author: MARVIN, Judge.

text:
    Earnest SMITH v. Thomas A. DeVINCENT et al.
    No. 12734.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      George L. Hayes, Jr., Shreveport, for defendants-appellants.
    Burnett, Harrison, Sutton & Walker by Glenn E. Walker, Shreveport, for plaintiff-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   MARVIN, Judge.

DeVincent and Pate, lot owners in a subdivision, appeal from an injunctive judgment which ordered them to remove trailers or mobile homes they had placed on their respective lots. Plaintiff-appellee, also a lot owner, sought this relief on the grounds that the subdivision regulations were being violated by appellants.

The subdivision regulations contain only five specific restrictions, which we quote:

“1. No building shall be located nearer than ISO’ feet to the front lot line and/or nearer than IS feet to the interi- or lot line; however, the set back restriction from the front lot line does not apply to the location of a well house.
“2. No residence shall be constructed on any lot containing less than 900 feet of floor space on ground floor thereof exclusive of porches and/or car ports or garages.
“3. No residence shall be occupied until completely finished on exterior including the application of not less than two coats of paint.
“4. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently.
“5. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighbors.” (Emphasis Supplied)

Oral reasons were given for the judgment below but are not included in the record before us.

Both DeVincent and Pate placed mobile homes on their lots which are used as residences. DeVincent’s home is 14 x 80 feet. Pate’s home is 14 x 70 feet. DeVincent removed the springs, axles, wheels and tow bar of his mobile home and placed it on concrete piers Pate’s mobile home, while on cinderblocks, has not been so modified because, as he explains, he is awaiting a final decision of this litigation before he incurs the expense. The mobile home of each appellant is connected to utilities and to a septic tank. There are eight lots in the subdivision, each approximately 166 x 1287 feet, seven of which are occupied, while the lot of the appellee has remained vacant. Appellee explains that he is awaiting a final determination of this litigation before he decides whether or not to construct a residence on his lot.

Appellants contend a mobile home is to be distinguished from a trailer, especially when it has been modified or immobilized such as DeVincent’s home and alternatively, that the restrictions prohibit only the use of a “trailer” as a residence and not the existence of a “trailer” otherwise on the lot. Appellee and Appellants note that these issues are res nova in Louisiana appellate courts. We are furnished by both counsel with excellent reviews of several decisions from other states which are parenthetically enlightening, but of course, are not binding, as counsel recognize.

Notwithstanding the absence of Louisiana cases directly in point, we are not without jurisprudential principles for interpretation of such restrictions.

In Salerno v. DeLucca, 211 La. 659, 30 So.2d 678, 679-680, 1947, our Supreme Court stated:

“[1,2] It is the well established jurisprudence of this state that where restrictions have been inserted in deeds in pursuance of a general plan devised by the ancestor in title to maintain certain building standards and uniform improvements, such as those here under consideration, they are valid and enforceable . These are real rights or covenants that run with the land for the benefit of land owners within the area and to prevent the violation of these restrictions injunction proceedings may be resorted to .
“[3] Although these stipulations are stricti juris and every doubt should be resolved in favor of the unencumbered use of the property, whenever differences arise as to the extent or limitation of these restrictions, we must look to the intention of the party encumbering the property from the words used in the stipulations in the deed, consideration being given to the entire context of the instrument rather than to a single phrase or clause, for obviously those acquiring the property in the restricted area were motivated and influenced to purchase the same because of these limitations and they are entitled to the presumption that they will be fairly and faithfully complied with.” (Citations omitted)

Professor A. N. Yiannopoulos in his Article, Real Rights: Limits of Contractual and Testamentary Freedom, summarizes the codal and jurisprudential authorities in this way:

“According to well-settled Louisiana jurisprudence, documents establishing building restrictions are subject to strict interpretation. Any doubt as to the existence, validity, or extent of building restrictions must be resolved, therefore, in favor of the unrestricted use of the property. Thus, when there was doubt as to the intent of a person to impose restrictions, or as to the existence of a general plan, the doubt was resolved in favor of the owner whose property was allegedly restricted.
“Apart from the rule of strict interpretation, documents establishing building restrictions are subject to the general rules of the Louisiana Civil Code of 1870 governing the interpretation of juridical acts. Words used are to be understood in the common and usual signification; terms of art or technical phrases are to be interpreted according to their received meaning . . .”30 La.L.R. 44, 73-74

(Footnotes omitted)

While all restrictions are sometimes loosely referred to as building restrictions, it should be noted that restrictions generally fall into two classes: a “building” restriction, which limits the type and size of structures which may be placed on the property, and a “use” restriction, which limits the uses which may be made of permitted structures. A restriction may be both a building and a use restriction, as in Beyt v. Woodvale Place Apartments, 297 So.2d 448 (La.App. 3d Cir., 1974), wherein it was noted that the violation of the restriction was “both as to use . . . and as to the construction of a structure .” See also, LeBlanc v. Bowen, 238 So.2d 369 (La.App. 4th Cir., 1970). On the other hand, a building restriction and use restriction may be wholly independent of one another and one is not to be extended so as to include the other unless the intention to do so is clearly and expressly stated. See also, Covenants, Conditions and Restrictions, Sections 189-190, 20 Am. Jur.2d 758-760. In Jones v. Park Lane, 384 Pa. 268, 120 A.2d 535, 538 (1956), the Supreme Court of Pennsylvania observed:

“Restrictions limiting the right of the owner to deal with his land as he may desire fall naturally into two distinct classes, the one consisting of restrictions on the type and number of buildings to be erected thereon, and the other on the subsequent use of such buildings. The restrictions in the former class are concerned with the physical aspect or external appearance of the buildings, those in the latter class with the purposes for which the buildings are used, the nature of their occupancy, and the operations conducted therein as affecting the health, welfare and comfort of the neighbors. A building restriction and a use restriction are wholly independent of one another, and, in view of the legal principles above stated, the one is not to be extended so as to include the other unless the intention so to do is expressly and plainly stated; to doubt is to deny enforcement .
“. . . Numerous similar illustrations might be given of restrictions expressly covering both the type of buildings to be erected upon the land and limitations upon their subsequent use.”

Salerno, supra, tells us that whenever “differences” [of reasonable-minded persons] arise as to the extent or limitation of restrictions—and we interpret this to mean whether the restriction affects either or both the structures which may be placed on the property and the uses which may be made of permitted structures—we must look to the intention of the party encumbering the property from the entire content of the instrument. In the light of these principles of interpretation, we shall examine the five restrictions in question.

Restriction number one speaks of the location of a “building” and a “well house” as distinguished from a “residence” which is the subject of restrictions two and three. Number four speaks of a “shack, garage, barn or other outbuilding,” among other things. This arrangement and language leads us to conclude that the subdi-vider clearly contemplated and intended that “buildings,” including shacks, garages, barns and outbuildings such as well houses, could be placed on a subdivision lot, but subject to the set-back and other provisions of the subdivision regulations.

The word “shack” in restriction four is used before the words garage and barn, and does not convey to us the meaning of a “ramshackle” or a “dilapidated” building, but obviously is used synonymously for the word “shed,” in the sense that we speak of a “toolshack,” “cookshack” or “workshack,” which may in themselves be relatively permanent and substantial. It would be unreasonable to conclude that a subdivider would go to the time and expense of restricting property and declaring in the restrictions that a ramshackle, dilapidated, shanty-type structure or “shack” in that context was permissible.

A “basement,” as in restriction four, certainly indicates a permanent type structure, but nonetheless, its use as a residence is prohibited. A basement, as conventionally employed in home building, becomes a part of the permanent residence, and of course, is eventually used as a part of the residence. The prohibition of this paragraph in this respect is against the use of a basement alone as a residence and not against its use as a part of the ultimate residence. This conclusion is strengthened by the declaration in paragraph three that “no residence shall be occupied until completely finished on the exterior . . .”

We conclude from the set of restrictions as a whole, that the subdivider intended primarily a residential development of the property, allowing for outbuildings, well houses, garages, barns, even tents, sheds (or shacks) and trailers to be placed on the property as prospective individual lot owners might desire, but prohibiting anyone to occupy or use a residence anything other than a “completely finished (residence) on (the) exterior.” It should be noted here, that the property is not, and when subdivided in 1964, was not in the city limits. Thus a lot owner could construct a well house, barn or a basement at one time and wait months or years before constructing a residence. Even then he could not “use” as a residence these other things at any time and he could not “occupy” a residential structure until he completely finished it on the exterior. Once the residence was completely finished exteriorly (as in the case of a “shell home”), the owner could then occupy the home and finish completion of the interior notwithstanding the degree to which the interior might be incomplete.

Restrictions two and three speak of a residence being “constructed” and being “completely finished on exterior, including the application of two coats of paint.” When considered with the other provisions of the restrictions, these provisions obviously contemplate the erection of a frame-type home relatively common to rural areas of north Louisiana. We take judicial notice that there existed on the market pre-fabricated and partially prefabricated residential structures, of wood and of metal such as aluminum, at the time the restrictions were drawn. We also take note that there were then and are now, brick, stone and masonry homes available to rural lot owners, some of which may not require painting. Certainly, there is no prohibition against constructing a brick-faced residence on the property. A residence which requires painting, however, is required to have two coats of paint.

We also note that mobile homes or house trailers have been on the market for several decades, and were then and are now available to rural lot owners. By whatever name, these homes convey to reasonable minds a rather elongated structure (10 to 14 feet in width by 40 to 80 feet in length), capable of being towed on the highways, with axles and wheels attached to the frame of the structure. The very name mobile or trailer conveys this meaning. The overall appearance, as distinguished from exterior decor, of one mobile home is not grossly dissimilar to another, and in the eyes of reasonable men, they all “look alike.” We also take note that occasionally they may be immobilized on a particular location, but nonetheless, remain capable of being mobilized without too much effort and expense. They are not so much “constructed” or “assembled” even in a small part on the location the owner desires but are “connected” to sewerage and utilities. Indeed one of their greatest selling points is their complete containment, ease of connection, and mobility. They are to be distinguished from pre-fab-ricated or partially pre-fabricated homes of aluminum or similar exterior which, when fully assembled, look more similar to a residential structure of the types used in north Louisiana than mobile homes or trailers of the type then and now situated on many lots in this area. We note this distinction of the appearance because this subdivider was obviously concerned with the “outside” appearance of residences in his subdivision. In restriction number three, the subdivider stated that no residence would be occupied until it was “completely finished” as to the exterior. It is reasonable to conclude that the subdivider contemplated that a lot owner who conformed to the residential building and complete finishing requirements would not detract from his residence by erecting a shoddy-appearing well house, barn, garage or other outbuilding. We conclude therefore, that the subdivider here intended the residential structure on each lot would be something other than a self-contained mobile home or trailer house.

We construe the subdivision regulations and hold that numbers one, two and three, pertaining to set back, floor space and exterior finish requirements are building restrictions. Restriction four is a use restriction only and should not be broadly interpreted so as to extend its meaning to that of a building restriction which would require removal of a mobile home from a lot.

If this subdivider had intended to prohibit the placement of trailers (or mobile homes), temporary structures, even barns, sheds or outbuildings on the subdivided property, as well as to prohibit their “use” as a residence, the restrictions should have and could have been phrased so as to expressly and unequivocally provide.

Presented here is an example of imprecise draftsmanship and our ruling herein should serve as notice to those who would restrict either or both the structures on their property and the uses which may be made of permitted structures to be precise in drafting restrictive covenants.

In a Montana case, this restriction was under consideration:

“ ‘No structure of a temporary character, trailer, basement, tent, shack, garage, barn, or other out building shall be used on any lot at any time, as a residence, either temporarily or permanently, nor shall any residential structure be occupied for residential purposes until completely finished.’ ”

In a Texas case, this was the restriction :

“ ‘No trailer, tent, shack, stable or barn shall be placed, erected or be permitted to remain on any lot, nor shall any structure of a temporary character be used at any time as a residence.’ ”

In each case, the defendant immobilized his mobile home by removing the wheels therefrom, placed it on a concrete block foundation and was sued for being in violation of the restrictive covenant. Certainly, the restriction in the Texas case was more of a “building” restriction than the restriction in the Montana case. Texas held the mobile home not to be a trailer and allowed it to remain on the property as a residence. Montana held the mobile home to be a trailer and the restriction to be a building or structural restriction, compelling its removal. This is only one example of the variance in results in other jurisdictions. Montana cites Iowa and Ohio cases in support of its holding. Texas cites New York and Vermont cases in support of its holding. None of these cases discuss or employ principles of interpretation which are afforded by our code and jurisprudence. We choose not to resort to the holdings in„other jurisdictions, but to employ the civil law principles of interpretation which are afforded us, in making a determination of the issues presented.

We do not hold that a mobile home is a trailer under every circumstance. We hold only under the circumstances and under the subdivision regulations which we are required to interpret that the mobile homes of the defendants are trailers, against which there is no restriction as to remaining on the property but which, by restriction number four, may not be used temporarily or permanently as residences.

For the reasons expressed herein, the judgment of the lower court is therefore amended and recast to read as follows:

It is ordered, adjudged and decreed that:

(A) Defendant, Thomas A. DeVincent, and anyone acting at his direction and consent, as to Lot 8 of the Floy Lynn Estates; and
(B) Defendant, Jack D. Pate, and anyone acting at his direction and consent, as to Lot 6 of the Floy Lynn Estates, Caddo Parish, Louisiana,

are hereby permanently enjoined and prohibited from using as a residence, either temporarily or permanently, any mobile home which now is or which may be situated on the respective numbered subdivision lot to each defendant.

Costs below are assessed to defendants-appellants. Costs on appeal are assessed one-half against plaintiff-appellee and one-half against defendants-appellants.

      . Timmerman v. Gabriel, 155 Mont. 294, 470 P.2d 528 (1970).

      . Hussey v. Ray, 462 S.W.2d 45, Tex.Civ.App. (1970). See also Crawford v. Boyd, 453 S.W.2d 232, Tex.Civ.App. (1970), and contra, Bullock v. Kattner, 502 S.W.2d 828, Tex.Civ.App. (1973).


source: Caselaw Access Project

author: PRICE, Judge. DENNIS, Judge

license: Public Domain

text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Olive J. DeJEAN, Defendant-Appellee.
    No. 12711.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Robert L. LeDoux, Johnie E. Branch, Jr., Baton Rouge, Jack C. Frugé, Sr., Ville Platte, for plaintiff-appellant.
    Holloway, Baker, Culpepper & Brunson by William H. Baker, Herman A. Castete, Bobby L. Culpepper, Jonesboro, for defendant-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   PRICE, Judge.

This appeal arises out of the expropriation of property by the State of Louisiana through the Department of Highways in connection with the widening of Louisiana Highway 167 in Jackson Parish. At the time of the taking the defendant, Olive Dejean, owned a 103 acre tract of unimproved land on the west side of Highway 167 in the area where the corporate limits of the Town of Hodge connect with the north boundary of Jonesboro. The expropriation took a strip along the entire frontage of the property on Highway 167 measuring 1861.54 feet for a depth of 40.05 feet and containing 1.579 acres. In addition a drainage servitude was expropriated through defendant’s property which runs perpendicular to the highway and contains 3,724 acres.

The sum of $5,648 was deposited by the Department of Highways as the estimated just compensation for the property taken from defendant, including the drainage servitude.

The matters raised by defendant in answer to the petition for expropriation which were placed at issue on trial in the district court were the adequacy of the amount estimated as just compensation and severance damages to the remainder of defendant’s property caused by the taking.

The trial judge awarded defendant the total sum of $59,437 as just compensation for the property taken and rejected defendant’s claim for severance damages. The court found defendant entitled to the following fees for expert witnesses which were taxed as costs.

H. L. Bass $1,800.00
O. L. Jordan $1,950.00
Darrel V. Willet $2,450.00
Hab Monsur $2,225.00
Lavelle Nunn $464.20
W. Dare Gueydan $899.40

In appealing from this judgment the Department of Highways contends the trial judge committed manifest error in determining the fair market value of the property taken and in awarding an unreasonable amount for the fees of the expert witnesses engaged by defendant. By answer to the appeal defendant asks that the award for just compensation be increased to allow her the value of timber removed from the property affected by the taking and an additional sum for the fair market value of a quantity of dirt to be removed from the servitude area in the proposed construction of a drainage ditch by the Department of Highways. No issue is made on appeal in regard to the trial court’s failure to award severance damages.

Defendant also filed a motion to dismiss plaintiff’s appeal based on the following allegations:

1. That the State through the Department of Highways has failed to deposit the excess amount awarded by the trial court prior to the taking of the appeal.
2. That the petition to appeal alleges no right or authority on the part of the council who signed the petition to take or effect an appeal on behalf of the State through the Department of Highways.

A motion to dismiss for identical reasons as advanced herein was filed in State of Louisiana, through Department of Highways v. Whitman, 313 So.2d 918 (La.App. 2nd Cir. 1975), and State of Louisiana through Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App. 2nd Cir. 1975) recently decided by this court. For the reasons given in those decisions the motion to dismiss is overruled.

JUST COMPENSATION FOR PROPERTY TAKEN

Other than the issue of witness fees the sole complaint of the state is in regard to the amount awarded for the property taken in fee which is the 1.579 acre strip across the frontage of defendant’s property on Highway 167.

Testifying for the State as expert real estate appraisers were L. J. Roy and Dan Carlock, both of Baton Rouge. They initially appraised the subject strip of defendant’s property on an acreage basis in proportion to the value of the total tract of 103 acres, which is called the "average land theory.” Using this approach Roy found the subject tract taken to have a value of $3,553 and Carlock estimated the value to be $4,737. They also prepared an alternate appraisal at the instruction of the State, using a front land-rear land method and under this theory Roy found the tract to have a value of $22,643 and Carlock estimated the value at $29,455.

In developing their appraisal on the front land-rear land approach, each assumed that the highest and best use of the front portion of the property to a depth of 210 feet was for commercial development. They calculated the fair market value per front foot basis to obtain the value of the hypothetical tract and related this value to the area actually taken. Based on comparable sales in the vicinity of commercial property Roy estimated the tract to have a unit value of $1.00 per square foot if it were at grade level with the highway. As he found the property to be approximately five feet below grade, he estimated the cost of necessary fill at fifty cents per square foot and subtracted this cost from the $1.00 per square foot. Additionally, he discounted the remaining fifty cents by eight percent to compensate for the exti-mated period of time he calculated it would require to market such an extensive amount of frontage in the Jonesboro area. Accordingly he arrived at a present market value of 33.55 cents per square foot for the unit price of the 68,781.24 square feet in the 1.579 acre tract being taken in fee. Using basically the same procedure and making similar deductions for dirt fill and a time for marketing depreciating factor, Carlock arrived at a net value of forty-five cents per square foot for this property.

Testifying for defendant on the question of market value were Darrel V. Willet, Hab Monsur and Herman Bass. Willet and Monsur are real estate appraisers, brokers and developers residing in Alexandria. Bass, who possesses similar qualifications is from Jonesboro. In addition to the foregoing testimony it was stipulated that O. L. Jordan, a real estate appraiser from Shreveport, had appraised the property and would testify substantially the same as Bass.

These witnesses used the front land-rear land approach to arrive at a market value of the property taken in fee. They used basically the same comparables in their market data evaluation but varying judgment factors to relate the selected compa-rables to the subject property. The estimates of fair market value of these witnesses ranged from a low of 64.4 cents per square foot to 89 cents per square foot for the property taken in fee.

The trial judge in his written reasons for judgment found the front tract being expropriated in fee to have a fair market value of 73 cents per square foot, or total value of $49,422.00. He found the testimony of defendant’s experts to more accurately reflect the true market value of the property than the estimates of plaintiff’s appraisers, Roy and Carlock.

The principal complaint of the State on this issue of this appeal is that the trial judge gave more credence to the defendant’s appraisers opinions of the fair market value, although their testimony did not allow for the cost of a five foot fill to bring the property to road grade. The State also contends these appraisers’ opinions are not as well grounded as they did not see fit to depreciate their estimates of market value to compensate for the number of years it will require to market such an extensive number of commercial sites in this area.

We do not find the evidence to show any abuse of discretion by the trial judge in giving more weight to defendant’s appraisers in his finding of market value.

The testimony of defendant’s appraisers does reflect that a reduction in the estimate of fair market value was made because the property was below road grade. The State contends these appraisals calculated the fill at 31/2 rather than the 5 foot deemed necessary by its appraisers, and, therefore, the court should not have accepted them without further revision to compensate for this factor. As we understand the testimony of defendant’s experts, their reference to a foot fill was after compaction of the fill dirt, and that this amount of fill on the front portion with a gradual decline to the rear for drainage is sufficient to bring the subject property in line with other commercial tracts in the immediate vicinity.

The State’s appraisers’ conclusion that a reduction in present market value should be made to allow for a period of ten years to market the estimated number of commercial sites is based on their judgment of the economic vitality of the Jonesboro-Hodge community. Defendant’s appraisers were unanimous in their conclusion that there was a scarcity of commercial property available in this proximity and that the economy in the Jonesboro area was very strong. They further testified that general appreciation in property values would more than offset any consideration of a time period required to market this amount of commercial property. The record shows that defendant’s appraisers were as a whole more familiar with the economic conditions and the demand for commercial sites in the Jonesboro area and, in view of this factor, we are of the opinion their testimony is more reliable in this regard than the State’s appraisers who resided in Baton Rouge.

DEFENDANT’S CLAIM FOR VALUE OF TIMBER REMOVED

Defendant presented the testimony of Dare Gueydan, a forester, to prove the amount and market value of timber existing on the tract taken in fee and the tract on which the drainage servitude was expropriated. We find no error in the refusal of the trial judge to make a separate award for the value of timber over and above the fair market value of the property on which the timber was situated. In State of Louisiana, through Department of Highways v. Hart, 249 So.2d 310 (La.App. 1st Cir. 1971), the court discussed the consideration of growing timber as a factor in estimating just compensation as follows:

“The income producing value of growing trees, their usefulness or worth as shade trees, or their aesthetic or ornamental value, may be considered in determining the value of the land on which they are situated. If, however, trees are not nursery stock which can be dug and sold in the nature of a crop, they cannot be considered a growing crop, and no award can be made for their value separate and apart from the value of the land itself. State Through Department of Highways v. Black et al., La.App., 207 So.2d 583; State Through Department of Highways v. Matise et al., La. App., 170 So.2d 709. The timber in question had no value as a ‘special crop’ or ‘growing crop’. Its value, therefore, may be considered only in determining the value of the land according to its best and highest use.”

We find no distinction in the subject case to exempt it from the rule of law as stated above.

DEFENDANT’S CLAIM FOR MARKET VALUE OF ESTIMATED QUANTITY OF DIRT TO BE REMOVED FROM SERVITUDE AREA

Defendant contends that the award made by the trial judge as just compensation for the 3.74 acres comprising the drainage servitude expropriated of $2,015.-00, or I1/2 cents per square foot, is inadequate in view of the amount and value of dirt the Department of Highways intends to remove to construct a drainage canal. The pleadings of the Department of Highways do not reflect the nature and extent of any excavating to be performed in furtherance of the servitude of drain. The only evidence in the record relating to removal of dirt comes from defendant’s appraisers who testified they obtained such information from the Department of Highways engineers.

Monsur and Bass testified that in accord with the information obtained by them a quantity of dirt would be removed having a market value of $15,675. Defendant contends she is entitled to this amount over and above the amount awarded for the servitude right.

Assuming that defendant has established with sufficient certainty that the drainage canal is to be constructed in accord with her witnesses’ testimony, there is no evidence in the record showing what disposition is intended to be made of the dirt to be excavated. It would be supposition on our part to assume the State intends to use the dirt in the construction project or to market the dirt rather than to spread it on the property of defendant within the servitude area adjacent to the canal.

On the basis of the record as presently constituted we find no error in the trial judge’s failure to award defendant this item of damage claimed by defendant.

EXPERT WITNESS FEES

The thrust of the State’s contention on this appeal that the trial court’s assessment of expert witness fees was manifestly erroneous is the assertion that the court awarded defendant the amount she was charged by each expert without any proof being offered to support the reasonableness of the charges.

This court has considered the same issue in recent cases involving this same highway project and has reviewed the principles of law pertinent to the awarding of expert witness fees and the reasonableness thereof. State of Louisiana, through Department of Highways v. United Pentecostal Church of Hodge, supra; State of Louisiana, through Department of Highways v. Whitman, supra, and State of Louisiana, through Department of Highways v. Bounds, 319 So.2d 549 (La.App. 2nd Cir. 1975). All of the witnesses who testified in this case, except W. Dare Gueydan, testified for the land owners in the foregoing cases in which we found the awards made by the trial court excessive and reduced the fees to a reasonable sum.

We do not find any significant difference in the instant case from the prior cases mentioned to justify a departure from the amounts found to be reasonable in those cases.

We therefore fix the fees of defendant’s expert witnesses as follows:

H. L. Bass $650.00
O. L. Jordan $650.00
Darrel V. Willet $650.00
Hab Monsur $650.00
W. Dare Gueydan $275.00

The fee of Lavelle Nunn is disallowed as there is no authority for taxing the costs of photographs against the expropriating authority. State, through Department of Highways v. United Pentecostal Church of Hodge, supra.

For the foregoing reasons the judgment appealed from is amended to fix the fees of expert witnesses as set forth above, and as amended is affirmed.

DENNIS, J., concurs with written reasons.

DENNIS, Judge

(concurring) :

I agree that the trial court’s award for expert witness fees was excessive. Although I would have fixed the fees in higher amounts, I find that those set by the majority are within the ambit of this court’s discretion. Therefore, I concur in the majority opinion.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS v. MODEL DEVELOPMENT CORPORATION.
    No. 12729.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    As Modified Dec. 9, 1975.

      Robert L. Ledoux, Jack C. Fruge, Sr., Bernard Malone, Johnie E. Branch, Jr., D. Ross Banister, William W. Irwin, Jr. and Jerry F. Davis, Baton Rouge, for plaintiff-appellant.
    Holloway, Baker, Culpepper & Brunson, Jonesboro, for defendant-appellee.
    Before HALL, MARVIN and BURGESS, JJ.
   MARVIN, Judge.

The State appeals from a judgment awarding $53,544.51 for expropriation of property for highway purposes as a “quick-taking” under L.R.S. Title 48, and for which the State had deposited $9,820.00 as its estimate of just compensation. The landowner, in answer to the appeal, seeks an increase in the lower court’s award.

The property is on the east side of Highway 167 in the Village of Hodge, where Highway 147 intersects this highway on the west. The property from which the expropriation was made originally fronted almost 216 feet on the highway, having a narrower rear width, with a depth averaging approximately 350 feet. It contained 48,432 square feet. A strip across the front of the property averaging 18 feet in depth and containing less than Jioth an acre (3,943.6 square feet) was taken. The taking resulted in the highway right of way being five to eight feet from the front of a beer store situated on the remaining property.

The beer store is a prefabricated metal building 56 feet wide, containing approximately 1,100 square feet. There is a paved area surrounding the building, approximately 2,400 square feet of which was included in the strip expropriated.

Five appraisers testified, three of which used market data or comparable sales approach in determining the value of the property. Two of the landowner’s three appraisal witnesses used the income approach as a basis for their estimate of just compensation. All three of the landowner’s experts relied heavily on the fact that the building on the remaining property was a beer store, “unique” in its operation, according to these witnesses, because of the lack of other available property for such a business and because of a village ordinance which limits to three the number of retail beer permits in the town. In its Reasons for Judgment, the trial court emphasized “uniqueness in location and utility,” among other reasons for the award made, concluding that the highest and best use should be “that of a beer store because of its location and the only place that could obtain a license at the time of the taking.” The court below then adopted the income approach in determining the award, stating that the comparable sales or market approach was not considered appropriate because the state appraisers using this approach did not give the property any additional value for the “uniqueness in location and utility.”

In Rapides Parish School Board v. Nassif, 232 La. 218, 94 So.2d 40 (1957), the landowner had the sole and exclusive right to sell liquor in that area of Alexandria in which the property to be expropriated was located. This right arose because in that area the landowner’s liquor store was legal as a nonconforming use (and the only nonconforming use liquor store) which preexisted an ordinance zoning that area residential. It was contended by the landowner’s counsel that these factors warranted evaluation of the property, “ . . . (a) on the basis of rental income or return, and (b) by reason of location, rental income, business income and exclusive right to sell liquor in the immediate vicinity.” The Supreme Court answered in this way:

“The contention of counsel for the defendant that it was error for the trial judge, in making the award, not to consider . . . the value of the permit to sell liquor in this particular residential zone without competition for an area of three and a half blocks, is without merit, for such claims are considered as dam-num absque injuria * * *
“As in the case of a taking the measure of compensation is the value of the property taken, so in the case of damages the measure of compensation in the diminution in the value of the property. . . . i. e., to its value for rental and sale.” Nassif, supra, 94 So.2d pages 43-44.

In Nassif, the entirety of the property was taken — a complete destruction of the business — while in this case, we are concerned with only a part of the property and no destruction of the business.

We are not at this time called upon to pass on the village ordinance under which the contention is made to support the “uniqueness” factor because it restricts the number of beer'permits in any given area. We have serious doubts, however, that the legislature has given this authority either to municipalities or to the Alcoholic Beverage Commissioner of the Department of Public Safety whose responsibility it is to issue and supervise statewide the operation of such permits.

Additionally, we note the almost complete absence of factual testimony upon which the rental income approach stands. A former manager of the beer store .testified as to the gross sales of the business. On direct examination, he stated “ . . . averaged close to'$300,000.00 a year ... I didn’t keep books or anything, I just managed it. We had a CPA keep books, and I didn’t keep books, but I went by the occupational license; that’s the way I could tell. Of course I didn’t add it. I had a deposit book, I could add it up but I didn’t take time to add it up. I didn’t have time, put it that way.”

In Dakin and Klein, Eminent Domain in Louisiana, Bobbs-Merrill Company, Inc. 1970, Chapter IV, Section 6(C), at page 222, the prerequisites for capitalization of rental income are set forth.

“Prior to the use of a mathematical capitalization technique, the appraiser must prepare several preliminary estimates: (1) He must estimate the amount of the expected future gross income from the property. (2) He must estimate the possible rent loss due to vacancies and bad debts. (3) He must estimate the amount of the expected operating expenses and capital charges that the property will bear during the time that the gross income is being received. (4) By deducting the expenses and charges from the gross income, he will arrive at an estimate of the net income. (5) He must estimate the probable duration of this net-income stream. This estimate may be conditioned by the economic life of the building or by a consideration of the time that typical investors would tend to hold the property before offering it for resale. (6) He must select the capitalization or discount rate to be used for the property under appraisal. (7) He must choose a capitalization technique to process the net income in accordance with the facts and assumptions that the particular property presents.” Footnote omitted.

From the testimony of the former manager, which was assumed to be correct by the landowner’s appraisers using the rental income approach, these appraisers formed their opinion under this approach. From a publication furnished by the Commercial Investment Division of the National Institute of Real Estate Brokers, the appraisers then seized on language which, as a general rule, fixes economic rent at a percentage of the gross sales of a given type business. Using charts from this publication, the appraiser computed $1,500.00 a month as the indicated monthly “economic rent.” He capitalized this by another chart to reach the value of the land and building of this particular property at $150,000.00. We do not find in the evidence, however, that this building was leased to anyone for any price. The former manager of the beer store whose testimony is partially quoted above, further testified that he had obtained his own beer permit one or two months before the trial of this case and that he was paying $300.00 a month rent for the location in which he operated in Hodge. The actual rent paid, if any, and a reasonable factual basis on which the rental income approach to valuation, is not shown in the record.

In Nassif, supra, the court noted that the other approaches are material to the extent that they “assist” in determining value. The Supreme Court used similar language in State v. Crow, 286 So.2d 353, 356-357, (La.1973), wherein the court noted that the comparable sales approach “ . . . in most cases ... is most likely to produce accurate results . . . ”, but that the courts are not limited to this approach, especially where “income studies provide a substantial aid in evaluation.” Emphasis supplied. In Crow, supra, the Supreme Court quoted with approval language of the First Circuit that the rental income approach may be resorted to for the purpose of “supplementing” the appraisal.

In State, Dept. of Highways v. Nisbet Properties, Inc., 309 So.2d 398, 401 (La.App. 2d Cir. 1975), we quoted recent jurisprudential pronouncements of the Supreme Court on the issue of just compensation recognizing:

“ ‘ . . . Whatever approach or formula of valuation used, it should take into consideration “all factors which lead to a replacement of the loss caused by the taking. This means substantially that the owner is placed in as good a position pecuniarily as he would have been had his property not been taken.” ’ ”

In the instant case then we hold that the lower court’s reliance on the “uniqueness in location and utility” of the property expropriated was misplaced, factually and legally. The trial court was in error when it decided not to consider comparable sales appropriate to determining just compensation on the grounds that this method did not take into consideration the “uniqueness” factor. In making the determination of just compensation, comparable sales should not be the exclusive method, but should be considered, where available, with other approaches which may be factually appropriate where these other approaches substantially aid, assist or supplement the determination of just compensation.

For the reasons above and hereafter stated, we find erroneous the lower court’s award of $25,751.71 for the 3,943 square feet of property taken, more than $6.50 per square foot.

The date of the taking herein was March 29, 1974. Two appraisers for the State (hereafter A and B), and one for the landowner (hereafter C), used sales which in varying degree, they considered comparable in proximity of time and location, as a basis for their ultimate appraisal. These sales are as indicated:

APPRAISER DATE OF SALE SQUARE FOOT VALUE ASSIGNED
9-2-66 $1.00 o
9-16-69 .97 co <
2-22-71 1.08 o
5-7-71 .87 m <
3-14-72 .95 o co <

Judgment factors caused these appraisers to adjust the market data or comparables in making an evaluation of the property taken. The landowner’s appraiser (C) emphasized and strongly relied on the “uniqueness” factor in making his adjustments while the State’s appraisers treated the property as retail commercial. Their ultimate appraisals were as follows :

APPRAISER SQUARE FOOT VALUE
$1.15 <
1.15 ca
3.20 o

We observe, but do not find controlling, that in recent expropriation cases from Jonesboro-Hodge befqre this court where property on the same highway was taken at about the same time as the taking here, the award per square foot, made or approved by this court, was respectively as follows:

2ND CIRCUIT DOCKET NO. OR CITATION AND NAME AWARD PER LOCATION SQUARE FOOT
12,711 DeJean Between Jonesboro-Hodge $ .73
12,699 Bounds Jonesboro $1.25
313 So.2d 886 Church property Hodge $1.27
313 So.2d 918 Whitman Jonesboro Corner Lot $1.75

, Considering the location of the property across from the highway intersection and its proximity to the paper mill in Hodge with its many employees, we conclude a fair and just award for the property taken would be $1.30 per square foot. The property behind the beer store is of lower grade than the front 70 feet of the property and is traversed by a ditch. The trial court, in making calculations of value, determined for this reason that the rear portion of the property was worth $2,000.00 per acre, but allowed $10,000.00 for the costs of culverts and fill dirt to reestablish the front use of the property. In State, Dept. of Highways v. Hoyt, 284 So.2d 763 (La.1973); State, Dept. of Highways v. Spera, 272 So.2d 765 (La.App. 3d Cir. 1972), certiorari denied, 272 So.2d 695 (La. Sup.Ct.1973); and State, Dept. of Highways v. Smith, 272 So.2d 746 (La.App. 3d Cir. 1972), certiorari denied, 272 So. 2d 696 (La.Sup.Ct.1973), there was employed the front portion-rear portion of determining value where a strip of property is taken. The rule of thumb under this technique is to assign four times the value to the front one-fourth of the tract as is assigned to the rearmost one-fourth of the property. If the rearmost portion of the instant property, brought to an improved condition by use of fill dirt and culverts, is worth $12,000.00 per acre, approximately 25 cents per square foot, the front portion improved is worth $1.00 or more per square foot. These factors support our determination of just compensation for the property taken.

The trial court awarded a total of $2,482.00 for specific improvements taken, concrete paving, chain link fencing, guard rails and a sign. The trial court’s total, however, is less than the highest amount estimated by one of the State’s appraisers. We shall allow the highest total amount used by the State’s appraiser, or $2,809.00.

SEVERANCE DAMAGE

The trial court found no severance damage to the real estate by reason of the taking, but that there was severance damage to the building, principally because the immediate parking area in front of the building (56 x 18 feet) had been taken. This is slightly less than the total 2,400 square feet of paved area which was taken. Estimates of the cost to reestablish parking areas to the sides and the rear of the building and improve the rear entrance to the building ranged from a low of $4,455.-00 by one of the State’s appraisers (which estimate included an “extra” $1,000.00 for contingencies) to a high of $71,000.00 by one of the landowner’s appraisers. This was referred to by the appraisers as “cost to cure,” and which included some depreciation in the value of the building because the highway right of way was moved almost 18 feet closer to the building by reason of the taking. The trial court found “the improvements have been damaged in the amount of sixty percent . . .” (of $25,518.00) or $15,310.80, which was awarded as severance damages. The-lower court reached this figure by adding together all of the improvements on the property, total paved area, total linear feet of guard rails and a sign, and deducting from this sum ($28,800.00), the estimated value of improvements taken. In assigning values to the improvements on the property, the lower court assigned a depreciated value to the buiding of $21,540.00. Once the parking area has been reestablished and the rear entrance to the building made more accessible, the building will have front and rear entrances, an equal amount of parking spaces as before, but without an immediate front parking area as before, of approximately 1,100 square feet. With these factors in mind, we conclude that a just and fair award for severance damage, including the cost of reestablishing the front use tract and parking and improving the rear entrance to the building would be a total of $17,000.00, apportioned $12,544.00 as severance damages to the building (slightly less than 60 percent of its depreciated value assigned by the trial court) and $4,455.-00, which includes the contingency “extra” above mentioned, for the cost to cure.

EXPERT WITNESS FEES

The lower court found “expert witness fees for the defendant are fixed in the amount as testified to by them in court for their appraisal and preparation for trial . . .”, which were fixed in the judgment below as follows:

H. L. Bass . $2,100.00
0. L. Jordan . $2,150.00
Hab Monsur. $2,225.00
Darrell Willett. $2,450.00
A. Ray Bond . $ 300.00
Lavelle Nunn . $ 400.84

In recent expropriation cases involving the same highway project and most of the same witnesses, this court found similar fees to be excessive. See State of Louisiana, Through Department of Highways v. Malcolm D. Whitman, 313 So.2d 918 (La.App. 2d Cir. 1975); State of Louisiana, Through Department of Highways v. United Pentecostal Church of Hodge, Louisiana, 313 So.2d 886 (La.App. 2d Cir. 1975). In line with these cases and for the same reasons expressed therein, we disallow the fees for Lavelle Nunn and A. Ray Bond and fix the expert witnesses’ fees as follows :

Habeeb Monsour . $650.00
H. L. Bass . $650.00
Darrel V. Wlllet . $650.00
0. L. Jordan . $650.00

See also State of Louisiana, Dept. of Highways v. Olive J. DeJean, 322 So.2d 265 (La.App. 2d Cir. 1975), rendered this date.

MOTION TO DISMISS APPEAL

Defendant filed a motion to dismiss the appeal on the grounds that the Highway Department failed to deposit the excess amount awarded by the trial court prior to taking the appeal and that the attorney for the Highway Department was not authorized to take and perfect an appeal on behalf of the State. A similar motion was overruled in Whitman, supra, and United Pentecostal Church, supra. For the reasons expressed in those cases, the motion to dismiss the appeal is denied.

For the reasons assigned, the judgment of the trial court is amended to reduce the total amount awarded to a total of $24,935.68, and to fix expert witness fees as above set forth.

Amended, and as amended, affirmed.

      . This approach is sometimes called the capitalization of income method or the rental income method. See Dakin and Klein, Eminent Domain in Louisiana, Bobbs-Merrill Co., Inc., 1970, Chapter IV, Section 6.

       This property was adjusted downward because it was below the grade of other property.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Margaret Hammons COBLENTZ, Defendant-Appellee.
    No. 12737.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Robert L. LeDoux, Bernard Malone, Jr., D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, John F. Sorli, Johnie E. Branch, Jr., Baton Rouge, Jack C. Frugé, Sr., Ville Platte, for plaintiff-appellant.
    Holloway, Baker, Culpepper & Brunson by Herman Castete, Jonesboro, for defendant-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   PRICE, Judge.

This is an appeal by the State of Louisiana, through the Department of Highways from the judgments rendered by the trial court increasing the amounts deposited as just compensation due the owners of three adjacent properties from which the State expropriated additional right-of-way in connection with the widening of State Route No. 4 in Jackson Parish. The defendants have answered the appeal, asking for an increase in the amount awarded as-just compensation and for damages for an alleged frivolous appeal. Although the cases were not formally consolidated for trial they were in fact tried together as the same appraisers for both the State and defendants were called to testify in all three cases.

For convenience we shall review the issues of all three cases in this opinion.

In the suit styled State of Louisiana, through the Department of Highways v. Margaret Hammons Coblentz, No. 12,737 on the docket of this court, the State expropriated 12,546 square feet from a residential tract of 2.8 acres belonging to Margaret Coblentz fronting on the southeast side of State Route 4 approximately two miles southwest of Jonesboro. In the suit styled State of Louisiana, through Department of Highways v. Hammons et ux, La.App., 322 So.2d 280, the State expropriated 9,100 square feet from the residential tract owned by Hammons containing 2.6 acres and lying adjacent to the south line of the Coblentz tract.

In State of Louisiana, through Department of Highways v. Hammons et al., La. App., 322 So.2d 279, the State expropriated 14,670 square feet from a 1.26 acre tract owned jointly by Reubin Hammons and his sister, Margaret Coblentz. This tract joins the Coblentz residence on the northeast side and is an undeveloped plot of ground.

The principal issue presented for resolution on the appeal is the correctness of the trial court’s award for the value of the land taken and whether the expert witness fees as fixed by the trial court were excessive. No severance damages were claimed by the defendant. The damages claimed by defendants for a frivolous appeal are without merit in view of our modification of the judgment to reduce expert witnesses fees for reasons given in the following portions of this opinion.

Glen N. Cope and Maurice J. Chappuis, both real estate appraisers of Lafayette, made the necessary appraisal of just compensation for the State in accord with the expropriation statute and testified on trial of the merits as to the basis used in arriving at their estimate of market value. They found the three tracts to have a highest and best usé as residential property. The Hammons and Coblentz tracts are presently being used for this purpose and have residences constructed thereon. The lots are substantially rectangular in shape with considerable depth and a reasonable frontage on the roadway. The homes are situated over 125 feet from the right-of-way and the taking of the narrow strip across the frontage of each tract did not affect the value of the remainder.

Using the market date and comparison approach, Cope and Chappuis found the fair market value of the three tracts on the date of taking to be as follows:

COBLENTZ TRACT:

(Using $2,537 per acre, or 5 cents per square foot for 12,546 feet taken) Estimated value — $520. $70 for gravel driveway taken.

HAMMONS TRACT:

(Using $2,600 per acre, or 5.7 cents per square foot for 9,100 feet taken) Estimated value — $286, together with $70 for gravel driveway.

JOINTLY OWNED TRACT:

(Using $1,600 an acre, or 2.9 cents per square foot for 14,670 feet taken) Estimated value — $416.

The primary witnesses relied on by the landowners were H. L. Bass, a real estate appraiser of Jonesboro, and O. L. Jordan, a real estate appraiser of Shreveport. These two appraisers used the same general approach as the State experts but gave special consideration to the fact that a portion of the front lawn of the Coblentz and Hammons tracts was being taken which had a higher value than the rear portion of these properties because of trees, shrubs and lawn improvements. Bass found the land taken from the Coblentz tract to have a square foot value of 35 cents, or a total of $3,354.12. The part taken of the Ham-mons tract he valued at 40 cents per square foot for $3,640. The undeveloped jointly-owned tract he found to have a value of 20 cents per square foot and a total value of the part taken of $2,934.

Jordan first determined the raw land value for residential property in the vicinity of the subject tracts. On the market data-comparison method he found this to be 20 cents per square foot. He then made adjustments for clearing, topography, sodding an4 landscaping to arrive at his estimate of market value of the two subject properties which had been developed as homesites. He found the part of the Cob-lentz property taken to have a value of $2,718 for land and $305 for accessory improvements, or a total of $3,256. The value of the property taken from the Ham-mons tract was estimated to be $2,275 for land and $960 for driveway improvements. The portion taken of the unimproved tract owned joinly by Hammons and Coblentz was valued at the base unit price of 20 cents per square foot for a total of $2,950.

In addition to these appraisers the landowner called John R. Walker, a real estate appraiser from Shreveport, who was engaged to appraise the property the day before trial began. Using the market data procured by Bass and Jordan, he confirmed the method utilized by these appraisers in evaluating the two tracts which had been developed for residential purposes. His estimates of value were substantially in line with those of Jordan.

On this appeal .the State contends the landowners’ appraisers selected and utilized market data which was not as truly comparable as those sales relied on by Cope and Chappuis, and therefore the trial judge’s award which obviously relied on the landowners’ experts’ opinions should be reduced.

From our examination of the record it appears that the transactions selected by the landowners’ appraisers were sufficiently analogous to the subject properties to justify their reliance on them as comparable sales to determine market value. Their testimony reflects that proper adjustment was made for any superior advantages of the comparables used to the property being appraised. The sales mostly relied on were of residential properties in the Forest Acres Subdivision, which is closer to the corporate limits of Jonesboro than the properties involved. Although that subdivision has building restrictions, available sewerage and fire protection from the city which the subject properties do not have, Bass and Jordan testified there has been a greater demand for the somewhat larger suburban tracts on improved roads in the outlying areas near Jonesboro which are not restricted and permit a more versatile usage by the owner. Jordan testified he examined the entire area of Highway 4 between the subject properties and Jonesboro to determine if the absence of building restrictions had resulted in any undesirable uses which would have affected property values in this vicinity and found no adverse conditions.

The court fixed the value of the part of the Coblentz tract taken at 25 cents a square foot for a total of $3,136. For the part taken of the Hammons tract the court awarded 30 cents per square foot for a total of $2,730, together with $150 for driveway improvements. An award of 20 cents per square foot was made for the taking from the tract owned jointly by Hammons and Coblentz for a total of $2,934.

From our review of the record we find this factual finding of the trial judge is reasonably supported by the evidence and should not be disturbed in the absence of manifest error. See State, through Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972).

EXPERT WITNESS FEES

In his reasons for judgment the trial judge ordered the expert witness fees of the landowners’ witnesses fixed in accord with their bill for services to the landowner and taxed them as costs against the State. On this appeal the State contends that the awards made are excessive and should be reduced.

The trial court awarded the following fees in connection with the Coblentz and Hammons residential tracts:

O. L. Jordan $950
H. L. Bass $800
John Walker $575
Lavelle Nunn $199.25
Richard Crawford $183.33

In the expropriation of the undeveloped tract owned jointly the fees were fixed as follows:

O. L. Jordan $800
H. L. Bass $650
John Walker $575
Lavelle Nunn $170.70
Richard Crawford $183.34

In the recent cases of State, through Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App. 2nd Cir. 1975); State, through Department of Highways v. Whitman, 313 So.2d 918 (La.App. 2nd Cir. 1975), and State, through Department of Highways v. Bounds, 319 So.2d 549, (La.App. 2nd Cir. 1975) the court considered the question of expert witnesses fees involving most of the witnesses testifying in the instant in similar expropriation proceedings in Jackson Parish. In those decisions we found it necessary to reduce the fees awarded based on sufficient evidence in the record to justify the reasonableness of the amount fixed. The record in these cases would indicate the fees involved herein are excessive in accord with the reasons advanced in the above cited cases. We therefore fix the fees of defendant’s expert witnesses in each of the cases being appealed as follows :

O. L. Jordan $650
H. L. Bass $650
John Walker $450
Richard Crawford $125

The fee of Lavelle Nunn is disallowed as there is no authority for taxing the costs of photographs against the expropriating authority. State, through Department of Highways v. United Pentecostal Church of Hodge, supra.

For the foregoing reasons the judgment appealed from is amended to fix the fees of the expert witnesses as set forth above, and as amended is affirmed.

DENNIS, J., concurs and assigns reasons.

DENNIS, Judge

(concurring) :

I concur for the reasons assigned in State of Louisiana, Department of Highways v. DeJean, La.App., 322 So.2d 265, decided this day.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Reubin HAMMONS et al., Defendants-Appellees.
    No. 12738.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Robert L. LeDoux, Bernard Malone, Jr., D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, John F. Sorli, Johnie E. Branch, Jr., Baton Rouge, Jack C. Frugé, Sr., Ville Platte, for plaintiff-appellant.
    Holloway, Baker, Culpepper & Brunson by Herman Castete, Jonesboro, for defendants-appellees.
    Before PRICE, DENNIS and MARVIN, JJ.
   PRICE, Judge.

For the reasons assigned in the opinion of this Court this day handed down in State of Louisiana, through Department of Highways v. Coblentz, reported in 322 So. 2d 276, the judgment appealed from in this case is amended to reduce the fees awarded to the expert witnesses as follows:

O. L. Jordan $650
H. L. Bass $650
John Walker $450
Richard Crawford $125

The fee of Lavelle Nunn is disallowed as there is no authority for taxing the costs of photographs against the expropriating authority. State, through Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App. 2nd Cir. 1975).

The judgment as amended is affirmed.

DENNIS, J., concurs and assigns reasons.

DENNIS, Judge

(concurring):

I concur for the reasons assigned in State of Louisiana, Department of Highways v. DeJean, La.App., 322 So.2d 265, decided this day.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Reubin HAMMONS et ux., Defendants-Appellees.
    No. 12739.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Robert L. LeDoux, Bernard Malone, Jr., D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, John F. Sorli, Johnie E. Branch, Jr., Baton Rouge, Jack C. Frugé, Sr., Ville Platte, for plaintiff-appellant.
    Holloway, Baker, Culpepper & Brunson by Herman Castete, Jonesboro, for defendants-appellees.
    Before PRICE, DENNIS and MARVIN, JJ.
   PRICE, Judge.

For the reasons assigned in the opinion of this Court this day handed down in State of Louisiana, through Department of Highways v. Coblents, reported in 322 So.2d 276, the judgment appealed from in this case is amended to reduce the fees awarded to the expert witnesses as follows:

O. L. Jordan O in vo 69-
H. L. Bass O m vo 69-
John Walker O m 69-
Richard Crawford LO cm < 69-

The fee of Lavelle Nunn is disallowed as there is no authority for taxing the costs of photographs against the expropriating authority. State, through Department of Highways v. United, Pentecostal Church of Hodge, 313 So.2d 886 (La.App. 2nd Cir. 1975).

The judgment as amended is affirmed.

DENNIS, J., concurs and assigns reasons.

DENNIS, Judge

(concurring) :

I concur for the reasons assigned in State of Louisiana, Department of Highways v. DeJean, La.App., 322 So.2d 265, decided this day.


text:
    Prentis JACKSON and William Guilliott (Gills) v. TOWN OF LOGANSPORT.
    No. 12714.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      W. Charles Brown, Mansfield, for defendant-appellant.
    Gamble & Sledge by Jack R. Gamble, Jr., Claude R. Sledge, Mansfield, for plaintiffs-appellees.
    Before PRICE, DENNIS and MARVIN, JJ.
   MARVIN, Judge.

The Town appeals from a preliminary injunction granted plaintiffs which prohibits the Town from constructing a street across plaintiffs’ property. The construction was ordered by the Town in October, 1974. The work began shortly thereafter, but stopped when plaintiffs barricaded their property after dirt was placed thereon in April, 1975, followed by plaintiffs bringing the action for an injunction. The Town contends that (1) it acquired a public servitude under the law, including, but not limited to L.R.S. 48:491, and (2) the trial court erred in not requiring security for the preliminary injunction. We affirm.

The methods by which a servitude for a public street may be established are the express acquisition by conventional means; expropriation by the public body; the legal servitude imposed on riparian landowners by La.C.C. Art. 665; the ten-year possession and use of a road by the public after a police jury has declared the road to be a public highway under La.C.C. Art. 765, and the principle or doctrine which has come to be known as informal dedication.

The riparian servitude provision is obviously inapplicable here. The Article 765 servitude is also inapplicable because this article has been held not to apply within corporate limits of municipalities. See Bomar v. City of Baton Rouge, 162 La. 342, 110 So. 497 (1926). The record is also void of any declaration by the police jury. There is also no contention made of any formal dedication or disposition by the landowners to establish a public street. If the Town has the right to construct a street across plaintiffs’ property, it must be founded upon the doctrine of informal dedication.

The jurisprudence divides informal dedication into two categories: implied dedication and tacit dedication. Implied dedication, non-statutory in nature, requires both the landowner’s intent to create a public thoroughfare and the public’s acceptance of the landowner’s offer. Town of Eunice v. Childs, 205 So.2d 897 (La.App.3d Cir. 1968) writ refused 251 La. 937, 207 So.2d 540 (1968). Such intention to dedicate may be manifested by the actions of the landowner; Wyatt v. Hagler, 238 La. 234, 114 So.2d 876 (1959); while the acceptance by the public may be evidenced by public use. See 2 Yiannopoulos, Louisiana Civil Law Treatise, § 35, page 109.

Tacit dedication, on the other hand, is founded upon statute and its existence is determined by the application of L.R.S. 48:491, which reads in part as follows:

“All roads . . . which have been or are hereafter kept up, maintained or worked for a period of three years by authority ... of any municipal governing authority in its municipality shall be public roads or streets . . .”

The “street” in question, allegedly connected two existing thoroughfares about one block apart. The record is replete with circumstances indicating plaintiffs’ desire not to create a public street on their lands. Approximately fifteen years ago, Prentis Jackson erected two fence posts to stop vehicles from entering or crossing his property. When plaintiffs became aware of the road construction in question, they complained to municipal authorities and erected barricades across their property. There was no implied dedication on the part of plaintiffs, Jackson and Guilliott.

The Town contends that a tacit dedication of a servitude by the Town’s having “kept up, maintained or worked for a period of three years” the “street” in question. According to the Town’s witnesses, prior to the enjoined road construction, the area in question was considered to be a “grass” street. Parts of the alleged street away from plaintiffs’ property were mowed by town employees once a year, although no grass was ever cut on plaintiffs’ property. There is also testimony by a member of the town’s maintenance crew, that two or three loads of dirt had been dumped upon the alleged street during a thirteen year period before the litigation arose, but not necessarily on plaintiffs’ property.

The jurisprudence construing R.S. 48:491 has consistently held that an occasional “brushing up” or token maintenance of private property does not establish a tacit dedication. Bordelon v. Heard, 33 So.2d 88 (La.App. 1st Cir. 1947); Porter v. Huckabay, 50 So.2d 684 (La.App.2d Cir. 1951); Chargois v. St. Julien, 280 So.2d 847 (La.App.3d Cir. 1973).

The legislature, in enacting R.S. 48:491, and the cases interpreting the statute, contemplate more than an annual clipping of grass, accompanied every fourth year by the random deposit of a load of dirt, to establish a tacit dedication in favor of the public. Even if the Town’s evidence is taken as true, this is at best token maintenance, under which no servitude is acquired.

The Town further contends the trial court erred in not requiring security for the issuance of the preliminary injunction. Plaintiffs successfully sought a temporary restraining order, posting bond as required by La.C.C.P. Art. 3610. We agree with the trial court’s granting of the injunction, subject however to the requirement of this Article that security be furnished. We remand with directions that security be furnished within a delay and in an amount to be determined by the lower court.

Remanded with directions at appellant’s cost.


author: SARTAIN, Judge.

text:
    Leaster P. DOTSON, tutrix of her minor Child, Isaac Kinchen, Jr., Plaintiff-Appellee, v. The CONTINENTAL INSURANCE CO., Defendant-Appellant.
    No. 10425.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 30, 1976.
    John B. Noland (Breazeale, Sachse & Wilson), Baton Rouge, for defendant-appellant.
    James R. Coxe, III, Baton Rouge, for plaintiff-appellee.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   SARTAIN, Judge.

This action was instituted by Mrs. Leas-ter P. Dotson as the natural tutrix of her minor son, Isaac Kinchen, Jr., who sustained injuries as a result of a dog-bite incident which occurred at the residence of Mr. and Mrs. J. R. Williams, owners of the dog. Judgment was rendered in the trial court in her favor against the Continental Insurance Company (Continental), the public liability insurer of the Williams, in the amount of $750.00 for personal injuries and $23.30 for medical expenses, from which judgment Continental has appealed. We reverse.

The incident itself, the ownership of the dog, and the resulting injuries are not contested. However, Continental strenuously urges erroneous factual findings and misapplication of law by the trier of fact.

Mr. and Mrs. Williams owned two dogs, one of which had four puppies. The dogs were kept in their back yard. The yard is completely enclosed. There is a cyclone fence on three sides. On the fourth side is the house, an enclosed breezeway and garage. The breezeway is referred to by the witnesses as the “patio”. The only access to the rear yard is either through the breezeway or the living quarters. The breezeway has two doors, one leading to the front yard and another opening into the back yard. There is a utility servitude paralleling one side of the fence.

Isaac Kinchen, who was nine years of age at the time of the incident, testified that he accompanied Michael Rutland to the Williams home to obtain a puppy for Rutland. He stated that Kevin Williams, the assured’s son, was inside the yard and that he and Rutland were on the servitude outside the fence. When it was apparent to him that Kevin Williams could not get the puppy over the fence, he stated that Kevin Williams told him to come into the yard to get the puppy. Kinchen stated he asked young Rutland to accompany him but the latter refused. He claims that he then went around to the front of the house, through both doors of the breezeway, and entered the back yard. As he approached Kevin Williams one of the older dogs bit him. He denies ever seeing Mrs. Williams that day.

Kevin Williams testified that Isaac Kinchen and Michael Rutland had come to his house to get a puppy for Rut-land when Kinchen asked if he could have one also. Kevin Williams then told Kinchen he would have to ask Mrs. Williams. This conversation took place in the front yard of the Williams home. Kevin then went to the back yard and was going to hand Michael Rutland his puppy over the fence. Young Williams specifically denied that he told Isaac Kinchen to come into the dog yard. The first knowledge young Williams had that Isaac Kinchen was, in fact, in the yard was when he heard him scream. He (Williams) immediately turned the corner of the garage to see what had happened.

Mrs. Williams testified that she had observed these young boys in her front yard before the incident had occurred and had called to her son to come into the house to get ready for church. She thought that he had done so. At this point in the sequence of events she stated that Isaac Kinchen asked her if he could have a puppy also. In response to this request she stated: “Now, wait here, let me get Kevin to go with you in the back yard.” The conversation between Mrs. Williams and Isaac Kinchen occurred just inside the front door of the breezeway. She then went into the kitchen to get her son and before she could ascertain that he was already outside she “heard the commotion” and “knew then that Kevin had not come in the house” and that Isaac Kinchen had gone into the back yard through the other door.

Michael Rutland was not called to testify by either party.

Continental contends that the trial judge erred in his factual conclusion that Isaac Kinchen was “legally on the premises”. Continental further contends that the trial judge erred as a matter of law in applying the rule recently announced in Holland v. Buckley, La., 305 So.2d 113 (1974), to find liability under the circumstances of this case. The thrust of this latter argument is to the effect that young Isaac Kinchen created the risk of being bitten when he disobeyed Mrs. Williams and went into the back yard unattended by Kevin Williams.

Plaintiff argues that the trial judge resolved the question of Isaac Kinchen’s invitation to go into the back yard in favor of plaintiff and that this determination of fact is not manifestly erroneous. Plaintiff argues that inasmuch as Isaac Kinchen was only several feet away from Kevin Williams it supports the conclusion that Kinchen observed Williams in the yard and saw no reason for him (Kinchen) to wait for Williams to accompany him to the back yard. He concludes by arguing that the incident would have occurred nonetheless and states:

“This case is simply an example of an unexpected unprovoked attack by animals whose actions are simply unpredicted and at whom the strict liability of Holland, v. Buckley was directed.”

The trial judge in his oral reasons for judgment, rendered at the conclusion of the trial, stated:

“Well, it’s unfortunate that this incident had to occur, however, it has to be noted and I think . . . Isaac wasn’t teasing the dog that day, the day it bit him, the day the dogs bit him he wasn’t teasing them, so, you have got a situation where this boy was invited on the premises; he’s not a stranger; he’s played with the kid (Williams) before. So you have a boy that’s legally on the premises and then the dog bites him and, I think under the Holland case, I think the Defendant is liable for the damages done to Isaac.
“Now, the doors were not locked, the patio doors were not locked, neither was the outside fence door locked. That testimony was elicited by, I think, Kevin himself when he testified to that. The doors were not locked, which meant that Isaac could go into where the dogs were and it was possible for him to be there.”

In Holland v. Buckley, supra, the Supreme Court of this state, overruling a long line of previous cases, held that C.C. Art. 2321 imposed strict liability upon the owner or keeper of animals that do harm to others.

Justice Tate, speaking for the majority, stated: (305 So.2d 113, 114)

“The issue before us is: When an innocent bystander is bitten by a dog, who shall bear the damages so caused? The bystander passing on the street, who did not provoke the attack? Or the owner of the dog, who created the risk by letting the dog go loose ?”

The court therein concluded: (305 So.2d 113, 119)

“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.”
# * * # * *
“The underlying reason for the owner’s liability is that, as between him who created the risk of harm and the innocent victim thereby injured, the risk-creator should bear the loss. He maintains the animal for his own use or pleasure.”

Thus when a plaintiff proves that he has been bitten by a dog of another, the burden shifts to the owner of the animal to exculpate himself by showing (1) that the harm was caused by the fault of the victim; (2) by the fault of a third person for whom the owner is not responsible, or (3) by a fortuitous event.

With respect to the facts of this case we are compelled to reverse the trial judge in his conclusion that young Isaac Kinchen was “legally on the premises”. Young Kinchen was “legally” on the patio but he was given specific instructions to wait there until he could be accompanied by the owner’s young son. This lad is nine years of age and has reached the age of reason and should have remained on the patio as he was instructed. It can not be held that he had permission to leave or enter the back yard at will because the evidence is clear, even by Kinchen’s own admission, that he had not played in that back yard for several years. The last time was at least one year before the Williams-es obtained the dogs. This is not a situation where young children in a neighborhood played in one another’s back yards at will. Young Kinchen was unknown to Mrs. Williams and there is no evidence in this record that any children were permitted to play in the yard where the dogs were housed. It is for this reason that we can not agree with the statement of the trial judge that young Kinchen “is not a stranger; he’s played with the kid before.”

The last paragraph of the trial judge’s oral reasons for judgment, quoted above, seems to place an unreasonable requirement on the dog owner to keep the doors to his residence locked. We do not believe that Holland v. Btickley, supra, imposes' any such requirement to keep all doors locked to prevent the possibility that young Kinchen would proceed into the Williams’ back yard contrary to instructions. The one gate to the cyclone fence was locked. The doors of the breezeway were not.

Thus, simply put, the question for resolution here is whether the owner of a dog is liable when that owner keeps his dogs in an enclosed yard where the only access to that yard is through a portion of the premises and where, uninvited, a young nine-year-old boy proceeds to go into the yard without waiting for the owners’ son to accompany him as he was directed.

We think this question should be resolved in the negative and that the incident in question was, in fact, caused by the fault of young Kinchen in not following the instructions of Mrs. Williams.

In Holland v. Buckley, supra, the court further stated: (305 So.2d 113, 119)

“Article 2321 places the master of the animal under a legal obligation to keep his animal under such guard that it does no damage to others. A fault in this obligation to control the animal and guard others from harm by it entitles the victim to recover damages thereby sustained.”

The facts of this case clearly indicate to us that the Williamses have satisfied this legal obligation imposed upon them by keeping their dogs secured and permitting no one to enter their yard without the presence of their son.

Accordingly, we hold that the defendant’s assureds have satisfactorily met the burden of proof and that the incident here was caused by the fault of the victim himself by proceeding into the yard contrary to the owner’s instructions.

Therefore, the judgment of the trial court in favor of the plaintiff is reversed and this case is dismissed at plaintiffs costs.

Reversed and rendered.

      . This argument’ is directly opposed to Isaac Kinchen’s testimony that he did not see Mrs. Williams.


author: COVINGTON, Judge:

text:
    William C. ROBERSON v. FONTENOT PETROLEUM CO., INC., et al.
    No. 10411.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 14, 1976.

      Arthur Howell Andrews and Charles W. Franklin, Baton Rouge, for appellant.
    John H. Brooks, New Orleans, for ap-pellee.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

The facts of record disclose that the plaintiff, William C. Roberson, a former employee of Fontenot Petroleum Company, Inc., sustained total and permanent injury to his back during the course and scope of his employment on September 3, 1969. The employee, a service station attendant, fell across a steel grating and injured his back while attempting to wash down an accumulation of gasoline which had allegedly been spilled due to the negligence of an employee of Earl Gibbon Transport, Inc., while that employee was trying to fill underground storage tanks at Fontenot’s Service Station.

Bituminous Casualty Corporation, the workmen’s compensation insurer for Fon-tenot, began paying compensation benefits to the employee as provided by law. While receiving these benefits, the employee filed a tort action on March 18, 1970, against Earl Gibbon Transport, Inc., the tortfeasor, and Transport Insurance Company, its insurer, under the provisions of LSA-R.S. 23:1101, with proper notice being given to Bituminous. The latter intervened in the tort action under the provisions of LSA-R.S. 23:1102, and asserted its claim for reimbursement from the tort-feasor that is allowed by LSA-R.S. 23:1103.

The suit came on for trial by jury on March 28, 1972, but shortly after the jury had been selected the employee and the defendant, Earl Gibbon Transport, Inc., and Transport Insurance Company agreed to compromise. After some out-of-court negotiations, the parties went to the judge’s chambers and dictated to the court reporter a stipulation of compromise on March 29, 1972. The stipulation provided that Roberson’s tort claim against Earl Gibbon Transport, Inc., was compromised for the principal sum of $62,500.00 plus costs, reserving unto Bituminous its right against the defendants for reimbursement of workmen’s compensation benefits it had paid or might have to pay in the future to said Roberson. The stipulation further provided that the intervention of Bituminous was continued ‘without date, and that the claim of Bituminous against the defendants would be disposed of at some time in the future by those parties. The stipulation recited that counsel for all parties, including Bituminous, were present while it was being dictated and consented to the compromise.

Yet, subsequent to the compromise agreement, Bituminous did on November 30, 1972, terminate compensation payments to the employee. On April 11, 1973, Roberson filed suit to reinstate his workmen’s compensation benefits and the matter was tried on February 28, 1975, resulting in a judgment in his favor. The judgment was read and signed on April 3, 1975, and the defendants have perfected a suspensive appeal.

Appellants base their refusal to make further payments on LSA-R.S. 23:1103, which provides that if damages are recovered in a suit by the employee against the third person, the judgment shall apportion the damages so that the employer’s reimbursement take precedence over the claim of the employee. The specific part of the statute upon which the appellants rely reads as follows:

“ . . . (I)f the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per cent per annum, and shall be satisfied by such payment.”

There is no merit in appellants’ contention. The Supreme Court of our state, in Crabtree v. Bethlehem Steel Corporation, 284 So.2d 545, 555 (La.1973), and this court in Compton v. North River Insurance Co., 281 So.2d 848, 852 (La.App., 1st Cir. 1973), writ denied, 284 So.2d 336, have decided that money received by way of compromise does not represent damages recovered by judgment; therefore an employer cannot receive credit against compensation liability for sums received by an employee through a compromise of a tort claim against a third person.

In the Crabtree case the court stated its basis for decision as follows:

“ . . . sums received by way of compromise are not paid to satisfy ‘a legal liability to pay damages’, La.R.S. 23:1101, so as to be under the statutory scheme subject to apportionment between the employer and the employee.”

To the same effect is the Compton case, wherein the court said:

“Inasmuch as the $11,000 payment was a compromise settlement and did not represent damages recovered by judgment, the employer and its workmen’s compensation insurer, which had not intervened, are not entitled to any credit, the first paragraph of R.S. 23:1103 being by its very terms inapplicable. To hold otherwise, in our opinion, amounts to judicial amendment of the statute and a judicial recognition of an inherent right to a credit in favor of the employer or its workmen’s compensation insurer or both. Had the Legislature desired to establish such a more extensive right to a credit beyond the terms of R.S. 23:1103, the Legislature would undoubtedly have used more pervasive language in the statute.”

Further, in the Compton case the court found it to be crucial that the money received by the employee was not recovered by judgment, “but instead (was) received in compromise settlement of the pending tort suit.” In the Crabtree case it is pointed out that LSA-R.S. 23:1101, which forms the basis for LSA-R.S. 23:1102 and 1103, refers to “a legal liability to pay damages” existing in the third person. However, the money paid by a third person as a compromise is not paid to satisfy such “a legal liability”, and thus the statutory scheme which ultimately provides for apportionment of the sums recovered between the employer and the employee is inapplicable.

The reasoning behind LSA-R.S. 23:1103 that relieves the employer and its insurer from liability when the employee recovers judgment against the third person for more than the total amount of the workmen’s compensation is not that the employer has lost something by the judgment, but rather that the employee should not have a double recovery for his injuries. However, it is pointed out by Crabtree v. Bethlehem Steel Corporation, supra, that when the employee compromises his claim, he is, by the very nature of the compromise, receiving less than the judgment value of his claim. As Justice Tate, in the majority opinion on rehearing, states :

“In a tort suit, a judgment in favor of the plaintiff awards the full damages to which he is entitled. Ordinarily, by a compromise of a tort claim a plaintiff accepts less than the full damages suffered, and a defendant pays a sum not representing the full damages, each balancing the danger of losing against the hope of gaining all.”

Thus, the employee is not getting a double recovery when he compromises his tort claim and continues to receive compensation benefits, because the compensation benefits merely augment the money obtained in the compromise to more fully give a full recovery to the employee.

In both the Crabtree and Compton cases, supra, the courts noted that the employer could have protected its rights to reim-, bursement by intervention in the tort action, but had not intervened, but the court in Crabtree pointed out that by failing to intervene the employer had lost no right it had to reimbursement by the compromise, because “Section 1103 expressly provides that such compromise entered into without its being a party to it does not bind it or affect its rights against the third-person tort-feasors.”

In the instant case the rights of Bituminous and Fontenot were protected by their intervention in the tort action and also by the express reservation of their rights in the stipulation to which they assented. It is important to note here, as the court did in the Crabtree case, supra, that the employer and its insurer lost nothing by the employee’s compromising his tort action; therefore, they have no inherent right to gain anything.

We hold that an employer cannot receive credit against its compensation liability for sums received by an employee through a compromise of the tort claim against the third person, where the employer, after intervening in the tort action, assents to the compromise. When the employer assents to such compromise, it is binding upon him; LSA-R.S. 23 :1103. In the instant case the employer actively participated in the compromise, assented thereto, and reserved all rights against the third person tortfeasor. The contention on this appeal that the intervenor was ready, willing and able to try the intervention at the time of the trial has no significance since there was agreement to the compromise settlement. We might, however, remind the appellants that the stipulation expressly states that their intervention “will be continued without date without present reassignment and the claim of Bituminous Casualty Corporation against the defendants for all amounts previously paid and such amount, if any, that may hereafter be paid under the Compensation laws of Louisiana, will be disposed of at some time in the future by said parties, that is, Bituminous Casualty Corporation attd the defendants, in such a manner as they may see fit, either by compromise settlement or future litigation.” This does not evidence a ready willingness to proceed with intervention.

Therefore, the employee, William C. Roberson, is entitled to workmen’s compensation for 500 weeks at a sum equal to 65% of his wages, because of the total and permanent disability that resulted from his injury; LSA-R.S. 23:1221. In addition thereto, the employee is entitled to have his employer furnish his medical and surgical treatment up to a total of $12,500.00; LSA-R.S. 23:1203. Both awards are subject to a credit of the amounts already paid to the employee and on his behalf by the employer or its insurer. The employee is also entitled to receive interest on the past due installments as prayed for.

We do not find that the employee is entitled to recover penalties and attorney’s fees. LSA-R.S. 22:658 only allows such penalties and fees where the insurer’s action is arbitrary, capricious or without reasonable cause. In King v. Insurance Co. of North America, 288 So.2d 878, 881 (La.App., 3rd Cir. 1974) the court said:

“In order for a defendant-insurer to be required to pay penalties and attorney fees under LSA-R.S. 22:658 the discontinuance must be found to be arbitrary, capricious, or without probable cause. Defendant’s actions can only be judged upon the facts existing and known to him at the time payments were stopped. These facts must justify discontinuance.”

When Bituminous stopped payments in December of 1972, and when this suit was filed on April 11, 1973, the jurisprudence of this State appeared to support the insurer’s position; Booth v. Travelers Insurance Company, 217 So.2d 483 (La.App., 1st Cir. 1968). Consequently, the insurer’s refusal to continue to pay such benefits was not arbitrary, capricious, or without probable cause.

Therefore, the judgment of the trial court is amended to allow legal interest from date of each past due installment until paid and, as amended, is affirmed. All costs are assessed against the appellants.

Amended and affirmed.