author: WATKINS, Judge.

text:
    Dorothy Lozano HUBBS et al. v. Carlo CANOVA et al.
    No. 13548.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Granted Feb. 20, 1981.
    Hamlet D. May, Baton Rouge, for plaintiff-appellant, Dorothy Lozano Hubbs, et al.
    Patrick W. Pendley, Plaquemine, for defendant-appellee, Carl Canova, et al.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for a declaratory judgment to set aside a tax sale to defendants on the ground the sale was made improperly. Plaintiffs are the class of taxpayers whose interests in certain land was sold. Defendants filed exceptions of prescription and res judicata, both of which exceptions were sustained. We reverse, holding that both exceptions should have been overruled, and remand.

In 1856 and 1859 Charles Lozano, who was married to and living with Marguerite Breaux Lozano, acquired ownership of the north one-half of Section 52 and the northwest quarter of Section 48, T 8 S, R 11 E, in Iberville Parish, Louisiana, which made one contiguous tract. During his life, he sold three parcels from this tract. Charles Loza-no had been previously married, as had Marguerite Breaux. Children were born of Charles Lozano’s marriage to Marguerite Breaux Lozano, as well as of their previous marriages. Marguerite Breaux Lozano died in 1862, predeceasing her husband, and her community interest in the property in question descended to her children. No succession proceeding was ever opened for her. After Charles Lozano died, his interest in the tract in question was bought by his son, Louis Lozano, by instrument dated July 6, 1878, and duly recorded. Louis Lozano was the son of Charles Lozano’s second marriage. After Louis Lozano died, his 390/672 interest in the tract in question (that interest representing the interest he had acquired from his father and small interests he had inherited from his mother and deceased siblings who had died without issue) was sold to A. Wilbert Sons Lumber and Shingle Co. by estate sale dated March 16, 1905, and duly recorded, A tract of 30 acres in the northwest quarter of Section 52 was excepted from the sale to Wilbert Sons, and sold to Joseph A. Grace at the same estate sale. In 1957, the Aluminum Co. of America obtained mineral leases from the descendants of Marguerite Breaux Lozano, and, also, a lease from Wilbert Sons.

In 1958, the descendants of Marguerite Breaux Lozano, and Wilbert Sons, signed a document styled “Stipulation of Interests” showing the fractional interests owned by each party in the tract in question, which formed the basis of division orders used by Alcoa for distribution of royalties, which instrument was filed of record in Iberville Parish.

In 1968, the Assessor of Iberville Parish entered an assessment on the tax rolls under the following name and description:

“Heyeau, Lester F., et al 128% Part NW/4 Section 43;
2663 E. Lee Blvd. Part NE/4 Section 52;
New Orleans, LA Part NW/4 Section 52;
East of Bayou Gross
Tete T. 8 S. R. 11 E.
Cut Over Lands 128% Ac. 200"

The proper spelling of the name was not “Heyeau”, but “Hezeau”. Lester F. Hez-eau was indeed one of the co-owners of the Lozano interest.

No Lozano heir received any notice or information about the assessment or the tax debt, not even Lester F. Hezeau in whose name the property was assessed.

By instrument dated June 25,1969, under Sheriff's sale of that date, and recorded on July 14, 1969, the following described property, which had been advertised in the name of Lester F. Heyeau, et al, was sold to Carlo Canova and Patrick Pendley, present defendants, for a price of $19.67:

“Ward 7 — Assessment 6392 A
Part NW/4 Section 43; Part NE/4 Section 52; Part NW/4 Section 52; East of Bayou Grosse Tete T. 8 S. R. 11 E. Cut Over Land 128% acres 200”

Canova and Pendley petitioned for a monition by petition filed August 19, 1977. The property was described as follows in the petition:

“Part NW/4 Sec. 43, part NE/4 Sec. 52, part NW/4 Sec. 52, E of Bayou Grosse Tete, T-8-S, R-ll-E.”

Notice of the application for monition, was published in the Greater Plaquemine POST on August 25,1977, and September 29,1977. On October 31,1977, a judgment was signed confirming and homologating the sheriff’s sale for delinquent taxes.

Defendants base their plea of prescription on the prescriptive or peremptive period of 5 years (if no notice of sale is given) which was provided for by Art. 10, Sec. 11 of the Louisiana Constitution of 1921. (See also Art. 7, Sec. 25, of the present Constitution.)

The prescriptive period provided in the Constitution does , not cure a defect in a tax sale which is absolutely null and void. The following language from Gram Realty Co. v. Northern Homes, Inc., 308 So.2d 502 (La.App. 1st Cir. 1975) applies:

“The prescriptions of three and five years cannot cure a defect in a tax sale which is absolutely null and void. Being void, no peremptive or prescriptive period can breathe life into something that never existed. As was said by the Court in Jackson v. Bernstein, 39 So.2d 120 (La.App. 2nd Cir. 1948):
‘It was said, and logically so, in the Jackson and Brock cases, supra, and doubtless in others, that where a tax sale is null because the land described could not be identified, the Constitutional peremption has no application.’ ” (308 So.2d 502, 504, 505)

In the present case, the assessment and subsequent tax sale, we hold, are null and void because the names of all co-owners are not given, as is necessary, and the acreage is given as if it were total acreage, without its being indicated that the interest in the tract in question is an undivided interest.

The following guidelines are set forth for the assessment of property in Russell v. Lang, 50 La.Ann. 36, 23 So. 113 (1898):

“There are two ways of legally assessing real property held by two or more parties in indivisión. One and the better way is to assess to each his undivided interest; the other, to assess the property as belonging jointly to the parties, giving the name of each individual owner, followed by the description of the property. Or, if a firm or business company, corporation, or association owns the property, it may be legally assessed in the name of such firm, company, corporation, or association. And in placing the names of taxpayers on the assessment rolls, while it is better to give the Christian or baptismal names, it suffices to use the initials, followed by the family or surname, thus, ‘J. R. Russell.’ This designation of the name of the owner, followed by a correct description of the property, fulfills the requirements of the law. Douglas v. Dakin, 46 Cal. [49] 51. And if there be two joint owners, and the name of one only is used, followed by an accurate description of the property, this suffices to bind the interest of the one whose name is used, for his share of the taxes, but, of course, cannot bind the other individual owner whose name is not used, nor his interest in the property. The cases of Thibodaux v. Keller, 29 La.Ann. [508] 509, and Hayes v. Viator, 33 La.Ann. [1162] 1164, cited in opposition to this view, do not sustain the pretension.”
(23 So. 113, 115, 116)

Here, no co-owner’s name was listed but that of Lester F. Hezeau, and it was misspelled. The quotation from Russell v. Lang shows that even if the property description is correct, only the interest of the co-owner whose name is given is bound, and not the interest of the co-owner whose name is not given. As only Lester F. Hezeau’s name was listed, only he, in his name only, can be bound by the sheriff’s sale, provided the property description is correct. But, here, as we shall demonstrate, the property description is erroneous.

In Grieshaber v. Cannon, 346 So.2d 166 (La.1977), a tract of land was described as follows on the assessment rolls and in the tax deed:

“ ‘13.53 Acres. Und. Vi Int. Lot 1 of SW 14 of SW 14, Sec. 33-10-3’ ”
(346 So.2d 166, 168)

The Supreme Court of this State quoted Russell v. Lang, supra, approvingly, and stated that the description was proper, as the name of the undivided owner was set forth, and it was followed by a description of his interest. In the present case, the names of all undivided owners are not set forth, and the description is defective, because the description fails to indicate an undivided interest is involved. Defendants contend the use of the word “Part” indicated an undivided interest, but “Part” is generally used on assessment rolls and in other legal descriptions to indicate a parcel of the whole (a portion of the surface area of the tract), not an undivided interest in the whole. If we read the entire description of the Lozano tract in the present case, we see that it incorrectly indicates that a fragment of the three quarter sections is involved, rather than an undivided interest in the said three quarter sections. The description is clearly defective, and cannot be considered sufficient to put the Lozano descendants on notice that their property was being assessed and sold.

Defendants contend that the tax sale cannot be set aside on the basis of the following quotation from Sec. 2181 of Title 47 of the Revised Statute:

“No tax sale shall be set aside or annulled for any error in description or measurement of the property assessed in the name of the owner provided the property sold can be reasonably identified.”

However, a simple reading of the statute will show that the quoted language does not apply. The property sold was not “assessed in the name of the owner” under the Russell v. Lang test and it could not “be reasonably identified.” The description is defective, as we have seen, and constitutes no description at all.

Defendants’ plea of res judicata is founded upon the decree in the monition proceeding purporting to homologate the sheriff’s sale. However, the judgment flowing from the monition proceeding was a nullity, as we shall see.

A sheriff’s sale may be confirmed by a monition decree under the authority of LSA-R.S. 13:4941 et seq. The procedural aspects of monition proceedings are extended to tax sales by LSA-R.S. 13:4951, which reads as follows:

“The provisions of R.S. 13:4950 shall be extended to tax sales; provided, that such tax sales are made and recorded at least three years previous to the application for monition. The effect of such proceedings and the judgment rendered therein shall be to confirm the tax sale and to cure all nullities therein, in like manner, and with the same effect as if the proceedings had been had under, and in accordance with, R.S. 47:2228.”

A proceeding to confirm a tax sale under the provisions of LSA-R.S. 47:2228 culminates in a judgment “quieting and confirming the title”. Thus, the present monition proceeding, if not a nullity, culminated in a judgment which definitively “quieted title”. However, the proceeding was stricken with nullity, as no notice of assessment or of the tax debt was ever received by the Lozano descendants, if the allegations of plaintiffs’ petition in the present suit are true, as we must assume for purposes of considering the exception of res judicata. See LSA-C. C.P. art. 931.

Notice of delinquency and of intention to sell is jurisdictional in nature, and a monition proceeding and judgment following a tax sale made without the giving of such notice before the tax sale had taken place is stricken with nullity. The following quotation from Cook v. Morgan, 142 So. 279 (La.App. 2nd Cir. 1932) is controlling:

“It has been frequently held that notice of delinquency and of intention to sell is jurisdictional in its nature, and might be assimilated to a citation in a suit to obtain judgment; and that a tax sale made without such notice, given as required by the organic law of the state, is so radically and fundamentally defective that it cannot be validated, cured or perfected by monition proceedings. Becker v. Dupuy, 161 La. 392, 108 So. 782; McCrory v. Bradford, 130 La. 212, 57 So. 892 and cases therein cited; In re Interstate Land Co., 118 La. 587, 43 So. 173; Jones v. Curran, 156 La. 1055, 101 So. 415; [Tensas Delta] Land Co. v. Sholars, 105 La. 357, 29 So. 908; Johnson v. Martinez, 48 La.Ann. 52, 18 So. 909; Thibodaux v. Keller, 29 La.Ann. 508; Fix v. Dierker, 30 La.Ann. 175; Kearns v. Collins, 40 La.Ann. 453, 4 So. 498; Cordill v. Quaker Realty Co., 130 La. 933, 58 So. 819.” (142 So. 279, 281)

We, thus, see that the judgment that purports to homologate and confirm the tax sale in the monition proceeding is a nullity, and cannot constitute the basis of a plea of res judicata in the present suit.

The monition proceeding was also flawed because the full property description as set forth in the tax sale was not set forth in the monition, and because notice of the proceeding was not published at the interval set forth in the Revised Statutes. Whether these flaws in the proceeding are sufficient to set aside the judgment confirming and homologating the sale we need not decide, as the judgment is clearly a nullity because of failure to give notice of tax delinquency and intention to sell.

Accordingly, the judgment of the trial court sustaining defendants’ plea of prescription and res judicata is set aside, the exceptions overruled, and the case remanded, all costs to be paid by defendants.

REVERSED AND REMANDED.

      . A conflicting line of jurisprudence indicates that an assessment which is defective because it is in the wrong name is cured by the 5 year prescriptive period set forth in the Constitution. That position was last expressed in Gulotta v. Cutshaw, 283 So.2d 482 (1973) in the following passage:
      “(13) The property was sold for non-payment of taxes where the person to whom the property was assessed was not the owner. In Weber’s Heirs v. Martinez, [125 La. 663, 51 So. 679 (1910)], supra, this court stated:
      ‘It has been held that it is immaterial for the purposes of the question to be here determined whether an assessment has been made in the name of one person or another, or in no name, or whether the owner, not in possession, has been notified of the intention to sell or has not been notified, or whether the sale has been advertised or has not been advertised. Canter v. Williams, 107 La. 77, 31 So. 627; Crillen v. N. O. Terminal Co., 117 La. 349, 41 So. 645; Little River Lumber Company v. Thompson, 118 La. 284, 42 So. 938.’
      However, as we state below in this opinion, Russell v. Lang, supra, was quoted in Grieshaber v. Cannon, infra, as the definitive jurisprudence on the assessment of property held in indivisión and the naming of the co-owners. Grieshaber was decided in 1977 and, thus, is of more recent vintage than Gulotta, which, if taken without qualification, would militate in favor of holding that the assessment was not subject to attack after the Constitutional per-emptive period had run for failure to name all co-owners. As Grieshaber is a more recent case, and restated approvingly a complete and definitive exposition of the rules on assessing owners in indivisión, we follow Russell v. Lang and Grieshaber.

      There is also jurisprudence which declares that a tax sale made under an assessment in which the description is so defective that resort must be had to evidence outside of the assessment roil or sale instrument in order to unmistakably identify the property may be protected by the constitutional peremptive period. This principle was followed in Jackson v. Irion, 196 La. 728, 200 So. 18 (1941) the court stating:
      “The jurisprudence applicable to cases of this kind was concisely stated by this court, through the Chief Justice as its organ, in a very recent case, that of Tillery v. Fuller, 190 La. 586, 182 So. 683, 704, as follows: ‘A tax sale made under an assessment in which the description of the property intended to be. assessed is so defective that resort must be had to evidence outside of the assessment roll in order to identify the property intended to be assessed is protected by the limitation of three years if the assessment was made in the name of the true owner, or owner of record, of the property intended to be assessed, and if the identity of the property intended to be assessed is established unmistakably by such outside evidence. Close v. Rowan, 171 La. 263, 130 So. 350; Gayle v. Slicer, 188 La. 940, 178 So. 498.’ ” (Emphasis added)
      We note that in Jackson v. Irion the property was assessed in the name of the record owner.
      In Yuges Realty v. Jefferson Parish Developers, 205 La. 1033, 18 So.2d 607 (1944) the property was not assessed in the name of the true or record owner and there was also a defect in the description. We do not find the description in Yuges to be nearly as defective as the description in this case, nor did the assessment deal with undivided interests.

       The section quoted apparently means to apply the provisions of LSA-R.S. 13:4941 et seq. to tax sales, not the provisions of 13:4950, as it states.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Al J. RANSOME et al.
    No. 13578.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      G. William Jarman, Baton Rouge, for plaintiff-appellee, State of Louisiana.
    Leon Gary, Jr., Baton Rouge, for defendant-appellant, Noel Gilbert and Robert A. Westerlund GRW Investments.
    James D. Caldwell, Baton Rouge, for defendant-appellant, Al J. Ransome.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an expropriation suit brought by the State of Louisiana against Al J. Ran-some, Noel Gilbert, Robert A. Westerlund and GRW Investments, a Louisiana partnership, to expropriate property on Highland Road in Baton Rouge lying immediately south of the “I — 10” exit ramp. The suit was filed under LSA-R.S. 19:1-14. No answers were timely filed. Hence, the sole issue before the trial court was the amount of compensation. The trial court awarded defendants the amount of $215,553.60, plus $5,000.00 attorney’s fees, and costs. Defendants appeal, seeking an increase in the amount awarded. We affirm.

The trial court’s written reasons for judgment are well stated, and we adopt them as our own:

“The State of Louisiana filed an expropriation suit on July 18, 1979, against Al J. Ransome, Noel Gilbert, Robert A. Wester-lund and GRW Investments, a Louisiana partnership domiciled in East Baton Rouge Parish, composed of Ransome, Gilbert and Westerlund, hereafter called Owners, seeking to expropriate Lot 7, Square 259, Suburb Swart and Square C, Suburb Swart, located in the Parish of East Baton Rouge, Louisiana, for the location of a vocational-technical educational facility. Sherman A. Bernard, Commissioner of Insurance, as re-habilitator of First Republic Life Insurance Company, was made a party defendant by supplemental petition filed on August 16, 1979.

The suit was filed in accordance with LA-R.S. 19:1-14. No answers were timely filed, therefore, the sole issue before this Court is, what compensation is owing to the Owners. R.S. 19:5.

The property sought to be expropriated was previously owned by Pike Burden, who conducted a printing business on Square C & used Lot 7 as a parking lot. The property is located south of Myrtle Street, Baton Rouge, Louisiana, and is defined as:

Lot 7, Square 259, measures 60 feet on Julia Street and 120 feet on St. Charles Street, being a corner lot consisting of 7,200 square feet.
Square C measures 335.5 feet on Highland Road, 332.95 feet on the south side of Julia Street, 300 feet on the west side of Royal Street and 183.6 feet on the north side of Terrace Street, constituting 77,442.3 square feet. Located on Square C is a masonry building of approximately 8720 square feet and a metal building of 1800 square feet.

The law provides that property shall not be taken by the state except for public purposes and with just compensation paid to the owner. In considering just compensation it is necessary to consider the highest and best use of the property. Section 4 of Article 1 of Louisiana Constitution, Marathon Pipe Line Company v. Pitcher, 368 So.2d 994 (La.1979).

Plaintiff’s appraisers consisted of J. Russell Doiron, (MAI) and Thomas Dupree (MAI).

Mr. Doiron issued a primary appraisal on May 1, 1979, to the Facility Planning and Control Department wherein he stated the subject property has an estimated market value of $180,000. In this primary report he made mention of a conversation with Richard Erbland, commercial loan officer of Louisiana National Bank, and Officer of Margate Corporation, a wholly owned subsidiary of Louisiana National Bank. Mr. Erbland (Exhibit D-l) valued the subject property from $150,000 to $200,000. Subsequently Mr. Doiron submitted a final appraisal report dated July 20, 1979, wherein he valued the property at $150,000. His estimate for this valuation was based on a market comparison approach wherein he used the past three sales of the subject property. These sales consisted of:

(1) Sheriff’s sale of the subject property wherein it was valued at $125,000 by appraisers appointed in accordance with law;
(2) Sale from Louisiana National Bank, who acquired the property at the Sheriff’s sale, to Margate Corporation. Inasmuch as Margate Corporation is a wholly owned subsidiary of Louisiana National Bank, he did not consider the sale as an ‘arms-length’ sale, and
(3) Sale from Margate Corporation to G.R.W. Investments’ present owner, dated April 19, 1979, for $150,000.

It was Mr. Doiron’s opinion that since the first and third sales exposed the property to the open market within a five month period, the latter sale constitutes the true estimate of the subject property.

Mr. Dupree estimated the value of the subject property by three methods, the cost approach to value, the income approach to value and the market data approach to value. Each of these approaches required the appraiser to determine the square footage value of the subject property. In determining land value, Mr. Dupree used the following comparables in the immediate area;

(1) Witter-Lipsey properties located west of the subject property and containing 53,585 square feet. This property, zoned M-2, was sold by George Patton Waters to Witter-Lipsey on August 2, 1979, for $79,000, which yielded a price of $1.47 per square foot.
(2) B. L. Miller property located north of the subject property and containing 4,469 square feet. This property, zoned A-4, was sold by Drometal Construction, Inc., to B. L. Miller on May 1, 1979 for $6,000 which yielded a price of $1.37 per square foot.
(3) A land purchase contract on Lot 3, Square A, Suburb Swart wherein the sale is to be passed by February 1,1980, which is zoned M-l and will yield $.72 per square foot.
(4) A land lease by Werner & Stower to Michael Wayne Morrison on Lot 5, Square 259, Suburb Swart which is leased for 24 months at $175.00 per month.

Mr. Dupree testified that the Witter-Lip-sey sale was the best comparable and because the subject property is located on Highland Road, he valued the subject property at $2.00 per square foot.

In his cost approach to value, Mr. Dupree valued the present improvements at $44,-769.00, miscellaneous improvements, as walks, drives, etc., at $1500.00 and the land (84,642.3 square feet @ $2.00 per square foot) at $169,300.00, for a total value of $215,000.00 (See Exhibit P-12, page 20-23).

The income approach to value resulted in an evaluation of $212,700.00. (See Exhibit P-12, page 24-25). The market data approach to value resulted in an evaluation of $207,400.00 (See Exhibit P-12, page 26 & 27). Mr. Dupree testified the highest and best use of the property was for warehouse buildings, as constructed by Witter-Lipsey on property adjacent to the first comparable.

Defendant’s appraisers, John LeJeune and Kermit Wayne Williams, values ranged from $416,287.00 to $451,400.00.

Mr. LeJeune stated that the subject property’s highest and best use would be for the development of a multi-story office building. This opinion was based on the current growth of downtown Baton Rouge which is attributed to the Governmental Complex located north of the subject property. He reasoned that the area of the subject property will develop more rapidly in the future due to the availability of land in the surrounding area. He further stated that in his opinion, the improvements needed to be removed from the premises in developing, therefore, the improvements were of no value. He fixed the value of the property at $5.00 per square foot in Square C and $2.50 per square foot in Lot 7.

Mr. LeJeune used comparables in arriving at his value. These comparables were:

(1) 451 Florida Corporation acquisition of the entire block bounded by Florida Blvd., Laurel Street, North 4th Street and North 5th Street, for the construction of the Louisiana National Bank Building. He average (sic) the lowest acquisition cost of $7.02 per square foot and the highest of $13.69 to arrive at an overall unit of $10.67 per square foot.
(2) American Banks acquisition of the entire block bounded by North Street, Main Street, Third Street and North 4th Street, for the construction of the American Bank Building. The acquisition prices ranged from $8.06 per square foot to $37.70 per square foot, for an overall unit price of $12.33 per square foot.
(3) City National Banks acquisition of the entire block bounded by North Blvd., Convention Street, North 4th Street and North 5th Street for the future construction of a bank building and other facilities. The acquisition paid was $19.48 per square foot.

Considering the unit prices paid for the above comparables, Mr. LeJeune stated it was his opinion that a prudent, informed investor would be justified in paying $5.00 per square foot for Square C and $2.50 per square foot for Lot 7.

Mr. Williams’ estimate of the value of the subject property was based on two methods, cost approach and land value added and income approach. His opinion was that the highest and best use of the property would be for commercial hosts, as motel, food outlets, etc.

In determining the value of the property under the cost approach, Mr. Williams valued the improvements at $58,980.00. He then valued Lot 7 at $2.00 per square foot and Square C at $5.00 per square foot. The square footage value was arrived at by using the following comparables.

(1) 451 Florida Corporation acquisitions for the Louisiana National Bank Building which averaged $12.62 per square foot.
(2) 451 Florida Corporation sale to Ethyl Corporation of 40,640 square feet of property fronting 127 feet on North 4th Street, 320 feet on Laurel Street and 127 feet on North 5th Street which sale was for $13.56 per square foot.
(3) Baton Rouge Bank acquisition of the North Blvd. block for construction of the Baton Rouge Bank which average (sic) $8.85 per square foot.
(4) La. Office Building Corporation acquisitions of property located on North 5th Street and North Street for construction of the Department of Education Building which cost $16.34 per square foot; acquisition of 19,816 from Robert Claitor of property in the area of the Education Building at $16.53 per square foot and the additional acquisition of 14,-652 square feet at $17.06 per square foot. These purchases averaged $16.58 per square foot.
(5) American Bank acquisition of a block of land for the construction of the American Bank Building which cost $12.24 per square foot.
(6) Joseph Canizaro acquisition from Joseph Cavanaugh of 39,936 square feet located in the 600 block of North Blvd. at a cost of $12.25 per square foot.
(7)City National Bank acquisition of a block of land located on North Blvd., North 5th Street, Convention Street and North 4th Street, containing 126,740 square feet at a cost of $19.48 per square foot. (See Exhibit D-8, pages 32-44).

Based on the foregoing comparables, Mr. Williams valued Square C at $5.00 per square foot and Lot 7 at $2.00 per square foot. Considering the improvements at $58,980.00, Mr. Williams valued the total subject property at $460,342.00.

Under the income approach, Mr. Williams valued the improvements at $50,038.00, then added the land values at $5.00 per square foot for Square C and $2.00 per square foot for Lot 7 to arrive at a total price of $451,400.00. (See Exhibit D-8, pages 45-46).

It is well settled that potential use of expropriated property may be deemed its best and highest use for the purpose of determining its value provided that there is a reasonable expectation that the property may be so developed and utilized in the reasonably foreseeable future. State, Through Dept. of Highways v. Champagne, 371 So.2d 626 (1st Cir. 1979).

Mr. Dupree testified that the property was in a ‘static’ neighborhood where demands for land has been limited to that needed by existing commercial business for expansion purposes. Upon request of counsels, the Court visited the subject property and must agree with Mr. Dupree that the property is located in a static area. This Court does not agree with Mr. LeJeune and Mr. Williams’ opinion as to the highest and best use of the property. Development of the property for multi-story offices and/or commercial hosts is not a utilization of the property in the reasonably foreseeable future. The Court agrees with Mr. Dupree that the highest and best use of the property would be for warehouse development.

Inasmuch as the property contains structures that might be adaptable for warehouse space, the Court finds that the ‘cost approach to value’ is the proper method in determining the fair market value of the property. In arriving at a value under the cost approach it is necessary to know the value of the raw land. Considering the various comparables used by the appraisers, this Court does not find the comparables used by Mr. LeJeune and Mr. Williams constitute valid comparables inasmuch as the used comparables are not only removed from the subject property, but are located in the business community of Baton Rouge. It is obvious to the Court that these two appraisers are in agreement with the Court’s conclusion since they arbitrarily reduced their comparables without any basis, other than noting the subject property was not in a growth area as the comparables. This Court finds that the best reliable comparable is the Witter-Lipsey tract valued at $1.47 per square foot. Increasing this square footage value to $2.00 a square foot because of its location on Highland Road is accepted by the Court, thus the expropriated property has a fair market value of $2.00 per square foot.

In considering the replacement cost of the existing structures, Mr. Williams testified and his report (Exhibit D-8, page 29) reflects, that cost data he used was taken from general construction cost information maintained in his office files. Whereas, Mr. Dupree testified the cost data he used was compiled by Marshall Valuation Service. The Court accepts the Marshall Valuation Service data used by Mr. Dupree as the better evidence for cost data. The value of the improvements is fixed at $46,269.00 (See Exhibit P-12, pages 20-23 for computations).

This Court finds the subject property to have a value of:

A.) Structures $46,269.00
B.) Land (84,642.3 sq. ft. <§> $2.00 sq. ft.) 169,284.60

for a total market value of $215,553.60.

Defendant, Owners, have made a claim for attorney fees for the services of their attorney in the expropriation proceedings. R.S. 19.8 provides:

‘(A) ... If the highest amount offered is less than the compensation awarded, the Court may award reasonable attorney fees.’

The State had previously offered Owners $160,000.00 on May 4,1979, and subsequently offered $180,000.00 on June 15,1979. On November 29, 1979, the trial date, approximately four (4) months after filing the expropriation suit, the State supplemented their offer to $215,000.00, subject to acquiring all of the property in Square 259. Even though the last offer is only $553.60 less than the market value fixed by this Court, attorney fees are being awarded inasmuch as the November 29, 1979, offer is subject to other acquisitions and was not made until trial date.

R.S. 19:12 states that:

‘If a tender is made of the true value of the property to the owner thereof, before proceeding to a forced expropriation, the cost of the expropriation shall be paid by the owner.’

The Court believes that R.S. 19:8 and R.S. 19:12 must be construed in ‘pari-materia’, thus the tender must be made before filing of the expropriation suit.

In considering reasonable attorney fees the Court must first consider these factors in awarding attorney fees, namely: (1) the ultimate result obtained; (2) responsibility incurred; (3) the importance of the litigation; (4) the amount involved; (5) the extent and character of the labor performed; (6) the legal knowledge and attainment and skill of the attorney; (7) the number of appearances made; (8) the intricacies of the facts and law involved; (9) the diligence and skill of counsel; and (10) the Court’s own knowledge.

This Court was highly impressed with the legal knowledge and skill of Owner’s attorney in representing the Owners. It was perhaps the best presentation this Court has had an occasion to receive. The attorney fees are fixed at $5,000.

There is no absolute rule by which the amount of the expert witness fee can be fixed, as such, in determining expert witness fees the Court considers the time consumed in preparation, the effort involved and the extent of examination of matters on which the witness expresses an opinion. Dixie Elec. Membership Corp. v. McDowell, 280 So.2d 306 (1st Cir. 1973). The Court in considering the foregoing guides together with regards to the time spent in their Court appearances, fix the following expert witness fees:

(1) John LeJeune $850.00
(2) Kermit Wayne Williams 1,250.00

Legal interest is awarded the Owners from date of judgment of expropriation. Recreation & Park Commission v. German, 202 So.2d 469 (1st Cir. 1967). Judgment is rendered herein vesting title of the following described property in the name of the State of Louisiana, free and clear of all liens and encumbrances upon its payment to the Owners, G.R.W. Investments, a Louisiana partnership, composed of Al J. Ran-some, Noel Gilbert and Robert A. Wester-lund the sum of $215,553.60, together with attorney fees in the sum of $5,000 and all cost, including expert witness fees and legal interest from date of judgment of expropriation, said property being:

(1) A certain parcel or square of ground located in that subdivision known as SUBURB SWART of the Parish of East Baton Rouge, Louisiana, identified as Square C of said subdivision consisting of Lots One (1), Two (2), Three (3), Four (4), Five (5), Six (6), Seven (7), Eight (8), Nine (9), Ten (10) and Eleven (11) said property having frontage upon the Highland Road, Julia Street, Royal Street and Terrace Avenue all as is shown on the map or plan attached hereto and marked Exhibit “A”.
(2) A certain lot or parcel of ground located in SUBURB SWART of the Parish of East Baton Rouge, Louisiana, identified as Lot Seven (7), of Square Two Hundred Fifty Nine (259) Suburb Swart, said lot fronting sixty (60') feet on the north side of Julia Street by a depth of one hundred twenty (120) feet between parallel lines, according to the map or plan attached hereto and marked Exhibit “A”.

Judgment will be signed accordingly.”

The determination of value in an expropriation suit is a finding of fact, and that determination, as in the case of other findings of fact, will not be upset unless it is manifestly erroneous. State, Department of Highways v. Gielen, 184 So.2d 737 (La.App.3d Cir. 1966); Texas Gas Transmission Corporation v. Hebert, 207 So.2d 368 (La.App.3d Cir. 1968). The trial court had the opportunity to hear and observe the expert witnesses, and, also, at the request of counsel for both sides, went to the site to be expropriated and determined that, contrary to the testimony of defendants’ experts, the area was a “static area.” Not only this, but the trial court was familiar with local conditions. An appellate court should and must defer to a trial judge’s superior knowledge in the realm of local property conditions. Texas Gas Transmission Corporation v. Hebert, supra. Considering these factors, this Court finds that the determination of value arrived at by the trial court was entirely correct.

Defendants-appellants strongly argue that the recently adopted Constitution of the State (see Art. 1, Sec. 4) requires that the owner be compensated in an expropriation proceeding “to the full extent of his loss,” and that “loss” includes loss of “plottage value.” “Plottage value” is the excess value attributable to a tract of land as a result of its being in a large tract suitable for development as a single unit at the time of sale or expropriation. While it may be correct that the Constitution requires that plottage value be considered under appropriate circumstances, the present suit is not a situation in which plottage value should play a significant part, or any part at all. The trial court, whose findings we adopt, found that the highest and best use of the property was for warehouse development, in which use, quite obviously, plottage value would be of no significance. Plottage value, defendants’ experts seem to be in agreement, would be of some importance as the tract could. be used for a “multi-story” (later conceded to mean “three story”) office building or a motel. However, the land was not suited for these uses. It was in what the trial court, from personal inspection, found to be a “static” neighborhood which was best suited for warehouse development. Indeed we note that Robert A. Westerlund, defendant and co-partner, testified that he talked to Popeye’s about an operation on the corner; they planned to develop “some” commercially, and they planned to put warehouses on the back of the property. That fragmenting of the property is scarcely consistent with the defendants' experts’ use of plottage value, which involves use of the already-assembled property as a single unit. We, therefore, believe that the trial court quite properly omitted plottage value as a determining factor in arriving at overall value.

Defendants contend that the Witter-Lip-sey warehouse property was not a true comparable because (1) it was not on Highland Road, and (2) it was not acquired by Witter-Lipsey as an arms length transaction. While it is true that the former owner, George P. Waters, testified that the sale was made because of the financial circumstances of two of three co-owners, no sales are made in a vacuum, and to refuse to consider the sale of Waters as a true comparable would be to set a precedent of discarding from use many, if not practically all, comparable real estate transactions. The sale was not a foreclosure or a sale made under threat of seizure, and cannot be considered to be a “distress sale” in any sense of the term. Defendants contend that the sale to Witter-Lipsey may be disregarded because it was a sale without warranty. However, title does not appear to have been defective, and a simple examination of the public records would have revealed that fact. While it is true that the Witter-Lipsey property is not an ideal comparable because it is not on Highland Road, it is, as the trial court found, the best comparable offered by the expert witnesses, and the trial court took due regard of its possibly inferior location by according the defendants’ tract a higher value per square foot ($2.00 per square foot as opposed to $1.47 per square foot for Witter-Lipsey).

We thus find for the reasons stated in the trial court’s written reasons for judgment, and in this opinion as well, that the valuation arrived at by the trial court was entirely correct and free from error.

Accordingly, the judgment of the trial court is affirmed, at defendants-appellants cost.

AFFIRMED.

      . In support of this proposition, defendants cite Marathon Pipe Line Co. v. Pitcher, 368 So.2d 994 (La.1979) and State through Dept. of Highways v. Constant, 369 So.2d 699 (La.1979). We notice that neither case concerns the issue of plottage value.


author: GARRISON, Judge.

text:
    STATE ex rel. In the Interest of Theodore BANKS.
    No. 10779.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 24, 1980.

      Beryl E. Wolfson, New Orleans, for applicant-appellant.
    Ammon L. Miller, Jr., New Orleans, for respondent-appellee.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the Juvenile Court, dismissing an action to have Theodore Banks declared an abandoned child under R.S. 9:401 et seq. The trier of fact found that the natural mother had legally abandoned the child, but he felt compelled to dismiss under this court’s ruling in In Interest of Jackson, 312 So.2d 912 (La.App. 4th, 1975). Mr. and Mrs. Donald Trotter appealed the judgment, which we now reverse.

Theodore Banks is the adulterous bastard of Donald Trotter and Joyce Banks. When the child was two months old, Miss Banks contacted Donald Trotter, who testified that she told him to come get the boy or she would give him away to the first person on the street. Mr. and Mrs. Trotter have raised the boy for over four years. They have borne all costs for support and have paid for several operations, including shunt implanation. During that time, Miss Banks has never contributed to the boy’s support, sent Christmas cards, talked to the boy, attempted to visit him at the Trotter’s home, or otherwise expressed any interest in his well-being.

The trial judge in his written reasons for judgment stated as follows:

The Court feels there is abundant evidence that the Mother, Joyce Marie Banks, intended to permanently avoid her responsibilities; that the proposed adoption by Mr. and Mrs. Trotter, the only parents the child is aware of, would be to the best interest of the child, even though this is not the criterion in an abandonment proceeding.
In the Interest of Keith Jackson, 312 So.2d 912 (App. 4th, 1975), the Fourth Circuit Court of Appeal declared that the procedure provided for in R.S. 9:401(1) etc., was not designed to afford a method for one parent to terminate the parental right of the other. Quoting from that opinion:
‘While a child who has been judicially declared abandoned can thereafter be placed for adoption by the agency in an agency adoption proceeding, the action to declare a child abandoned was not intended as a first step in a private adoption proceeding or as a method of dispensing with parental consent in such a proceeding.’
The Court feels that it is bound by the principal enunciated in the Jackson case and for that reason must dismiss the affidavit for abandonment.”

Since the record supports the factual conclusions of the trial judge, the Jackson case must now be considered to determine if the judgment appealed from is legally correct.

LSA-R.S. 9:403 B authorizes an abandonment action to be initiated by an agency or officer of the court. R.S. 9:403 C authorizes the court to decree a child as abandoned and to “place the child in the custody of an agency, a person or persons or make any other disposition of the child that is in the best interest of the child.” We cannot ignore this plain wording which confers plenary authority on the court to declare a child abandoned and to make any disposition which is in the child’s best interest.

There are factual distinctions between Jackson and the present case which lead to an opposite result here. However, we can appreciate why the trial judge concluded that his decision was controlled by Jackson when we consider the language of the Jackson case which was quoted by the trial judge in the present case.

Because the cases can be distinguished we do not consider it appropriate to overrule Jackson, but we do repudiate the quoted language of the Jackson opinion as over-broad and misleading dicta.

Accordingly, the judgment of the trial court is reversed and we render the following judgment:

IT IS ORDERED, ADJUDGED AND DECREED that Theodore Banks is hereby declared to be an abandoned child and that he be placed in the custody of Esther Smith Trotter, wife of/and Donald Trotter.

REVERSED AND RENDERED.

      . This opinion was circulated to the court en banc, the majority of whom have approved of repudiating the quoted language from In Interest of Jackson.


author: SAMUEL, Judge. REDMANN, Judge,

text:
    Wallace JACK v. KANSAS CITY SOUTHERN RAILWAY COMPANY et al. Curtis ARDOIN et al. v. The KANSAS CITY SOUTHERN RAILWAY COMPANY
    Nos. 10840, 10841.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1980.
    Rehearing Denied Jan. 19, 1981.

      Fusilier, Pucheu, Soileau & Coreil, C. Brent Coreil, Ville Platte, for Wallace Jack, plaintiff-appellee.
    Milling, Benson, Woodward, Hillyer, Pier-son & Miller, Joseph E. LeBlanc, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

These cases (consolidated in the trial court and here) arise from a railroad crossing collision between an automobile and a train. Both plaintiffs filed suit against the Louisiana & Arkansas Railway Company and the crew of the train involved in the collision for injuries and damages sustained by them. In addition, plaintiff Wallace Jack, a passenger in the automobile, sued the other plaintiff, the driver of the automobile, Curtis Ardoin.

Defendants answered, denying liability to plaintiffs, and asserting plaintiffs’ contributory negligence. After a trial on the merits, there was one judgment in favor of Wallace Jack and against the railroad and Curtis Ardoin, in solido, in the total sum of $102,140. The judgment also dismissed Ar-doin’s suit for his own injuries and damages. From this judgment the defendant railroad has appealed suspensively and Curtis Ardoin has appealed devolutively. However, Ardoin has made no appearance in this court.

In his reasons for judgment, the trial judge found the railroad negligent in maintaining a crossing over-grown with weeds and grass sufficiently close to its right-of-way and of sufficient height as to have obstructed the view of both the occupants of the vehicle and the engineer and fireman of the train. He also found the driver of the vehicle, Ardoin, guilty of negligence for having failed, after stopping, “to proceed cautiously forward until a proper look-out could be had.” He found no negligence on the part of the train crew, and no contributory negligence on the part of plaintiff passenger, Jack. He also found Ardoin and Jack were not engaged in a joint venture which would require the imputation of the former’s negligence to the latter.

The record shows the collision occurred on November 2, 1976 at the intersection of Louisiana & Arkansas Railway Company’s main line track and Cardinal Street in La-Place, Louisiana. The train was seventy-two cars in length (25 of which were loaded and 47 of which were empty). It was traveling in a westerly direction toward Baton Rouge. The automobile was traveling in a northerly direction toward the Airline Highway. Thus, the train was approaching the intersection from the automobile driver’s right side.

The accident occurred at approximately 5 a. m. It was dark and rather cold at the time. The automobile was occupied by the driver, Curtis Ardoin, his guest passenger, Wallace Jack, and another individual. The three men lived in Ville Platte but worked in LaPlace during the week. They shared the same automobile for transportation to and from work, and Jack and Ardoin alternated weeks in driving. At the time of the accident Jack was seated in the front seat to the right of the driver, and the other passenger was seated in the back of the vehicle.

The record is extensive, and the case was bitterly fought. However, it is not necessary for us to engage in a detailed discussion of the arguments and contentions since the relevant facts, taken on balance, satisfy us that the trial judge did not commit reversible error.

At the outset, we note the trial judge states in his reasons for judgment that he discarded the testimony of defendant’s railroad agent, James H. Reynolds, as well as the testimony of Sgt. Cecil J. Lyons and Officer Kevin Duhon, the latter two being the investigating officers at the scene of the accident. Since the issues involved in this case are primarily questions of fact, this court must accept the trial judge’s pronouncements regarding credibility of witnesses.

There is dispute regarding whether the train hit the automobile or whether the automobile hit the train. The evidence indicates that the automobile was damaged between its right front headlight and tire, and the train was damaged on its left front side. In view of the other testimony in the record, we do not see that the question of. which vehicle struck the other is determinative of the issue of negligence. The record shows, and the trial court found, the crossing involved was rather heavily used, was “rather steeply” graded (with the southern approach rising some 5 feet over a distance of approximately 25 feet), and was controlled only by a silent, unlighted railroad crossbuck type signal. The train crew testified the lights on the engine were flashing and the engine’s horn was sounding at the time of the accident.

The trial judge’s reason for finding the railroad and the driver of the automobile negligent was the existence of high weeds on the railroad right-of-way sufficiently close to the intersection of the road and the track as to obstruct the vision of a motorist approaching the intersection and stopping, before attempting to cross, at the location of the unlighted crossbuck. He determined the driver of the automobile, Curtis Ardoin, did not complete the duty imposed upon him by stopping at the cross-buck under these circumstances, but instead, because of the high weeds, should have pulled his automobile sufficiently close to the railroad track to enable him to obtain an unobstructed view of the track in anticipation of the approach of a train.

The trial judge’s conclusion that the intersection was obscured by weeds is confirmed by the testimony of the crew of the engine. The engineer and fireman both stated they did not see any vehicle approaching the intersection. They thought they heard a bumping sound as the engine crossed the intersection, but were unable to determine if there had been an accident or if the sound merely resulted from loose track. The conductor saw the vehicle had been damaged, and gave instructions for the train to be stopped.

The parties have argued at length regarding the appropriateness of pictures of the intersection taken at a date subsequent to the accident, but the testimony of the plaintiffs and the defendants’ crew clearly indicates sufficient justification for the trial judge to have concluded the intersection was inordinately crowded with weeds and grass. Moreover, the record indicates no grass had been cut at the particular intersection for a period in excess of five months, which period included the summer months when the weed-growing season is at its highest.

Given these facts, we find no error in the trial judge’s holding that the railroad was negligent for failing to properly maintain the intersection in a manner sufficient to allow an approaching motorist to see approaching trains, and we likewise find no error in the trial judge’s holding that Ar-doin, the driver of the vehicle, was negligent by not proceeding from the crossbuck, where his view was obstructed, to a spot nearer the track from which he could have obtained a clear view of the approaching train.

The defendant railway, in sum, bases it position almost entirely on the rule that a motorist who runs into a standing or moving train at a properly marked railroad crossing is guilty of negligence constituting a proximate cause of a resulting accident. However, in the case of Odom v. Hooper, the Louisiana Supreme Court in 1973 stated that automobile-train collisions should be considered on their own facts. The court made the following statement:

“We think that the time has come for automobile-train collisions to be adjudged on their own facts and circumstances— those surrounding the collision; litigants can no longer be subjected to hard and fast rules which are obsolete; there can be no absolute.”

In the present case, the trial judge did, in fact, consider the facts and circumstances of the case and did not conclude as a matter of law that the driver of the automobile was negligent simply because he struck a train at a railroad crossing. The trial judge specifically analyzed the facts and concluded there was negligence on the part of the railroad because of the maintenance of the weeds at the intersection and negligence on the part of the driver for not proceeding closer to the railroad track before crossing in order to ascertain the existence of an on-coming train.

The defendant railway also argues that a passenger in a vehicle approaching a railroad crossing is under an independent duty to exercise reasonable care in looking and listening for the approach of a train, and that such a passenger is barred from recovery by his own independent and contributory negligence if he could have seen or heard the train’s approach had he looked and listened. We again rely on the findings of the trial judge to resolve this issue.

The evidence indicates the area was dark, and the trial judge concluded the passengers did. not hear the train’s horn or feel the vibrations allegedly caused by it. Moreover, the most important aspect of the evidence is that the driver complied with his legal duty by stopping at the unlighted crossbuck signal prior to attempting to cross the railroad track. Even assuming the weeds on the railroad right-of-way obstructed the driver’s vision, there is no evidence in the record indicating there had been sufficient notice to Jack, as a passenger, that the driver, Ardoin, would not have acted in a non-negligent manner by stopping immediately prior to reaching the railroad track in order to obtain an unobstructed view. On the contrary, the record shows that either immediately before or simultaneously with the collision, Jack shouted a warning to the driver, but it was too late. We know of no law which requires a passenger to anticipate a future negligent act of his driver at a railroad crossing when the driver gives all indication of prudent driving technique immediately preceding the collision.

We further agree with the trial judge that there was no joint venture between Jack and Ardoin which would impute Ardoin’s negligence to Jack. The men shared living accommodations during the week because they all lived in Ville Platte but worked in LaPlace. They shared automobile expenses and driving responsibility in going to and from work, but the essence of the shared responsibility and expense was to conserve money and not to act in a venture for gain. Moreover, there was no element of the right of one driver to control the other when he was a passenger.

In Squyres v. Baldwin, the Supreme Court made the following statement regarding the facts necessary to constitute a joint venture:

“ ‘To constitute occupants of a conveyance joint adventurers, there must be not only joint interest in the objects and purposes of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.’ ”

In more recent case of Gaspard v. LeMaire, the Supreme Court stated that in order for negligence of a driver to be imputed to a passenger, the relationship “must be one invoking the principles of agency,”. The general rule is that a guest in a vehicle is free to rely on the skill of the driver for safe transportation. There must be a finding of independent negligence on the part of the guest before he can be held contribu-torily negligent in the absence of a joint venture. We have already decided there was no independent negligence on the part of Jack, and the record does not contain sufficient evidence to justify reversal of the trial judge’s conclusion that there was not a joint venture between them.

The final question for this court’s consideration is the propriety of the amount of the award for Jack’s damages for pain and suffering, etc. He sustained a lumbar strain of his back a reinjury of an old injury to his leg, a cut above the eye requiring six stitches, and a fracture of his left wrist. The injuries to the wrist immobilized his arm in a cast or splint for approximately a year, during which time he was hospitalized on two separate occasions. On the last occasion, he underwent surgery in the form of a bone graft to the wrist, with bone being taken from his elbow. He was not discharged by his orthopedic surgeon until January 11, 1978, approximately fifteen months post-accident. He suffered a 5% disability of his left arm based on the injury to his wrist. However, his prognosis is somewhat clouded by conflicting statements in the record.

Prior to the accident, plaintiff was employed full time at the rate of $9.50 per hour, and after the accident he was obliged to live on welfare and food stamps. He was unable to hunt, fish, run, participate in sports, or work around the house to the time of the trial. Plaintiff sustained periods of depression at times because of his financial problems. He took medication for pain to the time of trial for his wrist in addition to the shots and other medication given at the hospital.

Plaintiff was in traction for his back for a short time following the injury, and he was obliged to apply a heating pad to his leg for approximately four months. For one month after the accident and for one month after the bone graft surgery, plaintiff had to remain in bed at home. The bone graft left a scar on plaintiff’s elbow and wrist, and the surgery required him to take up to five shots per night for pain. Immediately after the accident, he was required to wear a back brace for approximately three weeks and walked with crutches for several months.

The trial judge awarded Jack $70,000 for his injuries and made the following statement with regard to that award:

“There is no doubt that Jack has a 5% disability of the left arm and wrist and that he has not returned to work as of the date of trial. However, the prognosis of Dr. Blanda that the arm and wrist would improve with rehabilitation and that Jack could return to his normal occupation, makes it difficult for this court to properly determine the loss of future earnings if any. This court will consider damages for the 5% disability in calculating damages inflicted on Jack: Jack’s pain, suffering and mental anguish from the injuries and their long and painful treatment, coupled with the worry brought on by his financial plight, together with the permanent disability of the arm and wrist justifies an award of $70,-000.”

Defendant contends the award is excessive in that, at best, it should be within the range of $3,000 to $4,000. The authorities relied on by defendant for an award in that range involve simply a wrist injury, and do not involve other injuries similar to those suffered by plaintiff in this case. Although we tend to disagree with the amount awarded by the trial judge, the jurisprudence gives great weight to the “much discretion” afforded the trier of fact by Article 1934(3), and in Reck v. Stevens, the court made clear its reaffirmation of the previous decisions honoring the trial judge’s discretion. The court in Reck went on to say that before a trial court award may be changed, the reviewing court must look first to the individual circumstances of the case before it and not to prior awards. Only after analysis of the facts and circumstances peculiar to the case before it and to particular injuries and their effects upon the particular injured person may it determine that an award is excessive. While the wording in Reck is somewhat different, the result is basically the same as the Supreme Court’s pronouncement in Coco v. Winston Industries, Inc. Consequently, given the duration of the plaintiff’s disability, the effect which it had on his life after the accident, and of the injuries suffered by him we do not feel we are in a position to alter the lower court’s award of damages.

Defendant finally argues that the award of lost wages to plaintiff should be reduced by the sum of $3,000 because the trial court allegedly used plaintiff’s gross earnings for the year following the accident rather than his net loss. This argument is based on the answer to an interrogatory by plaintiff in which he stated his gross earnings for the year after the accident were approximately $20,000 with his net loss being $17,000 per year. However, there is also evidence that plaintiff lost compensation for overtime to which he was entitled but which he was unable to prove with the degree of certainty necessary to make a specific award for that item. Under all the circumstances, we conclude the trial court did not err in making its award of lost wages.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissenting.

In my opinion, the trial court erred in holding the railroad liable. Assuming a breach of some duty to keep weeds trimmed, that breach did not cause the accident. (In fact, I see only a breach of the duty to trim weeds as a good neighbor.) The weeds were not high enough to prevent, or even substantially interfere with, seeing the train — much less hearing it.-

The pictures in evidence (P 6-11, -14, -16, -18, and -19) show that even a distant train could be seen from this intersection by anyone interested in looking. Driver Ar-doin was not interested in looking, and even if the weeds (non-obscuring in any event) had not been in the vicinity, Ardoin would apparently have driven across the track as he did.

I would therefore reverse as to KCS.

      . The award was itemized as follows: “.... $70,000 for injuries and permanent disability; $30,000 for loss of earnings; $1,360 for medical expenses.”

      . See, for example, Corr v. Price, La.App., 284 So.2d 823; Gibson v. Kansas City Southern Railroad Company, La.App., 233 So.2d 26. Compare, Perkins v. Texas and New Orleans Railroad Company, 243 La. 829, 147 So.2d 646.

      . Defendant cites Rice v. Louisiana & Arkansas Railway Company, La.App., 187 So.2d 116; Rogers v. Williams, La.App., 172 So.2d 149;
        Stein v. Missouri Pacific Railroad Company, La.App., 166 So.2d 381; Rico v. Texas and New Orleans Company, La.App., 140 So.2d 198.

      . La., 273 So.2d 510, 514.

      . Defendant cites Leger v. Texas & P.R. Co., La.App., 67 So.2d 775; Murray v. Yazoo & M.V.R. Co., La.App., 183 So.2d 543; Lockhart v. Missouri Pac. R. Co., La.App., 153 So. 577; and McQuiston v. Shreveport Rys. Co., 12 La.App. 277, 124 So. 706.

      .191 La. 249, 263, 185 So. 14, 19.

      . 245 La. 239, 250, 158 So.2d 149, 152.

      . See Bernard v. Hungerford, La.App., 157 So.2d 246.

      .Defendant cites Moss v. Travelers Indem. Co., La.App., 351 So.2d 290; Distefano v. Lumbermen’s Mut. Cas. Co., La.App., 340 So.2d 1110; Campbell v. Chatelain, La.App., 286 So.2d 799; Aucoin v. Fidelity General Insurance Company, La.App., 219 So.2d 532.

      . La., 373 So.2d 498.

      . La., 341 So.2d 332.


author: PRICE, Judge.

text:
    WILLIS-KNIGHTON MEDICAL CENTER, Plaintiff-Appellant, v. SOUTHERN BUILDERS, INCORPORATED, Defendant-Appellee.
    No. 14488.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 24, 1980.

      Giddens, McKenzie & Garrett by J. David Garrett, Shreveport, for plaintiff-appellant.
    Charles E. Tooke, Jr., Shreveport, for defendant-appellee.
    Before PRICE, MARVIN, and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, Willis-Knighton Medical Center, appeals an interlocutory judgment rejecting its application for a preliminary injunction enjoining defendant, Southern Builders, Inc., from proceeding with arbitration proceedings filed with the American Arbitration Association. For the reasons assigned the judgment of the lower court is affirmed.

On October 16, 1972, plaintiff entered into a building contract with defendant. Under the terms of the contract, defendant as general contractor was to construct a medical office building for plaintiff. The contract was substantially completed on December 30,1974, and the final payment was tendered by plaintiff and accepted by defendant on March 31, 1975. Sometime after final payment was made defects appeared in the exterior finish of the building. After consulting the architect, plaintiff called upon defendant to remedy the defects. Defendant ultimately repaired the building while at the same time reserving its rights against the subcontractors, architect, and material supplier.

Asserting its position that it was not responsible for the defective work, defendant filed a demand for arbitration on August 18, 1980, with the American Arbitration Association, seeking recovery of $26,938.00 it expended in remedying the defective work. Defendant named the plaintiff, the architect, the supplier of the exterior finish, and two subcontractors as respondents to the proceeding. Plaintiff responded by notifying the American Arbitration Association (AAA) that it would refuse to arbitrate defendant’s demand. Plaintiff contends that defendant waived any rights it may have had to arbitration by accepting final payment. The AAA declined to halt the arbitration proceedings and notified plaintiff informing it that it was to select an arbitrator and make appropriate response to defendant’s demand by September 1, 1980. On August 27, 1980, plaintiff petitioned the lower court for injunctive relief to prevent defendant from proceeding with the arbitration proceedings. The court issued a temporary restraining order and rule to show cause why a preliminary injunction should not issue. After exceptions were overruled and trial of the rule, the district court rendered judgment without written reasons recalling the restraining order and denying plaintiff’s rule for a preliminary injunction.

Plaintiff appeals specifying as error the trial court’s holding that the provisions of the building contract authorizing arbitration had not been terminated by acceptance of final payment by defendant. Plaintiff further contends that the trial court erred in failing to hold, in the alternative, that defendant had waived his right to arbitration by failing to demand arbitration at the time plaintiff made known his claim for defective work.

Applicable to the resolution of this case is the Louisiana Arbitration Law, La.R.S. 9:4201 et seq. This law reflects a legislative policy favoring arbitration as a tool for speedy resolution of contract disputes and states in pertinent part that agreements to arbitrate found in valid contracts shall be irrevocable. Whenever a party to a contract calling for arbitration is aggrieved by the failure of the other party to comply with the arbitration provisions, the courts are authorized to assist by ordering arbitration. The court’s function in interpreting arbitration disputes such as the present one is limited. “The only grounds for judicial inquiry under § 4201 are those ‘as exist at law or equity for the revocation of any contract.’ ” Standard Company of New Orleans, Inc. v. Elliott Construction Company, Inc., 363 So.2d 671 (La.1978).

Although this suit seeks to enjoin arbitration rather than compel it, the court’s inquiry under § 4203 is the same. The Louisiana Supreme Court has described this inquiry in the following manner:

Under La.R.S. 9:4203 (1950) a court, at the request of an aggrieved party, shall order the parties to proceed to arbitration in accordance with the terms of the arbitration agreement, after it is found (a) that an arbitration agreement was made, and (b) that the opponent failed or refused to comply with it. The latter (a and b) are the only triable issues in a suit to enforce an arbitration agreement such as the present. Bartley, Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La. 1974).

Applying these rules to the present case we find that plaintiff and defendant did make an agreement to arbitrate disputes arising out of their contract. The contract contains a general clause in Article 7, § 10.1 providing for arbitration of “[a]ll claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof.”

Defendant’s claim for arbitration seeks to recover money expended in correcting work which was not in compliance with contract specifications. Plaintiff seeks to enjoin the proceedings by contending the contract does not require it to arbitrate. This is certainly a dispute arising out of the contract. Having concluded that the parties agreed to arbitrate such disputes, and that plaintiff is refusing to do so, we hold the district court was correct in its judgment denying the preliminary injunction. See Bartley, Inc., supra.

We do not in this opinion address plaintiff’s contentions that defendant waived its right to arbitration. Such Issues of procedural arbitrability should not be decided by the courts without first having been submitted to the arbitrator. Bartley, Inc., supra; National Building & Contracting Co., Inc. v. Lafourche Parish Police Jury, 381 So.2d 867 (La. App. 1st Cir. 1980); writ denied, 385 So.2d 268 (La.1980).

For the reasons assigned the judgment appealed is affirmed at appellant’s cost.

      . R.S. 9:4201 provides:
      “A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

      . R.S. 9:4203 provides in part:
      “The party aggrieved by the alleged failure or refusal of another to perform under a written agreement for arbitration, may petition any court of record having jurisdiction of the parties, or of the property, for an order directing that the arbitration proceed in the manner provided for in the agreement ...
      The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall issue an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement or the failure or refusal to perform is an issue, the court shall proceed summarily to the trial thereof.”

      . 7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.


author: PATTERSON, Chief Justice,

text:
    Bessie V. MOFFETT et al. v. Maudine Moffett HOWARD.
    No. 52290.
    Supreme Court of Mississippi.
    Jan. 7, 1981.
    Claude A. Chamberlin, Houston, Cham-berlin & Houston, Aberdeen, for appellants.
    Julian W. Fagan, III, Amory, for appel-lee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   PATTERSON, Chief Justice,

for the Court:

In a will construction proceeding in the Chancery Court of Monroe County, Bessie V. Moffett, executrix, et al, sought interpretation of the residuary clause of the last will and testament of the late Elzie G. Moffett. The court below held the residuary bequests and devises to be gifts to individuals rather than a class gift so that certain lapsed residuary bequests and devises descended by the laws of intestacy to testator’s sole heir-at-law, Mrs. Maudine Moffett Howard. Aggrieved, Bessie V. Moffett, executrix, Jimmy M. DePietro, George R. Moffett, and Frank W. Moffett, sister and brothers of deceased, appeal, assigning as error: The court erred (1) in holding the residuary shares of the three brothers and one sister of testator who predeceased him to be intestate property and not a part of the residue to be divided among the surviving residuary beneficiaries; (2) in not finding it was the intention of the testator that the shares of any residuary beneficiaries who predeceased testator were to go to the surviving residuary beneficiaries; and (3) in not holding the residuary clause in the will to be a gift to a class.

Elzie G. Moffett, testator, executed his last will and testament on August 17, 1964. In Item IV he made residuary bequests and devises to his only daughter and eight named brothers and sisters. The clause in question provides as follows:

The rest and residue of my property of every kind and description, including, real, personal and mixed, bank accounts, time deposits of certificate, bonds and other personal property, I give, devise and bequeath to my daughter, Mrs. Mau-dine Howard, and my brothers and sisters, Zeak C. Moffett, Frank W. Moffett, Charlie H. Moffett, George R. Moffett, Bessie V. Moffett, Maymie M. Harrison, Mrs. Jimmie M. De Pietro and Guy W. Moffett, to share and share alike.

Following the execution of the will and prior to testator’s death on November 11, 1978, one sister and three brothers named in the residuary clause predeceased the testator. Although the testator was fully cognizant of this fact, there is no evidence that he executed a codicil to his will or attempted in any manner to change its terms after their death.

Other provisions of testator’s will, not in dispute but relevant in determining testator’s intent, directed his sister, Bessie V. Moffett, who had lived with her brother until his death, to serve as executrix and also gave her a sizeable portion of his estate in addition to the residuary devise and bequest.

On appeal, two issues arise. The first is whether the testator intended to make a class gift or a gift to individuals. The second is the ultimate disposition of the % ths lapsed residue.

Concerning the class gift issue, we are of the opinion the court correctly held the bequest and devise to be to individuals. Each residuary beneficiary was specified by name, and absent a clear intent of the testator to create a class gift, the construction preference for gifts to individuals is applied. We said in Cain v. Dunn, 241 So.2d 650 (Miss.1970), the following:

The rule with which we are here concerned is outlined in 5 American Law of Property section 22.4 (1952):
“The phrase ‘class gifts’ is designed to suggest one fundamental idea, and once this is fully grasped the concept has some utility. That fundamental idea is simply this. A gift to a class is involved when the beneficiaries of a disposition form an entity or a unit and the gift is to that entity or unit rather than to the separate and distinct individuals who comprise the entity or unit. The idea may also be expressed in this way: whenever the transferor is group-minded with respect to his beneficiaries, rather than individual-minded, the gift is to them as a class.”
When the beneficiaries of a will are specified by their individual names, it may be reasonably inferred, prima facie, that the transferor was thinking of them as separate and distinct individuals and not as a group or an entity. Accordingly, a “construction preferencé” is said to be that if transferees are specified by name the gift is one to individuals and not to a class. Lee v. Foley, 224 Miss. 684, 80 So.2d 765 (1955); 5 American Law of Property § 22.5 (1956). However, even though the testator has named his beneficiaries individually, additional evidence of a different intent may be present from the terms of the will and surrounding circumstances which would require a conclusion that the transferor was group-minded with respect to his beneficiaries even though he named them individually. (241 So.2d at 651-52)

Appellants cite Shannon v. Riley, 153 Miss. 815, 121 So. 808 (1929), to support their position that the residuary legacy was a gift to a class even though the testator’s daughter and siblings were specifically named in the will. Shannon defines a class gift as follows:

All we shall attempt, therefore, is an approximation or general description of what is meant by a gift to a class, which we shall state thus: When there is a gift or grant to a number of persons, although one or all of them may be named, if the naming of them was intended merely as a matter of identification, and these persons are united or connected by some common tie, and it is clear that the donor was looking to the body as a whole or as a group, rather than to the members constituting the body as individuals, and that he intended that the group might fluctuate in numbers, so that, to preserve the group, if one or more of that body died during the period in question, the survivors should take the gift between them, either in equal or in some other naturally related portions, the gift is to be construed as one given to them as a class. 28 R. C. L. p. 260 et seq.; Thompson on Construction of Wills, §§ 200-211; 1 Jarman on Wills (6th Ed.) pp. 262, 336, 433; 2 Page on Wills (2d Ed.) § 918 et seq.; 40 Cyc. p. 1473.
We do not attempt any fixed or precise definition, of class donees. Able text-writers and jurists have repeatedly attempted it, with no more success than have been the efforts to define reasonable doubt, proximate cause, and numerous other terms in the law, wherein, at last, the simple word or words originally selected to denote the idea to be conveyed have been found best so far as concerns any universal test, without more.
(153 Miss. at 824-25, 121 So. at 810-811)

There this Court interpreted a ten-year inter vivos trust to be a class gift where the trustor’s son was named trustee with each of trustee’s children to receive an equal share of the income. The trust instrument was carefully drafted with specificity and detail so that the donor’s intent to treat the beneficiaries as a unified group or class was clearly evident from the face of the trust. A major factor indicating a class gift was language in the trust which provided that if a child should die without issue, then his or her share would go to the surviving brothers and sisters to share and share alike.

The present is distinguishable because there is no language indicating the survivors should take the predeceaseds’ shares. In fact, the will is totally silent on the disposition to be made of the residue in the event a residuary beneficiary predeceased testator. Because testator did not provide for such a contingency, we are of the opinion that to hold otherwise would in effect be an attempt to rewrite the will. Appellants contend that testator, with actual knowledge of the death of four residuary beneficiaries, did not change the disposition in his will, thereby indicating an intention that the surviving residuary members should take the lapsed residue. We believe this to be argumentative speculation to add provisions to the will which are non-existent. This Court stated in Byrd v. Wallis, 182 Miss. 499, 181 So. 727 (1938), concerning testator’s failure to provide for a contingency:

Again, it is urged that it would defeat the will of the testatrix to permit the lapsed portion of the residuum which was bequeathed to Nannie Moss Brown, to descend to the heir at law instead of passing to the other residuary legatees named in the will. However, as was said in the case of George Washington University v. Riggs National Bank, 66 App.D.C. 389, 88 F.2d 771, 772, “while the intention of the testator to dispose of all of his estate may appear from the face of the will, if a condition later arises which was clearly not contemplated by the testator, it is not within the power of the courts to amend the will by attempting to supply the omission. * * * If * * * the testator has overlooked a condition which he would perhaps have provided for if it had occurred to him, the court cannot guess at what provision he would probably have made * * * if he had thought of it.” Furthermore, the testatrix in the case at bar had known for some time that Nannie Moss Brown had predeceased her, and she failed to amend her will so as to dispose of her lapsed share in the residuary estate and prevent it from going to appellant as heir at law of the testatrix. There must be some language used and to be construed on the point at issue in order for the court to render assistance, by construction, in effectuating the intention of a testator. Courts cannot supply a provision in a will, and then proceed to give it the desired effect. The death of Nannie Moss Brown, one of the residuary legatees, prior to the death of the testatrix, was a contingency not provided for, and hence the share lapsed and descended as intestate property.
(182 Miss. at 515-16, 181 So. at 731-732)

The rule in Mississippi is “[i]f the gift is made to beneficiaries by name, the gift is, prima facie, not one to a class, even if the individuals who are named possess some quality or characteristic in common,” 4 Page on Wills (3d ed. 1961) section 35.4. This principle forms the basis for this Court’s decisions in numerous cases including Eubanks v. Lucius, 257 So.2d 215 (Miss.1972); Cain v. Dunn, 241 So.2d 650 (Miss.1970); Lee v. Foley, 224 Miss. 684, 80 So.2d 765, 61 A.L.R.2d 209 (1955); Meyers v. Teichman, 219 Miss. 860, 70 So.2d 17 (1954); Cross v. O’Cavanaugh, 198 Miss. 137, 21 So.2d 473 (1945); and Byrd v. Wallis, 182 Miss. 499, 181 So. 727 (1938). However, this is not to say the presumption in favor of a gift to individuals cannot be overcome by language or other provisions of the will which would denote an intent on the part of the testator to treat the individuals as a unified group or whole, Shannon, supra. Presently, we are of the opinion, after study of the testator’s will, that no intention to treat the residuary beneficiaries as a unified group is manifested.

This brings us to the second issue concerning the disposition of the 4/9ths lapsed residue. In the absence of an anti-lapse statute providing for lapsed residue to remain part of the residuum, the common law as applied in Mississippi requires the lapsed residue to descend by the laws of intestate distribution so long as the deceased residuary beneficiaries are not children of testator. See Miss.Code Ann. § 91-5-7 (1972). The common law rule is stated in 6 Page on Wills (3d ed. 1961) section 50.18:

If the residuary gift itself lapses, such lapsed gift does not form a new residuum in the absence of specific language showing that this is testator’s intention. If there is one residuary legacy, and such legacy lapses, it passes to the heir or next of kin as intestate property if there is no gift over.
If the residuum of the estate is given to two or more individually, and not as a class, and the gift to one of them lapses, the question is raised whether such lapsed gift should pass under the residuary clause to the other residuary legatee, or whether it should pass to testator’s next of kin as intestate property, in the absence of language in the will which tends to show the disposition which testator intends to make of it under such circumstances. It is now settled, by the weight of authority, that a lapsed part of the residuum does not itself pass into the remainder of the residuum, but that it passes to testator’s next of kin as intestate property.

See Meyers v. Teichman; Clark v. Case; and Byrd v. Wallis, supra. Therefore, the lapsed portions of testator’s estate descend by the laws of intestate succession to Elzie G. Moffett’s heir-at-law, his daughter.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: BROOM, Justice,

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. ANTIOCH BAPTIST CHURCH, INC.
    No. 52280.
    Supreme Court of Mississippi.
    Jan. 7, 1981.

      Beverley B. Mitchell and Donald J. Steighner, Steighner & Colom, Columbus, for appellant.
    Dudley H. Carter, Carter & Davidson, Columbus, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Eminent domain with an additur is the gist of this case appealed from a special court of Lowndes County. The Mississippi State Highway Commission, under Mississippi Code Annotated § 11-27-83 (Supp.1980), the “quick-take” statute, condemned .18 of an acre of sixteenth section land which Antioch Baptist Church, Inc. held as lessee. A $10,000 additur was ordered by the lower court causing its judgment to be $17,500 rather than $7,500 as awarded by the jury which viewed the property. Sole issue is whether the additur will be allowed to stand. We reverse.

Antioch Baptist Church’s four-acre tract of sixteenth section land is situated four miles North of Columbus. The condemned .18 acre strip is part of the Northeast portion of Antioch’s property upon which three driveways appear to be located: two of which are gravel, and one is paved. Project Engineer Hannon testified about loss of access and stated that Antioch would lose “about 140 feet parallel to the present 45 and about 35 feet on Jess Lyons Road.” According to Hannon, Antioch would still have approximately 268 feet of unlimited access on Highway 45 after the acquisition and about 285 feet of unlimited access on Jess Lyons Road (apparently also known as Baldwin Chapel Road).

Land appraiser Dilmore testified for the commission and opined that the highest and best use of the property was for church purposes. He gave the property a before value of $456,575 and an after value of $450,425. He valued the acquired land at $2,175 to which he added the value of the paved driveway taken at $3,150. Dilmore valued the taken part of two gravel drives at $200 and allowed $500 for the enlargement of the parking area, if there should be any parking in that area, making a total of $6,150. He stated that he used comparable land sales in his evaluations.

Antioch also presented the testimony of a Columbus realtor, Mr. Bill McBryde, who gave the before value of the taken property as $668,005 and an after value of $625,920, making $42,085 just compensation to Antioch. Of the $42,085 figure, he attributed $3,240 to the value of the property actually being acquired and the balance of $38,845 to severance damages. McBryde testified that he took into consideration the fact that the commission was moving its present right of way which is 63 feet from the old church sanctuary building to within 58 inches of the front door of the building. His further testimony was that if the Highway Department moves its right of way from 65 feet to within 29 feet of the church offices, the church will have to build a new access into these buildings either by coming off Jess Lyons Road around to the East or going to the North of the property and coming in with a new access road in the wooded area. McBryde further testified that the taking will deny the access to approximately 250 feet of Highway 45 frontage which the church previously enjoyed. According to him the church will lose approximately 50 parking spaces. His opinion is that the right of way is being moved so close to these buildings that people can no longer get in and out of the buildings and have vehicle access to the front. As far as the buildings are concerned, he testified that both the fellowship hall and the church office building will be damaged approximately $5.00 per square foot. He stated that their value will be diminished because of the closeness of the access and the loss of access.

Mr. Alton Lewis, Chairman of the Antioch Deacons, then testified, and, in the main, his testimony was a review of Antioch’s buildings as to size and utilization. He admitted on cross examination that Antioch could build another road onto Highway 45 if money were available.

DID THE TRIAL COURT ERR IN SUSTAINING ANTIOCH’S MOTION FOR A NEW TRIAL UNLESS THE COMMISSION ACCEPTED A $10,000 AD-DITUR?

The general rule is that trial judges are vested with considerable discretion in the granting of new trials and in dealing with motions for additurs or remittiturs granted pursuant to Mississippi Code Annotated § 11-1-55 (Supp.1980). However, this Court has the responsibility to see that such judicial discretion in trial judges is exercised soundly, or we will reverse. Jury verdicts are not to be set aside except where the amount reflects bias, passion or prejudice. Awards fixed by jury determination are not merely advisory and will not under the general rule be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable and outrageous. Toyota Motor Co., Ltd. v. Sanford, 375 So.2d 1036 (Miss.1979); Womble v. Miss. State Hwy. Comm., 239 Miss. 372, 123 So.2d 235 (1960).

Upon the record as made, we think the order for the additur in the sum of $10,000 is excessive in raising the jury’s award of $7,500 to $17,500 (almost triple the jury’s award). Antioch will not, on account of the taking, lose any building or permanent structure because the evidence shows none taken. The land taken will be used as a sight flare: the purpose of which is to prevent anyone from placing anything on it “that would affect sight” of motorists using the highway at the location in question. Situated upon the taken parcel are nothing more than a drive and grass — and, as we understand the record, the commission does not propose to pave the land taken or place any structure upon it.

Another important aspect of this case, insofar as the additur is concerned, is the fact that Antioch owns no more than a leasehold upon the taken property — its lease appears to have no more than 20 years remaining before expiration. Witness McBryde testified that Antioch’s remaining property would be worth $53,000 less after the .18 acre was taken. Significant is the fact that he appraised the taken land as commercial property although he admitted that he knew of no likelihood that the property would be used as commercial. The fact that no buildings or structures of Antioch’s are situated upon the taken land distinguishes this case on the facts from the cases relied upon by Antioch. Daniels v. Board of Supervisors of Clarke County, 323 So.2d 748 (Miss.1975). Daniels and other cases relied upon by Antioch are not cases in which the condemnee held a mere leasehold interest which would expire in 20 years as is the present case. The trial judge stated into the record his views related to Antioch’s motion for an additur. However, there is no indication in his statement as to how he dealt with the fact that the land taken was property in which Antioch only held a remaining 20 year leasehold interest.

The general rule is that this Court looks with favor upon the action of the trial court in granting an additur or remittitur pursuant to Mississippi Code Annotated § 11 — 1— 55 (Supp.1980). In Screws v. Parker, 365 So.2d 633 (Miss.1978), we held that we will review the action of the trial court so as to determine whether the trial court abused its discretion by granting a new trial on damages only. In Toyota Motor Co., Ltd. v. Sanford, supra, 375 So.2d at 1038-39, we reversed a judgment granting an additur because

we cannot say that the jury, in returning a verdict for the plaintiff in the amount of $40,000 was motivated by passion or prejudice in favor of Toyota, a Japanese Corporation, or against the local plaintiff. It is not so grossly inadequate as to shock the conscience nor is it so grossly inadequate as to reflect a manifest miscarriage of justice.

In Standard Products, Inc. v. Patterson, 317 So.2d 376, 379 (Miss.1975), in an opinion authored by Justice Rodgers, we reversed the judgment of the trial court in granting an additur to the jury verdict and set aside the additur ordered by the trial judge. In so doing we held that “the jury verdict was correct” and stated that this Court “will not hesitate to set aside the order improvidently granted and to reinstate the verdict of the jury.” See Biloxi Electric Co. v. Thorn, 264 So.2d 404 (Miss.1972). We think it is fair to say here, although we do so with deference, that the lower court improvidently granted the additur.

We think the jury’s verdict in this case was not against the overwhelming weight of the evidence, and therefore the trial judge in his judicial discretion should not have granted an additur as ordered. He was manifestly in error in ordering the additur upon this record since no building or permanent structure of Antioch’s was situated upon the land taken. Antioch only held a 20-year leasehold interest in the land which was viewed and inspected by the jury. Therefore with reluctance we think the case must be reversed, the jury verdict reinstated, and judgment entered here for Antioch in the sum of $7,500 as ordered by the jury.

REVERSED AND JURY VERDICT REINSTATED.

PATTERSON, C. J., SMITH and ROBERTSON P. JJ., and SUGG, WALKER, LEE and BOWLING, JJ., concur..

      . The application for the taking states that the commission already “holds title” to the property subject to Antioch’s lease; testimony indicates that Antioch’s lease has about 20 years to run before expiration,