Lange v. State

Decision Date18 March 1976
Docket NumberNo. 43484,43484
Citation86 Wn.2d 585,547 P.2d 282
PartiesCarl R. LANGE et al., Appellants, v. STATE of Washington, Respondent.
CourtWashington Supreme Court

Beresford, Booth, Lehne & McKisson, Wayne C. Booth, Seattle, for appellants.

Slade Gorton, Atty. Gen., William G. Boland, Asst. Atty. Gen., Olympia, for respondent.

UTTER, Associate Justice.

Appellants Lange, et al., in October 1970, brought an inverse condemnation action alleging there had been 'de facto' taking of their property by the State of Washington, Department of Highways. Approximately one year later, the State filed a condemnation action to acquire appellants' property for highway purposes. The trial court dismissed the inverse condemnation claim and awarded appellants compensation based upon the value of their property at the time of trial in the eminent domain proceeding. The issue presented is whether, under the facts of this case, appellants' property is to be valued as of a date earlier than the time of trial. We hold that it may, reverse the trial court judgment, and remand for further findings.

Appellant Lange has been engaged for 25 years in the business of purchasing, subdividing and developing real property into residential building sites. The assemblage of 15 parcels, which is the subject of this appeal, was acquired by Lange in several independent purchases between 1958 and 1965. In preparation for the development of this land, appellant Lange petitioned for and had the property annexed to the local sewer district in 1966. He also imposed on all of the land, by deed conveyance, mutual easements for sewer, water, and access. Some surveying and grading of streets over a portion of the area was undertaken as well.

Late in 1966, Lange noticed surveying engineers on his land and was advised that they were under contract with the State, which proposed to run a highway through Lange's property. In February 1967, the State Highway Department delivered to the City of Des Moines, to which appellants' land was eventually annexed, an aerial photograph with an overlay showing the proposed route of state highway SR 509. In May 1967, the department issued a press release, published in the Seattle Times, stating that federal and state funds were to be used for acquisition of land along the proposed route. On May 25, 1967, in response to an inquiry by Lange, the highway department stated that the proposed highway would affect virtually all of the Lange property and that the present schedule called for right-of-way purchases beginning in late 1968.

On July 6, 1967, the State Highway Department held a public hearing for route corridor selection at which department officials advised the public and Mr. Lange, who was present, that property acquisition, including the Lange property, would be completed in 1969. In March 1969, the department issued a proposed design and limited access proposal. At a public hearing in May 1969, the department indicated there would be a delay in acquisition of appellants' property until some undetermined date. On July 22, 1969, the highway commission entered an order approving the design, a copy of which was received by appellant Lange on October 9. In October 1969, the State purchased a large tract a few blocks north of appellants' property for a price of $431,071.50. In late October, the highway was approved as an advance right-of-way project. On December 1, 1969, the State issued its formal notice under RCW 47.28.025 and 47.28.026 describing the location and width of the proposed highway. This notice was filed with the county auditor on January 16, 1970.

For several months in 1970, appellants communicated with the highway department about the schedule for acquisition of their property. Appraisal of the Lange property began on September 9, 1970. On October 30, 1970, appellants instituted their inverse condemnation action. Between February 25 and July 15, 1971, the highway project was temporarily stopped due to withdrawal of approval by the City of Des Moines. On September 29, 1971, the condemnation process began and a Notice of Condemnation was filed in superior court in early October 1971. On November 30, 1971, the State paid possession and use money in the sum of $114,000 into the registry of the court. A consolidation of the inverse condemnation and condemnation actions was stipulated and the case came on for trial without a jury on September 25, 1972. In its memorandum opinion, the trial court ruled that no 'taking' of appellants' property occurred prior to the institution of condemnation proceedings by the State and that the valuation date was the date of trial. As compensation for the appropriation of their property, appellants were awarded $134,911.

Appellants contend that the cumulative effect of the actions of the State in surveying, issuing press releases, acquiring nearby property, and implementig its plans for the highway amounted to 'condemnation blight' and a 'taking' of their property in December 1969 See 4 Nichols on Eminent Domain § 12.3151(5) (3d rev. ed. 1975). In support of their position, appellants rely upon Drakes Bay Land Co. v. United States, 424 F.2d 574, 191 Ct.Cl. 389 (1970), Foster v. Detroit, 254 F.Supp. 655 (E.D.Mich.1966) Aff'd, 405 F.2d 138 (6th Cir. 1968), Madison Realty Co. v. Detroit, 315 F.Supp. 367 (E.D.Mich.1970), In re Urban Renewal, Elmwood Park Project, 376 Mich. 311, 136 N.W.2d 896 (1965), and similar cases. We agree with the trial court that these cases are distinguishable from the present one in that they involved unwarranted delay coupled with a affirmative action by the condemning authority resulting in a decrease in property value, actual encouragement of neighborhood deterioration by the condemning authority, direct interference by the condemning authority to prevent development by the landowner, or other abusive conduct. In this case, the trial court acknowledged the delay in the commencement of condemnation proceedings to acquire the Lange property, but found that the delay was not unreasonable in light of the problems encountered. There was no evidence of intentional delay on the part of the State so as to obtain the property at a depreciated value. The court specifically found that no action was taken by the State here which is not taken in every highway project and that a 'taking' of appellants' property did not occur prior to the institution of the eminent domain proceeding. City of Buffalo v. J. W. Clement Co., 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895 (1971); Klopping v. Whittier, 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345 (1972); Empire Construction, Inc. v. Tulsa, 512 P.2d 119 (Okl.1973), Cert. denied, 414 U.S. 1094, 94 S.Ct. 725, 38 L.Ed.2d 551 (1973).

However, these conclusions of themselves do not require affirmance of the trial court's judgment nor should they exhaust our inquiry in cases such as this. When private property is taken for public use, our constitution requires the payment of 'just compensation.' Const. art. 1, § 16. In the scheme established by the legislature for the procurement of land by the State, the amount of compensation required to satisfy the constitutional mandate is a matter for judicial determination. RCW 8.04.092, 8.04.110. In discharging this obligation, the courts must be guided by considerations of fairness and justice. 'The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness (citation omitted) as it does from technical concepts of property law.' United States v. Fuller, 409 U.S. 488, 490, 93 S.Ct. 801, 803, 35 L.Ed.2d 16 (1973); Cf. United States v. Virginia Electric & Power Co., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961). The reason for the existence of the just compensation language in the state and national constitutions is to ensure the fair treatment of individuals whose rights in property must at times be subordinated to the needs of society as a whole. State Road Department v. Chicone, 158 So.2d 753 (Fla.1963); See generally Property, Utility, and Fairness: Comments on the Ethical Foundations of 'Just Compensation' Law, 80 Harv.L.Rev. 1165 (1967).

It is well established that the condemnee is entitled to be put in the same position monetarily as he would have occupied had his property not been taken. Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 473--74, 93 S.Ct. 791, 35 L.Ed.2d 1 (1973); Redevelopment Authority of Philadelphia v. Lieberman, Pa., 336 A.2d 249, 251 (1975); United States v. 564.54 Acres of Land, 506 F.2d 796, 799 (3d Cir. 1974). 'While the owner is forced to sell, he is not to receive by reason of that fact a lesser amount than the property would fairly bring upon the market.' , Chelan Electric Co. v. Perry, 148 Wash. 353, 358, 268 P. 1040, 1042 (1928). In carrying out our duty to achieve fairness in condemnation awards, we have recognized that just compensation must be calculated from the standpoint of what the property owner loses by having his property taken, not by the benefit which the property may be to the condemnor. State ex rel. Polson Logging Co. v. Superior Court, 11 Wash.2d 545 570, 119 P.2d 694 (1941). The condemnor 'must make Full compensation for what he takes.' State ex rel. Polson Logging Co. v. Superior Court, supra at 569, 119 P.2d at 706. (Italics ours.)

We have repeatedly recognized that 'property,' as used in the constitutional phrase, encompasses many rights.

'Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal. Anything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right.'

Ackerman v. Port of Seattle, 55 Wash.2d 400, 409, 348...

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