State, Dept. of Transp. & Develop. v. Taylor

461 So. 2d 1282
CourtLouisiana Court of Appeal
DecidedJanuary 15, 1985
Docket83-1096
StatusPublished
Cited by17 cases

This text of 461 So. 2d 1282 (State, Dept. of Transp. & Develop. v. Taylor) 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, Dept. of Transp. & Develop. v. Taylor, 461 So. 2d 1282 (La. Ct. App. 1985).

Opinion

461 So.2d 1282 (1985)

STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Plaintiff-Appellant,
v.
Larry G. TAYLOR, et al., Defendants-Appellees.

No. 83-1096.

Court of Appeal of Louisiana, Third Circuit.

January 15, 1985.
Writ Denied March 15, 1985.

Bryan Miller, Baton Rouge, for plaintiffappellant.

Thomas, Dunahoe & Gregory, Edwin Dunahoe, Natchitoches, for defendants-appellees.

Before DOMENGEAUX, GUIDRY, FORET, DOUCET and KNOLL, JJ.

DOMENGEAUX, Judge.

The questions involved on this appeal concern just compensation to which appellees are entitled by reason of expropriation. The property in question is located in Natchitoches Parish and was expropriated in fee by the State of Louisiana for the *1283 purpose of constructing a portion of Interstate I-49, commonly referred to as the North-South Road. The minerals underlying the tract of land taken were reserved to the defendants. Plaintiff filed suit on October 27, 1982, taking 49.932 acres and deposited the sum of $97,400.00, into the registry of the court, stating in its petition that of this sum $71,751.00 was for the value of land taken and improvements and $25,649.00 was for severance damages. Subsequent thereto, defendants withdrew the amount of money deposited, reserving their right to seek more compensation.

After trial, the lower court held that the value of the tract of land expropriated was $74,256.40. Additionally the trial court held that because of the construction of the highway, defendant's remaining property, some 224.225 acres, became landlocked. The court held the value of this property before the taking to be $325,135.76 with a residual value afterwards of $22,422.50 (or $100.00 per acre). This resulted in a severance damage award of $302,713.26. Additionally, the trial court awarded the defendants $137,020.00 for fill dirt which the State plans to excavate from one high portion of the expropriated land and relocate it to fill the embankment at a lower area. This resulted in a total award to the defendants of $513,989.66. The State was given credit for the amount deposited, generating a net award of $416,589.66. The court also awarded the plaintiff 25% of the excess award as attorney's fees and granted interest on all sums from the date of judicial demand.

From that judgment plaintiff has perfected this appeal claiming the trial court committed reversible error in the following respects:

1. In awarding severance damages in excess of the amount proven by defendants.

2. In making an award to the defendants for the value of the fill dirt.

3. In allowing the award of attorney's fees to bear interest.

THE SEVERANCE DAMAGE AWARD

The general law involved here is simply that the owner is entitled to the market value of his land at the time of the expropriation, and market value is what a willing purchaser will pay a willing seller under ordinary circumstances. An owner is also entitled to resulting or severance damage to the remaining property when only part is taken and damage results thereby to that remainder. In the latter case the measure of compensation is the dimunition in the value of the remaining property for sale or rental, determined by arriving at the value immediately before and after the expropriation. There is no disagreement between the parties as to the value of the land actually taken. However, there is a wide divergence of opinion as to the value of the alleged landlocked 224.225 acres lying north of the proposed Interstate.

At trial, the defendants presented two expert witnesses, Mr. R. Stacy Williams and Mr. Barry Guillet, both of whom concluded that as a result of the taking herein, the 224.225 acres remaining north of the Interstate were landlocked and as such their values were significantly reduced. Mr. Williams and Mr. Guillet testified that the primary reason for the severance damage was the lack of accessibility. Mr. Williams concluded that, in his opinion, the land had practically no residual value, i.e., $100.00 per acre, with the only value being that for speculative oil and gas leasing purposes. Mr. Guillet placed a slightly higher residual value on the property, i.e., $400.00 per acre, basing his conclusion on the possibility of a sale to one of the adjoining landowners.

In support of its defense of the position that the deposit of $25,649.00 as compensation for damages represented a just estimate of the severance damages, the State called Mr. James C. McNew and Mr. R.J. Fulco, expert fee appraisers. Both considered that if indeed the north remainder was landlocked, it contained 144 acres of timberland and about 80.225 acres of farmland, for a total of 224.225 acres.

*1284 Both appraisers studied comparable sales of landlocked property and concluded that of the allegedly landlocked property, the value of the timberland thereon would not be reduced but that the value of the crop land would be reduced by 20%. The explanation given for the difference in the value reduction was that extremely long intervals exists where no access is needed to harvest timber, as contrasted to the frequent need of access to harvest crops.

It has long been recognized that loss of access is a critical factor in the evaluation of damage to property which is caused by a partial taking. State, through Department of Highways v. O'Neal, 149 So.2d 421 (La.App. 3rd Cir.1963); and Cucurullo v. City of New Orleans, 86 So.2d 103 (La.1966).

Likewise it is well settled that severance damages must be shown to a reasonable certainty and must not be too remote or speculative for the mere possibility of severance damages is an insufficient basis for an award. City of Alexandria v. Jones, 108 So.2d 528 (La.1959).

We find that defendants have failed to prove the severance damages to a reasonable certainty; rather the evidence in the record is too speculative to support the award. For as pointed out in the trial judge's opinion "The probability exists that the defendants could obtain accessibility to this property."

The property in question is bounded on one side by the Interstate from which accessibility unquestionably cannot be obtained. However, opposite the Interstate boundary is the Missouri-Pacific Railroad. The other two sides are bounded by private landowners. The Bienvenus are on one side and there is a Mr. Deville on the other side. Defendants allege that "the record herein contains no evidence indicating the Bienvenus willingness to grant a way of passage." In reality, the record does not indicate what their intentions would be one way or the other. The record is simply devoid as to any efforts being made to secure a right of way across the Bienvenu property. As to the railroad, the record only establishes that a right of way across the railroad would be "distasteful". There is some evidence that, as according to defendant, Mr. Deville is "more likely than not" going to give gratuitous permission to cross his land. Further, there is some estimate as to the cost of building a road across Mr. Deville's land. But the evidence when viewed as a whole is simply not adequate to support the trial judge's determination of severance damages, i.e., that the residual value of the property is only $100.00 an acre.

We shall therefore remand this issue to the trial court to conduct further proceedings to determine the possibility of gaining access across the Deville property, the Bienvenu property, or the railroad property.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State, Department of Transportation & Development v. Regard
567 So. 2d 1174 (Louisiana Court of Appeal, 1990)
State, Dept. of Transp. v. Maynard
565 So. 2d 532 (Louisiana Court of Appeal, 1990)
State, Department of Transportation & Development v. Kass
559 So. 2d 52 (Louisiana Court of Appeal, 1990)
STATE, DEPT. OF TRANSP. & DEV. v. Williamson
557 So. 2d 731 (Louisiana Court of Appeal, 1990)
Bowden v. State, Dept. of Transp. & Dev.
556 So. 2d 1343 (Louisiana Court of Appeal, 1990)
City of Lafayette v. Richard
549 So. 2d 909 (Louisiana Court of Appeal, 1989)
STATE, DOTD v. Semp Russ Plantations
529 So. 2d 487 (Louisiana Court of Appeal, 1988)
STATE, DEPT. OF TRANSP. & DEV. v. Mayet
521 So. 2d 671 (Louisiana Court of Appeal, 1988)
State, Department of Transportation & Development v. Willoughby
520 So. 2d 998 (Louisiana Court of Appeal, 1987)
State, Dept. of Trans. & Dev. v. Boagni
509 So. 2d 471 (Louisiana Court of Appeal, 1987)
STATE, DEPT. OF TRANSP. & DEV. v. C. Schexnayder, Inc.
485 So. 2d 939 (Louisiana Court of Appeal, 1986)
State ex rel. Department of Transportation & Development v. Townsend
473 So. 2d 99 (Louisiana Court of Appeal, 1985)
STATE, THROUGH DEPT. OF TRANSP. & DEV. v. Townsend
473 So. 2d 99 (Louisiana Court of Appeal, 1985)
State, Dept. of Transp. & Develop. v. Henry
468 So. 2d 1262 (Louisiana Court of Appeal, 1985)
State, Department of Transportation & Development v. Taylor
464 So. 2d 1382 (Supreme Court of Louisiana, 1985)
City of Lafayette v. Dore
460 So. 2d 755 (Louisiana Court of Appeal, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
461 So. 2d 1282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dept-of-transp-develop-v-taylor-lactapp-1985.