Opinion
No. 1382.
April 7, 1965. Rehearing Denied April 29, 1965. Writ Refused June 8, 1965.
APPEAL FROM THIRTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON DAVIS, MINOS D. MILLER, JR., J.
Grenese R. Jackson, Jennings, for plaintiff-appellant.
Sanders, Miller, Downing, Rubin Kean, by R. Gordon Kean, Jr., Baton Rouge, John W. Hebert, Jennings, for defendant-appellee.
Before TATE, HOOD and CULPEPPER, JJ.
This is a companion suit to Miller et al. v. Colonial Pipeline Company, 173 So.2d 840, in which a separate decision is rendered by us this date.
The present case was originally filed by Albert Richard, tenant of the rice farm in question for the past five years under unrecorded leases. This tenant sought damages for the cost of releveling the entire acreage and for the value of a growing crop of rye grass which was destroyed. After defendant's exception, that the owner of the land was an indispensable party plaintiff, was sustained, Mr. Wilfred Richard, owner of the land in question, joined as plaintiff. The district judge correctly held that the tenant could not recover for the cost of releveling, and that the owner, Wilfred Richard, was the proper party plaintiff for this claim.
For the reasons set forth in our decision in the above cited companion case we affirm that portion of the lower court's judgment which overrules the exception of prescription as to the landowner's claim for the cost of releveling the rice field. This claim was properly filed within the two year prescriptive period set forth in LSA-R.S. 9:5624.
As to the claim of the tenant for loss of his crop of rye grass, the relevant facts are that during the construction of the pipeline defendant's employees tore down a fence and several horses from a neighbor's adjoining pasture entered the subject property. The horses destroyed 30 acres of rye grass, valued at $150. More than one year, but less than two years thereafter, this suit was filed.
The tenant's claim for loss of his rye grass is based solely on the negligent acts of Colonial's employees. It is a claim ex delicto and prescribed in one year under LSA-C.C. Article 3536. For the reasons set forth in our decision in the companion case, we find the two year prescriptive period provided by LSA-R.S. 9:5624 inapplicable.
On the merits the evidence is the same as in the companion case. Here 30 acres required releveling at a cost of $20 per acre, or a total of $600. The landowner is allowed to recover only one-third of this amount, i. e., $200, because the land had not been releveled, according to good farming practices, in several years.
For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff.
Affirmed.
On Application for Rehearing.
En Banc. Rehearing denied.