Frederickson v. Hjelle
| Citation | 149 N.W.2d 733 |
| Decision Date | 16 March 1967 |
| Docket Number | No. 8305,8305 |
| Parties | Carl Arthur FREDERICKSON, Respondent, v. Walter R. HJELLE, Highway Commissioner of the State of North Dakota,Appellant. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. In a taking of land in a condemnation proceeding by the State Highway Commissioner, the landowner is entitled to be paid the value of the land taken plus the damages which accrue to the remainder of the land because of its severance from the part taken and the construction of the highway. § 32--15--22, N.D.C.C.
2. In a condemnation case tried to the court without a jury, the admission of evidence of the price of a sale to a party having the power of eminent domain is within the trial court's discretion, and its ruling thereon will not be set aside unless it is shown that the trial court has abused its discretion.
3. In a trial de novo in the Supreme Court, this court is not bound by arithmetical errors and thus is free to correct the errors and utilize the correct figures in determining the facts.
4. The trial court's memorandum opinion may not be used to impeach the trial court's findings of fact which accompany its conclusions of law and order for judgment.
5. Evidence of adaptability to a particular use of property which is proscribed by zoning regulations is admissible as bearing on value if removal of the restrictions is reasonably probable or if there is a showing that the regulations, if literally applied, would result in an arbitrary and unreasonable restraint on the use of the property.
6. In a condemnation case tried to the court without a jury, to aid the court in weighing the testimony of the expert witnesses when there were no identical sales other than a sale to a party having the power of eminent domain of a strip of land traversing the property subject to condemnation, it was proper for the trial court to consider the sales upon which each of the expert witnesses based his opinion as to just compensation (even though the tracts sold varied in use, size, location, price, and zoning), they being sufficiently comparable to to property subject to condemnation.
7. The findings of the trial court are entitled to appreciable weight when the case is before this court on a trial de novo, especially when the witnesses have appeared personally before the trial court, and it has had the advantage of observing their demeanor.
8. Notwithstanding the fact that the findings of the trial court are entitled to appreciable weight on a trial de novo, the Supreme Court is not bound by the trial court's findings but must determine the facts for itself.
9. For reasons stated in the opinion, the instant case is remanded with instructions to the trial court to modify the judgment.
Honorable Helgi Johanneson, Atty. Gen. and Jon R. Kerian and Kenneth N. Erickson, Asst. Attys. Gen., Bismarck, for appellant.
Bosard, McCutcheon & Coyne, Minot, for respondent.
ERICKSTAD, Judge (on reassignment.)
This is an appeal by Walter R. Hjelle, Highway Commissioner for the State of North Dakota, from a judgment of the District Court of Ward County dated June 2, 1965. It arises out of a condemnation proceeding brought by the State Highway Commissioner, hereafter referred to as the Commissioner, to acquire certain real property to be used in widening and dividing U.S. Highway 83.
To acquire possession of the land, the Commissioner offered to purchase for $3,615 from Mr. Frederickson 4.3 acres of land bordering the then existent right of way of U.S. Highway 83 approximately 10 miles north of the city of Minot. The amount of the offer was deposited with the Clerk of the District Court of Ward County.
Mr. Frederickson appealed therefrom to the district court on July 17, 1963, pursuant to § 14 of our State Constitution and § 24--01--22.1, N.D.C.C., asking that a jury determine the damages resulting from the State's taking of the land. Determination of the damages by jury was later waived in favor of a determination of the damages by the district court.
Following the submission of evidence on the part of Mr. Frederickson and the Commissioner the court found the value of the land taken to be $8,600 and assessed severance and consequential damages in the sum of $3,600, thus ordering judgment in the sum of $12,200. From judgment rendered in accordance therewith the Commissioner appeals. Trial de novo is demanded.
In 1956, before the Minot Air Base was developed but while it was being discussed as a possibility, Mr. Frederickson acquired an undivided one-half interest in a strip of land 330 feet wide, extending approximately one-fourth mile along the east side of U.S. Highway 83 approximately 10 miles north of the city of Minot. In 1959 he acquired the other undivided one-half interest in the land. During the trial he testified on one occasion that he paid $60 an acre for the land, whereas on another occasion he testified that he paid $300 for the first one-half and $500 for the second one-half interest.
Before the taking by the Commissioner, Mr. Frederickson sold to the Great Northern Railway for $1,800 a strip of land 100 feet wide, extending the full depth of the tract from west to east, to be used as a spur track to the air base. This sale divided the 10 acres so that there remained a strip of land extending approximately 870 feet north and approximately 350 feet south of the railroad right of way. The taking by the Commissioner of the west 159 feet reduced the depth of the tracts remaining to 171 feet.
What Mr. Frederickson as landowner is entitled to receive as just compensation as the result of the condemnation proceeding is governed by § 32--15--22, N.D.C.C., which 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 ascertain and assess:
1. The value of the property sought to be condemned and all improvements thereon pertaining to the realty and of each and every separate estate or interest therein. If it consists of different parcels, the value of each parcel and each estate and interest therein shall be separately assessed;
2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff;
3. If the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement, the amount of such damages;
4. If the property is taken or damaged by the state or a public corporation, separately, how much the portion not sought to be condemned and each estate or interest therein will be benefited, if at all, by the construction of the improvement proposed by the plaintiff, and if the benefit shall be equal to the damages assessed under subsections 2 and 3, the owner of the parcel shall be allowed no compensation except the value of the portion taken, but if the benefit shall be less than the damages so assessed the former shall be deducted from the latter and the remainder shall be the only damages allowed in addition to the value of the portion taken;
5. As far as practicable, compensation must be assessed separately for property actually taken and for damages to that which is not taken.
Under that statute the landowner is entitled to be paid the value of the land taken plus the damages which accrue to the remainder of the land by reason of its severance from the part taken and the construction of the highway. Wishek Investment Co. v. McIntosh County, 77 N.D. 685, 45 N.W.2d 417; Lineburg v. Sandven, 74 N.D. 364, 21 N.W.2d 808.
During the trial four persons who qualified as experts in the field of land appraisal gave their opinions as to the value of the land taken as well as the severance or consequential damages to the land retained by Mr. Frederickson.
Mr. Frederickson, the owner of the land, after qualifying as an expert, estimated the value of the land prior to the taking at $41,000 and after the taking at $14,000. He concluded that $27,000 would be just compensation for the taking, including severance damages.
Mr. Odell, testifying on behalf of Mr. Frederickson, after qualifying as an expert, estimated the value of the land before the taking at $43,502 and after the taking at $27,479, the difference of $16,023 being just compensation for the land taken, as well as severance damages to the remaining part of the land.
Mr. Rasmuson, testifying on behalf of the Commissioner, after qualifying as an expert, estimated the value of the land before the taking at $7,800 and after the taking at $2,700, the difference of $5,100 being just compensation for the taking, plus the severance damages.
Mr. Swenson, employed by the Commissioner as a staff appraiser, after qualifying as an expert, estimated the value of the land before the taking at $9,200 and the value of the land after the taking at $3,600, leaving a difference of $5,600 as just compensation for the land taken and the severance damages.
Although no specifications of error have been assigned as such, from an examination of the argument contained in the Commissioner's brief we have concluded that the Commissioner poses three points, the consideration of which, he believes, will result in either a new trial or a reduction in the judgment.
The first point made by the Commissioner is that the trial court committed prejudicial error in permitting Mr. Frederickson to testify as to the price paid by the railroad for the 100-foot strip of land it purchased from Mr. Frederickson in 1957. His contention is that a sale made to a party having the power to condemn does not show market value of the land, as it is not a sale between a willing buyer and a...
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