Cerniglia v. City of New Orleans

101 So. 2d 218, 234 La. 730, 1958 La. LEXIS 1140
CourtSupreme Court of Louisiana
DecidedMarch 26, 1958
Docket43548
StatusPublished
Cited by27 cases

This text of 101 So. 2d 218 (Cerniglia v. City of New Orleans) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cerniglia v. City of New Orleans, 101 So. 2d 218, 234 La. 730, 1958 La. LEXIS 1140 (La. 1958).

Opinions

FOURNET, Chief Justice.

The defendant, City of New Orleans, is appealing from a judgment of the District Court awarding to plaintiffs, Mr. and Mrs. Joseph J. Cerniglia, damages in the sum of $3,000 plus expert fees of $450 and costs, in their suit against the defendant to recover $25,000 because of alleged injury to their property on Canal Boulevard at the corner of Homedale Avenue in New Orleans, formerly operated by them as a drugstore, as the result of the construction of an underpass designed to eliminate a grade crossing of railroad tracks traversing Canal Boulevard at an angle and laid on the right-of-way of the New Orleans Terminal Company, which right-of-way is adjoined, on the Lake Pontchartrain side, by plaintiffs’ triangular lot.1 [733]*733The plaintiffs answered the appeal, asking that the amount allowed them be increased to $14,500, and that the award of expert fees and costs be affirmed.

Following trial on the merits,2 consisting principally of expert testimony by two appraisers called by the plaintiff (the defendant called no experts), who estimated, respectively, that the property had diminished in value by $14,000 and $15,000— or by approximately half its worth previous to the construction of the underpass — the trial judge concluded that although in his opinion the plaintiffs had suffered grievous damage, such damage was of a type not compensable under recent decisions of this Court, and rejected plaintiffs’ demands; however, a rehearing having been granted, upon further consideration the former judgment was annulled and set aside, and judgment was entered for plaintiffs in amount of $3,000, as stated earlier in this opinion, for the reason that “some elements of damage * * * do not fall within the doctrine of damnum absque injuria.” 3

Counsel for defendant-appellant, assigning as error the trial court’s failure to maintain the City’s exception of no cause of action or to correctly apply the rule that, damages arising from certain conditions (inconvenience, change of route of traffic, loss of rent, business, and the like) do not create a ground for legal redress, argue that the instant case fits securely and completely within the framework of the two very recent decisions of this Court wherein damages were denied, i. e., Thomas & Warner, Inc., v. City of New Orleans, 230 La. 1024, 89 So.2d 885, and Rudolph Ramelli, Inc., v. City of New Orleans, 233 La. 291, 96 So.2d 572; and contend that the injury of which the plaintiffs complain in all respects falls within the realm of “damnum absque injuria.” Counsel for plaintiffs, opposing this argument and seeking to have the award increased, rely heavily on the trial judge’s remarks and contend that it was error for him to apply, to any degree at all, the rule of Patin v. City of New Orleans, 223 La. 703, 66 So. [735]*7352d 616, and Thomas & Warner, Inc., v. City of New Orleans, supra, since neither of those decisions is controlling here because of the facts of this case.

The defendant’s exception of no cause of action, re-urged in this Court, is not well founded; the petition’s allegations recite damage unconnected with traffic diversion, inconvenience, etc., stating, for example, that ingress and egress had been cut off and that the property had been set apart and isolated; these are sufficient to state a cause of action.

The evidence, including photographs of plaintiffs’ property prior to commencement of work on the underpass in 1951, shows the very wide thoroughfare known as Canal Boulevard to have outbound and inbound traffic lanes, separated by a spacious neutral strip, with plaintiffs’ property abutting the outbound lane on the right (leading away from the City and toward Lake Pontchartrain), their building being situated some 20 feet back from the street curb, the entrance centered on the Canal Boulevard side, and a large illuminated sign extending at a right angle over the sidewalk bearing the words “Cerniglia” and “Pharmacy.” The railroad tracks were on an embankment some three feet higher than normal grade. It was possible to park a car in Canal Boulevard and step immediately onto the sidewalk in front of the drugstore; pedestrian traffic from the same (i. e., outbound) direction had to cross the railroad tracks, descend about five steps to sidewalk level (protected from the street by a retaining wall which sloped down to normal grade), and then proceed a short distance to plaintiffs’ store. Other photographs, showing the appearance of Canal Boulevard after completion of the project in early 1953, picture the underpass with the neutral strip gradually narrowed, then widened to resemble an hourglass, and the highway’s lanes brought close together to pass between the supports for the tracks at the greatest depth, then widened to occupy their original locations, with sidewalks continuing the distance of the underpass on either side of the two traffic lanes. According to the testimony, in the accomplishment of the project the grade of the railroad embankment was elevated approximately 5.4 feet, the roadway of Canal Boulevard was gradually lowered to a depth of some six feet at the lowest point, and moved away from its former location to a new curb line. The difference in elevation between normal grade and the present traffic lanes became grassy slopes, with steps about midway the rise on either side of the underpass to permit ascent to normal grade, if desired, without the necessity of walking to the end of the underpass. Steps of this type are located in front of plaintiffs’ property, leading to a paved roadway at normal grade, eighteen feet wide; which, beginning at plaintiffs’ [737]*737property line and the right-of-way and abutting the present six foot wide sidewalk in front of plaintiffs’ building, continues in front .of the subject property, crosses Homedale Avenue, passes in front of three other structures, and joins Canal Boulevard where that thoroughfare reaches normal grade. Vehicular access to plaintiffs’ property, therefore, is by a U-turn from Canal Boulevard, or by a right turn at the next intersection and a trip around the block to reach Homedale Avenue. Inbound traffic, after traversing the neutral ground at the last available passage, must of necessity take the round-the-block approach because access to Homedale Avenue across the neutral ground is no longer possible.

The continuance of plaintiffs’ business during construction work on the underpass was rendered very difficult, and following completion of the project proved to be unprofitable. The premises remained vacant for a while; then, following some interior alteration and modernization, were rented to a doctor for his professional use, and are now producing a fair market rental.

The experts were of the opinion that the value of the corner as a retail outlet had been destroyed because of the removal of Canal Boulevard to a new curb line location (the greatest distance being some 63 feet), and the loss of corner influence since Homedale Avenue no longer has a passage across the neutral ground.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Toth v. Ensco Environmental Services, Inc.
546 So. 2d 188 (Louisiana Court of Appeal, 1989)
Mini Togs Products, Inc. v. Wallace
513 So. 2d 867 (Louisiana Court of Appeal, 1987)
Jackson Court Condominiums, Inc. v. City of New Orleans
665 F. Supp. 1235 (E.D. Louisiana, 1987)
James, Robinson, Felts & Starnes v. Powell
303 So. 2d 229 (Louisiana Court of Appeal, 1974)
Department of Highways v. Capone
298 So. 2d 94 (Louisiana Court of Appeal, 1974)
State, Department of Highways v. Strickland
290 So. 2d 714 (Louisiana Court of Appeal, 1974)
State ex rel. Department of Highways v. Cangelosi
290 So. 2d 806 (Louisiana Court of Appeal, 1974)
State, Department of Highways v. Smith
272 So. 2d 746 (Louisiana Court of Appeal, 1972)
State ex rel. Department of Highways v. Carso
261 So. 2d 682 (Louisiana Court of Appeal, 1972)
State ex rel. Department of Highways v. Garrick
256 So. 2d 111 (Supreme Court of Louisiana, 1971)
State ex rel. Department of Highways v. Rivers
242 So. 2d 916 (Louisiana Court of Appeal, 1970)
State ex rel. Department of Highways v. Garrick
242 So. 2d 278 (Louisiana Court of Appeal, 1970)
Hebert v. State, Department of Highways
238 So. 2d 372 (Louisiana Court of Appeal, 1970)
Reymond v. State Ex Rel. Department of Highways
231 So. 2d 375 (Supreme Court of Louisiana, 1970)
State ex rel. Department of Highways v. Chesson
229 So. 2d 763 (Louisiana Court of Appeal, 1969)
Reymond v. State ex rel. Department of Highways
217 So. 2d 488 (Louisiana Court of Appeal, 1968)
Sterkx v. Gravity Drainage Dist. No. 1 of Rapides Par.
214 So. 2d 552 (Louisiana Court of Appeal, 1968)
Caronna v. Louisiana Department of Highways
208 So. 2d 430 (Louisiana Court of Appeal, 1968)
State, Through Department of Highways v. Terry
194 So. 2d 144 (Louisiana Court of Appeal, 1966)
City of New Orleans v. Doll
146 So. 2d 33 (Louisiana Court of Appeal, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
101 So. 2d 218, 234 La. 730, 1958 La. LEXIS 1140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cerniglia-v-city-of-new-orleans-la-1958.