Carazalla v. State

• Decision Date: 03 May 1955
• Citation: 269 Wis. 593,70 N.W.2d 208
• Parties: Charles CARAZALLA et al., Respondents, v. STATE of Wisconsin and Marathon County Highway Committee, Appellants.
• Court: Wisconsin Supreme Court

Page 208

70 N.W.2d 208

269 Wis. 593

Charles CARAZALLA et al., Respondents, v. STATE of Wisconsin and Marathon County Highway Committee, Appellants.

Supreme Court of Wisconsin.

May 3, 1955.

Mandate Vacated on Rehearing June 28, 1955.

See 71 N.W.2d 276.

Vernon W. Thomson, Atty. Gen., and Richard E. Barrett, Asst. Atty. Gen., Robert C. Altman, Dist. Atty., Wausau, for appellants.

Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, for respondents.

CURRIE, Justice.

In considering appellants' contention that they are entitled to a new trial we find the issues presented on this appeal to be as follows:

(1) Was it error for the trial court to refuse appellants' request for an instruction which would have required the jury to disregard all evidence as to depreciation in the market value of the remaining portion of land after the taking which tended to show that such remaining land had lost its value for commercial purposes as a result of the highway relocation and making it a 'controlled access' highway?

(2) Was it error for the trial court to refuse appellants' request for an instruction which would have required the jury to disregard all evidence as to damages for the alleged inconvenience caused the Carazallas, or a prospective buyer, during the construction of the new highway?

(3) Was the award of the jury excessive on the evidence submitted?

Because of the closeness of the farm to the Wausau city limits, the expert witnesses on behalf of the land owners testified that prior to the taking and relocation of the United States Highway 51, that portion of the farm fronting on old United States Highway 51 had value for commercial purposes which would be destroyed as a result of relocation of such highway. This was because practically all traffic would be diverted from the old roadway to the new highway, and, inasmuch as the new highway is to be a 'controlled access' highway so that traffic cannot enter or leave the same as it crosses through the Carazalla farm, none of the remaining land fronting on such highway would possess any commercial value. The value for commercial purposes of the part of the farm abutting on old Highway 51 was not based upon future potentiality but rather upon the fact that there were some business establishments located in close proximity to the Carazalla farm. These consisted of a farm implement dealer, building supply business, television sales establishment, livestock dealer, trailer park, tavern and overnight cabins. The expert witnesses who testified in behalf of the Carazallas took commercial value into consideration in giving their testimony as to the value of the farm before the taking, and the absence of commercial worth in their estimated value of the remaining portion of the farm after the taking.

The fact that no part of the Carazallas' farm was devoted to commercial use at the time of the taking did not render the admission of such testimony improper. In Muscoda Bridge Co. v. Grant County, 1929, 200 Wis. 185, 190, 227 N.W. 863, 864, this court stated:

'Any use to which it is reasonable to infer from the evidence that the land may be put to in the near future, or within a reasonable time, may properly be considered; and compensation may be awarded upon the basis of its most advantageous use. But the future uses considered must be so reasonably probable as to affect the present market value. Imaginary or speculative uses or value must be disregarded.'

This court in Alexian Brothers v. City of Oshkosh, 1897, 95 Wis. 221, 224-225, 70 N.W. 162, 163, approved an instruction given to a jury in a condemnation proceeding as follows:

'* * * that in determining the value of the land taken they [the jury] were to be governed by the fair market value at the time it was taken, for any purpose for which it might reasonably be used in the immediate future; that if the present value was enhanced 'by reason of its adaptability to some use to which it might be put in the near future, was so situated that it might be platted into city lots, and that its present value was thereby increased, such increase was a proper ground of assessment of damages'; that 'the actual use to which it is put must also be considered with the surrounding circumstances; that you are not to include remote or speculative values, but only the value of the land when taken, with reference to its availability for any purpose to which it might reasonably be put'; that they 'should not take into consideration what it might be worth at some remote and future time, when it might be put on the market as lots, but you may consider its present value for such purposes.''

The appellants contend that inasmuch as old Highway 51 is not being closed but remains as a usable roadway, any loss in value for commercial purposes will be due entirely to diversion of traffic from the old highway to the new relocated highway, and that no damages are recoverable for such diversion of traffic. Counsel for the landowners, on the other hand, concede that if there had been no taking of a portion of the Carazalla farm, the Carazallas could not have recovered damages as a result of diversion of traffic but that such damages are recoverable where there has been a partial taking, as in this case.

Where there has been a partial taking of land for highway purposes the measure of the landowners' damages is the difference between the value of the whole property before the taking and the value of that which remains after the taking. Jeffery v. Osborne, 1911, 145 Wis. 351, 364, 129 N.W. 931, and Nowaczyk v. Marathon County, 1931, 205 Wis. 536, 539, 238 N.W. 383.

In addition to stating the foregoing applicable rule as to damages, we deem the following extract from the court's opinion in the Nowaczyk case to be relevant to the controversy here, 205 Wis. at page 539, 238 N.W. at page 384:

'Section 32.10(1), Stats., provides that in exercising eminent domain, 'except in the case of streets or highways,' no deduction shall be made because of any benefit which the parties may derive from the improvement other than 'special benefits.' In case of streets or highways, paragraph (2) of said section provides that both damages and benefits shall be assessed or allowed and the excess of one over the other shall be stated. The kind of benefits is not limited to special benefits. It would seem that the benefits referred to in case of streets and highways must be something more than mere 'special benefits' else there would be no occasion for the exception in paragraph (1). If so, they must include such benefits as accrue to the general public as well as the benefits resulting specially to the land taken.' (Emphasis supplied.)

To illustrate the application of the rule stated in the foregoing quotation, let us assume A and B are adjoining rural landowners, whose lands are not located within the limits of a village or city, and a new improved highway is constructed so as to bisect A's premises, resulting in a partial taking thereof. There is no partial taking of B's premises but the same do abut on the new highway. In determining A's damages for the partial taking there is to be offset against the same any benefits resulting to the remaining portion of his land as the result of the construction of the new improved highway to which his remaining land has access. On the other hand, such benefits are not assessable against the land of B because they are of the type referred to in the Nowaczyk opinion as accruing to the general public. On this point also see Townsend v. State, 1950, 257 Wis. 329, 43 N.W.2d 458.

The learned trial court, in his memorandum opinion on motions after verdict, concluded that it was not error to have refused appellants' requested instructions that the jury disregard the evidence as to destruction of commercial value due to diversion of traffic from the old to the new highway. As his reasons for such conclusion, the learned trial judge stated:

'Counsel on both sides conceded that when a strip of land is taken for highway purposes, and the construction of the new highway adds to the value of the parcel of land remaining after the taking, that the benefits or increased value because of highway, should be deducted in computing the damages which should be awarded to the owner. If such benefits are to be considered in fixing the value of the property after the taking, then in all fairness, it seems that the damages sustained by the owner because of the relocation of the highway upon his property should also be taken into consideration. In other words, if the owner is to be charged for the improvement to his property by the construction of the road on one side of his land he should be compensated for the damages sustained by him on account of the diversion of all or a part of the traffic from the highway abutting the other side of his property. After all, the questions to be determined by the jury are, 'What was the fair market value of the property before the taking?,' and, 'What was the fair market value of the property after the taking?,' and any evidence that would help the jury in arriving at a fair and just answer to these questions should be admitted in evidence.' (Emphasis supplied.)

Our review of the authorities directly bearing upon the point at issue convinces us that the foregoing quoted statement from the learned trial court's memorandum opinion correctly states the law on the point at issue. For example, 18 Am. Jur., Eminent Domain, p. 905, sec. 265, declares as follows:

'* * * The entire parcel is considered as a whole, and the inquiry is, how much has the particular public improvement decreased the fair market value of the property, taking into consideration the use for which the land was taken and all the reasonably probable effects of its devotion to that use. It is immaterial that such damages might not be recoverable by mere adjacent owners, no part of whose land is taken.' (Emphasis supplied.)

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