author: ELLIS, Judge.

text:
    RESTELLE et al. v. FIDELITY & CASUALTY CO. OF NEW YORK.
    No. 3125.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.
    Murray Anderson, Lake Charles, for appellants.
    Platíche & Stockwell, Lake Charles, for appellee.
   ELLIS, Judge.

Mrs. Katherine Restelle, at about 8 A.M. on May 21, 1947 boarded a bus belonging to the Lake Charles Transit Company of Lake Charles, Louisiana at a point on the Deridder Highway which is U.S. Highway No. 171 between the Southern Pacific Overpass and an establishment known as the “Green Frog” which is located-at the intersection of U.S. Highway 90 -and Highway 171. The bus had traveled in a northerly direction on the highway approximately one block and a half after the plaintiff had boarded it when it became involved in a collision with an automobile traveling in a southerly direction on the same highway. As a result of the collision, plaintiff has filed this suit against the insurer of the Lake Charles Transit Company, viz, Fidelity & Casualty Company of New York, for damages for alleged personal injuries in the sum of $6,200.00. Plaintiff’s husband, Robert Frank Restelle, joined, in the same suit with plaintiff in his capacity as head and master of the community, alleging he was due $184.00 for hospital expenses, medical services and doctor bills paid for the plaintiff, but he voluntarily requested that his suit be dismissed which was done.

Plaintiff alleged that the driver of the bus was negligent in that he did not keep a proper lookout and was not watching the road at the time of the -accident, and plaintiff bases such negligence upon the fact that as soon as she boarded the bus the driver immediately placed the bus in operation by steering with his left hand and having his right hand extended toward plaintiff for the purpose of receiving her fare, and that the driver was, therefore, watching the plaintiff and was not watching the highway ahead, nor was he “watching where he was going.”

Defendant filed an exception of no cause or right of action which was overruled and referred to the merits of the case. Defendant filed a general denial to the allegations of plaintiff’s petition but admitted the occurrence of the accident and, further answering, set out its version as follows:

“Prior to the accident complained of by plaintiffs, the driver of the Lake 'Charles Transit Company bu's was proceeding- at an exceedingly slow speed of approximately ten miles per hour in a Northerly direction on his right side or in the East traffic lane of U.S. Highway 171, not far North of U.S. Highway 90 in Calcasieu Parish, when suddenly and without warning a car being driven by Mrs. Van Gundy in a Southerly direction on her right side or in the West traffic lane of U.S. Highway 171, turned suddenly to the East, crossing over the center line of the highway into the East traffic lane striking the same bus of the Lake Charles Transit Company.”

The case was duly tried and resulted -in a judgment with written reasons in favor of the defendant. From this judgment, the plaintiff has appealed.

At the beginning of the trial, counsel for defendant interposed a general objection to all evidence which was based on the same grounds as the exception of no right or cause of action. Defendant in its brief urged that the exception be maintained. It is only in this general objection that the record divulges on what ground the exception was based and, according to the objection, it was based upon the fact that the plaintiff did not allege that the insurance policy was in force at the time of the accident and as this suit is only against the insurance company it did not state a caus.e of action. The brief contains no argument on the exception, merely urging that it be maintained.

As to this exception, plaintiff alleged in her petition that the insurance company prior to May 21, 1947 issued a certain contract or policy of insurance in which the Lake Charles Transit Company of Lake Charles, Louisiana was named as insured, and that as a result of this policy it would insure the Lake Charles Transit Company “against loss of liability by reason of liability for damages or personal injuries under Article 231S of the Civil Code of Louisiana, as amended, which said, injuries or damages might be received by any person, including your petitioner, as a result of the negligence of any employee or agent of the said Lake -Charles Transit Company, while in the performance of their duties and within the scope of their employment.” Plaintiff further alleged that the “said Fidelity & Casualty Company of New York City is therefore liable unto, your petitioner * * * Katherine Res-telle, in the full sum of Six Thousand Two-Hundred ($6200.00) Dollars, together with legal interest from date of judicial demand, until paid, for the following reasons, to-wit:” Plaintiff then details her cause of action that she boarded the bus on May 21, 1947 and the bus was involved in a collision with an automobile and she was injured as a result thereof.

These allegations are sufficient to-show that plaintiff has charged in her petition that the insurance policy was in force-on the date of the accident. By alleging-that the accident occurred on May 21, 1947 and that the policy was issued prior to that date and that on the date of the accident plaintiff was covered under the terms of the policy is practically the same as if plaintiff' had alleged in simple words that the policy was in full force and effect on May 21-, 1947 and that she was covered thereby. The petition- sufficiently alleges a state of' facts that leads to the inevitable conclusion that the policy Was in force and effect bn the date of the alleged accident' ánd the-exception is therefore overruled.

The record reveals that at the time of.' the accident the plaintiff was either paying her fare to the bus driver or had just completed paying her fare. Just prior to and. at the time of the accident the bus was proceeding north in its proper lane of traffic, traveling at a rate of speed estimated at from three to twenty miles per hour by various witnesses but which we believe to-. be, as found by the District Judge, at ten-tó twenty miles per hour. A car being, driven by a Mrs. Van Gundy, a nonresident, and whose testimony could not be-obtained by either the plaintiff or the defendant, was proceeding south on the west side of the highway at a speed es- • timated at from forty to sixty-five miles per -hour. When this car approached to within distances' estimated at from thirty: •to one hundred eighty feet of the bus but which has been correctly fixed at a distance of forty feet by the trial judge from the testimony in this case, Mrs. Van Gun-dy somehow allowed the right wheel of her car to run off of the pavement into a mud hole on the shoulder of the road. The testimony shows that it had rained the previous night and while the pavement itself was dry, the shoulder of the road in some spots was muddy. The pictures introduced in evidence show a mud hole at the point where the right front wheel of Mrs. Van Gundy’s car ran off of the pavement. These pictures also show a tire track or mark coming diagonally across from this mud hole over the center line of the highway into the traffic lane of motor vehicles traveling in a northerly direction as was the bus on the day in question. When Mrs. Van Gundy steered her car back onto the pavement, there is no doubt but that she lost control of the car and allowed it to •cross the highway at an angle of about 45 •degrees and strike the 'bus. From the pictures introduced in evidence of the highway at the scene of the accident and of the •car, the Van Gundy car did strike the 'bus at an angle, doing more damage to the right hand side of the car than to the left, although the entire front of the car and entire front of the bus received some damage. After the collision the front wheels of the bus were turned to the right and the right front wheel was off the pavement. The bus had stopped a distance of from two to four feet after the collision and had pushed the car this distance in front of it. The plaintiff contends that the bus driver was negligent in not doing some act or attempting to do some act whereby he .might have avoided the accident.

It is well settled that common carriers are bound to carry their paid passengers safely and securely and to use the utmost care and skill in the performance ■ of their duties and are responsible for any, • even the slightest, neglect. Wallace v. Shreveport Rys. Co., La.App., 175 So. 86; Grant v. Baton Rouge Bus Co., La.App., 15 So.2d 123; Matthis et al. v. Texas Louisiana Coaches et al., La.App., 18 So.2d 345; Brooks v. Airline Motor Coaches, et al., La.App., 35 So.2d 786.

In the present case, we do not find that the driver of the bu's was guilty of any negligence whatsoever but that the collision was caused solely by the negligence and carelessness of Mrs. Van Gundy. According to the established facts in the record, the bus driver, even though he was collecting or had just collected the fare of plaintiff, saw the Van Gundy car approaching on its proper side of the road at about a block and a half or two blocks away and at that time it was 'being operated under normal conditions, and it was not until it had reached a point approximately forty feet- from the bus that the right front wheel of the Van Gundy car ran off of the pavement and into this mudhole, and it was almost immediately steered back onto the highway from the muddy portion of the shoulder and came diagonally at a forty-five degree angle and struck the bus. The running off of the pavement and the striking of the bus happened suddenly and practically without warning to such an extent that there was nothing .that the bus driver could have done to avoid the collision. At the time the bus was being driven in its proper lane of traffic and at a reasonable rate of speed, and, from the testimony, the driver of the bus did not have sufficient time to do or attempt to do any act to prevent the collision. Had the driver stopped his bus at the moment the automobile ran off the pavement or had he pulled to the right onto the shoulder of the road at that time, neither act would have prevented the collision. It, of course, follows that if the completed act would not have prevented the accident that an attempt would have been to no avail. The trial judge reached this conclusion and was also of the opinion that the collision and resultant damages were caused solely and entirely by the reckless and negligent operation of the Van Gundy automobile, and that the Lake Charles Transit Company through its employee was in no wise negligent, even to the slightest degree.

It is, therefore, ordered that the judgment of the District Court be affirmed.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    CENTRAL MANUFACTURERS MUT. INS. CO. v. LINKENHOGER et al.
    No. 7336.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1949.
    Lee & Emery, Shreveport, for appellants.
    Irion & Switzer and Harry A. Johnson, Jr., Shreveport, for appellee.
   KENNON, Judge.

Plaintiff, subrogee of Mrs. H. L. Lewis, brought this suit against Edgar Linken-hoger and his insurer to recover $612.78 allegedly due Mrs. Lewis for damage to her Buick automobile resulting from a collision with a motor truck belonging to one defendant and insured by the other. The petition alleged that Mrs. Lewis, shortly after dark on the night in question, was driving her automobile northward on State Highway No. 8; that when she reached a point a few miles south of Vivian, Louisiana, she saw defendant’s truck ahead with its headlights burning and apparently on its right side of the road; that she dimmed her lights, expecting to pass the truck in, regular course, but that when she passed the front of the vehicle there suddenly loomed in front of her, without lights, a large object across the east (her right) side of the highway, blocking her lane of traffic;, that in spite of a prompt application of heir brakes and turning her wheels to the right, she nevertheless struck the dark object which turned out to be the trailer portion of defendant’s truck which was jackknifed across the east side of the highway. Plaintiff alleged that Mrs. Lewis was unable to, see the trailer across her side of the highway because of darkness, of the rain and mist that were falling and because of the headlights of the truck and because of the dark color of the trailer and the complete absence of any light on it, and specifically alleged that the driver of defendant’s truck, was negligent in parking the truck and trailer crosswise the highway without lights, burning except the headlights and in neglecting to place flares or other warning.

Defendants in answer admitted the collision but set forth that the proximate cause of the collision was the negligence of Mrs. Lewis in driving her car on her left (or west) portion of the highway and into the left side of the trailer, and in the alternative, in the event the Court should hold that her negligence was not the sole proximate cause of the collision, then that she was guilty of contributory negligence which defendants pleaded as a bar to plaintiff’s recovery.

The record contains an excellent opinion of the District Judge who concluded that the testimony and the physical facts bore out the contention of Mrs. Lewis that •defendant’s trailer, at the time of the collision, was occupying the east (its left) side of the highway; that Mrs. Lewis was not negligent in continuing to travel north after she saw defendant’s truck on the west side of the highway facing south with its front lights burning and that, having passed the headlights, she was not negligent in being unable to avo'id hitting the trailer, whose presence on her side of the road was not known to her until after she had passed the truck’s front headlights.

After defendants’ application for a rehearing, the Court filed a second written opinion and reaffirmed its finding that Mrs. Lewis, upon seeing the headlights of defendant’s truck on the west (its right) side of the road, was justified in proceeding •onward; that the headlights on the truck prevented her from seeing the trailer which was across the center line of the highway until she was tod close upon it to stop before the collision occurred. The case is before us on an appeal from a judgment condemning the defendants to pay the $612.78 damage done to Mrs. Lewis’ Buiek.

The series of circumstances leading up to the collision .between defendant’s truck and Mrs. Lewis’ Buick began when another automobile ran into the ditch on the east side of the highway at the scene of the accident and shortly prior to Mrs. Lewis’ approach. When defendant’s truck, traveling south, reached the scene, it was stopped by the driver of the stranded automobile who asked defendant’s driver to assist him in getting his machine out of the ditch.

Plaintiff alleged that defendant’s driver had backed up the truck, causing the trailer to be jackknifed across the highway, preparatory to assisting the distressed automobile. Defendant’s driver admitted that he had stopped his truck in response to the plea for assistance, but denied that he had backed up and stated that, while the truck was parked at an angle with the right front wheel off the pavement, the entire truck and trailer portion occupied only the .west side of the highway.

Mr. Clarence Massey,' who lived near the scene, testified that he saw defendant’s truck backing up after it had stopped to render assistance. Mr. Bain, a Deputy Sheriff for. Caddo Parish, Louisiana, arrived at the scene after the accident and testified that there, was mud on the highway which extended from the west side and across the black line into the east side and that this mud had obviously been jarred from the truck and trailer. . Mrs. Lewis testified that the trailer blocked her right side of the highway and that defendant’s driver, ■immediately after the accident, acknowledged that his trailer was across the black center line. Defendant’s driver said that the driver of the stranded car was standing beside the truck, but behind the headlights, and engaged in flagging Mrs. Lewis’ car as it approached. The District Court noted, that the defendants did not produce this witness who would have known the position of the truck, etc.

After carefully studying the record, we agree with the findings of the . District Judge and conclude that at the time of the collision the front o,r truck portion of defendant’s truck occupied the west (its right) side of the road; that its headlights were burning; that its clearance lights were not burning and that Mrs. Lewis was justified as she approached from the south in concluding that the truck was in the normal position of on-coming traffic either approaching or parked on its side of the highway and that she was not negligent in continuing to drive forward and that the trailer, jackknifed across the east side of the highway, was not revealed to Mrs. Lewis until she had passed the truck’s headlights and was within a few feet of the trailer and too close to avoid the collision.

The decision of this Court in the case of Herring v. Holicer Gas Co., Inc., et al., La.App., 22 So.2d 868, 872, is applicable to the present case. There this Court stated that it is common knowledge to those who operate motor vehicles on our highways at night that one’s headlights will not reveal objects on the highway be.yond or behind the headlights of an oncoming vehicle. Consequently, Mrs. Lewis or any one else in her situation could not be expected or required to reduce speed to such an extent that her automobile could be stopped within the short distance between her and the trailer after its presence on the highway was revealed. As stated by the Court in the Herring case, “to have effectively guarded against the emergency that did confront him, he would have had to proceed at a snail-like pace or have brought his car to a complete stop. The law does not exact this of a motorist under such circumstances.”

While the record shows that there was a rain or mist falling, there is no proof that this was a contributing cause of the accident. Defendants contend that the case of Hogue v. Akin Truck Line et al., La.App., 16 So.2d 366, is applicable because the record shows that there was a misting rain at the time of the collision. We concede the correctness of the principle that when visibility is materially impaired because of smoke, mist, dust or other causes a motorist should reduce his rate of speed to such an extent and keep his car under such control as to reduce to a minimum the possibility of an accident from collision, etc. The principle above stated would have been applicable had Mrs. Lewis approached from the other direction and suffered damage as a result of crashing into the rear of defendant’s truck.

We find as did the District Judge — and as did this Court find in the Herring case — that the proximate cause of the accident was the truck driver’s negligence in blocking the left lane of traffic. Under such circumstances, when the front portion of the truck is on its own side of the road with headlights burning, it is not contributory negligence for the approaching motorist not to anticipate such an unusual condition as a trailer being jackknifed across the left side of the road. Nor is it contributory negligence for the approaching motorist under such circumstances to fail to avoid the obstacle which becomes visible only after the approaching-vehicle passes the headlights of the parked truck.

The judgment appealed from is affirmed,, with costs.


text:
    LAWRENCE v. BAILEY.
    No. 7316.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Rehearing Denied June 30, 1949.

      H. W. Hill, Alexandria, for appellant.
    Thomas J. Tomeny, Alexandria, for ap-pellee.
   KENNON, Judge.

Alleging that it was through his efforts that the sale of certain real estate owned by defendant and listed with plaintiff -was effected, plaintiff, a real estate agent in Rapides Parish, Louisiana, filed this suit for $400.00 allegedly due him as commission.

Defendant in answer admitted that he had listed the property in question with plaintiff and that negotiations had been conducted by plaintiff with one Hanson A. Baden, but set forth that, upon Baden’s failure to secure a combination FHA-GI loan, these negotiations had broken off and, subsequently, on May 7, 1948, defendant, owner, was approached by Baden and the sale was made to Baden on May 18, 1948, which was an entirely different transaction, and that therefore plaintiff is entitled to no commission.

The District Court gave judgment for plaintiff as prayed for, finding that it was through the efforts of plaintiff that the parties were brought together and that the contract between plaintiff and defendant was still in effect when the sale was consummated. Defendant has appealed from that judgment.

There is little dispute between the parties as to what actually took place. The defendant engaged plaintiff to assist him in finding a purchaser of his house, stating that he wished to receive $8000.00 net. Plaintiff accepted the employment and advertised defendant’s property for sale in the March 3rd, March 12th and April Sth, 1948 issues of the “Alexandria Daily Town . Talk.”

Plaintiff carried Hanson A. Baden to see defendant’s property; Baden was interested and on April 8, 1948, signed a contract to buy. This contract recited a consideration of $8400.00 ($8000.00 for the owner, $400.00 for the broker). Baden advanced the sum of $231.00, which was, applied on a deposit of ^SO.OO which accompanied his application for a loan sufficient to pay the remainder of the purchase price.

The application for a loan was turned down. Plaintiff returned Baden’s money, but he and his associate continued their efforts to sell defendant’s property.

Early in May, Baden, who was still interested in purchasing the property, went to defendant and the two, without further consulting plaintiff, entered into an agreement whereby Baden purchased the property for a credit consideration of $80'00.00. Arrangements were made through the joint efforts of defendant and Baden whereby this note was taken over by one R. J. Jones, in conjunction with the sale by Jones of other real estate to the defendant Bailey.

Counsel for defendant, while conceding the rule that a broker who is the procuring cause of a sale will be protected in his commission against any unfair attempt on the part of his principal to complete the sale by direct negotiations and thereby avoid paying the commission, contends that this case comes under the rule equally well recognized that where a broker has failed to effect a sale and negotiations have ceased or broken off, the owner may take up the negotiations and himself complete the sale without becoming liable for a broker’s commission.

His brief contains the following' quotations from the case of Bullís & Thomas v. Calvert et al., 162 La. 378, 110 So. 621, 622:

“For this court has always consistently held that a broker who was the procuring cause of a sale would be protected as to his commission against any fraudulent or unfair attempt on the part of his principal to deprive him thereof. * * * In the case before us there is however no question of fraud on the part of defendants; * * *.
“On the other hand, this court has with equal consistency always held that, where' a broker has failed to effect a sale, and negotiations have ceased or been broken off, the owner may take up the negotiations where they were left off and himself complete the sale, and the mere fact that the sale may in some degree have been aided .by the previous efforts of the broker does not of itself entitle the latter to a commission; i. e., unless it clearly appear that those efforts were in fact the procuring cause of the sale. Lewis v. Manson, 132 La. 817, 61 So. 835, and authorities there cited; Freeman & Freeman v. Torre Realty & Improvement Co., 157 La. 1093, 103 So. 334." (Italics ours.)

The facts of the case before us are different from those of the quoted case. There the Supreme Court found as a fact that a Mr. Morgan, who made a direct purchase of the property from the defendants (being sued for a commission by plaintiffs with whom they had formerly listed the property), had been well acquainted with the lands long before the plaintiffs were employed to effect a sale thereof. In fact, Mr. Morgan had twice before sought to buy the lands and when, after plaintiffs’ contract was at an end, Morgan was again sought as a possible purchaser, no use was made of information coming from plaintiffs, nor did the defendants profit in any way by the efforts of plaintiffs so far as their interesting of Morgan as a purchaser or the closing of the deal with Morgan was concerned.

In the case before us, . the record shows that the plaintiff brought purchaser Baden and the defendant together and that it was through the efforts of plaintiff that Baden first became acquainted with the property. After plaintiff showed him the property, Baden’s interest and willingness to purchase was evidenced by his signing of the April 8th contract to purchase. While negotiations were temporarily discontinued when Baden’s application for a loan was not accepted, Baden remained interested in the property, and, although the actual credit arrangements were made directly by Baden and the defendant, the prior efforts of plaintiff Lawrence remained as “the procuring cause of the sale.”

The sale finally consummated on May 18th was identical as to parties and property with the “contract to buy and sell” on the form provided by plaintiff, the only difference being that the May 18th price did not include the $400.00 real estate commission included in the April 8th contract.

As stated in the case of Howell v. Thompson, La.App., 38 So.2d 167, the fact that defendant reduced the price in order to effect the sale does not release him from his liability to pay plaintiff his commission. Grace Realty Co. v. Peytavin Planting Co., Inc., et al., 156 La. 93, 100 So. 62, 43 A.L.R. 1096.

Having found from the record that plaintiff produced in the person of Baden a party who was interested in the purchase of defendant’s property and that the subsequent sale was the result of his efforts, we conclude that plaintiff is entitled to his commission under the authority of White v. Havard et ux., La.App., 25 So.2d 108.

As was true in the White case, supra, the trial judge found — and we agree with that finding — that there was no plan or effort on the part of Bailey and Baden to defraud the plaintiff out of his fee. They simply were dealing under a misapprehension of the rights which accrued to plaintiff under the law as a result of the contract of listing and of his bringing the prospective purchaser and owner together.

Defendant’s counsel, in brief, quotes the following from the case of Lewis v. Manson, 132 La. 817, 61 So. 835:

“If a broker attempts unsuccessfully to effect a sale of land, and his proposed purchaser abandons the idea of buying, but he is afterwards induced to do so by the principal or by another person, without being in any way influenced by the broker, the latter is not entitled to any commission.” (Underscoring ours.)

We accept the above as a correct statement of the law, but inapplicable to the case before us as the record shows that Baden did not “abandon the idea of buying” defendant’s property. On the contrary the record shows that after he became interested in defendant’s property — through the efforts of plaintiff — he remained interested and persisted in his efforts to make whatever financial arrangements might be necessary to enable him to purchase.

The judgment is affirmed, with costs.

TALIAFERRO and HARDY, JJ., sitting.


author: TALIAFERRO, Judge.

text:
    COLEMAN v. PENNSYLVANIA FIRE INS. CO. OF PHILADELPHIA, PENNSYLVANIA et al.
    No. 7300.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.
    Rehearing Denied June 30, 1949.
    Camille F. Gravel, Jr., Alexandria, John R. Hunter, Jr., Alexandria, for appellants.
    Camden K. Staples, Alexandria, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff, appellee, instituted suits against the Pennsylvania Fire Insurance Company of Philadelphia, Pennsylvania, and the American Eagle. Fire Insurance Company of New York, New York, to recover from each one-half of the amount of damages allegedly sustained by his stock of liquors from a windstorm, followed by rain, at or about 'the hour of 11:00 o’clock p. m., November 4, 1947.

After submission of proofs of loss by plaintiff, the defendants refused to pay the asserted loss and these suits followed.

The allegations of the petition in each case are identical. The cases were consolidated for trial below and only one note of evidence was taken. The damaged stock of liquors consisted of bottled goods .in original packages or cardboard cartons, stored one upon the other, in a wareroom adjoining the building in which plaintiff operated a saloon, selling by the drink.

The petitions declare that at said hou? and on said date, the windstorm was of such force that “part of the roof and walls covering the warehouse was blown or ripped off by the force of the wind, which was accompanied by a heavy rain, and rain was blown into said room on top of the stock of liquors, etc., through 'said opening.” It is also alleged that over fifty cases of liquor were damaged from the rain to the extent of fifty' per cent of their wholesale price. The specific character of damages to said stock of liquors, the basis of 'the suit, is set forth in Article seven of the petitions, which we quote, as f ollows: “That the damage consisted of (1) the labels of the brands of liquor etc. falling off the bottles, (2) the labels becoming badly spotted, (3) the federal tax stamps falling off or being badly loosened so that it appears the stamps have been tampered with. That such damaged condition of said stock prevented petitioner from selling it by the drink, which was the business in which he was engaged and will prevent him from selling it by the bottle or by the drink in the future, for its undamaged value. In its damaged condition it is not worth over 50% of undamaged value.”

Defendants deny all of 'the material allegations of the petitions and each incorporated in its answer exceptions of no cause and no right of action.

There was judgment for plaintiff in each case for the amount for which he sued. The defendants appealed. They re-urge the exceptions here. They are based upon two propositions, deduced from the allegations of the petitions and evidence adduced on the trial, which are:

1. That plaintiff is engaged in selling liquor by the drink and this being true, the fact that labels identifying the brand of liquor in each bottle, were discolored and/or slipped from the bottles, and that some of the revenue stamps came off, did not prevent selling the liquor over the bar in drinks; that the quality of the liquor was to no extent affected by the mentioned outside conditions of the bottles; and,

2. If the condition of the labels and stamps should prevent plaintiff, in the future, from selling the liquors by the bottle, the measure of damages and loss from the windstorm would be the cost of the replacing of such labels and stamps.

We are of the opinion that the exception of no cause of action is well founded.

We shall pretermit a decision of the highly controverted question whether the alleged damage to the liquors was the result of a windstorm. It is unnecessary, in view of our present appreciation of the situation, to definitely pass upon this question. Bu't, for the purpose of passing on the exception, arguendo, it may be admitted that the damage was caused by the alleged windstorm.

Whether plaintiff should sell the liquors involved in these suits by the drink, by the bottle or by the carton, the measure and the method of determining the extent of damage adopted by him are not correct ones. The provisions of the policies of insurance clearly cover a case of this character. It is said in each policy that the insurer “does insure B. R. Coleman * * * to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss * * *

Under 'this clause of the policies the measure of the insurer’s liability is the cost of repairing the damage done to the property, and, admittedly, the slipping and/or discoloring of the labels and the falling from the bottles of the federal tax stamps constitute all the damage that has occurred. When these elements of damages have been repaired, the status quo ante will be restored. Testimony in the record discloses that new labels for liquor bottles may easily be gotten from the company distilling the same or the wholesaler thereof, and that it is not difficult to adjust with the proper governmental agency -the matter of loss of or damage to revenue stamps, so that the cost of new ones may be avoided. Of course, any reasonable amount expended in accomplishing these repairs would be a legitimate charge against the insurer, beyond which, as we have heretofore stated, the insurer may not be held liable under the policy.

For the reasons herein assigned, the judgments from which appealed are reversed, annulled and set aside; and there is now judgment in favor of the defendants, Pennsylvania Fire Insurance Company of Philadelphia, Pennsylvania, and American Eagle Fire Insurance Company of New York, New York, and against the plaintiff, sustaining the exception of no cause of action in each case and dismissing the suits as of non-suit. The exception of no right of action in each case is overruled. Plaintiff is cast for all costs of court.


author: .DORE, Judge.

text:
    STATE ex rel. WOOD v. PINDER.
    No. 3126.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.
    Thos. Arthur Edwards, Lake Charles, for appellant.
    Kay & Kay, DeRidder, for appellee.
   .DORE, Judge.

The Edgewood Land & Logging Company, hereinafter referred to as Edgewood Company, owned a certain tract of land in the Town of DeQuincy. It subdivided this tract of land into blocks, lots and streets: Block 11 was bounded on the north by LeBlanc Street, on the East by McNesse Avenue, south by First Street and west by Page Street; in the center, there is an alley of fifteen feet, running east and west. The block is divided into sixteen lots, eight facing LeBlanc Street and eight facing First Street.

It appears that the natural drain of the property to the south of said block is toward the center of Block 11 and thence from south to north. The center of the block is lot 5, facing LeBlanc Street, •and lot 12 facing First Street.

After the subdivision by Edgewood Company, the Town of DeQuincy constructed a ■concrete sidewalk on the north side of First Street. At about the western edge of lot 12 of said Block 11, and under the sidewalk walk, the Town laid galvanized pipes or culvert of about eighteen inches in diameter in order to properly drain and carry the water from said street and from the south thereof. At about the same time, with the consent and authorization of the Edgewood Company, the then owner of lots 12 and 5, the Town constructed a ditch, within the natural drain, alongside the western side of lot 12, across the alley, and the western side of lot 5 northerly to Le-Blanc Street, • probably to speed up the drainage of First Street and property to the south thereof.

On April IS, 1925, plaintiff purchased lot 11, said lot lying to the west of lot 12, upon which plaintiff built his residence. On July 13, 1942, plaintiff purchased lot 12. Immediately after his purchase, with the approval and consent of the mayor of the Town of DeQuincy, the plaintiff laid a line of eighteen inch concrete pipes connecting with the pipe or drain under the sidewalk and in the ditch constructed by the Town continuously to a point of about eighteen inches from the southern boundary of defendant’s property, the said property then being owned by the Edgewood Company, and filled in the said ditch, covering the said line of pipes with dirt. On July 20, 1944, the Edgewood Company sold lot 5 to L. E. LeBlanc, who, on Oct. 17, 1946, sold the said lot to IT. A. Yellot, who, in turn, on Nov. 21, 1946, sold the same to - L. J. Finder, the defendant herein.

In his petition, plaintiff alleges that, on’ or about the Sth day of February, 1948, the defendant “caused to be erected a brick obstruction over, on, and across the eighteen inch concrete drain,” (presumably meaning that the obstruction was constructed at the end or mouth of the line of concrete pipes or drain). He describes the obstruction as being about two feet high and twenty-four inches wide. He alleges that the obstruction prevents the natural flow of water through the concrete drain, causing his property to be flooded by ordinary rains “and particularly during the recent heavy floods and rains which have been continous for some time, and on February 21st, 1948, and March 5, 1948, said first described property was flooded, mud and other refuse accumulated, and water was backed up on the residence of plaintiff’s property constituting a nuisance per se, and making it practically impossible for him to go to and from his residence.” Plaintiff further alleges that, by the acts of defendant, he has suffered and will continue to suffer damages unless the defendant is ordered and commanded to remove the said obstruction. He accordingly prays for a peremptory and mandatory writ of mandamus, ordering the defendant to remove the obstruction from “the concrete drainage ditch” or pipes.

In his 'answer, the defendant denies the material allegations of plaintiffs’ petition, and assuming the position of plaintiff in re-convention he avers that plaintiff’s property was originally lower than the sidewalk constructed by the Town of DeQuincy;. that in order to protect his property from the natural course of drain over his property, plaintiff “built in, raised and elevated his lots” and constructed the concrete drain in order to avoid the water on First Street from overflowing over the sidewalk, pond-ing and standing in front of his property; that by the construction of the concrete drain, the plaintiff, Wood, has “thereby converted and changed and forced all the water from the property above and which accumulated in first (First) street (Street) from it’s natural course through said culvert underneath his property, the alley and on to your appgarer’s property, so that none but surface water touches Wood’s property.” He further alleges that “when it rains, the water instead of flowing slowly over and spreading out in it’s natural course of drainage over Wood’s property on to your appearers property comes through said artificial culvert, willfully placed there by the said Wood, with a terrific force on to your appearer’s property blowing out a large hole and inundating your petitioner’s entire lot with water, mud and other objects * * *_» jje prays that plaintiff’s demand be rejected, and, in reconvention, he prays for a writ of mandamus against plaintiff Wood “commanding him to close or remove the artificial culvert and prevent the water from the property above from flowing over your appearer’s property through such culvert or in any other manner than by natural drainage.”

Upon these issues, the case came to trial on May 20, 1948. After plaintiff had practically closed his testimony, the trial judge felt that he should visit and make an examination of the locus in question, and thereupon recessed the trial of the case and continued it until May 31, 1948. He visited the premises on May 21, 1948, and at the continuance of the trial, dictated into ,the record a statement of his findings. The trial of the case was then resumed. After submission of the case, the trial judge rendered judgment rejecting plaintiff’s demand, and granting unto defendant judgment in reconvention for a writ ¡of mandamus against the plaintiff, commanding him to close the culvert which is presently emptying the water flowing through it upon defendant’s property so that no water will be diverted on defendant’s property only by flow caused by natural drain. Plaintiff filed a motion for rehearing which was refused. Plaintiff then appealed.

A review of the record shows considerable conflict in the testimony as to the actual situation existing with reference to the drainage problem involved in this case.

The plaintiff himself testified definitely that the concrete drain which he installed was obstructed by the defendant in the latter part of 1947 or the first part of 1948. He even went so far as to say that the defendant erected a brick wall two feet high and twenty-four inches wide at the mouth of the concrete drain and that this prevented the flow of water through the drain. He testified further that the concrete drain in no manner interferred with the flow of water if not obstructed and if the ditch on defendant’s land had not been filled in by the defendant.

Plaintiff’s testimony is corroborated by Mayor Fontenot of the Town of DeQuincy and by Clarence Bennett, an employee of the Town. Mayor Fontenot testified in effect that the drain placed by plaintiff in the ditch on his property did not retard the drainage of First Street or the property south thereof nor did it make the water flow more freely. He states that the defendant by filling the ditch on his land checked the flow of water and caused defendant’s property to flood more than if the ditch would have been left open; that defendant prior to filling the ditch had informed him of his intention to do so but that neither he nor the City Council consented to this being done.

Clarence Bennett, the city employee, testified very much to the same effect and his testimony clearly shows that the ditch on defendant’s property was in existence until filled in by the defendant. He states that it was his duty as a city employee to keep this ditch clean and open and further that the concrete drain together with the open ditch were entirely sufficient to drain First Street for ordinary purposes. He further states that the filling of the ditch and the placing of obstructions at the mouth of the concrete drain interferred with the flow of water through the concrete drain.

Plaintiff is further corroborated by a next door neighbor, Mrs. Cooley, who states that plaintiff did build up his land to the level of the sidewalk and that at that time the City installed a culvert under the sidewalk and a ditch was dug on the property purchased by plaintiff extended north to LeBlanc Street and meeting this culvert; that later plaintiff constructed the concrete drain and that this concrete drain did not in any manner change the drainage condition, the only difference being that water flowed through the drain instead of the ditch. She did not testify with regard to the obstruction of the drain or to the filling of the ditch by the defendant.

Further corroboration of plaintiff is given by Woodrow Martin, his son-in-law, who stated that there was an obstruction at the end of the drain which completely stopped the flow of water and that the ditch on defendant’s property had been filled in; and by his wife who stated that at' the end of the drain pieces of cement and brick and other material had been placed which caused the flow of water to back up in an ordinary rain and also that she saw the defendant have dirt hauled to fill the ditch on his land. Mrs. Massingil corroborated plaintiff to a minor extent by saying that in the spring of 1948 she saw water over plaintiff’s property.

On the other hand, defendant testified positively that he did not place any obstruction which in any manner stopped the flow of water from the drain but he does admit that near the mouth of the drain he placed bricks to prevent the water from rushing unto his property and washing the dirt thereon away and creating holes. He further admits that he filled in holes at the location where the ditch formerly was but contends that there was no ditch there but merely holes which held water and did not help in any way in drainage; that he merely filled in those holes so that he could mow his lawn. He contends that the concrete drain built by plaintiff caused the water to rush unto his property instead of flowing gradually and thereby caused damage to his property.

Defendant is corroborated by Frank Hackler and Mrs. A. J. Hackler, two of his neighbors and by his father-in-law Lawrence R. LeBlanc. These witnesses, however, also admit that defendant did place bricks near the north of the concrete drain and did place dirt at the location of the former ditch. Like the defendant they maintain that the placing of these bricks did not in any manner interfere with the flow of water from the concrete drain but merely slowed down the flow. Like defendant, also, their testimony is to the effect that there was no ditch on defendant’s property and that the filling in was merely done to stop up holes.

R. E. Durham, a neighbor of plaintiff, also testified that he examined the obstruction placed by defendant at the end of the concrete drain and that the obstruction did check the flow of water coming out of the drain but did not stop it.

Mr. Ray Yaw, a representative of the Edgewood Company, testified that he sold plaintiff lot 12 and at that time the sidewalk was about eight, inches above the ground; that plaintiff raised or filled in the lot and that, at the time of trial, the lent was about four inches above the sidewalk; that plaintiff’s lot is level and is about eight inches higher than defendant’s lot; that defendant’s lot begins to slope at the alley; that the company gave the City of DeQuincy a permit to dig the ditch from the sidewalk through its property to Le-Blanc Street.

The trial judge, noticing the conflict in the testimony continued the case to May 31, 1948 and gave notice to the litigants that he proposed to visit the premises in the meantime.

The trial judge, on resumption of the trial of the case on May 31, 1948, dictated the following into the record:

“The Court finds from personal observation that the property of Charles D. Wood lies south and across a narrow alley from the property of L. J. Pinder. The Court further finds from observation that the natural drainage in that area flows * * * north from a point south of the property of Charles D. Wood, flows west from a point east of the property of both parties and flows east from a point west of the property of both parties. In other words, the property involved in this suit is in the bottom of a natural basin with elevated land to the east, south and west, which causes the natural flow of water to flow from the three directions mentioned northward across both pieces of property.
“The Court finds that there is a drainage tile approximately eighteen inches in diameter that runs from south to north lengthwise across the property of Charles D. Wood. It runs across the alley separating the two pieces of property and extends on to the property of L. J. Pinder approximately eighteen inches. This tile is completely covered with earth so that it is entirely below the natural surface with the exception that the top of it is exposed for a few inches where the tile crosses the alley and enters Pinder’s property.
“The Court finds as a fact that there is absolutely no brick wall constructed in front of the north opening of the drainage tile; that there is no evidence whatsoever that there was ever any brick wall constructed at that point; that there is no evidence -of any considerable number of bricks near the opening to the tile.
“The Court does find as a fact that there is one row of concrete building blocks running near the south line of Pinder’s property in an easterly and westerly direction, but does find also as a fact that these concrete blocks are on top of the earth which is covering the tile at that point and the concrete blocks do not interfere in any way with either the natural drainage or with the water passing through the tile.
“The Cou'rt does find that where the tile enters the property of L. J. Pinder there has been placed some rubble at the opening which does go into the tile for a few inches but is principally north of the opening or outlet of the tile. The Court finds as a fact that the rocks or rubble so placed would not interfere with the water passing through the tile in any manner whatsoever, since the original opening drainage' ditch across the L. J. Pinder property has been entirely filled up and the earth in the ditch would impede the flow of water through the tile as much as it is impeded by the rubble placed at the end of the tile for the purpose of keeping the earth from being washed away by the flow of water.
“The Court found from observation that any drainage ditch that may have been constructed by the City across the property of L. J. Pinder is presently completely filled up so that there.is no evidence of a ditch across this lot at this time.”
“The Cou'rt found as a fact, from observation also, that there was a drain constructed by the City underneath the sidewalk on the south side of Wood’s property and that the concrete tile connects with the drain under the sidewalk and from the street at the same level that the drain is constructed.
“Mr. Kay: ‘You mean the drain from the south side?’
“The Court: ‘From the south side. In other words, there are two drains there. There is a drain that comes from the south into the street that is to the east of the one that comes from the street out north on to Wood’s property normally but which is now connected with this tile that goes underneath Wood’s property.’
“Mr. Kay: ‘Would-the Court state, from your observation, how low under the concrete sidewalk that drain is?’
“The C-ou'rt: ‘Well, it is I’m sure an eighteen-inch tile and the top of the tile is constructed below the sidewalk. The top of the tile is slightly under the present surface of the lot. Toward the back or north side of the lot you can see a little ridge in the lot -over the tile.’ ”

- At the conclusion of the introduction of the evidence the trial judge dictated into the record the following:

“Gentlemen, there is one point in this case that I would like to know whether there is any instrument granting a right-of-way for a drainage ditch of any kind across either or both of these lots.
“The existence of such an easement and the recordation of such an easement is what determines the decision in this case as I see it.
“The proposition is this: This man Pin-der bought a lot. Now whether or not there was an easement across that lot, a right-of-way which is a matter of record, depends on what he can do to his lot. If there was an easement across there granted to the City by the Edgewood Land and Lumber (Logging) Company, then he must observe that easement and not interfere in any manner with what was already there. Therefore, it is very important to the Court to know whether there was any written instrument of record at that time these transaetions took place.”

The trial judge then held the case -open for the introduction of such proof and continued the case to June 21, 1948.

Although the petition is inarticulately drawn, we are of the opinion that it relates to a natural servitude of drain. The natural servitude of drain is a predial or landed servitude; it is established for the benefit of an estate and is rather due to the estate than to the owner personally. Civil Code, Art. 646.

Article 660 of the Revised Civil Code provides: “It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude. The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water. The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.”

Article 667 of the Revised Civil Code provides that “Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

Article 724 of the Revised Civil Code provides that, “The conducting of water or aqueduct is the right by which one conducts water from his estate .through the ■land of his neighbor by means of an aqueduct or ditch.”

According to Article 727 and 728 of the Revised Civil Code, the servitudes of aqueducts or ditch and/or drain are -continuous apparent servitudes. Such servi-tudes can be acquired by the prescription of ten years. Kennedy v. Succession of A. & S. McCollam, 34 La.Ann. 568. Article 767 of the Revised Civil Code provides that “The destination made by the owner is equivalent to title with respect to continuous apparent servitudes.”

Under the facts as we view them, prior to 1925, the Edgewood Land & Logging Company owned all of the property to the south of Block 11 and also Block 11. It dedicated, by its subdivision, First Street to the Town of DeQuincy. The natural flow of water of the property to the south of First Street was towards the south, across First Street and thence across Block 11 at about the center thereof. After the Edgewood Company built a raised sidewalk abutting on the south of Block 11, the natural drain to the north was obstructed, causing the water to pond on First Street. In order to relieve that situation, with the consent, approval and authorization of the Edgewood Company, the then owner of lots 12 and 5, the Town of DeQuincy constructed and laid underneath the sidewalk, an 18-inch galvanized drain pipe up to about eight feet on lot 12 and dug a ditch, three feet wide and two feet deep, across and through the whole of Block 11, lying alongside the western portion of lots 12 and 5. This ditch was sufficient to take care of the ordinary drainage of the property to the south of First Street and First Street.

According to Articles 724, 727 and 728, supra, the construction by the Town of the culvert underneath the sidewalk and the ditch was the construction of a continuous apparent servitude which can be acquired by prescription of ten years. Kennedy v. Succession of McCollam, 34 La.Ann. 568. Parol evidence is admissible to show when this culvert and ditch were constructed. We have no definite proof when the culvert and ditch were so constructed.

There is also evidence lacking in this record definitely showing when and by whom the sidewalk was constructed and the elevation of the same above lot 12. Plaintiff had the right to fill in his property at least even with the grade of the sidewalk.

However, we are of the opinion that the culvert and ditch were a destination made by the owner of lots 12 and 5 for the benefit of First Street, and the property to the south thereof and particularly for the benefit of lot 12 which faced First Street. Under the provision of Article 767, it is equivalent to title. The evidence is meagre and the case should be remanded for further evidence relating thereto.

It could be said that the above position can only be raised by the Town of De-Quincy and/or property owners to the south of First Street. However, under Code of Practice, Article 15, plaintiff as owner of property facing south on First Street has a real right to see that water is not allowed to pond in front of his property and thereafter overflow across the sidewalk and thence over his property. It would make the servitude of drain over his property more burdensome to close the culvert underneath the sidewalk and the ditch.

Now passing to the rights of the parties inter sese: The plaintiff has failed to prove that defendant has constructed a brick wall at the end of the concrete drain as alleged and testified to by him. However, we are of the opinion that the evidence shows that defendant has caused obstructions to be placed in close proximity of, if not within, the mouth of the concrete drain to such an extent so as to materially affect the flow of water therefrom. According to some of the disinterested witnesses, the mouth of the drain is two-thirds closed. According to our finding, the defendant has completely filled in the ditch constructed by the Town of DeQuincy. We feel that it has been sufficiently shown that when defendant purchased lot 5, the ditch was there and was fully apparent that it had been constructed to carry such waters as were discharged from the concrete drain.

One of the prohibitions enumerated in Article 660, supra, is that the defendant could not impede or prevent the discharge of the water from the concrete drain and the subsequent running of such water through this ditch.

It appears from the written reasons for judgment and the judgment subsequently rendered that the judge held that defendant had not done anything to prevent the flow of water, but to the contrary that the plaintiff had constructed the concrete drain which rendered the natural servitude due by the property of the defendant more burdensome and therefore in violation of the second prohibition contained in Article 660, supra. In this, we believe he has erred as a proposition of law. Article 660 is to be liberally construed in favor of the estate to which the servitude is due. Guesnard v. Bird, 33 La.Ann. 766. It has been repeatedly held that the owner of an estate whose waters flow by natural drains on the land of hif neighbor, may cut ditches by which the waters may be concentrated and their flow increased beyond the slow natural process by which they would ultimately reach the same destination. The evidence in this case conclusively shows that neither die Town of DeQuincy nor the plaintiff has constructed any artificial aqueduct or drain which would make the natural servitude of drain which defendant’s property owed either to the Town or plaintiff’s property more burdensome. The construction of the galvanized culvert underneath the sidewalk by the town and the culvert drain by the plaintiff have only concentrated and increased the water which would ultimately flow on defendant’s property. The defendant has utterly failed to show that this drain causes more water to flow on his property which ultimately would not flow but on account of this drain.

We admit that the defendant is free to do with his property <yvhatever he pleases, “still he cannot make any work on it, which may deprive.his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.” Revised Civil Code, Article 667. The evidence in this case, in our opinion, shows that the obstructions placed at or in the mouth of the concrete drain, and the filling in of the ditch sufficiently retards the flow of water so as to cause the water on First Street to pond and overflow .the sidewalk and plaintiff’s property.

Exercising the discretion vested in us under Article 906 of the Code of Practice, it is ordered that the judgment appealed from be and the same is hereby avoided, annulled and reversed; and the case is remanded to the Fourteenth Judicial District Court for the Parish of Calcasieu for trial consonant with the views herein stated; the costs of this appeal to be paid by defendant, all. other costs to await the final termination of the suit.

Reversed and remanded.


author: LeBLANC, Judge.

text:
    BROUSSARD v. WINN et al.
    No. 3124.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.
    King, Anderson & Swift, Lake Charles, Wm. M. Hall, Jr., Lake Charles, for appellant.
    Thos F. Porter, Lake Charles, Thos L. Raggio, Lake Charles, W. H. Adams, Jennings, for appellees.
   LeBLANC, Judge.

This case presents rather simple propositions of law and after they are brushed aside there is nothing but a question of fact relating to the age of an old fence which plaintiff claims has constituted, for over thirty years, the boundary line between his property and that of the defendants.

There is no dispute regarding the respective titles of the two properties. Alfred Broussard, the plaintiff, acquired his land from the Calcasieu National Bank of Lake Charles, In Liquidation, on February 5, 1945 and he shows a complete chain of title running back more than fifty years. The defendants, Mrs. Edith Blackshere Winn and Miss Fannie Edith Winn, hold title to their property through Thomas Hillyard Winn and that title also goes back a long number of years.

The title to each property, upon acquisition, was described according to governmental subdivisions. The plaintiff’s property is situated in the north half of Section 18, Township 11, South Range 3 West of the Louisiana Meridian and that of the defendants in the South half of Section 7 of the same Township and Range. According to their respective descriptions the dividing line between them would be the section line between Sections 7 and 18. Section 7 adjoins Section 1.8 on the north.

Disregarding the section line as the boundary, however, the plaintiff alleges that the north boundary of his property which is the boundary line between him and the defendants, has, for more than fifty years, been a fence. He alleges also that the boundary line between them has never been fixed in accordance with the provisions of Article 835 of the Civil Code which relates to the fixing of boundaries between estates.

He next alleges that for more than fifty years, by acquiescence of the owners of both of the said properties, the fence referred to was built and established as the boundary line between them and that the said fence' as originally built and repaired and rebuilt from time to time, by acquiescence of the respective proprietors during all of that period, remained in its original position and that he and his ancestors and vendors in title have continuously, uninterruptedly, openly, notoriously and adversely, occupied and physically possessed the lands described as being his own, up to the said fence boundary line where it has remained for more than fifty years and he is therefore the owner of the said lands by virtue of the prescription of thirty years.

He next alleges that the said line as established by the fence built thereon, has remained in its original location until about a year ago, when the defendants, over his objections and protestations, and without being authorized by any order of court, went upon his said property and demolished and removed approximately 1/3 of the west portion of the said fence constituting the boundary line between them, so that approximately 1/3 of the said boundary line is no longer to be seen.

He pleads the prescription of ten years, of twenty years, and the prescription of thirty years against any change in the location of the said fence boundary line as originally built and established more than fifty years ago.

He then alleges that there is a dispute between him and the defendants as to the location of the boundary line between their respective properties as he claims the correct line to be the old fence herein referred to whilst the defendants claim the correct line to be to the south of that fence.

Pleading in the alternative, he alleges on information and belief that the old fence which he has described is situated on the dividing line between Sections 7 and 18 but in the event that that should not be so and that the old fence should be shown to be north of that section line, then the old fence is still the boundary line between their respective properties because it has been in existence and accepted as such for more than thirty years and he and his authors in title have possessed the land up to that fence for more than that period of time. He alleges that he has endeavored to obtain the consent of the defendants to fix the boundary line between them extra-judicially but they refuse to settle the matter amicably and it therefore becomes necessary to have a judicial fixing of the boundary made in the manner prescribed by law, to which end he asks that a surveyor be appointed by the court to take the necessary steps and to establish the boundary between them. In the prayer of his petition he asks for the necessary orders and that after proper proceedings, there be judgment in his favor and against the defendants, decreeing the boundary line between their respective properties to be fixed at the original location of the old fence line and that the said defendants be ordered to rebuild and replace, in its original location, that part of the fence which they have demolished and removed.

The district judge signed the necessary order appointing a surveyor and, as it appears from the record that the surveyor so appointed was unable to act, it became necessary that another be appointed in hÍ9 stead.

In the meantime the defendants appeared in court and filed a motion in which they made it to appear that plaintiff had presented two inconsistent demands in as much as he had asked the court on the one hand to decree the boundary line between their two properties to be a fence that has existed for the past fifty years and on the other hand he had alleged that the boundary line between the two properties had not been fixed, and they therefore asked that he be made to indicate on which of the two demands he would stand. According to the minutes of the court this motion was argued and presented to the court and denied. Subsequently, the defendants filed exceptions of no cause of action and no right of action and two days later they filed their answer.

Their defense seems to be that the true boundary line between the two properties is the dividing line between Sections 7 and 18 and that it is marked by an old fence which is not the fence referred to by the plaintiff however as being the boundary line between them. With respect to a certain portion of the said boundary line, defendants admit that it is not marked by a fence but with regard to the most eastern I,429 feet of the lands claimed by plaintiff, defendants aver that the present fence and the section line coincide. Defendants admit that plaintiff has endeavored to obtain their consent to fix the boundary line extra-judicially, but allege that the only terms on which he offered to fix it were that it be fixed in accordance with what were his contentions regárding the same.

Further answering the defendants set out that previously, the plaintiff together with Harvey Broussard and Alcee Mere, each of whom own a small tract of land adjacent to the plaintiff’s and also separated from their property by the same 'line, had instituted a suit against them in the district court for the Parish of Jefferson Davis and had alleged in their petition that the entire boundary line between their properties and that of the defendants was a straight line running from east to west and being a part of the north line of Section 18, Township II, South Range S West and that therefore plaintiff is now e'stopped from asserting that the correct boundary line on the north Of his property is any other than a straight line commencing at the east end of the fence which he alleges to be in existence along the north side of his part in said Section 18 and running due west from commencing point.

In 'the prayer of their answer, the defendants ask that plaintiff’s demands be rejected and his suit dismissed at his costs. As an alternative they pray that should the court attempt to ascertain and fix the boundary line between their respective properties that the estoppel prayed for by them be recognized and that plaintiff be estopped from claiming a north boundary of his property to be any other than the line described in the petition in the suit formerly instituted by himself and his two co-plaintiffs. As a second alternative they pray that in the event plaintiff be not estopped that the boundary line between their properties be fixed in accordance with' their respective titles.

The surveyor appointed by the court carried out the orders which had been given, made his survey and filed his proces verbal, all in accordance with law. He attached a map showing the complete details of his survey. The conclusion he reached is that the section line between Section's 7 and 18 is 10.4 feet south of the old fence which plaintiff claims, is on the boundary line between the properties, and 11.5 feet north of a point established by the defendants as the proper boundary line fixed by a surveyor employed by them.

The trial court first disposed of the exceptions of no cause of action and of no right of action, by overruling the -same. The case was afterwards tried on the merits and resulted in a judgment in favor of the plaintiff, decreeing the boundary line between the two properties to be along the location of the old fence as claimed by the plaintiff as it had existed for more than thirty years prior to the time when a portion of it was removed and torn down by 'the defendants. Plaintiff was given the right to institute a separate action against the defendants for such damages as he may have sustained by reason of the destruction of the fence and the defendants were taxed with all costs, including costs and fees of the surveyor appointed by the court. From that judgment, they have taken this appeal and again urge their exceptions of no cause and of no right of action as well as their defense on the merits to the effect that the old fence claimed by the plaintiff as being the 'true boundary line is not supported as such by the proof in the record. They urge that the real boundary is the dividing section line between the two properties.

We do not find any difficulty in agreeing with the trial judge in his reasons for overruling the exceptions of no cause and of no right of action. The exceptions are based on the proposition that under the •allegations of the petition, plaintiff cannot support his demand for a fixing of the boundary between the two properties. Counsel contend that since plaintiff alleged in one paragraph of his petition that the boundary between the two' estates had been established, he -cannot invoke the right granted to a party under Artide 823 of the Civil Code 'to compel them to fix the limits of their respective properties, as that article specifically provides that it is only when two estates or lands that are contiguous, have never been separated, that neither of the parties has a right to compel the other to fix the boundary. They urge further that the Supreme Court in the case of Opdenwyer v. Brown, 155 La. 617, 99 So. 482, 483, in referring to that artide held that the action in boundary lies in three cases only: “(1) When the adjoining estates have never been so separated; (2) when the two estates have once been separated, but the physical bounds are no longer visible; and (3) when the bounds have, been fixed incorrectly.”

If we were concerned with only the first of the three conditions enumerated there would be merit in counsel’s argument because it may very well be that according to the allegations made by plaintiff, his estate has been separated from that of the defendants. As a matter of fact, he relies throughout on that very separation alleged by him in his petition which consists of an old fence that has existed for fifty years or more. However in a subsequent paragraph he further alleges that the old fence had remained in its original location until about one year before when over his objections and protests, the defendants went upon his property and tore down a part of it, to be exact approximately % of its west portion, and the result was, that approximately that much of the boundary line between them “is no longer to be seen”. That allegation, in our opinion, as it was in that of the district judge, brought the case squarely within the terms of the second condition enumerated in the cited case involving Article 823 o'f the Civil Code, and even more squarely within the language of that article which gives to one of the parties the right to compel the other to fix the limits of the respective properties “if the bounds, which have been formerly fixed, are no longer to be seen.” (Italics ours.)

There was another point presented in the lower court 'in support of the exceptions and which was passed on by the district judge but as it is not urged before us we find it unnecessary to review his ruling thereon.

This brings us now to a consideration of the case on the merits which involves a consideration of the testimony relating to the fence which the plaintiff claims is the boundary line between his property and that of 'the defendants, constituting a visible bound or monument which has existed for more than thirty years, and to which the ideal boundary which may be shown by a survey has to yield.

We will take up for discussion first the so-called ideal boundary which would be the dividing section line between Sections 7 and 18, Township 11, South Range' 3 West. Even though there were three surveys made by three different Civil Engineers, all three of whom testified in the case, we find that we are still left without a definite location of that line.

First we have the survey made by Jasper Bourgeois, Civil Engineer employed by the plaintiff, who tried to locate it. His testimony is 'to the effect that failing to find any bearing tree used by the government, at the time the government survey was made, he used, as his commencing point, the stump of an old tree 'in the swamp on the north 'shore of Lake Arthur which he identified, as best he could, as one of the government bearing trees and surveyed along the range line between Ranges 3 and 4 and claims that he located the section line between Sections 7 and 18 at the same point; or almost on the same line on which the old fence claimed by the plaintiff as being the dividing line, was built. He testified that using a tree which he identified as being one of the government bearing trees, as a starting point, is an accepted method in the practice of surveying'. We are left in serious doubt as to the conclusion he reached as to the dividing section line being where he placed it. His testimony however, with regard to the fence and its apparent age is of some value, but this we will discuss later on.

Fred Shutts is a Civil Engineer who was employed by the defendants. He had made his survey prior to the former suit instituted by plaintiff and his co-plaintiffs, Harvey Broussard and Alcee Mere. In fact it was on the basis óf what he established ■as the true dividing line of the two properties that the defendants proceeded to demolish the old fence with the idea of rebuilding a fence on the line which he had fixed at some distance south of the old fence. Shutts neither, could find any government bearing tree or any other government marks to take as his starting point in making his survey and what he did was to go the the north boundary of the defendants’ property on the dividing line between Sections 6 and 7 and use an old fence which he found there as his starting point. Using that point, he measured a mile coming towards Section 7 and struck a point at that distance to establish the true line between Section 7 and 18 in order to fix the boundary between the two properties. He states that his method is also accepted in good surveying, but it seems to us to be as arbitrary as that used by Bourgeois. We conclude therefore that under Shutt’s testimony we have no more reason to say that he has definitely fixed the dividing section line between 7 and 18 than did Bourgeois.

The surveyor appointed by the court, E. S. Gorham, seems to have approached the problem by a different method also. In his proces .verbal, he says that he found nothing more convincing as a starting point than a very old fence at or about the northwestern corner of Section 6. That seems to be the same starting point as was used by Shutts but strange to say, when Gor-ham reached the fence between the two properties, as is stated in his proces verbal, he was then 10.4 feet south of Bourgeois’ and 11.5 feet north of that which had been set by Shutts in his survey.

We do not pretend to question the ability of these three Civil Engineers and we greatly respect the conviction of each as to the conclusion he has reached in this matter. The fact remains however that there is too great discrepancy among them for a court to accept the findings of any of them as the true location of the dividing line, between Sections 7 and 18, Township 11, South Range 3, West as established in the government survey made many years ago.

Because of the confusion regarding that line, the case then, in our opinion, presents a classical example of the kind of case that arises under, and has to be decided according to the provisions of Article 852 of the Revised Civil Code and especially as the law was interpreted by the Supreme Court in the case of Opdenwyer v. Brown, supra. The ideal boundary; according to the titles, is a governmental section line which it is impossible to locate on the ground. Otherwise there is a visible boundary in the form of an old fence on a line between the two properties which may serve as a boundary provided it has been in existence for thirty years or more. The dé-termining question therefore is whether or not the plaintiff, who has the burden of proof, adduced sufficient testimony to show that the fence has been in existence and recognized ■ as the boundary for the stated period of time. He comes before this court with a favorable judgment from the court below and we are then left with only the question whether or not the district judge who rendered that judgment committed manifest error in doing so. We are satisfied that he did not.

The trial judge in a carefully prepared written opinion discussed the testimony of various witnesses with regard to this fence at some length and he moreover took the trouble to personally inspect the locality. There is no doubt that his investigation helped very materially to confirm his opinion that the testimony of several witnesses for the plaintiff was correct when all of them stated that it is their recollection that the fence was in the same place where it exists today for more than thirty years, some of them placing the period as far back as fifty years. Among the witnesses who so testified was Theodore Broussard who owned and lived on the property now owned by the plaintiff, from 1906 to 1927. He is 72 years of age and remembers the fence as it existed even as far back as the year 1900. Arthur Gudry, another witness for the plaintiff, is 75 years old. He farmed the land as far back as the year 1894. He testified that the fence was built by a family named Lorraine who owned the property at that time. He says that the fence is at the same place where it always was, and he inspected it just the year before this case was tried in the district court. Harvey Broussard, 57 years old and Jules Dupre, 52 years old are two other witnesses who testified for the plaintiff that they are familiar with the property and remember the fence for as long as their memory can take them back to. All of these witnesses were positive that the fence never was moved from its present location and while some of them admit that it is not on a direct straight line, it is evidently a straight fence as fences generally are considered in the country.

Several witnesses, including the Civil Engineer, Jasper Bourgeois, identify the location of the fence by certain trees planted along its line and in some instances these trees are identified as being rather aged. Some also testified about pieces of fence wire being imbedded in the bark of some of the trees.

Bourgeois also stated that it is a common practice in his profession, in determining the age of an old fence, to give great weight to the fact that there are large- trees along its line. The witness E. L. Gorham, concurred in the importance that is to be attached to full grown trees along a fence line.

The only testimony which contradicts that of these numerous witnesses is that of one of the defendants, Miss Edith Winn and a man by the name of H. J. Hurst who formerly worked for her father. These two witnesses seem to confuse the fence plaintiff claims serves as the boundary between the two properties with another fence located south of a driveway or a lane extending from the highway and which lane had been established by Miss Winn’s father some time in the year 1918. Miss Winn especially contends that that fence was on the section line as found by the surveyor, Shutts, and that at one time her father pointed out to her this line as being the boundary line between the two properties, identifying the same as being in line with a large oak tree. With regard to this testimony the district judge had this to say: “It is obvious from an inspection of the premises and from aerial photographs which were introduced 'in evidence that a driveway did exist some years ago along the north side of said row of Oak trees and although the court is convinced that Miss Winn and Mr. Hurst are sincere and are absolutely honest in -their testimony, it is also convinced that their recollection as to the location of such driveway is- in error. The court concludes from the evidence that the driveway leading from the highway in an easterly direction to -the Marcena Brous-sard home was located north of the row of Oak trees until 7 or 8 years ago, that the fence which then ran along the south side of such driveway and continued in an easterly direction is the same fence which presently separates the two properties and that such fence was then accepted and regarded as the boundary line now in dispute and has been regarded as the boundary line between said two tracts of land for more than thirty years.”

Other than the testimony of Miss Winn and Mr. Hurst, the defendant presented that of two other witnesses, one by the name of L. V. Laurents and the other A. W. Jessup. These two witnesses were employed by the defendants to remove the existing fence and rebuild a fence along the line established by the Shutts survey. They testified that while digging postholes along the new line, and while Miss Winn was present, they found old pieces of lumber buried in the ground with small pieces of wire attached' to them, and these, they claim are remnants of old fence posts, which once upon a time, existed on that line. They also say they found a tree stump which had been cut off even with the ground on the line. The defendants offered a small piece of the deteriorated lum-' ber in evidence but evidently the trial judge did not give it much consideration as proof. It was not sent up with the transcript and we therefore are not able to examine it. A reading of the testimony of these witnesses in connection with this point, does not impress us very much as affording testimonial proof of the existence of a fence on that line such as is claimed by the defendants. Not a single witness was produced who has any recollection of ever having seen such a fence on that line. Besides, it is rather significant that Miss Winn, who is said to have been present when this discovery was made, did not testify at all concerning it when she was on the witness stand.

Under the facts therefore as he found them, and in which we certainly believe he was correct, the trial judge properly applied the law as pointed out in Article 852 of the Revised Civil Code establishing the boundary line between the two properties as being at the location of the old fence which was proved by an abundance of testimony, to have existed and been recognized as the boundary line between the two properties for more than thirty years. The case of Opdenwyer v. Brown, supra, and also the case of Latiolais v. Robert, La.App., 8 So.2d 347, are authority in support of the judgment rendered.

Defendants complain that they have been taxed with the costs of the survey which, they claim, should have been taxed jointly between them and the plaintiff, as provided for in Article 663 of the Revised Civil Code. Whilst it is true that this article provides for costs at the joint expense of the parties when one is compelled by the other to have the boundary line between their properties fixed, judicially, it is also true that in certain cases, where one of the parties arbitrarily refused to an amicable fixing of the boundary line and the other has to resort to a judicial proceeding like in this case, equity steps in and forces the party who refused, to stand the whole burden of the costs of the survey.

We held that very thing in the case of Olivier et al. v. Melancon, La.App., 40 So.2d 683, decided only a few weeks ago and in doing so relied on the authority of Dufrene v. Bernstein, 190 La. 60, 181 So. 859. Defendants counsel urge that in this case there was a bona fide dispute as to the correct location of the boundary line, and therefore, under some authority which they cite, the provisions of Article 663 of the Civil Code should be applied. In plaintiff’s petition it is alleged that an amicable request was made to have the line fixed extra-judicially and the same was refused by the defendants. This allegation was admitted in their answer. If that were the only thing that had happened, it may be that counsel’s argument would be sound and it would be that in order to settle an amicable dispute between the parties it became necessary to have a judicial survey made. But that wasn’t all. After the request had been made, the defendants further resisted an amicable adjustment by employing their own surveyor who established the boundary line at a place other than where the old fence stands.' With the information from that survey alone, they then proceeded to tear down the old fence with a view of rebuilding a fence on the line which they then claimed was the true boundary and it took a court order to restrain them. We believe, that under the circumstances no further demand on the part of the plaintiff was necessary. These defendants said that they would be unwilling to accept any other line than the one their surveyor had established and the only recourse left to the plaintiff, was to call, for a judicial survey as he did. We believe therefore that the costs of that survey were properly taxed against the defendants.

For the reasons'stated, the judgment appealed from is affirmed at the costs of the defendants, appellants herein.