
    NORTH LOUISIANA BUTANE GAS CO., Inc. v. HELM.
    No. 7893.
    Court of Appeal of Louisiana. Second Circuit.
    June 30, 1953.
    On Rehearing Sept. 30, 1953.
    Tooke & Tooke, Shreveport, for appellant.
    Morgan, Baker & Skeels, Shreveport, for appellee.
   HARDY, Judge.

This is a suit originally instituted by plaintiff seeking a right of passage over lands of the defendant under the authority of Article 699 et seq. of the LSA-Civil Code, and further praying for a temporary restraining order, a rule nisi for a preliminary injunction, and judgment on the merits. Appeals were requested and allowed to both parties litigant, plaintiff and defendant, but only the defendant perfected his appeal to the Supreme Court. The tribunal transferred the appeal to this court, North Louisiana Butane Gas Company, Inc. v. Helm, 222 La. 1081, 64 So.2d 438.

In the opinion ordering the appeal transferred the court set forth the details of the facts involved and the findings and judgment of the lower court, and therefore we do not deem it necessary to' 'here repeat. It suffices to say that the court determined that all questions presented by the appeal had become moot with the exception of defendant’s claims for damages in the sum of $500 in the nature of attorney’s fees, together with $100 per month for a period of nine months allegedly sustained by plaintiff’s use of the roadway ordered by the district court.

We therefore confine ourselves to a discussion of these items of damages.

It is observed that defendant did not insist upon a separate trial of his motion to dissolve but permitted the same to be consolidated with the hearing on the rule nisi, which resulted in issuance of a preliminary injunction. ' Under these circumstances we think it is clear that attorney’s fees are not allowable, Edwards v. Wiseman, 198 La. 382, 3 So.2d 661; Vinson v. Picolo, La.App., 15 So.2d 778; Hebert v. Hurwitz Mintz Furniture Co., La.App., 21 So.2d 638; G. F. C. Corp. v. Rollins, La.App., 50 So.2d 460.

On the issue of damages claimed for the use of the passageway at a rate of $100 per month from April 1, 1947 to January 1, 1948, we consider that this item was duly cared for by the judgment of the district court in which the sum of $750 was allowed defendant. Examination of the record and the testimony on this point fails to convince us that the district judge was guilty of any manifest error with respect to this allowance and, accordingly, it follows that the judgment should be affirmed. We further observe that the record is not convincing as to any specific period of time in which the use of the passageway resulted in damage.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

McINNIS, J., recused.

On Rehearing.

HARDY, Judge.

In support of application for rehearing counsel for defendant-appellant contended that our judgment on original hearing of this appeal simply affirmed the judgment appealed from which was not subject to execution. It was urged that to this extent our original judgment should be set aside and reformed.

Consideration of this proposition convinced us of the validity of the argument, and, accordingly, rehearing was granted, limited to this feature of the case. As we noted in our original opinion all questions except the claims for damages have become moot.

Accordingly the judgment appealed from is amended and it is now ordered, adjudged and decreed that there be judgment in favor of the defendant, W. T. Helm, and against the plaintiff, North Louisiana Butane Gas Company, Inc., in the full sum of $750 with interest thereon at the legal rate from date of 'October 4, 1947, until paid, together with all costs of this appeal. As thus amended the judgment from which appealed is affirmed.  