Bd. of County Com'rs of Roosevelt County v. Good.

• Court: New Mexico Supreme Court
• Writing for the Court: MABRY, Justice.
• Citation: Bd. of County Com'rs of Roosevelt County v. Good, 44 N.M. 495, 105 P.2d 470, 1940 NMSC 56 (N.M. 1940)
• Decision Date: 03 September 1940
• Docket Number: No. 4528.,4528.
• Parties: BOARD OF COUNTY COM'RS OF ROOSEVELT COUNTYv.GOOD.

44 N.M. 495

105 P.2d 470

BOARD OF COUNTY COM'RS OF ROOSEVELT COUNTY

v.GOOD.

No. 4528.

Supreme Court of New Mexico.

Sept. 3, 1940.

Appeal from District Court, Roosevelt County; Harry L. Patton, Judge.

Condemnation proceeding by the Board of County Commissioners of Roosevelt County, N. M., against Frank Good. From an adverse judgment, defendant appeals.

Reversed, with instructions.

In proceeding to condemn land for the purpose of securing rock, sand, gravel, and caliche for use upon a public highway, the market value of caliche rock when used as a mineral for cattle feed as distinguished from the value of the land itself was for the jury.

Mayes & Rowley, of Clovis, Keith W. Edwards, of Ft. Sumner, and J. D. Mell, of Santa Fe, for appellant.

J. C. Compton, of Portales, for appellee.

MABRY, Justice.

This appeal presents the question of whether the trial court correctly determined the measure of damages which should have been applied in certain condemnation proceedings. These proceedings were instituted by the county commissioners of Roosevelt county, seeking to condemn certain of appellant's lands for the purpose of securing rock, sand, gravel and caliche for use upon a public highway.

The cause was tried to a jury. The only attack is made upon the manner of appraising the property so taken from appellant. The evidence admitted was upon an acreage value basis, rather than upon the actual value of the materials taken from the land. Appellant contends that the principal product taken, caliche, has a value as a mineral for cattle feed when processed, as well as for road construction; that the value should have been determined as that of other property taken by condemnation-upon the basis of its market value-and that he should have been permitted to offer proof of such market value; and that the denial of this right and the instruction of the court, limiting proof of damages to the acreage value of the land from which the caliche was taken, was erroneous.

Appellee Contends that the proper method of ascertaining the damages was employed, and that, in any event, appellant did not properly raise the issue of special value over and above the value of the land as such, and that, if, as appellant contends, caliche is something with a special value as a mineral food, it is not subject to condemnation at all, and that the question not having been before raised, it is now too late.

The statute denying right of condemnation, to which appellee refers and which we shall hereinafter further notice, is Sec. 43-115, N.M.Comp.Stat. 1929, which provides; “Nor shall any land be condemned for municipal purposes which may be shown by the owner or lessee thereof to have a content of precious metal sufficient to make said land of value as mineral producing property.” (Italics ours.)

The complaint was in the ordinary form, and alleges that the rock, sand, gravel and caliche are needed for public road construction, and that plaintiff board desired to have the land condemned for the purpose of obtaining them. Commissioners were appointed, who viewed the land, and fixed the damages sustained at $300.

The court by the decree, entered after notice and upon hearing, approved the report and appraisal of the commissioners so appointed, and further provided by consent of all parties that the defendant shall “have the right to establish his damages and the value of said caliche rock which may be so mined and removed from his said land by the plaintiff” by the court, or, by a jury, if desired. Appeal was taken from commissioners' report and a trial to a jury had, which fixed the amount of damages at $120.

It is clear from the proceedings, that after issue was joined, the matter of sand and gravel was lost sight of and that the appellant attempted to litigate the matter upon the question of the value of the caliche rock taken from the land as he was entitled to do under the consent portion of the decree.

[1] Appellee contended that the acreage value of the land was the proper measure by which the value of the rock taken therefrom should be fixed, while appellant claimed the measure of damages should be confined to the market value of the rock taken as directed by said decree. In this, appellant was correct.

[2] It may be doubted whether appellant offered to produce very satisfactory proof as to such market value, as distinguished from the value of the land itself, but that would be a question for the jury. It would go to the weight and not to the admissibility of the evidence. He thinks the court improperly ruled upon his offers to prove such value, and likewise erroneously instructed the jury as to the method of fixing the damages.

It is clear that the court did not permit appellant to prove the feed value of the caliche. An offer was made by appellant to prove that the rock was of special value when ground and processed as mineral stock food, and that an analysis which he had secured from the State College at Las Cruces disclosed this rock had a commercial value as...