Hughes v. State

• Decision Date: 28 July 1958
• Docket Number: No. 8490,8490
• Citation: 80 Idaho 286,328 P.2d 397
• Parties: Ernest V. HUGHES and Carmen Hughes, husband and wife, Plaintiffs-Appellants, v. The STATE of Idaho, a commonwealth, acting by and through the Idaho Board of Highway Directors, and the City of St. Maries, a municipal corporation, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 397

328 P.2d 397

80 Idaho 286

Ernest V. HUGHES and Carmen Hughes, husband and wife, Plaintiffs-Appellants, v. The STATE of Idaho, a commonwealth, acting by and through the Idaho Board of Highway Directors, and the City of St. Maries, a municipal corporation, Defendants-Respondents.

No. 8490.

Supreme Court of Idaho.

July 28, 1958.

Elder, Elder, Cox & Mitchell, Coeur d'Alene, for appellant.

Graydon W. Smith, Atty. Gen., Wm. R. Padgett, Asst. Atty. Gen., Carl M. Buell, St. Maries, for respondent.

SMITH, Justice.

Appellants ever since 1926 have been and were at the time of the commencement of this action the owners of Lots 5 and 6 in Block 3 of the original townsite of St. Maries, in Benewah County, used for business purposes.

Appellants commenced this action November 4, 1954, after the Board of Examiners of the State of Idaho had denied their claim for compensation predicated upon respondents' physical invasion of their property and destruction of their right of access thereto.

Appellants in their original and first amended complaints allege that their business property is situate in respondent City of St. Maries, at the intersection of, and at grade with, South Railroad Avenue and Third Street; that it consisted, for many years prior to 1952, of a service station, a grocery store and a public garage, which appellants leased to divers persons; that appellants maintained two points of access to their property for business purposes, one fronting South Railroad Avenue, and one fronting Third Street, which rendered the property readily accessible for business purposes from either street; that respondents' construction of a new bridge and railroad overhead with approach along Third Street past appellants' property raised the grade or elevation of Third Street at said locality approximately six feet which resulted in the intersection becoming impassible for vehicular traffic, and in respondent City causing the intersection to be closed and vacated; that thereby appellants not only were wrongfully deprived of such rights of access, but their property was rendered unfit for business purposes. Appellants then allege two additional theories of wrongful taking of their property, i. e., in their original complaint, by the constant draining onto their property of water, mud, dirt and refuse from the approach as so constructed; and in their first amended complaint, by the construction of the approach to the extent of two to three feet upon appellants' property throughout its entire length bordering on Third Street. Then follows appellants' allegations of consequent reduction in the value of their property caused by respondents' wrongful taking, to their damage in an alleged sum, for which they pray judgment. Appellants base their action on the theory of inverse condemnation as recognized by this Court in Renninger v. State, 70 Idaho 170, 213 P.2d 911.

The trial court required appellants to state their causes of action separately against each of the respondents. The court also sustained demurrers to portions of appellants' original complaint and their first amended complaint.

The trial court also sustained respondents' motion to strike the allegations of appellants' first amended complaint, (1) that a portion of the approach and fill placed by respondents on appellants' land deprived appellants of the use thereof, and (2) that the fill and approach so constructed deprived appellants of their right of access to their property. This left remaining the theory alleged in appellants' second amended complaint, upon which they proceeded to trial, of the taking of appellants' property by dirt, residue and water draining and washing down thereon from the embankment constructed by defendants.

Respondents, at the close of appellants' case, moved for a judgment of nonsuit on the ground that appellants had failed to prove a sufficient case to entitle them to a verdict, which motion the trial court granted. Appellants appealed from the resulting judgment of nonsuit.

Appellants by their assignments assert that the trial court erred in sustaining demurrers to appellants' original and first amended complaints and in striking the aforesaid portions of the first amended complaint.

At the outset respondents assert that the questions presented by such assignments cannot be reviewed, urging that upon the filing of an amended complaint all prior complaints become functus officio and that therefore, the rulings of the trial court on the prior pleadings cannot be reviewed on appeal from the final judgment; citing in support thereof People ex rel. Huston v. Hunt, 1 Idaho 433; Wooddy v. Jamieson, 4 Idaho 448, 40 P. 61; Andrews v. Moore, 14 Idaho 465, 94 P. 579; Colgrove v. Hayden Lake Irr. Dist., 40 Idaho 489, 235 P. 434; Cable v. Olson, 52 Idaho 389, 15 P.2d 737; Shirts v. Shultz, 76 Idaho 463, 285 P.2d 479.

There is no merit in respondents' position, for here, the trial court at no time sustained a demurrer to appellants' entire cause of action; rather, the trial court struck from the complaint two elements of appellants' cause of action, leaving the third element upon which the trial proceeded. The effect of filing the second amended complaint was to allege only the third remaining element.

Crossler v. Safeway Stores, Inc., 51 Idaho 413, 6 P.2d 151, 152, 80 A.L.R. 463, in recognizing this theory, renders the cases cited by respondents distinguishable from the case here. The Crossler case held that the effect of sustaining a motion to strike portions of an answer, i. e., the affirmative defense, left only the remaining portion of the answer though it was set out in an amended answer; therein this Court said:

'A motion to strike such affirmative defense, made by respondent, was sustained by the trial court, * * * However, after such ruling, and evidently in an endeavor to comply therewith although we deem it an unnecessary act, appellants filed what is designated as 'amended answer,' which, for all practical purposes, is nothing more than the original answer with the parts deleted that were ordered stricken by the court.'

The order of the trial court granting respondents' motion to strike the portions of appellants' second amended complaint being a matter deemed excepted to and appearing in the record, may be reviewed upon appeal from the final judgment. I.C. secs. 10-502 and 13-219; Warren v. Stoddart, 6 Idaho 692, 701, 59 P. 540.

The essential questions presented by the trial court's striking from appellants' original and first amended complaint the allegation of destroyed business access to their business property are (a) whether the destruction or impairment of access constitutes a taking of property, and (b) whether destroyed or impaired access must be accompanied by a taking of physical property to constitute an element of damage.

Idaho Const. Art. I, sec. 14, provides:

'Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor.'

Idaho Sees.Laws 1951, ch. 93, sec. 15(9), (codified as I.C. sec. 40-120, with later amendments) in force in 1952 when this cause of action arose, provided that respondent Board of Highway Directors shall have the power to:

'Purchase, condemn or otherwise acquire (including exchange), any real property, either in fee or in any lesser estate * * *.' (Emphasis supplied).

In Idaho etc. Ry. Co. v. Columbia etc. Synod, 20 Idaho 568, 119 P. 60, 65, 38 L.R.A.,N.S., 497, it was argued that Idaho Const. Art. I, sec. 14, provides payment of just compensation only for private property 'taken' and does not provide for payment of damages sustained, citing in support thereof various state Constitutions which, unlike Idaho's, contain the additional damage clause. In disposing of such contention the Court said:

'While our constitutional provision omits the words 'or damaged' which are found in many Constitutions immediately following the word 'taken' as it occurs in our Constitution, this provision does not prevent the Legislature from adding the requirement that compensation be made for the damages sustained to the remaining property by reason of the taking; in other words, the omission of the words 'or damaged' from the Constitution does not prevent the Legislature from imposing a condition to that effect by statutory enactment. * * * it [the Legislature] has not authorized the collection of damages under the eminent domain statute previous to the taking, where there is no actual physical taking of the property, but it has provided that the damages done to the remaining portion of the property from which the condemned portion is taken shall be paid before the condemnor is allowed to take the property sought.'

I.C. sec. 7-711, relating to the assessment of damages, provides in part:

'The court, jury or referee 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 or 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 accure 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. * * *.'

This section of the statute...