Louisiana Ry. & Nav. Co. v. Brickyard

• Citation: 136 La. 833,67 So. 922
• Decision Date: 08 February 1915
• Docket Number: 19963
• Parties: LOUISIANA RY. & NAV. CO. v. BATON ROUGE BRICKYARD
• Court: Supreme Court of Louisiana

67 So. 922

136 La. 833

LOUISIANA RY. & NAV. CO. v. BATON ROUGE BRICKYARD

No. 19963

Supreme Court of Louisiana

February 8, 1915

Rehearing Denied March 22, 1915

SYLLABUS

(Syllabus by the Court.)

In expropriating property in a portion of a city which is not built up, and through which streets have not been opened or dedicated, the valuation will be based upon the value of the property at the time of taking, and not upon a purely speculative valuation, based upon the prospective value of town lots for residential purposes. If the property expropriated was in a residential section, or in close proximity to one, a different rule would be applied, although the property itself was not actually improved.

Wise Randolph, Rendall & Freyer, of Shreveport, and Laycock & Beale, of Baton Rouge, for appellant.

Taylor & Porter, of Baton Rouge, for appellee.

On Motion to Dismiss.

OPINION

SOMMERVILLE, J.

Plaintiff appeals from a judgment in its favor, and complains of the appraisal fixed by the jury on certain land sought to be expropriated by it in this proceeding.

Defendant moves to dismiss the appeal, as it was not made returnable to, and was not filed in, this court within 15 days, as is directed shall be done in section 1490, R. S.

The trial judge erroneously made the appeal returnable under Act 106 of 1908, p. 163, which is the general statute with reference to appeals to the Supreme Court. That act does not repeal special statutes, or statutes fixing return days with reference to special matters. Kerlin v. Bryceland, 134 La. 463, 64 So. 289. But appellant does not appear to have been responsible for the error, and the appeal will not therefore be dismissed.

In the case of Ross v. Naff, 130 La. 590, 58 So. 348, this court say:

'The facts that the appellant made his application, and that the court made the order for the appeal, under a misapprehension of the law governing the matter, cannot operate to deprive the appellant of a right conferred on him by the Constitution and regulated by other statutes than that contemplated by him and the court.' Chaffe v. Heyner, 31 La.Ann. 594; Elder v. City of New Orleans, 31 La.Ann. 500; State v. Dellwood, 33 La.Ann. 1229; State v. Balize, 38 La.Ann. 542; State v. Phelps, 132 La. 399, 61 So. 415.

Motion to dismiss appeal is denied.

This proceeding, brought by the Louisiana Railway & Navigation Company against the Baton Rouge Brickyard, is for the purpose of acquiring a strip of ground twenty-five feet wide through the property of defendant, to be used by it as a part of its branch or belt line of railroad through and around the city of Baton Rouge. The property sought to be expropriated runs across the northeastern portion of defendant's property situated in the city of Baton Rouge, and comprises 31/100 of an acre in superficial area.

Defendant acquiesces in the demand for expropriation, but claims from the plaintiff, for the value of the property taken and for damages, $ 13,300. Defendant alleges that the chief value of the property sought to be expropriated is for residence purposes; that the twenty-five foot strip of land herein sought to be taken from the defendant cuts or crosses the equivalent of eight city lots; that in the construction of the proposed branch line of railroad plaintiff proposes to and will make a 4-foot cut across defendant's said lots; that said lots are well and truly worth the sum and price of $ 1,200 each, or $ 9,600, for which damage petitioner is responsible; that in order to be reasonably safe from fire and to secure a reasonable rate on fire insurance, defendant's brick sheds will have to be cut off to a point twenty-five feet from the south line of plaintiff's proposed branch road, and they will have to be covered with fireproof roofing, all at a cost of $ 2,000; that the building of said proposed branch road, and the making of said 4-foot cut, will inclose, cut off, and shut in a triangular piece of land belonging to defendant, and comprising three full city lots, two of which are worth $ 1,200 each, and one of which is worth $ 1,000; and that it will be damaged to the extent of $ 1,700.

There was judgment in favor of plaintiff condemning the property, and condemning plaintiff to pay $ 6,000 for the property expropriated.

Plaintiff company obtained from the city council of Baton Rouge a franchise for a belt line in that city; and, in furtherance of the exercise of that franchise, it seeks to expropriate 31/100 of an acre of land belonging to defendant, upon which to lay its tracks. It is proposed to extend these tracks through defendant's property, which would virtually destroy three squares, if the plot of ground was divided into squares. The tracks would cut off small triangular corners of four other supposed squares, which damage would be more than compensated by the triangular pieces remaining of the three squares first mentioned. The triangular piece of land which defendant says equals three city lots, and for which it claims $ 1,700, is small, and it is located on a drainage canal. It hardly contains one lot; and it is of very little value if segregated from the other portions of ground belonging to defendant.

The court is uniformly guided by the finding of the jury of freeholders of the vicinage where the property is located which is to be expropriated in fixing the value of expropriated property and the damages resulting to the property holder from the improvement. But, when the verdict is manifestly excessive, as it is in this case, it becomes necessary to amend it. The jury has here condemned plaintiff to pay about $ 6,000 for less than one-third of an acre located in the southwestern limits of the city of Baton Rouge, according to a city survey made in 1910. This is at the rate of $ 18,000 an acre, which is an impossible price.

The evidence shows that the property is high, and if streets were cut through it, it would be suitable for small and unpretentious dwellings, but that it is now used for a mercantile purpose, a brickyard, and that it lies between a drainage canal and the tracks of the Yazoo & Mississippi Valley Railroad. Streets of the city have not been extended through the property, or even dedicated; and it may be long before the property so shut in may be used for any other purpose than the one it is now used for.

In the case of Y. & M. V. R. R. Co. v. Longview Sugar Co., 135 La. 542, 65 So. 638, we quote from 2 Dillon on Municipal Corporations, p. 617, as follows:

'In an expropriation suit for railroad purposes, the market value of property taken, viewed both with reference to its use at the time and with reference to the usage to which it is plainly adaptable, will be considered in fixing the value of the land.'

And in the case of Y. & M. V. R. R. Co. v. Teissier, 134 La. 958, 64 So. 866, we quote from United States v. Chandler-Dunbar, 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063, as follows:

'A 'strategic value' might be realized by a price fixed by the necessities of one person buying from another, free to sell or refuse as the price suited. But in a condemnation proceeding the value of the property to the government for its particular use is not a criterion. The owner must be compensated for what has been taken from him, but this is done when he is...