Besnah v. City of Fond du Lac

• Citation: 151 N.W.2d 725,35 Wis.2d 755
• Parties: A. N. BESNAH, Respondent, v. CITY OF FOND du LAC, a municipal corporation, Appellant.
• Decision Date: 30 June 1967
• Court: United States State Supreme Court of Wisconsin

Page 725

151 N.W.2d 725

35 Wis.2d 755

A. N. BESNAH, Respondent, v. CITY OF FOND du LAC, a municipal corporation, Appellant.

Supreme Court of Wisconsin.

June 30, 1967.

John C. Murphy, Fond du Lac, for appellant.

St. Peter & Hauer, Fond du Lac. for respondent.

BEILFUSS, Justice.

The sole issue on this appeal is:

Is there any credible evidence to sustain the findings of the jury?

In condemnation cases just compensation for the taking is what the owner has lost, not what the condemnor has gained. Volbrecht v. State Highway Comm. (1966), 31 Wis.2d 640, 647, 143 N.W.2d 429. The measure of the owner's loss in case of a partial taking, such as this case, is provided by sec. 32.09(6), Stats., in part:

'In the case of a partial taking, the compensation to be paid by the condemnor shall be determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the followig items of loss or damage to the property where shown to exist.'

In short, 'the measure of damages in a condemnation proceeding where there is a severance is the difference between the fair market value of the whole property immediately before the taking and the fair market value of the remainder immediately thereafter.' Ken-Crete Products Co. v. State Highway Comm. (1964), 24 Wis.2d 355, 359, 129 N.W.2d 130, 132.

The proper form of submission of the issue of damages to the jury is in the form of a two-question special verdict, one question asking for a finding as to the before-taking value of the owner's whole parcel and the other asking for a finding as to the after-taking fair market value of the remainder. Wis JI--Civil, Part II, 8100; Muscoda Bridge Co. v. Grant County (1929), 200 Wis. 185, 189, 227 N.W. 863. And even in condemnation cases, a jury should not be informed of the effect of its answers to the questions of a special verdict. Zombkowski v. Wisconsin River Power Co. (1954), 267 Wis. 77, 81, 64 N.W.2d 236. Moreover, the finding of a jury as to valuation in a condemnation case, approved by the trial court, will not be disturbed on review where it is clear that the value arrived at is well within the range of values placed in evidence, and where there is credible evidence to sustain the jury's finding. Weeden v. City of Beloit (1966), 29 Wis.2d 662, 669, 139 N.W.2d 616.

With these fundamental principles in mind, we examine the evidence in the instant case to see if it supports the findings of the jury.

The jury found the before-taking value to be $67,500 and the after-taking value to be $52,500. Although the findings resulted in damages which in the opinion of the trial court may have been high, the verdict was approved by the trial court when it decided the motions after verdict. The findings are well within the range of values in evidence at trial. Mr. Wade, the plaintiff's expert, gave $135,000 as his opinion of the before-taking value. The opinions of the city's appraisers, Mr. Bergen and Mr. Wurtz, as to before-taking value were $31,500 and $32,549, respectively. The jury found $67,500. Mr. Wade's opinion as to the after-taking value was $121,500; the city's appraisers' opinions were $28,750 and $27,899. The jury found $52,500. Thus both the jury findings were well within the range of values in evidence. The question in this case is whether the findings are supported by credible evidence. In Weeden, supra, the court articulated the standard of review at p. 666, 139 N.W.2d at p. 618:

'In reviewing a jury verdict this court need only consider that evidence which supports the verdict. It is also clearly a rule of this court that a verdict should not be disturbed 'if there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury's findings.' This approach is especially applicable when, as in the instant case, the trial court approved of the verdict. That this approach is equally applicable in condemnation cases is evident * * *.'

The city's principal complaint is that the jury awarded damages higher than the difference between the before-taking value and the after-taking value opinions of any of the expert witnesses. The difference between the before and after-taking values of the city's appraisers were $4,650 and $3,650 respectively, and the difference testified to by plaintiff's appraiser was $13,500.

The argument overlooked additional testimony given by the plaintiff's appraiser. On direct examination he testified, in part, as follows:

'Q State whether or not you have an opinion as to the value of that property, his whole property in the City of Fond du Lac as shown on the exhibits here, and as shown in the evidence, I guess, and the descriptions; the value of the entire property before the taking; do you have an opinion?

'A Yes, sir.

'Q And do you have an opinion of the value as of November of 1965 of the remaining property after the taking?

'A Yes, sir.

'Q And do you have an opinion as to the severance damages?

'A Yes, sir.

'Q Would you state what, in your opinion, is the value of the property taken as of November of 1965 by the City's condemnation?

'A $13,500.00.

'Q And what is your opinion as to the severance damages to this property?

'A $13,500.00.

'Q And what is your opinion as to the total damages?

'A $27,000.00.

'Q What is your opinion as to the value of the entire property before the taking?

'A $135,000.00.

'Q What is your opinion as to...