Barber v. State Highway Commission, 2846

• Decision Date: 28 July 1959
• Docket Number: No. 2846,2846
• Citation: 342 P.2d 723,80 Wyo. 340
• Parties: William E. BARBER and Edna Barber, Appellants (Defendants below), v. STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 723

342 P.2d 723

80 Wyo. 340

William E. BARBER and Edna Barber, Appellants (Defendants below), v. STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below).

No. 2846.

Supreme Court of Wyoming.

July 28, 1959.

Brown, Healy, Drew, Apostolos & Barton and William H. Brown, Jr., Casper, for appellants.

Thomas O. Miller, Atty. Gen., and Robert L. Duncan, Sp. Asst. Atty. Gen., for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

The State Highway Commission of Wyoming, plaintiff, in accordance with its resolution directing action to be taken under § 48-105, W.C.S.1945, as amended, filed a petition in the District Court of Converse County seeking to acquire by condemnation 158.5 acres of ranch land belonging to William E. Barber and Edna Barber. The purpose for which the property was sought was the establishing of an access facility highway to be a portion of U. S. Highway 87. Defendants Barber answered, denying most of the allegations of the petition for want of knowledge; alleged damage in excess of $92,000 which would accrue to them if the property were taken; and prayed judgment. They also asserted that plaintiff had not exhibited a good-faith effort toward agreement on damages but had offered only $5,800 for the land. The court issued an order appointing commissioners to assess and determine the compensation to be paid to defendants and shortly thereafter entered an order granting the plaintiff immediate possession of the land sought to be condemned. The commissioners appraised the value of land being condemned at $38,982.50, which amount covered numerous items: $14,162.50 for the land; $4,500 for relocation and construction of certain ranch facilities; $3,000 for loss of trees; $3,000 for exposure of the ranch to the public; $2,020 for aggregate taken from the condemned land; $1,000 for loss of adequate means of ingress and egress during the period of the highway construction; and $11,300 for damage to the ranch operating unit due to the highway's cutting directly through the ranch. Both plaintiff and defendants expressed dissatisfaction with the award and demand was made for a jury trial to determine the compensation which defendants were to receive for the taking of their property.

Upon the trial of the cause, the jury rendered a verdict awarding the defendants the sum of $15,000, itemized as $3,992.50 for the property actually taken and $11,007.50 for the damage to the property not actually taken but injuriously affected. The trial court thereafter overruled a motion for new trial and entered an order confirming the verdict of the jury in the amount of $15,693. ¹

In their appeal the defendants have urged various errors which they believe warrant a reversal.

I

Defendants say that the order is contrary to the law and to the evidence, for one reason because plaintiff had no authority or right to condemn the land and consequently the court had no justification to hear the controversy. They point out that the right of eminent domain is wholly within the power of the legislature and cannot be exercised by any other agency except by a proper delegation through statute. Plaintiff purported to act under the provisions of § 48-105, W.C.S.1945, amended by c. 163, S. L. of Wyoming, 1953, which directed that the State Highway Commission acquire rights of way 'by condemnation proceedings in the same manner as is provided by law for the condemnation of rights of way for railroad purposes as set forth in Article 65, Chapter 2, Wyoming Compiled Statutes, 1945.' Plaintiff's counsel admit that the statutory reference in this portion of the session law was erroneous, there being no such article and chapter, but argue that the reference intended was c. 3, art. 61, W.C.S.1945, the portion of the Wyoming statutes which deals with eminent domain by railroads; and they say the court should give effect to the intention of the legislature. On the other hand, defendants insist that plaintiff had no authority to proceed under § 48-105, as amended by c. 163, S. L. of Wyoming, 1953, because this session law referred to a part of the statutes which was nonexistent. Many authorities are cited by them purporting to say that courts are not the arbiters of statutes and may not make corrections to declare what the courts think that the legislature intended. This is another way of saying that the erroneous designation of the chapter governing condemnation proceedings for railroads leaves the session law ineffective to provide a method of condemnation for the land here in issue. We think this contention is without merit. It is true that courts will not usurp the power of the legislature by deciding what should have been said, ² but no such decision is necessary in a situation so plain as this. The session law clearly referred to the chapter and article in the statutes which dealt with 'condemnation of rights of way for railroad purposes.' Nothing could be clearer, and the mere fact that there was an incorrect designation by numbers should mislead no one. State ex rel. Board of Com'rs of Laramie County v. Wright, 62 Wyo. 112, 163 P.2d 190; Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044.

II

Defendants insist that the court erred in refusing to give their instructions A, B, C, and D, which related respectively to the formula for determining damages, the obligation of plaintiff to perform work not listed in the plans and specifications, the meaning of just compensation, and the steps in determining the damage. Without setting the instructions forth at length, suffice to say that the subjects mentioned in A, C, and D were adequately treated by the court in instructions 3, 4, and 5 which were given. As to B, we are doubtful that the trial court would have been within its province to instruct the jury on plaintiff's obligations to perform acts other than the ones mentioned in the plans and specifications; and the authorities cited by the defendants on this point are unconvincing.

III

Defendants argue that they should have been allowed to adduce testimony tending to show that the Federal Government rather than the State of Wyoming was paying the bill. This we think was, or at least should have been, wholly immaterial to the issues. Apparently the idea underlying the request was that juries regard Federal projects as pork barrels which may be tapped without pain to the conscience or injury to the residents of the State. Our experience is that the citizens who serve on juries are fully cognizant of the harm to State taxpayers which results from unwarranted Federal spending. In any event, the argument is without merit, and no authorities are cited to warrant consideration of the point.

IV

Defendants contend that the court erred in granting plaintiff's motion to have the jury view a part only of the appellants' property and cite some cases which tend to hold that the basis of a jury's verdict must be the testimony and evidence adduced at the trial rather than the jury's view of the premises. Apparently plaintiff's counsel concede the propriety of these authorities for they do not argue the point, and the trial court must have agreed for it gave an instruction saying that the purpose of the jury's visit was to better enable them to understand the testimony and apply it, not to make the jurors silent witnesses. Perhaps it is not possible that a group of persons see a portion of the premises under litigation to the exclusion of other portions thereof without giving some weight to what they have seen--even if the court has instructed them not to do so. If the jury were to be shown any of the ranch perhaps it would have been fairer to allow them to see all of it. However, there is no showing that the limited view in this case prejudiced the defendants. Moreover, even under the common law a trial court has wide discretion in permitting a jury to view premises, ³ and the rule is applicable in eminent domain cases. ⁴

V

Defendants urge that the court improperly overruled objections to plaintiff's cross-examining one of the three former commissioners concerning the amounts previously placed on the property, saying that the damages set by the commissioners who had an obligation to evaluate the property were not proper evidence to be placed before the jury in this case. We are in agreement with the authorities cited by counsel to that effect. However, in this instance the inconsistent statements of the witness are in issue rather than the former action of the commissioners, and such inconsistent statements if material may be the subject of cross-examination or impeachment, not as of substantive or independent testimonial value but merely in order that the two mouthings of the person who purports to inform the court and jury may be placed side by side so that the relative value of one or the other could be determined by the fact-finding body. 3 Wigmore on Evidence, 3 ed., § 1017 et seq.; 4 Jones on Evidence, 5 ed., § 932, et seq.; McCormick on Evidence, 1954, § 37 et seq.; 58 Am.Jur. Witnesses, § 688; 98 C.J.S. Witnesses § 573 et seq. See Annotations at 133 A.L.R. 1454 and 66 A.L.R. 289. In eminent domain cases where a commissioner is examined as a witness, he may be cross-examined as to his report. Munkwitz v. Chicago, M. & St. P. Ry. Co., 64 Wis. 403, 25 N.W. 438; 2 Lewis, Eminent Domain, 3 ed, pp. 1149, 1150.

VI

It is maintained that the court erred in refusing to admit certain rebuttal testimony of witness Reno. This testimony related to values, benefits, and detriment, which were said to be properly a part of the case in chief. As counsel urge, if there be no trickery, material evidence should not be rejected merely because it is in improper order. However, under the Wyoming Rules of Civil Procedure, the bar and bench of this State are dedicated to a full and fair disclosure of all the facts in a case at or prior to the time of trial, with no withholding of...