State D. of Trans. & Dev. v. Estate of Clark

432 So. 2d 405
CourtLouisiana Court of Appeal
DecidedMay 17, 1983
Docket82 CA 0756
StatusPublished
Cited by22 cases

This text of 432 So. 2d 405 (State D. of Trans. & Dev. v. Estate of Clark) 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
State D. of Trans. & Dev. v. Estate of Clark, 432 So. 2d 405 (La. Ct. App. 1983).

Opinion

432 So.2d 405 (1983)

STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT
v.
ESTATE OF Elijah CLARK, Sr., et al.

No. 82 CA 0756.

Court of Appeal of Louisiana, First Circuit.

May 17, 1983.

*407 Richard N. Burtt, Bernard L. Malone, Jr., Robert L. LeDoux, Baton Rouge, for plaintiff-appellant State of La., Dept. of Transp. & Development.

Joseph A. Gladney, Baton Rouge, for defendant-appellant Estate of Elijah Clark, Sr., et al.

Before LOTTINGER, COLE and CARTER, JJ.

CARTER, Judge.

This is an expropriation proceeding in which both the plaintiff, State of Louisiana, Department of Transportation and Development (DOTD) and the defendant, the Estate of Elijah Clark,[1] appeal the judgment of the trial court awarding defendant the sum of $8,716.00 in compensation for its loss and the sum of $1,779.50 for attorney fees.

Plaintiff, DOTD, appeals contending that the trial court erred in awarding attorney fees in excess of the statutory allowance. Defendant Clark appeals seeking an increase in the amount of compensation and damages awarded.

The State of Louisiana, Department of Transportation and Development, instituted this expropriation proceeding to obtain a strip of land for use in the right-of-way of Interstate 110 in East Baton Rouge Parish. DOTD, pursuant to LSA-R.S. 48:441-460, took 31,188.3 square feet of land from property owner on May 22, 1979. The taking left two remaining areas: one, a small triangular piece containing 1,278.6 square feet, and the other, an area containing 57,218.8 square feet, or 1.08 acres. On the day of the taking, DOTD deposited $2,798.00 into the registry of the court as its initial estimate of just compensation.

The trial court found the market value of the parcel taken in full ownership, less the mineral rights, to be $8,421.00. The trial court made an additional award of $295.00 as severance damages to the severed triangular tract, noting that "it has no functional use except possibly to some adjoining landowner on the other side of the interstate." Severance damage to the larger tract was not awarded because the trial court concluded that "there will be no damage to this large remainder." Accordingly, the court concluded that the total just compensation to be paid the property owner was $8,716.00.

Because $2,798.00 had been deposited in the registry of the court, which the owner had already withdrawn, the court found that the owner was entitled to additional compensation of $5,918.00 and rendered judgment in that amount. Additionally, under LSA-R.S. 48:453(E), the trial court awarded reasonable attorney fees in the amount of $1,479.50 and reimbursement of the expert witness fees, but later amended *408 that judgment to reflect a total award of $1,779.50 for attorney fees.

Defendant Clark contends that the trial court erred as follows:

(1) In failing to award fair market values for the property taken and for the small inaccessible severed tract;
(2) In failing to award severance damage for the remaining tract of land; and
(3) In selecting and appointing an expert who may have been associated with a party to the lawsuit.

Plaintiff, DOTD, contends that the trial court erred in its award of attorney fees.

JUST COMPENSATION

Defendant alleges that he was not justly compensated for his land which was taken for public use. At trial, each party presented three expert witnesses and the court appointed a seventh appraiser in order to determine just compensation. The trial court found that the value of the land taken was twenty-seven cents per square foot or $8,421.00.

Property cannot be "taken or damaged" by the state or its political subdivisions except for public purposes and with "just compensation" paid to the owner or into the court for his benefit. La. Const. 1974, Art. 1, § 4. In every expropriation, the owner must be compensated to the "full extent of his loss." La. Const. 1974, Art. 1, § 4; State, Department of Highways v. Bitterwolf, 415 So.2d 196 (La.1982). Thus, our constitution does not simply require that the owner of condemned property be compensated with the market value of the property taken and severance damages to his remainder, but that he be "placed in as good a position pecuniarily as he enjoyed prior to the taking." State, Department of Highways v. Constant, 369 So.2d 699 (La. 1979). See Note, Expropriation: Compensating the Landowner to the Full Extent of His Loss, 40 La.L.Rev. 817 (1980).

Generally, compensation means a full indemnity or remuneration for the loss or damage sustained by the owner of the property taken or injured by public use; and just compensation means the full and perfect equivalent in money of the property taken whereby the owner is put in as good a position pecuniarily as he would have been had his property not been taken. Marathon Pipeline Company v. Pitcher, 368 So.2d 994 (La.1979).

In expropriation matters, the defendant has the burden of proving his claim. LSA-R.S. 48:453. The burden imposed upon the person having his property expropriated is to establish his claims to a legal certainty and by a reasonable preponderance of the evidence; speculation, conjecture, mere possibility and even unsupported probability are not sufficient to support a judgment. State v. Levy, 242 La. 259, 136 So.2d 35 (La.1961).

The trial judge in oral reasons for judgment stated, and we agree, as follows:

"The property subject to taking is described as a portion of Lot 13, situated in the Resubdivision of Lot 7 of the Taylor Tract, and is located at 9144 Wilbur Street. Full ownership has been taken, less the mineral rights, and there has been left a small remainder at the rear portion of the tract, which has been severed from the tract and has no functional value. Although there is a residence and other improvements located on the lot, the portion of the lot taken is at the rear and does not include any improvements.
"The property is residential property and is zoned A-3-1, being limited residential, and it is fair to state that the majority of the appraisers who testified were of the opinion that the highest and best use of the property is multi-family residential. The taking was as of May 22, 1979, and the State deposited in the registry of the Court the sum of $2,798.00 as just compensation.
"In order to secure some objectivity the Court, well before the trial, appointed Daniel Carlock, a prominent independent appraiser, as the Court's expert under the provisions of Civil Code of Procedure Article 192, which allows the Court to appoint an expert in order to assist it in reaching a just decision in this case. Mr. *409 Carlock furnished each of the respective parties and the Court with a copy of his appraisal report in advance of trial.
"Now, representing the property owners are Louis Barcelona, John LeJeune, and Wayne Williams, all well known and experienced appraisers. Testifying for the State were W.A. Gordon, Jack Evans and John Alphin, capable appraisers in their own right. Although each appraiser used the market data approach, as expected and customary the opinion of the State's appraisal experts and the landowner's experts were substantially diverse concerning the just compensation to be paid the landowner for the property expropriated.

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432 So. 2d 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-d-of-trans-dev-v-estate-of-clark-lactapp-1983.