City of Albuquerque v. Chapman

• Decision Date: 28 February 1966
• Docket Number: No. 7746,7746
• Citation: 413 P.2d 204,1966 NMSC 34,76 N.M. 162
• Parties: The CITY OF ALBUQUERQUE, New Mexico, a municipal corporation, Plaintiff-Appellee, v. E. M. CHAPMAN, Jr., and Virginia Chapman, his wife, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 204

413 P.2d 204

76 N.M. 162

The CITY OF ALBUQUERQUE, New Mexico, a municipal

corporation, Plaintiff-Appellee, v. E. M. CHAPMAN, Jr., and Virginia Chapman, his wife,

Defendants-Appellants.

No. 7746.

Supreme Court of New Mexico.

Feb. 28, 1966.

Rehearing Denied April 20, 1966.

Waldo Spiess, Charles T. Hooker, Albuquerque, for appellants.

Frederick M. Mowrer, Asst. City Atty., Key & May, Albuquerque, for appellee.

COMPTON, Justice.

This action in eminent domain was brought under an act providing for special alternative procedure for condemnation of public and private property, Laws 1959, ch. 324, §§ 22--9--39 to 22--9--54, N.M.S.A., 1953 Comp. (Supp.1965). The appellee, the City of Albuquerque, sought to acquire a part of a tract of land owned by E. M. Chapman, Jr. and Virginia Chapman, his wife, for the improvement of Zuni Road. These appellants appeal from a judgment denying compensation or damages to them as a result of the taking.

Several points are raised by the appellants here. Basically, they challenge the sufficiency of the evidence to support the court's findings that the fair market value of the remaining land was equal to or greater than the fair market value of the entire tract before the taking, and that there was no depreciation in the fair market value of the entire tract as a result of the taking of a portion thereof. Interrelated are the claimed errors of the court in failing to accord to the property a market value based upon the highest and best use to which it was adaptable, and in setting off benefits to the remaining land against damages for the taking where the remainder was subject to a special assessment for the payment of the improvement which resulted in the benefit. Lastly, they contend a judgment in at least the minimal amount of damages established by competent evidence should have been awarded them.

Upon review by this court we are limited to a determination whether the findings of the trial court are supported by substantial evidence. Board of County Com'rs of Dona Ana County v. Little, 74 N.M. 605, 396 P.2d 591. And the evidence must be viewed in the light most favorable to the prevailing party. State ex rel. State Highway Commission v. Tanny, 68 N.M. 117, 359 P.2d 350.

The entire property prior to the condemnation consisted of 330 feet extending along Wyoming Boulevard, S.E., on the east, and Virginia Avenue on the west, and 611 feet extending along Zuni Road on the north. The strip of land acquired was 611 feet by 30 feet, being the northern boundary of the tract.

In 1953 when the fee simple title to the property was acquired by the appellants, and up to the time of trial, all of it except the condemned portion had been improved, divided into lots and operated as a trailer court. The condemned portion had never been used as a rental part of the trailer court and a wooden fence had been constructed along its south line in about 1940 and had been maintained in that location up to the time of this proceeding. It is not disputed that the appellants maintained the principal access to the trailer court from the north on Zuni Road through the condemned parcel. It was established at the trial that the property was subject to three zoning regulations, C--1, C--2 and R--2. The condemned parcel was partly in C--1 and partly in C--2. It was also established that C--2 permits the property to be used as a trailer court. Under C--1 and R--2 zoning this use of the property may continue only until March 1971, provided there is compliance with the standards required by the zoning ordinances on or before January 1, 1968.

At the time of the acquisition of this property by the appellants there was in existence a city master plan showing the eventual width of Zuni Road to be 60 feet. A plat recorded in Bernalillo County in 1926 showed a dedication to the public of an additional 30 feet just north of the condemned parcel for Zuni Road. A former county surveyor testified that at the time of this dedication the Board of County Commissioners had determined the minimum width of streets to be 50 feet. It appears unquestioned that at least part of the parcel condemned had been used by the public for about ten years as a part of the traffic pattern on Zuni Road, but it was stipulated that no restrictive easement was acquired by the city.

In this jurisdiction, the measure of damages in eminent domain is determined by the application of the 'before and after' rule, by which the owner of property is entitled to recover as compensation the amount by which the fair market value of his property has been depreciated by the taking of a portion thereof. If there is no depreciation in fair market value as a result of the taking, there is no damage. Board of Trustees of the Town of Farmington v. Spencer, 75 N.M. 636, 409 P.2d 269, decided December 27, 1965, Board of Trustees of Town of Farmington v. B. J. Service, Inc., 75 N.M. 459, 406 P.2d 171; Transwestern Pipe Line Company v. Yandell, 69 N.M. 448, 367 P.2d 938; Board of County Com'rs of Lincoln County v. Harris, 69 N.M. 315, 366 P.2d 710; Board of Com'rs of Dona Ana County v. Gardner, 57 N.M. 478, 260 P.2d 682; City of Tucumcari v. Magnolia Petroleum Co., 57 N.M. 392, 259 P.2d 351. Ordinarily, market value of land is based on the amount for which it would sell between one willing to sell and one willing to but. While this is not generally true in condemnation proceedings where a willing buyer is lacking, it is nevertheless a basis upon which opinion testimony as to market value is received. Transwerstern Pipe Line Company v. Yandell, supra.

The record in this case has been thoroughly examined and at the outset we are met with unreconciled variances in the evidence relating to the dimensions of the property involved. In order to be able to intelligently analyze the testimony of the expert witnesses it was necessary to look to the record to determine not only the exact dimensions of the entire tract both before and after the taking but also the number of square feet contained in each of the three zones.

The undisputed evidence shows the entire tract of land before the taking to be 611 feet long by 330 feet wide, or a total of 201,630 square feet. The portion condemned was 611 feet long by 30 feet wide, or a total of 18,330 square feet. The remainder tract is 611 feet long by 300 feet wide, consisting of 183,300 square feet.

The zoning inspector for the city testified as to the dimensions of the property by zones 'after' the taking as follows: In zone C--2, 190 feet by 300 feet; in zone C--1, 170 feet by 380 feet; and in zone R--2, 130 feet by 380 feet. This testimony refers to a total of 171,000 square feet which falls short by some 12,000 square feet of the number established for the remainder tract, obviously because it is based on erroneous outside dimensions of the whole tract before the taking.

An adjustment of the zoning inspector's figures to conform to the correct outside dimensions produces the correct number of total square feet in each zone of the remainder land, as follows: C--2, 200 by 300 feet; C--1, 170 by 411 feet; and R--2, 130 by 411 feet, or a total of 183,300 square feet. From this it is easily ascertainable that the 18,330 feet contained in the portion condemned consists of 200 by 30 feet in zone C--2, or 6,000 square feet, and 411 by 30 feet in zone C--1, or a total of 12,330 square feet.

With these basic figures in mind we proceded to a consideration of the substantiality of the evidence to support the court's findings, necessarily directing our attention to the testimony of the two witnesses for the appellee who qualified as experts in real estate appraisal, Mr. Boldt and Mrs. Scalf.

Mr. Boldt, without attributing any 'before and after' values to the property or to benefits, and relying on an appraisal report relating to the property here involved made by him and others for the city in 1958, based his opinion of no damage to the appellants by the partial taking on the grounds (a) that the condemned parcel ahd no utility at the time of the taking; (b) that the utility of the remaining property had neither decreased nor changed by the taking; and (c) that in order properly to develop the remainder of the property it was necessary that the portion condemned be dedicated to provide a proper traffic path around the property. Even if this testimony is based upon proper considerations, which we will consider later, standing alone and without some practical application of the before and after rule, it is clearly not substantial to support the court's findings.

Mr. Scalf arrived at his opinion of no damage as a result of the taking by a consideration of substantially the same facts. In addition, he considered that an informed purchaser would not only recognize these facts but would penalize any purchase price on realizing he might not be able to continue to use the property as a trailer court under its existing zoning. Thereafter, taking into consideration comparable recent sales of property in each of the three zones, he arrived at a total market value of the property before the taking of $134,838.00, as follows: C--2 property at 74 cents per square foot, $82,500.00; C--1 property at 72 cents per square foot, $36,234.00; and R--2 property at 32 cents per square foot, $16,104.00. Significantly, however, Mr....