Opelousas, Gulf & N. E. Ry. Co. v. St. Landry Cotton Oil Co.

46 So. 810, 121 La. 796, 1908 La. LEXIS 750

• Court: Supreme Court of Louisiana
• Decided: March 2, 1908
• Docket: No. 16,675
• Status: Published

Opinions

LAND, J.

This is a suit to expropriate a railroad right of way, containing 1.58 acres, thre-.rh a tract of land belonging to the defendant. On the first trial the jury awarded the right of way sued for to the plaintiff, and assessed its value at $1,075. The verdict rejected defendant’s demand for damages. The defendant appealed, and the verdict and judgment thereon were reversed, and the cause was remanded for error in the instructions to the jury. In the meantime the road had been constructed over the right of way in question. The defendant amended its answer and claimed additional damages. On the second trial, the jury fixed the value of the land taken at $1,297, and the damages to the adjoining land at $300. Defendant has appealed.

The advent of two new railroads created a great boom in real estate values in and about the town of Opelousas. In the nature of things such values were largely speculative, being necessarily predicated on the future growth of the town in business and population. Under such circumstances, it is not surprising to find in the instant case a wide difference of honest opinion as to the value of the land embraced in the right of way sued for. The estimates range from $500 to $2,500' per acre.

In a ease like the one at bar, a fair test of market value is furnished by voluntary sales of real estate in the immediate vicinity, and about the same time for right of way purposes.

The plaintiff road purchased its right of way on the adjoining property at the rate of $1,200 per acre. The then president of the road, and' now its leading counsel, testified that he considered that valuation a fair standard by which to value the naked land just opposite on the other side of the street. Such a standard is applicable with equal, if not more, force to contiguous land of the •same character. That the land embraced in plaintiff’s right of way is worth $1,200 per .acre or more, is clearly shown by the preponderance of the evidence. Giving due weight to the finding of the jury of freeholders, we think they manifestly erred in not allowing the defendant at least $1,200 per acre fqr the land actually taken.

I'he award of $300 damages was based, we assume, on the testimony of one of the defendant’s witnesses that it would cost that amount to move the office and scales of the defendant company further away from the railroad track. We can find in the record no other basis for such an award. The defendant claimed large damages to its plant and business, on account of the railroad track obstructing the free passage of wagons and teams engaged in hauling seed to the mill. While a few witnesses undertake to estimate such damage in globo at the sum of $10,000, two others, including the counsel for defendant, testified that such damages could not be estimated intelligently or with even approximate certainty.

The first jury found that no damages would be suffered. The last jury awarded $300 damages to the “adjoining land.” There is no sufficient evidence in the record to enable us to hold that this finding was manifestly ■erroneous.

In- cases of this kind mere consequential injuries resulting from inconvenience, loss of business and the like are not recoverable. The measure of recoverable damage is the actual diminution in the value of the property for sale or rental. McMahon & Perrin v. Railroad Company, 41 La. Ann. 827, 6 South. 640.

In the instant case, this diminution, if any, is not established with any degree of certainty. Whether there will or will not be any such diminution or whether the damages will be set off by special benefits are matters of speculation, on which the witnesses differ widely. Judgments should not be rendered on surmise and conjecture.

The last question to be determined is whether a plaintiff in an expropriation suit is liable for the per diem and mileage of the jurors who tried the case.

In Vicksburg, Shreveport & Texas Railroad Company v. E. C. Hart, 15 La. Ann. 507, the court held that in actions, to expropriate land for a railroad, or other work of public utility, under Acts 1855, p. 297, No. 243, the plaintiffs are not bound to pay the, jurors for their attendance. This ruling was reaffirmed in Railway Co. v. Roberts, 49 La. Ann. 862, 21 South. 630.

Per contra it is contended that the law was changed by Act No. 135, p. 216, of 1898, relative to juries for the state, the parish of Orleans excepted. Section 12 provides in substance that in all civil eases in which a jury is prayed for and allowed the party so praying shall deposit with the clerk $12 as jury costs and give bond in favor of the parish for an amount fixed by the judge to cover the additional cost of the jury, with the right to have the same taxed as costs against the party cast in the suit, and that no jury shall be ordered in any civil case unless said deposit be made and the bond given; “provided that when the judge, ex officio, shall order a jury in a civil case, the plaintiff shall advance and pay to the clerk twelve dollars for jury costs, which shall finally be taxed against the party cast in the suit.”

In this state, ordinary civil cases, as a rule, may be tried without a jury, and section 13 of the act deals with that class of cases. This section, in order to prevent parties from praying for trial by jury for the purposes of delay, provides that the party so praying shall make a deposit and give bond for jury costs. Where the judge, however, is of opinion that a case involves issues which should be tried before a jury, and therefore, ex officio, orders such a trial, the plaintiff is only required to deposit $12 for jury costs.

Section 13 has no application to cases which must under special statutes be tried before the court and jury.

Under the provisions of the Civil Code and Revised Statutes of the state, expropriation suits are triable before a special jury of freeholders. Such a. jury cannot be drawn under the provisions of Act No. 135, p. 216, of 1898. Hence, section 13 has no application to this case. It is argued that said act is the only law in force providing for the compensation of jurors in civil cases, and that if its provisions do not apply to jurors in expropriation suits the parish is not liable for their per diem and mileage. We feel no hesitation in holding that the parish is bound to compensate such jurors, as has always been the practice under the jury laws of this state. In Railroad Company v. Hart, supra, the court said:

“The plaintiff ought not to be compelled to-pay the jurors for their attendance. They are to be paid in another manner.”

In the case of City of New Orleans, Praying for a Jury of Freeholders, etc., 20 La. Ann. 394, it was held that jurors in an expropriation suit were to be compensated in same manner as ordinary jurors. -It is the duty of the state to furnish tribunals for the administration of justice. The cost of such tribunals is borne by the public, and cannot be shifted to the litigants in whole or in part except in cases specially provided by law. The statutes, thus far, have not provided for the taxation of jury costs in expropriation suits.

It is therefore ordered that the verdict and judgment appealed from be amended by increasing the amounts awarded to the defendant to the total sum of $2,196, and that as thus amended said verdict and judgment be affirmed, at the cost of the plaintiff and appellee. It is further ordered that the Parish of St. Landry pay all costs occasioned by its appeal as a third party.