State ex rel. Department of Highways v. Allen

243 So. 2d 337, 1971 La. App. LEXIS 6378
CourtLouisiana Court of Appeal
DecidedJanuary 11, 1971
DocketNo. 4215
StatusPublished
Cited by5 cases

This text of 243 So. 2d 337 (State ex rel. Department of Highways v. Allen) 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 ex rel. Department of Highways v. Allen, 243 So. 2d 337, 1971 La. App. LEXIS 6378 (La. Ct. App. 1971).

Opinion

GULOTTA, Judge.

This is an appeal from a suit by the Department of Highways of the State of Louisiana for the expropriation of a parcel of property for highway purposes owned by the defendant, Arthur M. Allen, and partially leased to Lew A. Wallace, lessee.

The subject property is located in the third district of the ninth ward within the City of New Orleans along the Chef Menteur Highway in close proximity to the area wherein Downman Road intersects the said highway. The tract of land owned by defendant, Allen, measures 108.5 feet front on the north side of Chef Menteur Highway by depth of 1,111 feet between equal and parallel lines. The property is zoned F-commercial from the entire frontage on the highway to a depth of 995 feet. The remaining rear area is zoned B-residential.1

The part of the property expropriated under the Quick Taking Act, LSA-R.S. 48:441^t60, involves all of the frontage on the highway to a depth of 398.25 feet on the eastern side and slanting back to the western point on the property on the Chef Menteur Highway. ' The total amount of area of ground subject of the taking was 23,478 square feet, all of which is zoned F-commercial, and encompasses the entire frontage on Chef Menteur Highway. This area represents the most valuable parcel of the defendant Allen’s property.

By agreement and compromise with the lessee, the lease was cancelled and Arthur M. Allen became the unencumbered owner of the property. The property was taken on June 4, 1964, after the Department of Highways filed an estimate of just compensation dated March 11, 1964 setting forth the value of the land expropriated at $44,-600 and in addition the value of the damages to the remainder as a result of the taking at $39,100, or a total of $83,700. This estimate was signed by two competent appraisers, E. A. Tharpe, Jr., and E. A. Aschaffenburg. This amount was deposited in the registry of the court in accordance with law and subsequently withdrawn by the owner, Allen.

There is no dispute with the right of the Department of Highways to expropriate the property. The only dispute is the value of the property taken and the amount of the damages incurred. There is also no dispute as to the value of the residential part of the property in the rear of the Allen parcel of ground. All experts agree that the value is $1.00 per square foot and is not affected one way or the other by the taking. The dispute arises as to the value of the commercial property in June, 1964, and the effect of the taking on the remaining portion of the Allen property.

The Department of Highways contends that the amount deposited in the registry of the court, i. e., the sum of $44,600 is adequate and just compensation for the property expropriated based on an evaluation of $1.90 per square foot.

The defendant-appellant, Allen, contends that the amount of compensation paid for the area expropriated is inadequate and that an adequate and just sum should have been based on an evaluation of $2.50 per square foot. The contention, as to adequate compensation and damages, is as follows:

(Value of the land taken (23,478.8 sq. ft.) at $2.50 pei- sq. ft. (Tr. Vol. 2, p. 15) $58,696.75
Total compensation due to defendant (for land taken and for damages to the remainder) as of June 4, 1964 $122,391.73
[340]*340Computed as follows:
Value of the entire property $227,607.40
Value of the remainder immediately after taking $105,215.67
Total compensation due for land taken and damages as of June 4, 1964 (Tr. Vol. 2, p. 40) $122,391.73
Subject to credit of payment by Highway Dept. $ 83,700.00
Additional amount of compensation for land taken and damages as of June 4, 1964, due to defendant $ 38,691.73
Fee paid by defendant to expert appraiser $ 1,950.00
Total amount due to defendant (as per Tr. Vol. 3, Testimony of 4-21-69, p. 67) $ 40,641.73
Plus legal interest from June 4, 1964.

Defendant-appellant further contends that the amount of damages is determined at the time of the trial as distinguished from the time of the taking.

Defendant-appellant further contends that he was not permitted to properly cross examine an appraiser who signed the estimate of just compensation and therefore was deprived of an opportunity to impeach his testimony and further deprived the court of evidence which would assist in reaching a determination of an adequate and just compensation.

The trial court concluded that the payment by the Highway Department of the sum of $44,600 for the land ($1.90 per square foot) was adequate compensation for the land and that $39,100 paid by the Highway Department for the depreciation in value of the remaining portion, after the taking, was also adequate and denied the defendant’s claim for additional compensation.

In connection with the question of the method of computing the damages to the remaining portion of the property after the expropriation, this court is of the opinion that the trial judge rightfully concluded that the damages allowable for expropriation of property rights is the difference between the market value of the property for sale or rental purposes immediately before and immediately after the expropriation. The trial court cited State Through Department of Highways v. Mason, La., 229 So.2d 89. Rehearing denied December 16, 1996. In well written reasons for arriving at this conclusion the trial judge properly resolved this issue.

This court further cannot agree with the contention of the defendant-appellant that the defendant and the court were deprived of the testimony both on direct and cross examination of witness, Aschaf-fenburg, one of two appraisers who signed the estimate of just compensation. A study of the record reveals that Mr. Aschaffen-burg was afforded ample opportunity to explain, evaluate and re-evaluate the reasons for the conclusions and values reached by him. The earlier complaints of defendant-appellant were cured, if ever they did exist, by the later testimony of Mr. Aschaf-fenburg which afforded both sides ample opportunity to question this witness. Therefore, we find no merit in this contention by the defendant-appellant that the trial court was in error resulting in a failure to have the entire record complete from the testimony of the witnesses available to the court. On the contrary, there is, in this court’s opinion, more than ample evidence upon which to base a judgment. We find no merit, therefore, in defendant-appellant’s contention that we remand this matter in order to afford opportunity for further evidence to be taken herein.

However, in connection with the question of the square foot evaluation placed on the property expropriated in its estimate of just compensation by the Department of Highways and embraced by the trial court in the judgment rendered and in the reasons assigned by the trial court, we find that there is merit in defendant-appellant’s contention and that the trial judge was in error.

[341]*341The trial judge properly enumerated that in expropriation cases we are dealing in the abstract and that we are dealing with the opinions of experts and that we must rely on the opinions of those experts.

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394 So. 2d 1250 (Louisiana Court of Appeal, 1981)
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348 So. 2d 1301 (Louisiana Court of Appeal, 1977)
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316 So. 2d 129 (Louisiana Court of Appeal, 1975)
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306 So. 2d 836 (Louisiana Court of Appeal, 1975)
State ex rel. Department of Highways v. Allen
245 So. 2d 716 (Supreme Court of Louisiana, 1971)

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Bluebook (online)
243 So. 2d 337, 1971 La. App. LEXIS 6378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-highways-v-allen-lactapp-1971.