State By and Through State Highway Commission v. Arnold

CourtSupreme Court of Oregon
Writing for the CourtBefore McALLISTER; O'CONNELL; The plaintiff assigns as error the trial court's refusal to recognize one of plaintiff's witnesses; PERRY
Citation341 P.2d 1089,218 Or. 43
PartiesSTATE of Oregon, by and through its STATE HIGHWAY COMMISSION, composed of Ben R. Chandler, Charles H. Reynolds and M. K. McIver, Appellant, v. A. W. ARNOLD and Jessie Arnold, husband and wife; Maude E. Liskey, a widow, individually and as executrix of the estate of Dave Liskey, deceased; Maxine Maude Liskey; and Tootsie Wyma Jean Liskey, a minor; and J. B. Pfouts, intervenor, Respondents.
Decision Date16 September 1959

Page 1089

341 P.2d 1089
218 Or. 43
STATE of Oregon, by and through its STATE HIGHWAY
COMMISSION, composed of Ben R. Chandler, Charles
H. Reynolds and M. K. McIver, Appellant,
v.
A. W. ARNOLD and Jessie Arnold, husband and wife; Maude E.
Liskey, a widow, individually and as executrix of the estate
of Dave Liskey, deceased; Maxine Maude Liskey; and Tootsie
Wyma Jean Liskey, a minor; and J. B. Pfouts, intervenor, Respondents.
Supreme Court of Oregon, Department 1.
Argued Feb. 5, 1959.
Decided July 1, 1959.
Modified on Denial of Rehearing Sept. 16, 1959.
See 343 P.2d 1113.

Page 1092

[218 Or. 47] John C. McLean, Asst. Atty. Gen., argued the cause for appellant. With him on the brief were Robert Y. Thornton, Atty. Gen., C. W. Enfield, and Leonard I. Lindas, Asst. Atty. Gen.

[218 Or. 48] Francis F. Yunker, Portland, argued the cause and filed a brief for respondents.

Before McALLISTER, C. J., and PERRY, SLOAN and O'CONNELL, JJ.

O'CONNELL, Justice.

The plaintiff brought an action to acquire by condemnation the defendants' interest in 21.52 acres of land located in Klamath County. From a verdict and judgment for $13,250 the plaintiff appeals.

The defendants' interest in the property involved consisted of a leasehold interest in the surface and the mineral rights. The plaintiff had previously acquired the fee subject to the foregoing interests.

The property taken includes one-third of a cinder cone, described as 'Buckeye Butte,' which is a geological formation of volcanic origin made up of a mineral aggregate useful for certain construction purposes including the surfacing of roads. The plaintiff acquired the property to obtain cinders for use on the highways in the immediate surrounding area.

There are a considerable number of similar cones in the area. Most of these are unopened as was Buckeye Butte at the time of the taking. Some of the cones are operated commercially although the closest of these are near Bend to the north and Klamath Falls to the south, each of these cities being approximately sixty miles from Buckeye Butte.

There is no large population center near the property taken which would serve as a market for cinders. The town of Chemult with a population of approximately 150 is a few miles to the north.

The Southern Pacific Company and several logging companies have opened cones in the vicinity for the [218 Or. 49] purpose of obtaining cinders for use as ballast and the surfacing of roads. The tracks of the Southern Pacific Company pass near the cone paralleling Highway 97.

At the trial the plaintiff took the position that there was no market for cinders in the vicinity and that the property taken had value only for grazing purposes which value was nominal. The defendants put a value of $130,000 on their interest.

The plaintiff admitted that the cinders in the Buckeye Butte deposit were of good quality for road surfacing purposes and that because of its location near the junction of two highways the cone was particularly desirable and valuable to it for such purposes. The plaintiff's principal contention is that there was no market value for the condemned property; that the special value of the property to the taker cannot be considered and that the jury was permitted to base its verdict upon this special value.

We shall first address our attention to the evidence upon the basis of which the jury could properly conclude that there was a market for cinder cones at the time of the taking, or in the absence of such a market whether the property had compensable value.

It is uniformly recognized that the special value of the property to the taker is not the proper measure of compensation. 3 Nichols on Eminent Domain (3d ed.) § 8.61; 1 Orgel on Valuation Under Eminent Domain (2d ed.) § 81; Oregon R. & Nav. Co. v. Taffe, 1913, 67 Or. 102, 134 P. 1024, 135 P. 332, 135 P. 515. The state contends that the value to the taker cannot properly be considered even though the property has value based upon considerations other than the taker's need.

One of the defendants' witnesses testified that in estimating the value of the

Page 1093

cone he took into consideration[218 Or. 50] the fact that the state was preparing to relocate and repair the highway in the vicinity. When the witness was asked 'How much of your market is attributable to the fact the State needed the cinders for a project begun in 1951, and the balance', he replied that he did not 'know exactly' and that he did not make a segregation of these values. The plaintiff assigns as error the trial court's refusal to grant plaintiff's motion to strike the witness' testimony because it improperly contained a noncompensable item which could not be segregated from the total. We think that the motion was properly overruled. We do not agree with the assumption underlying the state's objection. It is stated broadly enough to assert that the value to the taker is not a valid factor in any circumstance, and that the market which is looked to in measuring market value is the market exclusive of the state. But this is not an accurate statement of the law. In estimating the value of the property it is entirely proper to consider the state's need for it if that need is not a special factor influencing the value which is placed upon it in the market. If the state's need for the property is in competition with other similar demands for it the state's participation in the market may be considered in arriving at the value of the condemned property. This idea is expressed in United States v. Boston, Cape Cod & N. Y. Canal Co., 1 Cir., 1921, 271 F. 877, 893, as follows:

'We are of the opinion that, in ascertaining the market value of the property taken in a condemnation proceeding the utility or availability of the property for the special purpose of the taker cannot be shown, if the taker is the only party who can use the property for that purpose. If, however, the property has a special utility or availability, not only to the taker, but to other parties who could use [218 Or. 51] the property for the particular purpose intended by the taker, then this utility or availability may be shown.'

In Oregon R. & Nav. Co. v. Taffe, supra, essentially the same principle is announced:

'* * * The fact that the plaintiff desired the property for a railroad right of way would not preclude defendants' recovery measured by its adaptability for that use, if such adaptability added to its market value generally. The particular value of the tract to plaintiff by reason of the location of the tract to its road, and considered with reference to plaintiff's connecting tracks, its established business, and its urgent need, should not be considered by the jury, nor shown by the evidence; but we understand no such evidence was admitted. The paragraph of 15 Cyc. 757 quoted by plaintiff in its brief further says: 'Some courts have gone so far as to say that in estimating the value of the land taken for a public use its value for such use cannot be considered; but the weight of authority is contrary to such a rule. There is a recognized difference between estimating damages by the value of the property to the person or corporation exercising the right of condemnation and considering the availability or adaptability of a piece of land for the purpose for which it is condemned as an element of value which would attract any buyer for that purpose. The true rule is that any use for which the property is capable may be considered, and if the land has an adaptability for the purposes for which it is taken, the owner may have this considered in the estimate as well as any other use for which it is capable.' This, we understand, is the correct rule, and is well supported by the cases, * * *.' 67 Or. 102, 114, 134 P. 1024, 1028.

If, in the present case, it is solely the state's need which creates the market then, of course, this special need must be excluded in the evaluation of the property. [218 Or. 52] United States v. Cors, 1949, 337 U.S. 325, 69 S.Ct. 1086, 93 L.Ed. 1392; see 4 Nichols on Eminent Domain, § 12.315. However, only

Page 1094

the special value which the property has to the taker cannot be considered by the trier of fact. Where the basis for value to the taker is the same as it is with respect to others, the jury is entitled to consider the fact that the state is a part of the market. Olson v. United States, 1934, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; Mississippi & Rum River Boom Co. v. Patterson, 1878, 98 U.S. 403, 25 L.Ed. 206; see Hale, Value to the Taker in Condemnation Cases, 31 Colum.L.Rev. 1, 16-24 (1931).

The defendants presented some evidence tending to show that there was a market for cinders in the area (from which it could be concluded that there was a market for the cinder cone in question) and, therefore, that the cone had value which was created by demands in addition to that of the state.

The plaintiff requested an instruction to the effect that in determining market value the jury should not consider 'the value of the rights being taken by virtue of or with reference to the proximity of the cinder cone to the highway * * *.' The requested instruction was not given, for which the plaintiff assigns error.

The requested instruction was properly rejected. Assuming that there was a market for cinders exclusive of the state, the proximity of the cone to the highway would be a relevant factor in assessing the cone's value because the cost of transportation to the purchaser would be an ingredient in fixing the price of the cinders removed from the cone. If the plaintiff intended the requested instruction to inform the jury that it would be improper to consider the special value of the property to the taker (because of the proximity of the cone to the highway) then plaintiff should have cast the instruction in language clearly expressing that idea.

[218 Or. 53] The plaintiff contends that the court erred in giving the following instruction:

'In...

To continue reading

Request your trial
36 practice notes
  • State v. Rogers,
    • United States
    • Supreme Court of Oregon
    • 4 Mayo 2000
    ...proper law to apply to that ruling. We have addressed similar questions in several previous cases. In State Highway Com. v. Arnold et al, 218 Or. 43, 60, 341 P.2d 1089 (1959), a condemnation action, the plaintiff sought to introduce expert witness testimony about the value of the property. ......
  • Harpole v. Paeschke Farms, Inc.
    • United States
    • Supreme Court of Oregon
    • 31 Enero 1974
    ...opinion must be based upon facts in evidence. This statement of the rule is too broad, as is demonstrated by State Highway Comm. v. Arnold, 218 Or. 43, 341 P.2d 1089, 343 P.2d 1113 (1959). 1 However, it is not necessary for us to explore the boundaries of the rule because all of the materia......
  • Myers v. Cessna Aircraft Corp.
    • United States
    • Supreme Court of Oregon
    • 9 Julio 1976
    ...plaintiff's eyes were 'most probably' the result of the ingestion of defendants' oral contraceptives); State Highway Com. v. Arnold et al., 218 Or. 43, 341 P.2d 1089, 343 P.2d [275 Or. 512] 1113 (1959) (real estate appraiser permitted to testify as to probable value of a cinder cone, even t......
  • State By and Through State Highway Commission v. Nunes
    • United States
    • Supreme Court of Oregon
    • 13 Marzo 1963
    ...or mineral itself, apart from the land.' We have not passed upon the precise question presented although in State Highway Comm. v. Arnold, 218 Or. 43, 341 P.2d 1089, 343 P.2d 1113 (1959) we disapproved the use of the multiplication method in arriving at the value of the property in that The......
  • Request a trial to view additional results
36 cases
  • State v. Rogers,
    • United States
    • Supreme Court of Oregon
    • 4 Mayo 2000
    ...proper law to apply to that ruling. We have addressed similar questions in several previous cases. In State Highway Com. v. Arnold et al, 218 Or. 43, 60, 341 P.2d 1089 (1959), a condemnation action, the plaintiff sought to introduce expert witness testimony about the value of the property. ......
  • Harpole v. Paeschke Farms, Inc.
    • United States
    • Supreme Court of Oregon
    • 31 Enero 1974
    ...opinion must be based upon facts in evidence. This statement of the rule is too broad, as is demonstrated by State Highway Comm. v. Arnold, 218 Or. 43, 341 P.2d 1089, 343 P.2d 1113 (1959). 1 However, it is not necessary for us to explore the boundaries of the rule because all of the materia......
  • Myers v. Cessna Aircraft Corp.
    • United States
    • Supreme Court of Oregon
    • 9 Julio 1976
    ...plaintiff's eyes were 'most probably' the result of the ingestion of defendants' oral contraceptives); State Highway Com. v. Arnold et al., 218 Or. 43, 341 P.2d 1089, 343 P.2d [275 Or. 512] 1113 (1959) (real estate appraiser permitted to testify as to probable value of a cinder cone, even t......
  • State By and Through State Highway Commission v. Nunes
    • United States
    • Supreme Court of Oregon
    • 13 Marzo 1963
    ...or mineral itself, apart from the land.' We have not passed upon the precise question presented although in State Highway Comm. v. Arnold, 218 Or. 43, 341 P.2d 1089, 343 P.2d 1113 (1959) we disapproved the use of the multiplication method in arriving at the value of the property in that The......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT