author: CULPEPPER, Judge.

text:
    Alton TASSIN et al., Plaintiffs and Appellees, v. C. A. RHYNES et al., Defendants and Appellants.
    No. 6607.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 7, 1978.
    Rehearing Denied Oct. 16, 1978.
    Writ Refused Dec. 1, 1979.

      Ben C. Bennett, Jr., Marksville, for defendants and appellants.
    John R. Contois, Marksville, for plaintiffs and appellees.
    Before CULPEPPER, WATSON and FORET, JJ.
   CULPEPPER, Judge.

The plaintiffs, Alton Tassin and Roy J. Normand, filed this suit which they named “SUIT FOR DECLARATORY JUDGMENT ESTABLISHING TITLE AND BOUNDARIES”. They claimed ownership in indivisión of approximately 100 acres of land which they contended is alluvion formed on riparian lands owned by the plaintiffs and by the defendants on Red River in Avoyelles Parish. Plaintiffs also asked the court to appoint a surveyor to determine the number of acres of alluvion, and that the court divided the alluvion amongst the respective plaintiffs and defendants and fix the boundary lines. Named as defendants owning other riparian lands were C. A. Rhynes, Malcolm Sayes and Foster Johnson.

The defendant Rhynes filed an answer and a reconventional demand claiming a portion of the accretion by the acquisitive prescription of ten years. By agreement of all parties, this claim by Rhynes was recognized and he was dismissed from the suit.

The defendant Sayes filed an answer and a reconventional demand contending: (1) That the land in dispute is not accretion but is, instead, land cut off of a point when the river suddenly changed its course; (2) That the plaintiff Normand has never owned any land fronting on Red River, and Normand is not entitled to any of the land in dispute; (3) In his reconventional demand, Sayes contends he has been in corporeal possession of all but a few acres of the land in dispute for more than a year prior to the filing of this suit, and that this suit has disturbed his possession and he is entitled to have his possession recognized.

The district judge held the land in dispute is alluvion. He did not discuss the contention by Sayes that Normand never was a riparian owner entitled to accretion. However, he held that Normand, together with Tassin, Sayes and Johnson are riparian owners and, as such, are entitled to a proportionate division of the alluvion in dispute. A court-appointed surveyor made a division of the 76.41 acres remaining after Rhynes’ portion was deleted, and the district court judgment approved the survey dividing the land in dispute as follows:

1) 1.41 acres to Foster Johnson (actually, Johnson owned this 1.41 acres pursuant to a reservation of this portion of the land in the 1974 deed whereby Johnson, et al. sold to Sayes a portion of the riparian property now owned by Sayes, together with all of the accretion in front of the property;
2) 15.76 acres to Alton J. Tassin;
3) 33.02 acres to Roy J. Normand;
4) 26.22 acres to Malcolm Sayes.

The trial judge dismissed Sayes’ recon-ventional demand for recognition of his possession on the basis that any such possession by Sayes was as a co-owner in indivisión of the alluvion and, therefore, was not possession adverse to the other co-owners.

Only the defendant Sayes appealed.

We find it unnecessary to decide the issue of whether the disputed land is alluvion or is land cut off by a sudden change in the river bed. In either event, the result in this case is the same. The decisive issues on appeal are: (1) Does Normand’s 1966 deed of acquisition include any of the alleged alluvion in dispute, which had been formed during the period 1940 to 1944? (2) Was defendant Sayes in possession of most of the land in dispute for one year prior to the filing of this suit? (3) If Sayes was in possession for one year, what is the burden of proof of ownership by Tassin and any other claimants to the land, and did they sustain this burden of proof? (4) Is Sayes entitled to judgment on his reconventional demand for recognition of his possession?

The general facts are that before 1930 Red River flowed generally from north to south but, at the point in question, there was a bend in the river bed toward the west. The point created by this bend in the river was known as “Clark’s Point”, since the land on the east side of the river at that time was owned by Clark. In its most westerly location, during about the year 1939, the river bed encroached on the land of the plaintiff Tassin on the north side of the bend, on the land of Mayeux, plaintiff Normand’s ancestor in title, on the west side of the river bend, and on the lands of the defendants Sayes and Rhynes or their ancestors in title, on the south side of the bend.

Between 1940 and 1944, the river bed moved back in an easterly direction. By 1944, Clark’s Point had disappeared completely, and the river bed followed an almost straight course from north to south, cutting off what had formerly been Clark’s Point. Today the river bed is in substantially the same location as in 1944.

All parties agree that the eastward movement of the river bed during the period 1940 to 1944 was caused by several new cut-offs across points downstream. These cut-offs eliminated about nine miles of the meanders of the river and substantially increased the velocity of the current.

The river bed, as it existed in 1939 at its most westerly location, is still easily identified by a shallow oxbow lake, with a somewhat higher bank on its west side. This old river bed encroaches on the east boundaries of the land allegedly owned by Tassin, Normand, Sayes and Rhynes at the time this suit was filed on May 24,1976. The land in dispute at the time suit was filed consisted of over 100 acres, including the old 1939 river bed and the alleged alluvion which was formed as the river bed moved back toward the east to its present location.

Plaintiffs contend the land in dispute is alluvion owned in indivisión by several riparian proprietors, and that it should be divided proportionately. Plaintiffs rely on the following articles of our Civil Code:

“Art. 509. The accretions, which are formed successively and imperceptibly to any soil situated on the shore of a river or other stream, are called alluvion.
“The alluvion belongs to the owner of the soil situated on the edge of the water, whether it be a river or stream, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use.”
“Art. 516. If an alluvion be formed in front of the property of several riparian proprietors, the division is to be made according to the extent of the front line of each at the time of the formation of the alluvion.”

The defendant Sayes contends the land is not alluvion built up gradually and imperceptibly, but is land which was left when the river suddenly changed its course from its 1939 location and cut across Clark’s Point. Sayes relies on LSA-C.C. Article 518 which provides:

“Art. 518. If a river or stream, whether navigable or not, opens itself a new bed by leaving its former channel, the owners of the soil newly occupied shall take, by way of indemnification, the former bed of the river, every one in proportion to the quantity of land he has lost.

“They shall again take their former property, if the river or stream returns to its former channel.”

As to the issue of whether the land is alluvion, formed successively and imperceptibly, or whether it is land left on the west bank of the river by a change in course, the district judge stated in his written reasons:

“The court hesitates to call this build up of land ‘accretion’, since counsel for Malcolm Sayes so vigorously urges that the river course changed rather suddenly and not imperceptibly as the Louisiana Civil Code describes and defines accretion. However, from a great preponderance of the evidence, both lay people and experts, the court is convinced and so holds, that the acreage forming the basis of this suit, is in fact accretion. It will refer to it hereinafter as such. One expert for Sayes thought otherwise, from a study of aerial maps, but he had made no observation on the ground. Even he, however, thought the change occurred between 1942 and 1944. He had no maps in between those years to be specific as to when the change occurred. But the lay people who lived there while the change was going on, testified that they could see the left descending river bank, on the opposite side of this accretion, cave in and fall into the river; that over a space of two years or rather two high waters, it had changed its course, filling up substantially the old stream and gradually building up the elevation of the land in dispute to a now useful and cultivable area, except for ‘pond holes’, and a part of the old stream which has not yet completely filled in and hold impounded waters. But, in the court’s mind, it is clear the build up in elevation thereof, is still going on and each flooding of Red River over its banks, causes deposits of silt and sand, which imperceptibly has built up the area in dispute and even continues to build it up in its elevation even now. So, the court is convinced it is accretion.”

We have some doubt as to whether the trial judge was correct in holding that the land in dispute is alluvion. It is difficult to distinguish the present case from Dickson v. Sandefur, 259 La. 473, 250 So.2d 708 (1971). In Dickson, the river had been “eating away” a point of land during high waters for several years, and then, during the flood of 1945, which was one of the greatest in the history of Red River, the river completely abandoned its old bed and cut a new bed across the point. As is shown by the above quotation from the trial judge’s written reasons, the facts of the present case are not radically different from those in Dickson.

Since the issue is close, and a decision thereof is not necessary and would be dictum in the present case, because the result we reach is the same regardless of whether the land in dispute is alluvion or is a cutoff, we express no opinion on the question, although we think it necessary to discuss the matter for a full understanding of the case.

We will next address the issue of whether the plaintiff Normand’s 1966 deed of acquisition excluded the alleged alluvion which had been formed during the period of 1940 to 1944. The record, shows that in- 1966 Normand purchased from the heirs of Charles J. Mayeux a tract of land described in the Act of Salé as follows:

“A certain tract of land in the 2nd Ward of Avoyelles Parish, La., near Red River, containing 86.50 Acres, more or less, said tract lying and being in the SE !4 of NW Vi of SW Vi and fractional NW lh of SW Vi of Section 29, T 3 N, R 4 E, being bounded now or formerly on the North by Poster Johnson and C. 0. Brown; East by Batture and Walter Johnson; South by Walter Johnson et al; and West by Avo-yelles Bank & Trust Co., C. 0. Brown and Charley Coco, as per plat of E. B. Mes-sick, surveyor, recorded in Plat Book 4, folio 64, of the records of Avoyelles Parish, La. See also A-77, page 454 and A-15, page 113 of the records of Avo-yelles Parish, Louisiana.” (Emphasis added)

Defendant Sayes points out that at the time the alleged alluvion was formed between the year 1940 and 1944, Charles J. Mayeux had a record title to the above described property. Assuming that May-eux’s title was valid, he became the owner of any accretion. In the 1966 deed from the heirs of Mayeux to Normand, the property is described as a specific tract containing 86.50 acres, more or less, in Section 29. The property is further described as being bounded now or formerly by other owners, and the eastern boundary is stated to be bound “east by Batture and Walter Johnson”. Furthermore, the property is described as being shown as per a plat of E. B. Messick, recorded in Plat Book 4, folio 64 of the records of Avoyelles Parish. However, this plat is not in the record before us on appeal. Counsel for Sayes has attached a copy of a 1943 Messick plat to his brief, but we cannot consider this because it is not in evidence.

A sketch attached to plaintiffs’ original petition shows the alleged riparian lands of Tassin, Normand, Sayes and Rhynes and the “Accretion” in dispute. On this sketch, the eastern boundary of the Normand property is shown as a straight line running north and south. The south portion of this line is bound on the east by the defendant Sayes, successor in title to Walter Johnson, who is named as an owner on the east in the above quoted description in the 1966 deed to Normand. The sketch also shows that about the northern one-half of Normand’s east line is bound on the east by “Accretion”. Thus, the sketch attached to plaintiffs’ petition indicates that Normand’s alleged riparian land is bound on the east by Sayes and by “Accretion”.

Normand did not acquire the above described tract of land until 1966. This was 22 years after the accretion in dispute had been formed during the years 1940 to 1944 while Charles J. Mayeux had a record title to the above described property. Assuming that Mayeux had a valid title to the riparian land when the accretion was formed, he became the owner of the accretion. At the time of the sale to Normand in 1966, the heirs of Mayeux owned both the formerly riparian land and the accretion. However, when the Mayeux heirs sold to Normand in 1966, they described the land sold as being bound on the east by “batture”. This necessarily means that they did not include any portion of the batture in the land sold.

These facts are corroborated by the plat by the court-appointed surveyor in this case, which plat shows Normand’s east line was formerly a straight line, running north and south, until the river encroached on the line from the east and left the present shallow oxbow lake. The alleged accretion which bounds Normand’s land on the east is clearly shown on this plat.

Jurisprudence has established the rule that if, at the time of sale of a riparian estate, the alluvion or batture attached has attained a sufficient elevation to be susceptible of private ownership, the alluvion does not pass with the riparian land unless it is expressly so stated in the Act of Sale. State v. Richardson, 140 La. 329, 72 So. 984 (1916); Maginnis Land & Improvement Company v. Marcello, 168 La. 997, 123 So. 653 (1929). In the present case, it is clear that the “batture” had formed and was susceptible of private ownership by the Mayeuxs by the time they sold to Normand in 1966. Yet, the Mayeuxs sold to Normand only a specifically described 86.5 acres and did not sell any of the “batture” at issue here. Therefore, we conclude that plaintiff Normand is not entitled to any of the “bat-ture” in dispute. It may be that the heirs of Charles J. Mayeux still have a claim to a portion of the “batture”, but they are not parties to the present suit and that issue is not before us.

We will next consider the issue of whether the defendant Sayes was in possession of most of the land in dispute for one year preceding the filing of this suit on May 24, 1976. The record shows that by deed recorded on April 25, 1974 in the conveyance records of Avoyelles Parish the defendant Sayes purchased from the Sauciers and Foster Johnson Lots 18, 19 and 20 of the R. J. Johnson Partition, as shown by a plat of survey by E. B. Messick in 1932. These lots were riparian to the river bed in its westernmost location in 1939, and, therefore, the owners of the lots at the time of the formation of the accretion in dispute during the period 1940 to 1944, became the owners of the accretion. The 1974 deed to the defendant Sayes also expressly described and conveys “all batture and accretion between the extension northerly to Red River of the east line of Lot 18 and the west line of Lot 20.” It is in this deed that Foster Johnson reserved 1.41 acres.

Furthermore, the record shows that by deed recorded on January 20, 1975 in the conveyance records of Avoyelles Parish, the defendant Sayes acquired from Walter E. Johhnson Lot # 21 of the R. J. Johnson Partition “together with all accretion and alluvion, attached thereto and forming a part thereof. Said tract bounded now or formerly on the north by Alton Tassin, east by Malcolm O. Sayes, and on the south and west by Roy Normand.”

In these two conveyances, the defendant Sayes acquired, more than a year prior to the filing of this suit, a record title to all of the land at issue on appeal. However, he does not claim possession of all of this land for one year prior to the date this suit was fled. He testified he had possessed by farming and raising cattle on all of the land at issue lying south of and including the field road or turn row which runs on a line which is approximately an extension in an easterly direction of the north line of the plaintiff Normand’s property. Sayes stated that the plaintiff Tassin is in possession of the land in dispute north of this road.

Using the plat prepared by the court-appointed surveyor in dividing the property amongst the plaintiffs and the defendants, it appears that defendant Sayes was in corporeal possession for more than a year prior to the filing of this suit of all of the 76.41 acres in dispute, except about 7 acres on the north side of the road which is shown as a “Field Road” on the plat.

Having determined that defendant Sayes was in possession of all but seven acres of the land in dispute, the next question is what is the burden of proof of ownership by Tassin and any other claimants to the land. When plaintiffs filed their original petition, they entitled it “SUIT FOR DECLARATORY JUDGMENT ESTABLISHING TITLE AND BOUNDARIES”. In his brief, Sayes contends this suit is actually a petitory action, since plaintiffs seek to be recognized as owners of portions of the land in dispute. We find it unnecessary to decide whether this is a suit for a declaratory judgment or a petitory action, because, in either event, the court can decide the issues of possession and ownership presented by the pleadings, and the burden of proof of the plaintiffs as against the defendant in possession is the same.

In Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974) the plaintiff, Pure Oil Company, filed a concursus proceedings, depositing in the registry of the court certain royalties and naming as defendants the claimants to ownership of the land to which the royalties were attributable. There was a dispute as to the ownership of IV2 acres of land of which the Simontons had been in possession for over one year. The Skinners had a record title to the IV2 acres, but there was an 18-year gap in their chain of title from 1854 to 1874, and the Skinners had not proved ownership by acquisitive prescription. The Supreme Court held that the burden of proof of ownership by the Skinners, who were out of possession, is provided in LSA-C.C.P. Article 3654 which reads as follows:

“When the issue of ownership of immovable property or of a real right is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right is so presented, the court shall render judgment in favor of the party:
“(1) Who would be entitled to the possession of the immovable property or real right in a possessory action, unless the adverse party makes out his title thereto; or
“(2) Who proves better title to the immovable property or real right, when neither party would be entitled to the possession of the immovable property or real right in a possessory action.”

In Pure Oil the court concluded that since the Simontons were in possession, the Skinners had the burden of proving a title good against the world and not just a better title than the Simontons. Since there was a gap of 18 years in the Skinners’ chain of title, and they had not proved ownership by acquisitive prescription, the court held the Skinners had failed to sustain their burden of proof.

Although the Pure Oil Company case was a concursus and the present case is a suit for declaratory judgment, the burden of proof on the issue of ownership of immovable property is the same in the two actions, under the express provisions of LSA-C.C.P. Article 3654. Furthermore, even if, as defendant Sayes contends, the present proceedings is a petitory action, the burden of proof is again the same under the provisions of LSA-C.C.P. Article 3653 and the decision in the Pure Oil Company case.

Applying these rules to the present case, we find that the only evidence in the record as to the chain of title of the plaintiff Tassin is a deed dated February 19, 1974 from Foster J. Johnson to Alton J. Tassin, conveying 56 acres in Section 29, further described as Lot 23 of the R. J. Johnson Partition, together with all batture and alluvion allocable to said property by accretion. Tassin has introduced no further chain of title, nor has he proved ownership by acquisitive prescription. Clearly, under the rule stated in Pure Oil Company v. Skinner, he has not sustained his burden of proving title good against the world as to that portion of the property in dispute which is in the possession of the defendant Sayes.

As to the seven acres north of the road, of which Sayes is not in possession, Alton Tassin has proved a better title than Sayes. Tassin’s deed of acquisition dated February 19, 1974 includes the accretion. As stated above, Sayes also has a deed of acquisition to this land, but Sayes’ acquisition was on January 20,1975. As a general rule, the more ancient title prevails. Furthermore, the defendant Sayes has not sought in these proceedings to be recognized as owner of any of the land. He has sought in his reconventional demand only to have his possession recognized and sustained.

We conclude that plaintiff Tassin has sustained, his bui’den of proving a better title than the defendant Sayes to the approximately seven acres of which Sayes is not in possession. In these proceedings, we will recognize Tassin’s ownership of this seven acres.

Plaintiffs argue, and the trial judge held, that the possession by Sayes was only as a co-owner in indivisión of the alluvion in dispute and not as sole owner for himself. In the recent case of Allen v. Paggi Bros. Oil Company, 244 So.2d 116 (La.App. 3rd Cir. 1971), writ refused, we considered this issue. In the Allen case, one of the co-owners in indivisión was in possession of the property, but he had a deed of record trans-lative of title to full ownership. We recognized the general rule that a co-owner in indivisión possesses for all of the co-owners and not solely for himself. However, we held an exception to this general rule is that where the co-owner gives clear and positive notice to his other co-owners of his intention to possess adversely to them, his possession is adverse. We held further that where a co-owner goes into and continues possession under a deed translative of title, recording of the deed is regarded as the necessary notice to the other co-owners that the possession is hostile and adverse to them. We cited Succession of Seals, 243 La. 1056, 150 So.2d 13; Continental Oil Company v. Arceneaux, La.App., 183 So.2d 399, and Detraz v. Pere, La.App., 183 So.2d 401.

As discussed above, we have already found that by deeds recorded respectively on April 25,1974 and January 20,1975, both of which dates were more than a year prior to this suit, the defendant Sayes acquired a title to all of the land in dispute here. After he bought the land he went into corporeal possession by farming it and raising cattle on it. Actually, Sayes predecessors in title, the Johnsons, had also possessed this land. Mr. Cass Normand, father of the plaintiff Normand, testified that during about the year 1951 he rented portions of the land from the Sauciers and the John-sons and farmed it for about two years. Thus, the evidence shows that when defendant Sayes went into possession of this land, he did so as owner under the two deeds by which he had acquired a record title to the land. He did not possess as co-owner in indivisión.

The final issue listed is whether the defendant Sayes is entitled to judgment on his reconventional demand for recognition of his possession. For the reasons stated above, it is clear that defendant Sayes was in possession of all but about seven acres of the land in dispute for more than a year prior to the date this suit was filed. His possession meets the requirements of LSA-C.C.P. Articles 3658 and 3660, and he is entitled to recognition of this possession.

There remains the question of the claim by Foster Johnson to 1.41 acres. In a deed recorded on April 25, 1974 from the Sauci-ers and Foster Johnson to defendant Sayes, conveying Lots 18, 19 and 20 of the R. J. Johnson Partition, this 1.41 acres was reserved by Johnson. The trial judge recognized Foster Johnson’s ownership of this 1.41 acres, and on this appeal the defendant Sayes has not claimed any rights of possession or ownership thereto. Accordingly, we will recognize Foster Johnson’s ownership of the 1.41 acres and his right to possession.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that Foster Johnson be recognized as the owner of 1.41 acres located in Section 29, T3N, R4E, Avoyelles Parish, Louisiana, the 1.41 acres being more fully shown on that certain plat of survey by Louis J. Daigre Associates, Inc. dated May 18, 1977, a copy of which is on file in the record of this suit.

It is further ordered, adjudged and decreed that Alton J. Tassin be recognized as the owner of a tract of land containing approximately seven acres located in Section 29, T3N, R4E, Avoyelles Parish, Louisiana, and being more particularly shown on that certain plat of survey by Louis J. Daigre Associates, Inc. dated May 18, 1977, a copy of which is on record in these proceedings, said seven acres, more or less, being shown on said plat as all of that portion of the 15.1 acres allocated to Alton Tassin lying north of the “Field Road”, as shown on said plat.

It is further ordered, adjudged and decreed that Malcolm O. Sayes be recognized as having the right to possession of all of the 76.4 acres in dispute in this suit, except the 1.4 acres herein awarded to Foster Johnson and the seven acres, more or less, herein awarded to Alton Tassin, the land of which Sayes is recognized to be the lawful possessor being more fully described as follows: A tract of land containing 68 acres more or less, located in Section 29, T3N, R4E, Avoyelles Parish, Louisiana, and being more fully shown on that certain plat of survey by Louis J. Daigre Associates, Inc. of date May 18,1977, a copy of which plat is of record in these proceedings, the said 68 acres, more or less, being all of the 76.4 acres shown on said plat as being in dispute in this suit, except the 1.4 acres designated as being owned by Foster Johnson, and the seven acres, more or less, lying north of the “Field Road” which runs generally in an east and west direction across the 15.1-acre tract designated on said plat as being owned by Alton Tassin.

It is further ordered, adjudged and decreed that all claims by Roy J. Normand are rejected and his suit is dismissed.

It is further ordered, adjudged and decreed that all costs in the lower court, including the surveyor’s charges, as well as the costs of this appeal be assessed against the plaintiffs, Alton J. Tassin and Roy J. Normand.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    Huey P. BONNER et al., Plaintiffs-Appellants, v. MOREHOUSE PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 13754.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    Writ Refused Jan. 26, 1979.
    Paul Henry Kidd, Monroe, for plaintiffs-appellants.
    Rankin & Yeldell, Bastrop, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

On August 3, 1978, plaintiffs, parents of school children residing in Bartholomew Woods Subdivision in Morehouse Parish, instituted this action against the Morehouse Parish School Board and O. L. Harper, Superintendent of the Morehouse Parish Schools, with the following prayer for judgment:

“WHEREFORE, petitioners pray that, after due proceedings, this court issue preliminary and permanent injunctions, requiring defendants, Morehouse Parish School Board and 0. L. Harper, Superintendent of the Morehouse Parish Schools, to issue permits to petitioners and their school age children under La.R.S. 17:155, approving the attendance of petitioners’ children in the Sterlington High and Elementary Schools of Ouachita Parish, Louisiana for the 1978-79 school term and thereafter.
Petitioners further pray that, after due proceedings, a declaratory judgment issue, decreeing that the Morehouse Parish Schools are inadequate as to petitioners’ children and that therefore these children have the right to attend the Sterlington schools of Ouachita Parish.”

LSA-R.S. 17:155 provides:

“Attendance of pupils in schools of adjoining parishes or cities; per capita cost of instruction
Children for whom adequate schools of suitable grade have not been provided in their home parish may attend schools in an adjoining parish. In such cases, permits shall be secured from the parish superintendent of the children’s home parish, and after they have been approved by the parish superintendent of the parish in which the schools that the children desire to attend are located, they shall be presented to the principals of the schools which the children wish to attend, who shall be required to admit the children and provide for their instruction the same as if they were residents of the parish. The superintendent of the children’s home parish shall settle monthly for the instruction of such children as shall take advantage of the provisions of this Section, the settlement for each child to be on the basis of the per capita cost of instruction in the school attended by that child. ...”

Plaintiffs allege the Bastrop school in Morehouse Parish is inadequate because it is located 15 miles from the Bartholomew Woods Subdivision requiring a 25 mile one-way bus trip over hazardous roads and an unsafe single lane bridge, whereas the Ster-lington school in Ouachita Parish is located two miles from the Bartholomew Woods Subdivision.

The trial court dismissed plaintiff’s suit by sustaining defendants’ exception of lack of subject matter jurisdiction based upon preemption by the U. S. District Court, Western District of Louisiana, in actions entitled United States of America v. Morehouse Parish School Board, et al, C. A. No. 14,429 and Jimmy Andrews, et al v. City of Monroe, et al, C. A. No. 11,297, wherein the U. S. District Court is exercising exclusive and continuing jurisdiction over the placement of Morehouse Parish school children in parishes other than Morehouse. The trial court also sustained defendants’ exception of collateral estoppel. Plaintiffs appeal. The defendants answer the appeal contending the trial court should have also sustained their plea of res judicata because of earlier similar litigation. We affirm the trial court’s judgment of lack of subject matter jurisdiction and thus do not reach the issues of collateral estoppel and res judicata. The only issue on appeal is does a Louisiana court have subject matter jurisdiction to transfer Morehouse Parish school children to schools outside of Morehouse Parish when a prior federal court judgment requires such transfers be presented to the court for its decision on whether the transfer will be permitted?

In Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, the Supreme Court held segregated schools violated the Fourteenth Amendment of the U. S. Constitution and ordered desegregation of all schools. These decisions were resisted by state legislatures and officials which resulted in the subsequent decision of Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, wherein the Supreme Court stated the Constitution is the supreme law of the land and under the Supremacy Clause of Article VI the federal courts’ interpretation of the Constitution is binding on the states and all local officials including school boards and school superintendents who are agents of the state.

In cases involving compliance with Brown II’s order to desegregate, school boards were required to submit desegregation plans to the federal district courts for approval. Federal district courts were required to retain jurisdiction over the administration of the desegregation plans by the school boards. Raney v. Board of Education of Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727.

Pursuant to the requirement of the Brown decisions to desegregate schools, the U. S. District Court for the Western District of Louisiana, entered a decree establishing desegregation plans based upon freedom of choice in United States of America v. Morehouse Parish School Board, et al, C. A. No. 14,429 and Jimmy Andrews, et al v. City of Monroe, et al, C. A. No. 11,297, which plans were later modified to provide for immediate elimination of the dual school systems as required by Green v. County School Board of New Kent County, Virginia et al, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, and Raney v. Board of Education of Topeka, supra. See Hall v. St. Helena Parish School Board, 417 F.2d 801 (5th Cir. 1969), wherein the District Court was ordered to make the plan modification and Conley v. Lake Charles School Board, 303 F.Supp. 394 (W.D.La.1969), wherein on June 5, 1969 the Morehouse Parish School Board and the City of Monroe were ordered by the U. S. District Court to submit plans complying with Green and Raney for approval of the District Court no later than July 25, 1969. (The St. Helena and Lake Charles decisions contained numerous consolidated desegregation cases, including the Morehouse and Monroe cases.) While the order establishing this plan is not in the record, nor contained in any reported decision, we are convinced that it was in due course rendered. In the Morehouse and City of Monroe cases, the District Court issued the following order in connection with its supervision of compliance with its desegregation plans on November 4, 1969:

“UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION
UNITED STATES OF AMERICA V C.A. NO. 14,429 MOREHOUSE PARISH SCHOOL BOARD, ET AL
JIMMY ANDREWS, ET AL V. C.A. NO. 11,297 CITY OF MONROE, ET AL
DECREE
Complaints have reached the Court concerning apparent violations of the past decrees of this Court, in that certain children of Morehouse Parish are attending schools in the City of Monroe under the jurisdiction of the Monroe City School Board.
IT IS DECREED that a child shall attend the school in the district where his or her parents are domiciled; any exception to this ruling shall be presented by the parents and the School Boards affected to this Court for its ruling; and, the School Boards affected shall bear responsibility to enforce this decree within the spirit of the law.
Done this 4th day of November, 1969, in Chambers in the City of Monroe, Louisiana.
H. Ben C. Dawkins /s
JUDGE ”

Following this federal court decree, the Morehouse Parish School Board and its Superintendent of Schools were prohibited from taking any action that would permit students domiciled with their parents in Morehouse Parish to attend schools in Oua-chita Parish and state courts had no jurisdiction to order them to violate the federal court decree.

Plaintiff in brief contends the decision of Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970) is authority for reversal of the district court’s decision refusing to consider the issuance of an injunction ordering the More-house Parish School Board and Superintendent of Schools of Morehouse Parish to violate the federal court decree. The Singleton decision involved desegregation plans filed by numerous school districts located in the states of Mississippi, Texas, Alabama, Louisiana, Georgia and Floridá. The principal thrust of the decision was directed at implementation of the Supreme Court decision in the case of Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19. This Supreme Court decision terminated the doctrine of deliberate speed and required immediate replacement of all dual school systems by unitary school systems. The court in Singleton ordered:

“To this end, the district courts are directed to require the respective school districts, appellees herein, to request the Office of Education (HEW) to prepare plans for the merger of the student bodies into unitary systems. These plans shall be filed with the district courts not later than January 6, 1970 together with such additional plan or modification of the Office of Education plan as the school district may wish to offer. The district court shall enter its final order no later than February 1, 1970 requiring and setting out the details of a plan designed to accomplish a unitary system of pupil attendance with the start of the fall 1970 school term. Such order may include a plan designed by the district court in the absence of the submission of an otherwise satisfactory plan. A copy of such plan as is approved shall be filed by the clerk of the district court with the clerk of this court.

The footnote which plaintiffs cite in their brief is direction to the District Courts that they can seek local assistance in the formulation of the plans. The second paragraph of the footnote simply recognizes that there will be problems in the carrying out of the plans which may be resolved on a local community level. The Singleton court points out that the District Court may facilitate the resolution of these problems by directing the appointment of a biracial committee. There is no indication in the body of the decision nor in the footnote that a desegregation order of a U. S. District Court, the plan adopted and the methods of implementation therein contained, can be detracted from, or interfered with by any school board, school official or state court. The Singleton decision does not stand for the proposition that the Morehouse Parish School Board or the Morehouse Parish Superintendent of Schools can take any action in connection with placement of pupils domiciled in Morehouse Parish in schools outside of the parish, either on their own, or in compliance with a state court injunction, without being in direct violation of the federal court order relied upon by the district judge.

The plaintiffs cite Harris County Commissioners Court v. Moore, 420 U.S. 77, 95 S.Ct. 870, 43 L.Ed.2d 32, and Sheffield v. State of Texas, 411 F.Supp. 709 (N.D.Tex.1976), as authority for reversal of the district court. These cases applied the federal doctrine of abstention which generally provides that where federal constitutional claims are premised upon unsettled questions of state law, the federal court may decline to consider the case. In discussing the doctrine, the Harris court stated:

“In Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the Court held that when a federal constitutional claim is premised on an unsettled question of state law, the federal court should stay its hand in order to provide the state courts an opportunity to settle the underlying state-law question and thus avoid the possibility of unnecessarily deciding a constitutional question.
Among the cases that call most insistently for abstention are those in which the federal constitutional challenge turns on a state statute, the meaning of which is unclear under state law. If the state courts would be likely to construe the statute in a fashion that would avoid the need for a federal constitutional ruling or otherwise significantly modify the federal claim, the argument for abstention is strong.” Pp. 83, 84 of 420 U.S., pp. 875, 876 of 95 S.Ct.

In the Harris case there was a constitutional attack upon a Texas statute related to redistricting precincts from which justices of the peace and constables were elected. In the Sheffield case the controversy related to the constitutionality of a Texas statute related to the distribution of state school funds. In these cases the federal court concluded not to decide the federal constitutional question until such time as state courts had clarified unsettled questions of state law, and only then in the event the state court decisions left some viability in a claim of unconstitutionality of the state statutes involved.

These cases are not authority for reversal of the district court’s refusal to accept jurisdiction of a suit seeking an order contrary to a federal decree. The doctrine of abstention applies to a federal court declining to render a judgment on a constitutional question in connection with a state statute. Abstention is unrelated to a situation where a federal court has made a decision in a desegregation case, and ordered a plan for integration spelling out detailed requirements of the manner in which the plan shall be administered, one of the detailed requirements being that no child shall attend school outside of the district wherein his parents are domiciled without permission of the Court.

A U. S. District Court may issue an injunction against a state court to protect and effectuate its judgment. 28 U.S.C. § 2283 . In the decision of Bush v. Orleans Parish School Board, 187 F.Supp. 42 (E.D.La.1960), a state court issued an injunction prohibiting the Orleans Parish. School 'Board from implementing a desegregation plan incorporated in a U. S. District Court decree. The U. S. District Court, based upon the federal supremacy doctrine contained in Cooper v. Aaron, supra, issued an injunction directed at the state court judge:

“IT IS FURTHER ORDERED that the Honorable Oliver P. Carriere, Judge of the Civil District Court for the Parish of Orleans, State of Louisiana, be and he is hereby, restrained and enjoined from enforcing the injunction issued by him on July 29, 1960, in the cause entitled State of Louisiana v. Orleans Parish School Board, et al., No. 382-646, Division A, Docket 5.”

having as its purpose the prohibition of the state court’s interference with the judgment of the federal court. This decision was affirmed in a memorandum opinion by the U. S. Supreme Court, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806, report. See also Thomason v. Cooper, 254 F.2d 808 (8th Cir. 1958), where a U. S. District Court injunction was issued prohibiting the use of a state court injunction for the purpose of interfering with the operation of a desegregation plan incorporated in a federal court decree. The court therein said:

“The federal District Court was certainly not required to permit the decree of the state court to frustrate the judgment and decree of the federal court approving and effectuating the plan of the School Board for the gradual integration of the schools.” p. 811

The U. S. District Court’s judgment relied upon by the trial judge is supreme over and superior to any judgment that the state court might render detracting from or interfering with the U. S. Court decree. The state court had no power to issue an injunction ordering the school board or its superintendent to violate the U. S. Court decree. The state court was without power to issue a declaratory judgment by the terms of which it declared that the plaintiffs’ children domiciled in Morehouse Parish had a right to attend school in Ouachita Parish. The trial court was correct in refusing to consider a suit seeking a judgment which would have been null and unenforceable if rendered. The District Court judgment sustaining the defendants’ exception to jurisdiction over the subject matter is AFFIRMED at appellant’s cost.

      . The doctrine of collateral estoppel is not recognized by Louisiana law. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978).

      . 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. This is the manner in which the second Brown decision is frequently referred to in the extensive desegregation jurisprudence.

       In formulating plans, nothing herein is intended to prevent the respective school districts or the district court from seeking the counsel and assistance of the state departments of education, university schools of education or of others having expertise in the field of education.
      It is also to be noted that many problems of a local nature are likely to arise in converting to and maintaining unitary systems. These problems may best be resolved on the community level. The district courts should suggest the advisability of biracial advisory committees to school boards in those districts having no Negro school board members.” p. 1217

      . 28 U.S.C. § 2283 (1948): “A court of the United States may not grant an injunction to stay proceedings in a State Court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

      . We will not speculate as to the probable decision of the U. S. District Court with regard to the exception to its order which plaintiffs desire. We believe one possible course of action for the plaintiffs to take to obtain the U. S. District Court’s decision is to file in the federal court proceeding the required pleadings, seeking the exception and to join in that proceeding the Morehouse Parish and Ouachita Parish School Boards and their respective Superintendents. These parties are all necessary to an adjudication of the application for exception. In the event these parties refuse to voluntarily participate as party plaintiffs, which seems to be likely in view of the history of this litigation, they may be joined as defendants by use of Federal Rule 19.
      Federal Rule 19: “Joinder of persons needed for just adjudication, (a) Persons to be joined if feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, . . It he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.”


author: LEMMON, Judge.

text:
    HERO LANDS COMPANY v. BOARD OF COMMISSIONERS FOR the LAFOURCHE BASIN LEVEE DISTRICT et al.
    No. 9416.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 1978.
    Writ Refused Feb. 9, 1979.

      Deutsch, Kerrigan & Stiles, Robert L. Redfearn and Thomas J. Fischer, New Orleans, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux and Stephen J. Caire, Asst. Attys. Gen., Dept, of Justice, for defendant-appellee, State of Louisiana.
    James 0. Manning, Metairie, and Felix H. Savoie, Jr., Napoleonville, for defendants-appellees, Board of Com’rs for the La-fourche Basin Levee Dist.
    Before REDMANN, LEMMON and BEER, JJ.
   LEMMON, Judge.

Plaintiff has appealed from a judgment dismissing this mandamus action, in which plaintiff sought to compel the Board of Commissioners for the Lafourche Basin Levee District and the Register of the State Land Office to take certain action necessary to complete plaintiff’s chain of title to immovable property.

In 1904 the Board sold the property to plaintiff’s ancestor in title. However, the Board did not own the property, and title at the time was still vested in the United States, because the Secretary of the Interi- or in 1861 had determined the property was not swamp land and had refused to transfer the land to the State of Louisiana under the Swamp Lands Acts. It was not until 1939 that the United States transferred the land to the State, after a redetermination of the. land’s status.

Plaintiff’s petition asserted that the State, after acquiring title, has never transferred the land to the Board, although under Act No. 13 of 1892 the Board had the right to have the land conveyed to it from the State. The petition further alleged that plaintiff requested the Board to apply to the State for transfer of the land “so as to perfect the title of your petitioners, Hero Land Company”, but that the Board refused. Accordingly, plaintiff prayed that the Board be ordered to apply for the transfer and that the Register be ordered to execute the transfer.

In its answer the Board denied any duty to apply for the transfer, and the Register in her answer admitted the Board at one time had the right to have the land transferred, but asserted the Board no longer has that right because it did not apply for the transfer prior to the effective date of R.S. 41:138 (enacted in 1958), which now prohibits the transfer to the Board unless the land is needed immediately for flood control purposes.

The matter proceeded to trial on stipulated documents and briefs, and the trial court refused to order the requested action. Hence plaintiff has appealed.

I

On appeal plaintiff concedes that title did not vest in the Board by operation of law when the State acquired title in 1939. Section 11 of Act No. 13 of 1892, the act which created the Board, purports to convey to the Board “all lands now belonging or that may hereafter belong to the State of Louisiana and embraced within the limits of the levee district . . ., whether said lands or parts of lands were originally granted by the Congress of the United States to this State, or whether said lands have been or may hereafter be forfeited to or bought in by, or for, or sold to the State at tax sales for non-payment of taxes”. However, the act further provides:

“(i)t shall be the duty of the Auditor and the Register of the State Land Office, on behalf of and in the name of the State to convey to the said Board of Levee Commissioners, by proper instruments of conveyance, the lands hereby granted or intended to be granted and conveyed to said board, whenever, from time to time, said Auditor and said Register of the said Land Office, or either of them shall be requested to do so by said Board of Levee Commissioners or by the president thereof; and thereafter said president of said board shall cause said conveyances to be properly recorded in the recorder’s office of the respective parishes wherein said lands are or may be located and when said conveyances are so recorded, title to said land, with the possession thereof, shall, from thenceforth, vest absolutely in said Board of Levee Commissioners, its successors or grantees”.

The act has been construed as contemplating a donation which shall stand and remain open to acceptance and confirmation indefinitely, so that the Board can compel the Register and the Auditor to execute the transfer at any time. State ex rel Atchafalaya Basin Levee Bd. v. Capdervielle, 142 La. 111, 76 So. 327 (1917). However, the act itself does not convey title, and the lands remain under legislative control until the instrument of conveyance has been executed and recorded. State ex rel. Bd. of Comm’rs of Tensas Basin Levee Dist. v. Grace, 161 La. 1039, 109 So. 830 (1926). Thus, as conceded, no absolute title has ever vested in the Board.

Plaintiff contends, nevertheless, citing the Capdervielle case, that that Register and Auditor are required to honor a request by the Board for transfer of title. Under the circumstances of this case, however, the Register and the Auditor can no longer be compelled to convey title to the Board, even if the Board could be compelled to request such action, because the Legislature repealed the previous grant of land (which had never been accepted) by enacting R.S. 41:138. The Legislature, having granted the land to a board created by it, could revoke the grant at any time, as long as there was no interference with rights of third parties resulting from their dealings with the Board during its ownership of the land. State v. Standard Oil Co. of La., 164 La. 334, 113 So. 867 (1927). Since the Board in this case never owned the land, there were no rights of third parties involved at the time the Legislature revoked the grant that had never been accepted.

II

Plaintiff’s primary contention is that the legislative adoption of R.S. 41:138 in 1958 is inapplicable in this case because of Act No. 62 of 1912. Plaintiff argues that the 1912 act precludes the State from questioning the validity of the transfer to plaintiff’s ancestor, since more than six years have elapsed since the transfer and the adoption of the 1912 act.

Act No. 62 of 1912 represents a legislative declaration that the State’s failure to sue for the nullity of a patent or transfer within the time prescribed in the act operates as a tacit confirmation or ratification. Humble Oil & Refining Co. v. State Mineral Bd., 223 La. 47, 64 So.2d 839 (1953). However, in Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576. (La.1974) the Supreme Court limited its earlier decision and held that the act was only intended to cure formal defects in patents or transfers that were otherwise essentially valid.

Here, the transfer by the Board to plaintiff’s ancestor in title did not contain a mere formal defect, but rather the transfer was a nullity as the sale of a thing belonging to another. C.C. art. 2452. Therefore, the State and the Board had no reason to sue for the nullity of a transfer. Act No. 62 of 1912, which only cures patents or transfers which are inherently sound and simply lacking in some formal requisite, has no applicability under the facts and circumstances of this case.

The judgment is affirmed.

AFFIRMED.

      . R.S. 41:138 provides:
      “Notwithstanding any other provisions of law to the contrary, no land within the boundaries of any levee district or levee and drainage district, or any land that may in the future be included within the boundaries of any levee district or levee and drainage district, that presently belongs to or that may hereafter belong to the state shall be conveyed to a levee district or levee and drainage district or to the governing authorities of such districts unless such land is needed for immediate use for the construction of a levee or other flood control measure.

      . If title had thus vested in the Board, then arguably title would simultaneously have vested in the Board’s transferees under the doctrine of after acquired title. See Lum Chow v. Board of Comm’rs. for Lafourche Basin Levee Dist., 203 La. 268, 13 So.2d 857 (1943).

      . The Board’s transferee also has standing to compel the execution of the instrument of conveyance. Atchafalaya Land Co. v. Grace, 143 La. 637, 79 So. 173 (1918). In the present case the transferee’s successor did not seek to compel execution until after the 1958 adoption of R.S. 41-138.

      . There is also a question whether the phrase “lands . . that may hereafter belong to the State” is applicable to lands granted by the Congress or only to lands from tax sales. Apparently to resolve any doubt as to this question in other cases, the Legislature passed Act No. 55 of 1904 and Act No. 165 of 1938, conveying “all lands not heretofore granted” to the Board, lying within the district, according to the terms and conditions of Act No. 13 of 1892, § 11.

      . Act No. 62 of 1912 (now R.S. 9:5661) provides in part, as originally adopted:
      “(A)U suits or proceedings of the State of Louisiana, private corporations, partnerships or persons to vacate and annul any patent issued by the State of Louisiana, duly signed by the Governor of the State and the Register of the State Land Office, and of record in the state Land Office, or any transfer of property by any sub-division of the State, shall be brought only within six years of the issuance of patent, provided, that suits to annul patents previously issued shall be brought within six years from the passage of this Act.”

      . The Board, citing the Tensas Basin Levee Dist. case, also argues that the 1912 act only applies to patents and not to sales. This was an alternative holding of the cited case, but since the act specifically recites “any transfer of property by any sub-division of the State”, we prefer to rest our decision on the basis stated in the body of the opinion.


author: PER CURIAM.

text:
    T. W. GANUS v. Russell L. CUOCO and Board of Levee Commissioners of the Orleans Levee District.
    Nos. 10120, 10146.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 1978.

      D. A. McGovern, III, New Orleans, for defendant-appellant.
    Reuter & Reuter, Arthur C. Reuter, New Orleans, for plainti'ffs-appellees.
    Before SAMUEL, LEMMON and BEER, JJ.
   PER CURIAM.

The trial court has issued a preliminary injunction dated January 27, 1978, which provides as follows:

“It is ordered by the court that upon plaintiff’s giving bond with good and solvent surety conditioned as the law directs in the sum of Twenty-five Hundred Dollars ($2500.00) that Russell L. Cuoco and the Board of Levee Commissioners of the Orleans Levee District, their agents, employees, assigns and any and all persons, firms or corporations acting or claiming to act in their behalf are hereby temporarily restrained, enjoined and prohibited from trespassing on plaintiff’s property or from constructing and maintaining boat slips, or any other type of facility which would deny plaintiff the right of frontage and public access to the New Basin Canal from that portion of ground more fully described as follows:
‘A certain portion or strip of land on the east side of the New Basin Canal property between Lake Avenue and U. S. Coast Guard reservation, measuring 218 ft. width and front on West End Blvd. by depth of approximately 77 ft., in fronting and the rear of the New Basin Canal, all as more fully shown on the survey annexed hereto and made part hereof.’
“Being the same property leased by Russell L. Cuoco to Ganus Realty Company, Inc.
“New Orleans, Louisiana, this 27th day of January, 1978.
(signed) Judge Oliver P. Carriere”

Cuoco devolutively appealed from that judgment, and, on July 26, 1978, we affirmed. Meanwhile, on May 10, 1978, the trial court, in response to a rule for contempt, had rendered a judgment which includes the following language:

“It is further ordered that the defendant Russell L. Cuoco be restrained, enjoined and . prohibited from constructing and maintaining boat slips or any other type of facility which would deny plaintiff the right of frontage and public access to the New Basin Canal from that portion of the ground more fully described as follows:
‘A certain portion or strip of land on the east side of the New Basin Canal property between Lake Avenue and U. S. Coast Guard reservation, measuring 218 ft. width and front on West End Blvd. by depth of approximately 77 ft., in fronting and the rear of the New Basin Canal, all as more fully shown on the survey annexed hereto and made part hereof.’
“It is further ordered that Russell L. Cuo-co on or before noon, Tuesday, June 27, 1978, remove all pilings, boat slips, or any other type of facility which would deny plaintiff the right to frontage and public access to the New Basin Canal from that portion of ground more fully described above.
“Judgment read, rendered and signed in Open Court on May 10, 1978.
(signed) Judge Oliver P. Carriere”

Cuoco suspensively appealed from the above judgment on May 10, 1978, and the appeal was lodged here on November 13, 1978.

Ganus has now moved to dismiss the appeal and has filed a separate application for supervisory writs, essentially seeking the same relief.

In our view, the judgment and order of May 10, 1978 does nothing more nor less than confirm the mandate set forth in the trial court’s order of January 27, 1978 (which was affirmed by us on July 26,1978) and set a deadline for compliance therewith, while dismissing the rule for contempt for previous failure to comply. In order, however, to remove any doubt, and to extend the deadline for compliance, we exercise our supervisory jurisdiction as follows:

ORDER

1. The trial court’s order of May 10, 1978, is deemed to be, in all respects, responsive to and confirmative of its earlier judgment of January 27, 1978, affirmed by us on July 26, 1978.

2. The order requiring Russell L. Cuoco to remove all — pilings, boat slips or any other type of facility which would deny plaintiff Ganus the right to frontage and public access to the New Basin Canal from that portion of ground more particularly described in the footnote below is extended from noon, Tuesday, June 27, 1978 to noon, Monday, February 5, 1979.

3. The appeal is dismissed; each party is to bear his own costs.

MOTION CONSIDERED, ORDER ISSUED

      . A certain portion or strip of land on the east side of the New Basin Canal property between Lake Avenue and U. S. Coast Guard reserva-ion, measuring 218 ft. width and front on West End Blvd. by depth of approximately 77 ft., in fronting and the rear of the New Basin Canal.


author: FORET, Judge.

text:
    Henry T. DONOHOE et ux., Plaintiffs-Appellants, v. STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, et al., City of Pineville, Louisiana, Defendant-Appellee.
    No. 6652.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writ Refused March 23, 1979.

      Gold, Little, Simon, Weems & Bruser (Charles S. Weems, III and Herbert J. Mang, Alexandria, for plaintiffs-appellants.
    Gravel, Roy & Burnes (Dan E. Melichar, Alexandria, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

This is an action for damages and injunc-tive relief from various alleged acts of the defendants relating to a natural servitude of drain owed by plaintiffs’ property. The trial court found no damage or liability had been incurred by the defendants and dismissed the plaintiffs’ suit. Plaintiffs appeal this judgment.

In his reasons for judgment, our learned brother of the trial court accurately stated the facts of the situation, and we take the liberty of quoting therefrom:

“Plaintiffs are the owners of an unimproved lot in the City of Pineville described as Lot 30 of Pine Grove Addition fronting 125 feet on Hillcrest Drive. The Donohoes instituted this suit against the Louisiana Department of Highways and the City of Pineville seeking injunctive relief and damages for injury to this property resulting from alleged acts of defendants that had the effect of increasing the burden of the natural servitude of drain to which plaintiffs’ property is subject. In particular, plaintiffs allege that the actions of the defendants resulted in placing an increased quantity of water on their property and/or placing water on their property at a higher velocity than would otherwise occur.
“In their petition and through testimony developed at trial, petitioners complained that a number of actions taken by various parties have adversely affected the drainage on their property, including the four-laning of Louisiana Highway 28 and the construction of the Pineville Expressway project over Highway 28; the channelizing of a natural stream by the Police Jury flowing down from the north; the building of a CLECO facility on the north side of Highway 28; and the installation by the City of Pineville of tank car culverts on adjacent property. The Department of Highways was previously dismissed from the suit on an exception of prescription, leaving the City as sole defendant. The primary factual matter to be resolved concerns the installation by the City of underground tank car culverts and their effect on the Donohoe property.
“It is undisputed that the Donohoe property is lower in elevation than the property surrounding it and that it is now and always has been subject to a natural servitude of drain. In particular, Lot 30 receives natural drainage both from the north (the direction of Louisiana Highway 28) and also by a creek or stream which flows onto the property from the east. Hillcrest Drive was paved approximately 20 years ago and a 48" culvert was placed beneath Hillcrest to handle drainage. The above mentioned creek flows from east to west and enters the culvert beneath Hillcrest Drive on the eastern side and exits on the west side of the street near the Donohoe property, but actually onto the neighboring lot owned by Mr. Floyd Cagle. The water that exits from the west end of the culvert continues down a creek that roughly tracks the boundary line between the Donohoe and Cagle properties for approximately 100-150 feet until it intersects the north-south drain coming down from Louisiana Highway 28 and the combined stream then angles off to the southwest. This creek was originally 2 to 3 feet wide, but it has widened over the years due to continuous erosion until it is now 10 to 12 feet wide and much deeper.
“Mr. Cagle, the Donohoe’s neighboring property owner, testified that a great deal of water at considerable velocity flowed out of the west end of the culvert and onto his lot and the Donohoe lot. This drainage caused severe erosion at the mouth of the culvert beneath Hill-crest Drive and continued to such an extent that it endangered the southeast corner of his house foundation and also was exposing a city sewer line.
“To alleviate the erosion problem due to concern and complaints by both the Donohoes and Mr. Cagle, the City of Pineville, in September, 1975, purchased two used tank cars from the Police Jury, cut off the ends to make culverts, placed these tank cars in the existing, heavily eroded ditch between the Cagle and Do-nohoe properties, and covered them over with earth and gravel. These cars were approximately 30 feet long and 77 inches in diameter. The first car is attached to the west end of the street culvert and lies entirely beneath the Cagle property. The second car is mostly on the Cagle property, but angles to the southwest and extends some 10 to 12 feet onto the north side of the. Donohoe property. This culvert empties the water coming from the east and flowing under Hillcrest Drive into the ditch that has always existed between the Donohoe and Cagle properties. Mr. Cagle gave the City permission to install the culverts, and the evidence indicates that Mr. Donohoe was present when the culverts were being installed.”

Upon appeal, plaintiffs urge that they are entitled to damages as compensation for either the taking of the servitude of drain or for trespass for the unauthorized locating of the culverts on their property. Additionally, plaintiffs request injunctive relief compelling the City to remove the culverts.

A situation factually similar to the present action was considered by the First Circuit Court of Appeal in the case of State Ex Rel. Wood v. Pinder, 41 So.2d 479 (1949). In that case, the Town of DeQuincy constructed a sidewalk across the natural drainage path of the south edge of property owned by plaintiffs’ ancestors in title and under this sidewalk laid an 18-inch culvert to drain the street onto this land. The then owner of the land dug a ditch extending from this culvert and within the natural drain through the block to the next street. Plaintiff, after his purchase of the lot, laid a line of 18-inch concrete pipes connecting the culvert under the sidewalk to a point 18 inches past his property line and then filled in the ditch on his property. When the defendant bought the adjacent lot onto which the above drained, he blocked the drain pipe coming from plaintiff’s lot. Plaintiff sued to have him remove the obstruction and the court of appeals, reversing the trial court, so ordered.

“Article 660 is to be liberally construed in favor of the estate to which the servitude is due. Guesnard v. Bird, 33 La.Ann. 766. It has been repeatedly held that the owner of an estate whose waters flow by natural drains on the land of his neighbor, may cut ditches by which the waters may be concentrated and their flow increased beyond the slow natural process by which they would ultimately reach the same destination. The evidence in this case conclusively shows that neither the Town of DeQuincy nor the plaintiff has constructed any artificial aqueduct or drain which would make the natural servitude of drain which defendant’s property owed either to the Town or plaintiff’s property more burdensome. The construction of the galvanized culvert underneath the sidewalk by the town and the culvert drain by the plaintiff have only concentrated and increased the water which would ultimately flow on defendant’s property. The defendant has utterly failed to show that this drain causes more water to flow on his property which ultimately would not flow but on account of this drain.”

See also Thibodeaux v. Landry, 351 So.2d 522 (La.App. 3 Cir. 1977); Wood v. Gibson Construction Co., Inc. 313 So.2d 898 (La.App. 2 Cir. 1975), writ refused; Long v. Childress, 255 So.2d 822 (La.App. 2 Cir. 1971), writ refused, 1972; Freestate Industrial Development Co. v. T. & H., Inc. 209 So.2d 568 (La.App. 2 Cir. 1968), writ refused.

Plaintiffs-appellants suggest that the ease of Key v. La., Dept. of Highways, 357 So.2d 1230 (La.App. 2 Cir. 1978), writ refused, supports their claim for damages. A careful reading of this case shows that it is factually dissimilar in that, due to heavy construction work, large volumes of silt were deposited on plaintiff’s property by the increased velocity of the natural drainage. It was by these deposits that plaintiff’s property was deemed damaged, not by the water itself. In the present situation, we find no similar allegations and thus distinguish the two cases.

As the trial judge stated in his reasons for judgment, the factual findings were that the natural servitude of drain had been only slightly redirected by the installation of the culverts:

“The evidence adduced in this case fails to warrant a finding that the City of Pineville has either increased the quantity of water flowing onto petitioners’ property as alleged nor has it increased the velocity of that water. It is obvious that the only water which exits onto petitioners’ property from the west end of the tank car culvert is simply that which flows naturally into the culvert from the eastern side of Hillcrest Drive. This has been a natural drain from time immemorial. Installing the tank car culvert merely had the effect of extending the street culvert, but this in no way caused additional water to enter the culvert from the east.
“Furthermore, the City has done nothing to increase the velocity of the water coming onto the Donohoe property. Before installation of the tank cars, the water coming from the east had caused considerable erosion at the west end of the street culvert damaging both the Cagle and Donohoe properties. According to Mr. Cagle, water would come through the culvert with such force during periods of heavy rainfall that it would literally shoot through the air at the western end of the culvert. The City has merely redirected only slightly the point at which the water enters upon the Donohoe property.”

However, we do find that the City constructed the conduit onto the plaintiffs’ property approximately ten to twelve feet without the express permission of the plaintiffs. A similar factual situation was present in Freestate Industrial Development Co. v. T. & H., Inc., supra:

“Defendant, T. •& H., Inc., has further illegally constructed a concrete conduit which extends over the property line onto plaintiff’s property and has dug a ditch from this conduit down the slope of the west bank of the Old River bed.
“The case of Landry v. McCall, 3 La. Ann. 134 (Orleans, 1848), has held that the owner of a servitude of drain may not go upon the servient estate and do any acts without the consent of the owner. Under the holding of this case and the jurisprudence which follows same, the above acts of defendants constitute an illegal trespass on plaintiff’s property.”

The court then held that there would be “very little detriment to this property by allowing a few feet of conduit to remain . . We feel an alternative award of nominal damage would be appropriate.” The court awarded plaintiff $250.00 in damages.

In the present case, as somewhat more drainage pipe has been placed on the land of the plaintiff, we feel an award in the amount of $350.00 against the defendant, City of Pineville, would be appropriate and that as amended, the judgment of the trial court be affirmed.

Costs of this appeal are assessed against the defendant-appellee, City of Pineville.

AMENDED AND AFFIRMED.

      . Art. 660. Natural drainage
      Art. 660. It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.

        The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.
      The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.


author: FORET, Judge. PER CURIAM:

text:
    Succession of George V. KITE. Robert J. KITE et al., Plaintiffs-Appellees, v. Billie R. KITE, Defendant-Appellant, Transamerica Insurance Company, Intervenor-Appellee-Appellant.
    No. 6663.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearings Denied Jan. 31, 1979.
    Writ Refused March 23, 1979.
    Hunt, Godwin, Painter & Roddy, E. C. Hunt, Jr., Lake Charles, for defendant-appellant.
    Raggio, Farrar, Cappel & Chozen, Richard A. Chozen, Lake Charles, for interve-nor-appellee-appellant.
    R. Keith Findley, Lake Charles, for plaintiffs-appellees.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

This is an action brought to annul the probated statutory will of George V. Kite, which action was filed within three months of the date on which the will was introduced for probate. The determinative issue in this appeal is whether the decedent knew how to read, and therefore had the capacity to execute a statutory will under LSA-R.S. 9:2442.

George V. Kite died on March 4, 1977, leaving as his survivors his widow, Mrs. Billie R. Kite, and five children who were issues of a prior marriage.' He left a will executed in statutory form bequeathing the majority of the disposable portion of his estate to his widow and appointing her as executrix. The will was executed on April 21, 1976, and was admitted to probate on petition of Mrs. Kite on March 17, 1977.

Decedent’s surviving children instituted this action to annul the probated will. The petition named Billie R. Kite as the defendant, and alleged that the decedent did not know how to read, and therefore, the will was invalid under LSA-R.S. 9:2442 . Transameriea Insurance Company, the liability insurer of the notary public before whom the will was executed, intervened in the suit.

After trial was held, the trial judge ruled that the testator could not read. Accordingly, the lower court decreed the will to be null and void; denied a plea of estoppel filed by the defendant; revoked the previously issued orders probating the will and appointing the defendant as executrix, and assessed all costs and expenses of the proceedings to Mrs. Billie R. Kite. From this judgment, the defendant and intervenor now appeal.

After a careful review of the multiple volumes comprising the record in this case, the conclusion is inescapable that the controversy raised by the parties is entirely factual. The only issue presented for consideration is whether or not the testator could read. The trial judge, in a well written opinion, concluded that he could not read, and the record amply supports this determination.

The evidence introduced at trial revealed that George V. Kite was a successful and prosperous businessman in his community. The decedent owned and operated a local automobile dealership and was involved in several other concerns in the DeRidder area. During the course of his lifetime, the decedent established many relationships with other associates, professionals, workers and friends. But, despite Mr. Kite’s involvement in the community and his frequent contact with others, the defendant could not produce a single individual or even one item of direct evidence to establish that the decedent could read.

The defendant introduced testimony from many of the testator’s friends and associates to the effect that the decedent had the ability to read. Several witnesses indicated that the testator could identify numbers in a telephone book and then dial those numbers on the telephone. Additionally, it was established that the decedent could sign his name, as he had frequent occasion to do so in his business. However, a careful review of the evidence reveals that not one individual categorically stated that he had ever observed George Kite read.

Those witnesses who testified on behalf of the defendant were “of the opinion” that Mr. Kite knew how to read. Although they may have seen him with a paper in his hand, or a letter nearby, or a book or office memorandum on which he appeared to be working, nevertheless, no witness could positively state that George Kite had read to them. In fact, although a thorough search was conducted by the defendant, there was absolutely no evidence introduced of any writing composed by the decedent at any time in his life to indicate that he had the ability to read and write. Despite George Kite’s many business dealings, the defendant could not produce even a single sentence written by the decedent.

One of the decedent’s sisters, Mrs. Lena Myrick, testified by deposition that her brother had attended school until the third grade and that he was good in his studies and that he knew his ABC’s; however, this testimony was refuted by another of the decedent’s sisters, Mrs. Dovie Smith, and the decedent’s only living brother, Mr. Clarence Kite, who stated that their brother could neither read nor write and had in fact not attended school. The trial court classified the evidence given by Mrs. Lena Myr-ick as circumstantial whereas that of Mrs. Dovie Smith and Mr. Clarence Kite was characterized as direct. Also, the defendant’s own investigator testified that his investigation of all of the locations in which the decedent spent his early childhood failed to produce any evidence that the decedent had attended any school.

In the Estate of Moreau v. Moreau, 261 So.2d 293 (La.App. 3 Cir. 1972), this Court held that positive testimony should be given far more credence than negative testimony. In the case at bar, the trial court, in its written reasons for judgment, classified the majority of the evidence presented by the defendant as being circumstantial and held that the witnesses testifying for the plaintiff gave the only direct evidence that the decedent could not read. Our examination of this record leads us to the same conclusion.

Despite the efforts of the defendant to the contrary, the record in this case is detailed with numerous positive evidences that the decedent could not read. The officer who issued Mr. Kite’s driver’s license, Mr. Joseph Lofton, testified that he was unable to give Mr. Kite the written test as required because Mr. Kite had informed him that he could not read. Clarence Kite, the brother of George Kite, testified as did his sister, Mrs. Dovie Smith, that their brother, the decedent, could not read or write other than to sign his name.

All five of the decedent’s children stated that their father could never read or write and cited numerous situations in which they had to read and write for him.

Indeed, the evidence suggests that it was not until after the will was probated that the defendant began to openly suggest that her husband had some ability to read. Pri- or to that time, her statements were to the effect that her husband could not read or write and on one occasion, after her husband had suffered a stroke, she even informed a speech pathologist treating her husband that Mr. Kite had never been able to read or write and therefore, it would be useless for the therapist to attempt to restore Mr. Kite’s speech by having him read from printed flash cards.

At the time this will was executed, April 21, 1976, the law was clear that “. those who know not how or are not able to read, cannot make dispositions in the form of the will provided for in R.S. 9:2442 . . ” LSA-R.S. 9:2443. Clearly then, in order for the testator to have made a statutory will, he must have known how to read.

The trial judge utilized LSA-R.S. 1:3, holding that “Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language . . .” to determine that under this factual context, the decedent did not know how to read. It is not necessary to determine herein the applicable test for what constitutes the ability to read or write for the trial judge here found that the decedent had absolutely no ability to either read or write.

This is a factual determination which should not be interfered with in the absence of manifest error. As our review of the record indicates ample support for the trial judge’s conclusion, this Court will not reverse the decision of the lower court.

ASSESSMENT OP COURT COSTS

Defendant-appellant, Billie R. Kite, argues, on appeal, that the assessment of court costs by the trial court against Mrs. Kite should be reversed, and the costs assessed against the mass of the succession. We agree. As executrix of the succession of George Kite, Mrs. Kite had a duty to defend the validity of the decedent’s last will and testament. Therefore, all costs of this litigation should be assessed against the mass of the succession. The judgment of the trial court assessing the trial court costs against Mrs. Kite, defendant-appellant, is hereby reversed.

In all other respects, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against the Succession of George V. Kite.

AMENDED AND AFFIRMED.

REHEARING OPINION

PER CURIAM:

We note in the appellant’s application for rehearing the allegation that this Court misinterpreted the law by placing upon the appellant the burden of proving the capacity of the testator to execute a statutory will. We disagree. Although admittedly, it is not clearly spelled out in our original opinion, this Court in reviewing this case accepted the argument of the appellant, as did the Trial Court, that the ability to read is properly classified as a matter of capacity, and that as such, the burden is upon the opponents of the will (plaintiffs-appellees) to prove beyond a reasonable doubt that the testator lacked this capacity. See Succession of Glynn, 167 So.2d 533 (La.App. 4th Cir. 1964); Guidry v. Hardy, 254 So.2d 675 (La.App. 3rd Cir. 1971) and cases cited therein. A re-review of this matter convinces us that the opponents met this burden.

      . LSA-R.S. 9:2442 has now been amended to provide that an individual who can neither read nor write may nevertheless utilize a statutory will if it is executed before a notary and three competent witnesses, and the other formal requirements of R.S. 9:2442(B) are fulfilled. Act # 333, 1976, effective date October 1, 1976.


text:
    Earl W. ROOKS, Plaintiff-Appellant, v. RAPIDES PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 6707.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writ Refused March 16, 1979.
    Gravel, Roy & Burnes, Chris J. Roy, Alexandria, for plaintiff-appellant.
    Gus A. Voltz, Jr., Asst. Dist. A tty., Alexandria, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

Plaintiff, Earl W. Rooks, has brought this suit for a permanent injunction seeking to enjoin the Rapides Parish School Board from dismissing him as principal of A. Wet-termark High School. The defendant, Rap-ides Parish School Board, objected at trial and upon appeal to the use of injunctive procedure in this case. The trial court, ruling on the merits, refused to grant the injunction and plaintiff has appealed.

The plaintiff-appellant, Earl W. Rooks, who was a former principal of a high school operated by the Rapides Parish School Board, was advised on October 22, 1975, that Mr. Allen Nichols, Superintendent, had recommended the principal’s dismissal. The notification advised him of the grounds upon which the dismissal had been recommended and further advised him that a pre-termination hearing would be held in accordance with R.S. 17:443 et seq. The hearing began on November 20, 1975, at which time the principal, Rooks, personally appeared and was represented by counsel. Witnesses were presented to support the charges and Rooks and his counsel both had the opportunity of cross-examining each witness. The principal was given an opportunity to present evidence in his own behalf and to testify in his own behalf. The hearing could not be completed on November 20, but was continued until December 15, 1975 when, after another complete day of hearing, the matter was concluded. After deliberation, the Rapides Parish School Board dismissed the principal.

Mr. Rooks did not elect to take an appeal as provided for in R.S. 17:443, but instead elected to file a suit in the Ninth Judicial District Court in which he sought injunctive relief. He sought to enjoin the enforcement of the dismissal subsequent to the pre-termination hearing and asked for reinstatement as principal of the A. Wetter-mark High School.

After four days of hearing on the preliminary injunction, the Court, for written reasons, denied the preliminary injunction. (Tr. 20-29)

Thereafter, Rooks filed two more supplemental and amending petitions, and after four more days of trial, the trial court rendered judgment refusing to grant an injunction against the School Board’s dismissal. It is this judgment refusing the injunction, that is the subject of this appeal by the plaintiff.

We affirm the judgment of the trial court, but do so on the grounds that plaintiff has no right to an injunction when there is no proof that he has or will suffer “irreparable injury, loss or damage” as required by the provisions in Louisiana Code of Civil Procedure setting forth the remedy of injunctive relief (LSA-C.C.P. Art. 3601, et seq).

Plaintiff’s employment was governed by the Louisiana Teachers’ Tenure Act (La.R. S.17:441 ét seq) which not only conferred upon plaintiff a property right in continued employment, but also set out the procedures which a local school board must comply with in order to dismiss such employee.

The defendant-appellee, Rapides Parish School Board, objected initially and does now to the use of injunctive procedure in a case of this matter. R.S. 17:443 clearly provides that prior to termination or removal, a permanent teacher must be provided with written charges at least fifteen (15) days in advance of a full adversary hearing before the school board; the right to a review of the school board’s decision by a court of competent jurisdiction and if the finding of the school board is reversed by the court, the teacher is ordered reinstated and entitled to full pay for any loss of time or salary. This statute by its unequivocal terms negates the very basis of injunctive relief which is irreparable harm and inadequacy of legal remedies. The statute clearly states that there shall be reinstatement of position and full back pay in the event of reversal of the school board’s decision. Further, there can be no question that the legal remedies provided by the statute are adequate since the statute provides for a pre-termination adversary hearing, only after fifteen (15) days advance notice with written charges and the right to appeal to a court of competent jurisdiction for a review of the school board’s action and subsequently, a review of the trial court’s decision by an appellate court.

The appellant cites in support of his argument that this is a case involving a right to injunctive relief, the cases of Parker v. Board of Barber Examiners, 84 So.2d 80 (La.App. 1 Cir. 1955); and Bazard v. Louisiana State Livestock Sanitary Board, 135 So.2d 652 (La.App. 1 Cir. 1961). These cases are dealing with entirely different factual situations in that they are dealing with ex parte orders issued by an administrative board without any notification or prior hearing. Here, Rooks was not deprived of his position as a result of an ex parte order of the School Board. Instead, he was advised of pending charges, given a delay in which to prepare a defense or make explanations, participated directly in an adversary hearing by cross-examining witnesses appearing against him and presenting witnesses in his own behalf, being represented by counsel, and having a right to a review of the decision reached after the hearing by a court of competent jurisdiction and reinstatement with full back pay in the event of reversal. Appellant concludes his argument on the right to injunctive relief by stating that since a tenured teacher has a proprietary interest in continued employment, injunctive relief is “the appropriate legal remedy”, otherwise there would be a violation of due process. We agree that a tenured teacher has a proprietary interest in continued employment. This tenure is provided by LSA-R.S. 17:441 et seq. We further agree that the tenured teacher cannot be deprived of this proprietary interest without due process. Having once reached the conclusion that it is a case involving due process, .the determination then must be made as to what process is due. It is the School Board’s position that the statute itself outlines in detail what is due process in removing a tenured teacher because the appellant cannot on one hand claim the benefits under the statute with regard to tenure and yet say that the balance of the statute must be disregarded when it deals with removal. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

We fully agree with defendant-appellee’s position that injunctive relief, in this case, should have been denied for the reason that plaintiff has not shown that irreparable injury would result in the event that judicial review would result in a reversal of the School Board’s actions in dismissing plaintiff. Plaintiff’s remedy in the event of adverse School Board action, such as in this case, was and is to appeal the decision to the proper district court for judicial review. We understand from the School Board’s brief filed with this Court that the plaintiff has, in fact, timely filed a suit in the Ninth Judicial District Court for a review of the School Board’s actions in his dismissal, and that this appeal has not been tried. The matter is, therefore, still pending before the Ninth Judicial District Court. Clearly then, plaintiff has not shown proper grounds for injunctive relief, and his demands should be relegated to the procedures outlined in LSA-R.S. 17:443, et seq.

Having reached the above conclusion, we need not consider the other issues raised by plaintiff-appellant.

The judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . Art. 3601. Injunction, grounds for Issuance; preliminary injunction; temporary restraining order
      An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; provided, however, that no court shall have jurisdiction to issue, or cause to be issued, any temporary restraining order, preliminary injunction, or permanent injunction against any state department, board or agency, or any officer, administrator or head thereof, or any officer of the State of Louisiana in any suit involving the expenditure of public funds under any statute or law of this state to compel the expenditure of state funds when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.
      During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.
      Except as otherwise provided by law, an application for injunctive relief shall be by petition.
      Amended by Acts 1969, No. 34, § 2.