source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. HARTFORD ACCIDENT & INDEMNITY COMPANY and Phillips Oil Corporation.
    No. 13254.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.

      Paul M. Hebert, Jr., Pamela A. Pres-tridge, Baton Rouge, of counsel for plaintiff-appellee, South Central Bell Tel. Co.
    Daniel R. Atkinson, Baton Rouge, Joseph W. Cole, Jr., Port Allen, of counsel for defendants-appellants, Hartford Acc. & In-dem. Co. and Phillips Oil Corp.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Hartford Accident & Indemnity Company (Hartford) and Phillips Oil Corporation (Phillips), defendants-appellants, seek reversal of a judgment casting them in damages. We affirm.

On August 2, 1974, South Central Bell Telephone Company (Bell) discovered gasoline leaking from an underground line at a service station in Baton Rouge. The gasoline had irreversibly damaged a Bell conduit. Replacement was necessary.

Suit was filed against the defendants. Following trial, judgment was rendered against Phillips and Hartford in the amount of $10,000.00 and against Phillips alone for $58,371.67.

On appeal, Phillips specifies five errors:
1) LSA-C.C. Art. 667 was improperly applied.
2) LSA-C.C. Art. 2317 was improperly applied.
3) There was no connection between the gas leakage and damage to the conduit.
,4) Prescription should bar any recovery.
5) The damages awarded were excessive.

With two observations, we adopt, as the basis for our decision, the following excellent trial court opinion by Judge Shor-tess.

“WRITTEN REASONS FOR JUDGMENT
STATEMENT OF THE CASE
This is a suit for damages sustained by South Central Bell (Bell) to certain telephone cables and an underground conduit in 1974 as a result of gasoline leakage on the premises of the Amoco Station located at the intersection of College Drive and Perkins Road in the City of Baton Rouge. Plaintiff sued Phillips Oil Corporation (Phillips), the Amoco distributor for Baton Rouge, and its insurer, Hartford Accident and Indemnity Company. Petitioner alleges that Phillips is liable because of its improper use of its property, its negligence, or both, and that Hartford Accident and Indemnity Company is liable in solido as the insurer of Phillips.
The defendants generally deny Bell’s allegations and deny any negligence or fault contributing to the damage. Alternatively, they have raised an exception of prescription, and further in the alternative, claim contributory negligence and/or assumption of risk and further that the petitioner had no lawful right to be on the property, so Phillips’ only obligation was not to willfully or wantonly injure Bell.
STATEMENT OF THE FACTS
In 1968, the Parish planned to improve College Drive by widening the street. Pursuant thereto, a right-of-way on the property which is the subject of this suit was obtained from the owner. Bell obtained permission from the City-Parish to place, and did install, an underground conduit within the right-of-way for College Drive in coordination with the road widening project along the entire length of College Drive. On August 2, 1974, damage to the conduit was discovered by a Bell repairman. This suit was filed on August 1, 1975.
CAUSE IN FACT
In order to hold a defendant liable under La.C.C. Art. 2315, 2317, or 667, the plaintiff has the burden of proving the defendant’s actions were a cause in fact of the injury sustained. See Reese v. South Coast Corporation, 328 So.2d 169, at 171 (La.App. 1st Cir.1976). Bell offered no direct evidence to establish that Phillips was responsible for the damaged conduit. However, causation may be proved by circumstantial evidence and that evidence need not negate all other possible causes, but such evidence must exclude other reasonable hypotheses with a fair amount of certainty. Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (La.1963); Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La.1973).
This court finds a sufficient degree of certainty in the evidence here presented to conclude that the damage to the Bell conduit occurred as a result of gasoline leakage from the Amoco Station at the corner of College Drive and Perkins Road.
Evidence to support this finding came from the testimony of several witnesses who established that on August 2, 1974, gasoline was discovered in a manhole at the corner of Perkins Road and College Drive. As a result of this gasoline leakage, Bell cables and its conduit were damaged. A gas leak was found at the Amoco Station at the corner of College Drive and Perkins Road, and it was repaired on August 8, 1974. A cable located in the manhole was repaired in September of 1974. In 1977, in preparation for replacing the damaged conduit, test holes were dug in order to determine how much of the conduit had to be replaced. The test hole adjacent to the Amoco Station revealed fresh gasoline. The station manager was notified and he admitted that three tanks had be to replaced in 1977 because they were leaking.
Consequently, due to the close proximity of the Amoco Station and the incidents of leakage at the Amoco Station, the court finds that the damage to the South Central Bell conduit was caused by gasoline leakage from the Amoco Station.
LIABILITY
Under the facts of this case, the legal basis for determining liability lies either under C.C. Art. 2317 or 667. Both articles impose liability without negligence. Loescher v. Parr, 324 So.2d 441 (La.1975). Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).
However, in the interest of brevity, this court will limit its legal analysis to C.C. 2317. Article 2317 imposes liability for ‘things which we have in our custody.’ This court finds that Bell has established the required elements of proof to impose liability on Phillips Oil under Art. 2317. Bell has proved (a) that the thing (gasoline in tanks) which caused the damage was in the care of the defendant, (b) the defect or vice (leaking tanks), and (c) that the damage occurred through this defect or vice. The guardian of the leaking tanks is therefore liable for his legal fault in maintaining the defective gasoline tanks and in not preventing its vice from causing injury. Phillips failed to show that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force, Loescher v. Parr, supra.
The defendant contends that the damage was caused by the fault of the victim (Bell) in failing to install a conduit which would be impervious to gasoline. However, at the time the conduit was placed in the ground, it was the only conduit available. Bell had no cause to believe either that gasoline would damage the conduit or that the conduit would be subjected to gasoline leakage.
As a result, Bell did not cause the damage through its own fault. Additionally, Bell, being unaware of any actual imminent danger or potential damage from gasoline leakage, did not assume the risk of such damage.
DUTY TO THIRD PERSONS
Since the basis for liability is C.C. Art. 2317, this court finds it unnecessary to determine (1) the applicability of La.R.S. 45:781, (2) the applicability of the St. Julian Doctrine, or (3) the status of the plaintiff relative to the defendant. Under the theory of liability without negligence, there is no sliding scale of duty according to the identity of the person injured. W. S. Malone, Studies in Louisiana Tort Law, p. 352 (1970).
The possible defenses afforded to Phillips under Loescher v. Parr, supra, do not include plaintiff’s status.
PRESCRIPTION
The prescriptive period for quasi offenses is one year, C.C. Art. 3536. Bell discovered the damage on August 2,1974. Suit was filed within one year of discovery of the damage, August 1, 1975. Although there is evidence that troubles on Bell’s lines which might have been caused by the leaking gasoline occurred prior to August 2, 1974. Bell exerted due diligence in trying to locate the problem and, therefore, should not have known about the damage prior to August 2, 1974. Dean v. Hercules, Inc., 328 So.2d 69, at p. 73 (La.1976). The defendant’s exception of prescription is overruled.
Bell is entitled to damages to repair its cable and replace its conduit, as follows:
For cable repair $ 4,728.69
For replacement of conduit 63,642.98
Judgment will be signed accordingly.
BATON ROUGE, LOUISIANA, this 15th day of December, 1978.”

Uncontradicted testimony by Carl L. Meriweather, Jr., the Amoco Station’s nominal lessee, buttressed by that of O. J. Walker, clearly established that Phillips was responsible for the maintenance and upkeep of the tanks and lines which leaked and were responsible for the damage to plaintiff’s property. Since the tanks were under Phillips’ control, Phillips is liable for the damage caused. LSA-C.C. Art. 2317.

We find that the record clearly supports the amount of damages awarded.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Phillips Oil Corporation.

AFFIRMED.

       In this case the violation of the duty imposed by C.C. Art. 667 lies in the presence and maintenance of leaking gasoline storage tanks (a defective construction). Gasoline is a highly solvent liquid. This is not a suit for removal of Bell’s conduit, Koch v. Louisiana Power & Light Company, 298 So.2d 124 (La.App. 1st Cir.1974). Since Bell had City-Parish consent to be present on the City’s servitude, Bell is a neighbor within contemplation of Article 667. See Joubert v. State of La., 345 So.2d 220 (La.App.3d Cir.1977).


text:
    BAYOU BOUILLON CORPORATION et al. v. ATLANTIC RICHFIELD COMPANY.
    No. 13229.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Jack C. Caldwell, Franklin, for plaintiff-appellant Bayou Bouillon Corporation, et al.
    Robert T. Jorden, Lafayette, for defendant-appellee Atlantic Richfield Co.
    Robert G. Haik, New Orleans, for the Succession-appellee Administrator of the Succession of Penelope Dickey Humes, No. 9658, St. Mary Parish, State of Louisiana.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Bayou Bouillon Corporation and twenty other individually named plaintiffs, hereinafter as an aggregation termed Bayou, filed suit against defendant, Atlantic Richfield Company, hereinafter AR, seeking cancellation of oil, gas and mineral leases granted by Bayou to AR, payment of sums allegedly past due under the leases, and $50,000 in attorney fees. From a trial court judgment rejecting all plaintiff’s claims, Bayou appeals. We affirm.

I. FACTS

By instruments dated February 6, 1964, September 7, 1965, and June 12, 1972, Bayou granted oil, gas and mineral leases to AR (or its ancestor, Atlantic Refining Company) on properties in Iberville Parish.

Royalty shares to be paid by AR under the 1964 leases, as amended, included Vs

“of all oil, distillate and condensate and other liquid hydrocarbons however produced and saved . . .or, at Lessee’s option, purchased by Lessee or sold by Lessee to another. In the event Lessee sells to another in a bona fide arms length transaction, then, the royalty paid to Lessor shall be based on the price received for such sale by Lessee. In the event Lessee itself purchases the oil or delivers it to another in exchange for other oil, then the royalty paid to Lessor shall be based on the highest posted price in the field.”

Royalty provisions in the 1965 and 1972 leases were similar save for the fact that in the 1972 lease the royalty share was Vs.

In late 1973, Mr. F. W. Miller, president of Bayou, became aware of a discrepancy in AR’s royalty payments and notified Mr. Jack C. Caldwell, counsel for Bayou, who telephoned AR in December.

By letter dated January 9, 1974, AR revealed that certain oil had been paid for at the incorrect rate of $3.43 per barrel rather than at the proper rate of $4.03 per barrel. AR noted that the error dated from April, 1973, and stated that supplemental payments to Bayou would be made “promptly.” By way of explanation, the letter stated:

“Somewhere, somehow, our control procedures did not function properly. We would have discovered our mistakes long before now had we not been so overwhelmed with government requirements with regard to price freezes, ceiling prices, and ‘New’ and ‘Stripper’ oil prices. These procedures will be improved and, hopefully, occurrences such as this can be avoided.”

On February 8, 1974, Bayou demanded by letter that AR cancel the leases and make payment for all past due royalties or face suit. AR refused to comply and the present litigation ensued.

Bayou appeals the trial court judgment rejecting all its demands and specifies three errors:

1. It was error to find that oil royalty payments to Bayou were subject to federal price regulations.
2. It was error to apply provisions of the Louisiana Mineral Code to this case.
3. It was error not to find that AR had actively breached its obligations to pay royalties timely.

II. FEDERAL PRICING

Bayou, on appeal, urges that federal energy regulations adopted in 1973 have no bearing on this case. Appellant maintains that pricing difficulties, regardless of their complexity, cannot justify the proven delay in royalty payments. Further, Bayou demands that because AR chose to keep all the oil produced and to exchange it with other companies, the price paid must, pursuant to the lease and despite ceiling prices, be “the highest posted price in the field.” We find these arguments to have no merit.

Comprehending the applicability and complexity of federal energy regulation necessitates both a stroll down the tortuous legislative path and a review of legal challenges so numerous as to require the establishment of a Temporary Emergency Court of Appeals.

Section 753(a) of the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 751 et seq., provided that the President shall promulgate regulations for the mandatory allocation of crude oil and each refined petroleum product in amounts and at prices specified. The purpose was to provide for

“equitable distribution of crude oil, residual fuel oil, and refined petroleum products at equitable prices among all regions and areas of the United States and sectors of the petroleum industry(.)” 15 U.S.C. § 753(b)(1)(F).

To accomplish this, President Nixon established the Federal Energy Office (FEO) and delegated to it his authority under 1) section 203(a)(3) of the Economic Stabilization Act of 1970 (12 U.S.C. § 1904 note); 2) 15 U.S.C. § 751 et seq.; and 3) the Defense Production Act of 1950 (50 U.S.C. App. § 2061 et seq.).

Centralization of petroleum allocation and pricing was completed when the Cost of Living Council (CLC) delegated its crude oil and petroleum products price stabilization authority under the Economic Stabilization Act of 1970 to the FEO.

In an attempt to minimize the inflationary impact of rapidly rising world-wide oil prices and at the same time to provide an incentive for increased domestic production of crude oil, the CLC had established a “two-tier” pricing system for crude oil.

The basic applicable “two-tier” regulations, as originally established by the CLC and adopted by the FEO, provided as follows:

10 C.F.R. 212.71
“This subpart applies to the first sale of domestic crude petroleum.”
10 C.F.R. 212.72
“ ‘Base production control level’ for a particular month for a particular property means:
(1) if crude petroleum was produced and sold from that property in every month of 1972, the total number of barrels of domestic crude petroleum produced and sold from that property in the same month of 1972;
(2) if domestic crude petroleum was not produced and sold from that property in every month of 1972, the total number of barrels of domestic crude petroleum produced and sold from that property in 1972 divided by 12.
‘Property’ is the right which arises from a lease or from a fee interest to produce domestic crude petroleum.
‘New crude petroleum’ means the total number of barrels of domestic crude petroleum produced and sold from a property in a specific month less the base production control level for that property.”
10 C.F.R. 212.73
“(a) Rule. Except as provided in section 212.74, no producer may charge a price higher than the ceiling price for the first sale of domestic crude petroleum.
(b) Ceiling price determination. The ceiling price for a particular grade of domestic crude petroleum in a particular field is the sum of (1) the highest posted price at 6 a. m., local time, May 15, 1973, for that grade of crude petroleum at that field, or if there are no posted prices in that field, the related price for that grade of domestic crude petroleum which is most similar in kind and quality at the nearest field for which prices are posted; and (2) a maximum of $1.35 per barrel.”
10 C.F.R. 212.74 (in part)
“(a) Notwithstanding the provisions of section 212.73(a), a producer of new crude petroleum produced and sold from a property may in the month produced, beginning with the month of September 1973, or in any subsequent month, sell that new crude petroleum without respect to the ceiling price.”

Essentially, the amount by which the total number of barrels of oil produced and sold exceeded the base production control level for that month was “new” oil which might be sold without respect to the ceiling price.

Additional regulations further complicated matters. Stripper wells, those producing less than ten barrels per day, were exempt from allocation or price controls.

Released crude oil was a recharacterization of oil otherwise classified under the base production control level. Released crude could, under certain conditions, be sold at above ceiling price levels according to a complex formula resulting in ever changing prices.

Bayou urges that none of these regulations were applicable prior to February 1, 1976, when 10 C.F.R. 212.72 was amended to add a new definition:

“ ‘First sale’ means the first transfer for value by the producer or royalty owner. With respect to transfers between affiliated entities, the first sale shall be imputed to occur as if in arms length transactions.” (Emphasis added).

It is contended that inasmuch as “royalty owner” was not added until 1976, federal price regulations do not apply in this case. We disagree.

Clearly, 10 C.F.R. 212.73, as worded, applies to oil producers. Furthermore, 10 C.F.R. 212.31 defined “producer” as:

“a firm or that part of a firm which produces crude oil, or any firm which owns crude oil or natural gas when it is produced”

and “firm” as

“any association, company, corporation, estate, individual, joint venture, partnership or sole proprietorship, or any other entity however organized(.)”

In addition to the statutory provisions, case law has consistently characterized royalty owners as producers. See City of Los Angeles, Los Angeles, California (FEA-0981) 5 FEA No. 80,581 (1977); Colorado State Board of Land Commissioners, Denver, Colorado (FEA-0974) 5 FEA No. 80,529 (1977).

The constitutionality of applying PEO’s “two-tier” price controls to non-operating royalty owners was at issue in Griffin v. U.S., 537 F.2d 1130 (Temp. Emerg. Ct. of Appeals 1976), cert. denied 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 286 (1976). While the case did not directly involve the regulations’ applicability, the court, in finding the regulations constitutional and not a taking, une-quivocably determined that federal price controls applied to royalty oil.

Bayou’s citation of Mobil Oil Corporation v. Federal Power Commission, 463 F.2d 256 (D.C. Cir. 1972), is irrelevant. That case dealt with gas rather than oil royalty and was distinguished in Sabine Production Company, Dallas, Texas, (FXA-1199 and FXA-1368) 1 DOE No. 80,185 (1978).

Both Bayou and AR were clearly subject to federal price controls even if such pricing, necessary to the exercise of constitutional powers, impaired their contract. Home Building & Loan Association v. Blaisdell, 290 U.1S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934).

III. MINERAL CODE

Bayou correctly argues in brief that any use by the trial court of provisions of the Louisiana Mineral Code, LSA-R.S. 31:1 et seq., in this case was improper inasmuch as the Mineral Code did not take effect until January 1, 1975. Nevertheless, we must observe that while the particular articles dealing with nonpayment of royalties were not applicable until 1975, the Code’s sure intent was to continue the jurisprudential trend of avoiding lease cancellations by finding that the nonpayment of royalties was justifiable.

The general rule in Louisiana Mineral Law prior to the Mineral Code was that failure to pay production royalties under an oil and gas lease for any appreciable length of time without justification amounted to an active breach of the lease which entitled the lessor to a cancellation of the lease without the necessity of putting the lessee in formal default. LSA-C.C. Art. 1931, 1932. Melancon v. Texas Company, 230 La. 593, 89 So.2d 135 (1956); Bollinger v. Texas Company, 232 La. 637, 95 So.2d 132 (1957); Bailey v. Meadows, 130 So.2d 501 (La.App. 2nd Cir. 1961); Pierce v. Atlantic Refining Company, 140 So.2d 19 (La.App. 3rd Cir. 1962); Sellers v. Continental Oil Company, 168 So.2d 435 (La.App. 3rd Cir. 1964); Fontenot v. Sunray Mid-Continent Oil Company, 197 So.2d 715 (La.App. 3rd Cir. 1967), writ confused 250 La. 898, 199 So.2d 915 (1967).

However, in cases where the failure to pay production royalties was justified under the particular facts and circumstances, the breach was considered passive, requiring a putting in default. LSA-C.C. 1933, 1911. Fawvor v. U.S. Oil of Louisiana, Inc., 162 So.2d 602 (La.App. 3rd Cir. 1964), writ refused 246 La. 575, 165 So.2d 479 (1964); Broadhead v. Pan American Petroleum Corporation, 166 So.2d 329 (La.App. 3rd Cir. 1964), writ refused 246 La. 873, 167 So.2d 679 (1964); Mire v. Hawkins, 177 So.2d 795 (La.App. 3rd Cir. 1965); Hebert v. Sun Oil Company, 223 So.2d 897 (La.App. 3rd Cir. 1969), writ refused 254 La. 813, 227 So.2d 147 (1969); Alvord v. Sun Oil Company, 271 So.2d 561 (La.App. 2nd Cir. 1972), writ denied 273 So.2d 299 (1973).

It is a statistical fact that in sixteen reported Louisiana appellate cases over the past twenty-four years dealing with nonpayment of royalties, justification for nonpayment was found in ten. More significantly, in the most recent seven cases and over the past twelve years, justification was found in each case. The courts obviously have become hesitant to cancel leases for the nonpayment of relatively small sums, especially where the lessee may have invested several million dollars.

Despite Bayou’s strenuous efforts to analogize the facts of this case to Pierce v. Atlantic Refining Company, supra, each case of this type must be examined on its own facts and circumstances. Hebbert v. Mudd, 294 So.2d 518 (1974). Among the factors to be considered are:

1.the length of the period in which royalties were not paid;
2. the amount involved;
3. special circumstances outside the control of the lessee;
4. the lessee’s motive;
5. when and under what circumstances did the lessor seek or demand royalty payments;
6. whether the person to whom the royalty was owed knew about the industry or was the footing unequal.

From our review of this case, it is evident that the trial court, despite using terms of the Louisiana Mineral Code which were inapplicable, considered the evidence according to the controlling jurisprudence.

IV. BREACH

Central to this case is the question of whether or not AR committed an active breach of the lease which would entitle Bayou to cancellation without a formal putting in default.

The royalties owed and paid during the period in question were as follows:

MONTH TYPE OP OIL ORIGINAL CORRECTED ROYALTY ROYALTY PAYMENT PAYMENT UNDER- DATE PAYMENT CORRECTION ERROR WAS MADE
4/73 _ $24,620 $25,148 $ 528 2/74
5/73 no sales
6/73 no sales
7/73 _ 47,371 52,651 5,280 12/73
8/73 _ 59,621 67,980 8,359 12/73
9/73 base 46,320 54,924 8,604 2/74
new & released 12,153 18,173 6,020 2/74
10/73 base 51,007 60,482 9,475 2/74
new & released 15,962 27,081 11,119 1/74
11/73 base 49,413 58,592 9,179 12/73
new & released 17,896 29,949 12,053 12/73
stripper 12 30 18 2/74
12/73 base 70,730 70,730
new & released 27,220 30,172 2,952 2/74
stripper 504 559 55 2/74
1/74 base 44,161 44,161
new & released 78,289 78,289
stripper 426 426
2/74 base 44,642 44,642
new & released 60,993 60,993
stripper 386 386

Thus, on the entire amount owed of $725,368 in royalties, $651,726, or 89.8%, was paid timely by AR. Only $73,642 was ever delinquent and of that sum we note that 1) all but $528 was delinquent only after July of 1973, and 2) $34,871 in underpayments were paid by December of 1973 with the remaining corrections made by February of 1974.

Changing federal price regulations were unquestionably the basic cause for AR’s delayed royalty payments. The prices posted by Koch Oil, on which AR had previously based its payments to Bayou, became unreliable. After a short and reasonably delay, AR resorted to a telephone inquiry to handle the mercurial price changes affecting the industry.

We find that under the facts of this case, in particular the massive changes occurring in the oil industry, AR was justified in delaying ten percent of its royalty payments to Bayou.

There was no active breach. AR corrected all past underpayment errors within a minimal period of two months once its attention had been drawn to the problem in December of 1973. Nothing in the record indicates otherwise.

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by Bayou Bouillon Corporation.

AFFIRMED.

      . Exec. Order No. 11,748, 3 C.F.R. 376 (1974).

      . CLC Order No. 47, 39 Fed.Reg. 24 (Jan. 2, 1974).

      . To complete the saga, the FEO issued its Petroleum Allocation and Price Regulations, 39 Fed.Reg. 1924-61 (1974), effective Jan. 15, 1974. On June 27, 1974, the Federal Energy Administration (FEA) was created by the Federal Energy Administration Act of 1974, 15 U.S.C. § 761 et seq. The FEA assumed the functions of the FEO. See Exec. Order No. 11,790, 39 Fed.Reg. 23185 (June 27, 1974). Pursuant to the Department of Energy Organization Act, 42 U.S.C. § 7101 et seq., and Exec. Order No. 12,009, 42 Fed.Reg. 46267 (1977), the FEA and its functions were transferred to the Department of Energy.

      .The “two-tier” pricing system originated as part of Phase IV of the Economic Stabilization Program. 6 C.F.R. 150, Subpart L, 38 Fed.Reg. 22,536 (Aug. 22, 1973). These rules were adopted by the FEO as 10 C.F.R. 212, Subpart D, 39 Fed.Reg. 1924 (Jan. 15, 1974), when the FEO assumed the functions of the CLC.

      . 15 U.S.C. 753(e)(2).

      . 10 C.F.R. 212.74(b).

      .Numerous cases have upheld FEO regulations as constitutional and provide reviews of the law. Grigsby v. Department of Energy, 585 F.2d 1069 (Temp. Emerg. Ct. of Appeals 1978), cert. denied 440 U.S. 908, 99 S.Ct. 1216, 59 L.Ed.2d 456 (1979); Consumers Union of United States, Inc., v. Sawhill, 525 F.2d 1068 (Temp. Emerg. Ct. of Appeals 1975); Pasco, Inc. v. Federal Energy Administration, 525 F.2d 1391 (Temp. Emerg. Ct. of Appeals 1975).

      . LSA-R.S. 31:137-141.

      . See Comment to LSA-R.S. 31:137.


author: LOTTINGER, Judge.

text:
    Loulan PITRE v. TENNECO OIL COMPANY.
    No. 13216.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Rehearing Denied July 7, 1980.

      Roger M. Evans, New Orleans, for plaintiff-appellant Loulan Pitre.
    Stanwood R. Duval, Jr., Houma, for defendant-appellee Tenneco Oil Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a possessory action involving an unfenced chunk of marsh land in the southern part of Lafourche Parish. The plaintiffs, Loulan Pitre and his siblings, appeal from an adverse trial court judgment rejecting their demand to be maintained in possession.

Loulan Pitre brought this action on November 19, 1975, claiming that the defendant, Tenneco Oil Company, had disturbed his possession of the rear three arpents of a 40 arpent tract he claims to possess as owner. (An arpent is an old French unit of measurement equaling about 192 feet.) Pi-tre averred that Tenneco, in March 1975, ran a survey and erected “No Trespassing” signs near the 37 arpent line of his property, thereby disturbing his possession of the rear three arpents. On the trial court’s sustaining of Tenneco’s exception of non-joinder of indispensable parties, Pitre amended his petition to bring in his brothers and sisters as plaintiffs or nominal defendants, since all of them own undivided interests in the property Pitre claims to possess. Both parties assert ownership of the disputed land, though the only issue is whether the Pitres are entitled to possess the property. Tenneco did not reconvene to be put in possession, but simply denied the plaintiffs’ possession.

In 1904, David Pitre, Jr. — father of the plaintiffs in this case — bought from Manuel Daigre a slender tract of land in Cut Off, Louisiana, described as:

“A certain tract of land on the right bank of the bayou Lafourche, state of Louisiana, at about forty-three (43) miles below the town of Thibodaux, measuring, one-half (V2) arpent front on said bayou by a depth of forty arpents, bounded above (formerly) by lands of Mrs. Jean M. Lom-bas, nee Celina Pierce and below (formerly) by lands of Washington Cantrelle, together with all the buildings and improvements thereon, rights, ways, privileges and advantages to said tract of land belonging.”

The deed was dated February 29, 1904, and filed in the Lafourche Parish conveyance records on March. 5, 1904. The dispute arises because the 40 arpent tract of land described in the Pitres’ deed traverses two different sections in township 18 south, range 21 east, Lafourche Parish. The front thirty-seven arpents fall within section 4. The rear three arpents in dispute fall within section 53, which partially abuts section 4 on the west.

Tenneco does not question the Pitres’ possession of the front thirty-seven arpents. The company claims, however, that the Pi-tres’ title, when traced into the past, is limited to the property in section 4 and does not cover any property in section 53, which Tenneco acquired from its ancestor in title. Tenneco’s title claims are borne out by the extensive and voluminous documentary evidence filed in the record. This evidence shows that Tenneco’s immediate ancestor in title, LaTerre Company, Inc., acquired title to all of section 53, including the three arpents in dispute, in February 1927.

The documentary evidence also shows why the forty arpents listed in the Pitre deed do not fall entirely within section 4. The northern and southern boundary lines of section 4 run in a southwesterly direction from the west bank of Bayou Lafourche to the eastern boundary of section 53. The section lines are about forty arpents in depth. Historically, however, property owners within section 4 have possessed along lines running in a more westerly direction, thereby shortening the length of their tracts within the section by some three arpents. Had the possession lines within section 4 been parallel to the section boundary lines, the Pitres would have had about forty arpents within section 4 and this dispute probably would never have arisen. But for about 76 years, the Pitres and their father have possessed the property at an angle different from the angle of the section boundary, believing themselves to be owners of a tract forty arpents in depth. They have possessed the property in good faith as owners under a deed which makes no mention of the forty arpents being limited to a particular section of land. They seek to maintain their possession by bringing this appeal.

THE PITRES’ ACTS OF POSSESSION

After buying the property in 1904, David Pitre, Jr. apparently erected a house on the front portion of the land along the high bayou ridge. Loulan Pitre was born in this house some 57 years ago and he lives in it today. Pitre testified that in years past he and his father hunted rabbits and crawfished on the marshy land beyond the bayou ridge, though neither activity proved too fruitful. Pitre’s son, Dr. Holland Pitre, said he trapped on the property when he was a child and occasionally swam across a drainage canal and walked on the three arpents in dispute.

In the late 1940’s the Pitres’ father granted a right-of-way to the Lafourche Parish Police Jury for the digging of a drainage ditch at the rear of their property. The document purporting to grant the right-of-way said the ditch would be dug “through and across” the Pitre property. The drainage ditch was dug in the early 1950’s and was located about thirty-seven arpents from the front of the Pitres’ property. Loulan Pitre testified that he and his father always believed the canal had actually been dug through their property, even though the right-of-way document also said the canal would be cut at or near the forty arpent line. It is about 12 feet in front of or east of this ditch that Tenneco erected the “No Trespassing” signs which prompted this suit. Tenneco asserts that the canal was dug under a right-of-way granted by its ancestor in title, and this assertion is borne out by the evidence. The Pitres, however, were never told that the drainage ditch had been dug under any other right-of-way but theirs, and they always believed that they owned a certain amount of property to the rear of the drainage canal.

The drainage ditch and other drainage improvements made the front 37 arpents fairly dry, but left the disputed three ar-pents wet and marshy. The Pitres conducted few if any activities on the disputed land after the canal was dug, although Dr. Holland Pitre, as noted previously, testified he occasionally trapped and swam on the disputed area as a child.

Although there were never any boundary markers or fences erected by the Pitres, Pitre said he and his neighbors had a good idea of where their boundaries were located. Pitre’s belief that he owned property beyond the drainage ditch was buttressed by the fact that he and two of his neighbors noticed “No Trespassing” signs to the rear of the canal many years ago. Only in more recent years did the signs begin appearing in front of the canal. Pitre said he noticed the signs on his neighbors’ property before any was placed on his land, but he did not feel it was his business to meddle in his neighbors’ affairs. Although Pitre saw the signs on his neighbors’ property in prior years, the first “No Trespassing” sign he says he saw on his tract was in 1973. “We chopped them down,” he said. “They were excellent tomato stakes, the 2 X 2’s were and I throw the rest in the canal or in the brush on my land.” Pitre remembered chopping down about 3 or 4 signs before filing this suit in 1975. In connection with this suit, Pitre had a linear survey conducted to determine the exact location of a forty arpent line from his eastern boundary.

Besides living in the house and walking on some of the property, the only other act of corporeal possession conducted by the Pitres in recent years was Loulan Pitre’s removal of the boundary stakes erected by Tenneco. (For a suggestion that such removal can constitute an act of corporeal possession, see Judge Marvin’s dissenting statement in Holliday v. Continental Can Company, Inc., 351 So.2d 181, 184 (La.App. 2nd Cir. 1977).) The Pitres also claimed they granted a number of mineral leases over the disputed property, but the record shows that these leases were limited to property within section 4 and did not cover the property in dispute.

TENNECO’S ACTS OF POSSESSION

Tenneco claimed that it and LaTerre Company, Inc., its ancestor in title, exercised complete dominion over the property under a title to the entirety of section 53. LaTerre employees conducted an extensive survey of a 12,500 acre tract of land which included section 53 in the late 1960’s. In connection with this survey, they located old boundary markers which had been erected by. surveying crews in the early part of this century and they erected no trespassing signs along the boundary as determined by the surveyors. Beginning around 1951, sporadically at first but with greater frequency in more recent years, LaTerre and Tenneco employees patrolled the disputed property by navigating a small boat through the drainage canal. These patrols checked for trespassers and maintained the boundary by erecting and replacing “No Trespassing” signs at varied intervals.

Tenneco and its ancestors began trapping lease activity on the disputed property in May of 1925. Since 1956 the disputed land has been trapped by Alces Pitre under a written lease with Tenneco and its ancestors. Although Alces Pitre never obtained a written lease from the Pitre plaintiffs in this case, Alces Pitre is the husband of Loulan Pitre’s cousin, and Loulan Pitre testified that he and his neighbors tacitly acquiesced in Alces’ activities for more than 50 years. “Things were hard enough,” Lou-lan explained. “Everybody let him trap. They didn’t think about leases.”

In 1952, LaTerre Company, Inc. granted a right-of-way for a natural gas pipeline across the disputed land. An underground pipeline was eventually built, apparently within a few years of the right-of-way grant. The record is unclear as to exactly when Pitre discovered the pipeline. A reasonable inference from the scarce testimony on this matter is that Pitre discovered the pipeline around 1975 when he was told of its existence by a neighbor. He and the neighbor walked to the rear of the property and pushed a pole into the ground until it struck the pipeline.

Tenneco and its ancestors granted numerous mineral leases over the disputed property beginning in 1906, and they began grazing lease activity in 1952. There was no showing at trial that any corporeal activity was conducted in connection with the mineral or grazing leases. Tenneco also contended that soil borings were taken on the disputed land, but the record shows that the soil borings were made near the disputed property and not on it.

THE TRIAL COURT’S JUDGMENT

The trial judge held that the Pitres did not have corporeal or civil possession of the disputed tract at the time of the alleged disturbance. He refused to allow the Pi-tres’ corporeal possession of the front of the tract to represent constructive possession of the whole because he felt the Pitres’ title “did not delineate ascertainable boundaries.” Alternatively, the trial judge held that even if the Pitres had constructive possession of the entire forty arpents, their possession was lost by Tenneco’s exercise of “complete dominion” over the disputed land.

The plaintiffs have appealed from this adverse trial court judgment, contending that the trial judge erred in failing to find that they were in possession of the property at the time of the disturbance and in holding that Tenneco exercised complete dominion over the property so as to bar their possessory action.

THE LAW

This action is governed primarily by La.C. C.P. art. 3658, which provides:

“To maintain the possessory action the possessor must allege and prove that:
“(1) He had possession of the immovable property or real right at the time the disturbance occurred;
“(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
“(3) The disturbance was one in fact or in law, as defined in Article 3659; and
“(4) The possessory action was instituted within a year of the disturbance.”

Although Article 3658 lists four requirements for bringing the possessory action, the battle lines are often drawn over the question posed by paragraph (2): Who has the right to possess ? This question, in turn, is often decided by a determination of whether any acts of the defendant have sufficiently interrupted the plaintiff’s possession so as to strip the plaintiff of his right to possess.

If a plaintiff proves he had the right to possess at the time of the disturbance, he has won his suit, provided the action was filed within a year of the disturbance. A plaintiff who has physical possession of immovable property but who has not acquired the right to possess cannot win a possessory action, unless evicted by force or fraud. (And there is even some question as to whether the action for eviction by force or fraud is actually a possessory action in the technical sense. See Yiannopoulous, 2 Louisiana Civil Law Treatise, Property, § 213, page 573 (2d Ed. 1980). In any event, a person evicted by force or fraud need only prove he possessed the property at the time of the forceful or fraudulent eviction; there is no need to prove he had the right to possess.)

HOW THE RIGHT IS ACQUIRED

A person acquires the right to possess immovable property by possessing the property quietly and without interruption for more than a year. La.C.C.P. art. 3658(2); La.C.C. art. 3454(2); see also La. C.C. arts. 3449(2) and 3487. The species of possession required to acquire the right to possess is either corporeal possession or civil possession preceded by the corporeal possession of the plaintiff or his ancestors in title. La.C.C.P. art. 3660. In all cases, a person must possess as owner and for himself. Thus, to acquire the right to possess, “one must combine the intention of possessing as owner with the corporeal detention of the thing.” Norton v. Addie, 337 So.2d 432, 436 (La.1976).

To determine the type of corporeal possession sufficient to achieve the right to possess or to commence the running of acquisitive prescription, Louisiana courts look to the nature of the property and the facts and circumstances of each case. Plaisance v. Collins, 365 So.2d 608 (La.App. 1st Cir. 1978). For example, the overt acts of actual possession necessary to show the corporeal detention of marsh land may not be sufficient in a given case to show the corporeal detention of timber land or farm land. A person who owns unfenced and unproductive marsh land may have a difficult time conducting any acts of corporeal possession at all on the property.

The Louisiana law of possession and the jurisprudence interpreting it also provide that a person who possesses property in good faith under a deed translative of ownership is considered to possess to the extent of his title, provided he has corporeally possessed part of the property described in the deed. In such a case, the person is considered to be in constructive possession of the entire tract. In effect, he acquires the right to possess the entire property by corporeally possessing, quietly and without interruption, a portion of the property for more than one year. La.C.C. arts. 3437, 3498; Norton v. Addie, supra; Plaisance v. Collins, supra.

Once a person shows he has possessed the property as required by law quietly and without interruption for more than a year, he has proven his right to possess. There is no need to show he acquired this right in the year immediately preceding suit, but only that he obtained the right at one time and that he has not lost it prior to the disturbance. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975).

HOW THE RIGHT IS LOST

A person loses the right to possess immovable property either voluntarily, by transferring or abandoning the property; or involuntarily, by being evicted or expelled for more than a year or by acquiescing in a third party’s usurpation of the property for more than a year. La.C.C. arts. 3447, 3448, 3449. A question often arises as to what type of activity by an adverse party will sufficiently interrupt a person’s right to possess so as to usurp his possession and strip him of his right upon passage of more than a year’s time. Not every disturbance is strong or long enough to interrupt another’s right to possess. Disturbances which do not interrupt another person’s right to possess may be challenged in court and the disturber cast for appropriate damages and other appropriate relief. But such minor disturbances will be insufficient, even if unchallenged within a year’s time, to strip the right to possess from the person who presently has that right. See Liner, supra, particularly the per curiam opinion on rehearing, 319 So.2d 778; Plaisance v. Collins, supra; Richard v. Comeaux, 260 So.2d 350 (La.App. 1st Cir. 1972); Yiannopoulous, supra, § 217, page 582; and Work of the Appellate Courts—1974-1975, Property, 36 La.L.Rev. 354 (1976).

Louisiana courts have indicated that for a disturbance to be sufficient to interrupt another’s right to possess, the disturbance must bring home to the actual possessor the realization that his dominion is being seriously challenged. Pittman v. Bourg, 179 La. 66, 153 So. 22 (1934); Souther v. Domingue, 238 So.2d 264 (La.App. 3rd Cir. 1970), writ refused 256 La. 891, 239 So. 2d 544 (1970); Hebert v. Chargois, 106 So.2d 15 (La.App. 1st Cir. 1958). In addition, the person with the right to possess must acquiesce in the interruption for more than a year without conducting any act of possession or without interfering with the usurper’s possession. La.C.C. art. 3449(2).

Our courts have also indicated that the person whose right to possess is based upon a mere constructive possession will lose his right to an adverse possessor who corporeally possesses the property in some manner. Plaisance v. Collins, supra; Norton v. Addie, supra; Robertson v. Morgan, 116 So.2d 141 (La.App. 1st Cir. 1959); Wagley v. Cross, 347 So.2d 859 (La.App. 3rd Cir. 1977). These cases suggest, perhaps, that the type of corporeal possession necessary to oust the constructive possession of another person need not be as strong as the type of corporeal possession necessary to interrupt the corporeal possession of another party.

If any single rule of law can be fashioned from the foregoing, it is that the plaintiff, to win a possessory action, must show that he at one time acquired the right to possess and that he has not lost the right prior to the disturbance. Stated another way, “possessory protection is available to anyone who has previously acquired the right to possess and did not lose it in the year immediately preceding the disturbance.” Yiannopoulous, supra, § 215, page 580; see also Tate, J., concurring in denial of rehearing in Liner, supra, 319 So.2d 779, 782. In all cases, of course, suit must be filed within a year of the disturbance. La. C.C.P. art. 3658(4). A person who proves that he had the right to possess and that he has not lost it in the year prior to the disturbance has proved, concomitantly, that he is in possession of the property as required by La.C.C.P. art. 3658(1). See Liner, supra; and Plaisance v. Collins, supra, at 612.

We have elaborated our discussion on the right to possess because this concept and the issues which surround it are paramount in the case at bar.

DID THE PITRES HAVE THE RIGHT TO POSSESS?

The facts as set forth earlier in this opinion prove unquestionably that Loulan Pitre and his siblings at one time acquired the right to possess. For at least 57 years and probably for 76 years, the Pitre family lived in the house at the front of the property, corporeally possessing at least that portion of the tract upon which the house was built. Other acts of corporeal possession were conducted on other parts of the property, including walking, hunting, crawfishing, swimming, poking for the natural gas pipeline and removing the “No Trespassing” signs.

The record is also clear that the Pitres possessed the property in good faith as owners under a title translative of ownership of a forty arpent tract of land. The title document, which is valid in form, makes no mention of section lines, townships or ranges. Under the civil code rules governing possession and the acquisitive prescription of 10 years, a person who corporeally possesses part of the property in good faith under just title (as those words are understood in our law) is considered to be in constructive possession of the entire tract as set forth in the deed. La.C.C. arts. 3437, 3498.

The chain of title under which the Pitres acquired the property, to the extent it was introduced to limit their possession, is irrelevant in this action, just as Tenneco’s chain of title is irrelevant. The whole concept of good faith acquisitive prescription connotes that the chain of title is defective in some way. La.C.C. arts. 3435, 3451, 3484, 3485. While the chain of title may be relevant to show the length of time that a party and his ancestors in title have had possession of the property, see Yiannopoulous, supra, § 212, page 566, the chains of title are irrelevant to show extent of possession. What is relevant to show extent of possession in a case in which both parties possess in good faith under just title are the individual deeds under which the parties claim to possess. In this case, the Pitres’ deed describes their property as being lh arpent wide by 40 arpents deep. They have possessed under this deed since 1904 in good faith believing themselves owners. We must hold, therefore, that the Pitres’ corporeal possession of the front portion of the 40 arpent tract was sufficient to give them at least constructive possession of the entire 40 arpents depth, and that their various acts of corporeal possession (walking, hunting, trapping, swimming) on the disputed area was sufficient to establish a civil possession preceded by corporeal possession. Since they possessed for more than a year, quietly and without interruption, their possession was sufficient to give them the right to possess the entire tract, including the three arpents in dispute.

DID THE PITRES LOSE THE RIGHT TO POSSESS?

Having found that the Pitres at one time acquired the right to possess, we must now determine whether any acts by Tenneco or its ancestors were of sufficient strength and length to interrupt the Pitres’ possession and usurp the Pitres’ right to possess. Did Tenneco conduct and did the Pitres acquiesce in any activity which was sufficient to put the Pitres on notice that their dominion was being seriously challenged?

Unquestionably, Tenneco committed a number of disturbances on the Pitres’ property, each of which would have entitled the Pitres to bring a possessory action. Tenneco’s surveying of the property in the late 1960’s and its patrols across the property through the drainage ditch amounted to disturbances in fact. But the surveying of boundaries and the marking of the boundary line were insufficient to interrupt the Pitres’ possession and usurp their right to possess. Our courts have held fairly consistently that surveying, and acts preparatory to it, are insufficient to interrupt another person’s possession. S.D. Hunter Foundation v. Board of Commissioners of the Caddo Levee District, 286 So.2d 525 (La.App. 2nd Cir. 1973); Holliday v. Continental Can Company, Inc., supra; Broussard v. Louisiana Land and Exploration Company, 164 So.2d 84 (La.App. 1st Cir. 1964), writ denied 246 La. 603, 165 So.2d 488 (La.1964); but see Olinkraft, Incorporated v. Allen, 333 So.2d 250 (La.App. 2nd Cir. 1976). Tenneco’s patrol activities were “isolated acts of a transitory nature” which were insufficient to dispossess the Pitres. See Plaisance v. Collins, supra at 616, where sporadic trapping, chicken farming, hunting and leasing a house in the vicinity were held to be insufficient acts to dispossess the plaintiff. The erection of the “No Trespassing” signs beginning in 1973 was insufficient to dispossess the Pitres, since Loulan Pitre tore them down, indicating that he was not acquiescing in this interference. In Liner, supra, the Supreme Court held that when the plaintiff blocked off a ditch cut across his property by the defendant, he appropriated the ditch for his own use. By doing so, he refused to acquiesce in this disturbance. “No Trespassing” signs are mentioned in Liner, but the opinion does not say what happened to them. By removing the “No Trespassing” signs and appropriating them to his own use, Pitre expressed his possession of the disputed property. The mere act of walking on the property and removing the signs was an act of corporeal possession.

The granting of the pipeline right-of-way and the eventual construction of an underground pipeline present a more difficult question, but we feel that these activities, too, were insufficient to interrupt the Pitres’ peaceable possession. The Pitres were not aware the pipeline had been constructed until the time this suit was filed, and they were only able to locate it by poking in the ground beyond the drainage ditch. The pipeline did not put the Pitres on notice that their possession was being seriously challenged because the pipeline was invisible. Our state Supreme Court’s opinion in Board of Commissioners of the Caddo Levee District v. S.D. Hunter Foundation, 354 So.2d 156 (La.1977) is not inap-posite to this conclusion. There, a 20 to 25 foot right-of-way was cleared for the pipeline construction and was kept clear and maintained by a grantee of the plaintiff. The court noted that the pipeline was “clearly visible” and “clearly apparent” so as to be sufficient to interrupt possession for purposes of acquisitive prescription. In the case at bar, the pipeline could be discovered only by poking a stick into the ground.

The fact that Alces Pitre trapped the disputed property under a written lease from Tenneco and without a written lease from the Pitres could, in the proper case, constitute an interruption of the right to possess. However, as noted above, Alces Pitre was related by marriage to Loulan Pitre and he trapped the land for many years with the complete acquiescence and tacit consent of Loulan Pitre and the other Pitre heirs. Therefore, we are not convinced that Alces Pitre’s trapping activities were sufficient to deprive the Pitres of their right to possess.

Tenneco’s granting of other trapping, grazing and mineral leases were disturbances in law which, under our jurisprudence, were insufficient to interrupt the Pitres’ quiet and peaceable possession. See Tate, J., concurring in Ree Corporation v. Shatter, 261 La. 502, 260 So.2d 307 (La.1972); Chauvin v. Kirchhoff, 194 So.2d 805 (La.App. 1st Cir. 1967).

We are simply not convinced that any activity conducted by Tenneco on the disputed tract interrupted the quiet and peaceable possession of the Pitre family. The Pitres possessed the property as owners and conducted a number of activities which were consistent with the marshy nature of the property in question. They never acquiesced in Tenneco’s boundary claims and they brought this action when it became apparent that Tenneco would continue to assert that the boundary was in front of the canal. We hold, therefore, that the Pitres proved they had the right to possess and they did not lose that right in the year immediately preceding this suit. They have proven the requisites for the possessory action and are entitled to be maintained in their possession.

DAMAGES

In their petition, the plaintiffs prayed not only to be maintained in possession and to require the defendant to assert the petitory action, but also for damages in the amount of $5,000.00. We feel the sum of $1,500.00 will be sufficient to compensate the plaintiffs for the inconvenience and mental anguish they have been forced to endure during this ordeal.

DECREE

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and IT IS ORDERED, ADJUDGED and DECREED that there be judgment in favor of plaintiffs recognizing their right to the possession of the immovable property described as follows:

“A certain tract of land on the right bank of the bayou Lafourche, state of Louisiana, at about forty-three (43) miles below the town of Thibodaux, measuring one-half (V¿) arpent front on said bayou by a depth of forty arpents, bounded above (formerly) by lands of Mrs. Jean M. Loni-bas, nee Celina Pierce and below (formerly) by lands of Washington Cantrelle, together with all the buildings and improvements thereon, rights, ways, privileges and advantages to said tract of land belonging.”

IT IS FURTHER ORDERED, ADJUDGED and DECREED that defendant, Tenneco Oil Company, bring a petitory action to assert any claim of ownership that it has to the above described property within sixty days after this judgment becomes ex-ecutory, or be precluded thereafter from asserting a claim of ownership thereof.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that there be judgment in favor of plaintiffs and against Tenneco Oil Company for the full sum of $1,500.00, with legal interest from date of judicial demand, and for all costs including costs of this appeal. REVERSED AND RENDERED.

      . As the property description later in the text shows, the Pitres’ deed sets forth a tract of land measuring V2 arpent by 40 arpents — a total of 20 square arpents. We will refer to the tract simply as the 40 arpent tract of land.


author: COVINGTON, Judge.

text:
    Ivy BABIN v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.
    No. 13307.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.

      Jack M. Dampf, Baton Rouge, for plaintiff-appellant Ivy Babin.
    Donald S. Zuber, Baton Rouge, for defendants-appellees St. Paul Fire & Marine Ins. Co., Steven N. Abramson, M. D., and Richard A. Streb, M. D.
    Ben Lightfoot and Roger M. Fritchie, Baton Rouge, for defendants-appellees East Ascension General Hospital and Insurance Co. of North America.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

Plaintiff, Ivy Babin, brought this suit for damages based upon the alleged malpractice of the operating general surgeon, Dr. Steven M. Abramson. Joined as defendants with Dr. Abramson were Abram-son-Streb, a professional medical corporation of which Dr. Abramson was a member, and their liability insurer, St. Paul Fire and Marine Insurance Company. The plaintiff also sued East Ascension Parish General Hospital and its liability insurer, Insurance Company of North America, for alleged negligent acts.

Following trial by jury and the response of the jury to interrogatories, verdict was entered for all defendants, denying plaintiffs claim for damages. Judgment on the verdict was signed by the trial judge. Plaintiff’s motion for new trial was denied. The plaintiff has devolutively appealed. We affirm.

A jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence, and/or its application of law is clearly erroneous. Perrin v. St. Paul Fire and Marine Insurance Company, 340 So.2d 421 (La.App. 4 Cir. 1976). In the absence of manifest error, the appellate court is not to disturb the finding of the jury which has evidence before it furnishing a reasonable factual basis for its verdict, based upon its reasonable evaluation of credibility. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973); Busby v. St. Paul Fire & Marine Insurance Company, 290 So.2d 701 (La.App. 1 Cir. 1974), writ denied, 294 So.2d 546 (La.1974).

In the instant case, the jury answered an interrogatory that Dr. Abramson’s conduct was not below the standard of care applicable to his activities.

The rule to be followed with regard to the defendant physician is that a medical specialist is required to exercise the degree of care and possess the degree of knowledge or skill ordinarily exercised and possessed by physicians within his medical specialty. The plaintiff who seeks to prove that a medical specialist failed to adhere to these standards of care or skill is not limited to expert medical testimony by witnesses practicing or familiar with the standards of care and skill within the defendant specialist’s community or locality. Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331 (La.1978).

In this suit, plaintiff claimed that on June 13, 1974, he was treated by Dr. Abramson for stomach pains and, on the same day, he was admitted to East Ascension Parish General Hospital on orders of Dr. Abramson. Plaintiff’s allegations as to defendant Abramson were that he negligently diagnosed the plaintiff’s condition as appendicitis, negligently performed the surgery, and failed to obtain informed consent for the surgery performed.

Defendant Abramson answered that the plaintiff came to him on June 12, 1974, with lower abdominal pain of several days duration. After examination, Dr. Abramson felt that Mr. Babin showed signs of early acute appendicitis and had him admitted to the hospital. During the night, Abramson remained with the patient; and as his condition appeared to deteriorate, Dr. Abram-son decided early the next morning that abdominal surgery was necessary. The doctor denied any negligence and asserted that he measured up to the appropriate standards for his profession and that he had obtained consent from the patient.

To prove the negligence of Abramson, plaintiff relied upon his own testimony, that of his wife, that of the ambulance driver who carried Babin from defendant hospital to the hospital in Baton Rouge, a nephew who visited him the day after the operation at defendant hospital, a brother-in-law who visited him the day when plaintiff was transferred to the Baton Rouge hospital, a sister who visited the patient at the same time her husband did (day of transfer to Baton Rouge), and Babin’s mother-in-law. The plaintiff also called Dr. Abramson on cross examination. The latter testified that he diagnosed the stomach pains as probable appendicitis, and the patient definitely had symptoms of a surgical abdomen; that when he made the incision, the appendix was slightly inflamed and was removed. The surgeon at that point thought that Babin had additional medical problems. He therefore explored into the abdomen, and found “a one to two inch mass, round mass, in his colon, in his large intestine, that looked like it was hard, firm, and almost appeared to be breaking through the bowel at that point.” Dr. Abramson decided that an immediate colon resection was necessary. The doctor performed a right hemi-colectomy with ileo-transverse colostomy, a surgical procedure by which a mass in the intestines is removed and the intestines sewed back together. When medical problems developed, Babin was sent to a hospital where intensive care was available.

The lay witnesses mainly testified to how Mr. Babin was feeling and his apparent condition. They had no knowledge of the surgery itself. Plaintiff offered no expert witnesses to show that Dr. Abramson was negligent in his diagnosis or in his surgical procedures. The only medical testimony was that offered by the defendants: Dr. Thomas B. Flynn, the neurological surgeon who examined the plaintiff at the Baton Rouge hospital following cardiac arrest, and who indicated it was unlikely that the plaintiff sustained brain damage at that time; and, Dr. Richard A. Streb, the general practitioner who assisted Abramson in the surgery, and who testified to the manner in which the surgeon operated on Mr. Babin.

In any event, the record does not show that Dr. Abramson was negligent. There is no evidence to indicate any deviation from the Ardoin standard of care in his diagnosis, treatment of the patient, or performance of the surgery.

The principal issue raised by appellant is whether the trial judge properly instructed the jury on the legal principles of consent and informed consent.

The jury instructions given by the trial court read as follows:

“A physician or surgeon, upon undertaking the operation or treatment, is under the duty, in the absence of an agreement limiting the service, to continue his attendance after the operation or first treatment, as long as the case requires attention.
“The consent of a patient is a prerequisite to a surgical operation and a surgeon who performs an operation without his patient’s consent, express or implied, is liable in damages for a battery. That rule extends to the performance of operations different in nature from that for which a consent was given. The rule is subject to exceptions in the event of an emergency requiring immediate action for the preservation of life or health of a patient under circumstances in which it is impossible or impracticable to obtain the patient’s consent or the consent of anyone authorized to assume such responsibility. “Express consent is not, however, always sacramental and under certain circumstances may be implied or presumed. Thus, a patient who voluntarily submits himself for treatment, relying entirely upon the surgeon’s skill and care to decide for him what shall be done, gives a general consent by implication, at least, to such operations as may, in the surgeon’s skill and professional judgment, be reasonably necessary.
“It is the nature of the patient-physician relationship that the exact agreements on the issue of consent are the exception rather than the rule.”

We have reviewed the instructions of the trial court in light of the allegations, the issues and evidence presented in the trial of this case. We find that they fairly and reasonably point up the issues presented by the pleadings and the evidence and provide correct principles of law for the jury’s application to the facts. See Lambert v. Michel, 364 So.2d 248 (La.App. 3 Cir. 1978), writ denied, 366 So.2d 917 (La.1979). We hold that the instructions given by the trial judge were proper and did not deprive the plaintiff of a meaningful jury trial, and that they enabled the jury to reach a verdict which is fully supported by the evidence and the law. Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La. App. 3 Cir. 1978), writ denied, 360 So.2d 1178 (La.1978).

Even if a surgeon is not negligent in performing the surgery, he may still be liable for damages if the surgery performed was unauthorized. The rule to be followed is that consent of a patient, express or implied, is required prior to a surgical operation, and a surgeon who operates without such consent is liable in damages, except in case of an emergency requiring immediate surgery for preservation of life or health, under circumstances in which it is impractical to obtain the consent of the patient or someone authorized to assume such responsibility. Beck v. Lovell, M. D., 361 So.2d 245 (La.App. 1 Cir. 1978), writ denied, 362 So.2d 802 (La.1978).

A corollary to the rule of consent is the informed consent doctrine. Not only must a patient consent to an operation, but such consent must be an informed consent; that is, a physician has a duty to disclose all known information material to a patient’s intelligent decision to undergo a particular operation or therapeutic procedure. The information which the physician has a duty to disclose includes the proposed diagnostic, therapeutic or surgical procedure contemplated, the material risks involved, and the alternatives, if any, available. Steele v. St. Paul Fire & Marine Insurance Company, 371 So.2d 843 (La.App. 3 Cir. 1979), writ denied, 374 So.2d 658 (La.1979); Parker v. St. Paul Fire & Marine Insurance Company, 335 So.2d 725 (La.App. 2 Cir. 1976), writ refused, 338 So.2d 700 (La.1976).

The facts show that in the early morning following plaintiff’s admission to the hospital, his condition had changed sufficiently to where Dr. Abramson felt it was necessary to proceed to surgery. In the medical records of East Ascension General Hospital, he wrote his findings on “6/13/74” as follows:

“7:30/A.M. Definite rebound tenderness present now, guarding deep tenderness. Surgery will have to be done. The whole situation is peculiar and I will do a R paramedian incision.”

Dr. Abramson felt at the time that the patient now had a “surgical abdomen,” which is an acute condition of the abdomen in which there is tenderness, pain and muscle rigidity. Thus, Abramson, on June 13, recommended surgery for the patient, but at that time he was still uncertain as to the exact situation presented by the patient. Because of the symptoms, the physician was unsure as to whether he was dealing with an acute appendicitis, leaking appendix resulting in an abscess formation or a rupture, or whether he was dealing with an appendix in an abnormal position. Hence his note “The whole situation is peculiar

Consequently, the physician decided to make a right rectus incision instead of the usual type of appendectomy incision. The purpose of this incision, as explained by Abramson, was that in case he found something other than an appendix problem, he could extend the incision readily to handle any other problems he might encounter. Dr. Abramson described in his testimony what transpired at the surgery.

“Q. Now, when you entered the wound or the opening, what — what did you find?
A. When I entered into the abdominal cavity, I got to the area of the appendix, which was — I had a small incision and the appendix looked slightly inflamed at that time. The appendix was sticking right there and I removed the appendix; however, on examination of it, I wasn’t completely convinced that this was causing all of his problems and, therefore, I had further exploration of the abdomen, examined it further.
Q. Okay. You took the appendix out at that point?
A. Yes.
Q. And then you explored?
A. Yes.
Q. Now, during your exploratory surgery, what did you find?
A. I found about a one to two inch mass, round mass, in his colon, in his large intestine, that looked like it was hard, firm, and almost appeared to be breaking through the bowel at that point.”

Dr. Abramson feared that this mass might represent a carcinoma, and thus performed resection of the colon with an end to end anastomosis.

Later a leak developed in the anastomo-sis, which resulted in Babin having a difficult post-operative course, and necessitated his transfer to the Baton Rouge General Hospital and re-operation by Dr. S. E. Field, a Baton Rouge physician. Though plaintiff had Dr. Field subpoenaed as a witness, he was not called as a witness, and the record is silent as to Dr. Field’s findings.

With regard to the consent situation, Dr. Abramson testified that he had no suspicion that the mass he found in Mr. Babin’s intestinal tract was present prior to his actually finding it after he cut Mr. Babin open. In fact, Dr. Abramson stated that this was the only time in his practice of medicine that he had ever had a situation of a mass in the colon presenting itself as “acute appendicitis,” and that this condition is very rare. Plaintiff admitted that Dr. Abramson had his consent to perform an appendectomy on him. Plaintiff raises no issue that the risks of the appendectomy were not given him, and admits he signed the consent form for surgery to “R/O (rule out) Acute Appendicitis.” The signed consent form gave Dr. Abramson permission to perform any “procedures as are considered therapeutically necessary on the basis of findings during the course of the said operation.” The hospital records, especially the admission orders, the operative consent form and “Admission and Nursing Assessment Record” indicate “possible appendicitis” was the reason for Mr. Babin’s admission to the hospital.

The question presented to the trial court on this issue was whether Dr. Abramson, upon discovery of this mass, should have performed the operation, or closed the patient, awakened him, told him what the doctor found, what the doctor suspected it was, then upon obtaining his consent to further surgery, re-anesthetized the patient and again performed the surgery. There is no evidence to show that had Dr. Abramson told Mr. Babin, under these circumstances, what the situation was, that the plaintiff would not have (nor would a reasonable man not have) consented to the surgery. Mrs. Babin did not arrive at the hospital until after the surgery began, so for all practical purposes, she was unavailable to consent to the further surgery.

Concerning the operation, Dr. Abramson testified:

“A. Following the removal of the appendix, I elected to explore or look into the — his abdominal cavity more, and upon further exploration, I found this mass in his colon and it was about a one to two inch mass, hard, firm mass that was present, and it actually was extending out as though it was — it was inflammation that seemed to be going outside the bowel, this hard mass. And at that time, because of this mass, I extended the incision to further explore the abdomen, which I did, and I felt that the possibility that this could be a carcinoma, which came to my mind very quickly, and that this was the best chance if we were going to do anything about it to do it now, that I went ahead and did a resection of this mass.
Q. All right. Could you look at that mass in the surgical field and tell for a matter of certainty what it was?
A. No, sir, I could not.
Q. What were the disadvantages at that time to just closing the patient up?
A. I don’t believe it would have been good surgical procedure to do, and several reasons are, one, that if this was a carcinoma and you did close him up, this was the best chance we would have to so call get a cure for this man, by removing this thing. Secondly, this thing—if this thing was going on to perforate, which could have burst a hole and drain into the abdominal cavity, we would have had what they call peritonitis, and you had a draining area of feces and all into the abdominal cavity. Another thing is, that to subject this man again to another anesthesia for a reoperation would be another problem that could occur, and I felt the best surgical judgment at this time was to do what I did.
Q. Dr. Abramson, we know what it is in retrospect. What would have happened had you left that cecal diverticulitis in the patient; what would have eventually happened?
A. My feeling is, the way this thing was developing and how big this mass was, and apparently getting the symptoms changed and gotten worse, there was the possibility this thing could have perforated or burst.
Q. The disadvantages of—you said that it was the best chance to get a carcinoma, why is that?
A. Because if you are going to go after a cancer, the first time you are there is the best time to get it. No telling when you are going to have another chance to do this again, whether it’s spread again, and while you are in there, if you are going to—if you are going to go after a cancer, that’s the time to do it.
Q. Doctor, have you, prior to this time, performed colon resections?
A. Yes, sir.
Q. Have you since that time performed colon resections?
A. Yes, sir.”

A physician is not required to inform the patient of a remote or rare possibility, or an event which can not be reasonably anticipated. It is not required that the physician advise the patient as to every conceivable possibility and eventuality that may stem from that physician’s treatment. Delaune v. Davis, 316 So.2d 7 (La.App. 1 Cir. 1975).

A physician’s failure to disclose a possible danger is not a breach of duty on his part in the absence of a showing that the patient’s consent would have been withheld if the patient had been informed of the danger. Percle v. St. Paul Fire and Marine Insurance Company, 349 So.2d 1289 (La. App. 1 Cir. 1977), writ denied, 350 So.2d 1218 (La.1977).

In Percle, the patient was faced with the decision of whether to undergo surgery to remove a possibly malignant growth from his face. The physician failed to disclose that there was a risk of injury to facial nerves and possibility of the severance of the parotid duct. The Court, after weighing the possible risks against the consequences of an untreated malignancy, concluded that a reasonable person aware of such a risk would have still undergone the surgery; thus, the liability of the physician was in that case based on his negligence in severing the duct; it was not grounded on any theory of lack of informed consent.

We believe that the instant case is analogous to Percle in that the plaintiff herein has not established that he would not have consented to the surgery had he been fully advised of the risks of an anastomosis.

On the question of the submission of interrogatories, the applicable provision is C.C.P. art. 1812, which provides:

“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict.
“When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers.
“When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or may return the jury for further consideration of its answers and verdict, or may order a new trial.
“When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial.”

The interrogatories given by the trial judge are as follows:

“INTERROGATORIES
“1. Was the conduct of the defendant, Dr. Abramson, below the standard of care applicable to his activities?
YES_ NO X
“2. Was the injury which plaintiff suffered caused by the conduct of the defendant, Dr. Abramson?
YES_ NO X
“3. Did plaintiff suffer damage as a result of the conduct of the defendant, Dr. Abram-son?
YES_ NO X
“4. Was the conduct of the defendant, East Ascension Parish General Hospital, Inc. below the standard of care applicable to its activities?
YES_ NO X
“5. Was the injury which plaintiff suffered caused by the conduct of the defendant, East Ascension Parish General Hospital, Inc.?
YES_ NO X
“6. Did plaintiff suffer damages as a result of the conduct of the defendant, East Ascension Parish General Hospital?
YES_ NO X
“7. What is the amount of damages?
$_”

We find that the interrogatories were proper under the circumstances of this case. The verdict and the answers to the interrogatories were harmonious. The trial judge gave adequate instructions regarding the interrogatories. The instant case is distinguishable from the case of Corceller v. Brooks, 347 So.2d 274 (La.App. 4 Cir. 1977), writ denied, 350 So.2d 1223 (La.1977), relied upon by the plaintiff. Coreeller was a legal malpractice action where the plaintiff alleged several different claims, such as negligence, termination of a franchise, injunc-tive relief, breach of contract, etc. One of the interrogatories dealt with the defendant’s negligence, and then the trial court posed the objectionable interrogatory:

“INTERROGATORY 6.
“Was plaintiff Joseph C. Coreeller, Jr. guilty of contributory negligence and/or assumption of risk?
YES X NO_
“If your answer is ‘YES,’ you will return a verdict for defendants.
“If your answer is ‘NO,’ you will return a verdict for plaintiff, Joseph C. Coreeller, Jr. and against defendants, find the amount of plaintiff’s damages and return a verdict in that amount.”

The appellate court, taking the facts and drcumstances into consideration, stated:

“Though the trial judge in his charge instructed the jury to consider plaintiff’s claims separately, the interrogatory did not define those claims to which contributory negligence and assumption of risk are responsive defenses. Absent this differentiation, the jury could not have known which of plaintiff’s claims are subject to the defense of contributory negligence and assumption of risk and which of those claims are not.”
The Court then continued:
“According to the Code of Civil Procedure and the jurisprudence, the trial judge has the discretion to submit a case to the jury on special interrogatories but is not required to do so. Nevertheless, in a matter involving a cause of action in which several claims are asserted to which different defenses are responsive, the trial judge, in order to assist the jury in its deliberation, should direct interrogatories to the jury which would allow a separate jury finding on each claim and on the defense applicable to that claim.
“Accordingly, we conclude the trial judge erred in the instant case in failing to include an interrogatory defining those claims asserted by plaintiff to which contributory negligence is a viable defense and those claims to which this defense is not applicable.”

Appellant also urges that the trial judge improperly charged the jury on the question of the liability of the defendant hospital. The record does not support this contention. The record does not reflect that counsel for plaintiff objected to the charges concerning the hospital. Haynes v. Baton Rouge General Hospital, 298 So.2d 149 (La.App. 1 Cir. 1974), writ denied, 302 So.2d 33 (La.1974). He objected to the failure of the trial court to give two special jury instructions regarding informed consent. As to the instructions given, he objected to the trial court’s charge concerning consent.

Nevertheless, we set out the trial judge’s instructions to the jury on the question of the hospital’s liability as follows:

“Now, I will instruct you on the basic standard of care applicable to the conduct of the defendant, East Ascension Parish General Hospital.
“A hospital is bound to exercise a requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and facts of the case.
“The hospital, like all other employers in our society, may be held liable for the acts of negligence committed by its employees during the exercise of the functions for which they are employed. A patient is admitted to a hospital under an obligation, owed to him by the hospital and its employees, to provide such reasonable care and attention for his safety as his mental and physical condition, as known to the defendant or its nurses or other employees, may require.
“However, a hospital is not an insurer of a patient’s safety, and the rules as to the care required are limited by the rule that no one is required to guard against or to take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen. The hospital is obligated to use reasonable care in the light of the requirements of the patient’s known condition.
“Therefore, to recover against East Ascension Parish General Hospital, the plaintiff must prove by a preponderance of the evidence:
“1. The degree of care ordinarily provided by hospitals in the area to patients having the same known medical condition as the plaintiff;
“2. That one or more employees or the defendant East Ascension General Hospital failed to provide such care.”

We find these charges are in substantial compliance with those developed by the jurisprudence. Bryant v. St. Paul Fire & Marine Insurance Company, 365 So.2d 537 (La.App. 3 Cir. 1978), writ denied, 367 So.2d 1184 (La.1979). The judge did not indicate a “community-standard” should be used to determine lack of proper care by the hospital.

Although the appellant argues in his supplemental brief that there was negligence on the part of the hospital and that the trial court erred in instructing the jury as to the proper standard of care for such an institution, the record convincingly shows that there was no liability on the part of the hospital. The only evidence presented to the jury which the plaintiff contended showed liability on its part was that the staff gave the patient sips of water and cracked ice against the doctor’s orders to give him “nothing by mouth.” In response to this evidence, the hospital presented evidence which showed that that was done when there was a stomach pump on the plaintiff which would prevent any accumulation of fluids in his stomach or abdomen, or was done after the doctor’s order had been cancelled. These issues were decided by the jury adversely to the plaintiff’s position.

We have carefully reviewed and evaluated the record, and we find that there was no negligence on the part of East Ascension General Hospital. The hospital exercised the requisite amount of care toward Ivy Babin that his particular condition required. The factual findings of the jury in determining the issues of liability of the physician and the hospital in the instant case are supported by credible evidence in the record. We have thoroughly reviewed the evidence and under the particular facts and circumstances of this case, we find no manifest error in the jury’s findings.

For the foregoing reasons, we affirm the judgment at appellant’s costs.

AFFIRMED.


text:
    Catherine SMITH v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and the Most Worshipful Prince Hall Grand Lodge, Free and Accepted Masons of Louisiana.
    No. 13271.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 1980.
    Lennie F. Perez, Baton Rouge, of counsel, for plaintiff-appellant Catherine Smith.
    Edward W. Gray, Baton Rouge, of counsel, for defendants-appellees Hartford Acc. and Indem. Co. and The Most Worshipful Prince Hall Grand Lodge, Free and Accepted Masons of Louisiana.
    Before ELLIS, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff-appellant, Mrs. Catherine Smith, filed suit against the Hartford Accident and Indemnity Company (Hartford) and The Most Worshipful Prince Hall Grand Lodge, Free and Accepted Masons of Louisiana (Lodge) seeking damages for personal injuries. From a judgment rejecting her demands and dismissing her suit with prejudice, Mrs. Smith appeals. We affirm.

On the evening of May 25, 1977, plaintiff attended a bingo game at the Temple Theater, a building owned by the Lodge, located in the 1300 block of North Boulevard in Baton Rouge. The car in which plaintiff was a passenger was parked in a lot also owned by the Lodge and adjacent to the Temple. Following the bingo game, as plaintiff was returning to her car, she stumbled over a concrete abutment, fell and suffered injuries. This action was subsequently commenced.

The Lodge’s alleged negligence consisted of:

1) failing to light the parking lot;
2) failing to paint the abutment a different color from the lot; and
3) failing to provide employees with flashlights to assist departing patrons.

The trial court found the Lodge not to have permitted an unreasonably dangerous condition to exist and, in addition also found Mrs. Smith not to have acted as a reasonable person of ordinary prudence.

On appeal, plaintiff-appellant urges the same grounds for finding the defendants negligent as were unsuccessful at trial. In addition, appellant claims that it was error for the trial court not to have admitted Carroll A. Hebert as an expert in the field of safety.

Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (1976), established that a landowner has the duty to discover any unreasonably dangerous conditions on his premises and to either correct the condition or warn potential victims of its existence.

The degree to which a danger may be observed by a potential victim, who thereby may provide self-protection, is one factor in the determination of whether the condition is unreasonably dangerous. Poe v. State Farm General Insurance Co., 360 So.2d 634 (La.App. 3rd Cir. 1978).

From a careful review of the record, it is evident that Lodge’s parking lot attendants with flashlights were present only to assist in parking cars and were not intended to provide aid for bingo patrons.

Lighting for the benefit of bingo patrons was provided by three large floodlamps which came on automatically. Nothing in the record suggests that the lights were not on at the time of plaintiff’s fall. In addition, a streetlight only forty-five feet away provided more lighting. While the parking lot was not brightly lit objects could be seen, including the concrete abutment. Rita Lands Jackson, a witness for plaintiff-appellant, testified that on looking down, the abutment could be seen (T-187). Clearly, the abutment was not an unreasonably dangerous condition.

We find, as did the trial court, that the real cause of Mrs. Smith’s injuries was her own failure to look where she was going and to walk carefully. She had been to the Temple on prior occasions and certainly knew of the conditions. The record, taken as a whole, fully supports this conclusion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

The trial court’s refusal to admit Carroll Hebert as a safety expert was proper. Mr. Hebert was simply unable to demonstrate sufficient training or experience in the field for which he sought to qualify as an expert.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Catherine Smith.

AFFIRMED.


author: HALL, Judge.

text:
    Dan Edward FORE and the Estate of Willie Fore, Plaintiffs-Appellees, v. Tollie VOLENTINE and Mahlon Volentine, Defendants-Appellants.
    No. 14152.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    Simmons & Derr by Jacque D. Derr, Winnfield, for defendants-appellants.
    Cameron C. Minard, Columbia, for plaintiffs-appellees.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Defendants-appellants, Tollie Volentine and Mahlon Volentine, appeal from judgment of the district court declaring a road running through their property to be public, ordering them to restore such road to a passable condition and ordering them to desist from further interfering with its maintenance, use, and passage. Plaintiffs-appellees, Dan Edward Fore and the heirs of Willie Fore, answer the appeal, seeking to have the judgment amended to state that the highway number of the blacktop road from which the disputed dirt road runs to the property of the appellees is Louisiana Highway No. 849 instead of Louisiana Highway No. 128 as it appears in the trial court’s judgment. Judgment was also rendered against defendant, Caldwell Parish Police Jury, but the Police Jury did not appeal.

We amend and, as amended, affirm.

The road in dispute is a rural dirt road located in Caldwell Parish, running from Louisiana Highway No. 849 across the land of appellants and others not parties to the suit, and ending on land owned by appellee. The Caldwell Parish Police Jury originally built the road with parish funds approximately 40 years ago. The police jury also constructed a creosote piling bridge at a point where the road crosses a creek and installed an 18-inch culvert. The road was regularly maintained in the manner generally associated with this type of road in that area. Maintenance included grading, “pulling” the ditches and clearing the culvert of debris. It is undisputed that the maintenance occurred at least once a year, ceasing approximately eight years prior to the filing of this suit. Approximately five years prior to the filing of this action, the Volen-tines constructed a fence across the road. In 1977 and 1978 the road was plowed and soybeans were planted in the roadbed by the Volentines’ lessee.

The trial court found that since this road was constructed by the police jury with public funds and maintained in excess of three years it was tacitly dedicated and became public by virtue of LSA-R.S. 48:491. The court further found that the road was used by the public until it was blocked by plaintiffs and had not lost its public character due to abandonment or 10-years nonusage.

Appellants specify that the trial court erred (1) in holding that there was sufficient maintenance of the road by the police jury to render the road public under the provisions of LSA-R.S. 48:491; (2) in finding that there had been public use of the road within 10 years prior to trial and in holding that the rights of the public had not been lost by nonuse under Civil Code Article 753; and (3) in finding there had not been a well-established intention on the part of the police jury to abandon the road.

The evidence establishes that the road, including a bridge and culvert, was constructed by the police jury with public funds. It was thereafter maintained for many years by the police jury in the manner customary for rural dirt roads. The annual maintenance by the police jury, particularly when considered with the fact that the road was constructed by the police jury, was sufficient to make the road a public road by tacit dedication under the provisions of LSA-R.S. 48:491. Robinson v. Beauregard Parish Police Jury, 351 So.2d 113 (La.1977); Police Jury, Parish of Catahoula v. Briggs, 291 So.2d 472 (La.App. 3d Cir. 1974); Winn Parish Police Jury v. Austin, 216 So.2d 166 (La.App. 2d Cir. 1968).

The evidence also establishes that the road was used by the public during the 10-year period prior to the time suit was filed. Appellees and members of their families used the road to get to their property. Hunters and trappers also used the road until appellants blocked the road by placing fences across it and by planting on the roadbed. One of the appellants uses a part of the road to reach the driveway to his home located a short distance from the blacktop road. The servitude acquired by the public has not been lost by 10-years prescription based on nonuse. Bell v. Tycer, 97 So.2d 448 (La.App. 1st Cir. 1957). See also Trahan v. Fontenot, 380 So.2d 1240 (La.App. 3d Cir. 1980); Strickland v. Stafford, 322 So.2d 893 (La.App. 1st Cir. 1975); Curtis v. Goebel, 101 So.2d 462 (La.App. 1st Cir. 1958).

Appellants argue that the road lost its character as a public road because there was a clear and well-established intent by the governing body to abandon the road. Appellants argue that this intent was evidenced by the fact that the police jury performed no maintenance on the road for approximately eight years, allowed the road to be fenced and planted, and did not include the road in their numbering system of public roads. Appellants cite Robinson v. Beauregard Parish Police Jury, 351 So.2d 113 (La.1977) and Starnes v. Police Jury of Rapides Parish, 27 So.2d 134 (La.App. 2d Cir. 1946).

Robinson was a tort suit arising out of an accident which happened on a bridge and the issue was whether the allegedly defective bridge was owned by the police jury. Picking up on language from the Second Circuit Starnes case, the Supreme Court held:

“Abandonment of a public road must be evidenced by (1) a formal act of revocation in accordance with R.S. 48:701, (2) relocation of the public road by the governing body, or (3) clear and well-established proof of intent by the governing body to abandon. Starnes v. Police Jury of Rapides Parish, 27 So.2d 134 (La.App. 2d Cir. 1946). Nonuse of a strip of land as a public road or street for a period in excess of ten years may also result in termination of the public use. C.C. 789; Yiannopoulos, ‘Common, Public, and Private Things in Louisiana: Civilian Tradition and Modern Practice,’ 21 La.L.Rev. 696, 736 (1961).”

Starnes was a suit by the plaintiff-landowner seeking to enjoin the police jury from using an allegedly abandoned roadway traversing his property. While the court held that the abandonment of public roads must be evidenced by clear and well-established proof of intent on the part of the governing body to abandon, the court found that the evidence in that case clearly failed to establish such intent. In the Robinson case the court likewise found the evidence did not establish an intent on the part of the governing body to abandon the bridge.

If these two cases stand for the proposition that the character of a road as a public road can be changed by an abandonment by the policy jury without compliance with statutory requirements for abandonment, without formal action by the policy jury, and without 10 years nonuse, they stand alone in Louisiana jurisprudence. Although the language of these cases supports the concept that a public road may be abandoned by a de facto abandonment of maintenance and upkeep of the road by the police jury, the context in which these holdings were made and the results in the two cases detract from the authority of the cases for that proposition.

In the instant ease there was no formal action by the police jury to abandon the public road and there was certainly no formal revocation or relocation in accordance with statutory provisions. There was no abandonment or nonuse for a period of 10 years. Accordingly, we hold that in the absence of compliance with statutory provisions, formal action by the police jury, or 10 years nonuse, the public road in question remains a public road and its use as such cannot be interfered with by the defendants whose property the road traverses. See LSA-R.S. 48:512.

Appellees point out that the trial court erred in its judgment by referring to the number of the road from which the disputed road runs to appellees’ property as state highway 128, rather than state highway 849. Appellees are correct and the judgment will be amended accordingly.

The judgment of the district court is amended to refer to the highway mentioned therein as Louisiana Highway No. 849 instead of Louisiana Highway No. 128 and, as amended, is affirmed. All costs of these proceedings are assessed to appellants.

Amended and, as amended, affirmed.

      . LSA-R.S. 48:491:
      “All roads or streets in this state that are opened, laid out or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality, or which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish or by authority of any municipal governing authority in its municipality shall be public roads or streets as the case may be. Also all roads or streets made on the front of their respective tracts of lands by individuals when the lands have their front on any of the rivers or bayous within this state shall be public roads when located outside of municipalities and shall be public streets when located inside of municipalities.”

      . LSA-C.C. Art. 753:
      “A predial servitude is extinguished by non-use for ten years.”