
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Amilcar TROSCLAIR, Defendant-Appellant.
    No. 2171.
    Court of Appeal of Louisiana. Third Circuit.
    Nov. 29, 1967.
    On Rehearing March 6, 1968.
    
      J. Barry Mouton, Lafayette, for defendant-appellant.
    D. Ross Banister, Chester E. Martin, Johnie E. Branch, Jr., Baton Rouge, by Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellee.
    Before FRUGÉ, SAVOY and HOOD, JJ-
   SAVOY, Judge.

The State of Louisiana, through the Department of Highways, filed suit to expropriate a small portion of the defendant-landowner’s property containing .758 acres in an irregular shape. The property is situated in St. Martin Parish, Louisiana, approximately two miles north of Breaux Bridge and is classified as open farm land, there being no buildings or improvements on the property. The property taken was a part of a 26.613 acre tract fronting and located on the west side of Louisiana Highway 31. The property taken fronts 269.50 feet on Louisiana Highway 31, by a depth on its northerly line of 144 feet, more or less; on its southerly line of 135 feet, more or less; and on its westerly or rear line of 230.62 feet. In addition, there is an additional sliver of property fronting on the highway approximately 100 feet by a depth of several feet, the exact amount not appearing clearly in the record. Use of the property expropriated was to be for construction of facilities in connection with Interstate Highway 10.

After a trial on the merits the trial judge entered judgment fixing the market value of the property expropriated at $2,145.00, and the value for severance damages to the property at $46.00, or a total award of $2,191.00, which was the exact amount deposited in the Registry of the court by the plaintiff. The defendant-landowner has appealed from the judgment contending that the award was too low and should be adjusted upward.

This Court, in State, Through Department of Highways v. Lormand (La.App., 3 Cir., 1967), 201 So.2d 370, recently defined the “fair market value” for expropriation purposes as “the value which a willing purchaser would pay and a willing seller would accept at the time of the expropriation considering the best and highest use for which the property is suited. * * * In addition to compensation for the property taken, the landowner is entitled to severance damages to the remainder of his property if it can be shown that the market value of the remainder is adversely affected by the taking.”

There appears to be little conflict among the experts in this case as to what constitutes the best use of the property for purposes of determining the “fair market value”. The best use would be as suburban rural acreage suitable for homesites. Plaintiff’s two appraisers testified that comparable sales in the area several years ago at depths of approximately 400 feet were valued at $23.00 and $25.00 per front foot. They then concluded that since this property was only 135 to 144 feet deep that its value per front foot was something less than $8.00 per front foot. On the other hand, the defendant’s appraisers testified that the property in question was worth $29.00 per front foot even though only 144 feet deep since this depth would allow development as homesites and any property at a greater depth would not increase the front footage values very much.

In Louisiana the rule is well settled that the best guide in determining the market value to which the owner is entitled under the law in expropriation suits is evidence of sales of similar or comparable properties in the vicinity. State, Through Department of Highways v. Havard, 239 La. 133, 118 So.2d 131; State, Through Department of Highways v. McDuffie, 240 La. 378, 123 So.2d 93; State, Through Department of Highways v. Carret (La.App., 3 Cir., 1961), 130 So.2d 447; State, Through Department of Highways v. Crockett (La.App., 3 Cir., 1961), 134 So.2d 341. It is equally well settled that the landowner in expropriation cases has the burden of proving that his property is valued at more than that deposited in the Registry of court by the condemnor. State, Through Department of Highways v. Levy, 242 La. 259, 136 So.2d 35, and cases therein cited.

Here two of the more recent sales of property involved two tracts of land 90x118 feet about one mile north of the subject property. In September, 1965, one tract sold for $12.68 per front foot, and in October, 1965, the other tract sold for $10.55 per front foot. It is readily seen that the property with which we are here concerned is deeper than both of these tracts, and yet the trial court only allowed compensation at the rate of $7.80 per front foot. We feel the landowner has borne the burden of proof placed on him in cases of this nature to prove that his property is worth more than that deposited in the Registry of the court, and that our learned brother below erred in only allowing compensation at the rate he did. We believe a more realistic sum for the property taken would be $12.00 per front foot considering the comparables herein and also the inflationary trend since 1965 in land values. Accordingly, we hereby increase the award for the 269.50 feet taken from the sum of $2,145.00 to $3,234.00. We further feel an additional $150.00 should be awarded as compensation for the small sliver of land fronting 100 feet on the highway, and $23.00 should be awarded for rental of the temporary construction servitude. However, we do not feel that the landowner has proved he is entitled to severance damages to that certainty required by law. Although Mr. Babineaux testified on behalf of the defendant-landowner that $1,620.00 should be awarded as severance damages since the property would lose highway frontage, Mr. Alfred Fu-selier testified for the plaintiff that the defendant would have complete access to and frontage on the proposed service road, as well as access to and frontage on Louisiana Highway 31 after construction is completed.

Accordingly, the judgment appealed from is increased from $2,191.00 to $3,407.00, and as amended, is affirmed. Costs of this proceeding to be paid by plaintiff.

Amended and affirmed.

ON REHEARING

En banc.

HOOD, Judge.

We granted a rehearing in this matter to reconsider our conclusions as to the value, of the property which is being expropriated.

Originally we were under the impression that the property being taken had a total frontage of 369.50 feet on Louisiana Highway 31, that 269.50 feet of that frontage had a depth of from 135 to 144 feet, and that the remaining 100 feet of frontage had a depth of about 20 feet. We have reexamined the record and find that we were in error in these measurements. The evidence shows that the property being expropriated had a total frontage of 327.18 feet on the highway. Of this frontage 227.18 feet had a depth of from 144 to 155 feet, and the remaining 100 feet of frontage on the highway had a depth of about 22 feet.

Our initial determination of the value of the subject property was based largely on two prior sales which we felt were comparable. Each of these sales involved a track of land having a frontage of 90 feet on the highway by a depth of 118 feet. One of these lots sold for $12.68 per front foot, and the other sold for $10.55 per front foot. Using these sales as an indication of the value of property in that area, we concluded that the portion of the subject land which fronted on the highway with a depth of from 135 to 144 feet had a value of $12.-00 per front foot, and we increased the award made by the trial court to allow that amount.

Our attention, however, has been directed to the fact that none of the four real estate experts who testified at 'the trial considered these two sales as being comparable or as indicating the value of the subject property. Actually, only one of these expert appraisers even mentioned these two sales, and he referred to them, not for the purpose of showing the value of the property which was being taken, but instead to illustrate that the value per front foot of a rural homesite lot decreases substantially as the depth of the lot is reduced. We are convinced that we erred in using these two sales as the basis for determining the value of the property which is being expropriated.

The two expert real estate appraisers who testified in behalf of the defendant landowner were Mr. Preston Babineaux and Mr. J. Alfred Mouton, Sr. These experts listed 17 prior sales (not including the two we referred to in our original opinion) which they considered to be comparable. The land affected by three of these transactions apparently did not front on highways, so those sales were of no use in determining the value per front foot of the subject property. The lots affected by the remaining 14 sales did front on blacktopped highways, as did the property being taken here, and we think these sales were properly considered as indicating the value of the property being taken. An examination of these comparable sales of lots with highway frontage shows that ten of them involved tracts with depths from 420 to 578 feet, and these lots sold for prices ranging from $18.00 to $28.00 per front foot. One of these comparable sales involved a lot having a shallower depth of 300 feet, and it sold for a lower price amounting to $15.00 per front foot. A frontage lot with a much greater depth of 714 feet sold for $36.10 per front foot, and another with a depth of approximately 750 feet sold for $37.80 per front foot. In three of the prior sales which were considered by defendant’s experts the prices paid for the lots sold were valued on an acreage basis, with the result that the values ranged from $1082.00 to $3250.00 per acre.

The appraisers who testified for defendant, after considering and adjusting these comparable sales, concluded that the piop-erty being expropriated here had a value of $29.00 per front foot, in spite of the fact that it had a depth of only about 144 feet. Then, assuming erroneously that the subject property had a frontage of 269.50 feet by that depth, they determined that that portion of the subject property had a value of $7815.00. They estimated the value of the remaining portion of the property being taken at $217.00, and thus they valued all of the property being expropriated at the sum of $8032.00. They conceded that if the value which they placed on the subject property should be converted to its worth per acre, the result would be that they were placing a value of $10,310.00 per acre on the subject property.

Messrs. Maurice Chappuis and Sam Kennedy, expert real estate appraisers, testified in behalf of plaintiff. In arriving at their estimates as to the value of the property taken, they considered substantially the same comparable sales which were used by defendant’s appraisers. Both of plaintiff’s experts concluded that that portion of defendant’s property which fronted on the highway, and extending to a depth of 400 feet, was best suited for rural homesite purposes. They felt that a typical rural homesite had a depth of at least 400 feet, that the highest market value of the property would be attained only if it extended to such a depth, and that the value of the property would be materially reduced if the depth were decreased to less than 400 feet. After considering the above mentioned comparable sales in that area, Mr. Chap-puis found that the subject property had a value of $25.00 per front foot, based on a depth of 400 feet. Converting this to a square foot or per acre valuation, he concluded that the property taken had a value of $.0625 per square foot or $2722.50 per acre. Since .758 acres was being taken he concluded that it had a total value of $2,-063.65.

Mr. Kennedy, using the market data approach and basing his findings as to value on substantially the same comparable sales as those used by Chappuis, concluded that the subject property had a value of only $23.00 per front foot, with a typical depth of 400 feet. Converting that to a square foot or acreage value, he estimated that the subject property had a value of $.06428 per square foot or $2800.00 per acre. In his opinion, the .758 acre tract which is being taken had a value of $2122.00 at the time of the taking.

The. trial judge accepted the opinions as to value which were expressed by the experts who testified in behalf of plaintiff. He concluded that defendant was entitled to an award of $2145.00 as the value of the property being expropriated, and to the additional sum of $46.00 as severance damages, making a total award of $2191, that being the amount which plaintiff had deposited as just and adequate compensation when the order of expropriation was issued.

Our jurisprudence is now settled that in the expropriation of property for highway purposes, landowners are entitled to receive the full market value of highway frontage property taken for further highway purposes, without making any deductions therefrom because of the fact that as a result of the taking a new highway frontage will be provided for formerly rear portions of the parent tract. State, Through Department of Highways v. Caillier, 157 So.2d 274 (La.App.3d Cir. 1963, Cert. denied); State, Through Department of Highways v. Landry, 171 So.2d 779 (La.App.3d Cir. 1965, writ refused 247 La. 676, 173 So.2d 541) ; State, Through Department of Highways v. LeDoux, 184 So.2d 604 (La.App.3d Cir. 1966).

The evidence in the instant suit convinces us, as it did the trial court, that a typical rural homesite in the area where defendant’s property is located has a depth of 400 feet, and that the highest market value of the subject property would be obtained by determining its value per square foot or per acre, squared off to a depth of 400 feet. We cannot agree with defendant that a depth of ISO feet is all that is needed for rural homesites, that any depth in excess of ISO feet must be considered as sur-plusage, and that the value per front foot of a rural homesite having a depth of only 150 feet would not be substantially less than the value of such a site with a depth of 400 feet.

Since the portion of defendant’s frontage property which is being expropriated has a depth which is less than the ideal depth of 400 feet, we think the trial judge correctly awarded to defendant a sum equal to the value per square foot or per acre of the property actually taken, -based on its ideal depth of 400 feet. See State, Through Department of Highways v. Landry, supra, and State, Department of Highways v. LeDoux, supra.

After re-examining all of the evidence we have concluded that the trial judge was correct in finding that the property being expropriated had a value of $.06428 per square foot or $2800.00 per acre, and we thus find no error in the judgment of the trial court awarding defendant the sum of $2145.00 as the value of the subject property.

At the time the order of expropriation was issued plaintiff deposited $46.00 in the Registry of the Court as adequate compensation for the severance damages which it acknowledged would be sustained by defendant. When the case was before us on appeal initially we rejected defendant’s demand that this award of severance damages be increased. Defendant has not applied for a rehearing, and plaintiff does not argue that the award of severance damages made by the trial court should be modified. We, therefore, affirm the award of $46.00 made by the trial court as severance damages.

Our conclusion is that we erred in increasing the award made by the trial court when the case was before us originally. For the reasons herein assigned, we now affirm the judgment which was rendered by the trial court. The costs of this appeal are assessed to defendant-appellant.

Affirmed.

FRUGÉ, J.,

dissents thus: In my opinion, a careful study of the record shows ample believable expert evidence to sustain a minimum award of $20.00 per front foot for the entire length of 228 front feet.

SAVOY, J., dissents being of the opinion that the award is inadequate. 
      
      . Heretofore, the author of this opinion has consistently disagreed with this statement of the law, but now concedes that it represents the views of a majority of this court.
     