The Board of County Commissioners of Billings County [Board] appeals from a district court judgment awarding Paul Dut-chuk $5,305.11, exclusive of costs and interest, in an eminent domain action. We affirm, award attorney fees, and remand with directions.
Pursuant to Article 1, § 16 of the North Dakota Constitution and Chapter 32-15, N.D.C.C., the Board deposited $1,292 with the Clerk of the Billings County District Court to purchase 3.86 acres of permanent highway right-of-way easement and 1.15 acres of temporary slope easement from Dutchuk for a road improvement project. Dutchuk appealed to the district court, contending that the amount of compensation was inadequate. The parties waived a jury trial and stipulated that the fair market value of the property taken was $1,292, leaving only the issues of severance damages and attorney fees for trial.
At trial Dutchuk presented the testimony of an independent fee appraiser, D.W. Knudson, to support his request for severance damages. Knudson testified that he had conducted “several thousand” land appraisals since 1939. Based on his experience as an appraiser and using a comparable sales approach wherein he placed a before-taking value of $250 per acre and an after-taking value of $230 per acre on the remaining property, Knudson opined that the amount of severance damages incurred because of the taking of Dutchuk’s property was $3,074.75.
The district court determined that Dut-chuk was entitled to $1,292 for the stipulated fair market value of the property taken, $2,895 for severance damages to the remaining property, $962 for attorney fees, and $156.11 for his attorney’s actual out-of-pocket expenses. The Board has appealed.
The dispositive issue on appeal is whether the trial court’s findings of fact regarding the amount of severance damages are clearly erroneous. 1 The Board asserts that Knudson’s appraisal was based on his assumption that severance damages to remaining property always occurred whenever there was a taking and that Knudson “simply pulled a figure out of the air” to support his opinion as to the after-taking value for the remaining property. The Board also asserts that the trial court’s findings were based on an erroneous view of the law regarding the distinction between severance and consequential damages.
A party claiming damages in a condemnation proceeding has the burden of proof to establish the amount of damages incurred.
E.g., City of Hazelton v. Daugherty,
In this case Knudson testified that he used a comparable sales approach for appraising the property and based his before-taking and after-taking appraisal of the remaining property on his years of experience as an appraiser and his opinion that, although there was presently a house about one-hundred-eighty feet from the new easement, the best location on the remaining property for a homesite was about fifty feet from the easement. Knud-son further testified that the value of the remaining property was thus diminished by the location of the best homesite in relation to the easement. We believe that Knud-son’s testimony, when contrasted with Griffin’s testimony about the requisites for awarding severance damages, provided sufficient competent evidence for the trial court to find that the value of Dutchuk’s remaining property was diminished by the taking.
Moreover, we do not believe that the trial court’s findings of fact were based on an erroneous conception of the law regarding the distinction between consequential and severance damages. In
Little v. Burleigh County,
The trial court’s award of $2,895.00 in severance damages was less than Knud-son’s appraisal of $3,074.75 and was thus within the range of severance damages testified to by Knudson.
Lineburg v. Sandven,
Dutchuk also requests costs and attorney fees for defending the judgment on appeal. In support of that request, his counsel has submitted an affidavit requesting $1,853.75 in attorney fees for defending this appeal.
In 1967 the North Dakota Supreme Court concluded that Section 32-15-32, N.D.C.C., did not authorize attorney fees for a trial de novo in the Supreme Court because the Legislature did not intend to extend that section to an appeal.
Frederickson v. Hjelle,
The judgment is affirmed and attorney fees on appeal are awarded in the amount of $1,200. On remand, the trial court is directed to modify the judgment accordingly.
Notes
. On appeal the Board has not raised any issue about the award of attorney fees by the trial court.
. At the time of the decision in Frederickson v. Hjelle, supra, Section 32-15-32, N.D.C.C., provided:
“32-15-32. Costs. — The court may in its discretion award to the defendant reasonable actual or statutory costs or both which may include reasonable attorney’s fees. In all cases when a new trial has been granted upon the application of the defendant and he has failed upon such trial to obtain greater compensation than was allowed him upon the first trial, the costs of such new trial shall be taxed against him.”