State Through Dept. of Highways v. Reimers
| Decision Date | 24 January 1966 |
| Docket Number | No. 6508,6508 |
| Citation | 182 So.2d 718 |
| Parties | STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellee in rule, v. Fay W. REIMERS et al., James A. Stire, Clerk of Court, Plaintiff-Appellant in rule. |
| Court | Court of Appeal of Louisiana — District of US |
Mentz & Ford, Hammond, for mover-appellant .
Philip K. Jones, Burton, Roberts & Ward, Baton Rouge, for defendant in rule-appellee.
Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ.
The State of Louisiana, through the Department of Highways, instituted this suit for the expropriation of land belonging to 46 co-owners scattered throughout the United States and in connection therewith deposited in the registry of the court the sum of $25,520.00. The co-owners refused to accept this amount as just compensation and entered into negotiations with the plaintiff which resulted in the deposit by the plaintiff of an additional sum of $1,230.00 in the registry of the court and also a judgment fixing the true and just compensation of the property expropriated at $26,750.00, instead of $25,520.00 originally deposited as just compensation by the State. This judgment further provided:
'It is further ordered, adjudged and decreed that the plaintiff, State of Louisiana, through the Department of Highways, pay all costs of these proceedings.'
The itemized cost bill of the Clerk of Court reveals that the court costs amounted to $2,283.90. Demand was made by the Clerk of Court on the plaintiffs for the payment of these costs which was refused upon the ground that the State only owed court costs incurred by the defendants-landowners, and that they had paid this sum in the amount of $159.75. There is no dispute as to the total amount of the costs, only that the State is liable solely in expropriation proceedings for the court costs incurred by the defendants-landowners and not for any other costs even though statutorily payable ordinarily by the losing party in suits other than expropriations by the State or other suits in which the State is a party.
Consequently, The Honorable James A. Stire, Clerk of the Court of Tangipahoa Parish, filed a rule nisi in which he is seeking a judgment of the court ordering the State, through the Department of Highways, after due hearing, to pay the total amount of the accrued costs.
The trial court held that the plaintiff was relieved of the payment of the balance of the cost bill amounting to $2,124.15 and in paying the $159.75 had completely complied with the law as these were all the costs that had been legally incurred by the defendants-landowners in this case. The court relied upon R.S. 13:4521 and 19:12.
R.S. 13:4521 is the general statute of this State which exempts the State and other public bodies with which we are not concerned from the payment of court costs and it provides:
R.S. 19:12, relating to payment of costs in expropriation proceedings, reads as follows:
'If a tender is made of the true value of the property to the owner thereof, before proceeding to a forced expropriation, the costs of the expropriation proceedings shall be paid by the owner.'
The lower court also relied upon the holding in State Through Dept . of Highways v. Rownd, La.App., 119 So.2d 285, and Louisiana Highway Commission v. Davis, 204 La. 624, 16 So.2d 129. We will discuss these cases hereinafter in this opinion.
We are of the opinion that under the settled jurisprudence of this State, R.S. 13:4521, supra, has no application whatsoever to an expropriation proceeding. Also, that where the State does not make a tender of the true value of the property to the owner before proceeding to a forced expropriation, which it is agreed are the facts of the present case, the State shall pay all costs which are fixed by the statute and ordinarily taxable to the losing litigant, which in the present case would include the full amount of court costs incurred in the sum of $2,283.90.
One of the earliest cases involving the question now before this court is Westwego Canal & Terminal Co. v. Louisiana Highway Commission, 200 La. 990, 9 So.2d 389. In the beginning of this suit, Justice Rogers stated:
'In a suit brought by the Westwego Canal & Terminal Company, Inc., against the Louisiana Highway Commission to recover $6,700 for the value of certain land appropriated by the defendant, the plaintiff recovered judgment in the district court for $200, with interest from judicial demand And all costs.' (Emphasis added.)
Further in discussing the question of costs beginning at page 391 the Supreme Court stated:
'It is clear that the payment of costs by the unsuccessful litigant is a natural and proper incident of such proceedings. Reconstruction Finance Corp., v. J. G. Menihan Corp. (312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595) supra; Code of Practice, arts. 549 and 551; Civ.Code, art. 2638.
'In Booth v. Louisiana Highway Commission, 171 La. 1096, 133 So. 169, the Highway Commission was held in damages for the dirt taken from nearby property and used in the building of a highway. As a party cast, the costs were due by the Highway Commission to the successful plaintiff. Code of Practice, arts. 549, 551. The judgment of the district court was rendered in June, 1930, and was affirmed by this Court in February, 1931. In fact, both prior and subsequent to 1936, it seems to have been the invariable rule that in expropriation proceedings the costs should be paid by the Highway Commission. Thus in the following cases, decided in the year 1931, the lower court awarded judgment for costs against the Commission and these judgments were affirmed by this Court on appeal, viz., Louisiana Highway Commission v. Dunn, 173 La. 998, 139 So. 324; Louisiana Highway Commission v. De Bouchel, 174 La. 968, 142 So. 142; Louisiana Highway Commission v. Hoell, 174 La. 302, 140 So. 485; and Louisiana Highway Commission v. Ferguson, 176 La. 642, 146 So. 319.
'Another case in which the Highway Commission was condemned to pay costs is the case of Louisiana Highway Commission v. Guidry, reported in 176 La. 389, 146 So. 1, decided in 1933.
'In an expropriation suit brought by the Louisiana Highway Commission against Hays and others, the award of the jury failed to provide that the costs should be paid by the Highway Commission. Counsel for the Commission conceded at that time that the plaintiff should pay the costs, and the judgment of the court was rendered accordingly. This judgment was rendered on November 9, 1936, and affirmed on appeal in May, 1941, Louisiana Highway Commission v. Hays, 198 La. 117, 3 So.2d 438.
'In an expropriation suit brought by the Louisiana Highway Commission against Frank Purpera the judgment of the district court awarded costs against the Commission. The judgment was affirmed by this Court in April, 1937, and is reported in Louisiana Highway Commission v. Purpera, 187 La. 219, 174 So. 268. In a proceeding instituted by the Louisiana Highway Commission against Mrs. Elizabeth Grey to expropriate a strip of land as a right of way, this Court increased the amount awarded by the district court to Mrs . Grey and assessed the costs of the suit against the Commission. The decree was handed down on April 28, 1941, and the rehearing was denied on May 26, 1941, and is reported in Louisiana Highway Commission v. Grey, 197 La. 942, 2 So.2d 654.
'In various expropriation proceedings reaching the Courts of Appeal, the Highway Commission invariably has been condemned to pay the costs. For example, see Louisiana Highway Commission v. Boudreaux, 19 La.App. 98, 139 So. 521, decided in 1932; Louisiana Highway Commission v. Hebert, La.App., 148 So. 64, decided in 1933; Louisiana Highway Commission v. Watkins, La.App., 172 So. 185, decided in 1937, and Louisiana Highway Commission v. Treadway, La.App., 173 So. 209, decided in 1937; Id., La.App., 175 So. 94, also decided in 1937.
'With the exception of one case to which we shall hereafter refer, the liability of the Highway Commission for costs in expropriation proceedings has never been questioned. In this proceeding for the first time Act 135 of 1936 is cited and relied on by the Highway Commission as relieving it from the payment of costs in expropriation suits.
'Section 1 of Act 135 of 1936 provides as follows:
'Counsel for the Westwego Canal & Terminal Company argue that Act 135 of 1936 has no application to this case because it specifically refers to suits 'hereafter instituted,' and the suit of the Canal & Terminal Company was filed four years prior to its enactment. The suit of the Westwego Canal & Terminal Company against the Louisiana Highway Commission was filed on December 23, 1932, but the judgment was not rendered in the district court until July 23, 1937. The judgment was affirmed by...
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- State Through Dept. of Highways v. Reimers
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State Dept. of Highways v. Reimers
...184 So.2d 736 ... 249 La. 69 ... STATE of Louisiana, through The DEPARTMENT OF HIGHWAYS ... Fay W. REIMERS et al ... No. 48118 ... Supreme Court of Louisiana ... April 15, 1966 ... In re: State of Louisiana, through the Department of Highways applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of ... ...