
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Henry G. NEYREY, Jr., et al.
    No. 4413.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1970.
    Rehearing Denied Dec. 7, 1970.
    Order Recalling Refusal of Rehearing Dec. 9, 1970.
    Writ Refused Dec. 14, 1970.
    D. Ross Banister, Chester E. Martin, Jesse S. Moore, Jr., Johnie E. Branch, Jr., Baton Rouge, Jesse S. Guillot, New Orleans, for plaintiff-appellant.
    Soloman S. Goldman, New Orleans, for defendants-appellees.
    Before REDMANN, TAYLOR and BARNETTE, JJ.
   TAYLOR, Judge.

This is a suit for expropriation by the State, through the Department of Highways, in order to obtain the land necessary for the construction of an overpass on Cleary Avenue to carry vehicular traffic across Interstate Highway 10. The value of the land actually expropriated was agreed upon by the parties. The sole issue determined by the trial court was whether severance damages should be allowed.

After trial on the merits, the lower court rendered judgment in favor of defendants in the sum of $74,191.67 in addition to the amount already on deposit in the registry of the court together with interest. The State has appealed devolutively to this court.

The judgment of the lower court that exceeded the amount deposited by the Department was not an excess for the land taken but was for severance damages suffered by remaining lands. Mover contends that because of this fact the Department not having deposited this amount, the appeal should be dismissed.

We conclude that mover’s contention is without merit on the authority of the Supreme Court in State, Department of Highways v. Holmes, 251 La. 607, 205 So.2d 416 (1967) which held that the making of the deposit was not essential to the validity of the appeal.

Motion to dismiss denied.

ON APPLICATION FOR REHEARING

PER CURIAM.

On December 7, 1970 we refused an application for a rehearing of our November 2, 1970 denial of a motion to dismiss this appeal. We were incorrect in taking that action. Under Rule XI, Section 6 of the Uniform Rules, Courts of Appeal the application should not have been considered because the judgment denying the motion to dismiss did not finally dispose of the appeal.

Accordingly, our refusal of the application for a rehearing is now recalled and the application is not considered.

Application not considered.  