*1 COMMISSION, Appellant STATE HIGHWAY al., ESTATE, Respondents et HAYES 680) (140 N.W.2d 1966) (File Opinion March 10197. filed No. *4 Farrar, Wehde, Gen., Quist Atty. Frank L. B. Carl W. John Gen., Pierre, Attys. plaintiff appellant.
Asst. Porter, Hanley, Rapid City, Costello & for defendants respondents.
HOMEYER, Judge. proceeding by
This an eminent domain which the State Dakota, Highway Commission of the State of South hereinafter State, referred to as the has condemned certain land owned daughter, Schell, Hayes Candace and her L. Charlene hereinafter estate, Hayes referred to as the as a the construction Wall, Rapid City Interstate 90 between South Dakota. A $69,337.00 Hayes property awarded estate the sum of for the damaged. judgment appeals taken and The State from the en- tered on such verdict. The amount allowed has not been chal- lenged proper procedure. either motion for new trial other seeking prejud- In a reversal the State contends the court erred *5 rulings during icially by various made the course of the trial. taking; 4,034.61 Hayes Prior to the estate ranch consisted of A acres of fee title land. small amount of additional land was Starting quarter leased and used with the unit. with one section husband, Hayes and in Candace her who died enlarged improved had and to its the ranch size and condition highway pur- the time of condemnation. State took for changes, poses, needs, pits channel borrow other and construction a 168.14 of total of acres which 8.42 acres was section line. The - - right way part of taken for the most is 300 feet and wide crosses west, the entire ranch east a from distance of about 3 1/2 miles, 1,351 buildings and leaves acres with the ranch north 2,515 of the interstate and the of south remainder acres of it. - Hayes property Interstate as it crosses the is lane a two con- - - - right highway way trolled access of divided and outside interchange boundary line is fenced. An near located the east pass of the ranch. The State constructed 5 x 7 a cattle beneath highway. only This is the of access means for livestock from ranch; portion portion the north to the south of the otherwise conflicting they trucked. would have to be The evidence was as feasibility pass to the extent and which the cattle could or Machinery only would used. can be be moved from one side interchange. overpass other of the interstate to the via an at the taking contiguous cornered, The ranch before the was all irregularly shaped, somewhat and was bordered on the north entirety by Cheyenne and almost west its River. U. S. Highway formerly 14-16 was on located the north side of the Cheyenne and a small north traversed area the ranch buildings. crossing highway There were no restrictions acreage part and and north east thereof was for the most being alfalfa, cropland hay with a small used and and range. for winter Schell, Charlene, operated
Monte the husband has gave testimony description ranch since 1956. In his a he detailed ranch, taking operation, upon its the effect its operability. a future It was described well balanced diversified handling capable beef and feeder ranch 300 stock cows on year-around basis. Balance meant had sufficient summer range, shade, shelter, land, water, pasture, hay winter alfalfa ground, throughout cropland potential to sustain its full year expense. provided with minimum effort Live water was Ihrough Cheyenne cattle access uninhibited River which *6 Angostura of Dam a construction the maintained consistent since rougher through ranch flow the seasons. In the area of the dams dependent snow been constructed which were runoff had rainfall for utilization. Two shallow wells also located and were property; headquarters on the at the and the other towards one property. portion the north the pasture
The summer for the most was located in the adjoining portions Cheyenne west and northwest of the ranch the portion hay River. In the of about 120 southwest was meadow irrigated acres which was flood "the heart of and described operation" the because it served as the an abundant source of average being supply hay years; in the -of even driest the annually. about 300 tons tak- This meadow was isolated the ing required permit and construction future of access roads to use. The State witnesses said it and re- should be abandoned pasture to verted summer and other land be converted should forage haying crops. and The landowner's witnesses con- hay tended otherwise. Travel distance between the meadow taking headquarters and before the was 3 over miles relative- 1/2 terrain; ly flat on the new it road would be to 10 increased ground. rough miles over operation put normal would the stock in the summer
pasture spring early area in late summer and move them to portion headquarters the east nearer early and the in late fall or topography winter. The of the latter area was such that rough ground and breaks would serve as natural shelter from prevailing northwesterly Hay crops winds. and feed would be from producing moved southwest meadow and other feed portions headquarters the ranch an area near where easily feeding. calving Spring was accessible for winter would pasture headquarters also occur in the areas near and cattle buildings had free from pens access the south near headquarters nursed, easily and could be fed cared for. begins The land taken the State where Interstate Cheyenne crosses River south of the town of Wasta portions lying follows the low ranch and meanders be- general tween the bottom land and breaks. The route in traverses *7 traveling formerly headquarters the same trail in used from the moving parts hay to the west and southwest of the ranch and in headquarters. from the southwest meadow to the Two stock destroyed by dams were the construction. prejudicially
The State contends the trial court erred when permitted testify the witness Schell to estimated costs of re- habilitating restoring taking. usability the ranch to after the damages measure in condemnation cases in volving taking partial a is the difference between the fair market taking value of the unit before the and the fair market value taking. Horter, City of what remains after the of Bristol v. 73 543; 398, Highway Fortune, S.D. 43 N.W.2d State Commission v. 302, application 91 77 S.D. N.W.2d 675. In the of this rule sever damage remaining property ance to the is included in an award being designated without as such and the amount allowed for segregated property actually damage the taken is not from the estimating damages remainder, remainder. In to the the to the or words, depreciation' taken, in other the in value of the not jury the landowner is entitled to have the informed as to all those legitimately upon facts which bear the market value of the ranch taking before after the and those factors which would ord inarily prospective negotiating purchaser influence in for the property. The manner in which the ranch was used before the taking and the manner in which it can be used afterwards is injurious prime importance. Anything directly which is to its adaptability particular or detracts from its use maximum ef legitimate ficiency competent affects market value and is and a establishing damages factor in total sustained within the con just Am.Jur., templation compensation. of an award of 18 Emin Domain, ent 266. § general rule, determining
As a in the diminution in taken, proper market value the land not it is to take into con expense necessary by improvement, sideration made 164, Eminent Domain in 29A order to restore the land § C.J.S. advantageous use, Am.Jur., Domain, 269, most to its Eminent § adjusting changed brought or in it to conditions about taking. Concini, 609; County Pima v. De 79 Ariz 285 P.2d 747; Court, County Wyoming 129 S.E. 100 W.Va. Wood 533; County, Tex.Civ.App., 212 S.W. Nichols v. Glasscock Currie Ed., Domain, 3rd 14.247. on Eminent Concini, County supra, court In Pima v. De said: "If the damaged property advantageously can be reconstructed or re- arranged, rearrangement then the cost of such reconstruction a matter that should be considered court or * * * fixing taking. subsequent the market value properly think these were 'We matters received inflicted, descriptive injury imposed and the burden property by occupation purposes, of it for railroad *8 they jury, specific that were the consideration of not as the claim, affecting items of but as market The rule value.' also is arriving in that market the value of land which has been damaged right by the of the of exercise eminent domain the court right which, possible expenditures a has to admit evidence of damages." However, expended, if would diminish the the court expenditures said the not must exceed the in difference market taking. before and value after the Such would not occur in the case. instant light principles the ap-
In of these we review the record on witness, prejudicial Schell, pellant's claim of error. The Monte emphasized availability Chey- constant of from "live water" the major as a enne in element the before value the ranch and significance its loss or marked primary curtailment of use as of fixing objection State, by the in after value. Without the he supply testified a dearth a highway, water south of the particularly years in dry, of short rainfall when the dams were except availability for the river. He also doubted the water in shallow wells and he said had been that told to reach water $17,000 $20,000. in the artesian basin would cost from This figure grease by was pencil written him with a on a tear sheet objection. on an mounted easel without ranch, boundary portion The river of a is in the form loop. rougher part of a The draws in the drain towards this area along relatively which was wooded the river and flat until edge right-of-way reached the north permit taken. To drainage south, placed twin 8x6 concrete from the the State highway smaller culverts the beneath and other culverts Hayes generally felt for the estate same area. The witnesses through running of a these culverts would that head water gullies highway the land north of so as to form cut and erode segments; splitting loop and. ditches area into nonusable damage building by spreader but could be minimized $5,875 por- Schell estate's or diversion dikes. estimated again figure given tion of the total cost and this was and written objection. tear sheet without on the pass plans opened The cattle called for the construction pasture cliff to the into a area of about 12 acres with a river gorge north, west, deep from the bet- 40 to 50 feet and gorge cropland prevented from the ter the east. This access irrigated headquarters and east of the ranch to the flood land, pasture loop bottom area. To summer and shelter cattle, machinery Schell a road would have to move testified gorge built across this be he estimated the cost at between $7,000 $8,000. Again given testimony this was and written objection by on the tear sheet without need for the State. The undisputed this road was was its construction the State original mitigated plans called for in the which would have 1(6). damages. Dakota, Session Laws of South Ch. *9 obligation Apparently the decision to relieve the State from this was made about a week before trial because one of the State's damage figure $8,000 witnesses testified he increased his when upon told he was the burden of such construction devolved gorge property owner. A smaller is and located to the east Schell permit headquarters testified to access to and from the to the loop necessary area a dirt fill culvert and some was and he $2,000. Again given testimony this estimated cost this was figure objection. written on tear without and the sheet point position
To if is in this we doubt the State to objection testimony permitted error for it this without and assert generally, apparently consented to its introduction. In such case object excusable, reception unless the failure to is of such challenged successfully by cannot be a motion to strike after such evidence has been admitted. Trial made C.J.S. Further, acknowledged these 136. the State's witnesses most of necessary restoration costs were and the costs thereof reasonable in order to continue to use a substantial of the ranch. taking cropland hay
As a result of the and land in the east portion of the ranch remained on both sides of the interstate range separated headquarters and the winter was from the began testify- where the winter feed was stored. When Schell ing gorge deep to the need of a and dirt fill to culvert cross a get range, crop hay this land and to the winter objected testimony for first State time to this line of on the ground necessity that the economic for such construction not had objection shown, been and the sustained. Schell was then in great explained operation detail the unit before the tak- ing operated and how it could be afterwards construction segregated permitting portions of various roads access give of the ranch. When asked to an estimate as to the cost of objection improper was roads made it was an mea- objection damages. Subsequent The sure was overruled. shelter, corrals, sorting testimony pens, fixed the needs etc. thereof; on the south side of the interstate with costs destruction replacement; equip- dams and costs of costs of additional readjustment rearrange- necessary ment made reason of trucking operation; expense ment of estimates of extra and costs figures required operating of travel the ranch. were testimony written on the tear sheet as this unfolded with ob- jection necessity either that economic was not shown or that damages. improper this was an measure The tear sheet was offered and received in evidence at the conclusion of Schell's testimony. carefully
We have reviewed the record with reference rehabilitation, rearrangement, the manner which the restora- readjustment tion, testimony was received. The evidence many of the economic need and costs on of the items set forth undisputed disputed supported by is and where credible testi- *10 mony. objection Much of it became of the record before portion supported was made and in fact a substantial is State witnesses. Counsel offered and the court received the evidence specific separate damage, costs not as items of but for a limited
purpose, viz: "* [*] [*] only * * * insofar as may be market of the reasonable value to the consideration material [*] [*] remainder [*] of the entire after the tract before the taking." taking and the value does not contend that We understand the State Clearly, it is admissible detailed is inadmissible. the evidence Highway recently restated in State Commission the rule under Bloom, 452, "Any of detri N.W.2d 572: elements 77 S.D. v. labor, expense or in the as additional inconvenience ment such remaining appreci operation land a ranch which were as tendency a reasonable substantial in nature had able and could taken into con the market value of the land be to lessen separ injury These items of core not to be allowed sideration. damage, only considered in determin items of but are to be ate remaining (Emphasis sup tract." ing the reduction in value of the argues allowing However, emphatically plied.) State that dol testimony specific on cost of the items of restora and cents lar rehabilitation, tion, detracted and other factors which from market value, prejudicial constituted error.
Substantially
same contentions were made in a recent
taking case,
Highway
highway
Arkansas
State
Commission
rejected
Speck,
Ark.
Great
latitude
is allowed in the
of evi
cases,
property
prove
to
in
dence
value
condemnation
evidence,
generally
any
competent
relevant
and material
if
un
general
evidence,
prove
der
rules of
is admissible
to
market
273(1); City
value.
29A
Eminent Domain
of Detroit v.
C.J.S.
215,
174;
Cristy,
Styner,
316 Mich.
25 N.W.2d
State v
58 Idaho
competent
The trial court submitted to the
is
case,
just compensation?"
sue involved in the
"What
under
exception.
instructions
to which the State took no
Neither did it
propose
properly
additional
instructions.
The court
instructed
damages,
they
on the
measure
and advised
that
could not
damages
speculative
speculative
award
and defined what were
damages.
duty
Hayes
He also told them it was the
estate
reasonably
possible
damages
attempt
as far
to minimize its
injurious
use all reasonable
exertion to avert
conse
resulting
quences
taking.
property
from the
The instruc
complete
presumed
tions
were
and accurate
and it is
Reddington,
followed them. State v.
80 S.D.
Recent and sales of real estate are cases, as evidence in condemnation either sub- admissible proof property of value the condemned or as stantive founda- background expert's opinion Nystrom for an tion and of value. 123; State, Highway S.D. 119 N.W.2d State Commis- 50; Lacey, 79 S.D. 113 N.W.2d sion v. 5 Nichols on Eminent Doman, basis, 21.3. If such evidence is admitted on the latter comparability nearly is not the rule on as strict as when it is independent proof used as direct of value. United States v. Cir., Johnson, generally 35. 285 F.2d The witness testifies to a prices paid considerable number of sales and the pat- to show a prevailing price property and establish a tern market in the single acquisition. general- Few area sales or a sale would ly price. not create such market Unless considerable caution is separate used and the is instructed on the theories on which *13 admitted, may improperly are sales such evidence be considered by jury. the position
This court has taken the that the founda receipt type tion for the largely of this of evidence rests within discretion the of the trial court and to warrant a reversal on either the admission or exclusion thereof a clear abuse of such discre State, Nystrom tion must supra; be shown. v. Highway State Orgel Lacey, supra. Commission v. See also 1 on Valuation un Domain, Ed., der Eminent 2d opinion 138. We are of § the had trial the court admitted the evidence of this sale as of the background expert's opinion for the on value no error would committed; have been but on the other hand we are satisfied its exclusion trial court did not constitute a clear abuse of discretion or reversible error. It is also claimed the prejudicially court erred in not strik-
ing testimony of Mark Trask who testified for the landowner. neighboring The witness was a approximate- rancher and owned 20,000 ly 10,000 acres and leased an additional acres. He had lived in the immediate area his entire life and had leased most Hayes property of the years for one winter some before. A few days spent before the trial he had property, an afternoon on the construction, traversed the area of the new expressed familiarity neighborhood. with land values in the Trask fixed taking the value of the unit $45 before per $50 from to acre gave opinion an that depreciated such value was about taking. cross-examination, On he admitted he was
50% knowledge acreage taken, precise without firsthand location, unit and their of dams and his version number operation respects method of the ranch some con- that of other witnesses. flicted with properly qualified a witness
Whether
to render
opinion
preliminary
question
is a
value
of fact
an
be
n determined
generally
by the trial court and
a wide discretion
Orgel
Domain,
Ed.,
on Valuation under Eminent
is allowed.
2d
Neighboring
property
usually
permitted
owners
are
132.
to ex
being
opinion
theory
press
they
on the
that
owners
are
course,
necessarily
acquainted with values. Of
the witness should
damaged,
property
familiar with the
taken or
be
but
the extent
knowledge
familiarity
opin
of his
as the foundation for such
largely with
ion rests
the trial court and its decision will ordin
clearly
Wahlgren
arily not be disturbed
unless
erroneous.
v.
District,
Loup
833;
Public Power
River
139 Neb.
297 N.W.
Jelgerhuis,
City
Huron
77 S.D.
At a conference both sides to the court photographs maps a substantial number of and which were During marked as exhibits and foundation was waived. the opening portion statement and after a considerable of such ex- by describing hibits had been referred to ranch, counsel in the taking, damage objec- of the the nature and the thereby, caused being photographs passed tion was made to such by around grounds objection jury. The the vague, were somewhat colloquy it was sustained. After but some further between coun- court, and the the sel landowner's counsel offered into evidence
43
marked,
previously
for
and counsel
the State said
exhibits
the
objection
being
evidence,
exhibits
in
had no
to such
received
he
objection
passing
jury.
the
to
them to
continued his
but
33.1307(1),
statute,
provides
Supp.
1960
after
The
SDC
having
jury
party
and sworn the
has been selected
burden
general
proof
issues and the
of
“shall
state the
nature of the
expects
produce
he
in substantiation
to
issues
stating
be,
argu-
by
the issuable
to
what he claims
facts
without
naming
identifying any particular
and
or
ment
without
witness
expects
prove any
exhibit
which he
of such issuable facts."
Zurn,
260,
cases,
805;
In two recent
v.
Fossum
78 S.D.
100 N.W.2d
Binegar
521,
Day,
S.D.
N.W.2d
we had occasion
statement,
opening
object,
purpose
discuss
its
and
and
specific
imposed
called
attention
the limits
the statute.
In
judge
in
Fossum we also said that
this area “the trial
is clothed
appreciate
with some measure
of discretion." We can
where
photographs, maps,
use of
and other demonstrative material
opening statement,
techniques
particularly
in an
in a con-
only
demnation
case where the
issuable
fact
is the amount of
just compensation,
could be
jury
considerable
assistance
to a
understanding
nature and
controversy"
"the
character
receipt
testimony.
Co.,
of sworn
before
Hatsio v. Red Cab
App.
Nevertheless,
repeat
Ohio
Error is also to be taxed as costs the taking paid shop $240 to a camera photographs sum for paid photographs $10.28 film. depicted Polaroid various segments of the ranch and of the construction and were intro- in evidence at the trial. duced Supp. provides
SDC 1960 33.1811 that the State shall be liable prosecuted costs in all civil actions in its name to the same private parties. Supp. prohibits SDC 1960 extent 37.4002 taxa- judgment cases where the re- costs in eminent domain ñon of compensation procedure than offered under there- is less covered 1963, 195, provides prescribed. Laws of which for a dec- Ch. taking, court, deposit possession pending and de- laration of compensation property amount of due for termination existing damaged procedural confirms statutes and taken or chapter proceed- cumulative to other condemnation makes such ings. foregoing permit premise statutes costs to
On the against actions, respondents State taxed in condemnation be questioned items fall within the ambit of disburse- maintain 33.1814, Supp. under SDC 1960 "In all ments allowable viz: cases party is allowed to recover costs the clerk must where a also judgment party's tax as a the allowance of such wit- translators', officers', nesses', interpreters', printers' fees and taking expense necessary depositions procuring of nec- essary evidence." taxing litigation
The
of costs in
is a creature
dependent
and was unknown
at common law. Since
statute
statutory provisions
expense
items
includible
as costs can
legislative
only by
Am.Jur.,2d,
virtue of
be taxed
enactment.
Costs,
52. Some courts disallow disbursements
as taxable costs
Broberg
specifically
unless
enumerated
in the statute.
v. North
Co.,
280,
851;
Railway
Pacific
120 Mont.
ern
182 P.2d
Harrison
America,
Intervenor,
Pence General
Ins. Co. of
v.
79 Idaho
Others
Under our statute fees are not mentioned, allowable, specifically they so if must come within "procuring necessary the term of evidence". We believe photographer should statute be construed not to cover fees and language expenses. comprehensive used is broad and say necessary proper do not we evidence was not to a However, the action. trial of the same is much that true of *16 necessary the trial. For procuring for use in done designed discovery proceedings and initiated example, are most purpose necessary is intended procure The same evidence. prospec- witnesses or taken from written statements are when experts consulted. are retained and witnesses or when tive many techniques employed money expended in time and using only ingenuity person by the are limited instances procures evidence which is neces- Much of what is done them. quite generally expended sary Yet amounts for the trial. preparing in for trial are not considered as made disbursements necessary costs. See Annotation 97 A.L.R.2d in an allowance obtaining expense where to allow the 15. We can visualize against litigant might photographs unsuccessful to be taxed an open to a "Pandora's Box" with wide variation the door be- judges within the same circuit as to tween circuits and what Questions immediately and in what amount. arise allowable many photographs necessary to how are considered and of moving type money paid pic- what and size. What about for being frequently personal injury which are in tures more used only expense paid professional be taxed if cases? Can the a charges? photo- photographer and should it include travel If the case, investigator, attorney graphs are taken an in the or an chargeable? fraught expenses Myriad situations are such with difficulty application present in themselves. problems apparently
Such were in the minds of the Minne- case, Veitch, early court in a rather Shterk sota Minn. they paid 160 N.W. when were asked to decide whether fees engineers litigation survey boundary in to civil for a used line prevailing taxable under a statute which allowed were "necessarily paid party disbursements or incurred". Comment- ing on this statute the court said: language, and, liberally,
"This is broad construed every expense prevailing party would include in trial, preparing paid by the trial and in amounts hunting traveling testimony, party expenses in of himself attorneys, paid experts pro- and his amounts in another preparation help trying fession for assistance in in case, attorney's All such even fees. disbursements might are, many a broad that be mentioned more sense, paid many necessarily or incurred in cases tried suggested But it has never been courts. *17 against party. expenses taxed the defeated In could be say that instant case we cannot the disbursements the 'necessarily paid' preparation plain- of not in the were holding finding trial, it would that the tiff for as involve they trial is not court that were sustained the — manifestly an But unsound conclusion. it evidence ought say to that such us that we to disbursements seems taxable; that the not as these are not statute should be suggested construed to cover them. We have the chief conclusion, drawing impossibility for reason this line, and it needless to attention is call to abuses holding likely would result from disburse- that ments taxable." opinion paid photo $250.28
It is our for the sum graphs used at the trial should not have been as costs taxed against this State and amount be should deducted from the judgment. modified, judgment parties
As so is affirmed. The are to appeal. bear their own costs on
RENTTO, J„ HANSON, JJ, P. and ROBERTS and concur. BIEGELMEIER, J„ dissents.
BIEGELMEIER, Judge (dissenting). "(g)reat majority opinion declares is latitude allowed in reception prove property evidence to the value of in con- "competent demnation cases" no evidence should be ex- ordinarily prudent cluded which an man would into take account forming judgment before a as to property the market value of purchase." Despite which he about this it affirms the trial ruling 1,103 court's which excluded evidence of a a sale of acre adjacent ranch to the defendants' ranch sold to one of defend- year $23 ants within a an This acre. seems to me to .be in- certainly consistent as such a sale would be considered purchaser especially prospective only as it was offered as Further, opinion proffered of the witness. it a basis was a conclusion which would also "aid the trier of fact in [*] * * of value" and "should (have been) arriving re- my opinion in accord with the court's statement. In ceived" it prejudicial was error to exclude this evidence and that it was appears from the verdict. The record here does not show the gave opportunity trial court an State to review the verdict However, deducting by a motion for a new trial. defendants' $8,000 taken, appears for the 160 acres of valuations land $60,000 damages, yet awarded over severance de- 3,875 4,034 ranch, fendants remain owners of acres of their acre roughly $160,000 which defendants' witness valued from $200,000,and the total verdict is from 35% 43% of its value. *18 sale, should have been advised of this and I cannot opinion. opinion therefore concur in the See the recent Weeden Beloit, Wis., 1966, City v. 139 N.W.2d where the court partial states "sales used as a foundation or foundation of an expert's opinion comparable, of value are admissible and if not go weight expert's opinion, admissibility." not their MENNING,
STATEex rel. Plaintiff COMPANY, SECURITYGENERALINSURANCE Defendant (140 676) N.W.2d (File 1966) Opinion No. 10214. filed March