State v. Boyer

130 So. 2d 738
CourtLouisiana Court of Appeal
DecidedMay 22, 1961
Docket64
StatusPublished
Cited by18 cases

This text of 130 So. 2d 738 (State v. Boyer) 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 v. Boyer, 130 So. 2d 738 (La. Ct. App. 1961).

Opinion

130 So.2d 738 (1961)

STATE of Louisiana, through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant,
v.
James G. BOYER et al., Defendants-Appellees.

No. 64.

Court of Appeal of Louisiana, Third Circuit.

May 22, 1961.
Rehearing Denied June 13, 1961.

*739 Norman L. Sisson, Baton Rouge, for plaintiff-appellant.

Jones, Kimball, Harper, Tete & Wetherill, by William R. Tete, Lake Charles, for defendants-appellees.

Before TATE, FRUGE and SAVOY, JJ.

FRUGE, Judge.

This suit was brought by the State of Louisiana, through the Department of Highways, to expropriate for highway purposes certain land belonging to defendants James G. Boyer, J. Norwell Harper, and William R. Tete. The expropriation was sought under the provisions of LSA-R.S. 48:441-48:460. The order of expropriation was signed on December 16, 1957.

*740 On the trial on the merits the issue was the value of the property expropriated. There was judgment for the defendant and the State has prosecuted this appeal from that judgment. Consequently the sole question before us is the determination of the value of the property.

The property taken by plaintiff is a tract of land in Calcasieu Parish containing 8.261 acres, being a portion of a 15 acre tract theretofore owned by defendants. The property is located about mid-way between Sulphur and Lake Charles, approximately one and one-half miles south of U. S. Highway 90. It is in an area where a number of residential subdivisions have been developed, and it is within two or three miles of a number of large industrial plants. The subject 15 acre tract is located along the west side of a heavily travelled, hard-surfaced thoroughfare known as Cities Service Highway. It is bounded on the north by a developed and partially occupied residential subdivision known as Oak Ridge Subdivision, and on the south by a right of way for a public road, which right of way has been created but has never been used as a public road or street. The property was suitable for residential purposes although no homes had been constructed on it prior to the time of taking.

The plaintiff contends that at the time this suit was instituted the value of the land and improvements was $16,552 and that no severance damages were sustained as a result of the taking. The appraisers called by plaintiff considered the subject property to be undeveloped acreage and they appraised it as such. Defendants contend that the value of the property taken and severance damages amounted to $69,391.94. The witnesses and experts called by defendants considered and appraised the property as an existing residential subdivision. The substantial difference in the values placed on this property by the experts for both parties is due to this difference of opinion as to how the property should be classified.

There is no dispute in the basic facts as found by the trial judge. The trial judge found that:

"* * * The evidence establishes that in 1950 defendants, through an agent, acquired a 20-acre tract of land which included the subject property. During that same year, and in connection with an act of partition relating to this land, defendants executed and recorded a formal dedication of a street running east and west along the south boundary of the subject property.
"In 1953 defendants joined with owners of the Indian Hills Subdivision, which adjoined defendants' 20-acre tract on the north, in dedicating a public street known as Cherokee Street running east and west along the north boundary of this tract. Immediately after this street was dedicated defendants sold to Clausen and Christian a strip of land, being about the north five acres of this 20-acre tract, and in that sale defendants required that the purchasers impose restrictive covenants on the land to be used for residential purposes and that the streets be dedicated through the property at designated locations so that they could be joined with corresponding streets in the remaining property retained by defendant. The strip of land sold to Clausen and Christian in 1953 was developed as a residential subdivision, consisting of 15 lots all of which face Cherokee Street on the north, which subdivision is known as Oak Ridge Subdivision. At the time of the taking three residential buildings were located on lots in this subdivision, and all utilities were made available to this property.
"In April, 1955, defendant Harper, with authority from the other defendants, prepared a freehand plat dividing the remaining 15-acre tract owned by defendants into lots and blocks, and laying out public streets for a subdivision, which freehand plat was made *741 for the information of engineers and contractors in preparing an official plat for creating a subdivision. In May, 1955, defendants entered into a contract with Carlton Moss, under the provisions of which Moss agreed to clear the property and grade streets and ditches for drainage, all of which was to be done for a consideration of $3,287.40.
"In August, 1955, the freehand plat prepared by one of the defendants was delivered to the engineering firm of D. W. Jessen & Associates, and members of that firm subsequently surveyed the land and staked out block corners and streets in accordance with that survey. During the following month the same engineering firm made a topographic survey and prepared a drainage sketch for use by the Contractor in providing drainage for the subdivision.
"The clearing of the property and the grading of streets and drainage ditches was completed by Carlton Moss on or about October 5, 1955, and defendants paid him the amount which they had agreed upon for that work. The streets grade[d] or constructed by Moss under the terms of this contract included two streets running east and west and two streets running north and south through the subject property.
"A formal plat subdividing the property into lots and blocks was not completed by the engineering firm of D. W. Jessen & Associates until October 16, 1957, which was prior to the taking, but was after defendants had been informed that a portion of the property which they owned in that area would be taken for highway purposes. The plat which was prepared at that time, however, was in exact accordance with the freehand plat made by Mr. Harper in 1955, and purported to divide defendants' 15-acre tract into blocks and lots, containing a total of 45 lots, facing on the streets which had been graded by Moss. Neither this plat nor any other plat subdividing the subject property into lots and blocks, however, has been recorded in the Conveyance Records of Calcasieu Parish. Defendants explain that they did not proceed to file the plat or to sell lots because shortly after the property was cleared and streets were constructed they learned that a portion of the land likely would be expropriated.
"Plaintiff by this proceeding has taken all of the area covered by 25 lots and a portion of 10 additional lots shown on the plat prepared by D. W. Jessen & Associates on October 16, 1957. The property taken also includes some of the areas designated as public streets on that plat. The area left to defendants after the taking includes ten lots in their entirety, the major portion of ten additional lots and some areas which have been designated on that plat as public streets.
"Messrs. Moses S.

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Bluebook (online)
130 So. 2d 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-boyer-lactapp-1961.