STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-666
DELHI PLANTATION, LLC, ET AL
VERSUS
FIFTH LOUISIANA LEVEE DISTRICT, ET AL
**********
APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 50997 HONORABLE KATHY A. JOHNSON, DISTRICT JUDGE
SHARON DARVILLE WILSON JUDGE
Court composed of Elizabeth A. Pickett, Sharon Darville Wilson, and Charles G. Fitzgerald, Judges.
REVERSED AND RENDERED. V. Russell Purvis Bradley Burget SMITH, TALIAFERRO & PURVIS ATTORNEYS AT LAW P.O. Box 298 Jonesville, LA 71343 (318) 339-8526 COUNSEL FOR PLAINTIFFS/APPELLEES: Delhi Plantation, LLC Allred Land Company, Inc. Richard Calvin Alwood
Patrick B. McIntire OATS & MARINO Gordon Square, Suite 400 100 East Vermilion Street Lafayette, LA 70501 (337) 233-1100 COUNSEL FOR DEFENDANT/APPELLANT: State of Louisiana Department of Transportation and Development
John D. Crigler, Jr. James E. Paxton BISHOP, PAXTON, CRIGLER & MOBERLEY, APLC P.O. Box 97 St. Joseph, LA 71366 (318) 766-4892 COUNSEL FOR DEFENDANT/APPELLANT: Fifth Louisiana Levee District WILSON, Judge.
This case concerns the appropriation of a portion of land owned by
members of the Alwood family (Plaintiffs), by the Board of Commissioners Fifth
Louisiana Levee District (the Levee Board) for a project to raise and strengthen the
levee in Concordia Parish along the Mississippi River. The central issue is whether
the properties used for the project were non-compensable batture pursuant to
La.Const. art. 6 § 42 and what damages are owed to Plaintiffs. After a five-day
bench trial, the trial court rendered a judgment in favor of Plaintiffs. Defendants,
the Levee Board and the Louisiana Department of Transportation and Development
(DOTD), now appeal. For the reasons expressed below, we reverse the judgment of
the trial court and render judgment in favor of Plaintiffs in the amounts expressed
below.
I.
ISSUES
In this appeal, we must decide:
(1) whether the trial court erred in finding the properties were not subject to the levee servitude and that the Levee Board acquired no rights by appropriation;
(2) whether the trial court erred in accepting Dr. Suhayda’s calculation of batture and in finding that none of the properties contained batture;
(3) whether the trial court erred in allowing compensation for borrow pit excavation by the cubic yard;
(4) whether the trial court erred in awarding damages for lost CRP payments;
(5) whether the trial court erred in the calculation of the acreage taken for berms; (6) whether the trial court erred in awarding damages for severance value or “loss of access” to a portion of the properties; and
(7) whether the trial court erred in failing to dismiss DOTD.
II.
FACTS AND PROCEDURAL HISTORY
The three plaintiffs are all members of the Alwood family and own
approximately nine hundred and eighty acres along the Mississippi River in
Concordia Parish. The mainline Mississippi River Levee runs through the
properties. Allred Land Company, Inc. is owned by John Alwood; Delhi Plantation,
LLC is owned by the children and grandchildren of Carolyn Alwood; and the
remainder of the properties are owned by Richard Alwood.
The Levee Board sent letters to the Alwoods on April 6, 2015, notifying
them that resolutions of appropriation had been passed on February 18, 2015, and
the Levee Board had adopted resolutions of appropriation of Alwood lands for a
project titled Flood Control/Mississippi River & Tributaries, West Bank Mississippi
River Levees, Waterproof to Upper Lake Concordia, Louisiana, Levee Enlargement
and Berms, Item 374-R (the project) on April 6, 2015. The purpose of the project
was to expand the existing levee. The project was managed by the Corps of
Engineers, and much of the dirt for raising and strengthening the levee was
excavated from Plaintiffs’ properties in the form of borrow pits. Ryan McMillin of
the DOTD performed a batture analysis to calculate how much of the borrow pit was
in the batture. The Levee Board then retained an appraiser, Gregg Wilbanks, Jr., to
value the properties taken.
2 On March 8, 2016, the Levee Board informed plaintiffs that the
appraisals had been done by a DOTD approved appraiser. The appraisals consisted
of permanent and temporary servitudes. The Levee Board submitted offer letters to
each plaintiff, offering to pay the appraised value for the properties taken, though no
compensation was offered for what DOTD determined was batture. The Levee
Board made the following offers:
Delhi Plantation, LLC—$66, 288.00
Allred Land Co.—$22, 062.00
Richard Alwood—$69, 709.00
Plaintiffs refused to accept the offers and filed suit against the Levee
Board for compensation on October 4, 2017. Plaintiffs also named the Louisiana
Department of Natural Resources (DNR) as a defendant. On April 23, 2018, DNR
filed a motion for summary judgment seeking dismissal. On June 5, 2018, Plaintiffs
filed a first amended and supplemental petition for damages substituting DOTD in
place of DNR. DNR’s motion for summary judgment was decreed moot.
A bench trial was conducted beginning on September 20, 2021. Trial
continued September 21, 23, 24, and December 10, 2021. At the conclusion of trial,
the trial court took the matter under advisement. On July 20, 2022, the trial court
rendered judgment in favor of Plaintiffs. The trial court found that the properties
were not subject to the levee servitude and that none of the land was batture. The
trial court then awarded each plaintiff compensation for:
1. The value of the dirt excavated from the borrow pit, priced by the
cubic yard;
2. The value of lost Conservation Reserve Program (CRP) payments;
3. The value of the land taken on the river side of the levee;
3 4. The value of the land taken for berm construction on the protected
side of the levee; and
5. Severance damage for land on the river side of the levee for which
access was cut off.
Richard Alwood was awarded $686,511.21; Delhi Plantation was awarded
$940,995.88; and Allred Land Company was awarded $292,833.86. The total
amount awarded was $1,920,340.95. Defendants now appeal.
III.
STANDARD OF REVIEW
In its written reasons for judgment, the trial court notes that this case
presents a classic battle of the experts that was resolved by the trier of fact through
factual findings and credibility determinations. It is well settled that a court of appeal
may not set aside a trial court’s finding of fact in absence of manifest error or unless
it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Ordinarily, questions
of expert credibility are for the trier of fact, “unless the stated reasons of the expert
are patently unsound.” Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990).
However, when the trial court applies incorrect principles of law, and
such error materially affects the outcome and deprives a party of substantial rights,
a prejudicial legal error has occurred. Evans v. Lungrin, 97-541 (La. 2/6/98), 708
So.2d 731. “[W]here one or more trial court legal errors interdict the fact-finding
process, the manifest error standard is no longer applicable, and, if the record is
otherwise complete, the appellate court should make its own independent de novo
review of the record and determine a preponderance of the evidence.” Id. at 735.
The factual findings in this case required conformity with the requirements set out
in DeSambourg v. Bd. of Comm'rs for Grand Prairie Levee Dist., 621 So.2d 602
4 (La.1993). In the instant case, we find that the trial court misunderstood the
requirements set out by the Louisiana Supreme Court in DeSambourg and this legal
error resulted in erroneous factual findings that require a de novo review by this
court.
IV.
LAW AND DISCUSSION
LEVEE SERVITUDE
In their first assignment of error, Defendants assert that the trial court
erred in finding that the properties were not subject to the levee servitude, and that
the Levee Board had acquired no rights by appropriation. In its written reasons for
judgment, the trial court held, “The Court as shown hereafter finds that the Alwood
lands did not constitute batture and are not subject to the levee servitude. As such
the appropriation by the Levee Board was a wrongful illegal taking and no servitude
was acquired by the Levee Board.” The trial court then goes on to discuss the legal
requirements for the determination of batture. The trial court appears to have
conflated the issue of whether the levee servitude applied with the issue of whether
the land taken was non-compensable batture.
Louisiana Civil Code article 665 provides,
Servitudes imposed for the public or common utility relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers and for the making and repairing of levees, roads, and other public or common works. Such servitudes also exist on property necessary for the building of levees and other water control structures on the alignment approved by the U.S. Army Corps of Engineers as provided by law, including the repairing of hurricane protection levees.
All that relates to this kind of servitude is determined by laws or particular regulations.
5 “In Louisiana, title to riparian lands fronting on navigable rivers is
subject to the superior right of the public's legal servitude for the making and
repairing of levees, roads and other public and common works.” DeSambourg, 621
So.2d at 606. “It applies to those lands that were riparian when separated from the
public domain, and when the levee is necessary for the control of flood waters from
the river to which the land taken is riparian.” Id. at 607. In this case, the parties
stipulated that the properties were riparian when separated from the sovereign and
remained riparian when appropriated. Moreover, Mr. Mayeaux, a professional
surveyor recognized as an expert, testified without contradiction that the properties
have always been riparian to the Mississippi River. Riparian land may be subject to
the levee servitude without consisting of batture. This is reflected in La.R.S.
38:301(C) which provides, in pertinent part,
(1)(a) All lands, exclusive of batture, and improvements hereafter actually taken, used, damaged, or destroyed for levee or levee drainage purposes shall be paid for at fair market value to the full extent of the loss.
(b)(i) The owner shall be given written notice of the appropriating resolution by the levee board within ten days of the date of its passage.
Thus, it is apparent that riparian land may be subject to appropriation
under the levee servitude although it does not constitute batture. Accordingly, it was
legal error for the trial court to determine that the appropriation was illegal, and the
levee servitude did not apply because the land was not batture.
BATTURE CALCULATION
In their second assignment of error, Defendants assert that the trial court
erred in accepting Dr. Suhayda’s calculation of batture and in finding that none of
the properties contained batture. As previously noted, batture land is exempted from
6 the need for compensation when taken for levee purposes. Louisiana Constitution
Article 6 § 42 provides that “lands and improvements thereon hereafter actually used
or destroyed for levees or levee drainage purposes shall be paid for as provided by
law.” It then goes on to state, “[h]owever, nothing contained in this Paragraph with
respect to compensation for lands and improvements shall apply to batture or to
property the control of which is vested in the state or any political subdivision for
the purpose of commerce.” As such, the determination of batture is critical in this
case and lays at the heart of Defendants’ appeal.
Louisiana Revised Statutes 38: 281 (1) provides, “‘Batture’ shall have
the same meaning as that term was defined by the courts of this state as of the
effective date of the Constitution of Louisiana.” The Louisiana Supreme Court set
out to define the term batture for purposes of the batture exemption and approve a
method for determining batture in the seminal case of DeSambourg, 621 So.2d 602.
In DeSambourg, the court reviewed relevant jurisprudence and
determined that “[i]n the context of the batture exemption from compensation,
‘batture’ is alluvial accretions annually covered by ‘ordinary high water,’ the highest
stage the river can be expected to reach annually in seasons of high water.” Id. at
604. The court further specified that “‘[o]rdinary high water’, then, is the highest
water stage the river can be expected to reach annually, but not the level the water
reaches during major flood events, i.e., reaches “on several occasions in periods of
extraordinary high water during the last half of the century.’” Id. at 611. The court
reasoned:
this definition, derived from pre–1974 jurisprudence, peacefully coexists with the purpose of the batture exemption, as it exposes a sufficient land surface for the exemption to be practicably utilized. A more restrictive meaning of ordinary high water would threaten the social
7 utility of the exemption, as well as emasculating its practical purpose. Id.
After defining the term batture, the court determined that “the method
used for determining mean high water, the highest stage reached by the river
approximately every year[,]” is an appropriate method for determining ordinary high
water. Id. at 613. “It is consistent with the methodology accepted by this court for
determining ordinary low water. See Esso Standard Oil Co. v. Jones, 98 So.2d at
242. Likewise, the corollary method is acceptable for determining the level of
ordinary high water.” Id.
All parties agree that the DeSambourg protocol is the appropriate
method to determine the ordinary high-water mark and whether the land constitutes
batture in this case. The Plaintiffs argued, and the trial court agreed, that Plaintiffs’
expert, Dr. Suhayda, was the only witness who followed the DeSambourg protocol.
After reviewing Dr. Suhayda’s report and testimony, it appears that Dr. Suhayda
misunderstood the requirements of DeSambourg. Dr. Suhayda testified that batture
must be found in the riverbed or main channel of the river. He asserted that under
DeSambourg, there is no batture on the floodplain, and as such, he excluded data
from any year when the water was above 65 feet, the elevation of the floodplain. In
total, he excluded thirty of the fifty-four years used in the dataset. This is not the
protocol established in DeSambourg, and the trial court erred in holding that Dr.
Suhayda was the only expert to follow DeSambourg.
The court in DeSambourg never limits batture to the riverbed or main
channel of the river. In fact, the court specifically rejected the method of
determining batture by the physical characteristics of the bank stating that the
8 “theory that the upper boundary of batture must be determined by the physical
characteristics of ordinary high water on the bank, is inharmonious and discordant
with Louisiana’s jurisprudential definition of batture.” Id. at 612. Instead, the court
determined that the method used for determining mean high water by the defense
experts was appropriate for determining ordinary high water.
Contrary to the assertions of Dr. Suhayda, DeSambourg makes no
mention of excluding data from the mean calculation; rather, the court excludes “the
level water reaches during major flood events” and “periods of extraordinary high
water” from the definition of ordinary high water. Id. at 611. The court concluded
that using the mean “reflected the normal behavior of the river without consideration
of unusually high or low annual readings.” Id. at 613. This is because, by nature of
using a mean calculation, the unusually low and high readings balance each other
out to come up with the average. In the DeSambourg case, the trial court accepted
the defense’s theory that “the upper boundary of batture is the equivalent of mean
high water and is determined by reviewing the statistics on the elevations the river
usually reaches annually over a sufficient period of time.” Id. at 605. The supreme
court held that this method was the acceptable approach for finding batture.
In excluding every year that the high water entered the flood plain, Dr.
Suhayda veered away from the approach approved in DeSambourg. Of the fifty-
four years of data available, Dr. Suhayda excluded thirty. The purpose of using the
mean is to determine the ordinary high water i.e. the level the water is expected to
reach annually. If the water levels enter the floodplain more often than not, it cannot
be said that such levels are extraordinary or represent a major flood event. In fact,
entering the flood plain can be expected. By excluding the thirty highest years of
water levels, Dr. Suhayda’s mean calculation only included twenty-four years of
9 data and his calculation of the ordinary high-water mark was artificially low at 61
feet. This in turn resulted in a finding that none of the property contained batture.
However, because Dr. Suhayda misunderstood the law as provided in DeSambourg,
he did not follow the proper protocol for determining ordinary high water, and the
trial court erred in accepting Dr. Suhayda’s calculation of batture.
The trial court’s acceptance of Dr. Suhayda’s batture calculation was a
legal error and, as such, we will now review the record de novo to determine the
proper calculation of batture. The defendants put on three different witnesses who
testified concerning batture. Mr. Ryan McMillin, the DOTD engineer, testified that
he determined batture by calculating the elevation at which it would flood 70% of
the time. This approach is clearly not in line with DeSambourg. Mr. McMillin
admitted that he was unaware of the DeSambourg decision and Defendants do not
argue that the approach used by Mr. McMillin was correct. Accordingly, Mr.
McMillin’s ordinary high-water calculation of 64 feet is rejected by this court.
Similarly, Mr. Michael Mayeux testified that he calculated the ordinary
high water by cutting off any annual high at the flood stage of 65.28 feet and using
instead a value that was 1/100 of a foot below that level (65.27 feet) in his calculation
of the mean. This approach resulted in a mean annual high of 65.4 feet. By altering
the numbers used, however, Mr. Mayeux also veered away from the protocol
established in DeSambourg, and his calculation is also rejected.
A review of the record reveals that Dr. Richard Kessel was the only
witness who accurately followed DeSambourg in his approach. Dr. Kessel testified
that he calculated the batture by adding up the annual high-water data from the
Natchez and Vicksburg gauges and dividing to calculate the mean at those locations.
He also mentioned that he throws out the highest number from his calculation. This
10 is the same approach used in DeSambourg. In fact, Dr. Kesel testified that he
testified in the DeSambourg case, and it was his method that was approved by the
Dr. Kesel also testified in Biglane v. Bd. of Commissioners, Fifth
Louisiana Levee Dist., 18-100 (La.App. 3 Cir. 6/19/17), 256 So.3d 1052, writ
denied, 18-1767 (La. 1/8/19), 260 So.3d 588. Plaintiffs argue that Dr. Kesel’s
testimony should be rejected in this case because in calculating the mean he excluded
a different year than he did in the Biglane case. Dr. Kesel explained that when he
calculates a mean, he always excludes the highest number. Trial in the Biglane case
began in 2009 and included the years 1960-2008 in its dataset. As such, in that case
he excluded the year 1973 because it was the highest year in that dataset. In the
present case, the data covered the years 1960-2013 and the highest annual high water
recorded was not in 1973, but in 2011. Consequently, using his method of excluding
the highest year only, he excluded the year 2011. Although the numbers varied from
the Biglane case, it is clear that Dr. Kesel used the same method that was approved
in both DeSambourg and Biglane.
Plaintiffs point out that Dr. Kesel admitted to making a mistake in his
calculation; however, that error was minor. Dr. Kesel testified that, when changing
his data between computer programs, he accidently input fifty-two units of data
when it should have been fifty-three. This error resulted in a mean high water of 69
feet. The mistake was acknowledged, and Dr. Kesel submitted a revised final report
using fifty-three units of data and rendering a mean high-water elevation of 68 feet.
We find that because Dr. Kesel was the only witness to follow the DeSambourg
protocol, his calculation of batture is correct, and we will use it to determine the
appropriate measure of compensation.
11 Plaintiffs also argue that Dr. Kesel’s calculation should be rejected
because it was based on his determination of the slope of the river while Dr. Suhayda
based his calculation on the gauge placed on the river adjacent to the Alwood
properties. The DeSambourg protocol requires the use of annual high-water
readings over a sufficient period of time. Unfortunately, there is no historical data
for the precise location of the subject property.
The nearest Corps of Engineer’s gauge is located 11 miles downstream
at Natchez. To determine the ordinary high water at the location, Dr. Kesel
determined the ordinary high at the Natchez gauge (64.6 feet) and the ordinary high
at the Vicksburg gauge (87.1 feet) which is 72 miles upstream from the Natchez
gauge. Using those numbers, he determined that the river has an average slope
between Natchez and Vicksburg of .31 feet per river mile. He then interpolated the
ordinary high water at the properties by multiplying the distance from the Natchez
gauge (11 miles) by the slope (.31 ft/mile) and adding that number (3.4 feet) to the
ordinary high-water elevation at Natchez. This is how he came up with an ordinary
high water at the properties of 68 feet.
Dr. Suhayda directed the plaintiffs’ engineer, Bryant Hammett, to place
gauges on the riverbank adjacent to the Alwoods’ properties and compared readings
with the readings from the Natchez gauge. Based on this gauge, Dr. Suhayda
adjusted the Natchez gauge readings by adding 1 ½ feet to the readings to determine
the ordinary high-water mark of the Alwood properties to be 61.2 feet. Plaintiffs
argue that the landowner placed gauges are more accurate than using the slope of the
river, because this assumes that the river slope is constant. However, there were
several issues affecting the accuracy of the landowner gauges. Foremost, the gauges
were placed about a mile downriver from the actual property and only used to collect
12 a few water level readings over a length of time spanning less than a year (November
2019-July-2020). Additionally, these gauges were not capable of showing water
elevations when the river was at its highest because they were too short. Dr. Suhayda
acknowledged that the difference in elevation between two points is at its highest
when the elevation of the river is highest. Moreover, Mr. Hammett acknowledged
that there were several errors in the reports of gauge readings from the landowner
gauges, some of which were off by almost a foot. Accordingly, we refuse to accept
the readings from the landowner-placed gauges.
In contrast, Dr. Kesel testified that it was standard practice for the Corps
of Engineers to utilize the slope of the river to make its calculations. It would be
impractical for the Corps to place gauges at every single mile marker, and under the
circumstances, interpolating the ordinary high water based on the river slope was a
reasonable and reliable method. Moreover, Dr. Kesel testified that he used this same
method of interpolation in his calculations for the DeSambourg case. We accept Dr.
Kesel’s calculation of ordinary high water at the properties.
According to Dr. Kesel’s calculations, the ordinary annual high-water
elevation of the Mississippi River at the properties is 68 feet. Using the Corps of
Engineers topographic survey on the unprotected/flood side of the levee for the
properties, there are only two acres of permanent servitude on the unprotected side
of the levee that are not batture. One acre belongs to Richard Alwood and one
belongs to Delhi Plantation. Mr. Wilbanks’ appraisal valued the land on the
unprotected side of the levee at 90% of $2,850.00 per acre for the permanent
servitudes. Therefore, we reverse the award of the trial court as it relates to
compensation for the permanent servitudes on the unprotected side of the levee and
13 award compensation in the amount of $2,565 each to Richard Alwood and Delhi
Plantation for the permanent servitudes on the unprotected side of the levee.
COMPENSATION BY THE CUBIC YARD
In their third assignment of error, Defendants argue that the trial court
erred in allowing compensation for borrow pit excavation by the cubic yard. The
largest part of the trial court’s damage award was the $1,305,128.75 awarded for the
excavated dirt. After reviewing the record, we find that the trial court erred in its
award for the dirt excavation. As previously stated, virtually all the land in the
borrow pit was batture and, as such, is not compensable. Even if the borrow pits did
not consist of batture, it was error to compensate Plaintiffs by the cubic yard for the
borrow pit excavation.
Louisiana Constitution Article 6, § 42 states that, “[n]otwithstanding
any contrary provision of this constitution, lands and improvements thereon
hereafter actually used or destroyed for levees or levee drainage purposes shall be
paid for as provided by law.” Under La.R.S. 38:301(C)(1)(a), “[a]ll lands, exclusive
of batture, and improvements hereafter actually taken, used, damaged, or destroyed
for levee or levee drainage purposes shall be paid for at fair market value to the full
extent of the loss.” Louisiana Revised Statutes 38:301(C)(1)(h) further provides;
The measure of compensation for lands and improvements taken or destroyed for levee and levee drainage purposes by way of a permanent levee servitude shall be the fair market value of the property taken or destroyed before the proposed use of the property or construction of the levee facilities, without allowing any change in value caused by the construction of the levee facilities.
Plaintiffs rely on National Food & Beverage Co., Inc. v. United States,
105 Fed.Cl. 679 (2012) for their contention that they are entitled to compensation
for the cost of the dirt removed from their properties. In National Food, the
14 landowner was compensated by the cubic yard when the Corps of Engineers
excavated 383,000 cubic yards of clay from the property to repair levees after
Hurricanes Katrina and Rita. The court noted that,
courts are often reluctant to calculate the value of a mineral deposit by “estimating the number of tons in place and then multiplying the tonnage by a unit price per ton.” United States v. 91.90 Acres of Land, 586 F.2d 79, 87 (8th Cir.1978). Instructively, however, an exception to the disinclination to rely on volumetric measurement “occurs where the mineral deposit itself is the property being condemned,” for “[i]n such a case the deposit is treated as merchandise rather than land.” 4 Nichols on Eminent Domain § 13.14[3]; see also United States v. 22.80 Acres of Land, More or Less, 839 F.2d 1362, 1364 n. 2 (9th Cir.1988) (approving a cubic-yard basis of compensation where “the government is taking the [material] itself, [and] not the overlying parcel of land”).
Id. at 700. The court held that the highest and best use of the property in that case
was a borrow pit, and the best measure of the taking was the value of the removed
clay.
We find that this case is inapplicable to our present case. It is important
to note that National Food was analyzed under the standards of the Fifth Amendment
and not Louisiana law. In S. Lafourche Levee Dist. v. Jarreau, 16-788 (La. 3/31/17),
217 So.3d 298, this court distinguished National Food and refused to award
compensation by the cubic yard for dirt removed. In Jarreau, the landowner was in
the business of excavating dirt when a portion of his property was appropriated for
hurricane protection projects. After determining that the 2006 amendments to La.
Const. art. I, § 4; La. Const. art. VI, § 42; and La.R.S. 38:281(3) and (4) reduced,
rather than eliminated, the measure of damages to be paid to a property owner for
hurricane protection projects from “full extent of the loss” to the more restrictive
“just compensation” measure required by the Fifth Amendment to the United States
15 Constitution, which is the fair market value, the court determined that, “The dirt’s
value in this case is subsumed in the value of the surface, and it is only after
extraction and delivery to another location that the dirt has additional value.” Id. at
313. The court distinguished National Food because “National Food did not involve
a levee servitude appropriation where the government had a pre-existing right to the
landowner’s property.” Id.
The instant case does not involve a hurricane protection project, so
Plaintiffs are entitled to compensation at the fair market value to the full extent of
the loss. Louisiana Revised Statutes 38:281(3) defines fair market value as “the
value of the lands or improvements actually taken, used, damaged, or destroyed for
levees or levee drainage purposes as determined in accordance with the uniform
criteria for determining fair market value as defined in R.S. 47:2321 et seq.” Under
La.R.S. 47:2321,
Fair market value is the price for property which would be agreed upon between a willing and informed buyer and a willing and informed seller under usual and ordinary circumstances; it shall be the highest price estimated in terms of money which property will bring if exposed for sale on the open market with reasonable time allowed to find a purchaser who is buying with knowledge of all the uses and purposes to which the property is best adapted and for which it can be legally used.
“The current use of the property is presumed to be the highest and best use, and the
burden of overcoming that presumption by proving the existence of a different
highest and best use based on a potential, future use is on the landowner.” W.
Jefferson Levee Dist. v. Coast Quality Const. Corp., 640 So.2d 1258, 1275
(La.1994).
16 Unlike the land in National Food, the highest and best use of the land
in the present case was not a borrow pit but rather recreation and row crops, as this
was the current use of the property. The burden was on Plaintiffs to show that the
full extent of the loss included the price per cubic yard of the dirt removed. Under
La.R.S. 38:281(4), “‘[f]ull extent of the loss’ shall not be construed to include
payment for uses which are remote, speculative, or contrary to law; uses for which
the property is still suitable; or elements of property ownership which are not
actually taken, used, damaged, or destroyed for levees or drainage purposes.”
The prospect of selling dirt from the lands in this case was both remote
and speculative. There was no evidence presented that any of the land was currently
being used for dirt sales or that any of the plaintiffs had any plans to sell dirt from
any of the properties. The only dirt sale that could be identified from any of the
properties was to the state for a highway project in the 1990s. Moreover, the
evidence presented to determine the value of the excavated dirt was inadequate.
Plaintiffs did not hire an appraiser, but relied on the testimony of their engineer, Mr.
Hammett, who merely called around to a few people to inquire about what they pay
for dirt. Specifically, Mr. Hammett asked the dirt contractors to price the dirt for the
levee project itself. This is in violation of La.R.S. 38:301(C)(1)(h) which prohibits
any change in valuation of the property caused by construction of the levee itself.
In National Food, experts testified to the preexisting demand for clay
before the Corps began their project. If plaintiffs were entitled to any compensation
for the value of the dirt, they were required to prove the market value of such dirt
aside from the levee project. Plaintiffs failed to establish that they were entitled to
compensation for the value of the excavated dirt, and the value of the dirt was
subsumed in the value of the surface. The trial court erred in awarding compensation
17 by the cubic yard for the removal of dirt. We therefore reverse the $1,305,128.75
awarded to Plaintiffs for excavated dirt.
LOST CRP PAYMENTS
In their next assignment of error, Defendants assert the trial court erred
in awarding damages for lost CRP payments. The plaintiffs each had contracts with
the Farm Services Administration to keep portions of their property in the
Conservation Reserve Program (CRP). As part of the program, Plaintiffs were paid
to allow the affected area to grow trees. Inevitably, some of Plaintiffs CRP acreage
was lost when the Corps cleared the land as a part of the levee project. As stated
previously, Plaintiffs are entitled to compensation to the full extent of the loss. Our
courts have determined that the full extent of the loss includes business losses such
a lost profit which are distinct from the value of the land. Vela v. Plaquemines Par.
Gov’t, 00-2221 (La.App. 4 Cir. 3/13/02), 811 So.2d 1263, writ denied, 02-1350 (La.
6/21/02), 819 So.2d 337, and writ denied 02-1224 (La. 6/21/02), 819 So.2d 343.
Unlike the claim for the value of the dirt, Plaintiffs lost CRP payments
were neither remote nor speculative. The record includes copies of the CRP
contracts for each plaintiff revealing the rates paid per acre under the program and
the exact extent of the loss can be properly calculated. However, Plaintiffs are not
entitled to compensation for the loss of CRP payments on any land that is considered
batture. The trial court awarded $62,722.00 to Richard Alwood, $80,866.00 to Delhi
Plantation, and $7,630.70 to Allred Land Company for lost CRP payments.
All of the lost CRP for Allred Land Co. was within the borrow pit area,
and within the batture. Thus, the trial court’s award of compensation for lost CRP
18 to Allred Land Co. was in error and is hereby reversed. The Delhi Plantation lost
approximately 44.04 acres of CRP due to the levee project. Only one acre of the
Delhi Plantation property on the unprotected side of the levee was non batture, thus
Delhi Plantation can only be compensated for lost CRP on one acre of land. Under
Delhi Plantation’s CRP contract, they were paid at a rate of $144.58 per acre
annually. Delhi Plantation’s contract was reduced in 2018 and was set to expire in
2029, therefore they lost twelve years of CRP payment. We award Delhi Plantation
a total of $1,734.96 for the lost CRP on one acre.
Mr. Richard Alwood also had one acre of non batture land on the
unprotected side of the levee. Under his CRP contract, he was paid at a rate of
$117.60 per acre annually. The CRP was lost starting in 2018 and was set to expire
in 2029, therefore Mr. Alwood lost twelve years of CRP payment. We award Mr.
Alwood $1,411.20 for the lost CRP on one acre on the unprotected side of the levee.
Mr. Alwood had some property within Parcels 3-1 and 3-3 on the
protected side of the levee under CRP contract which was non-batture. Prior to the
levee project, Mr. Alwood had 202.8 acres in CRP on the protected side of the levee.
He was compensated at a rate of $149.60 per acre which amounted to $30,339.00
annually. After the levee project, Mr. Alwood’s acreage was reduced to 183.94 acres
and his annual income was reduced to $27,517.00 annually. As a result of the levee
project, Mr. Alwood’s annual lost income was $2,822.00 for a total loss of
$19,754.00 for the remaining seven years of his contract. We reverse the trial court’s
award of $62,722.00 for lost CRP to Mr. Alwood and award him a total amount of
$21,165.20 for lost CRP payments.
BERM ACREAGE
19 In their fifth assignment of error, Defendants allege that the trial court
erred in the calculation of the acreage taken for the berms on the protected side of
the levee. The appraisals from Mr. Wilbanks included offers of compensation for
the extension of the berms. Those parcels may be summarized as follows:
Allred Land Co.—Tracts 5-2 (1.71 acres permanent servitude) and 5-3 (0.81 acres temporary servitude)
Richard Alwood—Tracts 3-1(9.38 acres permanent servitude) and 3-3 (3.33 acres temporary servitude) Delhi Plantation—Tracts 4-2 (1.58 acres permanent servitude), 4-3,4-4,4-5, and 4-6 (collectively 3.14 acres temporary servitude).
It was brought out during the trial that the berms were extended by more
than the acreage set forth in the right of way plans and Mr. Wilbanks’ appraisals.
Mr. Hammett testified that he determined the berm acreage by taking a map of the
area provided by the Corps of Engineers and overlaid it with plot points of the taking
and property lines. He then used a computer program to calculate the acreage. He
determined that a total of 39.01 acres was taken for the berms, as opposed to the
19.95 acres included in Mr. Wilbanks’ appraisals. Mr. Hammett determined that a
total of 22.22 acres was taken from Richard Alwood, a total of 10.21 acres was taken
from Delhi Plantation, and a total of 6.58 acres was taken from Allred Land
Company. In contrast, the appraisals included 12.710 acres for Richard Alwood,
4.720 for Delhi Plantation, and 2.52 for Allred Land Company. These numbers
included acreage for both the permanent and temporary servitudes.
The trial court left the record open for Mr. Mayeaux to do a survey of
the berms and give Defendants an opportunity to address the issue. Mr. Mayeaux
received the coordinates that Mr. Hammett used to map the perimeter of berm as
illustrated by Mr. Hammett. Using these coordinates, Mr. Mayeaux went onto the
20 property to investigate the actual perimeter of the berm. Mr. Mayeaux testified that
based on his on the ground observations, the boundaries illustrated by Mr. Hammett
were inaccurate and included areas that were not actually part of the berm or were
part of the pre-existing berm. He also submitted photographs showing areas that
were claimed to be berm by Mr. Hammett, but clearly were not. Plaintiffs’ counsel
even offered to stipulate that portions of Mr. Hammett’s berm calculation incorrectly
included certain areas that were not part of the berm. Moreover, when confronted
with the inaccuracies in Mr. Hammett’s illustration of the berm area, Plaintiffs’
counsel asserted that Mr. Hammett never intended for it to be an accurate depiction
but was merely a reference. Accordingly, we find that it was error to rely on Mr.
Hammett’s determination of berm acreage.
Mr. Mayeaux determined that only an additional 9.01 acres were taken
for the berms. Defendants argue that nearly all of the additional acreage was
accounted for by a prior acquisition in the 1960s. However, the parties stipulated
during the pre-trial conference that any claim of a previous taking was waived. Mr.
Wilbanks’ appraisal valued the berm on Richard Alwood’s property at 90% of $2850
($2,565) per acre for the permanent servitudes and 10% of $2850 per acre per year
for the temporary servitudes. The temporary servitude was for a period of four years,
so the value of the temporary servitude is 40% of $2850 ($1,140) per acre. Delhi
Plantation and Allred Land Company’s properties were valued at 90% of $3850
($3,465) per acre for permanent servitudes and 40% of $3850 ($1,540) per acre for
the temporary servitudes. It was also discovered that .49 acres attributed to Allred
Land Company belonged to Delhi Plantation.
21 Based on Mr. Mayeaux’s survey and supplemental report, in
conjunction with Mr. Wilbanks’ appraisals of the properties, the plaintiffs are
entitled to the following compensation for the berm area:
Richard Alwood—$30,292.65($2850/acre x 90% x (9.38 acres+2.43 acres berm))
+ $3,796.20 ($2850/acre x 40% x. 3.33 acres temporary)
Delhi Plantation—$17,394.30 ($3850/acre x 90% x (1.58+2.95+0.49 acres berm))
+ $4,835.60 ($3,850/acre x 40% x 3.14 acres temporary)
Allred Land Co.—$16,805.25 ($3,850/acre x 90% x (1.71+3.63-0.49 acres berm))
+ $1,247.40 ($3,850/acre x.40% x 0.81 acres temporary).
SEVERANCE
In their sixth assignment of error, Defendants assert that the trial court
erred in awarding damages for severance value or loss of access to a portion of the
properties. Plaintiffs Delhi Plantation and Allred Land Company were awarded
$112,149.00 and $43,605.00 respectively for loss of access. Mr. Hammett claimed
that Allred Land Company lost access to its entire 17.1-acre tract. However, all of
that acreage was in the borrow pit and therefore constituted non-compensable
batture. Moreover, John Alwood, the owner of Allred Land Company, testified that
levee contractors had constructed a ramp off the levee across his property which he
requested be left in place. The contractors refused and removed the ramp. John
Alwood claimed that without the ramp, he now has no access to his property located
on the river side of the property. John Alwood’s testimony, however, failed to show
how the levee project caused him to lose access to the property. He testified that an
older ramp existed, but it had partially washed away over the years. While he could
walk over the ramp, he did not recall ever being able to drive across it.
22 The only thing his testimony mentioned as cutting off his access to the
property was the removal of the newly constructed ramp. In La.R.S.
38:301(C)(1)(h), the law provides that:
The measure of damages, if any, to the remaining property of the owner by reason of the use or destruction of a portion of the property is determined on a basis of immediately before and immediately after the use or destruction of the property for levee drainage construction, taking into consideration the effects of the completion of the project in the manner proposed or planned.
Immediately before construction began, this complained of ramp did not exist and it
was removed at the end of the project. Removal of the temporary ramp cannot
support an award of damages.
With respect to the Delhi Plantation property, much of the claimed
severance damage is for acreage within the borrow pit area and is therefore non-
compensable batture. However, even for the acres that were not in the batture,
Plaintiffs failed to present any testimony to establish the amount of any loss in value
for any severed property or how the value of the loss wasn’t subsumed in the value
of the servitude for which they were compensated. The trial court erred in awarding
compensation for loss of access, and as such the awards to Delhi Plantation and
Allred Land Company are reversed.
DISMISSAL OF DOTD
In their last assignment of error, Defendants contend that the trial court
erred in failing to dismiss DOTD. Prior to trial, DOTD filed an exception of no
cause of action arguing that the Levee Board was the one who did the taking and
DOTD is not liable for any compensation. Plaintiffs argued that DOTD is a joint
actor with the Levee Board because the Levee Board relied on DOTD’s
23 determination of batture when making their initial offers. We find that the trial court
should have granted DOTD’s exception.
The exception of no cause of action “is designed to test the legal
sufficiency of the petition to determine whether the plaintiff is afforded a remedy in
law based on the facts alleged in the petition.” Ebey v. Avoyelles Par. Sch. Bd., 03-
765, p. 4 (La.App. 3 Cir. 12/17/03), 861 So.2d 910, 912, writ denied, 04-196 (La.
3/26/04), 871 So.2d 349. “[T]he exception is tried on the face of the petition, with
supporting documentation,” and “the well-pleaded facts in the petition must be
accepted as true.” Id. Plaintiffs are seeking compensation for the taking of their
property and damages caused by the taking. By the well-pleaded facts of their
petition, that taking was done by the Levee Board, not DOTD. As this case involves
an appropriation by a levee district, the cause of action is governed by La.R.S.
38:301. The statute provides that “after the taking, use, damage, or destruction of
the property. . . the levee board shall pay the owner[.]”
In this case, compensation is only authorized from the levee board for
the appropriation. Thus, Plaintiffs have no cause of action against DOTD. Because
the statute does not provide a cause of action against DOTD, we find that Plaintiffs
have failed to state a cause of action against DOTD, and the trial court erred in
denying DOTD’s exception of no cause of action. We dismiss Plaintiffs’ petition
against DOTD with prejudice.
CONCLUSION
For the foregoing reasons, the award of the trial court is reversed and
DOTD is dismissed with prejudice. Judgment is rendered in favor of Plaintiffs and
against the Levee Board in the following amounts:
24 Richard Alwood—$57,819.05
($2,850.00/acre x 90% x 1 acre non-batture borrow) = $2,565.00
+ ($2,850.00/acre x 90% x (9.38 acres+2.43 acres berm)) = $30,292.65
+ ($2,850.00/acre x 40% x. 3.33 acres temporary) = $3,796.20
+ lost CRP = $21,165.20
Delhi Plantation—$26,529.86
($2,850.00/acre x 90% x 1 acre non-batture borrow) = $2,565.00
+($3,850.00/acre x 90% x (1.58+2.95+0.49 acres berm)) = $17,394.30
+($3,850.00/acre x 40% x 3.14 acres temporary) = $4,835.60
+ lost CRP = $1,734.96
Allred Land Company—$18,052.65
($2,850.00/acre x. 90% x 0 acres non-batture borrow)= $0.00
+($3,850.00/acre x 90% x (1.71+3.63-0.49 acres berm))= $16,805.25
+($3,850.00/acre x.40% x 0.81 acres temporary) = $1,247.40
+ lost CRP = $0.00
REVERSED AND RENDERED.