Hobgood v. Parish of East Baton Rouge

563 So. 2d 413, 1990 WL 75370
CourtLouisiana Court of Appeal
DecidedMay 30, 1990
DocketCA 89 1826 to CA 89 1827, and CA 89 0538
StatusPublished
Cited by7 cases

This text of 563 So. 2d 413 (Hobgood v. Parish of East Baton Rouge) 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
Hobgood v. Parish of East Baton Rouge, 563 So. 2d 413, 1990 WL 75370 (La. Ct. App. 1990).

Opinion

563 So.2d 413 (1990)

Edward C. HOBGOOD, et al.
v.
PARISH OF EAST BATON ROUGE, et al. Three Cases

Nos. CA 89 1826 to CA 89 1827, and CA 89 0538.

Court of Appeal of Louisiana, First Circuit.

May 30, 1990.

*415 Ashton Stewart, Baton Rouge, for plaintiff-appellant Edward C. Hobgood, et al.

Frank S. Craig, III, Baton Rouge, for defendant-appellee East Baton Rouge Parish, et al.

Before LOTTINGER, CRAIN and LeBLANC, JJ.

CRAIN, Judge.

As part of the stated purpose of improving safety for commercial and private air travelers and reducing noise impact on populated areas, the Greater Baton Rouge Airport District (GBRAD) undertook a multi-year project on the Baton Rouge Metropolitan Airport (MA). This project included a 1200 foot extension of the main northwest to southeast runway designated as runway 13-31, the construction of a new 3500 foot runway designated as 4R-22L, and the general improvement of the main northeast to southwest runway designated as runway 4L-22R. Runways 4R-22L and 4L-22R are both northeast to southwest runways which parallel each other and the designation merely indicates which lies to the left or right facing north. When the project is completed 4R-22L will be for light, general aviation use only and will be available for use only under visual flight rules. It will close when the tower closes from midnight to 6:00 a.m. Commercial traffic will use either 13-31 or 4L-22R with preference assigned to take offs on 13-31 which directs traffic over Exxon's Maryland Tank Farm rather than more populated areas. Runways 4R-22L and 4L-22R affect three parcels of property belonging to the appellants (Hobgoods). Parcels designated 8-C and 9-C are affected by the extension of the main northwest-southwest runway, 4L-22R. A parcel designated E-1 is affected by the new general aviation runway, 4R-22L.

In September of 1988, when the projects were underway but prior to the filing of any expropriation proceeding, the Hobgoods filed a possessory action alleging interference with their peaceful possession of parcel E-1 and asking for an injunction to prohibit air traffic on 4R-22L. Subsequently, a suit was filed with the same object for parcels 8C and 9C for air traffic on 4L-22R and 13-31. The suits were consolidated. After being removed to federal court, and returned to state court, the trial judge denied injunctive relief. The denial of injunctive relief was appealed to this court and on order of the supreme court given expedited hearing. While those matters were pending on appeal GBRAD sued *416 to expropriate a clear zone and avigation servitude on parcels E-1, 8C and 9C. On learning that the expropriation had been allowed prior to disposition of the possessory actions on appeal, we pretermitted deciding the possessory action and ordered consolidation of the possessory action and the expropriation. Hobgood, et al. v. Parish of East Baton Rouge, et al., (La.App. 1st Cir.1989) (Docket No. 89 CA 0538, Decided Nov. 6, 1989). Both matters are now before us on appeal. Four issues are presented: the right of GBRAD to expropriate, the right to injunction in the possessory action, the trial court's instructions, value and severance damages.

THE RIGHT OF GBRAD TO EXPROPRIATE

The Hobgoods argue that the only evidence in the record shows that the airport is owned by East Baton Rouge Parish rather than GBRAD. They further argue that the servitudes sought to be expropriated can only be predial servitudes running in favor of the land. They conclude that the servitudes run in favor of the airport and therefore only the owner of the airport has the right to expropriate the servitudes. This argument has no merit.

We see no purpose in classifying the nature of the servitude taken in this expropriation since it is not pertinent to the validity of the taking. The power of expropriation or eminent domain is the right of the state or its subdivisions to appropriate private property for public purposes. It is inherent in the police power of the state. c.f. Dalche v. Board of Commissioners of Orleans Levee Board, 49 F.2d 374 (E.D.La. 1931). The sovereign may delegate the power of expropriation to the agencies of the sovereign and to public and private corporations. Tennessee Gas Transmission Co. v. Violet Trapping Co., 248 La. 49, 176 So.2d 425 (1965), cert. denied, 382 U.S. 902, 86 S.Ct. 236, 15 L.Ed.2d 155 (1965).

La.R.S. 19:2 provides in part, "Where a price cannot be agreed upon with the owner, any of the following may expropriate needed property: (1) The state or its political corporations or subdivisions created for the purpose of exercising any state governmental powers". Property includes "servitudes and other rights in or to immovable property". La.R.S. 19:1.

The Greater Baton Rouge Airport District was created by La. Act No. 151 (1969). That Act provides:

The District shall have the power to ... own all facilities and all properties incidental and necessary to carry out all purposes of District and powers authorized hereunder, including real and personal, servitudes and rights-of-way (or any combination thereof); to acquire by expropriation, purchase, lease or otherwise said land and other property ...

Although it was not questioned on appeal the right of GBRAD to expropriate was recognized by the trial judge in Greater Baton Rouge Airport District v. Hays, 339 So.2d 431 (La.App. 1st Cir.1976), writ denied 341 So.2d 403 (La.1977). These same defendants were part of that litigation.

We find GBRAD was given the authority to expropriate any necessary servitude for carrying out its functions including the one expropriated herein. This assignment of error has no merit.

THE RIGHT TO INJUNCTIVE RELIEF IN THE POSSESSORY ACTION

This assignment of error is now moot. GBRAD has the right to expropriate. Consequently, the servitude is now owned by GBRAD subject to a determination of just compensation. Under these circumstances there can be no disturbance of Hobgood's possession in fact or in law.

JURY INSTRUCTIONS

Adequate jury instructions fairly and reasonably point out the issues and give the jury the law to apply to those issues. The precise instructions submitted by the litigants do not have to be given if those given correctly reflect the issues and the law applicable to those issues. Fuller v. United States Aircraft Insurance Group, 530 So.2d 1282 (La.App. 2d Cir.), *417 writ denied, 534 So.2d 444 (La.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1954, 104 L.Ed.2d 424 (1989).

Appellants argue that the trial court erred in refusing to give appellant requested instructions numbered 4, 5 and 7. All of these deal with the rights of the landowner to airspace above the owner's property. Of course, the appellants wanted instructions dealing with these rights as part of the disturbance of possession issue. Consequently, the instructions requested were detailed statements as to the right of the landowner to use and occupy airspace above the owned property. The relevant issue as correctly discerned by the trial court was the right of the landowner to be compensated for the airspace which is taken as part of the avigation servitude and the damage resulting from this taking to the remainder of the property, if any. Along with other instructions the trial court gave the following:

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Cite This Page — Counsel Stack

Bluebook (online)
563 So. 2d 413, 1990 WL 75370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hobgood-v-parish-of-east-baton-rouge-lactapp-1990.