author: CALOGERO, Justice. BLANCHE, Justice. CALOGERO, J., DIXON, Chief Justice DENNIS, Justice,

text:
    The CONTINENTAL GROUP, INC. v. J. L. ALLISON, Jr., et al.
    No. 67188.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    On Rehearing June 22, 1981.
    Concurring Opinion On Rehearing Oct. 8, 1981.
    Rehearing Denied Oct. 9, 1981.
    Blanchard, Walker, O’Quin & Roberts, Robert Roberts, III, Joseph W. Milner, Randall S. Davidson, Shreveport, Wright, James, Hogg & Bleich, Howard W. Wright, Jr., Ruston, Colvin, Hunter, Brown, Plum-mer & Means, D. Scott Brown, Mansfield, for plaintiff-applicant.
    Wiener, Weiss, Madison & Howell, John M. Madison, Jr., James F. Howell, James R. Madison, Wilkinson, Carmody & Peatross, W. Scott Wilkinson, Shreveport, for defendants-respondents.
    Daniel T. Murchison, Watson, Murchison, Crews, Arthur & Corkern, Natchitoches, Frank W. Voelker, Jr., Voelker, Ragland, Brackin & Crigler, Lake Providence, Wedon T. Smith, Smith, Taliaferro, Seibert, Boothe & Purvis, Jonesville, Gene W. Lafitte, Joe B. Norman, Charles C. Gremillion, Liskow & Lewis, New Orleans, William D. Brown, Brown, Wicker, Lee & Barnes, Monroe, Louis D. Curet, D’Amico & Curet, Baton Rouge, Thomas A. Self, Self & Burkett, Many, T. Lynn Geneux, Herold & Geneux, Shreveport, George H. Meadors, W. F. M. Meadors, Meadors & Meadors, Homer, R. H. Madden, III, L. D. Napper, III, Napper & Madden, William S. Carter, Jr., Robert G. Dawkins, Dawkins, Coyle & Carter, Ruston, Raoul P. Sere, Lancaster & Sere, Metaire, Malcolm S. Murchison, Ray A. Barlow, Har-grove, Guyton, Ramey & Barlow, Shreveport, James G. Bethard, Henry Bethard, III, Bethard & Davis, Coushatta, Richard E. Gerard, Lake Charles, Richard B. Sadler, Jr., Ledoux R. Provosty, Jr., Provosty, Sa-dler & Delaunay, Alexandria, Edgar H. Lancaster, Jr., Lancaster, Baxter & Seale, Tallulah, Howard Coghlan, Kenley, Boy-land, Coghlan & Erskine, Longview, Tex., Edward G. Randolph, Jr., Alexandria, for amicus curiae.
   CALOGERO, Justice.

In the year 1956 after two years of negotiations, Mansfield Hardwood Lumber Company sold for approximately $90.00 per acre, 92,000 acres of timberland in seven parishes in North Louisiana to Robert Gair Co., Inc. predecessors of the Continental Group, Inc. In that sale there was specifically reserved to vendor “all mineral rights” and there was further included a damage clause providing for restitution to the vendee for impairment of his interests incurred in the exercise of such mineral servitude.

An additional 1100 acres of timberland were not sold in 1956 because of title deficiencies, the conveyance to Continental being accomplished later, in 1963, following curative title work. That sale also excluded, or reserved to vendors, “all mineral rights” with a similar damage clausé operating in favor of the vendee.

At the time of the sale some 20,000 acres were subject to oil and gas leases. No other minerals were then subject to leases or in production. There were known sand and gravel deposits on some of the acreage, and while lignite, a type of coal, was known to exist on certain acreage, production apparently was not then economically feasible.

Due to worldwide trends in the decade of the 1970’s prompted in part by the advent of the OPEC oil cartel, the relatively high cost of extraction of lignite was overcome by the value of that substance in the energy marketplace. Profit from the strip mining of lignite had become feasible.

In 1977 plaintiff Continental sued J. L. Allison, Jr. and several others, former corporate shareholders in Mansfield, and assignees of Mansfield’s reserved mineral rights, seeking a declaratory judgment that the servitude created by reservations in the sale included only the right to explore for and exploit oil, gas and kindred minerals and not the right to explore for or strip mine for solid minerals such as lignite.

After exhaustive discovery and protracted trial, there was judgment in the district court in favor of plaintiff Continental that the parties to the 1956 sale had not contemplated that lignite coal would be included in the vendor’s reservation of “all mineral rights”. The trial judge commented that in his opinion the case was close enough to have been decided either way.

The Court of Appeal reversed this decision holding that under the peculiar circumstances of the case, Gair (Continental) and Mansfield (defendants’ predecessor) had in fact intended to include in the reservation the right to explore for various substances designated as minerals, including lignite coal.

We granted writs upon the application of Continental which contests the Court of Appeal decision. They complain of the “far reaching consequences” of the decision below.

Two issues are here presented: whether the reservation of “all mineral rights” included the right to explore for lignite coal; and if so, whether the mineral servitude as to lignite had prescribed for ten years non-use on the lands involved in this litigation (some 20,000 acres) notwithstanding production of oil and gas (the latter question posed differently is, does interruption of prescription of a mineral servitude apply to all types of minerals covered by the acts creating the servitude and to all modes of the servitude’s use?).

For the reasons so ably stated by the Court of Appeal and for those which follow, we hold that the mineral servitude here created included the right to explore for lignite and that oil and gas production on the 20,000 acres interrupted prescription as to the lignite mineral servitude.

Mansfield specifically and broadly reserved “all mineral rights”. Plaintiffs contend that Mansfield and Gair, Continental’s predecessor, intended to restrict the reservation to oil and gas. The facts we find, and as found by the Court of Appeal, do not support plaintiffs’ position, but just the reverse.

The Court of Appeal exhaustively treats this first factual issue of the contractual intention of the parties; we choose simply to adopt that reasoning. As discussed in the court below, the circumstances preceding and subsequent to the act of sale are indicative of what in fact transpired in the agreement between Mansfield and Gair.

The 1956 act of sale was perfected after two years of extensive negotiations between the parties and took place one year subsequent to an agreement to sell. In negotiating for the sale of these lands, the vendor offered to convey to vendee all of the minerals, or the right to extract all minerals for an additional ten dollars per acre. The vendee declined to accept this offer, and the trial court so found. This decision not to purchase all the minerals is among the strongest indications of the intention of the parties concerning what was reserved and what was intended to be reserved when the parties employed in the contract of sale the language “[tjhere is expressly excluded from this sale, and the vendor reserves, all mineral rights in the lands conveyed hereunder ...” Gair’s unwillingness to purchase the minerals does not demonstrate, as the trial court decided, an indifference to the ownership of the mineral rights. Rather, it suggests a positive decision on Gair’s part to refrain from purchasing the rights to minerals in which they, by their own admission, had no interest whatever. And it is the opinion of this Court, just as it was suggested to Gair by Mansfield at the time Gair chose not to deal for the minerals, that Gair rightfully be bound to the consequences of their decision and that they be held to have intended to surrender claim to those rights.

An early draft of the agreement to sell prepared by plaintiff provided that the sale would be “. . . exclusive of mineral rights ...” and that “... there shall be excepted and reserved to the seller in each deed . . . all mineral rights.” At a point later in the negotiations when Gair’s New Orleans counsel attempted to restrict the term “all mineral rights” to exclude the right to extract earth, sand, and gravel, such attempt was met by Mansfield protest and, as a result, the reservation remained unrestricted. While the attempt to restrict the mineral reservation to exclude sand and gravel admittedly says nothing specifically about Gair’s intentions concerning other minerals, such as lignite, Mansfield’s refusal to limit the servitude indicates that the negotiators for that company were determined to retain, as defendant suggests, the rights to all minerals.

Apparently in response to the vendor’s refusal to make any exceptions to the broad reservation of “all mineral rights”, there was included in the contract of sale the damage clause set forth at footnote one of this opinion. That damage clause is sufficiently broad to encompass all damages to be occasioned by Continental including not only damage to standing timber but also damage to the vendee’s timber growing operations.

We focus here on the intention of the parties because that is ultimately the significant question. It deserves noting, however, that the language employed in the mineral reservation is not ambiguous. The words “all mineral rights” clearly encompass solid minerals such as lignite as well as fugacious minerals such as oil and gas. There is a bit of convolution in plaintiff’s position that the words of the reservation properly interpreted excludes solid minerals and that it is therefore incumbent on defendants to prove that the specific intention of the parties was to include the reservation of lignite and/or any other solid minerals.

Plaintiff’s approach is not wholly without support but it is not, in our view of this case, correct.

In the more usual mineral servitude grant involving landowner and mineral pur: chaser, broad language has understandably and properly been restricted by the courts. Consequently there has arisen the principle that the proper interpretation is that which least restricts ownership of the land conveyed (McDuffy v. Weil, 240 La. 758, 125 So.2d 154 (1964)) and the rule of ejusdem generis.

The latter principle has been applied to interpret “iron, coal and other minerals” in one of two deeds (the other having used the words “iron, ore, coal, fireclay, kaolin, and marl”) as not including oil and gas (Huie Hodge Lumber Co. v. Railroad Lands Co., 151 La. 197, 91 So. 676 (La.1922)); and to interpret “all the mineral, oil and gas rights” in lands conveyed to a farmer for grazing and agricultural purposes, as not reserving the right to exploit the land for sand and gravel. Holloway Gravel Co. v. McKowen, 200 La. 917, 9 So.2d 228 (1942). And in a recent case involving lignite coal, this Court refused writs after the Second Circuit determined that parties who had employed the commonly used Bath form oil, gas and mineral lease had effected a grant to explore for and produce minerals of the same physical properties as oil and gas, and that lignite coal was not included in that grant. River Rouge Minerals, Inc. v. Energy Resources of Minnesota, 331 So.2d 878 (La.App.2d Cir. 1976).

The case before us, however, on its particular and unusual facts is clearly distinguishable from the foregoing cases. For one thing, there were here two large timber companies confecting a not so usual sale of 90,000 acres of timber land for a price (geared to timber value) in excess of six million dollars. They specifically negotiated, incident to the timberland sale, concerning “all minerals” and “all mineral rights”. The language they chose to employ in the reservation was “all mineral rights” a term unaccompanied by other terms, unlike the cases cited hereinabove.

We therefore determine that the parties in this case intended what the words chosen clearly express, that the vendor reserved “all mineral rights”.

We do not intend, nor envision, this decision as affecting untold mineral leases outstanding in this state. We have simply decided this case on its particular facts.

One of plaintiff’s major arguments is that the lignite strip mining process so impairs surface rights that a timber company like Gair would not have purchased these lands had they realized that vendors were reserving the right to strip mine lignite. Thus, it is argued, the parties must have intended to exclude lignite from the reservation, or alternatively, there was no meeting of the minds.

With respect to the degree of impairment of surface rights, the assessment by the Court of Appeal is supported by the record. With respect to the contention that Gair would not have purchased the lands had they realized that vendors were reserving the right to strip mine lignite, that, of course is conjectural. The simple fact of the matter, however, is that Gair permitted, or agreed to, vendors’ reserving all mineral rights. They are to be held to their contract.

Nor are we impressed with plaintiff’s contention that vendors, while using unrestricted mineral reservation language, did not specifically contemplate or intend the reservation of the right to strip mine lignite; that they cannot be regarded as having contemplated the inclusion of a mineral substance having in 1956 no foreseeable economic value in the absence of an express intention to the contrary. The Court of Appeal response to this contention was:

The very word explore — long used with exploit in explaining the nature of the mineral servitude, whether oil and gas or solid minerals — implies a venture into the unknown or uncertain. This is in the nature of a ‘hope’ which may be sold or reserved. C.C. Art. 2451. The economics of mineral exploration and exploitation have always been uncertain and the fact that a particular mineral has no foreseeable economic value at the time a mineral reservation is made is but one factor to be weighed with other factors in determining what the parties intended. It was a factor in Holloway Gravel. It is a factor here, but to a much lesser extent because these parties bargained and negotiated about the scope of the term all mineral rights and eventually agreed that the term would not be limited, even as to gravel, and that a damage provision would be added to recompense, wholly or in part, the landowner for whatever it might suffer by reason of the exercise of the right of the servitude owner to all minerals. The Continental Group, Inc. v. J. L. Allison, Jr., et al., 379 So.2d 1117 at 1129 (La.App. 2d Cir. 1979).

The Court of Appeal was correct. The reservation of “all mineral rights” in this case included the right to explore for and exploit lignite coal, a solid mineral. And the Court of Appeal was likewise correct in remanding to allow the trial court and the parties to determine how and to what extent a reasonable exercise of the projected servitude by the strip mining of lignite by the defendants may be permitted by law, citing Delahoussaye v. Landry, 3 La.Ann. 549 (La.1948), the Louisiana Mineral Code, and La.Civ. Code arts. 772-779.

As already suggested hereinabove, the right in vendor’s assignees to strip mine for lignite coal is relevant in this litigation only to approximately 20,000 of the 90,000 acres of land conveyed, for it was only as to the 20,000 acres that defendants have preserved any mineral interest by their exploration for oil and gas. The mineral servitude as to the remaining acreage has prescribed through non-use, the parties concede.

With respect, however, to the 20,000 acres, plaintiff relators take the position that even if the mineral reservation is found to include the right to explore for lignite coal, that right has prescribed because production of oil and gas did not interrupt the ten year non-use prescription as relates to lignite.

The present mineral code answers this precise question favorably to defendants.

Prescription of nonuse is interrupted by the production of any mineral covered by the act creating the servitude. The interruption occurs on the date on which actual production begins and prescription commences anew from the date of cessation of actual production. R.S. 31:36.
An interruption of prescription applies to all types of minerals covered by the act creating the servitude and to all modes of its use. R.S. 31:40.

This provision of the mineral code, however, was not applicable until 1975 and this legal issue pre-1975 was not clearly resolved in the jurisprudence.

The Court of Appeal, therefore, relied on GMB Corp. v. Cox, 340 So.2d 648, (La.App.2d Cir. 1976) which held that the mineral code is to be retroactively applied where the particular issue has not been clearly resolved to the contrary by litigation. And in this instance the issue had not been so resolved.

Plaintiff asserts that the Court of Appeal should have but did not determine the applicable law pre-mineral code; that they, plaintiffs, are entitled to such resolution now, for, given their sought for interpretation and having such interpretation (prescription) apply ten years following reservation of the servitude, they claim a property right which should not be divested by retroactive application of the mineral code.

Without conceding the procedural point, that is, that the Code of Appeal’s reliance on Article 214 of the Mineral Code is inappropriate, but rather pretermitting that issue, we nonetheless hold that oil and gas production in this case did interrupt prescription as to the digging of solid minerals, for the reason that such is the preferred interpretation of the law as it was before passage of the Mineral Code.

Continental, in support of its contention that oil and gas production alone did not interrupt prescription of vendor’s right to strip mine for lignite, relies upon La.Civ. Code arts. 796-799 which generally relate to prescription of a mode of use of a servitude. Article 796 provides that the mode of servitude, which is defined as the manner of using it, is subject to prescription just as is the servitude itself, and in the same manner. And Article 798 provides that if the owner has enjoyed a right less extensive than is given him by his title, the servitude, whatever be its nature, is reduced to that which is preserved by possession during the time necessary to establish prescription.

Thus, plaintiff contends that while the drilling for and production of oil and gas has interrupted prescription with respect to the servitude as relates to oil and gas, the failure to strip mine for lignite has caused a loss by prescription of that mode of use of the servitude, that is, the extraction of lignite.

Our answer to that argument is this. The mineral servitude here at issue is a discontinuous servitude which is unlimited by title as to its exercise, whereas articles 796-799 are applicable only to discontinuous servitudes when the title creating same establishes limitations as to the mode of exercise.

As was stated at 33 La. Review 169 (1973):

The redactors of the 1825 Louisiana Code took the passage of Toullier out of context. In context, it is abundantly clear that Toullier speaks of the prescription of the mode of exercise of discontinuous servitudes. He did not deal with the different problem of the partial prescription of the area of the servitude by the prescription of non-use. Further, Toullier makes it clear that the prescription of the mode of exercise of the servitude is pertinent only if the title of the servitude contains limitations as to its mode of exercise. He says that
“if the servitude is not limited by its title. . .it is presumed to be unlimited; then the use of the servitude made during the night preserves the right to exercise it during the day, because a single act of exercise of the servitude preserves the whole of it, indefinite and unlimited, as it were: because, according to Article 707 [of the French Civil Code which corresponds with Article 790 of the Louisiana Civil Code of 1970] it is from the last day of enjoyment that the prescription begins to run.”
Toullier is saying that the question of the prescription of the mode of servitude arises only when there are limitations in the title pertaining to the mode of exercise of the servitude. Article 798 of the Louisiana Civil Code then is applicable when the title creating a discontinuous servitude establishes limitations as to the mode of exercise, for example, by night, by day, by carriage, or on foot. If there are no limitations, there is no question of the prescription of the mode of exercise under article 798.
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Article 656 of the Civil Code establishes the principle that servitudes are indivisible. By virtue of this principle, implicitly adopted in France, and in other civil law jurisdictions, partial use of a servitude suffices ordinarily to keep the servitude alive as a whole. . . .
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■ Upon conclusion, it is submitted that articles 796-97 of the Civil Code were intended to apply and do apply, to discontinuous servitudes in cases in which the exercise of the servitude is subject to limitations contained in the title. These articles have no application to continuous servitudes or to discontinuous servitudes in the absence of limitations in the title. . .. In Louisiana, where the period of non-use is ten short years, there are additional reasons for a balanced interpretation of articles 796-98. It is only such an interpretation that will do justice to the scheme of the Code and to the text of Toullier, the actual source of these provisions. (Emphasis Added). “Work of the Louisiana Appellate Courts for the 1971-72 Term.” 33 La.L.Rev. 169, 194-196 (1973).

Since the servitudes with which we deal in the case at bar are admittedly discontinuous and without limitation in their title, the Civil Code provisions cited by relators are inapplicable. We therefore determine that the applicable law with respect to this prescription issue and mode of use prior to the mineral code are the same as is now provided by that code at R.S. 31:40, which states: “An interruption of prescription applies to all types of minerals covered by the acts creating the servitude and to all modes of its use.”

Decree

Accordingly, the judgment of the Court of Appeal is affirmed and the case remanded to the district court for the further proceedings directed.by the Court of Appeal, consistent with the views expressed by this Court.

AFFIRMED; REMANDED TO THE DISTRICT COURT.

ON REHEARING

BLANCHE, Justice.

We granted a rehearing in this matter to reconsider our holdings concerning the scope of the mineral reservation and whether the right to search and capture the mineral lignite had prescribed for non-use notwithstanding the production of oil and gas.

Scope of the Mineral Reservation

As to this issue, we concede that the phrase “all mineral rights” is inherently ambiguous and the word “minerals” as defined in its broadest sense, would include anything not animal or vegetable and would even embrace the soil itself. Thus, the Court may examine extrinsic evidence to determine the intent of the parties when making the reservation. Huie Hodge Lumber Co. v. Railroad Lands Co., 151 La. 197, 91 So. 676 (1922).

We have taken cognizance of the reasons of both lower courts on this issue and acknowledge, as did the trial court, that the issue is a close one. Nevertheless, we prefer the exhaustive analysis made by the court of appeal concerning the contract negotiations leading to the reservation as determinative of the issue, and adopt that court’s analysis of the evidence that the reservation of “all mineral rights” included the right to explore for and exploit lignite coal, a solid material.

At the risk of being redundant we adopt their conclusion on this issue as follows:

“Mansfield and Continental negotiated about the broadness of the term all mineral rights. Continental wanted to restrict the term to exclude earth, sand and gravel. Mansfield wanted to keep it unrestricted.
“The digging of earth, sand and gravel certainly was contemplated as being included in the term all mineral rights. Lignite and other solid minerals are not excluded and the digging of lignite must be deemed to have been within the contemplation of the parties.” The Continental Group, Inc. v. J. L. Allison, Jr., et al, 379 So.2d 1117 (2nd Cir. 1979), at p. 1130.

The Prescription Issue

Plaintiff’s success on the scope of the reservation issue is short-lived, for we now reverse our earlier position on the prescription issue and find that the plaintiff’s right to search for and capture lignite had prescribed for ten years’ nonuse notwithstanding the production of oil and gas.

By way of review, we note that the court of appeal based its finding on the case of GMB Gas Corp. v. Koch, 340 So.2d 638 (2nd Cir. 1976), which directed that the provisions of the Mineral Code should be followed on pre-code issues which have not been clearly resolved by the jurisprudence. Believing the matter had not been clearly resolved, they applied R.S. 31:40, which provides, “An interruption of prescription applies to all types of minerals covered by the act creating the servitude and to all modes of its use.” Clearly, under this provision, the production of oil and gas would suffice to interrupt prescription for the strip-mining of lignite.

We were correct in not applying R.S. 31:40 retroactively as did the court of appeal, for the prior law was not the same and since the effective date of the Mineral Code was January 1, 1975, by that time, whatever rights plaintiff had were vested. As the Mineral Code itself provides:

“The provisions of this article shall apply to all mineral rights, including those existing on the effective date hereof; but no provision may apply to divest already vested rights, or to impair the obligation of contracts.” R.S. 31:214.

Concerning the court of appeal’s application of the logic as expressed in GMB Gas Corp., supra, we respond by quoting the following excerpt from 38 La.L.Rev. 378 (1978):

“An inquiry into the meaning of the old law should be guided by article 1 of the Civil Code, which states ‘Law is a solemn expression of the legislative will.’ Therefore, in seeking to ascertain whether new law has destroyed rights under old law, courts must do more than merely examine whether there is a four-square case in point. Rights long established under the Civil Code or legislation are often so clearly vested that there is no need for controversy or litigation. Legislation, as much as any case, can vest rights. Therefore, future decisions ought to analyze Civil Code regimes antedating the Mineral Code, irrespective of jurisprudence or the absence thereof.”

Thus, as we did in our original opinion, we look to the pertinent articles of the Civil Code that were in effect when the servitude was made in 1956, and when the right to strip-mine for lignite under said servitude prescribed in 1966. Those articles are C.C. art. 796 and art. 798.

“Article 796. The mode of servitude is subject to prescription as well as the servitude itself, and in the same manner.
“By mode of servitude, in this case, is understood the manner of using the servitude as is prescribed in the title.”
***** *
“Article 798. If, on the contrary, the owner has enjoyed a right less extensive than is given him by his title, the servitude, whatever be its nature, is reduced to that which is preserved by possession during the time necessary to establish prescription.”

In our original opinion while addressing the prescription issue, we were incorrect in holding that these articles were inapplicable. We held that the mineral servitude here at issue is a discontinuous servitude which is unlimited by title as to its exercise, whereas Articles 796-799 are applicable only to discontinuous servitudes when the title creating same establishes limitations as to the mode of exercise. We then concluded that the preferred interpretation of the law as it was before passage of the Mineral Code was that oil and gas production would interrupt prescription as to the digging of solid minerals. We now find this conclusion was erroneous.

In previous cases, this Court and our lower courts have used these articles to decide mineral right controversies. As we said in Trunkline Gas Co., et al. v. Steen, et al, 249 La. 520, 187 So.2d 720 (1966):

“In the evolution of the mineral law in the State, it was recognized that the sale or reservation of a mineral right, having been classed as a servitude, was subject to the applicable articles of the Civil Code in the resolution of conflicting claims; and in deciding the early and landmark case of Ohio Oil Co. v. Ferguson [213 La. 183, 34 So.2d 746], supra, the precedent upon which succeeding decisions, including Childs v. Washington [229 La. 869, 87 So.2d 111], supra, and Jumonville Pipe and Machinery Co. v. Federal Land Bank [230 La. 41, 87 So.2d 721], supra, were predicated, we concluded the articles of the Civil Code in Title IV, entitled “Of Predial Servitudes or Servitudes of Land”, whenever applicable were controlling.”

The landmark case referred to, Ohio Oil Co. v. Ferguson, et al, 213 La. 183, 34 So.2d 746 (1946) used the Civil Code in determining a mineral owner’s rights. There it was found that the servitude owner had enjoyed a right less extensive than that which was given him by his title and, hence, the servitude was reduced to that which was preserved by his use or possession during the time necessary to establish prescription. The case cited articles 798 and 803. In the present case, we have a similar situation. The defendant had the right by title to all minerals (including lignite); however, he only enjoyed that right to produce oil and gas. Hence, his mineral servitude should be reduced to oil and gas.

Admittedly, there are no cases exactly on point with the issue at hand. However, prior jurisprudence concerning the preservation of servitudes by use provides us with the simple proposition that if you don’t use it, you lose it, and if you don’t use it well enough, you lose it. While this is probably an oversimplification of the issue, the following cases reflect this position when dealing with mineral servitude cases.

Louisiana Petroleum Co. v. Broussard, et al, 172 La. 613, 135 So. 1 (1935) is an example of not exercising the servitude in the proper manner so as to interrupt prescription. The servitude in question gave unto the grantees a right to search for oil and gas. The grantees, although exploiting for oil and gas, stopped or abandoned their effort at a depth at which there was no reasonable hope of discovering minerals in paying quantities. In concluding that the grantees had lost their servitude, the court held:

“To use a servitude, so as to interrupt prescription, is to use it in the manner contemplated by the grant or reservation. This ruling finds support in articles 796 to 800, inclusive of the Civil Code, touching the mode of use of servitudes and in connection therewith, prescription. The servitude, in this instance, was granted for the purpose of exploring for oil, gas, and other minerals, and converting them to possession, if they were discovered, and the servitude existed for that purpose. Reference must therefore be made to the object of the grant — not for the purpose of determining whether there has been a breach of any obligation that might exist to develop, but to determine whether there has been such use as to interrupt prescription.”

In Goldsmith v. McCoy, et al, 190 La. 320, 182 So. 519 (1938), the court followed Brous-sard, supra, and held that a geophysical exploration for the purpose of determining by scientific methods the indication of minerals underlying the surface was not use of the servitude in the manner contemplated by the grant thereof and, accordingly, such activity did not interrupt prescription.

Analogous to this situation are the cases involving pipelines and the prescription of the right to lay them more than ten years after the construction of the first line. In the expropriation case of Columbia Gulf Transmission Co. v. Fontenot, 187 So.2d 455 (3rd Cir. 1966), that court held the transmission company’s failure to construct any additional lines during a ten year period constituted a use less extensive than that given it by its title, and consequently, the transmission company lost by prescription any rights it had under the agreements to construct additional lines. The court cited articles 796 and 798. Using this logic in Dickerson v. R.J.M. Pipeliners, Inc., et al., 331 So.2d 501 (2nd Cir. 1976), another circuit found the defendants had not used their right to lay additional gas transmission lines on plaintiff’s property; thus, their right had prescribed. Both cases are examples of the use of C.C. arts. 796 and 798 and our simplification of their reading that if you don’t use the servitude you lose it. Such was the situation with our immediate case.

These cases are but examples of the use of the Civil Code articles in dealing with mineral servitudes and like situations regarding their prescription for non-use. We now find that, since the right to explore and capture lignite was not used, the defendant’s mineral servitude to strip-mine for lignite expired in 1966. Since that time, the plaintiff, as landowner, has been in possession of this prescribed right.

We base this conclusion on the fact that absolutely no mode of use even vaguely resembling strip-mining was performed by the defendants during their ten year prescriptive period. Since the mode of servitude is subject to prescription as well as the servitude itself (art. 796), we find the right to strip-mine for lignite has prescribed. Furthermore, since the defendants enjoyed the right by title to “all mineral rights” and only drilled for oil and gas, their servitude is reduced to that which they preserved (art. 798).

For the above reasons, the decisions of the Second Circuit Court of Appeal and this Court on original hearing are reversed. Plaintiff’s request for a declaratory judgment limiting defendant’s servitude to the right to explore for and exploit oil, gas and kindred minerals is granted. The right to explore for and strip-mine for the solid mineral lignite is granted to the plaintiff. All costs of these proceedings are to be paid by the defendants.

REVERSED.

DIXON, C.J., concurs with reasons.

CALOGERO, J.,

dissents. The opinion ■ correctly resolves the all mineral rights issue but incorrectly decides the prescription issue. I subscribe to the opinion on the original hearing.

DENNIS, J., concurs with reasons.

LEMMON, J., concurs and will assign reasons.

WATSON, J., dissents, being of the view that the original opinion was correct.

DIXON, Chief Justice

(concurring).

I respectfully concur. Although “all mineral rights” is all-inclusive, it is not ambiguous, in my view. The difference, however, does not affect the outcome of this case. Further, I concur in holding that, before the effective date of the Mineral Code, C.C. 796 and 798 provided that prescription running against the servitude may be interrupted only in the manner used “as is prescribed in the title.”

DENNIS, Justice,

concurring.

I respectfully concur in the result.

Although I endorsed the majority’s position regarding the scope of the mineral reservation upon original hearing, I am now convinced that the approach taken in determination of the parties’ intent was an unwarranted departure from sound principles of contractual construction. Abandonment of the precepts generally utilized in the past will have an unsettling effect on the law of immovable property in this state. I am unwilling to again embrace the approach on rehearing, although I concur in the result and the decree.

The 1956 reservation of “all mineral rights” was said not to be ambiguous on original hearing. The majority on rehearing recognizes that the phrase is inherently ambiguous. I agree. I disagree with the manner in which the majority resolves that ambiguity.

In interpreting contracts we are guided by Louisiana Civil Code articles 1945-62 comprising the chapter entitled “Of the Interpretation of Agreements.” Article 1959 provides:

“However general be the terms in which a contract is couched, it extends only to the things concerning which it appears that the parties intended to contract.”

While the objective of the court should be to determine the actual subjective intent of the parties, nevertheless the very fact that the parties used general or indefinite language is indicative of the fact that the parties probably did not, at the time of their agreement, have a specific understanding as to exactly what their contract was intended to comprehend.

It is undisputed that lignite deposits in North Louisiana were not commercially exploitable at the time this servitude was created. It is unrealistic and unreasonable to assume that the parties intended that the use and utility of the surface of the property, critical to the needs of the landowner, could be destroyed if at some future time it should become economically feasible to mine a mineral not presently commercially exploitable absent a clear and affirmative expression to that effect. This court has frequently arrived at a narrow construction of broadly-worded mineral reservations in part by reliance on this commercial exploit-ability notion. E.g., Holloway Gravel Co., Inc. v. McKowen, 200 La. 917, 9 So.2d 228 (1942); Huie Hodge Lumber Co. v. Railroad Lands Co., 151 La. 197, 91 So. 676 (1922). See also, River Rouge Minerals, Inc. v. Energy Resources of Minnesota, 331 So.2d 878 (La.App.2d Cir. 1976). Cf. Delahoussaye v. Landry, 3 La.Ann. 549 (1848).

It is unreasonable to believe that parties, because of the size of their legal staffs or the length of their negotiations, must have intended the servitude in question to include the right to strip mine lignite when that minerial did not become commercially exploitable until decades later due to unforeseeable economic and political upheavals. It would be more realistic for this court to presume that parties which use general and indefinite terms in their agreements are contemplating the inclusion of only those minerals which are commercially exploitable at that point in time. This is not to say that parties who foresee that a natural resource may one day become commercially exploitable cannot specifically contract for the right to search for and produce that resource. Rather, it is my contention that this court should not provide mineral lessees with a windfall merely because the parties utilize the inherently ambiguous phrase “all mineral rights” in their contracts. Mineral contracts which are not utilized in a reasonable manner for the exploration of and production from ser-vient estates, should not be allowed to remain as charges upon the land for purely speculative purposes.

Narrowly construing ambiguous mineral reservations is also consistent with the general civilian principle of resolving doubt in favor of the free use and alienability of immovable property. McGuffy v. Weil, 240 La. 758, 125 So.2d 154, 158 (1960); Domat, Les lois civiles dans leur ordre naturel, 1 Oeuvres de Domat 329 (ed. Remy 1828); 2 Toullier, Droit civil francais 192 (1833). Civil Code article 730 clearly states (as did article 753 before it) that: “Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.” It is a cardinal rule of interpretation that, in case of doubt, instruments purporting to establish predial servitudes are always interpreted in favor of the owner of the property to be affected. La.C.C. art. 730, Comment (b). This court has repeatedly declared that “servitudes are restraints on the free disposal and use of property, and are not, on that account, entitled to be viewed with favor by the law.” Parish v. Municipality No. 2, 8 La.Ann. 145, 147 (1853), cited with approval in Buras Ice Factory, Inc. v. Department of Highways, 235 La. 158, 103 So.2d 74 (1958).

On this admittedly close issue of the scope of the mineral reservations, the majority has declined to follow the sound and established principles of construction because of the “particular and unusual .facts” in this case. On original hearing this court stated that it did not intend or envision its decision to have great import in other contexts and cases. I cannot agree that the impact of the decision will be so limited. Rather, it seems to me that in areas with lignite mining potential, the scope of each mineral reservation or conveyance now may be decided only after exhaustive case by case examinations of the parties’ negotiations in an effort to divine their intentions on a subject that they probably never thought about. Such an approach can only lead to confusion, instability and ultimately to a less efficient, more costly development of this state’s lignite deposits.

      . The damage provision reads:
      “. .. The Vendor shall pay the Vendee for all damage done to timber, wood or other forest products or the property of the Vendee on the lands conveyed hereunder ... in connection with operations by the Vendor ... in the course of such exploitation and shall assume the payment of, and pay any taxes levied on all minerals produced from such operations, or the increase in the value of the land, if any, caused thereby or by the equipment placed thereon in connection with such exploitation.”

      . Coal is classified by its transformation from moist organic matter through bituminous to the hard, highly sought-after anthracite. Lignite is of the lowest rank of coals, being a brown substance intermediate between peat and bituminous coal. The name is derived from lig-num, from the Latin for wood, because the texture of the original wood is often discernible in the coal. Encyclopaedia Britannica, Vol. 4, (1974); Helen Hemingway Benton, Pub.

      . In brief and in oral argument to this Court, plaintiff has repeatedly urged that at the time of the sale in question, the Robert Gair Company was first and last a lumber company, concerned only with the timber on the surface of the land.

      . Black states:
      “In the construction of laws, wills, and other instruments, the ‘ejusdem generis rule’ is, that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.” [Citations omitted.]
      Black’s Law Dictionary-608 (4th ed.rev. 1968)

      . It should be noted, however, that relator does not attempt to void the sale, only to interpret it provisions contrary to its verbiage.

      . A part of the Court of Appeal reasoning is as follows:
      In addition to the 93,000 acres acquired from Mansfield and the defendants, Continental owns more than 200,000 acres, of timberland in North Louisiana and South Arkansas. From its total 300,000-plus acres, Continental annually harvests timber from non-contiguous tracts on 7,000 to 10,000 acres, sometimes selectively cutting and sometimes clear-cutting. Continental fully reforests (replants) the acres which it clear-cuts. About ‘/3o of its total acreage is harvested annually to allow full regrowth in approximately 30 years. Plaintiffs forester testified that plaintiffs harvesting and restoration program could work around a mining plan. The Continental Group, Inc. v. J. L. Allison, Jr., et al., 379 So.2d 1117 at 1127 (La.App. 2d Cir. 1979).

      . Those Louisiana Civil Code articles, all of which have since been repealed, appeared as follows:
      Art. 796. The mode of servitude is subject to prescription as well as the servitude itself, and in the same manner.
      By mode of servitude, in this case, is understood the manner of using the servitude as is prescribed in the title.
      Art. 797. If he to whom a servitude is due enjoys a right more extensive than that which is given him by the act establishing the servitude, he will be considered as having preserved his right of servitude; because the less is included in the greater.
      But he can not thus prescribe for the surplus, and can be compelled to confine himself to the exercise of the servitude granted by his title, unless it be a continuous apparent servitude, which he has acquired by prescription.
      Art. 798. If, on the contrary, the owner has enjoyed a right less extensive than is given him by his title, the servitude, whatever be its nature, is reduced to that which is preserved by possession during the time necessary to establish prescription.
      Art. 799. If the owner has merely enjoyed an accessory right, which was necessary to his right of servitude, he will not be considered as having used his right of servitude.
      For example, if he who has the right of drawing water from the well of his neighbor, has passed often through the land of the latter, and gone to the well without drawing water during the time required for prescription, he will have lost his right of drawing water without acquiring that of passage, which was merely accessory to the right of drawing water.

      . Defendants rely heavily on the testimony of George W. Hardy III, who said R.S. 31:40 did not change prior law. Such a definite position has not always been espoused by him, as he wrote in 32 La.L.Rev. 557 (1972):
      “Mode of Use — One of the lingering doubts concerning the law applicable to mineral ser-vitudes, and perhaps mineral royalties as well, concerns the possible application of those articles of the Civil Code which contemplate that predial servitudes may be reduced by a use less extensive than that granted by the original title and those which provide that certain modes of use of servitudes may prescribe.”
      Furthermore, the official comments to R.S. 31:40 clearly reflect that the authors of the new article feared the use of the prior law, as they said:
      “Article 796 of the Civil Code provides that the mode of servitude is subject to prescription as well as the servitude itself. Article 40 assures that article 796 of the Civil Code will not be applicable to mineral servitudes unless parties made some express agreement regarding prescription of mode of use. ..
      “Article 798 of the Civil Code provides that if a servitude is used less extensively than the right given in the title creating it, the servitude is reduced to that which is preserved by possession during the prescriptive period. This article has not been applied to a mineral servitude except in the case of Ohio Oil Co. v. Ferguson, 213 La. 183, 34 So.2d 746 (1948), in which the servitude owner sold to another all of his rights in a specified portion of the servitude tract. However, the question of the applicability of this article where only one mineral has been produced during the prescriptive period has not been raised in the jurisprudence. The intent of article 40 is to assure that article 798 of the Civil Code will not be applied to limit the extent of an interruption by operations for discovery and production of or actual production of one mineral.”

      . Both C.C. art. 796 and art. 798 were repealed effective January 1, 1978 by Acts 1977, No. 514.
      For the sources of articles 796-798, see: Louisiana Legal Archives, Project of the Civil Code of 1825, p. 91 (1937); Domat, Part I, Book I, Tit. 12, Sec. 6, No. 5; Toullier, Vol. 3, no. 700.


source: Caselaw Access Project

author:
COVINGTON, Justice Ad Hoc.
     LEMMON, Justice, DENNIS, Justice, LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. William F. ROSS.
    No. 80-K-2051.
    Supreme Court of Louisiana.
    March 2, 1981.
    Rehearing Denied June 22, 1981.
    Dissenting Opinion Aug. 4, 1981.
    Rehearing Denied Sept. 4, 1981.
    Concurring Opinion Sept. 10, 1981.

      Bruce G. Reed, Reed & Reed, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, David Loeb, Asst. Dist. Attys., for plaintiffs-respondents.
   COVINGTON, Justice Ad Hoc.

The relator, William F. Ross, has sought remedial writs in an extradition proceeding initiated by the State of Texas on a charge of theft by check. He assigns three errors.

FACTS

After the relator’s arrest, defense counsel requested an extradition hearing, which was set for June 12, 1980. At the hearing the extradition papers had not been received from Texas, so the court issued an order granting the State of Texas an additional 30 days from June 12, 1980 “within which to furnish the proper and necessary papers to the Court.”

The extradition papers were furnished to the court on August 28, 1980. Thereupon, defense counsel requested release, which was denied; then he sought remedial writs and a stay of the extradition proceedings, which this Court granted on October 6, 1980.

Assignment of Error No. 1

The relator contends that he must be discharged because the State of Texas failed to furnish the Louisiana court necessary and proper extradition papers within the thirty-day period permitted by Judge Kollin’s order of June 12, 1980.

This extradition proceeding was commenced pursuant to La.C.Cr.P. art. 269, by Judge Kollin issuing a warrant for the arrest of Ross in this State on the affidavit of a deputy sheriff of Jefferson Parish charging Ross with being a “Fugitive from Justice” from the State of Texas, where said subject was wanted for the crime of theft by check. The judge granted the State of Texas thirty days, or until July 12, 1980, to furnish the extradition paper and released the relator on bail. La.C.Cr.P. art. 270.

The record does not reflect that a hearing was held on or before July 12, 1980, hence by its own terms the order of the court expired. The record reveals that on August 28, 1980, the court took up the extradition hearing, the reading of the affidavit was waived and “the papers on the defendant from Texas” were offered as evidence. Then, on oral motion the State continued the matter until September 11, 1980. The documents, which are attached hereto as Appendix, consist of warrant of the Governor of Louisiana dated July 17, 1980; warrant of the Governor of Texas dated July 8, 1980; certain affidavits of authorities of the State of Texas; and the grand jury indictment in Texas.

We have reviewed the record and find that the State of Texas failed to furnish proper and necessary papers for the extradition of William F. Ross within the prescribed time. La.C.Cr.P. art. 270. It is well established in this S,tate that in default of the demanding state furnishing the asylum state proper and necessary extradition papers within the prescribed time, the extradition proceeding will be dismissed and the accused discharged. See State v. Fletcher, 283 So.2d 495 (La.1973); State v. Sitner, 167 La. 407, 119 So.2d 408 (1928).

In State v. Commisso, 214 La. 1055, 39 So.2d 729, 731 (1949), this Court stated:

“The authorities of this state are not warranted in holding the accused beyond the thirty day period when no extradition proceedings have begun. The state cannot hold the accused by successive affidavits for any time beyond the thirty day period to await extradition.”

Neither can the State hold the accused by successive extensions of time or continuances for any time beyond the thirty day period fixed by La.C.Cr.P. art. 270. Both the demanding state and the asylum state should be ready at the outset with the proper and necessary papers; but, if not, articles 269 and 270 of the Code of Criminal Procedure provide a reasonable procedure to hold the accused for a definite period of time within which such extradition papers can be furnished to the asylum state. If the state is unable to meet La.C.Cr.P. art. 263 at that time, the accused must be discharged. The law does not permit the State to hold indefinitely over the head of an accused a threat of extradition, whether or not he is imprisoned or out on bail.

Moreover, we hold that these proceedings were initiated improperly. The accused was arrested on an affidavit of a Jefferson Parish deputy sheriff who had no personal knowledge of the facts which occurred in Texas, and which formed the basis of this arrest; hence, the arrest was without probable cause. The affidavit to support an arrest warrant in an extradition proceeding must comply with the requirements for an affidavit to support any arrest warrant. See Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Fletcher, supra.

In view of our ruling that William F. Ross must be discharged because there was not timely compliance with the requisites of La.C.Cr.P. art. 270, it is not necessary that this Court consider the other assignments of error.

For the reasons assigned, our remedial writ is made peremptory; the extradition proceedings against William F. Ross are dismissed and he is ordered discharged from the extradition warrant.

WRIT MADE PEREMPTORY.

MARCUS, J., dissents.

DENNIS, J., dissents with reasons.

APPENDIX

TO THE HONORABLE WILLIAM P. CLEMENTS, JR., GOVERNOR OF THE STATE OF TEXAS:

The undersigned, William A. Meitzen, District Attorney for the County of Fort Bend, State of Texas, respectfully applies for your requisition upon the Governor of the State of Louisiana for the apprehension and redition of William Ross, who is charged in due form of law with Theft by Check, to wit: did then and there appropriate property, to-wit: 280 cases Popeyes general cleaner 6X1 gal. and 120 cases Diatom 80-1% ounce bags/case of the value of nine thousand five hundred ninety four and 28/100 Dollars ($9,594.28) from J. L. Brown, the owner thereof, without the effective consent of the owner and with intent to deprive said owner of said property by then and there issuing and passing a check on the First National Bank of St. Bernard Parish, Arabi, Louisiana, to the ■said owner for the payment of nine thousand five hundred ninety four and 28/100 ($9,594.28), which check was in the tenor following:

when the said Defendant, the issuer of said check, did not have sufficient funds in and on deposit with said bank for the payment in full of said checks, as well as all other checks then and there outstanding upon such funds; and thereafter said check was presented to said bank for payment and payment was refused for want of sufficient funds of the said defendant in and on deposit with said bank.

By indictment filed in said Court on the 19th day of April, A. D., 1980, and capias issued thereon.

The undersigned alleges that the acts complained of were intentionally committed by the accused in the State of Texas and that the undersigned is informed by reliable sources and verily believes that the accused is in the City of Gretna, Parish of Jefferson, State of Louisiana, in the custody of Harry Lee, Sheriff in Jefferson Parish, Gretna, Louisiana.

Further accompanying this application is an affidavit as to the reason for believing the named accused and said person now believed to be in the City of Gretna, Parish of Jefferson, State of Louisiana, on one and the same person.

Further accompanying this application is a copy of the applicable portions of the particular statute bearing upon the offense charged certified as being true and correct copy thereof by the undersigned.

Respectfully yours,

(s) William A. Meitzen William A. Meitzen

District Attorney

Fort Bend County, Texas

THE STATE OF TEXAS X

COUNTY OF FORT BEND )(

William A. Meitzen, District Attorney for the County of Fort Bend in the State of Texas, being duly sworn states that he has read the foregoing application by him signed and that all the statements therein made are true and correct, that the offense charged is in violation of the laws of the State of Texas and that he is reliably informed and believes the accused party therein named is now in the State of Louisiana. He further states that the official before whom this jurat is taken is a duly qualified and acting official under the laws of this State to administer oaths and affirmation.

(s') William A. Meitzen William A. Meitzen

District Attorney

Fort Bend County, Texas

SUBSCRIBED AND SWORN TO BEFORE ME by William A. Meitzen, this the 23rd day of June, A.D., 1980, to certify which witness my hand and seal of office.

(s') Dianne S. Maples Notary Public in and for Fort Bend County, Texas

TEXAS PENAL CODE

TITLE 7, CHAPTER 31, SECTION 31.03

CRIMINAL CLASSIFICATION-THEFT

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property-

(b) Appropriation of property is unlawful ■ if:

(1) it is without the owner’s effective consent; .. .

(d) an offense under this section is:

(4) a felony of the third degree if (A) the value of the property is $200 or more but less than $10,000 . . .

TITLE 7, CHAPTER 31, SECTION 31.01

DEFINITION — “EFFECTIVE CONSENT”

31.01(4): “Effective consent” includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by deception ....

TITLE 7, CHAPTER 31, SECTION 31.06

PRESUMPTION FOR THEFT BY CHECK

(a) If the actor obtained property ... by issuing or passing a check or similar sight order for the payment of money, when the issuer did not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders then outstanding, his intent to deprive the owner of property under Section 31.03 of this code (Theft) ... is presumed (except in the case of a postdated check or order) if: .... (2) payment was refused by the bank or other drawee for lack of funds or insufficient funds, on presentation within 30 days after issue, and the issuer failed to pay the holder in full within 10 days after receiving notice of that refusal.

(b) and (c): (Set out rules on notice.)

THIRD-DEGREE FELONY PUNISHMENT

(a) An individual adjudged guilty of a felony of the third degree shall be punished by confinement in the Texas Department of Corrections for any term of not more than 10 years or less than 2 years.

(b) In addition to imprisonment an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $5,000.

CERTIFICATE OF ACCURACY

THE STATE OF TEXAS

COUNTY OF FORT BEND

I, Winston Earle Cochran, Jr., Assistant District Attorney in and for Fort Bend County, Texas, hereby certify that the above and foregoing is a true and correct copy of the relevant language of those sections of the Texas Penal Code pertaining to the offense charged in this cause, namely Theft by Check, and constitutes the present and existing law in the State of Texas at this time.

IN WITNESS WHEREOF, I subscribe my name at my office in Richmond, Texas this the 11th day of June, 1980.

(si Winston Earle Cochran. Jr. Winston Earle Cochran, Jr.

Assistant District Attorney

Fort Bend County, Texas

when the said Defendant, the issuer of said check, did not have sufficient funds in and on deposit with said bank for the payment in full of said check, ‘ as well-.as all other checks then and there outstanding upon such funds; and thereafter said check was presented to said bank for payment and payment was refused for want of sufficient funds of the said defendant in and on deposit with said bank.

On Rehearing

BLANCHE, Justice.

Defendant, William Ross, was arrested on June 2, 1980 in Jefferson Parish, Louisiana on the authority of a fugitive arrest warrant signed by Judge Walter E. Kollin of the Twenty-Fourth Judicial District Court. The warrant was based upon the affidavit of Jefferson Parish Sheriff’s Deputy Dussel, which affidavit stated that defendant was wanted for the crime of theft by check, value of $9,594.28, in Texas. The affidavit recited that the Jefferson Parish Sheriff’s Office had on file a warrant from the State of Texas for the arrest of defendant. This warrant was issued on the basis of the indictment of defendant, for this offense of theft by check, by a Texas grand jury.

On June 12, 1980, Judge Kollin signed an order granting the State of Texas “an additional 30 day period from the date hereof within which to furnish the proper and necessary papers to the Court in accordance with Article 268 of the Code of Criminal Procedure.” In the text of this order the judge stated that the order was rendered in response to defendant’s motion for an extradition hearing filed June 3, 1980 and after consideration of that motion and of articles 267 and 268 of the Code of Criminal Procedure.

The record reflects that on July 8, 1980 defendant did not appear before the court for an “Extradition Hearing” and the matter was continued until July 17, 1980 at the request of the district attorney. On July 17, defendant did not appear before the court and an attachment was issued. On July 24, 1980, defendant appeared before the court and the attachment was recalled and a bond forfeiture set aside.

The parties appeared before Judge Nestor L. Currault on August 28, 1980. At this time, the district attorney attempted to present extradition papers to the judge, but the defendant objected to extradition on the ground that the thirty day period granted by Judge Kollin for presentation of necessary extradition papers had expired and that he should, therefore, be released. Judge Currault ruled that no true extradition hearing had been held and scheduled an extradition hearing for September 11, 1980. Defendant applied to this Court for a writ of certiorari to review this ruling. We granted defendant’s writ and stayed the September 11 extradition hearing set by Judge Currault.

On original hearing of this case the majority of the Court ordered that defendant be discharged from the extradition warrant because the State of Texas failed to comply with Judge Kollin’s order to furnish the necessary extradition papers within thirty days from June 12. For the following reasons, we find on rehearing that the basis of this decision was erroneous and that defendant’s additional arguments for his discharge from the extradition warrant have no merit. We reverse our order on original hearing discharging the defendant from the extradition warrant and remand to the trial court for an extradition hearing.

The error in our original decision and the confusion in the lower court proceedings were caused by a failure to recognize the point at which extradition begins, the length of time a state may detain an arrested individual before and after extradition and when an arrestee’s right to request an extradition hearing comes into being.

Code of Criminal Procedure art. 262 authorizes the governor of this state, in his discretion, “to have arrested and delivered to the executive authority of any other state any person wanted in that state to be tried for a crime . . . who is found in this state.” The governor may not recognize a demand for extradition unless the demand is in writing, states the purpose for which the person is wanted and is accompanied by other “necessary papers”, including a copy of the indictment or information charging defendant with a crime, and any warrant based upon the indictment (assuming that the basis for extradition is that the person is wanted in the demanding state to be tried for a crime). The indictment, information or affidavit must be authenticated by the executive authority making the [extradition] demand. C.Cr.P. art. 263. This article indicates that it is the executive authority of the state desiring the presence of the person sought who makes the extradition demand.

The governor of the asylum state may investigate the demand and if he decides the demand should be complied with, he is authorized to sign a warrant of arrest for the person sought by the demanding state. C.Cr.P. art. 265. A person arrested upon a governor’s warrant may demand an extradition hearing and a date for the hearing must be set for “as early a date as practicable.” C.Cr.P. art. 267. If the demanding state does not furnish the proper and necessary papers at this hearing, the court may commit the accused for an additional thirty day period to allow the state to do so. C.Cr.P. art. 268.

Defendant apparently requested an “extradition hearing” on June 3, after his June 2 arrest, and on June 12, Judge Kollin acted on that motion, granting the State of Texas an “additional” thirty day period in which to furnish the necessary papers “in accordance with art. 268.” This request by defendant and order by Judge Kollin were unauthorized and ineffective.

An individual’s right to request an extradition hearing does not arise until the extradition process has begun, i. e. when the governor of the demanding state requests the extradition of the individual. A defendant cannot initiate his own extradition, but is entitled to request a hearing to determine whether there are grounds for his extradition after his transfer from the asylum state has been requested by the demanding state. C.Cr.P. art. 267. A hearing must be assigned for as early a date as practicable and the court may commit the accused for thirty additional days if the necessary papers are not presented by the demanding state at that time. C.Cr.P. arts. 267, 268.

In the instant case no opportunity had yet been given the demanding state by June 12, 1980 to present, at an extradition hearing, the necessary papers for defendant’s extradition; hence, no “additional” thirty day period in which to do so was granted the demanding state by Judge Kol-lin. Judge Kollin was attempting, in fact, to set a time limitation on the demanding state rather than granting it any extension. The judge was not authorized to so limit the demanding state to thirty days from June 12 in which to present necessary papers for extradition.

On June 12, the Governor of Texas had not yet requested defendant’s extradition from Louisiana. The demand for defendant’s arrest and delivery to an agent of the State of Texas was not signed until July 8, 1980 and was received thereafter by the State of Louisiana. Therefore, defendant’s extradition had not yet begun on June 12 and Judge Kollin was mistaken in his reliance on Art. 268 as authority for limiting the state to thirty days from June 12 in which to present necessary papers for his extradition. Again, Art. 268 authorizes at the time of the extradition hearing the commitment of an accused for an additional thirty days to enable the demanding state to furnish necessary papers. This thirty day extension takes place at the extradition hearing after a failure of proof at that hearing which, of necessity, occurs after extradition has been demanded. In this case, as of June 12, extradition had not been initiated; consequently, there had been no extradition hearing and no provision for a thirty day extension for such proof could be applicable.

The confusion in this case arose because defendant was arrested prior to the beginning of extradition. Code of Criminal Procedure art. 269 authorizes such an arrest, prior to extradition, on the basis of a warrant issued upon the oath or affidavit of a credible person that the person to be arrested is charged with: “. .. Commission of a crime in another state . . . . ” Defendant William Ross was arrested on the authority of a warrant issued by Judge Kollin which met this criteria. Code of Criminal Procedure art. 270 authorizes a judge to commit the accused for thirty days after this arrest, if there is reasonable ground to hold him awaiting extradition. An accused may post bail, however, unless the offense is punishable by death or life imprisonment, and defendant Ross apparently did post bail and remained unincarcerated at the time he applied for a writ to this Court.

This case is distinguishable from State v. Commisso, 214 La. 1055, 39 So.2d 729 (La.1949). In that case, the defendant was granted an extradition hearing after the governor of the demanding state requested defendant’s return to that state. The district attorney did not produce the papers necessary for defendant’s extradition at the hearing and the court granted him an extension of time in which to do so. The district attorney failed to produce the necessary papers within the allotted time.

Our majority opinion on original hearing was based on the erroneous assumption that Judge Kollin was authorized on June 12, 1980 to limit the demanding state to 30 days from that date for the production of papers necessary for defendant’s extradition. Since the majority assumed that the judge’s order was authorized by the Code of Criminal Procedure and the demanding state did not present papers necessary to entitle it to the extradition of defendant within the thirty day period, we ordered that defendant be discharged from the extradition warrant. For the foregoing reasons, we now reverse our order discharging defendant on this basis.

In this Court’s original majority opinion the Court made an additional finding that there had been no probable cause to arrest defendant in Louisiana. The Court emphasized the fact that defendant was arrested on an affidavit of a Jefferson Parish Deputy Sheriff who had no personal knowledge of the facts which occurred in Texas and which formed the basis for this arrest. We now hold that there was probable cause for defendant’s arrest. The warrant for defendant’s arrest was based upon the affidavit of a Jefferson Parish Sheriff’s Deputy. This affidavit stated that defendant was wanted for the crime of theft by check, value of $9,594.28, in Texas, and that the Jefferson Parish Sheriff’s Office had on file a warrant from the State of Texas for the arrest of defendant. The Texas warrant issued on the basis of a Texas grand jury indictment of defendant for this offense. Under these circumstances, there was probable cause to arrest defendant pending extradition.

Defendant raises an additional argument for his discharge from the extradition warrant. Defendant contends that the demanding state must show that defendant was a fugitive from that state, i. e. was physically in that state and fled from the state. Defendant is accused of theft by a check mailed from Louisiana and he asserts that he was never in Texas and could not be considered a fugitive of Texas. The record does not reflect that defendant has proved his allegation that he was never in Texas and did not flee from Texas. In any event, the wording of C.Cr.P. art. 262 refutes defendant’s argument. Article 262 authorizes the governor, in his discretion, to “have arrested and delivered to the executive authority of any other state any person wanted in that state to be tried for a crime . . . ”. There is no requirement that the person sought to be extradited has fled from the demanding state, only that he is wanted in that state to be tried for a crime. The Official Revision Comments to this article support this interpretation of the clear wording of the statute:

“. . . (b) The scope of extradition under this article is broader than under Art. 160 of the 1928 Code, which applied only to persons sought as fugitives from justice. This article applies to any person wanted for trial in the demanding state and found in this state ... It ... covers an offender who was not present in the demanding state when the crime was committed, as where a shot was fired across a state line or the offender performed his part of a crime from outside the state. In such situations the offender might not be considered a ‘fugitive from justice’ for he did not flee from the demanding state after the commission of the crime...”

At the August 28,1980 appearance of the state and defendant before Judge Currault, defendant expressed a desire to remain in this state absent a court order. Since defendant does not, apparently, waive extradition, we remand to the district court for a hearing to determine whether there is sufficient proof to entitle the State of Texas to extradite defendant from this state.

WATSON, J., dissents.

LEMMON, J., dissents and assigns reasons.

CALOGERO, J., dissents for reasons assigned by LEMMON, J.

LEMMON, Justice,

dissenting.

I basically agree with the majority’s interpretation of the extradition statute and the application of that statute to the facts of this case. However, I disagree in the result on an entirely unrelated basis.

The affidavit made before the Texas magistrate does not substantially charge defendant with having committed a crime under the law of that state, as required by C.Cr.P. art. 263, because the statement of facts does not allege facts establishing that a criminal act was committed by defendant in Texas. The statement (attached to this court’s opinion on original hearing) alleges that defendant (a Louisiana resident) issued a check on a Louisiana bank, when there were insufficient funds in the bank for payment of the check, and that the check was thereafter presented to the drawee bank, which refused payment because of insufficient funds. Although the statement concludes with a general assertion that the “acts complained of were intentionally committed by the accused in the State of Texas”, there is no precise allegation of any specific criminal act in Texas. I would reject the demand for extradition.

DENNIS, Justice,

dissenting.

In light of the rehearing which has been granted in this case I will not file written reasons for disagreement with the original majority opinion.

LEMMON, Justice,

concurring in Denial of Rehearing.

Since the issue raised in my dissent can be considered and adjudicated by the trial judge on remand, I simply concur in denial of rehearing.

       Judges Covington, Chiasson and Lear of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Dennis , and Blanche.

      . “This matter came before the Court this date, for hearing of a Motion for Extradition Hearing made by the Defendant before this Court on June 3, 1980.
      “The Court, considering Defendant’s Motion and the provisions of Articles 267 and 268 of the Code of Criminal Procedure.
      “IT IS ORDERED that the State of Texas be and it is hereby granted an additional thirty day period from the date hereof within which to furnish the proper and necessary papers to the Court in accordance with Article 268 of the Code of Criminal Procedure.
      “Gretna, Louisiana this twelfth day June, 1980.
      “/s/ Judge Walter E. Kollin.”

      . “A judge may issue a warrant for the arrest of a person in this state, prior to a demand for extradition in conformity with Article 263, when on the oath or affidavit of a credible person, taken before a judge or clerk of court, the person to be arrested is charged with:
      “(1) Being a fugitive from justice of another state;
      “(2) Commission of a crime in another state; or
      “(3) Having been convicted of a crime in another state, and having escaped from confinement or having broken the terms of his bail, probation, parole, furlough, or reprieve.
      “In this article, ‘judge’ means any judge of a district, city, or parish court with criminal jurisdiction.”

      . “The judge shall commit the accused for thirty days if it appears, after a hearing in open court, that there is reasonable ground to hold him awaiting extradition. The order of commitment shall recite the accusation; and the accused shall be imprisoned in the parish jail until the term of his commitment expires or he is otherwise legally discharged, unless he gives bail as provided in Article 271.”

      . “The Defendant William P. Ross appeared before the bar of the Court this day represented by Bruce Reed, attorney.
      “The court took up the extradition hearing.
      “EVIDENCE: Papers on the Defendant from Texas.
      “Reading of the affidavit was waived.
      “At this time the State continued this matter to 9-11-80 at 10:00 Div.-F (Oral).”

      . “A demand for the extradition of a person wanted in another state shall not be recognized by the governor unless the demand is in writing and states the purpose for which he is wanted. The demand must be accompanied by:
      “(1) A statement of facts by the prosecuting officer having jurisdiction of the crime, and by a copy of an indictment found or of an information filed in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or
      “(2) A copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation, parole, furlough, or reprieve.
      “The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of the indictment, information, affidavit, judgment of conviction, or sentence must be authenticated by the executive authority making the demand.”

      . Incidentally, the Texas statute contains an unconstitutional presumption of criminal intent, which shifts the burden to defendant to prove his innocence. See State v. McCoy, 395 So.2d 319 (La.1980).


author:
      BARRY, Justice Ad Hoc.
     MARCUS, Justice LEMMON, Justice, LEMMON, Justice. LEMMON, Justice,
      CALOGERO, Justice,

text:
    STATE of Louisiana v. Mary GUILLORY.
    No. 80-K-2692.
    Supreme Court of Louisiana.
    April 6, 1981.
    On Rehearing Sept. 28, 1981.

      Alcide J. Gray and M. Joy Clemons of Gray, Clemons & Spruel, Lake Charles, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Wayne Frey and Abbott Reeves, Asst. Dist. Attys., for plaintiff-respondent.
   BARRY, Justice Ad Hoc.

The defendant was convicted of resisting arrest in violation of R.S. 14:108 and presents two assignments of error urging double jeopardy and imposition of an excessive sentence.

Police had set up a blockade around a two block area searching for four armed men in a stolen vehicle. The defendant lived within this sealed-off area and she and her brothers attempted to walk past the police, but were told they could not pass because of the danger.

The defendant told the police she had two small children at her house and she was allowed to pass. However, her two brothers were stopped and the defendant returned and shoved one of the police from behind during an argument. She was then placed under arrest along with her brothers.

The charge was presented by affidavit which did not name the officer who was resisted nor his official capacity. After the State called three witnesses the prosecutor requested that he be allowed to amend the affidavit, but this request was objected to by the defendant. The trial judge denied the request to amend but ordered a mistrial, sua sponte. The defendant also objected to the mistrial.

A new affidavit was filed including the officer’s name and his official capacity. Defendant filed a motion to quash alleging double jeopardy, but this motion was denied and the case proceeded to trial. The defendant was found guilty and presents two assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial judge erred in denying the motion to quash the second affidavit based on the double jeopardy provisions of the United States and Louisiana Constitutions. The Louisiana Constitution provision against double jeopardy is implemented by La.C.Cr.P. Art. 591:

No person shall be twice put in jeopardy of life or liberty for the same offense except, when on his own motion a new trial has been granted or a judgment has been arrested or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.

The State contends the judge was authorized to grant the mistrial sua sponte under La.C.Cr.P. Art. 775(3) which reads:

(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;

The Official Revision Comment to that article states:

(g) A substantial defect in the indictment would constitute the third listed ground for mistrial, i. e., “a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.” See Article 859(1) Grounds for Arrest of Judgment. Similarly, Art. 487, which states the effects of defective indictments, concludes “ * * * After the trial begins a mistrial shall be ordered on the grounds of a defect of substance.”

Apparently the trial court felt a mistrial was appropriate under earlier jurisprudence which required that a defendant be informed of essential facts constituting the offense. State v. Spina, 261 La. 397, 259 So.2d 891 (1972). Also, this court had held that a charge brought under La.R.S. 14:108 must name the official who was resisted and his capacity. State v. Moore, 311 So.2d 875 (La.1975); State v. Dozier, 258 La. 323, 246 So.2d 187 (1971).

However, the requirements of Moore and Dozier are no longer necessary. Where the indictment has failed to sufficiently inform the defendant of the specific conduct alleged to have produced a violation, the proper remedy was not a motion to quash, but rather a bill of particulars. State v. Gaieny, 376 So.2d 1240 (La.1979).

When the State attempted to amend the affidavit under the mistaken belief it was necessary, defense counsel opposed the amendment and cited Moore and Dozier, supra. The record shows this defendant was personally acquainted with the officer she is alleged to have resisted.

It therefore follows that the erroneous position urged by the defendant in opposition to the proposed amended affidavit amounted to tacit consent and reason and cause for the mistrial. We find that’ the defendant’s strategy left no alternative but for the trial judge to declare a mistrial. See State v. Bodley, 394 So.2d 584 (La.1981). Thus, LSA-C.Cr.P. Art. 591 did not bar retrial.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant was sentenced to “ten (10) days in jail, plus $250.00 fine or 60 days in jail, plus 75 days in jail with the 75 day sentence suspended and the defendant placed under unsupervised probation for a period of two years”.

Defendant urges that the terms of the sentence are illegal and that the trial judge failed to follow the guidelines in C.Cr.P. Art. 894.1.

The defendant argues that many mitigating factors outlined in La-.C.Cr.P. Art. 894.-1(B) are present in this case, and if they had been considered by the trial court, the result would have warranted a suspended sentence.

The record reflects that the trial judge stated he considered the case according to the provisions of Article 894.1, but the only reference we find in the record to that consideration was specific mention of the seriousness of the crime. Unfortunately, there is no discussion of the various mitigating circumstances argued by the defendant. And we agree that the trial judge failed to adequately comply with the mandatory requirements of La.C.Cr.P. Art. 894.1 which requires that the sentence be individualized. State v. Jackson, 360 So.2d 842 (La.1978); State v. Cox, 369 So.2d 118, 121 (La.1979).

As noted above, defendant’s sentence mandates jail, a fine or jail in lieu of the fine, a suspended jail term plus unsupervised probation.

The penal provision of LSA R.S. 14:108 provides:

Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.

Thus, the aggregate of the sentence is within the statutory provisions; however, in a misdemeanor case jail time cannot be a condition of probation, C.Cr.P.Art. 895, and probation cannot exceed one year, C.Cr.P. Art. 894. See State v. Upton, 382 So.2d 1388 (La.1980). Clearly, defendant’s sentence is illegal and must be vacated.

We therefore vacate defendant’s sentence and remand to the trial court for re-sentencing, C.Cr.P. Art. 882, in accordance with the provisions of C.Cr.P. Art. 894.1.

SENTENCE VACATED AND REMANDED.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

LEMMON, J., dissents from setting aside sentence and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in defendant’s conviction but dissent from the finding that defendant’s sentence is illegal. Accordingly, I respectfully concur in part and dissent in part.

LEMMON, Justice,

dissents from setting aside the sentence and assigns reasons.

I concur in affirming the conviction, but dissent from that part of the judgment which sets aside the sentence as illegal.

C.Cr.P. art. 894 A permits a trial judge in misdemeanor convictions to suspend the remaining part of the sentence after the defendant has begun to serve the sentence, or to suspend the imposition or execution of all or part of the sentence before the defendant has begun to serve the sentence. Thus, I see nothing illegal about giving a split sentence.

C.Cr.P. art. 895 does limit the imposition of jail sentences as a condition of probation to felony cases, but that provision was necessary because a trial judge cannot suspend a sentence in a felony case after the defendant has begun to serve the sentence. Such a provision is unnecessary in misdemeanor cases.

The interpretation by the majority in the present case forces a trial judge to choose between all probation or all jail, with no apparent rational basis for this limitation on his sentencing discretion.

ON REHEARING

LEMMON, Justice.

We granted the state’s application for rehearing in order to reconsider that part of our decision on original hearing in which we set aside as illegal the sentence imposed by the trial judge.

Defendant was sentenced to “ten (10) days in jail, plus $250.00 fine or 60 days in jail, plus 75 days in jail with the 75 day sentence suspended and the defendant placed under unsupervised probation for a period of two years”.

On original hearing we held that defendant’s sentence for a misdemeanor was illegal in two respects: (1) jail time was imposed as a condition of probation and (2) the period of probation exceeded one year. We also concluded that the trial judge had failed to comply with the guidelines of C.Cr.P. Art. 894.1 in imposing the sentence. On reconsideration we now conclude we erred in holding the sentence illegal in the first respect.

C.Cr.P. Art. 894 expressly authorizes a trial court, in sentencing a defendant convicted of a misdemeanor, to “suspend the imposition or the execution of the whole or any part of the sentence imposed and place the defendant on unsupervised probation”. (Emphasis supplied.) The sentence in the present case is actually a sentence of 85 days imprisonment, in which part of the sentence (75 days) was suspended. Therefore, the sentence falls within the precise terms of Article 894’s authority in misdemeanor cases.

The decision on original hearing was based on State v. Upton, 382 So.2d 1388 (La.1980). In the Upton case this court in a per curiam opinion set aside a sentence on several grounds and remanded for resen-tencing, noting that C.Cr.P. Art. 895 B “specifically reserves” confinement as a condition of probation for felony cases. While some members of the court doubt the correctness of the Upton decision, it is not necessary that we reexamine that decision in order to adjudicate the present case.

While the sentence in the present case might reasonably be construed as imposing a ten-day jail term as a condition of probation, the trial judge did not mention conditions of probation, and the sentence is more appropriately viewed as one in which the execution of part of the sentence is suspended under the authority of C.Cr.P. Art. 894. Furthermore, there is no apparent rational basis for requiring the trial judge, in imposing sentences in misdemean- or cases, to choose between an all-jail sentence with no probation and a no-jail sentence with all probation.

We therefore reverse our position on original hearing that the sentence illegally imposed confinement as a condition of probation.

As to the illegality of the sentence because the term of probation exceeds one year, our original opinion reached the correct result. C.Cr.P. Art. 894 limits the period of suspension of sentence and probation to one year or less, unless a suspended sentence in excess of 90 days is imposed, in which case the period of probation is limited to two years. Since the suspended sentence in the present case was not in excess of 90 days, the maximum period of probation that could be imposed was one year. The sentence was illegal in this respect and must be vacated.

As to the compliance with C.Cr.P. Art. 894.1’s requirement that the trial court in imposing sentence state for the record the considerations taken into account and the factual basis for those considerations, we note that the trial judge only referred to the seriousness of the crime and did not refer to any mitigating circumstances argued by defendant. We generally do not remand for compliance with Article 894.1 unless the sentence is apparently severe. State v. Jones, 381 So.2d 416 (La.1980). However, this matter must be remanded anyway to correct the illegal sentence. On remand the trial court, in imposing a new sentence, should take into account all aggravating and mitigating considerations applicable in this case and state for the record the factual basis for the considerations. See State v. Sepulvado, 359 So.2d 137 (La.1978).

Accordingly, the conviction is affirmed, but the sentence is set aside as illegal. The matter is remanded to the trial court for resentencing in accordance with this opinion.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs for the reasons assigned by CALOGERO, J.

WATSON, J., concurs in the result.

LEMMON, Justice,

assigning additional concurring reasons.

Even if the sentence in the present case were construed as one imposing a ten-day jail term as a condition of probation, there is no statutory prohibition against such a sentence. C.Cr.P. Art. 895 limits conditions of probation to those “reasonably related” to a defendant’s rehabilitation, and the article specifically lists some illustrative conditions. However, any condition may be imposed, as long as it is reasonably related to rehabilitation.

A 1973 Opinion of the Attorney General expressed the view that trial courts were not authorized to impose confinement as a condition of probation under C.Cr.P. Art. 893 (relating to felonies) or 894 (relating to misdemeanors) in the absence of an express amendment to C.Cr.P. Art. 895. By Acts 1974, No. 211 the Legislature added Paragraph B to Article 895 and expressly authorized the imposition of limited confinement as a condition of probation in felony cases. See C.Cr.P. Art. 895, Official Revision Comment (c).

There is no compelling reason to construe the express authorization in felony cases as an implied denial of this sentencing alternative in misdemeanor cases. Article 895’s express one-year limitation in felony cases appears to be designed to prevent trial judges from imposing longer jail terms in felony cases as probationary conditions rather than to prohibit trial judges from imposing any jail term as a probationary condition in misdemeanor cases.- Although misdemeanors have varying terms, relatively few exceed six months. Obviously, the Legislature did not intend to authorize confinement as a probationary condition which would exceed the maximum term of confinement set forth in the penalty provision of the statute defining the offense. Thus, it is understandable that the one-year period of C.Cr.P. Art. 895 B would not include misdemeanor cases. It is, therefore, unnecessary to perceive the specific grant of authority to impose a one-year jail sentence as a condition of probation in felony cases as an implied legislative bar to imposing a brief term of confinement as a condition of probation in misdemeanor cases.

This interpretation of Article 895 also accords with the concept that a trial judge should be afforded wide discretion in performing his sentencing function. See American Bar Association Standards Relating to Sentencing Alternatives and Procedures, §§ 2.1(b), 2.4.

I therefore conclude that the jail term imposed at the time of initial sentence in this misdemeanor case was not illegal, even if intended as a condition of probation, because of C.Cr.P. Art. 894’s express authorization of the sentence.

CALOGERO, Justice,

concurring.

I agree with the majority that the sentence is illegal because the period of probation exceeded one year, the trial judge did not comply with La.C.Cr.P. art. 894.1, and the jail time imposed was essentially the result of a partial suspension of the sentence rather than a condition of probation.

However, I see no reason to question the correctness of State v. Upton, 382 So.2d 1388 (La.1980), a Per Curiam opinion subscribed to by all seven members of the Court only a year ago. In my view, Upton was correctly decided and there has been no legislative change which would prompt a different result now.

La.C.Cr.P. art. 895 specifically provides that the trial judge may impose a term of imprisonment without hard labor as a condition of probation in felony cases, the implication being that such a condition may not be imposed in misdemeanor cases. This intent of the Legislature is especially clear when we consider that, as pointed out by the comments to this article, the amendment to the article authorizing imprisonment as a condition of probation in felony cases, was made in direct response to an opinion by the Attorney General stating that the courts were not authorized to impose imprisonment as a condition of probation in either felony or misdemeanor cases.

Upton, rendered after the above amendment to La.C.Cr.P. art. 895, held that the imposition of jail time as a condition of probation in misdemeanor cases was not authorized by that article, and such an imposition resulted in Upton’s sentence being declared illegal. I think the Upton opinion correctly interprets the law in this area and see no reason to question it now.

For the foregoing reasons, I concur.

       Judges Jim Garrison, Lawrence A. Chehardy and Denis A. Barry of the Fourth Circuit participated in this decision as Associate Justices Ad Hoc, joined by Justices Calogero, Marcus, Blanche and Lemmon.

      . If the trial judge had sentenced defendant to 85 days in jail and announced he would suspend the sentence after defendant had served 10 days, that procedure would apparently be considered legal. It is unduly technical to declare illegal the present sentence, in which there is no essential difference.

      . The author herein expressly questions Upton and assigns reasons in an additional concurring opinion.

      . The 10-day jail term “falls within the lower range of sentences which might have been imposed within the statutory limits” following conviction of resisting arrest. State v. Jones, 381 So.2d at 418. R.S. 14:108 provides for imprisonment for a period not to exceed six months and a fine not to exceed $500.00, or both.

      . C.Cr.P. Art. 895 A provides:
      “When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to • refrain from criminal conduct and it may impose any specific condition reasonably related to his rehabilitation, including any of the following:
      "That the defendant shall:
      “(1) Make a full and truthful report at the end of each month;
      “(2) Meet his specified family responsibilities; “(3) Report to his probation officer as directed;
      “(4) Permit the probation officer to visit him at his home or elsewhere;
      “(5) Devote himself to an approved employment or occupation;
      “(6) Refrain from owning or possessing firearms or other dangerous weapons;
      “(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court;
      “(8) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons; or
      “(9) Remain within the jurisdiction of the court and get the permission of the probation officer before any change in his address or his employment.”

      . The language interpreting C.Cr.P. Art. 895 B in State v. Upton, 382 So.2d 1388 (La.1980) was overly broad. Article 895, while authorizing the imposition of confinement as a condition of probation in felony cases, does not necessarily preclude such an imposition in misdemeanor cases, at least when jail time is imposed contemporaneously with suspension of part of a sentence.

      . 1 recognize other appellate courts have (perhaps grudgingly) construed the statutes of their respective jurisdictions differently. See, for example, People v. Ledford, 173 Colo. 194, 477 P.2d 374 (1970). However, I do not find these cases persuasive in construing our statutory scheme which expressly authorizes probation in connection with partial suspension of a sentence.

      . In a felony case the trial judge retains control over probationary conditions when the sentence is suspended, but when the sentence is not suspended the trial judge is barred from amending the sentence after the defendant begins to serve the sentence. C.Cr.P. Art. 893. The comments to C.Cr.P. Art. 893 make clear the legislative choice not to allow the sentencing judge the prerogative to retain jurisdiction to amend the sentence and thus function as a “one man parole board”. See Comment (c), C.Cr.P. Art. 893.

      . In response to Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Legislature reduced the penalty for many misdemeanors to six months in order to avoid the jury trial requirement. See Acts 1968, No. 647.

      . Just how brief the imprisonment must be is a separate question. Obviously, the term must be brief enough to be considered “reasonably related to . . . rehabilitation”. C.Cr.P. Art. 895 A. The Legislature certainly did not intend to authorize sentences of imprisonment as probationary conditions exceeding the maximum expressly authorized by the statute defining the offense. However, as the relatively brief jail sentence in the present case is “reasonably related” to rehabilitation and is well below the statutory maximum of six months, R.S. 14:108, there is no issue as to an excessive term of confinement ordered as a probationary condition.

      . A more difficult problem would be be presented if the trial judge had attempted to add confinement as a condition of probation after imposition of the initial sentence under C.Cr.P. Art. 896’s authority to modify conditions of probation during the probationary period. The case of State v. Wagner, La. 401 So.2d 1208 (cert. granted), presents the questions of whether the probationer is entitled to a hearing and whether the trial judge can impose confinement as a condition of probation during the probationary period if the probationer has not ■ violated the conditions imposed by the judge and by law at the initial sentencing.