State ex rel. Department of Highways v. Madden

139 So. 2d 21, 1962 La. App. LEXIS 1721
CourtLouisiana Court of Appeal
DecidedMarch 7, 1962
DocketNo. 9676
StatusPublished
Cited by12 cases

This text of 139 So. 2d 21 (State ex rel. Department of Highways v. Madden) 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. Madden, 139 So. 2d 21, 1962 La. App. LEXIS 1721 (La. Ct. App. 1962).

Opinion

GLADNEY, Judge.

The Department of Highways has appealed from a judgment fixing the value of two parcels of property of the defendant expropriated in connection with a highway project, referred to as the Minden-Sibley Interchange, State Route La. 1-20, which judgment awarded the property owner $38,-030.00, or $13,905.00 in excess of the total compensation of $24,125.00 deposited by appellant pursuant to LSA-R.S. 48:441 et seq. The principal complaint urged in this court is that the sum allowed is excessive and not supported by adequate proof, the burden of which, it properly asserts, rests upon the appellee. By answer to the appeal, the appellee has prayed that the award in his favor be increased to $55,000.00.

The Louisiana Constitution, 1921, Art. I, § 2, L.S.A., provides that except as otherwise provided therein, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid. As a basis for determining the value of the property so taken in an expropriation suit, LSA-C.C. Art. 2633 and LSA-R.S. 19:9 require that in estimating the value of the property to be expropriated, the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work. Still another statutory provision,. LSA-R.S. 48:453, stipulates that in expropriation suits the measure of compensation is to be determined as of the time the estimated compensation was deposited in, the registry of the court, and damages to-the remainder of the property shall be fixed: as of the date of the trial. This statute further places upon the defendant the burden-of proving his claim. From a multiplicity-of expropriation suits in recent years there-have evolved certain well settled and recognized legal principles, some of which, have application to the circumstances presented in this case.

The definition of market value often-restated in our jurisprudence is the price-which would be agreed upon in a voluntary-sale between a willing seller and purchaser. State of Louisiana, Through Department of Highways v. Barber, 238 La. 587, 115 So.2d 864 (1959); State of Louisiana, Through Department of Highways v. Barrow, 238 La. 887, 116 So.2d 703 (1959); State of Louisiana, Through Department of Highways v. Central Realty Investment Company, Inc., 238 La. 965, 117 So.2d 261 (1960); State of Louisiana, Through Department of Highways v. Havard, 239 La. 133, 118 So.2d 131 (1960); State of Louisiana, Through Department of Highways v. Hub Realty Company, Inc., 239 La. 154, 118 So.2d 364 (1960).

It was held in City of Shreveport v. Abe Meyer Corp., 219 La. 128, 52 So.2d 445, 448-(1951), that evidence elicited in an expro--[23]*23priation case is not to be restricted to testimony showing market value for all purposes, but “the inquiry extends to any and all evidence which might be of aid to the court in determining the true value provided for in Article 2633.” The court elaborated :

“And it seems too plain for extended discussion that evidence of a person familiar with the value of land adaptable to a specific use is receivable for the purpose of determining the true market value of- the property, even though the witness is unable to testify as to the value for uses other than the particular one about which the testimony is tendered. Yet, under the ruling of the trial judge, a witness having experience in the acquisition of land for farm purposes could not testify as to the market value of the property for that purpose if the property was also desirable for mining purposes and he was without knowledge of its value for that use. And vice versa.” Id. 52 So.2d 448.

The preferred yardstick in the determination of the value of property expropriated is evidence of sales of similar or comparable properties in that vicinity. Where, however, the record contains no satisfactory evidence of sales of property comparable to that involved, the ascertainment of the true value must be sought from consideration of other factors and circumstances. LSA-R.S. 48:441-48:460; The Rapides Parish School Board v. Nassif et al., 232 La. 218, 94 So.2d 40 (1957); State Through Department of Highways v. Tolmas et al., 238 La. 1, 113 So.2d 288 (1959). It is equally well settled that in suits of this kind the most profitable use to which the land can be put by reason of its location, topography, and adaptability, will be considered as bearing upon its market value. Caddo Parish School Board v. Miller, 227 La. 201, 78 So.2d 833 (1955); Parish of Iberia v. Cook, 238 La. 697, 116 So.2d 491 (1959); Arkansas-Louisiana Gas Company v. Morehouse Realty Company, Inc., La.App., 126 So.2d 830 (2d Cir. 1961).

The recognized rule as to severance damage when only part is taken and damage results thereby to the remainder, declares such damage shall be measured by the diminution in value of the remaining property for sale or rental determined by arriving at the value immediately before and after the expropriation. City of Alexandria v. Jones et al., 236 La. 612, 108 So.2d 528 (1959). Claims for severance damages predicated upon personal inconvenience experienced by an owner as a result of the taking are damna absque injuria, and not compensable. American Tel. & Tel. Company of Louisiana v. Maguire, 219 La. 740, 54 So.2d 4 (1951); State of Louisiana v. Sauls, 234 La. 241, 99 So.2d 97 (1958).

The aforementioned principles govern our consideration of the factors involved in determining the amount of compensation to which the appellee is entitled. Testimony relating to the value of the property taken and to the damages incurred was given by seven witnesses presented in support of the property owner’s claims, and two witnesses who testified on behalf of the Department of Highways. We recognize, and it may be conceded that the two expert witnesses, O. L. Jordan and Lawrence L. May, who testified on behalf of appellant, have had more extensive experience in the field of ap-praisement for purposes of expropriation than the seven witnesses presented by the defendant; nevertheless, the latter were shown to have had extensive experience in the particular locality involved and their opinions merit appropriate consideration. These witnesses included two bank presidents, both actively engaged in residential and commercial real estate transactions, the head of a building and loan association, two realtors, a real estate developer and a building contractor and developer.

The two parcels of property involved herein are hereinafter referred to as Tract A and Tract B, both of which abut the Minden-Sibley Highway, State Highway No. 7, just south of the corporate limits of [24]*24Minden. Highway No. 7 is a paved, well traveled, and the principal artery of traffic leading south from Minden toward Ring-gold onto U. S. Highway No. 71.

The above plat illustrates as to location, accessibility and size the property affected by the taking.

Tract A has an area of .8 of an acre or approximately 3,500 square feet. It is triangular in shape with a frontage of 375.01 feet on the highway, which frontage has a depth of zero feet on the north end and 190 feet on the south end. This lot has been used by the defendant for more than twenty years and upon it he has con[25]*25ducted a moderately successful grocery and filling station business. The improvements on said lot include the two-story combination residence and store building in an excellent state of repair, a two-car garage, outhouses, fences, etc.

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Bluebook (online)
139 So. 2d 21, 1962 La. App. LEXIS 1721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-highways-v-madden-lactapp-1962.