Provo River Water Users' Ass'n v. Carlson

• Decision Date: 02 February 1943
• Docket Number: 6444
• Citation: 103 Utah 93,133 P.2d 777
• Parties: PROVO RIVER WATER USERS' ASS'N v. CARLSON et al
• Court: Utah Supreme Court

133 P.2d 777

103 Utah 93

PROVO RIVER WATER USERS' ASS'N v. CARLSON et al

No. 6444

Supreme Court of Utah

February 2, 1943

Appeal from District Court, Fourth District, Wasatch County; Abe W Turner, Judge.

Action by the Provo River Water Users' Association against Hyrum B. Carlson and Mary E. Carlson, his wife, and others, to condemn certain realty. From an adverse judgment, the plaintiff appeals.

Order denying plaintiff's motion for new trial set aside, and cause remanded with directions to set aside verdict and judgments and to grant a new trial.

A. v Watkins, of Provo, for appellant.

L. C Montgomery, of Heber City, and Arthur Woolley, of Ogden, for respondent.

McDONOUGH Justice. WOLFE, C. J., and M. J. BRONSON, District Judge, concur. MOFFAT, J., concurs in the result. LARSON, Justice, dissenting. PRATT, J., on leave of absence.

OPINION

McDONOUGH, Justice.

The plaintiff Provo River Water Users' Association brought this action to condemn a tract of 18.75 acres of land in Wasatch County. Part of this tract is to be flooded by a reservoir being constructed in Provo canyon, and the remaining part was taken for relocation of a railroad necessitated by flooding an area where the tracks were formerly located. This improvement is connected with the Deer Creek reclamation project.

At the time of trial and for some years prior thereto, the defendant Hyrum B. Carlson was the owner of said tract of 18.75 acres. About 14.4 acres consisted of wild meadow land, and the balance of 4.35 acres was on a hillside covered with sage brush, rocks, and other features characteristic of land for which irrigation water is not available. The entire tract of 18.75 acres was used by Carlson exclusively as a pasture for his cattle about seven months of the year. The defendant Carlson also owned other real estate, situated in the town of Charleston or adjacent to the town. The pasture tract is about 1 1/2 miles away from the nearest tract of land in Charleston owned by said defendant.

These other properties situated in Charleston consist of the following lands, improvements and facilities: (a) The Carlson home consisting of a ten-room brick house on a lot in the town. (b) Across the street to the east, there is a tract of about 40 acres of irrigated farm land, on which are located a hay barn, a cattle barn equipped and used for milking seven cows at one time, a cooling vat for preparing milk for market, a flowing well with an electric pump, a chicken coop, a pig pen, a store house, granaries, and other improvements and farm facilities. (c) Still farther to the east, and separated from the 40 acre tract by a railroad right of way, a canal, and a road, there is an additional tract of approximately 20 acres of irrigated farm land.

At the time the above mentioned uncultivated 18.75 acre pasture tract was condemned, the defendant Carlson conducted the following farming and dairy activities: On the 40 acre tract he raised sugar beets, certified seed potatoes, peas, grain, and hay, and on the 20 acres to the east of the railroad right-of-way he produced alfalfa hay. He had 25 to 30 head of cattle, 16 to 20 of which were milked each day. The pasture tract of 18.75 acres situated 1 1/2 miles from his farms, was used only during the spring, summer and early fall months. There were no improvements on this pasture tract other than some fences. Carlson fed hay and grain to the cattle during the winter months in Charleston.

Throughout the summer months, after milking the cows in the morning at Charleston, either he or one of his boys drove the cattle from the barn to the pasture, and back again in the evening. This routine of a daily round trip of 3 miles continued throughout the the spring, summer and early fall months when the pasture was used.

Over the objections of counsel for plaintiff, the defendants Hyrum B. Carlson and wife were permitted to file an amended answer at the time of trial, whereby they not only asked for damages for taking the pasture tract (which was the land described in the complaint), but said defendants also asked for "severance damages" to the properties owned by Carlson 1 1/2 miles from the pasture tract. The theory of defendants was that there was such a unity of use between the properties in Charleston and the pasture tract as a dairy project, that the taking of the pasture by eminent domain proceedings depreciated the lands and improvements owned by Carlson in the town of Charleston. Counsel for defendants contended that the 18.75 acre pasture tract must be treated as a part of the "entire dairy farm" even if the lands are not contiguous. Counsel claimed that all of the Carlson properties were used as a coordinated unit, and must be regarded as one large parcel. Counsel for plaintiff strenuously resisted the contentions of defendants, and claimed that the word "parcel" as used in Section 104-61-11, R. S. U. 1933, means a "tract" of land or land embraced within one boundary without any strip of land owned by a third party intervening.

The trial court held both in rulings on evidence and in the instructions to the jury that if defendants showed "unity of use" and depreciation of the properties situated in Charleston as a result of condemnation of the tract of 18.75 acres, the pasture tract could be considered as being severed from the other lands, to permit the jury to assess severance damages to lands owned by Carlson in the town of Charleston. The jury assessed the market value of the 18.75 acres at $ 2,605 including accrued interest to date of trial, and awarded "severance damages" in the sum of $ 1,000 principal and $ 10 interest, for "damages" to the lands and improvements in Charleston. Judgment against plaintiff for $ 3,615 was entered on the verdict. Plaintiff by this appeal assails the verdict, judgment, and rulings of the trial court by 42 assignments of error.

The alleged errors may be summarized under four general topics: (1) Severance damages, (2) instructions to the jury, (3) competency of witnesses, and (4) conduct of a juror. They will be considered in the order indicated.

Plaintiff and appellant contends the trial court erred in permitting defendants to file the amended answer in which a plea of severance damages was improperly injected into the case, in receiving testimony as to alleged depreciation of properties of Carlson 1 1/2 miles from the tract condemned, and in permitting the jury to assess severance damages to the properties in Charleston. Appellant claims that under our statutes, if an area is not contiguous to the land condemned, such area not condemned cannot be considered a part of the same parcel as the land actually condemned. It is urged that neither severance damages nor damages to the remainder of a parcel, can be awarded unless there is some physical injury resulting to the balance of the tract, a part of which is condemned; and that unless there is some factor connected with the construction or operation of the improvement which injures the land not taken, no damages as to lands not taken can be allowed under our statutes. It is further contended that if a tract is not contiguous to the lands acquired by eminent domain, neither severance damage nor any other indemnity can be assessed for any alleged depreciation of noncontiguous tracts, for the reason the damages are too remote and speculative. The statute in question is Sec. 104-61-11, R. S. U. 1933, the pertinent parts of which provide:

"The court, jury or referee must hear such legal evidence 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 appertaining to the realty, and of each and every separate estate or interest therein; and if it consists of different parcels, the value of each parcel and of each estate or interest therein shall be separately assessed.

"(2) If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff.

"(3) If the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement, the amount of such damages."

In this case there was no contention that the erection of the reservoir and the relocation of the railroad tracks could in any manner injure any of the properties of defendant situated in the town of Charleston. There was no proof offered to show that either the taking of the 18.75 acres for reservoir purposes, or the construction of the reservoir, could possibly result in any physical impairment of the properties in Charleston. Respondent's contention is that the lands and improvements in town were more valuable as a dairy unit when used with this pasture than if used without it. He testified that without this pasture his properties in Charleston, which included 62 acres of irrigated farm lands in the aggregate, devoted to growing various crops and on which are situated his buildings and improvements, would be depreciated $ 1,000 in value.

All of the cases in this court, which we have been able to find have predicated both severance damages and damages to lands not taken, on some physical injury to lands not condemned, such as lowering or raising the level of a street or highway so as to impair access, obstruction of light and view, restriction of the remaining area in size or shape so as to render it less valuable for purposes to which it was formerly adapted, or the creation of noise, smoke, or some other condition which would operate to depreciate the market value of...