STATE, DOTD v. Fakouri

541 So. 2d 291, 1989 WL 22893
CourtLouisiana Court of Appeal
DecidedMarch 15, 1989
Docket87-1365
StatusPublished
Cited by7 cases

This text of 541 So. 2d 291 (STATE, DOTD v. Fakouri) 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, DOTD v. Fakouri, 541 So. 2d 291, 1989 WL 22893 (La. Ct. App. 1989).

Opinion

541 So.2d 291 (1989)

STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Plaintiff-Appellee,
v.
John J. FAKOURI, Jr., et al., Defendants-Appellants.

No. 87-1365.

Court of Appeal of Louisiana, Third Circuit.

March 15, 1989.
Rehearing Denied April 12, 1989.
Writ Denied June 2, 1989.

*292 Wm. W. Irwin, Jr., Edward A. Michel, Jr., Baton Rouge, Fournet & Adams, Robert J. Adams, Lafayette, for plaintiff-appellee.

Edwards, Stefanski & Barousse, Homer E. Barousse/Stephen A. Stefanski, Crowley, for defendants-appellants.

Before GUIDRY, LABORDE and KING, JJ.

KING, Judge.

The issues presented in this appeal are whether or not the trial court was correct in rejecting defendants' demand for additional damages resulting from the expropriation of their property and whether or not the trial court was correct in fixing the amount of expert witness fees for defendants' appraisers.

The State of Louisiana, Department of Transportation and Development (hereinafter plaintiff) filed suit to expropriate certain land owned by John Fakouri, Jr. and others (hereinafter defendants) alleging just compensation for the land sought to be taken was $594.00 per acre or a total of $47,034.00. Defendants answered the petition denying plaintiff's estimate of just compensation and sought $1,000,000.00 for their property. Defendants later amended their pleading to demand $4,000,000.00. After trial the trial court rendered judgment in favor of defendants and against plaintiff awarding the sum of $28,187.95. This amount represented the difference between the original valuation made by plaintiff and the value of $950.00 per acre determined by the trial court. The court also awarded defendants $7,046.75 in attorney's fees and awarded witness fees for defendants' experts of $14,600.00. Defendants timely devolutively appealed. Plaintiff answered the appeal. We affirm.

FACTS

On July 21, 1981, plaintiff filed suit and expropriated, pursuant to LSA-R.S. 48:441, *293 et seq, the Quick Taking Statute, in full ownership a 79.81 acre tract of land near Washington, Louisiana belonging to various members of the Fakouri family. The property was expropriated for use as a lake, camping and scenic area and rest stop in the State's I-49 highway project on the North-South Thruway connecting I-20 at Shreveport to I-10 at Lafayette.

There was a difference of opinion between the parties as to the classification of the property for purpose of appraisal and valuation. The plaintiff categorized the property as timberland, while the defendants considered it as a sand deposit reserve. The trial court noted in its written reasons that "... the highest and best use to which the property was adaptable at the time of the taking and in the not-too-far distant future as of that time was farming." The court reached this conclusion after considering the testimony of the various experts. As the entirety of the land owned by the defendants was taken the question of severance damages is not involved as this is a total taking. The first question to be decided by this court on appeal is whether or not the trial court was correct in fixing the value of the land taken by the State as of the date of taking, which was July 21, 1981.

LAW

It is well settled that an appellate court should not disturb the factual finding of a trial court in the absence of manifest error. Manifest error, in its simplest terms, means "clearly wrong." Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). In a trial of an expropriation suit in which experts disagree as to the highest and best use and the value of land taken, the trial court is granted much discretion in evaluating and determining the weight to be given to each expert witness. The trial court's findings of fact will not be disturbed on appeal unless these findings are clearly erroneous. State, Etc. v. Estate of Aertker, 404 So.2d 316 (La.App. 3 Cir.1981).

This is an expropriation case in which defendants claim that their property is worth much more than the trial court allowed. In determining the value of the defendants' property which was expropriated this court must first assess whether the trial court was correct in finding that the highest and best use for the property was for farming.

LSA-R.S. 48:453(A) provides that:
"The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken."

This statute has been consistently followed by the courts of our state. See, e.g. State, Dept. of Highways v. Bitterwolf, 415 So.2d 196 (La.1982); State of Louisiana v. Hayward, 243 La. 1036, 150 So.2d 6 (1963); and State, Dept. of Trans. & Dev. v. Stephenson, 480 So.2d 909 (La.App. 2 Cir.1985).

Compensation to be awarded in expropriation suits is the market value of the property taken based on a price which would be agreed upon between a willing and informed buyer and seller, under usual and normal circumstances. State v. Hayward, supra.

The trial court stated in its written reasons:
"Having duly considered the evidence and the excellent briefs of counsel, it is my opinion that the highest and best use to which the property was adaptable at the time of the taking and in the not too far distant future as of that time, was farming. Although it is indicative that this property was classified as a wetland, the testimony convinces me that a wetlands permit, if necessary, would not be difficult to obtain by someone wishing to convert the property to agricultural use."

There is ample evidence in the record to support these findings of fact.

Dr. Lloyd F. Baehr of the U.S. Corps of Engineers, an expert witness for plaintiff on the trial of this matter, had occasion to make an inspection and determination of this property as to its status as "wetlands", *294 and, in a written memo prepared by him for such purpose, indicated the following:

"Pertinent site information was recorded concerning the apparent plant community structure, general hydrological influences, and soils makeup.
* * * * * *
Generally, the property was a wet bottomland hardwoods (WBLHW) consisting of the following vegetational species:"

After a recitation of the types of vegetation located on the subject property, Dr. Baehr continued his analysis as follows:

"Based primarily on plant community structure and supported by soils and/or hydrological information, the property which is wooded is a wetland and subject to Corps Section 404 jurisdiction. Discussions with Ms. Barbara Keeler of the U.S. Environmental Protection Agency (EPS), Dallas regional office, on 26 Nov 84, led to the EPA's concurrence (under the `special case' memorandum of understanding attachment 6) with my findings. Therefore, a U.S. Department of the Army permit would have to be obtained prior to placement of any dredged or fill material in the wetland."

The highest and best use of a piece of property involved in an expropriation suit is that use of the property most favorably employed to which the property is adaptable and may reasonably be put in the not too distant future as determined as of the time of the taking.

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541 So. 2d 291, 1989 WL 22893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dotd-v-fakouri-lactapp-1989.