author: WATKINS, Judge:

text:
    Allen JUDSON, et al. v. NORTHSIDE MOTOR EXCHANGE, INC., et al.
    No. 14133.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1981.
    Rehearing Denied Aug. 5, 1981.
    Vince Dunn, Jr., Baton Rouge, for plaintiffs-appellants Allen Judson and Ronald Judson.
    Kenneth E. Barnette, Baton Rouge, for defendants-appellees Northside Motor Exchange, Inc., Hanover Ins. Companies and Roadrunner Motor Rebuilding Co.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge:

This is an action for personal injuries arising out of a truck-car collision involving a truck driven by Noah Sellers and a car driven by Allen Judson, plaintiff, in which Ronald Judson, plaintiff, was a passenger. The original petition was filed January 3, 1979, naming Northside Motor Exchange, Inc., a corporation, Sellers’ alleged employer, and The Hanover Insurance Companies, its alleged insurer, as defendants. Trial on the merits was held on June 17, 1980. On that date plaintiffs did not establish that Northside was the employer of Sellers or that Hanover was Northside’s insurer. The trial was held open for the limited purpose of permitting plaintiffs to establish that Northside was Sellers’ employer. On June 27, 1980, plaintiffs sought to amend their petition to name Sellers as an additional defendant. The order permitting the filing of the pleading was denied, as the trial was in progress.

On July 17, 1980, plaintiffs sought again to amend their petition, alleging that Roadrunner Motor Rebuilding Company, a corporation which it alleged was owned by the same individual as Northside, was Sellers’ employer. That amended petition was ordered filed. On July 31, 1980, Northside, Hanover, and (in the body of the pleading) Roadrunner filed a motion to strike or alternatively an exception of prescription as to the amended petition.

The trial on the merits was concluded on August 22, 1980. At that time, it was shown that Roadrunner, not Northside, was Sellers’ employer. It was further shown that James Adams owns a controlling interest in both Northside and Roadrunner, that the two corporations have separate places of business, and separate equipment and employees, and perform different kinds of work. No evidence was introduced showing that either Northside or Roadrunner was insured by Hanover.

The trial court signed judgment on July 28, 1980, in favor of Northside and Hanover, dismissing them as defendants. On August 25,1980, the trial court signed judgment granting the motion to strike and dismissing Roadrunner, with prejudice. Plaintiffs appealed both the judgment dismissing Northside and Hanover and the judgment dismissing Roadrunner. However, its contentions on appeal are restricted to the judgment dismissing Roadrunner.

The motion to strike is regulated by LSA-C.C.P. art. 964. That article, quoted in full, reads as follows:

“The Court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter. The motion of a party shall be filed within ten days after service of the pleading upon mover, except that a defendant may move to strike any matter from the petition at any time within fifteen days of the service.”

We think it clear the motion to strike was properly granted. The trial was left open so that plaintiff could establish that North-side was defendant’s employer. Instead, plaintiff proved that he was not. The amended petition attempted to join a new party defendant, as to which the case would have to be re-tried, since it was not a party to the case when the trial took place.

It is true that Article 1154 of the Code of Civil Procedure permits liberal amendment of pleadings, and that, under certain circumstances, parties may be joined or substituted, even after trial. Collins v. Richland Aviation Service, Inc., 225 So.2d 241 (La. App. 2d Cir. 1969).

However, in this case, which had been fully tried by both sides, and which was left open for a limited purpose only, an attempt to add a new party defendant at that time comes too late, and is not material to the issues already tried in the case. If plaintiff has any rights against this new defendant, they should be asserted in a separate proceeding and the instant litigation brought to an end.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Irving G. KENNEDY, Jr., M. D., et al, Plaintiffs-Appellees, v. Robert E. POWELL et al, Defendants-Appellants.
    No. 14537.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.
    Thomas V. Gardner, Jr., Asst. City Atty., Monroe, for defendants-appellants Robert E. Powell, et al.
    Grant, Scott, Dean & Kneipp by Donald L. Kneipp, Monroe, for defendants-appellants Benjamin M. Peters, Travis Oliver, III, and Gerald W. Merritt.
    Hudson, Potts & Bernstein by James A. Rountree, Monroe, for defendants-appellants Brentwood Apartments Partnership and Brockman Builders, Inc.
    Bruscato & Loomis by Anthony J. Brus-cato, Monroe, for plaintiffs-appellees.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

The mayor and certain city council members of the city of Monroe and several real estate developers, named as co-defendants, have appealed the judgment of the district court voiding an agreement by the city of Monroe to provide water and sewerage services to property outside the city and casting the city for $4,000 in attorney fees based on a finding that La.R.S. 42:4.1 et seq. (the open meeting law) had been violated.

We are of the opinion that plaintiffs’ suit was not filed within the sixty-day period prescribed by La.R.S. 42:9, and therefore reverse the judgment appealed.

Plaintiffs, who are residents of the Bon Air section on the northeast perimeter of the city of Monroe, commenced this action on October 17, 1980, against the mayor and five council members to void the agreements whereby the city agreed to allow the developers of an apartment complex and a proposed commercial development on a sixteen acre tract adjacent to the city along Bon Air Drive to connect into the city water and sewerage system upon completion of the projects. Defendants, in addition to the mayor and city councilmen, are Brentwood Apartments Partnership; Brockman Builders, Inc.; Benjamin M. Peters; Gerald M. Merritt; and Travis Oliver, III.

The subject commitments stem from the efforts of Jamar Adcock, one of the Brent-wood Apartment Partners, to locate a suitable tract upon which to develop a federally funded apartment project under the Department of Housing and Urban Development regulations. The subject tract was located by a local realtor, Jack Fluck, who made a written inquiry in April 1979 to the city of Monroe as to availability of water and sewerage from the city. At this point in time Monroe operated under the commission form of government with a mayor and two commissioners who had both legislative and administrative functions. By letter dated April 12, 1979, signed by then Mayor Durward Cann, Commissioners Harlan Prestridge and Luther Harper, Fluck was

advised that the city would furnish the utilities requested provided the owners petitioned for annexation. Upon receipt of this information, Adcock purchased the sixteen acre tract. Shortly thereafter Adcock sold eight acres of the tract to Benjamin M. Peters, Gerald M. Merritt, and Travis Oliver, III, referred to as the Peters Group herein. Peters desired further assurance that his portion of the property would be allowed to utilize the subject city utilities and he directed a letter on October 18, 1979, to the city council requesting confirmation. Mayor Robert Powell, who succeeded Mayor Cann, replied to Peters by letter of October 19, 1979, assuring Peters he would have no difficulty and advising him his letter had been referred to the acting city planning director. Although the city had no zoning authority over the tract in question since it was outside the city, Mayor Powell and Commissioner Harper advised Peters in a second letter dated October 19, 1979, that any planned development should be in compliance with all code requirements since this would be an important consideration in any contemplated annexation. This letter also assured Peters the present officials would continue to honor the commitments made by the former administration.

In furtherance of his plans to develop the HUD apartment project on the other portion of the tract still owned by him, Adcock prepared a letter dated June 24, 1980, which expanded the prior general commitment by the city and set forth in detail certain costs of installation of water mains which would be prorated between the city and the developer, the obligation of the city to take over maintenance and operating cost of the sewerage lift station after installation by the developer, and the rights of the city to acquire ownership of these utilities after annexation. This letter was signed by Brentwood Apartments, Mayor Powell, and the other city commissioners, Harlan Pres-tridge and Luther T. Harper.

Plaintiffs contend the agreements made in the aforementioned six letters between the city, the Peters Group, and the Brent-wood Apartment Partnership, constitute actions which are null and void because they were done in contravention of the prohibitory provisions of the open meeting law (La. R.S. 42:4.1 et seq.).

By peremptory exception defendants contended that plaintiffs had no cause of action since the right to enforce the voidability provisions of the statute must be brought within sixty days of the action complained of, and that this requirement of the statute constitutes a period of peremption. The trial court found the sixty-day period of the statute was one of prescription, not peremption, and that the time did not begin to run until plaintiffs had knowledge of the action. The court overruled the exceptions on finding that plaintiffs did not become aware of the action until after the Brentwood developer began site preparation in September 1980.

The case was then tried on the merits with the thrust of plaintiffs’ evidence being directed to establish that the commitments made to both developers by the city council relating to sewerage services constituted an extension of the city sewerage system which under the law required an ordinance of the city council. Plaintiffs further sought to show that the activities of the mayor and commissioners in executing the letter agreements constituted a “meeting” as this term is defined in the statute (“the convening of a quorum of a public body to deliberate or act on a matter over which the public body as an entity has supervision, control, jurisdiction, or advisory power”).

Defendants, on the other hand, took the position that the actions taken by the city officials regarding the sewerage services were purely administrative actions under the powers which had been delegated to the commissioner of finance and utilities, and that no meeting of the council as proscribed by the open meeting statute had taken place. Defendants further took the position that the subject sewerage agreement was merely a proposed connection into the existing sewerage system and not an extension of the city’s sewerage system which would require the adoption of an ordinance.

The trial court found from the evidence presented and the stipulations made at trial that plaintiffs had shown that the letters in question culminated in two agreements between the city council of Monroe and the defendant developers — one with the Brentwood developers in accord with the June 20, 1980, letter and the Peters Group in accord with the terms set forth in the October 1979 letter. The court found that in both instances the city had made commitments which required legislative action by the council which could only be taken at a properly convened and open meeting of that public body. Therefore the court found that the actions of the mayor and commissioners in executing the letter agreements in the manner described violated the open meeting law and that equitable estoppel as pleaded by defendants would not apply under these circumstances. The court voided the subject agreements, but denied plaintiffs the injunctive relief sought on a finding that they had not shown sufficient irreparable injury to entitle them to that remedy.

Subsequent to the rendition of judgment on December 1, 1980, the Monroe City Council passed an ordinance authorizing the extension of water and sewerage service to the tract in question. On this basis plaintiffs filed a motion to dismiss the appeal as now being moot. Since the judgment ren-dered awarded plaintiffs attorney fees, the appeal cannot be considered moot.

We do not find it necessary to express an opinion on the correctness of the trial judge’s conclusion that the circumstances presented violated the open meeting law as we find the right of plaintiffs to bring such action under the voidability section of the statute no longer existed at the time of the filing of this suit.

La.R.S. 42:9 provides as follows:

Any action taken in violation of R.S. 42:4.1 through R.S. 42:8 shall be voidable by a court of competent jurisdiction. A suit to void any action must be commenced within sixty days of the action.

Plaintiffs’ suit was filed more than sixty days following the date of any of the letter agreements which they seek to have voided by the court. They alleged in their petition and sought to prove in the trial court that they did not become aware of the agreements more than sixty days before the filing of suit and contend the time limitation for commencing their action under La.R.S. 42:9 did not begin to run until they acquired this knowledge.

The resolution of the issue depends on whether the period provided in the statute is one of prescription or peremption. The jurisprudence of this state has long recognized the difference in these two principles of law. In the early case of Guillory v. Avoyelles Ry. Col., 104 La. 11, 28 So. 899 (La.1900), the Supreme Court defined per-emption as follows:

. . . When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but it is one of per-emption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the caus e of action itself. That is to say, after the limit of time expires the cause of action no longer exists: it is lost. . . .

In another early case, Belden v. Sherburne, 27 La.App. 305 (La.1875), the court observed:

. . . the plaintiff’s position would be entitled to great weight if the question was within the discretion or equity powers of the Court, or if the law was ambiguous; but there is no room for construction here; the statute in precise terms limits the period within which such suit shall be instituted; and the Court must administer the law as it is, however unwise some of its provisions may appear.

Later cases following the rationale of Guillory are: Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971) — (holding that La.R.S. 23:1209 of the workmen’s compensation statute is a per-emptive period); McClendon v. State, 357 So.2d 1218 (La.App. 1st Cir. 1978) — (holding that the survival action provided in La.C.C. Art. 2315 is peremptive); Pounds v. Schori, 377 So.2d 1195 (La.1979) — (holding that the period provided for bringing the action for disavowal under prior provisions of La.C.C. Art. 191 was peremptive).

The Supreme Court reviewed the prior jurisprudence and discussed the rules for determining whether a period for instituting an action is peremptive or prescriptive in Guidry v. Theriot, 377 So.2d 319 (La. 1979), as follows:

Our jurisprudence has indicated that the test for determining whether a period for instituting an action is peremptive or prescriptive, is whether the statute creating the right also stipulates the time in which it must be exercised. See, for example, Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899 (1900); Matthews v. Kansas City Southern Ry. Co., 120 So. 907 (La.App. 2d Cir. 1929); overruled by Mitchell v. Sklar, 196 So. 392 (La.App. 2d Cir. 1940).
In Pounds v. Schori, 377 So.2d 1195, rendered this day, we addressed the question thus presented and concluded that specification of the time limit for bringing an action in the same statute that created the right of action, is not the sole test of peremption as distinguished from prescription. In Pounds, above, we held that peremption, as differentiated from prescription, is a matter to be determined by legislative intent revealed by the statute in its entirety, including the purpose' sought to be achieved.
We additionally noted in Pounds, above, that public policy may also influence the determination of whether a statute is intended to be peremptive rather than prescriptive. We found in Pounds, above, impelling reasons of public policy why the statute therein involved should be held peremptive....

“. .. Peremption is but a form of prescription, a species thereof, but with the characteristic that it does not admit of interruption or suspension. . . . ” Flowers, Inc. v. Rausch, 364 So.2d 928 (La.1978). Also see Comment, “Legal Rights and The Passage of Time,” 41 La.L.Rev. 220 (1980), for a well reasoned and scholarly discussion of prescription and peremption.

When the legislature amended the open meeting law in 1979 to provide for the first time the right to an aggrieved party to have the actions of a public body voided as provided in La.R.S. 42:9, it saw fit to limit this right to a short period of sixty days to insure a degree of certainty in the actions of the public body.

Although the preamble to the open meeting statute declares that it should be liberally interpreted to carry out its purpose, we do not believe it to be in the public interest to construe the period for filing an action provided in La.R.S. 42:9 as prescriptive and subject to suspension.

Plaintiffs argue, and the trial court so held, that to apply peremption would allow public officials to frustrate the purpose of the statute by concealing action taken in secret for a period of sixty days.

There is clearly no evidence of any intent or attempt by anyone in the instant case to conceal from the public the agreements which are the subject of this suit.

We think the legislature felt the need to create certainty in the affairs of a governmental body such as a municipality outweighed any danger that public officials would intentionally, or fraudulently attempt to circumvent the rights afforded the public under the open meeting statute.

This is the -most logical reason why the legislature provided a restrictive period on the right to sue under the voidability provision of La.R.S. 42:9 and did not place any such restriction on the other remedies such as mandamus, injunction, or declaratory judgment under La.R.S. 42:11. These remedies, as well as other laws in effect prior to the adoption of the open meeting statute would continue to afford the public protection against ultra vires or illegal actions of public bodies.

To accept the premise that the right to sue for voidability is suspended until such time as an aggrieved party has knowledge of the action taken could lead to a state of extreme uncertainty in the administration of public affairs. It should be noted that Section 10 of the statute permits “any person . . . who has reason to believe that the provisions of R.S. 42:4.1 through R.S. 42:8 have been violated” to institute enforcement proceedings. This unlimited eligibility for prospective plaintiffs would lead to an even greater degree of uncertainty and difficulty in the determination of when a complainant should have had knowledge of the action to begin a period of prescription.

We conclude the sixty-day period provided in La.R.S. 42:9 is one of peremption and therefore plaintiffs’ action was untimely and the trial court was in error in not sustaining the exception of no cause of action and peremption.

Defendants requested an award of reasonable attorney fees in the event plaintiffs’ action was found to be frivolous as provided by Section 11 of the statute.

Plaintiffs’ suit was not frivolous as they presented sufficient evidence on the merits to obtain judgment in their favor in the trial court. The question of peremption on which this court based its discretion is certainly an arguable issue. Therefore, defendants’ request for attorney fees should also be denied.

For the foregoing reasons, the judgment appealed is reversed and plaintiffs’ demands against all defendants are dismissed. All costs of these proceedings including this appeal are assessed to plaintiffs.

      . Counsel for the city and the Brentwood Partnership stipulated at trial that the letters in question were intended to have the following legal effect:
      (1) the City agreed to provide water and sewerage services to the property;
      (2) the developer would pay the regular charges for these services;
      (3) the developer or owner was obligated to apply for annexation of the property into the City and to offer ownership of the lift station to the City and to offer 15 foot easements on the sewer lines and water line loop to the City;
      (4) the City had the option to elect whether to accept the annexation, the lift station and/or the easement; and
      (5) the City’s obligation to maintain and operate the lift station and service the lines was conditioned upon annexation or acceptance of the lift station and service easements.

      . The record shows Dr. Irving Kennedy, one of the plaintiffs who spearheaded the opposition in the Bon Air neighborhood to the low income housing project, first learned of its existence when the contractor began work which was within sixty days of filing the action. The initial proposal to start such a project had been made public however at a meeting of the Oua-chita Council of Governments held on August 27, 1979, and a newspaper account of this meeting which discussed the proposed project was carried in the Morning World on August 28, 1979.


author: HALL, Judge.

text:
    Mack Cook McCULLIN, Plaintiff-Appellee, v. J. Elton SUMNERS, Defendant-Appellant.
    No. 14539.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.

      Madison, Files, Garrett, Brandon & Ha-maker by J. Lawrence Mullens, Monroe, for plaintiff-appellee.
    Rabun & Post by Armand F. Rabun, Farmerville, for defendant-appellant.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiff filed suit against the defendant to have the boundary between their contiguous estates judicially established. The disputed property lies in the Southwest Quarter of the Northeast Quarter of Section 9, Township 23 North, Range 2 West, Union Parish. The property descriptions in both plaintiff’s and defendant’s deeds rely on the location of a public road running through Section 9. The trial court determined that the public road referred to in the deeds lay to the east of present Louisiana Highway 558. Plaintiff, however, did not assert his ownership of property to the east of the present highway. Therefore, the trial court found the boundary between plaintiff’s and defendant’s property to be the center line of Highway 558 as that highway is located on the plat prepared by plaintiff’s surveyor in 1975. Defendant appeals and we affirm.

The deeds filed in evidence by the parties indicate that W. P. Seale owned the entirety of the Southwest Quarter of the Northeast Quarter of Section 9. After Seale’s death, his heirs sold to A. J. Hunt a tract of land including “all on East side of the public Road in SW Vi of NE V\ Sec 9 Twp 23 N R 2 West.” Hunt’s deed is dated May 1, 1920. By deed dated May 16, 1953, defendant and his wife acquired from Hunt a tract of land including “all of SW Vi of NE Vi of See. 9 North and East of Road, all in Twp. 23 North, Range 2 West.”

Also on May 1, 1920, C. E. Upshaw, plaintiff’s ancestor in title, acquired from the heirs of W. P. Seale a tract of land including “all on West side of Public Road in SW Vi of NE Vi Section 9 Twp. 23 N R. 2 West.” In 1967, C. E. Upshaw sold to Coy Edward Upshaw a tract of land bearing this description: “All of SW Vi of NE Vi lying West of Public Road as said road ran on August 26, 1918, Section 9, Township 23 North, Range 2 West . . . . ” Plaintiff acquired this property in 1975 by deed bearing this same property description. August 26, 1918 is the date of the deed by which C. E. Upshaw purportedly acquired from two of the several heirs of W. P. Seale the portion of the Southwest Quarter of the Northeast Quarter lying west of the public road. Upshaw subsequently secured a deed in which all the heirs of W. P. Seale joined in selling him the property.

Plaintiff alleged in his petition that the boundary between his property and that of the defendant, namely the public road as it ran August 26, 1918, is difficult to determine and that the exact location of the road is disputed by the parties. Defendant filed an exception of no cause of action based on LSA-C.C. Art. 828 which reads:

“When two estates are separated by a public road or by a water course, which serves as a common limit, the action of boundary cannot be sustained in relation to them, unless the road or water course has experienced some change in its situation.”

Defendant argues that plaintiff’s petition failed to allege a change in location of the road separating their properties. The trial court overruled defendant’s exception and defendant assigns this as error on appeal.

The trial court correctly overruled defendant’s exception of no cause of action. Article 828, now repealed, deals with a situation in which two tracts of land are not contiguous because they are separated by a public road, ownership of which is in the public. The public road in this case is a mere servitude crossing privately owned land. In 1931, C. E. Upshaw granted to the state a right-of-way servitude 80 feet wide on which was located State Highway Route No. 440 now known as Highway 558. Because the properties of plaintiff and defendant are not separated by a public road, former Article 828 is inapplicable and defendant’s exception has no merit.

Having concluded that the petition set forth a cause of action under now repealed Article 828, it is unnecessary to consider defendant’s further contention that this action is governed by the repealed articles and not the replacement articles. No other substantive changes in the law which would affect the result in this boundary action are pointed out.

In addition to the above, defendant makes these assignments of error: (1) the trial court erred in failing to consider the acreage calls recited in the deeds of the parties and their ancestors in title and in assuming that these quantity calls were due to repeating what was an erroneous acreage recitation in the original instrument wherein the acreage content is first stated; (2) the trial court erred in concluding that plaintiff had established by a preponderance of the evidence that the location of the public road referred to in the deeds was to the east of present Highway 558; and (3) the trial court erred in ordering defendant to pay all costs of the proceedings.

The trial court determined that the issue to be decided in this action is the location of the public road referred to in the deeds. Plaintiff’s witnesses testified that the old public road lay east of and parallel to present Highway 558. Defendant’s witnesses generally testified that the old road lay east of and parallel to Highway 558 through part of the section where plaintiff’s and defendant’s property lies, but that as the road ran south, it crossed over the present highway and veered directly southward, making an approximate 45 degree angle between the old public road and the present highway. Defendant argues that the acreage content recited in the deeds can be reconciled only by locating the road according to the testimony of his witnesses and the survey prepared for him by F. M. Methvin Associates.

Defendant cites the following language from Arnaud v. Barber, 225 So.2d 656 (La.App. 3d Cir. 1969):

“The order of importance of, or the preference which should be given to, the various calls which may be included in a description are: (1) Natural monuments; (2) artificial monuments; (3) distances; (4) courses; and (5) quantity. The controlling consideration in any case, however, is the intention of the party or parties. Sagrera v. Mouton, 180 So.2d 775 (La.App. 3d Cir. 1965); Dufrene v. Bernstein, 190 La. 66, 181 So. 859 (1938).
“A call in a description which specifies the acreage or quantity of the land therein being described is the weakest of all calls, and it must yield to all other calls which give monuments, distances or courses. When the description does not contain a call of monuments, distances or courses, however, or where all of these preferred calls fail for some reason, then the call which specifies only acreage or quantity must be given effect and it must control. LSA-C.C. art. 849; Meyer v. Comegys, 147 La. 851, 86 So. 307 (1920); Sagrera v. Mouton, supra.

Defendant argues that none of the first four calls are present in this case, therefore, the trial court should have given consideration to the quantity calls in the deeds. This argument is without merit. Artificial monuments take precedence over quantity calls and in this case we are dealing with an artificial monument, i. e., the old public road. The trial court was presented with sufficient evidence to determine the location of the public road and the quantity call must yield to the call of monuments.

Defendant contends the trial court erred in its factual determination regarding the location of the public road referred to in the deeds. The determination of a disputed boundary is a question of fact which should not be disturbed on appeal in the absence of manifest error. See Leblanc v. Laborde, 368 So.2d 1126 (La.App. 3d Cir. 1979); Gelpi v. Shall, 355 So.2d 1014 (La.App. 4th Cir. 1978). In this case, the trial court found that there was an old road which lay to the west of Highway 558 as contended by defendant, but that this road was not the public road referred to in the deeds; rather, it was a privately maintained wagon trail. After reviewing the testimony, which is somewhat conflicting, we cannot say that this factual determination was erroneous. There is sufficient evidence to support the trial court’s finding that the old public road lay east of and parallel to present Highway 558.

Regarding the issue of costs, defendant contends that the trial court should have divided the costs of the proceedings below between plaintiff and defendant. Defendant’s argument is without merit. The trial court has the discretion to cast either party with costs and did not abuse its discretion in this instance in taxing costs to the defendant who refused to amicably agree to the fixing of the boundary. See LSA-C.C. Art. 790; LSA-C.C.P. Art. 1920; and Authement v. Theriot, 292 So.2d 319 (La.App. 1st Cir. 1974).

For the foregoing reasons and for the reasons given by the trial court in its written opinion, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the defendant-appellant.

Affirmed.

      . Plaintiff filed suit on October 20, 1977. Defendant’s exception was argued and decided on December 19, 1977. By Act 170, § 1 of 1977, Title V of Book II of the Civil Code of 1870, “Of Fixing the Limits”, and “Of Surveying of Lands”, consisting of Articles 823 to 855, was repealed effective January 1, 1978. The subject matter of former Title V is now contained in Title VI, “Boundaries”, consisting of Articles 784 to 796, enacted by Act 169, § 1 of 1977, effective January 1, 1978.
      Comment (d) under new Article 788 states that former Article 828 has not been reproduced as unnecessary.


author: JASPER E. JONES, Judge.

text:
    Jimmy L. TAFT, et al., Plaintiffs-Appellants, v. CITY OF BOSSIER CITY, Defendant-Appellee.
    No. 14540.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      J. Stacey Freeman, Shreveport, for plaintiffs-appellants.
    Harvey P. Delaune, Bossier City, for defendant-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Appellants are 76 Bossier City firemen who sued the City of Bossier, the Mayor of Bossier City, and the Chief of the Bossier City Fire Department, seeking payment for all hours worked by them in excess of 40 hours per week subsequent to March 11, 1979. They assert their cause of action for payment of overtime wages of one and one-half times their hourly rate under the provisions of Ordinance # 120 of Bossier City. This ordinance contains a provision providing for payment of authorized overtime in excess of 40 hours in the amount of one and one-half times the regular hourly rate for certain grades of city employees provided the cost of such overtime compensation does not exceed funds available in the operating budgets of the departments concerned. Appellants also assert they were entitled to overtime compensation under the provisions of LSA-R.S. 33:1994(A) for all hours worked by them in excess of 60 hours per week. Fourteen of the appellants alleged they were operators of fire alarm systems and they were entitled to overtime compensation under the provisions of LSA-R.S. 33:1994(B) which provided that they shall work a maximum of 42 hours per week.

Defendants filed separate exceptions of no cause of action directed at plaintiffs’ claims asserted under the city ordinance and under the state statutes. The trial judge overruled the exceptions of no cause of action directed at the relief sought by plaintiffs under the provisions of the state statutes and sustained the defendants’ exception of no cause of action directed at the relief plaintiffs sought under the provisions of City Ordinance # 120.

Plaintiffs appeal the judgment sustaining defendants’ exception of no cause of action under the provisions of City Ordinance # 120.

Plaintiffs’ suit for payment of overtime hours worked by them consists of one cause of action. They make demands for relief under a city ordinance and under state statutes. They are therefore asserting two theories upon which all or part of the relief sought can be granted.

Defendants’ procedure of filing separate exceptions of no cause of action each directed at a different theory upon which plaintiffs sought relief constitutes the filing of exceptions of partial no cause of action, and the judgment appealed from which sustained one of these exceptions of partial no cause of action is not authorized by our procedural law.

In the decision of Lindsay v. Treadaway, 138 So.2d 241 (La.App.4th Cir. 1962), the plaintiff sued for specific performance of a real estate contract and in the alternative sought a return of double the amount of his deposit placed in connection with the real estate contract, and the trial court sustained an exception of no cause of action directed to the demand for specific performance but reserved to plaintiff the right to seek a return of the deposit. The court reversed the trial court’s judgment sustaining the exception of no cause of action directed at the claim for specific performance relying on the decision of Bailey v. Texas Pacific Coal & Oil Company, 134 So.2d 339 (La.App.3d Cir. 1961). The court stated:

“This exact situation was presented in the case of Bailey v. Texas Pacific Coal & Oil Company, La.App., 134 So.2d 339, where the plaintiff demanded (1) to be decreed owner of overriding royalty interest in mineral leases, and (2) that he obtain judgment for a sum of money alleged to be due him as a brokerage fee pertaining to some of the same leases. In that case the trial court maintained the exceptions as to demand (1) and overruled them as to demand (2). In that case as here, plaintiff’s demands are based on one incident and upon one set of facts and the same evidence for the most part will be required to support either or both demands. From a very concise opinion by Judge Hood of the Court of Appeal, Third Circuit, we quote the following:
‘We think the jurisprudence of this State has been established to the effect that a suit will not be dismissed on exceptions of no right or no cause of action where the allegations of fact contained in the petition adequately set forth a right and a cause of action as to any part of plaintiff’s demands. Harwood Oil & Mining Co. v. Black, 240 La. 641, 124 So.2d 764; United Mine Workers of America v. Arkansas Oak Flooring Co., 238 La. 108, 113 So.2d 899; Acme Stores v. Better Business Bureau, 225 La. 824, 74 So.2d 43; Schackai v. Messa, 223 La. 626, 66 So.2d 573; Ingersoll Corporation v. Rogers, 217 La. 79, 46 So.2d 45; Interim Television Corporation v. Cappel, La.App. 2 Cir., 94 So.2d 539; C. W. Greeson Co. v. Harnischfeger Corp., 219 La. 1006, 54 So.3d 528; Keller v. Thompson, La.App. 2 Cir., 121 So.2d 575; Smith v. Kennon et al, 188 La. 101, 175 So. 763; Adkins’ Heirs v. Crawford, Jenkins and Booth, 200 La. 561, 8 So.2d 539; Waterworks District No. 3 v. City of Alexandria, 231 La. 908, 93 So.2d 211.
‘We are aware of the fact that there is also a line of jurisprudence which holds that where two separate and distinct demands are set up in the same suit, an exception of no cause or right of action may lie to eliminate the one while the other is maintained. Succession of Curtis, 156 La. 243, 100 So. 412 (criticized by Supreme Court in Reeves v. Barbe, 200 La. 1073, 9 So.2d 426); Succession of Nelson, 163 La. 458, 112 So. 298; Trussell v. Land, La.App. 2 Cir., 19 La.App. 124, 138 So. 910; Saint v. Meraux, 163 La. 242, 111 So. 691; and Allison v. Aetna Life Ins. Co., La.App. 2 Cir., 158 So. 389. See also 19 Tulane Law Review, 17, 31.
‘In the instant suit both of plaintiff’s demands are based on one incident, or upon one set of facts, and it appears to us that the same evidence would be required to support either or both of those demands. We think, therefore, that the petition does not set out two separate and distinct demands, but rather it sets out one cause of action on which plaintiff bases his demand for two separate types of relief. Under those circumstances we are convinced that exceptions of no cause and no right of action may not be employed to eliminate one demand while the other is maintained. For that reason, we feel that the general rule hereinabove first set out must be applied, and since the petition adequately sets forth a right and cause of action as to a part of plaintiff’s demands, the exceptions of no right or cause of action must be overruled.’ ” Id. 242-243.

In the decision of International Harvester Credit Corp. v. McGill, 281 So.2d 795 (La. App.3d Cir. 1973), the court reversed a trial court judgment sustaining an exception to the third demand asserted in a third party claim based upon one cause of action. In this case the third party asserted the following three demands:

“1) the amount that he might be cast in judgment on the $103,065.49 note executed by McGill for the purchase of the farm tractors and implements,
2) $35,000 allegedly spent for repairs to the tractors and implements, and
3) $248,000 in damages resulting from McGill’s failure to make a crop due to the allegedly defective equipment.” Id. at 796.

All of the demands for relief were related to defects in farm machinery purchased by the third party plaintiff. The court there stated:

“The applicable rule is that exceptions of no cause of action are to be overruled if any part of the petition can stand against the exception.” Id. at 796.

Appellants’ demands under the city ordinance and the state statutes are all based upon the alleged number of hours they worked as firemen for the city in any one week. Plaintiffs must prove they worked 40 plus hours per week at the outset to assert their city ordinance claim and they must prove they worked an additional 20 plus hours to assert their demands under LSA — R.S. 33:1994(A). The fourteen fire alarm operators must prove they worked 42 plus hours to assert their demand under LSA-R.S. 33:1994(B). The number of hours worked in any one week by each plaintiff is the basis for recovery under the city ordinance and the state statutes and it is obvious that plaintiffs are asserting plural demands based upon a single cause of action.

In Walker v. Western-Southern Life Ins. Co., 361 So.2d 892 (La.App.2d Cir. 1978), plaintiff sought damages from the defendant, who was both his employer and his disability income insurer, for anticipated disability income and for mental anguish because of defendant’s failure to pay the disability income under the policy contract. The trial court sustained an exception of no cause of action directed at the claim for mental anguish damages for breach of contract. We reversed the judgment sustaining the exception of partial no cause of action, stating:

“The peremptory exception of no cause of action tests the legal sufficiency of the petition. For the purpose of determining the validity of the exception, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Haskins v. Clary, 346 So.2d 193 (La.1977) and cases cited therein.
Our Code of Civil Procedure does not provide for an exception of partial no cause of action. The effect of sustaining a peremptory exception is that the action shall be dismissed, not that part of the action be dismissed. La.C.C.P. art. 934. Since defendant’s exception is leveled at only the allegations of and prayer for nonpecuniary damages, not the sufficiency of plaintiff’s demand for breach of contract, the exception should have been overruled.
Defendant’s use of the exception of no cause of action to strike an element of claimed damages represents an improper use of the procedural vehicle and illustrates the problem of piecemeal litigation which can result from the misuse of provisions intended to streamline our civil procedure.” Id. at 894.

The defendants here used an improper procedural device to question plaintiffs’ demands under the city ordinance. An appropriate procedural approach to question the demands asserted under the city ordinance may have been a motion to strike provided for in LSA-C.C.P. art. 964. See Lanham v. Woodward, Wight & Co., Ltd., 386 So.2d 131 (La.App.3d Cir. 1980). Another procedural device that defendants may have used to question plaintiffs’ city ordinance claim for relief would be a motion for summary judgment which may be directed at all or part of the relief prayed for. LSA-C.C.P. art. 966 . See also Smith v. Hanover Insurance Company, 363 So.2d 719 (La.App.2d Cir. 1978).

For the reasons assigned, the judgment sustaining the exception of partial no cause of action is set aside and the case is remanded for further proceedings. This decision shall not be construed as an expression by this court of any opinion as to the validity of appellants’ claims asserted under the provisions of the city ordinance. Costs will be assessed when the trial court renders judgment on the merits.

      . LSA-R.S. 33:1994(A) — The maximum hours of work required of firemen covered by this Sub-part in cities having a population of thirteen thousand or more and that of all parish and fire protection district paid firemen in any calendar week shall be sixty hours. However, in case of emergencies, they may be required to work in excess of the maximum hours. For each hour so worked in excess of sixty hours in any calendar week a fireman shall be paid at the rate of one and one-half times his usual salary, to be determined by reducing his average monthly salary to an hourly scale.

      . LSA-R.S. 33:1994(B) — The maximum hours of work required by persons employed or engaged full time by municipalities or municipal fire departments or by parish or parish fire departments or fire protection districts as operators of fire alarm systems in any one calendar week shall be forty-two hours.

      . LSA-C.C.P. art. 964 — The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter. The motion of a party shall be filed within ten days after service of the pleading upon mover, except that a defendant may move to strike any matter from the petition at any time within fifteen days of the service.

      . LSA-C.C.P. art. 966 — The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.


text:
    Mrs. Nina S. HARDAWAY, et al., Plaintiff-Appellee, v. Rodney R. MARTIN, et al., Defendants-Appellants.
    No. 14541.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      Campbell, Campbell & Johnson by John T. Campbell, Minden, for plaintiff-appellee.
    Fish, Montgomery & Robinson by Roy M. Fish, Springhill, for defendants-appellants.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

From a judgment in favor of the curatrix of an interdict recognizing the interdict as the sole owner of a 60-acre tract of land, the defendants who claim an undivided % interest in the tract appealed.

On appeal, defendants allege the trial court erred in (1) failing to hold that the interdict was estopped from denying the defendants’ ownership because of numerous declarations in various documents and judicial proceedings whereby the interdict claimed only a fractional interest in the land; (2) failing to hold defendants were entitled to rely on the law of registry; and (3) failing to dismiss the action because the undercurator did not join or concur in the bringing of the suit.

Finding that each issue was considered and correctly decided by the district court, we affirm.

The district court’s written reasons for judgment concisely set forth the pertinent facts:

“This suit is brought by the curatrix of the interdict, Elbert Hudson, for a declaratory judgment asking that he be recognized as the owner of sixty acres in Webster Parish. The interdict’s father, Henry Hudson, acquired the tract in question by deed dated November 23, 1900. That instrument did not give his marital status. Henry Hudson married Ever Bryant in 1902, and Elbert Hudson was the only child born to that marriage. Henry Hudson subsequently died, and his widow, Ever Bryant Hudson, contracted a second marriage to Phil Lindsey, to which marriage three children were born.

“In 1919 a tutorship was opened for the minor, Elbert Hudson, and his grandfather was appointed his tutor. The inventory in that tutorship indicated that Elbert Hudson owned a one-half interest in the property in question, along with an additional forty acres. Thereafter,, approval was given in the tutorship for the leasing for oil and gas of a portion of the property, and for the sale of a small portion of the property. At aíl times in the tutorship the property was treated as having been a part of the community between Henry Hudson and Ever Bryant Hudson.

“In 1952 a petition for interdiction of Elbert Hudson was filed on the basis that he was deaf and dumb and unable to communicate by sign language or in any other fashion. A judgment of interdiction was subsequently rendered, and the inventory filed in the interdiction proceedings indicated that Elbert Hudson owned one-half interest in the property in question. Subsequently, in the interdiction proceedings oil and gas leases were executed in 1952, 1973 and again in 1979. In the 1952 and 1973 petitions to lease the property, it was indicated that Elbert Hudson owned a half interest in the property in question.

“Ever Bryant Hudson died in 1958, and in 1959 one of her children, Florence Lindsey Hutchinson, opened her succession in Webster Parish and petitioned to have her four children placed in possession of her estate. These children were Elbert Hudson and the three children of the second marriage of Ever Bryant Hudson to Phil Lindsey. Again the inventory in that succession indicated that Ever Bryant Hudson owned an undivided one-half interest in the property in question. The affidavit of heirship in that succession indicated that the property was purchased during the marriage between Henry Hudson and Ever Bryant Hudson, but the date of their marriage was left blank. The ex parte judgment of possession in that succession recognized the four children as owners of one-fourth interest each in the one-half interest purported to have been owned by Ever Bryant Hudson.

“Subsequently, defendants, or their ancestors in title, acquired the purported one-eighth interest each from the three children of the second marriage of Ever Bryant Hudson Lindsey.

“The evidence shows that Elbert Hudson has lived on the property in question for most of the time since he was a small child. He first lived on the property with his grandfather, Jim Bryant, who was appointed his tutor. After Elbert Hudson was interdicted, his aunt, Lonie Grigsby, was appointed as his curatrix, and they lived on the property in question for many years. Since her death, Elbert Hudson has continued to live on the property most of the time, and still resided on the property at the trial of this suit. After the death of Lonie Grigsby, Mrs. Nina Hardaway was appointed curatrix for Elbert Hudson in the interdiction proceedings.”

The property was acquired by Henry Hudson prior to his marriage and was his separate property. Upon Henry Hudson’s death, the property was inherited in full ownership by his son, Elbert Hudson. Neither Elbert Hudson nor his legal representatives ever executed any instrument purporting to convey title to any interest in the property to Ever Bryant Hudson or her children by her second marriage. The property was not community property and Ever Bryant Hudson never owned an interest in the property, nor did her children acquire any interest in the property at her death. Defendants’ claim to title is necessarily based solely on estoppel.

Defendants’ estoppel argument must fail for several reasons. Mere silence and delay cannot cause a loss of title to property except by effect of the laws of prescription. Bishop v. Copeland, 222 La. 284, 62 So.2d 486 (1952); Dugas v. Powell, 207 La. 316, 21 So.2d 366 (1945); Long v. Chailan, 187 La. 507, 175 So. 42 (1937). Title to immovable property cannot be established by waiver or estoppel; one can never be divested of title except in the manner prescribed by law, such as by deed, inheritance, or prescription. Monk v. Monk, 243 La. 429, 144 So.2d 384 (1962). Although a minor or interdict may be bound by the duly authorized actions of his legal representatives, Jackson v. United Gas Public Service Co., 196 La. 1, 198 So. 633 (1940), the representatives of the interdict in this case were never authorized to disclaim or part with title to any part of the interdict’s interest in the land inherited by him from his father. Their treatment of the property as community property rather than as separate property of Henry Hudson, apparently through mistake of fact or law, cannot es-top the interdict from asserting title to the full interest owned by him. Further, the evidence establishes that defendants did not have the title to the property examined and did not rely on the documents of record in purchasing the property; rather, they relied on general hearsay information as to who owned the land. The element of detrimental reliance, essential to any estoppel plea, is lacking.

The two cases cited by defendants in which pleas of estoppel were successfully asserted are distinguishable. Harper v. Learned, 199 La. 398, 6 So.2d 326 (1942), was a boundary action and did not involve title. In Jackson v. United Gas Public Service Co., supra, the parties pleading estop-pel were parties (vendees) to the acts (deeds) and relied on the representations of the vendors or their duly authorized legal representatives in purchasing property for a valuable consideration. Here, neither the defendants nor those from whom they purported to acquire title were parties who contracted with the interdict or his legal representatives in any of the acts or proceedings, none of which were deeds purporting to convey title, relied on as supporting the plea of estoppel.

Likewise, the registry argument is without merit. The law of registry is not applicable when ownership of immovable property has become vested in the claimant by mere operation of law. Bishop v. Copeland, supra.

Defendants’ contention that the concurrence of the undercurator in the bringing of the suit by the curatrix was required was raised first in a motion and exception filed on the date of trial, long after defendants had answered. An objection to procedural capacity must be raised by dilatory exception, LSA-C.C.P. Art. 926, and is waived if not pleaded before answer. LSA-C.C.P. Art. 928. Further, a curatrix is charged with the duty of preserving and administering the interdict’s property and of representing him in all civil matters. LSA-C.C.P. Arts. 4262, 4554. The undercu-rator’s concurrence in a suit brought to protect the property interests of the interdict is not required. LSA-C.C.P. Art. 4271, relied on by defendants, requires the under-curator’s concurrence only in matters which require court approval, and is inapplicable here.

The judgment of the district court is affirmed at the cost of defendants — appellants.

Affirmed.


text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY, Plaintiff-Appellee, v. SOUTHERN EXCAVATION INC., Defendant-Appellant.
    No. 14542.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      Shadoin & Bleich by E. Joseph Bleich, Ruston, for defendant-appellant.
    Tucker, Martin, Holder, Jeter & Jackson by T. Haller Jackson, III, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Southern Excavation, the defendant herein, appeals an adverse judgment of the district court which decreed defendant negligent in damaging underground communications cable belonging to the plaintiff, South Central Bell Telephone Company. Our review of the record reveals no error by the trial court in its ruling, and for the reasons assigned the judgment is affirmed.

In June 1978 defendant was engaged in excavation work for the widening of North Gate Road in Bossier City, Louisiana. In accordance with general contract specifications approved by the state highway department, defendant was excavating for the purpose of installing storm drains near the intersection of North Gate Road and Patricia Drive. Before beginning their work and in accordance with customary operating procedures, defendant had coordinated its digging with plaintiff to avoid damaging the buried communications cable maintained by plaintiff. On such occasions the contractor would notify plaintiff and request that the cables be located and exposed to avoid damage. This enables the contractor to perform the work while actually seeing the cable. On the particular occasion which forms the subject of this lawsuit plaintiff had located and exposed the cables running approximately parallel to the proposed work area in order that defendant could physically pick up the cable and place their culverts underneath it. It was discovered however during the course of construction that the excavation to expose the cables was causing a drainage problem into the right-of-way. Following a meeting concerning this problem, defendant agreed to halt its work until plaintiff relocated the cable further from the right-of-way.

On June 6, 1978, after receiving notification of disrupted service, a repair technician employed by plaintiff discovered that one cable had been severed and two more damaged in the area south of Patricia on North Gate in the area where defendant had been digging. After repairing the cables, plaintiff sent a bill for the damage to defendant. Defendant disclaimed responsibility for the damaged cables and this lawsuit followed.

At the trial on the merits, the amount of damages was stipulated and defendant abandoned its reconventional demand. The trial court found defendant negligent in damaging the cables, which although underground, were located less than ten feet from a point where the cable was actually exposed.

Defendant specifies as error the finding of negligence on its part contending that it was performing its job according to contract specifications. Defendant contends that the damage to the cables was a result of plaintiff’s failure to relocate the cables properly. Defendant further contends plaintiff cannot recover part of the damages claimed because one of the severed cables belonged to AT&T.

The issue is whether under the facts presented, the trial court correctly found that defendant breached a duty owed to plaintiff which caused the damages sustained.

This court has stated that a person performing excavation work in an area where underground utility cables are located is under the positive duty to inform himself of the location of such cables in order to prevent damaging them. Southern Bell Telephone & Telegraph Company v. Ray Cook and Sons, Inc., 218 So.2d 404 (La.App. 2d Cir. 1969). See Annot., “Liability of One Excavating in Highway for Injury to Public Utility Cables, Conduits, or the Like,” 78 ALR 3d 987 (1976).

In the Ray Cook case, the defendant was found negligent in damaging underground cable with dirt moving machinery. In that case the defendant had been advised about the buried cable, its general location, and his attention called to one of the four warning signs placed in the vicinity.

In the instant case the defendant excavating company had worked in cooperation with plaintiff on the highway project in order that the location of the underground cables could be known at all times. The trial judge found that the cable had been unearthed up to a point less than ten feet from the point where the underground cable was severed. Defendant was the only contractor working in the area of the damage and Curtis Hatchett, job foreman for defendant conceded that it was his workmen who cut the cable. Although Hatchett testified that he assumed the cable had been relocated out of the way of his digging machines, he was fully aware of the exposed cable in the area (as close as twenty feet from the point of damage by his own testimony). In view of the fact that the cable was damaged five feet below the surface and less than ten feet from where the cable reentered the ground, defendant would necessarily have to know that there was cable buried nearby which was subject to damage from the backhoe. Regardless of whether defendant was digging in accordance with job specifications we hold that it was unreasonable to simply assume that the cable had been moved and to proceed in such close proximity to the point where the exposed cable reentered the ground.

The trial court’s finding that defendant’s failure to adequately inform itself of the location of plaintiff’s buried cable caused the damage incurred by plaintiff is supported by substantial evidence in the record and will not be disturbed.

Defendant’s contention that plaintiff has failed to establish that the damage to the cable was sustained by plaintiff is without merit. The record discloses that although one of the severed cables was owned by AT&T, plaintiff was responsible for maintenance of the cable in the area of the damage. It is undisputed that plaintiff did in fact perform the repairs necessitated by defendant’s negligent excavation. Under these circumstances, plaintiff was entitled to sue for the amount expended in repairing the damaged cable.

For the foregoing reasons the judgment appealed casting Southern Excavation Inc. liable for damage sustained by plaintiff is affirmed at appellant’s costs.

      . Although there is some conflict in the testimony as to the exact distance between the point where the cable reentered the ground and the point where the line was severed, the difference in these estimated distances is not determinative of our resolution of this case.


author: MARVIN, Judge.

text:
    Nena N. FRANKS, Plaintiff-Appellee, v. Jessie Dale MERCER, Defendant-Appellant.
    No. 14545.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.

      Charles B. Bice, Winn Parish Dist. Atty. by Douglas H. Allen, Asst. Dist. Atty., Winnfield, for defendant-appellant.
    Sanders & Castete, Ltd. by Martin S. Sanders, Jr., Winnfield, for plaintiff-appel-lee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   MARVIN, Judge.

In this paternity and support action, defendant appeals a judgment which adjudicated him to be the father of a child born to the minor plaintiff and which ordered him to pay monthly child support and the medical expenses of childbirth.

Through counsel employed after trial, defendant contends on appeal that the trial court should have appointed counsel to represent him in the trial court, that the trial court’s judgment essentially was a judgment by default and was improper because defendant did not acquiesce in the judgment, did not file pleadings, and that a preliminary default was not entered against him. Defendant also contends that the plaintiff mother, in whose name the action was brought, did not have the procedural capacity to bring the action because she was a 16-year-old unmarried minor and that, in any event, only the Department of Health and Human Resources (DHHR) could bring the action under the circumstances shown. We affirm the judgment.

LRS 46:236.1 et seq. provides the authority for DHHR to develop and implement a program of family and child support designed to establish paternity and obtain family and child support, among other designs. § 236.1B. Even though other subsections of the statute provide that a person accepting aid for a dependent child from DHHR shall be deemed to have made an assignment of the support obligation owed to such child, the statute does not expressly preclude the person who accepts aid from the department from bringing a paternity action. The statute in this respect reads in part:

“The department . . . may . . . take direct civil actions, including actions to establish paternity ... A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding.” § 236.1F.

This language clearly contemplates that there may be other legal proceedings to establish paternity but that the action brought by the DHHR is not dependent upon other legal proceedings.

Defendant makes the DHHR argument because the DHHR referred this matter originally to the District Attorney of the 8th Judicial District. Under LRS 16:1, the DA is the representative of the State in all civil actions and may bring an action within his jurisdiction for the State or any of its agencies, such as DHHR. LRS 46:236.1 et seq. must be considered in the light of LRS 16:1 because there is no express provision for enforcing LRS 46:236.1 which provides for the bringing of an action in a court of competent civil jurisdiction. The DA’s bringing of the suit in the name of the minor plaintiff does not fatally affect the judgment which is appealed in this instance. Moreover, defendant made no objection to the minor plaintiff’s procedural capacity in the trial court. See C.C.P. 683. This is a dilatory objection which is deemed to be waived if not pleaded in limine. C.C.P. 926(6), 928, Nicosia v. Guillory, 322 So.2d 129 (La.1975).

Defendant was served by domiciliary service and citation on March 27, 1978. On May 18, 1978, defendant received written notice of the trial setting on June 1, 1978, made pursuant to a formal motion to and an order of the court dated May 11. Defendant appeared in court on June 1, 1978, and was present when the case was tried. Defendant explained to the court that he had not hired an attorney because he was “worried” about a criminal charge pending against him and had not had a chance to see an attorney about this action. The court questioned defendant and satisfied itself that defendant was given ample time to obtain counsel and proceeded with trial. Defendant was given the opportunity to cross-examine witnesses and present evidence. He chose not to exercise these rights. He took the witness stand and exercised his privilege against self-incrimination and did not otherwise testify.

Mere physical presence of an un-served defendant at the trial of his case does not constitute a general appearance even where the unserved defendant testifies. A defendant who has been served and cited and who is physically present at this trial, however, has been held to have made a general appearance. Freire v. Wiles, 284 So.2d 817 (La.App. 4th Cir. 1973). See also Ducote v. Ducote, 165 So. 133 (La.1935); Manuel v. Broderson, 298 So.2d 333 (La. App. 3d Cir. 1974). This defendant, after service and after notice of the trial, even without an answer to the petition, made a general appearance and waived objections to a judgment being rendered against him without an answer or preliminary default. Bickford v. Lutz, 339 So.2d 1268 (La.App. 1st Cir. 1976).

Defendant cites authority that an indigent father must be afforded appointed counsel where he is charged with contempt for noncompliance with a child support order. This out-of-state authority is not controlling because this defendant is not charged with contempt, but was simply made the defendant in a paternity/support action. No criminal consequences directly emanate from the judgment appealed.

This action is not quasi-criminal in nature. We are not persuaded by defendant’s argument that he might later be subject to a contempt citation and imprisonment for failure to comply with the support order. The contempt citation, if it occurs, will arise out of circumstances which will occur after the judgment appealed becomes effective.

At appellant’s cost, judgment is AFFIRMED.


text:
    Frank J. HALL, et al, Plaintiffs-Appellees, v. Colidge DIXON, et al, Defendants-Appellants.
    No. 14547.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.
    Weiner, Weiss, Madison & Howell, Shreveport, for plaintiffs-appellees.
    Fish, Montgomery & Robinson, Spring-hill, for defendants-appellants.
    Lawrence L. May, Jr., Vivian, Roland McKneely, Bossier City, Alfred Bullock, Shreveport, Ronald Miciotto, Bossier City, D. G. Tyler, Shreveport, for defendant-ap-pellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

Plaintiffs, Frank J. Hall, Frank J. Hall, Jr., Cristine Hall, Lynn Hall Lasiter, Kathe-riñe Hall Cherry, Charles B. Sentell, Jack Jorden, Jr., J. M. Harper, Jr., Haskill Bonner, M. & V. Oil, Inc., Petrol Industries, Inc., Jackson B. Davis, Alfred W. Bullock, and Lyndall Bullock Tinnin, were granted a judgment enjoining appellants, Colidge Dixon, Earl Dixon, Haston Smith, Adeline S. Stringer, Theodora S. Evans, Huey P. Dixon, Sherry Linda Williams, Renee Ann Williams, Joe Woodrow Williams, Lucille Dixon Anderson, Daniel Smith, Edith B. Dixon Novoscone, Jake Smith, and Laura Mae Smith, from interfering with plaintiffs’ exploration for minerals on 120 acres of land located in Caddo Parish, Louisiana. The judgment also enjoined appellants from interfering with plaintiffs’ production of any minerals they found by virtue of said exploration. The judgment also decreed that the prescription of nonuse as applicable to plaintiffs’ mineral rights was suspended from November 3, 1978 (this was the date plaintiffs filed their suit) until the date the judgment became final and definitive.

Plaintiffs are mineral interest owners, lessors-royalty interest owners, and lessees-working interest owners of 81.3 mineral acres in the E-Vá of the SW-Vi and the SE-Vi of the NW-'A, Sec. 35, T21N, R15W, Caddo Parish, Louisiana. Plaintiffs planned in October of 1978 to immediately drill a well on the 120 acres because they believed minerals under it were being drained by wells producing on acreage adjacent to it. Plaintiffs were also motivated to drill the well because many of plaintiffs’ mineral servitudes and/or leases would expire in 1979 or 1980, and plaintiffs needed to drill on the subject property in order to maintain their mineral servitudes and/or their mineral leases.

Plaintiffs had actually alleged their servi-tudes would expire in 1979, apparently believing all earlier production on these servi-tudes had ceased in 1969. However, at trial they established there had been some production on their mineral servitudes in the fall of 1970. Plaintiffs, pursuant to their plan, had a well location surveyed and staked in October, 1978, and on October 20, 1978 secured a permit from the Department of Conservation of the State of Louisiana authorizing the drilling of the well at the staked location. Plaintiffs further secured a drilling contractor who preparatory to drilling secured the services of James Hall, an oilfield construction contractor, to level the drilling site and dig the necessary drilling pits.

Appellants are alluded to in pleadings and briefs filed in this record as part owners of the surface and minerals in the 120 acres upon which plaintiffs desire to drill. Appellant, Colidge Dixon, who contends he is owner of a Vnth interest in said property which he contends is affected by no outstanding mineral servitudes, lives near the property. He was of the opinion that plaintiffs had no right to drill a well upon the property and for that reason he physically removed the stake which the surveyor had placed to designate the location of the proposed well. Access to the property was only available through a locked gate and Colidge Dixon had a key to this gate. When James Hall arrived at the location of the property with his bulldozer for the purpose of clearing the site and digging the pits, he was unable to get through the locked gate. He was advised by someone he talked to in the area that Colidge Dixon was going to prevent the drilling of the well and would have any equipment that he found on the property seized. The following day James Hall found Colidge Dixon and sought permission to enter the property to prepare the drilling site. Dixon refused Hall permission to enter the property and told him he would have any of Hall’s equipment on the property seized by his lawyer.

Plaintiffs filed this suit on November 3, 1978 seeking to enforce their rights as co-owners to explore for and produce minerals under the 120 acres, pursuant to the provisions of LSA-R.S. 31:176 and 177 .

Appellants vigorously defended the action. Included among appellants’ pleadings was a motion objecting to the use of summary process wherein they contested plaintiffs’ right to the preliminary injunction. Plaintiffs thereafter abandoned their efforts to obtain the preliminary injunction and converted the entire proceeding to an ordinary action. After numerous delays, some of which were attributed to the motions for continuance filed by counsel for appellants, the case was tried on May 5, 1980, and the judgment appealed from was signed on August 20, 1980.

Appellants assign as error (1) the trial court’s suspension of the running of prescription of the mineral servitudes when there were neither allegations nor proof that there were obstacles to their use which the servitude owners could not remove, (2) alternatively, the court erred in commencing the suspension of the running of prescription on November 3, 1978 because none of appellants did anything on that date, or thereafter, to create an obstacle to plaintiffs’ use of their mineral servitude, and the trial court erred in suspending the running of prescription beyond November 16, 1978, the date set for the hearing on the preliminary injunction, and (3) the trial court erred in suspending prescription on the servitudes on property owned by persons who did nothing to create an obstacle to plaintiffs’ use of their servitudes.

DID PLAINTIFFS ESTABLISH AN OBSTACLE TO THE USE OF THEIR MINERAL SERVITUDES?

The law which provides that an obstacle suspends the prescription of nonuse of a servitude is contained in the following provisions of the mineral code:

LSA-R.S. 31:59 — If the owner of a mineral servitude is prevented from using it by an obstacle that he can neither prevent nor remove, the prescription of non-use does not run as long as the obstacle remains.
LSA-R.S. 31:60 — An obstacle to drilling or mining operations or to production of any mineral covered by an act creating a mineral servitude suspends the running of prescription as to all minerals covered by the act.

Plaintiffs proved that appellant, Colidge Dixon, who claimed the ownership of Vizth of the 120 acres subject to their mineral servitudes, pulled up the stake that had been placed by the surveyor to designate the site of the proposed well. Plaintiffs further proved this appellant had a key to a locked gate which controlled access to the proposed well site which was located in a fenced pasture. Colidge refused to permit plaintiffs’ contractor to bring in the necessary equipment to level the well site and construct the pits necessary to the drilling operation. This appellant prohibited this contractor from doing the necessary work preparatory to the drilling of the well and actively obstructed the work by pulling up the stake. Colidge admitted these facts at the trial of the case.

In Perkins v. Long-Bell Petroleum Company, 227 La. 1044, 81 So.2d 389 (1955), the court interpreted LSA-C.C. art. 792 which then provided:

“If the owner of the estate to whom the servitude is due, is prevented from using it by any obstacle which he can neither prevent nor remove, the prescription of nonusage does not run against him as long as this obstacle remains.” Id. at 393.

Included in the comments under LSA-R.S. 31:59 is the following statement:

“Article 59 adopts a general principle found in Article 792 of the Civil Code...”

The commentator was here recognizing that the obstacle concept in LSA-R.S. 31:59 was derived from LSA-C.C. art. 792.

In the Perkins, supra, case the court held that a suit to invalidate a mineral servitude was not an obstacle to its use which would suspend the running of prescription under LSA-C.C. art. 792. The court stressed in reaching this conclusion that the land owner who was seeking to invalidate the mineral servitude by litigation

“. .. did not at any time deny to defendant [the servitude owner] free access to the land for exploration purposes.” Id. at 393.

The court was here recognizing that obstruction to access for the purpose of exploration would have been an obstacle which would have suspended the running of prescription.

Plaintiffs could not have removed the obstruction created by the locked gate and the denial of access asserted by Colidge Dixon any legal way other than by the suit which they instituted. We conclude that when appellant, Colidge Dixon, denied access to the drill site and destroyed evidence of the location, he created an obstacle to the use of plaintiffs’ servitudes within the contemplation of LSA-R.S. 31:59.

WAS THE TRIAL COURT CORRECT IN COMMENCING THE SUSPENSION OF THE RUNNING OF PRESCRIPTION ON NOVEMBER 3 AND EXTENDING THE SUSPENSION UNTIL THE JUDGMENT GRANTING THE PERMANENT INJUNCTION BECAME FINAL?

Appellants contend that the suspension should not have commenced on November 3, 1978 because there was no evidence that any obstacle existed on or after that date. The evidence established the action of Colidge Dixon in creating the obstacle, which occurred in the later part of October only a few days before the suit was filed on November 3, was contemplated by Colidge as being a permanent prohibition of access to the well site. Colidge in effect destroyed the evidence of the exact location of the proposed site when he removed the stake placed by the surveyor. It was Colidge’s position at the time he denied access to the well site, and at the time of trial on May 5, 1980, that plaintiffs had no servitudes entitling them to access to the drill site because the servitudes had prescribed in 1976 for the reason there had been no use of them in 10 years. Colidge was not denying access on a temporary basis. Colidge erroneously believed that the last production upon the 120 acres had occurred in 1966, when in fact the last mineral production from the servi-tudes that form the basis for the rights plaintiffs here assert, was established at trial to have been 1970. The obstacles created by Colidge were continuous ones which will only be removed when the judgment permanently enjoining him from denying plaintiffs access to the property subject to their mineral servitudes becomes a final enforceable judgment.

The period of suspension of the running of prescription set forth in the judgment is correct.

WAS THE COURT RIGHT IN SUSPENDING PRESCRIPTION ON THE RUNNING OF PRESCRIPTION ON PLAINTIFFS’ SERVITUDE EFFECTIVE AGAINST THOSE APPELLANTS WHO HAD CREATED NO OBSTACLE?

Appellants contend there was no evidence that any of them, except Colidge Dixon, created an obstacle to the use of plaintiffs’ servitudes, and for that reason the running of prescription should have been suspended only insofar as it affected the interest of Colidge Dixon in the 120 acres.

A review of the provisions of LSA-R.S. 31:59 reveals that prescription of nonuse is suspended because there is an obstacle that prevents the owner of the servitude from using it. There is no requirement in the statute that the obstacle be created by all or any of the owners of the land subject to the servitude. There could very well be an obstacle that was not created by the owner of the land subject to the servitude which would prevent the owner of the servitude from using it and would therefore suspend the running of prescription of nonuse under the provisions of LSA-R.S. 31:59, even though the owner of the land subject to it had nothing to do with creating the obstacle.

The trial court correctly suspended the running of prescription of nonuse against the servitudes owned by plaintiffs on the 120 acres without limiting the suspension to the interest in the property owned by Col-idge Dixon.

Judgment is AFFIRMED at appellants’ costs.

      . LSA-R.S. 31:176 — “A co-owner of a mineral servitude may act to prevent waste or the destruction or extinction of the servitude, but he cannot impose upon his co-owner liability for any costs of development or operation or other costs except out of production. He may lease or otherwise contract regarding the full ownership of the servitude but must act at all times in good faith and as a reasonably prudent mineral servitude owner whose interest is not subject to co-ownership.”

      . LSA-R.S. 31:177 — “A co-owner of the lessee’s interest in a mineral lease may not independently conduct operations or, except as provided in this Article and Article 171, deal with the interest without the consent of his co-owner. He may act to prevent waste, destruction, or termination of the lease and to protect the interest of all, but cannot impose upon his co-owner liability for any costs or expenses except out of production. In so acting he must act in good faith and must deal with the interest of the remaining owner or owners in the manner of a reasonably prudent lessee whose interest is not subject to co-ownership.”