text:
    T. H. DAVIDGE et al. v. Philip MAGLIOLO.
    No. 10982.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Granted Jan. 19, 1977.

      Autley Newton and Arthur W. Macy, Hammond, for appellants.
    Rodney C. Cashe, Hammond, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is a motion by defendant-appellee, Philip Magliolo, to dismiss the appeal of plaintiffs-appellants, T. H. Davidge and David D. Davidge, on the ground that the appeal was untimely filed.

On December 30, 1975, the trial court rendered judgment against plaintiffs maintaining the exception of ten-years acquisitive prescription of defendant filed in a possessory action converted into a petitory action, and declaring defendant to be the owner of a certain parcel of land in Tangi-pahoa Parish, Louisiana.

On January 23, 1976, defendants petitioned for a suspensive appeal. The order of appeal was signed on January 23, 1976, fixing the return date to this Court as of March 24, 1976, and further fixing the amount of security required to be furnished by appellants at $500.00. The appeal bond was subsequently filed. An extension of the return date was granted until May 21, 1976. No further extension of the return date was requested nor granted. The appellants paid the Court of Appeal filing fee, and also the fees due the clerk of court. However, appellants failed to pay the fees due the court reporter for preparing the transcript of the testimony prior to the return date; consequently the court reporter did not file the transcript with the clerk of court, and the clerk of court did not prepare the record and lodge it timely with the Court of Appeal. Appellee originally filed his motion to dismiss on June 16,1976, based on the untimely filing of the appeal. The record in the suit was not filed until June 30, 1976, which is 40 days after the return date.

This Court is of the opinion that the motion to dismiss should be granted.

Article 2126 of LSA-C.C.P. states:

“The appellant shall pay to the clerk of the trial court, not later than three days prior to the return day or extended return day, all costs of preparing the record on appeal, and the filing fee required by the appellate court to lodge the appeal.”

Article 2127 of LSA-C.C.P. reads:

“The clerk of the trial court shall have the duty of preparing the record on appeal. He shall cause it to be lodged with the appellate court on or before the return day or any extension thereof, upon the timely payment to him by the appellant of all fees due in connection with the appeal, including the filing fee required by the appellate court to lodge the appeal. Failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal.”

Article 2161 of LSA-C.C.P. is as follows:

“An appeal shall not be dismissed because of any irregularity, error, or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.”

LSA-R.S. 13:961 reads, in part:

“Except in pauper cases, the payment of the fees shall be made primarily by the plaintiff, immediately upon the transcription of such evidence, and the court reporter shall not be required to file the transcript with the clerk before payment. Should the plaintiff fail or refuse to make such payment, the defendant or any other party to the suit may make the same and have it assessed as costs. No fee shall be charged for taking evidence on bills of exception, motions, or other pleadings in criminal cases. All copies required to perfect appeals shall be furnished at no additional cost.”

LSA-R.S. 13:4445 states:

“A. Not later than three days before the return day, or extended return day, of the appeal fixed by the trial court, the appellant shall pay to the clerk of the trial court:
(1) The fees to be due the clerk of the appellate court for filing the record of appeal, under the applicable provision of R.S. 13:126 or R.S. 13:352; and
(2) The cost of transmitting the record of appeal to the clerk of the appellate court and all other fees due the clerk of the trial court for preparing the record of appeal.
“B. The clerk of the trial court shall transmit the fees due the appellate court clerk, with the record of appeal, to the clerk of the appellate court to which the appeal is taken. The clerk of the appellate court shall not docket the appeal or file the record thereof until he has received the fees due him. When the appellant has paid the fees required under Sub-section A of this Section timely, the failure of the clerk of the trial court to transmit the record, or to pay the fees due the appellate court clerk timely, is not imputable to the appellant.”

We have studied the cases holding that where the record is not timely lodged in the Court of Appeal because of nonpayment of costs and fees for reasons imputable to the negligence, error or fault of the appellant, the appeal is subject to dismissal. E. g., Case v. Case, 322 So.2d 354 (La.App. 2nd Cir. 1975); Succ of Silas v. Marciante, 301 So.2d 367 (La.App. 4th Cir. 1974); Huff v. Caldwell, 297 So.2d 463 (La.App. 2nd Cir. 1974). We agree with the cited decisions.

In the instant case the record conclusively shows that the appellants did not pay the costs due the reporter prior to the extended return date so that she could file the transcript with the clerk of court in order for him to meet the said return date. Appellants concede that the costs due the reporter were not timely paid, but that they should not be penalized for this failure, because one of the appellants’ attorneys did not receive any notice from either the reporter or the clerk of court that the reporter had not been paid for her services.

The position of the appellants has been uniformly rejected by the courts of this state. We find the jurisprudence settled concerning the duty of appellant to keep informed of the return date, and to advance timely the filing fee and also to pay timely the costs of an appeal. In Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278, 284 (1970), the Supreme Court stated the following:

“Although the clerk is charged with primary responsibility of lodging the record in the appellate court and with securing extensions of return date in order that the record may be properly completed and filed, it is not incumbent upon the clerk to seek extended return dates or to file the appellate record when costs and fees have not been timely advanced by the appellant or the record has not been completed for reasons imputable to the negligence, error, or fault of the appellant. It is incumbent upon the appellant to keep informed-of the return date and extended return dates and of the amount he must pay as costs of appeal. Timely payment or tender of payment must be made in accordance with law under penalty of the appellant’s losing his appeal.” (Emphasis added)

We hold the nonpayment of the costs of the court reporter in this case was due to the fault of the appellants. The record not having been timely filed in this Court for reasons attributable to the appellants, the appeal must be dismissed.

For the reasons assigned, the appeal is dismissed. Costs to be paid by appellants.

APPEAL DISMISSED.

      . See Imhoff v. Imhoff, 311 So.2d 45 (La.App. 4 Cir. 1975), writ refused La., 313 So.2d 831, relative to the duty of the appellant.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    T & S FEED CO., INC. v. J. J. MEAUX.
    No. 10994.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.

      Charles B. W. Palmer, Amite, for appellant.
    W. Hugh Sibley, Greenburg, and Prank M. Coates, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

J. J. Meaux (Applicant) seeks to invoke the supervisory jurisdiction of this court to review a trial court judgment granting Applicant a devolutive appeal upon posting bond in the sum of $350.00, unless bond was dispensed with upon Applicant showing his entitlement to continue to proceed in forma pauperis pursuant to LSA-C.C.P. Article 5181, et seq., notwithstanding the trial court’s having previously signed an ex parte order permitting Applicant to litigate in forma pauperis. Applicant also seeks review of the trial court’s denial of his rule to proceed in forma pauperis filed subsequent to his posting the required appeal bond. Additionally, Applicant seeks judgment dispensing him from the obligation of paying the filing fee of $25.00 required by LSA-R.S. 13:352(2), for filing this writ application in the appellate court.

Plaintiff (Respondent) instituted this action for judgment against Applicant on an open account. On October 31, 1973, Applicant, on his ex parte motion, was authorized to proceed in forma pauperis. On May 31,1974, judgment was rendered below in favor of Respondent and Applicant’s third party demand against Cargill, Inc., et al, was dismissed. Applicant’s timely motion for new trial was heard and denied on October 29,1974, on which same date Applicant moved for and was granted a devolu-tive appeal, returnable December 28, 1974 “ — upon plaintiff (sic) furnishing bond in the amount of $350.00; unless bond id (sic) dispensed with on application of appellant pursuant to Louisiana Code of Civil Procedure 5181; et seq. (sic)”. On December 12, 1974, within the ninety-day devolutive appeal period, Applicant moved for a devolu-tive appeal in forma pauperis which motion was set for hearing on February 24, 1975, and the return date extended to March 24, 1975. On February 24,1975, the hearing on Applicant’s motion to appeal in forma pau-peris was continued to February 27, 1975, on which date the motion was heard and denied. It suffices to state that the transcript of the hearing amply supports the decision of the trial court rescinding its previous order permitting Applicant to proceed in forma pauperis. On February 27, 1975, Applicant applied for and was granted a devolutive appeal with bond set in the amount of $350.00 and a suspensive appeal for which a $5,000.00 bond was set. Applicant posted both bonds that same day. On April 7, 1976 (erroneously appearing of record as February 7, 1976), Applicant again moved the trial court for an order permitting him to proceed in forma pauper-is, contending his financial circumstances changed drastically when Applicant became disabled because of injuries sustained in a traffic accident on February 26, 1976. The trial court declined to hear Applicant’s motion to proceed in forma pauperis on the ground that its jurisdiction was divested when Applicant posted bond for appeal on February 27, 1975.

Applicant contends appellate jurisdiction vested in this court upon the granting of his devolutive appeal on October 29,1974. Because the prior order authorizing his proceeding in forma pauperis was then in effect and had not been rescinded, Applicant contends the fixing of an appeal bond was beyond the authority of the trial court.

Applicant invokes LSA-C.C.P. Article 2088 which provides that the jurisdiction of a trial court is divested and that of the appellate court attaches upon the timely filing of an appeal bond where bond is required, or the granting of an order of appeal where no bond is necessary. Thereafter, the trial court has jurisdiction only to test the solvency of the surety on the bond; to consider objections to the form, substance and sufficiency of the appeal bond; and to permit the curing of such defects as otherwise provided by law.

LSA-C.C.P. Article 5185, pertinently provides:

“When an order of court permits a party to litigate without the payment of costs, until this order is rescinded, he is entitled to:
******
(4) The right to a devolutive appeal, and to apply for supervisory writs.”

Our codal provisions authorizing indigents to sue in forma pauperis are to be liberally construed in favor of affording a litigant his day in court. Brumfield v. Community Mobile Homes, Inc., 315 So.2d 901, 902 (La.App. 1st Cir. 1975).

Notwithstanding the liberal construction of codal provisions authorizing indigents to sue in forma pauperis, trial courts have the authority as well as the duty of continuous scrutiny to prevent abuse of the privilege. Said authority is subject only to the requirement of due process, namely, that an evidentiary hearing is required when rescission of an order to proceed in forma pauperis depends upon contested factual issues. City Stores Co. v. Petersen, 263 La. 577, 268 So.2d 662, 663 (1972).

Where an order to proceed in forma pauperis is granted on an ex parte motion and the trial court subsequently learns that the litigant may not be entitled to continue the litigation in forma pauperis, the trial court has authority to order a contradictory hearing at any stage of the proceeding prior to perfection of an appeal. City Stores Co. v. Petersen, above.

Where an order to proceed in forma pauperis remains unrescinded and an indigent is granted a devolutive appeal upon furnishing bond, but the order of appeal contains no language otherwise affecting the right to proceed in forma pauperis, the appeal is perfected immediately upon granting the order for appeal. Steiner v. Pel State Oil Company, Inc., 271 So.2d 335 (La.App. 2nd Cir. 1972); Jackson v. Jackson, 255 So.2d 249 (La.App. 2nd Cir. 1971); Courville v. Anchor Gasoline Corporation, 174 So.2d 680 (La.App. 3rd Cir. 1965).

Applicant correctly urges that upon perfection of an appeal, the trial court is divested of all jurisdiction except that to test the solvency of the surety on the appeal bond; to consider objections to the form, substance and sufficiency of the appeal bond; and to permit curing of such defects as otherwise provided by law. LSA-C.C.P. Article 2088.

In this instance, however, the trial court declined to grant Applicant an appeal instanter in forma pauperis and conditioned the devolutive appeal granted upon Applicant either furnishing bond in a specified sum or showing Applicant’s continued entitlement to proceed as an indigent. This we believe to be well within the discretion permitted the trial court in instances of this nature considering it is the duty and obligation of the trial court to continuously scrutinize such situations to prevent abuse of the privilege. City Stores Co. v. Petersen, above. Under the circumstances, we hold that the jurisdiction of the appellate court did not vest in this instance upon rendition of the order of appeal entered herein. We find the instant matter clearly distinguishable from Steiner v. Pel State Oil Company, Inc., above; Jackson v. Jackson, above; and Courville v. Anchor Gasoline Corporation, above, in which the orders of appeal granted made no mention of Appellant’s right to continue to litigate as an indigent.

Applicant’s motion to proceed in forma pauperis, filed December 12, 1974, was within the 90-day devolutive appeal period. However, the motion was not heard until February 27, 1975, on which same date it was denied, the former order to proceed as an indigent was rescinded and Applicant was ordered to post bond for a devolutive and suspensive appeal. It is significant that this judgment was rendered subsequent to the expiration of the 90-day devol-utive appeal period applicable in this instance, and that on this same day Applicant posted bond for both a suspensive and a devolutive appeal.

It is well settled that an appellate court may ex proprio motu notice the untimely filing of an appeal bond. LSA-C.C.P. Article 2162; Uniform Rules of Courts of Appeal, Rule VII, Sec. 5(c), Siracusa v. Kramer, 271 So.2d 546. We therefore proceed to determine whether Applicant’s bond was timely filed in this case.

Our jurisprudence recognizes only one exception to the well established rule that failure to timely file an appeal bond is fatal to an appeal. This exception obtains in those instances where successful objection to the form, sufficiency and substance of a timely filed appeal bond is made after expiration of the delays for posting the appeal bond. LSA-C.C.P. Article 5124 allows a four-day period for curing such defects in an appeal bond, notwithstanding the statutory delay period has previously expired. Evans v. Livingston People’s Gas Corp., 205 So.2d 466 (La.App. 1st Cir. 1967).

We equate the rescission of a forma pauperis order after expiration of the delays for posting an appeal bond to an order declaring a successful objection to the form, sufficiency and substance of an appeal bond, subsequent to expiration of the delays for posting such a bond. We find it would be inequitable to deny a litigant whose right to proceed as an indigent has been rescinded, the same delay to post bond as is permitted an ordinary litigant to cure a defect in a timely posted bond.

In compliance with the trial court’s order of October 29, 1975, Applicant timely moved for a devolutive appeal as an indigent. Through no fault of Applicant, the motion was not heard until the time for perfecting a devolutive appeal had expired. We hold, therefore, that Applicant had four days from the February 27, 1975 judgment rescinding his right to litigate as an indigent, in which to post bond for a devolutive appeal. Having posted bond that same day, Applicant perfected his devolutive appeal.

Notwithstanding Applicant posted a suspensive appeal bond on February 27, 1975, he is not entitled to a suspensive appeal herein. We so hold because Applicant failed to apply for a suspensive appeal within 30 days of the denial of his motion for new trial. LSA-C.C.P. Article 2123.

Applicant’s complaint regarding the trial court’s dismissal of his February 7, 1976 motion to litigate in forma pauperis is patently without merit.

Admittedly, LSA-C.C.P. Article 5181 permits an indigent to prosecute or defend an action in forma pauperis in either the trial or appellate court. However, the jurisdiction of the trial court was divested when Applicant posted his devolutive appeal bond on February 27, 1975. LSA-C. C.P. Article 2088; State Through Department of Highways v. Branch, 262 So.2d 547 (La.App. 3rd Cir. 1972), writ denied, 262 La. 1095, 266 So.2d 222; Adoption of Lindsey, 302 So.2d 925 (La.App. 1st Cir. 1974), writ denied, La., 303 So.2d 492. Under these circumstances, the proper procedure is to move the appellate court for a remand to the trial court for the purpose of hearing Appellant’s motion to be allowed to proceed as an indigent.

Considering Applicant was not authorized to appeal in forma pauperis, he has no ground for complaint regarding his payment of the $25.00 filing fee charged in connection with his application for writs. LSA-R.S. 13:352(2).

The writ applied for is dismissed at Applicant’s cost.


author: SARTAIN, Judge.

text:
    SOUTH-WEST UTILITIES, INC. v. SOUTH CENTRAL BELL TELEPHONE COMPANY et al.
    No. 10786.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Paul H. Dué, Baton Rouge, of counsel, for South-West Utilities.
    Victor A. Sachse, Baton Rouge, Herschel L. Abbott, Jr., New Orleans, of counsel for South Central Bell and Murray C. Fincher.
    William Sneirson, New York City, of counsel for Western Elec. Co.

      Clarence M. Dunnaville, New York City, of counsel for Am. Tel. & Tel. Co.
    Thomas W. Moore, Birmingham, Ronald W. Tweedel, James W. Hammett, New Orleans, of counsel for South Central Bell.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

Plaintiff instituted this appeal from judgment of the trial court sustaining defendants’ plea of prematurity directed at the jurisdiction of the court to entertain plaintiff’s claim without prior resort to the Louisiana Public Service Commission (hereinafter referred to as the Commission.) We reverse for reasons stated herein.

The petition filed by plaintiff Southwest Utilities initiating this action shows plaintiff to be an interconnect company engaged in the business of providing office communications equipment and service to persons in the State of Louisiana. This equipment is designed to be interconnected with the telecommunications network owned and operated by defendants, South Central Telephone Company and American Telephone & Telegraph Co.

Allegations contained in the petition aver that defendants, South Central, American Telephone & Telegraph Co., and Western Electric, a subsidiary of American Telephone & Telegraph which manufactures equipment in competition with that of plaintiff, “ . . . engaged in and continued to engage in the practice of entering into contracts, agreements, conspiracies, and/or combinations in restraint of trade in the State of Louisiana and also of monopolization, attempts to monopolize and combinations and/or conspiracies to monopolize trade or commerce in the State of Louisiana, all in violation of the antitrust laws of the State of Louisiana as set forth in Revised Statutes, La.R.S. 51:121-122, which violations have resulted in injury to the public and to plaintiff in the conduct of its business.” The alleged details of the above described activity may be summarized as follows: (a) Defendants have lowered prices at which their office communications equipment is offered while at the same time raising prices of other services to all customers, thereby eliminating competition with other companies that provide office communications equipment and at the same time recovering amounts by which it purportedly reduced the cost of certain equipment. Defendants allegedly accomplished this by raising line charges which all of its customers must pay, instituting variable service charges on the above mentioned equipment, and requiring the installation and payment of interface devices by interconnection customers, (b) Defendants had acted unfairly to discourage interconnection by maintaining a policy of delay, inconvenience and improper installation and/or maintenance of the above mentioned interface equipment and by representing to plaintiff’s customers that equipment problems emanated from plaintiff’s equipment when in fact it was defendants’ own equipment from which problems originated. It is further alleged that defendants have promulgated through advertising and direct representation to potential customers of plaintiff that plaintiff would not remain in business and thus would not be able to service what it sells or furnishes to its customers. (c) Defendants have engaged in sham representations to regulatory agencies to obtain the institution of anticompetitive tariffs.

Plaintiffs allege that due to these practices by defendant it has been effectively precluded from most of the product market and has suffered severe economic injury to its business in excess of two and one-half million dollars. Plaintiff seeks treble damages pursuant to R.S. 51:137 in an amount of $7,879,914.00.

Defendant South Central Bell filed an exception of prematurity' urging that the court was without jurisdiction to consider these matters in an initial determination. Defendant Bell argues that inasmuch as its rates and the quality of its services are the gravamen of plaintiff’s complaints, such matters must first be referred to the Louisiana Public Service Commission under the regulatory powers granted the Commission pursuant to Art. 4, § 21(B) of the Louisiana Constitution of 1974. Defendants, American Telephone & Telegraph Co., Western Electric and Murray Fincher, alleged vice president of defendant Bell, also filed similar exceptions noting therein that while they themselves were not regulated by the Commission defendant Bell was and therefore argued that action taken against them absent a determination made upon the rates and services of defendant Bell by the Commission would be premature.

The trial judge held in his written reasons for judgment that with the exception of allegations pertaining to unfair advertising the issue presented was the reasonableness and fairness of Bell’s rates and charges that were approved and controlled by the Public Service Commission. He concluded that by virtue of Art. '6, Sec. 4 of the Constitution of 1921 and Art. 4, Sec. 21 of the Louisiana Constitution of 1974 exclusive original jurisdiction in matters where the issue presented is the propriety and reasonableness of rates and services is vested in the Public Service Commission. The court thus dismissed the complaint as to all allegations except that of unfair advertising which the court felt required no administrative expertise and which was not within the scope of the Commission’s jurisdiction.

The question presented herein is the applicability vel non of the doctrine of primary jurisdiction. This doctrine has been described by the U.S. Supreme Court in Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952), as

“ . . .a principle, now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.”
342 U.S. 570, 574-575, 72 S.Ct. 494.

It is said by one author to be a determination of who shall make the initial finding where two potential jurisdictions exist. Davis, Administrative Law Test, 3rd Ed., 1972, Chap. 19, Sec. 1901 at p. 373. The doctrine is not to be confused with the concept of “exhaustion of administrative remedies” which covers the procedural point at which judicial review may be sought on administrative decisions. One author draws the distinction as follows:

“In all [situations where the application of primary jurisdiction is relevant] there is at some point a claim enforceable by original judicial action, that is to say, a claim which in whole or in part is tried and enforced by judicial action. It is this that distinguishes the doctrine from the doctrine which demands exhaustion of administrative remedies before seeking judicial interference. In the exhaustion situation the claim is enforceable by administrative action alone; the judiciary is being invoked to correct or quash the administrative action. The exhaustion doctrine where applicable forbids judicial supervision of the administrative process until the latter has been exhausted.”

Jaffe, “Primary Jurisdiction Reconsidered. The Antitrust Laws.” 102 Univ. of Penn.Law Rev. 577, 579 (1954).

One of two major considerations undertaken by the courts in applying the doctrine of primary jurisdiction is the need for uniformity in various areas of regulated industry, particularly in the area of rates. In the case of Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 1907, the case to which has been attributed the inception of the doctrine of primary jurisdiction, the court confronted the situation presented by the Interstate Commerce Act which provided that shippers injured by unreasonable rates could pursue their claims before the I.C.C. or in the courts. In holding the agency to be the only proper initial forum in such disputes, in spite of the statute, the court stated:

“. . . If, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that, unless all courts reached an identical conclusion, a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject as an original question. Indeed, the recognition of such a right is wholly inconsistent with the administrative power conferred upon the Commission, and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed. Equally obvious is it that the existence of such a power in the courts, independent of prior action by the Commission, would lead to favoritism, to the enforcement of one rate in one jurisdiction and a different one in another, would destroy the prohibitions against preferences and discrimination, and afford, moreover, a ready means by which, through collusive proceedings, the wrongs which the statute was intended to remedy could be successfully inflicted. Indeed, no reason can be perceived for the enactment of the provision endowing the administrative tribunal which the act created with power, on due proof, not only to award reparation to a particular shipper, but to command the carrier to desist from violation of the act in the future, thus compelling the alteration of the old or the filing of a new schedule, conformably to the action of the Commission, if the power was left in courts to grant relief on complaint of any shipper, upon the theory that the established rate could be disregarded and be treated as unreasonable, without reference to previous action by the Commission in the premises. This must be, because, if the power existed in both courts and the Commission to originally hear complaints on this subject, there might be a divergence between the action of the Commission and the decision of a court. In other words, the established schedule might be found reasonable by the Commission in the first instance and unreasonable by a court acting originally, and thus a conflict would arise which would render the enforcement of the act impossible.”
204 U.S. 426, 440-441, 27 S.Ct. 355.

A second major factor comprising the doctrine of primary jurisdiction which the courts have considered is “special administrative expertise”, attributed to the agencies due to their intimate working associations with the industries they regulate. The cornerstone of this consideration is found in Great Northern Ry. Co. v. Merchants’ Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943 (1922).

“Preliminary resort to the Commission is required alike in the two classes of cases. It is required because the inquiry is essentially one of fact and of discretion in technical matters; and uniformity can be secured only if its determination is left to the Commission. Moreover, that determination is reached ordinarily upon voluminous and conflicting evidence, for the adequate appreciation of which acquaintance with many intricate facts of transportation is indispensable; and such acquaintance is commonly to be found only in a body of experts.”

We readily concede that rates and services of the various regulated industries in this state are indeed the responsibility of the Louisiana Public Service Commission by virtue of Art. 4, Sec. 21 of the Louisiana Constitution of 1974 (and its prior counterpart, Art. 6, sec. 4 of the Constitution of 1921). Art. 4, sec. 21(B) states:

(B) Powers and Duties. The commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law. (Emphasis ours)

It is specifically provided in R.S. 45:1168 that rates charged and services furnished by public utilities shall be regulated by the Public Service Commission.

§ 1163. Power to regulate rates and service

The commission shall exercise all necessary power and authority over any street railway, gas, electric light, heat, power, waterworks, or other local public utility for the purpose of fixing and regulating the rates charged or to be charged by and service furnished by such public utilities;

We can easily appreciate in matters involving the determination of fair rates and services, in order that regulated industries may reasonably prosper and expand without taking undue advantage of monopolistic situations, that the Public Service Commission is eminently more qualified to make such decisions in contrast to the courts. This is necessarily so due to the integral association that this Commission has with these industries and the resulting inevitable familiarity with the specific and unique problems such industries encounter. It would indeed be an inefficient use of the courts and the Commission not to have the benefit of the Commission’s expertise in such instances. Furthermore, the need for uniformity of rates dictates by the very essence of its nature a result that could not be otherwise.

However, in the present case we do not view plaintiff’s efforts as an attempt to litigate rates and services. These factors, we feel, speak for themselves. Rather, plaintiff is here seeking to determine incidents of agreements and conspiracy to monopolize and restrain trade in specific contravention of our laws. These matters may in part be evidenced by particular rates, but by no means will rates alone be the sole criteria upon which such allegations will stand proved. The total context of such a suit in which rates may be involved to some extent does not seem to us to form matters traditionally passed upon by the Public Service Commission and therefore are not matters in which any expertise has been developed, or matters upon which the concept of uniformity has any bearing.

Moreover, we find no authority in favor of the Commission to immunize the regulated industry herein from answering for the specific violations alleged. We find persuasive on this point the Connecticut Supreme Court case of Mazzola v. Southern New England Telephone Co., 363 A.2d 170, cited to us by plaintiff involving similar facts and issues of law as those here presented.

In the Mazzola case plaintiff sought in-junctive relief as well as money damages from defendant under the Connecticut Antitrust Act for defendant’s wrongful termination of plaintiff’s telephone service. This termination was based upon plaintiff’s refusal to lease an interconnect device from defendant which defendant required to be used on answering mechanisms obtained from non telephone company sources. Plaintiff alleged that defendant’s practices were “unlawful as they are for the purpose or for the effect of: (a) Fixing, controlling and maintaining prices, rates or quotations; (b) Refusing to deal or coercing, persuading or inducing third parties to refuse to deal with another person.” Defendants argue that this matter should be submitted to the Connecticut Public Utility Commission for determination.

The court examined the dispute to determine the role of primary jurisdiction and concluded that . . a court should generally refer an antitrust controversy to an appropriate agency in cases where action thereon by that agency will result in a determination of the defendant’s liability under the antitrust laws.” or “. where the agency is in an advantageous position to be of ‘material assistance’ to the court by marshalling a crucial fact or facts, potentially determinative of the antitrust lawsuit, into a ‘meaningful pattern’ . and a procedure exists empowering the antitrust plaintiff to raise the issue before the agency.”

The court found that the statute conferring powers on the Commission granted no express authority to exempt the specific activity complained of from antitrust challenges nor did the fact that the Commission had the power to approve the rates amount to inherent immunization. The court noted that rates originated with the regulated industries and were simply submitted to the agency for approval. The court here pointed out that utilities were not required to submit with their proposals for rate increases any facts specifically designed to make out a sufficient showing that the proposal was necessary, such as to satisfy public need. Furthermore, the Commission itself was not under any obligation to conduct a fact finding inquiry of its own to determine if rates were reasonable or discriminatory. This was in the Commission’s own discretion.

The court likewise found no implied immunity noting the absence of any “plain repugnancy” between the regulatory scheme and the antitrust law. The court stated on this point “The necessary repug-nancy is sometimes found to be inherent in the fact, inter alia, that the regulatory scheme in question was enacted after the antitrust law in question went into effect (although such ‘repeals’ of the antitrust laws are ‘strongly disfavored’) ... or where the agency is under a specific obligation to consider the potentially anticompeti-tive effects of a practice proposed by an organization subject to its regulatory powers before formally approving such practices as required [nevertheless] by the public interest . . ..” The court found no plain repugnancy stating:

“In this case, the Public Service Companies Act provisions in question antedated the enactment of the Connecticut Anti-Trust Act, so that no ‘repeal’ of the latter can be inferred therefrom. Moreover, the PUC has no obligation under the Public Service Companies Act to take into account the possibly anticompetitive effects of proposed tariffs filed with the Commission prior to granting its approval. Rather, whether the PUC decides to approve or modify a tariff pursuant to the provisions of § 16-19 upon a finding that any ‘rate’ is ‘unreasonably discriminatory or more or less than just, reasonable and adequate to enable such company to provide properly for the public convenience, necessity, and welfare,’ or that a ‘service’ is ‘inadequate or excessive,’ is wholly within its discretion.”

Likewise, the court found no way that one in plaintiff’s position could raise before the Commission any of the “critical factual questions” potentially within the Commission’s competence, such as “whether the activities of the telephone company challenged in this case are so essential to the public interest as to override any possible anticompetitive effects on the communications industry in the private sector of the economy, or whether the privately obtained device secured by the plaintiff would in some way be harmful to defendant’s network.” Rather, rates could merely be attacked as unreasonable and services as inadequate.

The court thus concluded that since it found neither statutory nor implied authority on the part of the Commission to immunize the alleged activities from antitrust challenges, and since it did not find a procedural mechanism through which plaintiff could raise before the Commission the kind of factual issues whose determination would be of crucial importance to the court in its resolution of the antitrust controversy, the lower court erred in involving the doctrine of primary jurisdiction in deference to the agency.

In the present case, we likewise find no authority in favor of the Commission to immunize defendant from antitrust challenges against the specific activity alleged herein. The statutory scheme in this state provides no express authority to the Commission other than to fix and regulate rates charged and services furnished by the utilities. R.S. 45:1163.

Further, we find nothing in the statute which furnishes the Commission with implied authority to immunize such activity. We can not imply from the Commission’s power to regulate rates and services that it must take into account the anticompetitive effects of proposals submitted to them. Rates and services which are “just and reasonable” and which therefore may appear to be in the best interest of the public may still form part of an overall scheme viola-tive of the antitrust laws insofar as it comprises any agreement, attempt, or conspiracy to restrain and/or monopolize trade. To hold that approved rates and services are immune from antitrust challenges by implication is to likewise hold that antitrust laws by implication are repealed with respect to said rates and services. Repeals by implication are not favored in law and statutes which could arguably conflict must be read where possible to uphold the validity of each. Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (1953).

Thus on the basis of the allegations herein we conclude primary jurisdiction is not applicable. We have stated that, in our opinion, the concepts of uniformity and special administrative competence do not reflect to any significant degree on this dispute, as the particular matters alleged herein have no extensive past exposure before the Commission. Further, we have concluded that the Commission has no authority, even by its power to approve rates, to shield a regulated industry from antitrust challenges founded on the specific allegations herein.

We note that our opinion is based on allegations contained in plaintiff’s petition which place this matter in the context of an antitrust suit. If it should later develop, however, that this is not the case, but rather, merely an attempt to avoid the Public Service Commission and divert from that agency matters which properly belong before it, then what we have stated herein would have no application.

Accordingly, for the above and foregoing reason, the judgment of the district court is reversed and set aside, and the matter is hereby remanded to the district court for proceedings consistent with the views expressed herein. All costs of this appeal are taxed to defendants. All other costs are to await a final disposition of the suit.

REVERSED AND REMANDED.

      . See von Mehren, “The Antitrust Laws and Regulated Industries: The Doctrine of Primary Jurisdiction”, 67 Harvard Law Review 929, 932 (1954); Schwartz, “Legal Restrictions of Competition on the Regulated Industries: An Abdiction of Judicial Responsibility”, 67 Harvard Law Review 436, 646 (1964); Stokes, “A Few Irreverent Comments About Antitrust, Agency Regulation, and Primary Jurisdiction”, 33 G. Washington Law Review 529, 551 (1964); Jaffe, “Primary Jurisdiction”, 77 Harvard Law Review 1037, 1042 (1964).


author: CHIASSON, Judge.

text:
    GREATER BATON ROUGE AIRPORT DISTRICT et al., Appellants, v. Mrs. Florence Hobgood HAYS et al., Appellees.
    No. 10799.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.

      Joseph Keogh, Charles Pilcher, Edward V. Fetzer, Baton Rouge, of counsel for appellants.
    Ashton L. Stewart, Baton Rouge, of counsel for appellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

In December, 1973, the plaintiffs-appellants, the Greater Baton Rouge Airport District, the City of Baton Rouge and the Parish of East Baton Rouge, brought this action to expropriate an avigation servitude on an 11.234 acre tract of land. This 11.234 acres, located on the east side of Plank Road directly opposite Ryan Airport, is part of a 500 acre tract owned by the defendants-appellees, Mrs. Florence Hobgood Hays, Edward Chase Hobgood, Herbert Wright Hobgood, John Pugh Hobgood and Bill Arp Hobgood. Acquisition of this servitude was required to obtain federal funds for the extension of the northeast-southwest runway (runway 4-22) at Ryan Airport. This extension took approximately a year to build and was completed in October, 1972.

Immediately prior to the start of this extension, use of runway 4-22 by jet aircraft was limited to those cases in which prior approval for the use was obtained from the airport director. Because of its composition, runway 4-22 had to be inspected before and after each use by jet aircraft. Since completion of the extension, runway 4-22 has been in regular use by commercial and nón-commercial jet aircraft.

After a trial on the merits, the District Court rendered judgment awarding appellants an avigation servitude on the 11.234 acres. In addition, there was judgment in favor of the appellees and against the appellant, Greater Baton Rouge Airport District, awarding the appellees $198,513.00 as compensation, including severance damages, for the taking of the servitude and interest from the date of the taking. The District Court held that the date of the taking was the date suit was filed.

The errors complained of by the appellant may be summarized as follows:

1. The District Court erred in granting appellant an avigation servitude rather than a clear zone easement;

2. The District Court erred in overruling the appellants’ pleas of prescription;

3. The District Court erred in assessing damages; and

4. The District Court erred in finding that the date of the filing of the suit was the date of the taking of the servitude.

The appellees, in their answer to the appellants’ appeal, contend that the District Court erred:

1. In its determination of the amount due as severance damages; and

2. In awarding legal interest from the date of judicial demand, rather than the date the extension of runway 4-22 was completed.

The initial question posed in this appeal is whether the appellants sought to expropriate a “clear zone easement” or an “avigation servitude”. One reason the appellants brought this suit is that the FAA made the acquisition of an “avigation easement” a requirement for obtaining federal funds for the extension of runway 4-22. In Civilian terminology the FAA required that the appellants obtain an “avigation servitude”.

In their petition the appellants described the property they sought to expropriate as:

“An 11.234 acre, more or less, servitude for avigation purposes the height of which is defined as a height on an inclined plane at a slope of 34:1 (1 foot of elevation for 34 feet of horizontal distance) located directly above the clear zone approach area beginning at a point 200 feet from the Northeast end of the runway as shown further on a map made by John W. Kellen, Jr., dated November 6, 1972, revised January 24, 1973.” (Emphasis added).

The appellants seek to expropriate a “servitude for avigation purposes”. There is not, as appellants contend, a “vast difference” between a “servitude for avigation purposes” and an “avigation servitude”. In this case the two are the same. There is a difference between a “clear zone easement” and a “servitude for avigation purposes”. The rights granted under a “clear zone easement” comprise only a portion of the rights granted under an “avigation easement”. United States v. Brondum, 272 F.2d 642 (5th Cir. 1959); United States v. 64.88 Acres of Land, 244 F.2d 534 (3rd Cir. 1957). A “clear zone easement” is a servitude for a specific avigation purpose and not a general servitude for avigation purposes.

It is true, as the appellants contend, that the determination of the extent of the property to be expropriated is within the sound discretion of the body possessing the power of eminent domain, and that this determination will not be interfered with by the courts if made in good faith. Greater Baton Rouge Port Commission v. Watson, 224 La. 136, 68 So.2d 901 (1953); Jefferson Par. Sch. Bd. v. Marrero Land & I. Ass’n, Ltd., La.App., 258 So.2d 585 (4th Cir. 1972). The determination of the bodies possessing the power of eminent domain was that the property to be expropriated was a “servitude for avigation purposes”. Resolution 10845 of the Parish Council of East Baton Rouge Parish, Resolution 1019 of the Board of Commissioners of the Greater Baton Rouge Airport District.

Appellants cannot now contend that, while they were required by the FAA to obtain an “avigation easement” and brought suit to obtain a “servitude for avi-gation purposes”, all they really seek is a clear zone easement.

The appellants’ second contention is that the District Court erred in overruling the appellants’ pleas of prescription. The District Court’s determination, that the appel-lees’ right to recover had not prescribed, was based on the District Court’s finding that there had been an increased taking of the appellees’ property caused by the extension of runway 4-22 and that such additional taking is compensable. Michigan Wis. Pipe L. Co. v. Sugarland Develop. Corp., La.App., 221 So.2d 593 (3rd Cir. 1969). We agree with the District Court’s conclusions that there was an increased taking, that this increased taking is compensable, and that the increased taking occurred within the two year prescriptive period provided by R.S. 19:2.1.

The appellants contend that the appellees have lost their right to compensation through liberative prescription.

R.S. 19:2.1(B) provides:

“B. All claims for property by, or for damages to the owner caused by the expropriation of property pursuant to R.S. 19.2 shall be barred by the prescription of two years commencing on the date on which the property was actually occupied and used for the purposes of the expropriation.”
Article 2630 of the Civil Code provides: “Whenever any corporation, constituted under the laws of this State, for the construction of a railroad, plankroad, turnpike road, a canal for navigation, or for the purpose of transmitting intelligence by magnetic telegraph, can not agree with the owner of any land which may be wanted for its purchase, it shall be lawful for such corporation to apply by petition to the judge of the district court in which such land may be situated, or if it extends into two districts, to the judge of the district in which the owner thereof resides, and if the owner does not reside in either district, then to the judge of either district, describing the lands necessary for their purposes, with a plan of the same, and a statement of the improvements thereon, if any, and the name of the owner thereof, if known and present in the State, with a prayer that the land be adjudged to such corporation upon the payment to the owner of all such damages as he may sustain in consequence of the expropriation of his land for such public work. All claims for land, or damages to the owner caused by its expropriation for the construction of any public works, shall be barred by two years’ prescription, which shall commence to run from the date at which the land was actually occupied and used for the construction of the works.”

The prescriptive periods provided by these articles apply only to actions for damages and claims resulting from a legal expropriation. A. K. Roy, Inc. v. Board of Commissioners, 237 La. 541, 111 So.2d 765 (1959); Miller v. Colonial Pipeline Company, La.App., 173 So.2d 840 (3rd Cir. 1965). Ap-pellees’ claim for compensation for, the expropriation of the avigation servitude does not begin to prescribe until there has been a legal expropriation of the appellees’ property.

R.S. 9:5624 provides:

“When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run when the damages are sustained.”

The prescriptive period provided by this statute applies only when private property is damaged for public purposes and not to actions for the recovery of the value of private property taken for public purposes. A. K. Roy, Inc. v. Board of Commissioners, supra. In the present case, the appellees seek compensation for the property taken, the avigation servitude, and not for damages sustained as a result of prior flights. The appellees’ right to seek just compensation has not prescribed.

Appellants also argue that the ap-pellees’ right to compensation has prescribed because of a 1965 East Baton Rouge Parish Ordinance, No. 1135, which established height and use regulations in an area around Ryan Airport. This ordinance established height and use regulations in an area around Ryan Airport. It did not create either a “clear zone easement” or an “avigation servitude” and it is not, as was recognized by the Trial Judge in his written reasons, grounds for sustaining a plea of prescription.

The type and amount of damages awarded by the District Court present the third question for consideration in this appeal. The appellants offer four arguments to support their claim that the District Court erred in assessing damages.

1. The District Court erred when it based its award on the taking of an avigation servitude rather than on the taking of a clear zone easement.

2._ The District Court erred when it found that there was evidence sufficient to establish the extent of the appellees’ injury.

3. The District Court erred when it awarded severance damages.

4. The District Court erred as to the amount the appellees are entitled to recover.

The appellants brought this suit to expropriate an avigation servitude. The District Court properly awarded compensation on the basis of the property taken and the effect of the taking of the property.

While this Court would have preferred, as the District Court would have preferred, a more detailed breakdown of the effect of the granting of the servitude as to specific portions of the appellees’ property, the record contains evidence sufficient to establish the injuries suffered by the appellee. The record contains considerable testimony as to the effect of the use of the avigation servitude on neighboring property. The record also contains evidence which tends to show the effect of the use as to the value of the appellees’ property.

Just compensation for the taking of a servitude is to be based upon the highest and best use of the property expropriated. Louisiana Power & Light Co. v. United Lands Co., 254 La. 885, 228 So.2d 140 (1969). The most reliable and approved method for determining the market value of an immovable is to consider comparable sales. State, Department of Highways v. Smith, La.App., 304 So.2d 77 (1st Cir. 1974). Where only a servitude is taken which allows a landowner a residual use of the surface, an award of a percentage of the full fee value is appropriate. Dixie Electric Membership Corporation v. Watts, La.App., 268 So.2d 128 (1st Cir. 1972); Columbia Gulf Transmission Co. v. C. J. Grayson, Inc., La. App., 232 So.2d 150 (2nd Cir. 1970).

Because the valuation of expropriated property is solely a question of fact, the judgment of the Trial Court on this point should be given the same weight as any other finding of fact and should not be reversed in the absence of manifest error. State, Department of Highways v. Osbon, La.App., 292 So.2d 898 (1st Cir. 1974).

The record indicates that appropriate comparables were used in determining the market value of the appellees’ property, Mr. Dan Carlock and Mr. Oren Russell, expert appraisers for plaintiffs-appellants, both testified that immediately prior to the taking, the commercial property had a fair market value of $10,000.00 per acre. Mr. Karl Snyder, expert appraiser for defendants-appellees, testified that the before taking value of the commercial property was $15,000.00 per acre.

The District Court relied upon the following comparables:

“1. East Baton Rouge Parish School Board to Big B. R. Stores, Inc., Orig. 45, Bundle 6039, Exhibit F (9) to P-4, used by Carlock, and hereinafter called the School Board property.
“2. The judgments rendered by the 19th Judicial District Court, East Baton Rouge Parish, Judge Melvin Shortess presiding, in suits nos. 147,332 and 147,351, entitled ‘Greater Baton Rouge Airport District v. Arthur L. Carrick and 'Greater Baton Rouge Airport District v. Fred Lee Holden,’ affirmed by the First Circuit, Court of Appeal (Number 8708 on the docket of said court), which judgments were relied upon by Snyder. They are hereinafter sometimes referred to as the Carrick and Holden properties.”
(Footnote omitted).

In evaluating these comparables the Trial Court said:

“The School Board property was sold in 1965, almost seven years before the taking, for a unit price of $11,273 per acre. It is a tract of 4.79 acres located at the intersection of Hooper Road and Plank Road, and is comparable in size, utility and location to the subject property. “The Holden and Carrick properties are comparable in location to the subject property, lying just across Plank Road and having been valued by the courts approximately two years prior to the date of taking of the subject property. A most significant difference is that the Carrick and Holden tracts measure approximately 200 feet on Plank Road by depths of 700-800 feet, indicating about two-thirds of the tracts was non-commercial (Hobgood-34, p. 14). In contrast, over 80% of Tract 1 lies within 350 feet of Plank Road and is clearly commercial. “Considering all of these circumstances, including the shapes of the Foster and Samson tracts, the similarity of the School Board property, the passage of time since the sale of the School Board property, the dramatic general increase in property values since that time, and the superiority of the subject property over the Carrick and Holden tracts, The Court is of the opinion that the fair market value of Tract 1, all of which the Court concludes may be treated as commercial, was, immediately prior to the taking, the sum of $15,000 per acre.”
(Footnotes omitted).

We find no error in the Trial Court’s determination that the commercial portion of the property had a value of $15,000.00 per acre and in treating the entire 11.234 acre tract as best suited for commercial purposes.

The 11.234 acre tract was subdivided by all of the expert appraisers for valuation purposes. Though each had a different method and there was a discrepancy in the total acreage, the following areas will be used, to-wit:

Tract A. 0.26 acre — The area within the 11.234 acre tract in which buildings are prohibited;
Tract B. 4.848 acres — The area south of Cypress Bayou;
Tract C. 3.196 acres — The area lying under Cypress Bayou;
Tract D. 3.19 acres — The area north of Cypress Bayou.

The area in Cypress Bayou (Tract C) was subtracted from the total area since it was and is already an improved drainage channel. This left an area for which compensation is due of 8.038 acres.

In evaluating the servitude for avigation purposes, Mr. Karl Snyder testified:

“Or, by another approach, the 8.03 acres, less Cypress Bayou, at fifteen thousand dollars per acre, is a hundred twenty thousand, five hundred seventy dollars. So, I felt conservatively that I should use the lower figure so as the indicated market value of the part taken, fee simple, I used the one hundred twenty thousand, five hundred seventy dollars. Now, that is the indication for all of the rights in the part taken. However, I felt the land surface of the part taken would still have a market value. The minimum height at the thousand foot distance is 29.41 feet. At the extreme end, at one thousand, seven hundred and fifty feet, the minimum height is 51.47 feet. So, I felt that the surface of the part taken would still have a limited use. It could be used for agricultural purposes, say, the growing of crops, hay, pasture, soybeans, and such. The highest and best use has changed to agricultural with a speculative increment of value in that there is a possibility that the airport could be closed; it might be relocated at some future date, or the technology of flight could alter the easement. So, I felt that the indication of the property, subject property, part taken, after the taking, is fifteen hundred dollars an acre. 8.03 acres at fifteen hundred dollars an acre is twelve thousand and fifty-seven dollars for actually, the surface rights of the property, which I subtracted from the indication of a hundred and twenty thousand, five hundred and seventy dollars, which gave me an estimated market value of the part taken for an avigation easement of a hundred and eight thousand, five hundred and thirteen thousand (sic) dollars.”
(Transcript pages 998 & 999).

Dan Carlock testified that Tract A would suffer a loss of 90%, and Tract B and Tract C would suffer a loss of 40%, as a result of the servitude.

Oren Russell testified that Tract A would suffer a loss of 80%; Tract B, a loss of 40.7%; and Tract D, a loss of 7.8%, as a result of the servitude.

The Trial Court concluded that Snyder’s evaluation of the remaining value of the use, to-wit, 10% is realistic and proper under all the circumstances, citing State, Department of Highways v. Ronaldson, La. App., 316 So.2d 898 (1st Cir. 1975). In that case, the State had expropriated two permanent servitudes of drainage, and the Appellate Court said:

“Although we realize that there is little use to which the servitudes can be put by the defendants, their taking is nevertheless short of a taking in fee or full title', and, therefore, 90 percent of their value is just compensation in the instant case.” Pg. 905.

This fits ideally Tract A, the .26 acres upon which no structure can be built. However, Tract B and Tract D are subject to much greater use by the landowners.

Dan Carlock testified:

“A. Yes, sir, because the airport or the city is not taking the land in fee. They are only taking a servitude, and they are only taking some of the property owners’ rights. So, he would still be able to utilize this property for various uses and, actually, for commercial uses, but there will be some restriction as to height of buildings. He can’t build a skyscraper or a real tall building on that portion of the property.”
(Transcript pg. 23).
“A. Yes, sir. He could build a one story office building or a warehouse building. He can use this area for parking. He can pave it and use it for parking. He can landscape it. He can use it in conjunction with commercial operation. So, you are not taking — the taking is not as severe as it would be if it were a pipeline or a power line servitude. He still has a good many of the rights left, and I feel that forty percent of the fee value would be giving the owner any benefit of the doubt as far as the value of the servitude.”
(Transcript pg. 43 & 44).
“A. . . . I am also saying that the property located in this servitude can be developed commercially because the only restriction in this servitude is actually the height of a building you could build. All of the development around the corner of Hooper Road and Plank Road, all of the development north of subject up in the Brownsfield area that we have been talking about close to Comite Drive, and the Burger King that was recently built up there, the shopping center at Hooper Road and Plank Road, service stations, the banks, any of those establishments could be located on the subject property and — before the taking or before the servitude is imposed and after the servitude is imposed, in the servitude area and without the servitude area.”
(Transcript pg. 54 & 55).
Oren Russell testified:
“Q. In your formula, you have said that the — an easement removes some portion of the bundle of rights. What portion of those bundle of rights did this easement remove from these 11.-234 acres?
“A. On the commercial portion of the property, the primary effect caused by the easement being placed over it was the height restriction. It entered the property at about twenty-six feet. Because of building setbacks, you would not be able to use the immediate frontage for building purposes. You could use it for parking for a commercial building. The practical effect of it is that it did not affect the usage of the property. The probability is that the property will be able to be used to its highest and best use and developed commercially after the imposition of the easement as well as before.
“Q. Even though the easement would be between twenty-six and sixty-three feet over this whole portion being taken?
“A. Sir, you have a fifty foot height restriction out there anyway by zoning ordinance. You couldn’t build over fifty feet if you wanted to.
“Q. Has that been enacted here since the filing of this suit?
“A. No, sir, it has been in effect for a number of years. What I am saying is if you look at Plank Plaza Shopping Center, it does not exceed approximately twenty-five feet in height. There are signs out front that may exceed twenty-five feet in height, but the buildings themselves do not. There are very few commercial buildings that I know of that exceed twenty feet. The vast majority of them are around twelve to eighteen feet. There are some special usage buildings that are higher than twenty feet but this is what the payment is for. The height limitation that is being imposed on the property. That’s what the City Parish is paying for, that right to place that limit.”
(Transcript pg. 171 & 172).

It was error for the Trial Judge to treat Tracts B and D the same as Tract A. Apart from the opinions and speculations of the experts, there is testimony that establishes for a fact that development has occurred in areas similarly situated off of other runways at Ryan Airport.

Under these circumstances, we are of the opinion that the value of the servitude is more realistically 40 percent of the fee value of the land. The compensation due to appellees for the avigation servitude over the 11.234 acres is, therefore, $50,178.00, calculated as follows:

Where a tract of land is partially taken, the landowners are entitled to a recovery for any resulting damage to the remainder. State, Department of Highways v. Tyler, La., 326 So.2d 349 (1976). Louisiana Power & Light Co. v. Churchill Farms, Inc., La., 292 So.2d 183 (1974). Because the expropriation of an avigation servitude is a partial taking of the appellees’ property, the appellees are entitled to severance damages. Whether, in a particular case, damages should be awarded after an expropriation depends on whether the property was actually damaged by the taking. The resolution of this question depends upon the quality of proof in the case. State, Department of Highways v. Garrick, 260 La. 340, 256 So.2d 111 (1972). In the present case there is expert testimony as to the sound levels which regularly exist on the appellees’ property as a result of the use of the servitude, testimony from surrounding neighbors as to the effect of jet aircraft on their daily lives, and testimony by expert appraisers as to the decrease in value of the appellees’ property as a result of the use of runway 4-22 by jet aircraft. All of this evidence establishes the appellees’ right to severance damages.

Severance damage resulting from the expropriation of a servitude is the difference between the fair market value before and after the taking. Southwestern Electric Power Company v. Conger, La.App., 307 So.2d 380 (2nd Cir. 1975).

The record contains ample evidence to support the District Court’s finding that the portion of the appellees’ property along Plank Road, which property’s highest and best use is commercial, will suffer no diminution in value as a result of the expropriation of the servitude.

As to that portion of appellees’ property best suited for residential purposes, the District Court correctly based its award on the difference between the market value of the property before and after the taking of the avigation servitude. Limiting the award to 100 acres in the general vicinity of the 1,200 foot line from an extension of the center-line of the runway is also supported by the testimony of the experts. The Trial Judge found the value of the property before taking to be $2,400.00 per acre and, after the taking, $1,500.00. We find no error in the award of $90,000.00 as severance damages.

As to severance damages to the remainder of the tract, the distance of these portions from the path of the aircraft is sufficient to support the District Court’s conclusion that there was no loss in market value as a result of the granting of the servitude.

The final question for consideration is whether the District Court erred when it awarded interest from the date suit was filed. The appellants contend that interest is due from the date of judgment; the appellees contend that interest is due from the date jet aircraft began regular use of runway 4-22.

This suit has been brought under the general expropriation provisions, R.S. 19:1 et seq., which do not provide a specific time from which interest is to run. The rule appears to be that, in cases where payment does not accompany the taking of property for public use, interest will be computed from the time of the taking. This is in accordance with Civil Code Article 1938 which provides that interest is payable from the date the debt becomes due. A. K. Roy, Inc. v. Board of Com’rs for Pontchartrain L. D., 238 La. 926, 117 So.2d 60 (1960).

Art. 1, § 2 of the Louisiana Constitution of 1921 provides:

“No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.”

Under this provision property is “taken” when the public authority acquires the right of ownership or one of its recognized dismemberments. Columbia Gulf Transmission Company v. Hoyt, 252 La. 921, 215 So.2d 114 (1968); Culotta v. Police Jury of Ascension Parish, La.App., 316 So.2d 463 (1st Cir. 1975). A right of ownership or one of its recognized dismemberments is acquired only after just and adequate compensation has been paid. La.Const. Art. 1, § 2. The appellants have not paid just and adequate compensation, therefore, they have not “taken” the appellees’ property and are not entitled to occupy and use the property. In the “Right of Entry Agreement” (Hobgood # 25) the appellees granted the appellants “the right to enter upon said property for the purpose of topping and/or cutting of all necessary trees and commencing the necessary operations in connection with the project captioned above.” This agreement did not convey to appellants an avigation servitude. It specifically provided that in the event an agreement was not reached, the appellants would file an expropriation suit to obtain the property or an avigation servitude thereon.

The District Court erred when it awarded the appellants an avigation servitude and condemned the appellants to pay appellees a certain sum of money.

R.S. 19:2.1, Subd. A(3) provides:

“The petition shall conclude with a prayer that the property be adjudicated to the plaintiff upon payment to the owner of all damages he may sustain in consequence of the expropriation.”

This provision establishes the judgment which may be sought in an ordinary expropriation suit. The District Court should have awarded appellants an avigation servitude upon the payment of a certain sum of money to appellees as just and adequate compensation. Therefore, interest in this suit is due only from the date of judgment, the date the debt became due.

For the above and foregoing reasons the judgment appealed from is amended to award the avigation servitude to the appellants upon payment to the appellees of $140,178.00, plus legal interest from date of judgment and affirmed in all other respects. Cost to be paid by the appellants.

AMENDED AND AFFIRMED AS AMENDED.


author: EDWARDS, Judge.

text:
    Rudolph WALKER and Bertha Landeche, his wife v. The ST. PAUL INSURANCE COMPANIES et al.
    No. 10863.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Granted Jan. 21, 1977.

      Kenneth E. Barnette, Baton Rouge, for the St. Paul Insurance Co., and others, appellants.
    Joel T. Chaisson, Luling, for Rudolph Walker and Bertha Landeche, his wife, ap-pellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Robert and Janice Walker, husband and wife, died as a result of injuries sustained in a head-on collision which occurred on the extension of Nicholson Drive, Baton Rouge, Louisiana.

The plaintiffs, parents of Robert Walker, brought suit as surviving beneficiaries under LSA-C.C. art. 2315 for their son’s wrongful death and for his pain and suffering and, as heirs of their son, for his wife’s wrongful death and for her pain and suffering.

The case was tried before a jury. Liability was stipulated; the only issue was quantum. The jury returned a general verdict in the amount of $225,000, $112,500 to each plaintiff. Defendant’s motion for a new trial or, alternatively, for remittitur, was denied, and this appeal followed.

The sole issue before us is quantum.

We will treat each cause of action separately and determine whether the jury abused its discretion in the total award given.

Survival action of Janice Walker

Janice Walker lived at most but 15 minutes following the accident. Her husband, Robert Walker, survived her by some 30-45 minutes. Therefore, when she died, he was vested with a right of action for her pain and suffering and for his own damages for her wrongful death. These rights were inherited by the plaintiffs upon Robert’s death, LSA-C.C. art. 2315.

That the deceased be conscious from the time of injury until his death is no prerequisite to the recovery of damage in a survival action. There must nevertheless be some evidence by which the trier of fact can reasonably infer a sensitivity to or awareness of pain by the deceased. Temple v. Liberty Mutual Insurance Company, et al., 330 So.2d 891 (La.1976), on remand, 336 So.2d 299 (La.App. 1st Cir. 1976).

Randall Guidry was an eyewitness to the collision and helped remove Janice Walker from the wreck within seconds of its occurrence. He testified that she was unconscious, but that she groaned once as she was removed from the car. State Trooper Dre-her reached the scene 15 minutes after the accident occurred, and he testified that Janice was dead when he examined her.

We conclude that the jury could have found that the groan was indicative that Janice suffered some pain. Factors to be considered in assessing quantum for pain and suffering are the severity and duration thereof. Considering the paucity of evidence adduced as to the severity of the pain and the extremely short duration thereof, we believe that an award of $2000 would have been sufficient. See, e. g., LeBlanc v. Estate of Blanchard, 266 So.2d 918 (La.App. 4th Cir. 1972); Hall v. State Through Department of Highways, 213 So.2d 169 (La.App. 3rd Cir. 1968); Caldwell v. U. S. Casualty Company of New York, 129 So.2d 813 (La.App. 2nd Cir. 1961).

Survival action of Robert Walker

Robert Walker died en route to the hospital, about an hour after the accident occurred. The trooper at the scene observed extensive injuries to his legs, pelvis, face, neck and arms. Pneumatic extrica-tors were required to free him from the wreckage. During this time, Robert groaned and moaned intermittently, though he made no intelligible sounds.

These facts would support a conclusion by the jury that Robert suffered some pain during his last hour. Considering these circumstances and the relatively short duration, we deem an award of $5000 sufficient. See, e. g., LeBlanc, Hall, and Caldwell, supra.

Wrongful death of Janice Walker

When Janice died, this right of action vested in Robert as surviving beneficiary under LSA-C.C. art. 2315 and, upon his death, was inherited by his parents, the plaintiffs.

The elements of damage for wrongful death are loss of love, affection and companionship, loss of support, and funeral expenses. The measure of damages for loss of love, affection and companionship is analogous to that for pain and suffering; that is, there must be an awareness of the loss by the deceased before he dies (here a conscious awareness necessarily, since the loss is by its nature a mental condition) and a consideration by the trier of fact of the duration of the anguish. Wakefield v. Government Employees Insurance Company, 253 So.2d 667 (La.App. 4th Cir. 1971).

The standard of proof in a civil case is a preponderance of the evidence; i. e., when the evidence as a whole shows that the event or causation sought to be proved is more probable than not. Hall, supra.

We cannot conclude, on the record before us, that the evidence adduced supports a finding by the jury that Robert was ever aware of the loss of his wife. The evidence preponderates that Robert never regained consciousness, in the sense of the term connoting emotion or thought. Moreover, assuming arguendo a .conscious awareness, there is neither any evidence that Robert was told or could have known of his wife’s death. Guidry testified that he told Robert only that he had removed Janice from the car and that Robert made no intelligible reply.

Relative to the loss of support, plaintiffs contend that this determination should be made as of the time of Janice’s death, without considering Robert’s death soon thereafter. This argument was treated and rejected in Wakefield, supra, where it was held that the measure of damage is the amount the surviving beneficiary (Robert) was entitled to receive from the time of the tort victim’s (Janice’s) death until the time of the beneficiary’s (Robert’s) death. Under the facts herein, there would be no measurable damage because of the extremely short period of time involved. The trial judge correctly instructed the jury on this point of law; therefore we must assume that no damages were assessed.

Robert, the beneficiary, incurred no funeral expenses.

Wrongful death of Robert Walker

As surviving beneficiaries under LSA-C.C. art. 2315, the plaintiffs are entitled to compensation for the death of their son. Plaintiffs’ ambulance and funeral expenses were $2,975.00 or $1,487.50 each.

The plaintiffs have claimed also as damages their loss of support by their son. To be compensated for such a claim, plaintiffs must show actual prior monetary support, Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir. 1976). While there was some testimony relative to Robert’s having worked at different jobs around his parents’ home, there was no such monetary support shown. Hence no recovery could be had therefor.

Relative to the plaintiffs’ loss of the love, affection and companionship of their son, we have reviewed similar cases of this nature, not with a mind to enforce uniformity in such awards but as aids to determine whether the awards herein were so disproportionate as to constitute an abuse of discretion by the jury.

We find the highest awards to parents for the death of a child to be in the range of $40,000 per parent. See Ogaard, supra; Dixon v. Wiley, 325 So.2d 653 (La.App. 3rd Cir. 1976); Wright v. Ramano, 279 So.2d 735 (La.App. 1st Cir. 1973). While important factors in those cases were that the children were minors living at home or the only children of the parents, neither of which is present herein, we feel that the strong and loving relationship between Robert and his parents, together with his outstanding personal qualities, on balance would justify a similar award.

We now turn, with this in mind, to the question of whether the jury abused its “much discretion” herein.

To determine the amount awarded by the jury to each plaintiff for the loss of love, affection and companionship, we initially subtract from the total award of $112,500 each, those items of damages previously discussed and allowed:

$4,987.50 from $112,500 leaves $107,512.50 to each parent for the loss of their son. Comparing these awards with the highest previous awards of $40,000 per parent, we find them excessive and a clear abuse of discretion. Accordingly, judgment will be amended to reduce the awards to each parent from $112,500 to $44,987.50.

AMENDED AND AFFIRMED.


text:
    Margaret GRIESHABER, Plaintiff-Appellant, v. John R. CANNON, Defendant-Appellee.
    No. 10879.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Granted Jan. 14, 1977.

      Patricia A. Mathes, DeVerges & DeVerg-es, New Orleans, Patrick W. Pendley, Freeman, Pendley & Gascon, Plaquemine, for plaintiff-appellant.
    A. J. Kling, Jr., Gonzales, for defendant-appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

Plaintiff, as a conventional mortgagee, instituted this suit seeking the cancellation of a tax sale. She now appeals from the judgment of the trial court which sustained defendants’ peremptory exception of no right of action. We reverse.

All of the pertinent facts surrounding this controversy are free from dispute. In general, plaintiff is the holder of a certain promissory mortgage note affecting an undivided one-half interest in and to a 27.06 acre tract of land located in the Parish of Ascension, Louisiana, which we will hereinafter more particularly describe.

The pertinent facts are: On October 18, 1956, Harvey J. Kling purchased an undivided one-half interest in the subject property from Annie Smith Grant. On March 16, 1965, Kling placed a mortgage on his interest in the property in the amount of $4,000.00, which was represented by a note in like amount payable on demand to “Any Holder or Holders.” Plaintiff is the holder of this note. On May 26,1966, the property was sold for the non-payment of 1965 taxes to Richard Cannon, defendants’ ancestor in title. The tax deed was placed of record on June 1, 1966.

The trial court based its decision on its interpretation of R.S. 47:2183 and our holding in Whitfield v. Jones, La.App., 270 So.2d 153 (1973), writs refused, La., 272 So.2d 376 (1973). R.S. 47:2183 provides, in pertinent part, that if property sold for taxes is not redeemed by the tax debtor within three years of recordation of the tax deed, the deed itself “shall operate as a cancellation of all conventional and judicial mortgages;”. In Whitfield, we held that a mortgage securing a vendor’s lien and privilege was not cancelled by the effect of R.S. 47:2183. Accordingly, the trial judge reasoned that inasmuch as the instant mortgage was a conventional one plaintiff had lost any right as a mortgagee to contest the validity of or to set aside the tax deed in question by the lapse of three years. For reasons which we will more fully discuss hereinafter, we conclude that the court a quo committed error in law.

Two principal questions are posed for resolution, namely: (1) Whether plaintiff has a right of action (standing to sue) to annul the tax deed which affects her security after the expiration of the three year period provided for in R.S. 47:2183; and if so, (2) whether the tax deed itself is so fatally defective as to require that it be stricken as a nullity and cancelled from the public records.

RIGHT OF ACTION

At the outset, it should be noted that a tax debtor has three years from the date of the recordation of the tax deed in which to redeem his property that has been sold for unpaid taxes. Art. X, Sec. 11, La.Const. of 1921. In addition, a tax debtor has two more years in which he can attack a tax sale based on certain irregularities in the assessment and/or the tax sale itself. After the lapse of five years from the date of recordation Art. X, Sec. 11, of the Louisiana Constitution of 1921 comes into play. This constitutional provision provides a five year pre-emptive period which terminates any claim against a tax deed for basic irregularities. However, it has been held that a right of action survives this five year preemptive period to set aside a tax sale upon a showing of prior payment of taxes, continued physical possession by the tax debt- or, and no assessment. Gulotta v. Cutshaw, La., 283 So.2d 482 (1973).

In the instant case we are not concerned with the pre-emptive period provided for in the constitution. The present action was filed after the expiration of the three year redemptive period but within five years from the date of recordation of the tax deed (June 1, 1966) and the institution of this suit (April 16, 1971).

We are of the opinion and hold that plaintiff, as a conventional mortgagee, succeeded to whatever rights her mortgagor (Kling) may have had with respect to the tax deed at the time this litigation was instituted. The rights of a tax debtor have been referred to generally hereinabove. It is apparent that Kling had a right to contest the irregularity of the tax deed whereby his property was sold to the defendants’ ancestor in title. Moreover, the instant controversy charges not just a mere irregularity but the nullity of the deed itself.

Pretermitting the merits of this charge for the purpose of discussing plaintiff’s right to bring this action, it appears to us that if a tax debtor has a right to challenge the validity of the tax deed which dispossessed him of his property and stands the chance of regaining his property, the property once regained should be burdened with the conventional mortgage that the tax debtor himself placed on the property. Otherwise, the anomalous situation would exist whereby a tax debtor could, after three years from the date of recordation of the tax deed itself, bring an action to set aside a tax sale and regain his property free and clear of any encumbrances. This cannot be the effect of R.S. 47:2183.

The three year period for the automatic cancellation of conventional and judicial mortgages provided for in R.S. 47:2183 corresponds to the three year redemptive period provided for in Art. X, Sec. 11, La.Const. of 1921. The statute has for its obvious purpose the cancellation of such mortgages as a convenient means to clear title to property sold for taxes and relieve a tax-vendee of such burdens. However, the strict wording of R.S. 47:2183 for the cancellation of conventional and judicial mortgages after the lapse of three years from the date of recordation of the tax deed must of necessity mean the recordation of a valid and efficacious tax deed. It seems only reasonable that so long as a tax debtor has any right to question the tax deed itself that debtor’s mortgagee should be accorded the same right. See Standard Homes, Inc. v. Prestridge, 193 So.2d 100 (2nd La.App., 1960).

VALIDITY OP THE TAX DEED

We now turn to the issue relative to the tax deed itself. Plaintiff contends that the tax sale is a nullity because the assessment which went unpaid did not sufficiently describe and/or identify the property. It is well established that a tax sale of property that is not susceptible of identification cannot be enforced. Ewald v. Hodges, 239 La. 883, 120 So.2d 465 (1960). Further, it has been held that the assessment of property which is incapable of identification is tantamount to no assessment at all. Gulotta v. Cutshaw, supra. With these principals in mind, we turn to the assessment itself.

The tract in question has been consistently described as follows:

A certain parcel of real estate in the Parish of Ascension, Louisiana, known and described as Lot One (1) or the Southwest Vi of the Southwest Vi of Section 33, Township 10 South, Range 3 East, of St. Helena Meridian, S.E.D., East of River in Louisiana, containing 27.06 acres, less one-half acre belonging to Floyd School, together with all buildings and improvements thereon, (acquisition data omitted)

Kling acquired an undivided one-half interest in and to the 27.06 acres as described above. However, the property was described on the assessment rolls and in the tax deed as follows:

“13.53 Acres. Und. V2 Int. Lot 1 of SW V2 of SW Vi, Sec. 33-10-3”

Plaintiff contends that Kling was assessed for and defendants’ ancestor in title purchased not an undivided one-half interest in and to 27.06 acres but 13.53 acres and that by virtue of such assessment and the description set forth in the tax deed the property was incapable of being identified as there never existed a 13.53 acre tract of land. We find merit in plaintiff’s contention.

Exactly the same issue was presented in the case of Gottlieb v. Babin, 197 La. 802, 2 So.2d 218 (1941). There plaintiffs owned undivided one-half interests in four tracts of land totaling 995.38 acres. Plaintiffs were assessed for 497.69 acres, or one-half of the amount of the total acreage involved. The court, citing Hayes v. Viator, Sheriff, 33 La.Ann. 1162 (1881), stated: 2 So.2d 218, 221

The language used in this particular case fits the present case unequivocally. Lewis Gottlieb and Mrs. Rosalie G. Moyse did not own any specific acreage. They owned an undivided interest in certain designated tracts, yet they are assessed with a specific number of acres. The assessor had no authority whatever to divide up the tracts or to assign any given number of acres to them. He could not put a purchaser at tax sale in possession of any given portion of the property. The assessment, which is the basis of the eventual sale, was radically defective in assigning a given number of acres and, therefore, under the irrefutable reasoning in the Hayes case, the assessment was not a legal basis for the subsequent sale to the defendants, the Babins.

In Hayes v. Viator, Sheriff, supra, the court struck down a tax sale where three owners in indivision were each assessed for 800 acres of a 2400 acre tract. In doing so the court stated:

“When it is considered that the property assessed and to be sold under this vague description, consisted of a plantation or land, as described in the deed referred to; that there had never been a partition of it, and each of the taxpayers held no definite number of acres, but an undivided interest in the entire tract, the vitally defective character of this description becomes obvious to every one.”

Ironically, the tax sales in the instant case and in Gottlieb v. Babin, supra, involved land situated in Ascension Parish and identical assessment descriptions, i. e., a division of the property in a ratio comparable to the owners’ undivided interests. It is apparent that the assessment in the instant cause fails to properly identify the property. The tax deed itself must fall because defendant’s ancestor in title could not and did not acquire a 13.53 acre tract.

Accordingly, for these reasons, the judgment of the district court dismissing plaintiff’s suit is reversed and judgment is rendered herein in favor of the plaintiff and against defendants decreeing that the tax sale made to John R. Cannon on May 25, 1966, by the Sheriff and Ex-Officio Tax Collector for the Parish of Ascension, and recorded on June 1, 1966, in Conveyance Book 192, Folio 828, be and the same is hereby annulled and ordered cancelled from the records in the office of the Clerk and Recorder for the Parish of Ascension, said annulment to be effective upon payment to the defendants of the amount found to be due them under the provisions of law for the redemption of property,-or in the event of refusal of defendants to accept said amount, upon the depositing of such amounts due and owned by plaintiff to defendants in the Registry of the Twenty-third Judicial District Court for the Parish of Ascension.

Defendants are cast for all such costs as are incidental to this litigation.

REVERSED AND RENDERED.

      . When service of process was attempted on John R. Cannon, the original named defendant, it was discovered that he was deceased. Thereafter, his heirs, Elsie Cannon Bruce and George Richard Cannon, were named party defendants by supplemental and amending petition.

      . To further illustrate the confusion surrounding the assessment description, it is noted that the judgment of possession in Probate # 5544 on the docket of the 23rd Judicial District Court, Parish of Livingston, Louisiana, which placed the heirs (defendants herein) in possession of the property, the tract was described as follows:
      An undivided one-half (‘/¡) interest in and to LOT ONE (1) containing 13.53 acres, located in the SW ‘A of the SW ‘A of Section 33, Township 10 South, Range 3 East. (In litigation — Suit # 17,303, Margaret Grieshaber vs. John R. Cannon) (Emphasis ours)
      This description certainly cannot be said to represent an undivided one-half interest in a 27.06 acre tract of land.


text:
    Faye JAMES et al. v. STATE of Louisiana, Through TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA, et al.
    No. 10880.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Jan. 14, 1977.
    Charles S. McCowan, Jr., Baton Rouge, of counsel, for Faye James et al.
    William T. Reeves, Jr., Baton Rouge, of counsel, for State of Louisiana, Through Teacher’s Retirement System of Louisiana, et al.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court sustaining the Teachers’ Retirement System of Louisiana and the Board of Directors of the Teachers’ Retirement System of Louisiana’s, defendant-ap-pellees, peremptory exception of no cause of action.

This action was brought by Faye James, Celeste Partain, Judy Conaway, Eloise Bridgman, Charles Heslin and Lee Roy Ou-bre, plaintiff-appellants, to obtain a declaratory judgment and other appropriate relief. In their petition, the appellants alleged: that prior to 1971, they were employed in various capacities by the Orleans Parish School Board and were members of the Orleans Parish Teachers’ Retirement System; that in 1971 the Orleans Parish Teachers’ Retirement System was merged into the State Teachers’ Retirement System; that prior to the merger, the Orleans Parish Teachers’ Retirement System adopted a rule, policy or procedure, whereby anyone who had served in a temporary capacity would be granted up to two years free service credit; that many persons were given such credit; that the appellants were not informed of their rights to this credit; that the appellants are entitled to such credit; and, that the appellees, successors to the Orleans Parish Teachers’ Retirement System, have arbitrarily and unjustly refused to give the appellants such credit.

The appellees, in their peremptory exception, contended that the appellants’ petition stated no cause of action because under the act which merged the retirement systems, Act 3 of 1971, the only service credits to be credited to members of the Orleans Parish Teachers’ Retirement System were those credited on or before the date of the merger and that the Teachers’ Retirement System of Louisiana was not bound by any rule, policy or procedure, that may have been adopted by the Orleans Parish Teachers’ Retirement System as to the granting of free service credits to persons who had served in a temporary capacity.

Act 3 of 1971, provides.in part that: “The Board of Directors of the State Teachers’ Retirement System shall be the successor in every way to the Orleans Parish Teachers’ Retirement System . ” (Emphasis added).

The exception of no cause of action concedes, for the purpose of the trial of the exception, the correctness of the facts pleaded. Louisiana State Board of Medical Exam. v. England, 252 La. 1000, 215 So.2d 640 (1968). The appellants in their petition have alleged arbitrary and unjust actions, discrimination in the granting of free service credits, by the Orleans Parish Teachers’ Retirement System and its successor, the Teachers’ Retirement System of Louisiana. “In considering a petition against which an exception of no cause of action has been raised, every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence.” Hero Lands Company v. Texaco, Inc., La., 310 So.2d 93, 96 (1975). The allegations contained in the appellants’ petition state a cause of action against the appellees.

For the foregoing reasons, the judgment of the District Court sustaining the appel-lees’ exception of no cause of action is reversed and the case is remanded to the District Court for further proceedings.

REVERSED AND REMANDED.