
    LAKE CHARLES HARBOR AND TERMINAL DISTRICT, Plaintiff-Appellant, v. PHOENIX DEVELOPMENT COMPANY, INC., Defendant-Appellee.
    No. 93-200.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 1993.
    
      Michael Kenneth Dees, Lake Charles, for Lake Charles Harbor & Terminal Dist.
    John Michael Veron, Lake Charles, for Phoenix Development Co., Inc.
    Before DOMENGEAUX, C.J., and SAUNDERS and WOODARD, JJ.
   WOODARD, Judge.

This case concerns the trial court’s denial of plaintiffs request for entry upon defendant’s land.

FACTS

Plaintiff, Lake Charles Harbor & Terminal District, is interested in obtaining land owned by defendant, Phoenix Development Company, Inc., for purposes of expanding the Port of Lake Charles. However, the District has not yet made an offer or instituted expropriation proceedings. It is concerned that the property may be environmentally contaminated, and the District contends that it cannot make an accurate offer to Phoenix until it has tested the land for environmental hazards.

The District requested permission from the landowner to enter upon the land to inspect and survey the property. When permission was refused, the District filed a petition for entry upon the land and inspection of the property, citing a need to test the soil and conduct a geological and environmental audit prior to expropriating. On October 7, 1991, the trial court granted an ex parte order allowing the District 60 days “to conduct geological and environmental studies and surveys.” Phoenix filed a motion to modify the order on November 8, 1991.

A hearing on the motion was held February 20, 1992. At this time, it was discovered that representatives of the District had already been on the Phoenix property once, pursuant to the court order, to conduct a survey. The District wished to go on the land again for further testing. It is unclear whether Phoenix understood at the hearing that the District was seeking to go on the land a second time. The parties agreed to work out a stipulation to present to the court at a later date, however, no stipulation was ever agreed upon. As a result, no judgment on the motion to modify the order was ever entered.

On December 23, 1992, the District filed a rule to show cause why a judgment should not be signed, or alternatively, why the court should not issue an order compelling Phoenix to comply with a request the District made on December 9, 1992 for entry upon the land for inspection and testing. The hearing on the rule was held February 1, 1993. The trial court denied the District’s requests, finding no authority for the District to go on the land without Phoenix’s permission. The District then sought review of the trial court’s ruling by supervisory writ application. After examining the writ application, this court decided to call the case up for full review.

LAW

The issue we must decide is whether the trial court properly denied the District’s request to enter the Phoenix property for the purpose of conducting environmental tests. The District argues that these tests are necessary in order for it to make an accurate appraisal of the property.

When the state or its political corporation or subdivision wishes to obtain property, La. R.S. 19:2.2 requires it to do the following before exercising the rights of expropriation:

(1) Provide the owner whose property is to be taken with the following information from its appraisal or evaluation as to the amount of compensation due the owner for the full extent of his loss:
(a) The name, address, and qualifications of the person or persons preparing the appraisal or evaluation.
(b) The amount of compensation estimated in the appraisal or evaluation.
(c) A description of the methodology used in the appraisal or evaluation.
(2) Offer to compensate the owner an amount equal to at least the lowest appraisal or evaluation.

If the landowner then disputes the value of the property, expropriation proceedings are begun and the issue for the court’s determination is the property’s true market value. La.R.S. 19:2; State, Dept. of Transp. & Dev. v. Dornier, 503 So.2d 71 (La.App. 5 Cir.1987).

In this ease, the District has conducted an appraisal, but refuses to make Phoenix an offer because the appraisal does not take into account possible environmental contamination. The District argues that it must physically go onto the Phoenix property and conduct environmental tests in order to determine the property’s true market value, citing La.C.C.P. arts. 1461-1463 as authority for the court to grant it permission for entry upon the land.

The articles cited by the District give a court authority to allow entry upon land pursuant to discovery between parties. Phoenix argues that because an expropriation suit has not yet been filed, these discovery articles do not apply. We agree.

We find the trial court has no authority to allow the District onto the Phoenix property prior to the filing of an expropriation suit. In the absence of legal authority, no one has the right to enter private property without the property owner’s permission; even for the purpose of potential expropriation.

We understand the District’s desire to obtain an accurate appraisal of the land, however, we are not convinced that the only way it can do so is by physically going onto the property. The primary tool of analysis for determining the market value of property is the study of comparable sales. State, Department of Highways v. Crow, 286 So.2d 353 (La.1973). Any environmental problems in the area will presumably be reflected in the values of comparable property that has been sold. In the event there are no comparable sales, there is nothing which indicates that an appraisal cannot take the contingent liability of possible contamination into account in determining the property’s value. Such an appraisal should provide a fair market value upon which the District can make its offer.

If Phoenix disputes the value of the land after the District has made an offer, then the fair market value of the property will be an issue to be resolved in the subsequent expropriation proceedings. At that time, the District may argue the relevant discovery articles as authority for the court to allow it on the property for environmental testing.

In light of these considerations, we affirm the order of the trial court denying the District’s request to enter upon the Phoenix property. Costs of this appeal are assessed to plaintiff-appellant, the Lake Charles Harbor & Terminal District.

AFFIRMED.

DOMENGEAUX, C.J., concurs.

SAUNDERS, J., dissents and assigns reasons.

SAUNDERS, Judge,

dissenting.

I respectfully dissent. The legislature has mandated that an expropriating authority make an appraisal or evaluation of the property to be taken and offer to compensate the owner an amount equal to at least the lowest appraisal or evaluation. LSA-R.S. 19:2.2. In order to make an appraisal or evaluation, it is often necessary that the appraiser enter upon the property which is to be taken. The regulation of the entry upon property is governed by LSA-C.C.P. arts. 1461, 1462 and 1463. These articles give the court authority “to permit entry upon designated land ... for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon-” LSA-C.C.P. art. 1461. Article 1461 also provides that “[a]ny party may serve on any other party a re-quest_” In the case before us, the plaintiff has filed a petition for ex parte order for entry upon land and inspection of property. This petition makes the plaintiff and the defendant parties to an action and Article 1461 is therefore applicable and the court has authority to permit entry, inspection, etc.

The defendant argues that it is not enough that it be made a party to a petition for an order to enter the property, but rather that the expropriation proceeding must have commenced and it must be a party to the expropriation proceeding. This, however, is simply not the case as LSA-C.C.P. art. 1461 refers to “any party” and makes no requirement as to any particular stage of the proceedings at which the request may be made.

Furthermore, LSA-C.C.P. art. 1463 makes it abundantly clear that the legislature intended that no particular stage of the proceedings should have been reached prior to the court having authority to grant an order as it authorizes an independent action against a person “not a party” for permission to enter upon land. Therefore, under Article 1463, it is not necessary that the defendant be made party to an action at all in order for the court to have authority to grant permission to enter and inspect, but only necessary that the plaintiff shows a need to enter for a legally recognized purpose. The plaintiff is a subdivision of the state with expropriation authority which has shown that it intends to expropriate the property in question and that it is in the process of making an appraisal and/or evaluation of the property as required by LSA-R.S. 19:2.2 and that it is both reasonable and necessary that it be allowed to enter the property in order to properly make its evaluation and/or appraisal. The plaintiff has a legal duty to make this evaluation and it is necessary to enter the property to fulfill its duty properly.

Under these circumstances, I feel that the district court had the authority to authorize entry upon the property and that we should reverse this decision and authorize the requested inspection.  