Geck v. Wentz
| Decision Date | 11 December 1964 |
| Docket Number | No. 8181,8181 |
| Citation | 133 N.W.2d 849 |
| Parties | Phillip GECK, Appellant, v. A. W. WENTZ, Highway Commissioner in and for the State of North Dakota, Roy O. Young, Chairman of the Board of County Commissioners of Morton County, a Public Corporation, Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Specifications of error assigned but not briefed and argued are deemed waived.
2. In proving the reasonable market value of property in condemnation proceedings it was proper to exclude proffered testimony of alleged offers to purchase land in vicinity of taking as tending to show its value.
3. Testimony as to location and presence of coal veins in the area of the land taken was properly excluded as not being in the proper order of proof where such testimony was offered before appellant had established that the highest and best use of the land taken was for coal mining purposes.
4. In the trial in an eminent domain proceeding on the question of damages on an appeal to the district court, where the evidence introduced by appellant showed that the record title to the coal rights in a certain tract of land was in a third party who was not a party to the proceeding, which title appellant at the trial challenged, the trial court was not in a position to try the title to the coal and could only have the jury determine the damages to the estate owned by appellant, and therefore it was not error for the trial court to strike all the evidence from the record on the value of the coal in the land in question.
5. Where trial court prepared written instructions, gave attorneys time to consider them and then required them to take any exceptions they wanted before delivery of the instructions and appellant's attorney announced that he had no exceptions to any of the proposed instructions, appellant's attorney waived bringing any exceptions to instructions before supreme court for consideration and alleged errors in instructions could not be considered on appeal.
Higgins & Christensen, Bismarck, for appellant.
Helgi Johanneson, Atty. Gen., Myron E. Bothun, Sp. Asst. Atty. Gen., Bismarck, H. G. Ruemmele, Sp. Asst. Atty, Gen., Grand Forks, for respondents.
This appeal arises out of an action in eminent domain which was commenced under the procedures provided for under Section 14 of the North Dakota Constitution. Appellant appealed an award made by the State Highway Department for the taking of five separate tracts of land totalling 40.02 acres used in the construction of Interstate Highway Number 94 in Morton County, North Dakota, and pursuant to such appeal the action was tried to a jury in the district court of Morton County. The appeal to this court is from the judgment entered in the district court of Morton County pursuant to the verdict rendered by the Jury on the assessment of damages.
Appellant has assigned the following specifications of error:
1. The court erred in admitting into evidence testimony on behalf of the respondent over the objection of petitioner.
2. The court erred in refusing to admit testimony offered by the petitioner as follows: The court's refusal to permit the witness Edwin C. Richter to testify as to his knowledge of coal outcrops in the vicinity of the lands in question; the court's rejection of the testimony of the said Edwin C. Richter as to what factors were considered by informed prospective purchaser of lands valuable for coal mining purposes; the court's striking of the evidence of the appellant of the value of the coal in Lots 3 & 4 of Section 7; the court's rejection of the testimony of the appellant's witness, Wretling, as to his interest in mining prospects in this area and his attempt to buy land for that purpose there; the court's rejection of the testimony of the witness Wretling as to knowledge of coal lands adjacent to the Richter mine since and his travels in search of coal lands in the area involved here; striking of the testimony of Wretling that the Richter mine, adjacent to the land involved, was a good mining property; and the court's rejection of the testimony of the witness Richter as to his interest in and offers to buy the very land in question for coal mining purposes.
3. The court erred in refusing to give petitioner's requested instruction number 1.
4. The evidence was insufficient to justify or support the judgment entered.
5. The court erred in instructing the jury that 'You may not consider the minerals underlying that part of the appellant's farm lying within Section 7, as a factor or basis for value, for the reason that the appellant does not own these minerals, and hence they are not involved in this case.'
Specifications numbered 1, 3 and 4 were not briefed or argued by the appellant. This court had consistently ruled that errors assigned but not argued will be deemed waived and need not be considered on appeal. Regent Co-op. Equity Exchange v. Johnston's Fuel Liners, Inc. (N.D.), 122 N.W.2d 151. We, therefore, consider these specifications of error waived and will not consider them.
The points argued under specification number 2 may be grouped into two categories; testimony concerning the nature of adjacent land; and testimony concerning offers of purchase.
The court refused to admit offers to purchase some of the land for coal mining purposes. The rule concerning offers to purchase in eminent domain proceedings is stated in Petition of Omaha Public Power District, 168 Neb. 120, 95 N.W.2d 209. The rule is: 'In proving the value of property it is improper to admit testimony of an alleged offer of a particular price for the property as tending to show its value.'
The rule is also found in 20 Am.Jur. Evidence Sec. 375, p. 341: 'As a general rule, proof of mere offers to buy or sell either land or personal property is not competent to show the value of such property or other property similarly situated in the vicinity.'
To the same effect, 31A C.J.S. Evidence Sec. 182(3), p. 469 states: 'It is said in some cases that bona fide offers to purchase land at a named price, which the owner has declined, are admissible to prove the value of the land; but, although some courts have ruled for admissibility, the weight of authority is that such evidence is not admissible.' In the footnotes to this section the following reasons are cited for this rule:
'(1) Evidence of offers to buy is too easily manufactured.
'(2) The difficulty of determining whether or not an unaccepted offer was made in good faith required the rejection of such evidence.
'(3) Such testimony simply give the opinion of the offeror as to the value of the land.
'(4) The admission of such evidence would raise a collateral issue.
'(5) 'An unaccepted...
To continue reading
Request your trial
-
Rau v. Kirschenman
...St. Thomas Lumber Company, 148 N.W.2d 278 (N.D.1966); Julson v. Loyal Order of Moose Number 822, 140 N.W.2d 39 (N.D.1966); Geck v. Wentz, 133 N.W.2d 849 (N.D.1965); Klokstad v. Ward, 131 N.W.2d 244 (N.D.1964); Helgeson v. Locken, 130 N.W.2d 573 (N.D.1964); Chicago, M., St. P. & P.R. Co. v. ......
-
Wilson v. General Motors Corp.
...of the general rule that in the absence of objections all exceptions to the instructions and verdict forms are waived. Geck v. Wentz, 133 N.W.2d 849 (N.D.1964); Bartholomay v. St. Thomas Lumber Company, 148 N.W.2d 278 (N.D.1966); Matter of Estate of Honerud, 294 N.W.2d 619 Although the dist......
-
Abelmann v. SmartLease USA, LLC
...is not a competent basis for establishing market value. See, e.g., Sharp v. U.S., 191 U.S. 341, 348-50 (1903); Geck v. A.W. Wentz, 133 N.W.2d 849, 851 (N.D. 1965); Unaccepted Offer for Purchase of Real Property as Evidence of its Value, 25 A.L.R.4th 571 (1983) (compiling cases and concludin......
-
Christensen v. Farmers State Bank of Richardton
...give an instruction on reasonable detention was taken, nor was such an instruction requested. The following quotation from Geck v. Wentz (N.D.), 133 N.W.2d 849, 852, is 'This court in Mann v. Policyholders' Nat. Life Ins. Co., 78 N.D. 724, 51 N.W.2d 853, held: 'When a trial court writes out......