Oregon Short Line R. Co. v. Jones

• Citation: 29 Utah 147,80 P. 732
• Decision Date: 11 April 1905
• Docket Number: 1595
• Court: Supreme Court of Utah
• Parties: OREGON SHORT LINE R. CO. v. JONES et al. (Three Cases.)

80 P. 732

29 Utah 147

OREGON SHORT LINE R. CO. v. JONES et al. (Three Cases.)

No. 1595

Supreme Court of Utah

April 11, 1905

APPEAL from District Court, Salt Lake County; S.W. Stewart, Judge.

Actions by the Oregon Short Line Railroad Company against William R Jones, Jr., and others. From judgments in favor of plaintiff in each case, defendants therein appeal.

AFFIRMED.

N. V Jones for appellants.

P. L Williams and G. H. Smith for respondents.

STRAUP, J. McCARTY, J., concurs. BARTCH, C. J., concurs in the judgment.

OPINION

STRAUP, J.

These actions (three of them) were commenced by respondent against appellants to condemn certain lots situated in Salt Lake City. By agreement of parties the actions on appeal are consolidated and this opinion disposes of all of them. Appellants appeal from the final judgment and order of condemnation, and the only question presented is whether the appellants were entitled to interest upon the assessment of compensation, as found by the jury, from the date of the service of summons in the action.

Sections 3593, 3594, Revised Statutes 1898, provide that proceedings for condemnation must be brought in the district court for the county in which the property, or some part thereof, is situated, and provide what the complaint must contain. Section 3596 provides that the issues pertaining to the question as to the use to which the property is to be applied is a use authorized by law; that the taking is necessary to such use, and the hearing and determination of other matters not here necessary to enumerate are for the court. Section 3598 provides that:

"The court, jury, commissioners, or referee must hear such legal testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess: (1) The value of the property sought to be condemned and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein; if it consists of different parcels, the value of each parcel and of each estate or interest therein shall be separately assessed."

It also provides for the assessment of damages, where the property sought to be condemned constitutes only a part of a large parcel, which will accrue to the portion not sought to be condemned by reason of its severance, and the construction of the improvements in the manner proposed, and the amount of damages to the property, though no part thereof is taken, and provides also for the ascertainment and allowance of benefits, and other matters not here important to state. Section 3597 provides that the plaintiff may move the court at any time after the commencement of the suit, on notice, for an order permitting him to occupy the premises sought to be condemned pending the action, and to do such work thereon as may be required for the easement sought, according to its nature, and provides that the court shall take proof, by affidavit or otherwise, of the value of the premises sought to be condemned, and the damages which will accrue from the condemnation, and of the reasons for requiring a speedy occupation, and shall grant or refuse the motion according to the equity of the case and the relative damages which may accrue to the parties. If the motion is granted the plaintiff shall execute a bond to the defendant, with sureties, conditioned to pay the adjudged value of the premises and all damages and costs. Section 3599 provides:

"For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the service of summons, and its actual value at that date shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken, but injuriously affected, in all cases where such damages are allowed, as provided in the last section [3598]. No improvements put upon the property subsequent to the date of the service of summons shall be included in the assessment of compensation or damages."

Section 3601, provides:

"The plaintiff must, within thirty days after final judgment, pay the sum of money assessed," etc.

Section 3602 provides:

"Payment may be made to the defendants entitled thereto, or the money may be deposited in court for the defendants and be distributed to those entitled thereto. If the money be not so paid or deposited, the defendants may have execution as in civil cases; and if the money cannot be made on execution, the court upon a showing to that effect, must set aside and annul the entire proceedings, and restore possession of the property to the defendants if possession has been taken by the plaintiff."

Section 3603 provides:

"When payments have been made . . . as required by the last two section, the court must make a final order of condemnation, which must describe the property condemned, and the purpose of such condemnation. A copy of the order must be filed in the office of the recorder of the county, and thereupon the property described therein shall vest in the plaintiff for the purposes therein specified."

Section 3604 provides:

"At any time after the entry of judgment, or pending an appeal from the judgment to the Supreme Court, whenever the plaintiff shall have paid into court for the defendant the full amount of the judgment, and such further sum as may be required by the court as a fund to pay any further damages and costs that may be recovered in said proceedings, as well as all damages that may be sustained by the defendant, if for any cause the property shall not be finally taken for public use, the district court in which the proceeding was tried may, upon notice of not less than ten days, authorize the plaintiff, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency of and until the final conclusion of the litigation," etc.

These actions were commenced by service of summons on the 19th, and the filing of a complaint on the 25th, day of March, 1903, for condemnation of the fee title, and for the actual taking of the whole and of each and every part of said lots. In due time the defendants appeared and answered, denying all the allegations of the complaint, except their ownership of the land and the corporate existence of the plaintiff. Plaintiff did not ask for and did not have the possession of said lots, or any part thereof, before trial and final order of condemnation, and until then defendants remained in and had possession of the same. The cases came on regularly for trial before the court and jury from the general panel on the 15th and 21st days of March, 1904. The only matter submitted to the jury for their determination was the compensation which should be paid to the defendants by the plaintiff. The court charged the jury that the basis of this compensation should be the value of the land and the improvements thereon pertaining to the realty, and "your assessment of the value of the property is to be based upon what the evidence shows you was the value thereof on the 19th day of March, 1903 [being the date of the service of summons]; and the defendants are entitled to a verdict which will compensate them for the loss of their property to be taken by the plaintiff, and your verdict should be for its actual market value on the 19th day of March, 1903." The defendants requested the court to charge the jury "to compute interest at eight per cent, per annum from the 19th day of March, 1903 [the date of service of summons], to date of rendering verdict, on the aggregate amounts allowed to each of the defendants, deducting therefrom the rental value of the premises from such amount from March 19, 1903, to date of rendering the verdict, and to include and return the same in the verdict.'" The court refused to give this request, which refusal is now here assigned as error.

Under section 3599, appellants urge that the right to compensation accrues and is due on the date of the service of summons, and because thereof, and because no improvements put upon the property subsequent to that date shall be included in the assessment of compensation of damages there is when the summons is served, such an interference with the full enjoyment and ordinary benefits of the property by the owner, and such an invasion of his rights thereto, as to amount, in legal effect, to a taking, within the meaning of the Constitution, providing that "private property shall not be taken or damaged for public use without just compensation." And it is claimed, as the property was taken on that date, and as compensation therefor then became due, appellants were entitled to interest thereon from the date of the service of summons to verdict, less rents and other benefits of possession received by them covering the same period. When all the provisions and proceedings relating to the eminent domain act for condemnation of property are considered we are persuaded that appellants' claim cannot prevail. In determining this claim to interest, much depends upon when, in the proceedings, the taking of the property took place. While the law is most exacting that private property shall not be taken without compensation, still the condemner is not required to make that compensation until he does take, either actually or constructively. The cases cited by appellants on what constitutes a taking are not pertinent to the matter of inquiry. In earlier times it was held that property could be deemed to be taken, within the meaning of constitutional provisions, only when the owner was wholly deprived of its possession, use, and occupation. But a more liberal doctrine has long been established and an actual, physical taking of property is not necessary to entitle its owner to compensation. A man's...