Lineburg v. Sandven

• Decision Date: 28 February 1946
• Docket Number: No. 6991.,6991.
• Citation: 21 N.W.2d 808,74 N.D. 364
• Parties: LINEBURG v. SANDVEN et al.
• Court: North Dakota Supreme Court

74 N.D. 364

21 N.W.2d 808

LINEBURG

v.SANDVEN et al.

No. 6991.

Supreme Court of North Dakota.

Feb. 28, 1946.

Appeal from District Court, Benson County; H. C. DePuy, Judge.

Proceedings by George Lineburg, as administrator of the estate of John G. Jacobson, deceased, before K. B. Sandven and others, as the Board of County Commissioners of Benson County, for determination of the damages sustained by the estate as the result of establishment of a highway across a farm owned by the estate. From a judgment determining the amount of compensation to which petitioner was entitled on appeal from the Board's determination, the Commissioners and J. S. Lamb, State Highway Commissioner, appeal.

Modified, with directions.

Syllabus by the Court.

1. Where, on an appeal from a decision made by a Board of County Commissioners in a proceeding instituted before such Board by the state highway commissioner for ascertainment and determination of damages resulting from the taking of land for highway construction, trial by jury is waived and the issues of fact are tried to the district court without a jury, the findings of fact as to the value of the land taken and consequential damages are entitled to appreciable weight on an appeal to the Supreme Court, where a trial anew is demanded in the Supreme Court.

2. Where part of a larger tract of land is taken for public use in the construction of a highway no deduction may be made, from the amount of compensation which the owner of the land is entitled to recover for damages resulting to the residue of the larger tract by reason of the severance of the same from the tract taken, for such general benefits as will accrue to and be received by the whole community, and which will flow to the public in general from the highway improvement.

3. Where a highway is established across a farm on which there is a set of permanent farm buildings, which farm including the buildings thereon constitutes, and is maintained and operated as, a single unit; and a part of such farm is taken for highway purposes and the buildings remain upon the part of the land not taken, the land and the buildings upon it constitute one piece of property, and the value of the farm before the severance is to be ascertained by considering the property as a whole.

4. Where a Board of County Commissioners in assessing the damages resulting from the taking of a part of a tract of land for highway purposes made an allowance for a fence, and on appeal to the district court neither of the parties challenge the correctness of such allowance and by their conduct imply that the allowance so made by the Board of County Commissioners is satisfactory, they cannot be heard to say in the Supreme Court that the district court erred in including in the compensation adjudged to be due to the owner of the land the amount of the allowance made for the fence by the Board of County Commissioners.

5. On appeal to the district court from a decision of a Board of County Commissioners made in a proceeding instituted on the petition of the state highway commissioner for the ascertainment and determination of damages resulting from the taking of land for highway purposes, the members of the Board of County Commissioners are not proper parties respondent and judgment may not be rendered against them. Judgment may be rendered alone against the state highway commissioner that he ‘pay, or cause to be paid’ the award of damages ‘from the state highway fund, into court, for the benefit of the owners of land to whom such awards have been made, by depositing with the clerk of court of such county cash in the amount of such award or awards'.

6. Where property is taken or damaged for a public use without just compensation having been first made, payment is legally due the owner as of the date of the taking or damaging of the property and interest should be given from the date when the property is taken or damaged.

L. L. Butterwick, of Minnewaukan, for appellants.

F. T. Cuthbert, of Devils Lake, for respondent.

CHRISTIANSON, Chief Justice.

This controversy arises out of the laying out of a public highway across a certain farm adjacent to the village of Church's Ferry. The farm contains 286.57 acres of land. It is sought to take a strip across the farm, containing 21.88 acres, for highway purposes. The farm is part of the estate of John G. Jacobson, deceased. The parties were unable to agree upon the damages resulting from the establishment of the highway, and proceedings were instituted before the Board of County Commissioners for ascertainment and determination of the damages sustained by the owner of the farm as a result of the establishment of the highway. N.D.R.C.1943, Sec. 24-0119.

After hearing duly had the Board of County Commissioners made an award fixing the amount of damages sustained by the owner of the farm as a result of the establishment of the highway, as follows:

+----------------------------------------------+
                ¦Value of the land (21.88 acres) taken¦$437.80 ¦
                +-------------------------------------+--------¦
                ¦Value of fence                       ¦187.50  ¦
                +-------------------------------------+--------¦
                ¦Damages to lands not taken           ¦374.70  ¦
                +-------------------------------------+--------¦
                ¦Making a total of                    ¦$1000.00¦
                +----------------------------------------------+
                

George Lineburg, the administrator of the estate of John G. Jacobson, being dissatisfied with the award, appealed to the district court from the determination of the Board of County Commissioners. N.D.R.C.1943, Sec. 24-0123.

On the trial had in the district court a jury was waived and the case was tried to the court without a jury. It was stipulated that the only question for determination by the court was the amount of damages; the necessity for the establishment of the highway and the taking of the strip of land for right of way was conceded.

The record discloses that considerable testimony was adduced by the respective parties upon the question of damages. Seven witnesses were called by the administrator, and six witnesses were called by and on behalf of the state highway commissioner, to testify as to damages.

The trial judge filed a memorandum decision wherein he stated his conclusions with respect to the law and the facts in this case, as follows:

‘This is an appeal from the award by the Board of County Commissioners of Benson County for compensation for a strip of land across the farm of appellant taken by condemnation proceedings for highway purposes.

‘Appellant's property, a part of which is taken and the remainder claimed to be damaged, consists of 286.57 acres of farm land with adequate buildings and improvements operated as a single unit in Benson County in this State.

‘The land condemned for highway purposes consists of a strip 200 feet wide across said farm, said strip containing in all 21.88 acres and thus cutting the farm into two parcels, one parcel lying to the north of the proposed highway containing about 216 acres and one parcel lying to the south containing about 48 acres.

‘The law applicable to this case seems to be pretty well settled for this jurisdiction. The compensation to which appellant is entitled is the difference between the actual market value of appellant's property considered as a whole at the date of the trial before the severance of the property condemned and the actual market value of the remainder of the property after the appropriation of that part condemned.

‘Title to the land taken passes to the State.

‘As far as practicable the compensation to which appellant is entitled must be assessed separately for the 21.88 acres actually taken and for the damages by reason of the severance to that which is not taken and the title to which remains in the appellant.

‘The north side of the farm is bounded by the G. N. Railroad highway. The proposed highway runs in an easterly-westerly direction south of the railroad and nearly parallel therewith so that the remaining parcel between the railroad and the highway consists of an oblong square, more particularly described as in the form of an irregular parallelogram, the length of which equals the width of the farm and the width of which is 115 1/2 rods at the east end, 150 rods at the center and 137 rods at the west end, such remaining north parcel containing about 216 acres.

‘The remaining parcel south of the highway consists of a parcel in the form of a somewhat irregular truncated triangle bounded on the north by the highway and on the east, west and south by the boundaries of the farm and this south parcel containing about 48 acres. * * *

‘The estimate of the market value by the witnesses was largely based on an acreage value and ranged all the way from $30.00 an acre by appellant's witnesses and by one witness as high as $35.00 an acre, down to $20.00 an acre and even less by respondent's witnesses. The actual market value of the farm as a unit before and after the taking was apparently between the extremes testified to and taking into consideration all of the circumstances and the recognized fact that the money market is easy and the farm land market is active, all of which tended to increase the market value of farm lands in Benson County at the time of the trial, it is the opinion of the Court and the Court finds that the value of the farm in question at the time of trial before the taking was $27.00 an acre.

‘Accordingly the Court finds that the (value of the) 286.57 acre farm involved before the taking was $7737.39.

‘That the value of the 21.88 acres taken was $590.76.

‘It is stipulated that there is 1 1/2 miles of three wire fence involved for which the Commissioners allowed appellant at the rate of $125.00 per mile, in all $187.50. * * * ‘The Court also finds that the value of the 264.69 acres remaining is damaged to the extent of $7.00 an acre, making its value after the taking $20.00 an acre, so that the Court finds that the farm unit after the...