*1
CITY OF SANTA
corporation, Petitioner-
Appellant, Komis, KOMIS and Lemonia
John
wife, Respondents-Appellees.
No. 20325.
Supreme Court of New Mexico.
Aug. *2 used for high- the construction of a
way transport nuclear waste to the (WIPP) Project Isolation Pilot site Waste Carlsbad, specific near New Mexico. The issue to be decided is whether the *3 use, fear of this whether well-founded or not, which causes a diminution in value to remaining taken, compensa- land not is yes, ble. Our answer is and we affirm on this issue.
Additionally, City contends that the jurisdiction trial court lacked the modify judgment the interest rate on the after Lamb, a Metzgar, Dahl, P.A., Lines & Ber- appeal notice of agree was filed. We and Metzgar, nard P. Albuquerque, petition- for reverse and remand for entry judgment er-appellant. opinion. consistent with this P.A., Vigil, Marchiondo & Michael E.
Vigil, Albuquerque, for respondents-appel- I. lees.
Of the acreage, Komis’s 673.77 total 43.- City. 431 acres were taken The OPINION property 14, was condemned on November FRANCHINI, Justice. highest and the and best use at that City appeals of Santa Fe speculative from a time was investment for subdi- verdict entered in favor of John and Lemo- vision into rural homesites or for recre- partial nia taking Komis a purposes. condemnation ational The property appro- proceeding. City asserts priated permit dam- bypass construction of a ages awarded for City. loss the market vаlue bypass around the will be used transport remainder the Komis’s land are hazardous nuclear waste from sig- excessive. Because this issue involves Los Alamos to the WIPP site. Because law, questions nificant in addition to this partial condemnation case involved a being interest, public one of substantial taking, property taken and Appeals Court of certified damages this case to us to the remainder were at issue pursuant to NMSA dispute. Section 34-5- and were in It is the valuation of 14(C)(2)(Repl.Pamp.1990) remaining and SCRA the loss to the property as in- 12-606. creased damages sevеrance for loss due public perception of the effect of trans- appeal upon This is based the admissibili- porting radioactive waste material that is ty during and exclusion of certain evidence being appealed. underlying the trial. The issue that forms rulings trial, the basis of the trial court’s Following jury is a the Komises were partial $884,192 whether condemnation action a compensation, repre- awarded $489,582.50 property senting owner is entitled to receive com- for the value of the pensation taken, $60,794.50 for the diminution of value to the land for severanсe dam- property by public ages zone, $337,815 remainder caused to the buffer for case, perception.1 In this the taken land damages perceived severance for due loss 42-2-15(A), damages 1. Under NMSA Section Mexico law the measurement of recov- Komises were entitled to "the measure of com- pensation partial taking for erable is the difference be- taken, for all also the proper- tween the fair market value of the entire damages basis of for not taken but ty immediately taking before the and the fair injuriously affected in cases whеre such dam- remaining property market value of the imme- recoverable; ages legally the amount of the diately taking. after the See SCRA 13-704 award shall be determined from the evidence and not be limited to (uniform jury stating instruction measure of any alleged amount partial taking). petition or set forth in the answer.” Under New Alabama 273-74; see Power Co. opinion In the perception. Co., Keystone Lime 191 Ala. 67 So. expert, the loss market value of Komis’s 836-37 public per- taken due $1,000,000. The ception jury verdict that, con view holds “while second August 1991. The Kom- was entered on noncоmpensable, jectural damages are modify judgment ises a motion to on filed (or at is shown to reasonable fear August 20, asking to in- court unreasonable) in fact wholly least not eight rate from crease the interest six to the loss value, compensa affects market percent. appeal filed a notice of 274; Dun Willsey, see P.2d at ble.” en- August By judgment letter Dist., Power lap Loup River Pub. August granted tered 745-46 Neb. 284 N.W. the Komis’s motion and increased the inter- *4 impact The holds that on mar- third view requested. est rate as may by ket “fear” be shown value caused parties On the filed a December compensated proving the rea- and without joint jurisdiction of this motion to transfer Willsey, fear. 631 sonableness of that January appeal. By order entered ex 274; see Hicks United States P.2d Appeals of this the Court certified (6th Cir.1959). TVA, rel. 521 266 F.2d matter to us. United States This reaffirmed view was Right Way, ex rel. v. Easement & TVA of
II. TVA, Cir.1968). (6th 405 In the F.2d 305 many studies court noted that demonstrat- City argues, points, The under six that lines ing safety power the had been error was committed in the ad- reversible The Id. at 309. then conducted. evidence, mission and exclusion of certain stated: and court did in a final However, analysis, in final we are con- modify jurisdiction
not
interest
have
only with market value. Al-
cerned
judgment.
addressing
in the
Before
though
objective-
these studies
show
rulings,
first
evidentiary
we
decide wheth-
safety of
ly
complete
these struc-
er,
action, prop-
in partial
a
condemnation
a
tures,
not convinced
certain
we are
erty
compen-
owner is entitled
receive as
segments
buying public may not
re-
sation the diminution
high
of these
apprehensive
remain
volt-
property
by public
mainder of the
caused
lines,
might
age
and therefore
be unwill-
perception
of the use
which the con-
ing
рroperty
pay as much
as
put.
property will be
demned
they otherwise would.
currently three judicial ap
There
view, compensation
Id. Under
this
Willsey
to this issue. See
proaches
of market
even if
awarded for loss
value
Co.,
Light
Kansas
Power &
Kan.
6
fears not
the loss is based on
founded on
App.2d 599,
(1981) (summariz
P.2d 268
631
objective standards.
cases);
Gulbis, Annotation,
ing
M.
Vitauts
Powerline,
views,
Pipeline,
Fear
or Oil
or
Gas
adopt
three
we
Of the
as Element
Dam
objective
third.
in a
Related Structure
Our
condemnation
landowner,
ages
Pro
in Easement Condemnation
compensate
case is to
for
(1983) (same).
damages
actually
“Damages
suffered.
ceeding,
cases is fear of if loss of compensable regardless should of its high-voltage electric lines. The first view be Thus, specu people purchаse is “based on source. if will pure holds that the fear they ignorant public living lation can never fear by an because or work route, ing or damages buyer an even if it affects on or near a WIPP be element of Id., found, only be at a price, the market value of the land.” can but reduced If lowing jury of value exists. this can consider the of a loss loss results proven jury, public-opinion survey landowner should be conducted Zia Re- compensated. jury Associates, the finder of search Inc. hold ad- We jury weighs testimony, fact. deter- poll mitting results was not an credibility witnesses, mines reconciles discretion. contradictory statements, inconsistent ' Zia was commissioned measure determines where truth lies. Ta- perceptions of the value of near Co., pia v. Panhandle Steel Erectors County bypass. Fe Santa Faich, prepared by Ron who has a Ph.D. jury in case this instructed sociology emphasis with research and, verdict, by their found a loss analysis. methods and statistical Faich has and awarded for loss. Of thirty years experience over re- survey $1,000,000 loss estimated the Kom- work. search revealed that nine- public-perception damages, is’s ty-three percent residents of Santa $337,815. awarded County
Fe
were familiar
with
WIPP
eighty-nine percent
fa-
III.
proposed
Seventy-
miliar
bypass.
with the
questions
The next
series of
percent
one
respondents
felt that
*5
presented
which
address whether the
property
bypass
residential
near the
would
trial court
admitted or excluded
money
sell for less
of
because
its location
City argues
certain evidence. The
percentage
prop-
and the same
also felt the
probative value of certain evidence admit
erty would
in
decrease
value.
was substantially outweighed by
ted
the
Respondents
opin-
were also
their
asked
danger
prejudice
of unfair
and that
the
percentage
ion
the
of
value increase or
admitting
in
court erred
the evidence. See
property
decrease
the
caused
the
1986,
SCRA
11-403. The trial court
Forty-one percent
WIPP route.
of the resi-
great
vested with a
of
deal
discretion in
403,
applying
County
Rule
we
dents of Santa Fe
believed that
and
will reverse the
trial court’s
decision to admit or exclude
residential
near the road would
evidence, only upon
showing
that
the
thirty percent
sell for between eleven and
Tyres,
court abused its discretion. Mac
comparable property
prox-
less than
not in
Vigil,
v.
92
589
Inc.
N.M.
P.2d imity
the
road.
1037,
1039
The trial court abuses
There
of
when
was no abuse
discretion
its discretion
the movant can demon
rulings
admitting
poll.
poll
clearly
strate that the court’s
the Zia
was
logic
against the
and effect of the facts and
way
showing public
of
perception
effective
circumstances before the court. See Three
and it was relevant evidence under SCRA
Maddoux,
690,
Rivers Land Co. v.
9.8N.M.
1986,
authority in
weight
11-401.2 The
of
240,
(1982) (holding
244
that
the
of
United States allows the admissiоn
standard, applicable
of
discretion
public-opinionpolls when the results
the
of
equitable
acting
capaci
review of court
Dransfield,
poll
An
are relevant. See M.C.
ty, requires trial
court’s decision
be con notation, Admissibility
Weight
or
reason),
trary
logic
overruled on Surveys
Polls
Public or Consumers’
of
of
grounds,
other
Universal
Church v.
Life
Opinion, Recognition, Preference,
the
Coxon,
sion
poll
results.
Its admission
pages
adopted
have
previously, we
As stated
properly ad
given all
other
harmless
еntity must
government
the view that
regard to the decrease
evidence with
mitted
that fear of a
pay
if it is shown
Davis, 83
value.
Davis v.
See
market
and that fear affects
danger exists
(1972)
P.2d
676
way
poll
an effective
value.
(admitting hearsay evidence harmless when
danger
buyer
potential
fear of
show
evidence). Additional
light
of all
viewed
relevant. Flor-
of that fear is
and evidence
unless
is harmless
ly, admission of evidence
Jennings,
Light
Power &
Co.
ida
rights
party.
of a
(Fla.1987).
Three months
it affects the substantial
So.2d
articles,
pic-
taking, ninety-four
Mowry, 90 N.M.
Proper
before
tures,
appeared in
letters to the editor
We do not
(Ct.App.1977).
concerning
by-
the WIPP
the local media
prejudiced
this evidence
believe
poll
showed
pass
aspect
or some
it.
After
of the facts.
appraisal
in its
matter of common
this fear was a
record
feel that the
reviewing the
we
among
persons
those
from
knowledge
fair,
in a
even
judge handled
would
purchaser
whom
City presented volu
manner. The
handed
Mapco,
Fanning v.
probably come. See
support its case and
evidence to
minous
1970).
(Iowa
Inc.,
181 N.W.2d
For ex
the Komis’s contentions.
counter
Therefore,
a reflection of
Patchin, on three
ample,
City’s expert,
public’s
the WIPP
general
attitude towards
opinion that
expressed
occasions
bypass.
radioactive waste would
transportation of
remainder of
the value of the
not reduce
can be
To the extent
opinion on the
property. He based his
opinion concern
expression
as an
viewed
transporting radioactive
safety record of
probable effect on
ing fear and its
dis
inability to find value
and his
property,
the rule
New
.waste
*6
types of toxic mate
admissibility
lay opinion
from other
crimination
Mexico is that
testified
transported.
the discretion of
Patchin also
is within
rials
Inc.,
Ranch,
weight when
gave
poll
trial court. Hansen v. Skate
the Zia
no
that he
(Ct.
517,
Considering
N.M.
641 P.2d
522
the evi
determining
97
value.
all
regard, a
App.1982).
trial,
In this
Kansas
admitting
opin
dence admitted
testi
nonexpert
held that a
witness can
has
increase or
percentage
on
value
ion data
marketplace if the
fy concerning fear in the
City’s rights.
prejudice
did not
decrease
by showing
proponent qualifies the witness
Schs., 87
Fe Pub.
Maxwell v. Santa
See
knowledge of fears
the witness has
383, 386,
(Ct.App.
534 P.2d
310
P.2d at
by
persons. Ryan,
held
other
815
1975) (discussion
preju
of harmless versus
not a
marketplace
“Fear in the
535.
error).
by
poll
The Zia
also was used
dicial
professional
subject
requiring
technical
witness,
Richard God
the Komis’s
Rather,
dependent
training
it is
to discern.
provide a foun
frey,
appraiser,
MAI
an
as to
upon knowing
opinion
of others
expert testimony on mar
for his
dation
fear.” Id.
taken. The
ket
not
value
questions
City’s
second
of error
the tri
assume that
Even we
a valid
for God
whether the
basis
allowing opin
al court committed error in
opinion. We find no
of discre
frey’s
increase
perсentage
on the
value
ion data
his
Godfrey
court.
based
taken,
by
tion
not
or decrease of
route affected
opinion
that the WIPP
question
error was harmless.
policy
hear-
hearsay
reasoned
considerations all indicate
Generally,
obstacle. See
3.
is not an
Bank,
say
369 F.2d
Bank Utah v. Commercial Sec.
rule should not bar admission of
denied,
(10th Cir.1966),
386 U.S.
surveys).
19
cert.
public
been
conducted
Polls have also
(1967);
also
L.Ed.2d 456
see
87 S.Ct.
Zippo
18
present
exceptions
admitted as
state-of-mind
Inc.,
Mfg.
Rogers Imports
Co. v.
Inns,
hearsay
Holiday
Holiday
rule. See
Inc. v.
(S.D.N.Y.1963) (finding weight
F.Supp.
Am.,
(5th Cir.1973).
Out in
481 F.2d
writers,
аuthority,
legal
case
consensus
remaining property’s
Chalamidas,
value on exclude it. Lenz v.
109 N.M.
including,
several
factors
but not limited
782 P.2d
The trial
to,
poll.
the Zia
factors
great
These
included a
court has a
deal of discretion under
Trail,
videotape
entitled The
admitting
WIPP
a Rule 403 in
excluding
evi-
Mexico, dence,
Dumped
Nation’s Crisis
on New
only
and we will reverse
when it is
publications
Mexican,
in the Santa Fe New
clear that the court abused its discretion.
by
letters
written and actions taken
Tyres,
Mac
Dumped
New
not have
Mexico should
udicial effect.
been admitted into evidence because its
Furthermore,
probative
greatly outweighed by
value
before
video
prejudicial
again,
tape
actually played
jury,
its
effect. Once
we find
judge.
judge
experts,
explained
no abuse of discretion
trial
to them that
judge
Godfrey,
give opin
The
is
A
authorized under SCR
such as
allowed to
1986,11-403
upon hearsay
to exclude
if
ions
evidenсe. He ad
relevant evidence
based
probative
greatly outweighed
allowing
jury
its
value is
vised the
that he was
danger
videotape
prejudice.
of unfair
to be admitted not for the truth
it, but,
party opposing the
because
admission
evidence of what was contained
formulating his
persuading
judge
Godfrey
upon
has the burden of
relied
it in
although
studies
demon-
opinion.4
jury
up
He
told the
it
held that
also
lines, the
weight
give
complete safety
power
God
them to decide what
strate
frey’s opinions
taking everything
segments
and after
remains
certain
issue
whether
consideration,
experts
give
which
apprehensive.
into
buying public
remain
weight
important
It was
the most
to.
transportation of hazardous
Whether the
Godfrey
to know how
reached his
actually
or is not safe
nuclear materials
opinion,
judge
precau
and the trial
took
irrelevant;
the issue is whether
any prejudicial
to limit
effect. “To
tions
dangers
depress-
perception of those
has a
deprive jury of this
is to divest it
a
evidence
property not
ing effect on the value of the
significant source of
informa
of a
relevant
judge did not
taken. The trial
property, thereby
tiоn on the
testimony.
by limiting
discretion
Donovan’s
impairing
evaluating
its function of
weight
given
opinion.”
and credit to
point
fifth
of error
for its
Highway
ex rel. State
Comm’n
State
excluding
a
asserts that the court erred
Carlson,
(Mo.Ct.App.
463 S.W.2d
five-year
study
values over a
1970).
hold that the court’s decision
We
period
Francis
in Santa Fe.
on St.
Drive
contrary
logic
was not
and reason.
proffered study and
The court excluded the
Co., 98 N.M. at
Three Rivers Land
Colvin,
testimony
related
of Denton
cerns the court’s limitation of court). Patchin, MAI, City’s appraiser. Peter City argues the exclusion of IV. testimony regarding Patchin’s poll’s the Zia conclusion as it error, relates to actual market For its final City City loss was erroneous. The argues that jurisdiс contends that the trial court lacked although permitted Patchin was testify modify tion to judgment after a notice gave that he weight, the Zia no he appeal agree. filed. Judgment We prevented explaining from why. August Accord was entered 1991. The Komises ing dire, to his City extensive voir ar modify filed a motion to judgment gues, explained he change would have that based the interest rate eight from six to prior experiences on two polls percent. where were The motion upon was served performed and where he per thereafter counsel City August 20. On appraisаls, formed polls the data from the August City ap filed its notice of up does not hold peal. actual market granted data. The trial court the motion to modify by judgment a letter of entered on First, Patchin was not an on how August 30. We note that the motion was public-opinion poll, to conduct a therefore upon opposing served counsel nineteen voluntary his criticism on the methodology days entry judgment. after Our rules of properly excluded. More procedure require civil that such motion be importantly, a review of Patchin’s entire days served “not later than ten еntry after testimony showed no abuse of discretion judgment.” 1986, 1-059(E). SCRA the trial court. Patchin testified that the factors he in concluding relied on no loss of The trial jurisdiction court was without value to the Komis’s modify were interest rate because the safety transportation record of radio- filed appeal August the notice of active waste material inability Komises, and his relying 1991. The on our recent case, find value types discrimination for other Kelly Kapnison, Inn v.
toxic
transported.
materials
(1992),
Patchin also
argue
court
testify
qualified to
as
landowner who is
interest rate was not
modification of the
pro-
of his own
separate matter
to the value
type of collateral or
Thus,
testifying
personal
from
about
hibited
contemplated Kelly Inn.
lines and
transmission
jurisdiction modify
the in-
fears of electrical
had no
proper-
of the
effect on the value
terest rate.
[their]
However,
other
ty.
the landowner and
foregoing,
affirm the
on the
we
Based
precluded
non-expert
are not
witnesses
except in its
judgment of the trial court
in the mar-
testifying about fear
from
change
judgment
modification of
has been
ketplace once the individual
eight percent.
interest rate from six to
On
knowledge
he has
qualified by showing
issue,
reverse and remand for an
we
Fear
than his own.
such
other
fears
entry
judgment consistent with this
marketplace
is not a technical sub-
opinion.
training to
ject requiring professional
IT IS SO ORDERED.
Rather,
dependent upon
it
discern.
fear.
knowing
opinion
of others as to
FROST, J., concurs.
(cita-
added)
Id.,
(emphasis
fear.
may through polls, we should be shown mar-
emphasize impact that the actual requires expеrt opinion testimony
ket value speculation
and cannot rest on the of those may suffering from what well be who P.2d 762 Ranch, irrational fear. Hansen Skate Mexico, of New STATE Inc., Plaintiff-Appellee, 11- (applying Evidence Rule (Ct.App.1982) lay specifically requires that tes- 701 which BACA, Anthony Ray based); Defendant- rationally v. Kan- timony Ryan Appellant. Co., Light 249 Kan. sas Power & Ryan P.2d 528 As states: No. 19366. purpose allowing ex- general Supreme Court of New Mexico. electrical trans- pert testimony on fear of to show the factors con- mission lines is Aug. reaching sidered the witness and dam- estimated value Non-expert witnesses
ages suffered. qualified testify concerning
are not However, a property.
non-expert qualified corrob- witness provide foundation
orate