State, Department of Transportation & Development v. Walter

527 So. 2d 563, 1988 La. App. LEXIS 1384, 1988 WL 63559
CourtLouisiana Court of Appeal
DecidedJune 22, 1988
DocketNo. 87-582
StatusPublished
Cited by2 cases

This text of 527 So. 2d 563 (State, Department of Transportation & Development v. Walter) 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, Department of Transportation & Development v. Walter, 527 So. 2d 563, 1988 La. App. LEXIS 1384, 1988 WL 63559 (La. Ct. App. 1988).

Opinion

STOKER, Judge.

This is an expropriation suit. The plaintiff, State of Louisiana, Department of Transportation and Development (DOTD), expropriated .292 acres of an 88.61-acre tract of land in St. Landry Parish belonging to the defendant, Georgie Boagni Walter, on July 16, 1981. The expropriation was done pursuant to the “quick-taking” statute, LSA-R.S. 48:441, et seq. The land [564]*564expropriated is part of the right of way for Interstate Highway 49 (1-49). DOTD deposited the sum of $1,300 into the registry of the court as just compensation for the land taken. On August 11, 1981 the defendant withdrew the sum on deposit in the registry of the court. Thereafter, on November 2, 1981, the defendant answered DOTD’s expropriation petition seeking an increase in the amount deposited as just compensation and severance damages to the remaining 88.318 acres in the amount of $541,590, plus interest and attorney’s fees.

After trial on the merits, the trial court rendered judgment in favor of Georgie Boagni Walter and against DOTD awarding just compensation for the property taken in the amount of $335 and awarding the sum of $91,409.13 as severance damages, for a total of $91,744.93, less the previous deposit of $1,300. Defendant was also awarded attorney’s fees in the amount of $22,611.23 and an expert witness fee of $2,750 was taxed as costs.

DOTD has appealed the judgment of the trial court. The issues presented in this appeal concern the value of the property taken and the value of the severance damages to the remaining property. Georgie Boagni Walter has neither appealed nor answered DOTD’s appeal.

PACTS

The property in question is part of a larger tract of land which belonged to Dr. C.F. Boagni. After Dr. Boagni’s death, the property was partitioned in 1967 by the Boagni heirs. The partitioned property consists of six contiguous tracts of land situated approximately four miles northwest of the town of Washington in St. Landry Parish. Mrs. Walter’s property is the southernmost tract and is bounded on the west by Bayou Cocodrie, to the north by Boagni property, and to the east and south by Thistlewaite properties. At the time of the taking, Mrs. Walter’s property was a low-lying wooded tract subject to inundation from Bayou Cocodrie with no improvements except a fence at its boundary. The only public utility available to the property was electricity. Legal access to Mrs. Walter’s property from the nearest public road was by rights of way through abutting properties to the north and east.

The 1-49 right of way comes through all of the Boagni properties, Mrs. Walter’s property having the least amount of property expropriated. 1-49 is a controlled access facility which prevents the property owners along the right of way from using the highway as a means of ingress or egress from their property. The construction of 1-49 severed the only legal access to Mrs. Walter’s property. However, a bridge on 1-49 was constructed near the northernmost Boagni tract, over an old logging road, which theorectically would give the Boagnis access to their property.

HIGHEST AND BEST USE OF THE LAND TAKEN

DOTD contends that the trial court erred in determining that the highest and best use of the subject tract was agricultural, and in doing so relied erroneously on the testimony of the defendant’s expert, John Lejeune.

Mr. Lejeune testified that the property had multiple highest and best uses, those being (1) timber, (2) agricultural, and (3) future recreational purposes. It was Mr. Lejeune’s opinion that the property could be used for timber purposes until such time as the timber became merchantable and marketable. Mr. Lejeune further concluded that when the timber had been harvested the owner would have put the land gradually into agricultural use. This would be cost effective to the owner because, when the timber became marketable, the timber company would clear the property so that it would not be a cost item to the property owner. Therefore, it seems that Mr. Lejeune’s opinion was that the highest and best use entailed (1) harvesting the timber and then (2) converting the property to agricultural use. Mr. Lejeune did not know how much merchantable timber was on the land, but estimated that the value of the merchantable timber would have to be $350 to $500 per acre before a timber company would harvest it. Mr. Le-[565]*565jeune did not take into account in his appraisal the cost of clearing the property for agricultural use, but in response to the trial court’s inquiry estimated the cost to be approximately $350 per acre.

Based upon his examination of comparable sales in the area, Mr. Lejeune opined that the fair market value of the property was $1,500 per acre at the time of the taking.

By contrast, DOTD’s expert, James McNew, testified that the highest and best use of the property was as timberland with a recreational potential. It was his opinion that at least 70% of the property did not have good soil for agricultural purposes and because of its size, flooding problems and the nature of its access through abutting properties, it would be impractical and not economically feasible to cultivate it. Based upon his examination of comparable sales of timberland, Mr. McNew appraised the fair market value of the property at $700 per acre.

The trial court, after weighing the testimony and evidence presented by the two experts, concluded in its reasons for judgment as follows:

“Mr. LeJeune has found that the highest and best use of this property was, I think, timber and agriculture. I think that Mr. McNew testified for the State consistent with the testimony that he gave in the other case and found that the highest and best use were timber and I think recreation. There is only one highest and best use unless there are two uses to which the land may be put to at the time of the taking , which when considered would produce the same value. Otherwise, there can only be one highest and best use that would produce the top dollar for that property depending upon the manner in which the use of it is employed in the not too distant future. I’m satisfied from the evidence that the highest and best use to which this land could be put would be farming. I’m satisfied that it was — if farming operations were available on similar land in the area and that while this land was being used for recreational purposes or timber that that is just one factor to be considered. It’s present use, it’s not controlling.”

Based upon this determination of highest and best use, the trial court accepted Mr. Lejeune’s valuation of the property at $1,500 per acre. However, cognizant of the fact that the property would have to be cleared of timber, the trial court subtracted the $350 per acre cost to clear the land estimated by Mr. Lejeune. The court then arrived at a value per acre of $1,150. The trial court concluded that the clearing of the property for agricultural use was warranted by the testimony of Mr. Lejeune that the property would have to have at least $350 to $500 of merchantable timber to entice a timber company to harvest it. The court arrived at a timber value of $172 per acre, while Mr. McNew testified the timber had a value of $205 per acre. Clearly neither value meets the threshold testified to by Mr. Lejeune. Therefore, the trial court concluded the highest and best use was agricultural.

DOTD has put at issue, by way of this appeal, the trial court’s acceptance of the opinions and testimony of Mr. Lejeune and the rejection of Mr. McNew’s opinion and testimony.

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Related

Preis v. Preis
649 So. 2d 593 (Louisiana Court of Appeal, 1994)
State, Department of Transportation & Development v. Regard
567 So. 2d 1174 (Louisiana Court of Appeal, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
527 So. 2d 563, 1988 La. App. LEXIS 1384, 1988 WL 63559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-department-of-transportation-development-v-walter-lactapp-1988.