City of La Grande v. Rumelhart

• Decision Date: 01 June 1926
• Citation: 246 P. 707,118 Or. 166
• Parties: CITY OF LA GRANDE v. RUMELHART ET AL.
• Court: Oregon Supreme Court

246 P. 707

118 Or. 166

CITY OF LA GRANDE v. RUMELHART ET AL.

Supreme Court of Oregon

June 1, 1926

In Bank.

Appeal from Circuit Court, Union County; George Tazwell, Judge.

Action to condemn right of way for highway by the City of La Grande against Mary Rumelhart and others. Judgment for defendants and plaintiff appeals. Affirmed.

This is an appeal by the plaintiff from the judgment in favor of the defendants for $2,000 and $250 as attorney's fees. The plaintiff instituted this action to condemn a right of way for a public highway through the property belonging to the defendants. The right of way is a part of the highway locally known as "The Oregon Trail." The property was appropriated and a road constructed before this action was instituted. The plaintiff assigns 13 errors based upon the order of the court denying plaintiff's motion to strike parts of the answer, admitting certain testimony over its objection, and the giving of certain instructions. The bill of exceptions and the brief for the plaintiff clearly classifies and defines the alleged errors, which will be noticed in the opinion.

George T. Cochran, of La Grande, for appellant.

F. S Ivanhoe and Robert S. Eakin, both of La Grande, for respondents.

COSHOW. J. (after stating the facts as above).

Were witnesses Pierce and Liley qualified to testify to the value of land? Both of these witnesses testified that they had lived in the same locality in which the land involved is located for a number of years, both were owners of real property in that locality, and both knew of a tract of land of the same general quality in the same community as the land appropriated and which had been recently sold by voluntary sale. Under the general authorities and the authorities in this state they were competent to testify. Lewis, Eminent Domain (2d Ed.) § 443; 10 R. C. L. 220, 221, § 188; Portland v. Investment Co., 64 Or. 410, 129 P. 756; Chicago & Western Indiana Ry. Co. v. Heidenreich et al., 254 Ill. 231, 98 N.E. 567, 28 Ann. Cas. 266, and note beginning on page 271; note to Hubbell v. City of Des Moines et al., Ann. Cas. 1916E, beginning on page 598. The market value of any commodity as well as land is determined by the price for which the same is bought and sold in ordinary voluntary transactions. It would seem therefore especially in a locality where few sales are made, that it would be competent to have a witness who knows of a voluntary sale having been made at or about the time that the land was appropriated testify of the market value of that land. Value is always a matter of comparison or estimation. It always depends more or less on the judgment of the parties to a transaction involving it. Again, it is the duty of the trial judge as a preliminary question of fact to determine whether or not a witness is qualified as an expert, and the appellate courts will not disturb the decision of the trial judge unless there is no evidence to sustain the preliminary decision of that court. Rugenstein v. Ottenheimer, 70 Or. 600, 603, 140 P. 747; Portland & O. C. Ry. Co. v Sanders, 86 Or. 62, 72, 167 P. 564; Portland-Oregon City Ry. Co. v. Penney, 81 Or. 81, 90, 158 P. 404; 13 Enc. of Evidence, 486, 489.

Were the questions so framed that witnesses Pierce and Liley testified to conclusions concerning damages and interfered with the province of the jury? We believe not to the prejudice of the plaintiff. These witnesses were asked:

"Q. State what, if any, damage or injury a highway located where that is there, cutting the place in two, as it does, well, what damage or injury results, if any, to the use of the balance of the premises, as the home of two persons, like you know the defendants to be here. A. Well, that is a pretty hard question to answer; if it was mine I would consider that I had no home after it went through there.

"Q. State whether or not you mean by that that for the purpose of a home for people like these defendants its value would be destroyed. A. Yes, that is my answer; it would be destroyed as a home."

The ultimate question the jury was called upon to answer was the amount of damages sustained by the defendants by the appropriation of the land and the construction of the road. Taking the questions in their entirety, we do not believe that they call for an estimate of the damages by the witnesses, but rather the nature of the injury sustained by the taking of the land and the construction of the highway. The jury was permitted to view the premises, and we do not believe the ruling of the court was prejudicial error. The questions are not free from objections, because they call for a conclusion, at least in part. In cases of this kind, however, the matter of damages is largely an estimate, and we do not believe that the jury could have been influenced particularly by the testimony. Most of the witnesses were very familiar with the tract of land, and were in a situation to estimate the effect upon that particular tract of land by the appropriation of the strip of land through it and the separation of the remaining parts from each other. These witnesses and another witness also described the manner in which the road was constructed and the difficulty of passing from one part of the tract owned by the defendants to the other part. It was for the purpose of drawing out this condition that the question was propounded, and not to secure from the witnesses an estimate of the damages in money. In other words, the interrogator sought to have the witnesses tell the nature of the damages or injury done the tract of land and not the amount of that damage. The answers of the witnesses indicate that to have been their understanding. They do not attempt to state the amount of the damages, but rather the nature in that it separates and spoils the tract for a home.

"Is the expense of building a concrete sluiceway special damages that must be plead in order to admit evidence thereof?" We answer no. The evidence is to the effect that in the construction of the roadway the water is drained from it onto the premises of the defendants, flooding the barnyard and garden; that it would be necessary to construct a drain for the purpose of protecting the barnyard and garden from the overflow. The evidence indicates that this surplus water is the direct result of the construction of the road. A culvert is placed in the road to drain the upper part of the same for some little distance in both directions, and the outflow of that culvert is just above a part of defendants' premises. This is one element of the damages resulting to the part of the tract not taken for the roadway from the appropriation. There are many such elements.

"It would be difficult to enumerate the various elements of damages proper to be considered when part of a tract is taken. The shape and size of the parcel or parcels which remain, the difficulty of access and of communication between the parts, inconvenience and disfigurement caused by the taking, any interference with the drainage of the land or with the flow of surface water, or with the water supply, are recognized by all authorities as proper items to be taken into account in assessing the damages." 2 Lewis, Eminent Domain (2d Ed.) § 496.

The necessary expense to be incurred in properly draining that part of the tract overflowed by the drainage of the highway is a proper item of damage to be considered.

Other questions presented involve the extent of damages recoverable in this action. The defendants allege in their answer certain facts constituting special damages to the parts of the tract of land not taken by the plaintiff...