State ex rel. Department of Highways v. Francis

189 So. 2d 3, 1966 La. App. LEXIS 4682
CourtLouisiana Court of Appeal
DecidedJuly 5, 1966
DocketNos. 2171, 2172
StatusPublished
Cited by3 cases

This text of 189 So. 2d 3 (State ex rel. Department of Highways v. Francis) 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. Francis, 189 So. 2d 3, 1966 La. App. LEXIS 4682 (La. Ct. App. 1966).

Opinion

CHASEZ, Judge.

These are separate proceedings for the expropriation of two tracts of land to be used in connection with the construction of Interstate Highway 10, which were consolidated for purpose of trial. Defendants are Felix S. Francis, the owner of both tracts, and Robert R. Gibbs and Louben, Inc., lessees of parts of one of the tracts.

The value of the interests of the lessees was stipulated and it was agreed that that value would be paid to the lessees by the owner out of the total amount found due to the owner as a result of the expropriation.

The tracts are adjacent, but separate and distinct in that many of the factors involved in determining the market value of each are different. The tracts will be referred to hereinafter simply as “Tract 17-4” and “Tract 17-5”.

The state deposited the sum of $160,000 as representing the total value of all property, buildings, and leasehold interests taken constituting Tract 17-4 and $16,650 as representing the value of the property taken referred to as Tract 17-5.

Defendant answered in both proceedings claiming additional compensation.

The trial court awarded $2.20 a square foot or $133,000 for the land, and $53,000 for all the improvements thereon, or a total of $186,000 for Tract 17-4, and $25,500 as representing the value of that portion of the property actually taken, referred to above as Tract 17-5, a grand total of $211,500.00.

The State appealed, and the defendant-owner answered the appeal seeking an increase in the award.

The State contends, in its specification of errors, that the trial court in effect discarded all comparable sales given as indicia of market value by certain language in its reasons for judgment, specifically “The comparables offered aré helpful but in[5]*5consistent and inconclusive.” The State further contends that the trial court did not consider the testimony of its experts and that it was in error in not doing so without finding that their testimony was “without sincerity and not based on sound reasoning.”

Particular errors assigned with regard to Tract 17-4 are the finding of a value of $2.20 per square foot when no expert testified to that particular value, and the failure to distinguish between the commercial and residential portions of that tract.

Particular errors assigned with regard to Tract 17-5 are the failure to make separate awards for the property actually taken, and for damages to the remainder of the property.

' At the trial, Lancelot M. Dixon and Anton V. Werner testified as experts in contracting, and James Maloney and George A. Frilot testified as expert appraisers, on behalf of the owner. Max J. Derbes, Jr. testified as an expert appraiser, and the written report of E. A. Tharpe, Jr., was admitted by joint stipulation of counsel, on behalf of the State.

The testimony of both Mr. Dixon and Mr. Werner was to the replacement value of the buildings on Tract 17-4, without any allowance for depreciation, so is of little, if any, value.

We will deal with each tract, and the expert’s opinions with regard to same, separately.

Tract 17-4 was the subject of a total taking. It measures 108.56 feet front on Chef Menteur Highway (U. S. 90 East), a depth on the eastern line of 553.99 feet, a depth on the western line of 558.27 feet, and 108.47 feet on the rear or northern line, adjoining a paved subdivision street, and contains some 60,330 square feet of which approximately 85% or ,50,445 square feet is zoned “F Heavy Commercial”, and the rear 76 feet or so, approximately 15% or 9,885 square feet is zoned “B — two family residence.”

The tract is located in the Third District of the Ninth Ward, within the City of New Orleans. All of the experts agreed that the highest and best use of the tract was “F Heavy Commercial”, and all, save one, were of the opinion that the residential portion in the rear was subject to a use compatible with the commercial use of the balance of the property, off-street parking being one example given. All of the experts seemed to agree that commercial use being the highest and best use, only the value of the commercial structures thereon were proper subjects for recompense. It seems that the actual use being made of property is disregarded in determining its market value, for it is the use a willing buyer might wish to put it to that is the subject of inquiry.

All of the experts indicated that the method of appraisal used for the land was market value, determined from adjusted comparables, and for the buildings, the replacement value less depreciation. All of the experts expressed some dissatisfaction with the type of and limited number of comparables available. It seems that there was a particular scarcity of compara-bles in the area, dated after the announcement of various factors which admittedly had a tremendous influence on the demand for properties in this area.

All of the evidence indicates, and we think it is common knowledge, that the business outlook for the area, as of time of the taking, was generally very bright. It appears that there had been a great deal of new construction in the area, and a number of extremely large tracts that had theretofore been retained in single ownership had recently come onto the market for development. The trial court in his reasons for judgment noted:

“* * * The most important of these factors was the establishment of the Michoud or N.A.S.A. space works on the Chef Highway. They, (the experts), noted that the Highway 90 is the main route East out of the City of New [6]*6Orleans going in the direction of the Gulf Coast and northern Mississippi, and that the highway was the most heavily travelled in the State of Louisiana. Sewer, water and other utilities have been extended to this area which happens to be the last ’ available land sites for the growth and expansion of the City of New Orleans. The appraisers also called the Court’s attention to the rocket test plant now nearing completion in the Slidell area which will employ as many people as the Michoud Plant and which has stimulated growth and development of commercial and residential property along the Chef Highway. Also contributing to the rapid increase of values in the subject area is the construction of the high level bridge over the Industrial Canal, which facility was under way at the time of the taking. This bridge will eliminate a serious deterrent to residential and industrial growth in the subject area.” (Words in parenthesis added.)

Mr. James Maloney, one of the experts appearing for the owner, determined from his study of the comparables he thought most appropriate, that property values had increased on an average rate of 15% per year, and concluded that the subject property was worth $2.30 per square foot at the time of the taking. He estimated the value of the auto parts building to have been $32,150, and the animal hospital $19,-600, or a total of $52,750.

Mr. George A. Frilot, Jr., appearing for the owner, was of the opinion that the tract was worth $2.40 per square foot. He calculated the value of the auto parts store at $36,000, and the animal hospital at $17,500.

Mr. Max J. Derbes, Jr. was the only expert appearing to testify for the State, and also was the only expert to value the commercial and residential portions of the tract separately.

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Related

State ex rel. Department of Highways v. Haydel
306 So. 2d 836 (Louisiana Court of Appeal, 1975)
State ex rel. Department of Highways v. Allen
243 So. 2d 337 (Louisiana Court of Appeal, 1971)
State ex rel. Department of Highways v. James
226 So. 2d 535 (Louisiana Court of Appeal, 1969)

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Bluebook (online)
189 So. 2d 3, 1966 La. App. LEXIS 4682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-highways-v-francis-lactapp-1966.