City of Huron v. Jelgerhuis, No. 9739

CourtSupreme Court of South Dakota
Writing for the CourtBIEGELMEIER
Citation97 N.W.2d 314,77 S.D. 600
Decision Date23 June 1959
Docket NumberNo. 9739
PartiesCITY OF HURON, a Municipal Corporation, Plaintiff and Respondent, v. W. JELGERHUIS, Defendant and Appellant.

Page 314

97 N.W.2d 314
77 S.D. 600
CITY OF HURON, a Municipal Corporation, Plaintiff and
Respondent,
v.
W. JELGERHUIS, Defendant and Appellant.
No. 9739.
Supreme Court of South Dakota.
June 23, 1959.
Rehearing Denied July 30, 1959.

[77 S.D. 603] Temmey & Luby, Huron, for defendant and appellant.

R. M. Russell, Huron, for plaintiff and respondent.

BIEGELMEIER, Judge.

The plaintiff commenced this action under SDC 37.40, by the filing and service of a petition with a resolution attached and a summons, for the purpose of taking and acquiring a lot in Huron, South Dakota, for municipal street and highway purposes. The defendant served and filed an answer and the parties waived a trial by jury and agreed to try the issues to the court. The trial court entered findings of fact and conclusions of law and a judgment as prayed for by plaintiff and determined $29,245.70 as the just compensation to which the defendant was entitled. The defendant has appealed from the judgment.

The questions raised by the assignments of error are that the value found or money allowed the defendant by the trial

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court for the property taken is insufficient in amount and defendant claims that he has not received just compensation as that term is used in the South Dakota Constitution and Statutes. Applicable parts of the Constitution of the State of South Dakota are as follows:

Art. 6, Sec. 13 states:

'Private property shall not be taken for public use, or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained, and before possession is taken. * * *'

Art. 17, Sec. 18 states:

'Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed, by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury to destruction. * * *'

The term 'just compensation' is not defined in either the Constitution or Statutes. Pertinent facts will be stated in the opinion in considering the defendant's assignments of error.

[77 S.D. 604] We are met at the threshold of this appeal with the familiar rules announced by this court court that it must accept that version of the evidence which will support the judgment, Willadsen v. Crawford, 75 S.D. 161, 60 N.W.2d 692, and that the findings of the trial court are presumably correct and it is only when this court is satisfied that there is a clear preponderance of the evidence against such findings that such presumption will be overcome and the decision of the trial court reversed. Korte v. Lang, 61 S.D. 267, 248 N.W. 253. See Huffman v. Shevlin, 76 S.D. 84, 72 N.W.2d 852; State v. Hammerquist, 67 S.D. 417, 293 N.W. 539; State Highway Commission v. Bloom, S.D., 93 N.W.2d 572. The evidence and findings are to be reviewed in the light of these rules.

In 1948 defendant constructed a one-story cement block building, 25 ft. by 70 ft., in accordance with plans furnished by a national organization of laundromat distributors from whom he purchased his equipment to operate a laundromat in the building. The exhibits showed the location of twenty washing machines, ten machines on one side and back-to-back, ten on the other side of what is called a bulkhead. The trial court found that this bulkhead was built as a permanent part of the building; it contained hose and electric connections or outlets as well as drains for the washing machines. In addition to the bulkhead the trial court found that the plumbing, electrical wiring, heating plant, showers, water meters, water softener, brine tank, gas heaters and hot water tank were part of the realty and included them in its award.

The testimony of the defendant was that the building had a value of $18,200, the lot $11,000 and his equipment $16,000. Other witnesses for defendant fixed the value of the lot at $11,000 and the replacement value of the building, including electric wiring, plumbing and heating, decorating, leveling lot and architectural planning as $19,715 less depreciation since 1948 of $1,773 or a then value of $17,942. Plaintiff's witnesses who qualified as expert witnesses testified to the market values of the lot and building as $20,000, $21,802 and $19,427.21. In these values are included the bulkhead, heating equipment and other items held a part [77 S.D. 605] of the realty by the court but did not include the washing machines, extractors, or other equipment hereafter noted which the trial court found were personalty and not a part of the

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realty. The trial court took as its criterion the market value as set out and stated in his memorandum decision:

'As to measure of damages, our court is committed to market value, that is, the amount for which it might reasonably be expected that the land in question, with improvements, would be sold by a willing seller to a willing buyer. It does not mean the amount which would be obtained on a forced sale. Neither does it mean the amount which might be obtained from a buyer in such a position that he is under peculiar or unusual pressure to purchase this particular land. We must consider an owner of such land who is willing to sell it at a fair and reasonable price, but who is not in any way forced to sell, and a buyer who is in the market for land of this character, and is willing to purchase such land, but not in any way forced to buy.'

This is the rule announced in 18 Am.Jur., Eminent Domain, Sec. 242, p. 875. Defendant in his brief states: 'With this principle we cannot agree.'

The 'just compensation' to which an owner of property taken for public use is entitled under our Constitution is the full market value at the time of the taking. Chicago, M. & St. P. R. Co. v. Mason, 23 S.D. 564, 122 N.W. 601; Minneapolis-St. Paul Sanitary Dist. v. Fitzpatrick, 201 Minn. 442, 277 N.W. 394, 124 A.L.R. 897.

'Market value' is the highest price for which property can be sold in the open market by a willing seller to a willing buyer, neither acting under compulsion and both exercising reasonable judgment. Little v. Burleigh County, N.D., 82 N.W.2d 603. See also Sheraton-Midcontinent Corporation v. County of Pennington, S.D., 95 N.W.2d 892.

The burden of proof of the damages is on the owner of the property. 18 Am.Jur., Eminent Domain, Sec. 342; 29 C.J.S. Eminent Domain Sec. 271, p. 1257; Rath...

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19 practice notes
  • City of Sioux Falls v. Kelley, Nos. 17871
    • United States
    • South Dakota Supreme Court
    • March 31, 1994
    ...is its fair market value at the time of the taking. Rapid City v. Baron, 88 S.D. 693, 227 N.W.2d 617 (1975); City of Huron v. Jelgerhuis, 77 S.D. 600, 97 N.W.2d 314 The problem in this case is one of timing. The City and the Kelleys started negotiations long before the time of the sale of t......
  • Rupert v. City of Rapid City, Nos. 26252
    • United States
    • Supreme Court of South Dakota
    • January 30, 2013
    ...and both exercising reasonable judgment.” Am. Mem'l Parks, Inc., 82 S.D. at 236, 144 N.W.2d at 27–28 (citing City of Huron v. Jelgerhuis, 77 S.D. 600, 605, 97 N.W.2d 314, 317 (1959)). [¶ 21.] The diminution in value measure of damages, which has been applied in condemnation cases involving ......
  • State Highway Commission v. American Memorial Parks, Inc., No. 10149
    • United States
    • Supreme Court of South Dakota
    • July 14, 1966
    ...a willing seller to a willing buyer neither acting under compulsion and both exercising reasonable judgment. City of Huron v. Jelgerhuis, 77 S.D. 600, 97 N.W.2d 314, and Chicago, M. & St. P. Ry. Co. v. Mason, 23 S.D. 564, 122 N.W. 601. The market value guide line has been uniformly adhered ......
  • City of Sioux Falls v. Johnson, Nos. 20336
    • United States
    • Supreme Court of South Dakota
    • February 3, 1999
    ...willing seller to a willing buyer, neither acting under compulsion and both exercising reasonable judgment." City of Huron v. Jelgerhuis, 77 S.D. 600, 605, 97 N.W.2d 314, 317 (1959) (citation omitted); see generally 26 AmJur2d Eminent Domain § 295 3 Prior to City's cross-examination of Doug......
  • Request a trial to view additional results
19 cases
  • City of Sioux Falls v. Kelley, Nos. 17871
    • United States
    • South Dakota Supreme Court
    • March 31, 1994
    ...is its fair market value at the time of the taking. Rapid City v. Baron, 88 S.D. 693, 227 N.W.2d 617 (1975); City of Huron v. Jelgerhuis, 77 S.D. 600, 97 N.W.2d 314 The problem in this case is one of timing. The City and the Kelleys started negotiations long before the time of the sale of t......
  • Rupert v. City of Rapid City, Nos. 26252
    • United States
    • Supreme Court of South Dakota
    • January 30, 2013
    ...and both exercising reasonable judgment.” Am. Mem'l Parks, Inc., 82 S.D. at 236, 144 N.W.2d at 27–28 (citing City of Huron v. Jelgerhuis, 77 S.D. 600, 605, 97 N.W.2d 314, 317 (1959)). [¶ 21.] The diminution in value measure of damages, which has been applied in condemnation cases involving ......
  • State Highway Commission v. American Memorial Parks, Inc., No. 10149
    • United States
    • Supreme Court of South Dakota
    • July 14, 1966
    ...a willing seller to a willing buyer neither acting under compulsion and both exercising reasonable judgment. City of Huron v. Jelgerhuis, 77 S.D. 600, 97 N.W.2d 314, and Chicago, M. & St. P. Ry. Co. v. Mason, 23 S.D. 564, 122 N.W. 601. The market value guide line has been uniformly adhe......
  • City of Sioux Falls v. Johnson, Nos. 20336
    • United States
    • Supreme Court of South Dakota
    • February 3, 1999
    ...seller to a willing buyer, neither acting under compulsion and both exercising reasonable judgment." City of Huron v. Jelgerhuis, 77 S.D. 600, 605, 97 N.W.2d 314, 317 (1959) (citation omitted); see generally 26 AmJur2d Eminent Domain § 295 3 Prior to City's cross-examination of Doug Jo......
  • Request a trial to view additional results

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