93 N.W.2d 572 (S.D. 1958), 9682, State Highway Commission v. Bloom

Docket Nº:9682.
Citation:93 N.W.2d 572, 77 S.D. 452
Opinion Judge:BURNS, Circuit Judge.
Party Name:The STATE HIGHWAY COMMISSION of the State of South Dakota, on behalf of and in the name of the STATE of South Dakota, Plaintiff and Appellant, v. Willard BLOOM, Defendant and Respondent.
Case Date:December 15, 1958
Court:Supreme Court of South Dakota
 
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Page 572

93 N.W.2d 572 (S.D. 1958)

77 S.D. 452

The STATE HIGHWAY COMMISSION of the State of South Dakota,

on behalf of and in the name of the STATE of South

Dakota, Plaintiff and Appellant,

v.

Willard BLOOM, Defendant and Respondent.

No. 9682.

Supreme Court of South Dakota.

December 15, 1958

Page 573

[Copyrighted Material Omitted]

Page 574

[77 S.D. 455] Gunderson, Farrar & Carrell, Rapid City, Phil Saunders, Atty. Gen., William Coacher, Walter Mueller, Asst. Attys. Gen., for plaintiff and appellant.

Bangs, McCullen & Butler, H. F. Fellows, Rapid City, for defendant Willard Bloom.

BURNS, Circuit Judge.

This action was brought by the State Highway Commission of the State of South Dakota as plaintiff, hereinafter referred to as the State, to condemn land belonging to the defendant, Willard Bloom, for highway purposes for reconstruction of a part of State Trunk Highway No. 16 as a part of the Federal Interstate Highway System. By its verdict the jury awarded to the defendant damages in amount of $25,000 for the property taken and damaged and judgment was entered thereon. Upon denial of its motion for new trial the State appealed.

The defendant, respondent in this Court, owns 4,040 acres of land in Pennington County, South Dakota, used as a cattle ranch. Except for 640 acres the land is contiguous in the form of a somewhat irregular rectangular area approximately two sections in width east and west by four sections in length north and south. Sections 24 and 25 are in the southwest part of the area. The State seeks to appropriate for highway purposes 18.34 acres in the northeast quarter of Section 25, 9.49 acres in the northeast quarter of the northwest quarter of Section 25 and 23.81 acres in the southwest quarter of Section 24, a total of 51.6 acres belonging to the defendant. The proposed highway will enter this area from the southeast and extend diagonally in a northwesterly direction crossing seven torty-acre governmental subdivisions belonging to the defendant.

Adjoining Section 25 on the south is Section 36, title to the south half of which is held by the defendant. The north half of this section had been leased by the defendant for thirty years or more from the private owner during which time defendant has used it as a part of his ranch operation. Access to the owned land in Section 36 is afforded by use of the leased land as well as by a county road extending north along the west side thereof.

In Section 11 on mile south of Section 36 is an [77 S.D. 456] eighty-acre tract of dry hayland owned by the defendant from which hay is taken and hauled to the ranch headquarters for feeding. This eighty-acre tract is part of the winter range. The defendant also owns 240 acres of land in Sections 32 and 33 which land is two to three miles east of the land owned in Section 36. This is known as 'flood irrigated hay land' where the defendant makes hay and hauls it to the ranch for feeding cattle. It is not part of the summer or winter range.

The proposed highway to be constructed on the defendant's land in Sections 24 and 25 will separate the ranch so that 1,088 acres of defendant's land will lie south of the projected highway and approximately 2,900 acres will lie north thereof. There will be summer and winter pasture on both sides of the highway. The house and buildings are located in the south central part of Section 24 north of the proposed highway and the well and a corral are located in the north central part of Section 25 south of the proposed highway. This controlled access interstate highway

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as constructed will be three hundred feet wide with no intersections at grade. An interchange on a county road between Sections 24 and 25 will provide a crossing for vehicles. There will be a ten foot by ten foot underpass at a point under the highway between the buildings on the north and the well on the south and a seven foot by seven foot underpass about a half mile northwest thereof. These underpasses intended for cattle passes will be three hundred feet long with covered portions of fifty-eight feet under one lane of travel and fifty-two feet under the other lane of travel with a ten-foot air space at the middle point.

At an early stage of the trial the defendant offered in evidence the plat, Exhibit A, upon which the governmental subdivisions owned by the defendant were shown in red. Upon attempting to explain that certain forty-acre subdivisions had been erroneously marked in red as owned land when in fact such were government permit land or privately owned leased land, the State made and reserved a standing objection to evidence as to government permit land and privately owned leased land. An attempt by counsel for defendant to explain the purpose was cut short [77 S.D. 457] by the court overruling the objection. Thereupon it was shown that four forty-acre subdivisions in Section 7 marked with crosses were not owned by respondent but had been leased by him from a private owner since 1936 and by his father before that, and that four forty-acre subdivisions making up the northwest quarter of Section 24 also marked with crosses were government permit land. Thereafter, the direct testimony of the respondent and his several witnesses was limited to the owned land. Such testimony as there was as to the permit land and leased land was brought out by cross-examination on behalf of the State. Defendant and his witnesses gave their opinions as to the value of the owned land before and after the taking. Several of them when asked on cross-examination whether they took into account the government permit land either said they did not or that such would make no difference in the value of the owned land.

It was the State that put into the record the lease agreement between the United States Department of Agriculture and the Eastern Pennington County Cooperative Grazing District and the rules and regulations governing grazing permits. The State also produced a map showing the government land in such grazing district. Over objection of the defendant the State showed that the defendant had a preference grazing permit from the Government for 132 animal units and a temporary permit for 1957 for 110 animal units in accordance with the regulations of the grazing district. Upon such a record the State cannot be heard to complain that there was evidence received as to government permit land. In any event we have recently held that in determining the value of owned land used as a base for ranching purposes it is proper to take in consideration such grazing permits as an appurtenant element of value. State Highway Commission v. Fortune, (two cases) S.D., 91 N.W.2d 675. The same principle applies to the privately owned land which has been leased for grazing purposes by the defendant for thirty years. Such leased quarter section is completely surrounded by defendant's land. It is a small parcel of grazing land of such a character and so located that it is adapted for use only as [77 S.D. 458] a part of a larger grazing unit. It is reasonably certain that such land will be available for continued use in the future as grazing land under lease by the owner of the surrounding lands. Its availability for rental and accessibility for use for grazing purposes under the circumstances shown is an appurtenant element of value of the base land for ranching purposes limited by the terms and likely duration of the lease and the possibility of its termination.

In Instruction No. 4 stating the measure of damages, in Instruction No. 5 defining fair market value and in Instruction No. 6 defining just compensation the Court used

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the term 'the entire tract.' Instruction No. 10 submitted a form of verdict directing the jury to 'find the amount of compensation to be paid to the defendant, Willard Bloom, the owner of the land involved in this proceeding, for his property taken or damaged.' A common objection made to these instructions by the State was that they did not distinguish between land owned by the defendant and permit and leased land on which the defendant has a right of pasturage. As pointed out above the defendant made no claim and offered no evidence to support any claim that his owned land had enhanced value by reason of any rights he had to graze cattle on government permit land or leased land. On the part of the defendant the case as to damages was limited to the land to which he had...

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