State ex rel. Gebelin v. Department of Highways
| Decision Date | 30 March 1942 |
| Docket Number | 36377. |
| Citation | 8 So.2d 71,200 La. 409 |
| Court | Louisiana Supreme Court |
| Parties | STATE ex rel. GEBELIN et al. v. DEPARTMENT OF HIGHWAYS. |
Rehearing Denied April 27, 1942.
Taylor, Porter, Brooks & Fuller and Charles W Phillips, all of Baton Rouge, for appellees.
Arthur B. Hammond and Tom M. Hayes, Jr., both of Baton Rouge (Knowles M. Tucker, of Baton Rouge, on the brief), for appellant.
O'NIELL Chief Justice.
The plaintiffs, or relators, are suing to compel the Department of Highways to allow them to have access to the Jefferson Highway, directly from their lands, between which the highway extends. The two tracts of land are near Baton Rouge contiguous to the Jefferson Highway, where it approaches the Mississippi River Bridge. One tract is on the north side and the other on the south side of the highway. The two tracts extend westward from the Louisiana & Arkansas Railway right of way, and are therefore opposite each other. The tract on the north side of the highway has an area of about 7 1/2 acres, extends 1,822 feet along the highway, and has therefore an average width of about 180 feet. It is bounded on the north by Montesano Avenue and on the west by the Yazoo & Mississippi Valley Railway right of way. The tract on the south side of the highway has a triangular shape and an area of about 11.8 acres. It extends about 1,077 feet along the highway, and is bounded on the southwestern side by land belonging to the State and used for an approach to the Mississippi River Bridge.
On June 24 1937, the Department of Highways, which was then called the Louisiana Highway Commission, obtained a judgment against the present plaintiffs expropriating, for the construction of that part of the Jefferson Highway, the land lying between the two tracts which we have just described. During the trial of the expropriation suit the parties entered into a compromise agreement that the land should be adjudicated to the commission for the purpose of the highway at the price of $30,000, and the verdict and judgment were rendered accordingly.
The plaintiffs in this suit are referred to also as relators because they are asking to have the Department of Highways compelled by mandamus to permit them to cut the curb and construct the entrances to the highway. In that sense the suit is a proceeding by mandamus. But the plaintiffs, or relators, prayed also to have the Department of Highways enjoined from interfering with them in the cutting of the curb or constructing of the entrances to the highway. The plaintiffs prayed, in the alternative, and only in the event that the court should hold that they were not entitled to either a mandamus or an injunction, for $24,500 damages for reduction in the value of their property by reason of their being deprived of direct access to the Jefferson Highway.
The plaintiffs surveyed their lands with the idea of dividing them into lots and selling them either for residential or for industrial purposes. There was no actual subdivision of the land except on the plat of the survey. The plaintiffs propose to divide the land on the north side of the highway into 29 lots and to divide the land on the south side of the highway into 16 lots. They demanded in their petition, therefore, the right to have 29 places of entrance to the highway from the land on the north side and 16 places of entrance from the land on the south side of the highway. But, during the trial of the case, the attorneys for the plaintiffs made a formal admission that the plaintiffs would be satisfied with 6 places of entrance to the highway from their land on the north side and 4 places of entrance from the land on the south side of the highway. This admission was made under the reservation that the plaintiffs believed that they were entitled to all of the places of entrance demanded in their petition. The attorneys for the Department of Highways made the admission that they were then and had been at all times ready and willing to grant the plaintiffs one entrance to the highway from their land on the north side, and one entrance from the land on the south side of the highway. That admission was made under a reservation that the commission believed that, on account of the extensive traffic and consequent danger to the public, the highway department was not obliged to allow the plaintiffs any place of entrance from their lands directly upon the highway. After hearing the evidence the judge of the district court gave judgment for the plaintiffs, commanding the Department of Highways to permit the plaintiffs to cut the curbs and make the necessary connections for 6 places of entrance upon the highway from the land on the north side and for 4 places of entrance from the land on the south side of the highway. In the judgment the judge also enjoined the Department of Highways and its officers and engineers from interfering with the plaintiffs in their cutting of the curbs to effect the entrances from their lands to the highway. The judge stipulated in his decree that the cutting of the curbs and making the entrances from the plaintiffs' lands to the highway should be done in a manner satisfactory to the Department of Highways and its officers and engineers, and without injury to the highway. In his reasons for the judgment the judge declared that the cutting of the curb and making the connections should be done under the direction of the Department of Highways. It is not contended that any structural injury may result from cutting the curb or making the entrances to the highway. The judge stipulated in his decree that the distances between the places of entrance to the highway should be approximately equal. The Department of Highways is appealing from the decision.
The position of the Department of Highways is stated, substantially, thus (1) That its refusal to permit the plaintiffs to make access connections with the highway was an authorized regulation of the use of the highway, and hence that the plaintiffs are not entitled to compensation for any injury that might result therefrom; (2) that the refusal to permit the plaintiffs to make access connections with the highway is not an invasion of a property right; (3) that the plaintiffs were compensated by the judgment for $30,000 rendered in the expropriation proceedings, for any and all damages to their property by reason of a proper use and regulation of the public highway constructed in consequence of the expropriation proceedings; and (4), and only in the event that these defenses should not prevail, then that the benefits which resulted to the plaintiffs' property by reason of the construction of the highway and the approach to the Mississippi River bridge more than offset any special injuries that the plaintiffs may have suffered. The Department of Highways denies that it is its ministerial duty to grant permission to the plaintiffs to have access connections from their property to the highway, and contends, on the contrary, that the board is invested with a sound...
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