Stewart v. City of Pineville

511 So. 2d 26, 1987 La. App. LEXIS 9749
CourtLouisiana Court of Appeal
DecidedJune 26, 1987
DocketNo. 86-631
StatusPublished
Cited by1 cases

This text of 511 So. 2d 26 (Stewart v. City of Pineville) 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
Stewart v. City of Pineville, 511 So. 2d 26, 1987 La. App. LEXIS 9749 (La. Ct. App. 1987).

Opinion

YELVERTON, Judge.

Clarence and Rosa Mae Stewart, husband and wife, sued the City of Pineville for damages allegedly resulting from the City’s construction of a water pumping facility on a lot adjacent to their home. The City of Pineville reconvened claiming that the plaintiffs’ driveway encroached upon City property.

After a trial, the trial court found in favor of plaintiffs with respect to their claim that the noise made during construction of the facility was a nuisance, and for this awarded them $1,000 in damages. The trial court disallowed their claims that their property had been depreciated in value, that their car had been damaged from sandblasting, and that a natural servitude of drainage had been rendered more burdensome. The trial court also found that while the plaintiffs’ driveway did encroach upon the City of Pineville’s property, to order it removed would be a harsh and excessive remedy because the City has sustained no damage by the minor encroachment, and rejected the City’s reconventional demand.

Only the plaintiffs appealed. The thrust of the appeal is that the award was so low as to be an abuse of discretion, and the appellants ask for an increase.

We have carefully examined the record and the trial court’s well-written reasons for judgment. We find no manifest error in any of the trial court’s factual findings. The $1,000 award is not so low as to constitute an abuse of discretion. One aspect of the decision needs elaboration, however, and that is the rejection of plaintiffs’ claim for damages for depreciation of their property.

The trial judge explained his disposition of the depreciation claim as follows:

"The plaintiffs purchased their home in December 1979. Subsequently the wooded area to the east of their residence, which was not subject to any zoning or building restrictions, was purchased by the defendant for the purpose of constructing a water tank and pumping station. Construction began in 1982 and the project was completed in approximately six months.
“The deposition and appraisal of Mike Haynes established that the plaintiffs’ property had a present fair market value of $36,000.00. In his opinion the property would be worth $50,500.00 if the pumping station was not adjacent to the plaintiffs’ residence. The plaintiffs seek to recover for this diminution in the value of their property.
[28]*28“In Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975) the Court stated:
‘Recently in Hillard v. Shuff, 260 La. 384, 256 So.2d 127 (1972), this Court restated, as a universally accepted rule of law, the right of the owner of property to conduct thereon any lawful business not per se a nuisance, as long as the business is so conducted that it will not unreasonably inconvenience a neighbor in the reasonable enjoyment of his property.’
“The Court further stated:
‘While the owners of property are not required to suffer damage as a result of works undertaken on their neighbor’s property, the law has decreed that certain inconveniences must be tolerated. Society requires this of its citizens because many lawful uses of property necessarily result in inconveniences to one’s neighbors. La.Civil Code art. 668.’
“The City of Pineville’s property is not subject to any building or zoning restrictions and, therefore, the City of Pineville has the right to use this property in a lawful manner.
“We find that the City of Pineville’s pumping station is a lawful business, ‘not per se a nuisance’, and is not an ‘unreasonable inconvenience’ as a matter of law. Therefore, the plaintiffs can not recover under Louisiana Civil Code Article 667 for the diminution of the value of their property.”

Relevant to this case are the following three articles of the Louisiana Civil Code:

“Art. 667. Limitations on use of property
“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”
“Art. 668. Inconvenience to neighbor
“Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
“Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors’s [neighbor’s] house, because this act occasions only an inconvenience, but not a real damage.”
“Art. 669. Regulation of inconvenience
“If the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufference must be determined by the rules of the police, or the customs of the place.”

Appellant’s expert, a real estate appraiser, testified that their property was worth $50,500 before the erection of the pumping station, and that afterwards its value was $36,000. The expert attributed that depreciation of $14,500 to two causes, the presence of the pumping station and the drainage problem that it created. He was asked, but he was unable to answer, what percentage of the depreciation was attributable to each cause. At the time of his testimony, the appraiser was unaware that the drainage problem had been alleviated. The trial court found, and the record completely supports his finding, that whatever drainage problem existed was temporary and had been totally remedied by the time construction was finished.

There are no zoning laws or other restrictions applicable to the suburban area where this property is located. There was evidence that close to the property there was a bar, a junk yard, a convenience store, a barber shop, and many homes of lesser value. These establishments were in a proximity such that, by any reasonable test, they would affect plaintiffs’ property value. The expert land appraiser explained that, if instead of a water pumping station next door there had been placed a $15,000 residence, or a mobile home, this would [29]*29have likewise depreciated plaintiffs’ property. He declared that, by the same token, the erection of a neighboring house worth $115,000 would have increased the value of plaintiffs’ property. He said that within this suburban, unzoned area there were homes valued in a range from $15,000 to $115,000.

The essential question on appeal is whether the City of Pineville has done something in the establishment of its pumping station next to plaintiffs’ home, to make it legally liable to plaintiffs for some consequent diminishment in the resale value of their home. Since there were no allegations or proof that the City of Pine-ville was negligent in the construction or maintenance of the work, its liability has to be based on the ownership of property provisions of La.Civ.Code articles 667-669.

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Bluebook (online)
511 So. 2d 26, 1987 La. App. LEXIS 9749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-city-of-pineville-lactapp-1987.