Morrison v. Cottonwood Development Co.

• Decision Date: 02 April 1928
• Docket Number: 1419,1421
• Citation: 266 P. 117,38 Wyo. 190
• Parties: MORRISON v. COTTONWOOD DEVELOPMENT CO. [*] TODD v. SAME
• Court: Wyoming Supreme Court

266 P. 117

38 Wyo. 190

MORRISON v. COTTONWOOD DEVELOPMENT CO. ^[*]

TODD v. SAME

Nos. 1419, 1421

Supreme Court of Wyoming

April 2, 1928

ERROR to District Court, Sublette County; JOHN R. ARNOLD, Judge.

Action by the Cottonwood Development Company against John H Morrison and against W. I. Todd and others for the condemnation of property for the right of way for an irrigation canal. From the judgment, defendants named bring error.

Affirmed.

O. N Gibson, A. H. Maxwell, and Louis Kabell, Jr., for plaintiffs in error.

The cross examination can only relate to facts and circumstances connected with the matters stated in the direct examination; Jones Evidence, (3rd Ed.) Sec. 820; Seifert v. Schieble (Kans.) 105 P. 529; Citizens Bank v. Warfield, (Nebr.) 123 N.W. 315; Woods v. Faurot, (Okla.) 77 P. 346; Circleville v. Sohn, 20 Oh. C. C. 368. The owner of real estate is presumed to be suffiicently acquainted with it to estimate its value, although his knowledge may not be such as would qualify him as an expert on values, 22 C. J. 587; Ish v. Marsh, (Nebr.) 96 N.W. 58; McCaffree v. Ry. Co., (N. D.) 134 N.W. 749; Hertzog v. Co., (Wash.) 131 P. 806. Forced sales lack the element of relevancy and are not admissible as a test of value, 22 C. J. 181; Fahey v. Updyke, (Nebr.) 166 N.W. 622; Hammond v. Decker, (Tex.) 102 S.W. 453; Blanchard v. Droddy, 132 S.W. 946; In re McAusland, 235 F. 173. Where by taking a part of the tract, additional fencing will be necessary to the reasonable use and enjoyment of the remainder, and the burden of constructing such fence is cast upon the owner of the land, then the cost of constructing and maintaining the same is, in so far as it depreciates the value of the land, a proper element to be considered in estimating the damages, Louis Em. Domain, Sec. 741; Butts Co. v. Boydston, 64 Cal. 110; Stone v. Heath, 135 Mass. 561; 5 Ency. Ev. 231; Martin v. Ry. Co., 15 Wyo. 493; Mulford v. Farmers etc. Co., (Colo.) 161 P. 301. As the damages must be assessed once for all and as the taker may obviate all difficulty by stipulating to construct the works in a specified way, the rule is that the damages are to be assessed on the basis of the most injurious mode of construction that is reasonably possible, consistent with the law and the terms of the contract, Cleveland etc. Co. v. Hadley, (Ind.) 101 N.E. 473; Brainard v. Clapp, (Mass.) 57 Am. Dec. 74; Elliott Railways, (2nd Ed.) Sec. 946B; Nichols Em. Domain, Sec. 126. If the construction of the proposed canal increased the possibility of injuries to live stock kept on the premises, this circumstance was competent upon the question of its probable effect upon the value of the land; 20 C. J. 791; R. Co. v. Porter, (Mo.) 20 S.W. 568; R. Co. v. Vance, (Penn.) 8 A. 764; Alloway v. Nashville, (Tenn.) 13 S.W. 123; Los Angeles v. Pomeroy, (Calif.) 57 P. 585, 47 L.Ed. 478; Benninghoff v. Town, (Colo.) 108 P. 983; Russell v. R. Co., (Ark.) 75 S.W. 725; Ry. Co. v. West, 45 N.Y.S. 644. The statute contemplates the allowance of damages to business conducted on the land, as additional compensation, not as alternative relief, 4944, 4945 C. S. 1920; State v. Sup. Ct., (Wash.) 188 P. 546; Min. Co. v. So. Carolina, 36 L.Ed. 537; Tran. Co. v. Pullman Car Co., 35 L.Ed. 55; Slidewell v. Grandjean, 28 L.Ed. 521; 36 Cyc. 1177. The words "and" and "or" when used in the statute are convertible as the sense may require and the substitution of one for the other is frequently resorted to in the interpretation of the statutes when the intention of the law maker requires, 1 Southerland Sec. 252; Manson v. Dayton, 153 F. 258; Williams v. State, (Ark.) 137 S.W. 927; Folmsbee v. Amsterday, (N. Y.) 36 N.E. 821; 2 C. J. 1338 and cases cited; U.S. v. Fisk, 18 L.Ed. 243; Vicksburg R. R. Co. v. Goodenough, (La.) 32 So. 404. The statute authorizing compensation for injury to business conducted upon lands taken or injuriously affected by condemnation proceedings, is constitutional, 20 C. J. 779; Allen v. Com., (Mass.) 74 N.E. 288; Matter of N. Y. Bd., (N. Y.) 105 N.E. 213. Farming and ranching operations constitute a "business" within the meaning of Sections 4944 and 4945 C. S., Allen v. Com., supra; Matter of Bd., 153 N.Y.S. 874; Matter of Bd., (N. Y.) supra. The Court should have reecived the evidence offered tending to show injuries to the business conducted on the land, 1 Southerland Damages, (3rd Ed.) Sec. 80; 3 Southerland, (3rd Ed.) Sec. 867, 869; Earle v. Com., 180 Mass. 579; De Palma v. Weinman, (N. M.) 103 P. 782; 22 C. J. 507 and cases cited. While a sufficient offer of proof of injury to business was made, such offer was unnecessary under the ruling of the court upon the objection made thereto, 9 Enc. Ev. 157; 3 C. J. 827; Murphy v. Brown, (Ariz.) 100 P. 806; Brundage v. Mellon, (N. D.) 63 N.W. 209; Loeb v. Willis, (N. Y.) 3 N.E. 177; Pastene v. Pardini, (Calif.) 67 P. 682. Where there is no market value the actual value may be recovered, 20 C. J. 729; Ry. Co. v. Chapman, (Kans.) 16 P. 695. There being no evidence of market value the instructions submitting the question of market value to the jury were erroneous, 38 C. J. 1623 and cases cited. The giving of contradictory instructions is reversible error, 1 Branson's Inst. to Juries, (2nd Ed.) Sec. 89; 1 Blashfield, (2nd Ed.) 46. In condemnation proceedings the compensation to be paid is to be determined as of the time of the taking, 20 C. J. 826; Van Sheik v. Co., 20 N. J. L. 249; Mullen v. Co., 61 L.R.A. 838; Power Co. v. Hudson, (Calif.) 186 P. 772; Tormey v. Irr. Dist., (Calif.) 200 P. 814; Co. v. Jensen, (Utah) 161 P. 677; 20 C. J. 673. Instructions which give undue prominence to some particular phase or theory of a case are erroneous, 1 Brannon, (2nd Ed.) Sec. 90; 1 Blashfield, (2nd Ed.) 31.

Haggard & O'Mahoney, for defendant in error.

Plaintiffs in error base their claims for extensive damages upon a theory of future seepage, which they seek to establish by expert testimony and contend that the judgment adverse to said contention is not sustained by the evidence. Evidence was offered by defendant against this theory and the finding of the jury should not be disturbed. It was proper to cross-examine witnesses as to the extent of their knowledge concerning values and sales of similar land in the community, Spring Valley Co. v. Drinkhouse, (Calif.) 28 P. 681. Samples of gravel taken from the land were admissible to show its general character; sketches and diagrams were properly used by witnesses in describing the land and its physical condition, irrespective of whether they were drawn to a scale. Expert witnesses were properly qualified; trial courts may exercise their discretionary powers in ruling upon the qualifications of expert witnesses. The state contract was properly excluded for the reason that it referred to the value of water rights and not of the land. Instruction No. 9, complained of, was proper in view of the evidence and is not in conflict with the case of Martin v. Ry. Co., 15 Wyo. 493. Anticipated loss of live stock is not a proper element of damage; Secs. 4944 and 4945 C. S. comprehend all damages resulting from the taking of land; an anticipated injury to business could not be added, In re Board, (N. Y.) 105 N.E. 217. Instruction No. 1 was proper in view of the evidence and should be read in connection with Instruction No. 10. Instructions Nos. 2, 3, 7 and 8 properly stated the law. The cause was fairly tried and the judgment should be affirmed.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

The Cottonwood Development Company, defendant in error here and hereinafter referred to as the plaintiff, is a corporation organized under Wyoming law and vested by that law with the power of eminent domain. Needing a right of way for its irrigation canal, it instituted--in the District Court of Fremont County--two actions for the condemnation thereof. In one action Caroline Rich, Helen Milliken, Mary Wright Elizabeth Miller, Agnes C. Burk, W. I. Todd and A. P. Summers were made defendants. In the other action John H. Morrison was the sole defendant. The cases were ultimately transferred for trial to the District Court of Sublette County, Wyoming, and, by stipulation of the parties, they were consolidated and tried as one action, before a jury. In the first action, the first five named defendants appear to be designated in the record as the "Sutton Heirs"--being the heirs at law under the Sutton Estate. The amount of land appropriated for plaintiff's right of way, thru the lands of the respective defendants, was approximately 25-6/100 acres from the Sutton Estate lands, 25-76/100 acres from the Summers lands, 12-98/100 acres from the Morrison lands, and 8-20/100 acres from the Todd land. The trial consumed some ten days and a voluminous record resulted. The jury, upon the evidence submitted to it and after viewing the lands involved and the right of way appropriated, made its awards to the several defendants, those given to the defendants Todd and Morrison being considerably larger than those allowed the Sutton Heirs and the defendant Summers. In the one case, the Sutton Heirs and Summers acquiesced in and accepted the awards given them by the jury. The other defendant, W. I. Todd, in that case, being dissatisfied, prosecuted proceedings in error to this court--the same being No. 1421. In the other case, the defendant John H. Morrison would not accept the award fixed and also instituted proceedings in error--the same being numbered here as 1419. By agreement of the parties and consent of the court, both Case No. 1419 and Case No. 1421 have been submitted together and without separate briefs. Under this arrangement, both cases can and will be considered and disposed of by one opinion. The owners of...