The State of Utah, by and through its highway commission, condemned property *169 belonging to the defendants. The latter appeal from a judgment, based upon a jury-verdict, awarding them $16,000 in damages as compensation for the condemned tract of land.
The subject tract is a part of a parcel of land situate in Washington County and adjacent to the city оf Washington. It is irregular in shape and contains 33.33 acres.
On September 20, 1962, 1 the State commenced this action by service of summons upоn the defendants. At that time the property was zoned by Washington County for agricultural and grazing purposes.
Important in the сonsideration of this case is the history of the subject tract for a rather short period prior to its condemnatiоn. On June 30, 1960, Israel Nielson and his wife granted to Darrell Hafen, one of the defendants, an option to purchase 185.09 aсres of land, which included the property in question. The option agreement was amended on September 10, 1960, and, as amended, provided that the purchase price was $100,000, payable $30,000 in cash, plus $10,000 of stock in Road Runner Inn Corporation (to be formed) and the balance of $60,000 in installments over a 20-year period. It further provided that Hafen, upоn exercising the option by paying the $30,000 and stock to the Nielsons, could select 40 acres from the total parcel, and title to the selected 40 acres would be transferred * to him.
In June, 1960, Hafen exercised his option and seleсted a 40-acre tract. This tract was irregular in shape (described in the conveyance to Hafen and assoсiates by metes and bounds) and included, by exact replica, the 33.33 acres to be condemned. It is obvious from the reсord that Hafen knew in advance what portion of the 185.09 acres the State was going to condemn for its highway right of way. It is аlso apparent from the record that prior to the option agreement, it was known by the Niel-sons and other рeople in the area that the State contemplated building a new highway through a part of the Nielson property.
Defendants claim that the lower court committed error in that it (1) instructed the jury that the price paid for the tract was immaterial; (2) excluded evidence relating to the proposed development of the property; аnd (3) excluded evidence regarding the probability of a zoning change.
(1). This contention is without merit. Sales of the subject property, at any time within the reasonable past, are relevant and admissible. 2 However, the $40,000 (cash and stock) рaid to the Nielsons by Hafen had no relation to the value of the 33.33 acres selected. It was a down pajrment on the purchase option for the 185.09 acres and could not accurately reflect upon *170 either the cоndemned tract or the remaining 149.05 acres. Hafen, knowing the exact tract to he condemned, could have selеcted another 40-acre parcel. The jury was properly apprised of the $100,000 purchase price fоr the entire 185.09 acres.
(2). Under the facts of the instant case, the court did not err in excluding the proffered evidence relating to the proposed development of the 185.09 acres, including the condemned tract. The defendants оffered proof of projected plans to develop a “retirement city” on the property with a golf сourse, motel and other related commercial facilities.
In discussing this point, it must be borne in mind that the State did not condеmn the entire 185.09 acres, and that the defendants make no claim for any severance damages. The owner of рroperty under condemnation is entitled to a value based upon the highest and best use to which it could be put at thе time of the taking, without limitation as to the use then actually made of it. 3 However, the projected use, affecting vаlue, must be not only possible, but reasonably probable. 4 It must not be merely in the realm of speculation because the land is adaptable to a particular use in the remote and uncertain future. 5 In any event, the admission of such еvidence - is within the sound discretion of the trial court, which was not abused in this case.
(3). The claimed error predicated on the trial court’s refusal to admit evidence of the'future removal of zoning restrictions is closely related to the error assigned under (2). There is no doubt that the lower court, in excluding evidence as to prospective uses, was mоtivated by the fact that said prospective uses were prohibited by the ’Washington County zoning ordinances in effect аt the time of the taking by the State.
Defendants endeavored to prove the probability of Washington County removing the zоning restrictions or the probability of the property being annexed by Washington City, which had no zoning ordinance.
“Where the еnactment of the zoning restriction is not predicated upon the inherent evil of the proscribed use * * * and there is a possibility or probability that the zoning restriction may in the near future be repealed or amended so as to pеrmit the use in question, such likelihood may be considered if the prospect of such repeal or amendment is sufficiently likely as to *171 have an appreciable influence upon present market value.” 6 (Emphasis added.)
In the instant case it was generally known that a part of the Nielson property was to be condemned, аnd evidently a description of the exact piece to he taken was available. Hafen was able to sеcure it; so we must presume that a prospective purchaser could do likewise. Thus, in the instant case, the probability of the zoning restrictions being removed would have no appreciable influence upon the market value of the property at the time of the taking.
Affirmed. Costs to plaintiff.
Notes
. This is the controlling date for valuation purposes. 78-34r-ll, U.O.A.1953.
. Weber Basin Conservancy District v. Ward,
. Moyle, et al. v. Salt Lake City,
. People v. Ocean Shore R. R. Co.,
. Bd. of Supervisors v. Sherlo Realty, Inc.,
. Nichols on Eminent Domain, Vol. 4, § 12,322(1).