text:
    Anna Naquin WINJUM et al v. J. G. DUPLANTIS.
    No. 13845.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      E. Wade Shows, Baton Rouge, counsel for plaintiffs-appellants, Anna Naquin Winjum et al.
    Jude Thaddeus Fanguy, Houma, counsel for defendant-appellee, J. G. Duplantis, Jr.
    Stanwood R. Duval, Jr., Houma, counsel for third party defendants-appellees, Jeanne Cenac et al.
    Leslie J. Clement, Jr., Thibodaux, counsel for third party defendant-appellee, Estate of Henry A. Klingman.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a petitory action, or, in the alternative, an action for a declaratory judgment. The trial court sustained defendant’s plea of ten year’s acquisitive prescription and declared him owner of the disputed property. Plaintiff appealed.

The issues are: ten-year acquisitive prescription, thirty-year’s acquisitive prescription and the judicial description of the property.

We affirm.

Both plaintiff and defendant claim ownership of some land in Lafourche and Terre-bonne Parishes. Plaintiff has record title traceable to land grants from the State of Louisiana. The patent to which defendant traces his title is defective in that it describes land in another section. Beginning in 1909, however, all subsequent transfers by defendant’s ancestors in title identify the property correctly as being bounded by the estates of other individuals. Defendant’s ancestors in title corporeally possessed the disputed property through their lessees from at least the late 1950’s through at least 1972. Defendant’s ancestors also executed several mineral leases on the property. Defendant purchased the property at a sheriff’s sale pursuant to a partition by licitation in 1973.

Plaintiff brought a petitory action and in the alternative, requested the court to describe specifically the property should defendant be declared the owner. To plaintiff’s claim of ownership, defendant set up his own title and alternative pleas of ten and thirty years prescription. The court sustained defendant’s pleas of ten-year’s acquisitive prescription.

Plaintiff claims defendant has not met the requirements to acquire ownership of an immovable through acquisitive prescription of ten years because he is not a good faith possessor as he purchased the property at a sheriffs sale pursuant to a partition by licitation. Plaintiff’s complaint is without merit as defendant’s good faith is not at issue.

There is no evidence to rebut the presumption that defendant’s predecessors were in good faith. LSA-C.C. Art. 3481.

Defendant’s knowledge of any defect in the title held by his predecessor is immaterial, if the predecessor has in fact accrued the necessary ten years. LSA-C.C. Art. 3482; Bishop Homes, Inc. v. Devall, 336 So.2d 313 (1st Cir. 1976), writ denied 338 So.2d 1155.

Plaintiff contends that the defect in the original patent precludes defendant’s ancestors having a legal and transferable title to support acquisitive prescription. LSA-C.C. Art. 3483, supra. Defendant’s predecessor’s acquisitive prescription is based upon a deed that correctly describes the property as being bounded on various sides by the estates of other individuals; it is sufficiently translative of title for purposes of ten-year’s acquisitive prescription. LSA-C.C. Art. 3483; Authement v. Theriot, 292 So.2d 319 (La.App. 1st Cir. 1974).

Plaintiff then claims the nature of the possession exercised by defendant’s predecessors was insufficient to establish acquisitive prescription. LSA-C.C. Art. 3479, supra, alleging that the exact extent of possession in Terrebonne Parish was never established. The record reveals that the property in dispute is an elongated triangle enclosed by fencing except for a small portion of swamp land in the tip of the triangle.

One who holds a deed translative of title is presumed to possess to the full extent of his title by any act of possession on his land, LSA-C.C. Arts. 3437, 3498; Marks v. Collier, 216 La. 1, 43 So.2d 16 (La.1949). However, plaintiff asserts that the effect of this constructive possession was lost by corporeal detention of the property by her ancestors. LSA-C.C. Art. 3449.

There was some vague and at least partially disputed testimony of hunting, trapping and crawfishing in the swampy area. We agree with the trial court’s finding that this was insufficient to prove corporeal possession under these circumstances.

For this reason we affirm the court’s sustaining defendant’s plea of ten year’s acquisitive prescription.

Because we hold the trial court was correct in sustaining defendant’s plea of ten year acquisitive prescription we need not address plaintiff’s argument in opposition to thirty year’s prescription.

Plaintiff claims the court erred in not defining the exact extent of defendant’s ownership. The court described the property in accordance with defendant’s deed as being bounded by the estates of other individuals. We are at a loss as to what plaintiff desires beyond that, since that is the description by which the property was obtained and since no one gave any proof of a better description. If plaintiff wanted a boundary action, she should have brought the proper action.

For the above reasons, the judgment of the trial court is affirmed. Costs are assessed against the plaintiff.

AFFIRMED.

      .LSA-C.C. Art. 3478:
      “He who acquires an immovable in good faith and by just title prescribes for it in ten years ...”
      LSA-C.C. Art. 3479:
      “To acquire the ownership of immovables by the species of prescription which forms the subject of the present paragraph, four conditions must concur:
      1. Good faith on the part of the possessor.
      2. A title which shall be legal, and sufficient to transfer the property.
      3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
      4. And finally an object which may be acquired by prescription.”
      LSA-C.C. Art. 3481:

        “Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor, must prove it.”
      LSA-C.C. Art. 3482:
      “It is sufficient if the possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription.”
      LSA-C.C. Art. 3483:
      “To be able to acquire by the species of prescription mentioned in this paragraph, a legal and transferable title of ownership in the possessor is necessary; this is what is called in law a just title.”
      LSA-C.C. Art. 3487:
      “To enable one to plead the prescription treated of in this paragraph, it is necessary that the possession be distinguished by the following incidents:
      1. That the possessor shall have held the thing in fact and in right, as owner; when, however, it is only necessary to complete a possession already begun, the civil possession shall suffice, provided it has been preceded by the corporal possession.
      2. That the possession shall have been continuous and uninterrupted, peaceable, public and unequivocal; a clandestine possession would given no right to prescribe; but he who possesses by virtue of a title can not be considered as a clandestine possessor, for his title leads to the supposition that the possession commenced in good faith, and that is sufficient to enable him to plead prescription.”
      LSA-C.C. Art. 3433:
      “One may possess a thing not only by one’s self, but also by other persons.
      Thus the proprietor of a house or other tenement possesses by his tenant, or by his farmer; the minor, by his tutor; and, in general, every proprietor, by the persons who hold the thing in his name.”

      . “A certain tract of land, situated in the Parishes of Lafourche and Terrebonne in this State, about twenty-two miles below the City of Houma, and measuring four arpents front, more or less on each side of the Bayou Point Au Chien, by depth of survey on each side of said Bayou, Bounded above on the right bank by land formerly belonging to Abel Thibodaux, now to Clarville Neal, and above on the left bank by land formerly belonging to Gabriel Bourg, now to James Neal, Jr., and below on both banks to land belonging to estate of Mrs. Abel Thibodaux, together with all buildings and improvements thereon and all rights, ways, privileges and servitudes thereunto belonging or in anywise appertaining.”

      . LSA-C.C. Art. 3437:
      “It is not necessary, however, that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries.” LSA-C.C. Art. 3498:
      “When a person has a title and possession conformably to it, he is presumed to possess according to the title and to the full extent of its limits.”

      . LSA-C.C. Art. 3449:
      “A possessor of an estate loses the possession against his consent:
      1. When another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from re-entering.
      2. When the possessor of an estate allows it to be usurped and held for a year, without, during that time, having done any act of possession, or interfered with the usurper’s possession.”


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Sandra Hughes DEATON v. Ronald L. DEATON.
    No. 13860.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Fred L. Herman, New Orleans, for plaintiff-appellant.
    Richard J. Meunier, New Orleans, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment reducing alimony pendente lite and child support from $2,500.00 to $100.00 per month.

The issues are: sufficiency of change in defendant’s circumstances to warrant a reduction and admissibility of proof of plaintiff’s needs.

We affirm.

A year and a half after separation and an award of $2,500.00 per month alimony pen-dente lite and child support, and after filing a petition for personal bankruptcy, defendant filed a rule to reduce alimony and child support to $100.00 a month.

Defendant testified that the corporation of which he had been president had failed and was also in bankruptcy proceedings; that he was presently unemployed but was looking for work; that he had no assets other than $1,500.00 in jewelry and had received no income for three weeks; that he had liabilities of $997,443.53. The trial court granted the reduction but specifically reserved plaintiff’s right to petition for an increase should defendant’s financial situation so warrant.

Plaintiff contends the court had insufficient proof to wárrant a reduction of alimony and child support. However, the court must accept as true the husband’s testimony regarding his income and expenses when the statements are uncontro-verted. Stansbury v. Stansbury, 258 So.2d 170 (La.App. 1st Cir. 1972). We find no error in the court accepting defendant’s testimony as true.

Plaintiff cites the case of Sykes v. Sykes, 308 So.2d 816 (La.App. 4th Cir. 1975) in support of her contention that a husband must be absolutely unemployable, not merely unemployed, to excuse himself from the obligation to provide minimal financial assistance to his family. We find that case inapplicable because it involved an effort to avoid paying his family anything by refusing gainful employment.

We find the reduction, though severe, warranted by the husband’s loss of income and assets. LSA-C.C. Art. 148; Smith v. Smith, 339 So.2d 1298 (La.App. 1st Cir. 1976).

Plaintiff complains the court erred in not admitting evidence of her needs. However, her needs were not at issue as they had not been challenged. We find no error in the court’s rejecting testimony as to plaintiff’s needs.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Bruce A. McGILL v. GEM BUILDERS, INC.
    No. 13864.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      William R. Carruth, Jr., Baton Rouge, for appellant.
    Alex W. Wall, Jr., Baton Rouge, for ap-pellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit, in contract, for the return of a $500.00 deposit plus damages, to which defendant filed a reconventional demand. Plaintiff appealed.

The sole issue is the nature of the agreement between the parties.

We reverse and render.

Plaintiff presented a proposed purchase agreement and a $500.00 check to defendant builder for the purchase of a home. The offer was rejected, but defendant retained the $500.00 and removed his “For Sale” sign from the property. The parties evidently made a “gentleman’s agreement” that plaintiff would buy the house if terms could be agreed upon. Negotiations continued for approximately thirty days. Defendant allowed plaintiff to select the wallpaper, carpeting and lighting fixtures. It replaced a single with a double sink at plaintiff’s request. Plaintiff also requested landscaping changes. Ultimately, the parties were unable to come to terms. Plaintiff advised defendant he no longer wished to purchase the home. Defendant refused to return the $500.00, and plaintiff sued for its recovery plus damages for mental anguish and attorney’s fees. Defendant reconvened for expenses allegedly incurred on plaintiff’s behalf. The trial court dismissed both suits. It found the parties orally agreed that, pending negotiations, defendant would receive $500.00 and in return would not place the house on the market.

Defendant sold the completed home at a higher price than offered to plaintiff.

Plaintiff cites LSA-C.C. Arts. 2440, 2462 and 2464 in support of his argument that no legal effect can be given to an oral agreement relating to the sale of immovable property.

An option is an offer, which upon acceptance, ripens into a binding contract to buy and sell, and such contract must be specific as to the thing, price and terms. LSA-C.C. Art. 2462, supra; Herring v. Pollock, 339 So.2d 510 (La.App. 2d Cir. 1976). The evidence reveals the parties did not consent as to the price and terms.

The trial court found the agreement between the parties in the nature of a personal obligation whereby defendant, Gem Builders, agreed not to place the home on the open market in exchange for $500.00. We disagree. Such an interpretation renders the deposit a cost to plaintiff whether he purchased the house or not. We do not believe the record supports the parties’ consent to such a contract. We view the transaction as an offer by plaintiff accompanied by a $500.00 deposit; this offer was never accepted by defendants, Gem Builders. LSA-C.C. Arts. 1798, 1800. At that point in time, defendant owed plaintiff the $500.00. Thereafter, there was no meeting of the minds between the parties, and therefore no valid contract. LSA-C.C. Arts. 1766, 1779. Plaintiff is entitled to a return of his $500.00 deposit. LSA-C.C. Arts. 2462; Noble v. Stuart, 147 So.2d 465 (La.App. 2d Cir. 1962).

We reject plaintiff’s demand for damages for mental anguish and for attorney fees. Attorney’s fees are not allowed a litigant except where authorized by statute or by contract. Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976). Plaintiff has cited no legal basis for his recovery of mental anguish. Furthermore, his proof thereof is not sufficient.

For the above reasons that portion of the judgment of the trial court which dismisses plaintiff’s demand is reversed. It is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Bruce A. McGill, against defendant, Gem Builders, Inc. in the sum of $500.00. The judgment denying recovery of damages for mental anguish and attorney fees is affirmed. Ap-pellee is to bear the costs of this appeal.

REVERSED AND RENDERED IN PART; AFFIRMED IN PART.

      . LSA-C.C. Art. 2440:
      “All sales of immovable property shall be made by authentic act or under private signature.

        Except as provided in article 2275, every verbal sale of immovables shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.”
      LSA-C.C. Art. 2462:
      “A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.
      One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party.”
      LSA-C.C. Art. 2464:
      “The price of the sale must be certain, that is to say, fixed and determined by the parties.
      It ought to consist of a sum of money, otherwise it would be considered as an exchange.
      It ought to be serious, that is to say, there should have been a serious and true agreement that it should be paid.
      It ought not to be out of all proportion with the value of the thing; for instance the sale of a plantation for a dollar could not be considered as a fair sale; it would be considered as a donation disguised.”

      . LSA-C.C. Art. 1798:
      “As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such contract; the will of both parties must unite on the same point.”
      LSA-C.C. Art. 1800:
      “The contract, consisting of a proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he, who proposes, should before that consent is given, change his intention on the subject, the concurrence of the two wills is wanting, and there is no contract.”

      . LSA-C.C. Art. 1766:
      “No contract is complete without the consent of both parties. In reciprocal contracts it must be expressed. In some unilateral contracts the law provides that under certain circumstances it shall be presumed.”
      LSA-C.C. Art. 1779:
      “Four requisites are necessary to the validity of a contract:
      1. Parties legally capable of contracting.
      2. Their consent legally given.
      3. A certain object, which forms the matter of agreement.
      4. A lawful purpose.”


text:
    Raymond GRIFFIN v. Laura Ledet Griffin CHERAMIE.
    No. 13868.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Carlton J. Cheramie, of Diaz & Cheramie, Golden Meadow, for plaintiff-appellee in suit and defendant in rule.
    George J. Ledet, Jr., of LaPlante & Le-det, Cut Off, for defendant-appellant in suit and plaintiff in rule.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from the judgment awarding custody of a minor child to the plaintiff.

The issue is the best interest of the child.

Upon divorce, defendant was granted custody of the minor child. Plaintiff later obtained a change of custody upon proving defendant was living in an adulterous relationship. Following her marriage to her paramour, defendant brought this rule to regain custody. The trial court refused to change the custody.

Defendant contends the trial judge ignored the best interest of the child and based his decision on a desire to punish her for her past misconduct.

The trial court found upon evidence presented to it that the child’s physical and mental condition had improved since she had been with her father. She had adjusted well to her school and is a good student. The evaluation of the child by a clinical psychologist emphasized the child’s crucial need for a stable, secure home; the psychologist advised against repeated replacement and removal.

We find that the trial court correctly based its decision on the best interest of the child. LSA-C.C. Art. 157; Crow v. Crow, 383 So.2d 1063 (La. App. 1st Cir. 1980).

For the above reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.


text:
    KING BROTHERS BUILDING CONTRACTORS, INC. v. James McCULLEN and Mary Wilson McCullen.
    No. 13871.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Roy L. Wood, Amite, for plaintiff.
    Clayton S. Knight, Franklinton, for defendants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit for the balance due on a building contract plus “extras”, to which defendants reconvened for damages plus attorney fees. Defendants appealed.

The issues are: validity of an exception of prematurity; credit to defendants for delay, extra bricks and defective workmanship; sufficiency of proof of an extra; and attorney fees.

We affirm in part and reverse and render in part.

Plaintiff agreed to construct a residence for defendants according to the plans and specifications supplied by defendants. The contract provided for delay penalties of $25.00 per day. It further provided for attorney fees in the event a breach by the contractor necessitated legal proceedings.

During construction, problems over interpretation of the plans arose. Difficulties in implementing the design resulted in several modifications by the contractor. The home was completed and accepted by defendant nearly one month late.

When defendant failed to pay, plaintiff sued for the balance due on the contract, $6,100.00, plus $1,895.00 for “extras”. Defendants filed an exception of prematurity which was overruled. Defendants then reconvened for $5,300.00 to remedy alleged defects plus $3,050.00 in attorney’s fees. The trial court awarded plaintiff the balance due, $6,100.00 plus $1,535.89 for “extras”. It dismissed defendants’ reconven-tional demand.

Defendants contend the court erred in not sustaining an exception of prematurity. By the terms of the contract, defendants’ final payment was due upon receipt of a clear lien and privilege certificate from plaintiff. At the time plaintiff filed suit no such certificate had been tendered; and there were, in fact, two liens against the property. The first-lien holder intervened in the suit and was awarded judgment against both plaintiff and defendants. He seized the proceeds of the suit and had his privilege judicially recognized. The other lien was filed by plaintiff. Prior to trial of the exception the clerk of court certified these as the only liens on the property. We find the appearance of the sole lien holders in this suit renders the issue of prematurity moot.

Defendants claim liquidated damages because the home was completed twenty-nine days after contract date. They argue the contract did not allow for extension for inclement weather, nor did they consent to any extension. Plaintiff testified that heavy rains halted construction for eleven days. Inclement weather legally excuses non-performance of a construction contract. LSA-C.C. Arts. 1933, 2120; Davis v. Tillman, 370 So.2d 1323 (La.App. 2d Cir. 1979). Modifications at defendants’ request caused another five days delay. Finally the unavailability of defendants’ choice of brick caused delay. There is conflicting testimony as to the cause of this delay. We cannot say the court erred in holding defendants responsible. Plaintiff testified he waited seven weeks for the brick; this delayed the completion of the home an indeterminate time. We find no error in the court’s dismissing defendants’ claim for liquidated damages for delay.

Defendants next claim credit for unused bricks hauled away by plaintiff. This was not a cost plus contract. Plaintiff and defendants agreed upon a fixed price for the construction of the home. That price included a maximum allowance for materials. Defendants’ choice of brick was less expensive than his cost allowance. They have already been credited for this differential. No further credit is due for actual bricks not used in construction. We find no error in the court’s disallowing credit for unused brick.

Defendants next claim the air conditioning system is defective. They allege the house does not cool because of an inadequate air conditioning unit and incorrect duct work. The record reveals that although defendants were advised by the air conditioning contractor that the size and layout of the home necessitated two units, they chose to install a single one. They cannot now complain of its inadequacy. We find merit, however, in defendants’ complaint as to the duct system. Defendants’ plans call for a “trunk line” or a main duct that runs the length of the house with “allies”, or branch ducts, to individual rooms. The record reveals the duct work emanates directly from the central unit in a spider web fashion. The air conditioning contractor testified that the roof design also necessitated a 90 degree turn in one of the ducts. According to a refrigeration specialist, the spider-web duct pattern prevents good air distribution and is contributing to the failure of the air conditioning system to work properly. Although we agree that the roof design may have caused plaintiff to make modifications in the duct work we find plaintiff’s failure to install a trunk line in accordance with defendants’ plans a contributing factor in the failure of defendants’ air conditioning system to work properly. The refrigeration specialist estimated the duct work could be corrected for $500.00. We accordingly award defendant-plaintiff in reconvention that amount.

Defendant next contends the bathtub drain in the master bedroom is defective. He alleges it takes one and one-half hours for this bath to drain. We feel his claim has merit. Plaintiff admitted the drain was slow and stated it may be caused by cement in the plumbing. A plumber testified the correction would cost $100.00 at a minimum. We award defendant-plaintiff in reconvention that amount.

We find no merit in defendants’ contention that plaintiff should be held responsible because of deficiencies in the plans and specifications not timely called to their attention. LSA-R.S. 9:2771 provides to the contrary.

Defendants contend the trial court erred in not assessing attorney fees against plaintiff. The contract provides plaintiff and his surety shall be liable for all attorney fees incurred by owner-defendant in any legal proceeding made necessary by the failure of the contractor-plaintiff to comply with the contract. Because we find plaintiff liable to defendant on their reconven-tional demand for defects in the plumbing and air conditioning ducts, we believe plaintiff should be assessed attorney fees accordingly. We feel an award of $500.00 is fair under the circumstances.

We have examined the claims of other errors and agree with the trial court thereon.

For the above reasons, the judgment of the trial court is reversed insofar as it dismisses defendant’s reconventional demand. It is now ordered, adjudged and decreed that there be judgment in favor of plaintiffs in reconvention, James McCullen and Mary Wilson McCullen, against defendants in reconvention, King Brothers Building Contractors, Inc. and King Brothers Building Supply and Hardware, Inc., in the sum of $1,100.00 together with legal interest from date of judicial demand.

The judgment is affirmed in all other respects. Costs are to be shared equally by the plaintiffs and defendants.

REVERSED AND RENDERED IN PART, AFFIRMED IN PART.

      . LSA-R.S. 9:2771:
      “No contractor shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.”

      . We find the provision of the contract which makes the contractor liable for “... charges or attorney’s fees incidental to the completion or enforcement of the contract, ...” broad enough to encompass defendant’s reconven-tional demand for attorney’s fees.


text:
    Henry THOMAS and Ruth H. Thomas v. STATE of Louisiana, Through the DEPARTMENT OF REVENUE and the Division of State Buildings and Grounds.
    No. 13876.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Raymond C. Vinet, Sr., Baton Rouge, for plaintiffs-appellants.
    Thomas F. Wade, Baton Rouge, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appeal from a judgment of the trial court dismissing their suit for damages arising from a slip and fall.

The issues are: liability of the state, contributory negligence of the plaintiff, and interpretation of facts by the trial judge.

We affirm.

In 1971, Mrs. Thomas and two companions visited the Motor Vehicle Division building to check on an automobile title. Plaintiff and her companions exited by the same ramp they had used on entrance. She took two or three steps down the ramp, slipped on a banana peel and fell, injuring herself.

Plaintiffs argue that because entrants to the Motor Vehicle Division building are compelled to go there by law, often under rushed circumstances, the state owes them a higher standard of care than does a private landowner. Plaintiffs assert the appropriate duty for defendant is that imposed on public stores by the Supreme Court in Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976), in which the court held that because of the increased risk of harm to customers from items dropped on the floor and because the displays of the self-service grocery system seeking the focus of the customers on the shelves the storekeepers’ duty correspondingly increased; they are required to minimize risk by frequent inspections and clean-ups of the aisles.

We believe the proper standard for the liability of the defendant landowner under these circumstances is based on the concept of fault under LSA-C.C. Arts. 2315 and 2316. The duty of the landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. The landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care.

The ramp in question rises gradually to the walkway into the building. It is light gray in color and has hand rails on both sides. The banana peel was described as being black. The record supports the trial court’s reasoning that either the banana peel was deposited during the few minutes plaintiff was in the building or she should have seen it upon entry. If the black banana peel appeared during Mrs. Thomas’ presence in the building, we find that the duty was not breached since it did not extend to constant supervision and inspection. If, however, the peel was already there, Mrs. Thomas was guilty of contributory negligence because she should have seen the peel on entrance.

Plaintiffs contend the court misinterpreted the various versions of the accident given in their amended petitions as a reflection on their veracity. Although in its written reasons for judgment, the court outlines the different versions given by plaintiff, it ultimately determined the most likely cause of the fall was a banana peel. Accepting this fact as true, the court then proceeded to decide the case correctly using the applicable law. Since this was Mrs. Thomas’ version at trial, we fail to see how this factual determination has harmed her.

For the above reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . LSA-C.C. Art. 2315:
      “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obli-gee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
      The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
      As used in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.”
      LSA-C.C. Art. 2316:
      “Every person is responsible for the damage he occasions not merely by his act, but by negligence, his imprudence, or his want of skill.”


author: DOMENGEAUX, Judge. PER CURIAM:

text:
    Gary HYATT, Plaintiff-Appellee, v. LAKE CHARLES MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD, Defendant-Appellant.
    No. 7910.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.
    Peter A. Ciambotti and E. R. Robinson, III, Lake Charles, for defendant-appellant.
    Caskey & Pizzolatto, Jack W. Caskey, Lake Charles, for plaintiff-appellee.
    Plauche, Smith, Hebert & Nieset, Allen L. Smith, Jr., Lake Charles, for defendant-appellee.

      Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   DOMENGEAUX, Judge.

Sergeant Gary Hyatt was suspended without pay from the Lake Charles Police Department on October 22, 1979, by Police Chief Jimmy Gwatney. Hyatt appealed his four-day suspension to the Lake Charles Municipal Fire and Police Civil Service Board (The Board). The Board conducted a hearing on November 19th and November 21, 1979, after which it concluded that the disciplinary action taken against Hyatt “was made in good faith and for just cause.” Hyatt then appealed The Board’s determination to the Fourteenth Judicial District Court. That court reversed The Board’s decision. The court reasoned that the notification advising Hyatt of his suspension and the reasons therefor was deficient because it contained conclusions rather than statements of fact concerning the alleged misconduct of Hyatt. The Board has appealed to this Court.

The statutes governing this case are set forth in La.R.S. 33:2471-2508, relating to fire and police civil service laws for municipalities with populations between 13,000 and 250,00o. R.S. 33:2500 D. provides:

“In every case of corrective or disciplinary action taken against a regular employee of the classified service, the appointing authority shall furnish the employee and the board a statement in writing of the action and the complete reasons therefor.”

Pursuant to the statute, Hyatt was issued a letter of personnel action dated October 31, 1979, which stated:

“On October 21, 1979, approximately 5:00 p. m., while effecting arrest of a female subject, was in violation of Municipal Fire and Police Civil Service Law, Act 302, Section 30, Paragraphs 1) Unwillingness or failure to perform the duties of his position in a satisfactory manner, and, 3) The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.”

Subsequent to receipt of this personnel action letter, Hyatt received a letter dated November 14, 1979. This letter provided Hyatt with names of witnesses to the arrest and of witnesses expected to be called at the Board’s hearing. Also, the letter read:

“I have determined that your conduct impaired the efficiency of the public service and that there was a real and substantial relation between your conduct on the occasion in question and the efficient operation of the Police Department. Your conduct on the occasion in question is specifically prohibited under Article 14, Sec. 15.1, Subdivision 30(1) and (3) of the Louisiana Constitution of 1921, now carried forth as a statute under Louisiana law.”

The trial court found that each of these notices adequately stated the date, time, and place of the occurrence, and the persons involved. However, the notices were deemed inadequate because complete reasons, as required by R.S. 33:2500 D. were not given for this suspension. The court concluded:

“The Court is unable to determine from the notifications of what the conduct consisted; whether the conduct complained of was: an illegal arrest, excessive force in making a lawful arrest, use of improper language, delaying other officers in the performance of their duties, improperly using a gun, exhibitionism for television cameras, unauthorized public statements, failure to be where his duties required him to be or intemperate conduct toward fellow officers or superiors. The notifications did not advise the employee or the board what the conduct consisted of from which the Chief of Police and the Mayor reached the ‘conclusions’ which are contained therein.
The Court finds that the notifications were deficient under the jurisprudential guidelines since they contained conclusions rather than statements of facts concerning the alleged misconduct of the employee. The requirement for specificity has not been fulfilled under the circumstances shown by this record.”

We agree with the trial court that the reasons given for Hyatt’s suspension lacked specificity. However, we need not reach the issue of whether this lack of specific notice constituted insufficient notice under R.S. 33:2500 D. because we find for other reasons that the suspension of Gary Hyatt was imposed without cause and was therefore improper.

In deciding that the suspension was imposed without cause, we have relied upon the rationale used in Martin v. City of St. Martinville, 321 So.2d 532 (La.App. 3rd Cir. 1975), writ denied 325 So.2d 273. In that case, the Mayor and City Council of St. Martinville dismissed the Chief of Police of St. Martinville. The Civil Service Board and the district court upheld the dismissal, finding that the disciplinary action was taken “in good faith for cause” as required by La.R.S. 33:2561. However, the Court of Appeal reversed the dismissal of the Police Chief because it found that the dismissal was not made “for cause”. The Court said:

“LSA-R.S. 33:2561 provides, in substance, that the issue to be determined by the Police Civil Service Board or by the district court, in the event an appeal is taken to that court, is whether the decision of the appointing authority or of the board was ‘made in good faith for cause,’ as set forth in the Fire and Police Civil Service Law for small municipalities (LSA-R.S. 33:2531-2568). [4] We interpret that to mean that the action of the appointing authority, in order to be valid, must be both, ‘in good faith’ and ‘for cause.’ The action of that authority must be set aside if it was not taken ‘for cause,’ even though it may have been taken in good faith. Our particular concern here is whether the suspension or dismissal of plaintiff Martin was made ‘for cause.’
The applicable statutes do not define ‘cause,’ and we have been referred to no Louisiana jurisprudence in which that term has been interpreted in connection with similar types of cases. We have found cases decided in other jurisdictions, however, where the word ‘cause’ has been construed in connection with similar statutes, and we consider the reasoning in some of those cases to be persuasive here. In Riley v. Board of Police Commissioners of City of Norwalk, 147 Conn. 113, 157 A.2d 590 (1960), for instance, the court said, ‘Cause implies a reasonable ground of demotion or removal as distinguished from a frivolous or incompetent ground.’ The word ‘cause’ also has been defined as ‘some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.’ Coursey v. Board of Fire and Police Commissioners, 90 Ill. App.2d 31, 234 N.E.2d 339 (1st Dist. 3rd Div. 1967).
We believe that in order for the dismissal or the disciplining of a tenured police officer to be valid, as being in good faith for cause under LSA-R.S. 33:2561, the dismissal or disciplinary action must be reasonably necessary for the continued efficiency of the service being rendered by the appointing authority. The evidence must show that the failure to dismiss or discipline the officer would be detrimental to the city or to the service which it is required to perform. The dismissal of such an officer cannot be said to have been made ‘in good faith,’ if the appointing authority acted arbitrarily or capriciously, or if the action taken was the result of prejudice or political expediency. His dismissal cannot be said to have been ‘for cause,’ if the evidence fails to show that it was necessary for the discipline and efficiency of the police department, or that it was needed to avoid some detriment to that department or to the city.
Our review of the evidence convinces us that the dismissal of plaintiff Martin was not made ‘for cause,’ and that the decision of the Police Civil Service Board affirming that dismissal must be reversed.” (Emphasis added).

The Martin court set out the reasons assigned by the appointing authority for the dismissal. Then the Court exhaustively reviewed the evidence bearing upon each assigned reason before concluding that the dismissal was not warranted by the evidence.

We believe the evidence adduced at the hearing in this case fails to show that the suspension of Gary Hyatt was necessary for the discipline and efficiency of the police department, or that it was needed to avoid some detriment to the department or the city.

The reasons given for the suspension of Gary Hyatt were twofold: (1) Unwillingness or failure to perform the duties of his position in a satisfactory manner; and (2) The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.

The conduct upon which the suspension was based occurred about 5:30 P.M. on Sunday, October 21, 1979. Sergeant Hyatt, a plain clothes detective in an unmarked car that day, arrived at a location where three pursued car thieves had moments earlier abandoned the stolen car they were driving. The officers in pursuit had left their squad cars unattended in an effort to apprehend the thieves on foot. When Hyatt arrived at the scene, he took the keys from each of the three police cars and from the stolen vehicle as well, in order to secure control of the vehicles. Then he attempted, with the aid of a loudspeaker, to disperse the swelling crowd of onlookers. He had heard several gunshots from the area where the pursuit had continued on foot, and did not. want anyone to get hurt. By this time he received assistance from the Calcasieu Parish Sheriff’s Department and the State Police. He informed the newly arrived law enforcement officers that he was in charge and instructed them to help keep the crowd out of the two-block area. The performance of his duties to this point was exemplary.

At this point, two men and a woman began walking toward Hyatt in the restricted area. They ignored the orders of a state trooper, Michael Leonards, to stay out of the area. Leonards physically stopped the three and told them three or four times that they could not go down the street. Each time, though, he was brushed aside by the two men, and the belligerent trio, talking loudly and excitedly, continued towards the spot where Hyatt was standing. When they had almost reached Hyatt, Leonards abandoned his efforts to restrain them and allowed them to reach Hyatt.

The two men, Jeff and Steve Thomas, and the woman, Mary Guillory, were brothers and sister. They apparently knew Hyatt since one of the three mentioned his name. The woman, walking ahead of her brothers, informed Hyatt in very offensive language that she was going to her house (which was in the restricted area) to look after her children. Hyatt allowed her to pass and turned to talk to the two men, who were visibly upset. Apparently, another of their brothers, Timmy Lee, was one of the suspects being apprehended in connection with the theft of the car. The Thomas boys had jumped to the conclusion that their brother was killed when shots were fired. Hyatt tried to calm them down by explaining to them that nobody had killed their brother. At this juncture, Mary Guil-lory walked back toward Hyatt screaming or yelling. Then she pushed Hyatt on the shoulder from behind, mentioning something about her brother being shot. Hyatt turned around, told her she was under arrest for interfering with the duties of a police officer, and placed his hand upon her right arm. She jerked her arm away from him and backed up, whereupon Hyatt ran towards her, pushed her with both hands, put his arm around her neck, and then slung her against the state police car near which they were all standing. The woman’s two brothers moved toward Hyatt from behind. Before the brothers reached Hyatt, State Trooper Leonards reappeared from behind the state police car to assist Hyatt. Leonards ran between Hyatt and the two brothers, pushed the larger brother (Steve, who stood about 6'2" and weighed over 200 pounds) away, and grabbed the other brother, who had a metal comb (or “rake”) in his hand. The man Leonards pushed away grabbed Hyatt, who was still struggling with Mary Guillory, and attempted to take Hyatt’s service revolver. Someone called for help and a Sheriff’s Deputy, Warren Broussard, ran to the site of the scuffle, pulled Steve Thomas from Hyatt, and pushed him against the car. Another state policeman, Raymond Hoff-pauir, aided first Broussard, then Leonards, in subduing and handcuffing the two men. Deputy Calton Pitre of the Sheriff’s Department assisted Hyatt by handcuffing the woman. The three were then taken to jail.

KPLC-TV had arrived at the scene because of the pursuit of the car thieves, but began filming Hyatt when the scuffle began. On the ten o’clock news that Sunday evening, Lake Charles viewers witnessed a film clip of Hyatt running toward Mary Guillory, pushing her, putting his arm around her neck, and slinging her against the police car. The KPLC-TV audience also saw Hyatt emerge from the crowd during the scuffle waving his service revolver. The viewers saw little else, because the news camera did not capture the entire incident. Particularly, the audience did not see Mary Guillory resist Hyatt’s efforts to restrain her before he used force to effect the arrest.

Chief Jimmy Gwatney, Captain E. P. Smith, also of the Lake Charles Police Department, and Sergeant Hyatt reviewed the film clip at the KPLC-TV studios the next morning. Gwatney suspended Hyatt without pay until an investigation could be completed to determine whether more severe discipline should be taken. The suspension was imposed solely on the basis of the film clip shown on TV and a fifteen minute discussion with Hyatt about the arrest of Mary Guillory, during which time Hyatt attempted to explain or justify his actions.

Following the suspension, an internal investigation was ordered by Captain Smith and was conducted by Lieutenant Charles McGee and Sergeant Linton DeClouette. Their investigation consisted of interviewing five eye witnesses to the arrest. These witnesses were: Jocelyn Ann Lewis, Jeff Thomas, Lonnie Peter Gradney, Raymond Hoffpauir, and Michael Leonards. While their accounts of the incident differed to some extent, their versions of the altercation and ensuing arrest appreciably correspond with the account detailed above.

We note that the Police Chief’s decision to suspend Hyatt occurred after he viewed the KPLC-TV news clip of the arrest and discussed the incident for about fifteen minutes with Sergeant Hyatt. Only after he suspended Hyatt was the investigation conducted. Lieutenant McGee and Sergeant DeClouette, upon concluding their investigation, formed the opinion that Hyatt should be reinstated and should be paid for those days he was suspended. They felt that no disciplinary action should be taken and stated their opinion to Chief Gwatney.

McGee and DeClouette reached their conclusion after watching the taped arrest that was televised, as well as additional footage that was not aired. This footage tended to corroborate Hyatt’s statement that Mary Guillory was the aggressor. The Police Chief admitted during The Board’s hearing that this additional footage did show that Hyatt initially placed his hand upon Mary Guillory’s arm and that she pulled away. Gwatney maintained, though, that Hyatt had, in his opinion, acted improperly and over-reacted to the situation. Lieutenant McGee commented during his testimony to The Board that Hyatt knew the Thomas boys and knew them to be troublemakers. He felt Hyatt’s actions were reasonable under the circumstances.

Considering all of the circumstances surrounding the arrest, we do not think that the suspension was warranted. Our conclusion that the suspension was unjustified is not based solely upon the opinion of the investigating officers; other circumstances as well prompt our conclusion.

As we appreciate the scenario, the situation was tense. Hyatt was directing efforts to clear bystanders from the area in case a shooting spree erupted. His first concern was for the safety of all innocent bystanders. Jeff and Steve Thomas and Mary Guil-lory demonstrated a complete lack of regard for police authority by ignoring Trooper Leonards’ orders to stay away from the restricted area. They insisted upon interfering with the duties of Sergeant Hyatt. Leonards testified that the three were very belligerent during the entire incident. It is undisputed that Hyatt knew Jeff and Steve Thomas to be troublemakers. It is also undisputed that Steve Thomas was a much larger man than Sergeant Hyatt (who stands about 5'7" tall and weighs about 150 lbs.) and that both he and his brother Jeff were strong, muscular men. Further, Mary Guillory, at 5'9" tall and 174 lbs. was also much larger than Hyatt.

When Mary Guillory returned to Hyatt and pushed him from behind, after he had already let her pass when she voiced concern over her children, Hyatt was justified in placing her under arrest for interfering with his duties as a police officer. Gwatney did not argue that Hyatt had no grounds for the arrest or that the arrest was illegal. Yet, when Hyatt attempted to place her under his control by taking hold of her arm, she resisted. With his back to Jeff and Steve Thomas, who were still belligerent and who were yelling “You can’t do that to my sister” or words to that effect, we think Hyatt acted reasonably in using force to effect the arrest of their sister.

Chief Gwatney testified he thought Hyatt had provoked the incident, that he over-reacted at the scene, causing other people to get involved. He further testified that if Hyatt was going to arrest the woman, his first move should have been to contain or detain her and then to handcuff her. We agree with Chief Gwatney that the first move should have been to contain or detain. But as we observed previously, this was Hyatt’s first move — he placed his hand upon Mary Guillory’s arm to contain her and she jerked it away. Chief Gwatney admitted that his initial impression (that Hyatt’s first move was to shove the lady) was incorrect. Yet he did not revoke the suspension after realizing his mistake because he still felt that Hyatt over-reacted. We do not see how Sergeant Hyatt could have reacted any differently.

Surrounded by three hostile people, one of them armed and at least two of them bigger than he was, Sergeant Hyatt used force to put distance between his unprotected back and the two brothers (by pushing the sister), and to effect the arrest of a resistant Mary Guillory (by slinging the larger woman against the car). That his efforts were unsuccessful inasmuch as other persons became involved was not Sergeant Hyatt’s fault. The fault lay with the three individuals who created the disturbance in the first place by interfering with the duties of Sergeant Hyatt.

We appreciate Chief Gwatney’s initial impression of the incident after viewing the highly prejudicial film clip. But we cannot understand his decision to stand by the suspension after learning that his first impression of Sergeant Hyatt’s first move was inaccurate, and after being informed by the investigating officers of their opinion that no disciplinary action be taken. Our careful review of the record convinces us that Sergeant Hyatt acted properly at all times. Because his actions were proper, albeit controversial because of the distorted and incomplete film aired on television, his suspension could not have been necessary for the continued efficiency of the department, nor could it have been needed to avoid some detriment to the department or the city. Accordingly, we find that his suspension was imposed without cause.

For the above reasons, the judgment of the district court, which reversed the decision of the Civil Service Board affirming the four day suspension without pay of Sergeant Gary Hyatt is affirmed. Judgment is hereby rendered ordering and directing the appointing authority of the City of Lake Charles to reimburse Sergeant Hyatt for all back pay lost as a result of his illegal suspension.

Costs of this appeal, to the extent they may be legally imposed, are assessed against the defendant-appellant, Lake Charles Municipal Fire and Police Civil Service Board.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM:

We earlier held that Sergeant Gary Hyatt’s suspension was imposed without cause. We affirmed the district court’s judgment which reversed the suspension, although for different reasons. Implicit in our opinion is the finding that there was no evidence from which the Board could conclude that the suspension was justified or proper.

We inadvertently neglected to reverse that portion of the district court’s judgment which remanded the case to the Board. In light of our decision, no remand is necessary, and that portion of the district court judgment ordering the case to be remanded is hereby reversed.

Defendant’s application for a rehearing is denied.

      . Section 2471 provides:
      “This Part applies to any municipality which operates a regularly paid fire and police department and which has a population of not less than thirteen thousand nor more than two hundred fifty thousand according to the latest regular federal census for which the official figures have been made public.”
      According to the latest federal census for which the official figures were available at the time of trial (the 1970 census) Lake Charles had a population of 77,998.

      . The review by the district court is limited to whether decisions made by the Board were made in good faith for cause. La.R.S. 33:2501.

      . This statute, affecting smaller municipalities with a population of 7,000 to 13,000, is identical to R.S. 33:2501 in all important respects. 4 R.S. 33:2531-2568 correspond to the applicable statutes here, 33:2471-2508. 33:2501, like 2561 in Martin, limits the district court’s review to whether decisions by the Board were made in good faith for cause.

      . These reasons correspond, verbatim, to reasons 1 and 3 respectively, of the 15 reasons, listed in R.S. 33:2500 A., for which disciplinary action may be taken as the circumstances warrant.

      . The shots that were heard, as Hyatt later found out, were only warning shots; there had been no exchange of gunfire.

      . According to the testimony of Trooper Leon-ards (R. 131).

      . According to the testimony of Lonnie Peter Gradney, an eyewitness, Mary Guillory seemed to be getting the best of Sergeant Hyatt during the struggle.


author: SWIFT, Judge.

text:
    CITY OF LAFAYETTE, Louisiana, Plaintiff-Appellee, v. Wilton Robert CASON et al., Defendant-Appellant.
    No. 7959.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.

      William E. Logan, Jr., Lafayette, for defendant-appellant.
    Allen R. Ingram, Lafayette, for plaintiff-appellee.
    Before FORET, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

The City of Lafayette instituted this expropriation proceeding against Wilton R. Cason, the landowner, and his lessee, C & B Sales and Service, Inc., to widen and improve Guilbeau Road. It involves the taking of a strip of land across the front of Cason’s property on the north side of Gil-beau approximately 18 feet wide containing 3,607 square feet. It was stipulated that the market value of the land was $3.70 a square foot. Following the trial and a demonstration of the ingress, egress and maneuvering of large trucks on the premises, the trial judge awarded $16,843.00 for the property taken (which included some minor improvements) and $58,969.00 for severance damages or a total of $75,812.00. In addition, the defendants were awarded $9,000.00 for attorneys’ fees.

Only Mr. Cason has appealed, seeking an increase in the award and some miscellaneous costs. The city answered the appeal contending that the award is excessive.

The defendant Cason assigns as error the failure of the trial court to award any amount for the cost of moving all or part of the business operation being conducted on the premises and the loss of business to be incurred as a result of the relocation. He contends that the C & B Sales and Service, Inc., an oilfield sales, rental and service business of which Mr. Cason apparently is the managing officer and principal stockholder, can no longer operate on the property after the taking because the decrease in area would prevent large trucks from loading and unloading heavy equipment thereon and also would eliminate necessary parking and storage spaces.

The defendant’s position is supported by the testimony of two qualified real estate appraisers. Both agreed that to continue the business operation on the site one of the metal buildings would have to be removed and relocated on available land in an industrial park which could be acquired for $2.00 per square foot. However, they differed as to just which one of the two large buildings should be moved. Their estimates of just compensation were as follows:

Jessie Preston
Compensation Guidry Babineaux
Land & improvements taken: 15,317.00 $ 16,843.00
Severance damages: 50,046.00 58,969.00
Relocation costs: 87,546.00 106,860.00
ROUNDED TOTALS $153,000.00 $182,700.00

On the other hand, two qualified appraisers for the city were of the opinion that there was no diminution in value of the property by reason of the proximity of the new right of way line to the buildings and no severance damages were sustained. Neither considered any possible business loss as they did not believe this was in the realm of a real estate appraiser. Their evaluations of the land and improvements taken were:

Gene Cope $14,439.90
Maurice Chappuis $14,558.90
In making the award the trial judge said: “The Court relied heavily on the testimony of Mr. Preston J. Babineaux in arriving at the proper compensation for the defendant. No relocation damages were awarded as the evidence did not support a finding that the property in question was both unique in nature and location and also indispensable to the conduct of the landowners’ business operations on the site from which a part was taken.”

At the outset we note that no appeal has been taken by C & B Sales and Service, Inc. Although Mr. Cason may be the principal or even the sole owner of the stock in that corporation, any economic loss to be sustained through relocation of such business appears to us to be loss or damage sustained by the corporation. The landowner’s damages must necessarily be confined to the value of property taken and severance damages or a decrease in the value of the remaining land and improvements that may result from the taking. Consequently, we do not believe that the award to Mr. Cason can be increased on this appeal to include a loss sustained by the corporation even if such was proved since the corporate defendant did not appeal.

Be that as it may, we have reviewed the record carefully and we agree with the trial judge’s finding that the subject property was not unique in nature or location or indispensable to operation of the business being conducted on the site. These appear to be necessary elements of a relocation award. State Through Dept. of Highways v. Constant, 369 So.2d 699 (La.1979). The judge viewed the property as well as demonstrations of large trucks being maneuvered thereon in making this finding of fact. We, of course, are precluded from a contrary holding on this factual issue in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our conclusion therefore is that no such business damage was established.

We must also reject the city’s contention that severance damages were erroneously included in the award.

As stated by our supreme court in State, Dept of Hwys. v. Denham Springs Dev. Co., Inc., 307 So.2d 304 (La.1975), severance damages are usually calculated as the difference between the market value of the whole property before and such value of the remainder after the taking and the burden of proving same by a preponderance of the evidence rests upon the landowner. They can be established by expert opinion, corroborated by the facts in the record, especially where accepted by the trier of fact.

In this case the trial judge stated that he relied heavily on the testimony of appraiser Babineaux in arriving at the proper compensation. Mr. Babineaux’s opinion as to the reduced value of the remainder was based on the loss of utility resulting from the effect of the taking on the ingress, egress and maneuvering of large trucks and also on the decreased parking and storage space on the property. Again, this involves questions of fact which have been determined by the trial judge based on his evaluation of the testimony of the witnesses as well as an observation of the premises and demonstrations of truck movements thereon. While we must admit that we have some doubt in this connection, we are unable to say that the trier of fact was clearly wrong in concluding that the value of the remaining property was reduced by the amount of the severance damages he awarded.

The defendants are entitled to have the following additional costs taxed as such:

E. M. LeBlanc, Jr., C.P.A. $750.00
Douglas McGee & Associates, Surveyors 392.50
Tic Vincent, relocation estimate 150.00
Younger Transportation — truck demonstration 131.61

For the foregoing reasons, the judgment of the district court is amended to tax as court costs the items listed hereinabove amounting to $1,424.11, but otherwise it is affirmed. The costs of this appeal in the sum of $25.00 are assessed to the plaintiff-appellee.

AFFIRMED AS AMENDED.


author: FORET, Judge.

text:
    William M. PALMER, Plaintiff-Appellant, v. STATE of Louisiana et al, Defendant-Appellant.
    No. 7990.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.

      Brittain & Williams, Jack 0. Brittain, Natchitoches, for plaintiff-appellant.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, William J. Doran, Jr., Baton Rouge, Watson, Murchison, Crews, Arthur & Corkern, Ronald E. Corkern, Jr., Natchi-toches, Gist, Murchison, Hughes & Munster-man, David A. Hughes, Alexandria, for defendant-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   FORET, Judge.

This is a tort action. William Palmer (Plaintiff) seeks to recover for personal injuries he sustained in a vehicular collision. The defendants are Wilfred Sepulvado, the driver of the other vehicle, and his liability insurer, Insured Lloyds. The Louisiana Department of Transportation and Development; Albert Cohen, Allie Cohen, and Claude Mason, individually and d/b/a Buckeye Landing and their liability insurer, Houston General Insurance Company (Houston); L. J. Ernest and Company and its employee, Richard Bruce, are also named defendants.

The trial court rendered judgment on December 14, 1979, in favor of plaintiff and against Wilfred Sepulvado in solido with his liability insurer, Insured Lloyds, in the sum of $5,000.00, and against Wilfred Sepulvado, individually, in the sum of $45,000.00. The trial court also rendered judgment against plaintiff, dismissing his demands against the remaining co-defendants with prejudice.

William Palmer filed a motion for á new trial and/or rehearing on March 10, 1980, which was denied. Insured Lloyds appealed suspensively. Wilfred Sepulvado and William Palmer appealed devolutively.

There are two major issues presented by the parties on appeal:

(1) Whether Wilfred Sepulvado was guilty of negligence for which he should be held liable to plaintiff, and
(2) Whether the negligent placing of the Buckeye Landing sign in the highway right-of-way was a cause-in-fact of the injuries suffered by plaintiff.

FACTS

This suit arose out of a vehicular collision which occurred on March 3,1977, at approximately 8:35 A.M. in the intersection of La. 476 and La. 3129 in the southern part of Sabine Parish. Louisiana 3129 begins at this intersection. (See attached sketch prepared by plaintiff.)

The collision occurred between a 1976 Chevrolet pickup truck owned by Ed Jones, Jr., Inc. and being operated by William M. Palmer, and a 1973 two-ton pulpwood truck owned and operated by Wilfred Sepulvado.

Palmer approached the intersection from the east on a gravel road (parish road), and was required to stop by a stop sign located on the right side of that road. Wilfred Sepulvado was approaching that same intersection from the north of La. 476, which is the favored road at this point.

The only eye-witness to the accident is Wilfred Sepulvado. He testified that as he was approaching the intersection, traveling south, approximately 40 miles per hour, he saw Palmer go up to the stop sign on the parish road and stop.

There was a distance of some 43 feet between the stop sign and the east edge of the hard surface of La. 476. It appears that Palmer came to a full stop within this 43-foot area and then proceeded onto La. 476 intending to go through the intersection and continue southwest along La. 476. He did this without looking to his right again after having stopped. Sepulvado’s vehicle struck Palmer’s vehicle broadside in the west (south-bound) travel lane of La. 476, and plaintiff was severely injured.

Plaintiff alleges that Wilfred Sepulvado was guilty of negligence, proximately causing this accident, for failing to see what he should have seen and for failing to keep his vehicle under proper control.

SEPULVADO’S ALLEGED NEGLIGENCE

There is no evidence in the record regarding the posted speed limit on La. 476, in the vicinity of the intersection, and there is some dispute as to how fast Sepulvado was traveling at the time of the accident. However, plaintiff makes no argument that he was speeding.

Plaintiff contends that Sepulvado failed to see what he should have seen, i. e., that plaintiff was moving into the intersection and that a collision was imminent. He notes that Sepulvado testified that after he saw plaintiff stop for the stop sign on his left, he then glanced off to his right for approximately one to two seconds. Plaintiff argues that Sepulvado’s glancing off to the right during this period of time constitutes negligent conduct.

The trial court agreed and found Sepul-vado to have been negligent. That finding, as set out in the trial court’s reasons for judgment, was:

“The physical evidence and the admissions of Mr. Wilfred Sepulvado establish that, more probably than not, the collision and resulting injuries and damages were caused by the negligence of Mr. Wilfred Sepulvado.
“Mr. Sepulvado, who, considering Mr. Palmer’s condition is the only eye witness, can give no complete account of the entire episode, and the Court suggests that he was inattentive. He saw Mr. Palmer stop. He could see his vehicle in its entirety. Then he, Sepulvado, traveling at a rate of speed that probably was nearer 55 mph than 40 mph, looked off to his right. When he finally looked back down the road in front of him, i. e. in the direction in which he was driving, Mr. Palmer’s vehicle was in the east lane of the Scenic Highway. Mr. Sepulvado applied his brakes, skidded the pulpwood truck approximately 57 feet, struck the Palmer vehicle broadside with sufficient force to knock its sideways, 112 feet, down into a ditch.
“Obviously, Mr. Sepulvado did not see the Palmer vehicle from the time it was stopped, near the stop sign, until it was actually in the intersection. During the interim Mr. Sepulvado was gazing off to the west, while his vehicle sped south.
-k ¡Í5
“. .. To look off, out west, completely inattentive to the roadway in front of him, and of the vehicle preparing to enter the intersection constituted negligence, which negligence was, in the opinion of this Court, the proximate cause of the collision and resulting injuries and damages.”

We disagree with the trial court’s finding. Our Supreme Court in Koob v. Cooperative Cab Company, 213 La. 903, 35 So.2d 849 (1948), at page 851, stated the duty of care which must be exercised by the motorist on a favored road. It is:

“The law in this state is well settled that a motorist who is proceeding on a right-of-way street, upon approaching an intersection where traffic is required under a city ordinance, and is warned by stop signs, to come to a complete stop before entering the intersection, should not be held to the. same degree of care and vigilance as if no ordinance existed or stop signs were erected. The danger at such an intersection is less than that at a comer where no stop signs have been erected, and therefore less care is required of the driver on a favored street. The motorist on the right-of-way street, with knowledge of the location of such a stop sign, has a right to assume that any driver approaching the intersection from the less favored street will observe the law and bring his car to a complete stop before entering the intersection, and such motorist can indulge in this assumption until he sees, or should see, that the other car has not observed, or is not going to observe, the law.”

[Citations omitted.]

See also Henderson v. Central Mutual Insurance Company, 238 La. 250, 115 So.2d 339 (1959); Dorty v. Zurich Insurance Company, 236 So.2d 837 (La.App. 2 Cir. 1970).

As the driver on the favored thoroughfare, Sepulvado had the right to assume the vehicle on the intersecting street would stop and yield the right of way, and he could continue under this assumption until such time he saw or should have seen that the other vehicle was ignoring the stop sign. Koob v. Cooperative Cab Company, supra; Bourgeois v. Francois, 245 La. 875, 161 So.2d 750 (1964); Fontenot v. Lucas, 228 So.2d 211 (La.App. 3 Cir. 1969), writ denied, 255 La. 279, 230 So.2d 587 (1970); Otillio v. Dolese, 236 So.2d 646 (La.App. 4 Cir. 1970); Clark v. Allstate Insurance Company, 279 So.2d 237 (La.App. 2 Cir. 1973); Triche v. Commercial Union Insurance Company, 329 So.2d 784 (La.App. 1 Cir. 1976).

Furthermore, it is only in the exceptional case where the right-of-way motorist could have avoided the accident by the exercise of the very slightest degree of care that he will be considered guilty of negligence. Bourgeois v. Francois, supra; Otillio v. Dolese, supra; Clark v. Allstate Insurance Company, supra; Triche v. Commercial Union Insurance Company, supra.

The evidence shows that Sepulvado saw plaintiff bring his vehicle to a complete stop before entering the intersection. Sep-ulvado then glanced to his right for approximately one to two seconds. He testified that his reason for doing this was to check for anything that may have been approaching the intersection from that direction. Upon seeing nothing, Sepulvado then turned his attention to La. 476 and saw plaintiff entering the intersection. He hit his brakes, but was unable to stop, and skidded some 57 feet before colliding with plaintiff’s vehicle. We find that Sepulvado was unable to avoid the accident by the exercise of the very slightest degree of care.

In Mauthe v. Gibson, 367 So.2d 1280 (La. App. 3 Cir. 1979), writ denied, 369 So.2d 156 (La.1979), this Court stated, on page 1282, that:

“It is elementary that negligence is determined from the facts and circumstances that existed at the time the accident occurred and if a person acted as a reasonable and ordinarily prudent person under these circumstances, he cannot be found to have been negligent. Pence v. Ketchum, 326 So.2d 831 (La.1976); Fire and Casualty Ins. Co. of Conn. v. Garrick, 312 So.2d 103 (La. App. 1st Cir. 1975), application denied, 313 So.2d 845 (La.1975).”

See also Lafleur v. City of Viile Platte, 367 So.2d 121 (La.App. 3 Cir. 1979), writ denied, 368 So.2d 124 (La.1979).

We find that Wilfred Sepulvado acted as a reasonable and ordinarily prudent person under the circumstances of this case and find that the trial judge was clearly wrong in concluding otherwise. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

IS LAST CLEAR CHANCE DOCTRINE APPLICABLE?

The trial court, in its reasons for judgment, indicates the doctrine of last clear chance was applicable and that Sepulvado had the last clear chance of avoiding the accident.

To apply last clear chance, both parties must be found negligent. Only if both are negligent is the doctrine of last clear chance an available tool of the plaintiff. Ainsworth v. Bituminous Casualty Corp., 379 So.2d 1187 (La.App. 3 Cir. 1980), writ denied, 381 So.2d 1233, 1234 (La.1980); Dunn v. Bolden, 372 So.2d 785 (La.App. 2 Cir. 1979); Champagne v. McDonald, 355 So.2d 1335 (La.App. 3 Cir. 1978); Stone, 12 La. Civil Law Treatise: Tort Doctrine § 58(e) (1977).

We hold that the doctrine of last clear chance is unavailable to plaintiff as we have found no negligence on the part of the defendant, Wilfred Sepulvado.

However, even if we were to assume that Sepulvado was negligent and plaintiff contributorily negligent, we would be unable to say that the criteria for application of the doctrine of last clear chance were satisfied. The court, in Jackson v. Watson, 360 So.2d 582 (La.App. 4 Cir. 1978), stated these on page 586 as follows:

“First, it must be shown plaintiff was in a position of peril of which he was unaware or from which he was unable to extricate himself. Second, the defendant was in a position to discover plaintiff’s peril. And third, when defendant did in fact discover plaintiff’s peril, he had reasonable opportunity to avoid the accident.”

The evidence shows that when Sepulvado did in fact discover plaintiff’s peril, he had no reasonable opportunity to avoid the accident. Sepulvado had approximately two seconds to perceive and react to the situation presented by plaintiff’s entering of the intersection. He then applied his brakes and skidded 57 feet in less than one second before the collision. Plaintiff presented no evidence that would indicate that a normal driver could have avoided this accident given the same set of circumstances.

THE CAUSAL RELATIONSHIP OF THE BUCKEYE LANDING SIGN TO THE ACCIDENT.

The second issue is whether the trial court erred in finding that the placement of the Buckeye Landing sign was not causally related to the accident.

Plaintiff has also sued Claude Mason, Allie Cohen, and Albert Cohen, individually and d/b/a Buckeye Landing on Toledo Bend, together with their liability insurer, Houston General Insurance Company. The defendants had erected their sign measuring 8' X 3' 3V2" some 34 feet from the traveled portion of La. 476. The sign was situated parallel to the gravel road on which plaintiff was traveling. The stop sign which plaintiff encountered was located close to this sign. The Buckeye sign would obstruct a driver’s vision to his right down La. 476, if he stopped his vehicle such that the front end was even with the stop sign.

Plaintiff’s contention is that as he approached this intersection, he came to a stop at a point where the front of his pickup truck was approximately even with the stop sign and looked to his right. He could see approximately 1200 feet up La. 476, except for the portion obstructed from view by the Buckeye sign. However, plaintiff contends that the large sign, being where it was, in the wide open space, was deceptive, and plaintiff did not actually realize that it constituted an obstruction to his vision. Plaintiff further contends that, seeing no traffic coming from the north (Sepulvado presumably being on that portion of the highway that was obstructed from plaintiff’s view by the Buckeye sign), it was reasonable for him to travel within the 43-foot area (the distance from the stop sign on the parish road to the edge of the traveled portion of La. 476) up to the intersection and to enter it without looking to his right.

Plaintiff argues that the sign, which allegedly obstructed his vision, was a cause-in-fact of the accident.

We agree with the trial court that the Buckeye sign was on the State Highway right-of-way, and illegally so. Also, we agree with the trial court that the Louisiana Department of Highways was negligent for allowing the sign to be placed on the highway right-of-way, and that the individual who erected the sign was negligent in placing it there.

However, in order to establish liability on the part of these defendants, plaintiff, Palmer, must not only show that the defendants’ conduct was tortious, but also that the acts complained of were a cause-in-fact of his damages. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Brown v. Louisiana Department of Highways, 373 So.2d 605 (La.App. 3 Cir. 1979), writ denied, 376 So.2d 1269 (La.1979); Ducote v. Voorhies, 350 So.2d 1289 (La.App. 3 Cir. 1977); Ganey v. Beatty, 391 So.2d 545 (La.App. 3 Cir. 1980).

The initial inquiry in any determination of negligence on the part of a defendant is whether any causal relationship existed between the harm to the plaintiff and the defendant’s allegedly negligent conduct. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Ganey v. Beatty, supra.

This Court, in State Farm Mutual Insurance Company v. South Central Bell Telephone Company, 343 So.2d 758 (La.App. 3 Cir. 1977), had occasion to confront this issue of causation. There we stated, at pages 759 and 760 that:

“A cause-in-fact is a substantial factor in the chain of events culminating in an accident. It is a “necessary antecedent”. Without it the accident would not have taken place. If the accident would have occurred, regardless of such cause, such cause is not a cause-in-fact. Dixie Drive-It-Yourself System v. American Beverage Co., supra.”

Therefore, if the accident in this case would have occurred, irrespective of the negligence of the defendants, then their negligence is not a substantial factor or cause-in-fact.

Plaintiff uses some fairly vague testimony by Sepulvado in his attempt to prove that he did indeed stop at a point where the sign obstructed his vision. He cites Foster v. Employers Liability Assurance Corporation, 187 So.2d 12 (La.App. 1 Cir. 1966), for the proposition that a trial court should believe a statement made to a state policeman at the scene of the accident, which conflicts with later statements made by the same person. Plaintiff alleges that Sepul-vado made a statement to the investigating officer to the effect that plaintiff had stopped where his vision would be obstructed.

We voice no opinion on the effect of the case cited above. However, we note that the deposition by the state policeman who investigated the accident contains no conclusive testimony by either the policeman or Sepulvado as to exactly where plaintiff stopped. The policeman, in fact, specifically testified that all that Sepulvado told him was that plaintiff stopped and then proceeded across the intersection.

The trial court, on the other hand, bases its finding (that plaintiff stopped where his vision was unobstructed) on the testimony of Sepulvado to the effect that he could see plaintiff’s entire vehicle when it stopped. This finding is adequately supported by the record.

To determine cause-in-fact, courts will carefully scrutinize all the evidence, and those acts will be adjudged causes-in-fact when it is found that more probably than not they were necessary ingredients of the accident. Stated otherwise, an act will be deemed a cause-in-fact of an accident only when, viewed in the light of all the evidence, it is concluded that it is a substantial factor without which the accident would not have happened. Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); Follins v. Barrow, 354 So.2d 609 (La.App. 1 Cir. 1977), writ denied, 356 So.2d 434 (La.1978); Ganey v. Beatty, supra.

We believe that the Buckeye sign may have obstructed plaintiff’s view to some degree as he approached the intersection. However, plaintiff’s vision was not obstructed by that sign for a distance of 43 feet from the edge of La. 476 to the area where plaintiff had stopped. He need only to have looked to his right again as he proceeded towards the intersection to have had an unobstructed view of La. 476. We hold that the negligent placing of the Buckeye sign was an insignificant factor in bringing about the injuries suffered by plaintiff, and therefore, not a cause-in-fact of those injuries.

We have found it unnecessary to discuss whether plaintiff was guilty of contributory negligence in causing this accident because of our findings of no actionable negligence on the part of any defendants. We note that plaintiff violated LSA-R.S. 32:123(B) which provides:

“B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.”

(Emphasis provided.)

Plaintiff has made no assignment of error with regard to the trial court’s dismissal of his demands against the L. J. Ernest Company, Inc. and Richard Bruce, with prejudice.

For the above and foregoing reasons, the judgment of the trial court holding Wilfred Sepulvado negligent, and, together with his insurer, liable to plaintiff, is reversed. The judgment of the trial court in favor of the remaining co-defendants, Allie Cohen, Albert Cohen, Claude Mason, Houston General Insurance Company, State of Louisiana, Department of Transportation and Development, L. J. Ernest Company, Inc. and Richard Bruce and against plaintiff, William M. Palmer, dismissing the demands of plaintiff with prejudice as to said defendants is affirmed.

All costs of this appeal and at trial level are assessed against plaintiff-appellant.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . Plaintiff sustained severe head injuries in the accident, and at the time of trial suffered from retrograde amnesia and consequently could not testify as to what transpired at the time of the accident.


author: CUTRER, Judge.

text:
    Anne B. LASSEIGNE, Plaintiff-Appellee, v. Clet L. LASSEIGNE, Defendant-Appellant.
    No. 7992.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 10, 1981.
    Stassi & Rausch, Allan L. Durand, New Orleans, for defendant-appellant.
    Armentor & Wattigny, Minos H. Armentor, New Iberia, for plaintiff-appellee.
    Before FORET, CUTRER and La-BORDE, JJ.
   CUTRER, Judge.

This is an appeal from an eviction proceeding. Mrs. Anne B. Lasseigne brought the action to evict her son, Clet L. Lass-eigne, from 160 arpents of land, 140 arpents of which he used for the cultivation of sugar cane. At the beginning of the trial, it was agreed that the demand for eviction would only extend to a 20 arpent tract which was separated from the remaining 140 arpents by a highway. This 20 arpents is not used to grow sugar cane. Clet Lass-eigne raised cattle on the property, used some sheds thereon for the storage of hay, and for the parking of farming equipment in the area around these structures. The plaintiff readily concedes that Clet had the right to the use and access to the sheds. The right of use and access to the sheds was given to Clet by judgment of possession dated June 1, 1972. This judgment of possession emanated from the will of Clet’s father who died in 1972. The sheds were located on the 20 arpents of land in question.

The trial judge granted judgment in favor of Mrs. Lasseigne, evicting Clet Lass-eigne from the 20 arpent tract, but recognizing his right of use and access to the sheds located on the property, pursuant to the judgment of possession. We affirm.

The issues for determination are as follows:

(1) Whether the lease on this 20 ar-pents of land terminated on December 31, 1979, or whether it terminated on December 31, 1980;
(2) Whether the trial court was authorized, under the procedure used, to interpret the defendant’s right of use and access to a portion of the 20 arpents under the provisions of the judgment of possession; and
(3) If the trial court did have authority to consider the judgment of possession, whether such was properly interpreted.

As to the first issue, there is no dispute that the defendant was the lessee of the 20 arpents in question but the question presented is the term of the lease, whether it terminated December 31, 1979 or December 31, 1980. Defendant testified that he began farming the 160 arpents with his father in 1948 and continued to do so up until his father retired from farming in 1950. After 1950, defendant leased the 160 arpents from his father and continued farming same until his father’s death. During all this time, the 140 arpents was used for production of sugar cane and the 20 arpents in question was used for raising cattle, storing hay and storing equipment. Defendant was paying $2,000.00 per year to his father for this lease. After the father’s death, he continued the same use of the property and payed his mother, plaintiff, the annual $2,000.00 rent.

Defendant further testified that he leased the property from his father on the basis of three year cane producing cycles. He explained that sugar cane can be harvested either from an initial planting (called plant cane) or from first and second year growth from stubble cane. He stated that a portion of the 140 arpents (across the highway from the 20 arpents in question) was in first year stubble cane and had one more year to run before it would be subject to a final harvest. He considered the lease on the 140 arpents to be effective until December 31, 1980.

Defendant further stated, however, that the 20 arpents in question had never been planted in sugar cane but was used to raise cattle and to store hay and equipment. Defendant stated that his three year cycle lease with his father extended not only to the 140 arpents used to raise the cane but also extended to the 20 arpents in question. After the death of the father, he contends this same arrangement continued on a three year cycle since his mother accepted the annual $2,000.00 rental payments.

We disagree with defendant’s position. The defendant testified that he never discussed the lease of the property with his mother. He merely made annual payments and continued his possession. Under these circumstances, the lease under which the defendant held the 20 arpents of property in question, after the father’s death, could have only been the product of reconduction under the provisions of LSA-C.C. articles 2687 and 2688. These articles provide as follows:

LSA-C.C. Article 2687 provides:

"The lease of a predial estate, when the time has not been specified, is presumed to be for one year, as that time is neces sary in this State to enable the farmer to make his crop, and to gather in all the produce of the estate which he has rented.”

LSA-C.C. Article 2688 provides:

“If, after the lease of a predial estate has expired, the farmer should still continue to possess the same during one month without any step having been taken, either by the lessor or by a new lessee, to cause him to deliver up the possession of the estate, the former lease shall continue subject to the same clauses and conditions which it contained; but it shall continue only for the year next following the expiration of the lease.”

Article 2687 establishes the rule that a predial lease, with no term specified, is presumed to be for a term of one year. Article 2688 means that if both parties to the lease remain silent and inactive for a space of one month after the expiration of the lease, they shall both be presumed to have acquiesced in, and tacitly consented to, a renewal of the lease for another year. There is no dispute that the lease herein runs on a calendar year basis. Applying the above provisions to the facts herein, the lease of this 20 arpents was reconducted on a year to year basis. When defendant possessed the property for one month after December 31, 1978, without any action by plaintiff, the lease was reconducted for the ensuing year, 1979. Proper notice was given by the lessor, in June 1979, that the lease would terminate effective December 31, 1979. This effected a termination of the reconducted lease of this 20 arpents on that date. Scanlan v. Haristy, 316 So.2d 841 (La.App. 3rd Cir. 1975).

The defendant next contends that since this was an eviction proceeding and summary in nature, that the trial court had no authority to interpret the provisions of the judgment of possession which purported to give plaintiff the use and access to certain sheds located on the property. This contention is without merit.

This proceeding was initiated as an eviction action which is a summary proceeding requiring no answer by defendant. The defendant, however, did answer the petition for eviction, pleading his rights under the judgment of possession and further contending that such rights entitled him to use, and access to, not only the sheds, but the right to use the entire property for raising cattle and storage purposes. When defendant filed these defenses by answer, with no objection by plaintiff, the trial court was authorized to consider the defenses. The filing of same had the effect of expanding the pleadings, bringing same into the purview of ordinary proceedings for a consideration of defendant’s defenses.

The trial court considered the judgment of possession and its reasons for judgment, stated in part, as follows:

“. . . The Judgment of Possession in which all of the heirs apparently joined in, reads on page 3, thereof: ‘It is further ordered, adjudged and decreed that Louis Clet Lasseigne be granted the use and access to the sheds located on the immovable property described in the preceding paragraph of this judgment and shown as Item No. 1 in the sworn, detailed descriptive list.’
“. . . It is also set forth clearly in the judgment of possession that Louis Clet Lasseigne is to be granted the use and access to the sheds located on this property. There is no mention anywhere of the land adjacent to the sheds or his right to use any land other than that incidental to the access and to the use of the shed.”

The trial court rejected plaintiff’s argument that the right of use should not be limited to the sheds, but should be extended to the entire 20 arpents, or in the alternative, to an area around each shed. We agree with the trial court. The provision in question is clear and unambiguous. It limits defendant’s rights to access and use of the sheds. No mention is made of any adjoining property to be used by defendant. Defendant had no ownership interest in the property. Other than the right to use the sheds and access thereto, he possessed the remainder of the 20 arpents as a lessee under a reconducted lease subject to termination by plaintiff on December 31, 1979.

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to defendant-appellant.

AFFIRMED.

      . By coming to this conclusion, we want to point out that we are not passing upon the terms of the lease of the 140 arpents across the highway from the subject property. That issue was severed from this proceeding by agreement at the beginning of trial.