Ken-Crete Products Co. v. State Highway Commission

• Decision Date: 30 June 1964
• Docket Number: KEN-CRETE
• Citation: 24 Wis.2d 355,129 N.W.2d 130
• Parties: PRODUCTS CO., a Wis. corporation, Respondent. v. STATE HIGHWAY COMMISSION of Wisconsin et al., Appellants.
• Court: Wisconsin Supreme Court

Page 130

129 N.W.2d 130

24 Wis.2d 355

KEN-CRETE PRODUCTS CO., a Wis. corporation, Respondent. v. STATE HIGHWAY COMMISSION of Wisconsin et al., Appellants.

Supreme Court of Wisconsin.

June 30, 1964.

Mittelstaed, Heide, Sheldon & Hartley, Kenosha, for appellants.

Wickhem, Consigny & Sedor, Janesville, John E. Malloy, Kenosha, for respondent.

CURRIE, Chief Justice.

The two issues presented by this appeal are:

(1) Did the trial court err in receiving evidence as to the cost of installing an overhead conveyor which allegedly was necessary to maintain the same cost of production in Ken-Crete's plant as existed before condemnation?

(2) Did the trial court err in refusing to take testimony as to whether the jury returned a quotient verdict?

Receipt of Evidence with Respect to Cost of Installing Overhead Conveyor

As a result of the taking of the .44 acres, Ken-Crete was deprived of the use of this land on which to store piles of sand and gravel used in the manufacture of its concrete blocks. After the taking, Ken-Crete leased some land to the west owned by a railroad company adjoining Ken-Crete's premises, and now its supply of sand and gravel is stored on this leased land. The aggregate is now brought by trucks and dumped there. The concrete block manufacturing plant is located close to the east boundary of Ken-Crete's property, and other buildings occupy the south portion of its remaining premises, so Ken-Crete had no available land abutting on the highway available for storing sand and gravel, which necessitated the leasing of the railroad premises for such purpose.

Before the taking, a 'loader' or elevator carried the sand and gravel up to the hopper where it would be loaded into the machines which manufactured the blocks. One employee operated both the loader and the automatic machinery used in manufacturing the blocks. After the taking, the sand and gravel had to be transported to the manufacturing plant, a distance of approximately 240 feet from where it was stored on the leased land.

Three expert witnesses, Kerr, Williams and Wolf, all with long experience with concrete block manufacturing machines, were permitted to testify, over the objection of the condemnors, that the most economical way of transporting this sand and gravel from the stock piles on the leased land to the block manufacturing plant would be by installing an overhead conveyor system. The estimated cost of the overhead conveyor as testified to by the witness, Kerr, was $43,900. Ken-Crete called two experienced realtors, Bear and Pfennig, to testify to the value of its premises before and after the taking. Bear, in his testimony, stated, that he had consulted with Kerr, Williams and Wolf in familiarizing himself with the machinery involved and that in his judgment a well-informed buyer would consult with such experts before making a decision regarding the property. Pfennig's testimony made no reference to that of Kerr, Williams and Wolf.

The condemnors contend it was prejudicial error to admit the testimony of Kerr, Williams and Wolf with respect to the advisability of installing the overhead conveyor and the cost of such installation. Their principal argument in support of this contention is that such conveyor would constitute a capital improvement for which recovery may not be had under sec. 32.09(6), Stats. ¹

Under sec. 32.09(6), Stats., the measure of damages in a condemnation proceeding where there is a severance is the difference between the fair market value of the whole property immediately before the taking and the fair market value of the remainder immediately thereafter. By use of the phrase 'and without restriction because of enumeration' found in sec. 32.09(6), Stats., it seems reasonable to conclude that the legislature intended that every element which affects fair market value should be considered. This is in accord with the great weight of authority. See 4 Nichols, Eminent Domain (3d ed. 1962), sec. 12.1, pp. 3 et seq., where the author states (at p. 4) that 'All elements of value which are inherent in the property merit consideration in the valuation process.' The author also states that evidence is admissible that the remainder area is no longer capable of use for a particular purpose or that its purpose or that its facility therefor has been impaired. See 4 Nichols, supra, sec. 14.243 and cases cited at note 4, p. 580. These principles were approved by this court in Carazalla v. State (1955), 269 Wis. 593, at pages 608(b)-608(c), 70 N.W.2d 208, 71 N.W.2d 276, at page 278 (on rehearing), where the court stated:

'* * * in case of a partial taking of land by eminent domain any damages to the remaining land, which results from the use to which the parcel taken is to be devoted, is a proper item to be included in determining the value of the owner's remaining land after the taking.' (Emphasis supplied.)

It is conceded that the highest and best use to which Ken-Crete's premises might be devoted at time of taking was a concrete block manufacturing plant.

The testimony with respect to the advisability and cost of installing the overhead conveyor was not offered by KenCrete to establish a separate item of damages, but only as an element to be considered in arriving at the value of the remainder of its property after the taking. The underlying theory is that a prospective purchaser would pay $43,900 less for the premises after the taking than before, if he would have to expend that amount to provide a facility to enable the block manufacturing plant to continue to operate at the same capacity as before the taking. Under this theory, as borne out by the testimony of Ken-Crete's expert witnesses, the expenditure of this $43,900 would not cause the value of the remaining premises to exceed the value of the whole premises as they existed before the taking. The jury had the right to accept the testimony which substantiated this theory.

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