Opinion
No. 5577.
June 29, 1962. On Rehearing January 18, 1963.
APPEAL FROM TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY, STATE OF LOUISIANA, HONORABLE FREDERICK S. ELLIS, J.
D. Ross Banister, Glenn S. Darsey, and B.B. Croom, Baton Rouge, for appellant.
Julian J. Rodrigue, Covington, for appellee.
Before LOTTINGER, LANDRY and REID, JJ.
Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, Judges.
This is an expropriation suit the subject of which involved the taking of 1.006 acres of river front property in St. Tammany Parish for highway purposes. The District Court awarded a total of $1500.00 which included reimbursement for the value of the property itself and the improvements and also provided for interest thereon at 5% per annum from May 23, 1956 until paid.
The Highway Department has appealed from this judgment insofar as it exceeds the amount of $592.10 which it deposited in the Registry of the Court. The attorney for the defendant has not answered the appeal asking for an increase.
Since the defendant is apparently satisfied with the award, only two issues remain before this court on appeal. One issue is whether or not the court should have considered increasing the valuation of the land taken due to alleged defects in defendant's pleadings. The chief defect alleged is that the answer failed to itemize damages for the loss of a small tract taken from a larger tract as required LSA-R.S. 48:451. If the court was correct in doing so, then plaintiff-appellant questions whether the court placed a proper valuation upon the improvements and land taken.
"451. Determining value and damages where part of a tract is expropriated.
"Where a portion of a lot, block or tract of land is expropriated, any defendant may apply for a trial to determine the just and adequate compensation to which he is entitled, provided:
"(1) He files an answer within one year from the date he is notified in writing by the department that it has finally accepted the construction of the highway project for which the property was expropriated;
"(2) His answer sets forth the amount he claims as the value of each parcel expropriated and the amount he claims as damages for the remainder of his property;
"(3) His damage claim is reasonably itemized."
On the first issue we quote the following pertinent portions of defendant's answer:
"17.
"Defendant denies that the amount named and fixed as the compensation to be paid defendant is just or adequate, and further denies that the persons who made the appraisal are competent to fix the amount of compensation as they are employees of the plaintiff and are not familiar with the value of real estate in St. Tammany Parish."
"20.
"Further defendant alleges that the widening of the highway will cause a further loss and damage to his property in the sum of Five Thousand ($5000.00) Dollars by making the same unsightly and forcing defendant to have to enter his property from the side in order to reach the highway, thus causing great inconvenience and damage all of which will amount to the sum of Five Thousand ($5000.00) Dollars.
"WHEREFORE, defendant prays that there be judgment herein on his reconventional demand, and in his favor and against the plaintiff for the full sum of Six Thousand ($6000.00) Dollars and defendant further prays for all general relief in the premises, and all costs." (Emphasis ours)
Reading these Articles and the Prayer together it is felt that plaintiff was put on guard by Article 17 that its valuation of the land taken was questioned. Article 20 of the answer asks in effect for $5000.00 damages for all the loss and damage to defendant's land. Coupling these Articles with the Prayer we feel that plaintiff was substantially apprised that the valuation of the expropriated tract was at issue. Had plaintiff filed an exception of no cause of action, an exception of vagueness, or a motion to strike, it could have asserted its dissatisfaction with the form of this answer. Even before the new Louisiana Code of Civil Procedure was enacted our courts have made an effort to liberalize technical rules of pleading and to avoid having procedural rules applied technically so that substantive rights are denied.
We agree with the plaintiff-appellant in its contention that the rules of the LSA-Code of Civil Procedure, and particularly 862, 865, and 5051 of said Code cannot be applied in determining the sufficiency of the pleadings in this case since the pleadings in question were filed before the effective date of the Code (See Sec. 4 LSA-C.C.P., Vol. 1, p. 748). However, it is felt that the pleadings under attack contained sufficient allegations to put the valuation of the expropriated tract at issue. Therefore, it is felt that the District Court properly considered the question of the sufficiency of the valuation of the expropriated tract.
The assets on the land taken included a stand of young pine trees, four pecan trees, a wire fence with concrete posts and a gate with two brick pillars. The tract taken was an irregular strip, having a frontage of 99.51 feet on the Tchefuncta River, and extending approximately 350 feet back, narrowing to a width of 14.60 feet in the rear.
The two appraisers for the Highway Department were both in its employ. The one who testified merely substantiated the amount of the original deposit which was made as a result of the original appraisal. It was stipulated that the other appraiser for the Highway Department would testify in substantially the same manner if he were put on the stand.
There was considerable testimony in the record by two local appraisers testifying for the defendant, setting a value of $3000.00 per acre on land such as the tract taken. Although the parcel in question was bought as a part of an 18.84 acre tract approximately one year prior to the expropriation at an over-all value of considerably less than $3000.00 per acre, defendant's appraisers explained the difference in value by the location of this particular parcel and the sharp increase in land values in the area by the intervening development of the Causeway over Lake Ponchartrain. No comparable sales were available. The land was considered by both of defendant's appraisers as though it were a building lot in arriving at the valuation placed upon it. Generally speaking this is not the proper method of evaluating a small tract which is taken from a larger undeveloped tract. It should be valued by considering what value the portion taken bore to the value of the whole tract. Orgel on Valuation under Eminent Domain, Vol. I Second Edition, Section 52, p. 274; Colonial Land Co. Ltd. v. Board of Com'rs of Pontchartrain Levee Dist., 170 La. 1057, 129 So. 635.
Therefore, the Court was justified in reducing the valuation placed upon the expropriated tract. In view of the improvements on the land, which included a stand of pines, pecan trees, the fence, and considering the river frontage of the tract taken it is felt that the trial Judge's conclusions were more than reasonable in setting the valuation it did upon the expropriated tract, plus improvements.
Accordingly, the judgment of the District Court is affirmed in its entirety and all costs of this appeal are taxed to the State of Louisiana, through the Department of Highways, plaintiff-appellant herein.
Affirmed.
On Rehearing
In our original consideration of this matter we concluded that the pleadings were sufficient to have warranted the Lower Court's consideration of the sufficiency of the valuation of the expropriated tract. After reconsidering the matter we have concluded that we erred in so holding and that the introduction of the testimony with respect to value on the part of the defendant was improper.
LSA-R.S. 48:451 provides in part as follows:
"Where a portion of a lot, block or tract of land is expropriated, any defendant may apply for a trial to determine the just and adequate compensation to which
he is entitled, provided:
"(1) He files an answer within one year from the date he is notified in writing by the department that it has finally accepted the construction of the highway project for which the property was expropriated;
"(2) His answer sets forth the amount he claims as the value of each parcel expropriated and the amount he claims as damages to the remainder of his property;
"(3) His damage claim is reasonably itemized; * * *." (Emphasis supplied)
The pertinent portions of the defendant's answer are as follows:
"17.
"Defendant denies that the amount named and fixed as the compensation to be paid defendant is just or adequate, and, further denies that the persons who made the appraisal are competent to fix the amount of compensation as they are employees of the plaintiff and are not familiar with the value of real estate in St. Tammany Parish.
"18.
"Defendant denies Article 18 of the petition.
"19.
"Further answering and assuming the petition of plaintiff and reconvention defendant now shows:
"That the reconstruction and widening the existing highway along side of and in front of defendants property, the mesh wire fence will be destroyed, and that the said fence being 850 feet in length with concrete posts and two brick columns has a value of at least One Thousand (1000.00) Dollars and that the destruction of the same will cause loss and damage to this defendant in that sum.
"20.
"Further, defendant alleges that the widening of the highway will cause a further loss and damage to his property in the sum of Five thousand ($5,000.00) Dollars by making the same unsightly and forcing defendant to have to enter his property from the side in order to reach the highway, thus causing great inconvenience and damage all of which will amount to the sum of Five Thousand ($5,000.00) — Dollars.
"WHEREFORE, defendant prays that there be judgment herein on his reconventional demand, and in his favor and against the plaintiff for the full sum of Six Thousand ($6,000.00) Dollars, and defendant further prays for all general relief in the premises and all costs."
Timely objection was made by counsel for the State to the introduction on behalf of defendant of evidence with respect to valuation.
A reading of defendant's answer shows that without doubt he has failed completely to comply with the clear and unambiguous provisions of LSA-R.S. 48:451 and particularly Subdivision (2) thereof. While it may well be that it was intended by the answer to contest the valuation placed on the property by the State a mere denial thereof does not constitute compliance with the provisions requiring that he set forth the amount he claims as the value of the property expropriated. These provisions are, we believe, mandatory, and failure of the pleadings to establish the foundation for the evidence should have resulted in its exclusion.
The defendant contends that Articles 862 and 5051 of the LSA-Code of Civil Procedure supercede the technical requirements of the quoted statute. The quoted statute deals with a special subject matter, however, Act 15 of 1960, the first section of which enacts the Louisiana Code of Civil Procedure, provides in Section 4(B)(2)(b) that none of the provisions of the new code shall "[a]ffect the validity or change the legal effect of any judicial, official, or procedural act done or attempted, or of any failure to act, prior to the effective date * * * including but not limited to any: * * * pleading filed * *." (Emphasis added). LSA-C.C.P. Vol. 1, p. 748.
The pleadings in this case were filed before the effective date of the code, viz. before January 1, 1961, and as provided in Section 4(B)(2)(b) of Act 15 of 1960, the liberal provisions of the Code of Civil Procedure cannot change the legal effect of said pleadings.
Had evidence offered by the defendant with regard to the value of the property been introduced without objection, the pleadings would have been enlarged, and plaintiff could not now complain. But the record discloses that the plaintiff objected to the introduction of any evidence relative to the value of the property. The objection was based on the failure of the defendant's answer to comply with the provisions of LSA-R.S. 48:451 quoted above, and the objection was made general as to all such evidence.
The District Court erroneously overruled the objection, and subsequently, impressed with the gross inadequacy of the compensation offered by the Department of Highways as shown by the testimony of defendant and his witnesses (which was admitted subject to plaintiff's objections), the Court made the following statement:
"Article 17 of the answer denies the adequacy of the compensation, but does not affirmatively set forth the amount claimed. This amount does not appear anywhere else in the answer. Technically, there can be no doubt that the requirements of the statute are not met. However, in view of the tendency of the Court of this state to take a lenient view toward technical deficiencies in pleadings; and in view of the provisions of Article 862 of the new Code of Civil Procedure, I am of the opinion that justice would not be served if defendant were denied the compensation which he deserves. The denial contained in Article 17 is sufficient to place plaintiff on notice that the adequacy of the compensation for the value of the land is being contested."
LSA-R.S. 48:451 clearly and plainly requires that the defendant's answer state the amount the defendant claims as the value of each parcel expropriated. To deny an allegation of the plaintiff's petition and thereby place the plaintiff on notice that the adequacy of the compensation for the value of the land is being contested is not a compliance with the statute.
For these reasons our original judgment is recalled, set aside and reversed, and the judgment of the District Court, reversed in part and affirmed in part.
It is therefore ordered, adjudged and decreed that the market value of the property expropriated be and the same is hereby fixed at Five Hundred Ninety-Two and 10/100 ($592.10) Dollars.
It is further ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, State of Louisiana, through the Department of Highways, and against the defendant, Lawrence H. Hyland, rejecting the latter's demands.
Considering our discretion in the taxing of costs against any party as provided in LSA-C.C.P. Article 2164, and regarding such to be equitable under the circumstances of this case, we hereby tax all costs of this and the Lower Court against the plaintiff-appellant.
Judgment amended and affirmed.