City of Bismarck v. Casey

• Decision Date: 17 June 1950
• Docket Number: No. 7194,7194
• Citation: 43 N.W.2d 372,77 N.D. 295
• Parties: CITY OF BISMARCK v. CASEY.
• Court: North Dakota Supreme Court

Page 372

43 N.W.2d 372

77 N.D. 295

CITY OF BISMARCK v. CASEY.

No. 7194.

Supreme Court of North Dakota.

June 17, 1950.

Syllabus by the Court

1. One claiming damages on account of the appropriation of property through condemnation proceedings has the burden of establishing the amount that he is entitled to recover therefor. Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 145 A.L.R. 1343.

2. The determination of value in a condemnation proceeding is not a matter of formula or artificial rules, but of sound judgment and discretion based upon a consideration of all of the relevant facts in a particular case.

3. In estimating the value of property taken for public use it is the market value of the property which is to be considered. Elements affecting value that depend upon events, which, while within the realm of possibility, are not fairly shown to be reasonably probable should be excluded from consideration for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value.

4. Where a conveyance is made of realty separated from the highway by other realty of the grantor, or surrounded by his realty and that of third persons, there arises by implication, in favor of the grantee, a way of necessity across said premises of the grantor to the highway.

5. One who purchases land with notice, actual or constructive, that it is burdened with an existing easement takes the estate subject to the easement. He has no greater rights than his grantor to prevent or obstruct the use of the easement.

6. 'A subsequent purchaser of a servient estate is bound to take notice of the rights that may be evident upon an inspection of the premises as well as those which he may learn by an inspection of the records.' McHugh v. Haley, 61 N.D. 359, 361, 237 N.W. 835.

7. 'Good faith within the recording act implies absence of information and belief of facts which would render the transaction unconscientious and where a subsequent purchaser has knowledge of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, he has constructive notice of the fact, and is not protected as a purchaser in good faith.' McHugh v. Haley, supra.

8. 'Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact and who omits to make such inquiry is deemed to have constructive notice of the fact itself.' Sec. 1-0125, N.D.R.C.1943. John A. Zuger, Bismarck, for defendant and appellant.

William R. Pearce, Bismarck, for plaintiff and respondent.

BRODERICK, District Judge.

This is an appeal from a judgment of the District Court of Burleigh County, North Dakota, in an action brought by the City of Bismarck, North Dakota, a municipal corporation, against the defendant, T. Clem Casey, to condemn a tract of land 33 feet wide and 1999.41 feet long, for the purpose of widening Boulevard Avenue in the City of Bismarck. Boulevard Avenue, at the time of the commencement of the action, was of the width of 33 feet and the City of Bismarck brought the action in condemnation for the purpose of acquiring the additional 33 feet strip of land in order to widen Boulevard Avenue to a width of 66 feet.

This action was instituted under the provisions of Section 40-3902, R.C.N.D.1943 which, in so far as it is material, reads as follows: 'If it is necessary to take private property in order to open, lay out, widen, or enlarge any street or alley in any incorporated municipality, it shall be done by purchase or by the exercise of the right of eminent domain. * * *'

The defendant, T. Clem Casey, by his attorney, admitted the necessity of the taking of the property for public purposes, so that the only question for trial by the Court was the amount of damages that should be awarded to the defendant for the taking of said property.

The judgment was in favor of the plaintiff, City of Bismarck, and against T. Clem Casey, defendant, in so far as the necessity for the taking of the property is concerned, upon the payment by the City of Bismarck to the defendant of the sum of $1031.25, which the court found to be the reasonable market value of the tract of land taken. The court further found that the portion of the contiguous property owned by the defendant in this action, not sought to be condemned, will be benefited by the widening of Boulevard Avenue in an amount equal to any damage suffered by reason of the severance of that portion of the property sought to be condemned by the plaintiff in this action.

The defendant has demanded a trial de novo limited to the questions of the value of the property taken and the damages accruing to the contiguous property owned by the defendant but not sought to be condemned in this action.

In view of the fact that the defendant has demanded a trial de novo, limited to the questions of the value of the property and the damages accruing to the contiguous property owned by the defendant, this court must examine the record bearing on those questions and find the facts for itself. However, the findings of the trial court are entitled to appreciable weight when the case is before this court on a trial de novo, especially when the trial court has viewed the premises involved, and the witnesses have appeared before him personally and he had the advantage of observing their demeanor and manner of testifying. See Coykendall v. Briggs, 60 N.D. 267, 234 N.W. 74, and other cases therein cited.

The attorney for defendant Casey contends that the testimony of the witness, Price Owens, should have been stricken from the record and entirely disregarded by the trial court because of the fact that he claims the witness disqualified himself, on cross examination, as an expert witness as to the value of the real estate involved in this action. However, as shown by the official transcript of the testimony, the witness Owens testified that he was familiar with the 33 feet strip of land in question; that it had little or no market value; that the taking of the 33 feet strip would enhance the value of the defendant's remaining property; that there was no value for this strip of land other than for the purposes for which it was being condemned; that each 80 feet of this 33 feet strip of land would have a value of $41.25 and that the total value of the whole 1999.41 feet strip, figured on the same basis, would amount to $1031.25, which was the value placed on this strip of land by the trial judge. The witness Owens further testified that the value he placed on this land would amount to about $250 per acre.

'It is well settled that whether a witness offered as an expert is qualified to give an opinion rests very largely in the discretion of the presiding judge, whose decision will not be reversed unless clearly erroneous as matter of law.' Johnson v. City of Lowell, 240 Mass. 546, 549, 134 N.E. 627, 629; Muskeget Island Club v. Nantucket, 185 Mass. 303, 70 N.E. 61; Carroll v. Boston Elevated Railway Co., 200 Mass. 527, 86 N.E. 793; Carter v. Boston & N. St. Ry. Co., 205 Mass. 21, 91 N.E. 142.

In the case of Wahlgren v. Loup River Public Power District, 139 Neb. 489, 297 N.W. 833, the Supreme Court of Nebraska held, 'The determination of the qualifications of witnesses to testify as to damages in condemnation proceedings is one resting in the trial court's sound discretion.'

On the other hand, the testimony of the defendant Casey and his two witnesses, J. P. Schmitz and John Stein, all of whom qualified as expert witnesses on the subject of real estate values, was to the effect that they knew of no purpose for which this 33 feet strip of land could be used other than for street or road purposes in view of the fact that it was in a residential zone in the city of Bismarck; that aside from that, that strip of land had no other market value; that they knew of no other market value except that it would be held for 'speculative purposes' on the theory that the people who had purchased the building sites north of the 33 feet strip in question would some day in the future be forced to buy it in order to have a way of ingress and egress from their property to Boulevard Avenue; in other words the only value that it would have would be, as stated by the expert witness J. P. Schmitz, that as a 'Speculative investment on the theory that I would hold until the adjoining owner was ready to buy and have a way in and out.' 'I would buy it and would hold it until they had to buy it to get in and out.

'Q. Its only value as you see it, is to the adjoining landowners for having a means of access in and out of the public street? A. That is right.

'Q. Well, now, you have stated, however, that the only value that these strips that are between somebody else's land and the street, have, is a possible speculative value to the owners that have adjoining lands? A. That's right. It has no other value.

'Q. It can't be used for anything else? A. No, it can't.

'Q. And you would not expect to go out and find any other customer that would pay anything for it? A. That is right.'

To the same effect is the testimony of the defendant Casey, himself, the official transcript reading as follows: 'Q. As I understand your testimony and the testimony of the witness offered by you, Mr. Schmitz, you are both substantially agreed that the thirty-three feet strip, as such, has no market value? A. Very little, if any.'

Of course, the use of any such element as a 'future speculative' value on the theory that the adjoining land owners would be forced or compelled to buy it in order to have a right of way for ingress and egress to their property is an improper element to be taken into consideration in fixing the reasonable market value of land in a condemnation proceeding because it assumes a forced or compulsory purchase by the adjoining land owners at some future time. There is a presumption in the technical and proper meaning of the term 'reasonable market...