City of Hildale v. Cooke

• Decision Date: 29 June 2001
• Docket Number: No. 990933, No. 990975.
• Citation: 28 P.3d 697,2001 UT 56
• Parties: The CITY OF HILDALE, Plaintiff, Appellant, and Cross-Appellee, v. Gherri Bateman COOKE; Barbara Andrae Hall; Grant Dennis Beatty; KBGD, Inc., a Utah corporation; Bill Lewis, trustee of W.H.R. Trust; and Academy Title Co., Defendants, Appellees, and Cross-Appellants.
• Court: Utah Supreme Court

28 P.3d 697

2001 UT 56

The CITY OF HILDALE, Plaintiff, Appellant, and Cross-Appellee, v. Gherri Bateman COOKE; Barbara Andrae Hall; Grant Dennis Beatty; KBGD, Inc., a Utah corporation; Bill Lewis, trustee of W.H.R. Trust; and Academy Title Co., Defendants, Appellees, and Cross-Appellants.

Nos. 990933, 990975.

Supreme Court of Utah.

June 29, 2001.

Ronald W. Thompson, Stephen H. Urquhart, St. George, for plaintiff.

Jim R. Scarth, Harold J. Dent, Jr., St. George, for defendants.

RUSSON, Associate Chief Justice:

¶ 1 The City of Hildale appeals from a trial court judgment awarding landowners Gherri Bateman Cooke and Barbara Andrae Hall damages pursuant to section 78-34-10 of the Utah Code for the condemnation of their property. We reverse and remand.

BACKGROUND

¶ 2 Seeking to erect a 69-kilovolt electrical transmission line, the City of Hildale ("City" or "Hildale") instituted a condemnation proceeding on May 31, 1995, to obtain perpetual easements and rights-of-way on the respective properties of Gherri Cooke and Barbara Hall, defendants and appellees in the instant case (collectively, "landowners" or "defendants"). Subsequently, on January 12, 1996, the Fifth District Court for Washington County entered an order of immediate occupancy, creating the easements sought by the City.

¶ 3 Three years later, on April 26, 1999, the district court commenced a two-day jury trial to determine what damages the City owed the landowners for the imposition of the easements on their properties. On the morning of the first day of trial, the City filed a motion in limine attempting to restrict testimony concerning, among other things, severance damages,¹ a proposed subdivision on Gherri Cooke's land, and archaeological evidence about Anasazi ruins on the landowners' properties. The district court conducted a hearing to consider the issues raised by Hildale and then partially denied the City's motion. The court ruled that severance damages were "still . . . an open issue in the case"; that Gherri Cooke and her ex-husband, Claude Seth Cooke, could testify as to the planned subdivision on their property; and that it would not reach a decision on the admissibility of evidence regarding Anasazi ruins on the condemned lands until later in the trial. As to the proposed subdivision evidence, however, the court held that any testimony presented to establish the Cookes' plans of developing a subdivision must be limited to the highest and best use of their land. The court ruled from the bench:

The court will . . . allow Mr. Cooke to testify as to his opinion, as a former owner, of the highest and best use of the property and the reasons for his opinion to the extent that he may explain that he was pursuing . . . the development of a subdivision. But he will be required to explain. . . what he had done about developing a subdivision, again, only on the point of the highest and best use of the property.

I think it would be misleading to the jury to disallow that kind of testimony if there was at least something being done showing that someone had an opinion that residential development was the highest and best use and someone who is directly involved in the property. . . .

[As a result,] I would intend that [the Cookes] can tell [the jury] what [they] did and what approvals, if any, [they] had, and the extent to which [they] had undertaken this development — but only as it relates to what is the highest and best use. [T]hat will also be subject to cross-examination, of course.

¶ 4 Following the district court's ruling on the City's motion in limine, the landowners began presenting evidence.² Defendants first called Daniel Johnson, an expert appraiser. Mr. Johnson testified to the value of the land condemned on each of the properties, whether either of the properties suffered severance damages, and the highest and best use of each of the properties. Specifically, Mr. Johnson estimated that the value of the easement imposed on Gherri Cooke's land was $2600, and that the easement on Barbara Hall's property was worth $800. Mr. Johnson further opined that neither of the landowners' properties suffered severance damages as a result of the City's condemnation, and he asserted that the highest and best use of both properties was "long [term] investment purposes."

¶ 5 Barbara Wallen Frank, an archaeologist, was called to testify as to her findings of Anasazi ruins on the lands affected by Hildale's easement. Ms. Frank stated that she had discovered five sites "located along the easement corridor" that likely contained remnants of Virgin Anasazi civilization. Of those five sites, Ms. Frank testified that three were located on Merlin Webb's property,³ that one was on Barbara Hall's land, and that she "believe[d]" the final site was also located on Mr. Webb's property.

¶ 6 Next, the landowners testified concerning their respective properties. Gherri Cooke opined that the value of her land taken by Hildale was $5800, and that the taking caused $110,880 in damages to the remainder of her property. When asked how the remainder of her property had been damaged, Ms. Cooke responded:

Several ways. If you look at the plan that we had for the subdivision, it would take an easement across the five front lots, as Claude already pointed out. And the total taking of the easement was .5 acres, which would eliminate at least one lot out of the subdivision, even if the rest were undesirable lots and we did re-do the plat. But I can't see that anyone wants to build a house facing the highway that has a 25-foot easement. It's just not very desirable.

In discussing the planned subdivision further, Ms. Cooke described various activities she had engaged in to prepare her property for the development.

¶ 7 The defense also called Claude Cooke⁴ to the stand, where he stated that in his opinion the City's easement on Gherri Cooke's land was worth $10,000 and that it had caused $160,000 in severance damages. Mr. Cooke further noted that he believed the highest and best use of the land to be "residential." In support of this view, Mr. Cooke outlined a number of steps he had taken to realize his and Gherri's plan to develop a subdivision on the property. On direct examination, he elaborated:

The first step was to go to the county and see what their requirements [for developing a subdivision] were. . . . The next thing I did was applied [to the state] for a well permit[, which I received. Then] I went and had the well drilled to see if there was water down at the bottom of the hole[, but] I didn't own enough water to supply the twelve lots that was our plan [for the] subdivision. And so I . . . purchase[d] water to supply these lots. . . .

[After that,] I had the surveyors come out and draw up a plot plan of the subdivision. [I ran the pipe from the lots] up to the water tank, which is the highest point of the subdivision. And then from there I had to put a six-inch line out of the tank across the wash and over to the rest of the subdivision. . . .

While this was going on, I had roads . . . put in rough. The county requires that you have six inches of road base on . . . your streets. So I had twenty-five 22-yard loads of [gravel road base] hauled in from Hurricane. . . . I purchased two [fire hydrants, but] I only put in one. . . . Then I . . . hire[d] the blade to come back and spread out all the [gravel road base].

I had to have a proof map done proving up on the water. And in order to have the water secured from the state, you have to be using that water. . . . [So I] made a reservoir and clay lined the inside of the reservoir. I [planted] six acres of alfalfa. . . and a bunch of [shade] trees . . . to prove up on the water. . . . And we had to have [water percolation] tests and soil analys[e]s done on the lots on the subdivision. [The state health department certified that we had passed the percolation and soil tests, so I sought] permission from the state [to access the highway from the subdivision]. But they made requirements that I put in cattle guards and put in culverts for drainage, so [I] put in two 50-foot culverts. . . .

[Then] I had . . . UP & L come out and put in the power line. They put in 1219 feet of power line on the subdivision. They put in five poles. We had to pay for that.

¶ 8 Finally, concluding its examination of the affected landowners, the defense called Barbara Hall. Ms. Hall explained that, in line with Mr. Cooke's testimony, she believed the highest and best use of her land to be "residential." Specifically, Ms. Hall testified that like the Cookes, she had intended to build a subdivision on her property as "an extension of [the Cookes' development] after they had finished theirs up and I [had] gotten some money together." She stated, "We were going to build . . . another addition there on my property with — well, Claude had the equipment and things and the know how, and I had the property and friendly manner." Accordingly, she opined that the value of her land taken by the City was $7000. Ms. Hall also estimated that the City's condemnation of her land caused $75,000 in severance damages.

¶ 9 At the close of the landowners' case in chief, the City called its own witnesses to testify to the value of the lands at issue. Hildale first called Stanford McConkie, an expert appraiser. Mr. McConkie stated that he had calculated the value of defendants' lands by determining the prices of comparable sales in the surrounding area. In accordance with this analysis, Mr. McConkie concluded that for its condemnation of their lands the City owed Gherri Cooke $1740 and Barbara Hall $550. Mr. McConkie further testified that severance damages resulting from the City's condemnation were "nonexistent." Moreover, Mr. McConkie noted that since he believed there was "no market demand" for residential development in the area immediately surrounding defendants' properties, the highest and best use of their lands was "speculative holding . . . in...