Bowie Lumber Co. v. United States, 11154.

• Decision Date: 18 June 1946
• Docket Number: No. 11154.,11154.
• Citation: 155 F.2d 225
• Parties: BOWIE LUMBER CO., LTD., v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

155 F.2d 225 (1946)

BOWIE LUMBER CO., LTD., v. UNITED STATES.

No. 11154.

Circuit Court of Appeals, Fifth Circuit.

May 8, 1946.

Rehearing Denied June 18, 1946.

J. Blanc Monroe, Monte M. Lemann, and Walter J. Suthon, Jr., all of New Orleans, La., for appellant.

George Swarth, Vernon L. Wilkinson, and Roger P. Marquis, Attys., Dept. of Justice, J. Edward Williams, Acting Head, Lands Division, Department of Justice, all of Washington, D. C., and Herbert W. Christenberry, U. S. Atty., and Howell Carter, Jr., Sp. Atty., Dept. of Justice, both of New Orleans, La., for appellee.

Before HOLMES, McCORD, and WALLER, Circuit Judges.

McCORD, Circuit Judge.

The United States, in July 1943, filed in court its petition to condemn in fee simple the property here involved, together with a declaration of taking, under authority of 40 U.S.C.A. §§ 257 and 258a. The amount of $60,107.00 as estimated just compensation for the property was deposited in court. On July 9, 1943, the court entered judgment on the declaration of taking, entering a decree vesting title in the United States and awarding possession beginning August 14, 1943.

The purpose of the condemnation was to provide clinical facilities under the authority of the Lanham Act of October 14, 1940, c. 862, 54 Stat. 1125, as amended by the Act of June 28, 1941, c. 260, 55 Stat. 361, 42 U.S.C.A. §§ 1531-1534.

The property condemned consisted of a lot in the City of New Orleans, Louisiana, on the southwest corner of Poydras and Carondelet Streets, and measured 72 feet on Poydras and 77 feet on Carondelet. The lot was occupied by two buildings. The first was a four-story brick building standing on the corner and extending approximately 50 feet on Poydras and about 75 feet on Carondelet. The remainder of the lot was occupied by the second building, a one-story brick and stucco structure with a frontage of 19 or 20 feet on Poydras Street.

The Poydras Building was erected in 1896-1897 by the Southern Bell Telephone Company, whose special needs it was peculiarly designed to met, and was not constructed for office purposes. At the time of taking, the fittings were old-fashioned and its ceiling heights excessive; it was not air-conditioned, or even piped for hot water. Its wiring was for direct current, and conversion to alternating current, as required by ordinance upon change in occupancy of the building, would have required installation of a new elevator motor. The attic was an air space from six to eight feet high, entirely unfinished, accessible only by stairs and of no use except for storage. One witness testifying for the owner, and who had never seen the attic, thought it would have an annual rental value of 25 cents a square foot, but another witness for the owner, and who had been rental agent for the building, was unable to fix any rental value for the attic. Witnesses for the Government testified that the attic had no rental value, and also testified that the building was in a rather undesirable location. It was used for office purposes by the owner and various tenants, but its construction made such use unsatisfactory and it had been largely vacant, even through times of great demand. Operation by the owner showed a book profit of $1,715 for the year 1942. However, the owner itself occupied 1000 square feet for which it showed a charge of $2.40 per square foot per year, whereas other tenants were being charged only from 70 cents to $1.36 per square foot. One of the owner's witnesses testified that the charge of $2.40 was excessive, and the owner, after the condemnation, was able to secure a class A air-conditioned building for $1.50 a square foot. Government witnesses testified that $1.00 a square foot was high rental for the building. Furthermore, forty-six years of the building's estimated life of seventy-five years had passed and the owner's statement made no allowance for depreciation. Neither did it allow for management costs, and its estimate of labor costs was low. From a consideration of all the evidence it was open to the jury to find that little or no net profit from operation of the building was shown. The small building on the lot was vacant, but witnesses fixed its rental value at from $75 to $100 a month.

Much testimony was introduced as to rents and sale prices of other buildings which were described and compared with the buildings here involved. There was also testimony as to actual and potential net and gross return from use of this property for offices. All the witnesses who testified on this subject agreed that the best use of the Poydras Building would be for single occupancy of the entire building, or at least of whole floors.

Witnesses for the United States valued the property at $61,500, $61,000, and $60,107; while witnesses for the owner valued the property at $75,000 and $73,300. The jury returned a verdict for $62,025.84, for which amount judgment was entered.

Decision must turn upon whether the court committed prejudicial error in excluding from evidence: (1) extracts from assessment rolls covering the condemned property; (2) a certified copy of an ordinance of the City of New Orleans authorizing the Mayor to lease the condemned property from the United States; (3) testimony of owner's witness concerning a certified copy of a lease of the condemned property from the United States to the City of New Orleans; (4) estimate of the original cost and cost of reproduction of the condemned property; and (5) rental paid by owner at the time of trial for an office in which it was keeping records formerly stored in the attic of one of the condemned buildings.

The court in declining to permit the owner to introduce certified copies of extracts from the parish assessment rolls for the years 1940 through 1943, as proof of the market value of the property, committed no prejudicial error. Louisiana Ry. & Navigation Co. v. Morere, 116 La. 997, 41 So. 236; Louisiana...