Gray v. State Through Dept. of Highways
| Decision Date | 30 June 1967 |
| Docket Number | No. 48501,48501 |
| Citation | 202 So.2d 24,250 La. 1045 |
| Parties | Reuben F. GRAY et al. v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS et al. |
| Court | Louisiana Supreme Court |
Philip K. Jones, Norman L. Sisson, Robert J. Jones, Baton Rouge, for applicants-appellants.
Frederick W. Ellis, C. A. Miller, Jr., John B. Scofield, Lake Charles, for respondents-plaintiffs.
This suit is an aftermath of the condemnation proceeding brought by the State, through the Department of Highways v. Bordages et al. (La.App.) 156 So.2d 617, in which 26 acres of a large tract of land (650 acres owned in indivision by some 70 persons) and a temporary servitude consisting of 22.22 acres for borrow pit purposes were expropriated under R.S. 48:441--460 in connection with the construction of Interstate Highway 210 through Calcasieu Parish. This is an action Ex delicto by many of the landowners for recovery of $740,000 damages for an alleged trespass on an unexpropriated portion of their land by the Department and the removal therefrom of 120,000 cubic yards of dirt which was used in the construction of the highway. Joined with the Department, as defendants, are the excavator of the borrow pit from which the dirt was removed, W. R. Aldrich & Company, and the latter's liability insurer, National Surety Corporation. 1
The Department denied liability and reconvened, seeking as an offset against any award which might be allowed the plaintiff landowners the amount of compensation it had paid plaintiffs in the Bordages case for the properly expropriated, but unused, borrow pit on another portion of the land. Thus, the issue in the case is essentially whether an action Ex delicto will lie for the recovery of damages resulting from an intentional appropriation (actually an expropriation which, as hereinafter pointed out, has been determined illegal for failure to comply strictly with certain constitutional and statutory requirements) by the State of private property for a public use or whether the landowner's right to compensation is confined to recovery of the market value of the property appropriated together with such severance damages he sustained as a result of the taking. At this point, however, it is in order to state the facts and events which preceded the institution of the lawsuit.
In the Bordages matter, the Department secured on September 28, 1961, an order of court expropriating, under R.S. 48:441--48:460, the full ownership of a 26-acre strip of land across the 650-acre tract for Interstate Highway 210. Simultaneously, the Department expropriated a temporary servitude for borrow pit purposes affecting 22.22 acres located on the East side of the proposed highway right-of-way, which servitude was limited to the duration of the project. The sum of $104,666 was deposited in the registry of the court as just compensation for the property and rights expropriated. This amount was withdrawn by plaintiffs and the other landowners under orders of court issued during 1961 and 1962.
These expropriation orders were issued in strict accordance with the provisions of R.S. 48:441 et seq. However, some seven months thereafter, on June 7, 1962, and before any excavation work had been performed, the Department filed a supplemental and amending petition in the then pending suit in which it prayed for a change in the location of the area affected by the temporary borrow pit servitude from the original tract on the East side of the highway to a new and different 22.22 acre tract on the West side of the highway. A plat showing the site of the new servitude was attached to that petition and the Department further prayed that the title to the temporary servitude theretofore taken, which was described in the original petition as 'Borrow Pit Area D', be restored to the defendants in that case (plaintiffs in this one). In accordance with the allegations and prayer of this supplemental and amended petition, the court issued an order on the same day expropriating the 22.22 acre area situated on the West side of the highway for borrow pit purposes in place of the temporary servitude on the East side of the highway and it was further ordered that the temporary servitude on the East side be and it was restored to the landowners.
This change in the location of the expropriated borrow pit servitude was effected by the Department as an accommodation to one of the industries owning land on the east side of the highway near the borrow pit originally expropriated. It appears from the record that Mr. Oliver Stockwell, a prominent member of the Lake charles Bar, representing this corporation, Pittsburgh Plate Glass Company, contacted Mr. Ted W. Price, Chairman of the Louisiana Department of Highways Board, and requested an appointment with Mr. Ray Burgess, Director of the Department of Highways, on behalf of Mr. Al Raetzsch, the Manager of Columbia Southern Pittsburgh Plate Glass Company. Thereafter, Price, Stockwell, Raetzsch and Burgess had a conference in Baton Rouge at which Raetzsch requested a change in the location of the original borrow pit because of its proximity to his company's plant, pointing out that the land which had been expropriated on the east side of the highway was the only land available to the company in the event it found it advisable to expand its operations. Price testified that he thought this was a reasonable request and, subsequently, the change in the borrow-pit from the east to the west side was effected by the supplemental petition and order to which we have hereinabove referred. 2
Acting under the formal (albeit ex parte) amended order of expropriation of June 7, 1962, the Department, on June 15, 1962, commenced clearing operations on the west side tract and, on September 15, 1962, the contractor began the excavation work.
On June 18, 1962, three days after operations had commenced, many of the plaintiff landowners appeared and filed motions to dismiss the supplemental and amending petition and rescind the order granted pursuant thereto for various reasons. However, the only substantial ground alleged was that the Department had violated the quick-taking statutory provisions in failing to obtain a new appraisal of the property expropriated. After a hearing, the motions were sustained on this ground by the trial judge and, on January 3, 1963, judgment was entered rescinding and recalling the supplemental and amending order of expropriation. On January 14, 1963 the judgment was signed and, thereafter, the Department prosecuted its appeal to the Court of Appeal, Third Circuit, where the judgment of the trial court was affirmed. See State, Through Dept. of Highways v. Bordages (La.App.) 156 So.2d 617, cert. den. 245 La. 462, 158 So. 612 (December 16, 1963).
Meanwhile, on June 3, 1963, the operations conducted at the west side servitude site were concluded. Then, two days later, the plaintiff landowners filed the instant suit to recover damages for trespass and conversion under Articles 507 and 2315 of the Civil Code--that is, they seek the value of the earth and other materials removed from the west side servitude and also the damages they allegedly sustained as a result of the claimed unlawful acts of the defendants.
The Department, as stated, resisted the demand. It filed an exception of no right of action predicated on the proposition that the servitude was taken for highway purposes and, therefore, the only action available to plaintiffs is their right to just compensation for value of the property taken and severance damages. In a reconventional demand, the Department specially pleaded that plaintiffs had been unjustly enriched when they received and kept that part of the compensation deposited in the registry of the court attributable to the unused borrowpit on the east side of the road, and it claimed that this amount should be credited and offset against plaintiffs' claim.
After a hearing the trial court, in a well reasoned opinion, rejected plaintiffs' demand for damages Ex delicto and awarded judgment in their favor for $33,625, concluding that plaintiffs' recovery is limited under the Constitution and law to the market value of the temporary servitude, plus such severance damages they have sustained as a result of the appropriation of the property for a public purpose. 3
The plaintiff landowners and the Department appealed from the decision of the lower court. The Court of Appeal, Third Circuit, reversed the main finding of the trial judge and held the Department responsible for damages under Civil Code Articles 507 and 2315, deducing that the appropriation of the plaintiffs' land was tortious and that the Department and its contractor were trespassers in legal bad faith, liable, as such, for the value of the dirt taken and used in the construction of the highway. Conformably with this view, the award of the district court was increased to the sum of $119,682.84 and the judgment was further amended so as to hold National Surety solidarily liable with the Department and Aldrich up to its policy limit of $100,000. The court, however, allowed an offset in favor of the Department in the sum of $8360, which it found the Department had paid plaintiffs in the Bordages suit as severance damages for the unused temporary servitude expropriated on the east side of the highway. A vigorous dissent was written by one of the judges composing the panel which heard the case and, on application for a rehearing, the dissenting judge and another member of the court, who did not participate on original hearing, dissented from the refusal of the Department's application for a rehearing. See Gray v. State, Through Department of Highways, La.App., 191 So.2d 802. This Court granted the Department's application for certiorari, 250 La. 27, 193 So.2d 531.
We think the prevailing opinion of the Court of Appeal patently erroneous. Indeed, in view of the above stated facts, we...
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