State ex rel. Department of Highways v. Blair

273 So. 2d 562, 1973 La. App. LEXIS 6875
CourtLouisiana Court of Appeal
DecidedJanuary 29, 1973
DocketNo. 4082
StatusPublished
Cited by4 cases

This text of 273 So. 2d 562 (State ex rel. Department of Highways v. Blair) 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. Blair, 273 So. 2d 562, 1973 La. App. LEXIS 6875 (La. Ct. App. 1973).

Opinions

MILLER, Judge.

Plaintiff Highway Department expropriated 18,347.6 square feet from defendants Elbert Blair and his wife. Their 4.88 acre tract fronted 160 feet on Louisiana Highway 1 near Alexandria, and the taking was to an average depth of 119 feet. The taken tract was highway commercial property. The Blair home and extensive plantings used in Mr. Blair’s landscape architect profession were partially located on the taken tract.

The property was expropriated under the provisions of LSA-R.S. 48:441-460, on September 11, 1970 when plaintiff deposited $33,647 as its estimate of just compensation for both the taken land and improvements. Defendants withdrew the deposit and filed answer claiming an increase in compensation to $63,728.25. The trial court increased the award to $58,716.25. Plaintiff appealed. We amend to reduce the award.

Plaintiff Highway Department contends that the “average unit price” concept should be used instead of the “front land —rear land” concept; alternatively that the trial court applied an “improper method of applying (the front land — rear land) technique”; that the value of a culvert and a septic system should be deleted from the award; and the award of $11,674.25 for shrubs, trees, flowers and a rock garden located on the taken tract should be deleted.

The “front land — rear land” appraisal accepted by the trial court has been repeatedly approved by this court as a proper concept for determining just and adequate compensation. State of Louisiana, Through the Department of Highways v. Landry, 171 So.2d 779 (La.App. 3 Cir. 1965); State of Louisiana, Through the Department of Highways v. LeDoux, 184 So.2d 604 (La.App. 3 Cir. 1966); State of Louisiana, Through the Department of Highways v. Bertrand, 184 So.2d 611 (La.App. 3 Cir. 1966); State of Louisiana Through the Department of Highways v. Trosclair, 207 So.2d 597 (La.App. 3 Cir. 1967); State of Louisiana, Through the Department of Highways v. Smith, 272 So.2d 746 (La.App. 3 Cir. 1972); State of Louisiana, Through the Department of Highways v. Spera, 272 So.2d 765 (La.App. 3 Cir. 1972); State of Louisiana, Through the Department of Highways v. Stegemann, 269 So.2d 480 (La.App. 3 Cir. 1972); State of Louisiana, Through the Department of Highways v. Mertens, 271 So.2d 280 (La.App. 3 Cir. 1972).

On the facts we distinguish the cases of State of Louisiana, Through the Department of Highways v. Medica, 257 So.2d 450 (La.App. 3 Cir. 1972); State of Louisiana, Through the Department of Highways v. Medica et al., 257 So.2d 454 (La.App. 3 Cir. 1972); and State of Louisiana, Through the Department of Highways v. Monsur, 258 So.2d 162 (La.App. 3 Cir. 1972). For a discussion of the differences, see State of Louisiana, Through the Department of Highways v. Mertens, 271 So.2d 280 (La.App. 3 Cir. 1972).

The particular facts of each case should be looked to in determining the proper valuation method. In the instant case, appraisers for both the Department and landowners' testified that the highest and best use of the property was highway commercial (Tr. pp. 115, 153), and that the optimum commercial property depth in the area was 200 feet. Tr. pp. 103, 148. Each expert witness supported his comparables and discredited those used by the other expert. Monsur’s testimony is most persuasive. We find no manifest error in the trial court’s acceptance of Monsur’s appraisal of the front foot value over that of Messrs. Futrell and Willett.

[564]*564Inasmuch as the Highway Department expropriated a strip of land fronting Louisiana Highway No. 1 to a depth of approximately 119 feet from a substantially larger tract, we hold that the trial court was manifestly correct in awarding $90 per front foot for the 160 front footage. The trial court properly awarded $14,400 for the taken tract. State of Louisiana, Through the Department of Highways v. Spera, 272 So.2d 765 (La.App. 3 Cir. 1972).

Under its second assignment of error, the Highway Department argues that the trial court improperly applied the “front land—rear land” method. The Department argues that the Stegemann holding (269 So.2d 480 [La.App. 3 Cir. 1972]) requires that commercially available frontage be valued on a square foot rather than a front foot basis. The Stegemann case does not stand for that rule of law. For a discussion of that holding, see the case of State of Louisiana, Through the Department of Highways v. Mertens, 271 So.2d 280 (La.App. 3 Cir. 1972).

The Highway Department argues that the value should be $10,472 computed on the “front land—rear land” basis employed in Stegemann. We find no manifest error in the trial court’s rejection of this appraisal method.

Before discussing the Highway Department’s third assignment of error (that $460 should be eliminated from the award because $60 worth of culvert did not belong to landowners and $400 worth of the septic tank system was located off the expropriated property), we note that the Department did not seek a reduction in the award of $30,824 for the house, $798 for a paved area, $400 for a chain link fence and $160 for a hard surfaced driveway. Although approximately two-thirds of these improvements were located off the taken area, these improvements were effectively taken and the fair market value of the entire improvement was awarded.

Just as compensation was awarded for these improvements, landowners are entitled to the value of the three septic tanks and field drain line areas (Tr. 109) which were rendered useless by the taking. Tr. 151, 172. An expert for each side assigned value to the septic tank system. There was no manifest error in accepting Monsur’s appraisal as the fair market value.

Landowners conceded that the judgment should be amended to delete the award of $60 for 10 feet of culvert which did not belong to landowners.

Lastly, the Highway Department seeks to eliminate the award of $11,674.25 representing the value of various trees, shrubs, plants and a rock garden on the taken land. The trial court likened defendants’ plants, trees, shrubs and rock garden to grafted pecan trees which had been held to be “crops” for purposes of LSA-R.S. 48:218 in State, Through the Department of Highways v. Williams, 210 So.2d 616 (La.App. 2 Cir. 1968). After the trial court decided the instant case, we rejected that argument. For a complete review of that issue, see State, Through the Department of Highways v. Bernard, 271 So.2d 303 (La.App. 3 Cir. 1972).

The holding in State, Through the Department of Highways v. Henderson, 138 So.2d 597 (La.App. 3 Cir. 1962) does not apply because it is admitted that this landowners’ plants, trees and shrubs were not nursery stock. The trial court’s finding that they were a crop under the provisions of LSA-R.S. 48:218 is manifestly erroneous. State, Through the Department of Highways v. Bernard, 271 So.2d 303 (La.App. 3 Cir. 1972).

Mr. Blair is a licensed landscape architect, landscape gardener and horticulturist. In connection with this part-time employment, he planted shrubs, trees, ground cover, flowers and arranged a rock garden on the taken tract. These plantings were unusually attractive, well groomed and were used by Blair as a showplace for his clients. The profusion of unusual shrubs and trees were shown to clients to demonstrate their potential growth in place. Cut[565]*565tings were delivered to clients so that they could visualize Blair’s proposal of the client’s planting. Blair admitted that the extensive garden was also a matter of personal satisfaction to him.

Mr. Kirby B.

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Related

State, Department of Highways v. Blair
285 So. 2d 212 (Supreme Court of Louisiana, 1973)
State ex rel. Department of Highways v. Luster
277 So. 2d 181 (Louisiana Court of Appeal, 1973)
State ex rel. Department of Highways v. Blair
275 So. 2d 783 (Supreme Court of Louisiana, 1973)
State ex rel. Department of Highways v. Callens
273 So. 2d 558 (Louisiana Court of Appeal, 1973)

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Bluebook (online)
273 So. 2d 562, 1973 La. App. LEXIS 6875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-highways-v-blair-lactapp-1973.