Palmer v. Highway District No. 1, Bonner County

• Decision Date: 19 July 1930
• Docket Number: 5472
• Parties: WESLEY PALMER and FERN PALMER, Husband and Wife, Respondents, v. HIGHWAY DISTRICT No. 1, BONNER COUNTY, IDAHO, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

290 P. 393

49 Idaho 596

WESLEY PALMER and FERN PALMER, Husband and Wife, Respondents, v. HIGHWAY DISTRICT No. 1, BONNER COUNTY, IDAHO, a Municipal Corporation, Appellant

No. 5472

Supreme Court of Idaho

July 19, 1930

EMINENT DOMAIN-CONDEMNATION PROCEEDING-DAMAGES-EVIDENCE.

1. In action for damages for land condemned, real estate dealers held qualified to testify to value of land taken and damage to tract not taken.

2. Real estate dealers' testimony, while not of highest standard in fixing market values, held sufficient to support verdict in action for damages for condemnation of land.

3. In action for damages for condemnation of land, admitting testimony that land was used as tourist park prior to taking and regarding value for that specific purpose, held not reversible error.

4. Proper elements of damage to remainder of tract after highway location are whatever tend to make land of less value after location than before.

5. Generally, in eminent domain, damages recoverable must be direct and certain, not contingent, remote or speculative.

6. In action for damages for condemnation of land, view by jury cannot be considered as evidence.

7. In action for damages for condemnation of land, there must be sufficient evidence independent of view of premises by jury to support verdict.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. W. F. McNaughton, Judge.

Action to recover damages as for condemnation of land for highway purposes. Judgment for plaintiffs. Affirmed.

Judgment affirmed; costs to respondents.

E. W Wheelan, for Appellant.

Business or the goodwill thereof is not property within the meaning of the statutes relating to eminent domain. In the absence of statutory provision therefor, one whose land is taken or injured cannot recover compensation for loss or interruption of business or trade, inability to perform contracts or inconveniences in carrying on business. (20 C. J., p. 779 citing Oakland v. Pacific Coast Lbr. etc. Co., 171 Cal. 392, 153 P. 705; Sawyer v. Commonwealth, 182 Mass. 245, 65 N.E. 52, 59 L. R. A. 726.)

Loss of profits, present or future, does not constitute an element of damage, and neither the value of the business carried on upon the land taken nor the amount of the profits derived from it is to be considered in determining the market value of the property. The general rule is that damage to be recovered must be direct and certain, contingent, remote or speculative damage, such as loss of speculative profits will not be allowed. (20 C. J., p. 782, citing Laflin v. Chicago etc. R. Co., 33 F. 415; West Chicago Park Commrs. v. Boal, 232 Ill. 248, 83 N.E. 824; Syracuse v. Stacey, 45 A.D. 249, 61 N.Y.S. 165, affirmed 169 N.Y. 231, 62 N.E. 354; Spring City Gas Light Co. v. Pennsylvania S. V. R. Co., 167 Pa. 6, 31 A. 368; Stockton etc. R. Co. v. Galgiani, 49 Cal. 139; Kossler v. Pittsburg etc. R. Co., 208 Pa. 50, 57 A. 66; 20 C. J. 764, citing Los Angeles v. Kerckhoff-Cuzner Mill etc. Co., 15 Cal.App. 676, 115 P. 654; Illinois Central R. Co. v. Roskemmer, 264 Ill. 103, 105 N.E. 695.)

Miles F. Egbers, for Respondents.

Evidence may properly be received to show that the lands sought to be taken have a special value for certain purposes and what, because of such value, is the market value of the land and the sum which should be paid to the owner. (Idaho Farm Dev. Co. v. Brackett, 36 Idaho 748, 213 P. 696; Idaho West. Ry. Co. v. Columbia Conf. etc. Synod, 20 Idaho 568, 119 P. 60, 38 L. R. A., N. S., 497; Sargent v. Merrimac, 196 Mass. 171, 124 Am. St. 528, 81 N.E. 970, 11 L. R. A., N. S., 996; Santa Ana v. Harlin, 99 Cal. 538, 34 P. 224; Warden v. Philadelphia, 167 Pa. 523, 31 A. 928; Seattle etc. Ry. Co. v. Murphine, 4 Wash. 448, 30 P. 720; Northern P. & M. Ry. Co. v. Forbis, 15 Mont. 452, 48 Am. St. 692, 39 P. 571; Conan v. Ely, 91 Minn. 127, 97 N.W. 737.)

An expert witness may express his opinion as to market value of real property and the weight of his testimony is a matter for determination of the jury. (Idaho Western Ry. Co. v. Columbia Conf. etc. Synod, supra; Salt Lake & U. R. Co. v. Schramm, 56 Utah 53, 189 P. 90.)

BUDGE, J. Givens, C. J., Lee and Varian, JJ., and Johnson, District Judge, concur.

OPINION

BUDGE, J.

This action was originally instituted as one in equity to reform a deed given by respondents to appellant conveying certain property for highway purposes, upon the theory of a mutual mistake as to the property intended to be conveyed. Upon trial of the cause the court found there had been no mutual mistake, but ordered the pleadings to be amended and reformed so as to permit recovery for the market value of the land taken and damages to the land not taken, as respondents would have been entitled to recover had condemnation proceedings originally been instituted. Upon the pleadings being so reformed the cause was tried to the court and jury upon the one issue of damages. Judgment was had in favor of respondents, and this appeal is from an order denying a motion for new trial.

Appellant makes a number of assignments of error. We shall not discuss them all, but only such as are deemed important. Appellant complains of the action of the court in permitting witnesses Barton and Farnsworth to testify to the value of the land taken and damage to the tract not taken, upon the ground that neither showed himself to be qualified. No useful purpose would be served by reciting that portion of the record which discloses that both of these witnesses had dealt more or less extensively in real estate in the county in which respondents' land was located and had been so engaged for a number of years, and were familiar with the market value of land in adjoining counties. They were acquainted with the land owned by respondents and the uses and purposes to which it had been put for some time prior to the change in the highway by the construction of the new highway across respondents' land. While the character of this evidence is not of the highest standard in the matter of fixing market values, we think it was sufficient to support the verdict of the jury and that there was no prejudicial error that would warrant a reversal on this ground.

It is strenuously contended by appellant that certain elements making up the measure of damages were erroneously admitted in that the witnesses were permitted to testify to, and the verdict is based largely upon, the use to which the land of respondents had been put, viz., tourist park purposes and its value for that specific purpose. We appreciate the fact that there are decisions from courts of...