Folse v. State, Department of Highways

377 So. 2d 511, 1979 La. App. LEXIS 3310
CourtLouisiana Court of Appeal
DecidedNovember 12, 1979
DocketNo. 7177
StatusPublished
Cited by1 cases

This text of 377 So. 2d 511 (Folse v. State, Department of Highways) 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
Folse v. State, Department of Highways, 377 So. 2d 511, 1979 La. App. LEXIS 3310 (La. Ct. App. 1979).

Opinion

STOKER, Judge.

This matter has previously been before this court as reported in 347 So.2d 1176, and it has been considered by the Louisiana Supreme Court in 356 So.2d 411 (La.1978). The facts are stated in the reports of both cases. The case involves conflicting claims of plaintiffs, Alton M. Folse and Frank M. P. Deville, and the State of Louisiana through the Department of Highways as it was then known. Originally brought as a possessory action, the action was converted into a petitory action by the State. Neither the trial court nor the Court of Appeal reached the title issue. Both treated the matter as an injunction case but incidentally held plaintiffs had not proved their possession. The Supreme Court granted writs and subsequently held that neither plaintiffs nor the State held title to the land in question but that plaintiffs held possession of the land. Therefore, plaintiffs were “entitled to some type of monetary compensation for the disturbance of their possession by defendants.” The case was remanded to the trial court for the purpose of fixing the amount due plaintiffs as “there is insufficient evidence in the record of the value of their possessory interest upon which to base an award of damages.”

On remand from the Supreme Court the trial court conducted a trial and awarded [DXCII]*DXCIIplaintiffs 75% of the estimated value of the land in question. This land, as is more fully explained in the case reports cited above, is a strip of land lying along Louisiana Highway 107 in Pineville, Louisiana. It lies between property owned by plaintiffs fronting on the highway and what purported to be the highway right-of-way. Each plaintiff owns his own tract, but they are in close proximity to one another. Assuming that the State owned the right-of-way over the strip, the Department of Highways proceeded with plans to improve the highway which required that they use a portion of the strip of land. Plaintiffs claimed ownership of the portions of the strip in front of their properties, but the Department ignored their pretensions. In plaintiffs’ pos-sessory action, the relief sought was an injunction and damages. It was later converted into a petitory action in which, as stated above, the Supreme Court held neither plaintiffs nor the State held title. On the other hand, the Supreme Court noted that, although the trial court judge who heard the injunction phase of the case found plaintiffs proved possession (first granting the injunction and then recalling it), the final trial court judge and the Court of Appeal acted on the case as though the trial court judge who heard the injunction had found that plaintiffs were not in possession. Therefore, plaintiffs lost on all points before the trial court judge who heard the case on the merits and the Court of Appeal. The Supreme Court found there was adequate evidence to support a finding that plaintiffs had possessed portions of the strip in question.1

Because the Department of Highways disturbed plaintiffs’ possession through the work of improvement, the Supreme Court held compensation was due plaintiffs under LSA-R.S. C.C.P. art. 3662(3). In its opinion the Supreme Court stated the following:

However, plaintiffs are not entitled to be compensated for the full value of the land, as in an expropriation proceeding; rather, the measure of their damages should be the value of their possession of the property, subject to preemption by the. true owner in a petitory action.

The defendant department has set forth its specification of errors as follows:

SPECIFICATIONS OF ERROR
I. The Court erred in its computation of the amount of square footage actually taken by the Department in this matter since it computed this square footage on the basis of required right of way rather than on the actual area taken and used by the Department in construction of the roadway improvements.
II. The court erred in equating the value of the plaintiffs’ right-of possession subject to preemption by the true owner to that of an owner who is forced to grant a servitude for a pipeline and thus granted to plaintiffs an excessive amount of damages.

In essence what the appellant, Department is contending in specification one is that what they actually used in the improvement was less than earlier estimates which became part of the evidence in the first trial. In the second contention the Department simply urges that the trial court erred and over valued the plaintiffs’ right of possession.

MEASURE OF THE AREA OF POSSESSION DISTURBED

The trial court evidently found that the Department of Highways took 8,650.40 square feet of property possessed by plaintiff Deville and 4,400 square feet of property possessed by plaintiff, Folse. The Department contends it should be 4,400 square feet for Deville and 3,261 square feet for Folse.

This issue is not free from ambiguity. The reasons for judgment assigned by the [DXCIII]*DXCIIItrial court make no findings on this issue, and it is not mentioned. It was made an issue at the trial on remand from the Supreme Court, however. The trial judge did use the figures of 8,650.40 square feet for Deville and 4,400 square feet for Folse because they are spelled out in the formal judgment as the basis for his monetary award. In the trial court on remand the plaintiffs offered no evidence as to the total area encompassed in the area of disturbances. Plaintiffs relied upon testimony and evidence adduced at earlier phases of the litigation at the trial level.

At the trial on remand the Department evidently recognized that the evidence at the earlier stages of the litigation had indicated that the Department planned to utilize 8,650.40 square feet and 4,400 square feet. In this appeal we do not have before us the record of trial for the stages which preceded the remand. However, by implication, if not by outright admission, the Department concedes that the earlier trial evidence reflects the higher square footage figures. To counter this evidence, and to establish that the Department actually utilized (and therefore disturbed) less square footage, the Department called Mr. Philip Holland, a licensed land surveyor employed by the Department, now known as the Louisiana Department of Transportation and Development.

Mr. Holland testified from two sheets identified as Highway 2 and 2A consisting of project plans for Louisiana Highway 107. These are printed from aerial photographs upon which the highway engineers have drawn lines to represent the route, limits and other data pertaining to the planned improvement. They are dated January 14, 1974.

The sheets contain two lines paralleling Louisiana Highway 107 as it existed prior to improvement. One is labeled “Required Right-of-Way”, and the other is labeled “Limits of Construction”. On the sheets the line showing the limits of construction is closer to the center line of the highway than the line showing the required right-of-way. Mr. Holland sought to explain the meaning and difference between these terms. While his testimony is not too clear, it is reasonably clear that, irrespective of what “Required Right-of-Way” may mean, the term “Limits of Construction” means that no construction or other activity is expected to be conducted beyond the line so marked. Plaintiffs’ counsel objected when Mr.

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Bluebook (online)
377 So. 2d 511, 1979 La. App. LEXIS 3310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/folse-v-state-department-of-highways-lactapp-1979.