FOURNET, Chief Justice.
This is a sequel to the action of this Court, upon our conclusion that the record was devoid of material facts necessary to a determination of this matter since the evidence was inconclusive as to whether the property appropriated by the defendant for which plaintiff claimed compensation is subject
Upon remand of the case it was stipulated by agreement that the subject property is approximately as shown on a plat dated 3-25-58, marked "D-A," prepared from data collected by the Corps of Engineers, U. S. Army, the subject area being crossed by a north-south line bearing numerals said to indicate land elevations, with the line extending out into the Lake; this shows the elevations of the property concerned to be 2.6 feet on the 341 foot dimension, 2.5 feet nearer the water's edge, 2.8 feet at the water's edge, and 0.2 feet beyond the water's edge—these elevations being based on a Corps of Engineers' survey of January 9, 1948. It was also stipulated that the property lies north of the present north toe line of the new Pontchartrain protection levee (i. e., between the levee and the water's edge of Lake Pontchartrain) in Jefferson Parish. There is also in the record the testimony of two civil engineers. One of these, Mr. Francis B. Grevemberg, Sr., called by the plaintiff, testified that the normal tide in Lake Pontchartrain is .8 of a foot above sea level, that the tide rises once a day and falls about twelve hours later and the normal tide variation does not exceed four or five inches; that at normal high tide no point of the property would be under water and the land at the water's edge (its highest elevation) would actually be about two feet above the Lake's normal high tides, Mr. W. F. Calongne, a second engineer and a surveyor as well, also called by the plaintiff, testified to the same effect, adding that he made a survey and set the pipes to outline the boundaries of the property in 1951, and repeatedly stated that there is a stepdown of two feet more or less onto the Lake bottom. These witnesses testified from their personal knowledge, as did two lay witnesses (all had been many times on the land), that, eliminating storms and unusual tidal conditions, the property is high, dry, and never covered by normal high tides; that grass or scrub growth, as distinguished from seaweed or marsh reeds, cover the area.
The defendant, relying on a chart
Counsel for the defendant, obviously realizing that the evidence relied on fails to support its claim within the purview of Article 451 of the Revised Civil Code,
In any event, conceding defendant's contention to be sound, we are not impressed with the evidence relied on in support there of. The chart introduced by the defendant, unexplained by an expert, is of little value to this Court in determining any feature of this case. And while Hart's whole testimony is based on the chart, he did not prepare it, he had neither studied the weather conditions existing at the time the recordings were made nor was he aware of any unusual occurrences which might have caused the variations in the water surface elevation. He does not show what causes the abnormal elevations indicated, saying merely that the chart refers to average tides and that the elevations given do not include storm tides or excessively high winds; that while the gauge records peaks of water level and is affected by wind conditions, yet it does not register waves; and from his testimony there is nothing to show that storms or unusual weather conditions were not a factor in the recordings. In fact, there is the notation on one of the peak elevations in 1947: "Hurricane 19 Sept. 98 Max."
This brings us to a consideration of the claim of plaintiff-appellee, as urged in its answer to the appeal, i. e., that the trial judge, in fixing the just compensation due plaintiff for its property, erroneously used the market value thereof at the time of the taking, March, 1949, instead of fixing the value of the land as of the date of its lawful expropriation, which was the date on which defendant filed its answer to the instant suit (March 19, 1958) and therein incorporated its suit for expropriation, as was held in the case of Koerber v. City of New Orleans, 228 La. 903, 84 So.2d 454—at which time the property is said to have had a market value of $10,530; and in the alternative,
Under the particular facts of this case, the rule of the Koerber case is not controlling, and we think applicable instead the jurisprudence holding in effect that where a property owner, with full knowledge that its property has been taken possession of by a public body for the purpose of constructing public works, stands by without resistance or complaint, as was the case here,
However, we think the trial judge erred in allowing interest from the date of judicial demand; the rule appears to be well settled that the interest or damages for delay to which the owner of property is entitled in case payment of compensation does not accompany the taking of his property for public use will be computed from the time of the taking.
The cases relied on by the defendant-appellant, Makofsky v. Dept. of Highways, 205 La. 1029, 18 So.2d 605, Harrison v. Louisiana Highway Commission, 202 La. 345, 11 So.2d 612, and Gravity Drainage District No. 1 of Rapides Parish v. Key, 234 La. 201, 99 So.2d 82, are inapposite from a factual or legal standpoint. In fact, the Gravity Drainage District case supports the view reached above.
For the reasons assigned, the judgment appealed from is amended by allowing interest from the date the property was taken by the defendant, that is, March, 1949, and, as thus amended, the judgment is affirmed.
HAMITER, J., concurs in part and dissents in part, being of the opinion that the judgment appealed from should be affirmed.
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