State ex rel. Department of Highways v. Colomb

225 So. 2d 280, 1969 La. App. LEXIS 6125
CourtLouisiana Court of Appeal
DecidedJuly 7, 1969
DocketNo. 3610
StatusPublished
Cited by2 cases

This text of 225 So. 2d 280 (State ex rel. Department of Highways v. Colomb) 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. Colomb, 225 So. 2d 280, 1969 La. App. LEXIS 6125 (La. Ct. App. 1969).

Opinion

CHASEZ, Judge.

This suit was instituted by the State of Louisiana, through the Department of Highways, pursuant to the provisions of LSA-R.S. 48:441 et seq., to expropriate for highway purposes certain property owned by the defendant, Miss Marcelle Colomb. [281]*281On May 24, 1965 the plaintiff deposited in the registry of the court the sum of $22,-970.00, its estimate of the value of the property taken, and the property was ordered expropriated on May 26, 1965. The defendant withdrew this depositwa The defendant withdrew this deposit and exercised her rights to contest the State’s valuation of the expropriated property. In her answer and amended answer to plaintiff’s suit she claimed the sum of $53,200.00 for the property, plus an additional $2,700.00 as expenses of appraisal. Judgment was subsequently rendered after trial on the merits, fixing the amount to be paid at $27,564.00. Judgment was also rendered fixing the fees for the experts who testified at the trial, in the sum of $500.00 each for services rendered prior to trial and for $100.00 each for testifying at the trial. Defendant has taken this appeal, praying that the award be increased to $50,000.00, plus an increase in expert witness expenses and fees to $2700.00. The plaintiff has not answered the appeal.

The property taken totals 100,054 square feet or 2.297 acres and is part of a larger 5.56 acre tract owned by the defendant. It is located in St. Bernard Parish, between two subdivisions known as Chalmette Vista and Battleground. This 5.56 acre tract is bounded on the south by Good Children Street, on the north by unimproved land, and on the east and west by the two subdivisions. The expropriated land itself is unimproved, however, it is high, well drained ground and all utilities are available. The sole question for our determination herein is the value of the land taken.

In the State, Through Dept. of Highways v. Hedwig, Inc., 133 So.2d 180, La.App. 4 Cir. 1961, cited by both parties, we made these statements as to the rules of law to be applied in these cases:

“[1] The measure of compensation which must be paid the owner of property expropriated is the market value of such property at the time of the taking and in the condition in which it then stood. State v. Landry, 219 La. 721, 53 So.2d 908; City of Alexandria v. Jones, 236 La. 612, 108 So.2d 528; Parish of Iberia v. Cook, 238 La. 697, 116 So.2d 491; State, Through Department of Highways v. Givens, La.App., 129 So.2d 468.
“[2] Fundamental to the concept of value is the theory of highest and best use, i. e., that use which, at the time of the taking, is most likely to produce the greatest net return.”

All witnesses agree that the highest and best use of the expropriated property was as a subdivision for residential purposes. There was disagreement however among the witnesses as to the proper method for evaluating this land as potential subdivision property.

The plaintiff offered one expert witness to prove market value and the defendant offered two.

Mr. Max Derbes, realtor, testified as plaintiff’s expert witness. He offered two methods of appraisal or appraisal approaches whereby he reached a valuation of the subject property. The first he called the market data approach, or comparison of comparable acreage sales. The second he referred to as the Development Prospectus approach, whereby sales of subdivided lots in blocks and in single sales, were used. His net result in both approaches was a valuation of approximately $12,000.00 per acre.

Mr. V. G. Warner and Mr. Eugene Aschaffensburg, realtors, testified in behalf of defendants. Both of these witnesses employed the development prospectus approach and rejected the market data approach used by Derbes, as they were of the opinion that comparable sales of acreage did not reflect the true worth of the subject property which they stated was easily and ideally adaptable for subdivision purposes.

Mr. Aschaffensburg placed an evaluation of $50,000.00 on the property; Mr. War[282]*282ner found $53,200.00 to be the true worth of the property.

The trial judge made these comments in his reasons for judgment, in support of his decision to accept Mr. Derbes evaluation of the subject property:

“All of the appraisers agreed that the highest and best use of the property at the time of the taking was for potential sub-division purposes. There were no improvements on the property.
“The proper measure of compensation in an expropriation suit is the market value of the property on the date of the taking. Market Value has been defined by our courts as that price agreed on between a willing and informed buyer and a willing and informed seller, under usual and ordinary circumstances.
“The plaintiff contends that the acreage approach to value should be used and relied on by the Court.
“The defendant contends that the lot sales approach to value should be used and argues that the highest and best use of this property would be to sell one lot at a time and therefore they are entitled to be compensated for the aggregate of the prices which would have been realized through such sales.
“The basic issue was answered by our Supreme Court in the case of Parish of Iberia v. Cook, [238 La. 697] 116 So.2d 491, in which the Court said:
“We readily adhere to these principles. In determining the market value of property expropriated, it must be conceded that it is not merely the value for the use for which it has been applied by the owner that should be taken into consideration. The possibility for its use for all available purposes for which it is adapted and to which it might in reason by applied should be considered. The ultimate test of value in that respect is what men of wisdom and prudence and having adequate means would devote to the property if owned by them. On the other hand, possible uses which are so remote and speculative and which would require the concurrence of so many extrinsic conditions and happenings as to have no perceptible effect upon present market value should be excluded from consideration. In speaking of adapted uses of the property, it is meant the use of the property in its present condition as a whole. The owner’s plan or hopes for the future should be held completely irrelevant, being more often illusory than real. Situations may arise where land is actually available for commercial development, as subdivided lots. The measure of compensation in such instances should not be the aggregate of the prices of the lots into which the tract could be divided, for so many contingencies may intervene as to make such measure of compensation too uncertain and conjectural. The test is the market value of the land as a whole, taking into consideration its value for building purposes of a not too speculative nature.
“Our courts have further held that for property to be properly classified and valued as subdivision property its potential use for subdivision purposes must be reasonably prospective as opposed to remotely prospective. See State [Through Dept. of Highways] v. Mouledous, [La. App.] 200 So.2d 384.
“In the case at bar, the evidence convinced me that at the time of the expropriation the use of defendant’s property for subdivision purposes was not reasonably prospective.

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Related

State v. Donner Corporation
236 So. 2d 841 (Louisiana Court of Appeal, 1970)
State v. Colomb
227 So. 2d 589 (Supreme Court of Louisiana, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
225 So. 2d 280, 1969 La. App. LEXIS 6125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-highways-v-colomb-lactapp-1969.