City of Devils Lake v. Davis

• Decision Date: 04 February 1992
• Docket Number: No. 910096,910096
• Citation: 480 N.W.2d 720
• Parties: The CITY OF DEVILS LAKE, a municipal corporation, Plaintiff and Appellee, v. William C. DAVIS and Davis Motel, Inc., Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 720

480 N.W.2d 720

The CITY OF DEVILS LAKE, a municipal corporation, Plaintiff and Appellee, v. William C. DAVIS and Davis Motel, Inc., Defendants and Appellants.

Civ. No. 910096.

Supreme Court of North Dakota.

Feb. 4, 1992.

Dosch Law Office, Devils Lake, for plaintiff and appellee; argued by Ronald M. Dosch, City Atty.

Wheeler Wolf, Bismarck, for defendants and appellants; argued by Steven L. Latham. Appearance by appellant William C. Davis.

MESCHKE, Justice.

William C. Davis appeals from a condemnation judgment, entered upon a jury verdict, awarding him $134,235, plus costs and interest, as just compensation for a permanent easement. We affirm the award of damages and remand for a redetermination of attorney's fees.

On April 7, 1989, the City of Devils Lake commenced an eminent domain proceeding ¹ against Davis, Burlington Northern Railroad, and Robert and Helen Weed to acquire a permanent easement on 373.26 acres of land riparian to Devils Lake for a sewage treatment facility. The City offered the defendants $150 per acre for their respective parcels and deposited $55,989 with the Clerk of the District Court on their behalf. The City designated $45,885 of that deposit for the 305.9 acres which it alleged that Davis owned. Davis answered, ² alleging that the City's apportionment of the riparian interests was erroneous and that the City was seeking more than 305.9 acres from him. On August 8, 1989, the court released the $45,885 deposit, plus interest, to Davis and also granted the City immediate possession of the riparian property described in the complaint.

Because of unique legal questions about the apportionment, ownership, and legal description of the riparian property, the court bifurcated the action to try those questions first, with a later determination of just compensation. Thereafter, on August 29, 1990, Davis and the City stipulated to the apportionment, ownership, and legal description of the riparian property taken. Then, the City amended its complaint to take 391.45 acres from Davis at $300 per acre. Meanwhile, on June 12, 1990, the City had deposited an additional $70,323.75 with the Clerk of Court for Davis, making the total deposits for his benefit $117,000.

On October 2, 1990, Davis asked the trial court to rule on the date of taking for purposes of determining the value of the property taken. Davis contended that the date of taking was either the August 29, 1990 stipulation, or the June 12, 1990 deposit in court. The City asserted that the date of taking was August 8, 1989, when the court released the $45,885 deposit, plus interest, to Davis and granted the City immediate possession of the property. The trial court ruled that the date of taking was August 8, 1989.

At trial, the court informed the jury:

Based upon the stipulation of the parties, the court informs you of the following information which you may consider in reaching your verdict on any of the disputed facts. The City has deposited the amount of $117,000 with the court as a part of the taking of the Davis property, so you may consider that as well as the other evidence in reaching your decision of just compensation.

The jury returned a special verdict, determining that Davis was entitled to $134,325 for the property actually taken and that he was not entitled to severance or consequential damages for his remaining property. The trial court deducted the $117,000 deposit from the jury verdict and also reduced Davis's request for attorney's fees, professional fees, and costs from about $48,000 to $21,853.75. Davis appealed.

Davis argues that the trial court erred in instructing the jury that the date of taking was August 8, 1989, because the trial court's order granting the City immediate possession of the property on that date did not include a substantial portion of the property ultimately taken. Davis contends that the date of taking was either the date the City made its final deposit, June 12, 1990, or the date of the parties' stipulation, August 29, 1990. The City admits that its original complaint did not accurately describe the property taken and that it included some property which was not taken. However, the City argues that the trial court correctly instructed the jury that August 8, 1989, was the date of taking because the parties were committed to the condemnation on that date.

Under NDCC 32-15-23, compensation and damages in an eminent domain action are determined from the "date of the taking." Hultberg v. Hjelle, 286 N.W.2d 448 (N.D.1979). ³ Here, the City initially sought to take 305.9 acres from Davis and deposited $45,885 with the Clerk of Court for his benefit. The trial court granted the City immediate possession on August 8, 1989. However, on August 29, 1990, the City and Davis stipulated that the riparian property taken from Davis consisted of 391.45 acres. That difference in acres was attributable to an error in the legal description prepared by the City's appraiser as well as the apportionment of the riparian land.

Ordinarily, these circumstances would have required different dates of taking for the different parcels of property. However, we need not decide whether the trial court erred in instructing the jury that the date of taking was August 8, 1989, because, assuming error, Davis did not make a showing that, on either of his alternative dates of taking, the value of the property was different than on August 8, 1989. In a similar situation in Rose v. City of Lincoln, 234 Neb. 67, 449 N.W.2d 522 (1989), the Nebraska Supreme Court held that property owners were not prejudiced by an erroneous instruction on the date of taking where the owners' evidence of value of the property was the same on the date instructed by the trial court and on the date of actual taking. Here, absent a showing that the property had a different value on the alternative dates asserted by Davis, we conclude that the error, if any, by the trial court in instructing the jury on the date of taking was harmless.

Davis argues that the trial court abused its discretion in allowing the City's expert appraiser, David Campbell, to render an opinion on the value of the property taken because his written appraisal was made more than one year before the date of taking. Davis asserts that Campbell's opinion was too remote to assist the jury in determining the value of the property on the date of taking.

Under NDREvid 702, whether expert testimony will assist the trier of fact in understanding the evidence or determining a factual issue rests within the discretion of the trial court, and its decision will not be overturned on appeal absent an abuse of discretion. Butz v. Werner, 438 N.W.2d 509 (N.D.1989); see Minot Sand & Gravel Co. v. Hjelle, 231 N.W.2d 716 (N.D.1975). A trial court also has broad discretion in determining whether or not evidence is relevant under NDREvid 401. Bank of Steele v. Lang, 399 N.W.2d 293 (N.D.1987). Those standards guide our analysis of the admissibility of Campbell's opinion.

Campbell's written appraisal, that was prepared more than one year before the date of taking, valued some of the property taken at $300 per acre. However, he testified that the evidence presented at trial did not persuade him that the property taken had a different value on the date of taking:

Q. Okay. The point that I'm getting at is does the fact that you did not have that exact legal description in front of your when you did this work back in '88, does that change your opinion now that you know what the exact land area is?

A. No, because I valued this acreage as part of the meander line areas and that was $300 per acre.

* * * * * *

Q. Does that change your estimation of value on that property not having the legal description?

A. No.

Q. And then, Mr. Latham says wouldn't you normally update your appraisal since it was completed in July of '88? And I believe you answered positively or whatever--what was your answer on that?

A. Typically, we update it to the date of taking.

Q. Okay. Now, even though we don't have your input from '88 up to '90, we have heard other comparable sales testified to in this courtroom, haven't we?

A. Yes.

Q. And you've listened to those?

A. Yes.

Q. They've come from Mr. Davis. They've come from Mr. Weed and you have considered them alongside of your existing appraisal in front of you today. Have you done that?

A. Yes, I have.

Q. Even though they're probably two years later, a year and a half later, have you heard of anything from the sales prices given to you that would make you change your opinion as to the original 300 an acre you came up with?

A. No.

Q. Even a year and a half ago?

A. No.

Q. So if you had those particular comparable sales right in front and you could supplement your report and put a different date on that of 1991, would we likely still be dealing with the same figures?

A. With those sales, yes.

Q. $300 an acre?

A. Yes.

This testimony effectively updated Campbell's written appraisal.

Still, Campbell's written appraisal would have been more probative if it had been updated to the date of taking before he testified. Cf. Minot Sand & Gravel Co. v. Hjelle, 231 N.W.2d 716 (N.D.1975) [Comparable sales may be used as an underlying basis for an expert's opinion on value of property; if a "comparable sale" is only remotely comparable or not comparable, it goes to the weight of the expert's opinion and not to the admissibility of the evidence]. However, in view of Campbell's explanation of his opinion, relating it to the value of the property on the date of taking, we cannot say that the trial court abused its discretion in admitting his opinion.

Davis next argues that the trial court erred in deducting the $117,000 deposit from the jury verdict. To resolve that question in this case, we must also consider Davis's argument that the evidence was insufficient to support the jury's award of damages.

The determination of damages in an eminent domain action is a question of fact to be...