Board of Com'rs of Dona Ana County v. Gardner, 5519

• Decision Date: 15 June 1953
• Docket Number: No. 5519,5519
• Parties: BOARD OF COM'RS OF DONA ANA COUNTY v. GARDNER.
• Court: New Mexico Supreme Court

Page 682

260 P.2d 682

57 N.M. 478

BOARD OF COM'RS OF DONA ANA COUNTY v. GARDNER.

No. 5519.

Supreme Court of New Mexico.

June 15, 1953.

W. C. Whatley, W. B. Darden and LaFel E. Oman, Las Cruces, for appellant.

T. K. Campbell and James A. Landon, Las Cruces, for appellee.

COORS, Justice.

The Board of County Commissioners of Dona Ana County, appellee herein, instituted a condemnation proceeding against the appellant and others for highway purposes. By such proceeding it took from the appellant on November 18, 1948, some 88.805 acres of grazing lands in the form of a 150-foot strip of highway right-of-way that extends through appellant's property for a distance of between four and five miles. Three commissioners were appointed as provided by law to appraise the lands. Appellant and other defendants filed exceptions to the commissioners' report. The case thereafter came up for trial before the district court and a jury on September 20, 1951.

The jury returned a verdict wherein it assessed the fair market value of the lands taken from appellant as of November 18, 1948, at $7.92 per acre, assessed the fair value of the damages to the lands not taken at $2,676, and assessed the fair value of benefits to the land of appellant not taken at $6,791. On the basis of these jury findings the Court entered its judgment awarding appellants $703.34 for the land actually taken but awarding nothing for damages to the remaining lands. The Court thus offset the benefits against the consequential damages to the remaining lands, thereby cancelling out these consequential damages completely, but did not set off the benefits against the value of the lands actually taken.

It was appellant's contention in seeking a judgment non obstante veredicto, or a new trial, and it appears to be his contention now, that the judgment entered should have been for $3,379.34, that being the sum of the $2,676 assessed by the jury as the fair value of the damages to the remaining lands of the appellant plus the $703.34 representing the acreage actually taken. It is appellant's contention, in other words, that the figure arrived at for the benefits should not be considered by the Court in its calculation, either because this element had already been considered by the jury in assessing the damages of $2,676 and that this further calculation meant that it was being considered twice, or secondly, that the benefits should not be considered at all under the New Mexico constitutional and statutory provisions providing for just compensation in condemnation proceedings. It is also appellant's contention that the instructions to the jury were conflicting on material facts, that assessment of the benefits at $6,791 was not supported by substantial evidence, and further that the jury's verdict was a quotient verdict which does not reflect the judgment and consideration of the jury and that, therefore, it should not be permitted to stand.

Appellant urges that when lands are condemned in New Mexico it is not proper in determining consequential damages to set off against such damages the benefits which may accrue to the landowner's remaining land; and that, as a general proposition, the taking will result in injury to the landowner not only because of the property actually taken, but also because the usefulness to him of the remaining land is thereby reduced, and that he should, therefore, be reimbursed for both elements of damage although the public purpose for which part of the land is condemned may also incidentally result in some special and general benefits to the landowner.

By general benefits are meant those benefits which the adjoining landowner shares in common with the public generally. By special benefits we mean those benefits resulting from a public work which enhance the value of the land not taken because of their advantageous relation to the improvement. For further definition see Beveridge v. Lewis, 1902, 137 Cal. 619, 67 P. 1040, 70 P. 1083, 59 L.R.A. 581; Brand v. Union Elevated R.R., 1913, 258 Ill. 133, 101 N.E. 247, L.R.A.1918A, 878; Mantorville R. & T. Co. v. Slingerland, 1907, 101 Minn. 488, 112 N.W. 1033, 11 L.R.A.,N.S., 277. When such incidental benefits exist the distinctions which may be drawn between the two factors, benefit and injury, have been variously combined by the courts. Lewis, in Volume 2 of his treatise on Eminent Domain (3d ed. 1918) at page 1177, groups their treatment by the courts into five main classifications: (1) that the benefits cannot be considered at all (this apparently is the rule contended for here by the appellant though at one point in the brief in chief the argument appears to intimate that benefit may be considered in determining fair market value, but that it has in fact been considered twice); (2) that special benefits may be set off against damages to the remainder but not against the value of the part taken (this is the result reached by the trial court in the instant case); (3) that benefits, whether general or special, may be set off only against the damages to the remainder; (4) that special benefits may be set off against both damages to the remainder and the value of the part taken; and (5) that both special and general benefits may be set off against damages to the remainder and the value of the part taken.

We believe the fifth rule is correct and in accordance therewith we hold that benefits, both general and special, should be set off against damages to the remainder and against the part taken.

Article II, Section 20 of the New Mexico Constitution provides:

'(Eminent domain.)--Private property shall not be taken or damaged for public use without just compensation.'

Section 25-909, New Mexico Statutes Annotated, 1941 Comp., so far as pertinent here, provides for determining the amount of compensation and damages in the following language:

'For the purposes of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the notice, and its actual value at that date, shall be the measure of compensation of all property to be actually taken, and also the basis of damages to property not actually taken but injuriously affected, and in all cases where such damages are legally recoverable. * * *'

No express mention is made in these provisions of benefits that may accrue to the landowner and their treatment in determining the award. It should be noted, however, that Article 2, Section 20, New Mexico Constitution, speaks of 'just' compensation. This can only mean that the framers of the Constitution meant that a fair and reasonable amount of compensation should be awarded. It follows that the compensation must be fair and just to both sides, for how else can 'fair market value' be determined than by weighing the one against the other? As observed in 29 C.J.S., Eminent Domain, Sec. 179, p. 1061:

'Where the constitution contains no provision in regard to the deduction benefits, it is competent for the legislature to provide that, where only a part of a tract is taken for the public use, the benefits accruing to the residue shall be set off against the damages thereto, or for the courts to allow such deduction, although there is some authority to the contrary. * * *'

The North Carolina court, though proceeding under an eminent domain statute which expressly provided that both special and general benefits should be considered as offsets against damages, enunciated the correct fundamental principle when it said:

'* * * All the landowner can claim is that his property shall not be taken for public use without compensation. Compensation is had when the balance is struck between the damages and the benefits conferred on him by the act complained of. To that and that alone he has a constitutional and vested right. * * *' Wade v. State Highway Commission, 1924, 188 N.C. 210, 124 S.E. 193.

We believe this is the rule as it applies in the case before us, though no attempt is here made to consider general benefits nor to charge off any of the special benefits against the property which was actually taken, these questions not being raised below or on appeal.

The trend throughout the nation is toward considering all benefits in the determination of damages in condemnation cases. This trend is nurtured by the policy of the state in trying to bring down excessive costs of rights-of-way so as to make the money appropriated and available for roads and other public improvements go as far as possible. It is possibly due also to some extent to a gradually changing concept of the sacred character of real property ownership which thus gradually is altering the basic theory of 'just compensation' in condemnation cases. Our holding in Board of County Commissioners of Santa Fa County v. Slaughter, 1945, 49 N.M. 141, 158 P.2d 859, 860 is in complete accord with these modern trends, wherein we said:

'The general rule for arriving at just compensation for property not taken but adversely affected is the socalled '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. * * *'

It would appear as obvious that if because of the taking any benefits accrue to the remaining land, the market value thereof is correspondingly affected and is thereby increased. Consequently, the benefit derived becomes a factor to be considered in determining any consequential damages to be awarded. As stated in 145 A.L.R. 7, at page 17:

'* * * the compensation must be just, not merely to the individual whose property is taken, but to the public which is to pay for it, or * * * it is to be measured by the loss caused to the owner by the appropriation, and * * * he is entitled to receive the value of what he has been deprived of, and no more, because to award him less would be unjust to him; to award him more would be...