96-160 La.App. 5 Cir. 10/16/96, Lambert v. State Through Dept. of Transp. & Development

• Decision Date: 16 October 1996
• Citation: 683 So.2d 839
• Parties: 96-160 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 839

683 So.2d 839

96-160 La.App. 5 Cir. 10/16/96

John T. LAMBERT, Jr., et al. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION & DEVELOPMENT.

No. 96-CA-160.

Court of Appeal of Louisiana, Fifth Circuit.

Oct. 16, 1996.

Thomas R. Blum, Charles C. Coffee, New Orleans, for Plaintiffs/Appellants.

Charles E. Soileau, Rayne, for Defendant/Appellee.

Before GOTHARD, CANNELLA and DALEY, JJ.

DALEY, Judge.

[96-160 La.App. 5 Cir. 2] This appeal concerns an appropriation (inverse condemnation) suit filed by John Lambert, Jr. and Clint Melancon, plaintiffs, against The Louisiana Department of Transportation and Development (DOTD), alleging the DOTD denied them access to and, therefore, damaged a piece of immovable property owned by plaintiffs in St. Charles Parish. The property in question is a strip of land situated between La. 50 (Almedia Road) and La. 626, extending from U.S. 61 (Airline Highway) to roughly 935 feet short of La. 48, River Road. The property fronts Airline Highway in the immediate vicinity of the I-310 downramp connecting I-310 to Airline Highway south (toward New Orleans). The plaintiffs alleged that a taking occurred and the damages were caused when the DOTD issued a letter on February 3, 1984 to the U.S. Army Corps of Engineers stating that no access would be allowed to Airline Highway between La. 626 and Almedia Road.

[96-160 La.App. 5 Cir. 3] This suit was filed on June 28, 1988. On April 19, 1989, the DOTD filed a separate expropriation suit against Lambert and Melancon, to acquire that portion of their property that fronts on Airline Highway. Apparently the two suits were consolidated at some time; an order to consolidate does not appear in this record, but the record shows the grant of a Motion to Sever the Consolidation on October 4, 1994. This appeal does not concern the expropriation suit, which is pending in the trial court.

The inverse condemnation suit proceeded to trial with a six person jury on August 28-31, 1995. The jury rendered a verdict in favor of DOTD. Plaintiff, Lambert, and his former attorney each filed a Motion for New Trial and/or Judgment Notwithstanding the Verdict. ¹ These Motions came for hearing on September 29, 1995. Trial court denied the post trial motions. Thereafter, plaintiff, Lambert, perfected this devolutive appeal ².

On appeal, the appellant argues three assignments of error. First, Lambert contends that the jury erred when it found that the DOTD's letter of February 3, 1984 did not deny access to the property. Second, the district court erred in not granting the Motions for JNOV. Third, the district court erred when it did not grant, as an alternative, the Motion for New Trial. Lambert asserts that this court should reverse the jury verdict and award monetary damages.

[96-160 La.App. 5 Cir. 4] ANALYSIS

TAKING OF THE PROPERTY

As this court stated in Rivet v. State Dept. Of Transp. and Development, 93-369 (La.App. 5 Cir. 3/16/94), 635 So.2d 295, 297-298, writ denied 94-1606 (La.11/29/94), 646 So.2d 397:

The Louisiana Constitution of 1974, Article 1 Section 4 states:

Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner[,] * * * [who] shall be compensated to the full extent of his loss.

In Parish of Jefferson v. Tassin, 594 So.2d 525 (La.App. 5 Cir.1992) we observed:

A taking or damaging of property can occur from the official act of expropriating a whole or partial tract of land or from inverse condemnation, which is when property is taken or damaged without the proper exercise of eminent domain. Reymond v. State, Department of Highways 231 So.2d 375 (La.1970).

In inverse condemnation, the damage may occur not only to property which is physically invaded, but also to a separate and independent tract of land. Gulf States Utilities Company v. Comeaux, 182 So.2d 187 (La.App. 3 Cir.1966), quoted with approval in State, Department of Highways v. Garrick 256 So.2d 111 (La.1971). However, when the damage is claimed to a parcel separate from that which is actually taken, the public body's liability is limited to special damages which peculiarly affect that property and which are not sustained by the neighborhood generally. Garrick, supra; Comeaux, supra; see also, Ursin v. New Orleans Aviation Board, 506 So.2d 947 (La.App. 5 Cir.1987) rev'd. on other grds., 515 So.2d 1087 [ (La.1987) ]; Bowden v. State, Dept. of Transp. & Dev., 556 So.2d 1343 (La.App. 3 Cir.1990) writ denied, 563 So.2d 879 [ (La.1990) ]; Harrington v. Southwestern Electric Power, 567 So.2d 731 (La.App. 2 Cir.1990).

In addition, when state activity causes a landowner "to sacrifice all economically beneficial uses in the name of common good, that is, [96-160 La.App. 5 Cir. 5] to leave his property economically idle, he has suffered a taking." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).

In State, DOTD v. Pace, 588 So.2d 145 (La.App. 4 Cir.1991), the court said:

In an expropriation case the defendant has the burden of proving his claim to a legal certainty and by a reasonable preponderance of the evidence; speculation, conjecture, mere possibility and even unsupported probability are not sufficient to support a judgment. R.S. 48:453; State Dept. of Trans. & Dev. v. Estate of Clark, 432 So.2d 405, 408 (La.App. 1st Cir.1983) citing State v. Levy, 242 La. 259, 136 So.2d 35, 43 (1961). If a public authority substantially interferes with the owner's right of access, he has a constitutional right to just compensation for his loss; but where access is not substantially impaired or is impaired only on a temporary basis and/or the inconvenience to the owner is not peculiar to him, but general to the public at large, no recovery is allowed. Dept. of Trans. & Dev. v. Traina, 537 So.2d 792, 795 (La.App. 2nd Cir.1989), writ denied, 540 So.2d 332 (La.1989).

Department of Highways v. Capone, 298 So.2d 94, 96 (La.App. 1 Cir.1974) set forth the law pertinent to damages resulting to property absent an actual taking. There the court said:

Our jurisprudence is settled to the effect that, even absent an actual taking, damages resulting to property from the construction of public improvements are compensable when such damages are special or peculiar to one's property in particular, and are not general damages sustained by other properties similarly situated. Reymond v. State, Through the Department of Highways, 255 La. 425, 231 So.2d 375 [La.1970], and authorities therein cited.

When there is no taking, damages which merely cause disturbance, inconvenience or discomfort, and which are an ordinary and general result of a public improvement, are not compensable, but are held to be damnum absque injuria. Reymond, above.

In the absence of taking, substantial impairment of ingress, when special and peculiar to claimant's property, entitles an owner to compensation. Efurd v. City of Shreveport, 235 La. 555, 105 So.2d 219 [La.1958]; Patin, et al. v. City of New Orleans, et al., 223 La. 703, 66 So.2d [96-160 La.App. 5 Cir. 6] 616 [La.1953]; Harrison v. Louisiana Highway Commission, 202 La. 345, 11 So.2d 612 [1942].

[Emphasis supplied].

And in Hebert v. State, Department of Highways, 238 So.2d 372, 373-4 (La.App. 3 Cir.1970), writ denied 256 La. 911, 240 So.2d 373 (1970), the court said that:

Even though no portion of an owner's property is actually taken, he may recover damages if his ingress and egress are substantially impaired. Harrison v. Louisiana Highway Commission, 202 La. 345, 11 So.2d 612; Patin, et al v. City of New Orleans, 223 La. 703, 66 So.2d 616; Efurd v. City of Shreveport, 235 La. 555, 105 So.2d 219.

[Emphasis supplied].

The sole factual issue on appeal is whether the jury erred in the finding that the DOTD's letter to the U.S. Army Corps of Engineers (Corps) did not deny plaintiffs access to the subject property, and, therefore, no taking occurred.

As an appellate court, we can modify this factual finding only if we determine that the trial court committed manifest error. West Jefferson Levee Dist. v. Mayronne, 595 So.2d 672 (La.App. 5 Cir.1992); citing Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The record shows that the letter was sent to the Operation Division of the Corps from Mr. Blackwood of DOTD, whose title was Consultant Supervisor. The letter was in response to a phone conversation between Mr. Blackwood and Dr. Mary L. Plumb-Mentjes. The letter was not sent to the general public, and remained in DOTD's files. Mr. Bradley Oubre, one of plaintiffs' expert appraisers, testified that he discovered the letter sometime around 1985-87 ³ when he was researching the [96-160 La.App. 5 Cir. 7] DOTD files for Mr. Huey Rivet, whose property was the subject of the inverse condemnation suit Rivet v. State Dept. Of Transp. and Development ⁴, supra.

The body of the letter is reprinted in whole below. Lambert argues that the emphasized language in the letter effected the inverse condemnation of his property:

Dr. Mary L. Plumb-Mentjes

Operations Division

Regulatory Assessment Section

Department of the Army

New Orleans District, Corps of Engineers

P.O. Box 60267

New Orleans, LA 70160

Gentlemen:

"The following supplemental information is offered in response to our telephone conversation of February 2, 1984.

No access to I-310 will be permitted other than the interchanges at the River Road (La 48) and Airline Highway (U.S. 61). No access to Airline Highway will be permitted between La 626 and Almedia Road.

Soil conditions in the area are so bad that it is more economical to construct I-310 on elevated structure than it is to construct it on the ground. Our studies show that, at the worst point, a roadway constructed by replacing the top 15 feet of ground with suitable material will continue to settle for the next 150 years with a predicted settlement of 5 1/4 feet. Levying and pumping in this type of soil will cause...