Koerber v. City of New Orleans

• Decision Date: 07 November 1955
• Docket Number: No. 42224,42224
• Parties: Josephine KOERBER v. CITY OF NEW ORLEANS.
• Court: Louisiana Supreme Court

Page 454

84 So.2d 454

228 La. 903

Josephine KOERBER v. CITY OF NEW ORLEANS.

No. 42224.

Supreme Court of Louisiana.

Nov. 7, 1955.

Rehearing Denied Dec. 12, 1955.

Clem H. Sehrt, Edward J. Boyle, Dudley A. Philips, Jr., Amos L. Ponder, New Orleans, for plaintiff and petitioner.

Henry B. Curtis, City Atty., Luther E. Hall, Joseph H. Hurndon, Asst. City Atty., New Orleans, for respondent.

SIMON, Justice.

This cause comes to us on certiorari, or writ of review, to the Court of Appeal, Parish of Orleans, and involves a petitory action instituted by plaintiff, Josephine Koerber, against the City of New Orleans, claiming title to approximately four acres of land situated within the limits of the Moisant International Airport in Jefferson Parish, owned and operated by the City of New Orleans.

The City of New Orleans answered and denied the various allegations of plaintiff's petition, possession in good faith, and the prescription periods of 1, 2, 5, 10 and 30 years, respectively. Defendant also invoked the plea of waiver and estoppel, pleading alternatively that in the event plaintiff had any rights whatsoever in and to the property said rights should be limited to a claim for its market value as of the time it was taken by the City in the year 1941.

After a trial on the merits, the district court rendered judgment decreeing plaintiff the owner of the property and thus entitled to just and fair compensation therefor, its value to be determined as of September 27, 1951, the date defendant filed its answer to plaintiff's suit. All pleas filed by the defendant were dismissed, except its alternative plea recognizing its right to expropriate the property upon complying with the legal formalities and paying just and fair compensation. The case was ordered reopened for the purpose of determining and fixing the compensation to be paid.

From this judgment the defendant appealed to the Court of Appeal, Parish of Orleans, which court affirmed the judgment of the district court insofar as it decreed plaintiff the owner of the property, and in all other respects reversed and amended said judgment so as to maintain the City of New Orleans in its possession and use of the property in connection with said airport. It further relegated plaintiff to an action in damages against the City of New Orleans for the value of the property at the time of its taking for said public purpose.

Both parties applied for writs of review: the plaintiff contending in her application that the value of the property should be fixed as at the time of a lawful taking of the property for public purposes; the defendant contending in its application that its plea of 10-year prescription should be maintained. We refused the defendant's application for writ of certiorari because it did not disclose an adequate cause for the granting thereof. We granted the plaintiff's application.

Hence, the sole issue before us is whether the market value of the property should be fixed as of 1941 or as of 1951, or, as contended by plaintiff, as of the date of the lawful exercise of the right of eminent domain by the defendant.

It is not disputed that ownership of the property is vested in plaintiff; that the City of New Orleans believed the property formed a part of a larger tract known as the Pailet Tract which the city purchased on October 30, 1941, from the Liberty Homestead Association in liquidation for the price of approximately $50 per acre; and that the City immediately possessed, occupied and used the entire area, including plaintiff's property, and began construction of the airport thereon. Other portions of property forming a part of the airport were obtained by mesne conveyance and by expropriation suits ¹ filed under the provisions of LSA-R.S. 33:4621, granting to municipalities and parishes the right to expropriate private property situated outside their corporate limits by and with the consent of the police jury of the parish in which the property is situated. However, the City of New Orleans unintentionally failed to obtain the plaintiff's property by deed translative of title or by expropriation proceedings consented to by the police jury of Jefferson Parish.

The record discloses that in January, 1946, the airport was dedicated to public use; that by letter addressed to her attorney, dated October 29, 1946, plaintiff was informed that the property to which she claimed ownership was actually located within the limits of and was being used by Moisant Airport; that plaintiff failed to judicially assert her rights of ownership or demand compensation therefor until March 25, 1949, when she first instituted a suit claiming ownership of said property, which suit she later moved to dismiss. The present suit was filed on November 21, 1949. We observe that claims of ownership were asserted by plaintiff in conversation and correspondence had between the parties beginning June, 1947.

Plaintiff contends that the court of appeal is in error in holding that the value of her property should be fixed as of 1941 since the taking thereof at that time was an unlawful taking. She urges that its value be fixed as of the time of a lawful expropriation, which plaintiff concedes is the date defendant filed its answer incorporating therein demand for expropriation, i. e., September 27, 1951. In support of her position, she cites the cases of New Orleans Ry. & Light Co. v. Lavergne, 138 La. 949, 70 So. 921; City of New Orleans v. Moeglich, 169 La. 1111, 126 So. 675; State v. Landry, 219 La. 721, 53 So.2d 908.

The case of New Orleans Ry. & Light Co. v. Lavergne, supra, was instituted by plaintiff for the expropriation of certain lots of ground that were low marsh land of very low value until plaintiff Company filled and reclaimed it and constructed thereon facilities for use as a railroad. In awarding damages the jury included the enhanced value occasioned by these improvements. In reducing said award, this court said [138 La. 949, 70 So. 924]:

'The jury should have allowed the defendants the market value of the land at the time this expropriation suit was filed, without regard for the improvements put upon it by the railway company. * * *' (Italics ours.)

In the case of City of New Orleans v. Moeglich, supra, the plaintiff sued to expropriate a small strip of land to be used for a public street. The sole issue therein was the fixing of the value of the property sought to be expropriated. As to its naked value, the parties were in full accord. But defendant contended that damages should be considered on the basis of the contemplated subdivision thereof into residential lots and placing same on the market. In fixing the value of the property, this court said [169 La. 1111, 126 So. 687]:

'It has been frequently held by this court that the criterion of value is the market value of the property at the date of the institution of the suit for expropriation, taking into consideration the use to which the property may be applied and all the uses to which it is adapted, excluding any increment of value occasioned by the proposed construction work or work of public utility for which the property is wanted. Texas Pacific [Missouri Terminal R. of New Orleans] v. Elliott, 166 La. 348, 117 So. 275; Louisville & N. R. Co. v. R. E. E. De Montluzin Co., 166 La. 211, 116 So. 854.

'In the last mentioned case it was held that contemplated subsequent subdivision of property and sale of lots after expenditure of considerable sums on improvement cannot serve as basis of valuation at date of institution of expropriation suit for railroad right of way as partaking too much of character of speculation.'

The State of Louisiana instituted the case of State v. Landry, supra, to expropriate a parcel of land for highway purposes. In determining the measure of damages, we said [219 La. 721, 53 So.2d 910]:

'The rule is well settled that the measure of value of property expropriated for public use is the market value of the property at the date of institution of the expropriation suit. * * * But since the State has delayed the trial of this case for such a long time, and elected to file separate proceedings for each parcel of ground and to dismiss its original suit, the first proceeding is to be considered abandoned, and as though it had never been filed. * * * Of necessity, therefore, the value of the land at the time of the filing of the second suit will control.' (Italics ours.)

It can be readily seen, therefore, that in the cases relied upon by plaintiff the taking of the property was legally effected as of the date each expropriation suit was filed, and the value thereof was determined as of that date.

On the other hand, defendant strenuously urges that the compensation due plaintiff for the property is its market value prevailing as of the date of the actual entry, possession, occupancy and use by the defendant, or October 30, 1941. In support of its contention, defendant relies primarily upon the cases of Gumbel v. New Orleans Terminal Co., 197 La. 439, 1 So.2d 686; Jefferson & Lake Ponchartrain R. Co. v. City of New Orleans, 31 La.Ann. 478; and St. Julien v. Morgan L. & T. R. Co., 35 La.Ann. 924.

In the case of Gumbel v. New Orleans Terminal Co., supra, plaintiff filed a suit against defendant Railroad Company to recover compensation or, in the alternative, damages for use and occupancy in the land appropriated by the defendant. The suit was filed at a time when the defendant had possessed and used a portion of the land for a period in excess of thirty years for two switch tracks laid thereon without any objection or protest by the then landowner or his vendee from whom plaintiff purchased the property. The first protest made against defendant's use of the land was made by plaintiff some thirteen years after he had acquired its ownership. Under this factual situation we held that the right of the original owner and vendor to seek recovery of compensation and damages, if any, as...