author: HALL, Judge.

text:
    Danny E. STUTTS, Samuel C. Stutts, and Charles A. Stutts, Plaintiffs-Appellants, v. Bertha Ransbottom HUMPHRIES, and David Ray Humphries and his wife, Christine Walters Humphries, Defendants-Appellees.
    No. 14716.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Hamilton & Carroll by Donald K. Carroll, Oak Grove, for plaintiffs-appellants.
    Watson & Watson by Philip B. Watson, Jr., St. Joseph, for defendants-appellees.
    Before HALL, MARVIN and FRED W. JONES, JJ.

       Rehearing not considered — not timely filed.

   HALL, Judge.

This petitory action was filed by the Stutts plaintiffs against the Humphries defendants after a judgment in a prior posses-sory action recognizing the Humphries’ possession was affirmed on appeal by this court in an unpublished opinion. Plaintiffs assert ownership of a 28-acre tract of land based on record title and, alternatively, 10 and 30 years acquisitive prescription. Defendants likewise claim ownership by title and, alternatively, by acquisitive prescription of 10 and 30 years.

After trial the district court in well-reasoned written reasons for judgment found that several deeds in plaintiffs’ chain of title excluded the tract in dispute and that accordingly plaintiffs failed to make out their title. The court further found that the evidence of possession was insufficient to establish a prescriptive title in plaintiffs. Finding defendants’ chain of title to be unbroken, judgment was rendered recognizing defendants’ ownership. Plaintiffs appeal.

Plaintiffs’ specification of errors can be summarized as follows:

(1) The trial court erred in not finding that plaintiffs have the best, superior and perfect title to the subject property and particularly in construing the deed from the common ancestor in title, Elgutter, to plaintiffs’ ancestor in title, Meyers, as excluding the subject property;

(2) The trial court erred in failing to find that plaintiffs’ acquired ownership by 10 and 30 years acquisitive prescription;

(3) The trial court abused its discretion by denying plaintiffs’ motion for the court to inspect and to take testimony at the site of the disputed property; and

(4) The trial court erred in admitting the testimony of a now deceased surveyor taken at the trial of the possessory action.

Concluding that the trial court correctly resolved all issues presented in this case, we affirm the judgment.

Facts

The property in dispute is a 28-acre tract of land which can be described as the east 50 acres (east 12.5 chains) of the E/2 of the SE/4 of Section 14, T 14 N, R 11 E, Tensas Parish, Louisiana, less and except 5V2 chains off the east side thereof, the excepted tract containing 22 acres.

A regular chain of title from patent into Adolfe Elgutter was established. The title dispute focuses on transfers from Elgutter to the respective ancestors in title of plaintiffs and defendants.

Elgutter had acquired a large tract of land which included the subject property. In January 1906 he conveyed to Peter Smith and Ellen Smith Robinson (defendants’ ancestors in title) a tract of land, stated to contain IOIV4 acres, by a metes and bounds description which included the east 5V2 chains of the E/2 of the SE/4 of Section 14.

In November 1911, Elgutter conveyed to George E. Meyers (plaintiffs’ ancestor in title) a tract of land including the E/2 of the E/2 of Section 14, “. .. excepting therefrom a parcel of land containing 50 acres heretofore sold to Peter Smith and Ellen Robinson off of the East side of the East half of the South East quarter of said Section 14, a survey of which portion herein stated to have been sold to said Smith and Robinson is to be made; . . . . ”

In February 1912 Elgutter executed a correction deed in favor of Smith and Robinson whereby the metes and bounds description of the property sold to them by the 1906 deed was corrected to include the east 12.5 chains of the E/2 of the SE/4 of Section 14.

In subsequent transactions down to and including the deeds whereby defendants acquired the property in 1963 and 1971, the descriptions included thé east 12.5 chains off the east side of the E/2 of the SE/4 of Section 14, being the east 50 acres thereof.

In conveyances from Meyers to Marley in 1912 and from Marley to McNair in 1914, the exception of the 50 acres sold to Smith and Robinson is stated in the same manner as in the conveyance from Elgutter to Meyers. In a sale from McNair to Reynolds in 1921, and thereafter down to and including the deed by which plaintiffs acquired the property in 1975, the exception was changed to read: “. . . a strip of land Five and Fifty-hundreths chains in width off the East side of the East Half of the Southeast Quarter of said Section Fourteen.. . . ” The last two conveyances in plaintiffs’ chain of title were without warranty as to any portion of the east 50 acres of the E/2 of the SE/4 of Section 14.

Consequently, the descriptions contained in the deeds by which plaintiffs and defendants acquired title overlap as to a strip 7 chains in width east and west and 40 chains in length north and south, which is the 28-acre tract in dispute.

Record Title

Defendants contend and the trial court held that the deed from Elgutter to Meyers excluded 50 acres off the east side of the E/2 of the SE/4 and that the reference to the sale from Elgutter to Smith and Robinson did not limit the exclusionary clause.

Plaintiffs contend that the reference to the Smith and Robinson sale must be given effect and since that sale only described the east 5V2 chains or east 22 acres, the property in dispute lying westerly thereof was not excluded from the sale to Meyers. In support of their argument plaintiffs cite several principles of law applicable to interpretation of descriptions in conveyances. Construction of the language in a description should be in favor of the vendee and against the vendor as to the extent of the property conveyed. Texas Company v. O’Meara, 228 La. 474, 82 So.2d 769 (1955). The real intention of the parties to a deed is to be sought and carried out whenever possible. Where the recitals in a deed are inconsistent or repugnant, the first recital does not necessarily prevail, but the whole language of the deed must be considered to ascertain its true construction. Where different clauses in a deed are repugnant, the court will effectuate the one which appears most in harmony with the purpose of the grant and the intention of the parties. Smith v. Chappell, 177 La. 311, 148 So. 242 (1933). In determining boundary lines, the law recognizes, named in the order of their importance, natural monuments, artificial monuments, distances, courses, and quantity, but the controlling consideration is the intention of the parties. Dufrene v. Bernstein, 190 La. 66, 181 So. 859 (1938). Quantity is the weakest method of identification. Bender v. Chew, 129 La. 849, 56 So. 1023 (1911). When the identity of the land excepted cannot be established, then the exception rather than the deed itself is void. Harrill v. Pitts, 194 La. 123, 193 So. 562 (1940); Blevins v. Manufacturers Record Publishing Co., 235 La. 708, 105 So.2d 392 (1958).

In the sale from Elgutter to Meyers the 50-acre tract off the east side of the east half of the southeast quarter was specifically excepted from the description of the property conveyed. The description of the excepted tract was of sufficient clarity to locate and identify the property excepted. The reference to the excepted property as having been sold to Smith and Robinson does not serve to either limit or enlarge the specific description of the property excepted. The reference was not to the particular 1906 deed to Smith and Robinson. Even if the particular deed had been referred to, the rule is that a reference to property adequately described in a deed as being the same property acquired or sold in a former deed neither enlarges the description to include lands not described nor to exclude any lands described therein. See W. B. Thompson & Co. v. McNair, 199 La. 918, 7 So.2d 184 (1942); Bender v. Chew, supra; Wood v. Klause, 175 So.2d 401 (La.App. 4th Cir. 1965), writ denied 248 La. 360, 178 So.2d 654 (1965); Fortier v. Soniat, 143 So.2d 91 (La.App. 4th Cir. 1962); Dixie Pine Products Co. v. Switzer, 111 So.2d 518 (La.App. 1st Cir. 1959).

The disputed property was not conveyed by Elgutter to Meyers in the 1911 deed. By the 1912 correction instrument, the property was conveyed to Smith and Robinson, defendants’ ancestors in title. The disputed property was not described in plaintiffs’ chain of title until the conveyance from McNair to Reynolds in 1921. There is a gap in plaintiffs’ record chain of title and, consequently, plaintiffs did not make out their title good as against the world, without regard to the title of the adverse claimants in possession thereof. LSA-C.C.P. Art. 3653; Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974). On the contrary, defendants did make out a perfect title, more ancient and superior to that of plaintiffs, and are entitled to have their ownership of the property recognized, unless plaintiffs established ownership based on 10 or 30 years acquisitive prescription.

Acquisitive Prescription — Possession

Plaintiffs vigorously contend on appeal that the evidence taken at trial established civil and corporeal possession of the disputed tract by their ancestors in title for continuous periods of 10 and 30 years. Plaintiffs offered evidence tending to show there was an old boundary line fence running north and south along the 5V2 chain line, the eastern line of the disputed area. There was evidence that during the 1930s and early 1940s, timber was cut by the then owner, Fitzgerald, and that McKinley Robinson, under an agreement with Fitzgerald, moved onto the property, built a house, and cleared and fenced part of it. Evidence was offered to show that hunting leases of the property had been granted by a later owner, Pipes.

Defendants countered with evidence that no north-south fence ever existed on the 5V2 chain line but that a north-south boundary fence was located on the west or 12.5 chain line of the disputed area, that the fence was there when defendants cleared the area in 1967, and that vestiges of the fence were still in existence in the late 1970s. Testimony was presented tending to show that Robinson’s old house and clearing were located west of the west line of the disputed area and that the hunting leases were west of the west fence. There was evidence of an east-west hedgerow marking the boundary between the properties of defendants’ ancestors in title, who had partitioned the 50-acre tract, which extended all the way to the west line of the disputed property.

The trial court correctly resolved the factual issue of possession in favor of defendants. The burden of proof was on the plaintiffs. The weight of the evidence, as determined by the trial court, was that the acts of possession chiefly relied on by plaintiffs took place west of the property in dispute, and that the boundary fence marking the west boundary of the property on which plaintiffs’ ancestors in title lived and farmed for many years was on the west line of the disputed property. Plaintiffs failed to establish ownership based on acquisitive prescription.

Motion to Inspect and Take Testimony at the Property

Plaintiffs contend the trial court abused its discretion in denying plaintiffs’ motion to inspect the property and to take testimony of the witnesses at the site of the property. The trial court carefully considered the motion and, in denying it, determined that on-site inspection and testimony would be of no value to the court in deciding the case. The court noted that the character of the land had been drastically altered by clearing in recent years, and that the testimony, maps, surveys, aerial photographs, and other evidence presented in court were more probative of facts that existed years ago than would be a current visit to the property. We find no abuse of discretion.

Admissibility of Former Testimony

At trial, the court allowed defendants to introduce the transcript of the testimony of a surveyor who testified at trial of the prior possessory action and who had subsequently died. Plaintiffs argue it was error to admit this evidence. It is contended that in order for testimony taken at an earlier judicial proceeding to be admissible as evidence in a subsequent proceeding, there must be a showing that (1) there exists an identity of parties between the two proceedings; (2) there exists an identity of issues between the two proceedings; and (3) the witness whose testimony is sought to be introduced is unavailable for production at the later trial. Bulk Transport, Inc. v. Louisiana Public Service Commission, 252 La. 9, 209 So.2d 4 (1968); Young v. Reed, 192 So. 780 (La.App.2d Cir. 1939), citing Rouyer, et al. v. Carroll, 47 La.Ann. 768, 17 So. 292 (1895). There must also have been opportunity for full cross-examination on the identical issues at the prior proceeding. Montgomery v. Breaux, 297 So.2d 185 (La.1974). See also Comment, The Admissibility of Former Testimony in Civil and Criminal Trials, 20 La.L.Rev. 146 (1959). Unless these requirements are met, the former testimony must be ruled inadmissible as hearsay. Bulk Transport, Inc. v. Louisiana Public Service Commission, supra.

The testimony of the surveyor covered the existence or nonexistence of physical landmarks on the property as he found them upon inspection prior to the possesso-ry action. Of particular importance were his findings of vestiges of the north-south fence on the western line of the disputed property with “fairly old” barbed wire embedded in trees.

Plaintiffs concede the identity of parties and the unavailability of the witness, but contend the possessory action did not involve identical issues as this petitory action, the former being concerned with possession for one year and the latter being concerned with possession for many years. Plaintiffs contend they had no reason in the possesso-ry action to cross-examine the witness as to the age of the wire, fences, and other landmarks, but the opportunity for such cross-examination was vital in this petitory action.

McCormick’s Handbook of the Law of Evidence (2d ed. 1972), cited in several of the cases mentioned above, explains the identity of issues requirement in Section 257:

“. . . It is often said that the issue in the two suits must be the same. But certainly the policy mentioned does not require that all the issues (any more than all the parties) in the two proceedings must be the same, but at most that the issue on which the testimony was offered in the first suit must be the same as the issue upon which it is offered in the second. Additional issues or differences in regard to issues upon which the former testimony is not offered are of no consequence. Moreover, insistence upon precise identity of issues, which might have some appropriateness if the question were one of res judicata or estoppel by judgment, are out of place with respect to former testimony where the question is not of binding anyone, but merely of the salvaging, for what it may be worth, of the testimony of a witness not now available in person. Accordingly, modern opinions qualify the requirement by demanding only ‘substantial’ identity of issues.
“It follows that neither the form of the proceeding, the theory of the case, nor the nature of the relief sought needs be the same. Though there have been occasional holdings imposing such requirements, it is manifest that they have no pertinence to the policy of adequacy of opportunity for cross-examination, and the more convincing opinions reject them. . . .
“... It seems, then, that the requirement should be restated, not as a mechanical one of identity or even of substantial identity of issues, but rather as a requirement that the issues in the first proceeding and hence the purpose for which the testimony was there offered, must have been such that the present opponent (or some person in like interest) had an adequate motive for testing on cross-examination the credibility of the testimony now offered.” (footnotes and citations omitted)

The issues in the former possessory action and the present petitory action are substantially the same, particularly as they relate to the testimony of the surveyor. The primary thrust of his testimony was to describe, orally and by mapping, what he found and where he found it on the ground when making his survey in 1978. The surveyor was cross-examined fully on this testimony by the plaintiffs in the present action. Plaintiffs had the motive and the opportunity, which was fully taken advantage of, to test on cross-examination the credibility of the testimony now offered. The requirements of the exception to the hearsay rule were met and the former testimony was properly admitted into evidence.

Decree

For the reasons assigned, the judgment of the district court is affirmed at the cost of plaintiffs — appellants.

Affirmed.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    Davie MILLER, Plaintiff-Appellee, v. William Penn HARVEY, et al., Defendants-Appellants.
    No. 14720.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Fish, Montgomery & Robinson by Roy M. Fish, Springhill, for plaintiff-appellee.
    C. Sherburne Sentell, Minden, for defendants-appellants.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The defendant, William Penn Harvey, appeals a judgment against him on the main demand, based on contract, and on a recon-ventional demand to his third party demand, based on tort, and which rejected all of his demands on his third party action. This litigation resulted from the sequence of events described below.

W. W. Rice, owner of a crosstie mill, contracted with the defendant to operate the mill upon defendant’s property and agreed to pay defendant $10.00 per week for the use of the property. The contract contained the following provision:

“W. W. Rice further agrees to hold harmless Penn Harvey and indemnify him should he be sued or held liable for any damages to any person or their property as a result of the said crosstie operation, and he likewise agrees to indemnify Penn Harvey should any creditor of W. W. Rice take any action against Penn Harvey or his land as a result of a crosstie operation being on Mr. Harvey’s land. Mr. Rice further states that should Penn Harvey be brought into any litigation as a result of the operations of Mr. Rice on his property, or from the breach of any covenant herein, that Mr. Rice shall pay any court costs and attorney’s fees incurred by Penn Harvey as a result of being drawn into any such litigation or from any breach of this agreement.”

The mill was assembled on the Harvey place and operated there about two years pursuant to the contract between Rice and Harvey.

In the summer of 1979 Harvey was logging pine from two tracts and Rice asked him to see if he could buy the hardwood from those tracts to be cut into crossties. Harvey purchased the hardwood on the tracts from the landowners for the price of $1.00 per tie. Harvey was to be paid a total of $4.50 per tie by Rice from which Harvey was to pay the landowners for the timber.

Harvey cut the hardwood but was unable to get it hauled to the mill. Disagreement about the situation arose between Harvey and Rice and the latter decided to move his mill to another site. When Harvey realized the mill was being moved he locked the gate which provided access to the mill, thereby preventing Rice from moving it.

Rice planned to use legal proceedings to free his mill but before any steps were taken in that direction Harvey was approached by Davie Miller, the plaintiff. Miller was a distant relative of Rice’s and from time to time worked with him in his timber business. Miller had helped Rice to move part of the mill before Harvey locked them out.

Miller asked Harvey what he would require to unlock the gate so the remainder of the mill could be moved. Harvey stated that he would unlock the gate only if he was paid for his logs. Miller and Harvey then entered into an agreement by the terms of which Miller bought the logs from Harvey. Their versions of the agreement differ. According to Miller he bought the logs from Harvey for $4.50 per tie cut from them with an initial payment of $4,000 to be supplemented or reduced depending on how many ties the logs yielded. Harvey claims the price was $6,000 with an initial payment of $4,000 and the balance to be paid after Miller had sold the ties. Harvey contended that the price for the logs was firmly fixed at $6,000 and was subject to no adjustment regardless of the number of ties that were produced from the logs.

The logs did not produce the expected number of ties and Miller brought this action to recover a portion of his $4,000 advance on the purchase price of the logs. Harvey reconvened for the $2,000 balance he claimed as due on the sales price, and made a third party demand against Rice for any amount Harvey was held liable to Miller and for his attorney’s fees and court costs under the indemnity provisions of the Harvey-Rice contract. Rice reconvened against Harvey for damages for the holding of the mill by locking the gate. There was judgment in favor of Miller and Rice on their claims and all of Harvey’s demands were rejected. Harvey appealed. We affirm.

Harvey urges six assignments of error. First, that the trial court erred in finding that Miller had proved the oral contract as required by LSA-C.C. art. 2277. Second, that the trial court erred by substituting its deductions for the factual evidence required to prove the oral contract. Third, that the trial court erred by failing to apply the indemnity provisions of the contract between he and Rice. Fourth, that the trial court erred in finding that Rice had been denied access to the mill and awarding him damages for the holding of the mill. Fifth, that the trial court erred in finding that only 682 ties had been cut from the logs. Sixth, that it was error to find that the oral contract was between Miller and Harvey and that Miller had not been acting for Rice.

ASSIGNMENTS # 1, 2 and 6

Each of these assignments address the logt purchase contract between Miller and Harvey; therefore, we will consider them together. The first two assignments go to the proof of the oral contract between Miller and Harvey.

An oral contract for an amount in excess of $500 must be proved by one credible witness and other corroborating circumstances. LSA-C.C. art. 2277. The plaintiff can be the credible witness and the corroborating circumstances need only be general in nature. Ory v. Griffin, 162 So.2d 97 (La.App. 1st Cir. 1964); Foshee v. Hand-Enis Realty Co., 237 So.2d 437 (La.App. 3d Cir. 1970). A trial court’s finding of corroboration is entitled to great weight. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977).

Mr. Miller testified that he bought the logs on a per tie basis and that his initial $4,000 payment was to be supplemented or reduced based on the number of ties produced. The trial judge who saw and heard Miller testify found him a credible witness and we find no error in that conclusion.

Included among the corroborating circumstances found by the trial judge were Harvey’s prior contracts for the sale of logs had been on a per tie basis and in his answer, reeonventional demand and third party demand, Harvey alleged he was to have been notified when the logs were cut up so that he could ascertain the number of crossties they produced. The fact that Harvey’s past sales had been on a per tie basis tends to corroborate Miller’s version of the contract. Further, Harvey’s allegations that he was to have the opportunity to determine how many ties were cut also corroborates Miller’s testimony that the agreement was on a per tie basis. The trial judge was correct in considering this a corroborating fact since Harvey was bound by that allegation. J. H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 259 So.2d 882 (1972). Both these facts strongly corroborate Miller’s version of the oral contract. We conclude that Miller’s testimony is sufficiently corroborated by these circumstances and the contract was proved in compliance with LSA-C.C. art. 2277. The corroboration is factual and not merely the conclusions of the trial judge as contended by appellant.

The sixth assignment of error is addressed to the finding that the log purchase contract was between Miller and Harvey and that Miller was not acting for Rice. This is a question of fact and we may not disturb the trial judge’s conclusion in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The record contains testimony by both Miller and Rice that Rice was not involved in Miller’s purchase of the logs. There is substantial evidence to support the trial judge’s conclusion that the contract was only between Miller and Harvey. Assignments of error no. 1, 2, and 6 are without merit.

ASSIGNMENT # 5

This assignment goes to the trial judge’s finding that 682 crossties were produced from the logs. Again, this is a' question of fact and we may not upset the trial judge’s determination absent manifest error. Ar-ceneaux, supra.

The trial judge based his finding on the testimony of an expert witness, Mr. Curtis McDaniel. McDaniel, who had a degree from Louisiana State University in Forestry, and who had thirty years experience as a forester, examined both tracts from which the logs were cut and determined the number and size of the. trees. Using that information he mathematically calculated the maximum number of ties that could have been produced at 682.

There were estimates from other witnesses as to how many ties could have been produced. There was testimony that it was not possible to' accurately estimate the number of ties that could be produced. The trial judge heard all of this testimony but accepted that of McDaniel based on his qualifications, knowledge and careful gathering of data before preparing his estimates.

The trial judge’s determination of the most credible expert witness and testimony will not be disturbed unless clearly erroneous. Guidry v. Davis, 382 So.2d 250 (La.App. 3d Cir. 1980); Necaise, Inc. v. Vicknair, 391 So.2d 1347 (La.App. 4th Cir. 1980). In view of McDaniel’s eminent qualifications and careful study to provide the base data for his calculations, we cannot say that the trial judge was clearly erroneous in accepting his testimony over that of the other witnesses. This assignment of error is without merit.

ASSIGNMENT #3

This assignment is directed at the trial judge’s failure to apply the indemnity provisions of the contract between Rice and Harvey. The trial judge found that the indemnity provisions only applied to suits involving the operations of the mill on Harvey’s property. The logs involved here were never on Harvey’s property and were not cut into crossties until the mill was moved to its new location. The trial judge concluded, therefore, that the indemnity provisions were inapplicable.

Agreements to indemnify are strictly construed and the party seeking to enforce such an agreement bears the burden of proof. Straley v. Calogne Drayage & Storage, Inc., 350 So.2d 1231 (La.App. 4th Cir. 1977); McElroy Metal Mill, Inc. v. Hughes, 322 So.2d 822 (La.App. 2d Cir. 1975); First National Bank, Etc. v. Louisiana Purchase, 346 So.2d 345 (La.App. 4th Cir. 1977).

The language of the contract shows that it was the intent of the parties to protect Harvey from litigation resulting from the operation of the mill on his land. This litigation arises from Harvey’s contract with Miller and the failure of the logs to produce the expected number of cross-ties. This is not within the scope of the indemnity agreement and the trial judge was correct in concluding that the indemnity provisions did not apply in this case.

ASSIGNMENT #4

This assignment complains of the finding that Rice had been denied access to his mill and the award of damages for wrongful seizure.

We think that the actions of Harvey are better classified as a conversion rather than a wrongful seizure. The tort of conversion is committed when one wrongfully does any act of dominion over the property of another in denial or inconsistent with the owner’s rights. Theriac v. McKeever, 405 So.2d 354, (La.App. 2d Cir. 1981). Harvey, in order to gain advantage in the dispute about the logs, locked his gate denying Rice access to his mill and kept it locked until Miller “ransomed” the mill by making his arrangement with Harvey. This is a wrongful act of dominion, denying access, over the property of another, Rice’s mill, inconsistent with the owner’s right to use his property. The use prevented here was the moving of the mill to new location where it was to be set up and operated.

Harvey contends his act was not wrongful. First, he claims he was entitled to retain the mill by virtue of a lessor’s privilege. The lessor’s privilege is for unpaid rent and other obligations of the lease. LSA-C.C. art. 2705. The alleged debt which caused Harvey to retain the mill was that for payment for the logs. That is not rent or another obligation of the lease. Thus, Harvey cannot clothe his conduct with legitimacy on the theory of lessor’s privilege.

Harvey also contends that he was entitled to retain the mill because of his expenses. He relies on LSA-C.C. art. 3225 and Hop per v. Bills, 255 La. 628, 232 So.2d 296 (1970) for that proposition. Those authorities do not support him here.

When one has the property of another and incurs expenses for its preservation he may retain the property until repaid. LSA-C.C. art. 3224; LSA-C.C. art. 3225; Hopper, supra. The expenses Harvey claims support his right to retain the mill are not expenses he incurred for its preservation, instead they are the expenses he incurred in buying and cutting hardwood timber. Therefore, the conversion is not legitimated by the rule Harvey relies on.

Finally, Harvey contends that no damages are due since Rice never personally requested release of the mill. He relies on Oge v. Resolute Insurance Company, 217 So.2d 738 (La.App. 3d Cir. 1969) for that proposition. The Oge case is of no avail to Harvey. In Oge the court found that the defendant had plaintiff’s implied permission to take possession of the property. Thus, the court said that the taking was not wrongful and that the detention was not wrongful as plaintiff never asked for the return of his property. We agree that when one gives another permission to take possession of his property he must show that the permission has ended by requesting its return before a conversion can be considered committed. That is the possession with permission must be converted into wrongful possession. However, in this case there was no permission, implied or otherwise, for Harvey to take possession of the mill. Further, the attempt by Rice to move the mill shows a contrary desire. This assignment is without merit.

The judgment appealed from is affirmed. All costs of this appeal are assessed against defendant-appellant Harvey.

AFFIRMED.

      . C.C. art. 2277—All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.

      . Miller testified — “Q. How did you come to get involved in this deal with Mr. Harvey?
      A. Well, I was hauling his ties and Penn had these logs banked and, well, I’ve worked with Wheel and Wheel works for me in Heflin and Penn wanted all of his money for the logs he had banked and Wheel couldn’t come up with it, couldn’t pay it, he didn’t have a chance, so I told him that I would just buy ’em myself.
      Q. And did you buy them yourself?
      A. Yes.
      Q. Did Mr. Rice have anything to do with it at all?
      A. No, sir.” (Id. tr. 74)

      . Rice testified — “Q. Did you have any discussion or conversation with Mr. Miller about the situation?
      A. Nothing, only the gate was locked and he knew it was locked, too, but we didn’t have no estimation about it, what to do and what not to do because I didn’t tell him.
      Q, Did you have anything to do with paying Mr. Harvey?
      A. No, sir.
      Q. Did you have anything to do with these logs at all?
      A. No, sir, none whatever.” (Id. tr. 103)

      .“The court accepts the testimony of Mr. McDaniel, whom the Court finds to be eminently qualified, and the Court is convinced that Mr. McDaniel made an accurate study and demonstrated superior knowledge in his field. ... Therefore the court finds that there should have been 682 crossties cut from the logs...” Id. tr. 47.

      . Art. 2705 — The lessor has, for the payment of his rent, and other obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the property leased.
      In the case of predial estates, this right embraces everything that serves for the labors of the farm, the furniture of the lessee’s house, and the fruits produced during the lease of the land; and in the case of houses and other edifices, it includes the furniture of the lessee, and the merchandise contained in the house or apartment, if it be a store or shop.
      But the lessee shall be entitled to retain, out of the property subjected by law to the lessor’s privilege, his clothes and linen, and those of his spouse and family; his bed, bedding and bedstead, and those of his spouse and family; his arms, military accoutrements, and the tools and instruments necessary for the exercise of the trade or profession by which he gains his living and that of his family; one cooking stove and utensils of said stove, plates, dishes, knives, forks and spoons; all pots, pans and other cooking utensils; one dining table, and dining chairs necessary for himself and his family.

      . Art. 3225 — Against the owner of the thing, his right is in the nature of that of pledge, by virtue of which he may retain the thing until the expenses, which he has incurred, are repaid.
      He possesses this qualified right of pledge, even against the creditors of the owner, if they seek to have the thing sold. He may refuse to restore it, unless they either refund his advance, or give him security that the thing shall fetch a sufficient price for that purpose.

      . Art. 3224 — He who, having in his possession the property of another, whether in deposit or on loan or otherwise, has been obliged to incur any expense for its preservation, acquires on this property two species of rights.


author: PRICE, Judge.

text:
    Doris H. JORDAN, Plaintiff-Appellant, v. Thomas E. JORDAN, Defendant-Appellee.
    No. 14721.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Burnett, Sutton, Walker & Calloway by Bobby D. Sutton and Glenn E. Walker, Shreveport, for plaintiff-appellant.
    Sockrider & Bolin by H. F. Sockrider, Jr., Shreveport, for defendant-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Doris H. Jordan has appealed from the judgment awarding her husband, Thomas E. Jordan, a divorce under La.R.S. 9:301 (one year living separate and apart.) Her complaint is directed at the refusal of the trial court to consider any evidence relating to absence of fault on her part to entitle her to permanent alimony.

The question presented arises out of the following circumstances. On October 22, 1980, the plaintiff-wife, on allegations of abandonment, filed suit for separation, dissolution of the community, alimony penden-te lite, and attorney fees. She also filed a rule for and was granted pendente lite alimony in the amount of $1,700 per month retroactive to February 1, 1981. The defendant-husband reconvened for divorce based on one year’s living separate and apart. The following allegations in the husband’s reeonventional demand pertinent to this litigation are as follows:

10
Plaintiff-in-Reconvention shows that the Defendant-in-Reconvention DORIS LU HOFIUS KYLE JORDAN, was not free of legal fault in the causes giving rise to their separation and this divorce. He therefore shows that she is not entitled to alimony herein.
******
WHEREFORE, defendant in the main demand and Plaintiff-in-Reconvention in the Reeonventional Demand, THOMAS EARL JORDAN, JR., respectfully prays that:
Hi sfc Hi sfc sjc
(4) After all legal delays and due proceedings had herein there be judgment herein as follows:
(b) On the Reeonventional Demand herein by THOMAS EARL JORDAN, JR., as follows:
(3) Decreeing DORIS LU HOFIUS KYLE JORDAN not to have been free of legal fault herein and therefore rejecting her demands for permanent alimony.

The wife answered the reeonventional demand with a pleading styled “Answer to Reeonventional Demand,” in which she specifically denied the allegations of Article 10 of the husband’s reeonventional demand as shown above. She further pled in her answer to the reeonventional demand as follows:

14
Further answering, defendant-in-recon-vention shows that, in the event a judgment of divorce is rendered herein, then in that event, defendant-in-reconvention is entitled to and desires judgment against plaintiff-in-reconvention for permanent alimony for her own support in the sum of TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS per month.
WHEREFORE DEFENDANT-IN-RE-CONVENTION, DORIS H. JORDAN, PRAYS that the demands of the plaintiff-in-reconvention, Thomas E. Jordan, be rejected at his costs.
FURTHER PRAYS that in the event a divorce is rendered herein that defendant-in-reconvention is entitled to and desires judgment against plaintiff-in-recon-vention, for permanent alimony for her own support in the sum of TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS per month.

A copy of this pleading was mailed to the husband’s counsel of record. No other type of service was effected either on the attorney or the husband.

At the time the case was called for trial of the merits on March 31, 1981, the husband contended that his reconventional demand for divorce took precedence over the wife’s demand for a separation. The trial court agreed and proceeded to trial on the divorce action. The husband objected to the wife’s attempt to introduce evidence relating to the issues of fault and permanent alimony for two reasons: (1) her answer to the reconventional demand failed to state a cause of action for permanent alimony as she did not allege she was free from fault; and (2) if a cause of action was stated, it was not properly served upon him in accordance with La.C.C.P. Art. 1063 and 1314. .

In response to these objections by the husband’s counsel, the wife’s attorney requested a continuance for the purpose of amending her pleadings. This was denied by the trial judge and application for writs to this court was then taken. The writ was denied for the following reasons:

Although it appears that the trial judge erred in refusing to admit evidence relating to fault for purposes of establishing entitlement to alimony in later proceeding, applicant has adequate remedy either by appeal or by summary proceeding for alimony in district court.

In his ruling on the objections, the trial judge concluded that the wife’s demand for permanent alimony in her answer to the husband’s reconventional demand was in effect a reconventional demand of her own. He further concluded there had not been proper service of such a demand, and since the husband appeared in court solely to present evidence on this request for a divorce, he had not waived his right to be properly served with process insofar as the wife’s demands for alimony are concerned. The court excluded all other evidence except that supporting the husband’s demand for a divorce.

On this appeal the appellant contends the trial judge erred in not receiving evidence on her right to permanent alimony. She alleges that the issue of her freedom from fault and entitlement to permanent alimony was properly joined by her denial of appel-lee’s allegation of her lack of freedom of fault in the reconventional demand, and by her demand for permanent alimony in her answer. She further contends that appel-lee’s appearance in court and his oral argument that she had not sufficiently pled a cause of action for permanent alimony constitute a waiver of service of process of the disputed pleadings.

The primary issue is whether appellant’s answer constituted a reconventional demand for permanent alimony. Normally, fault is not an issue in an action for divorce under La.R.S. 9:301 unless one spouse specifically requests permanent alimony. LeBlanc v. LeBIanc, 362 So.2d 568 (La.1978); Brady v. Brady, 388 So.2d 57 (La.App. 1st Cir. 1980). La.C.C. Art. 160 mandates that a spouse must prove himself free from fault before receiving an award for permanent alimony. See also Brannon v. Brannon, 362 So.2d 1164 (La.App. 2d Cir. 1978). Instead of alleging her freedom from fault in her answer, appellant denied appellee’s allegation that she was not free from fault. Appellant’s contention that this was insufficient to raise the issue of fault is best answered by analogy to the case of Smith v. Smith, 357 So.2d 93 (La. App. 4th Cir. 1978). There the wife filed a reeonventional demand for divorce and alleged her freedom from fault. The husband answered with a general denial and failed to plead specific allegations of her fault. The court held that the husband’s answer denying the wife’s allegations of freedom of fault in the reeonventional demand put fault at issue and that it was unnecessary for him to plead specific allegations of her fault. (Further, to require appellee in the instant case to specifically allege her freedom from fault would have required an answer by appellee denying this. This would result in replicatory pleading, which is prohibited by La.C.C.P. Art. 852. See also Verret v. Norwood, 311 So.2d 86 (La.App. 3d Cir. 1975).)

Appellee contends that appellant’s answer cannot be considered a reeonventional demand because it violated the requirements of La.C.C.P. Art. 1032 that a pleading containing both an answer and a recon-ventional demand shall be captioned as to “indicate appropriately the dual character of the combined pleading.” La.C.C.P. Art. 865 provides “every pleading shall be construed as to do substantial justice.” The jurisprudence holds that courts may overlook miscaptioning of a pleading where the other party is not prejudiced. Broday v. Broday, 360 So.2d 645 (La.App. 3d Cir. 1978). Higdon v. Higdon, 385 So.2d 396 (La.App. 1st Cir. 1980). In the instant case it is obvious that appellee was not prejudiced by the miscaptioned pleading. It clearly set forth appellant’s demand for permanent alimony. A letter from appellee’s counsel to counsel for appellant requesting an answer to his reeonventional demand expressed an assumption that appellant would be reconvening for permanent alimony. Pretrial discovery contained interrogatories showing fault and alimony would probably be an issue in the proceeding. We therefore find that appellant’s responsive pleadings to appellee’s reeonventional demand for divorce placed at issue her entitlement to and request for permanent alimony and are in effect a reeonventional demand.

The trial court was correct in its finding that there had not been proper service of this demand on appellee. La.C.C.P. Art. 1063 requires that service of a recon-ventional demand be made according to La. C.C.P. Art. 1314, which provides for service to be made by the sheriff. Since a copy of appellant’s reeonventional demand was mailed to appellee’s counsel and no other type of service was effected, there has been no compliance with the above codal provisions.

The trial court was also correct in holding that appellee’s reeonventional demand for a divorce took precedence over appellant’s initial suit for a separation.

The trial court abused its discretion, however, in refusing appellant the requested continuance that would have resulted in resolution of the crucial fault issue for permanent alimony purposes with resolution of the merits of the divorce action. See La.C.C.P. Art. 1601. The denial of the continuance also substantially prejudices the appellant because pendente lite alimony will terminate if a divorce judgment is rendered and any claim for permanent alimony thereafter would have to be asserted by ordinary process in a new action. See Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir. 1979) and Rayborn v. Rayborn, 246 So.2d 400 (La.App. 1st Cir. 1971).

In the interest of judicial efficiency and economy, trial courts should encourage litigants to seek determination of the permanent alimony fault issue when the merits of the separation or divorce are being determined and preferably before the divorce is rendered. See Thomason v. Thomason, 355 So.2d 908 (La.1978) and Smith v. Smith, 357 So.2d 93 (La.App. 4th Cir. 1978).

While permanent alimony is based on different considerations than pendente lite alimony, the policy of the provisions for alimony should encourage courts to seek, where the circumstances warrant, continuity of the pendente lite award through the time that the issue of permanent alimony is finally decided. The circumstances of this case warrant such a result.

For the foregoing reasons, the judgment appealed is ordered vacated and set aside, and the case is remanded to the district court for further proceedings consistent with the views expressed herein and in accordance with law.

Costs of this appeal are assessed to appel-lee. Taxation of all other costs is to await final determination.


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    The CITY OF SHREVEPORT and Caddo Parish School Board, Plaintiffs-Appellees, v. Lester KLEOWDIS d/b/a Dental Arts Laboratory, et al., Defendants-Appellants-Appellees.
    No. 14722.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.
    Taylor W. O’Hearn, Shreveport, for defendants-appellants, Lester Kleowdis d/b/a Dental Arts Laboratory and Ken Griggs d/b/a Precision Dental Ceramics.
    Mayer, Smith & Roberts by George T. Allen, Jr., Shreveport, for plaintiffs-appel-lees, The City of Shreveport and Caddo Parish School Board.
    Wilson, Blanche, Wilson & Posner by ' Robert L. Roland, Baton Rouge, for defendants-appellees, Drs. James F. Batte, Joseph M. Lattier, Jr., William M. Hall, Jr. and Morris D. White.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

The City of Shreveport and the Caddo Parish School Board brought this suit against two dental laboratories and several dentists seeking a declaratory judgment declaring that sales of dental prosthetic devices by dental laboratories to dentists are subject to sales tax under identical ordinances adopted by the respective plaintiffs or, alternatively, that sales of such devices by dentists to their patients are subject to the sales tax. Each group of defendants denied that the transactions in which they are engaged are taxable sales at retail under the provisions of the sales tax ordinances. After trial the district court in well-reasoned and articulated written reasons for judgment held that the sales by the dental laboratories to the dentists are sales at retail and subject to sales tax under the ordinances and that the charges made by the dentists to the patients are for professional services and are not subject to taxation under the ordinances. From a judgment rendered accordingly, the dental laboratories appealed. We affirm.

On appeal the dental laboratories argue essentially that they are manufacturers and that the sales made by them to dentists are not sales at retail because the dentists are not the ultimate consumers of the product and because the dentists further process the products for retail sale to their patients who are the ultimate consumers. In support of the decision of the district court the dentists contend that the charges made by them are for professional services rendered and that they do not engage in the sale of tangible personal property. The plaintiffs urge that the sales by the dental laboratories to the dentists are taxable retail sales because the sales are made to consumers or to persons for a purpose other than for resale in the form of tangible personal property and are not sales of materials for further processing into articles of tangible personal property for sale at retail by the dentists.

As pertinent to this case the sales and use tax ordinances levy a tax upon the sale at retail of tangible personal property within the parish. The ordinances provide that the tax shall be collected by the dealer from the purchaser or consumer. Both ordinances contain the following pertinent definition:

“Section 1.15. ‘Retail Sale’ or ‘Sale at Retail’ shall mean a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, and a sale of services, as hereinafter set forth, and shall mean and include all such transactions as the Administrator, upon investigation finds to be in lieu of sale; provided, that sales for resale must be made in strict compliance with the rules and regulations issued by the said Administrator. Any dealer making a sale for resale, which is not in strict compliance with the rules and regulations, shall himself be liable for and pay the tax.
“The term ‘Sale at Retail’ does not include sales of materials for further processing into articles of tangible personal property for sale at retail, nor does it include' an isolated or occasional sale of tangible personal property by a person not engaged in such business shall be considered and treated as a retail sale or sale at retail. (Emphasis supplied)”

Professional services rendered by a dentist are not included within the definition of sales of services under the ordinances.

The evidence discloses that prosthetic devices are ordered by the dentists from the dental laboratories by prescription to meet the specific needs of a particular patient. The device is fabricated by the dental laboratory and delivered to the dentist. The laboratory bills the dentist, itemizing the charge for material and the charge for labor, and including the sales tax. Historically, since the enactment of the ordinances in 1967, the laboratories have collected sales tax on the transactions from the dentists. In fitting their patients with the devices the dentists frequently make minor adjustments. The dentists charge their patients for professional services rendered without a separate charge or itemization for the prosthetic device.

The issue in this case is whether a sale at retail occurs in either of the types of transactions involved here, that is, between the laboratory and the dentist or between the dentist and the patient.

Under the definitions contained in Section 1.15 of the ordinances there is clearly a sale from the dental laboratory to the dentist and the sale is taxable unless it is a sale for the purpose of resale in the form of tangible personal property or for further processing into articles of tangible personal property for sale at retail. The sale by the dental laboratory to the dentist is taxable unless it can be said that the dentist resells the tangible personal property to the patient.

The dentist does not resell the dental prosthetic device as an item of tangible personal property to his patient. The device is provided in connection with and as a part of the rendition of professional dental services. The bill which the dentist submits to his patient shows a charge for professional services on each item of work that he does, e.g., so much for a crown or so much for a partial bridge. There is no itemization of charges for the actual cost of the dental prosthetic device separate from the charge for the entire professional services involved. The dentist does not, therefore, resell the item of tangible personal property. The dental laboratory does not sell the prosthetic device to the dentist for resale but sells it to him for his use in connection with the rendering of professional services. The dentist no more makes a sale of the prosthetic device to the patient than does a doctor who, in connection with rendering professional services, provides a patient with an orthopedic pin, a metal plate or other implanted medical device. Under the terms of the ordinances, the sale of the prosthetic device by the dental laboratory to the dentist is a sale at retail and is a taxable transaction.

In support of their position the dental laboratories rely on two cases: Codesco, Inc. v. Collector of Revenue, 365 So.2d 577 (La.App. 1st Cir. 1978) and Dental Arts, Inc. v. Collector of Revenue, 360 So.2d 654 (La.App. 3d Cir. 1978). In both of these cases the court held that dental laboratories are not subject to the state occupational license tax because they are not manufacturers who sell their manufactured articles at retail. The holdings of those cases are not applicable here because “sale at retail” or “retail sale” is not specifically and expressly defined in the occupational license tax law as it is in the sales tax ordinances involved here.

The decision in this case is further supported by the doctrine of contemporaneous construction. The unchanged interpretation of a law by the agency charged with administering it, particularly where that interpretation is accepted by the persons most affected by it for many years, is given substantial and often decisive weight in determining the meaning of the law. Traigle v. P.P.G. Industries, Inc., 332 So.2d 777 (La.1976). As previously mentioned the dental laboratories have collected and remitted sales tax on their sales to dentists since the ordinances were enacted in 1967. Under the state sales tax law the dental laboratories collected and remitted the tax on the same basis until the sale of prosthetic devices was specifically exempted from the state sales tax law in 1973. The local ordinances were not amended to include such an exemption. The consistent interpretation of the sales tax ordinances by all parties involved over a period of years is eminently correct and supports the judgment rendered in this case.

The judgment of the district court is affirmed at appellants’ costs.

Affirmed.


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    70TH STREET FOOD STORE, INC., Plaintiff-Appellee, v. NORTHEASTERN FIRE INSURANCE COMPANY OF PENNSYLVANIA, Defendant-Appellant.
    No. 14723.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Cook, Yancey, King & Galloway by Herschel E. Richard, Jr. and Cynthia C. Anderson, Shreveport, for defendant-appellant.
    Gahagan & Gahagan by Henry C. Gaha-gan, Jr., Natchitoches, for plaintiff-appel-lee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, 70th Street Food Store, Inc., brought this action for recovery of losses alleged to be "within the coverage of a robbery and burglary policy issued by Northeastern Fire Insurance Company of Pennsylvania. Plaintiff also sought penalties and attorney fees pursuant to La.R.S. 22:658. The trial court found the loss was covered by the policy and rendered judgment in the sum of $6,775, but denied recovery of penalties and attorney fees. Defendant appeals, and by way of answer to the appeal, plaintiff seeks an award for penalties and attorney fees.

The facts surrounding the loss are not seriously in controversy.' Late in the afternoon of April 19, 1979, Margaret Little, a cashier employed by plaintiff, observed a suspicious person lurking about the manager’s office in the front of the store. When Mrs. Little approached to investigate, an unknown male person ran towards her from the office and then fled the store. The owner and store manager, attending to business in the back of the store, were unaware of the incident, but were summoned immediately thereafter. A subsequent investigation determined that $6,775 had been taken from an unlocked safe located in the office.

The policy of insurance issued by defendant provides coverage for robbery committed inside the premises. Robbery is defined in pertinent part as:

. .. the taking of insured property (1) by violence inflicted upon a messenger or a custodian; (2) by putting him in fear of violence; (3) by any other overt felonious act committed in his presence and of which he was actually cognizant, provided such other act is not committed by an officer, partner or employee of the insured; . ..

The policy further provides that “custodian” means:

. . . the insured, a partner therein or an officer thereof, or any employee thereof who is in the regular service of and duly authorized by the insured to have the care and custody of the insured property within the premises, excluding any person while acting as a watchman, porter or janitor.

At trial defendant contested the suit on the theory that Mrs. Little was not a “custodian” of the insured property, therefore no coverage was provided because a “custodian” was not “actually cognizant” of the robbery as required by the policy. The trial court, in finding coverage under the insurance policy, ruled that the particular facts of this case show Mrs. Little was the custodian of the office and its contents while watching the office in the absence of the manager.

To qualify as a “custodian” under the terms of the policy, Mrs. Little must have had the “care and custody” of the insured property at the time of the loss. The determination of this issue necessarily depends upon the characterization of the duties and responsibilities of Mrs. Little.

As a cashier, Mrs. Little’s duties include servicing customers and bagging groceries. When the manager is away from the office, she is responsible for protecting the office from unlawful intrusion. If a customer requiring services approaches the office, it is her duty to assist the customer by locating the manager.

Contending the trial court erred in finding coverage, defendant urges this court to follow the rationale of Huron Bowl, Inc. v. Security Ins. Co. of New Haven, 165 N.W.2d 265, 14 Mich.App. 62 (1968), where the court interpreted a similar policy provision and denied coverage.

We do not find Huron to be persuasive authority and choose not to follow it for two reasons. First, the dispositive determination in Huron revolved around the court’s finding that plaintiff’s employee was acting as a watchman at the time of the theft. In that case, the policy expressly excluded any custodian while acting as a watchman, porter, or janitor. Thus, the court was never really called on to decide whether the employee could have otherwise qualified as a custodian.

In Demary v. Royal Indemnity Co., 185 So. 662 (La.App. 1st Cir. 1939), the court succinctly pointed out the difference between employees and watchmen:

. .. The former (employees) are there principally as servants and agents of the employer to carry on his business and serve his customers, and only incidentally to protect and defend the property of the employer, while the latter (guards and watchmen) are there to repel with force if necessary any attempt to take the employer’s property, their principal duty being to protect the property, and not to attend the business or serve the customers of the employer.

It is clear that at the time of the robbery, Mrs. Little was not acting as a watchman of the insured property, therefore, Huron is not on point.

Secondly, and more importantly, the court in Huron was of the opinion that a policy which defines “custodian” as an employee who has the “care and custody” of the insured property is not ambiguous. We disagree.

“Care and custody” is an ambiguous term that is subject to differing interpretations according to the circumstances. Insurance policies are to be construed in their ordinary and popular sense, with any ambiguities construed against the insurer which prepared the policy and in favor of coverage. Insurance Co. of North America v. Solari Parking Inc., 370 So.2d 503 (La.1979); Credeur v. Luke, 368 So.2d 1030 (La.1979).

Since Mrs. Little was responsible for the office and its contents in the absence of the manager, we agree with the trial court that she was a “custodian” of the property at the time of the robbery.

Plaintiff has asked for penalties and attorney fees pursuant to La.R.S. 22:658, claiming defendant’s failure to pay the full amount sued for was arbitrary and capricious. Since the instant case presented a genuine issue as to coverage and the insurer had a reasonable basis on which to defend his claim, we hold that imposition of the statutory penalties is not warranted.

For the reasons assigned, the judgment of the trial court is affirmed at defendant’s costs.


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    Floyd Ray PORTER, Plaintiff-Appellant, v. Ben JOHNSON, III, Executor of the Succession of William Campbell Nabors a/k/a W. C. Nabors, Defendant-Appellee.
    No. 14724.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.
    En Banc.
    Rehearing Denied Jan. 18, 1982.
    Writ Denied March 12, 1982.

      Tucker, Jeter, Jackson & Victory by Robert McLean Jeter, Jr. and Greene, Ayres & Mayo by James E. Ayres, Shreveport, for plaintiff-appellant.
    Colvin, Hunter, Brown, Plummer & Means by Robert E. Plummer, Mansfield, and Ferguson & Rives by James D. Rives, New Orleans, for defendant-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

. Plaintiff, Ray Porter, filed suit against the executor of the succession of Will Na-bors within one year after the death of Nabors for “recognition of claims for services rendered.” Alleging that during the period from July 1972 until the decedent’s death in December 1977, he assisted Nabors in acquiring oil and gas leases over a four-parish area under an oral joint venture agreement whereby plaintiff was to receive overriding royalty interests upon termination of the venture, plaintiff sought judgment for the value of the overriding royalty, alleged to be approximately $1,000,000, plus expenses incurred, subject to a credit for $67,500 paid by the decedent to plaintiff on account. Alternatively to his claim under the alleged joint venture agreement, plaintiff sought recovery of the same amount under principles of unjust enrichment or quantum meruit. The defendant executor denied the existence of the joint venture agreement and denied any liability or indebtedness to the plaintiff, alleging plaintiff had been fully paid for services rendered to the decedent.

After trial, the district court concluded in comprehensive written reasons for judgment that plaintiff failed to establish his entitlement to overriding royalties or the value thereof because parol evidence was not admissible under LSA-C.C. Art. 2275 and even if parol evidence were admissible, the requirements of the Dead Man Statute, LSA-R.S. 13:3721 and 3722, were not met in that the alleged debt or liability was not proved by the testimony of one credible witness other than the plaintiff and other corroborating circumstances. The district court further concluded that there was no reciprocity of agreement between plaintiff and decedent as to the amount of compensation plaintiff was to receive because of either mutual or unilateral error and, therefore, there was no contract or agreement as to compensation. The court further found that there was a substantial disparity between the amount decedent paid plaintiff over the five and one-half year period and the value of the services rendered by plaintiff, determined primarily by the amount plaintiff could have earned under standard lease broker rates. Under principles of unjust enrichment or quantum meruit derived from LSA-C.C. Art. 1965, the court awarded plaintiff $22,174.63 calculated on the basis of a formula which took into consideration the number of days the court determined that plaintiff worked for decedent, the standard daily rate of pay for lease brokers during the period involved, and the amount plaintiff was paid by decedent and other companies for whom he did work during the period.

From a judgment in favor of plaintiff against the defendant for that amount, both plaintiff and defendant appealed. On appeal, plaintiff specifies that the court erred: (1) in holding plaintiff failed to prove the joint venture agreement; (2) in holding plaintiff’s proof did not meet the requirements of LSA-R.S. 13:3721 and 3722; (3) in finding there was no reciprocity of agreement as to the compensation to be received by plaintiff; and (4) in calculating the amount due under the doctrine of unjust enrichment. Defendant specifies that the court erred: (1) in granting recovery where plaintiff failed to prove his claim by a preponderance of the evidence and in accordance with LSA-R.S. 13:3721 and 3722; and (2) in calculating the amount of the award by a formula which is illogical, unsupported by the evidence, and is arithmetically incorrect.

Facts

Plaintiff is an experienced lease broker or landman with particular expertise in an area including DeSoto Parish and surrounding parishes. Nabors was a very successful independent oil and gas operator with extensive leases and production in the same area. In July 1972 plaintiff went to work for Nabors as a lease broker or landman, acquiring leases and doing related work over a four-parish area. According to plaintiff, their agreement was for Nabors to pay him $1,000 per month with plaintiff to pay his own expenses and upon completion of the venture to acquire and sell a large block of leases, plaintiff was to receive “down the middle and across the board” overriding royalties to be reserved by Nabors. After a six-month trial period the monthly amount was increased to $2,000. During the five and one-half year period, plaintiff also did some lease acquisition work for Phillips Petroleum Company, with whom Nabors had an agreement for the drilling of deep wells, and other companies.

In August 1977 Nabors sold his oil and gas business including leases, production (mostly shallow), and oil rigs and equipment, to Sun Oil Company for $30,000,000, reserving no royalties or overrides except his landowner’s royalty on producing lands owned by him in fee and an overriding royalty and carried working interest in the Phillips lease block on which there were two producing wells at the time of the sale. Plaintiff testified this sale was the successful termination of their joint venture and that Nabors was to settle with him after he determined his 1977 tax situation, but Na-bors died before making the settlement. The recovery sought by plaintiff was the appraised value of a V32 overriding royalty under the leases assembled by Nabors during the five and one-half year period, most of which leases were acquired by plaintiff for Nabors. During the period, some 800 to 1,000 leases were acquired covering some 115,000 acres.

Nabors’ secretary and the defendant executor, who was vice president and geologist for Nabors’ company, testified they had no knowledge of the joint venture agreement and that it was their understanding that plaintiff was to receive $1,000 per month during the trial period and $2,000 per month thereafter as full compensation for his services. It was firmly established that a joint venture arrangement such as described by plaintiff would have been entirely inconsistent with Nabors’ long-standing policy of never having partners or entering into such joint ventures with anyone. Although the executor sat in on all of Na-bors’ negotiations with Phillips and with Sun, was kept advised of all of Nabors’ oil and gas dealings, and had Nabors’ power of attorney, Nabors had never mentioned anything to him about plaintiff having any interest in or entitlement to the leases or royalty.

After plaintiff started working for Na-bors in July 1972, he received regular $1,000 payments for the balance of 1972 except for a $2,500 payment in December. In 1973 he was paid $2,000 in each of the 12 months of the year. The $2,000 per month payments continued ■ regularly for the first four months of 1974. Thereafter, payments by Nabors to plaintiff were made irregularly. The next $2,000 payment was made in December 1974. In 1975 plaintiff received three $2,000 payments, one each in April, August, and December. In 1976 there were five $2,000 payments, one in May, one in August, one in October, and two in December. In 1977 plaintiff received three $2,000 payments, one each in March, April, and June, and a $5,000 payment in December, a week or two before Nabors’ death. The checks for the payments were marked mostly “on account” with the final payment being marked “For professional services rendered.” The total paid by Nabors to plaintiff over the five and one-half year period was $67,500.

During the five and one-half year period, plaintiff worked for and billed other companies, primarily Phillips, and, in 1977, Sun. In 1972 and 1973 income received by plaintiff from other companies was nominal. In 1974 plaintiff was paid over $30,000 by Phillips and others. In 1975 he received over $24,000, in 1976 over $19,000, and in 1977 over $42,000. These figures included expenses and totaled over $115,000 during the five and one-half year period. Plaintiff’s testimony was that the work he did for other companies was related to Nabors’ interests and the payments he received from them was in lieu of or lagniappe to the payments he received from Nabors.

It was established by plaintiff’s testimony and by the testimony of others, including the defendant executor, Nabors’ secretary, plaintiff’s brother who is clerk of court in DeSoto Parish, and by the documented huge volume of leases acquired by plaintiff for Nabors that plaintiff worked hard and long hours and rendered substantial and extensive services to Nabors over the period involved. Plaintiff had no records, however, of the precise days he worked for Nabors or of his precise expenses attributable to work for Nabors.

The Alleged Joint Venture Agreement

Plaintiff sought to establish that Nabors had agreed to assign to him at the successful conclusion of the joint venture overriding royalties under leases acquired by Na-bors during the period plaintiff worked for him. Since the leases were included in the sale by Nabors of his entire oil and gas properties to Sun, without reservation of overriding royalty except to a limited extent in the Phillips block, plaintiff sought to recover the value of the overriding royalty he claims was due him under the agreement. The only evidence of the alleged agreement was plaintiff’s own testimony about his oral, private conversations with the decedent.

The trial court correctly held that parol evidence of the joint venture agreement to convey overriding mineral lease royalties was inadmissible. An overriding royalty under an oil and gas lease is an incorporeal immovable. LSA-C.C. Art. 2275 requires that every transfer of immovable property be in writing. The requirement that transfers of immovables be in writing also applies to actions for an accounting of profits realized from a joint venture involving mineral leases. Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963). Parol evidence, plaintiff’s testimony, was not admissible to prove the joint venture agreement either in support of his claim to such a royalty interest or the value thereof. Plaintiff’s testimony being the only evidence of such an agreement, it obviously follows that the agreement was not proved.

The trial court also correctly held that plaintiff’s proof did not meet the requirements of the Dead Man Statute, LSA-R.S. 13:3721 and 3722. Plaintiff met the requirement of Section 3721 in that he did file a claim against the succession representative within one year of the death of the deceased. He did not, however, meet the requirements of Section 3722. Plaintiff failed to offer the testimony of any witness other than himself as to the alleged agreement, nor did he establish other corroborating circumstances.

Agreement as to Compensation

The trial court found there was no reciprocity of agreement or meeting of the minds between plaintiff and Nabors as to the compensation plaintiff was to receive for his services. There was no agreement by Nabors to assign to plaintiff an overriding royalty as contended by plaintiff. There was no mutual agreement or at least no agreement by plaintiff to accept the irregular monthly payments of $1,000 and later $2,000 as full compensation. This latter finding is supported by the irregular and sporadic nature of the payments which do not seem to relate to the specific amount of time worked by plaintiff for Nabors or for other companies during the periods preceding the making of such payments. Plaintiff testified he would tell Nabors when he was short of money and Nabors would make a payment to him, “on account.”

The trial court determined that there was no agreement between plaintiff and Nabors as to the amount of compensation plaintiff would receive for services rendered. We find no error in this determination. It is clear that plaintiff and Nabors entered into a binding contract by which plaintiff was to render services and was to be paid some unspecified compensation in return. As noted above, there was no agreement by plaintiff to accept the irregular payments made by Nabors as full compensation for the extensive services he performed in Nabors’ behalf.

Right to Recovery

Because there was no agreement as to the amount of compensation plaintiff was to receive, the trial court allowed plaintiff to recover under the doctrine of unjust enrichment. The conditions or prerequisites necessary to application of that doctrine are: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and resulting impoverishment; (4) an absence of “justification” or “cause” for the enrichment and impoverishment; and (5) an absence of another remedy at law. Edmonston v. A-Second Mortgage Company of Slidell, Inc., 289 So.2d 116 (La.1974); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). For a discussion and explanation of each of these prerequisites see: Nicholas, Unjustified Enrichment in the Civil Law and Louisiana Law, Part I, 36 Tul.L.Rev. 605 (1962), Part II, 37 Tul.L.Rev. 49 (1963).

The trial court was correct in finding that plaintiff established the conditions for recovery under unjust enrichment, except perhaps the fifth condition, an absence of another remedy at law. In theory it is perhaps more accurate to classify plaintiff’s action as one in contract, with plaintiff’s remedy at law being enforcement of the contract including the implied provision thereof that plaintiff be reasonably compensated for his services. See: Comment, Quantum Meruit in Louisiana, 50 Tul.L.Rev. 631 (1976).

Plaintiff established the existence of a contract between Nabors and himself. The fact that the amount of compensation plaintiff was to receive for his services was not agreed upon does not vitiate the contract. LSA-C.C. Art. 1779 sets forth the requisites for a valid contract: (1) parties legally capable of contracting; (2) their consent legally given; (3) a certain object, which forms the matter of agreement; and (4) a lawful purpose. See also LSA-C.C. Art. 1761. All of these requisites were met in this case. The object of this contract was for plaintiff to supply services to Na-bors; no agreement was reached as to the remuneration plaintiff would receive for these services.

LSA-C.C. Art. 1903 states:

“The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.”

An implied provision of plaintiff’s contract was that he would be paid a reasonable sum for his services. Therefore, plaintiff’s remedy at law is to sue on the contract and have the court determine the remuneration he should receive for the services he rendered to decedent under the codal rules regarding interpretation of agreements. Plaintiff’s claim for compensation should be considered under traditional theories of contract interpretation where a missing but implied term of the contract must be supplied by the court.

Where there is a contract for the rendering of services but there is no agreement for the price or compensation, the plaintiff is entitled to be paid for the services rendered under the principles of LSA-C.C. Art. 1965. Bascle v. Perez, 224 La. 1014, 71 So.2d 551 (1954); Doll v. Albert Weiblen Marble & Granite Co., Inc., 207 La. 769, 22 So.2d 59 (1945); Skains v. White, 391 So.2d 1327 (La.App. 2d Cir. 1980); Brummett v. Hamel’s Dairy, Inc., 324 So.2d 502 (La.App. 2d Cir. 1975); North Development Company, Inc. v. McClure, 276 So.2d 395 (La.App. 2d Cir. 1973); Swan v. Beaubouef, 206 So.2d 315 (La.App. 4th Cir. 1968). The amount of recovery is the value of the services which has inured to the benefit of another. In making a determination of what is a reasonable value of the services rendered, the court must look to the circumstances involved in each individual case. North Development Company, Inc. v. McClure, supra. Plaintiff’s claim against decedent’s estate must meet the requirements of the Dead Man Statute, that is, the debt or liability must be proved by a credible witness other than the plaintiff and other corroborating circumstances.

As previously noted, it was firmly established by the applicable standard of proof that plaintiff rendered substantial, extensive services to Nabors over a five and one-half year period in acquiring hundreds of leases covering over a hundred thousand acres. Although the exact number of days and hours plaintiff worked for Nabors was not established, a careful analysis of all the evidence supports a finding that the $67,500 paid by Nabors to plaintiff was substantially less than the value of the services determined on the basis of the usual daily rates plus expenses customarily paid to lease brokers for similar work. The evidence establishes the customary manner of compensating independent landmen is on a daily rate plus expenses basis. The prevailing rates during the years in question were established. Although there was testimony that on occasion landmen are compensated by an overriding royalty or on a per acre leased basis, the evidence does not establish that these methods of compensation are usual and customary in the industry.

The exact amount of recovery to which plaintiff is entitled is difficult to determine. The precise formula employed by the trial court is subject to criticism from both sides. For example, plaintiff argues that amounts paid plaintiff by other companies should not have been deducted from rates due plaintiff for days worked for Nabors. Plaintiff also complains about the trial court’s exclusion of expenses which the trial court found were not established with a sufficient degree of certainty. Defendant attacks the trial court’s method of arriving at days worked for Nabors and points up a, mathematical error. However, the trial court was correct in looking to the custom in the industry to determine the amount of compensation plaintiff is to receive. LSA-C.C. Art. 1966.

Where there is a legal right of recovery but the amount cannot be determined precisely, the court has reasonable discretion to assess an amount based upon all the facts and circumstances. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). After analyzing the evidence and approaching the measure of plaintiff’s recovery through several different formulas and from several different angles, we find the amount awarded by the district court is within the middle range of the several approaches. The amount awarded fairly compensates plaintiff for the difference between the value of the services rendered and expenses advanced for Nabors and the amount plaintiff was actually paid.

Decree

For the reasons assigned, the judgment of the district court is affirmed. Costs of the appeal are assessed one-half to plaintiff and one-half to defendant.

Affirmed.

      . “Art. 2275. Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.”

      . LSA-R.S. 13:3721:
      “Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
      “(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
      “(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
      “(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
      “(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
      “The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.”
      LSA-R.S. 13:3722:
      “When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.”

      . “Art. 1965. The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.”

      . The cited cases all refer to principles of “quantum meruit”. Oil Purchasers, Inc. v. Kuehling, 334 So.2d 420 (La.1976) criticized “quantum meruit” as an ill-considered importation from the common law and classified a claim in that suit for reduction of a fee stipulated in an employment contract as “actio de in rem verso”, recognized in Minyard and Edmonston, supra. The cited cases use “quantum meruit” as a descriptive term only, descriptive of the equitable principles of contract interpretation enunciated in LSA-C.C. Arts. 1965 and 1903, which were the substantive law bases for the decisions in those cases.


author: MARVIN, Judge.

text:
    SOLAR SUPPLY, INC., Plaintiff-Appellee, v. CAMP’S HEATING AND AIR CONDITIONING, INC., et al., Defendants-Appellants.
    No. 14725.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.
    Johnson, Johnson & Johnson by Neal G. Johnson, Monroe, for defendants-appellants.
    Bruscato, Loomis & Deal by Philip T. Deal, Monroe, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

Defendants, a corporation and its president-sole stockholder (Dickey), appeal a judgment in solido in this action on a promissory note that had the name “R. J. Dickey” typed at the top of the note and that was signed by Dickey on two lines at the bottom:

“... I, we or either of us, in solido, promise to pay
“s/Camp’s Heating and Air Conditioning, Inc.
“s/Ronald J. Dickey”

Dickey argues that he did not intend to be personally obligated on the note which was given for a past due account of the corporation to plaintiff, a supplier of the corporation. Plaintiff’s employees testified to the contrary and that it was explained to Dickey that plaintiff was going to sue the corporation unless Dickey personally agreed to pay the account. The note was due 90 days from date. The trial court made no specific findings of fact but rendered judgment for plaintiff on the authority of LRS 10:3-403. This section of the Commercial Laws reads:

“(1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
“(2) An authorized representative who signs his own name to an instrument
“(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
“(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.
“(3) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.”

Under these circumstances, as a reviewing court, we view the evidence in a light most favorable to the appellee and the af-firmance of the judgment. Ford Motor Credit Co. v. Diffey, 378 So.2d 1032 (La.App. 2d Cir. 1979), writs denied.

Defendants argue that the judgment cannot be upheld against both defendants in solido for the reason that if Dickey did not sign in a representative capacity, the corporation is not liable, and if he did, he is not liable. We affirm the judgment against both defendants.

A signature may be made by a representative and his authority to sign may be established as in other cases of representation. § 10:3-403(1). Dickey’s consistent position was and is that this was the debt of his corporation and that he signed the corporate name and his name to bind [only] the corporation. Dickey admitted that, as president and sole stockholder, he had the authority to bind the corporation.

As an authorized representative under § 10:3-403(2), Dickey signed his own name to the note and did not show on the note that he signed in a representative capacity. Under these circumstances, he is personally obligated on the note by the clear and express terms of the statute. Because this action is between the immediate parties to the note, Dickey had the right to introduce evidence to show that it was “otherwise established between the parties” that he was signing only in a representative capacity. Dickey failed in this burden.

At appellant’s cost, the judgment is AFFIRMED.

      . It is not necessary for us to reach the question whether the mere signing of the corporate name alone is sufficient to bind the corporation. See LRS 10:3-401 and UCC comment.


author: FRED W. JONES, Jr., Judge.

text:
    Howard B. MITCHELL et al., Plaintiffs-Appellees, v. Donald C. KILLINS et ux., Defendants-Appellants.
    No. 14726.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.
    Rehearing Denied Jan. 18, 1982.

      Guerriero & Anzalone by Rick C. Anza-lone, Monroe, for defendants-appellants.
    Blackwell, Chambliss, Hobbs & Henry by K. Tod Cagle, West Monroe, for plaintiffs-appellees.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Defendant owners of a subdivision lot appeal a judgment in favor of other subdivision property owners mandating the removal by defendants of a structure from their lot. Defendants contend the trial judge erred in (1) holding that the structure on their lot violated subdivision restrictions; (2) failing to find that plaintiffs had acquiesced in violations of this nature; and (3) ordering removal of the structure from defendants’ lot rather than simply enjoining future violations.

We affirm.

Restrictions governing Claiborne Forest Subdivision, located outside the West Monroe municipal limits, were filed for record in Ouachita Parish in 1960. Included were the following articles pertinent to this litigation:

1.
“LAND USE AND BUILDING TYPE. No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed one story in height.
2.
“No home may be constructed on any lot in this Subdivision with a floor area of the main structure thereof, exclusive of open porches and garages, having less than 1150 square feet.
8.
“TEMPORARY STRUCTURES. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently.
15.
“RE-LOCATION OF BUILDINGS. Construction of new buildings only shall be permitted, it being the intent of this covenant to prohibit the moving of any existing building on to a lot and remodeling or converting same into a dwelling unit in this subdivision.”

In 1975 the defendants, Donald Killins and Oneta Killins, husband and wife, purchased five lots in Claiborne Forest Subdivision and constructed their residence on one of them. This dwelling was of brick veneer construction, as were the other homes located in the subdivision. On property adjacent to the subdivision Killins has a mobile home park and conducts a mobile home sales business.

In the latter part of 1979 defendants moved onto their subdivision lot adjoining their residential lot a house trailer or mobile home measuring 66 feet by 14 feet. All running gear, including wheels, was removed from underneath the structure and the “tongue” was cut off. A water line was extended from defendants’ residence to the mobile home. Since January, 1980 Killins’ mother has occupied the described structure as her home.

When complaints by other subdivision owners that the structure placed by defendants on their lot violated subdivision restrictions brought no action, this suit was filed on March 28, 1980 by six of those other property owners praying for judgment ordering removal of the structure.

About six months after filing of this suit, defendants added a back room, a concrete slab and porch to the mobile home, increasing the total interior living space to 1164 feet.

In an excellent written opinion the trial judge construed Articles 1, 8 and 15 of the building restrictions together to “clearly express the intention that every residence must be a one-story structure built on site, of at least a minimum size.” He ruled that neither “a ‘trailer’ nor an ‘existing building’ could lawfully be brought onto and ‘installed’ on a subdivision lot for use as a residence — even temporarily.”

Defendants argue that the trial judge’s interpretation of the restrictive covenants so as to prohibit the placement of an immobilized mobile home on their lot is “out of step with the times.”

It is recognized that restrictions affecting immovable property are to be strictly construed, with any doubt resolved in favor of unencumbered property use. However, when differences arise as to the extent or limitation of restrictions, courts must look to the expressed intention of the party encumbering the property as set forth in the instrument embodying the restrictions, giving due consideration to the entire context of the document. Those purchasing property in the subdivision are entitled to presume that subdivision restrictions will be fairly and faithfully complied with. See Salerno v. DeLucca, 211 La. 659, 30 So.2d 678 (1947).

In Smith v. DeVincent, 322 So.2d 257 (La.App.2d Cir. 1975) the defendants appealed a judgment ordering them to remove trailers or mobile homes from their respective lots. Responding to appellants’ argument that immobilized mobile homes should be distinguished from house trailers, we observed:

“[W]e also take note that occasionally they [mobile homes] may be immobilized on a particular location, but nonetheless, remain capable of being mobilized without too much effort and expense. They are not so much ‘constructed’ or ‘assembled’ even in a small part on the location the owner desires but are ‘connected’ to sewerage and utilities.”

Discussing building restrictions in general we stated:

“While all restrictions are sometimes loosely referred to as building restrictions, it should be noted that restrictions generally fall into two classes: a ‘building’ restriction, which limits the type and size of structures which may be placed on the property, and a ‘use’ restriction, which limits the uses which may be made of permitted structures.”

We then concluded that the restrictions involved in that case pertained to “use” rather than “building”.

In the case at bar the trial judge correctly interpreted the building restrictions to express the subdivider’s intention that every residence be constructed on site. In fact, Article 15 clearly proscribes the “moving of any existing building on to a lot,” which defendants obviously did here. This is a “building” restriction. Further, Article 8 prohibits the “use” of such a structure as a residence. Consequently, we agree with the trial judge that the placing of the house trailer or mobile home on their lot by defendants constituted a violation of a “building” restriction and the occupation of the structure as a dwelling by Killins’ mother violated a “use” restriction.

Appellants next argue that plaintiffs waived their right to enforce these subdivision restrictions because of their failure to object to other similar violations.

As noted by the trial judge, most of the claimed “violations” involved recreational vehicles parked adjacent to residences. There was no evidence that these vehicles were being occupied as residences. Therefore, their presence did not constitute a violation of subdivision restrictions.

Several other structures, which defendants contend violated subdivision restrictions, simply appear (from photographs filed in the record) to be outbuildings or storage sheds. Examination of the subdivision restrictions does not reveal any prohibition of structures of this nature, as the trial judge also properly concluded.

To summarize on this point, defendants did not prove the existence of other violations of subdivision restrictions. Even if one or more of the last described structures did conceivably violate those restrictions, these violations were so insubstantial as to be inconsequential. As pointed out in East Parker Properties, Inc. v. Pelican Realty Co., 335 So.2d 466 (La.App.1st Cir. 1976):

“. . . [Tjhere is no abandonment of subdivision restrictions unless violations have been such that there has been a subversion of the original scheme of the subdi-viders, resulting in a substantial change in the intended nature of the subdivision.”

Also see Allen v. Forbess, 345 So.2d 950 (La.App.2d Cir. 1977).

Defendants’ final argument, that the mandatory injunction ordering removal of the offending structure is not authorized by the subdivision covenants, is without merit.

It is axiomatic that a valid property restriction is enforceable by injunctive relief, including a mandatory injunction directing removal of the objectionable structure. Chapman v. Fisher, 370 So.2d 162 (La.App. 3rd Cir. 1979). Otherwise, the purpose of a subdivision restriction would be completely thwarted every time the violation became an accomplished fact. We find, then, that the action of the trial judge in granting a mandatory injunction ordering removal of the mobile home was appropriate under these circumstances.

For these reasons we affirm the judgment of the district court, at appellants’ cost.

      . There was evidence in the record that on two prior occasions Killins had removed house trailers or mobile homes from this same lot in response to complaints from other subdivision property owners.

      . Prior to this addition, the living area of the mobile home was less than the 1150 square feet prescribed as a minimum requirement by Article 2 of the property restrictions.