Blocker v. Mizell

202 So. 2d 357, 1967 La. App. LEXIS 5293
CourtLouisiana Court of Appeal
DecidedJune 30, 1967
DocketNo. 6953
StatusPublished
Cited by3 cases

This text of 202 So. 2d 357 (Blocker v. Mizell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blocker v. Mizell, 202 So. 2d 357, 1967 La. App. LEXIS 5293 (La. Ct. App. 1967).

Opinion

SARTAIN, Judge.

Plaintiff appeals from an adverse judgment in the district court denying his claim for value of improvements placed upon defendant’s land.

Defendant is the owner of a tract of land consisting of 1693.32 acres of land located [358]*358in St. Tammany Parish in what is generally known as Honey Island Swamp. The United States Government through the National Aeronautics and Space Administrar tion acquired perpetual easements of all of this property for the purpose of establishing what is commonly referred to as the “Mississippi Test Site”.

In 1960 plaintiff desired to build a small frame structure on this property, which would enable him to live there and to sell fish bait. To this end, he was introduced to defendant by a Mr. Clinton Keller, who also occupied a part of defendant’s property in the immediate vicinity of the building constructed by plaintiff. Defendant granted permission to plaintiff to construct the building. The understanding at the time of this initial conversation between plaintiff and defendant is not in serious dispute. Defendant contends that he granted plaintiff permission to construct the building with the proviso that plaintiff would remove the building from the land on request of defendant. Plaintiff contends that he requested of defendant the right to remove his improvements if he (plaintiff) desired or was ever forced to move. No compensation was to be paid by plaintiff for the use of the land.

During the early part of 1964 there appeared in the newspapers certain accounts relative to the establishment of the Mississippi Test Site. A Mr. Doty, a realty specialist with the Corps of Engineers, contacted defendant relative to the acquisition of an easement over defendant’s land. Defendant referred Mr. Doty to his attorney, Mr. Bascom Talley. Negotiations continued between Mr. Doty, representing the government and Mr. Talley representing defendant. Pursuant to these negotiations and on May 20, 1964 defendant executed in favor of the government an agreement to grant a right of permanent easement over the subject property for the agreed consideration of $16,100.00. This agreement contained the provision that persons similarly situated as plaintiff, who had constructed dwellings on defendant’s land, would be permitted to remove their improvements.

Defendant contends and argues that prior to the execution of this agreement and also thereafter, he told the plaintiff that it would be necessary for the latter to remove his improvements from the property because he was being requested to grant the easement to the government.

On September 2, 1964 the defendant executed by notarial act a Warranty Deed of Easement wherein he granted to the United States of America, a perpetual and assignable easement — consisting of the right to prohibit human habitation — together with all right, title, and interest in and to the dwellings and other buildings now situated on the land * * However, there was contained the provision that the Blocker Building could be removed on or before September 30, 1964. After this date the deed recited that the right to remove would terminate and that “The United States shall have a good and indefeasible title to the said dwellings * * Defendant again advised plaintiff it would be necessary for the latter to remove his improvements prior to the date of September 30, 1964.

On September 9, 1965, a year later, while still residing in his building, plaintiff instituted this action against the defendant contending that the plaintiff was entitled to recover the sum of $5,500.00, representing the cost of improvements placed by him on the land of defendant and for which the defendant in his sale to the government received as consideration therefor the sum of $5,500.00. This sum represents the cost of the building, plus the cost of certain other improvements including a fence, pond, and water well.

The serious dispute between the parties is whether or not defendant converted plaintiff’s improvements to his own use and received compensation therefor. The trial judge concluded that the defendant had [359]*359done neither and rendered judgment against plaintiff.

Plaintiff argues that the defendant has failed to comply with the clear provisions of LSA-C.C. Art. 508, which is the applicable law. Said article reads as follows:

“When plantations, constructions and works have been made by a third person, and with such person’s own materials, the owner of the soil has a right to keep them or to compel this person to take away or demolish the same.
If the owner requires the demolition of such works, they shall be demolished at the expense of the person who erected them, without any compensation; such person may even be sentenced to pay damages, if the case require it, for the prejudice which the owner of the soil may have sustained.
If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby.
Nevertheless, if the plantations, edifices or works have been made by a third person evicted, but not sentenced to make restitution of the fruits, because such person possessed bona fide, the owner shall not have a right to demand the demolition of the works, plantations or edifices, but he shall have his choice either to reimburse the value of the materials and the price of workmanship, or to reimburse a sum equal to the enhanced value of the soil.”

Plaintiff suggests that under the second paragraph of Art. 508, it was the duty of dental to removing plaintiff’s improvements and this he could do at plaintiff’s expense. He further suggests that to comply with LSA-Const. Art. 1, § 2, which provides 'that no person shall be deprived of life, liberty and property except by due process of law, defendant would be forced to sue plaintiff for expenses incurred inci-defendant to remove plaintiff’s improve-' ments. Further, “Plaintiff contends that he could not be deprived of his property by a simple request that he remove from defendant’s soil the improvements placed thereon.” Such contentions are without merit. What plaintiff seems to be arguing is the direct opposite of what in our opinion LSA-C.C. Art. 508 expressly provides. For this article insures due process of law in that it decrees alternatives. It does not in our opinion require that a landowner necessarily has to sue another person who has placed improvements on his land to protect himself from, being sued for failure to comply with its requirements.

It is amply clear to us that for sometime prior to May 20, 1964 through in and including the date of September 30, 1964 the defendant advised plaintiff of the necessity of the latter’s removing his improvements. It is also clear to us that the plaintiff was rather definite in his determination not to remove his improvements until he was forced to do so by the government.

A reading of Art. 508 gives to a landowner a twofold option: (1) to request the demolition of any constructions and works placed on his property by a third person and to have the same removed at no expense to the landowner; or, (2) to retain the constructions and works and if he elects to do so he owes to the owner of the materials “nothing but the reimbursement of their value and of the price of workmanship”. This article is clear in its specific terms. See Quaker Realty Co. v. Bradbury et al., 123 La.

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Cite This Page — Counsel Stack

Bluebook (online)
202 So. 2d 357, 1967 La. App. LEXIS 5293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blocker-v-mizell-lactapp-1967.