State Dept. of Highways v. Dyess

• Decision Date: 17 October 1977
• Docket Number: No. 6152,6152
• Citation: 350 So.2d 1304
• Parties: STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Guy O. DYESS, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1304

350 So.2d 1304

STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS Plaintiff-Appellee, v. Guy O. DYESS, Defendant-Appellant.

No. 6152.

Court of Appeal of Louisiana, Third Circuit.

Oct. 17, 1977.

George L. Carmouche, Lake Charles, for defendant-appellant.

D. Ross Banister, Chester E. Martin, Jesse S. Moore, Jr., Robert J. Jones, R. Gray Sexton, Johnie E. Branch, Jr. by Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellee.

Before DOMENGEAUX, WATSON, and FORET, JJ.

DOMENGEAUX, Judge.

The Louisiana Department of Highways expropriated the property of defendant, Guy O. Dyess, for the purpose of building an interstate bypass in Lake Charles, Louisiana. This was accomplished in 1969 through the procedures provided in La.R.S. 48:441 et seq., the "quick taking" statute. The Department, in accordance with that law, deposited $26,169.00 in the registry of the court as just compensation.

Defendant answered the suit, and reconvened, praying for $75,000.00 for the land and improvements, and $50,000.00 for severance damages. His reconventional demand was dismissed without prejudice on September 2, 1976, for failure to prosecute his claim for over five years. Defendant then filed another answer on November 8, 1976 making the same demands as in his first answer.¹

Trial was held in December of 1976, and the trial judge rejected defendant's reconventional demands. Defendant has taken this appeal. We affirm.

The subject property consists of two lots, one of which fronts on West Prien Lake Road and the other on Ernest Street. The lots connect in the rear to form an L-shaped configuration. Lot 12, the West Prien Lake Road property, measured 86.4 feet in front and 315.8 feet in depth. Lot 4, the Ernest Street property, measured 79 feet in front and in depth 172.7 feet. The square footage of both lots combined was 40,926.4 feet. The improvements on the property consisted of two brick veneer dwellings, a frame house and a storage shed on Lot 12, and a frame dwelling and carport on Lot 4. The property was zoned commercial but was being used for residential purposes at the time of the taking.

The extreme southern part of Mr. Dyess' property, containing 19,885 square feet, was taken, leaving the northern portion of his lot on West Prien Lake Road, with a depth of 236.8 feet and 250.3 feet on its east and west sides, respectively. Included in this taking was the house and carport on Ernest Street and the frame house, storage shed and a portion of the small brick veneer dwelling on Prien Lake Road.

The Department's two expert appraisers were Normand Terry and Stanley Tiger. Both of them appraised the property at the time of the taking, and said that the highest and best use of the property was residential in transition to commercial property. Terry, using the comparable sales approach, valued the property at $10,865.00 for the land alone, and for the improvements, $12,500.00. Tiger estimated the value of the property to be $12,130.00 for the land alone, and $14,019.00 for the improvements.

Defendant Dyess did not have the property appraised until 1976. At that time he employed as experts, Kermit Williams and Curtis Book who both appraised the property as of 1969, the time of the taking. However, neither of these men had an opportunity to view the property as it was in 1969. Consequently, the value of the improvements as was estimated by the Department's appraisers was accepted by Williams and Book. The estimate of the value of the land itself made by the defendant's appraisers did not agree with either of plaintiff's estimates. Book and Williams found the highest and best use of the property to be commercial, and valued it as such. Williams' estimate of the value of the land alone was $1.23 per square foot and Book's estimate was $1.30 per square foot, for total values of $24,458.50 and $25,980.00 respectively. As can be seen by comparison, these values greatly exceed those placed on the property by plaintiff's appraisers. The defendant's appraisers also used comparable sales approach to make their valuations.

One of the main reasons given at trial for the higher, commercial valuation reached by Book and Williams was the development of Prien Lake Mall on West Prien Lake Road, across from the subject property. Williams testified that the proposed building of the mall was a certainty at the time of the taking. Terry, on the other hand, stated that the mall proposal was only a rumor at that time and did not become a reality until some time subsequent to the expropriation.

The trial judge found the three issues for his determination to be: (1) the value of the land taken; (2) the value of the improvements taken; and (3) the amount of severance damages incurred, if any.

The correct measure of compensation in this type of expropriation case is the market value of the thing taken, which is the price which would be agreed upon by a willing and informed buyer and seller in the condition in which the...