Big Lost River Irr. Co. v. Davidson

• Decision Date: 16 January 1912
• Citation: 21 Idaho 160,121 P. 88
• Parties: BIG LOST RIVER IRRIGATION COMPANY, Appellant, v. CHARLES C. DAVIDSON and ELIZA E. DAVIDSON, His Wife, Respondents
• Court: Idaho Supreme Court

121 P. 88

21 Idaho 160

BIG LOST RIVER IRRIGATION COMPANY, Appellant, v. CHARLES C. DAVIDSON and ELIZA E. DAVIDSON, His Wife, Respondents

Supreme Court of Idaho

January 16, 1912

EMINENT DOMAIN-CONDEMNATION-PROCEDURE-FORM OF VERDICT OF JURY ASSESSING DAMAGES-JUDGMENT FOR DAMAGES-JUDGMENT OF CONFIRMATION-DESCRIPTION OF LAND.

(Syllabus by the court.)

1. Under the provisions of sec. 14, art. 1 of the constitution of this state, private property may be taken for public use after just compensation has been ascertained and paid in a manner prescribed by law, and this section limits the power of the legislature in providing the proceedings for the taking of such property, in that before such property is taken a just compensation must first be ascertained and payment made.

2. Under the provisions of sec. 5220 of the Rev. Codes, it is the duty of the court, jury or referee before whom a hearing is had to ascertain and assess the damages under the provisions of this section, and to make findings upon each of the elements of damages as described in this section; that is, if the entire tract of land is sought to be taken by the condemnation proceedings, the court, jury or referee is required to find, first, the value of the property sought to be condemned and all improvements thereon appertaining to the realty, and of each and every separate estate or interest therein, and if it consists of different parcels, the value of each parcel and each estate or interest therein shall be separately assessed; second, if the property sought to be condemned constitutes only a part of a larger parcel, the jury must also find the damages which will accrue to the portion not sought to be condemned by reason of the severance from the portion sought to be condemned; and third, if the property sought to be condemned constitutes a part of a larger parcel, the benefits that will accrue to the remaining portion after the severance of the part condemned; and in assessing such damages, if the benefits shall be less than the damages so assessed, then in fixing such damages the benefits should be deducted from the damages assessed.

3. Under the provisions of sec. 5220, Rev. Codes, it is not necessary that the jury find the value of each legal subdivision of the tract sought to be condemned. If, however there is more than one parcel of land, or several separate parcels or tracts, each separated from the other, then it is necessary for the jury to determine the value of each separate tract or parcel. But where the tract is a single or consolidated tract, the value may be fixed as a single parcel or tract. Parcel or tract of land as used in this section does not mean legal subdivision, but does mean a consolidated or single tract.

4. Under the provisions of sec. 5220, in assessing and determining the value of the land sought to be condemned, the improvements appertaining to the land sought to be condemned are assessed as a part of the realty, and the finding of the value of the realty includes the improvements.

5. Upon damages being assessed by the court, jury or referee, under the provisions of Rev. Codes, sec. 5220, a judgment should be rendered by the court in the common, ordinary form for the recovery of money in favor of the defendant against the plaintiff, where damages are allowed, and such judgment is the final judgment mentioned in sec. 5223 of the Rev. Codes and is a judgment in personam against the plaintiff for such damages.

6. Under the provisions of sec. 5223 of the Rev. Codes, the plaintiff is required to pay the final judgment entered for damages assessed under the provisions of sec. 5220, within thirty days after such judgment is entered.

7. By the provisions of sec. 5224 of the Rev. Codes, payment of the judgment entered under the provisions of sec. 5223 may be made or deposited in court, and if not so paid or deposited an execution may issue as in civil cases.

8. Under the provisions of sec. 5225 of the Rev. Codes, when payments have been made as provided in secs. 5223 and 5224 the court may make a final order or judgment of condemnation, and such judgment is required to describe the property condemned and the purposes of such condemnation.

9. Under the provisions of secs. 5223, 5224 and 5225, two judgments are to be entered by the court in which eminent domain proceedings are tried; the first in favor of defendant for the damages as assessed under the provisions of Rev. Codes, sec. 5220, and the second in favor of plaintiff for condemnation of the property after the first judgment is paid, and the second judgment should describe the property and the purposes for which the same is condemned.

10. By the various provisions of the eminent domain act of this state, it was intended that where proceedings are prosecuted for the purpose of condemning private property for public use, and the value of such property has been assessed and determined in the manner provided by the statute, that the plaintiff should not be left to his own discretion as to whether or not he will pay such judgment, and leave the defendant's property charged with a liability to be taken at the will or convenience of the plaintiff, and to guard against such possible condition, the legislature provided for a personal judgment and for means by which the same can be enforced; and that the plaintiff is not at liberty or privileged to abandon such proceedings, whether in or out of possession of the property, and leave the defendant without a remedy.

11. Under the constitution of this state and the procedure provided by the statute of eminent domain, proceedings must be substantially in accordance with the statute, and the plaintiff or person or corporation seeking to condemn and acquire title to private property for public use must pay a just compensation; that is, if the parties cannot agree upon the value of the property sought to be taken or condemned for public use, such person or corporation desiring such property for public use must proceed in the manner provided by the statute to have the value of the property sought to be taken fixed and assessed, and must pay such assessment before the property can be condemned or taken, or any rights whatever acquired by the plaintiff in the condemnation proceedings.

12. In proceedings under the eminent domain statute, where there are several separate parcels or tracts of land, and the jury in assessing the damages sustained by the owner of such land finds the damages to be of an aggregate value, and does not designate in such verdict the value of the land taken in each several parcel, and no objections are made to the form of the verdict upon its return, and a motion for a new trial is not made on the ground that the verdict of the jury was insufficient because they did not find or assess damages for each several tract taken, and the trial court has not had an opportunity of passing upon or determining the sufficiency of such verdict, and the sufficiency of such verdict has in no way been presented to the trial court, this court will not reverse the judgment entered upon the ground that the verdict is insufficient when the objection is raised for the first time in this court.

APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. J. M. Stevens, Judge.

Action to condemn property for public use. Judgment for defendants. Plaintiff appealed. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Richards & Haga, and Hansbrough & Gagon, for Appellant.

An unconditional personal judgment in eminent domain proceedings should not be entered against the condemnor, but such judgment should be conditional, condemning the land to the condemnor's use upon payment of the sum awarded. (Madera County v. Raymond Granite Co., 139 Cal. 128, 72 P. 915; McCall v. Marion County, 43 Ore. 536, 73 P. 1030, 75 P. 140; Florence E. D. & W. V. Ry. Co. v. Lilley, 3 Kan. App. 588, 43 P. 857; Port Townsend So. Ry. Co. v. Barbare, 46 Wash. 275, 89 P. 710; Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378; Oregon Ry. Co. v. Bridwell, 11 Ore. 282, 3 P. 684; Oregonian Ry. Co. v. Hill, 9 Ore. 377; City of Bloomington v. Miller, 84 Ill. 621; Evansville & Crawfordsville Ry. Co. v. Miller, 30 Ind. 209.)

The condemnor, if dissatisfied with the verdict, may elect to abandon the proceedings, but, in the case at bar, the unconditional personal judgment entered against appellant deprives it of its right to abandon the project upon payment of the costs incurred. (Mason City & Ft. Dodge Ry. Co. v. Boynton, 158 F. 599, 85 C. C. A. 421; Dolores No. 2 Land & Canal Co. v. Hartman, supra; City of Bloomington v. Miller, supra; Florence E. D. & W. V. Ry. Co. v. Lilley, supra.)

The verdict in condemnation proceedings should definitely describe the land for which damages are awarded. (Denver & R. G. Ry. Co. v. Stark, 16 Colo. 291, 26 P. 779; Norris v. City of Pueblo, 12 Colo. App. 290, 55 P. 747; Larned Mercantile etc. Co. v. Omaha H. & G. Ry. Co., 56 Kan. 174, 42 P. 712; C. & N.W. Ry. Co. v. Chicago, 132 Ill. 372, 23 N.E. 1036; 7 Ency. of Pl. & Pr. 584-621; 15 Cyc. 881; Vail v. M. & E. Ry. Co., 21 N.J.L. 189; London v. Sample Lumber Co., 91 Ala. 606, 8 So. 281.)

The judgment in condemnation proceedings should definitely describe the land for which damages are awarded so that the parties and any ministerial officer who may be called on to enforce the judgment may know what land is to be taken and paid for. (San Francisco & S. J. Co. v. Gould, 122 Cal. 601, 55 P. 411; Railway Co. v. Hooper, 76 Cal. 404, 18 P. 599; C. & N.W. Ry. Co. v. Chicago, supra; Beal v. Railroad Co., 136 N.C. 298, 48 S.E. 674; 7 Ency. of Pl. & Pr. 621; Madera County v. Raymond Granite Co., supra.)

In condemnation proceedings both parties are...