Shreveport Traction Co. v. Svara

Decision Date03 November 1913
Docket Number19,965
Citation63 So. 396,133 La. 900
CourtLouisiana Supreme Court
PartiesSHREVEPORT TRACTION CO. v. SVARA. In re SHREVEPORT TRACTION CO
SYLLABUS

(Syllabus by the Court.)

The owner of property which it is proposed to expropriate, or damage, for the purposes of a public improvement, is entitled to be paid the true value thereof, as of the moment when it is legally demanded for such purpose, without including in such value the increment which may have resulted from the fact that the improvement has been proposed; and, on the other hand, without deducting therefrom the increment which may have resulted from the fact that the improvement has been in contemplation, or from any other cause, save that the improvement has been proposed.

The Constitution, in declaring that 'private property shall not be taken nor damaged for public purposes, without just and adequate compensation being first paid,' prescribes no rule by which to determine the question of justness and adequacy, but has left that duty to the lawmakers; and the lawmakers have declared that 'the basis of assessment shall be the true value which the land possessed when the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work,' thereby leaving it to the courts to determine when a contemplated improvement is to be considered a proposed improvement. The answer to that question may vary somewhat with the cases in which it arises; but a public improvement, in the form of a railroad, cannot be said to be 'proposed,' within the meaning of the statute, in a case where, for instance, a number of capitalists, having purchased a tract of land for the development of industrial enterprises, and, having divided it into lots, hold out merely the hope, or prospect in offering the lots for sale, that a railroad will be built to connect them with the business centers. There should, in such case, be a definite offer, importing an obligation to build the road within a definite period, or definite steps, importing a present and bona fide purpose to do the work, such as the location of the line of the road, followed by purchases or expropriations of land for the right of way, should be taken, since the law does not mean that a public improvement is 'proposed' either by being merely held in contemplation, or by an indefinite proposition, without sanction, which may be relegated to the distant future for its execution.

[Ed. Note. -- For other cases, see Eminent Domain, Cent. Dig. §§ 165-167, 378-389; Dec. Dig. §§ 66, 145.*]

To say that the 'damage which the owner would sustain, in addition to the loss of the land, by its expropriation,' must be ascertained by taking the difference in the value of the land before and after the damage has been sustained, is to bring one's self in conflict, at once, with the prohibition of the Constitution and mandate of the statute, which require that the damage shall be ascertained and compensated before it is inflicted.

Wise, Randolph & Rendall, of Shreveport, for applicant.

Murff & Mabry, of Shreveport, for respondent.

Statement of the Case.

OPINION

MONROE, J.

This is a suit for the expropriation of a right of way through certain land belonging to defendant, who appealed from the judgement of the district court to the Court of Appeals, by which tribunal the judgment appealed from was set aside and the case remanded. In its application to this court for the review of the judgment last mentioned, plaintiff alleges that:

'This application presents only pure law question, and your honors are not asked to review the findings on any facts.'

The facts found, and the reasoning and conclusions upon the law, as applied thereto, by the Court of Appeals, are stated and expressed by that court as follows:

'The piece of land expropriated -- approximately one-half an acre -- is part of a five-acre tract, somewhat southeast of Shreveport, on the line of the K. C. S. Railroad. It * * * is in the shape of a parallelogram, 748 feet long by 291 wide. It is between Shreveport and the Cedar Grove factory site, or subdivision, 1 1/2 miles from the city limits, and 1 mile from the factory site. The plaintiff's line, traverses the eastern end of the tract, in a slightly oblique direction, from north to south, and the right of way is 60 feet wide. The land slopes toward the east, and is considerably higher in the middle than it is on the north and south, and hence the dump, or roadbed, will be some 10 feet high as it enters the land from the direction of Shreveport, 3 feet in the middle, and 10 feet on the south. On the east side of the dump, the elevation, from the level of the ground, will be somewhat higher. A narrow strip -- approximately half an acre -- is severed from the main body and is left in a somewhat triangular shape.'

The court cites the testimony of one witness, to the effect that, in the absence of the railroad, the land in question, in his opinion, would not be worth more than $ 250 an acre. Another witness is shown to be asking $ 250 a lot, or on the basis of six lots to the acre, at the rate of $ 1,500 an acre, for land adjoining that of defendant, and to have actually sold six lots at that price. Another, in 1909, offered a five-acre tract for $ 500, and found no purchaser, and the tract was afterwards sold for $ 1,200; the witness attributing the increase in value to the expected building of the railroad. And still another witness is cited to the effect that he bought 36 acres near defendant's property, in January, 1912, at $ 300 an acre; that he would not have bought it but for the contemplated building of the road; and that he is now selling it at the rate of $ 100 per lot (or, say, $ 600 an acre).

'This difference, however,' says the court, referring to the difference in the testimony of the witnesses, 'results, as we are constrained to believe, from the fact that the defendant's witnesses estimated the land as of the time of the trial, which was 14 days after the petition was filed, while those of the plaintiff paid but little attention to the then value, * * * but fixed the value as of some indefinite and more or less distant time in the past, before the traction line was thought of or proposed. Indeed, it appears that plaintiff's witnesses and its counsel were of the opinion that the defendant was not entitled to any value which had been added to his land by the contemplated improvement from the time it was first projected until the time of the trial, a period of several years. * * *

'The jury awarded $ 150, as the value of the land (actually taken), and, as we gather from the record, decided that the increase in the value of defendant's remaining land, brought about by the construction of the traction line, was equal to the damages which he will suffer, and gave nothing on that score. * * *'

The court reproduces the charge given by the trial judge to the jury, as follows:

'The criterion of value,' said the trial judge, 'to be placed on property to be expropriated by a railroad company, is the market value of the property at the date of the institution of the expropriation suit, but the jury should deduct therefrom the increased value of the property brought about by the building of the contemplated railroad through the land of the defendant, although that benefit be general to the whole public, and that, if the damages which may accrue to his other land, not actually taken, is not as great as the general benefit to his other land, the jury would be justified in letting the benefits accruing by the building of the road offset any damages that might be done to other portions of his land. * * *

'We think,' says the Court of Appeals, 'the charge was erroneous. Article 2632 of the Civil Code, after prescribing the method of procedure in expropriation matters, provides that the jury shall determine, after hearing the parties and their evidence, 'what is the value of the land described in the petition with its improvements, and what damages, if any, the owner would sustain in addition to the loss of the land by its expropriation.' And then follows this article:

'Art. 2633. In estimating the value of the property to be expropriated, the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.'

'It will be seen, therefore, that the charge of the court instructed the jury to do just what the Code says they should not do; that is, that they should not deduct anything on account of the benefit derived from the contemplated improvement. The error into which the counsel for the company and the court have fallen arises, we think, from misconception of the phrase, in the article of the Code just quoted, 'the true value which the land possessed before the contemplated improvement was proposed,' and in giving it the interpretation which it would have if the phrase read 'the true value which the land possessed before the improvement was contemplated.' But the Code says, on the contrary, 'before the contemplated improvement was proposed.' As we understand, the rule is this: The jury must assess the land at the market value which it possessed prior to the time when the improvement was proposed by the filing of the petition for expropriation. Any interpretation of article 2633 which would require or authorize the assessment of the value of the property possessed before the improvement was contemplated would, necessarily, require the jury to deduct the value which had accrued in the meantime, and that is just what the article, in the last...

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