text:
    No. ——
    First Circuit Appeal
    S. F. ROGERS v. POLICE JURY OF EAST BATON ROUGE
    (February 18, 1925, Opinion and Decree)

      (Syllabus 5y the Editor.)

    1. Louisiana Digest — Parishes—Par. 47, 50.
    Police juries are state agencies and part of the state sovereignty, and ordinarily • are not liable for damages of any kind, except where such liability is expressly sanctioned by positive statute.
    2. Louisiana Digest — Parishes—Par. 47, 50.
    Where cattle are dipped under the supervision of the owner and not under that of any authorized agent, employee or representative of the Live Stock Sanitary Board, the owner cannot recover damages for loss of or injury to cattle from the police jury under Act No. 56 of 1918, page 85.
    (Civil 'Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    'This is a suit to recover damages for loss of and injury to cattle due to dipping in vats.
    .There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    ,H. K. Strickland, of Baton Rouge, attorney for plaintiff, appellant.
    ■J.- Fred Odom, of Baton Rouge, attorney for defendant, appellee.
   LECHE, J.

During the high water of 1922, when it was feared that the levees on the west bank of the Mississippi river, opposite Baton Rouge, might give away, owners of live stock, thus threatened by the danger of overflow, were permitted by the police jury of East Baton Rouge to cross their cattle at Baton Rouge in order to pasture them on high lands east of the river.. This movement of large quantities of cattle was sanctioned by the Louisiana State Live Stock Sanitary Board with the co-operation of the Federal Board of Animal Industry, under certain conditions and regulations designed to prevent the carrying of ticks from the west side to the east side of the river into tick-free territory. Emergency measures were adopted and made known to all cattle owners who had thus to move their cattle.

The plaintiff in the present suit, availing himself of this opportunity, crossed a herd of some 40 head, by ferry -from Port Allen to Baton Rouge, with the intention of driving same to a pasture situated some three miles northeast of the city of Baton Rouge. Plaintiff was met at the ferry landing in Baton Rouge by C. D. Warner, an agent of the Federal Burau of Animal Industry, with whom he had a conversation in the presence of Dr. E, B. Shaw, a veterinarian, also connected with the Federal Bureau of Animal Industry. In this conversation plaintiff informed Warner that he had rented the Knox pasture, wherein to put his cattle, and as there was a public dipping vát in or near that pasture, he expressed a -desire to have his cattle dipped in the Knox vat, to which request Warner consented. Warner then told plaintiff to get Rouzzan, • who was at the North Station vat, where plaintiff would have to' pass, to go and notify W. P. Sullivan, an inspector in, charge of dipping vats, who was then at the stock yards, to go and supervise the dipping of plaintiff’s cattle.

Plaintiff, with his assistants, left the Baton Rouge ferry landing and drove his cattle under the personal guidance and direction of John Smith, official inspector on behalf of the State Live Stock Sanitary Board, around and out of the city of Baton Rouge. When the herd had reached the outer limits of the city, Smith then asked plaintiff to let him see his written permit for the removal of his cattle. Plaintiff became angry and refused to show his permit to Smith, although he had such permit in his pocket. Ás a result of his ill-humor plaintiff failed to see Rouzzan and to get Sullivan to come and superintend the dipping of his cattle. He drove the herd to his home place, where he had another herd of 67 head of cattle, took dinner and then drove both herds, consisting of 107 head, to the Knox vat, where he himself superintended the dipping of the two herds. Such are the salient facts, as we gather them from the evidence.

Five head of cattle were injured and died and many others, estimated at twenty to forty, were more or less injured and burnt by the vat solution, and he now sues the police jury of East Baton Rouge parish for the damage he has thus suffered.

The District Court refused his demand and he has appealed.

Police juries are state agencies and part of the state sovereignty and ordinarily are not liable for damages of any kind except where such liability is expressly sanctioned by positive statute. King vs. Police Jury, 12 La. Ann. 858; Sherman vs. Vermilion, 51 La. Ann. 880, 25 South. 538; Bankins vs. Police Jury, 116 La. 639, 40 South. 925. But the plaintiff in this case relies upon Act 56, page 85, of 1918. That act in Section 1 provides that an owner shall be entitled to recover from a parish reasonable compensation for any live stock killed or permanently injured in the process of dipping or as a result of such dipping for the eradication of the cattle tick, “where such dipping was done under the supervision of the Live Stock Sanitary Board or its agents, employees or representatives, or where such dipping is done under the supervision and direction of inspectors employed or appointed by the police juries, etc.”

It appears to us from the undisputed fact that plaintiff dipped his cattle under his own supervision and direction and not under the supervision and direction of any authorized agent, employee or representative of the Live Stock Sanitary Board or authorized inspector of the police jury, that he has therefore failed to show liability on the part of the police jury under the plain terms of the statute upon which he relies for recovery.

Much testimony was adduced as to the cause of the injury to the cattle and that cause is more or less uncertain. It is shown that the solution in the vat was as weak in arsenic as consistent with efficacy, and it is highly probable that other conditions contributed largely, if not entirely, to the injury. It would be of little use to discuss the evidence in that regard, for it. could not avail the plaintiff . even if the’ solution was shown to have been too strong, as the absence of supervision and direction by the proper legal authority is fatal to his right «to recover.

We believe the ’ conclusions reached by our learned brother of the District Court are sustained by the law and the evidence and his judgment is therefore affirmed.


source: Caselaw Access Project

author: LECHE, J. ELLIOTT, J.

license: Public Domain

text:
    No. -
    First Circuit Appeal
    A. R. LILLEBURG v. W. J. COLEMAN
    (February 18, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 193.
    Under.Article 847 of tbe Civil Code, where two titles emanating from the same author conflict, the most ancient must prevail.
    Appeal from the Parish of West Baton Rouge, Hon. Wm. C. Carruth, Judge.
    This is a suit to recover a strip of land.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    H. K. Strickland, of Baton Rouge, attorney for plaintiff, appellant.
    J. A. Carville, of Plaquemine, attorney for defendant, appellee.
   LECHE, J.

This suit is instituted as an action in boundary. It is not shown why plaintiff adopted this form of action, as it is in reality a petitory action to recover a strip of land measuring ten feet in width by one hundred and eighty-seven feet in depth, claimed to have been bought by him as an integral part of lot two in the village of Sunrise. The form of action, however, is not questioned. Defendant owns' lot one and occupies the strip in question as forming part of lot one. Defendant’s act of purchase includes these ■ ten feet according to, the description in his deed.

Both parties acquired from the same author, plaintiff in 1919 and defendant in 1912. Defendant went into possession as soon as he acquired and the present demand was filed in December, 1919.

When defendant bought in 1912 there was nothing to prevent his author from increasing the frontage of lot one to forty feet. It is true that a plat on file in the recorder’s office clearly showed that all the adjoining lots measured forty feet front, and that it indicated in very small and obscure figures that lot one had a front of only thirty feet, but it is also true that defendant’s author then owned the adjoining property and could lawfully increase that frontage to forty feet without affecting the right of any person save his own. Defendant bought in good faith and went into possession by erecting a home on the lot and by enclosing the same. It was only seven years later that this same author then sold lot two, including ,the same ten feet, to plaintiff, and therefore defendant’s prior title must prevail. No rule in jurisprudence as to the effect of a plat deposited in the recorder’s office can offset the clear terms of Article 847, C. C., providing that where two titles emanating from the same .author conflict, the most' ancient must prevail. Minor vs. Daspit, 128 La. 33, 54 South. 413; Beattie vs. Burke, 132 La. 973, 61 South. 1000.

The judgment appealed from should be affirmed and. it is so ordered.

ELLIOTT, J.

DISSENTING OPINION

The Sunrise Realty Co. sold to defendant, William J. Coleman, by title, which purports to deliver to him: “A certain tract or lot of ground in the town .of Sunrise, being lot No. 1 of square No. 1' of said town, measuring 40 feet front by 181.57 in depth between parallel lines, as will more fully appear by reference to -.map of said town of Sunrise on- file in the clerk of court’s office of the parish of West Baton Rouge”.

And about seven years later the Sunrise Realty Co. sold to plaintiff, Arthur Roy Lilleburg, by title which purports to deliver to him, which, so far as is pertinent, may be described as: “A certain tract or lot of ground in the town of Sunrise, being lot Tío. 2 of square No. 1 of said town of Sunrise, measuring 40 feet front by - depth between parallel lines, as will more fully appear by reference to the map of said' town of Sunrise on file in the cleric of court’s office in the parish of West Baton Rouge.”

The map referred to in both titles had been made and recorded as provided for by Act 135 of 1896, previous to the sale of lot Ño. 1. The map shows that lot No. 1 measures in fact but 30 feet front, instead of 40', as stated in the title to Coleman, and that lot No. 2, sold to Lilleburg, has a front- measure of 40 feet as stated in the title' to him.

The language of the title and the proper deduction from the testimony of Coleman is that the thing sold and delivered to him was lot No. 1, according to the map — “A certain object which forms the matter of agreement.” C. C. Art. 1779, Nos. 3 and 2438.

When there is a difference between the front measure which a town lot is said to have in the act whereby it has been sold and that which it has in fact and according to a map made and recorded as provided by the law, Act 135 of 1896, “as will more fully appear by reference to map of said town of Sunrise on file in the cleric of court’s office,” etc., then the frontage measure governs which the lot has in fact and according to the map. Kirkpatrick vs. M’Millen, 14 La. 497; Puig Bros. vs. Carter, 20 La. Ann. 414; Gallaher vs. J. T. Michel, 26 La. Ann. 41; Fleming & Baldwin vs. Scott, 26 La. Ann. 545; Buisson vs. McNeil, 9 La. Ann. 445; Millikin vs. Minnis, 12 La. 539; Phelps vs. Wilson, 16 La. 185; Brown vs. Broussard, 43 La. Ann. 962, 9 South. 911; Messick vs. Mayer, 52 La. Ann. 1176, 27 South. 815; Meyer vs. Comegys, 147 La. 852, 86 South. 307; Administrators of Tulane Educational Fund vs. Stair, 148 La. 11, 86 South. 595; Favrot & Livaudais vs. Stauffer, 112 La. 158, 36 South. 307.

The law, C. C., Art. 847, “if the parties claim under simple acts of sale, and if they have acquired from a common proprietor, the preference shall be given to him whose title is the most ancient in date,” etc., cited in the opinion adopted by the majority of the court, can not, in my opinion, apply to this case, because it is not the intention of this law to prevent the recognition of errors of fact provided for in the Code; but has application to contracts in which questions of error are not a feature of the controversy.

It seems clear to me that the proper deduction from the language of the Coleman title and the testimony of Coleman as to what he intended, etc., is that the front measure of 40 feet, which lot No. 1 is said in his title to have, is an error of fact on the part of both buyer and seller. And the fact that Coleman, acting under the error, believed that his lot had a front measure of 40 feet cannot under the law create in him a title to 10 feet front from the northern side of the adjoining lot 2, when there was no' intent on the part of buyer and seller to sell or buy part of lot 2 according to the map. Intent to sell or buy part of lot 2 according to the map is negatived by the fact that the parties to the act do not mention lot 2 in the title. The fact that Coleman, acting under error and believing that his lot had a front measure of 40 feet, took possession of that frontage, is equally unavailing, Without prescription, to create in him a title to 10 feet from the northern side of the adjoining lot 2.

The fact that Sunrise Realty Co. owned at the time of selling to Coleman the 'adjoining lot 2 and could have sold him 10 feet from the northern side of same is not equivalent to doing so.

The error of the parties to the Coleman title as to the front measure comes within the terms of the law, C. C., Art. 1821. The error does not invalidate the sale. C. C., Art. 1842, and C. C., Art. 2494.

. According to the map made and recorded previous to the sale of lot 1 and with reference to which the sale was made, it is impossible for Coleman to have under his title calling for lot No. 1 more front measure than the lot has in fact. It can not be given to him except by taking 10 feet from the northern side of lot 2 and adding same to lot 1 and the courts should not do that.

Not only the above, but suppose there was allegation to the court, prayer and evidence that Sunrise Realty Co. intended to sell and Coleman to buy, in addition to lot No. 1, ten feet from the northern side of lot 2. The Coleman title does not call for any part of lot 2, therefore Lille-burg was not informed by the conveyance records that any part of lot 2 had been sold. The registry of Coleman’s title calling for lot No. 1 according to the map did not put Lilleburg, a third person, on his guard, as required by the registry, law, that the front measure which the lot was said to have could not be satisfied except by taking ten feet, or one-quarter, of lot 2 adjoining it. Consequently, under the law, Coleman’s front measure to the extent that it exceeds that proper to lot 1 according to the map is null and void as against Lilleburg, a subsequent purchaser from Sunrise Realty Co., of lot 2, with the front measure proper thereto according to the map and called for by his title. McQueen vs. Flasdick-Black Land and Lumber Co., 135 La. 708, 65 South. 900; Webster Sand, Gravel and C. Co. vs. Vicksburg, S. & P. Ry. Co., 129 La. 1096, 57 South. 529; John T. Moore P. Co. vs. Morgan’s Louisiana & T. R. & S. S. Co., 126 La. 840-841; McDuffie vs. Walker, 125 La. 153, 51 South. 100; Hutchinson vs. Rice, 109 La. 30, 33 South. 57; L. Meyer & Brother vs. Simpson, 21 La. Ann. 591; Tulane vs. Levinson, 2 La. Ann. 787; Prevost vs. Ellis, 11 Rob. 56; Duplessis vs. Boutte, 11 La. 342.

I therefore dissent and contend with respect that the judgment appealed from herein is erroneous and should be reversed and judgment rendered in favor of Lille-burg as prayed for by him.

As for Coleman, recourse against Sunrise Realty Co. should be reserved to him as to all rights he may have against them under the law.


author: CARVER, J.

text:
    No. 1819
    Second Circuit Appeal
    J. C. DAVIS, DIRECTOR GENERAL OF RAILROADS v. OIL STATE LUMBER COMPANY
    (February 20, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Reconvention—Par. 3, 18; Corporations — ;Par. 300, 301.
    Under the Code of Practice, where the Louisiana domicile of the plaintiff, a foreign corporation, is the same as that of the defendant, a reconventional demand is' not allowable unless connected, with or incidental to the main demand.
    2. Louisiana Digest — Pleading—Par. 7.-
    A motion to strike out a reconventional demand ■ filed by plaintiff corporation alleging that plaintiff had a domicile and agent in Louisiana is not inconsistent with allegation in plaintiff’s petition stating that it was corporately-organized under the laws of Missouri.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is a suit to collect a balance due on an undercharge for freight. There was a reconventional demand. Plaintiff filed a motion to strike out reconventional demand which was sustained. Defendant appealed.
    Judgment affirmed.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for plaintiff, appellee.
    Dickson and Denny, of Shreveport, attorneys for defendant, appellant.
   CARVER, J.

Plaintiff, as administrator during the war of Kansas City Southern Railway Company, sued defendant for $116.07 undercharge. He alleged that the company was a corporation organized under the laws of the state of Missouri and doing business in Louisiana, or whether it had in Louisiana any domicile or agent for service of process or not.

Defendant filed a reconventional demand for $138,000.00, whereupon plaintiff filed a motion to strike out this demand on the ground that it was not connected with or incidental to the main demand and that the railway company, though organized under the laws of the state of Missouri, had in Caddo parish, Louisiana, where this suit was filed, both a domicile and an agent for service of process.

It was admitted on trial of this motion that the railway company did have such Louisiana domicile and agent.

The District Judge at first overruled the motion to strike out, but afterwards sustained it.

Judgment went for plaintiff ' on the main demand.

Defendant appealed, but in this court urges no objection to the main demand, his sole insistence being that the reconventional demand was improperly stricken out.

In Texas & Pacific Ry. Co. vs. Chatwin, 135 La. 143, 64 South. 1017, plaintiff, stated by the court to be a foreign corporation domiciled in Dallas, Texas, but doing business in Louisiana, after having declared that its place of business in this state was in New Orleans, where it had an authorized agent on whom process might be served, sued defendant, domiciled in Caddo parish, in a court of that parish. Defendant reconvened. Plaintiff excepted to the reconventional demand, which neither grew out of the main demand nor was incidental thereto. The court held that such demand was allowable be’cause applying the provisions of Code of Practice 375 to a corporation, the corporation must be considered as residing in the parish where its chief office or place of business was located, and that in the case before it, that chief office being in New Orleans, was a different ‘parish from the parish of the defendant’s domicile, and therefore the defendant could reconvene although his demand was not incidental to or connected with the main demand.

We think the converse of the proposition equally true, namely, that where the Louisiana domicile of the plaintiff, a foreign corporation, is the same as that of the defendant, a reconventional demand is not allowable unless connected with or incidental to the main demand.

It is not contended that the Director General himself had selected any domicile or appointed any agent in the state.

Plaintiff contends, though, that the case must be considered from the standpoint of the railway company and, not the Director General, and cites the following cases in support of his contention:

Smith vs. Babcock, 260 Fed. 679.

Southern Cotton Oil Co. vs. Atlantic Coast Line Ry. Co.

Rutherford vs. Union Pacific Ry. Co., 254 Fed. 888.

Dahn vs. McAdoo, 256 Fed. 549.

Missouri Pac. Ry. Co. vs. Ault, 256 U. S.

His brief gives extracts from these cases which, if correct, seem to sustain his view. We have not examined the cases themselves because, without reference to them, we think' the contention sound, especially as it is not contested in this court by the defendant’s counsel, whose brief is confined to the claim that the motion to strike out should not have been allowed because contradictory to the pleadings of the defendant and because it changed the issues or set up new issues. We do not think, though, that it did contradict the original petition. That petition simply stated that the railway company was corporately organized under the laws of the state of Missouri. It did not state whether it had or did not have a Louisiana domicile or agent. The motion to strike out stating that it had such domicile and agent did not contradict anything in the original petition. Neither do we think that the motion changed the issues or set up any new issues. The demand propounded by the original petition was one for undercharges and remained this without being at all changed by the motion.

The decision of the lower 'court is affirmed.


author: ODOM, J.

text:
    No. 1848
    Second Circuit Appeal
    R. A. & R. B. NELSON v. R. O. ROY ET AL.
    (February 20, 1925, Opinion and Decree)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Mineral Rights— Par. 6.
    All doubts as to the meaning of an oil lease are construed against the lessee.
    2. Louisiana Digest — Obligations—Par. 81.
    Civil Code, Article 1958, provides, if the doubt or obscurity in a document arises for want of necessary explanation, which one of the parties ought to have given, the construction most favorable to the other party shall be adopted.
    3. Louisiana Digest — Mineral Rights — Par. 10.
    Where the lessee wrote an oil lease and made the stipulations for one-eighth of the oil produced and saved, and “the further consideration of one-fourth of the oil or gas produced from the first well” to go to the lessor, held, that the lessor gets three-eighths of the oil from the first well.
    Appeal from the First Judicial Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    This is a suit for the royalty on an oil well. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Foster, Hall & Smith, of Shreveport, attorneys for plaintiffs, appellees.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

On April 11, 1916, the plaintiffs granted to the defendant, R. O. Roy, an oil and gas lease on some land situated in Red River parish. The defendant, Roy, drilled a well on the land and found oil in paying quantities. The oil was delivered to the Caddo Central Oil & Refining Corporation, the other defendant in this case, which company is now holding the sum of $787.49, the proceeds of the price of all oil delivered to it, over which there is a controversy between the plaintiffs and the defendant, R. O. Roy. This' corporation has no interest in the controversy except to pay this * amount to the party adjudged to be the owner thereof. It has tendered the amount in court to be delivered to the proper party and asks to be released from further liability. There is no controversy between this defendant and either of the plaintiffs or the defendant, Roy.

This litigation is the result of a dispute between the Nelsons, as lessors of one-fourth or three-eighths of the oil produced and saved out of the first well drilled on the land. The lessors contend that under the contract of lease they are entitled to receive three-eighths of the oil out of the first well, and the lessee contends that they are entitled to only one-fourth.

The suit, therefore, involves the interpretation of the lease contract insofar as royalties are concerned.

The lease contract, insofar as the same need be quoted, reads as follows:

“That R. B. Nelson and R. A. Nelson 1 * * in consideration of the sum of one dollar and further considerations named below, paid by R. O. Roy, * * * the receipt of which is hereby acknowledged, and the further consideration hereinafter mentioned, has granted, bargained, sold and conveyed, * * * unto the party of the second part * * * all of the oil and gas in and under the following described land,

(Here follow various clauses setting forth the lessee’s right to drill the land, to lay pipe lines, etc., etc.)

“* * * Reserving, however, to the party of the first part the equal one-eighth (1-8) of all oil produced and saved upon the premises, to be delivered in gauge tanks on the premises, free of cost to first party. * * * To have and to hold * * * on the following conditions: In case operations for the drilling of a well for oil or gas are not commenced and prosecuted With due diligence within one month from this date, then this grant shall immediately become ipso facto null and void as to both parties; * * *”

The lessee assumes no obligation to drill, but the contract provides that the consideration paid in cash and the other obligations assumed by the grantee shall be held to support and sustain the contract.

At the end of the contract is the following sentence:

“The further consideration referred to above is obligation of second party to deliver to first party one-fourth of all oil or gas produced from the first well bored free of charge in first party’s storage tank or in pipe line to which well may be connected.”

It will be noted that the last sentence quoted refers only to oil and gas taken from the first well drilled.

Parol testimony was introduced to explain the meaning of the contract insofar as it deals with the pro rata of oil and gas which the lessors were to receive from' the first well.

Mr. R. A. Nelson, one of the lessors, says that it was understood that they were to get one-eighth of the oil and gas from all the wells drilled on the property covered by the lease and that inasmuch as the lessee did not want to pay a cash bonus for the lease of 160 acres he was willing to give in lieu of a cash bonus an additional one-fourth of the gas and oil from the first well. He says the matter was fully discussed on the streets of Shreveport by him, his brother and Mr. Roy, the lessee, and that an agreement to this effect was finally reached.

R. B. Nelson, the other lessor, says:

“The one-fourth was in place of the bonus. Mr. Roy stated at the time that he did not care to pay for a lease. Money was scarce and he would rather give an interest in the well, that is, for the 160 acres, and would give one-fourth additional of an additional consideration.”

In other words, it was the understanding that they were to get one-eighth of the oil and gas from all wells, including the first one, and that inasmuch as the lessee paid no cash bonus or rental they were to get an additional one-fourth from the first well drilled in lieu thereof.

On the contrary, Roy, the lessee, as a witness in his own behalf, says that the, last sentence in the contract which provides that the “obligation of the second party to deliver to first party one-fourth of all oil or gas produced from the first well” was intended to cover the total royalty the lessors were to receive from the first well; that is, that it was never intended that they should receive one-eighth part of the oil and gas mentioned in the first part of the contract plus the one-fourth part mentioned in the last sentence.

As stated already, the first well was & producer and all the oil was delivered to. the Caddo Central Oil and Refining Corporation, the other defendant, and one-fourth of the proceeds thereof was paid to’ the plaintiffs, but inasmuch as there is a controversy over the question of ownership of thé one-eighth thereof between plaintiffs and Roy said corporation refuses to pay the proceeds of the one-eighth to either.

Plaintiffs have sued to recover the pro-, ceeds of the one-eighth in this suit.

Referring again to the testimony of the witnesses, it will be noted that plaintiffs say that there was no cash bonus or rental paid for the lease and that in lieu thereto the lessee was to give one-fourth of the oil and gas from the first well and, in! fact, otherwise this was an ordinary oil and gas lease.

On the contrary, Roy claims that while the contract covering the 160 acres on which this well was drilled does not recite a cash consideration or bonus, yet, as a matter of fact, there was a cash bonus paid and he explains as follows: These plaintiffs owned 320 acres which they leased to the defendant, Roy, under two separate lease contracts, each contract covering 160 acres. The contract covering the 160 acres drilled on is as stated herein; the contract covering the other 160 acres recited that a cash rental or bonus of $8000.00 was paid. Roy says that the $8000.00 stipulated in the other lease contract was in fact paid for the lease of the entire 320 acres, including the 160 drilled on, and that the reason for having tile other lease show the consideration for both is that the Nelsons had other lands i that vicinity which they wanted to lease and that , a recital of such a consideration for 160 acres would help them market their other leases.

It will thus be seen that Roy contradicts plaintiffs as to the consideration of the leases.

If the testimony of these witnesses was all we had to guide us we could well say that the preponderance of the testimony is in favor of the plaintiffs and decide the case in their favor.

Turning to the contract itself we find that in its general terms it is an ordinary oil and gas lease contract which contains • terms and conditions similar if not identical with the Form 9 lease used generally in this territory.

Under the general terms thereof the lessee acquired the right and privilege of mining for oil and gas on the, land of the lessors and of reducing to possession and ownership those minerals found under the surface with the following reservation: “Reserving, however, to the party of the first part the equal one-eighth (1-8) of all oil produced and saved upon the premises.”

This clause is in the body of the lease and is one usually found in such contracts.

Roy, the lessee, says in his testimony that he was paying, from twenty-eight thousand dollars for the drilling of wells in that territory, and we may therefore, we think, assume that he is an experienced operator and must have been familiar with lease contracts in general. Besides, .he says he wrote the contract in controversy so that we know he was familiar with its terms. He wrote into the contract the clause by which the lessors reserved to themselves the ownership' of the equal one-eighth part of all the oil which the lessee had the privilege of, reducing to possession.

The lessee, as a witness, says:

“Yes, sir, but I agreed to give an additional one-eighth' or a one-fourth on the second lease where no money was paid.”

If in fact he had intended to give an additional one-eighth how easy it would have been to say so.

He wrote into the .contract, “in consideration of the sum of one dollar and further considerations named below * * * and further consideration hereinafter mentioned;” and further on in the contract, after inserting the granting clause and the various usual stipulations as to rights of way for pipe lines, etc., .he inserted this clause:

“Reserving, however, to the party of the first part the equal one-eighth (1-8) of all oil produced and saved upon the premises;” and at the very end of the contract he writes into it this:
“The further consideration referred to above is the obligation of the second party to deliver to first party one-fourth of all oil or gas produced from the first well.”

Defendant says that the further consideration was an additional one-eighth of the oil from the first well. But he did not write that into the contract. When he wrote into it the explanation of what the further consideration was he said it was “to deliver to the first party one-fourth of all the oil or gas produced from the first well.”

Every contract of this kind must have a consideration to support it. The usual consideration which a lessee gives for the privilege of exploring for oil on the property • of a lessor is the cash bonus, the drilling of the land and the payment of the royalty reserved by the lessor.

But this contract is out of the ordinary. There are “further considerations” which are explained in the contract to be “one-fourth of all oil or gas produced from the first well.” •

It is hardly probable that the defendant, when he inserted this sentence in this contract overlooked the fact that the lessors had reserved to themselves the ownership of the usual one-eighth of the oil extracted from the land, which, of course, would apply as well to the first as to other wells.

According to our interpretation of the contract the lessee should deliver to. the lessors not only the one-eighth of the oil reserved by them but, in addition thereto, the one-fourth thereof.

All doubts as to the meaning of a lease of this kind are construed against the lessee.

Reeves vs. Gulf Frg. Co., 133 La. 179, 62 South. 623.

Civil Code, Article 1958, provides, if the doubt or obscurity in a document arise for want of necessary explanation which one of the parties ought to have given, the construction most favorable to the other party shall be adopted.

The defendant wrote this lease contract. If its meaning is obscure he has but himself to blame.

The amount in dispute is $787.49, the proceeds of the sale of the one-eighth of the oil extracted in a given time. The judgment of the low'er court is in favor of the plaintiff for that amount.

Not finding any error in the judgment appealed from, it is therefore accordingly affirmed.


text:
    No. 1877
    Second Circuit Appeal
    AUTO ELECTRIC COMPANY v. J. V WILKINSON
    (Feb. 20, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — New Trial — Par. 27.
    In view of Code of Practice, Articles 560 and 561, where before judgment signed defendant filed motion for new trial ■ showing relevant and important newly-discovered evidence supported by proper affidavit, he is entitled to a new trial.
    Appeal from City Court, City of Shreveport Louisiana, Hon. David B. Samuels, Judge.
    REYNOLDS, J.
    Action to recover $258.10 for repair work on an automobile.
    Defendant denies liability on the ground that the charges are excessive and that the work was not done in a workmanlike manner.
    Before the judgment was signed defendant filed motion for a new trial on the ground of newly discovered evidence and the same was denied. Defendant appealed.
    Reversed and remanded.
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    Herndon & Herndon, of Shreveport, attorneys for defendant, appellant.
   In this case .there was judgment for the plaintiff. Before the judgment was signed the defendant filed a motion for new trial on the ground of newly discovered evidence and set up fully what the evidence was and gave the name of the witness by whom it could prove said newly discovered facts.

The evidence, we think, is relevant and important.

Defendant supported his application for new trail by proper affidavit.

We think the judge erred in refusing the new trial.

The affidavit in support of the application for new trial brings the defendant within the articles of the Code of Practice which provides for such relief.

Code of Practice, 560, 561.

Stone vs. Rose, 2 La. Ann. 225.

Robinson vs. Howell, 22 La. Ann. 524.

It is therefore ordered that the judgment be set aside and that this case be remanded for a new trial.

It is further ordered that the appellee pay the costs of this appeal.


text:
    No. 1905
    Second Circuit Appeal
    MRS. FRANK SMITH v. DR. H. L. CROW
    (Feb. 20, 1925, Opinon and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 4, 4a, 7.
    In a collision between an automobile and motorcycle, where it is proven that the automobile was on the right side of the road or bridge where the accident happened and that the motorcycle' skidded into the automobile, thus injuring the motorcycle rider, held that the automobile driver was' not negligent and the motorcycle rider was negligent.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court in matters of fact, namely, as to who .was negligent in a collision between an automobile and motorcycle being manifestly correct is affirmed.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Bossier. Hon. T. F. Bell, Judge.
    This is a damage suit for personal injuries arising out of a collision between an automobile and motorcycle.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Murff & Mabry, of Shreveport, attorneys for plaintiff, appellant.
    Foster, Looney & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   CARVER, J.

The plaintiff, on behalf of her minor son, sues for damages for personal injuries received by him when the motor cycle, on which he was riding, collided with an automobile owned and driven by the defendant. She alleges that the injury was caused by the negligence of the defendant in driving too fast and on the wrong side of the street or bridge where the collision occurred.

The defense is a denial of negligence and a plea of contributory negligence.

The boy, 16 years old at the time of the occurrence and about 18 at the time of giving his testimony, states, substantially that he was coming from Bossier City to Shreveport on the bridge at 10:30 or 11:00 o’clock on a dark and rainy night and when about ten feet from the intersection of the bridge with Lake street where is a right angle curve he saw Dr. Crow’s automobile coming at about 20 miles an hour; that he, himself was going about ten miles an hour, that he was about three feet from the curb on his right; that he had lights on his motorcycle; that Dr. Crow was about three and a half feet from the curb on his, Crow’s left; that Crow did not signal; that Crow made a sharp turn around the curve that when he saw Crow was going to hit 'him he threw on his brakes, which made . his motorcycle skid and he was struck by the bumper of Crow’s automobile on his right leg. He further says he was knocked about three feet before he stopped and that the automobile ran over his leg.

When asked:

“A. The doctor stopped his car immediately?
“A. It kind of skidded up to me.
“Q. Kind of skidded up to you?
“A. Yes, sir, about three feet.”

He further states that where the accident occurred was about ten feet from Lake street, just as he was starting on the curve and that the bridge or street inclined downward towards the street.

He was asked these questions:

“Q. Do you remember stating to her (meaning Miss Mary Hodges) that the doctor had passed the pay station and that there was a little curve in the bridge that shifted his light down the river and that that was the reason that you got on the wrong side of the bridge?
“A. I did not get on the wrong side.
“Q. Don’t you remember telling her that that caused you to leave your side of the bridge?
“A. No, sir.
“Q. Don’t you remember telling her that if you had known as much about that bridge as they that the' accident would never have occurred?
“A. I did not tell her that.
“Q. You didn’t tell her about how the accident happened?
“A. No, sir.
“Q. Is it not a fact that you told Miss Mary Hodges at the hospital that you were not familiar with the bridge and when the doctor’s light shifted that you thought the car was in a different place?
“A. I made no statement to Miss Hodges.”

There are two curves, the one mentioned by the plaintiff’s son and another one some two hundred feet or more further on the bridge' towards the Bossier side, the latter being much less abrupt than the other one.

There are also two pay stations on the bridge, the first one of which is about thirty yards towards the Bossier side from the sharp curve; the other one being about one hundred or more yards further.

Dr. Crow states that the accident happened “between the two pay stations, about 100 yards, I suppose from the pay station where the curve comes around, just about where the railway trains pass under the bridge”.

He gives the following account of the accident.

“A. It was a very dark night and we had — I was driving up going around the curve after I had my toll and as I was coming around that curve I noticed a light in front of me, — very dim. It looked like a light that you sometimes see on a wagon at night. — it was such a dim light that I could not tell what it was. I saw it coming but it was twelve or fourteen feet away and I could not tell what the light was. When it got within about eight feet from me— about eight or ten feet from me I saw then that it was a mortorcycle, I could see the boy’s head. The boy had his head over he didn’t appear to have seen anything. When he got within about four feet of the car he turned sharply to his. left and his right leg hit the corner of my bumper. The boy was thrown on the right side of my car and just beyond him was the motorcycle. The car didn’t run .over the boy’s body and I hardly touched him. I had thrown on my brakes and the car was practically at a standstil when the boy ran into me. He had no brakes and if he saw me he made no sign because he had his head down and 'didn’t seem to be paying attention to anything.
“Q. Were you on your right hand side of the bridge?
“A. Yes, sir.
“Q. How fast were you driving?
“A. I had just shifted the gear, — ten or twelve miles per hour.
“Q. You were between the pay stations on the bridge?
“A. Yes, sir.
“Q. Then he was in error in saying that the accident happened down near the foot of the bridge near the curve?
“A. From what that boy tells from where the accident occurred — it must be two hundred (200) steps from where the accident occurred.' The accident was not on the street but between the two pay stations.
“Q. And the bridge curves between the two pay stations?
“A. Yes, sir.
“Q. Now, you were in that curve when the accident happened?
“A. Yes, sir.
“Q. You had just shifted your gear?
“A. I had gotten through shifting and had thrown my car into high.
“Q. Now, Dr. Crow, you saw him and applied the brakes?
“A. Yes, sir.”
By Mr. Murff: “Don’t lead the witness.”
By Mr. Wilkinson.
“Q. That is what he said a while ago?
“A. I threw on my brakes just as soon as I saw what it was. The boy came forward and turned his motorcycle sharply to the left. He had on no brakes and made no attempt to stop, at all, and if he had even raised his right leg it would not have been hurt at all. His mortorcycle went far and my car didn’t move at all from the time that we hit. When I got out of the car he was lying in front; as Miss Hodges stepped out of the car he was lying in front of the wheel. She was on the front seat. The motorcycle was lying up against — up most on the curb on the right side of the brhtge, — up next to the side rail.
“Q. Your car stood there at that same point until you put him in the car and took him to the‘sanitarium?
“A. Yes, sir.

He further states that while his car was stopped at the scene of the accident, three cars passed going toward the Bossier side passing to his left.

It will thus be seen that there was a wide variance between the versions given by the principal participants, not only as to the manner but as to the place of the accident.

■ The boy was not corrborated by any witness to the affair, but plaintiff and two other witnesses testify to certain admissions made by Dr. Crow.

The plaintiff says:

“Q. How did he say it occurred?
“A. He said that is was his fault; that when he turned the curve so quick he didn’t think of anything coming from 'the bridge at that time of night. I positively asked him if it was my boy’s fault and he said no that it was his fault.
• “Q. Why was it his fault?
“A. Because he was on the wrong side of the bridge.
. “Q. Bridge?
“A. Road, as he was coming up the curve.”

H. B. Weimer who, together with J. E. Bowen, was rooming at plaintiff’s house, testifies as follows:

. “Q. What did he say was the cause of it?
“A. He said, that as far as the boy was - concerned that he was within his right. The ‘ conversation came up this way. Mrs. Williams said, when she was told that her boy got hurt, she said, I have been afraid of this all along that the boy would get hurt on the motorcycle. Whoever was talking said ‘Mrs. Williams, I don’t think he is seriously hurt, and anyway it wasn’t his fault that he was hurt he was on the right side of the road or in his rights.
“Q. What was said about this man being on the wrong side of the road?
“A. I din’t remember that he said anything about being on the wrong side; he said the boy was within his rights.”

Bowen testified:

“A. Well, Mrs. Williams started to crying said it was ‘Teddie’, — that is what she called him, — said it was ‘Teddie’ and she come on out. I went on back to my bed and she talked with him. The doctor s-'ys, Don’t blame the boy’, says ‘It isn’t his fault’. He said it was an accident on his own part when he turned- — when he made the turn to come around the bridge. It was in the sharp turn in the street and' he kept to the wrong side of the street.”

Bowen further testified, that on the day after the accident he went down to the bridge to examine the locus in quo and that at 40 or 50 feet from the sharp turn he saw marks that proved to be blood stains on the bridge and also marks where the mortorcycle had been dragged and that these marks were about four feet from the left hand side.

He further testified, that it had rained fairly hard the night before.

In the car with Dr. Crow were Leroy Horton, a distant cousin of his, Miss Alma Garland, who subsequently married this Horton, Miss Mary Hodges and a Miss Hamiter, the first three of whom corroborate, with more or less certainty, the version given by Dr. Crow in respect of his being on the right side of the road or'bridge; as to the place of the accident; as to the speed at which he was traveling; and as to the cars passing them on their left, while their car was halted.

Dr. Crow denies emphatically making the statements ascribed to him by the plaintiff, Bowen and Weimer. Leroy Horton states that he heard all that passed between Dr. Crow and the plaintiff and corroborates Dr. Crow in his denial. Miss Hamiter though summoned by denfendant as a was on the front seat. The motorcycle the record does not show. She was present at the conversation between Dr. Crow and the plaintiff, but Mrs. Horton and Miss Hodges were too far away to hear this conversation.

Like' the district judge, we attach no importance to the signs, discovered by Bowen which he took to be blood stains and scratches made by dragging the motorcycle. These were forty or fifty feet from the place located by the boy as the scene of the accident from which place he says he was knocked only about three feet; but we are satisfied that the accident occurred not where the boy places it but at the second curve which is still further from the signs.

As to the admissions claimed to have been made by Dr. Crow, it is sufficient to say that the law regards this as the weakest species of evidence. That the second curve from the Caddo side was the place of the accident is shown by the testimony not only of Dr. Crow but also of Horton (page 88) Mrs. Horton (pages 114-115) and Miss Hodges (pages 102-103).

Horton says:

“Just about this curve — angle or whatever you call it on this bridge.”
. “Q. Had you passed, the first pay station?
“A. Yes, sir.
“Q. Did you pay toll?
“A. Yes, sir.”

Mrs. Horton says:

“Yes, sir, I know that we stopped and paid toll and then came on and we were just — you know the bridge turns when you are just at the top straight on the plane on the bridge and you know the bridge comes up and then it is flat and we were just at the top of the bridge.”

Further (page 115):

“Q. You are sure that you had passed the toll house?
“A. I know it, positively.
“Q. You know positively that you had passed the first toll house?
“A. Yes, sir.”

Miss Hodges says:

“Q. At what point on the bridge did the accident happen?
“A. Almost on the level of the bridge.
“Q. You had passed the first toll station?
“A. Yes, sir.
“Q. Had you paid your toll?
“A. Yes, sir.”

She says, further:

“Q. Does that represent about where the accident happened?
“A. Yes, sir. I could not swear exactly because before hand I didn’t know all of those details and after the accident really I think that is about the 'place. I don’t know the exact point but it was almost on the level of the bridge.”

Counsel construes this answer as showing uncertainty as to the place of the accident; but while it does show uncertainty as to the precise point all the witnesses agree it was at a curve and the witness is not uncertain as to having paid toll, and if correct about this it makes her answer certain that it was the second and not the first curve.

Plaintiff’s counsel correctly argues, though, that the place of the accident is not so important as is the manner of it. Much more important are the questions, whether Dr. Crow was going fast or slow and whether on the right or left side of the bridge.

Horton states (page 88) that the speed limit was 10 miles an hour and that Dr. .Crow was not exceeding it.

Mrs. Horton says (page 117) that Dr. Crow was going rather slowly.

Miss Hodges says (page 104) “Not very fast, — I don’t suppose over ten miles.”

That he was going slowly is further shown by the testimony as to his stopping quickly. Both Miss Hodges (page 104) and Mrs. Horton (page 117) say they think he stopped instantly. These three witnesses are .equally clear that Dr. Crow was on the right side of the bridge.

Horton says (page 90):

“Q. Are you positive, Mr. Horton, that young Williams was on the wrong side of the bridge?
“A. Yes, sir, it' could not be any other way. We didn’t move the car. We picked him up and cars passed us on our left after we stopped.”

These cars were going from Shreveport to Bossier City.”

He further says that when stopped the car’s right front wheel was three feet from the curb of the bridge on the right hand side.

Mrs. Horton says that Dr. Crow’s car, when finally stopped was not right up against the side of the banister of the bridge but that there was enough room for cars to pass (meaning on the left). She thinks it was less than four or five feet.

Miss Hodges says (page 104):

“He wasn’t on the extreme right; he was on the right of the bridge, all right, but he wasn’t jamb to the banister.”

Miss Hodges having her attention centered on the boy did not notice whether the cars passed to the right or left, but her answers taken as a whole show that the car was close to the right hand side and that they could have passed only on the left.

The testimony of these witnesses satisfies us that Dr. Crow was on the right hand side of the bridge and that he was not going very fast. The testimony is c^nfliciting as to whether the bridge was well lighted or not. All parties agree that the accident happened just at a curve and the weight of the testimony showing that it was at the second curve just about the end of the incline and where the bridge becomes level, it seems to us the parties were not approaching each other head on until a very short distance before the actual collision but were approaching at an angle. Crow’s light while coming up the incline would have passed over the boy until they got pretty close together even if coming head on; if approaching at an angle though as we think must have been the case, their lights would cross, until both reached the curve.

Respecting the statement of Miss Hodges about which the boy was • asked, she says:

“Q. Did he (the boy) make a statement at the sanitarium as to how the accident occurred?
“A. No, sir, he only discussed the accident. The only thing he told me was that he didn’t know the curve on the bridge as well as we did and that if he had known — he saw our light shining straight ahead — he did not know that the curve was as much as it was; that was the thing that dazed him and he thought that he could go straight ahead.
“Q. Did he tell you that?
“A. He says that he doesn’t remember it.
“Q. You remember him saying it?
“A. Yes, sir, I remember it and I am sorry that he does not remember it.”

The District Judge inspected the locus in quo and gave a written opinion which shows that he carefully weighed and considered the evidence. Having heard and seen the witnesses with some or all of whom he is probably acquainted, he is in a better position to judge the credibility and weight of the testimony than we are.

Considering that the burden of proof is on plaintiff; that her son’s version has so little corroboration and the defendant’s so much, we are not prepared to say that there was manifest error in the decision of the lower court in adopting the defendant's version; and if this version is correct, we agree with that court that the accident happened through the negligence of the plantiff’s son and not through the defendant.

Plaintiff’s counsel argues that even if the boy was negligent, yet the plaintiff should recover "because, as he says Dr. Crow had the last clear chance. Under his version of the affair, though, we do not think he did have such chance, and that doctrine, therefore, has no application.

The decision of the lower court is affirmed.


author: CARVER, J,

text:
    No. 1985.
    Second Circuit Appeal.
    L. C. BIGGS ET AL. v. MARY M. FURNISH ET AL.
    (Feb. 20, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Taxation—Par. 336, 341, 377, 378.
    Where an answer in a suit attacking a tax sale was filed more than eleven years after registry of that sale, a plea of prescription established by Article 232 of the Constitution of 1898, continued in the Constitution of 1921, will be sustained.
    Appeal from Second Judicial District Court of Louisiana, Parish of Bossier, Hon. Robert Roberts, Jr., Judge.
    This suit is brought against the heirs of J. W. Catlett for damages alleging that they are claiming property received by the plaintiff in a petition suit* and slandering plaintiff’s title thereto. In their answer the defendants attacked a tax sale on the ground that the assessment was in the wrong name to the knowledge of the tax purchaser. To this the plaintiffs filed a plea of prescription of three years and another a plea of estoppel. There was judgment for plaintiff sustaining the plea of prescription but in favor of defendant annulling the partition. The defandtns appealed.
    Judgment affirmed.
    Foster, Looney and Wilkinson, of Shreveport, attorneys for plaintiff, appellee.
    Drew and Drew, of Minden, attorneys for defendants, appellants.
   CARVER, J,

On June 17, 1911, W. H. Scanland and J. Er Biggs bought from the Tax Collector of Bossier parish for the taxes of 1910 assessed to Felix Dixon an undivided one-third interest in east half of west half and west half of northeast quarter of Section 27, Township 19 North, Range 11 West, receiving therefor the usual deed, which was recorded on June 22, 1911.

At that time the whole of the tract belonged to one J. W. Catlett.

In 1921 plaintiff, the heirs of said Scan-land and Biggs, had a partition with Mary E. Catlett (alleged in the petition to be the widow of J. W. Catlett and his sole legatee respecting the land involved herein), plaintiffs’ taking part of the land and Mrs. Catlett the rest.

The suit is brought against the children and sole legal heirs of J. W. Catlett for $300.00 damages on the allegation that defendants are claiming the property received by plaintiff in said partiton and slandering plaintiffs’ title thereto.

Defendants, in their answer, attack the partition on grounds not necessary to mention and also attack the tax sale on the ground that the assessment was in the name of Dixon although the property belonged to Catlett to the knowledge of the tax purchaser whose acquisition of the same, they allege, was- an attempt to defraud their ancestor. They also ask for damages.

Plaintiffs filed a plea of prescription of three years, and also a plea of estoppel.

The district judge rendered judgment in favor of the plaintiffs, sustaining the plea of prescription but in favor of defendants annulling the partition and decreed the property to belong in division one-third to plaintiffs and two-thirds to defendants.

Defendants appeal, but the plaintiffs do not nor do they ask any amendment of the judgment.

Defendants do not allege that they are or have been since the date of the tax sale in possession of the property, and by praying to be sent into possession they inferentially concede that they are not.

The answer attacking the tax sale was filed in 1922 — more than eleven years after the registry of that sale. The district judge decided correctly, we think, in sustaining the plea of prescription established by Article 233 of the Constitution of 1898, which article was continued in the Constitution of 1921 with a change still more favorable to tax sales.

See Terry vs. Heisen, 115 La. 1070, 40 South. 461, and cases therein cited.

Also Winn Parish Bank vs. White Sulphur Lumber Co., 133 La. 282, 62 South. 907.

The judgment of the lower court is affirmed.