State ex rel. Department of Highways v. Lumpkin

Louisiana Court of Appeal

State ex rel. Department of Highways v. Lumpkin

158 So. 2d 437, 1963 La. App. LEXIS 2115

CourtLouisiana Court of Appeal

DecidedNovember 1, 1963

DocketNo. 9768

StatusPublished

Cited by1 cases

This text of 158 So. 2d 437 (State ex rel. Department of Highways v. Lumpkin) 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. Lumpkin, 158 So. 2d 437, 1963 La. App. LEXIS 2115 (La. Ct. App. 1963).

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Opinion

HARDY, Judge.

We were influenced to grant this rehearing upon the basis of counsel’s insistent contention that we had erred in our original judgment, particularly with respect to certain major items of damage.

We have again carefully considered the record and reached the conclusion that our original judgment was correct with the exception of two claims reasserted by defendant.

Neither the judgment of the district court nor the original judgment of this court appears to have given proper consideration to the damage caused by erosion in and about the area of the borrow pit which was dug by plaintiff. Unfortunately, the evidence as to the exact damage attributable to this item is most unsatisfactory. However, the record does contain the estimates of damage made by witnesses on behalf of defendant which vary from a minimum of $1,250.00 to a maximum of $2,250.00. In the absence of any other more exact or reliable proof on this point, we have concluded that an average between the two figures, amounting to the sum of $1,750.00, would represent adequate compensation as to this item.

It is also noted that defendant’s claim as to the necessity for and the cost of construction of a road to that part of his property which has been rendered inaccessible by plaintiff’s taking, does not appear heretofore to have been given consideration by either court. The undisputed testimony in the record, in our opinion, justifies an allowance of $2,000.00 for this particular item.

Consideration of the other assignments of error with respect to specified damage con[438]*438vinces us that the additional claims urged by defendant are not supported by the record.

For the reasons assigned, the principal amount set forth in our original judgment in favor of plaintiff, the State of Louisiana, through the Department of Highways, and against the defendant, Eugene H. Lump-kin, Jr., is reduced from the sum of $13,-087.00 to $9,337.00, and, as amended to this extent, our original judgment is reaffirmed and made final, provided, however, that defendant is relieved of costs of this appeal.

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HARDY, Judge.

We were influenced to grant this rehearing upon the basis of counsel’s insistent contention that we had erred in our original judgment, particularly with respect to certain major items of damage.

We have again carefully considered the record and reached the conclusion that our original judgment was correct with the exception of two claims reasserted by defendant.

Neither the judgment of the district court nor the original judgment of this court appears to have given proper consideration to the damage caused by erosion in and about the area of the borrow pit which was dug by plaintiff. Unfortunately, the evidence as to the exact damage attributable to this item is most unsatisfactory. However, the record does contain the estimates of damage made by witnesses on behalf of defendant which vary from a minimum of $1,250.00 to a maximum of $2,250.00. In the absence of any other more exact or reliable proof on this point, we have concluded that an average between the two figures, amounting to the sum of $1,750.00, would represent adequate compensation as to this item.

It is also noted that defendant’s claim as to the necessity for and the cost of construction of a road to that part of his property which has been rendered inaccessible by plaintiff’s taking, does not appear heretofore to have been given consideration by either court. The undisputed testimony in the record, in our opinion, justifies an allowance of $2,000.00 for this particular item.

Consideration of the other assignments of error with respect to specified damage con[438]*438vinces us that the additional claims urged by defendant are not supported by the record.

For the reasons assigned, the principal amount set forth in our original judgment in favor of plaintiff, the State of Louisiana, through the Department of Highways, and against the defendant, Eugene H. Lump-kin, Jr., is reduced from the sum of $13,-087.00 to $9,337.00, and, as amended to this extent, our original judgment is reaffirmed and made final, provided, however, that defendant is relieved of costs of this appeal.

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158 So. 2d 437, 1963 La. App. LEXIS 2115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-highways-v-lumpkin-lactapp-1963.

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