City of New Orleans v. Giraud

• Decision Date: 09 November 1959
• Docket Number: No. 44530,44530
• Citation: 115 So.2d 349,238 La. 278
• Parties: CITY OF NEW ORLEANS v. Lewis A. GIRAUD.
• Court: Louisiana Supreme Court

Page 349

115 So.2d 349

238 La. 278

CITY OF NEW ORLEANS v. Lewis A. GIRAUD.

No. 44530.

Supreme Court of Louisiana.

Nov. 9, 1959.

Alvin J. Liska, City Atty., Charles E. Cabibi, Asst. City Atty., New Orleans, for plaintiff-appellant.

Lewis A. Giraud, New Orleans, in pro. per.

McCALEB, Justice.

This is a suit in which the City of New Orleans, under the provisions of R.S. 19:1--13, petitioned to expropriate three adjoining parcels of ground which were parts of much larger tracts owned by defendant, Lewis A. Giraud. The petition precisely described the land to be taken, and had annexed thereto a survey of the property, dated April 12, 1955, which had been made by C. J. Christina, City Surveyor.

Defendant filed three exceptions, (1) lack of authority and/or want of capacity to sue, (2) vagueness, and (3) no right or cause of action. The first exception was overruled. The second was based on the contention that the descriptions of the properties involved were vague and incomplete, and that two of the parcels actually contained a greater width than shown. This exception was referred to the merits, as was the exception of no right of action. The exception of no cause of action was overruled. No answer was filed, but a trial was held in order to determine the compensation due defendant (R.S. 19:5, 19:7).

The large tracts owned by defendant, from which the city expropriated the portions here in question, are located in the Third Municipal District, fronting on the Chef Menteur Highway (U.S. 90) and running in a northerly direction toward the Dwyer Road, parallel to and between Werner Drive and Wilson Avenue. They are approximately 3,252 feet in length and have a total width of approximately 365 feet. In 1937, the defendant built a colonial style house at the approximate center of the property, and lived there with his family ever since. Portions of the land had been cleared and a fence enclosed the property from the Chef Menteur Highway to a point several hundred feet behind the house. A shell road ran from the Chef Menteur Highway to the house, which it encircled.

The portion of the above described property expropriated was taken for the purpose of extending Grant Street from Werner Drive so that it would continue into Selma Street at Wilson Avenue. The strip of land expropriated is 50 feet wide and runs the width of the large tract near its center, so that the northern edge of the right-of-way runs along a line only a little over 23 feet from the front of defendant's residence.

There was no dispute below as to the value of the land actually expropriated. Both plaintiff's and defendant's expert witnesses testified that it was worth 30$ a square foot. However, defendant endeavored to prove consequential damages as follows:

                (1) Fences along both sides
                    of the new right-of-way       $ 950.00
                (2) Cost of paving new street      6400.00
                (3) Sidewalks on both sides
                    of the new street              1000.00
                (4) New water meter and
                pipeline1                  650.00
                (5) New electrical wiring1     900.00
                (6) Loss of unity and contiguity   3500.00
                

Defendant also attempted to prove that the proximity of the new street to his house lowered the value of the house and damaged him in the amount of $27,000 which, allegedly, would be the cost to move the house into a proper setting.

In addition, he sought to establish the contention, urged under his second exception, that the expropriated property actually contained more area than shown on the city's survey. However, he did not introduce another, more accurate, survey but instead had a realtor, Mr. Cliff Probst, testify for him on this point.

After hearing the evidence, the district court awarded defendant damages as follows:

                Ground                       $ 5,655.00
                Fences, 1 side                   475.00
                Sidewalks, 1 side                500.00
                New water meter                  350.00
                Pipe line for meter              300.00
                New wiring, Public Service       900.00
                Reduction in value of house   15,000.00
                                             ----------------
                $23.180.002
                

Plaintiff then took this appeal, contesting only the award of $15,000 given by the judge for reduction in value of the house. However, defendant filed an answer to the appeal, asking that the judgment be increased in the following particulars:

(1) $30,500 instead of $15,000 for reduction in value of his house.

(2) That he should be compensated for the cost of putting fences and sidewalks on both sides of the new street instead of only on one side, as allowed below.

(3) That he should have been awarded $6,400 representing the cost he will have to bear for paving the new street.

(4) That there are certain technical errors in the judgment which should be corrected here.

The first matter for consideration is whether the taking decreased the value of defendant's house by $30,500 or by $15,000, or if it decreased the value at all.

There was some evidence that the 23-foot proximity of the new street to defendant's house would diminish defendant's comfort and safety and would make the location of the house less desirable to him from an esthetic point of view. However, consequential damages for such discomfort or loss of esthetic values are not per se compensable unless it is shown that there has been a diminution in the commercial value of the property which remains after the taking. Louisiana Highway Commission v. Guidry, 1933, 176 La. 389, 146 So. 1; Schneidau v. Louisiana Highway Commission, 1944, 206 La. 754, 20 So.2d 14; Louisiana Power & Light Company v. Dileo, La.App.1955, 79 So.2d 150 and East Baton Rouge Parish Council v. Koller, La.App.1957, 94 So.2d 505.

Accordingly, if the city's expropriation of defendant's land decreased the commercial value of his house, the defendant is entitled to consequential damages in the amount of the decrease in value. Art. 1, Sec. 2, La.Const. of 1921; Louisiana Highway Commission v. Ferguson, 1933, 176 La. 642, 146 So. 319; Britt v. City of Shreveport, La.App.1955, 83 So.2d 476; Texas Pipe Line Company v. Barbe, 1956, 229 La. 191, 85 So.2d 260; Lafayette Parish, etc. v. Hernandez, 1957, 232 La. 1, 93 So.2d 672. However, if, due to the expropriation, the value of the remaining land increased enough to offset the loss on the house, defendant can recover nothing for the house loss. Louisiana Highway Commission v. Grey, 1941, 197 La. 942, 2 So.2d 654; State v. Cooper, 1948, 213 La. 1016, 36 So.2d 22; Thomas & Warner, Inc. v. City of New Orleans, 1956, 230 La. 1024, 89 So.2d 885.

Defendant had the onus of establishing that the taking decreased the commercial value of his house (Louisiana Highway Commission v. Ferguson, supra; Central Louisiana Electric Company v. Leonards, La.App.1953, 65 So.2d 631; Tennessee Gas Transmission Company v. Primeaux, La.App., 100 So.2d 917) and, if such decreased value was proven, the burden shifted to plaintiff to show, if it desired to avoid liability for this item, that the benefit of the improvement increased the value of the remaining land to such an extent so as to offset the decrease in value of the house.

Most of the evidence on the point of how much commercial value the house lost by reason of the taking is found in the testimony of Mr. Philip J. Zollinger, one of the defendant's expert witnesses. When asked on redirect examination whether the 23-foot proximity of the new street to the house would affect its sale value, Mr. Zollinger replied that it would decrease the value by about $15,000. The city's only evidence on this point was given by its expert, Mr. J. Burrows Johnson, who had testified on direct examination that he did not think the proximity of the new street to the house would 'seriously affect the property itself', and that the only damage in this respect would be a loss of privacy to Mr. Giraud, and a deprivation 'of the manner in which he might wish to improve his property at a later date'. Thus, it seems that defendant has shown, without refutation, that the new street has decreased the commercial value of his house by $15,000 and, therefore, he is entitled to recover this consequential damage unless plaintiff has established that the new street increased the value of the remaining land enough to offset the loss in value of the house.

The City Attorney apparently contends that the...