
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Earless A. BABIN.
    No. 10201.
    Court of Appeal of Louisiana, First Circuit.
    March 10, 1975.
    Rehearing Denied May 20, 1975.
    Johnie E. Branch, Jr., Charles E. Pilcher and Alva Jones, Baton Rouge, for appellant.
    Aubrey L. Moore, Baton Rouge, for ap-pellee.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   ELLIS, Judge.

This is an expropriation suit, in which the State of Louisiana, through the Department of Highways has taken 12.018 acres out of a 37.828 acre tract belonging to Earless A. Babin. The State deposited $11,379.00 into the registry of the Court as just compensation, and defendant answered, seeking a greater amount. After trial on the merits, judgment was rendered awarding $21,031.00 as the value of the parcel taken, and $9,075.00 as severance damages to the remainder. From this judgment, the State has appealed.

The Babin property, prior to the taking, was an irregular shaped piece of property, fronting on the east side of the 4-H Road in Livingston Parish, about one mile south of U.S. Highway 190. At the time of the taking on July 8, 1965, the property was unimproved. The property had been acquired by Mr. Babin in two equal parcels in 1960, the front parcel for $492.00 per acre and the rear parcel, which was landlocked, for $350.00 per acre.

The tract consisted of a two acre parcel fronting 240 feet on the 4 — H Road and narrowing to a width of about 110 feet in its rear. From there, the property widened out into an oblong parcel containing the remainder of the acreage. The parcel taken cut across the rear acreage in such a manner as to leave a remainder of 20.97 acres to the north, including the highway frontage, and a landlocked parcel of 4.84 acres to the south. The south remainder and the rear of the north remainder were triangular in shape. The two acre parcel with the highway frontage was not disturbed.

Mr. H. Loren Willet, one of the appraisers for the State, using the comparable sales approach, found a value of $2,250.00 per acre for the 2.2 acre parcel fronting on the 4 — H Road, and $550.00 per acre- for the property in the rear, for a total value of $24,546.00 before the taking. He fixed the value of the part taken at $550.00 per acre, for a total value of $6,610.00. He found the value of the remainder to be $13,167.00 after the taking, leaving severance damages of $4,769.00. Total compensation was fixed by him at $11,379.00, the amount deposited by the State.

George Platt, the State’s second appraiser, using the same approach and the same comparable sales, found the value of the parcel taken to be $6,610.00 and severance damages of $2,177.00, for a total compensation of $8,787.00.

Kermit Williams, who testified for the defendant, used the comparable sales approach, but relied on different sales than did the State’s appraisers. He found the property to have an overall value of $1,750.00 per acre before the taking, for a total value of $66,199.00. He valued the part taken at $1,750.00 or $21,031.00 for the 12.018 acres. He was of the opinion that after the taking, the north remainder had a value of $1,600.00 per acre, or $33,552.00, and the south remainder worth $525.00 per acre, or $2,541.00. He fixed severance damages to the remainder at $9,075.00. His total value of just compensation was $30,106.00.

The defendant’s other appraiser, Earl R. Graham, found the parcel taken to have a value of $24,036.00 and severance damages of $10,002.00 to the remainder, for a total compensation of $34,038.00. He used the same comparables as did Mr. Williams.

The trial judge, after hearing all of the appraisers testify, adopted the testimony of Mr. Williams and gave judgment in accordance therewith. In this Court, the State argues that the comparable sales used by Mr. Williams were not truly comparable, and that we should accept the testimony of Mr. Willet.

Without going into detail, we can say that none of the comparable sales used by any of the expert witnesses are truly comparable because too far removed in time, location, size or character from the subject property. All of the experts who testified had to make adjustments in the values reflected by their sales in order to reach a conclusion as to the value of the subject tract. After hearing their testimony, the trial judge accepted that of Mr. Williams, and we find no manifest error in his decision.

The judgment appealed from is therefore affirmed, with the State to pay such costs as it may be liable for under the law.

Affirmed.

BARNETTE, J., dissents with written reasons.

BARNETTE, Judge

(dissenting).

I respectfully dissent.

The land in question before the taking for highway construction consisted of 37.82 acres of unimproved rural property. It was acquired by the present owner, Earless A. Babin by purchase evidenced by two deeds being the front and rear halves respectively, on January 23 and 26, 1960. The two deeds were filed for record at the same time. The purchase price as shown by the deeds was $492 per acre for the front half and $350 per acre for the rear half. The combined acreage was 36.6 acres according to the deeds and 37.828 acres according to the Highway Department survey. The aggregate purchase price was $15,405.00.

There is no dispute that the value of the property was enhanced by the plottage of the two parcels. The rear half was landlocked before it became a part of the whole. Thereafter the entire tract was very irregular in shape, having a frontage of 240 feet on the 4 — H Club Road.

The highest and best use of the property is for residential use. However, at the time it was purchased by Mr. Babin it was unimproved and except for some timber cutting was in the same condition in 1965 when the Highway Department took 12.018 acres. Photographs filed in evidence show it to be heavily wooded with brush and palmetto palms and small timber.

In expropriation proceedings the landowner has the burden of proof of the value of the land at the time of the taking. He is required to discharge that burden with convincing proof, that is to a legal certainty and by a preponderance of evidence. Where his reliance is upon the opinions of experts their opinions must be supported by good reasons and sound logic based on specific factors and not mere speculation. LSA-R.S. 48:453; Parish of Iberia v. Cook, 238 La. 697, 116 So.2d 491 (1959); State, Through Department of Highways v. Monsur, 258 So.2d 162 (La.App. 3d Cir. 1972), writ refused 261 La. 463, 259 So.2d 914, (1972); State ex rel. Sewerage District No. 3 v. Bourgeois, 232 So.2d 872 (La.App. 4th Cir. 1970); State, Through Department of Highways v. New Orleans & Northeastern Railroad Company, 194 So.2d 429 (La.App. 1st Cir. 1966), writ refused 250 La. 261, 195 So.2d 144 (1967); State, Department of Highways v. Shelton, 192 So.2d 161 (La.App. 2d Cir. 1966), writ refused 250 La. 16, 193 So.2d 528 (1967).

It is my opinion that the landowner has not discharged the burden of proof in this case which the law clearly imposes upon him.

It seems incredible to me that unimproved land worth $15,405 in 1960 would increase in value to $66,000 in 1965 without any improvements having been made upon it nor any development in the area. Such phenomenal increase in value cannot be explained or justified merely by the unsupported judgment of an expert appraiser. This calls for a clear and convincing demonstration of causes and factors, circumstances or conditions which any reasonable person could recognize as having a bearing on the enhancement in value of the property. Mr. Williams did not make any such demonstration. It is of great significance, I think, that Mr. Williams apparently gave no consideration to the purchase price paid by Mr. Babin for the property only five years before. I can think of no use of comparable sales which does not include the sale to Mr. Babin of the very property in question.

The before-taking appraisal by H. Loren Willet used the comparable sales approach, as did Williams and the other appraisers, but he did include among them the two sales by which Mr. Babin acquired the property. His appraisal for the whole, before-taking was $24,546, an increase of some $9,000 on a $15,000 investment in five years. Even this seems quite improbable in the absence of improvements or other factors directly bearing upon real estate values in the area; but is obviously more realistic than an increase of $55,000.

In State of Louisiana, Through Department of Highways v. Clement, 311 So.2d 5, a companion case this day decided, we said:

“The opinions of all experts regarding value of property in expropriation proceedings, when well supported by evidence and grounded on substantial and logical reasoning, should be given consideration by the Courts. If they are equally well grounded and reasoned they are entitled to equal consideration. Lafayette Airport Commission v. Roy, 265 So.2d 459 (La.App. 3rd Cir. 1972), writ refused 262 La. 1159, 266 So.2d 444 (1972) ; Parish of East Baton Rouge v. S. & H. Heating Company, Inc., 216 So.2d 360 (La.App. 1st Cir. 1968).”

Incidentally the same four appraisers testified in both cases.

In this case the majority has observed that none of the comparable sales used by any of the expert witnesses are truly comparable for the reasons stated. This seems to be a compelling reason to give prime consideration to the sale by which the property in question was acquired. Certainly no other sale is equally comparable for evidentiary purposes.

It is my opinion that Mr. Williams appraisal is utterly unrealistic and unsupported by any convincing evidence or reason. The appraisal of Mr. Willet, which took into account the purchase price of the property along with other considerations, is more soundly based and should have been given consideration by the Court.

The judgment fixing compensation based on the appraisal of Mr. Williams to the exclusion of all others was manifestly erroneous in that there is no evidence in the record to justify or support the unrealistic conclusion of that expert.

The effect of the judgment, which the majority has affirmed, results in a gross over-compensation to a landowner at the State’s expense. I cannot concur and therefore respectfully dissent.  