Central Louisiana Electric Co. v. Brooks

201 So. 2d 679, 1967 La. App. LEXIS 5040
CourtLouisiana Court of Appeal
DecidedJuly 27, 1967
DocketNo. 2057
StatusPublished
Cited by8 cases

This text of 201 So. 2d 679 (Central Louisiana Electric Co. v. Brooks) 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
Central Louisiana Electric Co. v. Brooks, 201 So. 2d 679, 1967 La. App. LEXIS 5040 (La. Ct. App. 1967).

Opinion

FRUGÉ, Judge.

By this expropriation suit Central Louisiana Electric Company, Inc. (Cleco) seeks to condemn a servitude across defendant’s prime agricultural land for the construction of two side-by-side electric transmission lines. The district court granted the plaintiff’s demand for the servitude, fixing the landowner’s compensation at 75% of the acreage embraced by the servitude and 15% severance damages to the remainder of the landowner’s 114 acre tract. The defendant landowner has appealed, urging on numerous grounds the reversal of the condemnor’s successful acquisition of the servitude and, alternatively, an increase in the amount of damages. Cleco, by answer to the appeal, seeks to reduce the damages granted the defendant landowner by the trial court.

The subject property is located in Rapides Parish very near the city of Alexandria, Louisiana. The property’s best and highest use (high yield agricultural) and its per-acre valuation ($750.00) are undisputed. Over this property Cleco desires to construct two parallel electric transmission lines on a single 150-foot right of way. Each line will be of standard H-frame construction and each will be designed to carry 230,000 volts of electric current. The 150-foot servitude occupies some 14.6 acres of the landowner’s 114 acre tract, and within the bounds of this servitude a total of thirty poles will be employed to support the lines in question. In addition, at three locations guy wires will extend from the poles to anchor points located outside of the expropriated strip. One of these 230 kilovolt lines will run from the existing facilities of Cleco at St. Landry, Evangeline Parish, Louisiana, to plaintiff’s substation near the community of Rapides Station, Louisiana. The second line will extend from Toledo Bend Dam, a hydroelectric project located on the Texas-Louisiana border, to the same substation at Rapides. As noted above, the trial judge rendered judgment granting the prayed for expropriation and by this appeal the landowner seeks to reverse and modify his decision. We will consider the numerous points raised by the defendant-appellant separately.

1. Lack of Good Faith Negotiation with Landowner

An expropriation suit may be dismissed as premature if the condemnor has not first negotiated with and been refused by the landowner. LSA-C.C. Art. 2627, LSA-R.S. 19:2; Texas Gas Transmission Corp. v. Pierce, 192 So.2d 561 (La.App. 3d Cir. 1966); Gulf States Utilities Co. v. Heck, 191 So.2d 761 (La.App. 1st Cir. 1966). The requirement of negotiation is met, however, if the condemnor makes a good faith attempt to acquire a conventional right of way prior to filing an expropriation suit. As noted by the trial judge in his reasons for judgment (Tr. 78), the present record contains sufficient evidence to indicate that the negotiation requirement was satisfied by Cleco’s tender through its right of way agent of several successive offers to purchase the required right of way. As did the trial judge, we regard this as sufficient good faith negotiation to reject the landowner’s contention that the out of court negotiations were inadequate. Texas Gas Transmission Corp. v. Pierce, supra. We do not view the case cited by defendant-appellant (Gulf States Utilities v. Heck, supra) as requiring efforts at conciliation other than those found [681]*681in the present instance and we therefore deny the landowner’s demand that the plaintiff’s suit be dismissed for lack of good faith negotiation.

2. Location of the Transmission Lines on Subject Property

Counsel for the landowner very forcefully attacks the location of the proposed transmission lines as being unnecessarily destructive of that portion of the subject property best suited for the production of cotton and other high income yielding crops. Under settled jurisprudential authority, however, the selection of a route by the expropriating authority or agency will not be disturbed or upset except upon showing by the party resisting the expropriation that the selection was made through fraud, bad faith or conduct or practices amounting to an abuse of the privilege of expropriation. See Texas Eastern Transmission Corp. v. Bowie Lumber Co., 176 So.2d 735 (La.App. 1st Cir. 1965); Texas Gas Transmission Corp. v. Pierce, supra; Central Louisiana Electric Co. v. Covington, 131 So.2d 369 (La.App. 1st Cir. 1961); Louisiana Power & Light Co. v. Anderson, 188 So.2d 733 (La.App. 2d Cir. 1960). And under these principles we view the expropriating authority’s decision not to parallel an existing canal on the Brooks property (but to proceed angu-larly across the defendant’s cotton field in an effort to maintain as nearly straight a route as possible) as clearly within the discretion granted Cleco and as a matter best relegated to the determination of severance damages. From a reading of the record, including testimony to the effect that the route finally selected was the third of several alternate routes surveyed across the landowner’s property, we cannot conclude that the trial judge committed error in refusing to alter the expropriating authority’s route selection.

3. Necessity of the Taking

There is no dispute as to the propriety of the taking for the purpose of constructing the St. Landry-Rapides Station line. The facts contained in the record clearly bear out the almost emergency need for additional transmission lines serving the Alexandria-Pineville area. Defendant-appellant strongly disputes, however, the necessity of the taking of additional right of way for the future construction of the Toledo Bend-Rapides Station line. Appellant correctly points out that in every expropriation case the burden of proving the public purpose and necessity of the taking rests on the expropriating authority. See Interstate Oil Pipeline Co. v. Friedman, 137 So.2d 700 (La.App. 3d Cir. 1962); United Gas Pipeline Co. v. Nezat, 136 So.2d 76 (La.App. 3d Cir. 1961) [certiorari denied] ; United Gas Pipeline Co. v. Blanchard, 149 So.2d 615 (La.App. 1st Cir. 1963) [certiorari denied]; Louisiana Railway & Navigation Co. v. Xavier Realty, 115 La. 328, 39 So. 1; LSA-C.C. Art. 497. To meet this burden, plaintiff-appellee placed its chief engineer in charge of transmission line construction on the stand and he testified that the hydroelectric plant at Toledo Bend is scheduled to go into operation in 1968 and that the line would likely be built within three years (Tr. 123). He stated that if the second line were not built within three to five years, the rapidly expanding need for electrical power in central Louisiana area could render the situation critical (Tr. 139). He further testified that due to the highly developed and improved area around the Rapides substation, the two transmission lines will parallel each other for some distance away from the Alexandria area in order to minimize the inconvenience and landowner disturbance which two separate 100-foot rights of way converging through a highly developed area and terminating in the Rapides substation would cause. It was explained that the central Louisiana area has one of the fastest growing electrical loads in the state and that the decision to construct the second line was based on a study of future area needs conducted at Texas A. & M. [682]*682University by Cleco in co-operation with several other area utility companies.

Seizing on the admitted three to five year delay (from date of trial) in construction of the Toledo Bend line, counsel for the defendant-appellant argues most persuasively.

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Bluebook (online)
201 So. 2d 679, 1967 La. App. LEXIS 5040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/central-louisiana-electric-co-v-brooks-lactapp-1967.