
    Alphonse L. BREAUX, Plaintiff-Appellee, v. Thelma A. Mitchell SIMON et al., Defendants-Appellants.
    No. 4736.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 26, 1959.
    On Rehearing May 27, 1959.
    
      Chas. C. Broussard, Sulphur, Benton & Moseley, Baton Rouge, for appellants. • ■
    Elsie May Whitman, Lake Charles, for appellee.
    Before ELLIS, LOTTINGER and FRUGÉ, JJ.
   FRUGÉ, Judge ad hoc.

This suit arises from the alleged illegal trespass of the City of Sulphur (actions as to other defendants dismissed by consent in District Court) in laying a sewer line on the property belonging to plaintiff herein, including over a predial servitude in his favor, and for resulting damages. This suit is a companion suit to Gallett v. City of Sulphur, La.App., 85 So.2d 721. From judgment in favor of plaintiff in total amount of $942, the City of Sulphur has appealed. Plaintiffs have answered this appeal, seeking an increase in the award.

By amended petition, the amount demanded by plaintiff is itemized in article 27 as follows:

“(a) Estimated cost to rebuild, including the replacing of the foundation, of the private road.$ 800.00
“(b) Estimated cost of shell to adequately cover said private road . 400.00
********* “(d) Estimated cost to re-dig drainage ditches on each side of road and correct stoppage thereof. 200.00
**.*******
“(i) Inconvenience and annoyance caused by being deprived of use of private road for approximately 15 days. 250.00
“(J) Unlawful invasion and trespass on private property and rights of petitioner in laying the said sewer line .... 1000.00
“(It) Mental distress, humiliation and vexation in using force and intimidation to enter petitioners private road against his protests and committing depredations thereon as alleged in supplemental petition herein . 1000.00
“(1) Fees of attorney for bringing and prosecuting this action, which petitioner alleges as an item of exemplary damages to which he is entitled on the facts alleged in this suit .$1000.00
Total of above damages .$4775.00“

When this .case was originally appealed to this court, we stated (Breaux v. City of Sulphur, La.App., 85 So.2d 723, 724):

"At the outset this Court must take notice of its own motion that it apparently lacks appellate jurisdiction, since the amount in dispute in this non-personal injury suit exceeds $2,000; Art. 7, § 10, La.Const, of 1921, LSA.”

We further observed that there was substantial question as to whether or not plaintiff-appellee was entitled to punitive damages as well as to claim for attorneys fees. Accordingly, we transferred the appeal to the Supreme Court of Louisiana.

The Supreme Court of Louisiana, in an opinion handed down by Justice Simon (Breaux v. Simon, 235 La. 453, 104 So.2d 168, 170) in re-transferring this case to our court, had this to say:

“It has long been the settled law in Louisiana that only compensatory damages, and not punitive damages, may be recovered in an action for tort. Spearman v. Toys Bros. Auto & Taxicab Co., 164 La. 677, 114 So. 591. * * *
“The record does not disclose any basis for attorney’s fee. On numerous occasions this Court has said that ordinarily attorney’s fees are not accessible as an item of damages unless provided for by law or by contract. The clear import of the language of the opinions is that no award of attorney’s fees can be made if not so particularly authorized. Winkler v. Ascension Bank & Trust Co., 182 La. 69, 161 So. 23; Efner v. Ketteringham, 217 La. 719, 47 So.2d 331; * * * ” (a long line of cited cases)

The above ruling by the Supreme Court had the effect of deleting all claims for damages here save and except compensatory damages.

In the companion case of Gallett v. City of Sulphur, supra [La.App., 85 So.2d 722], we disposed identical issues in saying:

“We have been favored with learned briefs, indicating diligent and able research, concerning whether the municipal sewer system was a proprietary or a governmental function, and whether the distinction is material for purposes of finding the municipality liable herein. But in our view, this matter is governed by Art. 1, § 2, La.Const. of 1921, LSA, which provides:
“ ‘No person shall be deprived of life, liberty or property, except- by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.’ (Italics ours.)
“Essentially the allegations of the petition and the proof are to the effect that without permission of the plaintiff property owner, a sewer line was laid across between 200-300 feet of his property, and certain damages were caused his property thereby. That the laying of a sewer line across an individuals’ property amounts to a ‘taking’ or -a ‘damaging’ within the constitutional prohibition is self-evident, and all the more readily seen when it is realized that this prohibition extends even to situations where use of a highway servitude denies or impedes access to the landowner’s property by lowering the grade or otherwise, State v. Dowling, 205 La. 1061, 18 So.2d 616; State ex rel. Gebelin v. Department of Highways, 200 La. 409, 8 So.2d 71; Britt v. City of Shreveport, La.App., 83 So.2d 476.
“Without considering the alleged damages sustained by laying the sewer line over the portion of plaintiff’s land subject to the right-of-way for public road purposes within the municipality, or the alleged absence or existence of a right in the municipality tó do so, we find the award of $150 damages for laying at least 225 feet of sewer line across the northern part of plaintiff’s land not manifestly erroneous.”

The district judge in discussing his finding of facts in the case, at ba r, had this to say:

“The evidence discloses that a portion of the sewerage line went over the property of plaintiff Breaux without his consent and against his wishes. Breaux testified that his private road had been cut and that some 60 yards of shell had been removed; that this road was his only way of egress and ingress and that during the rainy season he would occasionally get stuck. He estimated the costs of rebuilding the road properly at $1,000.00 — $200.00 of that amount being for rebuilding a drainage ditch and $800.00 for replacing the dirt and shelling it. Carlton Moss, testifying on behalf of Breaux, stated that he was a road contractor and that upon the specifications furnished him by Breaux, it would take $692.00 to rebuild the road with dirt and shell. The Court will allow an award of $250.00 for trespass on plaintiff’s property. There were other items listed, but the Court does not find any proof of said damages in the evidence in the record. * * *
“The Court is of the opinion that an award of $942.00 is adequate and just upon the showing made by the plaintiff Breaux, the sum of $692.00 thereof being for replacing the road and $250.00 being for illegal trespass on said property by agents of the City of Sulphur.”

Our review of the record convinces us that the award of the trial court in the sum of $692 for compensatory damages is not manifestly erroneous.

For the above and foregoing reasons, the judgment of the District Court is hereby amended so as to reduce the amount of the judgment to the sum of $692, and as thus amended, affirmed.

Amended and affirmed.

On Rehearing

Before ELLIS, LOTTINGER and TATE, JJ.

TATE, Judge.

The foregoing original opinion on the merits contains a full statement of the issues of this litigation. Rehearing was granted, limited to consideration of the award by the trial court of $250 “for trespass on plaintiff’s property.”

Both in our opinion transferring this appeal to the Supreme Court, Breaux v. City of Sulphur, La.App., 85 So.2d 723, and in bur above initial opinion on the merits we had interpreted such award to have been in the nature of punitive damages. Accordingly, we initially disallowed recovery fór this item in order to comply with the holding of the Supreme Court, in re-transferring the appeal to this court, that punitive damages are not recoverable in Louisiana. 235 La. 453, 104 So.2d 168.

Rehearing was granted, however, due to plaintiff-appellee’s earnest insistence that such award by the trial court was in the nature of compensatory rather than punitive damages. Thorough reconsideration of the pleadings and evidence herein has induced in us the conclusion that this contention of the plaintiff-appellee is correct and that therefore recovery for this item should be affirmed.

As will be seen by reference to the findings of fact of the trial court excerpted in our initial opinion, the plaintiff landowner suffered two types of damage or taking when the appellant City laid without his consent a sewer line across property owned by him in fee or by servitude: (1) The destruction of his private road about 475' in length, which was constructed upon a servitude in his favor; (2) The laying of the City’s sewer line across the west end of property owned by plaintiff in fee.

While in our original opinion above we affirmed the award of $692 (the cost of repairing the private road) which thus compensated plaintiff for the first type of damage, the deletion by us of the additional $250 award “for trespass on plaintiff’s [own} property” had the effect .of denying plaintiff any recovery at all for the taking of or damage to his own home property caused by the unauthorized construction of the sewer line across the west end thereof. In the light of the evidence in this record and the findings of the District Court, we believe that the aforesaid award was intended to compensate plaintiff for this unauthorized expropriation of his private property to public use.

Plaintiff produced evidence and a survey to prove that the sewer line was laid within and across the entire front (west) end of his property for a distance of 166 feet, at an angle commencing about 25' within his property at the south and tapering to the northwest corner. This was contradicted by a survey made by the City surveyor several months after the trespass had occurred which tended to show that the line was instead 3-10 feet west (outside) of plaintiff’s property line. We may simply state, without detailed discussion, that we find no error in the trial court’s acceptance of the plaintiff’s over the City’s survey.

The award to plaintiff of compensation for this unauthorized taking or damaging of his private property by the defendant City was therefore proper. Art. 1, Section 2, La. Constitution of 1921, LSA; Gallett v. City of Sulphur, La.App. 1 Cir., 85 So.2d 771, certiorari denied.

Further, we find no manifest error in the amount of this award. That the sum of only $150 was awarded for the unauthorized taking of a servitude for sewerage purposes across 225 feet of the landowner’s property in the companion Gallett case, above cited, whereas the greater amount of $250 is allowed for laying the sewer herein across only 166 feet, is explained by the circumstance that in the former case the sewer line was laid in a roadway subject to and restricted in use by a servitude of passage in favor of another (i.e., Breaux, the present plaintiff), whereas in the present instance the sewer line is laid across the front end of plaintiff’s home place, which is not encumbered by servitude for any other use and which otherwise would be free for the unrestricted use by its owner, the plaintiff herein. Cf., American Tel. & Tel. Co. v. East End Realty Co., 223 La. 532, 66 So.2d 327, 329.

We are unable to agree with the defendant’s contention that the Supreme Court opinion remanding this appeal to this court specifically eliminated the award in question. Not at issue for decision therein was the question of whether the present award was punitive or compensatory, and the high court’s opinion simply held that punitive damages are not recoverable and that the present record showed no basis for an increase in compensatory damages sufficient to exceed the amount necessary to confer upon it appellate jurisdiction.

For the above and foregoing reasons, our original decree herein is amended so as additionally to affirm the trial court’s award of $250 for the taking or damaging of plaintiff’s property by laying a sewer line across the west end thereof. The trial court award is thus affirmed in full.

Affirmed.  