O'Connell v. Hjelle, 8299

• Decision Date: 06 June 1966
• Docket Number: No. 8299,8299
• Citation: 143 N.W.2d 251
• Parties: Maurice P. O'CONNELL and Kathleen A. O'Connell, Plaintiffs and Respondents, v. Walter R. HJELLE, State Highway Commissioner for the State of North Dakota, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 251

143 N.W.2d 251

Maurice P. O'CONNELL and Kathleen A. O'Connell, Plaintiffs and Respondents, v. Walter R. HJELLE, State Highway Commissioner for the State

of North Dakota, Defendant and Appellant.

No. 8299.

Supreme Court of North Dakota.

June 6, 1966.

Rehearing Denied July 1, 1966.

Syllabus by the Court

Use as a unit of property owned wholly by husband and wife and other property owned jointly by husband, wife, and husband's parents, could be considered in fixing fair market value of that part of property owned wholly by husband and wife which was condemned and amount of severance damages to the remainder of property owned wholly by husband and wife.

Helgi Johanneson, Atty. Gen., and Myron E. Bothun, Sp. Asst. Atty. Gen., Bismarck, for appellant.

Freed, Dynes & Malloy, Dickinson, for respondents.

ERICKSTAD, Judge.

This is an appeal by Walter R. Hjelle, Highway Commissioner for the State of North Dakota, from a judgment of the District Court of Billings County. It arises out of a condemnation proceeding brought by the State Highway Commissioner, hereafter referred to as the Commissioner, to acquire certain real property for the right of way of Interstate Highway 94.

To acquire possession of the land, the Commissioner offered to purchase certain tracts from Maurice P. and Kathleen A. O'Connell. The amount of the offer was deposited with the Clerk of District Court of Billings County, where the land is situated.

The O'Connells appealed therefrom to the district court, pursuant to Section 14 of our Constitution, asking that a jury determine the damages resulting from the State's taking of the land. A verdict was returned in favor of the O'Connells in the sum of $24,288.80. The court ordered that the judgment include, in addition to the amount of the verdict, interest, costs and disbursements, appraisers' fees, engineers' fees, and attorneys' fees. The total judgment appealed from is in the sum of $26,695.17.

The main issue in this case is whether it was proper for the trial court to admit evidence of the use and value of ranch property held jointly by Maurice P. and Kathleen A. O'Connell and Maurice's parents, William P. and Elizabeth Ann O'Connell, in an action to determine damages resulting from a taking by the Highway Department of 178.26 acres of land owned by Maurice and Kathleen and 1.91 acres of land jointly owned by Maurice, his wife, and is parents.

A plat depicting the various interests of the parties and the right of way taken for Interstate Highway 94 is set forth on page 253.

The shaded areas on the plat represent the lands owned jointly by Maurice, Kathleen, and Maurice's parents. These tracts are referred to as the family unit. The diagonally lined areas on the plat represent the land wholly owned by Maurice and Kathleen. The two units, plus contiguous leased lands, were operated as one ranch. The record does not clearly describe the leased lands, but it appears that they are represented by several of the white areas on the plat which are contiguous to the shaded and lined areas.

The State took 178.26 acres (28.62 acres being a temporary acquisition) owned by Maurice and Kathleen and 1.91 acres of the family unit for Interstate Highway 94 right of way. The highway is shown on the plat as a heavy dark line. The plat clearly shows that the location of the right of way resulted in the severance of Maurice's and Kathleen's land lying north of Interstate Highway 94 from the remainder of their land south of the highway.

The severed land consists of 187.5 acres. The family unit now contains 2,220.16 acres less the 1.91 acres taken by the State. There is a discrepancy in the record as to the acreage contained in the unit owned by Maurice and Kathleen, but we do not believe that this materially affects the issues in the case. The acreage was between 1,715 and 1,925 and is now diminished by the 178.16 acres taken by the highway. In connection with the family unit William had a Medora Grazing Association preference permit which obviously enhanced the value of the family unit. Maurice and Kathleen had a permit of another type which also enhanced the value of the unit which they wholly owned.

The Commissioner has assigned two specifications of error. The first reads as follows:

That the District Court erred in its ruling whereby it permitted the Plaintiffs and Respondents to establish value upon the basis that two distinct parcels of land under two distinct ownerships could be treated as one for purposes of valuation of the portions taken and also for purposes of determining the amount of severance damages to both parcels, the same being contrary to law.

The ruling referred to apparently is the one which the trial court made in chambers before the trial commenced, when the following motion was made on behalf of the Commissioner:

MR. BOTHUN (representing the Commissioner): * * * At this time respondent would move that all evidence tending to establish value and damage as to the property owned in joint tenancy (by the four O'Connells) be excluded at this time for the reason that the ownership is different from that in which Maurice O'Connell has the fee title.

THE COURT: And as I understand you are asking the Court to exclude any and all evidence, any and all damages or value to these properties in which the appellants (Maurice and Kathleen) own only a partial interest as far as this case is concerned?

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

MR. BOTHUN: Yes.

THE COURT: The motion is denied. However, it is the understanding of the Court and the parties that the respondent, State of North Dakota, may have a standing objection then to all evidence and testimony tending to show these damages so far as they affect the properties owned by the appellant (Maurice and Kathleen) and others in which they have a partial interest.

MR. BOTHUN: Yes, and also the value of both parcels.

THE COURT: Value and damages of any properties owned by appellants (Maurice and Kathleen) of which they own only a partial interest along with other people.

MR. BOTHUN: I might further elaborate on that. Our objection would also extend to any determination and treatment of value to that property owned singly by Maurice and his wife. I think there are two aspects to this. In other words there could be value to the singly owned property from the jointly owned property and vice versa.

THE COURT: You may have that included. * * *

We cannot see how the Commissioner's case was prejudiced by the denial of his motion.

Our statute on assessment of damages reads as follows:

32--15--22. Assessment of damages.--The jury, or court, or referee, if a jury is waived, must hear such legal testimony as may be offered by any of the parties to the proceedings and thereupon must...