Cornish Town v. Koller
| Decision Date | 01 August 1991 |
| Docket Number | No. 880121,880121 |
| Citation | 817 P.2d 305 |
| Parties | CORNISH TOWN, Plaintiff and Appellee, v. Evan O. KOLLER and Marlene B. Koller, husband and wife, Defendants and Appellants. |
| Court | Utah Supreme Court |
M. Byron Fisher, Michelle Mitchell, Salt Lake City, for the Kollers.
George W. Pratt, Jody K. Burnett, Salt Lake City, for Cornish Town.
Defendants Evan O. Koller and Marlene B. Koller, his wife, appeal from a judgment for $59,670 entered on a special jury verdict in their favor and against plaintiff Cornish Town.
Cornish Town commenced this action in July 1986 to condemn approximately one hundred acres of Kollers' land for the purpose of creating protection zones around Griffiths and Pearson Springs, which are on Kollers' property. The springs are a source of water for Cornish Town's culinary system as well as for Kollers' household. Cornish sought protection zones which cover a 1,500-foot radius around the springs in an attempt to reduce the high nitrate level in the water. Cornish also sought rights-of-way and access to the springs over another seven acres of Kollers' land. State water quality officials had advised Cornish that agricultural fertilization contributed to the high nitrate level. In response, commencing on September 24, 1981, Cornish enacted a series of ordinances authorizing the creation of these protection zones and prohibiting within them the use of pesticides and fertilizers, the keeping or grazing of animals, and human habitation.
After commencing the action, Cornish filed a motion for an order of immediate occupancy. After a three-day hearing where both parties presented evidence, the trial court granted the motion, concluding that there was competent evidence that it was "necessary and essential" that Cornish acquire the protection zones. The court further found that Cornish had not acted in bad faith and had not abused its discretion in bringing its action. Kollers filed a motion for partial summary judgment to fix the date of the taking of the property at September 24, 1981, when the first ordinance, No. 81-1, took effect. The motion was denied.
At the outset of the trial, Cornish moved to amend its complaint to seek only a perpetual easement over the one hundred acres after Kollers disclosed that they were going to claim that mineral deposits underlay the land. The amendment was granted. Kollers proffered evidence that deposits of zeolite underlay 94 acres of the property sought to be condemned, but the court would not admit that evidence or evidence that the estimated value of the deposits was $38 million, opining that their claim of mineral deposits was speculative. The court ruled that the issue of whether Kollers had a right to extract the minerals should be determined if and when they decided to mine the zeolite. Kollers also presented evidence as to wildlife resources on the land, specifically, a deer herd protected by them. However, they were not allowed to present a mathematical calculation of the potential monetary loss of future sales of hunting access permits.
Kollers attempted to present evidence that the taking would not improve the quality of the spring water. The trial court refused to hear the evidence, stating that public use and necessity had already been determined at the hearing on the motion for an order of immediate occupancy. The jury returned a special verdict in favor of Kollers for $59,670; they appeal.
Kollers contend that the trial court erred in denying them the opportunity to present evidence at trial on the question of whether the taking by Cornish was necessary and that they were entitled to have the jury determine that issue. Cornish responds that at the hearing on the motion for an order of immediate occupancy, the court properly determined, as a matter of law, that public use and necessity had been established by Cornish and that no showing had been made of bad faith, fraud, or abuse of discretion on its part.
Utah Code Ann. § 78-34-4 provides in part:
Before property can be taken it must appear:
(1) That the use to which it is to be applied is a use authorized by law;
(2) That the taking is necessary to such use....
Kollers' contention that they were entitled to a trial on the issue of necessity is based upon Utah State Road Commission v. Friberg, 687 P.2d 821, 832 (Utah 1984). In that case, this court primarily addressed the issue of the effect of delay in the prosecution of a condemnation action on the valuation of the property. We also determined that the hearing on the motion for an order of immediate occupancy was not a trial on the merits and thus res judicata did not operate. Id. at 833.
An order of immediate occupancy is entered pendente lite and only authorizes the State to take immediate possession until a final adjudication of the merits....
....
The State's right to condemn, if challenged, can finally be determined only after a trial on the merits, not at a hearing on the motion for immediate occupancy. Since an order of immediate occupancy only requires prima facie proof of the right to condemn, that order is not a final adjudication on the merits. Res judicata has no application in the absence of a final adjudication.
Id. (footnote and citations omitted).
There are important differences between the procedure followed by the trial court in Friberg and that followed by the trial court in the instant case. First, it appears that in Friberg, the state, the condemnor, presented only prima facie proof of the right to condemn at the hearing on the motion for an order of immediate occupancy. It does not appear that the condemnee presented any evidence. However, at the hearing in the instant case, both Kollers and Cornish Town introduced testimony and evidence in a three-day hearing, with Kollers vigorously challenging the necessity for the proposed taking. Second, following the hearing in Friberg, the order of immediate occupancy contained no findings or conclusions on the state's authority to condemn. The order stated that issues relating to the state's authority to condemn were to be decided in a "further hearing" and that the order was issued "pending further hearing and trial on the issues that may be presented in the action." Id. In contrast, in the instant case the trial court made and entered written findings as to the state's authority to condemn:
6. Although some experts may differ as to both the source of the nitrate contamination and the recommendations with respect to action which should be taken to alleviate the problem, that is not for the court to decide and there is substantial support in the record for the conclusions reached by Cornish town based on valid recommendations in doing the best they could to protect and improve the water supply. The Town has acted reasonably and in good faith in its plan to improve the System as outlined to the Court.
7. In order to carry out its plan for improving the water supply, it is necessary and essential that Cornish acquire the protection zones in the watershed of the Griffiths Spring and Pearson Spring.
We therefore conclude that under the facts of this case, where the trial court permitted both parties to fully present and litigate the issue of the necessity of the proposed taking at the hearing on the motion for an order of immediate occupancy and entered written findings of fact sustaining the condemnor's right to condemn, the trial court was not obligated to allow the parties to again litigate that issue at trial. While it is true as pointed out in Friberg that an order of immediate occupancy is interlocutory and is subject to change should the trial court become convinced of the need to do so, it would be a waste of judicial resources to require a trial court to allow the condemnee to re-present his evidence and arguments at trial. Id.
Kollers contend that they are entitled to a jury trial on the issue of necessity of the proposed taking. Utah's statutes on eminent domain, Utah Code Ann. §§ 78-34-1 to -20 (1987), are silent regarding the manner of determining necessity, i.e., whether it is done by the court or the jury. Section 78-34-8 specifically mentions the powers of "the court or the judge thereof." Notably, the jury's power is not mentioned:
The court or judge thereof shall have power:
(1) to hear and determine all adverse or conflicting claims to the property sought to be condemned, and to the damages therefor, and
(2) to determine the respective rights of different parties seeking condemnation of the same property.
Only section 78-34-10 specifically mentions the jury:
The court, jury or referee must hear such legal evidence as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess:
(1) the value of the property sought to be condemned and all improvements thereon appertaining to the realty, and of each and every separate estate or interest therein.
Some jurisdictions specifically provide for jury trial of the issue of necessity. 1A J. Sackman & P. Rohan, Nichols' The Law of Eminent Domain § 4.11 (3d ed. 1990). Generally, however, the only question an owner is entitled to try to a jury is the amount of his compensation or damages, and he has no right to be heard by the jury on the necessity of the taking, which is a question of law for the court. 27 Am.Jur.2d Eminent Domain § 408, at 292 (1966); see also Coachella Valley Water Dist. v. Western Allied Properties, Inc., 190 Cal.App.3d 969, 235 Cal.Rptr. 725 (1987) (). 1
It does not appear that the precise question which confronts us has been heretofore presented to this court for determination. However, dicta in two cases give support to the proposition that a landowner is not entitled to a jury determination...
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