Parish of Jefferson v. Tassin
| Decision Date | 31 January 1992 |
| Docket Number | No. 91-CA-145,91-CA-145 |
| Citation | 594 So.2d 525 |
| Parties | PARISH OF JEFFERSON v. Joan Stephens, Wife of/and Henry G. TASSIN, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Anthony R. Messina, Parish Atty., Larry J. Radosta, Ferdinard M. Lob, Dominick M. Saia, Asst. Parish Attys., Gretna, for plaintiff-appellee.
Richard T. Regan, Regan, St. Pe & Milazzo, Metairie, for intervenor-appellant.
Before BOWES and DUFRESNE, JJ., and ELORA C. FINK, J., Pro Tem.
This is an expropriation action in which the intervenor, Leona T. Roy, appeals a judgment dismissing her claim for damages for inverse condemnation. Finding her claim has merit, we reverse and render judgment in her favor.
On April 5, 1990, the Parish of Jefferson filed suit against Joan Stephens, wife of/and Henry G. Tassin 1 to expropriate a parcel of land at the intersection of West Esplanade Avenue and North Causeway Boulevard in Metairie, Louisiana. The Parish expropriated the land in order to construct a left-turn lane from the eastbound lanes of West Esplanade onto North Causeway as part of planned roadway improvements along the Causeway Boulevard traffic corridor. The tract, which is 22.99 feet wide on its North Causeway boundary, lies adjacent and parallel to another strip, 33 feet wide and fronting on North Causeway, owned by Leona Roy. Both parcels had been jointly leased by the Tassins and Roy to a single lessee from approximately 1979 until road construction on North Causeway obstructed access from that roadway in 1989.
The Parish did not include the Roy property in the expropriation, however. As a result Roy filed an intervention in the Tassin proceeding, alleging the expropriation had diminished the market value of her parcel as a result of loss of the use of the expropriated Tassin parcel. She asserted that joint use of the properties was the historical highest and best use of both parcels, considering their narrow configuration.
Following a bench trial in July 1990, the district court rendered judgment awarding the Tassins $120,000 for their expropriated parcel, but dismissing Roy's intervention. Roy has appealed.
On appeal, the issues are whether Roy is entitled to damages for a taking and, if so, what amount will justly compensate her.
Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner[,] * * * [who] shall be compensated to the full extent of his loss.
The authority to expropriate is extended to parishes and municipalities by LSA-R.S. 33:4621.
A taking or damaging of property can occur from the official act of expropriating a whole or partial tract of land or from inverse condemnation, which is when property is taken or damaged without the proper exercise of eminent domain. Reymond v. State, Department of Highways, 231 So.2d 375 (La.1970).
In inverse condemnation, the damage may occur not only to property which is physically invaded, but also to a separate and independent tract of land. Gulf States Utilities Company v. Comeaux, 182 So.2d 187 (La.App. 3 Cir.1966), quoted with approval in State, Department of Highways v. Garrick, 256 So.2d 111 (La.1971). However, when the damage is claimed to a parcel separate from that which is actually taken, the public body's liability is limited to special damages which peculiarly affect that property and which are not sustained by the neighborhood generally. Garrick, supra; Comeaux, supra; see also, Ursin v. New Orleans Aviation Board, 506 So.2d 947 (La.App. 5 Cir.1987) rev'd on other grds., 515 So.2d 1087; Bowden v. State, Dept. of Transp. & Dev., 556 So.2d 1343 (La.App. 3 Cir.1990) writ denied, 563 So.2d 879; Harrington v. Southwestern Electric Power, 567 So.2d 731 (La.App. 2 Cir.1990).
The measure of damages in expropriation cases is the market value of the land taken plus severance damages to the remainder, if any. State, DOTD v. Crawford Business Trusts, 538 So.2d 1078 (La.App 3 Cir.1989), writ denied, 542 So.2d 1381 (La.1989). In calculating severance damages, the court must analyze the diminution in the market and rental value of the property immediately before and immediately after the taking. The same analysis is used to determine the damages in an inverse condemnation case. See Reymond, supra; Bowden, supra.
In this instance, the property was not the subject of an actual taking. Thus, the first question is whether the claimed damages are peculiar to this parcel and not to the neighborhood generally, so as to invoke the doctrine of inverse condemnation as it applies to separate and independent tracts of land.
The evidence herein shows that the Tassins and Roy used the two parcels conjointly for many years by a joint lease. That lease agreement was terminated in 1989, as mentioned before, when roadway construction blocked access to the properties. Due to the narrow width of each parcel, the expert appraiser who testified for the Tassins and for Roy asserted that the highest and best use of the two pieces of land was to use them jointly; the loss of one parcel through the taking significantly reduced the value of the other. Thus, the damage claimed herein would be peculiar to the particular parcel involved and not to the neighborhood generally, making that damage compensable as inverse condemnation.
In order to determine the damages due her, Roy has suggested that the doctrine of "unity of use" be applied. Under that doctrine, she claims, the value of her loss should be based on the value of the conjoint use of both tracts and not just on an appraisal of her property's value standing alone.
The doctrine of unity of use in Louisiana was discussed, and the requirements for its application set forth, in State, Department of Highways v. Cefalu, 288 So.2d 332 (La.1974). Cefalu involved two tracts belonging to a single owner that were separated by a tract owned by another. Cefalu's tract and the tract between them had been used together as a parking lot until the State expropriated one of Cefalu's tracts. Cefalu claimed additional damages because the expropriation of one tract prevented use of all the property as one parcel. The issue was whether the taking was a whole or a partial taking, because a partial taking would entitle the individual owner to severance damages. The Cefalu court held that, to reap the benefit of the unity of use doctrine, a landowner of expropriated property must prove "a unified use in fact, coupled with a legal right, as relates to access across intervening land, to effect that unified use." Id. at 337.
In the case before us, however, the claimant owns a tract separate from that expropriated; no severance damages are at issue. The unity-of-use doctrine and cases thereon are distinguishable; this is a straightforward case of inverse condemnation--that is, the taking of the adjacent property caused damage to the value of the intervenor's property that was peculiar to that tract. The fact that the value claimed by the intervenor turns on the property's conjoint use with another tract merely coincides with unity-of-use terminology. It is unnecessary for us to apply that doctrine, however, to find the appellant entitled to damages.
Roy's right here is based on the general rule that severance damages are measured by calculating the difference in the market value of the property before and after the taking; if that value can be shown to have significant particular dependence on the expropriated tract, then damages are warranted, using the joint dependency to value the properties. Nothing in the law prevents a recovery of damages under these facts if an actual loss peculiar to the intervenor can be proven.
The copy of the survey introduced at trial shows the two tracts at issue. (See Appendix.) In the resolution of the parish council authorizing the expropriation, the description of the area to be taken for the turn lane listed portions of Lots 9 and 11 through 20, together with all of Lot 10. Roy's property measures 39.01 feet along North Causeway, its width on its Severn Avenue side is 41.01 feet, and its length along West Esplanade is approximately 390.19 feet. (As shown on the plat, the north side of Roy's tract is bounded by Canal No. 2). Although the North Causeway access is blocked by a concrete and steel post railing that prevents access from the roadway, construction of the turning lane will give the intervenor access to West Esplanade Avenue that was not available prior to the construction. 2
Like the Tassin plot, Roy's parcel is extremely narrow. It...
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96-160 La.App. 5 Cir. 10/16/96, Lambert v. State Through Dept. of Transp. & Development
...with just compensation paid to the owner[,] * * * [who] shall be compensated to the full extent of his loss. In Parish of Jefferson v. Tassin, 594 So.2d 525 (La.App. 5 Cir.1992) we observed: A taking or damaging of property can occur from the official act of expropriating a whole or partial......
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