Parish of East Baton Rouge v. Succession of Cashio

246 So. 2d 290, 1971 La. App. LEXIS 6216
CourtLouisiana Court of Appeal
DecidedMarch 15, 1971
DocketNo. 8246
StatusPublished
Cited by1 cases

This text of 246 So. 2d 290 (Parish of East Baton Rouge v. Succession of Cashio) 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
Parish of East Baton Rouge v. Succession of Cashio, 246 So. 2d 290, 1971 La. App. LEXIS 6216 (La. Ct. App. 1971).

Opinion

TUCKER, Judge.

This is an expropriation suit in which plaintiff, the governing authority of East Baton Rouge, Parish sought expropriation by order dated October 7, 1969 of two tracts of property designated as Parcels 6-3 and 7-2 on the survey maps incorporated into the record, said parcels of property owned by the defendants. This expropriation was designed for the purpose of improving the drainage of property lying along both sides of the Airline Highway in the general vicinity of the southeasterly corporate limits of the City of Baton Rouge. The whole of the property is one tract of land comprising 8.72 acres lying at the southwesterly quadrant of the intersection of the Airline Highway (otherwise known as U. S. Highway No. 61) and Siegen Lane. In surveying the property and preparing the plats or maps thereof the whole area was divided into two separate tracts with Parcel 6-3 containing 5.50 acres and having a frontage of 1033.54 feet on the Airline and Parcel 7-2 containing 3.27 acres and having a frontage of 195.84 feet on Siegen Lane. This latter tract was separated from the Airline by the old bed of Clay Cut Bayou with about 90 percent of this old bayou or ditch located within the Airline right of way. The new improved drainage was constructed in such, a way that the course of the new canal was moved southerly with the principal southerly movement occurring on Parcel 7-2. That portion of the bed of old Clay Cut Bayou lying on Parcel 6-3 and not touching the Airline appears to be owned and under the control of defendants. From Parcel 6-3 there was required and expropriated for this project 1.15 acres and Parcel 7-2 an area of 1.27 acres. The new canal separates a tract of 0.39 acres from Parcel 6-3, and in its severed condition appears to have a market with only two prospective purchasers, wdio join the severed piece, namely, Erato Realty Corporation and Schmeider-McCain. A very small narrow piece of 0.15 acres has been separated from the main body of Parcel 7-2, and its marketability, because of its shape and limit in size, has effectively been reduced to one prospective purchaser, Erato Realty Corporation. There is a lateral right of way drain expropriated of 30 feet by 140 feet running perpendicular to the Airline practically all of which lies on Parcel 7-2.

The suit was tried on December 11, 1969, and the trial court signed judgment on January 5, 1970 awarding defendants as payment for the taking and expropriation of the subject tracts the sum of $25,120.00; $1,500.00 for the improvements taken, and $3,500.00 for severance damages to the remainders. From the judgment plaintiff appealed, contending that the trial court erred in placing a value of $10,000.00 per acre on the land taken, and fixing the damages to the remainder at the sum of $3,500.00. The Parish does not apparently dispute the value of $1,500.00 placed by the trial court on the improvements taken. The defendants answered contending the worth of the land taken should be fixed at $12,500.00 per acre and that the lateral drain of which the fee ownership remains in the defendants should justify an increase in the severance damages of $5,000.00.

The plaintiff produced two expert witnesses, both of whom, Karl J. Snyder and John Allphin, Jr., had wide and varied experience in the field of real estate appraising, having often been called upon to make appraisals, to give testimony in court about their findings and opinions. The defendants made use of three witnesses, two of whom, John Lejeune and Simon M. Losavio, were qualified as experts in the appraisal of real estate and the other, Robert M. Riley, connected with the Baton Rouge Chamber of Commerce, testified mainly with respect to traffic counts along this part of Airline and proposed road construction which would eventually raise this traffic count greatly.

There are only two points at issue here (1) the determination of the value of the land taken and (2) the severance damages to the remainder caused by the taking. These are factual matters as reflected by the holdings in the cases of State through [292]*292Department of Highways v. Cenco, Inc., 187 So.2d 162 (La.App.—1966), and State through Department of Highways v. Gielen, et al., 184 So.2d 737 (La.App.—1966) and numerous other judicial expressions.

The expert Mr. Snyder, as did the other appraisers, approached the task by using the market data method in arriving at value and damages. His first comparable was the sale of 44.09 acres sold by Mrs. Maydea Mixon Wilkinson, et al. to McCain & Schmeider on July 12, 1967 for an average price of $4,655.00 per acre. This tract is larger than subject and surrounds defendants’ property with an intervening tract between these pieces owned by Erato Realty Co. on Siegen Lane. The property commonly referred to as the Schmeider tract has both the old bed of the Clay Cut Bayou and the new canal running through the property, but both beds angle to a more southern position away from the Airline than is the case with subject property. Mr. Snyder testified he made various adjustments with reference to this sale in order to make it particularly effective as a comparable here, as was the necessary practice in the consideration of most or all of the other comparables.

The second tract used as a comparable was 29.36 acres of land sold by Prejean to Toomer on April 16, 1969 at an average price of $7,500.00 per acre. This property was on the opposite side of the Airline from the subject in a generally southeasterly direction and toward Gonzales, La. The tract has lengthy frontages on the Airline and Pecue Lane.

Mr. Snyder used as a third comparable a tract of 4.14 acres sold by Giuseppe Bologna to W. G. Davis on March 17, 1969 across the Airline for $49,680.00 after the part of the new drainage system adjacent to that tract had been constructed and improved — a per acre value of $12,000.00; Snyder stated this sale more or less set the higher limits, and he felt the Schmieder-McCain sale more representative of the subject property, though its land area is larger than subject and its purchase antedated the expropriation from the defendants by more than two years.

The witness Snyder, adjusting his com-parables to the subject property, estimated the worth of Parcel 7-2, after adding to the 1.27 acres taken completely the .0964 acres taken for a lateral drain making a total of 1.3664 acres, at the sum of $8,198.40. He calculated the severed 0.15 acre piece to have been damaged in the sum of $702.00, although, if the acreage value before taking was $6,000.00, and the severance of this piece would result in its being reduced in value of $1,000.00, it would appear that this sliver of property would now be worth $150.00 as against $900.00 before taking, and the damages would consequently come to $750.00. Snyder assayed to explain this apparently conflicting differential of $48.00 by saying certain steps and procedures were taken and used acceptable to the appraisal trade in accomplishing the more realistic figure of $702.00. This appraiser’s estimate of value and severance damages on Parcel 7-2, not counting the value of improvements no longer in dispute, comes to the sum of $8,900.40.

Using and adjusting the same compar-ables, Mr.

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Related

Parish of East Baton Rouge v. Fontenot
255 So. 2d 230 (Louisiana Court of Appeal, 1971)

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Bluebook (online)
246 So. 2d 290, 1971 La. App. LEXIS 6216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parish-of-east-baton-rouge-v-succession-of-cashio-lactapp-1971.