Texas Gas Transmission Corp. v. Fuselier
| Decision Date | 17 April 1961 |
| Docket Number | No. 221,221 |
| Citation | 133 So.2d 828 |
| Parties | TEXAS GAS TRANSMISSION CORPORATION v. Alex FUSELIER. |
| Court | Court of Appeal of Louisiana — District of US |
Shotwell & Brown, by Burt W. Sperry, Monroe, Fruge & Foret, Ville Platte, for plaintiff-appellant.
Fusilier, Pucheu & Soileau, by J. William Pucheu and L. O. Fusilier, Ville Platte, for defendant-appellee.
Before SAVOY, HOOD and CULPEPPER, JJ.
This is an expropriation suit by plaintiff against defendant for the purpose of obtaining a right-of-way or servitude over the land of defendant for the construction of a thirty-inch pipeline across a portion of defendant's property. The only issue on appeal is the value of the property expropriated.
The district court allowed defendant the sum of $4,234 for the property expropriated by plaintiff. The award was itemized as follows:
(1) Relevel .......................... $ 290.00
(2) Loss of rice ....................... 819.00
(3) Loss of pasture .................... 525.00
(4) Loss of relocating relief pump ..... 200.00
(5) Loss of shade trees ................ 100.00
(6) Loss of crayfish sales ............. 500.00
(7) Loss of value of remaining land ... 1500.00
(8) Value of rights expropriated ....... 300.00
The evidence disclosed that the right-of-way taken is fifty feet wide and is approximately 2.45 acres. The proposed pipeline will run 2,136 feet north and south across and approximately in the middle of defendant's tract of land
Plaintiff appealed from the ruling of the trial judge. Defendant answered the appeal, asking for an increase in the award.
The law on the subject of compensation and damages is stated in the case of Louisiana Highway Commission v. Israel, 205 La. 669, 17 So.2d 914, 916 in the following language, namely:
In deciding whether the award made to defendant was excessive, we will determine, first, the value of the right-of-way taken by plaintiff.
Plaintiff called as witnesses in its behalf Mr. Joseph W. Fontenot, Mr. E. J. Jandacek, and Mr. Gilbert H. Vidrine.
Mr. Fontenot, a registered real estate dealer was qualified by the court as an expert. He appraised the property expropriated at between $200 and $250 an acre. He arrived at the estimate by comparing subject property with four other sales in the vicinity.
The next witness for plaintiff was Mr. Gilbert H. Vidrine. Mr. Vidrine was in the real estate business and was an abstractor. He arrived at the same conclusion that Mr. Fontenot did as to the value of the property involved in the right-of-way. He stated that the highest and best use of the property was for rice and cattle.
Mr. E. J. Jandacek was chief engineer for plaintiff corporation. His testimony dealt with the laying of the pipe and cost of the pipeline and other related matters.
Defendant used in his behalf the following witnesses: Mr. Wallace J. Reed, Mr. Elwood Tate, Mr. J. D. Vidrine, Mr. Morell Fontenot and himself.
Mr. Tate is an agriculture teacher and testified generally as to the yield per acre on the property in question, price per barrel, and the value of the property for pasturage possibilities. He testified that since the pasture consisted of rice stubbles after each harvest that said pasture would not have a great value for that purpose.
Mr. J. D. Vidrine testified that he was experienced in building crayfish lakes, and gave the approximate yield of 1,000 pounds of crayfish per acre and the price per pound.
Mr. Wallace J. Reed stated that he was a general farmer and cattle raiser. He said he had pipelines crossing his property and gave the estimate of releveling cost after the pipeline crossed the property in the instant case. He also stated that after a pipeline is laid the property embracing the pipeline will not give the maximum yield of the specified crop thereon.
Mr. Morell Fontenot testified that he was a tenant farmer for defendant. He gave the yield per acre of the rice land in controversy. He testified further that he had commenced the construction of a levee to build a crayfish lake on the property.
Defendant testified on his behalf and stated that he would have to relevel the property on the right-of-way granted and would have to re-install a relief pump; that three or four trees would be destroyed.
On rebuttal, Mr. Henry P. Gossen and Mr. Martin Lyons testified as witnesses for plaintiff. They were both farmers and testified generally as to the percentage loss of the crop on the expropriated right-of-way.
The defendant introduced in evidence a deed whereby Transcontinental Pipe Line Corporation purchased a tract of land in the vicinity for the sum of $2,500; said property contained 5.31 acres of land. The jurisprudence of this state has been established to the effect that a sale made to the condemning authority under the threat of expropriation is not a willing seller transaction and is therefore not controlling as a comparable sale, although it may be considered in determining value. State v. Dowling, 205 La. 1061, 18 So.2d 616; Orleans Parish School Board v. Paternostro, 236 La. 223, 107 So.2d 451; Parish of East Baton Rouge v. Edwards, La.App. 1 Cir., 119 So.2d 175.
Considering all of the evidence in the case, we believe that an award of $200 per acre for the 2.45 acres, or a total of $490, is adequate for the property taken herein.
The trial judge granted judgment in favor of plaintiff for $1,500 for loss of value of remaining land. We have examined the record and find there is insufficient evidence to make a determination of this item and in the interest of justice we will remand the case to the lower court for the restricted purpose of receiving additional evidence on this item.
The trial judge awarded defendant $200 as being the cost of relocating a relief pump owned by defendant and located on the property expropriated. Defendant was the only one who testified in connection with the relief pump. The pump was connected by means of 150 feet of six-inch pipe welded together and placed on crossties. Defendant testified he was familiar with the construction of this equipment. He said it would cost between $600 and $750 to re-install the relief pump and dump canal. We believe the award by the district judge was adequate.
We are of the opinion that the award of the trial judge to relevel the property, for loss of rice, loss of pasture, and loss of crayfish sales should not be allowed separately from the value of the property taken by plaintiff. The item of shade trees is speculative, as the trees were wild growth, and this item is rejected.
For the reasons assigned, the judgment of the trial court is amended so as to increase the amount of the award for the servitude taken from $300 to $490, and by disallowing the award for loss of rice, loss of pasture, loss of shade trees, loss of crayfish sales, and for releveling the property, and the case is remanded to the district court for the limited purpose of showing the loss of value to the remaining land.
Costs of court are to await final determination of the case.
Amended and affirmed in part, remanded in part.
On Rehearing.
Before TATE, FRUGE , SAVOY, HOOD and CULPEPPER, JJ.
A rehearing was granted in this matter to reconsider the items of compensation and damages hereinafter discussed. Addressing ourselves first to the item of damages for releveling the entire 29 acre rice field through which the proposed pipeline will pass, it is now our conclusion that we were in error in our original opinion in denying an award for this item. The testimony of the defendant, and of his witnesses, Wallace J. Reed, and Morell Fontenot, as well as the testimony of plaintiff's own witness, Henry T. Gossen, shows clearly that after the pipeline has been completed the entire rice field through which it passes will have to be releveled at a cost of $10 per acre or a total of $290 in this case. It is the contention of counsel for the plaintiff that our Louisiana jurisprudence has developed what he calls the 'pure theory' of expropriation damages which allows only two general classifications thereof, that is, first, compensation for the property actually taken, and second, severance damages to the remaining property not taken. See Louisiana Highway Commission v. Israel, 205 La. 669, 17 So.2d 914 and the many cases cited therein. Under this jurisprudence, plaintiff contends that the cost of releveling that portion of this 29 acre rice field, lying outside the proposed pipeline right of way, must necessarily fall within that classification called 'severance damages to remaining property not taken.' With this proposition we agree. However, we do not agree with the next point in plaintiff's line of argument which is that the only way to prove severance damages to remaining property is to show by expert opinion evidence, or by comparable sales, the amount of diminution in market value caused by the expropriation.
As stated in our original opinion herein, the defendant has failed to prove by expert opinion...
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