State v. Salassi

244 So. 2d 871
CourtLouisiana Court of Appeal
DecidedFebruary 1, 1971
Docket8162
StatusPublished
Cited by23 cases

This text of 244 So. 2d 871 (State v. Salassi) 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. Salassi, 244 So. 2d 871 (La. Ct. App. 1971).

Opinion

244 So.2d 871 (1971)

STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS
v.
Edmond A. SALASSI.

No. 8162.

Court of Appeal of Louisiana, First Circuit.

February 1, 1971.
Rehearing Denied March 15, 1971.

David M. Ellison, Jr. of Ellison & Gary, Baton Rouge, for appellant.

Johnie E. Branch, Asst. Gen. Counsel, Hwy. Dept., Baton Rouge, for appellee.

Before LANDRY, ELLIS and BLANCHE, JJ.

*872 BLANCHE, Judge.

On July 29, 1966, plaintiff, hereinafter referred to as the "Department," expropriated pursuant to the Louisiana "quicktaking" expropriation statute (LSA-R.S. 48:441, et seq.) 3.53 acres from a 22.49 acre tract owned by defendant, hereinafter referred to as "Landowner." The purpose of the expropriation was to obtain the necessary right of way for construction of a segment of Interstate Highway 12, a controlled-access route running in a generally east-west direction. The aforesaid tract was located east of the Airline Highway in East Baton Rouge Parish and fronted 227.9 feet on the south side of Harrell's Ferry Road. The taking resulted in a division of the original tract with a remainder to the north consisting of 10.614 acres which retained its frontage on Harrell's Ferry Road and a remainder to the south left without any frontage comprised of 8.346 acres. This southern remainder was afforded access, however, by virtue of a service road which was constructed in conjunction with the project. The land involved was unimproved except for fencing.

The Department deposited in the registry of the court the sum of $15,065 representing $10,890 for the 3.53 acres taken and $4,175 for damages to the south remainder. Landowner timely answered the suit seeking an increase in compensation for the part taken and assessment of damages for both the north and south remainders.

At the conclusion of the trial the trial court took the case under advisement and in due course rendered judgment against the Department and in favor of Landowner in the sum of $21,001, subject to a credit in favor of the Department in the sum of $15,065, the sum deposited, with legal interest on the increase from the time of the taking together with an award for costs including expert witness fees. This award consisted of the sum of $12,655 rendered as just compensation for the land taken at the unit rate of $3,500 per acre together with the sum of $300 for expropriated fencing and severance damage in the sum of $8,346 for the south remainder. The trial court held that Landowner sustained no severance damage insofar as the north remainder was concerned. From this judgment, Landowner has appealed. For the reasons hereafter set forth, we affirm the judgment of the trial court.

As evidenced from Landowner's brief and argument, the sole issue presented by this appeal concerns the adequacy of the trial court's award of severance damages to the south remainder. The Department neither appealed nor answered Landowner's appeal, and there is no issue raised concerning the trial judge's award of just compensation for the property and fencing expropriated or for his disallowance of severance damages for the north remainder.

The primary specification of error raised by Landowner concerns the rejection by the trial court of the testimony of Landowner's two expert witnesses who both sought to establish severance damage to the south remainder by resort to the "cost-to-cure" method.

The trial court disposed of this issue in the following manner:

"Turning now to a consideration of the severance damage to the south remainder, we note first that the defendant landowner is provided reasonable access after the taking. We acknowledge that inconvenience, diversion of traffic and change in attending conditions resulted from the taking but, from the evidence, it is not established that these residuals diminish the value of the remainder. Accordingly, they are not proper elements of severance damages nor is the lack of direct highway access. Rudolph Ramelli, Inc. v. City of New Orleans, 233 La. 291, 96 So.2d 572; State, Through the Department of Highways v. Lewis, La.App., 1st Cir., 142 So. 2d 652; and, State, Through Department *873 of Highways v. Elmer Lee Hunt, La.App., 1st Cir., 219 So.2d 602.
"The Department of Highways in this case did not plead nor attempt to prove that the south remainder received any special benefits which could be used as an offset against severance damages. Their appraisers, based on their experience and knowledge as experts, simply placed a value per acre on the remainder which resulted in net damages of $500.00 per acre. However, the landowner took the position that the value of the remainder, for residential development, was worth more per acre immediately after the taking provided the land was `cured' by affording it the same utilities, sewerage and other benefits it enjoyed prior to the taking and which were now lost. Considering the initial value placed on the land as before the taking by Messrs. Lejeune and Williams, their stated increased value after the taking with the same benefits provided, and their stated `cost of cure' or cost of replacing the benefits it enjoyed before the taking, those gentlemen came up with net severance damages greatly in excess of that determined by their opposing colleagues. They cited a comparable, another remainder in the general vicinity, as a basis for their increased value per acre after the taking. Aside from whether their comparable is valid, the Court is faced with deciding which of the two appraisal approaches is more logical for the land in question, i. e., the `cost of cure' approach as opposed to the relatively simple approach of before value based on comparables and after value based on expert opinion. We are attracted by the assertion that remainders along our interstate system are immediately worth more than they were before the `takings' because we are convinced that this is true in many cases with or without regard to the general and/or special benefits that ensue. In this case the benefits relied upon by the defendant as special benefits which increase the value of the south remainder is its increased accessibility and its visibility to expressway motorists before they reach the exit ramp. While it seems refreshing for a landowner to take the position that his remainder is immediately worth more, we are fully cognizant that only an illusion may be created when the cost of cure is considered. For example, this approach could certainly not be used if the cost of cure was so great that it resulted in the Department of Highways paying more in severance damages than it would have cost to take the same land outright.
"In reviewing the testimony of the appraisers who used the cost of cure approach, we have concluded that the comparable used (Blakely to Reiger, et al.) by them to establish the increased value of the south remainder has several characteristics which renders it inappropriate for use in this case. The remainder in question is quite unlike the comparable as regards size, frontage, traffic pattern and adaptability to commercial use. The adjustments which have to be made renders its use here uncertain and speculative in nature and, without a valid basis upon which to assess increased value, the cost of cure approach becomes meaningless. We also point out that if we apply our established value of $3,500.00 per acre for the land before the `taking' instead of the $3,800.00 or $3,950.00 per acre arrived at by these appraisers, a quite different result obtains.

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244 So. 2d 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-salassi-lactapp-1971.