27 Wis. 2d 351 | Wis. | 1965
Defendant’s principal challenge is to the sufficiency of the evidence to support the verdict. It also claims to have been prejudiced by evidence which the jury heard, but was later stricken, and by alleged improper argument.
Defendant points out that the easement and transmission line do not materially impair the usefulness of plaintiffs’ land as a farm. Farm machinery can pass under or around the tower with little inconvenience. Defendant contends that residential development of plaintiffs’ land is a speculative and merely possible future occurrence, too remote for consideration in determining market value. Plaintiffs contend that the most-advantageous use of the land, within a reasonable time in the future, is for residential development, even though it has been used for farming up to now. They claim that the strip subject to the easement (4.722 acres) is useless for
Mr. Fiedler was the only expert witness on value called by defendant. He resides in Milwaukee, and makes land appraisals, having retired from the farm-loan department of an insurance company. In his opinion farming is the best use for plaintiffs’ land; the market value of the entire farm was $84,665 before the taking and $84,215 after the taking, the damage being $450. It is undisputed that there is no present substantial development of land in the town of Paris for residential purposes.
Plaintiffs called two expert witnesses. Dale Kreuscher is a real-estate broker living on a farm he owns in the town of Paris. He has noted an increase in demand for small residence tracts. He has made sales to people from Chicago who can drive to work there on 1-94 in an hour and fifteen minutes, and to people from Kenosha and Racine. The prices for such property are rising. He had purchased a 70-acre tract on the west side of MB north of plaintiffs’ property. He has not subdivided, but has sold one acre and a half lot for $1,660 and another for $2,000. He considered plaintiffs’ land east of MB worth $400 per acre before the taking. His opinion of the value before taking was $30,000 (derived by multiplying $400 times 75, rather than 79). He deducted $1,890 (4.722 acres, rendered useless, at $400 per acre) and deducted $7,500 more (75 times $100, estimated loss of value per acre because of the undesirable presence of the tower). This produced a difference of $9,390 and a value after the taking of $20,610.
Leonard Smith is a real-estate and mortgage broker living in the adjoining town of Somers, with training in appraisal work. In his opinion, subdivision of plaintiffs’ land into acre or acre and one half lots would be the most-
Plaintiffs’ experts considered that the transmission line affected the value of the land east of the road, only.
The record shows nothing with respect to the value of the farm buildings except a statement by Dale Kreuscher that they are of no great value. Apparently they are east of MB. It may be inferred that Fiedler placed a substantial value on the buildings and that this is reflected in his valuation of the farm as a whole.
The court instructed the jury:
“. . . In answering all of the questions in the special verdict it is proper for you to take into consideration, as shown by the evidence, the use to which the property was put by the owner, or any other use to which it was reasonably adaptable, and you may base your determination on the most-advantageous use shown to exist either at the time in question or within a reasonable time in the near future. The future uses considered, if any, must be so reasonably probable as to affect present market value. They must not, however, be mere possible uses based upon mere fancy, speculation, theory or conjecture.”
The instruction is supported by decisions of this court.
Counsel for defendant has pointed out two instances where evidence was stricken by the court, upon motion. One was an incomplete statement as to the provisions of statutes relating to subdivision. The portion stricken could not have been prejudicial. The other was an answer that there was the possibility that the company would come in for maintenance purposes, and a buyer would shy away because of this possibility. It is questionable whether the terms of the easement would permit defendant to cross the other land of-plaintiffs in order to enter the 150-foot strip for maintenance purposes, but we deem it highly improbable that the jury’s hearing of the answer had any material effect upon the verdict.
"Court: I appreciate there is no issue as to the width of the easement and why they took it, but counsel may draw inferences from the taking if they are pertinent to value.”
On motions after verdict the court recalled that:
. . plaintiffs’ counsel argued in substance that the taking of a 150 foot strip did not appear to be necessary for construction needs and therefore was apparently or presumably taken to insure further safety. The argument went on as I recall that therefore it would appear that the company realized there was an element of danger which might very well affect the market value of these lands for home site purposes so far as the buyer was concerned. My ruling must, of course, speak for itself. I thought then and I believe now that the argument was fair comment as long as the jury understood there was only the question of value involved. I do not believe that the remark was prejudicial. It seems to me that the verdict itself reflects no prejudice.”
We find no prejudicial error.
By the Court. — Judgment affirmed.
Alexian Brothers v. Oshkosh (1897), 95 Wis. 221, 223, 70 N. W. 162; Muscoda Bridge Co. v. Grant County (1929), 200 Wis. 185, 190, 227 N. W. 863; Carazalla v. State (1955), 269 Wis. 593, 598, 70 N. W. (2d) 208, 71 N. W. (2d) 276; Utech v. Milwaukee (1960), 9 Wis. (2d) 352, 356, 101 N. W. (2d) 57. See also sec. 32.09 (2), Stats.