City of Caldwell v. Roark

• Decision Date: 20 February 1968
• Docket Number: No. 9915,9915
• Citation: 437 P.2d 615,92 Idaho 99
• Parties: CITY OF CALDWELL, a Municipal Corporation, Plaintiff-Respondent, v. Roy A. ROARK and Oleta Roark, husband and wife, Defendnats-Appellants. Algot Larson, Canyon County, Idaho, Any and all Unknown Owners, Defendants.
• Court: Idaho Supreme Court

Page 615

437 P.2d 615

92 Idaho 99

CITY OF CALDWELL, a Municipal Corporation, Plaintiff-Respondent, v. Roy A. ROARK and Oleta Roark, husband and wife, Defendnats-Appellants.

Algot Larson, Canyon County, Idaho, Any and all Unknown Owners, Defendants.

No. 9915.

Supreme Court of Idaho.

Feb. 20, 1968.

Marcus, Leggat & Marcus, Boise, for appellants.

Gigray, Boyd & Downen, Caldwell, for appellee.

TAYLOR, Justice.

Plaintiff (respondent) brought this action February 24, 1965, to acquire, by right of eminent domain, approximately 9.48 acres of land owned by defendants (appellants) Roy A. and Oleta Roark, and lying within the limits of the City of Caldwell, in Canyon County. The cause was tried to a jury on the issue of the value of the land taken. No severance damage was sought. Defendants brought this appeal from the judgment entered upon the verdict of the jury awarding them $12,500 compensation for the land taken. The land taken was part of a larger tract acquired by defendants in 1954. The portion here involved, together with other land lying within the city limits, was platted by defendants for development for residential purposes, and was designated as the Third Parkside Addition. The plat was accepted and approved by the city and filed of record. As platted, the addition contained 80 separate lots. The portion taken by the city in this action contained 49 lots. Streets and alleys had been laid out, but the corners of the lots were not staked. Gas, electric power, water and sewer service had been made available to the property.

The land lies adjacent to and corners on the southeast corner of the Caldwell municipal airport and opposite the southeast end of the airport's only runway. Planes taking off and landing necessarily fly low over the property. The city attempted to impose certain building restrictions upon the property under authority of an airport zoning ordinance adopted in June, 1961. In Roark v. City of Caldwell, 87 Idaho 557, 394 P.2d 641 (1964), this court held the ordinance invalid in that its application to this property would constitute a taking of private property for public use without just compensation in violation of art. 1, § 14, of the state constitution.

Thereafter, the city brought this action to acquire title to the property by right of eminent domain for municipal airport purposes. The taking was alleged to be necessary for the enlargement, improvement and maintenance of the airport, as authorized by I.C. § 21-401.

On this appeal defendants urge that the value of the property, as fixed by the jury, was entirely inadequate, and that the low valuation was the result of errors committed by the trial court in giving and refusing certain instructions and in overruling their objection to evidence of flights to and from the airport.

Defendants assign as error the giving of instruction No. 8, as follows:

'In this case the defendants have introduced testimony as to the value of the property if it were sold as individually platted lots to various buyers over a reasonable length of time. This testimony was permitted to stand as an indication of what defendants and their witnesses believe the property would be worth if sold in such fashion, and as information (if you find such evidence of the individual lot value for future sales within a reasonable time in the future to be reliable) that an informed seller and an informed buyer would have and keep in mind in their negotiations to effect a sale of the whole piece of land being taken at one time at a price that would constitute the fair market value of the lands being taken.

'However, what the total of the lots would bring if sold individually to various buyers at various times is not the correct method of determining fair market value in this case. The correct yardstick is the 'fair market value', as that term has been defined for you, as of the date of February 24, 1965 and before this case was filed, with the whole parcel being sold in its then condition in one sale to an informed buyer. You may consider the fact that the land was platted, had such improvements and available utilities as you find under the evidence it did have, but you must consider the whole parcel as sold to an informed buyer.'

The language which defendants hold to be erroneous is:

'* * * what the total of the lots would bring if sold individually to various buyers at various times is not the correct method of determining fair market value in this case.' and

'* * * with the whole parcel being sold in its then condition in one sale * * *.'

Defendants also object to the following, in instruction No. 4:

'* * * you must find the amount plaintiff must pay defendants by reason of the condemnation and taking of the 9.48 acres of land.'

Defendants contend that the jury should have been required to find the value of the lots, in the portion of the platted area condemned, separately as separate parcels of property, rather than the aggreagate value of the lots as constituting one parcel, as instructed by the court. They cite subsection 1 of I.C. § 7-711 ¹, and Big Lost River Irrigation Company v. Davidson, 21 Idaho 160, 121 P. 88 (1912). In that case the court criticised the verdict of the jury which found the aggregate value of several parcels or tracts of land in one sum. However, in that case there were several ownerships or separate estates in the land being condemned. In passing the court observed:

'* * * where the tract is a single or consolidated tract, the value then 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 a consolidated body of land, and the finding of the jury may be upon each singel parcel or tract of land.' 21 Idaho at 171, 172, 121 P. at 92.

In this case there were no separate ownerships involved and the tract sought by plaintiff, and-except for the elimination of one lot on the far side of the tract from the airport which the city has not sought to condemn-the tract constituted a singel quadrangular, consolidated, body of land. The court correctly instructed the jury that the value should be fixed for the entire tract as one parcel. The court admitted testimony by defendants' witnesses as to the value of the separate lots included in the parcel sought, and the aggregate value thereof, for homesite subdivision purposes. This purpose was represented to the court by defendants and their witnesses as the 'highest and best' use to which the land could be devoted. Its value for the highest and best use to which the land was adaptable was the basis upon which defendants were entitled to recover. State ex rel. Rich v. Dunclick, Inc., 77 Idaho 45, 286 P.2d 1112 (1955); Idaho Farm Development Co. v. Brackett, 36 Idaho 748, 213 P. 696 (1923); Idaho-Western Ry. Co. v. Columbia, etc. Synod, 20 Idaho 568, 119 P. 60, 38 L.R.A.,N.S., 497 (1911); Napa Union High School Dist. v. Lewis, 158 Cal.App.2d 69, 322 P. 2d 39 (1958); People v. Loop, 127 Cal. App.2d 786, 274 P.2d 885 (1954); United States v. 3969.59 Acres of Land, 56 F.Supp. 831 (D.C.1944); McDaniel v. Mace, 47 Iowa 509 (1877); 27 Am.Jur.2d, Eminent Domain, § 280.

However, where the entire parcel of land, as a unit, is taken at one time by condemnation, the jury is required to fix the value of the entire parcel as a unit as of the time the summons is issued. I.C. § 7-712. This value cannot properly be determined by aggregating the individual sales value which separate lots may bring when sold to individual prospective home builders over a period of time in the future, for the reason that such a basis of valuation would permit the jury to speculate upon future developments. The jury was properly permitted to consider the prospective value of the property for that purpose in determining its value as a single parcel at the date of the summons.

'* * * The test is not what the lots will bring when and if 62 willing buyers come along, but what the tract, as a unit, and as is, platted or not, and in whatever state of completion, will bring from a willing buyer of the whole tract.' State v. Tedesco, 4 Utah 2d 248, 291 P.2d 1028 (1956),

Also, State by and through Road Commission v. Noble, 6 Utah 2d 40, 305 P.2d 495 (1957); State v. Deal, 191 Or. 661, 233 P.2d 242 (1951); State by and through State Highway Commission v. Nunes, 233 Or. 547, 379 P.2d 579 (1963); Wassenich v. City and County of Denver, 67 Colo. 456, 186 P. 533 (1920); United States v. 3.544 Acres of Land, etc., 147 F.2d 596 (3rd Cir. 1945); State Highway Commission v. Conrad, 263 N.C. 394, 139 S.E.2d 553, 12 A.L.R.3d 1055 (1965).

'* * * The valuation must be on the basis of what a willing purchaser would pay now and not what a number of purchasers might be induced to pay in the future for the land in smaller parcels.' Utah Road Commission v. Hansen, 14 Utah 2d 305, 383 P.2d 917, at 920, 1963.

'* * * They are not to determine how it could best be divided into building lots, nor to conjecture how fast they could be sold, nor at what price per lot. A speculator or investor, in deciding what price he could afford to pay, would consider the chances and probabilities of the situation as then actually existing. A jury should do the same thing. They are not to inquire what a speculator might be...