STATE, DEPT. OF TRANSP., ETC. v. Van Willet

389 So. 2d 1346
CourtLouisiana Court of Appeal
DecidedOctober 8, 1980
Docket7799
StatusPublished
Cited by14 cases

This text of 389 So. 2d 1346 (STATE, DEPT. OF TRANSP., ETC. v. Van Willet) 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., ETC. v. Van Willet, 389 So. 2d 1346 (La. Ct. App. 1980).

Opinion

389 So.2d 1346 (1980)

STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, Plaintiff-Appellee,
v.
Darrel VAN WILLET, Sr., et ux., Defendants-Appellants.

No. 7799.

Court of Appeal of Louisiana, Third Circuit.

October 8, 1980.

*1348 Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III, Alexandria, for defendants-appellants.

William W. Irwin, Jr., Johnie E. Branch, Jr., Edward A. Michel, J. Bryan Miller, Baton Rouge, for plaintiff-appellee.

Before FORET, STOKER and LABORDE, JJ.

FORET, Judge.

This is an expropriation suit.

The State of Louisiana, through the Department of Transportation and Development, acquired one parcel of land (Parcel 7-4) in full ownership, and temporary servitudes on five other parcels (7-4-C-1, 7-5-C-1, 7-16-C-1, 7-17-C-1 and 7-18-C-1) for use during the construction of a highway project in North Rapides Parish. The order of expropriation was dated June 23, 1978, and the Department of Transportation and Development (hereinafter referred to as the Department), deposited the sum of $2,883.00, as estimated just compensation, in the registry of the court. The appellants answered and sought a substantial increase in the amount of compensation.

*1349 The trial court found the market value of the parcel taken in full ownership to be $6,566.30, and the value of the temporary construction servitudes on the five other parcels to be $457.40. The trial court made an additional award of $1,248.27 for severance damages to the remainder of the property from which parcel 7-4 had been taken. The trial court entered its judgment against the Department and in favor of the appellants-landowners on January 2, 1980. The landowners subsequently perfected this appeal.

A brief description of the properties involved in this appeal will be helpful in understanding our decision.[1] The properties are located in the northern portion of Rapides Parish. They are part of a proposed subdivision called Aurora Park II. There has been some construction already undertaken in this subdivision. However, no improvements have been made on the land with which we are concerned, except for the clearing out of undergrowth and some of the trees.

The expropriation was made in connection with State Project 23-01-17. The project will provide a four-lane, limited access connection from the existing Alexandria-Pineville Expressway to the general area of the Highways 71-167 interchange near the Rapides Parish-Grant Parish line. The affected parcels in this case are located near that interchange. This Court has dealt with other parcels in the immediate vicinity of those with which we are now concerned in State, Department of Transportation & Development v. Van Willet, 383 So.2d 1344 (La.App. 3 Cir. 1980). The opinion in that case provides a clear and concise factual account of the situation as it existed at the time of the expropriation with which we are concerned.

I. SEVERANCE DAMAGES

We turn now to the first issue presented for our determination by the appellants. This issue concerns the trial court's award of $1,248.27 for severance damages to the remainder of the property from which parcel 7-4 was taken in full ownership.

The term "severance damage" describes those compensable damages which flow from the partial expropriation of a parcel, i. e., the diminution in value of the land remaining to the condemnee. State, Department of Transportation & Development v. Van Willet, supra. Severance damages are ordinarily calculated as the difference between the market value of the remaining property immediately before and immediately after the taking. State, Through Department of Highways v. Hoyt, 284 So.2d 763 (La. 1973); State, Department of Highways v. Denham Springs Development Co., Inc., 307 So.2d 304 (La. 1975). LSA-R.S. 48:453(B) provides that the measure of severance damages is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.

The burden of proving alleged severance damages to the remainder of property involved in an expropriation proceeding rests upon the owner, who must establish such damages with legal certainty by a preponderance of the evidence. The informed and reasoned opinion of experts, corroborated by the facts in the record, may adequately prove a severance damage loss, especially where accepted by the trier of fact. State, Department of Highways v. Denham Springs Development Co., Inc., supra.

The detrimental effects of the project were identified by the appraisers Willet, Futrell and Cope, as follows:

Proximity to a four-lane expressway with elevated grade; change in beauty and esthetic value; change in basic neighborhood from quiet, wooded residential to frontage road property; and, increased noise, vibration and fumes.

*1350 The appellants' appraisers in this case were Darrel Van Willet, Sr., the property owner, and Perry E. Futrell, Jr. The State's appraisers were M. C. Gehr and Gene N. Cope. Van Willet found that the remainder property suffered a severance damage factor of 40%. Futrell set the factor at 35%. Cope found the factor to be 10%, while Gehr found that the remainder suffered no damage. The trial court set the severance damage factor at 10%.

Appellants argue that this Court, in the case of State, Department of Transportation & Development v. Van Willet, supra, was presented with the identical issue regarding the severance damage factor to property identical to and contiguous with that with which we are now dealing. There, this Court found that the State's appraisers had erroneously taken into account the effects of the project in their before valuation. Appellants allege that the same mistake was made by the State's appraisers in this case. We have studied the record in this case and find that no such mistake was made here. Appellants also argue that the trial court failed to consider all of the factors which were detrimental to the remainder of property in issue here. We disagree.

The trial court simply assigned a damage factor based on the evidence presented to it. It was certainly within the range of factors testified to by the expert appraisers. In expropriation proceedings, the trial court's factual determination as to the value of property, severance damages, and its evaluation and the weight given to the testimony of expert witnesses, should not be disturbed on review in the absence of manifest error. State, Department of Highways v. William T. Burton Industries, Inc., 219 So.2d 837 (La.App. 3 Cir. 1969); State, Department of Highways v. McPherson, 259 So.2d 33 (La. 1972).

Appellants argue that this Court set a severance damage factor of 30% for property identical to and contiguous with the property now in issue in State, Department of Transportation & Development v. Van Willet, supra. However, we find that the property is not identical. The property involved in the earlier case was improved with duplex-type housing situated on it. The property with which we are dealing has no such improvements on it. We hold that the trial court did not commit manifest error in assigning the 10% severance damage factor to the land involved here.

II. SEVERANCE DAMAGES TO THE SERVITUDE REMAINDERS

The second issue presented by appellants is whether the trial court erred in failing to grant severance damages to the remainders of property on which the temporary construction servitudes had been placed.

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Bluebook (online)
389 So. 2d 1346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dept-of-transp-etc-v-van-willet-lactapp-1980.