Ouachita Parish School Bd. v. Clark

• Decision Date: 03 February 1941
• Docket Number: 35951.
• Court: Louisiana Supreme Court
• Parties: OUACHITA PARISH SCHOOL BOARD v. CLARK.

1 So.2d 54

197 La. 131

OUACHITA PARISH SCHOOL BOARD v. CLARK.

No. 35951.

Supreme Court of Louisiana

February 3, 1941

On Rehearing March 7, 1941. [Copyrighted Material Omitted]

Frank W. Hawthorne, Dist. Atty., and Geo. W. Lester Asst. Dist. Atty., both of Monroe, for plaintiff and appellant.

J B. Dawkins, of Monroe, for defendant and appellee.

ODOM Justice.

This is an expropriation proceeding brought by the Parish School Board of Ouachita Parish to acquire 5.923 acres of land owned by the defendant Clark. The school board alleged that in November, 1938, it entered into a contract for the construction of a gymnasium and auditorium for use in connection with the Okaloosa High and Grammar Schools, located in a rural section of the parish, which building was completed and accepted in May, 1939, and that the cost of the building was $25,400.

The board further alleged that it owned three acres of land on which the Okaloosa School buildings were situated, and that it was the intent and purpose of the board to construct the new building on the threeacre tract of land owned by it, but that, through a misunderstanding as to the exact location of the boundaries of said threeacre tract of land, part of the new building extended over the boundary line of the property belonging to the board and onto land owned by the defendant Clark, and that the board constructed a septic tank to be used in connection with the new structure, which was also placed on land belonging to the defendant.

The board further alleged that it was unaware that said building and septic tank encroached upon the land of Clark until the building was practically completed, at which time it was impossible to remove the structures onto the land belonging to the school board without demolishing them. Alleging that the original three-acre tract on which the school buildings were situated had become entirely inadequate and that additional land was necessary to accommodate the new structures and to provide a playground for the students, and that the 5.923 acres of the Clark land described in the petition was the only suitable property available for the purposes for which it was sought, and that said land was needed by the school board for a public use and that the same was a public necessity; and further alleging that its negotiations with the landowner to acquire the property amicably had failed, the board prayed that the property be expropriated and adjudged to it, and that a jury of freeholders be impaneled for the purpose of assessing the value of the property and fixing the amount of the damages, if any, to the remainder of defendant's property.

Clark, the defendant, filed an exception of prematurity and also an exception of no cause of action. These exceptions were overruled by the court.

Defendant then filed answer in which he denied that the board owned only three acres of land adjoining his property and averred that the board owned 13 acres adjoining his land. He admitted that the gymnasium and auditorium was constructed partly on his land, but denied that it was so constructed thereon through any misunderstanding as to the location of the boundaries between the property owned by the school board and that owned by him. He further alleged in his answer that he notified the contractor, the members of the school board, and also the superintendent of schools for the Parish of Ouachita immediately upon the beginning of said work, and before any part of the foundation had been laid, that same was being constructed on his property, and requested them to change its location.

Defendant admitted that the attendance at the Okaloosa School had constantly increased and that additional buildings had been constructed theretofore as required for the accommodation of the pupils attending the school. But he alleged that there was then ample room on the property owned by the board for the construction of the new works, and that no additional land was necessary either for the buildings or for the playground. He further alleged that the school authorities had full knowledge when they entered upon his property that the same was not part of the land which the board owned, and that therefore the board was a trespasser in bad faith.

Defendant alleged in Paragraph 12 of his answer:

'* * * that any improvements so constructed on his land are now of right his property, which he may dispose of as best suits his wishes, and that if expropriation is permitted in this case, he is entitled to a valuation based upon the land described in Plaintiff's petition as of the date these proceedings were filed, which your Defendant avers to be as follows: $1200.00 for 5.923 acres as described in Plaintiff's petition; $12,700 for his interest in gymnasium and auditorium buildings; $50.00 for septic tank and accessories; $100.00 for garage building; and further judgment in the full sum and amount of $500.00 as damages occasioned by the necessity to employ counsel in this case.'

Defendant prayed that plaintiff's suit be dismissed and that he had judgment in reconvention ordering the Ouachita Parish School Board to remove from his premises the gymnasium and auditorium, and in the alternative that, if the board be permitted to expropriate the property, he be compensated for the land and the improvements thereon situated in the amount of $14,500.

A jury of freeholders was impaneled as the law directs and after trial rendered a verdict in favor of the defendant for $1,200, the value of the land expropriated, and rejected all other demands made by him; whereupon the court rendered and signed a final judgment, adjudging the property described in plaintiff's petition and as shown by the plat, or blueprint, attached thereto 'to the plaintiff, Ouachita Parish School Board, in fee simple, for its uses and purposes, free and clear of all mortgages and encumbrances of every nature, kind and description whatsoever, upon the payment by it to the defendant, A. J. Clark, of the sum of Twelve Hundred Dollars ($1200.00), in the manner and form provided by law'.

The school board appealed from the verdict and judgment in so far as the value of the land was fixed at $1,200, or approximately $200 per acre, the school board's contention being that this valuation was excessive.

The defendant has answered the appeal, alleging that the trial judge erred in refusing to sustain his exception of no cause of action; that the trial court erred in refusing to permit defendant to introduce any evidence to show that the school board had notice of defendant's ownership of the property prior to the beginning of the work on the school building. For these reasons defendant asks that the judgment be set aside and that the case be remanded. In the alternative, he asks that, in case this court should rule on the merits, then the judgment be amended and increased to the amounts originally claimed.

The exception of prematurity seems to have been abandoned. We find no merit in defendant's exception of no cause of action. It is grounded on two propositions, the first being that plaintiff did not allege that the land owned by the school board at the time this proceeding was begun was not sufficient for the purposes set forth in the petition, and the second being that it did not allege that defendant's land is the only land suitable for the purpose claimed.

In Paragraph 5 of its petition, the board alleged that, since the Okaloosa School was established, the attendance had constantly increased, that additional buildings had been constructed as required 'until at this time, the original three-acre tract of land on which the school is situated has become entirely inadequate, and additional land is necessary to accommodate the buildings and provide a play ground for the students'.

In Paragraph 10 of its petition, the school board alleged that 'said above described property is the only suitable property available for the purposes herein set forth, and that same is needed by petitioner for public use, public benefit and public works, and same is a public necessity'.

The trial judge overruled the exception. His ruling was correct.

Defendant in answer put at issue the question of the necessity for expropriating his property. In cases of this kind, the determination of the question as to the necessity for expropriation of property is a judicial function. Kansas City, S. & G. R. Co. v. Meyer et al., 166 La. 663, 117 So. 765; City of Shreveport v. Kansas City, S. & G. R. Co. et al., 169 La. 1085, 126 So. 667.

But the defendant did not make a special plea that the trial judge try and determine the issue of the necessity for the expropriation prior to the impaneling of the jury, as was done in the case of Kansas City, S. & G. R. Co. v. Meyer, supra, and the judge did not pass upon that issue in advance of the trial before the jury. Apparently that issue was submitted on the evidence heard during the trial before the jury. All the testimony, both as to the necessity for the expropriation and as to the value of the property, was submitted at the same trial. The fact that the judge rendered and signed a judgment adjudging the property to the school board shows that he found that it was necessary for the school board to acquire the property.

This expropriation proceeding was brought under the articles of the Civil Code which are found under the general heading 'Of the Compulsory Transfer of Property'. It was carried on under the rules prescribed by the Code.

Article 2626 of the Code provides that, since the first law of society is that the general interest shall be preferred to that of individuals, 'every individual who possesses under the protection of the laws, any particular property, is tacitly subjected to the...