STATE HIGHWAY COMMISSION, Aрpellant v. OLSON et al., Respondents
File No. 10178
Supreme Court of South Dakota
July 7, 1965
136 N.W.2d 233 | 81 S.D. 401
Affirmed.
All the Judges concur.
Whiting, Lynn, Freiberg & Shultz, Horace R. Jackson, Rapid City, for defendants and respondents.
BIEGELMEIER, J. This is a condemnation proceeding. References to defendants are to the Olsons as they are the owners of the land and the only parties who appeared. They own eight quarter sections of land in a unit referred to as 1179 acres which they purchased in 1956. A description and the location of this land will be helpful. Three of these quarter sections lie in an east and west tier. Along the south side of these quarters is black topped U. S. Highway No. 12 which separates the above quarters from the south five quarters. The latter are not in one block; rather they are adjacent as Olsons own one quarter just south of the middle quarter of the tier of three above mentioned; they rent the quarter just west of it and own the quarter west of that. The other three quarters join these on the south. It would be seen therefore that Highway 12 divides this unit with 480 acres on the north side of the highway and the balance of 700 acres on the south side.
In 1941 the then owner of the middle quarter of the three north of Highway 12 conveyed a 100 foot strip of land of over eight acres to the State of South Dakota for highway purposes which ran diagonally from the southeast corner of that quarter section to the northwest corner. No highway had been constructed and Olson continued to farm it during the intervening years. As this deed was recorded when Olsons bought the land, their purchase was subject to this right-of-way conveyance to the State. In the present action the State is taking a strip of land 50 feet wide on both sides of this previously acquirеd right-of-way, being an additional eight or nine acres. The jury returned a verdict of $4,600. From a judgment entered thereon the State appealed. As the record contained no assignments of error the judgment was affirmed. State v. Olson, 81 S.D. 237, 132 N.W.2d 927. In a petition for rehearing the State asked and was granted permission to return the record to the trial court for correction to include assignments of error which had been served but omitted therefrom. The appeal is now before us on the merits.
I. The State claims the lower court erred in admitting testimony with reference tо damages to Olsons’ land which included the west 480 acres. In answer to a question as to the market value of his farm “as it stood before they decided to build this highway“, Mr. Olson testified his whole joint unit, as he called it, of 1659 acres was worth $65 an acre, and that it was worth $60 an acre “after the highway goes through“, making the damage $5 per acre over the 1659 acres or $8,295. Objections made to this evidence were overruled and motions to strike it denied. In support of this evidence it is said that sufficient foundation was laid to show that these two separate tracts of land were operated and farmed as one unit. The evidence to support unity
The owners’ witness Lerud likewise testified as to damages using the 1659 acre figure as his base. On a motion to strike this evidence for the reason that the 480 acres 15 miles west was not contiguous to this unit and no unity of use was shown, the court stated thеre was no requirement that it be contiguous and under model conditions land could be used 100 miles away and be a part of the same unit. “It is the use to what you put it. It is not where it is. The motion will be denied“. The evidence of witness Knudson likewise was based on this 1659 acre figure.
Objections had been made to tying the two tracts together; they were overruled. Motions to strike were denied. As to these, counsel for defendant stated to the court and overheard by the jury: “we can show a unity of use. It is all part of one operation“, to which the court said: “Proceed.” That there would be no mistake as to this, counsel for the State asked to have it clarified whether Olsons’ counsel in his questions was talking about the whole unit, that is the 1659 acres, and counsel answered that “we are speaking of the whole place generally.” Later owners’ counsel stated: “I thought, your Honor, we had shown * * * unity of use * * * we had demonstrated that as they go in this country, the place was being used as a unit.” Court: “The objection is overruled. Proceed.” Cf. Bean v. Best, 77 S.D. 433, 445, 93 N.W.2d 403, 410. The jury may have easily understood this as an indication not only that unity of use was shown by the evidence, but that the court had determined that such unity of use existed as a matter of law. Thereafter, when speaking of damages the court permitted the damages to be testified to, based on the whole unit, or rather the two units as his joint or unitary farm or ranching operation. We think the court erred in admitting this evidence. In State Highway Commission v. Bloom, 77 S.D. 452, 93 N.W.2d 572, 77 A.L.R.2d 533, hay was grown on a 240 acre parcel of flood irrigated hay land, cut and hauled by truck to the home ranch two or three miles away. The court held where there is no
II. The State also complains of the giving of Instructions 4 and 13 and the failure to give its requested Instruction 1A. The instructions are to be considered as a whole and, therefore, these and others pertinent are set out:
“- 4 -
“The sole issue for your consideration is the amount оf defendant‘s damage. * * *
“- 6 -
“Where part of an owner‘s land is taken for a public improvement and the part taken constitutes an integral and inseparable part of a single unit to which the land taken and other adjoining land is put, the owner is entitled to recover the full damage to his remaining property due to such improvement even though portions of the public improvement are located on land taken from surrounding owners. * * *
“- 9 -
“In a condemnation case the question for the jury is the market value of the property to be taken * * *
“- 10 -
“In arriving at the value of the entire tract рrior to the taking, it may be necessary for you to first determine its fair market value prior to such taking. A fair way to arrive at such market value is to determine what a purchaser is able and willing to pay and what a seller, not forced to sell, is willing to sell for. (Emphasis supplied.) * * *
“- 11 -
“In arriving at the amount of damages to be awarded to defendants, you shall take into consideration the best
and most profitable use and purpose to which the entire tract is adapted; and, if it is adaptable to a particular purpose which makes it more valuable for that purpose, you shall consider such purpose. “In other words, compensation to the defendants must be reckoned and awarded from the standpoint of what he, the land owner, loses by the taking of a portion of his entire unit. (Emphasis supplied.)
“In arriving at the amount of damages, it is your duty so far as possible to make the defendants whole and to restore them to as good a position as they were in prior to the taking.
“- 12 -
“The State has heretofore acquired a right of way for highway purposes 100 feet in width the damages resulting from which is not to be considеred by you in awarding damages.
“- 13 -
“You are instructed you may consider inconvenience in fixing damages in this case.”
The State‘s proposed Instruction 1A, which was refused, read:
“You are further instructed that at the time the Defendant, Olson, purchased the land over which the new highway will extend the State owned, and is now the owner of one hundred feet of the right of way required for such construction, * * * and that in taking the additional lands for highway right of way, as in this action, you can only allow compensation for the additional amount of land taken, and the additional dаmage that would result to the remainder of the Defendants’ land. No compensation can be allowed for the right of way previously purchased for such highway purposes nor for any inconvenience that would result therefrom, but you can allow compensation for the additional taking and additional damage caused by such additional taking.”
While the instructions given had the merit of being brief and some of them stated legal principles generally, and the objections to those given and refused were no model of clarity or preciseness, the references to the “entire unit” could have only been understood by the jury to include the 1659 acres farmed by defendants. This, coupled with the whole tenor of defendants’ evidence and the court‘s rulings on it, that the 1659 acres—the 1179 acre home place and the 480 acre tract 15 miles away—was the entire unit or whole unit to be considered in assessing damages was erroneous. If not a direction to the jury to so consider it, the instruction was confusing and misleading; that is a misdirection and available on appeal even assuming no proper objection was made. State etc. v. Fortune, supra.
As indicated in Fortune the court held it error to give a jury instruction which included the correct general formula of diffеrence between the market value before and after taking, but permitted it to be applied to the entire tract, even though the court assumed “the State made no proper objection” thereto, and in Bloom held to the extent the award was based on any severance damage to the separated 240 acre tract from which the crop (hay) was cut and hauled to the ranch, was contrary to law. We must consider the effect of this on the verdict and our disposition of the appeal.
While not conceding errоr in the admission of the evidence (or the concomitant instruction) and “Disregarding the validity of the conclusion of the Trial Court on the question of unity“, respondents’ brief asserts no prejudice is shown. This for the reason the landowners’ expert witnesses valued the west 480 acres the same before and after, and the jury verdict of $4,
On a new trial Chicago, M. & St. P. Ry. Co. v. Brink, 16 S.D. 644, 94 N.W. 422 and our later cases, some of which are cited here, indicate the scope of the damages and the evidence to support them.2
Reversed.
RENTTO and HANSON, JJ., concur.
ROBERTS, P. J., and HOMEYER, J., dissent.
HOMEYER, Judge (dissenting). I would not reverse. The measure of damages in condemnation cases on a partial taking has been fixed by our decisions. Chicago, M. & St. P. Ry. Co. v. Brink, 16 S.D. 644, 94 N.W. 422; Schuler v. Board of Supervisors, 12 S.D. 460, 81 N.W. 890; State Highway Commission v. Fortune, 77 S.D. 302, 91 N.W.2d 675. It is the difference between the fair market value of the farm or ranch before the taking and its fair
Physical contiguity of tracts in a farm or ranch is not essential to it being considered as one unit. In Fortune we said: “We recognize that separate parcels or tracts of land held in one ownership will be considered as contiguous and may constitute one parcel of land within the meaning of the condemnation statutes if the parts are devoted to a single use.” See annotation 6 A.L.R.2d 1197. We also said: “When there is no dispute in the facts, the question whether physically separated parcels of land constitute one parcel because of common use, is a question of law for the Court.” My interpretation of the language used is that it is for trial court to determine as a matter of law if sufficient common usage has been shown to qualify noncontiguous tracts as parts of a single unit. If the trial court so concludes, opinion evidence will be received from qualified persons on the before and after value of such unit. If the court does not so conclude, such evidence is not rеceived. The receipt of such evidence does not mean that the trial court has decided as a matter of law that all parts of a farm or ranch have been damaged or that a jury must accept as a fact that each tract included within a farm or ranch has sustained some damage or that each acre has sustained the same dollar damage. A similar situation exists when comparable sales of property are permitted in evidence. In such instances, the trial court determines as a matter of law whether such sales are sufficiently close in time and distance and alike in physical characteristics to serve either as evidence of value, or as the foundation for an opinion on value.
As I view the evidence, sufficient common usage of the noncontiguous tracts was shown to permit the 1659 acres to be considered as a single operating farm unit. Such dеtermination is primarily for the trial court and I cannot say that it erred in that regard.
There is a second reason why I would not reverse. The valuation witnesses for the defendants consisted of Joe Olson, one of the landowners, and two experts, Oscar Knudson and Craig Lerud. No question is raised as to qualifications of the last two named. A landowner by reason of his ownership is entitled to give an opinion on value. McCaffery v. N. Pac. Ry. Co., 22 N.D. 544, 134 N.W. 749; Orgel on Valuation under Eminent Domain, Second Edition, Volume 1, § 132. However, such testimony has been said to have limited probative value in either sustаining or rejecting jury awards in condemnation cases. See Petroleum Exploration, Inc. v. Hensley, 313 Ky. 98, 230 S.W.2d 464; State v. Burk, 200 Or. 211, 265 P.2d 783; Lyons v. United States, D.C., 99 F.Supp. 429.
Oscar Knudson
Before taking value:
434.80A Crop land near home place @ $60 per A. ..$26,088
744.22A Hay and pasture land @ $32.50 per A. 24,187
480.00A Bullhead land @ $40 per A. 19,200
Farm buildings. 20,000
——
1659.02A Total before value $89,475
After taking value:
429.80A Crop land near home place @ $55 per A. $23,639
740.36A Hay and pasture land @ $27.50 per A. 20,359
480.00A Bullhead land @ $40 per A. 19,200
Farm buildings. 20,000
——
1650.16A Total after value $83,198
Total before value (rounded to) $89,475
Total after value (rounded to) 83,198
——
Damage $ 6,277
Before taking value:
10.00A Building site @ $75 per A. $ 750
40.00A Crested wheat grass near bldgs. @ $50 per A. 2,000
271.(50)A Crop land north of hwy. @ $60 per A. 16,290
163.30A Crop land south of hwy. @ $55 per A. 8,981
694.22A Hay and pasture @ $30 per A. 20,827
480.00A Bullhead land @ $40 per A. 19,200
Farm buildings 20,000
——
1659.02A Total before value $88,048
After taking value:
10.00A Building site @ $75 per A. $ 750
40.00A Crested wheat grass near bldgs. @ $30 per A. 1,200
266.50A Crop land north of hwy. @ $45 per A. 11,992
163.30A Crop land south of hwy. @ $55 per A. 8,981
690.36A Hay and pasture @ $30 per A. 20,711
480.00A Bullhead land @ $40 per A. 19,200
Farm buildings. 20,000
——
1650.16A Total after value $82,834
Total before value (rounded to) $88,000
Total after value (rounded to) 82,800
——
Damage $ 5,200
The fulcrum of the majority opinion is that the court erred in permitting the landowner Olson and his witnesses to treat the Bullhead land, a noncontiguous tract located about 15 miles
The landowner Olson testified to a before taking value of his farm of $65 per acre and an after taking value of $60 per acre, a net damage of $5 per acre, or a total damage of about $8,295. I do not conceive that he intended by this testimony to imply to either the court or jury that all parts of the farm were damaged equally. To me he intended to convey that if and when he sold his farm, in the manner in which farms are customarily sold, that is, as an entire operating unit, the fair market value was $65 per acre before the taking. However, after the taking, its fair market value as a unit and without segregating its component parts was $60 per acre. To attach to this testimony under the circumstances the significance to necessitate a reversal as the majority does is unwarranted by this record. Even assuming the trial court should have excluded this 480 acres from consideration as a part of the farm unit and erred in not so doing, I do not see prejudicial error and we have repeatedly said that error without prejudice does not warrant a reversal. Alberts v. Mutual Service Casualty Co., 80 S.D. 303, 123 N.W.2d 96; Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199.
There is a third reason why I would not reverse. Error is assigned on failure to give state‘s requested Instruction 1 A. This instruction does little except to elaborate on Instruction 12 set forth in the majority opinion. In a few concise words the latter instruction tells the jury that the state had previously acquired a 100 foot right of way for highway purposes “the damages resulting from which is not to be considered by you in awarding damages“. There is no error in refusing instructions requested if the matters embodied therein are substantially covered by other instructions.
The majority opinion states: “While the instructions given had the merit of being brief and some of them stated legal principles generally, and the objections to those given and refused were no model of clarity or preciseness, the references to the ‘entire unit’ could have only been understood by the jury to include the 1659 acres farmed by defendants. This, coupled with the whole tenor of defendants’ evidence and the court‘s rulings on it, that the 1659 acres—the 1179 acre home place and the 480 acre tract 15 miles away—was the entire unit or whole unit to be considered in assessing damages was erroneous. If not a direction to the jury to so consider it, the instruction was confusing and misleading; that is a misdirection and available on appeal even assuming no proper objection was made.” The majority conclude that misdirection is available on appeal even though no proper objection in the trial court was made. With these conclusions, I do not agree. The verdict of a jury will not ordinarily be set aside for error not brought to the attention of
The Fortune case cited supra and State Highway Commission v. Bloom, 77 S.D. 452, 93 N.W.2d 572, when analyzed do not support the extended application credited by the majority. In Fortune, the State Highway Commission commenced separate condemnation actions against R. A. Fortune and Howard Fortune, on land under separate ownership of each of them. Additionally each had separate leases on government land. The defendants, father and son, held fee title to about 4,200 acres and leased about 8,000 acres. In four sections the highway crossed tracts owned by the defendants which were completely surrounded by leased land. At the trial the cases were consolidated and it was stipulated that the entire acreage constituted a single operating ranch unit and severance damage was to be awarded in one amount on the whole unit “as though the fee ownership of the lands was joint” and the defendants agreed to make “between themselves a division of such total award“. This was the stage for this court‘s ruling of misdirection in the trial court instructions and consequent prejudicial error by referring to the “entire unit” and the “entire tract“. This court said: “(T)his principle by which separate parcels of land are deemed contiguous because of a unified or common use is not applicable to lands owned by different parties. Since the measure of damages is the difference between the value of thе property before the taking and its value after the taking, which includes a proper allowance for severance, the damages to be awarded the separate owners must be determined separately.” Instructions without proper explanation which permitted leased lands to be considered as a part of a unit were held to be erroneous. The foundation for the reversal was the application of an incorrect rule of law on measure of damages premised on a stipulation of counsel.
The effect of the majority holding it appears to me will be that henceforth in condemnation actions when there is a partial taking and when the landowner has noncontiguous tracts in his operating unit, the trial court must proceed at its peril when it allows testimony of before and after fair market value, if physically separated tracts are included in such valuation. The same uncertainty will be prevalent when the parties and their witnesses prepare for trial.
I am authorized to say that ROBERTS, P. J., concurs in this dissent.