Bd. of County Com'rs of Santa Fe County v. Slaughter

• Decision Date: 09 May 1945
• Docket Number: No. 4813.,4813.
• Citation: 49 N.M. 141,158 P.2d 859
• Parties: BOARD OF COUNTY COM'RS OF SANTA FE COUNTYv.SLAUGHTER et al.
• Court: New Mexico Supreme Court

49 N.M. 141

158 P.2d 859

BOARD OF COUNTY COM'RS OF SANTA FE COUNTY

v.SLAUGHTER et al.

No. 4813.

Supreme Court of New Mexico.

May 9, 1945.

Appeal from District Court, Santa Fe County; William J. Barker, Judge.

Proceeding by the Board of County Commissioners of Santa Fe County, New Mexico, against Phyllis W. Slaughter, administratrix of the estate of Thad C. Slaughter, deceased, and others to condemn certain realty. From the judgment fixing the amount of compensation, plaintiff appeals.

Reversed with directions.

See, also, 158 P.2d 854.

Where portion of plaintiffs' property was taken for construction of new highway, but old highway remained accessible, plaintiffs were not entitled to compensation for loss resulting from diversion of traffic from in front of owners' buildings constructed on old highway. Const. art. 2, § 20; 1941 Comp. § 25-901 et seq.

[158 P.2d 859 , 49 N.M. 141]

David W. Carmody, Dist. Atty., and Carl H. Gilbert, both of Santa Fe, for appellant.

Seth & Montgomery, of Santa Fe, for appellees.

MABRY, Chief Justice.

This appeal arises out of a condemnation proceeding filed by the Board of County Commissioners of Santa Fe County in the District Court of the First Judicial District in and for Santa Fe County. The original appellees, defendants below, Thad C. Slaughter and Emma J. Slaughter, his wife, were the owners of the property condemned. Since the suit herein was commenced, the original appellees, Thad C. Slaughter and Emma J. Slaughter, have both died, and the case has been revived in the name of Phyllis W. Slaughter, administratrix of the estate of Thad C. Slaughter, deceased, hereinafter to be referred to as appellee, or ‘owner’. The rights of other appellees herein are, necessarily, controlled by the disposition we make of the claim of appellee Phyllis W. Slaughter, and their situations, or rights, need not be separately, or further, noticed.

The regular statutory proceedings under the provisions of 1941 Comp., Section 25-901 et seq., were had with reference to the appointing of commissioners, or appraisers. An order of immediate entry was granted, the report of the commissioners filed, and a surety bond was furnished by the plaintiff in the amount of $15,000. Appellant board excepted to the report of the commissioners, the exceptions were overruled and appellants appealed to the District Court of Santa Fe County. Trial was had in the district court upon the stipulation entered into by and between counsel for appellant and appellees, and, after hearing, the court entered its judgment in favor of the appellant in so far as the right to condemn was concerned, but in favor of the appellee, the owner, in so far as the amount of damages and compensation were concerned, the judgment being in the amount of $11,000. It is from this judgment for damages that appellant, plaintiff in the court below, has taken its appeal.

U. S. Highway No. 85 between Glorietta, Santa Fe County, and Rowe, San Miguel County, at the time of the filing of this cause, went through the Slaughters' property. Immediately bordering upon this highway they had constructed a store, restaurant, residence, filling station and numerous tourist cabins; and, they had made other substantial improvements of a permanent nature. The area surrounding these buildings has been landscaped and the Slaughters have conducted a tourist business at this location for many years.

The New Mexico State Highway Department, in attempting to straighten out the many curves upon the highway, surveyed a new route upon which it is intended to relocate U. S. Highway No. 85. This new route also goes through the rear of appellee Slaughter's property, approximately three-eighths of a mile from the improvements, bearing in a southerly direction from the present location of U. S. Highway 85. There was sought to be condemned from the appellee Slaughter in this proceeding some 13 1/2 acres of land which is to be, and now is, used for highway right of way purposes. Lying between the location of the owner's improvements and the new right of way is a mesa rising precipitously, approximately 200' in altitude, which makes direct access with the new highway practically impossible.

It is agreed by the parties that the actual value of the land taken is $10 per acre, or the sum of $136.32. However, the owner contends that by reason of the rerouting of most of the vehicular traffic away from the old highway and onto the new highway, a shorter route and a better improved road, her property will be damaged in the amount of $11,000. Incidentally, it is stipulated to be the present intention of the New Mexico Highway Department to maintain the present, or old, road, thus emphasizing the absence of blocking, or stoppage, of ingress or egress. It may be agreed, of course, that with the new and more direct highway now completed, the normal tourist traffic on U. S. Highway 85 will not be over the old road. The trial court found that the taking of the small portion from the larger and compact tract of appellee's land did not of itself damage or injure the portion left, in any manner. It is conceded that unless this additional compensation claimed may arise because of the re-routing of the traffic, no recoverable damages in addition to the $136.32, the price of the land, has been sustained.

The controversy resolves itself into the following proposition:

In an eminent domain proceeding may the reduction in market value of land not condemned (where the actual taking for the new right of way from a portion of such land has not disturbed or affected the value of the part remaining), which is caused solely by a diversion of traffic formerly passing in front of a place of business, be considered in determining the amount to be paid for the portion actually taken?

It must be conceded that ‘private property shall not be taken or damaged for public use without just compensation.’ Art. 2, Sec. 20, Constitution of New Mexico. 1941 Comp. Sec. 25-901 et seq. provides the means for condemning and determining how it shall be taken. The point upon which the parties differ is as to what elements may be considered in arriving at ‘just compensation’ for the land not actually taken, but, under the circumstances, adversely affected, or, as the owner would say, ‘damaged’.

The general rule for arriving at just compensation for property not taken but adversely affected is the so-called ‘before and after’ rule; and this poses the question: What was the value before the taking; and what is now the market value after the taking? The owner of the property, ordinarily, is entitled to receive the difference between these sums. 20 C. J. 730; 29 C.J.S., Eminent Domain, § 139. However, the vast majority of the courts approve a definite exception to this rule in that it is recognized that there are elements of damage for which no compensation will be given even though the market value may be adversely affected. 20 C. J. 779, 29 C.J.S., Eminent Domain, § 162. Specifically, with reference to this case, the rule is that ordinarily no person has a vested right in the maintenance of a public highway in any particular place. That exception is based upon the consideration that the State owes no duty to any person to send public traffic past his door. See cases cited in 118 A.L.R. 921.

It seems to be the universal holding that where the taking of one's property is not involved and a highway is relocated and leaves a property owner completely off the new highway, but still with means of entrance and exit, that he has no right to damages for this reason alone. In other words, where the direct taking of some of his property is not involved, one cannot recover in damages for the relocation of a road entirely off of his property. The point at issue in this cause does not present exactly the same problem as that just mentioned (but the same answer is afforded) inasmuch as, in this case, the appellee, as distinguished from any other persons owning property upon the old highway, is having a part of her property taken for the new highway. It is not contended that other persons living on the old road, no part of whose property was taken, would be entitled to damages. However, appellee contends that inasmuch as a portion of her land is taken, no matter how small, she is entitled to compensation for an injury which is as to all others, none of whose property is so taken, ‘damnum absque injuria’. Appellee's contention, therefore, must necessarily be that even though other property owners along the old road are injured in exactly the same manner as herself, the fact that the other property owners have no property which was needed for the new right of way prevents all others but appellee from recovering for the damage which all are suffering.

The courts easily distinguish special and direct from remote and consequential damages. See Wine v. Com., 301 Mass. 451, 17 N.E.2d 545, 120 A.L.R. 889, where it was held that a new road construction resulting in diversion of traffic, standing alone did not constitute a special injury for which damages would be allowed, but that blocking off traffic by a barricade which shut off the landowner's access to the general system of the public highways of the city did constitute injury special and peculiar to him.

The question involved herein is well annotated in 118 A.L.R. 921. The cases cited in the annotation are to the effect that a property owner, even under circumstances here present, has no right to compensation for diversion of traffic by reason of the relocation, or re-routing, of a highway.

One of the leading cases supporting appellant's contention, and noticed in the annotation, is Nelson v. State Highway Board, 110 Vt. 44, 1 A.2d 689, 693, 118 A.L.R. 915. There the question presented is almost identical with that in the instant case. In the Nelson case an award of $4,500 was made for consequential damages ‘due to use of appellants' land as a new route for the...