Routh v. State Highway Commission

• Decision Date: 03 June 1965
• Docket Number: No. 3400,3400
• Parties: Mark R. ROUTH, May A. Routh, Howard W. Routh and Pearl E. Routh, Appellants (Defendants below), v. STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 706

402 P.2d 706

Mark R. ROUTH, May A. Routh, Howard W. Routh and Pearl E. Routh, Appellants (Defendants below), v. STATE HIGHWAY COMMISSION of Wyoming, Appellee (Plaintiff below).

No. 3400.

Supreme Court of Wyoming.

June 3, 1965.

Kenneth G. Hamm, of Galicich & Hamm, Rock Springs, for appellants.

John F. Raper, Atty. Gen., Glenn A. Williams, Asst. Atty. Gen., Dean W. Clark, Sp. Asst. Atty. Gen., Cheyenne, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Chief Justice PARKER delivered the opinion of the court.

The State Highway Commission, in the establishment of a new route as a part of the Interstate Highway System, filed its petition for condemnation and application to take possession of 69.5 acres of a 327.5-acre tract of Routh land on the east edge of Green River, some of the mentioned land being within, and the major part being outside, the town limits. Commissioners were duly appointed by the trial court in the usual manner, and on July 14, 1961, they made a certificate of award, valuing the land actually taken at $250 per acre, with no damage to the remaining property, a total value of $17,375. On August 10, 1961, the State Highway Commission filed a demand for jury trial. Upon the trial, a verdict was entered allowing as the true value of the land actually taken $2,015.50, and the damages to the remaining portion, $2,249.50, total $4,465--an obviously improper computation, which the court in its order confirming verdict changed to $4,265. The resulting appeal by the Rouths to this court presents two aspects:

First: A motion lately filed asking that this court remand the action to the district court with instructions to the court that the report and award of the commissioners be confirmed, it being the appellants' position that the district court had no jurisdiction of the subject matter under the holding of this court in State ex rel. Frederick v. District Court of Fifth Judicial District in and for County of Big Horn, Wyo., 399 P.2d 583 (issued March 8, 1965), because the demand for jury trial was filed on August 10, 1961, and more than ten days had elapsed between the filing of the certificate of award and the demand for jury trial, to-wit, twenty-seven days; and that the demand for jury trial was not served upon appellants within ten days after the filing of the certificate of award.

Second: A number of alleged errors in the trial of the cause.

The Motion

We will first discuss appellants' suggestion that in view of the lateness in both the filing and serving of the demand for jury trial, the court had no jurisdiction of the subject matter of the action or right or authority to entertain the cause other than to confirm the report and award of the commissioners.

In State ex rel. Frederick v. District Court of Fifth Judicial District in and for County of Big Horn, supra, a proceeding for writ of prohibition to prevent a jury trial in a condemnation matter, this court held that under the circumstances of that case the failure of the State Highway Commission to comply with Rules 5(a) and 38(b), W.R.C.P., was fatal.

In the instant litigation although there was a failure to meet the time requirements of the rules, appellants appeared for trial, verdict was entered, and an appeal taken from the court's judgment on grounds other than jurisdictional, that point not being raised until after the submission of briefs to this court. Our statement in Padlock Ranch, Inc., v. Washakie Needles Irrigation Dist., 50 Wyo. 253, 60 P.2d 819, 61 P.2d 410, 411, 412, is pertinent and determinative of the contention as to lack of jurisdiction:

'* * * A number of things are necessary to confer * * * [jurisdiction] in complete form. One is that the tribunal must have general power over matters of the kind involved in a particular case. That exists in the case at bar. The particular proceeding must, further, be initiated in some sufficient manner. That was done by the petition filed in this case, thus giving the court jurisdiction over the subject matter in the particular case. To give the tribunal the power to hear and determine the cause * * * something more, of course, is essential; namely, notice to the parties interested. That notice confers jurisdiction over the parties, and, if it is insufficient but they make a general appearance, the insufficiency is waived * * *. But merely because such notice or appearance is necessary to her and determine the cause, by no means indicates that the court did not have jurisdiction of the subject matter in the particular cause. * * *'

Under this holding although the requirements of Rule 38(b) were not met by 'serving upon the other parties a demand * * * [for jury trial] in writing * * * not later than 10 days after service of the last pleading directed to such issue [in this instance, the certificate of aware],' it is apparent that appellants by their appearance waived that insufficiency. While the commissioners' certificate mentioned in §§ 1-769 and 1-770, W.S.1957, is not a pleading in the ordinary sense, the development of the issues raised by a last pleading is brought about by this certificate in eminent domain proceedings; and a common sense, reasonable interpretation of the rules' application to eminent domain is that the time should run from the filing of the certificate. There is, of course, no question but that the trial court had general power over a condemnation proceeding, it being argued only that failure of compliance with the rules rendered the trial court, under the provisions of § 1-770 powerless to enter this particular judgment. In view of appellants' appearance before the trial court, we cannot perceive any basis for such argument, and the motion is denied.

Alleged Errors in the Trial

Appellants charge the occurrence of six errors in the trial of the cause:

1. The permitting of the State Highway Commission to examine witnesses regarding the value of lands not in the vicinity and not comparable to those taken;

2. Unduly restricting the cross-examination of the State Highway Commission's witnesses concerning land in the immediate vicinity of the 'comparables' about which they testified;

3. Unduly restricting the cross-examination of one of the witnesses, Dickson, concerning some of his own lands;

4. Changing the figure '$4,465' in the verdict to '$4,265';

5. Permitting improper conduct of counsel in the final argument; and

6. Entering a judgment contrary to and not sustained by the law and the evidence; the award of the jury, for the land actually taken, and for the damages to the remaining portion of the Routh land, was inadequate, such inadequacy being due to the influence of passion and prejudice.

The first and perhaps the basic ground of this appeal stems from the wholly diverse views of the parties as to what lands were comparables, and such views were understandable since the Routh land had most unusual physical characteristics. According to the version of every witness who testified, it was very rough and could not be utilized for subdivision building without very substantial altering of the surface. All of the Rouths' witnesses conceded that the lands which they used as a basis for valuation were not truly comparable, as not being as rough as that under consideration. Notwithstanding such fact, they were permitted to use the prices of various subdivisions in Green River and Rock Springs, some fifteen miles distant, in formulating their values.

The State Highway Commission insisted that with the exception of some nine acres on the lower part of the tract which might be suitable for commercial building the highest and best use of the land was grazing and even questioned whether, because of sparseness of the herbage, it was of much value for that. Its counsel insisted upon the right to present the theory that the only comparables were grazing land and introduced evidence concerning values of property far distant from towns or concentrations of population. To this Rouths' counsel voiced objections and because he was overruled by the court now argues that the rulings were error. The contention presents questions of some difficulty. Both litigants concede the rule in this jurisdiction that the sales of similar property in the vicinity are admissible to prove value of that being taken by eminent domain. Morrison v. Cottonwood Development Co., 38 Wyo. 190, 266 P. 117; State Highway Commission v. Triangle Development Co., Wyo., 369 P.2d 864. And both recognize this court's view in State Highway Commission v. McNiff, Wyo., 395 P.2d 29, 31, that 'No general rule can be laid down governing the degree of similarity which must exist between properties sold and that condemned to make evidence of sales admissible, and the propriety of receiving such evidence must be determined by the trial judge within the proper limits of his discretion.' Thus, there was no real disagreement as to the applicable law. Whether or not the court erred in allowing evidence concerning Green River and Rock Springs additions over the commission's objection that they were not comparable is not here in issue. Apparently the court considered that both parties should be accorded some latitude in this regard with the opportunity to introduce evidence which would bring out to the jury any dissimilarities in the property about which the testimony was given. While the court might have been justified in rejecting the evidence of both parties as to their respective comparables, ¹ we think that in the exercise of its discretion it was warranted in allowing both litigants to present their theories and in so doing to adduce evidence of what they contended to the the only lands with which comparison could be made, even if the comparison of neither party was truly apt. We find no error on this phase.

Appellants combine their argument on points two and three, relating to the charge that the court erred in improperly restricting their rights of...