United Gas Pipe Line v. Schwegmann

267 So. 2d 247, 1972 La. App. LEXIS 6074
CourtLouisiana Court of Appeal
DecidedOctober 4, 1972
DocketNo. 5044
StatusPublished
Cited by4 cases

This text of 267 So. 2d 247 (United Gas Pipe Line v. Schwegmann) 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
United Gas Pipe Line v. Schwegmann, 267 So. 2d 247, 1972 La. App. LEXIS 6074 (La. Ct. App. 1972).

Opinion

BAILES, Judge.

This is an action to expropriate property for the purpose of constructing a natural gas transmission pipe line. The land involved herein was owned by defendant, John Schwegmann. Initially, the other defendant was Louisiana & Arkansas Railway Company which owned a reversionary interest in the property. The suit as to the latter party was compromised prior to trial.

The district court rendered judgment expropriating the property to plaintiff, and defendant was awarded a judgment of $9,-584.40, of which $5,100.00 was found by the trial court to be the amount of severance damages to which defendant was entitled.

Plaintiff has appealed from the award of the trial court, and defendant has answered the appeal seeking an increase in the award to $25,000.00.

We find the award of the trial court to be excessive. Accordingly, the judgment will be amended by reducing the quantum, and as amended, affirmed, at defendant’s cost.

On the trial of this case, all issues were stipulated, including the offer by the plaintiff of $7,500.00 to the defendant. The only issue not settled by stipulation was that of quantum which is the only question before us in this appeal.

The positions of the respective parties are these: We find the plaintiff accepting the value fixed by the trial court as correct for the taking of the right-of-way, but objecting to the award for severance dam[248]*248ages; and conversely, the defendant is complaining that the value fixed for the right-of-way was grossly inadequate, but willing to abide by the amount of severance damages awarded.

The defendant was the owner of 21.54 acres of land in St. Charles Parish which he had acquired from the Louisiana & Arkansas Railway Company for the restricted purpose of constructing a warehouse facility. This property fronted on Airline Highway with its east boundary being the boundary line between Jefferson and St. Charles Parishes at this point. Plaintiff sought expropriation of a permanent right-of-way or servitude 20 feet wide by a depth of 528 feet, or the total depth of defendant’s property along the east line. Additionally, plaintiff sought for the construction of this pipe line the temporary use of a strip of land 35 feet wide adjacent to the servitude area. This permanent servitude is separated from the east boundary of defendant’s property by a five foot wide servitude previously sold to Humble Pipe Line Company for the laying of a 10 inch jet fuel line.

To establish value of the servitude, plaintiff offered the testimony of two expert appraisers, Mr. Max Derbes, Sr., and Mr. Thomas Dupree. Both of these witnesses testified that the highest and best use of this land was industrial and commercial, and both experts established value by the market data approach through the use of the same two comparables. These sales involved two small tracts, one containing 3.652 acres and the other consisted of 6.92 acres, and both tracts were more remote to the city of New Orleans than the subject property.

Mr. Derbes, on the basis of the two com-parables calculated the 20 foot servitude consisting of .2424 acres had a per acre value of $18,000.00. For the value of the servitude he attributed 75 per cent of the value of the fee simple. In this manner he reasoned the servitude had a present value of $3,272.00. For the temporary servitude consisting of .4242 acres he considered the rental value to be 10 per cent of the value of the land, or the sum of $764.00. Although questioned in considerable detail, Mr. Derbes steadfastly maintained that the presence of the pipeline on this property did not diminish its value nor did it restrict the use of the remainder of the property.

Using the same comparables, Mr. Dupree fixed the value of the defendant’s property at $20,000.00 per acre. On this determination of value, he fixed the value of the servitude at 75 per cent of the fee simple value. This put a value of $3,636.00 on the servitude. He calculated the 35 foot temporary servitude to have a value of 10 per cent of the ground value of $20,000.00 per acre which made the value of the use of .4242 acres worth $848.40, which apparently this witness rounded off at $848.00 although the trial court used the value of $848.40. Mr. Dupree found, as did Mr. Derbes, that there was no severance damage to the remainder of the tract except for a five foot strip between servitude and property line, as to which he estimated $788.00 severance damage.

The defendant offered no expert appraiser as a witness to establish a value of the land taken. Although Mr. Schweg-mann testified that he had had considerable experience in acquiring property for use in his supermarket business, both for the consumer outlets and for warehousing purposes, he was not tendered as an expert appraiser. In fact, he stated that he did not claim to be expert except as to his own money. His testimony in chief covered the desirability of this particular tract of land for the use to which he intended, i. e., a warehouse complex to serve all the supermarkets. Defendant further testified to the right-of-way transaction between himself and Humble Pipe Line Company involving a servitude five feet wide contiguous to the east line of his property for a consideration of $5,315.80, computed at $2.00 per square foot. He was unable to break down the $2.00 per square foot price for allocation of a portion for the temporary use of adjacent [249]*249property, for the permanent servitude or severance damages.

For the purpose of proving severance damages, the defendant was asked on direct examination this question which brought the following response:

“Q. Mr. Schwegmann, how will the construction of this pipeline interfere with any potential use you make of this property ?
“A. It won’t add to its use.”

On cross-examination, Mr. Schwegmann testified that the location of the pipeline would not interfere with his future or projected use of his property, and he acknowledged that the plaintiff had consulted with his architect in finalizing its plans for the location of the servitude.

Mr. Derbes and Mr. Dupree stated they did not consider the transaction between defendant and Humble Pipe Line Company as a comparable for evaluation purposes for the reason it was not an arms length transaction. Humble, in this acquisition, did not have the power of expropriation. Both found that Humble was under compulsion to acquire this servitude for its jet fuel line.

We find that the trial court correcty fixed the value of the servitude and the use of the adjacent 35 foot temporary work area at the sum of $4,484.40.

In fixing the amount of severance damages at $5,100.00, the trial court adopted the following reasons:

“This Court will reject the finding of Derbes that no severance damage was had and will reject the finding of Dupre that only severance damage was had by the five-foot pipe line servitude.
<( * * *
“This Court cannot accept the argument that the existence of a jet fuel line adjacent to the proposed gas pipe line renders severance damages null. Michigan Wisconsin Pipe Line Co. v. Sugarland Development Corp., [La.App.,] 221 So. [2d] 593, and Michigan Wisconsin Pipe Line Co. v. Miller, [La.App.,] 229 So. [2d] 182, hold a second gas pipe line to cause damage equal to the first line.
“Following generally the proximity rule of 229 So.

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267 So. 2d 247, 1972 La. App. LEXIS 6074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-gas-pipe-line-v-schwegmann-lactapp-1972.