Mabe v. State ex rel. Rich, 9204
Citation | 385 P.2d 401,86 Idaho 254 |
Decision Date | 26 September 1963 |
Docket Number | No. 9204,9204 |
Parties | Orville O. MABE, and Edna Mabe, Husband and Wife, Plaintiffs-Appellants, v. The STATE of Idaho, on relation of Roscoe C. RICH, Ernest F. Gaffney and Wallace C. Burns, the Board of Highway Directors, Defendant-Respondent. |
Court | United States State Supreme Court of Idaho |
Clemons, Skiles & Green, Elam, Burke, Jeppesen & Evans, Boise, for appellants.
Allan G. Shepard, Atty. Gen., Boise, Faber F. Tway, Chief Legal Counsel, Department of Highways, Anton Hohler and W. Kent Naylor, Boise, for respondent.
In the prior opinion in this action, Mabe v. State, 83 Idaho 222, 228, 360 P.2d 799, 802, the District Court entered its order granting respondent's motion for summary judgment against appellants Mabe and wife, which order was reversed by this court and the cause remanded with the following statement:
The case was thereafter tried before a jury which returned a verdict of $4,208.33 in favor of appellants. The respondent timely moved for judgment notwithstanding the verdict. The court entered judgment for respondent. The district judge premised his order upon the ground 'that plaintiffs failed to prove any compensable damages as defined by the Idaho Supreme Court in its opinion in this case filed March 31, 1961.'
The facts show appellants were the contract purchasers of a cafe and service station called 'Crater Station', which real property abutted on the highway which was formerly the main interstate highway designated as U. S. Highway 30, 20 and 26, and which was also the local thoroughfare between Boise and Mountain Home, Idaho. The respondent under Idaho Highway Project I-82-2(1) 83 constructed a new interstate highway approximately 2000 feet northwest of and parallel with the old U. S. Highway. This new interstate highway is part of the National System of Interstate and Defense Highways and appellants will have no direct access to it from their land. The old highway continues to exist unchanged for a distance of about 3.5 miles to the west and 4.7 miles to the east. Appellants' direct access between their property and the old highway remains unchanged and is in no way interfered with.
The testimony showed further that traffic coming into appellants' property from the east could turn off the interstate highway at a place 4.7 miles east of appellants' property and proceed without obstruction down the old U. S. highway to the station. However, there is no interchange constructed at this turn off and west bound traffic must necessarily cross through east bound traffic. The testimony concerning the route traffic on the new interstate highway must take in order to reach appellants' property from the west, is conflicting. Appellant Mabe testified:
'* * * they would have to turn off back out there at Mayfield [an interchange some miles to the west] and turn off to the left, which would be east, and line through the sagebrush and up toward Dan Skin Mountain and back out into the sagebrush and then over the overpass just the other side of the Crater Station, which is twenty miles from the Crater Station before you get back on the Freeway again.'
Respondent's witness Leonard, an engineer of the Idaho Department of Highways, testified that he drove from the west to the Mabe property on the morning of the trial, tracing his route on an exhibit; that he travelled a distance of about fourteen miles from where he left the Interstate at Interchange No. 2, travelling over paved and gravel roads, and that the distance from appellants' property to Interchange No. 2 by the old route was 11.7 miles.
Assuming, but without deciding the question, that there was sufficient evidence for the jury to determine that access to appellants' property has been substantially impaired, the question remains whether appellants proved any compensable damages.
In Mabe v. State, supra, we said, 'Appellants, as they recognize in their brief, are without remedy for any loss of value of their property by reason of diversion of traffic, occasioned by the creation of the new highway.' The record discloses that appellants' estimate of damages they claim to have suffered was testified to by two witnesses in addition to appellant Mabe. An examination of this testimony discloses that each witness premised his estimate of damages upon some elements that are non-compensable.
On direct examination appellants' witness Emmett Newell testified as follows:
'A. $25,000.
On cross-examination Mr. Newell gave the following testimony:
The testimony of witness C. C. Campbell on direct examination was as follows:
'A. $22,640.
On cross-examination Mr. Campbell testified:
The appellant Orville Mabe testified that the market value of this property prior to construction was at least $25,000 and that after construction of the new highway its only value would be for grazing land. On cross-examination Mr. Mabe was asked, 'How much of this damage do you attribute to loss of traffic in front of your business?' He answered:
However, in Mabe v. State, supra, we stated that diversion of traffic is non-compensable in an inverse condemnation proceeding and cannot be considered as an element of damage. See also: Village of Hazleton & Eden v. Idaho Bd. of Hwy. Div., 83 Idaho 554, 566, 367 P.2d 294 and 301. Therefore, it necessarily follows, in this type of proceeding, that the measure of damages cannot be the full difference in the value of property before and after construction; the...
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...of such traffic by the state authorities is noncompensable. Rayburn v. State, 93 Ariz. 54, 58, 378 P.2d 496 (1963); Mabe v. State, 86 Idaho 254, 385 P.2d 401 (1963); People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799, 804 While the difference between the 'before' and the 'after' value of real......
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