Grangeville Highway District v. Ailshie

• Decision Date: 19 July 1930
• Docket Number: 5517
• Citation: 290 P. 717,49 Idaho 603
• Parties: GRANGEVILLE HIGHWAY DISTRICT, Respondent, v. JAMES F. AILSHIE and LUCIE AILSHIE, Appellants
• Court: Idaho Supreme Court

290 P. 717

49 Idaho 603

GRANGEVILLE HIGHWAY DISTRICT, Respondent, v. JAMES F. AILSHIE and LUCIE AILSHIE, Appellants

No. 5517

Supreme Court of Idaho

July 19, 1930

EMINENT DOMAIN-HIGHWAY DISTRICTS-POWER TO CONDEMN-NECESSITY FOR TAKING - DETERMINATION - JUDICIAL QUESTION - EVIDENCE.

1. Highway district could enter into joint contract with state and United States for construction of road and apportionment of cost (Laws 1923, chap. 181; C. S., secs. 1507, 1578).

2. Where highways are jointly constructed by highway district state and United States, district has power to condemn right of way (C. S., secs. 1507, 1578).

3. That joint construction of highway was agreed upon between highway district, state and United States before entire right of way had been acquired did not invalidate condemnation proceedings (C. S., secs. 1507, 1578).

4. Right of legislature, or designated agents, to take land by eminent domain proceedings is plenary, except as restricted by Constitution or statute.

5. Right to determine necessity of highway improvement for which land is sought by eminent domain proceedings is with highway district (C. S., secs. 1507, 7404-7423).

6. Determination of necessity of taking land sought for highway is ultimately judicial question, on which land owner is entitled to hearing (C. S., secs. 7404-7423).

7. Legislature, in absence of constitutional restrictions, may designate agent to select necessary lands for highway and provide that such selection is prima facie evidence of necessity (C. S., secs. 7404-7423).

8. Only in face of convincing evidence officials abused discretion in selecting land for highway, or are guilty of actual fraud should court interfere (C. S., secs. 7404-7423).

9. Highway district condemning land for highway must show only reasonable, not absolute, necessity for taking land selected (C. S., secs. 7404-7423).

10. In proceedings to condemn land for highway, defendant cannot prevail merely by showing there is other land in immediate neighborhood equally useful (C. S., secs. 7404-7423).

11. Fact that another route is available for highway does not rebut prima facie case that land selected by highway district is necessary for its purpose (C. S., secs. 7404-7423).

12. Court takes judicial notice that everywhere highways are being straightened and curves eliminated.

13. Land owners held not to have shown such abuse of discretion or fraud on part of highway district's officials selecting land for highway as warranted court's refusing to accept their judgment (C. S., secs. 1507, 7404-7423).

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

Action to condemn right of way for highway. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to appellants. Petition for rehearing denied.

James F. Ailshie, for Appellants.

The question as to the necessity for the taking of a specific piece of real property for public use when denied becomes a judicial question to be determined by the court in limine. ( Portneuf Irr. Co. v. Budge, 16 Idaho 116, 18 Ann Cas. 674, 100 P. 1046; Pyle v. Woods, 18 Idaho 685, 111 P. 746; Washington W. P. Co. v. Waters, 19 Idaho 595, 115 P. 682, 687; Blackwell Lbr. Co. v. Empire Mill Co., 29 Idaho 236, 158 P. 792; Blackwell Lbr. Co. v. Empire Mill Co., 29 Idaho 421, 160 P. 265; Boise City v. Boise City Development Co., 41 Idaho 294, 238 P. 1006; State v. Superior Court, 64 Wash. 189, 116 P. 855; Fork Ridge Cem. Assn. v. Redd, 33 W.Va. 262, 10 S.E. 405.)

Where land is required for public use, the location of the specific tract to be taken must be made in a manner "which will be most compatible with the greatest public good and the least private injury." (C. S. , secs. 7407, 7408; Boise City v. Boise City Dev. Co., 41 Idaho 294, 302, 238 P. 1006; City of Santa Ana v. Gildmacher, 133 Cal. 395, 65 P. 883; City of Pasadena v. Stimson, 91 Cal. 238, 27 P. 604; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123, 28 P. 447.)

B. Auger, for Respondent.

While no specific discussion appears to have been had in this court over the language used in C. S., sec. 7408, that the right of way "must be located in the manner which will be most compatible with the greatest public good and the least private injury," this court has had the statute under consideration and other states with similar or somewhat similar statute have at least had the question under consideration. In the case of Boise City v. Boise City Development Co., 41 Idaho 294, 238 P. 1006, the court has held:

"In the exercise of the power of eminent domain a city council may determine the location of the land required for municipal purposes, and such determination, if made in good faith, will not be interfered with by the courts."

W. D. Gillis, Attorney General, and Fred J. Babcock, S.E. Blaine and Harmon E. Hosier, Assistant Attorneys General, Amici Curiae.

There was no abuse of discretion or power on the part of the engineers in this case. (Department of Highways v. Stepp, 150 Tenn. 682, 266 S.W. 776; Smith v. Claussen Park etc. Dist., 229 Ill. 155, 82 N.E. 278; State v. Superior Court, 111 Wash. 205, 542, 190 P. 234, 191 P. 413.)

The land owner cannot raise the objection that there is no necessity for condemning his property because some other location might be made, or some other property obtained which would be more suitable. (20 C. J. 633; Richland School v. Overmeyer, 164 Ind. 382, 73 N.E. 811; Department of Public Works, etc., v. McCaughey, 332 Ill. 416, 163 N.E. 795; MacGregor v. Miller, 324 Ill. 113, 154 N.E. 707; Village of Depue v. Banschbach, 273 Ill. 574, 113 N.E. 156; Smith v. Claussen Park, etc., supra; White v. Johnson, 148 S.C. 488, 146 S.E. 411; Petition of Fayette County Commrs., 289 Pa. 200, 137 A. 237; Department of Highways v. Stepp, supra.)

In determining whether the taking of property is necessary for public use not only the present demands of the public but those which may be fairly anticipated in the future may be considered. (Rindge v. Los Angeles Co., 262 U.S. 700, 67 L.Ed. 1186, 43 S.Ct. 689; Central P. R. Co. v. Feldman, 152 Cal. 303, 92 P. 849.)

GIVENS, C. J. Lee, Varian and McNaughton, JJ., concur. BUDGE, J., Dissenting.

OPINION

GIVENS, C. J.

This action was brought by plaintiff to condemn a right of way for a state highway through defendants' farm. Defendants denied the necessity for taking this particular land and alleged that the highway which had been in use for over forty years is as convenient to the public as the proposed highway, and that its use would inflict much less injury upon the defendants.

Defendants' farm lies just east of the city of Grangeville. The present route of the highway, designated as the "N" route, follows Grangeville streets to the northwest corner of defendants' premises which it skirts on the north side. It contains several curves.

It is proposed by the plaintiff to run the new highway, designated as the "S" route, over a new grade in an easterly direction through Grangeville. As it approaches the city limits the route veers to the north in a wide curve at an angle of eight degrees, enters defendants' farm near the southwest corner and crosses it in a diagonal direction.

A third route has been proposed by the defendants, designated as the "A" route. It follows the "S" route to the point where the latter enters defendants' farm but instead of traversing it diagonally skirts it on the west and north sides. It contains two curves, one of them right angled, around the northwest corner of the farm of defendants, who have offered to donate to the respondent enough land to establish this curve on a radius of 507 feet, a standard curve for federal aid highways.

The "N" route is 153 feet longer and the "A" route 523 feet longer than the "S" route. The "N" route has a plus one per cent grade. Both the "A" and "S" routes have grades varying up to eight per cent. The additional cost of construction for either the "N" route or the "A" route over the cost of the "S" route would not exceed $ 1200.

It is appellants' contention that the "S" route running through their farm will largely destroy its usefulness and that respondent in so locating it acted arbitrarily and capriciously. Only two out of six forties in the farm are well adapted to wheat raising and the proposed road runs diagonally through these forties.

The "S" route was laid out by state highway engineers and approved by federal highway engineers. The evidence also shows that the practice in modern highway engineering is to build roads as short as possible and as straight. Curves are eliminated as much as possible, particularly on gravel roads, not only because straight roads are considered safer but also because they are cheaper to maintain. A "surprise" curve at the end of a six-mile straightaway which the "A" route calls for is considered dangerous. Furthermore, on a gravelled road, the gravel on a curve tends to fly off the road, increasing the maintenance expense.

It further appears from testimony offered on behalf of respondent that if the "A" route is used, one of the curves will have to be changed or it will pass through a house.

The trial court personally examined the routes and appellants' premises and exhaustively considered the merits of the respective routes and the injury to appellants, then found for the respondent and ordered the land condemned. The court made a specific finding as to the injury to appellants as follows:

"That the land sought to be taken and hereinabove described is located in the manner which will be most compatible with the greatest public good and the least private injury."

Part of the proposed new highway lies in the city of Grangeville. The land...