City of Lewiston v. Brinton

• Citation: 239 P. 738,41 Idaho 317
• Parties: THE CITY OF LEWISTON, a Municipal Corporation, Respondent, v. CALEB BRINTON, Appellant
• Decision Date: 03 August 1925
• Court: United States State Supreme Court of Idaho

239 P. 738

41 Idaho 317

THE CITY OF LEWISTON, a Municipal Corporation, Respondent, v. CALEB BRINTON, Appellant

Supreme Court of Idaho

August 3, 1925

EMINENT DOMAIN-PUBLIC WAY-EASEMENT OF PRIVATE WAY-NECESSARY PARTIES-APPEAL AND ERROR-WAIVER OF DEMURRER BY SUBSEQUENT ANSWER-MEASURE OF DAMAGES-INSTRUCTIONS.

1. Holders of an easement of right of way in a strip of land named in the complaint as such, are, under C. S., sec. 7410 neces- sary parties defendant in a proceeding to condemn such private way for a public way.

2. C S., sec. 6725, provides that a demurrer is not waived by filing an answer at the same time, and therefore a demurrer to a complaint is not waived by filing a subsequent answer.

3. The fair, cash, market value of the property sought to be taken is the measure of damages for the amount taken.

4. If the property sought to be condemned constitutes only a part of a larger parcel there must be estimated and assessed the damages, if any, which will accrue to the portion not sought to be condemned.

5. Where a private way is taken for a public way, if the use for which it is taken is no more burdensome than the existing easement, the owner of the fee is only entitled to nominal damages as to the part taken.

6. Instructions examined and held erroneous.

7. Requested instructions examined and held properly refused.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action to condemn private way for public way. Judgment for condemnation and against the city in the sum of $ 1 and costs. Reversed and remanded.

Reversed and remanded. Costs awarded to appellant. Petition for rehearing denied.

Tannahill & Leeper, for Appellant.

All persons who own or claim an interest in the land sought to be condemned must be made parties defendant and failure to do so renders the complaint demurrable and all proceedings in the case void. (20 C. J., p. 593, par. 83, p. 656, par. 131, p. 847, par. 286; C. S., secs. 5324-9456; Lewis on Eminent Domain, 3d ed., secs. 535-548; Anderson v. Pemberton, 89 Mo. 61, 1 S.W. 216; Brush v. Detroit, 32 Mich. 43.)

The instructions of the court confining the measure of damages to the fair, cash, market value of the land sought to be taken did not set forth the proper measure of damages, and the verdict of the jury and the subsequent judgments are void because the land taken constituted two separate parcels of land, and the separate parcels were not separately assessed, and the land taken constitutes part of larger subdivisions and the damages to the remainder thereof were not assessed nor were corresponding benefits assessed. (C. S. 7407, 7410-7414; Vallejo & N. R. Co. v. Home Savings Bank, 24 Cal.App. 166, 140 P. 974; Lewis on Eminent Domain, 3d ed., secs. 765, 766.)

Condemnation proceedings are entire, and in making a condemnation of land the entire estate therein must be condemned and the proceeds divided among the owners, all of whom must be made parties defendant. (Rawson Works Lumber Co. v. Richardson, 26 Idaho 37, 141 P. 74; Sexton v. New York, 130 A.D. 148, 114 N.Y.S. 565; Matter of St. Nicholas Terrace, 76 Hun, 610, 27 N.Y.S. 765; Matter of N.Y. Board of Water Supply, 73 Misc. 231, 130 N.Y.S. 997; 20 C. J., p. 758, par. 216, p. 850, par. 287; Lewis on Eminent Domain, 3d ed., sec. 716.)

Verner R. Clements, for Respondent.

The owner of an easement is not a necessary party where the easement is of such character that its enjoyment will not be interfered with for the purpose for which the land is condemned. (15 Cyc. 838; Allen v. Chicago, 176 Ill. 113, 52 N.E. 33; Abbott v. Stewartstown, 47 N.H. 228; Elliott on Roads and Streets, sec. 354; In re Opening 116 Street, 1 A.D. 436, 37 N.Y.S. 508; Clayton v. Gilmer Co. Court, 58 W.Va. 253, 52 S.E. 103, 2 L. R. A., N. S., 598; Matter of Niagara Falls R. Co., 48 Hun, 616, 15 N.Y. 546; Matter of First Street, 58 Mich. 641, 26 N.W. 159; Halloway v. Southmayd, 139 N.Y. 390, 34 N.E. 1047-1052; Showalter v. Southern Kansas R. Co., 49 Kan. 421, 32 P. 42; Challiss v. Atchison Union Depot Co., 45 Kan. 398, 25 P. 894; Atchison, Topeka & Santa Fe v. Patch, 28 Kan. 470; In re Carroll, 137 A.D. 39, 121 N.Y.S. 435; In re Hamburger, 86 Misc. 540, 149 N.Y.S. 173.)

Nominal damages only should be awarded the owner of the fee for land taken for public use which is subject to an easement when the public use does not interfere with the enjoyment of the existing easement. (1 Nichols on Eminent Domain, p. 349; Walker v. Schauf, 196 N.Y. 286, 89 N.E. 829, 37 L. R. A., N. S., 28; Westchester Co. v. Wakefield Park, 71 Misc. 488, 129 N.Y.S. 156; Stetson v. City of Bangor, 60 Me. 313; Olean v. Steyner, 135 N.Y. 341, 32 N.E. 9, 17 L. R. A. 640; Re City of Brooklyn, 73 N.Y. 184; Lord v. Atkins, 138 N.Y. 184, 33 N.E. 1035; Re Opening 11th Ave., 81 N.Y. 436, 446; White's Bank v. Nichols, 64 N.Y. 65, 73; Re Grand Boulevard, 212 N.Y. 538, 106 N.E. 631; Barlett v. Bangor, 67 Me. 460; City of St. Louis v. Clegg, 289 Mo. 321, 233 S.W. 1; In re Schneider, 136 A.D. 444, 121 N.Y.S. 9; In re Titus Street, 152 A.D. 752, 137 N.Y.S. 817.)

GIVENS, J. William A. Lee, C. J., and Wm. E. Lee and Taylor, JJ., concur. Budge, J., took no part in the opinion.

OPINION

GIVENS, J.

--Respondent, City of Lewiston, instituted this action to procure by eminent domain a permanent way for a public alley over and across a parcel of land belonging to appellant, Caleb Brinton, the only party defendant. Appellant demurred on the grounds that the complaint did not state facts sufficient to constitute a cause of action and that it showed upon its face a defect of parties defendant, because the complaint alleged that certain parties named therein held easements over the strip sought, which demurrer was overruled and the appellant answered, denying the right of the city to condemn; denying necessity; alleging that the nine owners of easements of a private way over this land were proper and necessary parties defendant; and denying the making of any bona fide offer of settlement and setting forth the value of the premises sought to be taken and damages accruing by virtue of the taking. Thereafter, upon application by the city to the court, commissioners were appointed who assessed and determined damages, allowing appellant $ 100 for the land in question, which amount was refused and a motion was made by appellant to set it aside, which motion was denied. The cause was tried to a jury and a verdict rendered for appellant in the sum of $ 1. Judgments were entered for condemnation and against the city in the sum of $ 1 and costs on February 1, 1924. From the judgments entered and the interlocutory orders made this appeal is taken.

Whether the rights of easement owners were interfered with or impaired in any manner was a question of fact only determinable if they were parties; furthermore, under C. S., sec. 7414, it must be determined whether damages accrue to the portion of the property remaining to the owner after the portion condemned has been taken. Appellant herein owned buildings adjacent to the proposed alley and consequently if the tenants were affected by the change in the thoroughfare he would be affected, and, furthermore, those who claimed easements might be vitally affected by the changed use resulting from the establishment of the proposed alley. These easement claimants should therefore have been made parties. (C. S., sec. 7410.)

Appellant's second proposition is that the court erred in its instruction to the jury that the measure of defendant's damages was the fair, cash, market value of the land sought to be condemned on May 3, 1921, urging that no such rule of damages ever prevailed in this state in condemnation proceedings. In Portneuf-Marsh etc. Co. v. Portneuf I. Co., 19 Idaho 483, 114 P. 19, the following rule of damages in such a case was announced: "The reasonable market value of the property sought to be taken is the true measure of damages for the amount taken." (In re Opening of 116th St., 1 A.D. 436, 37 N.Y.S. 508; Westchester County v. Wakefield Park, 71 Misc. 488, 129 N.Y.S. 156.) This instruction as far as it went was correct, but in view of C. S., sec. 7414, the jury should have been instructed on damages which might accrue to the remaining portion of appellant's property not sought to be condemned.

Where a private way is taken for a public way, if the public use does not interfere with the enjoyment of the way, and if the burden on the land is practically identical, the owner of the fee is entitled only to nominal damages. Whether such use as a public way does add to the burden on the land is a question of fact to be determined and taken into consideration by the jury.

"It is quite evident that the public right taken deducting therefrom the value of the easement, leaves only a nominal injury, because the added burden is in no manner increased by absorbing the private in the public right, or substituting the latter in the room and stead of the former, since as burdens on the land, they are substantially identical." (Village of Olean v. Steyner, 135 N.Y. 341, 32 N.E. 9, 17 L. R. A. 640.)

"Where the property taken for street purposes is subject to an easement, the measure of damages to the owner of the fee is not the full value of the property, but its value subject, to the easement, and if such easement is for a purpose with which the use of the land as a street will not interfere, the person in whose favor it exists is entitled to no damages." (In re Opening of 116th St. supra; Re City of Brooklyn, 73 N.Y. 179.) In re Carroll St., 137 A.D. 39, 121 N.Y.S. 435; In re Titus St., 152 A.D. 752, 137 N.Y.S. 817; Re Grand Blvd., 212 N.Y. 538, 106 N.E. 631; Nichols on Eminent Domain, 349; Walker v. Schauf, ...