State Through Dept. of Highways v. Smith
| Decision Date | 19 September 1972 |
| Docket Number | No. 3929,3929 |
| Parties | STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. John L. SMITH et ux., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
William E. Skye, Edward E. Roberts, Jr., Alexandria, for defendants-appellees.
Before FRUGE , HOOD and DOMENGEAUX, JJ.
The plaintiff Highway Department expropriated 1.981 acres of defendants' 17.142 acre tract, taking all of their highway frontage along Louisiana Highway 1 to a depth of approximately 116.5 feet. The tract taken contained certain improvements, including a nightclub and a residence, stipulated by counsel to be worth $40,811 .00.
Pursuant to court order, the plaintiff deposited the sum of $56,346.00 into the registry of court upon filing its suit. That sum was withdrawn by the defendants, who failed an answer asserting that they were entitled to the sum of $111,481.00, representing the value of the property taken, puls $2,943.00 in severance damages.
The case went to trial in that posture and ended in a judgment in favor of defendants in the sum of $47,478.00, representing a market value of the land and improvements of $103,824.00, less the amount already withdrawn by them from the registry of court, $56,346.00. The judgment included the sum of $49,290.00 for the improvements taken, which the parties had stipulated to be worth $40,811.00. This was an inadvertent error on the part of the trial judge, who used the higher figure, representing all of the improvements on defendants' land, whereas he should have used the lower figure, representing only those improvements actually taken. Accordingly, we shall reduce that portion of the judgment representing the improvements to the stipulated sum of $40,811.00. We turn now to an examination of the value of the land, as the trial court's conclusion with regard thereto was appealed by both plaintiff and defendants.
Each side equalified two expert witnesses to testified on its behalf regarding the value of the land. The state, in addition placed in evidence the written reports of its two experts, Darrel V. Willet and T. J. Toups, although only Mr. Willet actually testified on the question of value. The defendants offered the testimony of Habeeb Monsur, Jr., and it was stipulated that had they called their second expert, W. C. Webb, his testimony would not have differed from that of Monsur. All of the appraisers agreed that the highest and best use of defendants' land to a depth of 200 feet, which included the portion taken, was commercial. Beyond that it was agreed that the highest and best use was agricultural and transitional residential.
At the request of plaintiff, its appraisers employed three distinct methods of arriving at a valuation. The first of these was the average land basis, which involves a determination of the average per acre value of all of defendants' land and the multiplication of the acreage taken by the determined value per acre . The second was the contributory value basis which is arrived at by deducting the value of the and remaining after the expropriation from the value of the entire tract before the expropriation and then adding an amount commensurate with the benefits that the remaining land will receive as a result of the new construction. The final method, and the one used by the trial judge in reaching his decision, was what is commonly known as the front land-rear land approach. This method recognizes that land fronting on a public highway is more valuable on the market than land not having such frontage and assesses the value accordingly. The basic legal question before us is whether the trial court erred in selecting this last approach, from amongst those employed by plaintiff's experts, for averaging with the value offered by defendants' experts.
The property expropriated in this case was taken under the provisions of the 'Quick Taking Statute' (LSA-R.S. 48:441--460) which, in relevant part, provides that the measure of compensation (market value) is to be determined as in general expropriation suits . LSA-R.S. 48:453. We find the general basis for determining the value of expropriated property expressed in LSA-R.S. 19:9 as follows:
In estimating the value of the property to be expropriated, the basis of assessment shall be the value which the property possessed before the contemplated improvement was proposed, without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.
To the same effect, see La.Civil Code Art. 2633.
The rules set out in that statute have long been recognized by, and indeed formed, the jurisprudence of this court. In State, Department of Highways v. Landry, La.App., 171 So.2d 779; writ refused, 247 La. 676, 173 So.2d 541, we stated that:
. . . For, in general, the market value of the particular portion of a tract expropriated is determined by the actual market value of the portion taken, not by its average per-acre value as a pro rata portion of the parent tract.
We regard the proposition as settled by Louisiana jurisprudence and statute, therefore, that landowners are entitled to receive the full and actual market value of highway frontage expropriated for further highway purposes, without deduction therefrom because a new highway frontage will be provided, by reason of the taking, for formerly-rear portions of the parent tract. To allow such a deduction from the market value of the property taken, would be to allow deduction from this value for benefits which will be derived because of the contemplated improvement for which the expropriation was made, in direct contravention of LAS-R.S. 19:9, the legislative provision forbidding landowners from being deprived for such reason of the true market value of their property which is expropriated for public purposes.
Writs were denied by our Supreme Court in the Landry case with the statement that, 'On the facts found by the Court of Appeal there appears no error of law in its judgment.' Landry, supra.
The position espoused in Landry was reiterated in State, Department of Highways v. LeDoux, La.App., 184 So.2d 604, wherein we said:
We consider the Louisiana jurisprudence to be settled, therefore, that generally the market value of the particular part of a tract expropriated is determined by the actual market value of the portion taken, and not by its average peracre or square-foot value as a pro rata portion of the parent tract. Also, a landowner is entitled to receive the full and actual market value of highway frontage expropriated for further highway purposes, without deduction therefrom because of the fact that by reason of the taking a new highway frontage will be provided for formerly rear portions of the parent tract.
In their excellent work on the subject, Eminent Domain in Louisiana, Professors Melvin G. Dakin and Michael R. Klein recognize the jurisprudence, of which the above cited cases are part, on page 173, as follows:
. . . When there is a partial taking and the land expropriated has a different highest and best use than the remainder of the landowner's tract, it appears that the courts will value the land taken separately from the remainder on the basis of its own highest and best use and will not consider the value of the land taken in relation to the whole tract. 71
We see, then, that the front land-rear land concept of awarding compensation is so well entrenched in both the statutory and jurisprudential law of Louisiana that in cases where it becomes the appropriate tool it may be used. This being a proper case for its application, the trial judge did not err in relying upon those estimates of value based on its principles.
Plaintiff cites two cases wherein this court recently elected not to employ the front land-rear land concept. These are State, Department of Highways v. Medica, La.App., 257 So.2d 450; and State, Department of Highways v. Monsur, La.App., 258 So.2d 162; Writ refused, 261 La. 463, 259 So.2d 914. Writs were denied in the latter case by our Supreme Court on the basis that, '. . . the result is correct.' Three justices dissented from the denial of writs.
At no time has this court, or to our knowledge any other court of this state, said that the front land-rear land approach must be used Exclusively. All that the statutes and jurisprudence require, as above pointed out, is that the landowner be paid just compensation for the land Actually taken, and without considering any benefits that he might derive from the new construction. This certainly does not rule out the use of methods other than the front land-rear land approach to the determination of just compensation in such other cases as make their use more desirable. On the other hand, neither does it rule out the use of that method in cases, such as the one before us, that readily lend themselves to its application.
In the case at bar the landowners were using the portion of their property fronting on Louisiana Highway 1 for commercial purposes, admittedly its highest and best use, in that they maintained a lounge or nightclub thereon. All of their property fronting on the said highway was taken by plaintiff. Neither of those conditions existed in either the Medica or the Monsur cases, supra, and for that and the other reasons advanced in the foregoing paragraphs, we do not now follow the dicta contained in Medica. Rather, we follow the well settled jurisprudence of this court, and reject plaintiff's contention that the trial court erred in assessing a higher value to that portion of defendants' land fronting on the highway, and thereby considering only the highest of the three estimates made by its appraisers.
Likewise we cannot accede to the contention urged by both parties, that the trial court erred in averaging the estimates of plaintiff's experts with those of defendants' experts to reach...
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