*1 HEATING & PLUMBING JAMESTOWN Appellant, COMPANY, Plaintiff Dakota, JAMESTOWN, North OF
CITY corporation, municipal and the State Hjelle, Dakota, Walter R. North Dakota, Highway of North Commissioner Respondents. Defendants and 8451.
No.
Supreme North Dakota. Court 24, 1968.
Dec.
Rehearings Denied Feb. *2 for the distance from the Street S.E. James bridge
River eastward to Twelfth Avenue S.E., year in the owns S.E., fronting Lots 5 and 6 on Tenth Street and, adjacent to rear Lots 5 and fronting Lots 8 and 9 Second Avenue *3 plaintiff’s The building 5.E. store is on 6, Lot on the corner of Tenth Street S.E. property is and Second Avenue S.E. This bridge. a short the The distance east of improvement widening the consisted of portion to traveled of Tenth Street S.E. lanes, thereby eliminating the boule four portion bringing the traveled vard and up the sidewalk the street 4.2-foot wide building. plaintiff’s in front of the store taken plaintiff’s of the was None improvements. grade Tenth for the The prop plaintiff’s the in front of Street S.E. erty inch front of Lot was raised 3%ooths and, 5, 6, to the 3 inches in front of Lot plaintiff’s property, 7.44 inches west of 4, lot owned front of Lot which was city. from improvement,
After
water
the street
52 acres
drainage
approximately
area of
streets
through
upon
flowed
the
plaintiff’s property. Prior
abutting
the
improvement,
drainage
the
the street
approximately 16 acres.
area consisted
of the
plaintiff
that because
The
claimed
quantities
drainage area excessive
greater
converged in the streets
rains
water from
building,
his
overflowed
at the corner of
curb,
building
the
under
into
the
and flowed
Bismarck,
Mac-
Sperry,
Floyd B.
plaintiff
door,
requiring
front
appel-
for
Jamestown,
Jungroth,
&
Kenzie
try
keep
stuffing
door
pack
under
lant.
up
water on
out,
mop
and to
water
floor;
splashed and
that water was
Moran,
re-
Jamestown,
M.
Kenneth
plate glass
against
gravel was thrown
City
spondent,
of Jamestown.
traffic;
that the
passing
.ex-
windows
settle;
building
caused
cessive water
Gen.,
Kerian,
Bis-
Atty.
Asst.
R.
Jon
reconstructed;
to be
building
that the
Hjelle,
R.
marck,
respondent, Walter
the side-
settling
and that there was
Com’r.
Highway
State
damage
claimed
plaintiff
also
walk.
because
retail trade
loss of most of its
KNUDSON, Judge.
building
access
the front of
parking,
street
destroyed by the loss of
De-
Highway
The North Dakota
corner
being on
northeast
next
entrance
joined with
partment
Jamestown
improvement.
Tenth
street
project for
in a
,his property
claimed
busi-
maintain an action
just
to recover
$75,000.
compensation
ness
the amount of
for the
taken or
the damage inflicted.
jury
brought
dismissing
a verdict
wherein we cited Gram Const.
v.
Co.
plaintiff’s
court,
complaint.
over
Minneapolis,
Co.,
P. &
St.
S. St. M. R.
objection
plaintiff,
of the
assessed costs
164,
732;
N.D.
161 N.W.
Schilling v. Carl
against
$2,112.88,
sum of
Township,
126;
60 N.D.
235 N.W.
and judgment
accordingly
was entered
Mayer
Co.,
v. Studer & Manion
66 N.D.
against
plaintiff.
The trial court denied
925;
King
N.W.
Stark
plaintiff’s
motion for a
trial. The
new
771;
67 N.D.
271 N.W.
plaintiff appealed
judgment,
from the
from
Jacobson
State,
ship, 480, Grant 60 N.D. 235 N.W. 126, 131. We have held on numerous occa provi sions under this constitutional Since the guarantees Constitution may sion the owner maintain action to right compensation, obligation this is damages recover the taking prop of his implied in effect an on part contract erty consequential and for damages to his compensate state to for the damage property resulting public a use. which it has caused. Mayer Co.,
We said Donaldson v. Studer & Manion 66 N.D. 190, Bismarck, 808, 925, 262 71 N.D. 3 N.W.2d 817 N.W. (1935). (1942): What “compensation,” recovered is presupposes contract, a expressed provisions Section implied. It is damages in the strict Constitution are not restricted to eminent sense of the word. proceedings. They applicable are
domain private property where as well has been State, 278 N.W. Jacobson or damaged taken without the consent (1938). owner, and where condemnation proceeding brought. has been It is well In constructing public such a improve- * * * ment, that in settled such case the the county constitutional became obli- may guarantee gated and the owner invoked, be to the landowner upon “implied pro- sistent regarding statement eminent domain valuations under contract” placed property, by asking Con- 14 of Mr. of Section visions ** previous Arneson he made *. a stitution whether appraisal and had arrived at County, 82 N.W.2d Burleigh Little v. plaintiff’s property. $8800.00 (N.D.1957). objection court sustained the defendant’s questions. have tried parties As all of the action in it is an theory case on question required the witness to cate- provisions within verse condemnation gorically deny affirm or the statement at- Constitution, Dakota 14 of North of § tributed to him. specifications the several will consider attempt qrror lay Where an is made assigned a impeachment foundation for the theory. of a light oLthat witness on the ground that has made he the court plaintiff contends prior inconsistent regarding statements permit refusing erred issue, a material the questioning must witness, Harry expert cross-examine the take the form of requiring witness to Arneson, city of a witness for James- or deny making specific affirm state town, prior statements reference to with ment, and if the answer is one of denial damages of the by him relative to made impeached be subse employed having been plaintiff, Arneson *5 quently producing evidence to the effect the dam- plaintiff to evaluate by first that actually he did make the statement by employed the defendant. then ages, and which he denies. examination, Mr. Arneson tes- direct On Bigger, Sylla- Sather v. 107 N.W.2d requested by had been tified that he 1 (N.D.1961). bus in Decem- property at the plaintiff to look ap- make an he did not that case, ber but In the instant the witness was not that impression praisal he was under permitted as deny to affirm specific or em- dropped the matter of plaintiff had statements that counsel attributed to him plain- appraiser, as the an ploying him as by question. He should have been re- be a settlement. thought might there quired tiff deny to affirm or making the City an Later, as he was retained statements ques- attributed himto had been no settlement appraiser because tion. If the required to had the de- between question, reached answer the and if the answer had fendants. denial, been one of the witness then impeached be by subsequently produced evi- the defend- examination for On direct dence that actually prior he made the state- that, ants, “Based on Mr. Arneson testified ments attributed him. value, I the land change [inflation] would building than was in 1960.” it say that is worth about today [1966] $20,000.00 more this land and plaintiff from proceeding peach the witness. The ruling court further precluded to im- plaintiff, by the On cross-examination The court erred in sustaining objec- value of the Mr. Arneson testified tion question to this regarding a material improvement before the street issue this case. This leaves us alter- immediately street after the native but to direct that the re- judgment be approximately the same. versed, and a trial granted. new There are on cross-examination specifications numerous other consider; Mr. of error which sought impeach Arneson on we need not however, prior that he had made a incon- since we are ground directing that a new granted, trial be there are specifica- several rule is that: tions of error which we should consider qualifications proffered ex they may as up on a come retrial of pert primarily witness are a matter to case. be determined trial court and his respect determination with thereto will will, then, We the plaintiff’s consider appears be unless that he reversed it contention refusing that the court erred in has respect. abused his discretion in permit Eugene testify Weekes to an as Suko, Fisher v. (N.D. N.W.2d expert witness plain- with reference to the 1959). tiff’s or before values and after improvements upon the street the objection cited, asserting In this rule this court made cases, defendants on the ground among other Bismarck qualified expert the witness as was not an Casey, (1950). N.W.2d .appraiser appraise and to Casey, The rule in Bismarck testify with the damages. reference to supra, reads as at 375 follows: the record deter-
We reviewed “It is settled that whether wit- well mine whether a sufficient foundation was expert qualified ness as an offered qualify expert laid as Mr. Weekes an opinion in the give very largely rests appraiser. that Mr. had We Weekes find the presiding judge, whose discretion of general experience apprais- considerable clear- not be reversed unless decision will kinds, urban, ing properties rural and of all ly as a matter of law.” erroneous commercial, either residential and individu- clearly un- this rule is more believe ally as an employee of or associate Suko, supra. as stated Fisher v. derstood professional appraisers. had of other He in the case Applying this rule instant testified in both federal and state courts find its discretion the trial court abused expert appraiser. as an He subscribed testimony Mr. Weekes. excluding professional periodicals journals, *6 library appraisals, access a on to substantial that the plaintiff further contends referred to time which he used and from the instruc- giving following in court erred appraisals property. in of making time tion, excepted plaintiff: was which prop- He had made examination of the an you are determining any damages, In erty compiled question a record in and had improvement that was to assume properties the sales commercial of of other you properly constructed and therefore prepared ap- an in town and had James any your in permit not discussion should praisal property purpose this for the of of the im- on or deliberations whether not expert in testifying this case as an witness. provement properly as constructed this in this case. is not an issue we that a From this record conclude said that the instruction trial court qualify sufficient foundation was laid to preclude any consideration was intended expert is Mr. Weekes as an witness. It design negligence poor of of experience jury or our view that which the in the of street. We construction gained making appraisals had from “does not the Constitution himself, said that 14 of generally, by property and of § upon damages resulting bear acquired ex knowledge and particular corporations public or their negligence of other perience gained associated with while that agents; it deals with those experts appraising properties commercial of normally the exercise testify expert would flow from as an wit qualified him to Hamilton power domain.” prop eminent of value commercial ness of of 321, City Bismarck, N.W. 71 N.D. 300 of this erty in case.
361 see, 631. And Kinnischtzke v. of Glen King v. Stark 67 N.D. In 260, Ullin, 495, 588; 771, 57 N.D. N.W.2d 271 N.W. said under 14§ Co., Mayer N.D. of the v. Studer & Manion Constitution of Dakota North 190, state 262 N.W. is liable consequential damages taken, property not the property where Ullin, In of Kinnischtzke v. Glen taken, may is not public arise from a supra, this at court said: N.W.2d improvement whereby the sus owner has special tained a damage respect may may result in with to his or Negligence nuisance, and, excess of that a sustained the creation of public hand, generally, and results in a diminu he created other a nuisance tion the property. value of The distinc- In Don wholly negligence. without Nuisances, City Bismarck, aldson Am.Jur., tion is set out city N.W.2d we said a where Section thus: establishes, operates maintains dump a “liability is on a negligence based a consequence as market value of while, care, ordinarily, proper want of the property substantially depreciated, is a creates maintains person who such damaged has been within the resulting in- is liable for nuisance purview the Constitution of 14§ degree regardless of the jury to others recovery North Dakota is limited to avoid such care or skill exercised depreciation property. in value injury.” further said: said, page at 599: also And therein we The evidence the actual condi- showing exception constitutes Negligence dump created tion the incon- the North 14 of provision [section venience, annoyance, and discomfort any Constitution], nor tort Dakota occupant premises of the had private prop- exception. If kind made an subjected, and con- probably will use, public erty damaged is taken or subjected, obviously tinue to be cases, in all be made compensation must upon ex- bearing direct the nature and employed or the means regardless of permanent injury prop- tent of part intent on the intent or the lack of erty depreciation and the amount of public officials. ** * injury. value resulting from such where a munici We conclude inconvenience, annoyance and dis- negligent care or pality purposely with due occupant of the to which comfort ly constructed street so *7 premises subjected as a result of will be which resulted that it a nuisance created among pollution the of the air were the municipality is the damage property, to the depreciate principal tending factors the damage, regardless of liable for the in- and the property; the of the value lack intent employed or the or the means such jury occupant resulting to public officials. part of intent on the of inconvenience, annoyance and discomfort naturally fixing be considered would believe the instruc Accordingly, we So, realty. damages injury for that misleading may and tion have been per- also, which created conditions given, and have should not reason de- injury with the resultant manent on a given be it not suggest that should neces- preciation premises in value of the this case. retrial of depreciate the sarily would affect and that the contends plaintiff further The property; rental or value usable of objections to tes- sustaining court erred depreciation usable in rental or and to the timony relating damages necessarily would be considered value vibrations, annoyance, traffic and by caused fixing depreciation in market value. hazards. 362 relating breaking Bismarck, president of supra, at
Donaldson of v. plate by thrown glass windows stones is by passing into There them the traffic. no merit to this The contention. Accordingly, opinion we are of the was asked the dates on which permitted have that the court should replaced. cross-examina- windows were On of testify on these witnesses to conditions purpose tion the defendant of by for the vibrations, and hazards annoyance, traffic he was laying objection, he testified that re as insofar such conditions replaced not all win- sure whether of the the value sulted in a diminution of of the dows broken rocks stones thrown were property and that court erred we believe from the The street. court sustained excluding testimony concerning these objection plaintiff ground on the that the conditions. could not swear as to the cause of the breakage. There here. window is no error further contends plaintiff testify only witness could to facts objections sustaining the court erred in knowledge. Teegarden he had testimony parking regarding loss on Dahl, Here, (N.D.1965). 138 668 N.W.2d This court has held Tenth Street S.E. knowledge his were of how the windows regulate parking power cities have the broken was indefinite and uncertain. streets, and in the case and traffic on its president not sure testified he was Grand Dacotah Hotel Co. whether all of broken windows Forks, (N.D.1961), we 514 N.W.2d by stones the street caused thrown from said: by passing traffic. statutory lay city power A has that the further contends clean, out, alter, establish, repair, open, testimony excluding re- court erred m oth- widen, vacate, pave, park, or grade, lating the loss of and decrease business improve regulate use erwise and ground it was in walk-in trade on the regulate and obstruc- prevent streets speculative did too not uncertain tions and thereon. encroachments go property. to the market value generally legal It is that no dam- held Burleigh We said in Little v. age results where traffic diverted Syllabus (N.D.1957): at N.W.2d authorities incidental ensues. loss Generally, legal results damage pri- county taken though a has Even where traffic is diverted authorities public purpose, vate and incidental loss ensues. 1943, 32-1522, statute, does NDRC business ex- for increased allow Am.Jur.2d, Domain, Eminent § such, although this should pense, as if (1966). plain- depreciate market value fact, testimony In discloses that the land, evidence become tiff’s such would unhampered has free access that issue. material on the street the intersection Tenth at *8 Street Avenue S.E. where- S.E. Second Therefore, the court we believe go its customers can off Tenth Street injury excluding erred in evidence either Avenue S.E. S.E. onto Second if such profits and loss of business Street is available on parking direction. depreciate the market injury and loss would customers. Second Avenue S.E. property. plaintiff’s value specifications of error have contends that Other considered, but as have testimony asserted which we excluding the court erred in likely they in essence rehearing are assert they present which the issues applicable apply unim- trial are now that this Court failed in a new arise specific of a new law facts granting rules of portant because in this them trial, not discuss case. we shall
opinion. allega- specific have considered We 28, 1966, as of December judgment petitions, in each of contained tions pursuant clerk order amended allegations equivalent to are which 22, 1967, is re- the district court June briefs respective their made in contentions granted. new trial versed and appeal, we have resistance to accordingly merit. be without found to STRUTZ, TEIGEN, J., PAUL- C. opinion. original to our adhere ERICKSTAD, JJ., concur. SON are, rehearing there- petitions for Rehearing Petitions On fore, denied. KNUDSON, Judge. TEIGEN, STRUTZ, J., and PAUL- C. and the of Jamestown ERICKSTAD, concur. JJ., petitions for SON Dakota filed
of North