents which were destroyed by fire on January 29, 1976. Plaintiffs’ claims are based on the alleged failure of the defendant-agent to obtain fire insurance coverage on the Union Parish residence after being requested to do so and on a failure of the defendant to advise them that the amount of coverage on the contents provided by a homeowner’s policy covering a former residence in Monroe was reduced when the contents were moved from the old to the new home. Defendants deny that insurance coverage on the Union Parish residence was ever requested. Defendants contend that the defendant-agent had no duty to specifically advise plaintiffs concerning the reduced amount of coverage on the contents, which was provided in the homeowner’s insurance policy. Alternatively, defendants contend plaintiffs were guilty of contributory negligence in failing to determine whether insurance was in existence on the Union Parish property and in failing to secure adequate insurance.

The case was tried before a jury which rendered a special verdict by answering written questions submitted to it by the court pursuant to LSA-C.C.P. Art. 1811. Judgment was rendered reciting that the answers to the interrogatories established that plaintiffs’ demands should be rejected because of contributory negligence and ordering the dismissal of plaintiffs’ demands. After denial of their motion for a new trial, plaintiffs appealed.

The issues on appeal, broadly stated, are:

(1) Is the judgment of the district court correct insofar as it rejects plaintiffs’ claim for the value of their residence destroyed by fire, which claim is based on allegations that the insurance agent failed to obtain requested insurance coverage?

(2) Is the judgment of the district court correct insofar as it rejected plaintiffs’ claim for the full limits of the contents coverage provided under the homeowner’s policy written on their residence in Monroe, which claim is based on allegations that the insurance agent failed to advise them of the policy provisions reducing coverage when the contents were moved to another residence?

The Evidence

Plaintiffs began doing business with the Breard Insurance Agency in the 1950’s when they bought a home in Monroe and obtained fire and extended coverage insurance through the Breard agency. The insurance on their Monroe home was renewed from time to time, was converted to a homeowner’s policy which also provided coverage for contents or “unscheduled personal property”, and the limits were increased. Plaintiffs also obtained insurance on their automobiles through the Breard agency.

In August 1975 plaintiffs contracted to buy the residence in Union Parish which was located in a rural area on a five-acre tract. Plaintiffs arranged for financing with the Farmerville State Bank, the loan to be secured by a second mortgage on the Monroe residence. The bank required that plaintiffs obtain an endorsement to their homeowner’s policy covering the Monroe residence naming the bank as second mortgagee. The bank apparently did not take a mortgage on the Union Parish property and made no requirement concerning insurance on that property.

A few days before the transaction was to be closed Mr. Porter telephoned Mr. Breard and advised him of the requirement of an endorsement to the homeowner’s policy on the Monroe property. Mr. Porter testified that he also told Mr. Breard that he wanted coverage on the Union Parish residence and that Mr. Breard said “okay.” Porter’s testimony as to what he said to Breard on the telephone is corroborated to some extent by the testimony of his wife and daughter, who overheard his end of the conversation. Porter’s testimony was that he assumed that Breard would tend to all of the details and obtain adequate coverage, as he had done in the past. The next day Mr. Porter picked up the endorsement to the homeowner’s policy at the agency for delivery to the bank.

Breard’s version of the telephone conversation was that Mr. Porter talked to him about the endorsement to the homeowner’s policy but that Mr. Porter told him that he intended to fix up the Union Parish residence and would discuss insurance coverage on that property at a later time. Mrs. Breard, who worked in her husband’s agency, testified that when Mr. Porter came by to pick up the endorsement she asked him about coverage on the Union Parish property and Mr. Porter said they would discuss that later. Mrs. Breard and another employee of the agency testified they asked Mrs. Porter on two subsequent occasions when they were talking about other insurance matters, about insurance on the Union Parish property but were told that the Porters were not interested in insurance at that time.

After completing the purchase of the Union Parish property, the Porters moved to that residence, moving their furniture and personal belongings from the Monroe home to the Union Parish home. No insurance policy was ever issued on the Union Parish residence, nor was any policy delivered to the Porters, nor was any statement for premium sent to them.

On January 29, 1976 the Union Parish residence and its contents were destroyed by fire. When Mrs. Porter called Breard to inform him about the fire he told her that there was no insurance on the residence and that the amount of insurance on the contents was reduced from $7,500 to $1,000 in accordance with the homeowner’s policy provisions. Breard testified that Mrs. Porter stated she knew there was no insurance on the residence but was unaware of the provisions of the policy concerning the amount of coverage on the contents. This suit followed.

First Issue

In regard to the claim based on failure to obtain insurance coverage on the Union Parish residence, the jury returned the following special verdict:

1. (a) Did the Porters specifically request an insurance policy on the Union Parish house? (Yes or No) Yes
(b) If yes, did Mr. Breard agree to procure the requested policy? (Yes or No) No
(c) If your answer to 1(a) is “Yes” and your answer to 1(b) is “No”, did the actions of Mr. Breard, after the request, cause the Porters to reasonably assume that they had the policy requested? (Yes or No) Yes
2. If your answer to 1(b) or 1(c) is “Yes”, was Mr. Breard negligent in failing to obtain the policy? (Yes or No) Yes
3. If your answer to 2 is “Yes”, did such negligence proximately cause the losses of which the Porters complain? (Yes or No) Yes
4. If your answer to 3 is “Yes”, answer the following questions?
(a) Did the Porters exercise reasonable care to secure a policy on the Union Parish house? (Yes or No) No
(b) If not, was their failure to do so a proximate cause of their losses? (Yes or No) Yes

Appellant argues that the jury’s answers to question 4 are inconsistent with the answers to question 1 and that since the jury found the Porters specifically requested an insurance policy and the actions of Breard caused the Porters to reasonably assume that they had the policy requested, judgment should have been rendered for the plaintiffs.

The answers to the questions are confusing and inconsistent. Although the jury found that Mr. Breard did not agree to procure the requested policy, it found that his actions caused the Porters to reasonably assume they had the policy. Although the jury found that the Porters reasonably assumed they had the policy, the jury also found that the Porters did not exercise reasonable care to secure the policy. The inconsistent and confusing findings of the jury do not necessarily support judgment either for the plaintiffs or the defendants. For this reason we are unable to give the usual weight to the jury’s findings and it becomes our duty to review the evidence and to render a proper judgment in accordance with applicable law. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975); Andrepont v. Naquin, 345 So.2d 1216 (La.App. 1st Cir. 1977).

The applicable law is concisely stated in Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973):

An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage. C.C. 3002 and 3003; Kieran v. Commercial Union Insurance Company of New York, 271 So.2d 889 (La.App. 4th Cir. 1973); Hight v. Stewart, 265 So.2d 640 (La.App. 2d Cir. 1972); Bordelon v. Herculean Risks, Inc., 241 So.2d 766 (La.App. 3d Cir. 1970); Shrv Teletype Coin Exchange, Inc. v. Commercial Union Insurance Company of New York, 191 So.2d 208 (La.App. 2d Cir. 1966); Arceneaux v. Bellard, 149 So.2d 444 (La.App. 3d Cir. 1963); Brown v. Stephens Buick Company, 139 So.2d 579 (La.App. 4th Cir. 1962).

In order to recover for loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove: (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) the actions of the agent warranted an assumption by the client that he was properly insured.

The strong preponderance of the evidence is that Mr. Porter, even if he intended to obtain coverage on the Union Parish residence, did not effectively communicate that request to Breard. There was no discussion of the amount of insurance, the kind of policy, the amount of premium, or any other details ordinarily involved in the securing of insurance. The evidence does not support a finding that Breard agreed to procure the requested policy. Most clearly, plaintiffs were not warranted in assuming that insurance coverage on the Union Parish property had been obtained by the agent. Although more than five months elapsed from the date plaintiff allegedly requested coverage to the date of the fire, plaintiff never received a policy nor a bill for a premium and, according to their own testimony, never made any inquiries of the agent with regard to the policy or the bill. Under these circumstances, plaintiffs were not justified in assuming that they had fire insurance coverage on the Union Parish residence. See Brown v. Stephens Buick Company, 139 So.2d 579 (La.App. 4th Cir. 1962).

Having failed to prove several of the elements necessary to recover from the insurance agent, plaintiffs’ demands for recovery of the value of the residence destroyed by fire were correctly rejected.

Second Issue

The homeowner’s policy issued on the Monroe residence provided coverage in the amount of $7,500 for unscheduled personal property while on the insured premises. The policy specifically provided, however, that the limit of the company’s liability for unscheduled personal property away from the insured premises was equal to ten percent of the $7,500, but in no event less than $1,000. Therefore, the amount of coverage provided under the homeowner’s policy for the personal property located at the Union Parish residence was $1,000.

Plaintiffs argue that Breard, as their insurance agent, had a duty to inform them of the reduction in coverage when he learned that they moved their furniture and personal belongings to the Union Parish residence and that having failed to so advise them the agent is liable for the difference between $7,500 and $1,000.

In connection with this issue the jury returned the following special verdict:

1. (a) Did the Porters request Mr. Breard to inform them as to the limitations on the contents coverage under their Monroe house policy? (Yes or No) No
(b) If not, was anything done or said which reasonably misled the Porters to believe the contents had full coverage when moved to another location? (Yes or No) Yes
2. If your answer to 1(a) or 1(b) is “Yes”, was Mr. Breard negligent in his actions with the Porters in reference to the limitations on contents coverage? (Yes or No) Yes
3. If your answer to 2 is “Yes”, did such negligence proximately cause the losses on contents of which the Porters complain? (Yes or No) Yes
4. If your answer to 3 is “Yes”, please answer the following questions:
(a) Did the Porters act with reasonable care in informing themselves as to the limitations on contents coverage? (Yes or No) No
(b) If not, was their failure to do so a proximate cause of their losses on contents? (Yes or No) Yes

Plaintiffs timely objected to questions 1(a) and (b) and 4(a) and (b) and also objected to the following charge given by the court to the jury:

“Now with respect to the terms and conditions of a policy, the agent is not under a duty to inform the client thereof unless requested. On the contrary, in the absence of something said or done to mislead him, or put him off guard, it is the duty of an insured to inform himself as to such provisions of his policy.”

The only factual dispute relating to the contents coverage issue is whether Breard had knowledge that plaintiffs had moved their personal property from the Monroe residence to the Union Parish residence. There is no contention that plaintiffs ever so advised him, but plaintiffs argue that he should have known because he was advised of their change of address and should have known they moved their furniture and belongings to their new home. We find from the evidence that Breard did not have actual knowledge that the personal property had been moved and that nothing in the transaction between the parties was calculated to draw his special attention to that fact as it might relate to the plaintiffs’ insurance coverage. In any event, under the circumstances of this case, he had no duty to affirmatively advise plaintiffs concerning the express provisions of their insurance policy as it related to the amount of coverage on their personal property. The jury’s finding of negligence on the part of Breard is not warranted under the facts or as a matter of law.

The charge made to the jury is a fair statement of the law concerning the duty of an agent to inform his client with respect to the terms and conditions of a policy. See 44 C.J.S. Insurance § 172 and Farber v. Great American Insurance Company, 406 F.2d 1228, 1233 (7th Cir. 1969).

The only case cited by plaintiffs in support of their position is Mongeau v. Liverpool & London & Globe Ins. Co. of Liverpool, Eng., 128 La. 654, 55 So. 6 (1911). In that case the agent was guilty of conduct that lulled the insured into believing he had coverage. The facts in Mongeau reflect that when the insurance agent was inspecting the property he was specifically asked by the insured whether everything was satisfactory. These circumstances are not present in the case before this court.

The defendant-agent breached no duty owed to the plaintiffs in connection with the contents coverage and plaintiffs’ claim in this respect was properly rejected.

At appellants’ costs the judgment of the district court is affirmed.


author: MARVIN, Judge. PRICE, Judge,

text:
    W. R. ADAMS, and Lilly Adams, Plaintiffs-Appellees, v. STATE of Louisiana, Through DEPT. OF HIGHWAYS, Defendant-Appellant.
    No. 13502.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    En Banc. Rehearing Denied May 10, 1978.

      Marshall W. Wroten, Robert J. Jones, David K. Balfour, Charles A. O’Brien, III by Charles A. O’Brien, III, Baton Rouge, for defendant-appellant.
    C. Calvin Adams, Jr., Tallulah, for plaintiffs-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Near, or arguably on, the right of way of a state highway traversing the front of plaintiffs’ residential property, there grew a landmark pecan tree distinctively shaped by the ravages of time and lightning and called by plaintiffs, their relatives and friends, the Statue-of-Liberty tree.

This case arose when the State cut down the tree. Judgment below included an award for damages for mental anguish to plaintiffs. The State appeals, contending among other things, that damages for mental anguish are not legally recoverable in these circumstances and generally that the judgment was excessive. We amend and affirm.

The record supports the lower court’s finding that the tree was not on the right of way acquired by the State by virtue of a long-term use and maintenance. R.S. 48:220.1, 491. Even assuming that the tree overhung the right of way does not avail the State. R.S. 48:220.1 confers only a servitude and not ownership. A public body may not destroy private property overhanging a public right of way without observing legal process unless the property constitutes a public nuisance or poses imminent danger to users of the right of way. Oglesby v. Town of Winnfield, 27 So.2d 137 (La.App.2d Cir. 1946); Tissot v. Great Southern Telephone & Telegraph Co., 39 La.Ann. 996, 3 So. 261 (1887). See also annotation at 64 ALR 2d 870. There is no evidence that the Statue-of-Liberty tree was a public nuisance or that it posed imminent danger to the highway users.

DAMAGES

The tree grew from atop a private plantation levee paralleling the highway in front of plaintiffs’ home. Lightning and decay toppled the crown of the tree and left remaining on one side of the broken trunk a large limb extending armlike above the trunk and on the other side a smaller limb extending downward. This condition existed for several years and the limbs perennially produced new foliage and pecans. An ice storm, which occurred before the cutting and which caused breakage of other trees that threatened use of the right of way, caused no damage to plaintiffs’ tree and no threat to the right of way. Plaintiffs’ tree, 48" in diameter, while found to have been 70 percent decayed or damaged, was yet a live and growing tree.

In McBride v. Duckworth, 232 So.2d 122 (La.App.2d Cir. 1969), we affirmed an award of $1,000 for an 18" diameter oak on the rear of the plaintiffs’ lot. See also Lewis v. Southern Pacific Transportation Company, 266 So.2d 238 (La.App.2d Cir. 1972). There, $1,200 was awarded for each of three oak trees ranging from 17" to 24" in diameter. Here, the lower court awarded $700 for the value of the tree. One of plaintiffs’ experts testified that the tree had a value in excess of $3,200. We find no abuse of discretion by the lower court in this award.

Damages may be allowed in Louisiana for mental anguish arising out of trespass by public bodies. Tissot, supra.

“This type of damages ... is regarded ... as compensatory damages to which the landowner is entitled for the violation of a recognized property right through the trespass, [citations omitted] .
“This type of damages is properly awarded the landowner for wrongful trespasses by municipalities . . . ‘[0]f course, the unlawfulness of the action * * * must be clearly established, and . of such character and of such magnitude as would reasonably be calculated to cause the owner, mental distress, pain and discomfort.’ ”
Belgarde v. City of Natchitoches, 156 So.2d 132 (La.App. 3rd Cir. 1963).
See also Dickerson v. R.J.M. Pipeliners, Inc., 331 So.2d 501 (La.App.2d Cir. 1976).

The State argues, however, that damages for mental anguish are not to be allowed, even as “exemplary damages,” unless the trespass “was aggravated by circumstances of violence, oppression, malice, or fraud [akin to moral bad faith] . . . citing General Accident Fire & Life Assurance Corp. v. Humble Oil & Refining Co., 243 So.2d 865 (La.App. 1st Cir. 1971).

The State misconstrues the cases interpreting the issue of damages for mental anguish arising out of trespass. It is in those cases where the trespass is aggravated by circumstances of gross recklessness and deliberate disregard of the victim’s right that it is said that mental anguish is reasonably calculated or expected to result to the victim. See Turner v. Southern Excavation, Inc., 322 So.2d 326 (La.App.2d Cir. 1975). In other cases, where the trespass is not aggravated by such circumstances, the burden of proving actual mental anguish damages, of course, is much greater because of the absence of reasonably expected mental anguish. But where the burden is met and actual damages are proved—even though not reasonably expected—the victim should be allowed the damages.

The state of mind or moral culpability of the trespasser affects the burden imposed on the trespass victim claiming mental anguish and not the victim’s right to claim the damages.

As in Dickerson, supra, there was only a legally wrongful, and not a morally wrongful, trespass here. There was no malice in the destruction of the tree, but only an error of judgment that the tree was on the State’s right of way. The lower court nonetheless found that each plaintiff sustained actual mental anguish damage over the sudden loss of the tree.

The lower court noted “particular” mental anguish to the plaintiff wife who had attached significance to the Statue-of-Liberty tree because she was not a native-born American. She cried the remainder of the day after the tree was cut in the morning. The plaintiff husband’s initial reaction to the loss was a brief vocal outburst of anger and despair. The record supports the lower court’s finding that both plaintiffs sustained some mental anguish because of the destruction of their landmark tree.

In Lewis, supra, we affirmed an award of $1,000 each to a husband and wife for their distress from the wrongful destruction of their healthy oak trees. In Turner, supra, we affirmed an award of $3,500 for mental anguish from a trespass, the circumstances of which were much aggravated, noting similar awards in other cases. Here, the lower court awarded the husband $1,500 and the wife $2,000 for their mental anguish.

The eventual loss of the tree, however, was expected by plaintiffs because of the tree’s age and condition. Under these circumstances and because the trespass was not aggravated in the sense discussed, we deem the lower court’s awards for mental anguish to be above the upper range of discretion afforded the lower court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The award to the plaintiff wife is amended to $500, and the award to the plaintiff husband is amended to $250, and as amended, judgment is affirmed.

The State is cast with costs to the extent permissible under R.S. 13:4521.

PRICE, Judge,

dissents with written reasons.

I must dissent from the opinion of the majority in approving a total award of damages of $1,450 against the Department of Highways for removal of a decayed tree whose only remaining live limb was overhanging in the highway right-of-way and possibly constituted a hazard to motorists. The decayed state of the tree is best depicted by a photograph submitted in evidence which is reproduced as follows:

Under these circumstances, the award of $700 for the value of the tree and $750 for mental anguish to plaintiffs is erroneous.

      . R.S. 48:220.1 reads in part:
      “Whenever the department of highways . takes over an existing road from a parish . the department shall acquire all of the rights which the ceding agency possessed . in those instances where the department has constructed a highway without a recorded conveyance or dedication by the landowner, the width of the right of way servitude for the said highway shall include the roadway, shoulder, roadside ditch and an area extending one and one-half feet beyond the rear or outside slope of the roadside ditch. Nothing herein shall affect title to any buildings or fences, nor require their removal without payment of just compensation therefor, nor shall anything herein affect title to the soil beneath the highway right of way nor to any minerals thereunder. The existence of the highway for a period in excess of three years shall vest title to the right of way servitude in the Department of Highways.”


text:
    Charles M. BROWN et al., Plaintiffs-Appellees, v. James A. EVERDING, Defendant-Appellant.
    No. 13510.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    En Banc. Rehearing Denied May 10, 1978.

      Johnson & Johnson by Don H. Johnson, Monroe, for defendant-appellant.
    C. Calvin Adams, Jr., Tallulah, for plaintiffs-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

James A. Everding appeals from a judgment dismissing his suit to annul a sheriff’s sale under executory process on an exception of no cause of action filed by mortgagees and from a judgment evicting him from the property seized and sold.

The trial court found the defects alleged were not substantive but were procedural defects cured by the June 1, 1977 recordation of the sheriff’s deed in the conveyance books of Madison Parish. LSA-R.S. 13:4112. A certified copy of this deed was made a part of the record by stipulation at the time of hearing on the exception of no cause of action. We affirm.

On December 23,1974, Charles M. Brown, Marylynn D. Brown, husband and wife, and Eva C. Holt sold to Everding for $100,000 a piece of property located in Madison Parish together with all buildings and improvements. Everding paid $25,000 cash and executed on the same date a $75,000 promissory note payable to his order and endorsed by him secured by a mortgage on the property purchased. The note was payable in five annual installments of $15,000 plus interest beginning January 15, 1976. The mortgage contained a confession of judgment.

The waivers of notice of demand and putting in default contained in the printed mortgage form were deleted by the parties and there was attached to the mortgage an amendment requiring 30 days notice of mortgagor’s failure to pay any installment as a condition precedent to his being in default. This notice was required to be sent by registered mail addressed in the manner set forth in the attachment.

The promissory note was paraphed “Ne Varietur” for identification with the act of sale and mortgage and required 30 days notice prior to the debtor’s default. However, the note contains language that the maker waives presentment, demand, protest and notice of nonpayment. The latter language conflicts with the provisions of the mortgage and the note requiring 30 days notice of demand.

The sale with mortgage was signed by the vendors-mortgagees, Charles Brown and Eva C. Holt and by the vendee-mortga-gor, James A. Everding. Mr. Brown’s signature appears on the bottom of the next to the last page along with the signatures of two witnesses. Ms. Holt and Mr. Everding signed at the top of the last page above the notary’s signature.

Everding failed to pay the installment due January 15, 1977 and on March 2nd the mortgagees’ attorney sent by registered mail a letter containing the 30 days notice of demand for payment addressed in the manner required by the mortgage. The return receipt for the registered letter indicated it was received by “Susan Lolley” on 3-5-77. The act of mortgage did not require the document of registration to restrict the party who might receive it and the mortgagees made no such requirement at the time the registered letter was sent.

On April 7 the mortgagees filed an exec-utory proceeding to enforce the mortgage, praying for notice of demand to be served on Everding. The mortgagees attached to the petition the act of sale and mortgage, original note, copy of 30 days demand letter, the documents of registration and return receipt, and an affidavit showing balance due. An order for executory process was signed and notice of demand for payment within 3 days pursuant to LSA-C.C.P. Art. 2639 was issued on the same day the proceedings were filed. This notice was served April 11th on James A. Everding by domiciliary service on Mrs. James A. Everd-ing. No payment was made by Everding and on April 14th the writ of seizure and sale was issued by the clerk. The sheriff did not receive the writ in his possession until the 15th after which the notice was personally served on James A. Everding on April 21st.

Everding failed to suspensively appeal the order of executory process and did not seek to enjoin the' sale which occurred on June 1. The property was purchased by Brown. The sheriff’s deed was recorded in the conveyance books of Madison Parish June 1.

On June 13, Everding filed a petition to annul the judicial sale in the same numbered and styled proceedings as the original executory proceedings, alleging the following defects:

(1) Erroneous description of property in the executory process proceedings.

(2) Lack of authentic evidence to prove the creditor’s right to use executory process.

(3) Lack of notice of demand and default.

(4) Premature issuance of the writ of seizure and sale.

(5) Variance between the mortgage and note regarding the provisions for waiver of demand and default.

The issues on appeal are: (1) from pleadings and documents before the trial court on exception of no cause of action were there alleged substantive defects constituting a cause of action to annul; (2) were the alleged defects contained within the documents considered by the trial court procedural, and for this reason did they fail to establish a cause of action to annul?

The appellant’s constitutional arguments directed at LSA-R.S. 13:4112 and at the general failure of the proceedings to be conducted in accordance with due process requirements were first raised by him on appeal and for this reason we decline to consider the issue. Gathright v. Smith, 352 So.2d 282 (La.App., 2d Cir. 1977); Johnson v. Welsh, 334 So.2d 395 (La.1976).

“Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both.” C.C.P. Art. 2642.

If there are substantive defects in the executory proceedings the sale may be attacked as a nullity even though the debt- or failed to exercise his right to take a suspensive, appeal or enjoin the sale provided the creditor is the adjudicatee at the sale. Reed v. Meaux, 292 So.2d 557 (La.1974).

LSA-R.S. 13:4112 provides there can be no action to set aside the judicial sale of immovable property by executory process after recordation of the sheriffs sale or proces verbal by reason of any objection to form or procedure in executory proceedings, or by reason of lack of authentic evidence to support the order and seizure.

The suit to annul, which was filed under the same number as the executory proceedings and bore the same style of executory proceedings, contains allegations which establish that the manner in which it was filed contemplated an adoption of the entire executory proceedings in the pleadings of the nullity action. For this reason the trial court had before it on exception of no cause of action the following documents: (2) the original petition for executory process; (b) notice of demand to Everding with the sheriff’s return; (c) writ of seizure and sale; (d) notice of seizure to Everding with the sheriff’s return; (e) advertisements; (5) proces verbal; (g) all pleadings in the suit to annul the judicial sale, and (h) the certified copy of sheriffs deed which was stipulated into the record at the hearing of exception of no cause of action.

ERRONEOUS DESCRIPTION

Appellant contends the property description in the creditors’ petition for execu-tory process varied from the description in the mortgage and for this reason this is a substantive defect which justifies his cause of action to set aside the sale.

The error consists of an incorrect section number. The original sale with the correct description was attached to the foreclosure proceedings which were made a part of the record. Under these circumstances the defective description is a minor procedural error which at most constitutes a cloud upon the title of adjudicatee and cannot be a substantive defect creating a cause of action to annul the sale.

LACK OF AUTHENTIC EVIDENCE

Appellant urges the failure of creditors to present the original promissory note instead of a copy is a substantive defect. Our review of the record establishes the original note was attached to the executory proceedings and this argument is without merit.

He also urges the act of mortgage was not in authentic form. Our review of the sale with mortgage reflects it was in authentic form. Due to a space limitation on the next to the last page of the act of sale with mortgage the signatures of one of the vendors-mortgagees, the vendee-mortgagor and notary were required to be placed on an additional and last page.

The recitations within the document established it was signed by mortgagees, mortgagor, two witnesses and notary in the presence of each other. There are no allegations in the petition to annul denying these recitations of the mortgage instrument. Under these circumstances the fact that all of the parties, the notary and witnesses did not sign on the same page does not detract or invalidate an otherwise authentic act, and for this reason appellants’ contention is without merit.

LACK OF NOTICE

Appellant urges (1) he did not receive the thirty day notice of demand for payment required by the note and mortgage, and (2) he was not personally served with the notice of demand issued following the filing of the petition for executory process.

When Everding failed to pay in January, 1977, the creditors sent him a letter dated March 2nd notifying him of his failure to pay and of their demand for payment within thirty days and advised him that if he failed to pay they would foreclose. The creditors complied with their obligation in the mortgage to notify Everding of his default thirty days prior to suit because that document did not require him to receive the letter but only required the creditors to send the demand to him at the designated address by registered mail.

Appellant further contends that C.C.P. Arts. 2639 and 2640 require the debtor to be personally served with the notice of demand for payment and the petition for executory process. He urges unless there is personal service on the debtor, there is no notice of demand and no compliance with due process and therefore is a substantive defect.

C.C.P. Art. 2640 requires only the notice of demand be served on the debtor and this negates any requirement that the petition for executory process be served. See comments to the article, footnote 4, infra.

There is no requirement of personal service of the demand notice. C.C.P. Art. 2640 requires the sheriff to serve the demand for payment upon the debtor unless demand has been waived. C.C.P. Art. 1231 defines two types of service — personal or domiciliary — and specifically provides “except as otherwise provided by law, each has the same effect.”

The sheriffs return establishes notice of demand addressed to defendant was served upon his wife. Domiciliary service upon the spouse of the debtor of the notice of demand complies with the requirement of C.C.P. Art. 2640. Consolidation Loans, Inc. v. Guercio, 200 So.2d 717 (La.App., 1st Cir. 1967).

Appellant admits in Paragraph 13 of his original petition to annul that he was served with notice of demand: “. plaintiff . . . received no notice of demand from Charles M. Brown, et al., until he was served with the ‘Notice of Demand for Payment’ issued in these proceedings on the 7th day of April, 1977.”

We note Everding was personally served with notice of seizure. The service of notice of seizure, together with the service of notice of demand and the thirty day registered letter of demand complied with the executory proceeding requirements.

PREMATURE ISSUANCE OF WRIT OF SEIZURE AND SALE

C.C.P. Art. 2639 provides if the debt- or fails to pay the amount due within three days of service of notice of demand for payment, then a writ of seizure and sale will issue and property will be seized and sold.

On April 11, James A. Everding was served through his wife with the notice of demand for payment. On April 14, a few hours less than three full days, the clerk prepared a writ of seizure and sale.

We note under the provisions of C.C.P. Art. 2721 the sheriff is specifically mandated not to serve the writ of seizure and sale before expiration of the delay allowed for payment required by C.C.P. Art. 2639 (three days). The writ was not received by the sheriff until April 15 (more than three full days following the April 11th service) and was not served upon defendant until April 21st.

Under these circumstances the very most that can be said for defendant’s complaint that the clerk issued the writ of seizure and sale a few hours less than three full days following service of demand is this is a minor procedural error which is not a ground for annulment.

VARIANCE BETWEEN THE MORTGAGE NOTE

The mortgage provides demand must be made upon the debtor and he must be put in default. These requirements were waived at one place in the promissory note but were reiterated at another place in the note. Appellant urges the note and mortgage substantially differ and cannot be a basis for executory proceedings.

Although the language of the mortgage and note differ, we note that both instruments require the thirty day notice of demand and that the creditors did comply with the more restrictive covenants of mortgage by giving said thirty day notice and obtaining service of the statutory three day demand notice on the debtor. This variance fails to strike at the foundation of the creditor’s right to use executory process and is not such a variance as to constitute a cause of action to annul. Slidell Building Supply, Inc. v. IDS Mortgage Corporation, 273 So.2d 343 (La.App., 1st Cir. 1972).

The sheriff’s deed of June 1, 1977, where Everding’s property was sold to the creditor, Charles M. Brown, is valid and cannot be attacked by a suit to annul because defects alleged were procedural and cured by recordation of the deed on June 1st. LSA-R.S. 13:4112. For that reason the subsequent judgment evicting Everding from the property sold at the sheriff’s sale is correct and will not be disturbed on appeal.

For reasons assigned, the judgments are affirmed at appellant’s costs.

      . LSA-R.S. 13:4112 Actions to set aside or annul judicial sales in executory proceedings
      “No action may be instituted to set aside or annul the judicial sale of immovable property by executory process by reason of any objection to form or procedure in the executory proceedings, or by reason of the lack of authentic evidence to support the order and seizure, where the sheriff executing the foreclosure has either filed the proces verbal of the sale or filed the sale for recordation in the conveyance records of the parish. . . . ”

      . The following quotations are taken from paragraphs 4 and 8 of the nullity petition:
      “4. The writ of seizure and sale referred to hereinabove was issued pursuant to a petition for executory process filed by Charles M. Brown and Marilyn D. Brown and Eva C. Holt, all major residents of Madison Parish Louisiana, and defendants herein. Said petition was filed on April 7, 1977, in the Sixth Judicial District Court of Madison Parish, Louisiana, in the same numbered and entitled proceedings as the present suit.

      “8. Not only was said property described erroneously in the petition, said property was described erroneously in the notice of demand of payment issued by the Clerk of Court’s office in Madison Parish, Louisiana, as will more fully appear from the original record of the proceedings in this matter.” * * * (emphasis added)

      . Art. 2639. Demand for payment
      “Before issuing the writ of seizure and sale, the clerk shall issue a demand upon the defendant for payment of the amount due and all costs of court. This demand shall notify the defendant that, in default of payment within three days of service, exclusive of holidays, a writ of seizure and sale will be issued and the property described in the- petition will be seized and sold according to law.
      “The demand for payment need not be issued if it has been waived by the debtor in the act of mortgage or privilege; and in such event, the clerk shall issue the writ of seizure and sale immediately.”

      . Art. 2640. Citation unnecessary; service of demand for payment
      “Citation is not necessary in an executory proceeding.
      “The sheriff shall serve upon the defendant the demand for payment provided by Article 2639, unless waived by the debtor as provided therein.
      Official Revision Comment
      “It is not necessary that a certified copy of the plaintiff’s petition and of the court order rendered thereon be served upon the defendant in an executory proceeding. Exchange and Banking Co. v. Walden, 15 La. 431 (1840); Nash v. Johnson, 9 Rob. 8 (La.1844); Aillet v. Henry, 2 La.Ann. 145 (1847); Snow v. Trotter, 3 La.Ann. 268 (1848); Hart v. Pike, 29 La.Ann. 262 (1877); Rogers v. St. Martin, 110 La. 80, 34 So. 137 (1903). For this reason service of a certified copy of the petition and court order is not required to be served on the defendant under this article.”

      . § 2721
      “The sheriff shall seize the property affected by the mortgage or privilege immediately upon receiving the writ of seizure and sale, but not before the expiration of delay allowed for payment in the demand required by Article 2639, unless this demand has been waived.
      “The sheriff shall serve upon the defendant a written notice of the seizure of the property.”


author: MARVIN, Judge.

text:
    A. B. HARRIS, Jr., et al., Plaintiffs-Appellees, v. ARKANSAS LOUISIANA GAS COMPANY and Arkla Exploration Company, Defendants-Appellants.
    No. 13512.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    En Banc. Rehearing Denied May 10, 1978.

      Blanchard, Walker, O’Quin & Roberts by W. Michael Adams, Randall Davidson, Shreveport, for defendants-appellants.
    Brown, Wicker & Lee by William D. Brown, Monroe, for plaintiffs-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

Arkla appeals from a preliminary injunction prohibiting it from connecting a pipeline to a gas well on plaintiffs’ property. We affirm.

Arkla was assigned 25 percent of the working interest by the mineral lessee (Bradco). Under an operating agreement, with another Bradco assignee as operator of the well, each working interest owner was granted the right to take its share of production in kind. The lease authorized the laying of pipelines “ . . . which maybe necessary, useful or convenient to . [production] operations conducted by lessee [or its assigns] . . . ” Arkla entered into an Emergency Gas Purchase Contract under FERC (formerly FPC) Regulations with an affiliate to deliver its share of production into its interstate distribution system.

Because of these factors and because any damages sustained by plaintiffs were measurable in money, Arkla contends that there was no irreparable injury to plaintiffs and that the lower court erred in granting the preliminary injunction. Arkla also contends the injunction imposes an unreasonable burden, and is an unconstitutional regulation, on interstate commerce.

The injunction was granted, however, because it was shown or stipulated at the hearing that the operator of the well had constructed and connected to the well another pipeline to distribute the gas intrastate. Thus the narrow issue — provoked obviously by the variance in the price of gas, interstate v. intrastate — is whether a second pipeline on plaintiffs’ property may be preliminarily enjoined pending a determination on the merits that Arkla’s pipeline is necessary as the lease language appears to contemplate.

On this issue, the lower court merely maintained the status quo, pending a trial • on the merits. The lower court correctly stated and resolved the issue with which it was confronted:

“The legal question is how many pipelines may be laid [under the lease terms] . and specifically whether or not this particular pipeline is a necessary one. Once the party who files the rule establishes that there is already a pipeline connecting the well . . . with other outlets, it then becomes incumbent upon the defendants to show that the construction of other pipelines is actually necessary.”

A preliminary injunction is interlocutory in nature and is designed to preserve status pending final determination of an action. A preliminary injunction may be based upon verified pleadings or affidavits, as well as upon ordinary proof, and requires less proof than is required in an ordinary proceeding for a permanent injunction. The summary issuance of a preliminary injunction addresses itself to the sound discretion of the trial court — of course, subject to review — and is subject to summary dissolution or modification by the trial court when circumstances warrant. Schwegmann Bros. G. S. Mkts. v. Louisiana Milk Comm., 290 So.2d 312 (La.1974). La.Const. Art. 5, § 2; C.C.P. Art. 3613.

If gas enters an interstate pipeline at the wellhead a serious question arises under federal law whether a state court would have jurisdiction to determine the necessity of the second pipeline or to determine whether any gas from the well might be diverted to the intrastate distribution system which already exists. In this sense, irreparable injury is threatened and the lower court did not err in preserving the status of the well until determination of the issue of whether the second pipeline is either necessary, useful or convenient under the language of the lease from which Ark-la’s rights stem. The effect of the action of the lower court on interstate commerce is remote, indirect and of short duration. See Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).

At appellants’ cost, judgment is AFFIRMED.