author: DOMENGEAUX, Judge.

text:
    J. WEINGARTEN, INC., Plaintiff-Appellant, v. NORTHGATE MALL, INC., and Pickens Bond Construction Company, Defendants-Appellees.
    No. 7803.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.

      Davidson, Meaux, Sonnier & Roy, Candice Hattan, Lafayette, for plaintiff-appellant.
    Onebane, Donahoe, Bernard, Tarien, Diaz, McNamara & Abell, Randall C. Songy, Lafayette, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a suit for permanent injunction brought against the developer of Northgate Mall in Lafayette, Louisiana, by J. Wein-garten, Inc., one of the mall’s tenants, in an effort to halt construction of a then proposed (but now completed) addition to the mall. Plaintiff claimed this proposed addition violated the lease agreement between plaintiff and Northgate Mall, Inc., defendant, causing irreparable harm to plaintiff’s business, and entitling plaintiff to injunc-tive relief.

FACTS

On February 9,1967, Northgate Shopping Center, Inc. leased to Northgate Mall, Inc. (one of the defendants herein), approximately 35 acres of land in Lafayette, Louisiana, for the purpose of constructing a completely covered shopping center called, appropriately, the Northgate Mall. Shortly thereafter, defendant constructed the mall and paved the parking area partially surrounding the mall.

On June 27, 1968, defendant leased part of the building and the entire parking lot to J. Weingarten, Inc., the plaintiff.

Approximately 10 years later, in early 1978, Northgate Mall, Inc. began planning to expand the mall. To this end, several plats were prepared incorporating the proposed addition onto the then existing building. The proposed expansion increased by more than 100,000 square feet the leasable floor area of the building.

Plaintiff was generally aware of defendant’s proposed expansion project. However, plaintiff felt that defendant’s project exceeded the area allowed for future expansion by the contract. Coincidentally, plaintiff had considered remodeling and/or expanding its own store within the mall. Knowing, however, that it (plaintiff) had no contractual right to expand, plaintiff attempted to negotiate its approval of defendant’s unauthorized expansion in return for an agreement by defendant that it (defendant) would expand Weingarten’s at the same time that it expanded the mall. Prior to the erecting of a construction fence (in February of 1979) around the entire expansion area, which was adjacent to that part of the mall occupied by Weingarten’s grocery store, no agreement of any sort was ever reduced to writing, as was expressly required by Article 31 of the lease:

“ARTICLE XXXI
This instrument constitutes the entire agreement between Landlord and Tenant; no prior written or prior or contemporaneous oral promises or representations shall be binding. This lease shall not be amended or changed except by written instrument signed by both parties.”

Weingarten filed this injunction suit on March 1, 1979, only days after it became aware that actual construction had begun, and on that date a temporary restraining order was issued by the trial judge halting construction. A hearing was held on March 19, 1979, after which the district judge dismissed the temporary restraining order and denied the request for preliminary injunction. The court found that Weingarten’s had not shown that it would suffer irreparable harm if the preliminary injunction was not granted. The hearing was specifically limited to a consideration of whether the temporary restraining order had been wrongfully obtained, and whether or not a preliminary injunction should be granted or denied. All other issues were to be decided after a complete hearing on the merits of the permanent injunction could be held. No appeal was taken from this interlocutory judgment.

After the temporary restraining order was dismissed, construction was resumed and the addition was substantially completed by the time the hearing on the merits of the permanent injunction was conducted. After this second hearing, held October 25th and 26th, 1979, the trial court ruled:

(1) Defendants were not entitled to damages and attorney’s fees (which Northgate Mall had claimed on the grounds that the temporary restraining order was wrongfully obtained);

(2) Plaintiff had again failed to prove that irreparable harm would result if the injunction was not granted;

(3) Public policy prohibited parties from contractually establishing a right to injunc-tive relief;

(4) Plaintiff was not estopped from trying to enforce the lease agreement existing between plaintiff and defendant; and

(5) Plaintiff did not have a servitude because it acquired its rights from one who was merely a lessee (Northgate Mall, Inc.) and who had no right to grant a servitude to plaintiff.

J. Weingarten, Inc. has appealed that judgment and argues that it is entitled to injunctive relief for any one of three reasons:

(1) Plaintiff acquired a bargained for right to enjoin violations of its parking rights without the necessity of proving inadequacy of legal remedies or irreparable harm;

(2) Plaintiff will suffer irreparable harm if the construction of the now completed addition is not removed;

(3) Plaintiff is entitled to injunctive relief as a matter of law under La.C.C.P. Article 3663(2) without the need to prove irreparable harm.

We hold that plaintiff is entitled to a permanent injunction ordering the removal of that portion of the expansion which is in violation of the lease agreement. Before elaborating on our decision to reverse the District Court’s judgment, we will briefly dispose of defendant’s argument that the doctrine of equitable estoppel applies.

EQUITABLE ESTOPPEL

Defendant argues at length that plaintiff should be barred from asserting its contractual rights against defendant because defendant justifiably relied, to its detriment, upon plaintiff’s apparent acquiescence to defendant’s proposed 100,000 square foot expansion of the mall. We have reviewed the evidence defendant cites in support of its argument. We do not agree with defendant that the defense of equitable estoppel applies. The trial court wrote:

“The Court further feels that with regard to the defense, the affirmative defense, of equitable estoppel urged by the defendants, defendants say that although they recognize that they were bound by certain provisions of the lease, they contend to this Court that because they [sic] were ongoing negotiations between the parties, that they were reasonably led to believe that it was okay, that Weingarten had no objection to the new expanded facilities. The Court takes recognition of the fact that Weingarten was interested in expanding its facility, and that, of course, there were negotiations that transpired between the two. I think this is customary and ordinary, particularly where Weingarten had reason to believe that there would be expansion. Now, the lease is very clear; as I read it. And, apparently, from the testimony, that there is no way that Weingarten would have bound itself to an expansion, unless reducing that agreement to writing. You know, when you’re dealing with millions of dollars, I think it’s extremely bad business to make any sort of commitment that is not reduced to writing, and certainly, with the battery of attorneys that both of these corporations have on each side, I think it would be an absurd conclusion for this Court to make that the defendants were reasonable in their reliance upon preliminary negotiations between the parties, and therefore, I find that that defense is not a good one.” (Emphasis added).

We completely agree with the trial court that defendant’s reliance upon preliminary negotiations did not constitute such reliance as would make, the defense of equitable estoppel available.

PERMANENT INJUNCTION

Plaintiff has charged defendant with violating the following provisions of the lease agreement:

“ARTICLE II
* * * * # *
C.No building shall be erected or permitted in the Shopping Center other than in the locations shown as buildings on Exhibit ‘A’ and all remaining areas shall be improved as parking area, except that Landlord shall have the right to erect a department store in the area outlined on Exhibit ‘A’ by a dotted line designated ‘future dept, store’ and shall also have the right to erect a theatre in the location shown on Exhibit ‘A’ outlined by a dotted line and designated ‘prop, theatre’. Except for such department store area and theatre area, all space shown on Exhibit A’ as ‘parking’ shall be used exclusively as a parking area.
******
ARTICLE X
A. It is a condition of Tenant’s liability hereunder that at the commencement of the lease and at all times during the term of the lease, there will be paved parking in the Shopping Center of sufficient size such that there will be 6 car parking spaces for each 1,000 square feet of floor area (counting all floors within all buildings) within the shopping center; each such car parking space to be not less than 9 ft. in width by 18 ft. in length (the layout of such spaces to be as shown on Exhibit A). Landlord will maintain the surface of the parking area and driveways shown on Exhibit ‘A’ in a smooth and readily traversible condition at all times during the term of this lease and any extension thereof, and Landlord will promptly clean and remove ice, snow, debris and trash from such parking area and other common areas in the Shopping Center.
Landlord will not change the parking area or stores in the Shopping Center as shown on Exhibit A’ during the term of this lease or any extension thereof by reduction in size of said parking area or by construction of new stores or by expansion of or addition to stores shown on Exhibit A\ (except in the area, if any, specifically designated as ‘future building area’ on Exhibit A).
******
D. Tenant is hereby granted an irrevocable non-exclusive easement during the term of this lease and any extension thereof over and across all parking areas in the Shopping Center as shown on Exhibit A’ and the driveways, walks, roadways, and streets within the Shopping Center leading to such parking areas for pedestrian and vehicular access to the leased premises so that Tenant, its agents, servants, customers, invitees and licensees shall have rights of ingress to the leased premises and egress from the leased premises over and across all parking area to the Shopping Center as shown on Exhibit ‘A’ to and from the dedicated streets bordering the said Shopping Center, and rights to park upon all such parking area. Landlord covenants that Tenant at all times will have adequate and unobstructed rights of ingress and egress between the building constituting the leased premises and all loading platforms thereon and the streets, driveways, walks and alleys within the Shopping Center. The benefits of the aforesaid easement shall run with and bind the land affected thereby, and Tenant shall have the right to obtain an injunction specifically enforcing such rights and interests without the necessity of proving inadequacy of legal remedies or irreparable harm.” (Emphasis added).

The Exhibit “A” referred to in the lease is a plat of the mall drafted in 1967 which was attached to and formed part of the agreement. A facsimile of the important portion of that plat has been reproduced as part of this opinion (see Figure 1) to facilitate the reader’s understanding of the facts. Note particularly the two areas outlined by dotted lines and designated “FUTURE DEPT. STORE” and “FUTURE THEA-TRE”. Contrast Figure 1 with Figure 2, a facsimile of the plat showing the relevant portion of the mall after completion of the addition. (Neither figure is drawn to scale but the distances and areas represented thereon are accurate).

After reading the contract, especially the above quoted portions, and studying the plats, we find that defendant has breached the contract. The facts permit no other conclusion, and defendant acknowledged its breach during oral arguments.

Particularly, the defendant breached its contract in the following respects:

Whereas the original lease allowed defendant to construct an additional 39,375 square feet of building area, defendant added over 100,000 square feet-more than twice the area allowed for future expansion-without ever securing plaintiff’s written permission to derogate from the terms of the Weingarten lease. By so expanding, defendant destroyed or displaced a considerable number of parking spaces over which plaintiff held non-exclusive rights and which defendant specifically agreed would be used only as a parking area (see Article II of the lease agreement). Defendant’s encroachment further violated the lease by reducing the parking ratio from 5.7 parking spaces per 1,000 square feet of leas-able floor area to roughly 5.0 spaces per 1,000 square feet.

While the trial judge recognized that the contract had been breached, she did not grant the permanent injunction principally because she held that it was against public policy to permit parties to contract for in-junctive relief. The trial court said:

“The plaintiff likewise argues to the Court that there was a contract provision which gave the plaintiff the right under contract to injunctive relief. The Court has relied in its ruling on that on the case of Termplan Arabi, Inc. v. Frank Carollo, cited at 299 So.2d 831. That issue was presented before the Court in that case, and there was a contract whereby the parties in that case either had an option of injunctive relief, or liquidated damages in the amount of two thousand ($2,000.00) dollars. The Court in the Termplan case held that, apparently, by fixing the liquidated damages, that it was some sort of confession, so to speak, that any breach of contract could be compensated by money, and therefore, no irreparable injury could result. The plaintiff contends to this Court that in this instance there was no liquidated damages provided for in their lease, and that therefore, this Court should grant injunctive relief. I think that the Termplan Court, which was the 4th Circuit-citing Article 3601, Louisiana Code of Civil Procedure: ‘An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in any other cases specifically provided by law. Clearly, irreparable injury is the sine qua non for an applicant to obtain injunctive relief, absent some specific statute. Parties cannot, by a contract, bestow upon each other the right to injunctive relief where the essential conditions established by law do not exist.’ Of course, the plaintiff argues that the law of the parties is the contract. This Court’s feeling is quite otherwise. This is a harsh remedy, and probably the harshest remedy in our law books, and the Courts are held to very close scrutiny of injunctive relief. And I think it’s contrary to public policy to permit parties to contract for injunctive relief, because in their business dealings, obviously, there is a leverage in negotiation, and because ultimately commerce and the rights of other people may be affected in the world of industry, commerce and economics. I think that the 4th Circuit is correct, and therefore, I will follow that decision, and will not give effect, lawful effect, to the provision of injunction cited in the lease.” (Emphasis added).

We think the trial court erred in finding that it is contrary to public policy to permit parties to contract for injunctive relief. The case relied upon by the trial court does not support the trial court’s ruling. In that case, Termplan Arabi, Inc. v. Carollo, 299 So.2d 831 (La.App. 4th Cir. 1974), the parties entered into a non-competition agreement which was part of an employment contract between the two. In the event the employee breached his promise after his employment was terminated, the employer was entitled to $2,000.00 as liquidated damages and injunctive relief or other relief available to the employer enjoining the former employee from continuing to engage in activities prohibited by the contract. When the employee breached this contract provision, the employer sued for the $2,000.00 liquidated damages and sought injunctive relief at the same time. Although the employer later dropped his demand for $2,000.00 in liquidated damages ánd sought thereafter only injunctive relief, the Court held injunctive relief to be unavailable since the parties had agreed to a specified amount of money as liquidated damages.

While the Fourth Circuit did comment that “[pjarties cannot, by a contract, bestow upon each other the right to injunctive relief where the essential conditions established by law do not exist”, the facts of that case did not require such a determination. All the court really held was that when a contract provides for injunctive relief and a sum certain in liquidated damages, the injunction is unavailable because the parties have agreed that the damage can be rectified by the payment of the liquidated damages. The instant case may be easily distinguished because the contract did not provide for liquidated damages nor is plaintiff seeking damages. The sole remedy granted by the lease (and the only relief requested) is that of injunctive relief.

Neither the trial court nor Termplan offer compelling reasons to demonstrate how any public policy is served by denying parties the right to contract for injunctive relief. The trial court noted, without further discussion, that the rights of other people may be affected if such contractual provisions were upheld. Obviously, La.C.C. Article 11 is the source of this reasoning. Article 11 provides:

“Individuals can not by their conventions derogate from the force of laws made for the preservation of public order or good morals.
But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.” (Emphasis added).

Yet the court failed to explain how the rights of other people may be affected by recognizing the clear intent of the parties. In the instant case, the defendant renounced what the law established in his favor: the requirement that he who seeks injunctive relief must first show that he will suffer irreparable harm or that he has no other adequate remedy at law. This renunciation in and of itself does not affect the rights of others. If the rights of others (namely, the new tenants) are affected, it is because defendant blatantly disregarded the terms of its own lease agreement with Weingarten when it executed lease agreements with the new tenants, and not because defendant agreed that plaintiff would be entitled to injunctive relief in the event that plaintiff’s rights over the parking lot were infringed by defendant.

Both the trial court and the Court in Termplan believed one must prove irreparable injury before being granted a permanent injunction. With this conclusion we cannot concur. While proof of irreparable harm may be the sine qua non for injunc-tive relief in cases where a contract does not dispense with such proof, the standard of irreparable harm should not be used if the parties explicitly agreed that injunctive relief is available without that proof.

Our holding does not bind a judge to grant the remedy of injunctive relief simply because the parties so contract; the party asking for the injunction must still prove his entitlement to that relief. A decision to deny injunctive relief, though, should be well supported in reason; it should not result if the parties knowingly and intelligently agreed to waive the requirement that irreparable harm or inadequacy of other legal remedies be proved and if the remedy of injunctive relief adequately safeguards or restores rights enjoyed by the party seeking relief.

After hearing the arguments and reading the excellent briefs prepared by the parties to this dispute, we find that North-gate Mall, Inc. affirmatively agreed to this provision and must have been aware of its potential ramifications. Moreover, we find that obtaining the right to injunctive relief was a very important objective of J. Wein-garten, Inc. and is one of the few ways-indeed, perhaps the only way-that Weingar-ten was able to insure that its rights over the parking area would be protected.

While we recognize that the only loss likely to be felt by Weingarten is an economic one, we will not deprive it of injunc-tive relief for that reason. We feel the parties took cognizance of the problems encountered by mall tenants and landlords when confecting their contract. (Those problems are discussed below). Northgate Mall, Inc.’s bold and brazen breach of its contract with Weingarten is one the injunction clause was designed to prevent. Such a clear intent will not be circumvented by this Court merely because the breaching party-Northgate Mall, Inc.-may encounter economic hardship caused by the injunction.

Tenants like Weingarten in shopping malls encounter unique problems because of the shared parking arrangements inherent to most malls. None of the tenants acquire exclusive rights over any area of the parking lot; thus the tenants endeavor to insure that the entire shopping mall has a sufficient enough parking area to accommodate the needs of all the tenants. In part, the tenants’ concern for adequate parking is lessened by inclusion of parking ratios in the leases. (As for instance, the requirement of six parking spaces per 1,000 square feet of leasable floor area found in Wein-garten’s lease). However, the tenants must have a meaningful way to protect their parking rights and ratios, if and when the landlord violates these rights by extra-contractual expansion of the leasable floor area of the mall.

The existence of a meaningful remedy is especially important if the damage done by reducing the parking area is incalculable or cannot be determined with any accuracy until several years have elapsed, in which case the mall developers (i.e. Northgate Mall, Inc.) can then argue that the tenant’s (Weingarten’s) declining sales figures are due to some cause other than the diminution in parking occasioned by the landlord’s violation of the tenant’s rights. In such a case-and we find this to be one such case-a court should not substitute a remedy which may or may not negate the effects of the breach for a remedy specifically chosen by the parties.

The Courts of this state have not had the opportunity to deal extensively with this problem. However, one case with circumstances substantially similar to the one at bar is Barker’s # 413 Corporation v. Meltzer, 346 So.2d 293 (La.App. 4th Cir. 1977). In that case, Meltzer, the lessor or landlord, constructed a 66,200 square foot building along Veterans Highway in New Orleans for occupancy by Barker’s Department Store, the tenant. Meltzer also surfaced the area in front of the building to be used as a parking lot for Barker’s. In Article I of their lease, the parties agreed that “Lessor shall have the right to build additional rental space.” During the term of the lease, Meltzer notified Barker’s of his intention to construct a 9,000 square foot building in the parking lot area utilized by Barker’s. After fruitless discussions between the parties, Barker’s filed suit for injunction. The trial court ruled in Barker’s favor and issued the injunction. The Fourth Circuit affirmed, holding that the lease provisions did not permit the lessor to construct additional rental space on the existing parking lot area. The Court conceded that the parties contemplated the building of additional rental space, but noted that lessor did not specifically reserve the right to build in the existing parking area. Instead, the Court felt the parties contemplated that the lessor reserved the right to build additional rental space on the vacant land next to Barker’s, which vacant land was also owned by Meltzer and had not been leased to Barker’s. The Court further decided that the parties intended for the parking area in front of Barker’s to be utilized by the tenants and the customers of the buildings which were to be constructed on the vacant lot.

In Barker’s # 413 Corporation v. Meltzer there was no contract provision granting Barker’s the right to obtain injunctive relief. However, the Court granted injunc-tive relief without discussing whether Barker’s would be irreparably harmed by the new construction or whether Barker’s had no adequate remedy at law. The injunction was granted simply because the landlord’s construction project constituted a breach of the lease.

A recent case out of the Second Circuit, Bossier Center, Inc. v. B & B Systems, Inc., 388 So.2d 826, No. 14,234 (La.App.1980), is also analogous to the instant case. There, plaintiff sold to a Mr. Patten a strip of land 20 feet wide by 176.7 feet long. The deed contained the following provision:

“Vendee agrees not to erect any structures without the written consent of the vendor.”

Patten leased a sign location on his strip of land to B & B. B & B commenced construction of the sign without first having obtained approval of plaintiff, the vendor. Plaintiff then sued to enjoin construction of the sign. After trial, the judge granted the permanent injunction on the basis that pri- or approval of vendor was required by the deed before any structure could be erected. The Second Circuit affirmed but amended the judgment to order that the use limitation did not constitute a predial servitude nor any other form of covenant running with the land. The Court of Appeal said:

“The intervenor [Patten] personally obligated himself to erect no structures upon the premises without the consent of his vendor and he must comply with this use restriction.”

The Court rejected the argument that the use restriction violated public policy and noted that our jurisprudence contains many decisions where restrictions upon use of property have been found valid and enforceable. Furthermore our brothers of the Second Circuit quoted, with apparent approval, a passage from Queensborough Land Company v. Cazeaux, 136 La. 724, 67 So. 641 (1915) stressing that the public policy of this state favors the fullest liberty of contract and the widest latitude possible in the right to dispose of one’s property as one chooses “so long as no disposition is sought to be made contrary to good morals, public order or express law.”

The Court also inquired whether plaintiff had unreasonably refused to consent to the sign and decided plaintiff’s refusal to consent had not been unreasonable because the sign would “necessarily” create some view obstruction to plaintiff’s property and “may well otherwise detract” from a small contemplated commercial complex. The Court granted the injunction without considering whether plaintiff would suffer irreparable injury and whether plaintiff had an adequate remedy at law. Nor did the Court consider whether the injunction was specifically authorized by law. Since the decision denied that the use restriction was either a building restriction or a predial servitude, the injunction must have been granted simply because Patten and his lessee B & B (whose rights could be no greater than those of its lessor) breached their personal obligation not to erect any structure without the consent of the vendor.

Other jurisdictions have issued injunctions prohibiting shopping center landlords from encroaching upon parking rights granted to their tenants.

In Food Fair Stores, Inc. v. Jackson Heights Shopping Center, Inc., 55 Misc.2d 205, 284 N.Y.S.2d 814 (1967); aff'd 28 App. Div.2d 1207, 285 N.Y.S.2d 1009 (1967), a lease gave tenant a non-exclusive, non-revocable right to use of the parking space outlined on an attached plat. The lease also granted the tenant quiet possession and enjoyment of the parking area. The Court held that the owner of the shopping center did not have the right to build an additional building in the parking area and thereby reduce the capacity from 400 to 350 automobiles. Thus, the tenant was entitled to a permanent injunction prohibiting the construction of the building.

In Walgreen Co. v. American National Bank & Trust Company of Chicago, 4 Ill. App.3d 549, 281 N.E.2d 462 (1972), a lease gave the tenant Walgreen non-exclusive rights over a parking area which was to contain at least 150,000 square feet and was to provide parking for at least 400 automobiles. Village Green, the lessor, leased to Fotomat an area of the parking lot measuring 40 square feet which would displace three parking spaces. After construction of the small Fotomat building had begun, Walgreen sued to enjoin construction. The Court found the lease to Fotomat violated the Walgreen lease even though the parking lot still would exceed 150,000 square feet and would provide parking for over 400 cars despite the presence of the Fotomat building. The Court found that the parties intended to confine the sales facilities of the shopping center to those areas specifically set out or reserved in the plot plan. The area leased to Fotomat had not been so reserved. Thus, Walgreen was entitled to injunctive relief. The Illinois Court concluded that the deprivation of a property right, the elimination of parking spaces, and the potential disruption of travel (all of which occur on a grander scale in the instant case) constituted irreparable injury.

In Gray Drug Stores, Inc. v. Foto Fair International, Inc., 288 N.E.2d 341, 32 Ohio App.2d 71 (1971), the plaintiff and defendant entered into a lease agreement in 1961. Defendant was the developer of the Findlay Shopping Center. Plaintiff was one of the tenants. In 1969 defendant entered into a lease agreement with Foto Fair for the construction of a “kiosk” to sell, and receive for development, photographic film. The kiosk, a prefabricated carousel-style drive-in structure, was placed in the shopping center on an area designated, striped, and used for parking. Plaintiff asserted that defendant violated its rights to the parking area. Based on contract provisions very similar to the ones in the instant case wherein the parking area could not be reduced in size “except for such future additions to buildings and the ‘Future Building’ as shown on Exhibit A”, the Ohio Court of Appeal granted the permanent injunction.

The Kentucky Court of Appeal faced a situation similar to ours in W. T. Grant Company v. Indian Trail Trading Post, Inc., 423 S.W.2d 251 (Ky.1967). There, the lease contract provided that future buildings in the shopping center shall be “on no other portion of the area” than those marked as future building sites unless the tenant’s written consent was obtained. The largest future building site contained slightly over 61,000 square feet in area. Indian Trail, the developer, had contracted with the Wool worth Company, without the written consent of W. T. Grant, to construct on this site a building containing 109,000 square feet. Construction continued during the course of litigation and the new building was completed by the time the Kentucky Court of Appeal rendered judgment. The Court said:

“Under this state of facts, the court properly could and would require so much of the building as lies outside the platted site to be removed.”

However, W. T. Grant did not insist upon removal; it asked only that Indian Trail and Woolworth be enjoined from using that portion of the building which lay outside the boundary lines of the site, as shown on the plat. The Court granted this limited injunction but felt this would not adequately cover the damage suffered by W. T. Grant. Thus, the Court held W. T. Grant should be allowed a trial upon its claim for damages.

Although a contractual right of injunction was not involved in any of the above eases, those cases support our decision to grant an injunction, because, under sets of circumstances virtually identical with the facts herein, injunctive relief was granted almost routinely; proof of irreparable harm or lack of other adequate remedy was not required. Injunctions, not damages, were requested and the various courts-including one in Louisiana-granted injunctive relief simply upon the showing that a landlord was infringing upon the tenant’s parking rights by converting contractually protected parking space into leasable floor area.

Additionally, we believe the facts show that Weingarten did not have an adequate remedy at law once the contract was breached. We intimated such a conclusion in footnote 10. Indeed, the lack of an adequate remedy may well be the underlying reason that injunctions were granted in the cases discussed. With calculation of pecuniary damages virtually impossible, issuance of an injunction to compel errant parties to comply with their contractual obligations is a practical and viable form of relief.

The Courts of this state have recognized that the lack of an adequate remedy at law is synonymous with irreparable harm and entitles one to injunctive relief. Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83 (1969); Caffery v. Powell, 320 So.2d 223 (La.App. 3rd Cir. 1975). Thus, Weingarten would, for that reason also, be entitled to injunctive relief.

Our decision may seem harsh because the mall addition is complete and must now be partially removed. The decision to grant an injunction would be much more palatable to this Court if the addition was still in the early stages of construction. However, we note that Northgate Mall, Inc. knowingly placed itself in the precarious predicament it is now in by proceeding with its construction project after court proceedings to halt and prohibit the construction had been initiated by Weingarten. This Court will not now implicitly condone such a flagrant and calculated disregard for contract by rescuing Northgate Mall, Inc. at the expense of its innocent victim, J. Weingar-ten, Inc.

For the above and foregoing reasons, the judgment of the district court dismissing plaintiff’s request for a permanent injunction is reversed. It is Ordered that there be judgment herein in favor of plaintiff, J. Weingarten, Inc., and against defendant, Northgate Mall, Inc., ordering removal, within six months of the date this judgment becomes final, of that portion of the new addition to Northgate Mall adjacent to Weingarten’s Supermarket which exceeds 39,375 square feet of building area.

All costs are assessed against defendant, Northgate Mall, Inc.

REVERSED.

      . The other defendant, Pickens Bond Construction Company, is apparently no longer involved in these proceedings.

      . Although plaintiff’s lease granted it rights over the entire parking area, these rights were non-exclusive since other tenants of the mall enjoyed the same rights.

      . While other tenants, J. C. Penney and Montgomery Ward, did have future expansion rights, Weingarten did not.

      . Although La.C.C.P. Art. 3612 permits an appeal from a judgment relating to a preliminary injunction, the fact that Weingarten did not appeal is of no consequence since the parties contemplated a later, more complete hearing on the merits of the permanent injunction after which the aggrieved party could then perfect an appeal. Breland v. Edwards, 360 So.2d 250 (La.App. 1st Cir. 1978).

       This last ruling was made several months after the trial of the matter and was signed on January 11, 1980. The judgment was signed on January 16, 1980.

      . This includes the 30,000 square foot area designated as “Future Dept. Store” and 9,375 square feet designated as “Future Theatre”. The theatre was eventually built across Castille Street from the main shopping mall, and the area designated as “FUTURE THEATRE” was converted into parking. Therefore, we will allow Northgate Mall, Inc. to use that area as part of the allowable expansion area. Not included is 40,000 square feet of future building area earmarked as an expansion for Montgomery Ward, and 1,692 square feet dedicated as a future expansion project for J. C. Penney.

      . Although the lease called for 6.0 spaces per 1,000 square feet, that ratio had never been met. Weingarten had apparently acquiesced to the ratio of about 5.7 spaces per 1,000 square feet which existed before the expansion reduced the ratio even further.

      . The trial court incorrectly stated that the Termplan contract provided optional remedies of liquidated damages or injunctive relief. The plain language of that contract contemplated a cumulation of remedies of injunctive relief and liquidated damages.

      . We note that none of the cases relied upon by Termplan held it to be against public policy for parties to contract for injunctive relief.

      . We are not suggesting that Weingarten need show that its sales figures declined after the breach. Even if those figures had increased after the breach, it would be virtually impossible to prove that its sales would not have been even greater had the landlord expanded only to , the extent permitted by its contract.

      . In our case, defendant has argued in brief that the only relief sought by plaintiff “is an injunction ordering removal of the construction fence and preventing further construction activities.” The evidence establishes that the trial on the merits of the permanent injunction contemplated removal of that part of the new edifice which offended the lease.

      . In light of our decision, we pretermit a determination of whether the lease created a predial servitude or whether La.C.C.P. Art. 3663(2) is applicable to these facts.

      . We remain hopeful that the parties can agree to some other solution which would render compliance with this injunction unnecessary.

      . “Building area” includes both leasable floor area and mall area.


source: Caselaw Access Project

author: GUIDRY, Judge. SWIFT, Judge,

license: Public Domain

text:
    William G. ADAMS, Plaintiff-Appellee, v. ASSOCIATES CORPORATION OF NORTH AMERICA, Associates Financial Services of North America, Emmco Insurance Company, Inc. and Capco Adjusters, Inc., Defendants-Appellants.
    No. 7807.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dee. 1, 1980.
    Writ Refused Jan. 16,1981.
    Cline, Miller, Richard & Heinen, Larry T. Richard, Rayne, for plaintiff-appellee.
    Davidson, Meaux, Sonnier & Roy, M. Candice Hattan, Lafayette, for defendants-appellants.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   GUIDRY, Judge.

In this suit plaintiff seeks to recover certain “termination pay benefits” allegedly due him under an employment contract. Capeo Adjusters, Inc., hereafter Capeo, Associates Corporation of North America, hereafter Associates, Associates Financial Services of America, Inc., hereafter Financial, and Emmco Insurance Company, hereafter Emmco, are named as defendants. Following institution of suit a motion for summary judgment filed by all defendants was partially sustained resulting in the dismissal of plaintiff’s suit against Financial and Emmco. No appeal has been taken from this judgment.

The trial court, without assignment of written reasons, rendered judgment in favor of plaintiff and against Associates and Capeo, in the sum of ONE THOUSAND SEVEN HUNDRED FORTY-EIGHT AND 46/100 ($1748.46) DOLLARS, being the sum stipulated by the parties as the amount of termination pay which plaintiff was entitled to receive should judgment be rendered in his favor. Associates has appealed requesting reversal of the trial court judgment insofar as it casts Associates in judgment. Capeo has not appealed and the judgment as to this defendant is now final.

In support of its demand for reversal of the trial court judgment Associates argues that (1) plaintiff did not suffer a termination of employment such as would entitle him to termination pay under the employment contract; and, (2) in any event, he was not an employee of Associates, and at no time did Associates guarantee to assume the obligation of Capeo, a totally separate corporation.

The record reflects no genuine dispute as to any of the facts material to a determination of the issues presented.

Capeo was an Indiana Corporation and a wholly owned subsidiary of Emmco, also an Indiana Corporation. Emmco, in turn is a wholly owned subsidiary of Associates, a Delaware Corporation.

Plaintiff was initially employed as an adjuster of insurance claims by Capeo on February 1,1965. Plaintiff testified that at the time of his employment, in addition to his salary, he was assured other fringe benefits to be provided by Associates, which included life insurance, hospitalization insurance, retirement benefits, the benefits provided employees under the Associates “Human Resources Policy”* and the right to participate in the “Employees’ Savings and Profit Sharing Trust” administered by Associates. Plaintiff participated in all of the programs which were made available by Associates to its employees including the retirement program and the Savings and Profit sharing trust. Plaintiff remained constantly in the employ of Capeo until August 26, 1977, on which latter date Capeo was sold to Markel Service, Inc. The record makes it clear that Capeo was sold because it had not been successful in increasing “outside” business and had operated at a loss for a considerable period of time. The transfer of all assets of Capeo to Markel, included an agreement by the latter to accept all of Capco’s employees for at least ninety (90) days as employees of Markel. Plaintiff was not offered employment elsewhere with Associates or any of its subsidiaries. Accordingly, as of August 26, 1977 plaintiffs employment with Capeo ceased and on the following day he went to work for Markel, however, as plaintiff testified, with less benefits and no seniority.

Shortly following termination of plaintiff’s employment with Capeo, he applied to Associates for the “termination pay benefits” allegedly due him under the Associates “Human Resources Policy” then in effect. Plaintiff’s demand in this regard was rejected and this suit followed.

The record reflects that all personnel policies and benefit programs for the several corporations wholly owned either directly or indirectly by Associates were established and administered by Associates. The policies and programs were set forth in a “Human Resources Policy Manual” which was provided to each employee. Among the policies established by Associates as applying to Associates and all its subsidiaries are Policy No. 1405, entitled “Employee Termination Practices”; Policy No. 1415, entitled “Termination Pay”; and, Policy No. 1420, entitled “Reduction in Staff”. Copies of these several sections of the policy manual were introduced in evidence by stipulation of the parties, and contain, among others, provisions classifying the several types of employment termination; which of the several types of termination qualify for termination pay; and, a schedule for arrival at the total amount of termination pay due the terminated employee. According to Policy No. 1405 employee terminations are categorized into six general types, i.e.,

“B. Types of Terminations
Terminations are categorized into six general types. The identification of each termination is necessary to insure proper consideration of severance provisions, financial obligations, or re-employment status.
1. Resignation
A resignation is a termination which results from a voluntary personal decision by an employee to leave the employment of the Corporation. There are no severance provisions applicable to a resignation.
2. Release
The release is a termination resulting from a decision on the part of the Corporation to discontinue the employment of an individual because of his refusal or inability to perform the requirements of the position at a level consistent with the standards of the Corporation. Severance provisions may be applicable in a release as specified in Policy 1415.
3. Mutual Release
A mutual release results when an employee, for justifiable reasons, is requested by the Corporation to submit a resignation. Mutual releases are generally with the consent and agreement of the released employee. Severance provisions may be applicable to a mutual release.
4. Reduction in Staff
A reduction in staff occurs when an employee’s position or area has been eliminated for economic or other justifiable reasons, and the employee cannot be placed elsewhere in the Corporation. Severance provisions are applicable to reductions in staff.
5. Retirement
A retirement is a termination which results from a voluntary personal decision by an employee to end his career or results from mandatory termination because of the age of the employee. There are no severance provisions applicable to retirement. For information regarding the status and benefits of retired employees, see Retirement Policy # 605.
CLASSIFICATION OF RELEASE ELIGIBLE FOR TERMINATION PAY
Refusal to transfer (requiring change in residence) Yes
Violation of Company Policy No
Not suited for or unable to do work Yes
‘Other’ release To be determined
Reduction in Staff Yes
6.Death
The employee’s beneficiary shall be paid as soon as possible, the full salary due the employee through the last day worked plus any unused vacation pay.”

Policy No. 1420 defines a “reduction in staff” as follows:

“A reduction in staff, for the purpose of this policy, occurs when an employee’s position has been eliminated for economic reasons or as a result of technological or organizational developments.”

Plaintiff contends that his employment termination falls under the classification “Reduction in Staff” and he is therefore entitled to severance pay from Capeo and Associates. On the other hand Associates contends that it has no obligation whatever to plaintiff as no employer-employee relationship existed between the two and, in any event, plaintiff’s termination of employment falls under the classification “other” which vests the employee with no absolute right to severance benefits. We will consider the contentions of Associates in the order set forth above.

UNDER THE CIRCUMSTANCES PRESENT DID THE RELATIONSHIP OF EMPLOYER-EMPLOYEE EXIST BETWEEN PLAINTIFF AND ASSOCIATES?

Associates contends that, although Capeo is a wholly owned subsidiary of Emmco which in turn is a wholly owned subsidiary of Associates, the three corporations are separate entitles and therefore the only employer-employee relationship which has been shown is that which existed between Capeo and plaintiff. Thus Associates argues plaintiff has no cause of action against it.

Associates argument as set forth above is based upon the well established rule that a corporation is treated as a legal entity separate and distinct in identity from the members who compose it. We acknowledge that this general rule of corporation law prevails in Louisiana. We likewise recognize that this general rule has application where all or a majority of the stock of a corporation is owned by another corporation. As stated in 18 C.J.S. Corporations Section 5j page 374:

“Ordinarily, several corporations retain their distinct identities notwithstanding the fact that they have stockholders and officers in common or that one corporation owns stock in the other.”

This general rule is not however, without exception. In many jurisdictions, including Louisiana, the courts have disregarded the separate entity concept where it is established that a corporation has been organized and is controlled, and its affairs conducted, so as to make it merely an instrumentality or adjunct of another corporation, and to do otherwise would work serious injustice to the rights of innocent third persons. As stated in State ex rel. Porterie et al. v. Gulf, Mobile & N. R. Co., 191 La. 163, 184 So. 711 (La.1938):

“It is now the policy of the courts, where the occasion requires, to look beyond the mere technical separate entity of corporations where one corporation, by stock control of another, interlocking directors, and having the same general executive officers, operates the other corporation as a mere agency or instrumentality of the dominant corporation in the furtherance of the business of the dominant corporation, and as part of one system.
In such a case, if the subservient corporation incurs an obligation growing out of its operations under this relationship, and the enforcement of that obligation is only available and effective against the dominant corporation, the courts will ignore the fiction of the separate, corporate legal existence of the two corporations and hold the dominant corporation.” (Citations omitted)

This exception to the general rule was recognized in Johnson v. Kinchen, 160 So.2d 296 (La.App. 1st Cir. 1964) wherein the court stated:

"... In such instances, where the branches of a single corporation are separately incorporated but managed by the dominant or parent entity, or have interlocking directorates, the courts have held the dominant or parent corporation liable for the obligations of its branches whenever justice requires protection of the rights of third persons. State ex rel. Porterie v. Gulf Mobile & N. R. Co.. 191 La. 163, 184 So. 711, Lucey Mfg. Corporation v. Oil City Iron Works. 15 La.App. 12, 131 So. 57.”

We have examined the record in this case in light of the legal principles set forth above and find the following. The objects and purposes of each of the several corporations composing the corporate “family” are closely related. The executive officers of the several corporations are to some extent interlocking. Associates either owns directly or indirectly all of the stock in the several corporations composing the corporate family. The parent corporation, Associates, establishes and administers all personnel policies and programs for the several corporations. If the corporate fiction is not disregarded plaintiff’s rights as an employee under the “Human Resources Policy” established and administered by Associates will be seriously prejudiced for following sale of all assets of Capeo said corporation was withdrawn as a foreign corporation authorized to do business in Louisiana and has been inactive since September of 1977.

Under these established facts we conclude that invocation of the. exception to the general rule is justified and plaintiff should be treated as an employee of Associates, entitled to such rights, benefits and remedies to which he is entitled under the “Human Resources Policy” established by Associates.

IS PLAINTIFF ENTITLED TO SEVERANCE BENEFITS UNDER THE CONTRACT OF EMPLOYMENT?

As we understand appellant’s argument it contends that the provisions of the “Human Resources Policy” regarding a reduction in staff are inapplicable because such does not contemplate a situation where all employees of one of the member companies in the corporate family are terminated by reason of the sale of such company, “lock, stock and barrel”. Therefore, appellant argues the termination must be considered under the classification “other” in which case management is vested with discretion to disallow severance benefits.

This argument would present a serious question of contract interpretation if the general rule on corporate entities were to be applied. However, for the reasons set forth previously we have concluded that this general rule must be disregarded to the end that all members of the corporate family are considered as one system or organization. Being considered as such the termination of plaintiff’s employment, under the circumstances, falls squarely within the provision of the “Human Resources Policy” defined as “Reduction in Staff” which in turn entitles plaintiff to termination pay. Although all employees of Associates directly connected with the operations being conducted by Capeo were terminated, other employees of the corporate family were retained. Plaintiff’s position as a senior ad-' juster was eliminated for economic reasons and he was not offered other employment within the corporate family. Under such circumstances he is clearly entitled to termination benefits.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

SWIFT, J., dissents and assigns reasons.

SWIFT, Judge,

dissenting.

I respectfully dissent as it is my opinion that the plaintiff’s termination did not constitute a “Reduction in Staff” of either Capeo Adjustors, Inc. or Associates Corporation of North America as defined in the policies of such companies.


author: GUIDRY, Judge.

text:
    Bertha J. McPHERSON et al., Plaintiffs-Appellants, v. Eldred L. ROY, Defendant-Appellee.
    No. 7824.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.

      See also, La.App., 390 So.2d 555.

      Smith, Taliaferro, Seibert, Boothe & Pur-vis, V. Russell Purvis, Jonesville, for plaintiffs-appellants.
    Reeves & Owens, R. R. Reeves, Jr., Harri-sonburg, for defendant-appellee.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   GUIDRY, Judge.

This matter, which bears our docket number 7824, was consolidated for purposes of trial with a suit entitled Roy v. McPherson et a1., 390 So.2d 555, our docket number 7825. These cases remain consolidated on appeal and we render a separate decision in the latter suit this date.

Plaintiffs in this matter who are the defendants in the companion suit, our docket number 7825, are Bertha J. McPherson, Marjorie White Book and W.E. White. We refer to these parties hereafter as McPherson-White. The defendant in this matter is the plaintiff in the companion matter. McPherson-White and Eldred Roy are adjoining property owners of lands situated in Sections 27 and 28, T. 4 N., R. 6 E., Cata-houla Parish, Louisiana. Both suits were instituted as the result of a dispute over the common boundary between their respective properties in the vicinity of SW Vi of SE lU, Section 28, T. 4 N., R. 6 E.

In suit number 7824 McPherson-White initially asserted a possessory action as to a portion of the SW/4 of SE/4 of Section 28. In their original petition McPherson-White sought to be maintained in possession of the disputed tract, requested the issuance of a preliminary injunction and in addition prayed for damages for the alleged unlawful destruction of their fences and crops.

This suit was filed on June 16,1978 and is hereafter referred to as the McPherson-White suit. On June 26, 1978, Roy filed answer to the McPherson-White suit generally denying the allegations of plaintiffs’ .petition and on the same day filed the suit which bears our docket number 7825. In this latter suit, hereafter referred to as the Roy suit, plaintiff sought the same relief, as to the same property, as did the plaintiffs in the McPherson-White suit except Roy did not seek issuance of a preliminary injunction.

On July 3,1978 a hearing was held in the McPherson-White suit on the rule for issuance of a preliminary injunction following which a judgment was entered granting' the preliminary injunction but allowing the defendant, Roy, to farm the disputed acreage for the crop year 1978 subject to his obligation to deposit all proceeds derived therefrom in the registry of court. In this judgment the trial court, on its own motion, ordered that the McPherson-White suit be converted to a boundary action and appointed one, James Tooke, a registered land surveyor, to survey the boundaries in question. Subsequent to the rendition of this judgment Roy filed a petition for rule seeking a rescission of said judgment insofar as it ordered the suit converted to a boundary action, however, before a hearing on this rule McPherson-White by supplemental and amending petition specifically sought, as additional relief, a judicial fixing of the boundary between their property and that of the defendant Roy in SW/4 of SE/4, Section 28, T. 4 N., R. 6 E.

In a supplemental petition filed in the Roy suit on July 26, 1978 the plaintiff amended his original petition so as to assert a possessory action against McPherson-White as to three additional tracts, i. e., a small strip located in W/2 of SW/4, Section 27, T. 4 N., R. 6 E., designated on the Tooke survey as Tract “B”; a 2.77 acre tract in NW/4 of SE/4 and NE/4 of SW/4, Section 28, T. 4 N., R. 6 E., designated on the Tooke survey as Tract “C”; and, a .19 acre tract in S/2, Section 27, T. 4 N., R. 6 E., designated on the Tooke survey as Tract “A-l”.

Finally, on April 16, 1979, the defendant Roy filed a peremptory exception of acquisitive prescription in the McPherson-White suit asserting his acquisition of the property described in the McPherson-White suit under the acquisitive prescription of 10 years as provided for by C.C. Article 3474. This one tract which is common to both suits contains 12.6 acres and is shown on the Tooke survey as Tract “A”.

In this posture the suits were tried. During the trial of these consolidated matters, although title was not at issue in either and the only boundaries sought to be fixed were those separating the properties of the parties in the vicinity of SW/4 of SE/4 Section 28, plaintiffs and defendants in both suits stipulated as to the possession and ownership by Roy of the three additional tracts described in his supplemental and amended petition and likewise stipulated to the correctness of the Tooke survey insofar as it located the division lines between several tracts of land owned by the parties in Sections 27 and 28 T. 4 N., R. 6 E., EXCEPT that the parties were unable to reach agreement as to the land in SW/4 of SE/4 Section 28, described and referred to in the original petitions filed in both suits. Following trial, considering the previously mentioned stipulation, the sole issue remaining concerned location of the boundary lines between the respective lands of the parties in the vicinity of SW/4 of SE/4 Section 28 and which of the adverse claimants was entitled to a judgment of possession as to the disputed acreage.

The trial court rendered judgment dismissing all demands of plaintiffs in the McPherson-White suit, except that the boundaries of the several properties owned by the adjoining owners in Sections 27 and 28 T. 4 N., R. 6 E., were fixed pursuant to the Tooke survey. Judgment was rendered in favor of plaintiff in the Roy suit recognizing his right to the ownership and possession of all properties therein described, including the land in SW/4 of SE/4 Section 28, and awarding him the sum of $349.91 held in the registry of court and representing the proceeds from crop sales allocable to the disputed acreage in SW/4 of SE/4 Section 28.

McPherson-White took devolutive appeals in both suits and in brief question only that part of the trial court judgment which fails to recognize the common boundary between their property and that of Roy in SW/4 of SE/4 Section 28 as being the fence line shown on the Tooke survey between the points “E” and “F” and a southerly projection thereof to the south line of SW/4 of SE/4 Section 28. We annex hereto as appendix 1 an extract from the Tooke survey showing the respective locations of the McPherson-White and Roy properties and the area in dispute.

Before proceeding to a discussion of the facts and the contentions of the parties we observe that in the McPherson-White suit the plaintiffs have cumulated the pos-sessory action with an action to establish boundary. In the early case of Ebarbo v. Stacey, 16 La.App. 248, 133 So. 793 (La.1931) our brethren of the second circuit held that a plaintiff who brought a possessory action could not convert such action into one of boundary. Likewise, in the recent case of Harvey v. Harvey, 345 So.2d 113 (La.App. 1977) our brethren of the 1st Circuit confirmed the trial court’s judgment sustaining an exception of improper cumulation of actions when the defendants attempted to cumulate the petitory and boundary actions. Our Supreme Court refused writs in Harvey, 347 So.2d 246 (La.1977) with the following comments:

“Writ denied. The result is correct. Denial herein is without prejudice to applicant to bring boundary action.
DIXON, J., concurring in the denial, is of the opinion that defendant, plaintiff in reconvention, was entitled to cumulate petitory action with boundary action, and, to the extent that the court of appeal ruled otherwise, it was in error. Defendant, plaintiff in reconvention, is entitled to locate the land on the ground and our action permits him to do that, if there remains a dispute.”

We pretermit any further discussion of this procedural question and consider both actions to be viable in that even if improperly cumulated under LSA-C.C.P. Articles 461 et seq., the defendant Roy by failing to timely object has waived his right to question the cumulation of such actions. LSA-C.C.P. Articles 926 and 928.

McPherson-White contend that the eastern boundary of their property extends into SW/4 of SE/4 Section 28 to the fence line shown on appendix 1 between the points IV-F and a southerly projection thereof to the south line of Section 28 (points F to III) and that they own all property in SW/4 of SE/4 Section 28 west of that line. On the other hand Roy contends that the boundary between his property and that of McPherson-White is the west line of SW/4 of SE/4 Section 28 T. 4 N., R. 6 E., as shown on the Tooke survey.

In support of the actions filed by them, McPherson-White assert that they and their ancestors in title have been in open, notorious and continuous possession of the disputed property up to the fence line and projection thereof from the year 1909 to June 14, 1978, on which latter date Roy allegedly destroyed such fence and entered upon the disputed property. Thus they argue that the eastern boundary of their property is the fence line and a projection thereof by virtue of 30 years prescription (C.C. Article 794, former C.C. Article 852) and therefore they are owners and should be recognized as such and restored to the possession of that part of the disputed property lying west of the aforementioned fence and projection thereof. On the other hand Roy disputes the McPherson-White assertion of possession as to that portion of the disputed tract lying west of the fence line and/or projection thereof and south of the tree line. Further, although Roy does not seriously contest the fact that McPherson-White and their ancestors in title have had open and continuous possession of that part of the disputed tract west of the fence and north of the tree line since the year 1909, he contends that the possession exercised by them over the disputed tract since October 3,1967 was exercised by them on his behalf by virtue of a lease granted by his ancestor in title to Bertha McPherson and Jack White, which lease specifically described and included SW/4 of SE/4 Section 28 T. 4 N., R. 6 E. Thus Roy argues that the division line between his property and McPherson-White must be fixed at the ideal location, i. e., the west line of SW/4 of SE/4 Section 28 because (a) McPherson-White had not sufficient possession of the area west of the fence and projection thereof south of the tree line; and, (b) whatever rights they may have previously acquired in the area north of the tree line were abandoned by McPherson-White and/or usurped by Roy and his ancestor in title by virtue of possession under the aforesaid lease and in any event Roy acquired title to the latter area by virtue of such possession under the provisions of C.C. Article 3474. Additionally, he argues that by virtue of the possession exercised under the aforesaid lease he is entitled to judgment in the Roy suit maintaining him in possession of the disputed tract.

The trial court in written reasons for judgment set forth the title history of the disputed tract and adjoining properties, as well as his findings and conclusions as to possession and occupation of the disputed tract. We take the liberty of quoting in part therefrom:

The involved property is part of a larger tract known as the Allen Parker tract or Allen Parker estate land. The Allen Parker tract is divided into two noncontiguous tracts by another parcel of property known as the C. V. White property.

The Allen Parker estate lands are outlined in yellow on the annexed exhibit. (See Appendix 1) The C. V. White estate separating the Allen Parker tract is out lined in blue and green on the annexed plat. (See Appendix 1). This property was owned by C. V. White prior to 1909. In that year he sold the property outlined in blue to Emmanuel (Man) White and the property outlined in green to Rozelia (Zeal) White. (See Appendix 1). According to the witnesses Man White and Zeal White used as a dividing line between their respective properties a fence which is located along the line marked in pink or red on the annexed plat which said fence line is easterly of the true line between the respective properties as described in their deeds. (Line marked E-IV-G-F on Appendix 1). This had the effect of Man White actually occupying a portion of the property of which Zeal White had title. As indicated on the plat the fence between Man and Zeal White extended southerly for some distance into the property subject of this litigation, and the best evidence indicates that it tied in to a fence running east and west along the south edge of the cultivated ridge near where the tree line exists on the attached plat.

I have inspected the property and examined all of the maps, including aerial photos and topographic maps. The physical characteristics of the land have to be considered in interpreting the testimony of the various witnesses. The center line of the road shown on the annexed plat runs approximately along the center of a ridge which runs in a general easterly westerly direction through the property although it veers slightly to the southwest and northeast. The south edge of the ridge is defined by a tree line shown on the annexed plat. At the time of my inspection (this inspection occurred in the presence of counsel on September 18, 1979) the property north of the tree line was farmed in row crops. South of the tree line there was a sizable growth of willow trees and a lower area, some of which still contained water even though we had suffered a considerably extensive dry period during this time. There was evidence in this area that the property south of the tree line had at one time been cleared of heavier timber, but there existed no present signs of actual cultivation. South of this area was an even lower area covered by water which formed the main body of White’s Lake. On the north edge of White’s Lake there was evidence of old trees and heavier timber that apparently had been pushed into this area and there also was some evidence of there having been a fence.

Man White and Zeal White lived on their respective properties and farmed up to the fence for many years. Man White farmed along the ridge line north of the tree line west of the fence. Man White sold the property owned by him ... toL.R. Denney in 1945. L. R. Denney then sold the same land to Walter White in 1949. Bertha White McPherson is the widow of Walter White and (sic) Marjorie White Book and W. E. White are two of his children. The other children of Walter White had sold their interest to Bertha McPherson.

Walter White occupied the property from 1949 until his death in late 1965 or 1966. Jack White, one of Walter White’s sons, farmed the property with his father until his father died. After his father died Jack White continued to farm the property by agreements with Mrs. McPherson and the other heirs until 1972 when he sold all of his interests in this area to Mrs. McPherson. Meanwhile, Mrs. McPherson and Jack White acquired a lease from the Allen Parker heirs covering the entirety of the Allen Parker estate. This lease describes the disputed property. In none of the documents whereby the property .. . was conveyed by Man White to L. R. Denney, from L. R. Denney to Walter White and by Walter White to his heirs, was there any reference to the disputed property. All of these instruments used the description contained in the deed from C. V. White to Man White. . .. Accordingly, there is no conflict in the record titles of the two respective tracts of land.

The property south of the tree line was cleared by Jack White after execution of the Parker ¡ease sometime in the late 1960’s, and according to his testimony, an attempt was made to farm it. This was not successful and the property has grown up again in recent years to the condition which it had at the time of my inspection. South of that area is the fence erected by Jack White at the time of the clearing along the north bank of White's Lake, some slight evidence of which I found on the date of my inspection. Actually, all of the property south of the tree line could be generally designated as White’s Lake and is no doubt covered by water for extensive periods of the year.

There are no present signs of any fence along the edge of the ridge at the tree line because it obviously would have been destroyed when Jack White cleared the area and attempted to extend the cultivated land south to the edge of White’s Lake. Prior to the clearing this area was heavier wood land and it is significantly lower in elevation than the land north of the tree line.

Several of the witnesses testified that the fence that they remembered on the south of the cultivated area ran along the edge of the cultivated field and that the road they remembered lay south of that. Any road south of the fence which Jack White erected along the edge of White’s lake after the clearing operation in the 1960’s would have been totally useless because even in dry weather it would have been marshy lake bottom covered by water.

The old road referred to by these witnesses had to be south of the present willow tree line which at that time was heavier timber. Even at that location where it would have been considerably higher than the more southerly location, it would have been useful only during dry weather and periods of low backwater.

Aerial photographs introduced into evidence exhibit the three types of property described above and confirm the findings which I have stated above.

The testimony leads me to the opinion that the White family did farm and possess that portion of the property under litigation located along the ridge, that is north of the tree line, extending easterly into the subject property to the southerly extension of the fence dividing the Man White and the Zeal White tracts which they refer to ... . The possession exercised by the Whites consisted of farming the property in row crop farmland.

Although there was some testimony to the fact that Man White used the property between the high ridge and the lake bottom as pasture land, there is no evidence that this type of possession extended easterly to cover the property in question. It is my opinion that most of this testimony referred to that portion of the property fronting White’s Lake which Man White owned himself lying west of this property. I do not find that the Whites exercised any appreciable possession on that portion of the disputed property between White’s Lake proper and the edge of the ridge marked by the tree line, the first possession being that exercised by Jack White when he conducted the clearing operation along the lake bank. It should be noted here that clearing the Allen Parker tract was one of the obligations or considerations for the lease which Jack White and Bertha McPherson had obtained from the Allen Parker heirs. Any possession by the Whites prior to this time was not of any significance in this case in my opinion because, as contrasted to the row crop land, this possession was not open, continuous and public.

(2)

The public records of Catahoula Parish do not reflect any conflict with respect to this property until the filing of the subject litigation. The disputed property is included within all of the descriptions of the various documents affecting the Allen Parker tract which are in the record, including the actual conveyances of the property as well as other documents such as oil, gas and mineral leases, timber sales, royalty deeds and the predial lease executed in 1967. On the other hand all of the documents reflecting the conveyances and other matters applicable to the Walter White estate and Man White properties are consistent and do not in any manner conflict with or overlap the descriptions of the Allen Parker properties. Even after they had exercised possession of a portion of the disputed property, as herein set forth, for a number of years, the Whites made no effort to describe it in their various legal documents.

(3)

It is my opinion that the evidence shows that that portion of the property in dispute .. . (being the open cultivated ridge land) has been openly and notoriously possessed by Emmanuel White from approximately 1909 when he acquired property to the north and west thereof from his father C. V. White to 1945. On that date White sold his property (but not by description (sic) the property in dispute) to Leroy Denney who continued the possession until 1949 when he conveyed his property (again not describing the disputed property) to Walter White. The possession was continued by Walter White until his death in late 1965 or 1966. After Walter White’s death, his widow, Bertha McPherson, and son Jack T. White farmed the Walter White property as owners and by verbal rental arrangements with their co-heirs until 1972. At this time, Jack T. White sold his interest in the Walter White estate to Bertha McPherson who acquired the interests of all the Walter White heirs except for Marjorie White Book and W. E. White. After 1972 the Walter White estate was farmed by A. V. Parker (no connection with the Allen Parker heirs or estate) under some verbal arrangement with Mrs. McPherson, Marjorie White Book and W. E. White.

The possession of these parties of the portion of the disputed property ... was beyond the bounds of their record title up to visible bounds consisting of southerly extension of the fence dividing the Emmanuel White property from the Zeal White property on the east and the south edge of the cultivated ridge shown as a wood line on the annexed plat. As heretofore noted, it is my opinion that the best evidence is that prior to the clearing of the property to the south by Jack White in 1967 after the Parker lease had been executed that a fence existed in the general area of this wood line which divided the cultivated ridge from the wood land on the south and at that time the fence constituted with the Zeal White fence on the east the visible bounds up to which the Whites exercised possession.... ”

We find the trial judge’s scholarly analysis of the facts to be fully supported by the record.

Considering the above facts our learned trial brother concluded that Roy was entitled to a judgment maintaining him in possession of the entirety of the disputed tract because (a) he had shown sufficient possession of the area of the disputed tract south of the tree line under the Allen Parker lease; and, (b) although, if the situation which existed prior to 1967 had continued to date McPherson-White would be entitled to a judgment maintaining their rights to possession of that part of the disputed tract north of the tree line and west of the Man White-Zeal White fence, with recognition of the fence and tree line as the east and southern boundaries thereof, upon acceptance of the Allen Parker lease in the year 1967 and by operating thereunder, McPherson-White effectively waived and abandoned all rights previously acquired in such property and the possession exercised over such property was under said lease and enured to the benefit of Roy.

We agree that the record supports the conclusion that Roy is entitled to a judgment maintaining him in possession of that part of the disputed area south of the tree line shown on the sketch annexed hereto as appendix 1. However, we conclude that the trial court erred in its determination that McPherson-White are not entitled to a judgment maintaining them in possession of the remaining portion of the disputed area and a judgment fixing the east and south boundaries of the property as the Man White-Zeal White fence and the tree line, respectively.

Under C.C. Article 794, formerly Article 852, “If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.” In the recent case of Fruge v. Lyons, 373 So.2d 220 (La.App. 3rd Cir. 1979) we stated:

“Under LSA-C.C. art. 3499, the possession of the predecessors in title cannot be added to that of the present possessor, unless the title of the present possessor includes the property in dispute, else there is no privity of estate such as is necessary to make up the thirty years adverse possession ‘as owner’. Stutson v. McGee, 241 La. 646, 130 So.2d 403; Comment, ‘Tacking of Possession for Acquisitive Prescription’, 8 La.L.Rev. 105 (1947). On the other hand, under LSA-C.C. Art. 852, the tacking of successive possessions up to the established visible bound between two estates is permitted, whether or not the land in dispute is included within the title description of the party pleading prescriptive title under this article. Opdenwyer v. Brown, 155 La. 617, 99 So. 482; Mills v. Butler, La.App., 1 Cir., 131 So.2d 262; Henly v. Kask, La.App. Orl., 11 So.2d 230. See also Chaney, Prescription under Article 852, 13 La.L.Rev. 582 (1953), and Baudin v. Charrier, La.App., 3 Cir., 137 So.2d 440.
This holding wa§ again followed in a petitory action considered by this court in Dubois v. Richard, 223 So.2d 198 (La.App. 3rd Cir. 1969). This position regarding tacking was recently affirmed by this court in a boundary action applying new Article 794 of the Civil Code. Leblanc v. Laborde, supra.
Hence, we arrive at the conclusion that under either old Civil Code Article 852 or new Civil Code Article 794, a possessor without good faith may tack on to his own possession that of his ancestors in title in order to make up the required thirty years adverse possession-”

As earlier noted the record reflects that McPherson-White and their ancestors in title maintained unequivocal, open and uninterrupted possession of the disputed strip north of the tree line and east to the Man White-Zeal White fence from the year 1909. Therefore, on the date the Allen Parker lease was executed, i. e., October 3, 1967 title to this area vested in McPherson-White under the prescription of 30 years as provided by C.C. Article 794, formerly 852. Although the prescriptive title thus acquired by McPherson-White was subject to divestiture by renunciation under C.C. Articles 3460, 3461 and 3471, we do not consider that the acceptance by Bertha McPherson and Jack T. White of a lease covering the Allen Parker Estate lands (which included SW/4 of SE/4 Section 28) can be considered as an express or tacit renunciation of the McPherson-White prescriptive title to that part of the disputed property over which they and their ancestors in title exercised possession for a continuous period of 58 years before execution of the lease. Our jurisprudence, interpreting the provisions of the cited articles, has consistently held that a renunciation of accrued prescription to be effective must be unequivocal and takes place only when the intent to renounce is clear, direct and absolute and made manifest either by words or actions of the party in whose favor prescription has run. Corsey v. State, Through the Department of Corrections, 366 So.2d 964 (La.App. 1st Cir. 1979) reversed on other grounds, 375 So.2d 1319 (La.1979), and cases therein cited. Clearly, the granting and acceptance of the Allen Parker lease did not operate as a renunciation of the prescriptive title to the undivided interests in the disputed property owned by Marjorie White Book and W. E. White, for the latter were not parties to such lease. Nor do we consider the execution of the lease and operations thereunder by Bertha McPherson and Jack T. White as constituting a renunciation of their prescriptive title to their respective undivided interests in the disputed property. The record in this case reflects that from the year 1909 that portion of the disputed property north of the tree line and west of the Man White-Zeal White fence was always considered to be the property of Man White and his successors in title. It was known and considered as such when the Allen Parker lease was executed in October of 1967. Thereafter, during the entire term of the lease, all accountings for the crops grown and harvested on the area in question were made to McPherson-White. Both Bertha McPherson and Jack White testified that it was never their intent to lease from the Allen Parker Estate the portion of the disputed tract north of the tree line and west of the Man White-Zeal White fence. A. V. Parker, who farmed the White properties and the properties leased by McPherson-White from the Allen Parker Estate following Jack White, testified that he farmed the property in dispute (north of the tree line and west of the fence) under a verbal arrangement with McPherson-White and made accountings to them for the crops grown thereon. That McPherson-White never had any intention of renouncing their prescriptive title to the disputed property is best manifested by the fact that five days following Roy’s destruction of the old fence McPherson-White instituted this possessory action.

In sum we conclude that by acceptance of the Allen Parker lease as lessees in October of 1967 Bertha McPherson and Jack White did not manifest an intention to renounce their prescriptive title to that part of the disputed area north of the tree line and west of the Man White-Zeal White fence.

For these same reasons we find that the trial court erred in concluding that the farming operations conducted by Bertha McPherson and Jack White on the disputed property north of the tree line and west of the fence after October of 1967 constituted possession of that property under the Allen Parker Estate lease, enuring to the benefit of Roy and sufficient to enable him to file and maintain a possessory action and/or sufficient for sustaining his plea of ten year acquisitive prescription under LSA-C.C. Article 3474.

It is clear from the record that long prior to execution of the October 1967 lease Man White and his successors in title possessed the entirety of the disputed property north of the tree line and west of the fence. It was being so possessed in October of 1967 by Bertha McPherson and Jack White for themselves and under a verbal lease arrangement with their co-heirs. It continued to be so possessed up until the entry upon said property by Roy on June 14,1978, unless it be concluded, as did the trial court, that following execution of the lease the operations conducted upon such property were for the benefit of Roy. We cannot agree with this finding.

The possession required to maintain a possessory action is the same as that required to commence the running of acquisitive prescription. Liner v. Louisiana Land & Exploration Company, 319 So.2d 766 (La.1975). Under our'law there are two distinct things that are requisite to the acquisition of possession, (1) the intention of possessing as owner; and, (2) the corporeal possession of the thing. C.C. Article 3436. One may possess a thing not only by one’s self, but also by other persons. C.C. Article 3433. However, in order for one to acquire possession of a thing through the acts of a third person, it must be made to appear that such third person knowingly and intentionally assumed and held possession as a precarious possessor and for the benefit of his principal.

C.C. Article 3438 provides:

“One may acquire possession of a thing, not only by himself, but also through others who received it for him and in his name. But in this case it is necessary that the person receiving the possession should have had intention of receiving for the other.” (Emphasis ours).

C.C. Article 3441 provides:

“Those who possess, not for themselves, but in the name of another, as farmers, depositaries and others who acknowledge an owner, can not acquire the legal possession, because, at the commencement of their possession, they had not the intention of possession for themselves but for another.”

C.C. Article 3445 provides:

“To enable one person to obtain possession for another, it is necessary that he should have such intention in making the acquisition: but in preserving the possession for another, it is not necessary that this intention should continue to exist.(Emphasis ours).

Section 2269 of Plainol’s Traite Elemen-taire De Droit Civil states as follows:

“Is it necessary that the two elements of possession be united in the very person who is become the possessor? A distinction must be drawn between the element of intent and the physical element.
(1) The element of intent, the intention of becoming possessor, is in principle, necessary in the very person who is to possess. The will of a third person cannot make a man a possessor without his knowing it. Nevertheless, in the case of persons who are incapable of having an animus of their own, such as insane persons and children, it had to be held that possession could take place in their favor through the animus of another. They borrow, as it were, the animus of their represen tati ves.
(2) The physical element is governed by a contrary principle. It is never necessary that the acts of enjoyment, which make up the possession, be carried out by the possessor in person. It has always been recognized, and this was admitted by the Romans, that possession may be taken of a thing ‘corpore alieno', that is to say through the intervention of any representative, a mandatory, an agent, etc. Whenever this person takes possession of the thing in the name of another intending to make this other person acquire it, possession is acquired by the latter, if the latter so desires.”

Equally well established in our law is the principle that a person who commences his possession with the intention of holding for another, though he later entertain the intention of no longer holding for that other, but for himself, is presumed to hold possession for the person for whom he originally took it. C.C. Article 3446.

Thus our civil code provisions make it clear that one acquires the benefit of anothers corporeal possession of a thing only if it be established that the possessor actually intends at the moment he assumes possession of the thing to hold for the former and not for himself.

In the instant case the only evidence that the possession of the disputed land by Bertha McPherson and Jack White was intended to benefit Roy is the fact that the whole of SW/4 of SE/4 Section 28 is described, along with many other properties, in the lease to them of the Allen Parker Estate lands. This single factor in our opinion falls far short of establishing the necessary requisite that they intended to possess under the Allen Parker lease when contrasted with all of the other circumstances established by the record and in particular the factual circumstances alluded to previously. Additionally, it would be preposterous to presume that Bertha McPherson and Jack White would intentionally possess adverse to themselves property which they themselves owned and which had been in their family since the year 1909.

We do not consider that our decision in this case contravenes the rule, well established in our jurisprudence, to the effect that a tenant in possession cannot contest his landlord’s title. In the cases so holding the contest arose during the term of the lease and the original possession of the lessee commenced under the lease. The instant case is clearly distinguishable. McPherson-White’s possession of the disputed tract commenced long prior to the execution of the lease and it has been clearly shown that there was never any intention on the part of the lessees to include the disputed acreage in the lease or to possess same on behalf of the Allen Parker Estate or the defendant, Roy.

For these reasons we determine that McPherson-White and their ancestors in title maintained open, unequivocal and continuous corporeal possession of the disputed tract north of the tree line and east to the Man White-Zeal White fence from the year 1909 to June 14, 1978, on which latter date their possession was interrupted by the physical entry made by the defendant, Roy, on said property. Accordingly, we conclude that McPherson-White have proven each of the requisite elements set forth in LSA-C. C.P. 3658 and are entitled to a judgment of possession and a judgment for the amount deposited in the registry of court, i. e., the sum of $349.91, which represents the proceeds from the crop harvested from the above tract for the crop year 1978. Further, we determine that McPherson-White are entitled to a judgment decreeing that the east and south boundaries between their property and that of the defendant, Roy, in SW/4 of SE/4 Section 4, T. 4 N., R. 6 E., is the Man White-Zeal White fence and the tree line, respectively, all as shown on the Tooke Survey filed in these proceedings as Plaintiff’s Exhibit 1. Finally, we observe that the trial court taxed all costs of the proceedings in both suits to McPherson-White. We will amend the trial court judgment pursuant to authority granted us by LSA-C.C.P. Article 2164 so as to allocate all costs incurred at the trial level lk to McPherson-White and % to Roy.

For the above and foregoing reasons the judgment of the trial court is amended in the following particulars:

(a) It is ordered, adjudged and decreed that McPherson-White are recognized as entitled to the possession of that portion of SW/4 of SE/4 Section 28, T. 4 N., R. 6 E., north of the tree line and west of the Man White-Zeal White fence all as is reflected by the survey of James H. Tooke, dated the 22nd day of August, 1978 and designated plaintiff’s exhibit 1 in this appeal which bears our docket number 7824.

(b) Further, it is ordered, adjudged and decreed that the east and south boundary lines between the adjoining properties owned by McPherson-White and Eldred Roy in SW/4 of SE/4 Section 28, T. 4 N., R. 6 E., be and the same are hereby fixed as the Man White-Zeal White fence and the tree line, respectively, all as is reflected by the survey of James H. Tooke, above referred to. 1

(c) Further, it is ordered, adjudged and decreed that the sum of $349.91 held in escrow in the registry of court be paid over to McPherson-White.

(d) Finally, it is ordered that all costs of these proceedings at the trial level be paid V2 by McPherson-White and V2 by El-dred Roy.

In all other respects the judgment appealed from is affirmed. Costs of this appeal are to be borne V2 by McPherson-White and V2 by Eldred Roy.

REVERSED IN PART; AFFIRMED IN PART; AND, RENDERED.

APPENDIX 1

      . The Tooke survey locates the ideal division line between the McPherson-White property and the Roy property as the west line of SW/4 of SE/4 Section 28, T. 4 N., R. 6 E. On appeal McPherson-White only question the correctness of this boundary, they having stipulated as to the correctness of the Tooke survey insofar as it locates the boundary lines of other adjoining properties owned by the parties in Sections 27 and 28 T. 4 N„ R. 6 E.

        This lease is dated October 3, 1967.

      . In their petition McPherson-White additionally sought damages for destruction of the old Man White-Zeal White fence as well as damages for mental anguish etc. There is no evidence in the record as to the amount of damages suffered as a result of the destruction of the fence and we find no merit in the McPherson-White claim for damages suffered as a result of mental anguish, even if such damages would be awardable under the circumstances of this case.- Accordingly we reject, as did the trial court, plaintiffs’ demand for these items of damage.


text:
    Eldred L. ROY, Plaintiff-Appellee, v. Bertha J. McPHERSON et al., Defendants-Appellants.
    No. 7825.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.
    Smith, Taliaferro, Seibert, Boothe and Purvis, V. Russell Purvis, Jonesville, for plaintiff-appellee.
    Reeves & Owens, R. R. Reeves, Jr., Harri-sonburg, for defendants-appellants.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion matter entitled McPherson et al. v. Roy, 390 So.2d 543, our docket number 7824, the judgment rendered in the captioned matter is reversed in part, affirmed in part, and rendered. See our decree in our docket number 7824.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.