author: STOKER, Judge.

text:
    D. G. MAYES, Plaintiff-Appellant, v. LOUISIANA-PACIFIC CORPORATION, Defendant-Appellee.
    No. 7220.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.
    Writ Refused March 21, 1980.

      McKeithen, Burns & Wilkins, Paul Wilkins and André P. Guichard, Columbia, for plaintiff-appellant.
    Gaharen & Wilson, Joseph Wilson and Paul Boudreaux, Jr., Jena, for defendant-appellee.
    Before CUTRER, STOKER, WARE, JJ.

       District Judge G. Bradford Ware, Fifteenth Judicial District Court, participated in this decision as Judge Ad Hoc.

   STOKER, Judge.

This is a workmen’s compensation case. The plaintiff-appellant, D. G. Mayes, appeals from a judgment of the trial court denying his claim for total and permanent disability under LSA-R.S. 23:1221(2). In the alternative that he be found not to be totally and permanently disabled, plaintiff-appellant seeks compensation for permanent partial disability under LSA-R.S. 23:1221(3). In the further alternative, appellant contends, in the event he be found not to be totally or partially disabled, that he should be awarded benefits under LSA-R.S. 23:1221(4), the specific injury schedule. The first schedule benefit claimed as an alternative is under subparagraph (p) for loss of a physical function, the inability to move his head and neck in a full range. LSA-R.S. 23:1221(4)(p). The second is under subparagraph (e) and (f) based on limitations resulting from injury to his hand and wrist. LSA-R.S. 23:1221(4)(e) and (f).

The trial court articulately stated the facts of the case in its written reasons for judgment and set forth its conclusions and opinion to support its judgment which denied compensation in any form. We set forth in full the trial court’s reasons and adopt its statement of facts. We arrive at different conclusions as to the interpretation of law to be applied and therefore reverse. The trial court’s reasons for judgment are as follows:

REASONS FOR JUDGMENT
This is a workmen’s compensation case resulting from an accident on November 2, 1975. The plaintiff, D. G. Mayes, contends the accident caused him to become totally and permanently disabled while the defendant, Louisiana Pacific Corporation, claims he fully recovered from his injury. I conclude that while he has not fully recovered, he is not entitled to additional benefits.
Plaintiff was a Class A millwright when injured. He explained that this involved repair and maintenance of a wide variety of machinery and equipment at defendant’s plywood plant in Urania, Lousiana. He regularly used hand tools in this trade, including wrenches, hammers and cutting torches. He had some training as a welder, but was not certified as such. He had been working for 48 or 49 years. During most of this time he was a carpenter or millwright for the various timber companies that owned the Urania facilities. He had a ninth grade education.
On November 2,1975, plaintiff and several other millwrights were called upon to repair a torn belt on an overhead convey- or used to move wood chips, sawdust and scrap material. To accomplish this, they shut down the conveyor and plaintiff was lifted up in a basket to a height that would allow him to reach the belt. Two other men pulled the belt until the ends joined and plaintiff was stitching the belt. He had some of the string he was using to sew with wrapped around three or four fingers of his right hand. While plaintiff was bent over the belt sewing, someone out of sight of the repair crew threw an electrical switch starting the belt. Plaintiff was jerked out of the basket and thrown to the floor. It seems he fell about 15 feet and struck his head on something on the way down. He was rendered unconscious and landed on his head and right shoulder. He woke up in a nearby hospital as a nurse was cutting off his shirt.
The accident caused plaintiff to break his right wrist and tore skin and nails from his fingers. He had a scalp laceration and a cerebral concussion. He had lacerations on his right thigh and tenderness in the right scapular region. He had abrasions on his left heel and left arm. He suffered a fracture through the left transverse process of the seventh cervical vertebrae. He complained of severe pain in his right shoulder. He was hospitalized under the care of Dr. T. E. Tannehill from November 2nd until November 14th. Dr. Tannehill saw plaintiff as an outpatient on November 20th and 26th and on December 4th, 12th, 19th, and April 30th and May 3rd or 7th of 1976.
On release from the hospital plaintiff was still wearing a cast on his right arm and a soft collar on his neck. He returned to work in that condition on December 10, 1975. He was told to teach the younger millwrights what he knew about the plant and its equipment and he remained on light duty. He wore the cast about six weeks and wore the collar for a shorter period. Exactly when he resumed his regular duties or got off light duty status is not clear.
The plant maintenance supervisor, Ruf-fin Scoggins (the transcript is in error concerning his name) testified that Mr. Mayes ultimately did all that he was expected to do as a Class A millwright. Mr. Mayes denied this, asserting instead that after the accident he did little more than tell the other men what to do and how to do it. Mr. Scoggins said he was not promoted to foreman or supervisor. Mayes said his primary problem was that he could not use his right hand as well as he did before the accident. (See pages 15 and 16 of transcript.) He also said he had and still has difficulty turning his head. He continued in defendant’s employment until he reached mandatory retirement at Sixty-Five on September 22, 1976.
In all, plaintiff was seen by three doctors. Dr. Tannehill saw him first and most often. He is a general practitioner. Then he saw Dr. R. J. Beurlot of Alexandria who is an orthopaedic surgeon. Dr. Beurlot examined plaintiff on May 14, 1976. He also saw Dr. Baer Rambach of Shreveport who is also an orthopaedic surgeon, on March 13, 1977, and in November of 1978.
Dr. Tannehill testified he believes that plaintiff can do all he was doing before the accident. It is clear from his testimony he considered plaintiff’s return to the' plant as indicative of ability to do all he was doing before being injured. It is also clear from his testimony that plaintiff continued to complain of shoulder and wrist difficulties into May of 1976 because Dr. Tannehill continued to take X— Rays which did not indicate any problems. It is significant that in May of 1976 Dr. Beurlot found continued limited motion in movement of the head and neck and plaintiff’s continued inability to close his right fist. Dr. Rambach’s findings were fairly consistent with the earlier findings concerning the neck and wrist limitations, which he believed were more persistent than the other doctors had anticipated. He concluded from his find-. ings the plaintiff had suffered a severe muscle strain in the cervical region that was still partially disabling him. He also concluded that the accident aggravated a pre-existing degenerative arthritic condition and that hammering with the right wrist could not be accomplished without pain.
This Court finds that Mr. Mayes was injured in a compensable accident as alleged. Further, this Court finds that the trauma to plaintiff’s shoulder and cervical region has caused permanent partial limitation of his ability to move his head and neck and some chronic aggravation of pre-existing degenerative arthritis. The wrist fracture, while healed, caused a persistent inability to use hand tools in a regular consistent manner during regular employment without pain and it caused an inability to completely close the right hand. All of these residual problems combined with the circumstances of plaintiff’s age and education make it reasonably certain plaintiff cannot do the carpentry work that he expected to do after retirement and there are probably some duties as a millwright that he cannot perform. The evidence before me convinces me this plaintiff can work as a carpentry foreman and earn $5.00 per hour supervising the work of other carpenters. He did this on two short jobs for wages after his retirement. He did it for a longer period under a barter arrangement with a relative who could do some specialized work on plaintiff’s own residence. I also find that the only reason he cannot continue as a millwright for defendant is his age. His after retirement work discussed at length at trial indicates he can do some other work such as supervise carpenters, but he cannot do carpentry work himself.
The fact that plaintiff has retired was argued extensively. It may be that allowing an older employee the same compensation a younger man would get is somewhat unfair. However, such a problem is one for the legislature to remedy. It has been held to be such in Haywood v. Eastern Terminals, 276 So.2d 328 (La. App. 4th Cir. 1973).
A workman in Louisiana who is accidentally injured is considered totally disabled only under two conditions. The first is when the employee cannot perform any gainful work for a wage and the second is when the employee can work, but cannot do so without substantial pain. The employee is partially disabled if the injury compels him to take work outside of the occupational category he was in when injured. LRS 23:1221. When partially disabled, he is entitled to a weekly benefit for no more than four hundred weeks for an injury sustained on November 2, 1975, and then only for two thirds of the difference between what he was earning when injured and what he “actually earns” after returning to work.
While LRS 23:1221(3) uses the language “actually earns”, I am of the view it means actually earns or is capable of earning. Otherwise, the choice of whether or not to work would rest solely with the employee and non-accident related factors could become involved, such as the availability of work and age. I believe the plaintiff would like to work, but only if there is employment available in the immediate vicinity of his residence. It is my view he is physically capable of earning $5.00 per hour if he is willing to work in an area where carpenter foremen are in demand. I am not convinced his present lack of employment is caused by this accident — it is caused by his retirement and age.
Plaintiff was paid $364.28 in weekly benefits under LRS [LSA-R.S.] 23:1221(1) for the period between his accident and his return to work, November 2, 1975, through December 10, 1975. All of his medical expenses amounting to $1,256.90 were paid.
For these reasons, judgment will be entered in favor of defendant, Louisiana Pacific Corporation, against plaintiff, D. G. Mayes, rejecting his demands for additional weekly workmen’s compensation benefits at his costs.

APPELLANT’S CLAIM FOR TOTAL AND PERMANENT DISABILITY

In urging that he is totally disabled, plaintiff-appellant points to LSA-R.S. 23:1221(2) which requires that in order to recover he be unable to “engage in any gainful occupation for wages.” He relies on the holding that, if he can engage in any gainful occupation, but must do so in substantial pain, he is, nevertheless, considered totally and permanently disabled under that section of the Workmen’s Compensation Law. Plaintiff-appellant cites the eases of LeBlanc v. Commercial Union Assurance Co., 349 So.2d 1283 (La.App. 1st Cir. 1977), writ denied 351 So.2d 174 (1977); Rachal v. Highlands Insurance Co., 355 So.2d 1355 (La.App. 3rd Cir. 1978); Phillips v. Dresser Engineering Co., 351 So.2d 304 (La.App. 3rd Cir. 1977) and J. D. Armstrong v. Gulf States Fishing and Rental Tools, Inc., 338 So.2d 779 (La.App. 4th Cir. 1976).

The trial court evidently rejected D. G. Mayes’ claim that he could not do millwright work without pain. In its reasons for judgment the trial court did recognize that inability to work without substan-r tial pain was a condition which renders a workman totally disabled. Consequently, it is clear that the trial court did not find that D. G. Mayes experienced substantial pain when he did work. Mayes and his wife testified concerning this pain. Their testimony is not particularly specific or graphic and largely expresses their own conclusions rather than objective description. Although Mayes and his wife stated he could not work because of pain, their testimony is not particularly impressive. Certainly the testimony in the cold record is not convincing that working caused Mayes to sustain pain of such quality that it amounted to “substantial” pain. The amount of pain an injured workman experiences is a question of fact. Conlay v. Houston General Insurance Co., 370 So.2d 196 (La.App. 3rd Cir. 1979) and cases cited therein. Under the circumstances, this finding of fact is peculiarly within the province of the trial court, and we are unable to say that the trial court was clearly wrong or committed manifest error in this finding. Hence, we will not disturb the finding. Arceneaux v. Dominque, 365 So.2d 1330 (La.1978); Canter v. Koerhing, 283 So.2d 716 (La.1973); Conlay v. Houston General Insurance Co., supra.

Aside from the question of pain, the record clearly establishes that, subsequent to returning to work at Louisiana-Pacific Corporation, D. G. Mayes could, and did, engage in gainful employment.

For the foregoing reasons, we will not disturb the trial court’s failure to find Mayes totally and permanently disabled.

APPELLANT’S CLAIM FOR PARTIAL DISABILITY

Appellant’s alternative claim for workmen’s compensation benefits for partial disability requires a determination of the correctness of the trial court’s construction of LSA-R.S. 23:1221(3). That section of statute was part of the 1975 general legislative amendment to the Workmen’s Compensation Law which changed the concept of disability with respect to the ability of workmen to perform gainful employment despite work-connected injury. Significant change was made in the statutory definitions of temporary total disability, permanent total disability, and partial disability [LSA-R.S. 23:1221(1), (2) and (3)]. Act No. 583 of the Louisiana Legislature of 1975; 36 La.L.Rev. 1018 (1976); 2 So.L.Rev. 107 (1975); Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977); LeBlanc v. Commercial Union Assurance Co., supra.

As noted in LeBlanc v. Commercial Union Assurance Co., supra, the 1975 amendment made significant change in the concept of total disability, either temporary or permanent. Under prior jurisprudence, an employee was considered totally disabled if he could not perform work of the same or' similar description as that in which he was engaged when injured, notwithstanding his ability to earn the same or higher wages in a different line of endeavor. This was the construction placed on the statutory phrase defining total disability which consisted of the words, “total disability to do work of any reasonable character." These words have been replaced by the 1975 amendment. The total disability definition now requires “total disability of an employee to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience . . . ”.

The 1975 amendment referred to partial disability as “disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience . . . ”. This definition of partial disability has been held to be substantially the same as total, disability was judicially interpreted prior to the 1975 amendment. LeBlanc v. Commercial Union Assurance Co., supra; Conlay v. Houston General Insurance Co., supra; Rachal v. Highlands Insurance Co., supra; and Phillips v. Dresser Engineering Co., supra.

In this case before us the trial court found the plaintiff-appellant, D. G. Mayes, to be partially disabled. The trial court found there was a compensable accident which “has caused permanent partial limitation of his ability to move his head and neck and some chronic aggravation of preexisting degenerative arthritis.” It also found the wrist fracture “caused a persistent inability to use hand tools in a regular consistent manner during regular employment without pain and it caused an inability to completely close the right hand.” From these findings the trial court made the following conclusions:

All these residual problems combined with the circumstances of plaintiff’s age and education make it reasonably certain plaintiff cannot do carpentry work that he expected to do after retirement and there are probably some duties as a millwright that he cannot perform. The evidence before me convinces me this plaintiff can work as a carpentry foreman and earn $5.00 per hour supervising the work of other carpenters. * * * I also find that the only reason he cannot continue as a millwright for defendant is his age. His after retirement work discussed at length at trial indicates he can do some other work such as supervise carpenters, but he cannot do carpentry work himself.

In oral argument it was urged on behalf of defendant-employer that the trial court had found that plaintiff’s lack of employment was attributable to his retirement and age rather than the effects of his accident. Admittedly, the trial court did say as much. In one instance the trial court’s reasons for judgment contains the following statement: “I also found that the only reason he [plaintiff] cannot continue as a millwright for defendant is his age.” In another instance the following statement appears: “lam not convinced that his [plaintiff’s] present lack of employment is caused by his accident — it is caused by his retirement and his age.” The trial court’s findings in its reasons for judgment must be read as a whole. When read as a whole, it becomes certain that the trial court did find plaintiff-appellant was partially disabled. The trial court held that plaintiff “can work as a carpentry foreman and earn $5.00 per hour supervising the work of other carpenters.” Thereafter, the trial court applied its interpretation of the words “actually earns” in subsection (3) of LSA — R.S. 23:1221. As the trial court held these words mean the same thing as “is capable of earning,” and inasmuch as $5.00 exceeded his wage as a millwright, it followed that no compensation was due for partial disability under the peculiar circumstances of the case.

The statements quoted above from the trial court’s reasons for judgment purporting to hold that retirement and age alone were responsible for plaintiff’s inability to work are in the nature of conclusions. On the bare face of the statements they would appear to be inconsistent with the other stated findings of the trial court which are more in the nature of findings of fact as opposed to conclusions. If there is any inconsistency in the reasons for judgment, the conclusions must yield to the findings of fact. In our opinion the record supports a finding of partial disability, and, in our opinion that is what the trial judge found.

The trial court’s stated findings and conclusions holding plaintiff to be partially disabled are supported by the record. We find no manifest error in them. We do find, however, that the trial court committed manifest error in its application of LSA-R.S. 23:1221(3). This part of the statute provides that a partially disabled employee be paid 662/3 per cent of the difference between the wages the employee was earning at the time'of injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience during the period of disability, but not beyond a maximum of four hundred weeks

As will be noted from the trial court’s reasons for judgment, it disallowed compensation for partial disability grounded upon an interpretation which it placed on the words “actually earns,” as contained in the provision for payment of benefits for partial disability. The trial court’s reasoning and its interpretation were as follows:

While LRS 23:1221(3) uses the language “actually earns,” I am of the view it means actually earns or is capable of earning. Otherwise, the choice of whether or not to work would rest solely with the employee and non-accident related factors could become involved, such as the availability of work and age. I believe the plaintiff would like to work, but only if there is employment available in the immediate vicinity of his residence. It is my view he is physically capable of earning $5.00 per hour if he is willing to work in an area where carpenter foremen are in demand. I am not convinced his present lack of employment is caused by this accident — it is caused by his retirement and age.

Plaintiff-appellant was paid full compensation for total disability for the period dating from his accident until his return to work with defendant, that is, from November 2, 1975, through December 10, 1976. All of his medical expenses were paid. Inasmuch as $5.00 per hour, which the trial court believed the plaintiff could earn after his retirement, exceeded his regular wage before retirement, there was no difference to which the 66% percentage prescribed by LSA-R.S. 23:1221(3) could apply. Hence, the trial court denied any additional compensation and rejected plaintiff’s demands at his costs.

In equating the words “actually earns” to mean “or is capable of earning,” the trial court reasoned from policy considerations. No authority was noted, nor was there any resort to aids for legislative interpretation. We have not found that the specific issue has been the subject of any reported litigation.

We do not feel that policy considerations justify the interpretation placed by the trial court on the meaning of the words “actually earns.” Section 1221 (3) of the amended statute is clear as enacted. There is no ambiguity in it. There is no more reason to believe the Legislature meant to provide that the capability of earning should be equated to what an employee “actually earns,” if the employee chooses not to work, then there is reason to believe that the statute is to be construed literally as written. Whether the policy embodied in the statute in question as it reads is good or bad is immaterial. Without concrete indication that the Legislature meant more than it said, the courts may not add to the statute. Article 13 of the Louisiana Civil Code provides: “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

The prior statutory provision relative to partial disability employed the terms “wages which the injured employee is able to earn thereafter.” (Emphasis supplied.) Therefore, a complete change was made through the 1975 amendment when the Legislature employed the terms “wages which the injured employee actually earns in any week thereafter.” (Emphasis supplied.) Inasmuch as a change in words was made in order to substitute a diametrically contrary concept, it must be presumed that the change was deliberate.

The trial court gave as its policy reason for interpreting the new disability benefit payments provision to mean capability of earning as well as actual earnings, the fact that the option to work or not work would thus be left to the injured employee. The implication of such a holding is that the Legislature could not possibly have intended such a result. If that is so, then the Legislature, and not the courts, should correct the situation. However, we do not agree that the Legislature’s intent can be read so clearly. We note that despite opportunities to do so since 1975, the Legislature has allowed the partial disability provision enacted in 1975 to stand. The matter has been commented upon, and therefore, has no doubt been called to the attention of the Legislature. Professor H. Alston Johnson, III, writing in the Winter, 1978, issue of the Louisiana Law Review reviewed a case in which a claimant was awarded compensation under the old provision of the compensation law. At 38 La.L.Rev. 488, Professor Johnson said the following:

The amended definition of disability would probably have produced a more just resolution of the issue between the parties, had it been applicable. Plaintiff would no doubt have been classified as partially disabled, since there was no indication that she could not perform other employment which would not involve substantial risk of insect stings. She would then have been entitled to two-thirds of the difference between the wage she was earning at the time of the injury and the actual wage which she earned in any subsequent week, up to the applicable maximum number of weeks. This sug-gestión, however, reveals a serious omission in the amended Act. There appears to be no particular incentive to encourage such a person to return to work; as long as she does not, she receives a full two-thirds of her previous wage, since the difference between the previous wage and no wage at all is, obviously, the previous wage.
It might have been better to use the phrase “any lesser wages which the injured employee actually earns or is capable of earning in any week thereafter.” This at least would permit an employer to attempt to prove that the individual in question, though unable to return to his former employment, is capable of earning some wage at a different job. It is believed that the amendments to the disability definitions in the Act were intended to introduce this measure of flexibility which had been so noticeably absent in the past.

While Professor Johnson expressed the opinion that the Legislature intended to prescribe a measure such as that applied by the trial court in this case, the observation he states in the first paragraph quoted above notes that the Legislature did not, in fact, do so. We are inclined to believe that, had the Legislature intended to adopt a scheme under which, from a compensation base for partial disability there should be deducted any lesser wages, either actually earned or which the worker is capable of earning, it would have further amended the compensation law to clarify its intentions.

In addition to the law review commentaries referred to, the Legislature’s attention should have been called to the interpretation being given by the courts to the new statutory rule for determining compensation for partial disability. Although the courts have not considered the precise issue before us, the term “actually earns” has been frequently noted in jurisprudence. In LeBlanc v. Commercial Union Assurance Co., supra, in which the Supreme Court denied writs, the Court of Appeal for the First Circuit commented as follows:

It appears that the amendment to 1221, above, was intended to relieve the effect of prior jurisprudence which held that an injured employee was entitled to benefits when he could not perform the same or similar work in which he was engaged when injured but could, nevertheless, earn wages at some other occupation. We so find, because Section 1221(3), as amended in 1975, fixes compensation for partial disability at “. . . sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation . . .” (Emphasis by the court.) We interpret this language to mean that a partially disabled employee who remains unemployed during the continuance of partial disability is entitled to receive the compensation presently provided in Section 1221(3), above, for the period of such disability, not exceeding 400 weeks. If, however, such an employee secures other employment at wages less than those earned at the time of injury, he is entitled to compensation at the rate of sixty-six and two-thirds per cent of the difference between the wages earned at time of injury and wages actually earned thereafter in any other work. If such an employee earns wages equal to or greater than those earned at time of injury, he is entitled to no compensation during the period such equal or greater wages are earned. It is elementary that the right to any compensation whatsoever ceases upon cessation of partial disability. That there might be inherent inequity in the present definition of partial disability and the benefits provided therefor, is a matter which addresses itself to the legislature. Our function is to interpret the statute as written. We find that the statute as amended intends that a partially disabled employee shall be paid compensation for such period of disability during which he earns no wages in any gainful occupation.

The above quotation states an interpretation entirely consistent with our views. Out of respect for contrary views, including those of the distinguished trial judge in this case, we have gone to some length to show that the Legislature has had ample time to alter subsection (3) of LSA-R.S. 23:1221 if it meant to prescribe a standard for computing benefits that includes a worker’s capability of earning where the injured worker chooses not to work. However, we do not place primary reliance on this fact for our interpretation. We principally base our holding on the fact that the statutory words under consideration are clear and unambiguous. Hence, they must be given effect as written.

Inasmuch as we have concluded that' plaintiff-appellant is entitled to be awarded compensation for partial disability, it will not be necessary to consider his other alternative claims under LSA-R.S. 23:1221(4).

Consistent with our holding in this case, defendant-appellee should be given credit for. such compensation as was paid for the time plaintiff was initially injured until the time he returned to work at Louisiana-Pacific Corporation. Defendant-ap-pellee is not entitled to credit for plaintiff’s earnings subsequent to his return to work at Louisiana-Pacific Corporation until his retirement. Such wages were fully earned and were not a gratuity. The rule in such instances is that the employer is entitled to no credit for wages paid where they are fully earned. Madison v. American Sugar Refining Co., 243 La. 408, 144 So.2d 377 (1962); Lachney v. Cabot Corporation, 368 So.2d 500 (La.App. 3rd Cir. 1979); McGee v. State, Through Bd. of Commissioners, 355 So.2d 1079 (La.App. 4th Cir. 1978) and Futreil v. Hartford Accident and Indemnity Co., 276 So.2d 271 (La.1973).

Although defendant-appellee is not entitled to a credit for wages paid for work performed after plaintiff’s return to Louisiana-Pacific Corporation and retirement, nevertheless, plaintiff is not due any compensation for that period. This results from the application of the 1975 amended version of LSA-R.S. 23:1221(3). As reviewed above, that section establishes the base, a percentage of which is paid as compensation. The base is the wage paid before injury, less any lesser wages actually earned. Since the wage earned by D. G. Mayes at Louisiana-Pacific Corporation was the same upon his return after his convalescence as what he earned prior to injury, the base is zero. With a base of zero, the 66% payable is applied to nothing and yields nothing.

In the same manner, the actual earnings of plaintiff that he received for work performed by him after his retirement, must be accounted for in calculating partial disability after retirement. This must be done on a weekly basis. The phraseology of the statute is “any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages . . . ”.

We perceive a distinction between a credit against compensation which may be payable, as established by the line of cases represented by Madison v. American Sugar Refining Co., supra, and the reduction of the base wage used for figuring partial disability by the amount of wages actually earned in a given week as required by LSA-R.S. 23:1221(3).

For the foregoing reasons, the judgment of the trial court is reversed. It is now decreed that there be judgment in favor of plaintiff-appellant, D. G. Mayes, and against defendant-appellee, Louisiana-Pacific Corporation, for workmen’s compensation benefits for partial disability under LSA-R.S. 23:1221(3) for a period not to exceed four hundred weeks from the date of plaintiff’s injury, November 2, 1975, subject to the maximum benefits payable, and subject to a credit for compensation payments previously paid [$364.28 for the period of November 2, 1975, through December 10, 1975], the compensation payable to be 66% per cent of the difference in any one week between the wage being earned on November 2, 1975, and any lesser wages plaintiff has actually earned thereafter on a weekly basis and earned from gainful occupation, the same to apply as to any wages which may be actually earned in the future, together with legal interest on each payment from the date it shall have become due until paid. All costs of these proceedings including this appeal shall be assessed to defendant-appellee.

REVERSED AND RENDERED.

      . Four hundred weeks is the maximum applicable to the period after September 1, 1975, and on or before August 31, 1976. D. G. Mayes’ accident occurred on November 2, 1975.

      . See student comment in 36 La.L. Rev. 1018 (1976) at page 1024, which characterizes the provision in question as anomalous because it does leave the option with the employee.

      . For a seemingly contrary statement in dicta by the Court of Appeals for the First Circuit, see Kilbourne v. Armstrong, 351 So.2d 802, 806 (La.App. 1st Cir. 1977).


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Herbert C. PORTERFIELD, Plaintiff-Appellee, v. James A. SPURGEON, Defendant-Appellant.
    No. 7230.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.
    Writ Refused March 21, 1980.

      Tillman & Mitchell, F. Clay Tillman, Jr., Leesville, for defendant-appellant.
    Smith, Ford & Clark, S. Chris Smith, III, Leesville, for plaintiff-appellee.
    Before CUTRER, STOKER and DOU-CET, JJ.
   DOUCET, Judge.

This is a boundary action brought by Herbert C. Porterfield against James A. Spurgeon to fix the boundary between their respective properties in Vernon Parish. The parties are the record owners of contiguous forty acre tracts. Both claim the ownership of a strip of land located in the East half (E W) of the Northeast quarter of the Southwest quarter (NE Vi of SW Vi) of Section 3, Township 2 North, Range 6 West, Vernon Parish, Louisiana. The disputed property is presently in defendant’s possession.

The record discloses that the forty acre tracts presently owned by plaintiff and defendant were both owned at one time by defendant’s father, E. E. Spurgeon. Defendant’s property, which came to be known in his family as the “east forty”, was purchased by his father from Forest Lumber Company, a Delaware Corporation, on December 28, 1943. Plaintiff’s property, referred to by defendant’s family as the “west forty”, was purchased by E. E. Spur-geon from Forest Lumber Company on March 20, 1944.

In 1955, E. E. Spurgeon sold the easternmost portion of the west forty to Dr. R. E. Dupre. Dr. Dupre purchased additional acreage in 1957, which resulted in his owning the eastern thirty acres of the tract. Defendant eventually acquired the remaining ten acres in the west forty and the entire east forty from his father.

On January 21, 1976, plaintiff purchased the thirty acres conveyed to Dr. Dupre from Dr. Dupre’s succession. He had previously purchased the other ten acres in the west forty from defendant. In November of 1976, plaintiff had his property surveyed by Charles C. Wise, a registered land surveyor. That survey showed that defendant was encroaching on the eastern side of plaintiff’s property to a depth ranging from 240 feet on the north to 53 feet on the south. On February 8, 1977, plaintiff filed this suit, asking to be sent into possession of the property and to be awarded damages allegedly resulting from defendant’s possession of it.

Defendant filed exceptions of ten and thirty years prescription acquirendi causa, which were tried and overruled. After a trial on the merits, the district court rendered judgment in favor of plaintiff and against defendant, recognizing plaintiff as owner of the disputed property and fixing the boundary as that shown in the survey plat prepared by Charles C. Wise. The judgment denied plaintiff’s claim for damages but reserved his right to sue for any future damages. From that judgment and the denial of his motion for a new trial, defendant appeals.

The issues presented for our resolution here are:

(1) whether the trial court erred in overruling defendant’s exception of thirty years prescription;

(2) whether the trial court erred in overruling defendant’s exception of ten years prescription; and

(3) whether the trial court erred in denying defendant’s motion for a new trial.

THIRTY YEARS PRESCRIPTION

It was established at the trial of the exceptions that the disputed property is bordered on the east by the boundary fixed by the court pursuant to the Wise survey and on the west by a fence originally constructed by E. E. Spurgeon. Defendant testified that the fence had been built when his father purchased the east forty in 1943, and was based on an old land line pointed out by an employee of Forest Lumber Company. The trial court found, however, that the fence had been built in 1944 after defendant’s father had purchased the second forty acre tract.

It is undisputed that defendant’s father continued to possess the disputed property after the sale to Dr. Dupre in 1955. After defendant purchased the east forty from his father, he continued the possession up to the old fence, which he replaced in the late 1960’s. In addition to replacing the fence, defendant’s acts of possession included using part of the land as a wrecking yard for abandoned vehicles and constructing roughly half of his home on the property.

It is well settled that where two tracts of land have a common owner there can be no adverse possession because an owner cannot prescribe against himself. LSA-C.C. art. 3514; Fiorello v. Knecht, 334 So.2d 761 (La.App. 4th Cir. 1976); Babin v. Montegut Insurance Agency, Inc., 271 So.2d 642 (La.App. 1st Cir. 1972). Defendant argues that that rule should not apply to this case, because his father began adverse possession of the property after he bought the first forty acre tract in 1943 but before he purchased the second tract in 1944. We disagree. His father’s ownership of the two tracts from 1944 until 1955 caused an interruption of any adverse possession begun prior to 1944. Jones v. Dyer, 71 So.2d 648 (La.App. 1st Cir. 1954). The trial court correctly concluded that adverse possession could not have begun again until after the sale to Dr. Dupre in 1955.

We conclude that defendant’s exception of thirty years acquisitive prescription was properly overruled.

TEN YEARS PRESCRIPTION

The trial court overruled defendant’s exception of ten years acquisitive prescription because it found that defendant did not have a deed translative of title to the disputed property. LSA-C.C. Arts. 3474 and 3478; Matthews v. Carter, 138 So.2d 205 (La.App. 2nd Cir. 1962); Orr v. Talley, 84 So.2d 894 (La.App. 2nd Cir. 1955). We find no error in that ruling.

Ledoux v. Waterbury, 292 So.2d 485 (La.1974), which is cited by counsel for defendant in his brief, is inapposite. In that case, the property description in the defendant’s deed included the disputed property by referring to a boundary line on a recorded survey plat, which was later found to have been erroneous. In the present case, it is clear that the disputed property was not described in E. E. Spurgeon’s deed from Forest Lumber Company or in defendant’s deed from E. E. Spurgeon.

MOTION FOR NEW TRIAL

The question of whether the trial court erred in denying defendant’s motion for a new trial is a more difficult one. Defendant applied for a new trial in an effort to have the judgment modified to limit plaintiff’s remedies under it. As we noted earlier, defendant’s home, which he built in 1967, straddles the boundary, such that roughly half of it encroaches on plaintiff’s property. Because it is constructed of brick veneer and rests on a concrete slab, the portion that encroaches on plaintiff’s property cannot be removed without demolishing the entire structure. Defendant argues that plaintiff should not be allowed to force him to tear down his home by obtaining a writ of possession pursuant to the judgment recognizing him as owner of the property.

Defendant relies on the decision of the court, in Morehead v. Smith, 225 So.2d 729 (La.App. 2nd Cir. 1969), wherein the court declared that a “Judgment ordering demolition of a structure is a harsh remedy and should be granted only in an exceptional case and in strict compliance with law”. We agree with that principle, and we recognize that although the judgment appealed by defendant does not expressly order the demolition of his home, it makes that remedy available to plaintiff. Since the judgment recognizes that plaintiff is entitled to be put into full possession of the disputed property, he may obtain a writ of possession and require defendant to tear down his home in order to remove the portion of it that encroaches.

At the time that plaintiff’s petition was filed, the legislature had not addressed the issue of what remedies are available to a landowner when structures built on neighboring property encroach. LSA-C.C. art. 670, which was enacted by the legislature as part of Act 514 of 1977, deals specifically with the problem of encroachment, however, it did not go into effect until January 1, 1978, several months after this suit was brought.

LSA-C.C. art. 508 deals with constructions made by a possessor on the land of another. It does not deal with constructions that merely encroach, however, and difficulties arise when it is applied to such cases. Since the early case of Gordon v. Fahrenberg & Penn, 26 La.Ann. 366 (1874), it has been recognized that a landowner may not elect to keep an encroaching structure by paying the construction costs, because the building is not entirely on his land. Thus, it has been uniformly held that when a possessor in bad faith encroaches on the land of another, the proper remedy is the removal of the encroachments and the payment of damages. Esnard v. Cangelosi, 200 La. 703, 8 So.2d 673 (1942); Barker v. Houssiere—Latreille Oil Co., 160 La. 52, 106 So. 672 (1925); Gordon v. Fahrenberg & Penn, supra.

Unfortunately, Article 508 offers no guidance to courts faced with the task of granting relief to a landowner when a good faith landowner has encroached. The fourth paragraph of that article provides that the landowner does not have the right to demand demolition of the constructions in such cases, however, as we noted earlier, according to well-settled Louisiana jurisprudence, he may not elect to keep an encroaching building either. In Morehead v. Smith, supra, the court concluded that there were no statutory provisions covering such cases, and that LSA-C.C. Art. 21 was, therefore, applicable. We agree.

We find the evidence in the record before us insufficient to support a conclusion as to whether or not defendant was in good faith when he built his home. However, for the foregoing reasons, we believe that he is entitled to equitable relief under Article 21 if he was in good faith. It was within the trial judge’s discretion to grant a new trial pursuant to LSA-C.C.P. Art. 1973, and we believe that a new trial limited to the issue of plaintiff’s remedies against defendant should have been granted.

We therefore, remand this matter to the district court in order for it to determine whether or not defendant was in good faith when he built his home. In the event that the court finds that he was in good faith, it will become necessary for it to determine how to adequately redress plaintiff for the impediment to the enjoyment of his land without imposing the harsh and inequitable remedy of requiring defendant to demolish his home. We note that although LSA-C.C. Art. 670 is not applicable, we believe that it would be within the court’s power under LSA-C.C. Art. 21 to grant a predial servitude upon the payment of compensation for its value as provided by that article. Plaintiff would thus be compensated for defendant’s use of the land upon which the house encroaches without being permanently deprived of the ownership of the land. Since plaintiff has not requested a “forced sale” of the property as did the plaintiff in Morehead v. Smith, supra, we do not believe that such a remedy would be appropriate.

For the above and foregoing reasons, the judgment is affirmed insofar as it recognizes plaintiff as owner of the disputed property and sets the boundary as that shown in the survey plat prepared by Charles C. Wise. It is reversed insofar as it states that plaintiff is entitled to be sent and put into full possession of the property, and this matter is remanded to the district court for further proceedings consistent with the views expressed herein.

All costs of this appeal are assessed against defendant, James A. Spurgeon.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . LSA-C.C. art. 670 states:
      “When a landowner constructs in good faith a building that encroaches on an adjacent estate and the owner of that estate does not complain within a reasonable time after he knew or should have known of the encroachment. or in any event complains only after the construction is substantially completed, the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building upon payment of compensation for the value of the servitude taken and for any other damage that the neighbor has suffered.”

      . LSA-C.C. art. 508 provides:
      “When plantations, constructions and works have been made by a third person, and with such person’s own materials, the owner of the soil has a right to keep them or to compel this person to take away or abolish the same.
      If the owner requires the demolition of such works, they shall be demolished at the expense of the person who erected them, without any compensation; such person may even be sentenced to pay damages, if the case require it, for the prejudice which the owner of the soil may have sustained.
      If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby.
      Nevertheless, if the plantations, edifices or works have been made by a third person evicted, but not sentenced to make restitution of the fruits, because such person possessed bona fide, the owner shall not have a right to demand the demolition of the works, plantations or edifices, but he shall have his choice either to reimburse the value of the materials and the price of workmanship, or to reimburse a sum equal to the enhanced value of the soil.”

      . LSA-C.C. Art. 21 provides:
      “In all civil matters, where there is not express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.”


author: GUIDRY, Judge.

text:
    Lowell W. CONNELLA et ux., Plaintiffs-Appellants, v. Raphael BLOCH, Jr., Defendant-Third Party Plaintiff-Appellee.
    No. 7232.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.

      Holt & Wagner, Charles F. Wagner, Pine-ville, for plaintiffs-appellants.
    Gold, Little, Simon, Weems & Bruser, Donald R. Sharp, Alexandria, for defendant-appellee.
    Before CULPEPPER, GUIDRY and YELVERTON, JJ.
   GUIDRY, Judge.

Plaintiffs, Lowell W. Connella and Sheil-ah Morace Connella, purchased a house and lot in Rapides Parish, Louisiana, on October 4, 1976, from the defendant, Raphael Bloch, Jr., which was subsequently discovered to be structurally damaged due to termite infestation. Plaintiffs brought suit seeking rescission of the sale and the recovery of damages, or in the alternative, a reduction of the sales price. After trial, the district court rendered judgment in favor of plaintiffs and against the defendant ordering a rescission of the sale and a restoration of the purchase price and reimbursement for the closing costs incurred by plaintiffs. From this judgment plaintiffs appeal. Defendant has neither appealed the judgment rendered against him nor answered the appeal.

Plaintiffs make the following assignments of error:

(1) The learned trial judge erred in rendering a judgment rescinding the sale in light of the evidence adduced at the trial. The proper remedy should be one in quanti minoris.

(2) The trial judge erred in not awarding the plaintiffs depreciation damages beyond the cost of repairs.

(3) The trial judge erred in not awarding the plaintiffs the cost of repairs.

(4) The trial judge erred in not awarding the plaintiffs the market value of the home at the time of the rescission instead of the purchase price paid at the time of acquisition.

We find the first assignment of error to be utterly without merit as the rescission óf the sale was in strict accordance with plaintiffs’ prayer for relief, plaintiffs are estopped to deny the correctness of that part of the judgment. Simpson v. Kimbell Milling Company, 164 So.2d 637 (La.App. 3rd Cir. 1964), writ refused, 246 La. 834, 167 So.2d 665; State ex rel. John T. Moore Planting Co. v. Howell, 139 La. 336, 71 So. 529 (1916).

In the same vein, the second and third assignments of error go to the issue of plaintiffs’ alternative demand, i. e., quanti minoris. As the trial court granted plaintiffs’ primary demand of rescission, which plaintiffs are estopped to reproach, the second and third assignments of error are irrelevant to this appeal.

Finally, plaintiffs contend that they should have been awarded the market value of the home instead of the purchase price in order to recover the enhanced value of the property. The “market value” ostensibly constitutes the purchase price plus the appreciated value of the lot and improvements as prayed for as damages in plaintiffs’ supplemental and amending petition filed on September 21, 1978. Although plaintiffs alleged knowledge by defendant of the termite damage, they failed to establish such bad faith on the part of the defendant at trial. After carefully reviewing the record, we are of the opinion that the trial court was correct in finding the defendant a good faith seller. Accordingly, the liability of a seller in good faith under the present facts is set forth in LSA-C.C. Article 2531, which in pertinent part provides:

“The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it. .

Plaintiffs were awarded the rescission of the sale as prayed for and as the explicit language of Article 2531, supra, indicates, plaintiffs are limited to the recovery of the purchase price they paid and the expenses occasioned by the sale. Plaintiffs did not allege to have incurred any expenses for the preservation of the thing. The trial court properly rejected plaintiffs’ demand for damages, limiting relief to that which is statutorily mandated under LSA-C.C. Article 2531.

For the above and foregoing reasons the judgment of the trial court is affirmed at plaintiffs-appellants’ costs.

AFFIRMED.


author: WARE, Judge.

text:
    Percy DAVID, Plaintiff-Appellant, v. DIXIE RICE AGRICULTURAL CORPORATION, Defendant-Appellee.
    No. 7250.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.
    Writ Refused March 28, 1980.

      Scofield, Bergstedt & Gerard, John B. Scofield, Lake Charles, for plaintiff-appellant.
    Cooper & Sonnier, Silas B. Cooper, Jr., Abbeville, for defendant-appellee.
    Before CUTRER, STOKER and WARE, JJ.
   WARE, Judge.

This is a suit for injunctive relief. Plaintiff, Percy David, seeks an injunction prohibiting the operation of a pump by defendant, Dixie Rice Agricultural Corporation (Dixie), which allegedly renders more burdensome the natural servitude of drain which Dixie enjoys through plaintiff’s property. Dixie reconvened, seeking a mandatory injunction requiring plaintiff to remove an alleged obstruction to the natural drainage. After a trial on the merits, the district court rendered judgment denying both requests for injunctive relief. Plaintiff has appealed, and Dixie has answered the appeal, asking that the judgment be reversed insofar as it denies its reconven-tional demand.

The parties are the owners of contiguous properties located in an area of eastern Cameron Parish commonly known as Klondike. Plaintiff owns an eighty-acre tract on which he resides, farms and raises cattle. Dixie owns approximately 9,000 acres in the Klondike area, including the property abutting the southern and eastern boundaries of plaintiff’s property. Dixie’s interest in this dispute centers on that portion of its property described as Section 8, Township 12 South, Range 3 West.

It is undisputed that at least a portion of Dixie’s Section 8 drains naturally through plaintiff’s property and that a natural servitude of drain, therefore, exists. The drainage is accomplished through a slough or maraist, which traverses plaintiff’s property in a generally north-south direction and empties into the Klondike Canal to the north. The Klondike Canal connects with and drains into the Mermentau River approximately three miles to the west of that, point.

Extending across the slough in an east-west direction is an earthen roadway or cattle walk, which plaintiff uses to transport cattle and equipment from the eastern part of his property to the western part, and vice versa. He testified that when he bought the property in 1944 or 1945, the cattle walk was present and was equipped with a 24" culvert, which facilitated the natural flow of water through it. In the late 1940’s, plaintiff excavated a ditch in the slough and installed an irrigation pump on the western side of the cattle walk to bring irrigation water to his farm from the Klondike Canal.. At that time, he replaced the 24" culvert with a 36" culvert to improve drainage and permitted Dixie to continue the excavation of the ditch from the south side of the cattle walk to culverts under Louisiana Highway 717, which connect the slough to Dixie’s Section 8. In late 1976 or early 1977, plaintiff enlarged the opening under the cattle walk once more by replacing the 36" culvert with a 48" X 48" square metal opening.

Dixie began construction of an extensive drainage system on Section 8 in the summer of .1977. In addition to several large canals, ditches and levees, the system includes a powerful 36" pump, which was installed near the southeast corner of plaintiff’s property, where the highway culverts connect Section 8 to the slough. The pump is capable of moving water at a rate of 30,000 gallons per minute. At the trial, Dixie’s president, Allen Smith, testified that Dixie planned to install another 24" pump adjacent to the larger pump, which would increase the pumping capacity by about 50%.

The present controversy is the result of Dixie’s installation and operation of the pump. Plaintiff contends that its operation renders the natural servitude of drain more burdensome, because water that would not naturally flow through his property is forced through by the pump. Dixie, on the other hand, argues that the servitude of drain existing in its favor entitled it to augment the drainage of rainfall and irrigation water from its property by means of the pump. It further argues that the cattle walk on plaintiff’s property is an obstruction to natural drainage and that plaintiff should be required to remove it or provide a larger opening for drainage through it.

The issues presented by this appeal are: (1) whether Dixie’s operation of the pump renders the natural servitude of drain more burdensome to the servient estate, and (2) whether the trial court properly denied in-junctive relief.

The rights and obligations of the parties with respect to the natural servitude of drain are set out in Articles 655 and 656 of the Louisiana Civil Code which provide:

“Art. 655. Natural drainage
An. estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow.”
“Art. 656. Obligations of the owners
The owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome.”

As we noted earlier, it is undisputed that a natural servitude of drain exists. How much of Dixie’s property drains naturally through plaintiff’s is not entirely clear, however. The development of that region for agricultural purposes has brought about the existence of numerous man-made improvements, such as canals, protection levees and powerful irrigation pumps, which greatly affect drainage. Plaintiff testified that from 1938 to 1944, prior to purchasing his own property, he farmed for Dixie the Section 8 property involved in this dispute. He observed at that time that part of Section 8 drained naturally to the north and part of it drained naturally to the south. Dixie maintains that only 40 acres of Section 8 drain to the south, while the remaining 600 acres drain to the north.

In any event, it is clear from the evidence, including a contour map introduced into evidence by Dixie, that all of the property in question, both plaintiff’s and Dixie’s, is remarkably flat and that whatever natural drainage exists is very poor. Despite Dixie’s claim that almost all of Section 8 drains naturally to the north, for a period in excess of 30 years, Dixie has maintained two pumps in the southeast corner of that section, which it uses to pump most of the water accumulating on Section 8 southward through other properties owned by Dixie.

The testimony of Dixie’s witnesses shows clearly that the natural flow of water through plaintiff’s property ceases when the Klondike Canal backs up and the levels of water in the slough on plaintiff’s property and on Dixie’s Section 8 are the same. According to Mr. Smith and Mr. Mire, who testified for Dixie, the purpose of the pump is to overcome this phenomenon, and it will only be operated when the natural flow of water has stopped. By pumping water into a large retaining basis with high levees adjacent to the pump, Dixie can produce a sufficient “head” of water to force it to flow through plaintiff’s property.

At the time of the trial, the pump had been operated extensively on only one occasion, which was in June of 1978. The area had received eleven inches of rain over a two-day period, as a result of which the levels of water in the Klondike Canal and on plaintiff’s property were suddenly quite high. While the parties disagree on the effect that the operation of the pump had, it is clear that there was an increase in the depth and velocity of the water flowing through plaintiff’s property and that plaintiff suffered some damage as a result of it.

It has long been recognized that the owner of an upper estate may dig such ditches and canals as may be necessary for the agricultural development of his property even when it results in a more concentrated or more rapid flow of water through the lower estate. Broussard v. Cormier, 154 La. 877, 98 So. 403 (1923); Chandler v. City of Shreveport, 169 La. 52, 124 So. 143 (1929); Nicholson v. Holloway Planting Company, 255 La. 1, 229 So.2d 679 (1969). However, it has also been uniformly held that the dominant estate cannot thrust upon the servient estate waters that would not arrive there by natural drainage.

Under these circumstances, we believe that it is clear that Dixie’s operation of the pump will render the natural servitude of drain more burdensome. The ser-vient estate will be forced to receive water that would not normally be flowing at a time when it can least afford to do so (i. e., when the water levels on the servient estate and downstream of it are high). Although Dixie has attempted to play down the potentially harmful effects of pumping water onto plaintiff’s property in the manner described, we believe that plaintiff has established that Dixie’s activities pose a serious threat to his peaceful enjoyment and use of his land.

The trial judge’s written reasons for judgment suggest that he also found that the servitude would be rendered more burdensome by Dixie’s operation of the pump. Nevertheless, he held that plaintiff was not entitled to injunctive relief because he had failed to show that he might suffer irreparable harm if the injunction was not issued, as required by LSA-C.C.P. Art. 3601. Plaintiff contends that irreparable injury was shown and further argues that even if it wasn’t, he is entitled to injunctive relief under LSA-C.C.P. Art. 3663, which provides in pertinent part:

“Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right, is available to:
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right of which he claims the ownership, the possession, or the enjoyment.”

Plaintiff correctly argues that Article 3663 specifically affords him the remedy of an injunction and that the showing of irreparable injury required of applicants for injunctions under Article 3601 is, therefore, unnecessary. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979); Chapman v. Fisher, 370 So.2d 162 (La.App. 3rd Cir. 1979).

Dixie contends that Article 3663 is not applicable because this is neither a possesso-ry nor a petitory action. We disagree. The official comments to that article provide in pertinent part:

“(b) Injunctive relief is made available in two separate and distinct types of cases: (1) as an ancillary remedy in a possessory action; and (2) as the relief to be granted in an injunction suit brought to enjoin trespassers and other disturbers, and which is neither a possessory nor a petitory action. See Churchill Farms v. Gaudet, 184 La. 984, 168 So. 123 (1936).” (Emphasis added)

We also disagree with Dixie’s argument that there has been no disturbance of plaintiff’s possession because its employees did not enter upon his land. By operating the pump in June of 1978, Dixie caused the water in the slough to rise and inundate part of plaintiff’s property. In addition, the velocity of the water which traveled over his cattle walk caused some of the soil to be irretrievably washed away. His possession of his property was clearly disturbed as effectively as if the acts of Dixie’s employees had been committed on his land.

In light of the above, we conclude that the trial court erred in denying plaintiff’s claim for injunctive relief under LSA-C. C.P. Art. 3663. The only remaining issue is whether the trial court also erred in denying Dixie’s reconventional demand for a mandatory injunction requiring plaintiff to remove his cattle walk or provide a larger opening for drainage through it.

Dixie maintains that the cattle walk is an obstruction to natural drainage. The trial judge’s written reasons for judgment do not indicate whether he made a finding on that point. The reason assigned for his denial of Dixie’s request was that Dixie had not made the showing of irreparable injury required by LSA-C.C.P. Art. 3601. We agree with that conclusion, however, we note that despite its arguments with respect to plaintiff’s right to injunctive relief under LSA-C.C.P. Art. 3663, Dixie has argued on appeal that it too is entitled to injunctive relief under that provision. Thus, Dixie apparently argues that the alleged obstruction to the natural drainage has resulted in a disturbance of its possession of its property.

We agree that the creation or maintenance of an obstruction to natural drainage, which causes water to accumulate and remain on an estate, could constitute a disturbance of the possession of that property. However, we do not agree that plaintiff’s cattle walk obstructs natural drainage. It was clearly shown that despite Dixie’s construction of drainage ditches and canals on its property, the natural drainage of water from that property is a relatively slow process. We believe that plaintiff established by a preponderance of the evidence that he has provided a sufficient opening through his cattle walk to prevent it from impeding the natural drainage of water through his property.

For the above and foregoing reasons, the judgment is affirmed insofar as it denies the reconventional demand of Dixie Rice Agricultural Corporation. It is reversed insofar as it denies the petition for injunction by plaintiff, Percy David.

IT IS ORDERED, ADJUDGED AND DECREED that defendant, Dixie Rice Agricultural Corporation, is hereby permanently enjoined, restrained and prohibited from operating its pump located in ■ the Northwest Quarter of the Northwest Quarter (NW Vi of NW Vi) of Section 8, Township 12 South, Range 3 West, Cameron Parish, Louisiana, in such a manner as to disturb plaintiff’s possession of his property.

All costs of this appeal are assessed against defendant, Dixie Rice Agricultural Corporation.

AFFIRMED IN PART; REVERSED IN PART, AND RENDERED.


text:
    Dennis ROPER, Plaintiff-Appellant, v. Pamela J. DAILEY, Defendant-Appellee.
    No. 7272.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.
    Writ Granted March 28, 1980.
    Camp, Carmouche, Palmer, Barsh & Hunter, Michael G. Bourgeois, Lake Charles, for plaintiff-appellant.
    Nathan A. Cormie, Lake Charles, for defendant-appellee.
    Before CUTRER, STOKER and WARE, JJ.
   WARE, Judge.

This action of nullity was brought by appellant, Dennis Roper, to annul a default judgment rendered against him in a tort suit instituted by appellee, Pamela J. Dai-ley. From a judgment of the district court upholding the judgment and dismissing his suit, he appeals. We affirm.

On June 14, 1977, appellee brought a tort suit against appellant to recover damages for injuries allegedly sustained as a result of a battery he committed on her. The suit, which was titled “Pamela J. Dailey v. Dennis Roper”, was filed in the Fourteenth Judicial District Court in and for Calcasieu Parish, Louisiana and assigned the docket number 77-2439. The entire record of the proceedings in that suit was introduced into evidence in the instant suit by appellant.

A review of that record shows that a copy of appellee’s petition and a citation were forwarded to East Baton Rouge Parish, appellant’s domicile, to be served through its sheriff’s department. On June 15, 1977, a return on the citation was made which read:

“Upon receiving a certified copy of the within process, I did, on the 15th day of June, 1977, serve said copy on the within named defendant in this Parish of East Baton Rouge, State of Louisiana, by tendering said copy to the within named defendant in person at WBRZ-TV station, 1650 Highland Road.”

The return bore the signature of Sidney J. Williams, Deputy Sheriff of the Parish of East Baton Rouge, Louisiana.

No answer was filed in the record by appellant, and on July 31, 1978, appellee obtained a default judgment against him. Appellant was served with notice of the default judgment. On the following day he filed a motion for a new trial, alleging as grounds that there had not been service of process, as a result of which he did not have fair notice of the proceedings against him. The motion was heard and denied, the trial judge concluding that LSA-R.S. 13:3471(5) precluded an attack on the sheriff’s return after judgment had been rendered by any means other than a direct action to annul the judgment.

Appellant then brought this action to annul the judgment on the grounds that (1) he was not properly served with process as required by law, and (2) the evidence presented by appellee was insufficient ‘to support a valid default judgment. The trial court found that he had failed to prove his right to have the judgment annulled on either basis. On appeal, he argues that that finding is clearly erroneous.

Lack of service of process on a defendant, such as appellant, who has not made a general appearance, is a proper basis for annulling a judgment. LSA — C. C.P. Art. 2002 provides in pertinent part:

“A final judgment shall be annulled if it is rendered:
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; . . . ”

The law applicable to the burden of proving lack of service when there has been a return of citation was correctly summarized by the trial court as follows:

“A return of citation is prima facie evidence of service. La.C.C.P. Arts. 324, 1292; La.R.S. 13:3471(5); Hood Motor Company, Inc. vs. Lawrence, 334 So.2d 460 (La.App. 1 Cir. 1976) Writ Denied, 338 So.2d 288; Martinez vs. Silverman, 288 So.2d 88 (La.App. 4th Cir. 1974); Smith vs. Crescent Chevrolet Co., 1 So.2d 421 (La.App. 1st Cir. 1941). The return of the officer on the citation is given great weight and the burden rests on the party attacking it to establish otherwise by clear and convincing evidence. Canterberry vs. Slade Brothers, 232 La. 1081, 96 So.2d 4 (1957); League Central Credit Union vs. Gagliano, 336 So.2d 931 (La. App. 4th Cir. 1976); Spinks vs. Caddo-Bossier Services, Inc., 270 So.2d 604 (La. App. 2d Cir. 1972). A return of citation cannot be impeached by the uncorroborated testimony of a single witness, Canterberry vs. Slade Brothers, supra; League Central Credit Union vs. Gagliano, supra; Guedry Finance Company vs. Breland, 192 So.2d 884 (La.App. 4th Cir. 1966), and it cannot be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer. Canterberry vs. Slade Brothers, supra; Hood Motor Company, Inc. vs. Lawrence, supra; Guedry Finance Company vs. Breland, supra; Smith vs. Crescent Chevrolet Co., supra; Martinez vs. Silverman, supra; Sims vs. First National Bank of Ruston, 177 La. 386, 148 So. 505 (1933); Logwood vs. Logwood, 185 La. 1, 168 So. 310 (1936).”

Appellant testified at the trial that service of process was not made on him as shown on the return of the citation. The only other witness was Deputy Sheriff Williamson. He testified that he could not recall personally serving appellant and that he could not recall ever having met him until sometime subsequent to the entry of the default judgment. He also testified that on some occasions when he found it necessary to serve citations at places of business, he would contact the person to be served by telephone and obtain permission to leave the citation with a secretary or receptionist. The Deputy Sheriff’s testimony was objected to on the grounds that appellant was attempting to offer testimony by an officer to contradict his official return on a citation, and was heard by the court subject to the objection.

The testimony of an officer is ordinarily inadmissible if it would vary, contradict and break down his official return on a citation, although the officer can testify to incidental and collateral facts in support of his return and in order to show the validity of his acts. Smith v. Crescent Chevrolet Co., 1 So.2d 421 (La.App. 1st Cir. 1941); Baham v. Stewart Bros. & Co., 109 La. 999, 34 So. 54 (1903); Adler v. Board of Levee Commissioners, 168 La. 877, 123 So. 605 (1929). In any event, we believe that the testimony of the Deputy Sheriff, when read as a whole, supports the trial court’s finding that service was properly made on appellant. We agree that appellant has not borne his burden of proving lack of service of process by the clear and convincing evidence needed to rebut the presumption of validity attached to the serving officer’s return.

For the foregoing reasons, the judgment appealed is affirmed. All costs of this appeal are assessed against appellant, Dennis Roper.

AFFIRMED.

      . LSA-R.S. 13:3471(5) provides:
      “The return of the serving officer on any citation or other legal process is conclusive, unless directly attacked. Such an attack may be made by rule in the action or proceeding, if made prior to judgment. If made after judgment, the return may be attacked only in a direct action to annul the judgment, which may be brought in the original action or proceeding.”