Texas Pipe Line Company v. Barbe

85 So. 2d 260, 229 La. 191

• Court: Supreme Court of Louisiana
• Decided: January 16, 1956
• Docket: 41438
• Status: Published

Opinions

MOISE, Justice.

A devolutive appeal was taken by The Texas Pipe Line Company from a judgment of the district court, which granted to plaintiff a sixty-foot right-of-way during the construction of a pipe line, to revert to a thirty-foot permanent right-of-way; and awarded to Alfred M. Barbe and Lucius L. Moss the sum of $1,140 for the thirty-foot right-of-way traversing 1.114 acres and $11,250 as severance damages on Tract No. 1; and awarded to Alfred M. Barbe the sum of $2,205 for the thirty-foot right-of-way traversing 2.205 acres and $22,500 as severance damages on Tract No. 2.

The issue on this appeal is the alleged excessive awards of the lower court for the right-of-ways and alleged erroneous awards for severance damages. The defendants answer the appeal and plead the inadequacy of the awards. The appellant has paid the amount of the awards into the Registry of the Court, in order not to delay the construction of the pipe line.

It is the jurisprudence of this Court that, where there is a willing seller and a willing buyer and the lands are adjoining, adjacent and similar to the property sought to be expropriated, the sales value of such lands will often act as a criterion of value. However, other factors will be found in the evidence in this record that will show that such is not always a fair test.

There is in the record testimony to the' effect—

“That these lands are near a deep water channel to the Gulf; that they are highly suitable for industrial purposes, because of the qualifications of this area as one of the prime industrial areas of the Gulf Coast and its close proximity to ship channel, the railroad facilities, the access of paved concrete highways (and one in particular from Sulphur passing only a few hundred feet from the property.

“The property itself is adequately separated from other industries. The fact that there is some intervening space would make it more suitable than if it was closer to existing industries.

“There is abundant available fuel in this area — there being thirty-three oil and gas fields within an area of thirty miles from Lake Charles, which is only a few miles from this property. Not only is gas and oil available in sufficient quantities for fuel, but it is available for other basic materials for petro-chemical industries that might locate in this area.

“Two deep water channels to the Gulf are available, and nearby industries make available by-products needed for certain industries.

“This area offers very attractive advantages to industries, because of cheap fuel, sufficient labor, good climate, and availability of by-products from near-by industries.”

This is a description of the location of the property, and such a description makes that property available for industrial purposes.

The trial judge, in a well considered opinion, discusses the evidence in detail and fairly disposes of the issues involved. We have, therefore, adopted his reasons as our own.

“The first issue to be determined is that of public necessity and purpose. The rule of law is stated in the case of Louisiana Railway and Navigation Company v. Xavier Realty, Limited, 115 La. 328, 39 So. 1. Mr. C. H. Albitz, assistant .general manager in operation for plaintiff, and Mr. G. E. Musselman, senior Civil engineer for plaintiff, testified in behalf of plaintiff on the issue of public necessity and public purpose. The evidence discloses that plaintiff has now in existence south of the proposed pipe line, a 22 inch crude oil line running from Houma, Louisiana to Port Arthur, Texas. The proposed 16 inch pipe line will run from Port Arthur, Texas to Baton Rouge and thence by way of the Plantation System to the Southeastern states. It is also necessary that the 16 inch line connect with Cities Service Refining Company at Lake Charles, Louisiana, this being one of the reasons why the servitude used in the 22 inch line could not be used in the erection of the 16 inch line. It was also testified that plaintiff had obtained a certificate of necessity from the office of Petroleum Administration for defense, a federal agency. The 16 inch line will carry gasoline and other refined products from Texas to Baton Rouge and thence to the Southeastern states. The court is of the opinion that plaintiff has shown public necessity and purpose and have the right to expropriate in the case at bar.

“The court having concluded that the plaintiff has shown public necessity and purpose it will now proceed to the next contention advanced by defendants. They contend that the right of way is excessive. The court concluded in other cases tried recently that a thirty foot servitude would be sufficient. Defendants offered a deed from Mrs. Matilda Geddings Gray et al in favor of plaintiff to show that plaintiff did not need the right of way in question. The vendors in the deed to plaintiff were defendants in a case similar to the one at bar before this section of the court. There were many preliminary hearings had and the parties finally compromised their differences and dismissed their suit. The deed introduced as D-3 was the result of the compromise. However, giving the deed full force as a conventional sale while the right of way or servitude is less than 60 feet wide, plaintiff is not limited to the width of the pipe line for the pur-

poses necessary or incidental for said operation as a reading of the deed will show.

"The Supreme Court in reviewing the subject as to excessive taking said in the cases Crichton v. Louisiana Highway Commission, 172 La. 1033, 136 So. 43 and State v. Cooper, 213 La. 1016, 36 So.2d 22, that they would not disturb the decision of qualified officials, such as engineers, whose duty it is to determine the amount of land needed unless acted arbitrarily and also that the requirement as to land need not be restricted to the needs of the immediate future. However, counsel for plaintiff conceded in oral argument that a 30 foot servitude would suffice. The Court concludes that a 30 foot servitude is sufficient. The court will allow plaintiff to use the 60 feet it requested in its suit during the construction of said pipe line 'but as soon as it is completed the use of said land shall be limited to a servitude 30 feet wide.” (Italics ours.)

“The court will consider next the question of compensation and damages due defendants as a result of the taking.

“The law on the subject of compensation and damages is stated in the case of Louisiana Highway Commission v. Israel, 205 La. 669, 17 So. 2d [914] 915, 916, in the following language namely:

“ ‘The law is well settled, and counsel for the respective litigants agree, that the amount due for private property expropriated for public purposes is its market value when taken, Louisiana Highway Commission v. Guidry, 176 La. 389, 146 So. 1. The market value of property is its fair value between one who wants to purchase and one who wants to sell, under ordinary and usual circumstances. Opelousas, G. & N. E. Railroad Company v. Bradford, 118 La. 506, 43 So. 79; Louisville & N. Railroad Company v. R. E. [E.] De Montluzin Company, Inc., 166 La. 211, 116 So. 854; Harrison v. Louisiana Highway Commission, 191 La. 839, 186 So. 354. It does not mean speculative value. Louisiana Highway Commission v. Lasseigne, 177 La. 440, 148 So. 672. Furthermore, compensation is due to the owner not only for the value of the property actually taken but also for damage caused to his remaining portion after the taking. Louisiana Highway Commission v. Guidry., supra.’ See State v. Landry, 219 La. 721, 53 So.2d 908.

“In Texas Pipe Line Co. v. National Gasoline Co. of Louisiana, Inc., 203 La. 787, 14 So.2d 636, the court said that an existing pipe line may be an element used in assessing damages.

“The question of value and damages took up the major portion of the time in the case. While the opposing experts disagreed on values and damages they were all in agreement to the fact that the best and highest use of the land belonging to defendants would be for industrial purposes.

“Plaintiff used as experts Mr. George B. Hines, William B. Coleman and J. G. Love, all licensed realtors from Lake Charles, Louisiana.

“The experts for plaintiff placed a value on the servitude at from $550.00 to $725.00 per acre. Because of the right of way was a servitude they concluded that the land had a 50% loss of value. The experts for plaintiff testified that no damage would result to the land because of the proposed pipe line. Plaintiff also introduced sales of land in the vicinity ranging from about $150.00 to $500.00 per acre. Defendant A. M. Barbe testified he had agreed to take $500.00 per acre for his land and had then withdrawn his offer. Plaintiff also placed on the stand Mr. L. D. Mann, President and General Manager of Cities Service Refining Company, a large oil refinery in the vicinity of the land belonging to defendants. On direct examination he testified that the fact that a 16 inch pipe line, which is the one proposed in this case ran diagonally across the property would not in his opinion affect the value of the land for industrial purposes. However, on cross examination he stated that if he were buying the land for an industrial site he would remove the pipe line from the property-

“Defendants had as experts large land owners or managers, namely, S. Arthur Knapp, Mr. Harry G. Chalkley and Mr. W. E. Godwin. They placed a value on said land at from $1250.00 to $1500.00 per acre. They testified that the running of a pipe line diagonally across said tracts would ruin it for industrial purposes and then it would have to he used for either agricultural or grazing purposes with a value as testified by one expert of not more than $250.00 per acre.

“Mr. Rowland Preis, as a witness for defendants, testified, he had offered a land owner having a tract of land near lands of defendants $1250.-00 per acre for his land. Plaintiff objected to the introduction of evidence to show an offer to buy, citing as his authority Louisiana Railway & Navigation Co. v. Morere, 116 La. 997, 41 So. 236 [238]. The Supreme Court said in this case:

“ ‘The evidence as to offers of purchase was properly rejected. Offers of purchase are a class of evidence safer to reject than to receive.’

“The Court reserved its ruling on the admissibility of the evidence by Mr. Preis. In view of the above ruling the evidence by Mr. Preis is excluded from the record for purposes of decision.

“The evidence discloses that defendants property is about 1Y2 to 2 miles from the physical plants of Cities Service Refining Company, Firestone and other industrial plants of large magnitude in the area. The evidence discloses further that some of the corporations in the vicinity have purchased lands for future use which adjoin a portion of the lands belonging to defendants.

“Defendants also had to testify in their behalf a Mr. John C. Calhoun, Jr., a civil engineer from Texas, who had also experience in locating plants. He stated that the defendant’s land would be more valuable if sold as a unit rather than in separate tracts and that the running of a pipe line in a diagonal direction would have the effect of cutting the land in smaller parcels thereby making it less valuable for industrial sites. On cross examination he testified that some of the property could be used for industrial sites. The record discloses that some of the existing industries in the area own tracts which consist of 60 and 80 acres on which their plants are located.

“There are two tracts involved. Tract No. 1, consisting of 80 acres, is owned in indivisión by Alfred M. Barbe and Lucius L. Moss.

“The 30 foot right of way or servitude consists of 1.14 acres. Considering the testimony of all the witnesses the court is of the opinion that $1,000.00 per acre or $1,140.00 would be adequate compensation for this tract. As said by Justice O’Niell in Texas Pipe Line Co. v. National Gasoline Company of Louisiana, 203 La. 787, 14 So.2d 636, there is not much difference between the value of the right of way or servitude and the land embraced in it.

“The next item is one of damages. The North half of the 80 acre tract will be intact after the granting of the right of way.

“The servitude cuts the south half of the tract leaving about 15 acres cut off from the 80 acre tract. It was conceded by John C. Calhoun, Jr., witness for defendants, that 65 acres could be used for an industrial site. The 15 acres can still be used for agriculture or pasturage uses. The court fixes the damages to the land at $11,250.00 which is the difference between the value the 15 acre tract would have for industrial purposes of $1,000.00 and the value it would have for agriculture or pasturage purposes of $250.00 or a difference of $750.00 per acre.

“The total award for tract one is fixed at $12,390.00 to be divided equally between defendants Alfred M. Barbe and Lucius L. Moss.

“Tract No. 2 consists of 200 acres and is owned in its entirety by Alfred M. Barbe.

“The amount of land in the right of way is 2.205 acres. The acreage at $1,000.00 per acre totals $2,205.00 which amount the Court fixes as compensation for said servitude.

“The next matter is to determine the amount of damages to Tract 2.

“The 200 acre tract owned by defendant Alfred M. Barbe is all located in Section 26, Township 10 South, Range 10 West.

“The proposed pipe line servitude runs through portions of NE[4 of SW V4, SWy of NE14, and NW14 of SE y4 of Section 26 in a diagonal direction running northwesterly through said tract. It is difficult for the court to place the damages which should be assessed as to Tract No. 2.

“It is more difficult for the court to determine the damages which will be suffered by defendant, Alfred M. Barbe as a result of the pipe line going through his 200 acre tract. As stated before there are 3 40-acre tracts directly affected by the proposed pipe line. There is no question in the mind of the court that a 16 inch gas pipe line would affect the location and building of a petro chemical plant or any other similar plant due to the danger involved by reason of an existing gas pipe line. There are 2 40-acre tracts over which the pipe line does not traverse. However, these tracts will be affected to some extent considering that some of the tracts will be divided in triangles by the proposed pipe line. The court is of the opinion that the entire tract will suffer a 15% decrease in value for the purpose of industrial site or sites; that it will be available for grazing and farming and that an award of $22,500.00 as damages to the entire tract is proper. Accordingly, the amount awarded to the defendant Alfred M. Barbe for compensation and damages is the sum of $24,705.00.

“For the written reasons assigned judgment is hereby rendered as follows :

“As to Tract No. 1 in favor of plaintiff Texas Pipe Line 'Company and against defendants, Alfred M. Barbe and Lucius L. Moss granting to plaintiff, a right of way or servitude 60 feet in width over the land belonging in indivisión to defendants and described in this suit, during the construction of said pipe line and at the completion thereof said pipe line to revert back to 30 feet wide and to remain at said width for the duration thereof. The ownership of said servitude to vest in plaintiff upon its paying to Alfred M. Barbe and Lucius L. Moss each the sum of $6,195.00.

“As to Tract No. 2 in favor of plaintiff, Texas Pipe Line Company and against Alfred M. Barbe, granting to plaintiff a right of way or servitude 60 feet in width over the land belonging to defendant, and described in this suit, during the construction of said pipe line and at the completion thereof, said pipe line to revert back to 30 feet wide and to remain at said width for the duration thereof. The ownership of said servitude to vest in plaintiff upon its paying to Alfred M. Barbe the sum of $24,705.00.

“Plaintiff to pay all costs of this suit.”

Judgment affirmed.

McCALEB, J., dissents, being of the opinion that the awards are excessive.