State ex rel. Department of Highways v. Illinois Central Railroad

256 So. 2d 819, 1972 La. App. LEXIS 5583
CourtLouisiana Court of Appeal
DecidedJanuary 4, 1972
DocketNo. 11720
StatusPublished
Cited by7 cases

This text of 256 So. 2d 819 (State ex rel. Department of Highways v. Illinois Central Railroad) 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. Illinois Central Railroad, 256 So. 2d 819, 1972 La. App. LEXIS 5583 (La. Ct. App. 1972).

Opinion

AYRES, Judge.

This is an action for the expropriation of property for highway purposes pursuant to the provisions of LSA-R.S. 48:441 et seq.

The Illinois Central Railroad Company, hereinafter referred to as Illinois Central, owned a tract or parcel of land at the intersection of DeSiard and South Sixth Streets in the City of Monroe. Rose Oil Company of Monroe, Inc., hereinafter referred to as Rose Oil, held a lease on a portion of this property. The State, through the Department of Highways, expropriated a portion of Illinois Central’s property; however, only a part of the property leased to Rose Oil was taken by the expropriation.

Located on the leased premises were buildings and other improvements erected by the lessee. Under the terms of the lease, the lessee agreed to remove these constructions at the termination of the lease. If not so removed, they would, at the election of the lessor, become its property, or the lessor could have them removed at the lessee’s expense.

Under the petition and the order of expropriation, Rose Oil’s lease was expropriated insofar as it affected the property [821]*821taken, except “lessee’s right to remove its buildings and improvements” which were not included in the taking.

The initial appraisal of the property for the State included its value with the improvements and damages to the adjoining property and the improvements thereon. By a subsequent reappraisal, the property was valued only as to the land taken and the severance damages determined only as to Illinois Central’s remaining land.

Rose Oil filed several exceptions and pleas which had for their primary purpose the raising of questions as to whether the taking was violative of Art. I, Secs. 2 and 6; Art. IV, Sec. 15; and Art. VI, Sec. 19.1 of the Constitution of Louisiana and the Fourteenth Amendment to the Constitution of the United States.' These exceptions and pleas were overruled by the late Judge Lea S. Thompson, who concluded that the validity of the exceptions and pleas was dependent upon a determination of the status of the improvements, whether movable or immovable, which determination, he concluded, was one of fact to be resolved on the trial of the case on its merits.

It was, however, stipulated in accordance with the subsequent appraisal that “The deposit of $11,535 was made for land taken and damages to remaining land, which amount is acceptable as just compensation to defendant Illinois Central Railroad Company and which amount may be confirmed by the Court in its final judgment,

The case was submitted to the trial court on its merits under a stipulation to which was affixed a copy of the lease and which set forth that (1) at the time of the taking, Rose Oil was a lessee of a portion of the property expropriated; (2) the improvements placed on the property by Rose Oil were partially situated on the expropriated land and consisted primarily of a masonry service station building with concrete foundations and appurtenances thereto; (3) the value of Rose Oil’s improvements on the property taken and damages to its improvements on the remainder of the leased premises were $10,000; and (4) the sole remaining issue was whether plaintiff must expropriate and pay for the improvements owned by Rose Oil, located on the land expropriated, and pay damages resulting to those improvements on the adjoining leased property.

After trial, judgment was rendered in favor of Illinois Central for the sum of $11,535, which it accepted in full settlement of its claim. The demands of the defendant Rose Oil for the value of its improvements situated on the expropriated land and damages to those improvements on the remaining leased premises were rejected, and from that judgment Rose Oil appealed.

It is urged that the trial court erred (1) in holding that the agreement between the Illinois Central and Rose Oil with respect to the buildings inured to the benefit of the State as a condemning authority and (2) in holding that the aforesaid constitutional provisions of the Constitution of this State and of the Constitution of the United States do not require the State to pay for the loss and damages sustained by Rose Oil by reason of the expropriation.

It appears appropriate to first point out that in this action Rose Oil makes no claim with respect to a leasehold interest or advantage. The question is whether the expropriating authority must expropriate and pay for improvements of Rose Oil located on the land expropriated and must pay for damages to those improvements of Rose Oil located on that portion of the leased premises not expropriated.

The terms of the lease which provide that the lessee may remove improvements placed by him on the leased premises are consistent with and in accord with the provisions of LSA-C.C. Art. 2726 and add nothing to its terms, which are:

“The lessee has a right to remove the improvements and additions which he has made to the thing let, provided he [822]*822leaves it in the state in which he received it.
“But if these additions be made with lime and cement, the lessor may retain them, on paying a fair price.”

In either instance, the lessee owns the improvements even though the lease is silent as to the ownership of the improvements.

We have been cited no constitutional or statutory authority warranting a deviation from the general rule that the right of a lessee to remove improvements placed by him on leased premises does not inure to the benefit of an expropriating authority. However, we find this comment in 27 Am.Jur.2d, “Eminent Domain,” Sec. 292, pp. 99-100:

“If, as against the lessor, the lessee has the right, prior to or upon the expiration of his term, to remove fixtures, structures, or other improvements installed or erected by him upon the property taken, he is, generally speaking, entitled to be compensated for such improvements.
“The right of the tenant to remove buildings or fixtures becomes material in apportioning a condemnation award between landlord and tenant. Ordinarily, however, an agreement between landlord and tenant that the tenant shall have the right to remove improvements placed on the premises by him does not inure to the benefit of the condemnor so as to authorize the taking of a beneficial use of the property from the tenant without making him a fair compensation for the property as a whole.”

In an annotation from 3 A.L.R.2d 286, the following comments appear pertinent:

“Generally speaking, a lessee is entitled to compensation for fixtures, structures, or other improvements installed or erected by him upon property taken under eminent domain, if, as against the lessor, he has the right to remove such improvements . . . .” (Page 302, Sec. 8.)
“The view has been taken that fixtures or other improvements affixed by a lessee to the premises in such a manner that they would have become a part of the realty if they had been installed by the owner of the fee must be treated as a part of the realty upon a condemnation of the premises, and the lessee, assuming that as against the lessor he has the right of removal, awarded compensation therefor, notwithstanding the fact that as between the lessor and the lessee the improvements were regarded as personalty.” (Page 307, Sec. 10.)

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256 So. 2d 819, 1972 La. App. LEXIS 5583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-highways-v-illinois-central-railroad-lactapp-1972.