Central La. Elec. Co. v. Covington & St. Tammany Land & Imp. Co.

• Decision Date: 22 May 1961
• Docket Number: No. 5220,5220
• Court: Court of Appeal of Louisiana — District of US
• Parties: CENTRAL LOUISIANA ELECTRIC CO., Inc. v. COVINGTON & ST. TAMMANY LAND & IMPROVEMENT CO.

Page 369

131 So.2d 369

CENTRAL LOUISIANA ELECTRIC CO., Inc. v. COVINGTON & ST. TAMMANY LAND & IMPROVEMENT CO.

No. 5220.

Court of Appeal of Louisiana, First Circuit.

May 22, 1961.

Rehearing Denied June 30, 1961.

Jack J. Cousin, New Iberia, J. Monroe Simmons, Covington, Chafee, McCall, Phillips, Burke & Hopkins, New Orleans, for appellant.

Dalton J. Barranger, Covington, for appellee.

Before ELLIS, LOTTINGER, JONES, HERGET and LANDRY, JJ.

LANDRY, Judge.

This expropriation suit, instituted by plaintiff, Central Louisiana Electric Co., Inc., against defendant, Covington & St. Tammany Land & Improvement Co., to acquire a servitude or right of way for construction of an electrical transmission line, is one of eight such actions brought by plaintiff against various defendant property owners to secure the required easement to erect the mentioned facilities in St. Tammany and Washington Parishes, Louisiana. Named as defendants in the following numbered cases, all consolidated herewith for purposes of trial and appeal, are Stiegler et al., Number 5221, 131 So.2d 387; Stiegler, Number 5222, 131 So.2d 390; Burns et al., Number 5223, 131 So.2d 390; Barranger, Number 5224, 131 So.2d 393; Baldwin, Number 5225, 131 So.2d 396; Harang, Number 5226, 131 So.2d 398; and Rice et al., Number 5227, 131 So.2d 405.

The line proposed to be constructed by plaintiff will extend from a point approximately 2 miles north of Madisonville, St. Tammany Parish to a terminal approximately 2 1/2 miles northwest of Sun, Washington Parish, Louisiana, and is intended to supply necessary additional power and line capacity to meet increasing demands for electricity to the Washington-St. Tammany area. The easement is required for erection of a 5-wire, 230,000-volt electric transmission line consisting of three 3/8ths inch steel glazed wires over two one-inch aluminum wires with steel-reinforced cores, supported by steel towers varying from 60 to 90 feet in height and having basal dimensions ranging from 21 to 25 feet square. The towers will be spread at intervals varying between 1,100 and 1,300 feet and the wires will have minimum ground clearance of 35 feet. The wires will be suspended in the center of the right-of-way so as to be well clear of houses, trees and other obstructions. The servitude required is to have a width of 125 feet. Plaintiff does not seek to expropriate the lands in fee but merely to acquire an easement for the purpose stated.

The district court rendered judgment in favor of plaintiff granting the several servitudes sought by plaintiff upon payment to defendants of certain sums specified as compensation in each particular instance. Plaintiff has appealed from the various judgments in each case complaining of the awards allotted the respective owners as severance damages and, in addition, in suits Number 5226 and 5227 further complaining the amounts granted defendants therein, Jack F. Harang and Atwood L. Rice, et al., respectively, for the servitudes taken, were excessive and should be reduced.

In answering plaintiff's appeal, defendants do not seriously question either the necessity for the taking, that is the need of plaintiff to construct the line to meet the growing demand for additional electrical power in the area to be served by the proposed line, or the amount and extent of right-of-way plaintiff seeks to acquire for the proposed facilities. In all instances excepting the Jack F. Harang suit, Number 5226, defendants request an increase in either the compensation awarded for the servitudes taken or severance damages to remaining property.

On this appeal each defendant urges plaintiff's suit should have been dismissed by the trial court for plaintiff's alleged failure to negotiate prior to institution of each suit and also for alleged non-joinder of an indispensable party plaintiff. Alternatively, defendants maintained in the court below, and reurge on appeal that the judgment of the trial court should be amended to declare the several servitudes nonassignable or require that the line be constructed underground or that, if constructed above ground, the line be located on their respective boundaries but not along any highway frontage.

Two of the several issues pleaded in defense of these suits, namely, nonassignability of the servitude to be acquired and non-joinder of an indispensable party have been expressly abandoned by defendants. There remains for decision (aside from the question of compensation) the plea of maturity and the following contentions advanced by defendants: (1) Plaintiff should be required to take the property in fee instead of merely a servitude or easement; (2) Plaintiff's arbitrary selection of the route for the line constitutes an abuse of its discretion in this regard considering other suitable routes are shown to be available; (3) Under the authority which plaintiff seeks to expropriate defendants' properties, plaintiff is prohibited from constructing such a dangerous facility; (4) Alternatively, plaintiff should be required to construct the line underground to eliminate danger therefrom and accommodate the convenience of the landowner as required by the provisions of the statute under which the taking is authorized and (5) In the further alternative, plaintiff should be required to construct the line along defendants' respective property lines to suit defendants' convenience.

Defendants first submit that contrary to the jurisprudence of this state, no good-faith attempt was made by plaintiff to negotiate with any of the landowners herein involved before instituting these actions. It is true, as defendants contend, the Supreme Court of this state has held that where such issue is raised by exception of prematurity filed in limine litis, ths suit may be dismissed as of non-suit upon a showing of lack of bona fide negotiation with the landowner by the expropriating authority. Calcasieu & Southern Ry. Co. v. Witte, 224 La. 1091, 71 So.2d 854. Where no such exception is timely filed, however, the only penalty imposed for failure to so negotiate consists in the expropriating agency being cast for costs. City of Shreveport v. Noel, 114 La. 187, 38 So. 137. In the case at bar the issue is rendered moot considering the record in each case contains a stipulation wherein plaintiff assumes all liability for costs.

The contention plaintiff should be required to take the land in fee is patently without merit. Precedent has established the rule that in an expropriating proceeding the expropriating authority may take only such property, both in nature and extent, or rights therein, as is reasonably necessary in the exercise of the purpose or function for which the taking is authorized. Prior jurisprudence has also firmly established the rule that an expropriating authority will be neither permitted nor required to take more land, or rights therein, than is reasonably sufficient and suitable for its particular need. The records herein show that virtually all properties are situated in open rural areas and are presently in use as grazing or cut-over timber lands. It also appears from the testimony of plaintiff's witnesses that fee title is not needed or required for construction of the contemplated facilities which in these cases will consist only of wires or supporting towers, or both. No buildings, generating plants or other such structures will be erected on the property of any owner involved in these several cases. It further appears the rights of way will remain unfenced and defendant owners will be permitted to farm, graze cattle thereon or utilize same for any similar purpose which does not conflict with plaintiff's use thereof. Admittedly defendants will not be able to construct improvements in the right of way or continue to grow timber thereon as such would present hazards and impediments in the operation, maintenance and repair of the lines. Subject only to those restrictions and limitations, all defendants will retain some use of their properties and in addition, will retain mineral rights therein. Under such circumstances it hardly behooves defendants to urge plaintiff be compelled to expropriate their lands in fee.

Plaintiff maintains the remaining defenses such as alleged abuse of plaintiff's discretionary authority in selection of route, availability of alternate routes and optional methods of construction which will render the proposed construction less dangerous may not be considered by this court as such issues were not specially and timely pleaded in accordance with the provisions of LSA-R.S. 19:6 and 7. Plaintiff further contends the recitations relied upon by defendants as allegations of such issues are mere conclusions of law, not assertions of fact and, therefore, evidence in support thereof was erroneously admitted by the trial court. LSA-R.S. 19 Sections 6 and 7 provide that a landowner defendant in an expropriation suit shall file his answer within 10 days of service upon him and failure to so answer shall constitute a forfeiture and waiver of all defenses except claims for compensation due either to property taken or as severance damages to remaining property. As correctly pointed out by learned counsel for plaintiff, said provision of our expropriation law has been held to mean that a defendant who fails to timely plead and answer waives all defenses except his right for compensation. State v. Landry, 219 La. 456, 53 So.2d 232; City of Gretna v. Mitchell, La.App., 64 So.2d 873.

It is unnecessary to consider plaintiff's contentions that defendants have failed to timely plead or have plead conclusions of law instead of facts as the record reveals the testimony relative to the controversial issues of alternate routes and optional methods of construction were received in the trial court without objection or complaint by plaintiff. Having permitted introduction of evidence to which objection may have properly been made, plaintiff had allowed the pleadings to be enlarged...