Lafayette Airport Com'n v. Roy

• Decision Date: 26 May 1972
• Docket Number: No. 3817,3817
• Citation: 265 So.2d 459
• Parties: LAFAYETTE AIRPORT COMMISSION et al., Plaintiffs-Appellees, v. J. Maxime ROY et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 459

265 So.2d 459

LAFAYETTE AIRPORT COMMISSION et al., Plaintiffs-Appellees, v. J. Maxime ROY et al., Defendants-Appellants.

No. 3817.

Court of Appeal of Louisiana, Third Circuit.

May 26, 1972.

Dissenting Opinion June 12, 1972.

Rehearing Denied July 12, 1972.

Writs Refused Sept. 27, 1972.

Bailey & Mouton by William C. Hollier, Lafayette, Morgan J. Goudeau, III, Opelousas, Davidson, Meaux, Onebane & Donohoe by Edward C. Abell, Jr., Lafayette, for defendants-appellants.

William E. Logan, Jr., Lafayette, for plaintiffs-appellees.

Before FRUGE , HOOD and MILLER, JJ.

MILLER, Judge.

The Lafayette Airport Commission and the Lafayette Parish Police Jury expropriated ¹ a 97 acre tract of land for extension of runways at the Lafayette Municipal Airport. Defendants A. J. Maxine Roy, Jr., and 15 other co-owners in indivision, owners-lessors appeal contending that the $39,043.79 award should be increased. Defendant-lessee Acadian Development Corporation appeals seeking recognition of the leasehold interest it owned at the date of the taking, and an award therefor. Plaintiffs answered the appeal seeking a reduction in the award to landowners to the sum of $24,240 .75. We amend the trial court judgment to substantially increase the trial court's award to landowners. We reverse in part to recognize the leaseholder's interest and award leaseholder the fair market value of its ownership.

Defendants own 219.8 acres out of which 97 acres were taken effective January 30, 1970. The physical aspects of the subject land together with a characterization of the claims is shown on plaintiffs' exhibit '3' & 'I.' There is a 10.7 acre tract northeast of the area taken which was not expropriated but which is considered by most experts to be effectively taken by the expropriation.

Five test borings were made by T. L. James on the subject land, two by Capizola & Associates and forty by Eustis Engineering Co. These indicated a sand deposit extending along the entire western edge of the subject land, consisting of 33.3 acres found in the 97 acre tract and 0.8 acres in the aforementioned 10.7 acre tract.

On August 1, 1956, landowners granted to Acadian Development Corporation a recorded sand and gravel mining lease encompassing the entire 219.8 acre tract for a minimum annual rental of $1,000 plus a 10 cents per cubic yard royalty on all sand removed. On July 1, 1963 these parties, by unrecorded amendment to the lease, released all but 80 cares of the tract to landowners. Acadian retained 80 acres under the amendment (this included all of the 34.1 acre sand deposit) and was obligated to pay an annual minimum rental of $2,500 plus 22 cents per cubic yard royalty on all sand removed.

From 1956 to 1969, 856,689 cubic yards of sand have been removed and landowners have received $166,538.99 in royalties. In the seven years between January 1963 and December 1969 Acadian removed 657,876 cubic yards of sand for an annual average of 93,982 cubic yards. A total of $145,766.59 was paid to landowners during this period. The average annual yield from the property for the seven years prior to this taking was $20,824.

It was established that coarse sand which is found on this tract was unique and had a substantially higher value than fine sand. Fine sand suitable only for fill purposes is found to a depth of 35 from the surface and coarse sand suitable for concrete, asphalt, and mason mix is encountered at 35 and extends to a substantial depth below that. The overburden ranges from 0 to 10 feet and has been removed from 47% (16.1 acres) of the 34.1 acre sand deposit. This leaves 18 acres of sand deposit with overburden and fine sand in place.

The fine sand found to a depth of 35 (25 of sand plus 10 of overburden) has been removed on the 16.1 acres and the valuable coarse sand has been exposed. In the past 7 years, the ratio of coarse sand to fine sand has substantially increased in favor of coarse sand. By 1969, virtually all sand being removed from the 16.1 acre pit was coarse sand.

The taking was made subject to the reservation (LSA-R.S. 9:5806) in perpetuity in favor of defendants reserving all oil, gas and other minerals and royalties therefrom located under the expropriated property. The taking was also subject to existing oil, gas or mineral reservations or existing oil, gas or mineral leases.

Landowners contend and we agree that the taking of surface rights effectively took their sand deposit reserved to them under LSA-R.S. 9:5806. Defendants owners lessors claimed fee interest compensation for 17 of the acres taken, their interest as lessors-owners in the 80 acres under lease (which was also taken), and severance damages to the remaining acreage which they own in fee. Defendant lessee claimed recognition of and compensation for its leasehold interest in the 80 acres subject to its lease.

Plaintiffs denied lessee's interest. As against owners lessors, plaintiffs maintain that the entire 219.8 acres had only water access and should be valued accordingly.

In appraising the property the trial court properly ruled that access by road was available to landowners and its lessee.

Plaintiffs argue that by virtue of a December 30, 1941 cash sale, landowners transferred certain land to the Lafayette Parish Police Jury thereby causing the remaining tract to become an enclaved estate. Plaintiffs maintain that by virtue of this voluntary act, landowners should be deprived of the benefits of LSA-C.C. Art. 699 and 700 and be denied the status of landowners entitled to demand access. See Estopinal v. Storck's Estate, 44 So.2d 704 (La.App.Orl.1950) and Arcuri v. Cali, 244 So.2d 309 (La.App. 4 Cir. 1971), where plaintiff landowner sold himself into an enclaved estate. Plaintiffs also argue that even though defendants have no land access, they could not demand such access for an additional reason--they have water access along Bayou Tortue.

The trial court properly held that Bayou Tortue affords no useful access and therefore, landowners and their lessee are in need of access. We quote approvingly from La.Law Rev. 315 where it is noted that:

'Today, even a property with access to a watercourse could well be considered as 'enclosed' with need for access to a public road.'

This statement embodies the idea that the provisions of LSA-C.C. Art. 699 as amended in 1916 provided by implication that access to Either a public road, railroad, tramroad or a watercourse was sufficient to deny landowner the right to passage on the estate of another was outdated. This may have been the reason for the 1970 amendment to LSA-C.C. Art. 699 which, among other things, deleted reference to water access or watercourse. The purpose of the 1916 amendment was '. . . to allow construction of the proper facility needed in a particular case according to the circumstances and the exigencies of the case.' Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970). The implication of these amendments is not only that the needs of the particular estate must be taken into account in determining whether the 'access' available to it is indeed access sufficient to prevent the application of Art. 699, but also, that water access is insufficient per se to prevent application of Art. 699.

In the present case, the mining of sand requires that dump trucks have access to defendant's land and therefore, the accessibility of Bayou Tortue affords defendant no proper access '. . . according to the circumstances and exigencies of the case.'

Secondly, according to the testimony of both plaintiff and defendant witnesses, Acadian was being permitted access to the Airport road at the time of expropriation. This access had originally been granted pursuant to a lease between Acadian and the Airport Authority. The lease called for payment of $150 per year for use of the road and it expired on August 18, 1969--5 months before the taking. The record shows that this use continued for some two months after the taking. However, this access existed at the whim of the Airport Authority and without further showing we find that the taken property had no land access at the time of expropriation.

The Estopinal case only stands for the proposition that a landowner who enclaves himself must proceed under LSA-C.C. Art. 699 and not 701. Defendants still had a right to acquire a right-of-way at the time of the taking.

There is some difficulty with the application of LSA-C.C. Art. 699 to an owner who has enclaved himself. English Realty Company v. Meyer, 228 La. 423, 82 So.2d 698 (1955) held that where a landowner who originally had access, saw fit to voluntarily sell parcels of his land so as to enclave himself, he could not proceed under Art. 699 or 701 to regain access. This case would seem to preclude defendants action under Art. 699 were it not for the holding that '. . . the English Realty case cannot extend beyond the holding applicable to its particular facts.' Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 at 667. The facts of the case were that plaintiff had acquired the original tract Subsequent to the expropriation and that he had plenty of access to available roads before selling most of the property to private purchasers. This is not the case before us.

This record shows that the 1941 sale to the Police Jury was made so that the present airport could be constructed on land so transferred. In the absence of amicable settlement, the Police Jury could have proceeded under its authority to expropriate (LSA-R.S. 19:2) and taken the land for such purpose. Rockholt v. Keaty, supra, held that if an estate loses its access via expropriation it becomes an 'enclaved' estate within the meaning of LSA-C.C. Art. 699 to obtain access. This rule is applicable in this case. These landowners did not require the public authority to resort to expropriation, but have not thereby been deprived of their right to acquire access under 699. Indeed the expropriating authority is required to attempt to purchase via...