232 So. 2d 273 | La. | 1970
Lead Opinion
Louisiana Power and Light Company seeks a 100-foot servitude across various tracts owned in full or in part by these defendants for the construction, maintenance, 'and operation of a transmission line or lines consisting of a single, double, or triple line of poles, towers, and structures with such wires, cables, conductors, and other appurtenances necessary for the transmission of electric energy or communication.
The subject properties are situated between Norco and Destrehan. The location of the servitude is about a mile to a mile and a half from the Mississippi River between the Illinois Central Railroad and the Louisiana and Arkansas Railroad, the latter railroad being almost adjacent to Airline Highway (U. S. 61). This servitude generally parallels a United Gas Company pipeline servitude and a Shell Oil Company pipeline servitude and partially overlaps the latter servitude for almost its entire length. The area along the river is rapidly expanding in response to industrial requirements. The subject property, now cutover hardwood land susceptible to overflow, is projected as commercial, residential, and industrial property in the near future although such use would require elevation and drainage of the property.
The trial court and the appellate court found that the highest and best use of the land taken was for the growing of hardwood timber. From a study of the expert testimony as well as from the concession of counsel for the parties in their arguments, we learn that all lands involved are similar in topography arid location, and the highest and best use which can be attributed to all of the tracts is for speculative investment for future development into residential, commercial, and industrial sites. (The defendant Elfer’s Tract No. 2 is an exception which will be treated separately.)
Only three of the witnesses offered as experts by any of the parties gave estimates of value for establishing just compensation which were based upon competent investigation, factual determinations,
E. A. Tharpe II, a qualified realtor-appraiser, assigned highest and best use of the land as speculative investment for the purpose of commercial, industrial, and residential development. He also used the market data approach, and after adjusting his comparables he assigned $1000.00 per acre as market value for the subject property.
The only other witness who gave an opinion with sufficient foundation to be accorded weight as expert evidence was George Hubert Dejean. Mr. Dejean, although using the market data approach, relied upon an entirely different set of comjsarables and adjusted them to arrive at a $2492.50 per acre value which we round off to $2500.00.
Rejecting the other witnesses’ testimony and finding no reason to test the credibility of these three experts witnesses or the weight to be accorded their testimony, we find it appropriate to average the three estimates, even though they vary considerably, in order to assign market value for the subject properties. We assign market value of all the subject property (except Elfer Tract No. 2) at $1416.67 per acre.
Plaintiff contends that it was error for both courts below to award 100 per cent of land value for the servitude alone when full ownership of the land was not taken. It argues that ownership of property entails the ownership of a bundle of rights, that the exercise of a servitude such as this one for the construction, maintenance, and repair of electric transmission lines carried on poles, structures, and towers leaves a number of rights unencumbered and advantageous to the owner, and that the landowner therefore has reserved to him considerable property value.
The defendants urge in brief that Louisiana Power & Light Company v. Simmons, 229 La. 165, 85 So.2d 251, which cites Texas Pipe Line Company v. Barbe, 229 La. 191, 85 So.2d 260, is supportive of
After review of the cases cited above and other jurisprudence both in the Supreme Court and in the Courts of Appeal', we make the following conclusion. Where the servitude requirements are for use of the land for the construction and maintenance of an electrical transmission line, for ingress and egress, and for clearance- of only such obstructions as might interfere .with or constitute a hazard to the operation- of the transmission line, and where the highest and best use of the property. included within the servitude is for speculatiye investment, the landowner does, out of the whole bundle of rights of ownership, retain property rights which have a fixed value. Even counsel for the defendants admitted in argument before us that these landowners retain valuable ownership rights in the lands after the servitude grant.
The servitude across the above properties overlaps and extends upon a portion of an existing Shell Oil Company servitude. It is the contention of plaintiff that since a portion of its servitude is encompassed within the preexisting servitude, the assignment of value for its power line servitude which is within the preexisting servitude should be a reduced percentage because that land -is already encumbered. We agree with this contention. Since some of the defendants’ rights of ownership have already been dismembered by the first ser-, vitude, there are fewer rights of ownership retained and affected by the proposed servitude and less value should be allocated to this land.
For the reasons above we assign as just compensation for the defendants’ land within the servitude which is not encumbered 80 per cent of its market value- (80 per cent of $1416.67 per acre, or $1133.34 per acre). For that portion of the proposed servitude which is encumbered with a preexisting servitude we assign as just compensation 25 per cent of the total market value (25 per cent of $1416.67 per acre, or $354.17 per acre)-..
' We reject the testimony of the son of the owner as being opinion unfounded in fact and conclusion erroneously projected. Mr. Derbes. has assigned full land value for the servitude based upon $41.00 per front foot for the taking of the entire triangle, encumbered and unencumbered, adjusts for the peculiar shape, size and other considerations, -and arrives at a value of $1385.00 as just compensation for the portion taken. He does not allow severance damages. On the other hand, Mr. Tharpe uses front-foot value of $75.00 for the land between the highway and the railroad, and after considering this property without the new encumbrance, he assigns a total before taking value to the approximately 2.5-acre tract. Then considering the portion taken, the preexisting servitude, just compensation for the portion taken and severance damage to the remainder, he arrives at a value after the taking. The difference in these two values includes just compensation and severance damage and amounts to $1415.00.
We are of the opinion that the $75.00 per front foot market value used by Mr; Tharpe is a fair estimate of value for the property. However, his calculation and reasoning in assigning the before and after values are not satisfactory for assigning just compensation and severance damage. The total subject property which is affected by the servitude' is comprised of 2.5 acres, more or less, having a depth of approximately 730 feet, a width of approximately 112.58 feet and a frontage of 156.97 feet. Using Mr. Derbes’s calculations and Mr. Tharpe’s values, such property would be worth $75.00 per front foot if it were a perfect
However, one-third of this is already encumbered with a similar servitude and the new servitude will only require tie-in poles and necessary accessories. On this already encumbered front 24 feet or 0.04 acre (approximately one-third of the servitude) we assign 25 per cent of full land value for the new servitude, or $218.-.02. (I/3 x $2616.19 x .25) To the remaining two-thirds of the servitude we assign an 80 per cent of value for the servitude, or $1395.30. (¿/j x $2616.19 x .80) Thus based upon 20 per cent of value for the land previously encumbered and 80 per cent of value for the land unencumbered we assign $1613.32 as just compensation for the servitude. Contrary to Mr. Derbes’s contention and in accord with Mr. Tharpe’s testimony we find some consequential or .severance damage to the remainder of the front 2.5 acres of this tract of land. We assign 5 per cent severance damage to this remainder (156.97 x $75.00 x .05)
For all of the reasons above assigned the following judgments are hereby rendered :
Louisiana Power and Light Company v. Dr. Myles K. Gaupp (District Court Docket No. 9159) : Just compensation for the defendant’s one-fourth interest in 0.18 acre is calculated as follows: !4 of [(0.11 acre unencumbered x $1133.34) + (0.07 acre encumbered x $354.17)] = $37.36. The judgments of the trial court and the Court of Appeal are amended so as to make the award for just compensation to this defendant $37.36, and as thus amended the judgments are affirmed. Costs in this court are to be paid by the defendant.
Louisiana Power and Light Company v. William A. Elfer (District Court Docket No. 9165): As to Tract No. T, just compensation is calculated as follows: (1.36 acres unencumbered x $1133.34) + (0.59 acre encumbered x $354.17) = $1750.30. As to Tract No. 2, just compensation for the 0.1126 acre taken and severance damages are calculated and fixed above at $2200.00. The judgments of the trial court
Louisiana Power and Light Company v. George A. Lasseigne, Jr., et al. (District Court Docket No. 9168) : Just compensation for these defendants’ %b interest in 1 acre is calculated as follows: %s of [(0.75 acre unencumbered x $1133.34). + (0.25 acre encumbered x $354.17)] = $500.-56. The judgments of the trial court and the Court of Appeal are amended so as to award these defendants as just compensation $500.56, and as thus amended the judgments are affirmed. Costs in this court are to be paid by the defendants.
Louisiana Power and Light Company v. Kathryn C. Briede, Wife of/and Dr. Benjamine Cromwell Gore (District Court Docket No. 9169) : Just compensation for the lands expropriated is calculated as follows: As to Tract No. 1 (4.72 acres): (2.83 acres unencumbered x $1133.34) + (1.89 acres encumbered x $354.17) = $3876.-73. As to Tract No. 2 (0.46 acre) : (0.28 acre unencumbered x $1133.34) + (0.18 acre encumbered x $354.17) = $381.09. As to Tract No. 3 (2.39 acres) : (1.55 acres unencumbered x $1133.34) + (0.84 acre encumbered x $354.17) = $2054.18. Total award of just compensation to these defendants is therefore $6312.00. The judgments of the trial court and the Court of Appeal are amended so as to award these defendants just compensation of $6312.00, and as thus amended the judgments are affirmed. Costs in this court are to be paid by the defendants.
Louisiana Power and Light Company v. Alfred W. Brown (District Court Docket No. 9170): Just compensation for 2.17 acres expropriated is calculated as follows: (1.34 acres unencumbered x $1133.34) + (0.83 acre encumbered x $354.17) = $1812.-64. The judgments of the trial court and the Court of Appeal are amended to award just compensation to this defendant of $1812.64, and as thus amended the judgments are affirmed. Costs in this court are to be paid by the defendant.
We advisedly do not apply the 80 per cent disadvantage for shape. Our assignment of 5 per cent of value for severance damage considered this element.
Dissenting Opinion
(dissenting).
I cannot agree that it is a correct judicial approach to this problem to take three widely divergent estimates of $750, $1,000 and $2,500 and simply average them to reach an evaluation of the property. This approach begs the question all around and decides nothing. It gives no weight to the testimony of any of the experts and bases a decision of this Court upon nothing.
I respectfully dissent.