Lagraize v. State

306 So. 2d 816, 1975 La. App. LEXIS 3013
CourtLouisiana Court of Appeal
DecidedJanuary 20, 1975
DocketNo. 5416
StatusPublished
Cited by2 cases

This text of 306 So. 2d 816 (Lagraize v. State) 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
Lagraize v. State, 306 So. 2d 816, 1975 La. App. LEXIS 3013 (La. Ct. App. 1975).

Opinion

LEMMON, Judge.

This is a suit for damage to a paved driveway situated on a servitude of passage across certain parcels of immovable property owned by the three plaintiffs and one other person. The trial court awarded plaintiffs $4,468.00 for the cost of replacing of the entire driveway and $600.00 for mental anguish. On their appeal, as they did in the trial court, defendants concede that they caused some damage to the driveway, but question on several bases the amount awarded by the trial court, as well as the propriety of an award for mental anguish. By answer to the appeal, plaintiffs seek an increase in the latter award.

Although there were some points of dispute, we find that the operative facts were as follows:

In 1967 defendants undertook to raise the levee along the London Avenue Canal in the City of New Orleans. At that time plaintiffs owned homes on lots adjacent to the levee, which (except for the lot at the corner of Treasure Street) did not border on a dedicated street. The servitude, located parallel and adjacent to the levee, served as a means of ingress and egress to Treasure Street for the land-locked plaintiffs.

Beginning at Treasure Street, the servitude extended along the 112-foot side line of the corner lot and then continued across the four interior lots which faced the canal for a total length of about 256 feet.

The concrete driveway was in existence prior to the 1955 notarial act which established the eight-foot servitude. Much of the original driveway was ten feet wide. The portion which crossed the corner lot, originally only eight feet wide, was subsequently widened to ten feet. Additionally, a concrete parking apron, varying in width, had been constructed adjacent to the four interior lots, apparently at the same time as the original driveway. The entire driveway and the aprons were composed of non-reinforced concrete, approximately four inches thick.

Since the first of the present owners purchased his property in 1956, no heavy traffic had ever used the driveway. Although the concrete had sustained some cracking, it was satisfactorily serviceable (prior to the present damage) for use as a private driveway for four residences, except for the 2' x 112' addition, which was of an inferior grade of concrete and admittedly needed to be replaced.

Prior to commencing work, a Levee Board engineer contacted one of the plaintiffs to request permission for the contractor to use the servitude in connection with the project. The engineer explained that the fence and trees would be removed from the existing levee; then steel pilings would be driven; and finally the concrete wall would be poured on top of the steel pilings. This plaintiff consulted the other owners and thereafter communicated permission to the Levee Board for use of the servitude, conditioned upon the contractor paying for any damages resulting from the operations.

In April, 1967 the contractor used the servitude for two or three days while removing the fence and trees from the levee in that area and then moved on to other areas for clearing operations. In late August the contractor again used the servitude for one to two weeks while driving pilings and pouring the concrete wall.

During the clearing stage heavy equipment used for uprooting and grinding the trees caused some additional cracking of the driveway. Additionally, the mud, sand, leaves and other debris on the driveway were not removed after the clearing operations were completed. In the pile driving and concrete pouring stage, further damage occurred when flat-bed trucks delivered the steel piles, which were placed partially on the driveway and partially on the levee; then the pile driver and welding machine accomplished that phase of the [819]*819work; and finally, concrete delivery trucks completed the pouring operations.

After the work was completed, plaintiffs demanded that the entire driveway be replaced. Defendants refused, and this suit followed.

In this court defendants primarily contend that they caused little additional cracking to an already deteriorated driveway. Citing Menard v. Andrew Jackson Apartments, Inc., 225 So.2d 249 (La.App. 4th Cir. 1969), they argue they should not be required to pay for the replacement of the driveway, but only for the repair of the additional damage.

Defendants’ argument presupposes that the driveway, like the cracked walls in the Menard case, could be repaired. There was a conflict in the testimony as to whether the driveway could be repaired or needed to be completely replaced, and the trial judge (who viewed the scene during the course of the trial) resolved the question by awarding the cost of complete replacement. While the before and after photographs could support defendants’ contention as to the extent of additional cracking, a conclusive determination based solely on these exhibits is difficult because of the quality of the photographs and the debris appearing on those taken after the damage. After reviewing the entire record, we cannot say the trial judge erred in finding the additional cracking was so extensive as to require replacement of the entire driveway.

Alternatively, defendants argue that if the driveway must be replaced, the amount awarded for cost of replacement was excessive and, in any event, a credit for depreciation should be deducted from the replacement cost.

Plaintiffs’ estimator opined that replacing the driveway and aprons would cost approximately $9.00 per square yard, or $4,468.00. He admitted the driveway could be replaced without replacing the undamaged aprons, unless the existing concrete was reinforced. (The evidence indicated, more probably than not, the concrete was not reinforced.) He recommended, however, that the replacement concrete be reinforced and included this additional cost factor in his estimate.

Defendants’ estimator testified that replacement would cost $8.00 per square yard for reinforced concrete and $7.00 per square yard for non-reinforced.1 His inspection report contemplated replacement of the driveway only, and he verified this could be done without replacing the aprons.

The evidence does not support an award for the cost of replacing all of the parking aprons or for using reinforced concrete in replacing the driveway. Only plaintiff Lagraize testified that the apron on his property was damaged. The photographs support Lagraize’s claim (see numbers 5 and 11) but do not evidence any damage to the aprons on the properties of the other plaintiffs. Furthermore, the 2' x 112' strip added to the original driveway was admittedly already in need of replacement. We therefore conclude that only the original driveway area and La-graize’s apron needed to be replaced because of destruction by defendants. We further conclude these areas could be replaced with non-reinforced concrete for $8.00 per square yard ($1.00 per yard less than plaintiffs’ estimator’s figures for reinforced concrete).

As to defendants’ claim for a deduction because of depreciation, we note that-the measure of damages, where property cannot be repaired, is the difference in value of the property before and after the occurrence. Granger v. Bouillion, 220 So.2d 764 (La.App. 1st Cir. 1969). Defendants’ tort caused a diminution in value [820]*820to each plaintiff’s entire property, consisting of the lot, improvements and all appurtenances.

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Bluebook (online)
306 So. 2d 816, 1975 La. App. LEXIS 3013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lagraize-v-state-lactapp-1975.