#### STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Lilton CHESSON et al., Defendants-Appellants.

No. 2927.

Court of Appeal of Louisiana. Third Circuit.

Dec. 18, 1969.

Rehearing Denied Jan. 7, 1970.

*764Stockwell, St. Dizier, Sievert & Viccel-lio, by Oliver P. Stockwell and William E. Shaddock, Lake Charles, for defendants-appellants.

D. Ross Banister, Norman L. Sisson, Marshall Wroten, Chester E. Martin, by Chester E. Martin, Baton Rouge, for plaintiff-appellee.

Before TATE, CULPEPPER, and MILLER, JJ.

TATE, Judge.

This is a highway expropriation proceeding. The landowners appeal from the deT nial of severance damages.

Prior to the taking, the defendants owned a service station and truckstop facing eastward on United States Highway 171. After the taking, the new roadbed of the highway was to the rear (west) of their service station-cafe facilities. Further, the area of their station site had been reduced by more than one-half, from about one and one-half (1.606) acres to about three-fourths (.762) acre. The service station facilities of course no longer face on the main highway but instead only on the former route, now a side-road.

The sole issue on appeal is whether the defendant landowners are entitled to additional1 severance damages because of the changed size and facing of their service station facilities. The severance damages sought are the alleged taking-effected reduction in market value of the service station remainder and improvements.

The landowners argue most skillfully that, as a result of the taking — and especially of the reduction in size of the service station site — , the market value of this remainder has been drastically reduced. They rely upon evidence that, before the taking, the market value for the best use of the service station site was for a Class “A” truckstop location. This increment in value over ordinary service station sites results from the greatly increased sale of petroleum and other motor vehicle products accruing from a facility at which trucks may stop and receive complete servicing while the drivers rest and sleep in facilities afforded for that purpose. See State, Through Department of Highways v. Lewis, La.App. 1st Cir., 142 So.2d 652, 653.

On the other hand, the Department argues: The damages sought essentially result from the diversion of traffic, and hence are not compensable. Cerniglia v. City of New Orleans, 234 La. 730, 101 So. 2d 218; Rudolph Ramelli, Inc. v. City of New Orleans, 233 La. 291, 96 So.2d 572; Thomas & Warner, Inc. v. City of New Orleans, 230 La. 1024, 89 So.2d 885; Patin v. City of New Orleans, 223 La. 703, 66 So.2d 616; State, Through Department of Highways v. Sumrall, La.App. 1st Cir., 167 So.2d 503. Further, the frustration of an owner’s personal business plans are not compensable, State, Through Department of Highways v. Levy, 242 La. 259, 136 So. 2d 35, especially when merely conjectural, Parish of Iberia v. Cook, 238 La. 697, 116 So.2d 491, in the absence of a real and present effect upon market value.

The defendant landowners do not dispute these principles. They contend that the taking in the present case substantially changed the nature of the property’s most valuable present use, thus effecting an ac*765tual and not merely conjectural reduction in market value.

The owners rely upon evidence that there was a real and actual market value of their site for a Class “A” stop, as the first station site north of Lake Charles on this main highway. This use of the property was destroyed by the reduction by one-half in the size of the property. Because of less space for maneuverability and for outbuildings, the site no longer had any enhanced value as a Class *“A”*truckstop and thus only has the lesser-valued use as a general service station property.

In so arguing, the. .landowners rely upon State, Through Department of Highways v. Puckett, La.App. 1st Cir., 207 So.2d 212, State, Through Department of Highways v. Bernelle, La.App.2d Cir., 203 So.2d 777, State, Through Department of Highways v. Randolph, La.App. 3d Cir., 170 So.2d 397, and (especially) State, Through Department of Highways v. Lewis, La.App. 1st Cir., 142 So.2d 652. These decisions held, in allegedly comparable circumstances, that compensation should be afforded for a loss in market value resulting from a taking because the commercial usefulness of motor vehicle service property is substantially lessened by the destruction of ample parking space.

The landowners produced substantial factual evidence in support of their contention that the highest and best use of the subject-'property was as a Class *“A”*truckstop. However, the trial court accepted instead the testimony of the Department’s appraisers that the highest and best use of the property at the time of the taking was only as a service station or a Class “B” truckstop. There is no substantial conflict in the evidence that, after the taking, the property still had this same use (except that the front of the service station-cafe facilities now faced away from the new highway).

The trial court in part based its acceptance of these witnesses’ factual conclusion upon corroborative facts, such as: The former rear of the property was too low for the purposes contemplated. The property had not in fact been developed as a Class “A” stop over the several years prior to the taking. The former and the contemplated traffic flow of the highway in question did not justify such a high-volume facility.

In expropriation proceedings, the factual finding of the trial court on a question of valuation should not be disturbed in the absence of manifest error. State, Through Department of Highways v. Ragusa, 234 La. 51, 99 So.2d 20, State, Through Department of Highways v. Gielen, La.App. 3d Cir., 184 So.2d 737, State, Through Department of Highways v. Crockett, La.App. 3d Cir., 134 So.2d 341. Since the trial court’s factual determination in this regard is founded upon substantial evidence, we find no manifest error and will not disturb its finding.

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

Affirmed.

1

. The trial court did allow $5,924, the cost of providing a new sewerage system on the remainder, necessitated because the existing one extended into the area taken. The Department does not complain of this award for cost-of-eure severance damages.

TATE, Judge

(concurring).

As organ for the court, the writer yields to the majority consensus that additional severance damages should be disallowed, since noncompensable as essentially resulting from the diversion of traffic.

However, it should be pointed out that this property owner suffers a sort of damage peculiarly different and substantially greater than other tracts affected by the taking: The taking cuts across the rear of his property and causes his service station and café to be adjacent to the new highway taken — but to be so situated that only the rear of these improvements faces the new highway. The improvements are now so situated as to detract from the value of the land; a purchaser would probably pay *more*for vacant property next to the site, *766where he would not have the expense of relocating or tearing down depreciated improvements.

Alternatively, the landowners seek compensation for this severance damage sustained by their property. They rely upon the testimony of their appraiser that the service station improvements sustained a depreciation in value because, after the taking, only their rear will face the main highway. In the absence of comparable sales, the appraiser based this estimate upon his general appreciation of values, founded upon his wide experience. See State, Through Department of Highways v. Gilien, La.App. 3d Cir., 184 So.2d 737.

The Department, however, argues that this sort of damage cannot be compensated. It points out that the state has the right to change highway locations without being responsible in damages to those fronting on the former highway. As the decisions cited in the majority opinion show, this is in general a fair statement of the general rule that traffic diversion and highway relocation damages are damnum absque injuria (a loss which does not give rise to an action for damages).

In its latest decision on the question, the Supreme Court pointed out that one reason such damages are not allowed is that they are common to all of the property owners within the same vicinity. Cerniglia v. City of New Orleans, 234 La. 730, 101 So.2d 218. They are thus one of the “particular sacrifices which society has the right to inflict for the public good.” Sholars v. Louisiana Highway Commission, La.App. 2d Cir., 6 So.2d 153, 156.

Nevertheless, *Cerniglia*holds that a property owner may recover damages if harmed by a taking because of circumstances peculiar to his property in connection with the change of highway traffic flow.

I think this exception should be applicable to the present circumstances. The rear of the service station-café facilities now faces the new highway, the rear (southwest) corner of them just 38 feet from it. The improvements face the *former*roadbed only, upon which little future traffic may be expected.

The effect of the taking is to cause the improvements, as *now*situated in relation to the highway, to detract from the value of the site.1 That is, the value of the remaining land itself as a service station site might be just as great before as after the taking; but the purchaser would have to take into consideration that the present facilities could not be so utilized without great expense to restore convenient access to pump facilities (now in the rear of the property).

The Department argues that essentially this loss in value results in the relocation of the highway. The Department ably points out that this sort of damage could not be allowed if the main highway had been relocated a mile away.

Nevertheless, in my view, the damages in question directly resulted from the taking of the rear portion of the service station site as a consequence of the present property’s peculiar location and attributes. For instance, as noted, an adjacent service station site without any improvements on it would not suffer this sort of damage from the taking.

In *Cerniglia,*the loss in value, due to the peculiar location of the property, was the destruction of an easy vehicle approach to the landowners’ drug store property because of a lowered one-way thoroughfare, even though traffic could still reach it. *767See 101 So.2d 220. The Supreme Court disallowed those damages sought which resulted solely from the diversion of traffic, but it did affirm the trial court’s award of $3,000 severance compensation for the other damages sustained by the plaintiff’s property as a result of its peculiar location. 101 So.2d 221. (This figure appears to have been based upon the trial court’s estimate that this portion of the damages sought resulted from compensable items.)

Again, in cases such as State, Through Department of Highways v. Johnson, La. App. 3d Cir., 168 So.2d 389, severance damages were allowed for service station property where the width was substantially reduced and the value of the commercial buildings was substantially diminished because of the close proximity to the highway caused by the taking. In State, Through Department of Highways v. Randolph, La.App. 3d Cir., 170 So.2d 397, service station property was held substantially diminished in value, where front parking space was destroyed through the taking. The other decisions relied upon by the landowners, above cited, are to similar effect.

I am not really able to see why, if these damages are regarded as compensable where property is partially taken, the present reduction in market value should not also be allowed insofar as resulting from the loss due to the now commercially peculiar location of the improvements. Most of the cases relied upon by the Department concern instances where none of the property was taken, but nevertheless damages were sought for traffic diversion, etc. Here, however, the taking caused the remainder damages peculiar to itself and not shared by others in the vicinity since, by reason of the partial taking, its facilities are now so peculiarly located as to suffer a substantial depreciation in value.

The landowners’ expert estimated that the improvements suffered a loss of value of 20%, because they were now “denied the full complementary utility of the remainder of the site.” Tr. 239. By this, I take it he meant that they faced the wrong way for the best use of the property. This expert estimated the net value of the improvements at $37,700. However, the two state appraisers estimated this value as $24,500, Tr. 114, 136.

It seems to me that under *Cerniglia*the landowner is entitled to additional severance damages of $4,900 (20% of $24,500) sustained by his property as a result of the peculiar effect upon it caused by its partial taking, resulting in its improvements being substantially lessened in value since now peculiarly situated upon the remainder left by the taking. See also 5 Nichols, Eminent Domain, Section 16.01(5), p. 11 (3d ed. 1962).

I defer, however, to the consensus of the opinion of a majority of our court that this sort of damage is not compensable, however undoubted and *Cerniglia*to the contrary, because of the general traffic-diversion doctrine.

1

. The landowners produce evidence that it would cost almost $42,000 to alter the present service station-cafe buildings so as to face the new highway. However, these estimates also amounted to enlarging the facilities and so are not completely indicative.