Sellers v. St. Charles Parish

655 So. 2d 367, 94 La.App. 5 Cir. 451, 1995 La. App. LEXIS 1008, 1995 WL 170724
CourtLouisiana Court of Appeal
DecidedApril 12, 1995
DocketNo. 94-CA-451
StatusPublished
Cited by2 cases

This text of 655 So. 2d 367 (Sellers v. St. Charles Parish) 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
Sellers v. St. Charles Parish, 655 So. 2d 367, 94 La.App. 5 Cir. 451, 1995 La. App. LEXIS 1008, 1995 WL 170724 (La. Ct. App. 1995).

Opinions

UCANNELLA, Judge.

Defendant, St. Charles Parish, (the Parish) appeals from a judgment awarding compensation to plaintiffs, Julius and Pyramid Sellers, for the taking of three pieces of property by virtue of expropriation, with and without the formalities. We affirm in part, reverse in part and remand.

On February 24, 1993, plaintiffs filed suit against the Parish. Plaintiffs, brother and sister, are the owners of a certain tract of land in St. Charles Parish. Plaintiffs allege that in 1975 the Parish obtained a fifteen foot wide waterline servitude for the entire length of the eastern property line of the tract and in 1989, the Parish took a thirty foot wide drainage servitude along the western property line of the tract. The petition asserts that the Parish never paid for the taking of plaintiffs’ land.

On April 16, 1993, plaintiffs amended their petition to include the allegation that the Parish, in an earlier expropriation proceeding, had wrongfully obtained a five foot wide waterline servitude along the southern property line of the tract, in violation of the |3default judgment of expropriation which specified that the servitude be on the south side of a railroad servitude, not on the north side (where it was actually taken).

The Parish filed a peremptory exception of prescription, based on the two year statute of limitations provided in La.R.S. 9:5624, or alternatively, the three year statute of limitations provided in La.R.S. 13:5111. After briefing, testimony and argument, the trial court dismissed the Parish’s exception and ordered the Parish to file its answer. A judge trial was held on January 10,1994 and the trial judge took the matter under advisement. On March 28, 1994, the trial court rendered judgment, awarding plaintiffs $144,969, representing compensation for the taking of the property in question, together with legal interest from the date of judicial demand until paid and all costs of the proceedings. Expert fees were fixed at $4,500 per expert and taxed as costs. Attorney’s fees were fixed at 25% of the amount awarded to plaintiffs.

On appeal, the Parish asserts that the trial court erred in failing to grant its plea of prescription and that the trial court erred in awarding compensation to plaintiffs in the amount of $144,969.

PRESCRIPTION

The Parish cites R.S. 13:5111, which pro: vides for a three year prescriptive period in a proceeding to recover just compensation in an action other than expropriation. It states:

A. A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies Ushall prescribe three years from the date of such taking.
B. The rights of the landowner herein fixed are in addition to any other rights he may have under the constitution of Louisi[369]*369ana and existing statutes, and nothing in this Part shall impair any constitutional or statutory rights belonging to any person on September 12,1975. (Emphasis added)

The Parish asserts that plaintiff, Julius Sellers, knew of the takings and that the takings occurred more that three years prior to the filing of suit. It also contends that, based on the testimony, plaintiffs’ had constructive knowledge of the takings. Furthermore, the parish contends that severance damages are prescribed under a two year limitation in R.S. 9:5624. The statute states that prescription begins for severance damages due to ivork for public purposes, “after the completion and acceptance of the public work

Plaintiffs argue in response that the 1970s’ claims are not prescribed because, although they knew of the takings, they did not know that their mother had not been paid for the takings, until they did research with their mother for a partition in 1991. Plaintiffs argue that prescription does not run until discovery by the landowner. They further contend that the two year prescriptive period does not apply because it only relates to damages caused by the construction of things for the public purpose, but not for construction based on expropriation or appropriation proceedings, citing Roberts v. Murphy Oil Corp, 577 So.2d 308 (La.App. 4th Cir.1991). Concerning the drainage line, plaintiffs assert that it was dug within the three year prescriptive period.

At trial plaintiffs, Julius Sellers, testified that he and his sister, Pyramid (who lived in New York and for whom he held a power of attorney) owned the property in question. He testified that in the early 1970s, the St. Charles Parish Bureau of Waterworks, as a result of a bond issue that was passed, installed a fifteen foot wide waterline along the east side of his property. He stated that he knew of the waterline’s construction and existence, but did not realize until 1991 that neither he nor any member of his family was compensated for the waterline. He testified that the|sproperty was partitioned among his mother, himself and his two sisters in 1991.1

Concerning the second taking, involving the waterline constructed along plaintiffs south property line which was allegedly taken on the wrong side of the railroad tracks, Julius Sellers testified that, in the mid-1970s, the Parish filed an expropriation proceeding to take the land, which he failed to answer or contest. He testified, however, that the land was supposed to be taken on the south side of a railroad servitude, but that in the year prior to the instant trial, he discovered that the Parish actually took the property on the north side of the railroad tracks. He admitted that he received a copy of the expropriation petition, which declared that the Parish was taking the property on the north side. He did not answer the suit nor attend any proceedings relative to the expropriation. It was unclear whether he received a copy of both the original and amended judgments. Mr. Sellers testified that he was compensated fifty dollars for the taking of this particular piece of land.2

The record includes a copy of the February 12, 1975 default judgment of expropriation which specified that the land to be taken was south of the railroad tracks. However, there is also an “amended judgment” in the record, dated February 24, 1975, which amended the “typographical error” in the original judgment and changed “the word ‘south’ to the word ‘north.’”3

The third taking involved a thirty foot wide drainage servitude which borders the western property line of plaintiffs’ tract. Julius Sellers testified that in the late |61980s, he [370]*370was visited by several St. Charles Parish officials who requested that he allow them to construct the ditch to aid drainage and prevent flooding in the area.

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Bluebook (online)
655 So. 2d 367, 94 La.App. 5 Cir. 451, 1995 La. App. LEXIS 1008, 1995 WL 170724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sellers-v-st-charles-parish-lactapp-1995.