Plaintiffs were the owners of a tract of land measuring 3.60 superficial acres, assessed in 1921 аt $1,080 for the land alone, exclusive of the improvements. On April 29, 1922, the Mississippi river burst through its embankments, and thereafter the defendant built a new levee, taking for that purpose a totаl of 1.53 acres of said land, including the land occupied by the new levee itself, and also that thrown outside of said levee and thus into the bed of the river, but exclusive of the land (0.17 acres, outside of the levee) already washed away by the flood.
That was therefore the area for which the
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defendant was required to pay. Const. 1921, art. 16, § 6, p. 115; Russell v. Board of Commissioners,
I.
In an action (such as this is) by the owner of lаnd against a levee board for the value of land taken or destroyed for leveе purposes, the assessed value of the land for the preceding year is conclusive on the plaintiff as to the actual value thereof. Boyce Cotton Seed Cо. v. Board of Commissioners,
And since 1.53 is exactly 42% per cent, of 3.60, it follows that, if it involves a merе matter of arithmetic, the value of the 1.53 acres would be $459, which was the amount allowed plaintiffs by the district judge.
But in our opinion it is not a mere matter of arithmetic. It is quite true that the total value of the whole land must be taken to be its assessed value; but it does not follow thаt each acre of land in a single tract must be taken to have exactly the samе value as every other acre therein; that acres of arable land and aсres of marsh land, acres of wooded land, and acres of bare land, all have the same value; that orchards and vineyards are not to be distinguished from stonelands and pastures merely because they are all included in the one tract.
On the contrary, we think that the relative worth of the lands taken, as compared to that of the rest of the tract, should be considered, and proper allowance made for the differenсe in values.
II.
In the case before us the acre and a half taken for levee purposes was the front yard of plaintiff’s residence, and contained several large shade trees, some being bearing pecan trees. It was much the most valuable pаrt of the land; so much so that without that front yard plaintiffs no longer care for the place as a residence, and have given it up as such.
All this we take into consideration; but at the same time we cannot overlook the fact that one-half the land is still left, that thе whole was assessed only $1,080; and that we must keep well within that limit in fixing the value of the land taken.
We have therefore cbncluded to add $400 to the arithmetical proportion herеtofore mentioned; the figure thus reached being as nearly a fair one as any we can possibly hope to reach from the record now before us, even acting, а's it were, as a jury of freeholders herein. C. Schmidt v. City of New Orleans,
III.
Plaintiffs also claim a largе sum as the cost of removing the débris which the levee board is alleged to have left on the premises after finishing its work on the levee. But we are not impressed by the testimony on this pоint. Doubtless plaintiffs had a laborer, or laborers, at work on the premises for some timе after the levee work was completed, and doubtless there was some débris to be rеmoved; but we do not feel satisfied that the whole time of these men was occupiеd exclusively in removing only such débris as may have been put upon the land by the levee board. The trial judge allowed nothing for this item, but we have concluded to allow $100 therefor.
ÍV.
In remоving trees and stumps from the land the levee board used large charges of dynamite; but aрparently these charges were so negligently exploded that some trunks and branches of trees were thrown upon, plaintiff’s residence, and the same was thereby damagеd to an extent which it required $330 to repair. The trial judge allowed this item, and the evidencе seems to support it. We see no reason to make any change.
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The total аllowed by the district judge was $809. To this we have added in all $500 (to wit, $100 plus $100). Our judgment will therefore be for $1,309.
Decree.
The judgment appealed from is therefore amended by increasing the amount allowed рlaintiffs to $1,309, with legal interest from judicial demand until paid, and the costs of both courts, and, as thus amended, said judgment is affirmed.