author: BOLIN, Judge.

text:
    CLAIBORNE ELECTRIC COOPERATIVE, INC., Plaintiff-Appellant-Appellee, v. Felix Gordon GARRETT et al., Defendants-Appellants-Appellees. CLAIBORNE ELECTRIC COOPERATIVE, INC., Plaintiff-Appellant-Appellee, v. Mrs. Alicegene McKENZIE et al., Defendants-Appellants-Appellees.
    Nos. 13515 and 13516.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    En Bane. Rehearing Denied May 10, 1978.
    Writ Refused June 30, 1978.

      Shaw & Shaw, Homer by James R. Hatch, Jonesboro, for plaintiff-appellant-appellee.
    Sanders & Castete, Ltd. by Martin S. Sanders, Jr., Winnfield, for defendants-appellants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

To meet the increased demand for electric power in the Lake Claiborne area, plaintiff planned a ten-mile-long 69 KV transmission and distribution line of single pole construction from an already existing to a proposed electric substation. Alleging inability to obtain rights of way across defendant landowners’ property by conventional agreement, plaintiff instituted these expropriation proceedings pursuant to Louisiana Revised Statutes 19:2(7).

The trial court consolidated for trial suits against two groups of landowners, but rendered separate judgments in each case. Plaintiff and the defendants in each suit have appealed or answered the appeals from judgments which granted plaintiff servitudes and awarded defendant landowners compensation for the takings, severance damages, attorney and expert witness fees. We amend the judgments by reducing the amount awarded for severance damages in No. 13,515, and by, reducing expert witness fees and increasing attorney fees in both cases; otherwise, we affirm.

The multiple issues relative to procedural and substantive matters will be discussed separately.

MOTIONS TO DISMISS

The trial court signed judgments in both cases on July 19, 1977.' Plaintiff appealed the judgments the same day, and perfected its appeals by posting devolutive bonds of $500 on July 22. On July 26, defendant landowners filed motions for new trials. New trials were granted and the July judgments were ordered held in abeyance pending decisions; judgments identical to the July 19 judgments, with the exception of increased attorney fees in both cases, were signed on November 8. Plaintiff and defendants timely perfected appeals from the November judgments. Also, after the records were lodged in this court, defendants timely answered plaintiff’s appeals from the July judgments.

Defendants moved to dismiss the original appeals of plaintiff as premature, since those appeals were taken from judgments subsequently ordered held in abeyance. We find no merit in this contention, which would penalize plaintiff for promptly perfecting its appeals.

After argument before this court the Garrett defendants (No. 13,515) filed a second motion to dismiss plaintiff’s appeal, contending Claiborne Electric had already cleared a right of way across their property and “otherwise effected a complete taking.” Since this motion to dismiss was not timely filed, it will not be considered. Louisiana Code of Civil Procedure Article 2161.

NEW TRIAL PROCEDURE

Plaintiff assigns as error the granting of new trials in these expropriation proceedings, contending this procedure is not available under the explicit terms of La.R.S. 19:13, as amended by Acts 1974, Ex.Sess., No. 11:

The whole of the judgment, however, shall be subject to the decision of the appellate court on review under a devolutive appeal, and the delays for taking such appeal shall commence upon the signing of the judgment determining compensation. (Emphasis added)

Plaintiff argues forcefully that the sixty-day period for perfecting a devolutive appeal begins to run on the date judgment is signed in an expropriation proceeding governed by Part I of Title 19, not after the expiration of delays for new trial as provided by La.C.C.P. Art. 2087; that this variance was intended to expedite these, expropriation proceedings, which are summary in nature. See La.C.C.P. Art. 2081; Columbia Gulf Transmission Co. v. C. J. Grayson, Inc., 232 So.2d 150 (La.App.2d Cir., 1970).

Assuming arguendo the new trial procedure is inappropriate, plaintiff and defendants in both suits are nevertheless before this court; plaintiff perfected appeals from the July judgments and defendants timely answered those appeals in this court. The answers present the questions of the inadequacy of both compensation and attorney fees awarded by the trial court, which is also the relief defendants sought by appealing the later judgments. We therefore choose to set aside the second judgments; we amend and affirm the judgments of July 19, 1977.

‡ * Sfc sfc * *

PREMATURITY

Defendants timely excepted to Claiborne Electric’s initiation of judicial proceedings as premature, based on plaintiff’s alleged failure to adequately negotiate in good faith with the landowners. The McKenzie defendants (No. 13,516) complain of failure to negotiate about price; the Garretts (No. 13,315), about both price and the location of the right of way. The trial court found adequate negotiation and overruled the exceptions.

The record shows plaintiff’s agents contacted defendants’ representatives, explained the route proposed by plaintiff’s engineer, and offered $300 an acre for the right of way. Plaintiff was able to purchase rights of way over the other tracts along the proposed route for $300 an acre. Plaintiff’s attorney contacted both the Garrett and McKenzie representatives and discussed location. Although plaintiff did not yield from its proposed route, the testimony reveals an alternate route was considered before being rejected by the expropriating authority as not feasible.

We hold there was a good faith attempt to acquire the rights of way by conventional agreement; plaintiff was not required to increase its original offer, nor change its proposed route at defendants’ request. Dixie Pipeline Company v. Barry, 227 So.2d 1 (La.App.3d Cir., 1969). The trial court was correct in overruling the exception of prematurity.

NECESSITY OF THE GARRETT TAKING

In No. 13,515, the defendants argue the requirement of Article I, Section 4 of the 1974 Louisiana Constitution, i. e., that private utilities only expropriate for a public and necessary purpose, places the burden on the expropriating authority to prove the particular route chosen was necessary; that, since plaintiff failed to prove it was necessary to traverse defendants’ property rather than locate the transmission line elsewhere, its suit should have been dismissed.

Although the 1974 Constitution did add the word “necessary,” the context of Article I, Section 4 indicates this refers to the necessity of the purpose for the expropriation, not the necessity for a specific location of the servitude. Since plaintiff has alleged and shown the need for increased electrical power in the Lake Claiborne area, defendants’ contention lacks merit.

CONVENIENCE OF THE LANDOWNERS

Defendants in both cases complain plaintiff did not consider the landowners’ convenience in mapping out its proposed route for the transmission line. La.R.S. 19:2(7). We agree that safety and convenience are primary considerations, but find the utility’s route location was within its sound discretion, not planned in bad faith, arbitrarily or unreasonably. Louisiana Power & Light Co. v. Caldwell, 353 So.2d 1343 (La.App.1st Cir., 1977).

In the Caldwell case, which defendants cite to support their contention that plaintiff here abused its discretion by ignoring the inconvenience to the landowners, the court affirmed the trial court’s judgment which had varied the right of way selected by the power company. The facts of Caid-well show plaintiff utility company’s proposed route would cause a major inconvenience to the landowners’ farming operations, particularly crop dusting. Furthermore, the alternate route in the corridor of already existing rights of way placed no unreasonable burden on the power company. Under these circumstances, the trial court and court of appeal found the route proposed by plaintiff utility company interfered, more than was necessary, with the convenience of the landowners.

In the present case, engineering considerations largely dictated the proposed route for the transmission line. Additionally, plaintiff’s general manager testified this route was viewed as least damaging to the environment and the properties traversed. A conscious effort was made to utilize open territory, rather than heavy timberland, wherever feasible. The project engineer claimed the straight line direction was best for land utilization, since it obviated the need for troublesome guy wires and supports by eliminating numerous dogleg turns.

Since plaintiff offered minimal evidence to show it considered defendants’ convenience, and since defendants offered no expert testimony to support a finding of major inconvenience, we follow the general rule and choose not to disturb the expropriating authority’s selection of a route. See Louisiana Power & Light Co. v. Caldwell, supra; Southwestern Electric Power Company v. Conger, 307 So.2d 380 (La.App.2d Cir., 1975).

COMPENSATION FOR THE TAKING A. The Garrett Property

The transmission line will cross two separate parcels of property owned in indivisión by the Garrett defendants (No. 13,515). A servitude 100 feet wide will be required across both tracts, which the parties and the trial court designated “Tract No. 1” and “Tract No. 2.”

The total area of the taking in Tract No. 1 amounts to 2.89 acres. All the expert appraisers agreed this tract’s highest and best use was for growing timber. Estimates of just compensation ranged from $975 by plaintiff’s appraiser to $1,878.50 by one of defendants’ appraisers. The appraisers for defendants considered the loss from the taking at 100% of value on this and all other expropriated portions; plaintiff’s expert thought the landowners retained 25% of the value of the expropriated strips of land.

The trial court valued this tract at $500 an acre. Since the court determined defendants retained some use of the land taken, it found they were entitled to 90% of the actual market value of this 100-foot-wide strip. Accordingly, the court awarded defendants $1,300.50 as just compensation. We find no error in this award.

Tract No. 2 fronted on a two-lane state highway. Plaintiff’s appraiser considered the value of this 2.34 acre parcel enhanced due to this highway frontage, but considered it timber property and limited its per acre value to $600. This computed to $1,053 as just compensation for the area taken. One of defendants’ experts quoted a lump sum compensation figure of $1,521, while the other divided Tract No. 2 into a front use, residential portion of 1.136 acres valued at $1,800 an acre, and 1.754 acres of “timber-farmland” with a per acre value of $615. This expert calculated a compensation figure of $3,124.

The trial court valued this tract at $750 an acre. Since the owners retained some use of the land taken, the court awarded 90% of the value or $1,579.50 for this parcel. Based on all the evidence, we find this award reasonable.

B. The McKenzie Property

The transmission line would require the taking of 4.33 acres of McKenzie property. The appraisals of just compensation ranged from a low of $1,137 by plaintiff’s expert, who valued the entire tract as timber property worth $350 per acre, to $10,825 by one of defendants’ appraisers, who recognized a combined best use of timber growth and rural homesites for the tract.

The trial court recognized the wide disparity in appraisals in his reasons for judgment and arrived at a value of $750 per acre. Granting defendants 90% of actual market value, the court awarded these landowners $2,922.75 as compensation for the 4.33 acres taken. We will not disturb this portion of the judgment.

SEVERANCE DAMAGES

The trial court reasoned that a strip of land 100 feet wide on either side of the servitude would suffer a diminished market value due to its proximity to a high voltage transmission line; that this diminution for timber and pasture land would amount to 30% of market value; that the strip through the property with rural residential potential would suffer a 40% diminution in value due to “the psychological effect on any purchaser or user of property this close to the transmission line.”

Plaintiff’s appraiser considered the highest and best use of all defendants’ properties to be growing and harvesting timber. He concluded there would be no severance damage caused by the taking or by the presence of the transmission line.

Defendants’ experts calculated a percentage of damage to remaining timber areas on all tracts; one appraiser testified the high voltage line’s proximity to a future timber plantation would inconvenience and render dangerous future crop dusting operations. This opinion is highly speculative and unsupported by testimony of a forester or crop dusting expert.

Since the parties agree the best use of Garrett Tract No. 1 is timberland, and since there is insufficient evidence that future timber operations would be hindered or inconvenienced by the presence of plaintiff’s high voltage line, we reverse the award of $2,601 severance damage for this tract.

Garrett Tract No. 2 contains substantial frontage on Louisiana Highway 146, a two-lane thoroughfare running generally east and west between the town of Homer and Lake Claiborne. This parcel contains 2.34 acres located approximately one-quarter of a mile west of the lake, an increasingly popular recreational attraction in North Louisiana. The record shows rural homes have already been constructed on sites directly across the highway from this property. Although plaintiff’s appraiser testified the Garrett property was unsuitable for this kind of development due to its low-lying situation, two appraisers for defendants referred to its desirability as rural homesites.

There is evidence to support the trial court’s finding that Garrett Tract No. 2 has residential use potential. The calculation of severance damages, based on the psychological impact a high voltage transmission line would have on prospective buyers of neighboring property, finds support in the testimony of defendants’ real estate appraisers. Consideration of this “desirability factor” of market value is also legally sound. Southwest La. Elec. Membership Corp. v. Dupuis, 345 So.2d 1280 (La.App.3d Cir., 1977); Southwest Louisiana Electric Mem. Corp. v. Huval, 317 So.2d 264 (La.App.3d Cir., 1975).

The determination that market value was affected only to the extent of 100-foot strips adjacent to the right of way reflects a recognition that the diminution in value results from an intangible, psychological factor; the prospective buyer becomes less concerned about the effect of a highline on property more remotely located. See Southwest La. Elec. Membership Corp. v. Dupuis, supra, at 1282.

We find the calculation of 40% of market value as severance damage to the 4.68 acres of Garrett Tract No. 2 adjacent to plaintiff’s right of way is a reasonable conclusion from the evidence. However, the trial court, in awarding $1,123.20, valued these 100-foot strips at $600 per acre. Since the court previously had determined (for purposes of calculating compensation for the taking) that this tract had a per acre value of $750, we increase the amount of severance damage due the Garrett defendants for this tract to $1,404.

The McKenzie property contained 1,900 feet of frontage on Highway 146. The trial court considered this tract, located approximately three miles west of Lake Claiborne, suitable for rural homesites and calculated severance damage in the same manner as it had previously done for Garrett Tract No. 2. For the reasons previously stated in our discussion of the Garrett tract, we affirm the trial court’s award of $2,550 as severance damage to the McKenzie property.

ATTORNEY FEES

La.R.S. 19:8, as amended, permits the court to award defendant landowners reasonable attorney fees if the highest amount offered by the expropriating authority is less than the compensation awarded. Plaintiff contends this statute allows attorney fees only in those cases where compensation is determined by a jury, and then only after the trial of a contradictory motion.

Defendants in these consolidated cases petitioned for reasonable attorney fees; they did not request a jury trial on issues of compensation. The district judge, who sat as trier of all the issues, was aware of the disparity between the amount offered by plaintiff and the compensation awarded; trial of a contradictory motion on this issue would be a useless exercise under the circumstances presented here.

We hold defendant landowners are entitled to reasonable attorney fees in any case in which the highest amount offered is less than that obtained through the landowners’ judicial assertion of their rights. This interpretation of the statute does not do violence to its language.

Defendants in both cases contend the amounts awarded for attorney fees were inadequate. The records before this court support this contention as to the amounts awarded in the original judgments. Therefore, we increase attorney fees in the Garrett case (No. 13,515) to $2,500; in the McKenzie case (No. 13,516), we find $1,750 to be reasonable compensation for the services rendered by defendants’ attorney. The trial judge obviously thought such awards were justified since these are the amounts he fixed in the second judgments.

EXPERT APPRAISER FEES

In No. 13,515, the trial court awarded defendants’ two real estate experts $900 each as compensation for their preparatory work and testimony in court. The fees granted these two appraisers 'in No. 13,516 were also $900 each. We find the combined award of $1,800 to each appraiser is excessive under the evidence presented.

Appraiser Stephens testified he spent a total of two days in preparation for both cases. We consider $200 per day reasonable compensation for this preparatory work. Stephens’ itemized bill lists an additional $250 for court appearances (two days at $125 per day), and $200 for travel and miscellaneous expenses connected with his work. We conclude $850 will adequately compensate appraiser Stephens for his work in both cases. Since this appraiser did not present evidence of a greater expenditure of time in one ease than in the other, we reduce his fee to $425 in each case. See Louisiana Power & Light Co. v. Caldwell, supra.

Appraiser Bass provided the court with only a lump sum statement of his charges— $1,000 in the Garrett case and $800 in the McKenzie case. However, the record shows his testimony was helpful in the court’s determination of value in both cases. We therefore fix his fee at $500 in No. 13,515 and $400 in No. 13,516 and assess these amounts as costs to be paid by plaintiff.

EXPERT WITNESS NOT LISTED IN PRE-TRIAL STATEMENT

Plaintiff complains the trial court erred in permitting one forester to testify for defendant landowners concerning timber values, after another forester had been listed in the pre-trial stipulation. Plaintiff also contends an inference adverse to defendants’ claims of property value arose from the failure of the stipulated expert to testify.

The expert testimony of the substituted forester did not surprise plaintiff, nor did it serve as the basis for an award to the landowners. If there was any error, it was harmless. Likewise, even if we assume the listed expert would have testified unfavorably to defendants, the preponderance of the evidence would nevertheless overcome this adverse inference.

JUDGMENT

The judgments of November 8, 1977 in No. 13,515 and No. 13,516 are set aside.

In No. 13,515, Claiborne Electric Cooperative, Inc. v. Felix Gordon Garrett et al., the judgment of July 19, 1977 is amended to delete the award of $2,601.00 for severance damage to Tract No. 1, and to increase the award to $1,404.00 for severance damage to Tract No. 2; to increase the award of attorney fees to $2,500; and to fix the fees of T. J. Stephens at $425 and H. L. Bass at $500. In all other respects, this judgment is affirmed at plaintiff’s cost.

In No. 13,516, Claiborne Electric Cooperative, Inc. v. Mrs. Alicegene McKenzie et al., the judgment of July 19,1977 is amended to increase the award of attorney fees to $1,750 and to fix the fees of T. J. Stephens at $425 and H. L. Bass at $400. In all other respects, this judgment is affirmed at plaintiff’s cost.

      . § 2.
      Where a price cannot be agreed upon with the owner, any of the following may expropriate needed property:

      (7) Any domestic or foreign corporation created for the purpose of generating, transmitting and distributing electricity and steam for power, lighting, heating, or other such uses. The generating plants, buildings, transmission lines, stations, and substations expropriated or for which property was expropriated shall be so located, constructed, operated, and maintained as not to be dangerous to persons or property nor interfere with the use of the wires of other wire using companies or, more than is necessary, with the convenience of the landowners;

      . Section 4. Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
      Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is pub-lie and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss. No business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise. However, a municipality may expropriate a utility within its jurisdiction. Personal effects, other than contraband, shall never be taken.
      This Section shall not apply to appropriation of property necessary for levee and levee drainage purposes. (Emphasis added)

      . The calculations of defendants’ appraiser Stephens are suspect. He found the taken area in Tract No. 2 contained 2.89 acres, whereas plaintiff’s appraiser and defendants’ appraiser Bass calculated this taking as 2.34 acres. Accordingly, Stephens’ $3,124 total value of the land taken is to compensate for acreage in excess of that actually taken from Tract No. 2. The 2.89 acres corresponds with the area taken from the interior, timber Tract No. 1, which Stephens valued at $584 an acre.

      . The trial court intended to award 30% of a $500 per acre market value for 5.78 acres contained in two 100-foot-wide strips on this tract. Its calculation of $2,601 severance damages, however, amounts to 90% of actual value (the percentage used as compensation for the expropriated area). Had we affirmed severance damages for this parcel, therefore, we would have been compelled to reduce the award to $867 in compliance with the trial court’s reasons for judgment.

      . The trial court gave no explanation for its differing valuations of this property for purposes of compensation for the taking and severance damages to the remainder. We know of no law that would permit this inconsistency.

      . The trial court found 8.5 acres in two 100-foot-wide strips adjacent to the right of way, and multiplied this acreage by 40% of the market value ($750).

      . Acts 1974, Ex.Sess., No. 11, providing in part:
      § 8. Trial in or out of term with dispatch, judgment; appraisals; payment in court registry
      A. Expropriation suits shall be tried in term time or in vacation and shall be conducted with preference and with the greatest possible dispatch. Judgments may be signed in term time or in vacation. All issues shall be decided by the trial judge. However, when a jury trial has been demanded, the judge shall hear the evidence on all issues, other than the measure of compensation and shall render a decision within five days. If the trial judge decides in favor of the expropriating authority, then within thirty days after such decision, a jury shall be impaneled to determine the measure of compensation. Immediately after compensation has been determined, the plaintiff shall, upon motion of the defendant, present evidence as to the highest amount it offered the defendant for the property prior to trial on the merits. After hearing evidence on the issue, the court shall determine the highest amount offered. If the highest amount offered is less than the compensation awarded, the court may award reasonable attorney fees. The expropriating authority shall not be entitled to possession or ownership of the property until a final judgement has been rendered and payment has been made to the owner or paid into the registry of the court, except as may otherwise be stipulated by the parties.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Susan Michelle ALEXANDER, Plaintiff-Appellee, v. Hobert (Hobart) ALEXANDER, Defendant-Appellant.
    No. 13521.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    En Banc. Rehearing Denied May 10, 1978.

      Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.
    Shaw & Shaw, Homer, by James R. Hatch, Jonesboro, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.

       MARVIN, J., took no part in rehearing.

   HALL, Judge.

Plaintiff’s father died in late 1971, leaving a will by which he bequeathed all of his property to his brother, defendant herein, and by which he expressed his intent to disinherit plaintiff who was his only child. Plaintiff, defendant and decedent were all domiciled in California. The will was probated in California over the opposition of plaintiff. The will, including the disinheri-son of plaintiff, was valid under California law.

The decedent’s sole or principal asset was an undivided interest in land located in Claiborne Parish, Louisiana. In 1973 defendant filed ex parte ancillary probate proceedings in Louisiana. Judgment was rendered ordering the will admitted to probate and executed, and recognizing defendant as universal legatee and as having inherited decedent’s undivided interest in the land.

Plaintiff filed this suit in early 1976 for reduction of an excessive donation mortis causa infringing on her legitime as a forced heir under Louisiana law, for recognition of her ownership interest in the land, and for an accounting of timber sold and oil and gas lease monies received by defendant. After trial on stipulated facts and documentary evidence, judgment was rendered recognizing plaintiff as owner of a one-third interest in decedent’s Louisiana estate, including the undivided interest in the land, together with all monies, royalties, revenues, produce and other benefits from the date of death of decedent, and ordering that defendant render an accounting of timber and forestry products, oil and gas royalties and lease monies, and other rents, products or revenues of the land since the date of decedent’s death. Defendant appealed.

On appeal defendant contends:

(1) The will and disinherison is valid under California law which is applicable because all of the parties were domiciled in California and the will was executed in that state;

(2) The California probate judgment is entitled to full faith and credit in Louisiana and is res judicata as to plaintiff’s rights in decedent’s estate; and

(3) Alternatively, defendant is required to account for oil and gas lease monies only from the date of plaintiff’s demand under LSA-C.C. Art. 1515.

I.

The law of the situs (Louisiana) governs the disposition by testament of real (immovable) property. Succession of Goss, 304 So.2d 704 (La.App.3d Cir. 1974), writ refused 309 So.2d 339 (La.1975), U.S. cert. denied, Goss v. Zuckswert, 423 U.S. 869, 96 S.Ct. 133, 46 L.Ed.2d 99 (1975). Under Louisiana law, a person with one legitimate child (forced heir) must leave one-third of his property to the child. LSA-C.C. Art. 1493. The child may be deprived of his legitime by the testator by disinherison only for just cause expressed in the testament. LSA-C.C. Arts. 1617-1624. The testament in this case did not express good cause for disinherison. The child may not, therefore, be deprived of her legitime and is entitled to have the excessive donation reduced. LSA-C.C. Arts. 1502, 1504. The judgment recognizing her as entitled to one-third of the testator’s immovable property in Louisiana is correct.

Appellant argues that the child’s “status” as heir or nonheir or disinherited heir is to be determined by California law under the general conflicts of law rule that “status” is to be determined by the law of the domicile. Succession of Goss, supra. The controlling status here is that of legitimate child, which status admittedly existed under either California or Louisiana law. Under Louisiana law, a legitimate child is a forced heir. The rules governing forced heirship are effects of status, governed by the law of the place. Sun Oil Company v. Guidry, 99 So.2d 424 (La.App.1st Cir. 1957). Disinherison is not a status, but a method of disposition or nondisposition, governed by the law of the situs of immovable property.

Louisiana law is applicable and supports appellee’s claim.

II.

Appellant contends the appearance in the California court of appellee’s guardian opposing probate of the California will on the grounds of undue influence and incompetency, and the subsequent probate of the will by the California court is res judi-cata and bars appellee’s claim to reduce the excessive donation. The California judgment is not res judicata as that proceeding involved an entirely different object and cause of action than is asserted in the instant proceeding. The plea of res judicata is without merit.

III.

The judgment ordered defendant to account for the proceeds from timber sales and mineral leases from the date of the testator’s death. Appellant contends that oil and gas lease monies are “fruits” and that under LSA-C.C. Art. 1515 the donee must only restore fruits received after the date of demand, rather than from the date of the decedent’s death, since the demand for reduction was made more than one year after the donor’s decease.

LSA-C.C. Art. 1515 provides:

“The donee restores the fruits of what exceeds the disposable portion only from the day of the donor’s decease, if the demand of the reduction was made within the year; otherwise from the day of the demand.”

Appellant concedes that the proceeds of the sale of timber are not “fruits” and that he must account for such proceeds. Succession of Rugg, 339 So.2d 519 (La.App.2d Cir. 1976), writ refused 341 So.2d 897 (1977).

Appellant argues, however, that the proceeds received from oil and gas leases are fruits, citing Milling v. Collector of Revenue, 220 La. 773, 57 So.2d 679 (1952); and McElwee v. McElwee, 255 So.2d 883 (La.App.2d Cir. 1971), for which he need account only from the date of plaintiff’s demand.

Appellee argues that oil, gas and minerals, like timber, are not fruits, but are incorporeal immovables, the proceeds of which must be accounted for from the date of decedent’s death, citing King v. Buffington, 240 La. 955, 126 So.2d 326 (1961); Gueno v. Medlenka, 238 La. 1081, 117 So.2d 817 (1960); Jackson v. Shaw, 151 La. 795, 92 So. 339 (1922); Elder v. Ellerbe, 135 La. 990, 66 So. 337 (1914); and Article 18 of the Mineral Code, LSA-R.S. 31:18.

Milling held that bonuses and royalties from oil and gas leases affecting the husband’s separate property are like rent derived from ordinary leases and are “profits” or “fruits” which fall into the community of acquets and gains under LSA-C.C. Art. 2402. McElwee, relying on Milling, held that royalties from leases affecting the wife’s separate property are fruits which fall into the community under LSA-C.C. Art. 2386.

Elder and Jackson held that proceeds from oil and gas leases are not fruits gathered from the land to which a good faith possessor is entitled prior to demand by the true owner under LSA-C.C. Art. 3453, since fruits contemplated under those articles mean things produced and reproduced and not things which dissipate the principal.

Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1975) recognized that a controversy exists over whether a good faith possessor is entitled to oil and gas lease royalties:

“There is some controversy as to whether mineral royalties are to be treated as fruits entitling a good faith possessor to retain them against the true owner. See Martel v. Hunt, 195 La. 701, 197 So. 402 (1940); Comment, The Measure of Damages for Unauthorized Production of Oil and Gas: The Role of Good and Bad Faith, 15 Tul.L.Rev. 291 (1941); Mason v. United States, 260 U.S. 545, 43 S.Ct. 200, 67 L.Ed. 396 (1923); Yiannopoulos, § 137, particularly notes 233 and 239, at 412 et seq.”

The court awarded royalties accrued prior to demand to the good faith possessors under the extreme circumstances of that case in the interest of justice, but expressly declared it was not ruling on the issue and was not establishing either a general rule or an exception to a general rule.

Gueno and King held that a usufructuary is entitled to oil and gas lease proceeds from wells producing at the date of creation of the usufruct but not from wells drilled thereafter. These decisions were based primarily on the specific provision of LSA-C.C. Art. 552 which provides that a usufruc-tuary is entitled to proceeds of mines and quarries actually worked before the commencement of the usufruct but has no right to mines and quarries not opened. However, discussion of the nature of oil and gas lease proceeds in those cases does lend support to the argument that such proceeds are not fruits. A usufructuary’s right to lease proceeds is now governed by LSA-R.S. 31:188, et seq.

In Delcambre v. Dubois, 263 So.2d 96 (La.App.3d Cir. 1972), the court held that mineral lease royalties are not fruits to which a vendee in a sale with right of redemption is entitled under LSA-C.C. Art. 2575.

The results reached in the cases discussed dealing with “fruits” as contemplated by Civil Code articles dealing with community property, good faith possessors and sale with right of redemption are not necessarily controlling in determining whether oil and gas lease proceeds are fruits as contemplated by LSA-C.C. Art. 1515 dealing with reduction of excessive donations. “Fruits” has been given different interpretations in different contexts. See Yiannopoulos, Civil Law Treatise Property, § 20 and § 137. The position of a donee with respect to an excessive donation subject for a limited time to a right of reduction by a forced heir is different from that of a marital partner, a good faith possessor, or a vendee under a sale with right of redemption. A donation mortis causa infringing on the legitime is not null, but is subject to reduction by action of the forced heir which must be brought within five years from probate of the will. LSA-C.C. Arts. 1502 and 3542. The forced heir can protect himself as to all fruits accruing after the death of the donor by bringing his action within one year from the date of the donor’s death. LSA-C.C. Art. 1515; Succession of Mulqueeny, 253 La. 595, 218 So.2d 607 (1969).

W.hile the cases dealing with similar issues are interesting and helpful to an understanding of the development of mineral law and of interpretation of the term fruits, we believe the issue presented for decision in the case before us can be resolved by direct application of code articles, and the Mineral Code which substantially codifies the rationale of the Milling case. LSA-C.C. Art. 1515 provides that the donee must restore the “fruits” only from the date of demand where demand is made more than a year after the donor’s death. Article 123 of the Mineral Code, LSA-R.S. 31:123, expressly provides that all payments to the lessor for the maintenance of a mineral lease and royalties paid to lessor are “rent.” Mineral rights are incorporeal im-movables. LSA-R.S. 31:18. Rent from the lease of immovable property is a civil fruit. LSA-C.C. Arts. 545, 499. Mineral lease proceeds are, therefore, fruits under LSA-C.C. Art. 1515. Thus, the donee need account for oil and gas lease proceeds only from the date of the forced heir’s demand where the demand is made more than a year after the donor’s death.

For the reasons assigned, the judgment is amended to require defendant to account for oil and gas lease proceeds only from the date of plaintiffs demand; and the judgment is recast as follows:

It is ordered, adjudged and decreed that the plaintiff Susan Michelle Alexander, be recognized as the legitimate child and legal forced heir of Frank Napoleon Alexander, deceased, and entitled to be and is hereby sent and placed into ownership and possession of a one-third (Vs) interest in the Louisiana estate of the deceased, Frank Napoleon Alexander, as her legitime, which estate consists of an undivided interest in the following described immovable property:

“The Northeast Quarter of Northwest Quarter (NE/4 of NW/4) and Southwest Quarter of Northwest Quarter (SW/4 of NW/4) of Section 3; and Northeast Quarter of Southeast Quarter (NE/4 of SE/4) and Southeast Quarter of Northeast Quarter (SE/4 of NE/4) of Section 4; all in Township 21 North, Range 5 West, containing 160 acres, more or less; AND the Southeast Quarter of Northeast Quarter (SE/4 of NE/4) and Northwest Quarter of Southeast Quarter (NW/4 of SE/4) and West Half of Southwest Quarter (W/2 of SW/4) of Section 28, and South Half of Southeast Quarter of Northeast Quarter (S/2 of SE/4 of NE/4) and East Half of Southeast Quarter (E/2 of SE/4) and Southwest Quarter of Southeast Quarter (SW/4 of SE/4) and South Half of Northwest Quarter of Southeast Quarter (S/2 of NW/4 of SE/4) of Section 29; and North Half of Northeast Quarter (N/2 of NE/4) and Southeast Quarter of Northeast Quarter (SE/4 of NE/4) of Section 32; and Northwest Quarter of Northwest Quarter (NW/4 of NW/4) of Section 33; and East Half of Southwest Quarter (E/2 of SW/4) of Section 34; all in Township 22 North, Range 5 West, containing 560 acres, more or less, both tracts containing 720 acres, more or less, in Claiborne Parish, Louisiana; AND 2.25 acres out of the Southwest corner of the Southeast Quarter of Northwest Quarter (SE/4 of NW/4) of Section 34, Township 22 North, Range 5 West, Claiborne Parish, Louisiana, described as BEGINNING at said Southwest corner and thence run East on forty line 200 yards; thence 44 yards to public road; thence West along South side of public road to West line of said forty; thence South 55 yards to place of beginning, containing in the aggregate 722.25 acres.”

It is further ordered, adjudged and decreed that the defendant Hobert (Hobart) Alexander, render an accounting of the proceeds from the sale of timber and/or forestry products from the above described property since the date of death of said Frank Napoleon Alexander.

It is further ordered, adjudged and decreed that defendant render an accounting of the proceeds from oil and gas leases and any other rentals, production or revenue derived from the said described property since the date of judicial demand, May 7, 1976.

All costs of these proceedings, including the cost of appeal, are assessed to the defendant.

Amended and recast.


author: MARVIN, Judge.

text:
    William W. COLE, Plaintiff-Appellant, v. Elinor Faye COLE, Defendant-Appellee.
    No. 13526.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    En Banc. Rehearing Denied May 10, 1978.

      James B. Wells, Bossier City, for plaintiff-appellant.
    Harvey P. Delaune, Bossier City, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

An exception of res judicata was sustained and the divorced husband’s suit against his former wife to annul a community property settlement was dismissed. He appeals. We reverse and remand.

After the divorce, Mrs. Cole sued for permanent alimony. Mr. Cole defended, and by way of reconvention, sought to annul his deed of the family home to her on grounds that she failed to live up to her alleged agreement that as consideration for the deed, she would waive her claim to future alimony. Judgment was rendered in that suit awarding alimony and rejecting the reconventional demand to annul the deed.

After that judgment became final, Mr. Cole brought suit, alleging that he received nothing from the settlement of the community estate, and that-the “tentative settlement” [of the community] was null because of “lesion beyond moiety.” Mr. Cole prayed for judgment “decreeing the partition . of the community ... a nullity . and ... in particular [that the deed to the family home] be declared null and void.”

The lower court stated that in the first suit the “inadequacy of the consideration [for the “division of community property”] was alleged and that this judge found that there was an adequate consideration . . ” On this basis, the exception of res judicata was sustained (that both suits related to the inadequacy of consideration). Certified copies of portions of the record in the first suit are attached to Mrs. Cole’s pleadings in the second suit, but the record before us does not contain a copy of the community property “tentative settlement” or a copy of the deed, both of which are sought to be annulled.

On appeal, Mr. Cole contends his cause of action in the reconventional demand of the first suit is not the same as the cause of action he alleges in this suit and that res judicata should not apply. Mitchell v. Bertolla, 340 So.2d 287 (La.1976). In Mitchell, the plaintiff first sought to nullify an option in a lease on the grounds of lesion and nonpayment of rent. In the second suit, plaintiff sought nullification on grounds including fraud and misrepresentation in the inducement of the contract. The Supreme Court reviewed and applied the civilian concept of res judicata, holding that each of the vices of consent which vitiate a contract is a separate “cause” under C.C. Art. 2286 terminology. The court held that fraud and lack of consideration was a separate “cause” from lesion and nonpayment of rent.

In Williamson v. Amilton, 13 La.Ann. 387 (1858), the divorced wife sued her former husband to annul a community property settlement and partition on the ground of lesion. The court held that the settlement and partition was subject to being attacked for lesion (C.C. Arts. 3078, 1398, 1402, 1403). See also Beatty v. Vining, 147 So.2d 37 (La.App. 2d Cir. 1962); C.C. Art. 1861.

Any distinction between this case and Mitchell is tenuous. On the basis of the record before us and in the light of Mitchell, we are compelled to reverse the action of the lower court and remand.

Cost of this appeal is assessed to the appellee. All other costs shall be assessed below. Reversed and remanded.

      . C.C. Art. 2286 reads:
      “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

      . It was earlier recognized that the “cause” of nullity for lesion was different from that resulting from fraud or deception. Block v. Hirsch, 145 La. 427, 82 So. 394 (1919).


author: JONES, Judge.

text:
    Cheryl Faye Powell PASCHALL, Plaintiff-Appellee, v. Freddie B. PASCHALL, Defendant-Appellant.
    No. 13528.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.

      Booth, Lockard, Jack, Pleasant & LeSage by Joe C. LeSage, Jr., Shreveport, for defendant-appellant.
    Wilson & Veatch by Thomas A. Wilson, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Appellant-husband appeals from a separation judgment on the grounds that the trial court improperly overruled his exception of venue. Appellant contends the separation judgment is a nullity because the exception of venue should have been sustained. The exception was based upon failure of the wife’s suit to meet the requirements of C.C.P. Art. 3941. The trial court found plaintiff was justified in leaving the last matrimonial domicile in Tennessee because defendant’s acts of misconduct were substantially similar to grounds for separation and for this reason found plaintiff was entitled to establish her domicile in Caddo Parish, which then became a place of proper venue under C.C.P. Art. 3941 for her separation suit. We affirm.

Plaintiff and defendant were married in Caddo Parish where they established their matrimonial domicile. Subsequently they moved to Memphis, Tennessee, and continued to live there until the wife left with the children and returned to Shreveport in April, 1977. The wife filed suit in Caddo Parish for separation on grounds of the husband’s cruel treatment. Defendant filed the exception of venue contending that the wife’s domicile is that of her husband (i. e., Tennessee) and she had no cause to leave the matrimonial domicile in Tennessee and establish her separate domicile in Caddo Parish.

At trial on the exception plaintiff and her father testified to circumstances surrounding her leaving the last matrimonial domicile in Memphis and establishing a separate domicile in Caddo Parish. The wife testified her husband’s acts of mental cruelty included his ignoring her, his refusal to have sexual relations with her, his accusations that she is an unfit mother, his cursing and degrading her in public and private, and his refusal to give her funds for the purchase of necessary personal and household items. The wife established that she and her children were living in Caddo Parish with her parents and intended to stay there indefinitely. Defendant presented no evidence.

The requirements of jurisdiction over the subject matter and venue are intertwined in domestic proceedings. Venue means the parish where an action or proceeding may properly be brought and tried. C.C.P. Art. 41. Under the special venue provision in C.C.P. Art. 3941, a separation action must be brought in one of three places: (1) domicile of the wife; (2) domicile of the husband; or (3) the last matrimonial domicile. The venue mandated by C.C.P. Art. 3941 is nonwaivable, is sometimes referred to as jurisdictional venue, and a judgment obtained in contravention of it is an absolute nullity. Generally the domicile of a married woman is the domicile of her husband (C.C. Art. 39), and a woman cannot establish a separate domicile unless her husband has abandoned her or unless her husband’s conduct justifies her leaving. The nature of the husband’s misconduct must be “substantially” similar to those grounds for granting a separation (i. e., abandonment, physical or mental cruelty, habitual intemperance, threat against the life of the spouse, etc.). See Berry v. Berry, 310 So.2d 626 (La.1975); and Johnson v. Welch, 334 So.2d 395 (La.1976).

For jurisdiction plaintiff necessarily relies upon C.C. Art. 142 which provides a separation may be obtained in Louisiana for any cause allowed by this state even if the cause occurred elsewhere while either or both of the spouses were domiciled elsewhere, provided the person obtaining the separation was domiciled in this state prior to the time the cause of action accrued, and is domiciled in this state at the time the action is filed. For venue plaintiff must establish a right to create a separate domicile in Caddo Parish, Louisiana.

The trial judge found plaintiff made a prima facie showing that her husband had subjected her to mental cruelty in Memphis, Tennessee. She was therefore entitled to establish a separate domicile in Caddo Parish and there to institute her separation suit under C.C. Art. 142 and C.C.P. Art. 3941.

Defendant assigns as error the trial court’s holding that plaintiff primarily with her own testimony has established justification for leaving the matrimonial domicile and creating a domicile of her own while at the same time indicating the wife’s evidence was inadequate to establish grounds for a separation in an uncontested case.

A careful review of the colloquy between the trial judge and counsel for defendant reflects that while the judge indicated he would not have awarded plaintiff a separation in an uncontested case based upon her testimony, he considered the testimony presented by the wife and father in this contested posture, which was subject to cross-examination by defendant’s counsel, to be straightforward, honest and uneva-sive. Undér the circumstances the trial judge stated he accepted the credibility of these witnesses. He concluded the wife, primarily with her own testimony, established that she left the matrimonial domicile for reasons which would entitle her to a separation and, therefore, she was justified in establishing a separate domicile. The trial judge did not say that the same evidence produced under the same circumstances and not rebutted would not be adequate to support a judgment for separation.

The' trial judge’s comment that he would not have awarded plaintiff a separation based upon the same testimony if produced in an uncontested situation must be considered in light of his further observations on the quality of the testimony elicited in the contested situation. It is our view that this comment under these circumstances does not detract from his findings nor affect the weight to which these findings are entitled upon appeal.

We find the evidence fully supports the judgment of the trial court overruling the exception of venue, and therefore the separation judgment is valid.

Affirmed at appellant’s cost.

      . C.C.P. Art. 3941
      “An action for an annulment of marriage, for a separation from bed and board, or for a divorce shall be brought in a parish where either party, is domiciled, or in the parish of the last matrimonial domicile.
      “The venue provided in this article may not be waived, and a judgment rendered in any of these actions by a court of improper venue is an absolute nullity.”

      . Art. 1 Jurisdiction defined
      “Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.”


author: GUIDRY, Judge.

text:
    Carolyn TADLOCK, Plaintiff-Appellant, v. W. H. HODGES & COMPANY, INC., Defendant-Appellee.
    No. 6538.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 1978.

      Wm. Henry Sanders, Jena, Edward A. Kaplan, Eugene P. Cicardo, Alexandria, for plaintiff-appellant.
    Gist, Methvin & Trimble, H. B. Gist, Jr., Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

MOTION TO DISMISS

We issued, ex proprio motu, a rule to show cause why plaintiff-appellant’s appeal in this matter should not be dismissed due to her failure to timely file an appeal bond. Plaintiff-appellant has answered the rule.

We dismiss the appeal.

The trial court granted a motion for summary judgment in favor of defendant on October 27, 1977, and notice of judgment was mailed by the clerk of court on the same day.

A summary judgment is a final, appealable judgment. LSA-C.C.P. art. 968. Since a new trial was not applied for, appellant had until January 9,1978, within which to perfect her devolutive appeal. LSA-C. C.P. art. 2087. Plaintiff-appellant timely obtained an order of appeal on December 13, 1977. However, since the appeal bond was not filed until January 17, 1978, the appeal is untimely and must therefore be dismissed. Act 176 of 1977, eliminating the requirement of security for a devolutive appeal, applies only to appeals in which the order of appeal is granted on or after January 1, 1978. See Robbins v. Estate of Camille Bordelon, 356 So.2d 113 (La.App. 3rd Cir. 1978).

For the reasons assigned, plaintiff-appellant’s appeal is dismissed at her cost.

APPEAL DISMISSED.


author: GUIDRY, Judge. DOMENGEAUX, Judge, WATSON, Judge,

text:
    Clyde DARBONNE, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6334.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Writ Refused June 9, 1978.

      William J. Doran, Jr., Baton Rouge, and Devillier & Ardoin, J. Winston Ardoin, Eunice, for defendants-appellants.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff-appellee.
    Richard B. Millspaugh, Opelousas, Voor- ' hies & Labbe, William M. Bass, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, WATSON, GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

This damage suit arises as a result of a head-on collision between a pick-up truck driven by Herman Ledoux and a motorcycle operated by Johnny Ray Stoute. Clyde Darbonne was riding as a passenger on the motorcycle operated by Stoute. The accident occurred June 20, 1976 on Louisiana Highway 741, St. Landry Parish, shortly after midnight. As a result of the accident Stoute and Darbonne received critical injuries and died, the latter some five days post accident. Ledoux died, from unrelated causes, prior to trial.

■Suit was instituted following which Dar-bonne’s widow, Victoria Lynn Savoie Dar-bonne, was substituted as party plaintiff, individually and on behalf of her minor son, Anthony Paul Darbonne. Named as defendants were Herman Ledoux, Allstate Insurance Company, Ledoux’s insurer, and the Louisiana Department of Highways (Department). The Department filed answer denying any responsibility for the accident and impleaded the Succession of Johnny Ray Stoute and Herman Ledoux as third party defendants. By supplemental petition plaintiff, Darbonne, joined Cavalier Insurance Corporation, insurer of Stoute, as a defendant, alleging that Ledoux was an underinsured motorist.

Ledoux’s widow, Enola Carriere Ledoux, and his surviving child, Katherine Ledoux Fontenot, were substituted as defendants after Ledoux’s death. Subsequently, Mary Katherine Ledoux Fontenot, administratrix of the succession, was substituted as defendant for the widow and surviving child. Stoute’s widow and succession representative, Brenda Gail Rivette Stoute, was substituted as a defendant. Cavalier Insurance Company filed a third party demand seeking indemnification, subrogation and contribution from the Succession of Ledoux and/or the Department.

Plaintiff’s claims against Ledoux and Allstate were compromised just prior to trial and they were dismissed as principal defendants. The instrument or document releasing Ledoux and Allstate does not appear in the record. The only evidence of such release is the trial court’s order dismissing plaintiff’s suit as against these parties.

The trial court, in written reasons, concluded that Ledoux was clearly negligent, being intoxicated and in the wrong lane of traffic. The trial court also determined that the Department was negligent for failing to re-stripe Louisiana Highway 741 with a center line and/or place signs warning of the absence of a center line and that such negligence was a cause in fact of the accident. The Department was cast in judgment and given judgment over against Ledoux for one-half of the amounts awarded. All demands against Stoute and Cavalier Insurance Corporation were dismissed. Plaintiff, individually and as representative of her minor child, was awarded the total sum of THREE HUNDRED FOURTEEN THOUSAND ONE HUNDRED EIGHTY-FIVE DOLLARS AND NINETEEN CENTS ($314,185.19).

The Department has appealed suspensively, contending that the trial court erred in: not finding Ledoux’s negligence to be the sole cause of the accident; finding the Department guilty of any negligence causing the accident; not finding the action against the Department barred by Ledoux’s release; not giving the Department credit for one-half the judgment because of Ledoux’s release; and, awarding excessive damages. Plaintiff has answered the appeal disputing the trial court’s finding of negligence on the part of Ledoux.

All of the parties who were actually involved in this accident died prior to the trial of this matter. The only evidence available to the court with regard to the happening of the accident and the physical facts relating thereto is the testimony of Trooper First Class John Pitre, who investigated the accident, arriving at the scene shortly following its happening. Other pertinent information concerning the roadway is established by the testimony of various employees of the Department who testified. From this evidence we glean the following uncon-troverted facts.

Louisiana Highway 741 (St. Landry Parish), which runs generally north-south, is a typical country black-topped road, the roadway being 21.5 feet wide with relatively wide unimproved (grassy) shoulders on each side. The surface of the roadway was resealed on June 3,1976, seventeen days prior to the accident. Because of the resealing there was no centerline striping on the roadway at the time of the accident. A roadway resurfaced with the material used on Highway 741 (asphalt and black gravel) must cure for several weeks before it can be re-striped because prior to curing the marking material will not adhere to the asphalt. There were no signs warning of the absence of a center line.

The accident occurred in flat open country at the most northern portion of a long mild curve, which curves to the left for motorists proceeding in a northerly direction. Vision from the beginning to the end of this long curve, approximately one-quarter mile, is completely unobstructed.

The vehicle driven by Ledoux was traveling north and the motorcycle operated by Stoute, with Darbonne as a passenger, was proceeding south. A head-on collision occurred when the Ledoux vehicle moved completely over into the south bound lane striking the motorcycle, the point of impact being fixed at approximately two feet nine inches (2'9") from the west edge (shoulder edge) of the south bound lane.

With regard to Ledoux’s physical condition at the time of accident, Trooper Pitre testified as follows:

“Q. Did you have an opportunity to observe his physical condition at that time?
A. Yes, Sir.
Q. Can you tell me what his condition was?
A. Intoxicated.”

With regard to the degree of Ledoux’s intoxication, Trooper Pitre testified as follows concerning the results of certain tests administered by him to Ledoux at Troop K headquarters some two hours post accident:

‘A. Balance while standing was swaying; while walking stumbling. Turning while walking, was hesitant in making the turn and swaying at the time. Finger to nose test using the right finger he was hesitant but he completed that successfully and using the left he missed. ”

Trooper Pitre also testified about conversations at the scene of the accident with Darbonne and Ledoux. This testimony was permitted by the trial court, without objection, as part of the res gestae. Trooper Pitre stated that in response to his questioning of each with regard to the position on the roadway of each vehicle at the time of collision Mr. Darbonne stated that the Ledoux vehicle was in his lane of traffic; and, Mr. Ledoux stated that he did not know the position of his vehicle on the highway at the time of collision because he was blinded by a headlight.

On the basis of the above evidence the trial judge concluded that Ledoux was negligent and that his negligence was a cause in fact of the accident. The trial court held that the Department was also negligent reasoning as follows:

“Accordingly, this Court finds that even though the driver of the oncoming vehicle, Mr. Ledoux was under the influence, the fact that he could not find his position on the highway; the fact that striping was not present; the fact that the luminous material, for night aid, was necessarily missing, as it was normally put down mixed in the paint constituting the striping, it is more probable than not that the absence of the striping with its luminous paint was a contributing factor and a cause in fact and/or a proximate cause of the accident.”
“The ‘blinding light’, in the opinion of the Court, adds force to the Court (sic) finding and conclusion. If Mr. LeDoux was ‘blinded’, it seems to the Court that the importance of the center line and the luminous paint grows, and the Court is of the opinion that in this situation he would have had guidance and something to cling to, as he had come this far without mishap, through marked areas.”
“The attorney for Plaintiff argues that the road curved, and Mr. LeDoux went straight, which he would not have done had the center line been there to guide and help him. This Court believes this to be true.”

We find the trial court’s conclusion as to the negligence of Mr. Ledoux and its causal eonnexity with the accident clearly correct. In Simon v. Ford Motor Company, 282 So.2d 126 (La.1973) our Supreme Court reiterated the rule to be applied with regard to the liability of a driver who is involved in a collision in the opposing lane of travel:

“When a driver on his wrong side of the road collides with another car which is in its correct lane of traffic, the driver is required to exculpate himself of any fault, however slight, contributing to the accident. . . . (citations omitted).’’

In the instant case, there is no evidence whatsoever to exculpate Ledoux from fault.

We find the trial court’s conclusion that a causal relationship existed between the harm to plaintiff’s decedent and the Department’s allegedly negligent conduct to be manifestly erroneous.

There is no testimony or other evidence in the record, expert or otherwise, to show that the absence of the center line had anything whatsoever to do with this accident. There is no evidence that when Mr. Ledoux was allegedly blinded by the headlight of the motorcycle he looked down at the roadway but could not orient himself because of the absence of markings on the asphalt surface. In his statement to Trooper Pitre, Mr. Ledoux made no mention whatever of the center line or his inability to orient himself on the roadway because of its absence. If Mr. Ledoux was in fact completely blinded by the headlight, he could not have seen a center line had it been there. On the other hand, if he was not blinded to such degree and he did become disoriented there were other physical characteristics of the roadway which were plainly visible and which should have served to orient a reasonably prudent driver as to location. The photographs taken by Trooper Pitre shortly following the accident (Exhibits P-5, 6, 7, 8 and 10) reflect that the edge of the roadway and the beginning of the shoulder is clearly discernible at night. The trial court’s determination that the road curved, and Mr. Ledoux went straight, and the trial judge’s inference that this would not have occurred “if the center line had been there to guide and help him” is not borne out by the record. The record clearly indicates that the curve turned left (Tr. pg. 29). Under such circumstance, applying the trial court’s reasoning, the Le-doux vehicle would not have proceeded directly in the path of the motorcycle but rather would have moved off the road to the right and awéty from the south bound lane.

We are aware that reversible error exists as to a factual conclusion only where there is a complete absence of probative facts to support a reasonable inference by the trier of fact. Canter v. Koehring Company, 283 So.2d 716 (La.1973). In this case, although there are facts supporting the conclusion that Ledoux was blinded by an oncoming light while coming out of a mild curve, there is a total absence of probative facts to infer that upon such happening he looked down at the roadway, became disoriented and veered into the opposite lane of traffic, because there was no center line striping to guide him. In our view this is not a reasonable inference based on probative evidence, but rather an inference based on speculation and conjecture. Accordingly, we conclude that the trial court’s determination that the absence of highway markings was a cause in fact of this accident is manifestly erroneous and must be reversed.

In view of this conclusion it is unnecessary that we address the other issues raised by the Department on appeal including whether, under all circumstances the Department is under a duty to center stripe all highways and/or whether in the absence of center striping the Department is under a duty to post warning signs. However, in connection with the latter we observe that a reasonably prudent driver need not be warned of conditions which are patent and obvious. Norris v. State, 337 So.2d 257 (La.App. 3rd Cir. 1976). The fact that a highway has no center striping should be obvious and apparent to the dullest.

For the above and foregoing reasons the judgment of the trial court is reversed insofar as it casts the Department in damages and costs to the plaintiff and awards the Department judgment against Herman Le-doux for an amount equal to one-half (V2) of the amount of judgment and it is now ordered, adjudged and decreed that plaintiff’s suit against the Louisiana Department of Highways, as well as the Department’s third party demand against Herman Le-doux and the Succession of Johnny Ray Stoute, are ordered dismissed with prejudice. In all other respects the judgment appealed from is affirmed. Costs of this appeal are assessed to plaintiff-appellee.

REVERSED IN PART AND RENDERED: AFFIRMED IN PART.

DOMENGEAUX, J., concurs and assigns reasons.

WATSON, J., dissents and assigns written reasons.

DOMENGEAUX, Judge,

concurring.

I agree with the majority opinion and conclude that the absence of a center stripe on the highway had absolutely nothing to do with this unfortunate accident. This is true here as it was in the case of Norris v. State, 337 So.2d 257 (La.App. 3rd Cir. 1976), and the legal pronouncements in Norris are applicable to this case. The sole proximate cause of this accident was the negligence of the decedent, Mr. Ledoux. In order to hold the Highway Department responsible we would have to indulge in rank speculation and conjecture. The record is absolutely devoid of any evidence which causally faults the Department.

WATSON, Judge,

dissenting:

I respectfully dissent:

One can speculate that this accident was caused solely by Ledoux’s intoxication and negligence. However, Trooper Pitre quoted Ledoux as saying:

“He told me at that time, he said he was blinded by the headlight and he didn’t know where he was when the collision occurred.” (TR. 31).

The trial court inferred from this that Le-doux, coming out of a curve, blinded by the oncoming light, looked down the roadway, could not orient himself because of the absence of any markings on the dark asphalt, and veered into the wrong lane, making the absence of markings an additional cause in fact of the accident. It is common knowledge that a driver whose full vision of the highway is impaired by oncoming lights can ordinarily look down and see something of the pavement immediately in front of him. Compare Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377 (1940), and Emerson v. Bailey, 102 N.H. 360, 156 A.2d 762 (1959). In Emerson plaintiff was able to stay in her lane while so blinded by “. . . watching the yellow line. . . ” 156 A.2d 764. When a highway is completely unmarked, with neither side nor center lines, a semi-blinded driver can become disoriented and lose his way as Ledoux did here. Absence of highway markings can be regarded as a substantial factor in the resulting accident.

An act of omission need not be the sole cause of an injury to be a cause in fact. Other causes may have contributed but an act or omission is a cause in fact if it was a material element and a substantial factor in bringing about the result. It can be a pre-existing passive condition which plays a material part in bringing.about the event. Causation:

. . is a question of fact. It is, furthermore, a fact upon which all the learning, literature and lore of the law are largely lost. It is a matter upon which any layman is quite as competent to sit in judgment as the most experienced court. For that reason, in the ordinary case, it is peculiarly a question for the jury.” Prosser, Law of Torts, 4th Ed., p. 237.
* * * * * *
“If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists.” Prosser, Law of Torts, 4th Ed., p. 242.

Factual causation is an issue to be resolved at trial. Pence v. Ketchum, 326 So.2d 831 (La., 1976). Reversible error exists as to a factual conclusion about causation only when there is a complete absence of probative facts to support a reasonable inference by the trier of fact. Canter v. Koehring Company, 283 So.2d 716 (La., 1973); Simpson v. Logan Motor Company, 192 A.2d 122 (D.C.App., 1963). The trial court’s conclusion that the absence of highway markings was a cause in fact of this accident is not manifestly erroneous.

The second question is whether the Department of Highways was under a duty to protect Darbonne against the risk of a driver crossing into the wrong lane of traffic by marking the center line.

A duty to mark highway lanes is established by the testimony of the highway department employees, Norckeuer, Watkins and Hebert; by statute, LSA-R.S. 48:341; and the Department of Highways’ manual.

LSA-R.S. 48:341, entitled “Channeling traffic by lines”, states:

“In the interest of the safety and convenience of motor vehicle operation, appropriate geometric designs and traffic regulatory devices shall be employed to provide separate channels for the movement of vehicles traveling in different directions and to regulate the maneuvering of vehicles within and between these traffic streams.”

The Department of Highways “Traffic Control Devices Manual” (P-48) provides that:

“A center line separates traffic traveling in opposite directions. It need not be at the geometrical center of the pavement.
“The center line markings on two-lane, two-way highways shall be either: * * ” page 181. (emphasis ours).

The manual defines the meaning of “shall” at another point:

“In the Manual sections dealing with the design and application of traffic control devices, the words ‘shall,’ ‘should’ and ‘may’ are used to describe specific conditions concerning these devices. To clarify the meanings intended in this Manual by the use of these words, the following definitions apply:
“1. SHALL — A mandatory condition. Where certain requirements in the design or application of the device are described with the ‘shall’ stipulation, it is mandatory when an installation is made that these requirements be met. * * * ” pages 5-6.

The intent of the above provisions is, as stated in LSA-R.S. 48:341, to promote safe motor vehicle operation and thereby protect citizens on the highways both from themselves and others. Darbonne was among those whose protection was intended. Clearly, the purpose of marking traffic lanes is to guard against what occurred here, an automobile crossing into the wrong lane of the highway.

The next question is whether failure of the Department of Highways to restripe this highway or provide warning signs was “negligent, substandard, blameworthy” or such conduct for which the law ought to permit recovery.

Failure by the Department to comply with the requirements of its manual is not in and of itself negligence. Vervik v. State, Department of Highways, 302 So.2d 895 (La., 1974). The absence of center striping on this highway was as obvious as a warning sign would have been and apparent to a prudent driver. Thus a warning sign would have been useless. Norris v. State, 337 So.2d 257 (La.App. 3 Cir. 1976). However, the Highway Department owes the public a duty of reasonable care in maintaining the state highways, particularly where a specific statutory requirement is imposed. The trial court concluded that the Highway Department was derelict in that duty as to this particular highway and thus negligent. The evidence was that this highway was restriped on July 7, after the accident on June 20.

Hebert, the striping foreman, testified that he was not notified highway 741 had been resealed with asphalt on June 3. A road resealed with asphalt and black gravel like this one must cure for three or four weeks before it is striped. A new blacktopped or concrete road can be restriped .immediately but one with loose gravel has to cure. It was restriped in July merely because Hebert’s crew happened to be in the parish on their regular schedule at that time. Hebert has one truck or striping machine and receives his orders from Baton Rouge. He moves from parish to parish as ordered. Hebert has no particular criterion for determining whether a roadway can be restriped but decides from observation when it is ready. The particular stretch of highway 741 where the accident occurred is normally marked with a dashed yellow line and a solid yellow line in the curve to indicate a no passing zone. The decision as to whether a curve should have a solid line is made by Hebert. He follows the Highway Department manual. Orange cones could have been used to indicate a center line but Hebert believed they would have caused accidents, since the wind from large trucks blows them over. Protective tape would not have stayed on the loose gravel present after resealing, and Hebert’s crew does not put down raised metal reflectors.

Watkins testified that resealing is a process whereby asphalt and small aggregate is placed on a roadway. The resealing crews report to a Mr. Stagg, who is under Watkins’ supervision. Watkins identified a work report showing resealing on Louisiana Highway 741 on June 3, 1976. Warning signs are used during the resealing process but not during restriping, although both are regarded as maintenance. Restriping is not under the jurisdiction of the various highway districts, which have no control over how it is scheduled. Before trial a procedure had been inaugurated whereby Baton Rouge is notified that a roadway is ready to be restriped. This procedure was not in effect in June of 1976, and the Baton Rouge office was not notified that highway 741 had been resealed and the center stripe obliterated. Watkins testified that the lightweight aggregate used for resealing would not hold any type of marking material until it cured, as far as he knew. In his opinion, reflecting tape, which can be applied to asphalt and concrete, would not stay in place on surface treatment. However, the aggregate is more inclined to stick and resealing is more successful during the summer when the weather is hot. The procedure is therefore not performed during December, January and February. The aggregate does not actually cure but merely ages until it is likely to remain where it is.

Norckeuer testified that Hebert works under him. There is no set procedure whereby Norckeuer’s office is advised that a roadway needs to be restriped. The determination is made by visual examination. A first striping is sometimes done too soon and must be repeated in a few months. According to Norckeuer’s records, highway 741 was not striped at the time of the accident. He was not aware of any type of temporary marking which could have been used. Norckeuer did not recall any highway department discussion of this point and said that the Department had never considered lack of center lines a problem although conceding such a situation poses an additional danger, particularly at night. He had not inspected highway 741 at the time of the accident but was of the opinion that it was too soon for it to be striped. However, he admitted that restriping can sometimes be done two weeks after a roadway is resealed. The time varies from two to three weeks as the aggregate is blended into the road surface. There is no set procedure. Norckeuer interpreted the Department of Highways’ manual as requiring striping as soon as practical.

The procedures followed by the Highway Department show a cavalier attitude to correction of a dangerous situation created by acts of their employees. No attempt was made to ascertain if this particular highway was ready to be restriped. It is quite possible that, at the time of this accident, 17 days after the resealing, a striping process would have been successful. The uncontra-dicted evidence is that the maintenance of a highway without a center line is dangerous. There is no proof that a center line on this highway was not feasible at the time of the accident. The Highway Department was aware that the defect existed and knew that it constituted a danger to motorists. Cain v. Houston General Insurance Co., 327 So.2d 526 (La.App. 2 Cir. 1976), writ denied La., 330 So.2d 279. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La., 1975). Under these circumstances, failure to follow some procedure whereby a center line could have been provided at the earliest possible time created an undue risk of harm to the motoring public and constitutes negligence on the part of the Department of Highways.

Therefore, I respectfully dissent.

      . As phrased by Prof. Robertson in “Dialogues on Hill v. Lundin ” 34 La.L.R. 1 at 22.