*1 оpinion, that Biers- the lower court found servicing obligated to
dorff was continue equipment. The advances of
Brumfield’s ap- notice of
service made after actual
pellant’s by respondent lien was received
were, therefore, up secured to an accrued $16,000.
value
Rehearing denied. Doyle Idaho,
The STATE ex rel. R. Thomason, SYMMS, B. Howard and C. Ed Flandro, Highway Board Idaho Direc tors, Plaintiff-Appellant, GRAVEL, INC., AND SAND
NELSON corporation, Defend ant-Respondent.
No. 10470.
Supreme Court of Idaho.
April 1970. May 18,
Rehearing Denied *2 Hohler, Tway F. and Anton Idaho-
Faber Boise, Department Highways, appel- lant.
Elam, Burke, Jeppesen, Boyd,. Evans & Boise, respondent.
M'cFADDEN, Chief Justice. 22, 1967,the of Idaho On December State by complaint seeking- instituted this action portion of a land owned condemnation defendant-respondent fee Nelson Gravel, Inc., by the- Sand and to be used bypass In- state for section of the Boise Adjoining terstate 80N. forty by respondent is acre respondents had a lease- on which land did not mention The state state. action.
this land in condemnation leased However, amended in its complaint sought severance- answer alleged in its counterclaim damages and land and' a lease the state that it held compensation for was entitled to state lease. held under the land the vari- following diagram sets out parcels ous of land involved to- action, relationship of each the Inter- the boundaries other and A Tract Highway through the land. state by respondent; in fee land owned with purchased by respondent, B of‘ to the State rights reserved Nelson, H. and later Idaho; Nelson and O. as- tract C is land owned Idaho, respondent corporation. signed R. originally but leased to O. *3 Gravel, through gravel рrocessing for Respondent takes Sand Nelson R. Inc., plant located on tract C. In 1953 O. engaged mining, has been Nelson, H. the stockholders selling the Nelson and O. processing and opera- in their individual respondent, obtained Boise area since Its year ten from the State tract of land de- names a lease tions are located on the tract C. diagram, gravel rights in the above nominated tract A for an in 1963 by respondent in This lease renewed fee. the renewal year period; ten gravel pits from which additional respond- of the two In 1967 the contacted the names state again being taken Subsequent regarding acquisition to in- ent of 5.48 acres of individuals. Nelsons as high- prior proposed tract B interstate but this action stitution way. parties agree- could reach no respondent’s and coun- answer filing of paid, terclaim, their ment as wives as- Nelsons and but on November 1967the state re- signed this state lease to cor- spondent agree- executed a memorandum poration. posses- authorizing ment state to take lease, the Under the terms of the state B sion 5.48 acres on tract for which lessees had the to remove paid respondent’s use state into court premises and to use sо much $3,448.00. sum On December *4 the area as neces- surface of tract C was 1967, the state then instituted this action sary reasonably to and incidental the re- for of the acres and condemnation 5.48 gravel premises. of the moval the from respondent. summons on served provided The lease that the lessees also negotiate respond- The state did with pay twenty-five per per would cents acre ent concerning any of the land on tract C advance, annum as ten well as cents highway through which interstate the per yard gravel cubic of taken from the passed and did condemnation of not sеek premises. provided The lease that it was way complaint. right of in its On year for a preferential ten term the “with 2, 1968, however, April notified the state right in the lessee of renewal under such respondent by respondent the mail readjustment of the terms and conditions permitted longer would be to remove of lease as the State Board of Land Com- portion gravel from of tract C may necessary missioners to determine be right way. to for be used the interstate of lessor, of the unless other- provided by wise law at the time of the January respondent an- On expiration Paragraph of this of lease.” сomplaint, an- alleging the it swered the provides: lease other of which would be by injured por-
“That there is expressly taking of the reserved the reason right permit to joint May 1968,respond- for use such tion tract ease- B. On ment or right way upon, ent counter- through or filed an amended answer and hereby leased, the lands occupied alleged it that as of the date or used claim wherein may necessary appropriate or complaint to of the state’s of sum- the service working mons, of the respondent equitable same the or bene- other lands was containing deposits, mineral on tract the ficial of the leasehold estate owner treatment shipment products compensation it to C and that was entitled by thereof authority by right under taking the state of the of the lessor, permittees, way its lessees or out of this and for tract for severance public other purposes.”’ byA of the damages done to tract virtue highway purposes taking of the land for Respondent, prior action, to the out counter- of both B and C. The tracts had B, an easement over tract but later alleged obtained claim that the purchased rights the surface to B in nearly the gravel all of its from order tо assure shorter haul of the oc- C and loss that the gravel pits from the tract C the by taking by the the would casioned state on Tract A. As diagram, illustrated in the A as a lessen the value of tract for use tract B adjoins C, both tracts A and plant. gravel processing for location its connects However, along the two them. the northerly boundary replied to the of tract B The state counterclaim the Power Company strip summary on the judgment owns a land for moved width, feet strip ground which has counterclaim on that the lease been used the public roadway. reserved issued to. state pur- appealed public judgment, The state for state an easement to the contending appro- among things,
poses entitled state which respondents awarding damages court erred in priate trial without taking way purposes right over highway because of land needed lease, paragraph supra, re- the motion and 16 of the which The court denied tract C. way right serves a to the proceeded state. trial. case para- contention state’s this Following jury, was trial before graph in the lease was authorized to answer, jury given interrogatories to appropriate the land needed for the inter- interrogatories to effect answered necessity highway without state by the land taken the value taking. compensating lessee for the $13,760.00, and that B state on tract was remaining land damage to the done opinion purpose It is $17,000.00. As was reason lease, supra, is to paragraph 16 of the land, jury in answer to the found leased right grant to the state the reserve interrogatories that fair market across lessee’s leasehold taking, free C before the value of tract permittees ad other lessees reach lease, $80,000.00; that and clear of the jacent deposits containing *5 of beforе the this land fair market value order and to cross the in lessee’s leasehold lease, subject taking, the to the if sold ship to minerals mined on other leaseholds $40,000.00; that the fair and would for phrase to the “and market. To read land, free clear of market value the literally, public purposes” as the other $40,500.00. lease, taking of after the was the here, would would us read it state have court, accepting The these valuations lease grant that state could mean the total by jury, the determined the returned entire day appropriate the hold one by taking the damage tract C occаsioned any lia day next leasehold the without $39,500.00, which highway for the to be appro bility long the lessee as the the represented in value of the difference priation It is public purpose. for was the the tract free and clear of lease before pur public for “and other conclusion ($80,000.00), free and taking and the value by les poses” has reference to uses taking ($40,- lease after the clear of the only. sees the state lands of that 500.00). court then determined The contends, however, $80,000.00if sold The state also since tract C was worth corpora lease, any respondent freе but was worth in event the and clear the lease, for subject only $40,000.00if is not sold tion entitled $40,000.00 it appropriation of because the the leasehold leasehold interest was worth on the of tract C. was of the leasehold the value not the owner total 50% present respondent complaint The lessee date the was filed the court determined at that time damages for was of the The state contends entitled to case. 50% the lessees the were taking ($39,500.00), of tract C and award Nelsons as individuals no $19,750.00 corporation therefore had respondent taking of and that ed for the the in the leasehold. right way compensable the the interest premises. leased out however, awarded, settled, owner (1) is Totaling all the i. e. well items 1 is $13,760.00 re at the time of condemnation land owned land for value of compensation for the fee; $17,000.00 spondent party entitled (2) as sever Domain $19,750.00 taking. for 27 Eminent damages; (3) § ance Am.Jur.2d present the re p. case 248 at In the taking from the leased 18. spondent corporation not owner property, for was judgment the court entered complaint was $50,510.00. at respondent the time for miscopied apparently $13,760.00 was is an error in the is noted that there figure judgment figures sрe judgment. copying where into In from given by jury $13,706 figure verdict, used. cial
579 filed, appellant argues The but must be noted that the com- that severance dam plaint present ages damage parcel case did not seek to are for allowed any separate condemn in the leased tract. land condemned appropriate single attempt state did parcels The when both are as a used unit, April physically tract at which contiguous the leased until 1968 are and are both respondent time the state advised See fee same individual. longer People By Dept. it could mine the area Public Through At this highway. Cal.Rptr. interstate 203 Hemmerling, new Works v. 58 ; time the had become the lessee (Cal.App.1967) v. Honolulu United States by assign- Co., rights (9th of the mineral in tract C Plantation F.2d 172 Cir. 1950). ment of the lease from the As Nelsons. time owner of leasehold interest at the present In the is no case there doubt taking, was entitled tracts single A and unit. C used as damages appropri- award of major mined is the C ation. supply respondent’s gravel source for Although no formal condemnation action operations tract A. There C, against was ever instituted the re- clearly unity therefore use between
spondent’s damages counterclaim these two tracts. is in the leasehold interest however, appellant, maintains the nature of an inverse condemnation. contiguity lacking State, Renninger In case Company because the Idaho Power (1950), recognized P.2d 911 this court owns a strip 175 foot tracts between validity of an inverse action condemnation B, A separating thus tract A from which a owner institutes *6 other It the rec two tracts. is clear from against just action the state to recover ord, however, by that the land owned appropriation of land an Company roadway Idaho Power is a which when the state has tаken an interest in company public has allowed the use land and refused to institute eminent do- years. way for several in Its existence no proceedings main to determine the amount A, interferes B and with the use of tracts just compensation. single C as a Contiguity unit. tracts two
A cause of action generally for inverse has prerequisite been held a to be condemnation arises at the time actual damages for severance because it is more by interference likely the condemnor with the contiguous as tracts will be used property. to use the a owner’s 30 unit than if contiguous. the tracts arе not Where, pp. Eminent however, Domain 399 475-480. is is clear that there § C.J.S. unity At tracts, of such in slight time interference of use between two a case, present respondent separation the owner generally was of the tracts will not preclude leasehold interest and was there an damages. award of severance proper party fore the Turnpike Authority, institute inverse Ives v. Kansas 184 proceedings by ; condemnation 134, which it did People Kan. 334 P.2d v. (1959) 399 interposed means the counterclaim Hemmerling, supra. here. is stated in 27 Am. appellant’s The respond contention that the pp. Eminent Domain 134—137 § Jur.2d ent is nоt damages p. entitled to for the con at 134 that demnation of the leasehold because it was view, “According prevailing de- not the owner at the time of condemnation termining separate and what a constitutes is, therefore, without merit. land, independent when appellant re- actually occupied, also contends that the is used and spondent test, unity is not dam- principal entitled severance and if of use is the taken, ages by land, to tract A virtue of the of a part a tract of no is of which farm, portion of the leasehold interest in tract is C. same used connection with the 580 estаblishment, leasehold, manufacturing
or tion same as as- enterprise signee, other char- had or' same become the lessee. As of tract, time, therefore, acter part as the of which was tract taken, separate and A in it is not considered a fee and a leasehold in tract C. interest independent parcel merely it Although ownership because an interest in each of time, sep- bought at a different arid these tracts was re- therefore united in the line, by imaginary or if spondent, arated an even more applied several cases have rule, high- unity tracts are re- seрarated two subtle version of of title way, street, alley, railroad, quiring person not that the own canal same water, tracts, body both but he have an absolute 134-135]. [at ownership
fee
Tillman
in both tracts. See
Co.,
Lewisburg
v.
& N. R.
Tenn.
133
if the
“Even
owner’s land
divided
182
597
v.
(1916);
S.W.
United States
parts
might
into
in such manner as
other-
Co., supra;
Honolulu Plantation
Glen-
separateness,
wise
if
raise the issue of
denning
Stahley, supra.
v.
Under this line
use,
devoting
single
he is
the parts to a
authority
ownership
tract
fee
one
they
proximity
lie in
be
as to
in-
cannot be combined with a leasehold
single
effect united
into a
use
terest
or undivided interest
another
property, they
regarded
will
a whole
damages.
to claim severance
purpose
assessing damages
is,
part.”
however,
contrary
the taking
(at 136).
There
line of au
thority
long
that as
as the same
holds
unity
opinion
in view of
person has
ownership
in each of
case,
separation
use in the
tracts,
two
he
the same
need not have
the road-
tracts involved herein
quantity
quality
of estate in each
destroy
contiguity
does
damages, Chicago
to claim
&
severance
tracts so
for severance
to defeat a claim
Dresel,
R. R.
Ill. 89
Evanston
Co. v.
110
damages.
;
Dept.
(1884) People By
Through
appellant
argues
that there is
also
Hemmerling,
Cal.Rptr.
Public Works v.
58
unity
tracts and
of title between the two
Prade
ex
La
(Cal.App.1967); State
rel.
be disal
damages
severance
should
Carrow,
P.2d 891
Ariz.
*7
strong
lowed for that
There is
reason.
(1941).
It is
in
Emi
stated
27 Am.Jur.2d
authority
that severance dam
the effect
p.
nent Domain
at
143 that
320
§
ages
will
title to
be allowed
when
cases,
seems
re
“There
to be a conflict
title to the
of land taken and
requisite for
however, as
it is
maining
single person.
whether
in a
united
unity
McIntyre
ownership that
the condemnee
County
Commission
v. Board of
‘es-
ers,
quality of
115,
;
quantity
have the same
or
168
(1949)
581
by
far as to
gone
multiplying
cases have even
so
hold
valued
leasehold
unity
quantity
at all.
gravel remaining
of title is not needed
See
estimated
Guptill Holding Corp.
by
per
v.
New the
price
State of
leased
estimated
York,
yard
43
considering
Misc.2d
supra; People
‘
By
“
Through Dept.
* * *
evi-
proper
it is
to аdduce
Public
Hemmerling, supra;
Works v.
affecting probable
upon
dence
all matters
Carrow,
ex rel. La
supra;
Prade v.
27 Am.
condition,
location,
selling price, such as
*8
143;
Eminent
p.
Domain
29A
§
Jur.2d
coal, and
improvements, quality
land or
of
Eminent
p.
Domain
§
C.J.S.
in-
other element
value
would
of
purchaser.’
fluence the mind
aof
[230
It is clear that a leasehold interest
A.2d at 824]
property
is a
interest and that a lessee is
entitled to
for its condemna
quantity and
“We realize the estimated
tion. 2 Nichols on Eminent Domain §
quality
p.
5.23
of the
earth are
mineral
(rev.
1963).
appel
3rd
The
ed.
however,
important
purchaser
lant
tо
considerations
the
that the
contends
trial court
erred in allowing
prices
the
a
and seller.
are
at which
witness
re
the
So
spondent
testify
products
presence
to
being
the
and the
as to
value of the
are
sold
While,
leasehold
because his
based
or
a demand
them.
valuation was
absence of
upon
capitalization
upon
a
said,
upon
as
based
income and
we have
a valuation
of
speculative
multiplication
a
is so
figures.
uncertain
the
these elements
of
appellant’s
speculative
rejected,
it
be
such
contention
this witness
that must
may
buyers
facts themselves
be considered
and value as between
and sellers
”
knowledgeable expert
generally.’
578-579,
20 Idaho
583
ger,
384,
Rich,
222,
17
(1909).
Idaho
P.
In
P.
1070
v. State ex rel.
83 Idaho
360
105
present case, however,
respondent is
;
2d
ex
Rich v. Fon
(1961)
799
State
rel.
claiming
not
damages
taking
for a
of tract
269,
burg,
(1958).
80 Idaho
8
My
portion
dissent is directed
Rich,
Mabe v. State ex rel.
86 Idaho
majority
opinion which deals with Par-
;
served lease-
“public purposes” across defendant’s right way argued that
hold. It cannot be pur- public highway purposes
for is not a pose. different majority what I ask the —in THOMPSON, Elizabeth A. Plaintiff- itself protected manner have could the State Appellant, out each spelling in those without leases every possible “public purpose” that Fairchild, and Marie hus- Ward FAIRCHILD contemplated by legal scholars? could be Bank, wife, band and and Farmers National majority states: Defendants-Respondents. corporation, phrase pub- “To read ‘and No. 10432. literally, purposes’ as the state would lic Supreme Court of Idaho. here, us read it would mean that have April 22, 1970. day grant one the state could a leasehold appropriate entire leasehold day to the les- liability
next without long appropriation
see as as the were public purpose.” read ask, why the lease be
I shouldn’t acquired lease-
literally? Defendant per for a minimal hold 25^ royalty. per year, per yard plus 10(S
acre to. extract defendant choose
Should
gravel, royalties payable. seems should
incredible to me that the defendant