BLT/4e CP 7-10



Chapter 48

Real Property and Landlord-Tenant Relationships

Case 48.1

949 So.2d 9

James M. BIGLANE and Nancy K. Biglane

v.

UNDER THE HILL CORPORATION.

No. 2005-CA-01751-SCT.

Feb. 8, 2007.

, Justice, for the Court.

¶ 1. In this case we are asked two questions. First, was the noise coming from a local saloon such that it constituted a private nuisance to the residents of an apartment next door? Second, were the actions of the neighbor of the saloon a tortious interference with business relations? After a review of the case, we conclude there was a nuisance, but no tortious interference with business relations.

*12 FACTS

¶ 2. “No spot on the American continent ever bore a viler name” wrote one historian about the section of Natchez that was closest to the mighty Mississippi River. Edith Wyatt Moore, Natchez Under-The-Hill 7 (1958). The spot gained its name from the bluffs of loess which the river carved through easily, creating an “upper” Natchez and the one called “under-the-Hill.” “Early travelers described it variously as a gambler's paradise, a sink-hole of iniquity and a resort of the damned,” likely because “legitimate business houses and firms lined the streets but ... were far outnumbered by gambling dens, saloons, houses of ill repute,” not to mention the presence of pirates and slave-traders-or the possibility that the rule of code duello might be invoked at any time. Id. at 7-9.

¶ 3. “For the size of it, there is not, perhaps in the world, a more profligate place,” said one visitor, while another called it “hell on earth, with bells attached.” David G. Sansing, Natchez: An Illustrated History 65 (1992). At one point “[s]treet brawling in Natchez became so prevalent that [Spanish Mayor Manuel] Gayoso issued a ban on knives and other metal weapons,” to little effect. Id. at 46.

¶ 4. Straddling the uncertain area between crumbling cliffs and the wild river, Natchez Under-the-Hill suffered many natural disasters, and “[s]ome claim that the Great River, in revenge against the place that shamed its name, altered its course, widened its banks and gobbled up much of that awful place.” Id. at 66. Indeed, the “fine mansions and patrician elegance” of the upper city “soon eclipsed the fame of Natchez's lower half, though both found an easy journey into lore and legend.” Id. at 48.

¶ 5. Time and great changes in technology eliminated the necessity of Natchez as a port, as the riverboats gave way to steam-powered locomotives, which in turn gave way under the advent of automobiles and airplanes. “It was the area's infamous past, however, that eventually saved it and secured its future,” as the growing tourist industry brought those persons who “could not resist the pull of the landing's past, the power of its legends or the magic of its name: Natchez Under-the-Hill.” Id. at 164. Tourists began to flock to Silver Street-the only remaining portion of Under-the-Hill-in much the same way they began pilgrimages to sprawling and majestic homes such as Rosalie, the stately mansion used as a headquarters for the Union forces in the Civil War; Longwood, the legendarily-unfinished octagon house; and the Burn, used as a hospital during the War, with its towering spiral staircase.

¶ 6. Onto this stage strode the two families who take center stage in the case at hand. In 1967 Nancy and James Biglane purchased a dilapidated building at 27 Silver Street that had been built in the 1840s, and opened the lower portion of the building as a gift shop in 1978. In 1973, Andre Farish, Sr., and Paul O'Malley purchased the building directly next door, at 25 Silver Street, which had been built in the 1830s; in 1975 they opened the Natchez Under the Hill Saloon. Eventually the Saloon would come to be run by the children of Mr. Farish, Melissa and Andre, Jr.

¶ 7. The Saloon would establish itself proudly as a welcoming haven for locals and visitors alike, and maintained its presence on 25 Silver Street as other businesses came and went. The Biglanes began converting the upper floors of 27 Silver Street into a large apartment, which they moved into in 2002.

¶ 8. Despite installing insulated walls and windows, locating their bedroom on the side of the building away from the Saloon, and placing their air conditioner *13 unit on the side nearest the Saloon, the Biglanes quickly realized they had a problem: the raucous nature of the Saloon kept them wide awake at night.

¶ 9. Specifically, it was live music, a hallmark of the Saloon. During the summertime the un-air conditioned Under the Hill opened its windows and doors to lessen the heat inside, and music echoed up and down Silver Street. While the music was easier on Mr. Biglane, who had lost his hearing over the years, it was particularly difficult on Mrs. Biglane, who was frustrated by the constant rock and roll, conversation, and the clack of pool balls.

¶ 10. The Biglanes contacted the Saloon and asked that the music be turned down, and it was: Mr. Farish got rid of Groove Line, the band that seemed to trouble the Biglanes the most, and installed thick windows to block noise. He also purchased a sound meter by which bands could measure their output in decibels, and forbade them from going over a certain point.

¶ 11. Still dissatisfied, the Biglanes blocked off two nearby parking lots that served the Saloon, using a cable over the entrance of one and crafting a metal gate over another. Ultimately this classic neighborly dispute spilled into the Chancery Court of Adams County, prompted by a complaint from the Biglanes.

¶ 12. The couple alleged private nuisance, among other causes of action, and Under the Hill counterclaimed, alleging that the Biglanes had tortiously interfered in its business (by blocking the nearby parking lots) and defamed them (by sending a letter of complaint to the City Attorney).

¶ 13. The trial court heard multiple witnesses who testified to a dazzling array of subjects, including a historian who described the origins and evolution of under-the-Hill and a doctor with an expertise in sound who played loud music in court to replicate the alleged decibel levels of Under the Hill. The trial court ultimately rendered a highly detailed and intricately reasoned opinion and order than ran to 17 pages.

¶ 14. The chancellor determined that Under the Hill was a private nuisance to the Biglanes, and enjoined the Saloon from leaving open any doors or windows when music was playing, and ordered it to prevent patrons from loitering in the streets. The trial court also found that the Biglanes had tortiously interfered with the business relations of Under the Hill. Although no damages were actually shown, the trial court assessed nominal and punitive damages because of the intentional character of the conduct.

¶ 15. In lieu of setting an amount for damages, the trial court attempted to bring the parties together for “the opportunity to reach some type of an agreement which will allow the Under the Hill Saloon employees and patrons to park in the Water Street area.” This attempt to reconcile the parties failed, and the Biglanes quickly filed a motion that the trial court reconsider its ruling regarding punitive damages. It did so, voiding the award of punitive damages and setting nominal damages at $500.

¶ 16. Aggrieved, the Biglanes appealed, arguing that damages were improperly awarded, and Under the Hill cross-appealed, arguing that its business was not a private nuisance.

STANDARD OF REVIEW

¶ 17. In this case we are presented with questions of law and fact arising from the determination of a chancery court. We “always review a chancellor's findings of fact, but ... will not disturb the factual findings of a chancellor when supported by substantial evidence unless *14 [we] can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” . We use a de novo standard when analyzing questions of law.

DISCUSSION

I. Is the Under the Hill Saloon a Private Nuisance to the Biglanes?

¶ 18. The Biglanes asserted that the Saloon was a private nuisance. “A private nuisance is a nontrespassory invasion of another's interest in the use and enjoyment of his property.” . “One landowner may not use his land so as to unreasonably annoy, inconvenience, or harm others.” (internal quotations and citation omitted).

¶ 19. An entity is subject to liability for a private nuisance only when its conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land and that invasion is either (a) intentional and unreasonable, or (b) unintentional but otherwise provides the basis for a cause of action for negligent or reckless conduct or for abnormally dangerous conditions or activities.

¶ 20. The trial court proceeded under the first path of liability-whether the conduct complained of was intentional and unreasonable. After reviewing the evidence presented at trial, the chancellor found ample evidence that the Biglanes frequently could not use or enjoy their property-significantly, that Mrs. Biglane often slept away from the apartment on weekends to avoid the noise and that she could not have her grandchildren over on the weekends because of the noise. The audiologist who testified for the Biglanes concluded that the noise levels were excessive and unreasonable, although he also conceded that he had never measured the noise levels in the couple's bedroom. This problem was exacerbated during the summer months, when the un-airconditioned Saloon left its doors and windows open to defray the oppressive Natchez heat.

¶ 21. The Saloon did offer a witness who lived in back of the establishment who said he never had any problems with the noise, but the chancellor held that he was not an impartial witness, since he was testifying for his landlord.

¶ 22. Ultimately the trial court weighed the fact that the Biglanes knew or should have known that there was going to be some sort of noise associated with living “within five feet of a well established saloon which provides live music on the weekends.”

¶ 23. We have examined similar issues before. An important Mississippi case regarding private nuisance based on the actions of a neighbor is . In that case a group of residents in Byram were overwhelmed by the “repulsive” odors of a nearby rendering plant. .

¶ 24. The general rule is that “[a] business, although in itself lawful, which impregnates the atmosphere with disagreeable and offensive odors and stenches, may become a nuisance to those occupying property in the vicinity, where such obnoxious smells result in a material injury to such owners.” This same rule extends to a situation where a lawful business injects loud music into the surrounding neighborhoods. For “[a] reasonable use of one's property cannot be construed to include those uses which produce obnoxious [noises], which in turn result in a material *15 injury to owners of property in the vicinity, causing them to suffer substantial annoyance, inconvenience, and discomfort.”

¶ 25. Accordingly, even a lawful business-which the Under the Hill Saloon certainly is -“may become ... a nuisance” by interfering with its neighbors' enjoyment of their property.” We recognize that “[e]ach [private nuisance] case must be decided upon its own peculiar facts, taking into consideration the location and the surrounding circumstances.” Ultimately, “[i]t is not necessary that other property owners should be driven from their dwellings,” because “[i]t is enough that the enjoyment of life and property is rendered materially uncomfortable and annoying.”

In 1963 the City of Natchez zoned the area encompassing Silver Street as a “WD district,” or a waterfront development district; the ordinance is still in place today. It explicitly authorized “as of right” the use of dwelling homes such as the Biglanes' and businesses like Under the Hill. The ordinance noted that “[i]It is intended that [the WD district] be reserved for active uses which animate the waterfront and take advantage of their proximity to the waterfront. Such uses should be oriented toward the enjoyment of tourists and citizens of the community. Primary objectives include visual and limited physical access to the water, a pedestrian-friendly environment, limited automobile access and parking, and the preservation and enhancement of the distinct character of the historic waterfront.”

¶ 26. In we deferred greatly to the chancery court and determined that it “had the power to enjoin such future operations of the rendering plant as constituted in fact a nuisance,” and that it also “had the lesser power to permit continued operation of the plant, subject to certain stated conditions and requirements.” see also (chancery court's limitation on farmowners “from keeping more than two roosters on their property at any time” was affirmed as a proper equitable response to private nuisance caused by the crowing of the birds).

¶ 27. In the case at hand, the trial court exercised its power to permit continued operation of the Saloon while setting conditions to its future operation. Namely, it found that the Saloon could not “operat[e] its business with its doors and windows opened during any time that amplified music is being played inside the saloon.” The chancery court found “that such a limitation is reasonable in that it should help contain the noise within the saloon, and should discourage the bar patrons from congregating or loitering in the streets outside of the saloon.”

¶ 28. From a review of the record it is clear that the chancery court balanced the interests between the Biglanes and the Saloon in a quest for an equitable remedy that allowed the couple to enjoy their private apartment and while protecting a popular business and tourist attraction from over-regulation. See also (“Equity should adjust the remedy to the need in a nuisance case”). Accordingly, we agree that the Saloon was a private nuisance to the Biglanes and affirm the trial court's equitable conditions placed upon its continued operation.

II. Was There a Tortious Interference with Business Relations?

¶ 29. In response to the Biglanes' assertion that the Saloon was a private nuisance, the bar counterclaimed, arguing that its neighbors had interfered with the operation of their business. “There are four elements necessary to prove a claim of tortious interference with a business *16 relationship: (1) The acts were intentional and willful; (2) The acts were calculated to cause damage to the plaintiffs in their lawful business; (3) The acts were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice); (4) Actual damage and loss resulted.” . In this case the Biglanes essentially concede the presence of the first two prongs, but urge that neither the third nor the fourth factors were satisfied. If any of the factors are not met, there cannot be a finding of tortious interference with business.

A. “Without Right or Justifiable Cause.”

¶ 30. Mr. Biglane, or corporations of which he has substantial control, owns much of the property surrounding the Under the Hill Saloon, including multiple parking areas around the Saloon. After the tensions escalated between the Biglanes and the Saloon, Mr. Biglane caused the two parking areas in his control to be blocked, one with a cable gate after 6:00 p.m. and the other by an iron gate. It is undisputed that Mr. Biglane controls the former lot outright, but the ownership of the second lot-the so-called Water Street area-is more complicated.

¶ 31. Ownership of the property is important because it speaks to the third factor of the tort-that the allegedly tortious acts must be performed without right or justifiable cause. It is a basic tenet of property law that a landowner or tenant may use the premises they control in whatever fashion they desire, so long as the law is obeyed. See generally . This leads to the logical conclusion that a landowner or valid tenant may forbid any other persons from using their property. This ideal is protected in our law to the point that there are both civil and criminal prohibitions against trespassing. See (definition of civil trespass); (criminal trespass).

¶ 32. Generally speaking, it cannot be malicious for a person to refuse access to others to their private property. Accordingly, blocking off the parking lot he owned in whole was not tortious conduct by Mr. Biglane.

¶ 33. The property comprising the area called Water Street is a different matter. There was extensive testimony by multiple witnesses regarding the property, its history, nature, and various owners-whether Mr. Biglane, the City of Natchez, or others. The Water Street property is not a paved street per se, but an area that has been built up on the western bank of the Mississippi River by placement of rock and soil.

¶ 34. Part of Water Street is a parking lot, and the city engineer testified that roughly two parking spaces, or portions of the spaces, were owned by the city. Another portion of Water Street is a boat ramp owned by Mr. Biglane. The city has a permanent easement to use the ramp, but of late it is basically only used by riverboat traffic. Previously the only access to the city's portions of Water Street were through Mr. Biglane's parcel, and the city engineer testified that blocking the city's right of way was impermissible, as the city no longer had use and access to the property they owned or had access to its easement because of the gate. There was also testimony that there had been a city-owned sign advertising the area as parking for the public that was later taken down. The city ultimately acquiesced to *17 the placement of the gate and the blocking of its own property.

¶ 35. It is undisputed that Mr. Biglane erected an iron gate blocking Water Street. The chancellor found that part of the property blocked by the iron gate was owned by the city; that the gate itself partially rested upon city property; and that two of the parking spaces blocked by Mr. Biglane were city property. In light of this evidence, the trial court found that the third factor required for tortious interference with business was present-that Mr. Biglane did not have the right to block property which he did not own from public access.

¶ 36. Substantial evidence provided at trial and in the record supported the detailed and extensive findings of fact provided by the trial court. Accordingly, we defer to the chancellor's findings and conclude that the Biglanes acted without right in blocking the Water Street property. Yet our inquiry does not end there.

B. “Actual Damage and Loss Resulted.”

¶ 37. Next we must consider whether the Under the Hill Saloon was damaged by the actions of the Biglanes. To satisfy this tort, we require “actual” damages, which are synonymous with “compensatory” damages; they are substantial, rather than nominal. .

¶ 38. This does not mean that an exact dollar value must be set before we can find actual damages. In the case of we affirmed a chancellor's finding of tortious interference with business relations when a company, after suffering interference from a competitor, no longer received any new orders from a customer; when its credit line was frozen; and it lost the opportunity to solicit business from at least three potential customers. We found that this was evidence of actual damages. This is in accord with the public policy underscoring this tort: to maintain a fair and legal playing field between competitors in the business arena.

¶ 39. In the case at hand, Under the Hill conceded that it could not demonstrate a loss of income from the lack of parking. In fact, business had slightly increased after the parking lots were blocked by Mr. Biglane, which was attributed by Mr. Farish to more riverboats docking in Natchez. There was evidence that one server at the Saloon had worked less than she had in years, but no receipts or other evidence was presented by the Saloon to demonstrate any sort of a loss. In its amended order the trial court found that punitive damages were not warranted under these facts, and accordingly declined to assess attorney's fees against the Biglanes. Compare (attorney's fees can be warranted when trial court assesses punitive damages in tortious interference with business case).

¶ 40. The trial court assessed a damages award of $500 for “nominal damages” because it determined the Biglanes' conduct was intentional. The trial court based this finding upon the basic legal concept that nominal damages can be awarded for intentional torts. See (“nominal damages ... can only be granted in the absence of actual injury in cases of intentional tort,” and not in cases involving negligence). The situation at hand is different. Unlike intentional torts such as trespass or battery, “actual damage and loss” is a required component of the tort of interference with business relations. As noted supra, this factor can be met in differing ways, but it must be *18 met. The Under the Hill Saloon admitted it had suffered no actual damage or loss. Nominal damages do not satisfy a finding of the tort of intentional interference with business relations. In this type of case, there must be actual damages. Because the fourth factor was not met, there cannot be a tortious interference with business and the award of nominal damages must be reversed.

CONCLUSION

¶ 41. This is a classic case of a dispute between two neighbors. We reaffirm our position that a finding of tortious interference with business relations must be based upon a finding of actual damages, and also that a landowner may not use its property in such a fashion as to unreasonably deprive another of the use or enjoyment of their property. We therefore affirm the chancery court's judgment finding a private nuisance but reverse the award of $500 in damages against the Biglanes for tortious interference with business relations.

¶ 42. ON DIRECT APPEAL: REVERSED AND RENDERED. ON CROSS-APPEAL: AFFIRMED.

Case 48.2

954 So.2d 859

La.App. 2 Cir.,2007.

Court of Appeal of Louisiana,Second Circuit.

Terry Randall WHITEHEAD and Tabitha Renee Bartlett Whitehead, Plaintiffs-Appellants

v.

Matthew Dale HUMPHREY, Defendant-Appellee.

No. 42,078-CA.

April 4, 2007.

CARAWAY, J.

This is a redhibition case involving the sale of a home. The plaintiffs claimed various latent defects in the house that were discovered in the nineteen months between the sale and delivery of the home and their filing of suit. The defendant raised the one-year prescription for redhibitory defects applicable to residential immovables and challenged the plaintiffs' delay in filing suit after the time of their discoveries of the alleged defects. The trial court ruled that claims regarding certain defects were prescribed but awarded a diminution in the purchase price for the cost of repairs for other defects in the home. The plaintiffs appeal seeking a complete rescission of the sale and, alternatively, asserting error in the trial court's ruling on prescription. We affirm the trial court's ruling but amend the amount of the judgment, awarding attorney's fees because*861 of the seller's prior knowledge of the particular defect which served as the basis for the trial court's ruling.

Facts

Terry and Tabitha Whitehead purchased a $67,000 home in rural Webster Parish from Matthew Humphrey on February 25, 2004. Humphrey paid $44,000 for the property about six months earlier and had partially renovated it. His mother, Laura Humphrey, is a licensed real estate agent and owns LA State Realty, the listing agency for the home. The Humphreys employed Chad Callender for the renovation work on the home.

After execution of a purchase agreement in January 2004, the Whiteheads inspected the property four or five times prior to the closing. The mortgage lender's appraiser inspected the dwelling on February 4, 2004, and required some minor repairs. The appraiser noted the “toilet does not function properly in the rear bath.” The termite inspection occurred prior to closing, on February 18, 2004.

Humphrey's renovations prior to the sale included replacing rotten wood underneath the new bedroom window, work on the deck such as putting Styrofoam around the bottom, replacing all the handrails, re-leveling the porch, and work on the stairs and the septic system. Callender's work consisted of interior painting, replacing sheetrock, tearing out a wall, installing a replacement window and digging up 80 feet of field line for the septic system, as well as replacing some rotten wood.

At the closing on February 25, 2004, Humphrey signed the papers separately from the buyers. The Whiteheads and their agent did not meet Matthew Humphrey until the trial.

A few months after the Whiteheads moved into the home, difficulties with the master bathroom plumbing started. Later on, the air conditioning unit required attention. They also discovered the fireplace was not functioning properly. In the process of starting to remodel the master bath in the spring of 2005, Terry Whitehead discovered rotted wood behind the ceramic tile, and the faulty plumbing/septic system issue again emerged in the other bathroom. When the Whiteheads consulted a professional licensed contractor, they learned of more rotten wood around the front porch.

The Whiteheads filed suit against Humphrey on October 5, 2005, seeking the rescission of the sale for alleged redhibitory defects and damages. Humphrey answered and urged a peremptory exception of prescription on the ground that the sale occurred more than one year before the Whiteheads filed suit. A ruling on the exception was deferred until trial.

After receiving testimony from both Tabitha and Terry Whitehead, the trial court ruled that the problems with the air conditioner and plumbing/septic system were discovered by them more than one year before they filed suit in October, 2005, and on that basis, those claims were prescribed. Nevertheless, plaintiffs put on several more witnesses to testify concerning air conditioning repairs. The trial court later reiterated its ruling in favor of defendant's exception.

At the conclusion of trial, the trial court ruled from the bench, finding that a redhibitory defect existed in the fireplace and that the Whiteheads were entitled to an award of $1,675 to repair it. No issue is raised regarding this ruling. The court also awarded $7,695 of the Whiteheads' claim for $21,774 for rotten wood within the structure. The judgment against Humphrey for $9,370 plus legal interest from October 5, 2005, and costs, was signed at the close of trial. The Whiteheads appeal the judgment.

*862Law of Redhibition

Louisiana Civil Code Article 2520 provides:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.

A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.

A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

A defect is not hidden, and therefore not redhibitory, when the buyer knows of it either because it was disclosed by the seller or because the buyer discovered it himself. La. C.C. art. 2521, Official Revision Comment (b). The standard of diligence that must be exercised by the buyer in determining whether the thing purchased is defective is that of a prudent administrator. La. C.C. art. 2521, Official Revision Comment (c). The buyer must make more than a casual observation of the object; he must examine the thing to ascertain its soundness. La. C.C. art. 2521, Official Revision Comment (d). Testimonial proof concerning the seller's declaration of defects to the buyer, or of the buyer's knowledge of the defects, may be received. The seller need not respond for defects in the thing of which the buyer was aware, irrespective of the gravity of the defects. La. C.C. art. 2521, Official Revision Comments (e) and (f).

The warranty against redhibitory defects covers only defects that exist at the time of delivery. To make out a prima facie case of redhibition the buyer need not prove the underlying cause of the redhibitory defect involved, but only that the defect existed. The nature of a defect may allow the court to draw an inference that it existed at the time of delivery even if it appeared after three days from that time. La. C.C. art. 2530 and Official Revision Comments (b) and (c).

Regarding prescription of the redhibition action, La. C.C. art. 2534 provides, in pertinent part, as follows:

A. (2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.

B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.

[1][2] A buyer may choose to seek only reduction of the price even when the redhibitory defect is such as to give him the right to obtain rescission of the sale. In an action for rescission because of a redhibitory defect the court may limit the remedy of the buyer to a reduction of the price. La. C.C. art. 2541. The price reduction that may be demanded under this Article is the difference between the sale price and the price that a reasonable buyer would have paid if he had known of the defects. La. C.C. art. 2541, Official Revision Comment (b). A principal element in formulating a reduction of the purchase price is the cost of repairs. Sanders v. Earnest, 34,656 (La.App. 2d Cir.7/24/01), 793 So.2d 393;La. C.C. art. 2541, Official Revision Comment (d). In sales of immovables,*863 the amount to be awarded is the amount necessary to convert an unsound structure into a sound one. Id.

Article 2545 provides for the liability of a seller who knows of a hidden defect:

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees....

Discussion

I.

The Whiteheads argue broadly that rescission of the sale with return of their $67,000 purchase price was the appropriate remedy instead of the $9,370 diminution of the sales price which the judgment awarded. We will defer consideration of that issue for last and focus on the facts of the two major defective items which are alternatively raised by appellants' arguments.

First, the appellants argue that the trial court erred in excluding their redhibitory claim for the plumbing and sewer problem on the basis of prescription. The two rules of prescription under Civil Code Article 2534(A)(2) and (B), supra, turn on the seller's knowledge of the defect at the time of the sale. If the seller did not know of the hidden defect of the residential immovable, the action for redhibition prescribes after one year regardless of the buyer's lack of discovery during that year. La. C.C. art. 2534(A)(2). Humphrey's knowledge FN1 of the alleged plumbing defects is a critical inquiry for prescription in this case since the Whiteheads filed suit nineteen months after the sale and delivery of the home. If Humphrey knew of the defect at the time of the sale, the claim for redhibition would not prescribe until the lapse of one year from the time of the Whiteheads' discovery. In this case, our review of the record indicates that factual disputes surrounded both the issue of Humphrey's knowledge of the redhibitory defect in the sewer system and the time of the Whiteheads' discovery of the problem.

FN1.La. C.C. art. 2534(B)'s reference to the “presumed” knowledge of a seller would not be applicable here. The codal scheme indicates that the seller is presumed to know the defect of the thing sold when he is a manufacturer of that thing. La. C.C. art. 2545.

After the purchase agreement was signed by the parties, but before closing, an FHA appraiser inspected the house on February 4, 2004, and noted as a “mechanical system problem,” that the “[t]oilet does not function properly in rear bath and water on hot water side of lavatory does not turn on.” Two weeks later, in response to the State Health Department's requirement for installation of 80 feet of field line for the sewer system, Humphrey hired Davis Contracting, Inc. which “replaced 80 feet of drain line to the septic tank and retied in the field line.” Before Davis could work on the septic system, the septic tank had to be pumped out on February 10, 2004. A State Department of Health and Hospitals inspection of the septic system occurred three days before closing.

Terry Whitehead testified that when they were looking at the house to buy, the yard was a mess because all of the field lines for the sewer system had been dug up. However, he did not realize at that time that the septic tank was located under the driveway. As part of her pre-inspection of the house, Tabitha Whitehead testified that she flushed both of the toilets and they both worked.

*864 The Whiteheads' initial problem concerned the master bathroom and began three or four months after they moved into the house. When the water backed up in the main bathroom in the spring of 2004, Tabitha called Roto-Rooter to correct the flow. It was then that she learned the septic tank was located under the driveway. This meant that the traffic across the driveway could cause problems with the tank and lines.

In May 2005, Terry Whitehead started to remodel the master bath and tore out the shower and ceramic tile. The Whiteheads then began using the rear bathroom and experienced the same backing-up problem. At that time, the Whiteheads consulted Cook's Plumbing which provided the Whiteheads with an estimate totaling $12,000 which included relocation of the septic system and correction of other problems.

This evidence reveals that prior to the sale, the vendor and vendee were alerted to an issue regarding the sewer system. Corrective actions were taken, and no problems concerning the flushing of the toilets and flowage through the underground system prevented the Whiteheads from completing their purchase. From this evidence, the ruling of the trial court on prescription can be upheld from the view that neither side understood that a latent defect remained unresolved. If so, Humphrey, as a “seller who did not know of the existence of the defect,” could receive the benefit of the one-year prescriptive period.

[3] Specifically, however, the trial court's ruling rested upon its interpretation of the notice received from the initial plumbing problems of the Whiteheads in May 2004. This was over sixteen months before they filed suit. The Whiteheads argue that obtaining the services of Roto-Rooter at that time was merely a routine plumbing service matter which did not alert them to the magnitude of what was later realized as a redhibitory defect. Nevertheless, in view of the plumbing problems in advance of the sale, the trial court could determine that the May 2004 episode with the plumbing gave the Whiteheads sufficient notice of the redhibitory defect.

Accordingly, we find no manifest error in the trial court's factual determination that the Whiteheads discovered that the sewer system remained a problem with their residence in the spring of 2004, and therefore their failure to have filed suit within one year of that discovery caused prescription to run against that claim.

On the other hand, the trial court expressly found that Humphrey had knowledge of the rotten boards or sills underneath the house which were improperly repaired by Humphrey prior to the sale. The trial court ruled that this claim had not prescribed after the lapse of one year from the sale because of Humphrey's knowledge and was subject to the discovery rule under Article 2534(B). The evidence showed that the Whiteheads first discovered this problem in May 2005, five months prior to suit.

[4] In their next assignment of error, the Whiteheads argue that the trial court's determination for prescription purposes that Humphrey was a “seller who knew of the existence of the defect,” placed him in the category of the so-called bad faith seller entitling them to attorney's fees under Civil Code Article 2545. While this contention is correct, Humphrey counters by pointing out that the Whiteheads' petition did not seek attorney's fees and the trial court was never required to rule on the issue of attorney's fees. Humphrey raises URCA Rule 1-3 which provides that “[t]he Courts of Appeal will review only *865 issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” Also, we note in considering this situation that La. C.C.P. art. 2164 directs the appellate court to “render any judgment which is just, legal, and proper upon the record on appeal.” Official Revision Comment (a) to Article 2164 states, in part, that “the purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below. This article insures that the ‘theory of a case’ doctrine ... is not applicable to appeals under this Code.”See, Boudreaux v. Mazda Motors of America, Inc., 347 So.2d 504 (La.App. 4th Cir.1977), writ denied,350 So.2d 1223 (La.1977).

[5] In this case, while it is true that a prayer for attorney's fees was never made and the trial court was never directed to such claim, the trial court expressly addressed and decided the factual issue of Humphrey's knowledge of the rotten sills upon which hinge both prescription and the enhanced remedies against the “bad faith” seller.FN2 Once that factual determination was made, the remedy of the award of attorney's fees against the so-called bad faith seller is not discretionary under Article 2545 and was the just, legal and proper remedy under the decided facts. Since the trial court would have discretion in fixing the amount of reasonable attorney's fees and was never asked to so decide, we will award the minimum for attorney's fees for the trial of this case in the amount of $2,500.

FN2. Had there been any unaddressed fact controversy about the entitlement to attorney's fees, consideration of an initial award at the appellate level would be improper. See, Aguilar v. Transit Management of Southeast Louisiana, Inc., 04-1027 (La.App. 5th Cir.3/1/05), 900 So.2d 65.

II.

[6] The trial court's judgment refused to rescind the sale and awarded a reduction in price based upon the cost of repairs of the defects in the fireplace and the wooden sills. From our review of the nature of these two defects, we find that the court properly used its discretion in rejecting rescission, and appellants' assignment of error seeking rescission and return of the sale price is without merit.

In Sanders v. Earnest, supra, this court compared the remedies of rescission and reduction of the purchase price in a case where a persistent defect in a home presented a much closer question. Nevertheless, the court affirmed the trial court's award of the remedy of reduction in the purchase price based upon the trial court's discretionary allowance for such remedy under Civil Code Article 2541. In this case, the defects which were found not to have prescribed could be repaired with relative ease, and no issue was made regarding the Whiteheads' ability to completely correct the problems. The costs of those repairs were a small fraction of the sale price. Accordingly, we find no abuse of discretion, and the ruling of the trial court refusing to rescind the sale is affirmed.

Conclusion

We affirm the trial court's conclusions concerning the various redhibitory defects affecting the home purchased by appellants. The trial court's damage award for these defects involved vices known to the seller which entitle appellants to an award for attorney's fees. We therefore amend the judgment to include a $2,500 award for *866 attorney's fees. Costs of appeal are assessed equally to the parties.

JUDGMENT AMENDED AND AFFIRMED.

Case 48.3

896 So.2d 222, 2004-924 (La.App. 3 Cir. 1/26/05)

Court of Appeal of Louisiana,

Third Circuit.

Bessie L. OTWELL

v.

DIVERSIFIED TIMBER SERVICES, INC., et al.

No. 04-924.

Jan. 26, 2005.

SULLIVAN, Judge.

Defendants, Jesse Moffett, Jr., B & S Timber, Inc., David Barker, and Kenny Barker, appeal a judgment awarding treble damages for timber trespass and general damages to Plaintiff, Bessie Otwell Sanders, and general damages to Intervenor, William Henry Sanders. For the following reasons, we affirm in part, reverse in part, and render.

Factual and Procedural Background

This timber trespass suit involves a disputed 3.12-acre tract of land in LaSalle Parish, Louisiana. On February 22, 2001, Mr. Moffett sold the timber on the disputed tract to B & S Timber, which then contracted with David and Kenny Barker to cut and haul the timber. At the time of the sale, Mr. Moffett considered himself to be the record owner of the disputed property, believing that it was contained within a 16-acre tract that he acquired from E.E. Jones on August 27, 1955.

On April 9, 2001, Mrs. Sanders filed the present suit in which her husband, Mr. Sanders, subsequently intervened as a Plaintiff. Mrs. Sanders alleged that, on September 22, 1967, she acquired a right of use and habitation from her grandfather, Terry Brown, over twenty-four acres known as the "Terry Brown Estate," which included the disputed property, and that, on January 8, 1968, she acquired title from her grandfather to a portion of that estate. She also pled ownership through ten and thirty years acquisitive prescription. Mr. Sanders' intervention is based upon a right of use and habitation granted by Mrs. Sanders' mother, Margaret Otwell, to both Mr. and Mrs. Sanders on May 10, 1968, over "[a]ll that property commonly known as the Terry Brown Estate." In a prior unpublished opinion involving a possessory action between Mrs. Sanders and Mr. Moffett, this court affirmed the trial court's determination that Mrs. Sanders was in possession of the disputed property. Otwell v. Moffett, 02-731 (La.App. 3 Cir. 11/13/02), 836 So.2d 705, writ denied, 03- 434 (La.4/21/03), 841 So.2d 806.

The "Terry Brown Estate" was once part of the Charles McBride Riquet No. 39, a government land grant of 643 acres made on March 3, 1807. In the grant, the eastern boundary of the Charles McBride Riquet was described as "the waters of [the east prong of] Hemphill's Creek." The eastern boundary of the riquet was eventually designated as the boundary between Section 39 and Section 24 of Township 8 North, Range 3 East. Mr. and Mrs. Sanders contend that, sometime in the 1930's, the government straightened out a curve in the east prong of the creek, moving the bed to the west of its original path, but that the boundary between Section 39 and Section 24 did not change. The disputed property lies between the present location of the creek and the "old slough," a natural monument believed to be the ancient creek bed. Mr. Moffett's 1955 deed describes the western boundary of his 16-acre tract as the "East line of the Charles McBride Riquet No. 39," which he contends is the present location of the creek. [FN1]

FN1. In yet another action between these parties, a boundary dispute, this court reversed summary judgment in favor of Mr. and Mrs. Sanders, finding that a genuine issue of material fact existed as to whether Hemphill Creek was navigable at the time the boundary between Sections 34 and 29 was set by the official government survey in 1883. Sanders v. Moffett, 03-231 (La.App. 3 Cir. 10/1/03), 856 So.2d 1244. At the conclusion of the present case, the trial court issued a ruling stating: "At trial it was clear that the East fork of Hemp's Creek, no matter where i[t] was located at any time, was never navigable at any time pertinent to the resolution of this suit or any other suit between these parties."

After a bench trial, the trial court found that Mr. and Mrs. Sanders failed to prove record or just title to the disputed acreage because they did not establish when or how the creek bed was altered, i.e., they did not prove that "the waters of Hemphill Creek" flowed through the "old slough" at the time of the government land grant in 1807. However, the trial court did find that Plaintiffs proved title to the property through thirty years acquisitive prescription. The trial court then awarded Mrs. Sanders, as owner of the disputed property, treble damages for timber trespass under La.R.S. 3:4278.1(C), totaling $40,431.15, and general damages of $1,800.00, and awarded Mr. Sanders general damages of $4,200.00 for interference with his right of use. After receiving post-trial briefs, the trial court then set expert witness fees of $20,321.50 for Plaintiffs' surveyor, $800.00 for Plaintiffs' forester, and $900.00 for Defendants' surveyor.

Acquisitive Prescription

In their first assignment of error, Defendants argue that the trial court erred in finding sufficient corporeal possession to establish ownership by thirty years acquisitive prescription.

Ownership of immovable property may be acquired by the prescription of thirty years without the need of just title or possession in good faith. La.Civ.Code art. 3486. Corporeal possession sufficient to confer prescriptive title must be continuous, uninterrupted, peaceable, public, and unequivocal. La.Civ.Code art. 3476. "For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed." La.Civ.Code art. 3487. "Actual possession must be either inch-by-inch possession ... or possession within enclosures. According to well-settled Louisiana jurisprudence, an enclosure is any natural or artificial boundary." La.Civ.Code art. 3426, comment (d).

As the supreme court explained in Liner v. Louisiana Land & Exploration Co., 319 So.2d 766, 772 (La.1975), "[t]he concept of possession is neither simple nor precise." Thus, "the corporeal possession requisite in the case of agricultural land should not be the same as that in the case of wood land or swamp land...." Id.

[1] "Whether a party has possessed property for purposes of thirty-year acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong." Secret Cove, LLC v. Thomas, 02-2498, p. 6 (La.App. 1 Cir. 11/7/03), 862 So.2d 1010, 1016, writ denied, 04-447 (La.4/2/04), 869 So.2d 889.

[2] Mr. Sanders testified that his wife acquired title from her grandfather to the land between the present channel and the old slough and that he began timber management on this property, as well as on other lands, at her request. It is undisputed that sometime in 1967, Mr. Sanders began marking trees on the perimeter and throughout the disputed property, some of which were inscribed with his wife's registered brand, the initials "BO" over a half-moon. Other trees were inscribed with the initials "CM," designating those trees that Mr. Sanders set aside for another individual, Chris Moss. Mr. Sanders explained that he "hacked trees for a long period of time" so that "anyone passing through there [would] know that this land was occupied by somebody" and that he wanted to let anyone "without knowledge of the boundary [to] know that this property was occupied by ... someone with apparent brand or someone with initials." He testified that, in no uncertain terms, he told Mr. Moffett that the boundary between their lands was the old creek bed, around which he found old generations of fencing, even though the land was not fenced recently. In addition to marking trees, Mr. Sanders ran off trespassers, cut an existing fence to make a riding trail, shot hogs, hunted wood ducks, and harvested berries. He testified that he placed the property in a hunting club that posted signs and erected deer stands. He also took an interest in the property as "heritage property," searching for Indian artifacts and investigating old sites such as a mill believed to have been burned during the Civil War. According to Mr. Sanders, he has never been "run off" the property, and the only evidence of another's possession occurred when his original markings on the trees were painted over with blue-green paint. He then hired someone to apply red paint over the blue-green paint. Charles Moffett, the son of Mr. Jesse Moffett, testified that the painting over Mr. Sanders' markings would have occurred between his retirement in 1999 and the cutting of the timber in 2001.

In commenting on the number and frequency the trees marked, the trial court stated: "I find as a fact that it was many, many trees. If it was 200 trees that wouldn't be ... an underestimate of how many trees had marks on 'em. And with that many marks on that many trees on that small a piece of land, you knew that somebody was laying claim to it." The trial court's finding regarding the number of trees marked is supported, in part, by the testimony of Mr. Moffett, who stated that there was "paint on everything," not only by the borders but also "everywhere else." Considering the number of trees involved and Mr. Sanders' other activities on the property, we find the case cited by Defendants, Albert Hanson Lumber Co. v. Baldwin Lumber Co., 126 La. 347, 52 So. 537 (1910), is distinguishable, where the party claiming possession marked only on the four corners of the property.

Treble Damages

[3] In their second assignment of error, Defendants argue that the trial court erred in awarding treble damages under La.R.S. 3:4278.1(C), even though the trial court stated that Mr. Moffett was in "good faith" when he contracted for the cutting of the timber.

Louisiana Revised Statutes 3:4278.1 (emphasis added) provides in part:

A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.

B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney's fees.

C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.

D. If a good faith violator of Subsection A fails to make payment under the requirements of this Section within thirty days after notification and demand by the owner or legal possessor, the violator shall also be responsible for the reasonable attorney fees of the owner or legal possessor.

In the present case, Mr. Moffett testified that he knew as early as 1966 that Mr. and Mrs. Sanders intended to claim the property east of the present creek bed, based upon a conversation that he had with Mrs. Sanders' father, John Otwell. Although he believed that his title extended to the present creek bed, he also knew how long Mr. Sanders had been marking trees on the property. Additionally, Mr. Moffett recalled informing the owner of B & S Timber, Ronnie Jameson, that there would be a controversy about the cutting of the timber. Based upon this record, we cannot conclude that the trial court erred in awarding treble damages under La.R.S. 3:4278.1(C).

Mr. Sanders' General Damages

[4] In their third assignment of error, Defendants argue that the trial court erred in awarding general damages to Mr. Sanders, who was neither an owner of the property nor one possessing for himself. In awarding general damages, however, the trial court found that Mr. Sanders perfected a right of use over the disputed property through acquisitive prescription. Mr. Sanders' claim was based on the 1968 document granting him and his wife a right of use and habitation over "[a]ll that property commonly known as the Terry Brown Estate." Although the trial court concluded that this document did not establish just title over the disputed property, the trial court found that Mr. Sanders believed that the Terry Brown Estate extended to the "old slough" and that he exercised his right of use over that property.

The right of use is defined as a personal servitude that "confers in favor of a person a specified use of an estate." La.Civ.Code art. 639. Under La.Civ.Code art. 645, the right of use "is regulated by application of the rules governing usufruct and predial servitudes to the extent that their application is compatible with the rules governing right of use." As noted in comment (b) to La.Civ.Code art. 3446, acquisitive prescription applies to real rights such as usufruct and apparent servitudes. Comment (c) to La.Civ.Code art. 544 also states acquisitive prescription is an additional method for the creation of usufruct. Based upon the above, we do not find that the trial court erred in awarding Mr. Sanders general damages for interference with his right of use over the disputed property.

Value of the Timber

[5] In their fourth assignment of error Defendants argue that the trial court erred in basing its award of damages on the price at the mill for the harvested timber rather than on the fair market value of the timber as provided in La.R.S. 3:4278.1(C).

Plaintiffs' forestry expert, F.L. Johnson, testified that the timber removed from the property had a value of $13,477.05. Mr. Johnson also acknowledged, however, that the landowner would not receive that amount from the mill because his calculations did not include deductions for logging costs, which could vary greatly. Defendants introduced documentation showing that B & S Timber received $11,017.57 in payments from three mills, from which Mr. Moffett was paid $5,340.32.

In accepting Mr. Johnson's figure as the measure of damages under La.R.S. 3:4278.1, the trial court relied on Carroll v. International Paper Co., 94- 302, p. 7 (La.App. 3 Cir. 11/2/94), 649 So.2d 474, 478, writ denied, 94- 2924 (La.2/17/95), 650 So.2d 259, in which this court, in quoting the trial court's reasons, stated:

The defendant argues that plaintiffs' loss is stumpage value. Such a calculation does not compensate the plaintiffs for their loss. Not only have they lost the standing timber, but they have lost their right to determine the timing and conditions of sale of their own property. Given the current value of standing timber, this is a substantial loss. Additionally, they have lost the opportunity to enjoy their property in its prior state, and that loss cannot be replaced in the near future. Although INTERNATIONAL PAPER COMPANY was not in bad faith, a mistake of this magnitude requires the application of treble damages. Based upon the evidence presented, the market value of the timber taken is $38,988.11.

This court in Carroll, however, did not define "fair market value" as provided in La.R.S. 3:4278.1(C) and did not elaborate on the calculation of the value ultimately accepted. The second circuit in McConnico v. Red Oak Timber Co., 36,985, p. 11 (La.App. 2 Cir. 5/16/03), 847 So.2d 191, 198 (emphasis added), after a detailed discussion of La.R.S. 3:4278.1 and the law prior to its enactment, determined that "fair market value" as provided therein "refers to the amount a purchaser would pay for standing timber to be cut and removed." [FN2]

FN2. See also Cole-Gill v. Moore, 37,976 (La.App. 2 Cir. 12/19/03), 862 So.2d 1197, writ denied, 04-446 (La.4/30/04), 872 So.2d 501, in which the parties stipulated that the value of the timber was equal to the revenue earned by the timber cutter less the costs of hauling and cutting.

As explained in McConnico, prior to 1974, the jurisprudence established that the measure of damages owed by a timber trespasser depended upon his moral culpability: a trespasser guilty of "moral bad faith" was liable for the "converted value" of the timber without deductions for costs and expenses; one guilty of "legal bad faith" was allowed to deduct his actual expenses in converting timber to lumber in assessing damages; and a trespasser in "good faith" was only liable for "stumpage value." With the enactment of the timber trespass statute in 1974 (originally designated as La.R.S. 15:1478.1), the legislature retained the degrees of culpability, but fixed a single measure of damages for one in moral or legal bad faith as three times the "fair market value" of the of the trees cut, felled, destroyed, removed, or diverted, a term that had not been used in the prior jurisprudence. (The legislature also added attorney fees as a penalty for one in moral bad faith.) Given that the statute introduced the additional penalties of treble damages and attorney fees in certain instances, we agree with the McConnico court's interpretation of the term "fair market value." Accordingly, we find that the trial court erred in not considering the costs of logging and hauling in setting the fair market value of the timber removed. [FN3] The only evidence of such costs is that provided by Defendants, which is the difference between what the mills paid B & S Timber and what Mr. Moffett received, or $5,677.25. Deducting this amount from the mill value of the timber as fixed by the trial court, $13,477.05, we find the fair market value of the timber cut to be $7,799.80. Accordingly, Mr. Moffett is liable to Mrs. Sanders for three times $7,799.80, or $23,399.40, under La.R.S. 3:4278.1(C). Because Defendants have not contested the amount of general damages awarded to Mrs. Sanders, that award is not disturbed.

FN3. The impact of this statutory scheme is illustrated as follows. Under the jurisprudence before 1974, Mr. Moffett would have been in legal bad faith, i.e., one who believed himself to be the owner of the timber but who should have known otherwise. Under those circumstances, his liability would have been reduced by the actual expenses of converting the timber. Given the figures that he introduced as to mill payments and expenses, his liability under the prior law would have been limited to $5,340.32. Under our interpretation of the present statute, as one who is in good faith but who should have been aware of certain circumstances, Mr. Moffett is liable for over three times that amount for the same conduct.

Expert Fees

[6] In their final assignment of error, Defendants argue that the trial court erred in fixing the expert witness fees for Plaintiffs' surveyor, Mark Tooke, at $20,321.50, contending that Mr. Tooke's bills included worked performed on other cases involving the disputed property, that his work was cumulative of lay testimony, and that the trial court largely ignored his findings.

Louisiana Revised Statutes 13:3666(A) provides:

Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.

In McKoin v. Harper, 37,984, pp. 3-4 (La.App. 2 Cir. 12/10/03), 862 So.2d 410, 412-13 (citations omitted), the court explained: [FN4]

FN4. In McKoin, the appellate court found that the trial court erred in not awarding the successful plaintiffs in a boundary action their total surveying costs, thereby raising the expert fees from $60.000.00 to $81,231.20.

Witnesses called to testify as expert witnesses shall be compensated for their services, with the amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. An expert witness is entitled to reasonable compensation for his court appearance and for his preparatory work. The trial judge is not required to set an expert fee at the amount charged by the expert witness and has great discretion in awarding and fixing costs and expert fees. However, a trial court's assessment of costs can be reversed by an appellate court upon a showing of abuse of discretion.

Factors to be considered by the trial judge in setting an expert witness fee include time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments and skill of the expert. Additional considerations include helpfulness of the expert's report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases.

In setting Mr. Tooke's fee, the trial court stated in its reasons for judgment:

[Mr. Tooke's] knowledge, skill, experience, training and education permitted him to provide the trier of fat with assistance in understanding the physical evidence and determining several facts in issue in this case. Not only did Mr. Tooke furnish several plats and diagrams which were helpful to the court, but he was also able to explain to the trier of fact the art and science of surveying and the precepts, rules and other techniques used by surveyors in the past and present to establish the confines of estates on the ground.

In reviewing Mr. Tooke's total statements of $24,646.50, the trial court found that $7,346.50 was attributable solely to work performed in this case. Concerning the remaining invoices, the trial court determined that seventy-five percent of the remaining work related to issues in the present suit, although the work may have been performed in all four suits concerning the subject property. From the trial court's remarks, it is clear that the trial court relied on Mr. Tooke's testimony to better understand the art of surveying. The trial court also relied on Mr. Tooke's plats in fixing the boundary in the judgment of possession attached to the judgment issued in this suit. We find no abuse of discretion in the fixing of expert witness fees.

Decree

For the above reasons, the judgment of the trial court is reversed in part to reduce the treble damages payable to Mrs. Sanders under La.R.S. 3:4278.1(C) to $23,399.40. In all other respects the judgment is affirmed. Costs of this appeal are assessed two-thirds to Defendants and one-third to Plaintiffs.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

Case 48.4

125 S.Ct. 2655

Supreme Court of the United States

Susette KELO, et al., Petitioners,

v.

CITY OF NEW LONDON, CONNECTICUT, et al.

No. 04-108.

Argued Feb. 22, 2005.

Decided June 23, 2005.

, J., delivered the opinion of the Court, in which , , , and , JJ., joined. , J., filed a concurring opinion. , J., filed a dissenting opinion, in which , C. J., and and , JJ., joined. , J., filed a dissenting opinion.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT

Institute for Justice, William H. Mellor, , Counsel of Record, Dana Berliner, , Washington, DC, Sawyer Law Firm, LLC, , New London, CT, Counsel for Petitioners.

, Counsel of Record, , Horton, Shields & Knox, P.C., Hartford, CT, , , Conway & Londregan, P.C., New London, CT, , , Waller, Smith & Palmer, P.C., New London, CT, Counsel for the Respondents.For U.S. Supreme Court briefs, see:2004 WL 2811059 (Pet.Brief)2005 WL 429976 (Resp.Brief)2005 WL 353691 (Reply.Brief)

Justice delivered the opinion of the Court.

In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.” . In assembling the land needed for this project, the city's development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city's proposed disposition of this property qualifies as a “public use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.

“[N]or shall private property be taken for public use, without just compensation.” U.S. Const., Amdt. 5. That Clause is made applicable to the States by the Fourteenth Amendment. See .

I

The city of New London (hereinafter City) sits at the junction of the Thames River and the Long Island Sound in southeastern Connecticut. Decades of economic decline led a state agency in 1990 to designate the City a “distressed municipality.” In 1996, the Federal Government closed the Naval Undersea Warfare Center, which had been located in the Fort Trumbull area of the City and had employed over 1,500 people. In 1998, the City's unemployment rate was nearly double that of the State, and its population of just under 24,000 residents was at its lowest since 1920.

These conditions prompted state and local officials to target New London, and *2659 particularly its Fort Trumbull area, for economic revitalization. To this end, respondent New London Development Corporation (NLDC), a private nonprofit entity established some years earlier to assist the City in planning economic development, was reactivated. In January 1998, the State authorized a $5.35 million bond issue to support the NLDC's planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park. In February, the pharmaceutical company Pfizer Inc. announced that it would build a $300 million research facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the area's rejuvenation. After receiving initial approval from the city council, the NLDC continued its planning activities and held a series of neighborhood meetings to educate the public about the process. In May, the city council authorized the NLDC to formally submit its plans to the relevant state agencies for review. Upon obtaining state-level approval, the NLDC finalized an integrated development plan focused on 90 acres of the Fort Trumbull area.

Various state agencies studied the project's economic, environmental, and social ramifications. As part of this process, a team of consultants evaluated six alternative development proposals for the area, which varied in extensiveness and emphasis. The Office of Planning and Management, one of the primary state agencies undertaking the review, made findings that the project was consistent with relevant state and municipal development policies. See 1 App. 89-95.

The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 115 privately owned properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres). The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference hotel at the center of a “small urban village” that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A pedestrian “riverwalk” will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park. This parcel also includes space reserved for a new U.S. Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4-acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and retail space, parking, and water-dependent commercial uses. .

The NLDC intended the development plan to capitalize on the arrival of the Pfizer facility and the new commerce it was expected to attract. In addition to creating jobs, generating tax revenue, and helping to “build momentum for the revitalization of downtown New London,” id., at 92, the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.

The city council approved the plan in January 2000, and designated the NLDC as its development agent in charge of implementation. See *2660. The city council also authorized the NLDC to purchase property or to acquire property by exercising eminent domain in the City's name. § 8-193. The NLDC successfully negotiated the purchase of most of the real estate in the 90-acre area, but its negotiations with petitioners failed. As a consequence, in November 2000, the NLDC initiated the condemnation proceedings that gave rise to this case.

In the remainder of the opinion we will differentiate between the City and the NLDC only where necessary.

II

Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles (also a petitioner) has lived in the house since they married some 60 years ago. In all, the nine petitioners own 15 properties in Fort Trumbull-4 in parcel 3 of the development plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the other five are held as investment properties. There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.

In December 2000, petitioners brought this action in the New London Superior Court. They claimed, among other things, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment. After a 7-day bench trial, the Superior Court granted a permanent restraining order prohibiting the taking of the properties located in parcel 4A (park or marina support). It, however, denied petitioners relief as to the properties located in parcel 3 (office space). 2 App. to Pet. for Cert. 343-350.

While this litigation was pending before the Superior Court, the NLDC announced that it would lease some of the parcels to private developers in exchange for their agreement to develop the land according to the terms of the development plan. Specifically, the NLDC was negotiating a 99-year ground lease with Corcoran Jennison, a developer selected from a group of applicants. The negotiations contemplated a nominal rent of $1 per year, but no agreement had yet been signed. See .

After the Superior Court ruled, both sides took appeals to the Supreme Court of Connecticut. That court held, over a dissent, that all of the City's proposed takings were valid. It began by upholding the lower court's determination that the takings were authorized by chapter 132, the State's municipal development statute. See . That statute expresses a legislative determination that the taking of land, even developed land, as part of an economic development project is a “public use” and in the “public interest.” Next, relying on cases such as , and , the court held that such economic development qualified as a valid public use under both the Federal and State Constitutions. .

Finally, adhering to its precedents, the court went on to determine, first, whether the takings of the particular properties at issue were “reasonably necessary” to achieving the City's intended public use, and, second, whether the takings were for “reasonably*2661 foreseeable needs,” The court upheld the trial court's factual findings as to parcel 3, but reversed the trial court as to parcel 4A, agreeing with the City that the intended use of this land was sufficiently definite and had been given “reasonable attention” during the planning process. .

The three dissenting justices would have imposed a “heightened” standard of judicial review for takings justified by economic development. Although they agreed that the plan was intended to serve a valid public use, they would have found all the takings unconstitutional because the City had failed to adduce “clear and convincing evidence” that the economic benefits of the plan would in fact come to pass. (Zarella, J., joined by Sullivan, C. J., and Katz, J., concurring in part and dissenting in part).

We granted certiorari to determine whether a city's decision to take property for the purpose of economic development satisfies the “public use” requirement of the Fifth Amendment. .

III

Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.

As for the first proposition, the City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party. See (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”); . Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute*2662 challenged in the City's development plan was not adopted “to benefit a particular class of identifiable individuals.”

See also (“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority .... A few instances will suffice to explain what I mean ... [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them” (emphasis deleted)).

See (Zarella, J., concurring in part and dissenting in part) (“The record clearly demonstrates that the development plan was not intended to serve the interests of Pfizer, Inc., or any other private entity, but rather, to revitalize the local economy by creating temporary and permanent jobs, generating a significant increase in tax revenue, encouraging spin-off economic activities and maximizing public access to the waterfront”). And while the City intends to transfer certain of the parcels to a private developer in a long-term lease-which developer, in turn, is expected to lease the office space and so forth to other private tenants-the identities of those private parties were not known when the plan was adopted. It is, of course, difficult to accuse the government of having taken A's property to benefit the private interests of B when the identity of B was unknown.

On the other hand, this is not a case in which the City is planning to open the condemned land-at least not in its entirety-to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244, Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., . Thus, in a case upholding a mining company's use of an aerial bucket line to transport ore over property it did not own, Justice Holmes' opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” *2663 . We have repeatedly and consistently rejected that narrow test ever since.

See, e.g., (“If public occupation and enjoyment of the object for which land is to be condemned furnishes the only and true test for the right of eminent domain, then the legislature would certainly have the constitutional authority to condemn the lands of any private citizen for the purpose of building hotels and theaters. Why not? A hotel is used by the public as much as a railroad. The public have the same right, upon payment of a fixed compensation, to seek rest and refreshment at a public inn as they have to travel upon a railroad”).

From upholding the Mill Acts (which authorized manufacturers dependent on power-producing dams to flood upstream lands in exchange for just compensation), to approving takings necessary for the economic development of the West through mining and irrigation, many state courts either circumvented the “use by the public” test when necessary or abandoned it completely. See Nichols, The Meaning of Public Use in the Law of Eminent Domain, 20 B.U.L.Rev. 615, 619-624 (1940) (tracing this development and collecting cases). For example, in rejecting the “use by the public” test as overly restrictive, the Nevada Supreme Court stressed that “[m]ining is the greatest of the industrial pursuits in this state. All other interests are subservient to it. Our mountains are almost barren of timber, and our valleys could never be made profitable for agricultural purposes except for the fact of a home market having been created by the mining developments in different sections of the state. The mining and milling interests give employment to many men, and the benefits derived from this business are distributed as much, and sometimes more, among the laboring classes than with the owners of the mines and mills. ... The present prosperity of the state is entirely due to the mining developments already made, and the entire people of the state are directly interested in having the future developments unobstructed by the obstinate action of any individual or individuals.” .

See also (upholding a statute that authorized the owner of arid land to widen a ditch on his neighbor's property so as to permit a nearby stream to irrigate his land).

See, e.g., ( “The inadequacy of use by the general public as a universal test is established”); (“This Court, however, has rejected the notion that a use is a public use only if the property taken is put to use for the general public”).

The disposition of this case therefore turns on the question whether the City's development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.

In , this Court upheld a redevelopment plan targeting a blighted area of Washington, D. C., in which most of the housing for the area's 5,000 inhabitants was beyond repair. Under the plan, the area would be condemned and part of it utilized for the construction of streets, schools, and other public facilities. The remainder of the land would be leased or sold to private parties for the purpose of redevelopment, including the construction of low-cost housing.

The owner of a department store located in the area challenged the condemnation, pointing out that his store was not itself blighted and arguing that the creation of a “better balanced, more attractive community” was not a valid public use. Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area “must be planned as a whole” for the plan to be successful. The Court explained that “community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis-lot by lot, building by building.” The public use underlying the taking was unequivocally affirmed:

“We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive .... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” .

In , the Court considered a Hawaii statute whereby fee title was taken from lessors and transferred to lessees (for just compensation) in order to reduce the concentration of land ownership. We unanimously upheld the statute and rejected the Ninth Circuit's view that it was “a naked attempt on the part of the state of Hawaii to take the property of A and *2664 transfer it to B solely for B's private use and benefit.” (internal quotation marks omitted). Reaffirming Berman's deferential approach to legislative judgments in this field, we concluded that the State's purpose of eliminating the “social and economic evils of a land oligopoly” qualified as a valid public use. Our opinion also rejected the contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. “[I]t is only the taking's purpose, and not its mechanics,” we explained, that matters in determining public use. .

In that same Term we decided another public use case that arose in a purely economic context. In , the Court dealt with provisions of the Federal Insecticide, Fungicide, and Rodenticide Act under which the Environmental Protection Agency could consider the data (including trade secrets) submitted by a prior pesticide applicant in evaluating a subsequent application, so long as the second applicant paid just compensation for the data. We acknowledged that the “most direct beneficiaries” of these provisions were the subsequent applicants, but we nevertheless upheld the statute under Berman and Midkiff. We found sufficient Congress' belief that sparing applicants the cost of time-consuming research eliminated a significant barrier to entry in the pesticide market and thereby enhanced competition. .

Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the “great respect” that we owe to state legislatures and state courts in discerning local public needs. See (noting that these needs were likely to vary depending on a State's “resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people”). For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.

See also (“In the opinion of the legislature and the Supreme Court of Utah the public welfare of that State demands that aerial lines between the mines upon its mountain sides and railways in the valleys below should not be made impossible by the refusal of a private owner to sell the right to cross his land. The Constitution of the United States does not require us to say that they are wrong”); (“States may take account of their special exigencies, and when the extent of their arid or wet lands is such that a plan for irrigation or reclamation according to districts may fairly be regarded as one which promotes the public interest, there is nothing in the Federal Constitution which denies to them the right to formulate this policy or to exercise the power of eminent domain in carrying it into effect. With the local situation the state court is peculiarly familiar and its judgment is entitled to the highest respect”).

IV

Those who govern the City were not confronted with the need to remove blight *2665 in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including-but by no means limited to-new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

Cf. .

To avoid this result, petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use. Putting aside the unpersuasive suggestion that the City's plan will provide only purely economic benefits, neither precedent nor logic supports petitioners' proposal. Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized. In our cases upholding takings that facilitated agriculture and mining, for example, we emphasized the importance of those industries to the welfare of the States in question, see, e.g., in Berman, we endorsed the purpose of transforming a blighted area into a “well-balanced” community through redevelopment, in Midkiff, we upheld the interest in breaking up a land oligopoly that “created artificial deterrents to the normal functioning of the State's residential land market,” and in Monsanto, we accepted Congress' purpose of eliminating a “significant barrier to entry in the pesticide market,” It would be incongruous to hold that the City's interest in the economic benefits to be derived from the development of the Fort Trumbull area has less of a public character than any of those other interests. Clearly, there is no basis for exempting economic *2666 development from our traditionally broad understanding of public purpose.

It is a misreading of Berman to suggest that the only public use upheld in that case was the initial removal of blight. See Reply Brief for Petitioners 8. The public use described in Berman extended beyond that to encompass the purpose of developing that area to create conditions that would prevent a reversion to blight in the future. See (“It was not enough, [the experts] believed, to remove existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums.... The entire area needed redesigning so that a balanced, integrated plan could be developed for the region, including not only new homes, but also schools, churches, parks, streets, and shopping centers. In this way it was hoped that the cycle of decay of the area could be controlled and the birth of future slums prevented”). Had the public use in Berman been defined more narrowly, it would have been difficult to justify the taking of the plaintiff's nonblighted department store.

Petitioners contend that using eminent domain for economic development impermissibly blurs the boundary between public and private takings. Again, our cases foreclose this objection. Quite simply, the government's pursuit of a public purpose will often benefit individual private parties. For example, in Midkiff, the forced transfer of property conferred a direct and significant benefit on those lessees who were previously unable to purchase their homes. In Monsanto, we recognized that the “most direct beneficiaries” of the data-sharing provisions were the subsequent pesticide applicants, but benefiting them in this way was necessary to promoting competition in the pesticide market. The owner of the department store in Berman objected to “taking from one businessman for the benefit of another businessman,” referring to the fact that under the redevelopment plan land would be leased or sold to private developers for redevelopment. Our rejection of that contention has particular relevance to the instant case: “The public end may be as well or better served through an agency of private enterprise than through a department of government-or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” .

Any number of cases illustrate that the achievement of a public good often coincides with the immediate benefiting of private parties. See, e.g., (public purpose of “facilitating Amtrak's rail service” served by taking rail track from one private company and transferring it to another private company); (provision of legal services to the poor is a valid public purpose). It is worth noting that in , Monsanto, and Boston & Maine Corp., the property in question retained the same use even after the change of ownership.

Notably, as in the instant case, the private developers in Berman were required by contract to use the property to carry out the redevelopment plan. See .

Nor do our cases support Justice O'CONNOR's novel theory that the government may only take property and transfer it to private parties when the initial taking eliminates some “harmful property use.” Post, at 2675 (dissenting opinion). There was nothing “harmful” about the nonblighted department store at issue in see also n. 13, supra; nothing “harmful” about the lands at issue in the mining and agriculture cases, see, e.g., see also nn. 9, 11, supra; and certainly nothing “harmful” about the trade secrets owned by the pesticide manufacturers in In each case, the public purpose we upheld depended on a private party's future use of the concededly nonharmful property that was taken. By focusing on a property's future use, as opposed to its past use, our cases are faithful to the text of the Takings Clause. See U.S. Const., Amdt. 5. (“[N]or shall private property be taken for public use, without just compensation”). Justice O'CONNOR's intimation that a “public purpose” may not be achieved by the action of private parties, see post, at 2675, confuses the purpose of a taking with its mechanics, a mistake we warned of in See also (“The public end may be as well or better served through an agency of private enterprise than through a department of government”).

It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive *2667 use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use.

Courts have viewed such aberrations with a skeptical eye. See, e.g., ; cf. (taking invalid under state eminent domain statute for lack of a reasoned explanation). These types of takings may also implicate other constitutional guarantees. See (per curiam).

Cf. (Holmes, J., dissenting) (“The power to tax is not the power to destroy while this Court sits”).

A parade of horribles is especially unpersuasive in this context, since the Takings Clause largely “operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge.” (KENNEDY, J., concurring in judgment and dissenting in part). Speaking of the takings power, Justice Iredell observed that “[i]t is not sufficient to urge, that the power may be abused, for, such is the nature of all power-such is the tendency of every human institution: and, it might as fairly be said, that the power of taxation, which is only circumscribed by the discretion of the Body, in which it is vested, ought not to be granted, because the Legislature, disregarding its true objects, might, for visionary and useless projects, impose a tax to the amount of nineteen shillings in the pound. We must be content to limit power where we can, and where we cannot, consistently with its use, we must be content to repose a salutory confidence.” (opinion concurring in result).

Alternatively, petitioners maintain that for takings of this kind we should require a “reasonable certainty” that the expected public benefits will actually accrue. Such a rule, however, would represent an even greater departure from our precedent. “When the legislature's purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings-no less than debates over the wisdom of other kinds of socioeconomic legislation-are not to be carried out in the federal courts.” . Indeed, earlier this Term we explained why similar practical concerns (among others) undermined the use of the “substantially advances” formula in our regulatory takings doctrine. See (noting that this formula “would empower-and might often require-courts to substitute their predictive judgments for those of elected legislatures and expert agencies”). *2668 The disadvantages of a heightened form of review are especially pronounced in this type of case. Orderly implementation of a comprehensive redevelopment plan obviously requires that the legal rights of all interested parties be established before new construction can be commenced. A constitutional rule that required postponement of the judicial approval of every condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans.

See also (“[W]e need not make a specific factual determination whether the condemnation will accomplish its objectives”); (“Monsanto argues that EPA and, by implication, Congress, misapprehended the true ‘barriers to entry’ in the pesticide industry and that the challenged provisions of the law create, rather than reduce, barriers to entry .... Such economic arguments are better directed to Congress. The proper inquiry before this Court is not whether the provisions in fact will accomplish their stated objectives. Our review is limited to determining that the purpose is legitimate and that Congress rationally could have believed that the provisions would promote that objective”).

Just as we decline to second-guess the City's considered judgments about the efficacy of its development plan, we also decline to second-guess the City's determinations as to what lands it needs to acquire in order to effectuate the project. “It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” .

In affirming the City's authority to take petitioners' properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.

The amici raise questions about the fairness of the measure of just compensation. See, e.g., Brief for American Planning Association et al. as Amici Curiae 26-30. While important, these questions are not before us in this litigation.

See, e.g., .

Under California law, for instance, a city may only take land for economic development purposes in blighted areas. Cal. Health & Safety Code Ann. § § 33030-33037 (West 1997). See, e.g., .

For example, some argue that the need for eminent domain has been greatly exaggerated because private developers can use numerous techniques, including secret negotiations or precommitment strategies, to overcome holdout problems and assemble lands for genuinely profitable projects. See Brief for Jane Jacobs as Amicus Curiae 13-15; see also Brief for John Norquist as Amicus Curiae. Others argue to the contrary, urging that the need for eminent domain is especially great with regard to older, small cities like New London, where centuries of development have created an extreme overdivision of land and thus a real market impediment to land assembly. See Brief for Connecticut Conference for Municipalities et al. as Amici Curiae 13, 21; see also Brief for National League of Cities et al. as Amici Curiae.

*2669 The judgment of the Supreme Court of Connecticut is affirmed.

It is so ordered.

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