United Gas Pipe Line Co. v. Becnel

• Decision Date: 11 May 1982
• Docket Number: Nos. 5-16,s. 5-16
• Citation: 417 So.2d 1198
• Parties: UNITED GAS PIPE LINE COMPANY v. Charles S. BECNEL, et al. to 5-21.
• Court: Court of Appeal of Louisiana — District of US

Page 1198

417 So.2d 1198

UNITED GAS PIPE LINE COMPANY v. Charles S. BECNEL, et al.

Nos. 5-16 to 5-21.

Court of Appeal of Louisiana, Fourth Circuit.

May 11, 1982.

Rehearing Denied Aug. 19, 1982.

Hargrove, Guyton, Ramey & Barlow, Thomas J. Wyatt and A. L. Wedgeworth, III, Shreveport and Talbot, Sotile, Carmouche, Waguespack & Marchand, Vincent J. Sotile, Donaldsonville, for plaintiff-appellant.

Martin, Himel, Peytavin & Nobile, Anthony J. Nobile, Lutcher, Michael Heltz, Gramercy, Tureau & Mire, Ralph Tureau, Gonzales, Bernard, Cassisa, Babst & Saporito, Frank Davis, Metairie, Becnel & Gravois, Larry C. Becnel, Vacherie, for defendants-appellees.

Before SAMUEL, BOUTALL and CHEHARDY, JJ.

CHEHARDY, Judge.

Plaintiff, United Gas Pipe Line Company (United), appeals several district court decisions in favor of the plaintiff and against the defendants in six consolidated expropriation suits. The judgments granted United a pipeline right of way and servitude through, under, over and across the defendants' properties, and the plaintiff was also granted the right to use and occupy a temporary working area during the construction of the pipeline, consisting of an additional two strips of land on each subject tract.

In the suit against defendants Amelie Gerstner and Amelie Ellis Prescott Woods, consideration for all damages was fixed at $12,920, and reasonable attorney fees were fixed at $3,130. The plaintiff was ordered to pay the defendants' expert witness John LeJeune $500.

In the suit against defendants Doris Saunier Matherne, Claude Joseph Saunier, Lois Saunier Rouchon, Wilbur Saunier, and Adrian Saunier Estave, consideration for all damages was fixed at $21,603 and reasonable attorney fees were set at $5,200.75. Plaintiff was also ordered to pay LeJeune $500 in this suit.

In the suit against defendants Luly A. Huguet Mastio, Marine H. Peters, Hester H. Berry, Marie Huguet Bourgeois and Sam Huguet, consideration for all damages was fixed at $16,213. Reasonable attorney fees were fixed at $3,953.25, and the plaintiff was ordered to pay LeJeune $500.

In the case against defendants Day Huguet, Daisy Huguet Richardson, Ray Huguet, Gertrude Huguet Folse, Carol Huguet Harper, Ruby Huguet Vicknair, Lorraine Huguet Ott, and Patricia Huguet Johnson, consideration for all damages was set at $17,235 and reasonable attorney fees were fixed at $4,208.75. The plaintiff was also ordered to pay LeJeune $500.

In the suit against defendants Timothy A. Becnel Inter Vivos Trust, Thomas J. Kliebert as Trustee for said Timothy A. Becnel Inter Vivos Trust, Kliebert Educational Trust and Charles S. Becnel, as Trustee for said Kliebert Educational Trust, consideration and all damages were fixed at $5,825, reasonable attorney fees were set at $1,411.25, and the plaintiff was also ordered to pay LeJeune $500 in that case.

In a later judgment in a case against Charles S. Becnel, et al., based on the stipulations of all parties it was ordered that the consideration for the right of way previously adjudged unto plaintiff by the earlier judgment was thereby fixed at $12,025. Plaintiff was ordered to pay reasonable attorney fees of 15% or $1,803.75, but was not held liable for expert witness fees incurred by the defendants in this matter.

The plaintiff in all of these consolidated cases was ordered to pay all costs of the proceedings. None of the defendants have appealed the subject judgments, but ask that they be affirmed.

The issues presented to this court on appeal are whether the trial court was in manifest error in evaluating the expert testimony; whether the highest and best use of the subject tracts, based on the potential for assemblage, should have been considered industrial; whether severance damages were due to the subject properties and whether defendants are entitled to attorney fees.

Oren Russell, a real estate broker and appraiser, testified the subject tracts in this case are in an unimproved area, either wooded or lightly wooded. He said the market approach was the basis of establishing their valuation. He described the subject properties as having a highest and best use of rural residential and noted they did not have enough width to accommodate even small industry. All of the subject parcels he evaluated at an amount less than $2,000 an acre. Russell did admit that although there was heavy industry in the area of these parcels, all of the comparables used in his evaluation were residential.

Julius Bahlinger, another real estate appraiser, said that the subject tracts would have a highest and best use as residential and small commercial, and he restricted his attention to sales of comparables with like uses. He came to the conclusion that the value per acre for all five subject tracts was $2,000. Bahlinger said that although the records showed the properties should be valued at between $1,300 to $1,600 per acre, he increased it somewhat in looking to the foreseeable future.

When asked about the possibility of combining these tracts to other tracts in the area to produce larger tracts for industrial use, this expert said it was his experience this was a very difficult thing to do because there are always "hold outs" and homeowners who do not want to leave, resulting in the assemblage turning into a very costly operation.

Russell also testified that damages to these tracts by the pipeline would be relatively small. He said he did not think the properties could be used in the foreseeable future for industrial use, and maintained this position in spite of his admission in testimony that he could foresee an increase in growth of industry and commerce in the area over the next five years. However, he reiterated the difficulties of assemblage and felt that to assign a higher value on the property based on that possibility would be highly speculative.

John LeJeune, another real estate appraiser and developer, stated that he has testified as an expert in 436 trials involving property evaluations and has worked a great deal in St. James, St. John and Ascension Parishes during the 12 years prior to the trial in this case. LeJeune said he visited the subject properties, and he explained the importance of their location in the Cantrell Reach (a deep water area of the Mississippi River) and their proximity to what he called the "Cap Line," the "P. O. E. Pipeline" and the Louisiana Offshore Oil Pipeline. He said that this area had the most intense industrial development activity in St. James Parish at the present time. It was his opinion, therefore, that the highest and best use of the properties was for assemblage with other tracts into a 200- or 300-acre site, which he felt would be a tract of land of great value for use as an industrial site.

LeJeune defined highest and best use as the use most likely to produce the greatest net return to the property over a given period of time, and explained other assemblages which have taken place in the area, which he considered in making his appraisals. His opinion was that a prudent man would pay $5,000 per acre for each of the five subject tracts of land and he could then make a profit either by leasing or selling the land after assemblage with other parcels.

LeJeune stated the subject pipeline is going to sever all five tracts of land and a permanent installation could not be built over any part of the servitude. Because of the limits the servitude would impose on the property, he found the severance damages would reduce the property value from $5,000 an acre to $4,000. He said it would change the highest and best use of the property from potential high density industrial to a less intense use such as rural residential. LeJeune also said he had discounted the value assigned to each tract by approximately 50% (before arriving at the $5,000-an-acre figure) to compensate for the difficulties of assemblage.

On each of the subject parcels, LeJeune arrived at his estimate of total damages by figuring the acres taken within the permanent servitude, and figuring the acres taken within the temporary construction servitude (assuming that a man was entitled to a 10% return on the value of that property for one year). In arriving at both of these figures he assumed the subject properties were worth $5,000 an acre. He then added these figures to severance damages of $1,000 per acre in each case to estimate total just compensation for each tract.

It was these figures given by LeJeune that the trial court judge followed in making his individual total awards in each of these present cases.

This court is bound by the rule that in expropriation proceedings the trial court's factual findings as to severance damages and the evaluation of, and the weight given to, the testimony of expert witnesses will not be disturbed on review absent a showing of manifest error. State, Through Dept. of Highways v. Wilson, 372 So.2d 632 (La.App. 1st Cir. 1979).

It has also been established that in cases of this type a correct measure of compensation is the market value of the thing taken, i.e., the price agreed upon by a willing and informed buyer and seller in the condition in which the property stood at the time of the expropriation. The market value of the condemned property means the worth of the land considered in regard to its best and highest use, that is, the manner in which the property can be reasonably used in the not too distant future. State Dept. of Highways v. Dyess, 350 So.2d 1304 (La.App. 3d Cir. 1977).

Although the question of assemblage with other tracts of land (in determining the market value or highest and best use of a parcel) has not been specifically addressed in Louisiana, the issue was addressed in State v. Long, 344 So.2d 754 (Ala.1977), wherein the court stated at 759-760:

"Appellant's other contention is that part of Morgan's deposition is inadmissible. Morgan concluded 'that the Long property and the property known as the Ladd property, which is adjacent thereto, when...