This is an appeal by the City of Omaha from a judgment awarding damages to the Graeeland Park Cemetery Company for a taking and damaging of its property in a condemnation proceeding under the power of eminent domain.
The plaintiff is a private corporation owning and operating a cemetery in Omaha. It issued 367 shares of stock of which Duane Beavers, the treasurer of the company and the superintendent of the cemetery, is the owner of 254 shares. The cemetery contains 30 acres of land which was purchased in 1910. It is located in the city of Omaha, the legal description of which is stated in the petition. For the purpose of this opinion we describe it as being bounded on the east by Forty-second Street, on the north by L Street, on the south by Hitchcock Park, and on the west by a residential area. The evidence shows that room for the expansion of its acreage does not exist. The cemetery was fenced on the east and north with a 5-foot, chain-link, steel fence constructed on the property lines.
In connection with the development of a new interstate highway the city determined that it was necessary to widen the intersection of Forty-second and L Streets, and the approaches thereto. Condemnation proceedings
The evidence shows that there have been approximately 7,800 interments in the cemetery since 1913 which occupy about 20 acres of its total area. The land taken by the city lies in the unused portion. A general plan for laying out of roads, walkways, and lots was engineered shortly after it was acquired for cemetery purposes. The land taken adjoins an area which has never been surveyed and staked out on the ground. The evidence is that a cemetery is developed a portion at a time as needed for burial purposes and that the land taken adjoins an area not yet needed for that purpose. The record is silent as to the extent of the development of this area from which the land was taken. There is no evidence that water lines have been laid, or that the land is sodded, or otherwise developed. There is evidence that the land taken was occupied by trees, bushes, and flowers, and of the damage resulting from their removal. There is evidence of the reasonable cost of moving the fence to the new property lines.
The property generally was improved as a modern
park-like cemetery in which the traditional headstones are supplanted with markers set at ground level. The 30-acre tract is a compact area put to permanent use as a cemetery. It is the general rule that in determining the fair and reasonable value of land taken under the power of eminent domain it is proper for the jury to consider the purposes for which it was being used at the time of the taking, all uses for which it is adapted and to which it might be put, and award compensation upon the basis of its most advantageous and best use. Sump v. Omaha Public Power Dist.,
Recognition of the unique value of cemetery property has been noted' by the courts. In Fidelity Union Trust Co. v. Union Cemetery Assn., 104 N. J. Eq. 326,
There are types of property that are not bought and sold on an open market and consequently do not have a reasonable market value within the rule that the fair market value is the price which property will bring when offered by a willing seller to a willing buyer, neither being obligated to buy or sell. The fair market value of property implies proof of sales of similar property in the community as a means of fixing the value of the property taken. When the property is such that evidence of fair market
An appropriate method for finding the value of land taken, which was being used for cemetery purposes, is to determine the value of the burial lots or grave sites taken by applying a unit value based on the average sales price per lot or grave site in the adjoining used section of the cemetery, less the reasonable cost of development, sales, maintenance, administration, perpetual care, and any other expense affecting its value. The unit value thus determined, multiplied by the number of lots or grave sites taken, less a reduction to present worth for the deferred realization over the selling period, will constitute a guide to the jury in determining the value of the property taken. St. Agnes Cemetery v. State, 3 N. Y. 2d 37,
The cemetery company relies upon the evidence of Duane Beavers and Frank J. Priborsky to establish the value of the land taken. Beavers testified that each lot is 14 feet by 9 feet and contains 4 grave sites, each 9 feet by 3% feet. The walkways shown on the original plat are 3 feet in width. He fixes the sale price of each grave site at $125. He stated that 538 grave sites were taken. He fixed the value of the grave sites taken at $67,250. He arrived at this amount by valuing the 538 grave sites at $125 each. Beavers stated that the cost of operation of the cemetery is approximately $20,000 per year and that the interest from the perpetual care fund is about $1,400. The difference of $18,600 is taken from the sale price of lots. In the year preceding the condemnation the sale of grave sites failed
The witness Priborsky is the assistant manager of Forest Lawn Cemetery in Omaha, a cemetery containing 359 acres. He fixed the value of the land taken at $62,500. This amount is calculated on 500 grave sites at a sale price of $125 each. He testified that sales expense usually runs 40 percent of the sale price, that perpetual care requires 25 percent, that depreciation of equipment runs 10 percent, and that there will be some development and other costs. He estimated that 75 percent of the sale price of grave sites is not attributable to the lot itself. Assuming the existence of 500 grave sites taken by the condemnation, he testified that $17,500 only would be attributable to the grave sites. He did not consider the land set aside for walkways, or a buffer area along the fences, which he stated are usually 4 or 5 feet wide. He did not consider the present value calculated for the period of time necessary to sell the grave sites.
The city called three experienced realtors as expert witnesses, none of whom had sold a cemetery property or knew of any sales of such. Their estimates of value were based largely on the value of residential property in the area. One estimated the value of the whole cemetery at $104,000 and the value of the property taken at $1,200. He fixed the damage to trees, shrubs, and flowers at $1,500 and the cost of replacing the fence at $2,100. He estimated that there were 300 grave sites taken which had a sale-price of $125 each. He admitted this would produce a gross amount of $37,500. He did not testify to any deductions to be made to determine the unit price to be applied to properly determine the value of the grave sites actually taken.
The second expert called by the city fixed the value of the cemetery at $80,000 and the land taken at $5,904. He fixed the cost of moving the fence at $2,046 and the damage to trees, shrubs, and flowers at $1,150.
The third expert fixed the value of the land taken at $11,273. He said that 73 percent of the land in a cemetery is ordinarily all that is usable for grave sites. He estimated the land taken would provide 300 grave sites which would sell for $125 each and that it would take 10 years to dispose of them. He concluded that the cemetery would produce an income of $1,605 per year for 10 years which, reduced to present value, would fix a value of $11,273. While some of the foregoing evidence was stricken by the trial court, we think it was proper evidence when the unit theory is employed to fix the value of property taken by condemnation.
The cemetery company, as the owner of the land taken, had the burden of establishing its value in the condemnation proceedings. Platte Valley Public Power & Irr. Dist. v. Armstrong,
It is true that the plaintiff may rely upon evidence offered by the defendant to support a verdict if it is sufficient. But there is no evidence by the defendant in the record that will support a verdict for $28,125. We necessarily conclude that the verdict is not sustained by the evidence and that the judgment should be reversed and the cause remanded for a new trial.
The defendant tendered an instruction which substantially complied with the rule to be applied in fixing the value of land taken by condemnation under the unit sale price rule. The instruction was refused. It should have been given in substance, and the court erred in failing to do so.
The record is barren of any evidence as to the value of the grading easement. We think the trial court erred in submitting the issue of damages resulting from the taking of the easement, other than to direct the assessment of nominal damages.
In view of the conclusion reached, we will not discuss other assigned errors. The judgment of the district court is reversed and the cause remanded for a new trial.
Reversed and remanded.