Benninghoff v. Town of Palisade

• Decision Date: 02 May 1910
• Citation: 48 Colo. 64,108 P. 983
• Parties: BENNINGHOFF et al. v. TOWN OF PALISADE.
• Court: Colorado Supreme Court

108 P. 983

48 Colo. 64

BENNINGHOFF et al. v. TOWN OF PALISADE.

Supreme Court of Colorado

May 2, 1910

Appeal from District Court, Mesa County; Thereon Stevens, Judge.

Proceedings by the Town of Palisade against Esther E. Hoover Benninghoff and others, to condemn a certain water right. From a judgment for plaintiff, defendants appeal. Affirmed.

Straud M. Logan, for appellants.

Wheeler & Weiser, for appellee.

MUSSER J.

This action was brought under the statutes of eminent domain by the town of Palisade to condemn a water right with which to supply the town with water for domestic use and fire protection. Three commissioners were appointed, as provided by statute, to appraise and determine the damages and compensation to be allowed the owner. This was fixed by the commissioners at $4,000 for the water right and $8,500 for consequential damages accruing to the land on which the water was used. The owners are not satisfied with the award of $12,500, and are here assigning various errors relating to the admission of testimony before the commissioners, saying in effect, that the evidence on the part of the town was practically all incompetent, irrelevant, and immaterial, and that the evidence on the part of the owner was the only competent and reliable evidence offered, and for that reason the award should be from $24,000 to $27,000. One of the witnesses for the owner, whose testimony tended to show that the award should be about $25,000, based on values of other lands in the vicinage said that the values he was testifying to, or asked about were uncertain and much inflated. As these values were based upon about the same matters as the values testified to by the other witnesses for the owner, the commissioners, no doubt, felt that the values sought to be established by the owner were inflated and not real. On the other hand, one witness for the town said the land with the water was worth $5,000 or $6,000; another from $7,000 to $10,000; others placed it higher. Thus is presented the maze of differing opinions usual in cases wherein value is sought to be established. Giving the appellants the benefit of the rules of evidence they invoke, their assignments of error will be considered. The burden of their complaint is that a great deal of the testimony on behalf of the town related to the condition of the trees upon the land the profits therefrom, the amount of water that was used at various times for the irrigation thereof by means of the water right, and other evidence of like character. They say that such evidence was incompetent in measuring the value of the land. Strictly speaking, it was the value of the water right, the property taken, that was to be ascertained together with the damages to the land by reason of the taking. The land was not taken. They insist, however, that without the water right the land is worthless, and that therefore, they are entitled to the value of the land with the water right. Giving them again the benefit of their claim, to avoid contention, it appears that the things they complain of have a direct bearing on the value. If fruit trees on the land are thrifty and produce fruit in great quantity and of good quality, the land is worth more than if the trees were weak and less productive, or produced fruit of inferior quality. Like other property, the value of land is more or less affected by the profit which has been derived therefrom, though, of course, in a developing country, it is true that prospective capabilities of land will have considerable influence in determining its value. Conditions, circumstances, and surroundings which exist, and have existed, character of soil and other like conditions, have some bearing in determining what may be the future capabilities. The source of the water right was a small creek. If there was always enough water in the creek, when needed, to supply the full amount of the appropriation, the water right was worth more than it would be if, at times, the owner had to be satisfied with a less amount than the appropriation. It is true that the town was condemning the right to an amount of water as fixed by the decree, but the decree itself did not supply the water necessary to fill it when needed. Hence evidence of how much water was supplied to the ditch during the irrigation season was competent. Some of the witnesses testified that a large part of the land was rough and rocky, that it was badly washed in places, and that it was inconvenient to get to and from it. Can it be said that such conditions will not affect its value, present or prospective? It is thus seen that all this evidence complained of has a bearing on the value of the property taken. It is to be remembered that in this case, not only is compensation for the property taken to be awarded, but also damages to the property not taken. In such a case, a wide range of evidence is admissible. All evidence having a bearing upon the compensation and damages to be awarded is admissible. Colo. M. Ry. Co. v. Brown, 15 Colo. 193, 25 P. 87. 'All the facts as to the condition of the property and its...