State By and Through State Highway Commission v. Hurliman

• Citation: 368 P.2d 724,230 Or. 98
• Parties: STATE of Oregon, by and through its STATE HIGHWAY COMMISSION, composed of M. K. Mclver, Kenneth Fridley and Glenn L. Jackson, Respondent, v. Anton HURLIMAN and Margaret Hurliman, husband and wife, Appellants.
• Decision Date: 07 February 1962
• Court: Supreme Court of Oregon

Page 724

368 P.2d 724

230 Or. 98

STATE of Oregon, by and through its STATE HIGHWAY

COMMISSION, composed of M. K. Mclver, Kenneth

Fridley and Glenn L. Jackson, Respondent, v. Anton HURLIMAN and Margaret Hurliman, husband and wife, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted Dec. 6, 1961.

Decided Feb. 7, 1962.

George P. Winslow, for appellants. On the brief were Winslow & Winslow, Tillamook.

J. Robert Patterson, Asst. Atty. Gen., for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., and L. I. Lindas, Asst. Atty. Gen., Salem.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWYN and LUSK, JJ.

ROSSMAN, Justice.

This is an appeal by the defendants who are husband and wife from a judgment entered by the circuit court in an eminent domain proceeding instituted by the state acting through its Highway Commission to condemn for highway purposes approximately 2.3 acres of the defendants' dairy farm. The jury found that the value of the land taken together with damages to the remainder was $5,000. The complaint alleged that $4,000 was the maximum sum to which the defendants were entitled. The answer alleged that the just amount that should be paid to the defendants was $11,480. Since the verdict was in a sum larger than that tendered the trial judge awarded the defendants the additional sum of $650 as compensation for their attorney's services.

The defendants, in appealing, submit seven assignments of error. The first of them reads:

'That the court erred in rejecting defendants' request for conclusion of law No. 2 reading as follows:

'That the description and the amount of land, sought to be condemned in this proceeding, is so indefinite, uncertain, ambiguous and vague that the amount of said land cannot be ascertained and said land cannot be identified with any degree of certainty; that no evidence was offered, during the trial of this cause, which would be sufficient to identify said land or the amount thereof and this proceeding should be dismissed.'

The second follows:

'That the court erred in overruling defendants' motion to require plaintiff to make more definite and certain the description of the property sought to be condemned.'

The defendants' brief states that both of those assignments of error 'involve the same questions' and argues them together.

The third assignment of error states:

'The court erred by admitting in evidence resolution dated March 10, 1960, Ex. 1.'

The fourth assignment of error submits this contention:

'That the court erred by admitting in evidence the letter from Highway Commission to defendants dated Jan. 30, 1959, Ex. 3, and register receipt, Ex. 2, showing letter received by defendants Feb. 5, 1959.'

The fifth states:

'That the court erred in rejecting defendants' request for conclusion of law No. 1 reading as follows:

'That plaintiff failed, in all respects, to comply with the provisions of Sections 366.370 and 366.375, ORS prior to the filing of this action and that by reason of such failure plaintiff was not authorized to commence and prosecute this action and this action should be dismissed.'

The defendants' brief explains that the three assignments of error last quoted 'involve substantially the same and similar questions and will be discussed together.' We will so treat them when we analyze them.

The sixth assignment of error presents this contention:

'That the court erred in refusing to give defendants' requested instruction IV reading as follows:

'I instruct you that in considering the depreciated value of defendants' property, you have a right to take into consideration any risk, hazard, danger, and any interference in the use, if any, in the operation and use of defendants' property resulting from the taking, and if you find that as a result of the taking of defendants' property, there is a reasonable possibility of injury to persons or to animals and other property, which would cause a prospective purchaser to pause and, on that account, seek a lower purchase price, you would have a right to take these matters into consideration in determining the depreciated value of defendants' property.'

The seventh assignment of error states:

'That the court erred in refusing to give defendants' requested instruction No. V, reading as follows:

'In arriving at the depreciated value of defendants' property you should take into consideration the continuing power, of the State Highway Commission, to change grades of said highway, relocate the same upon the land taken, regulate and direct traffic over said highway and to allow defendants compensation on account of said matters and any other use of said highway or a change in the same that the plaintiff, State Highway Commission, could lawfully do.'

Before analyzing the assignments of error we will mention some additional facts.

The defendants own a dairy farm 55 acres in extent in Tillamook County and have forty cows. An old county road which many years ago was incorporated into the state's secondary highway system cuts the farm into two segments. The purpose of this proceeding was to secure for the state 2.3 acres of the defendants' land so that the Highway Commission could improve the facilities afforded by the old road. The improvements were completed before the case was tried in the circuit court and the new road was at that time in use. The condemnation proceeding sought not only 2.3 acres of the defendants' land but also whatever interest the defendants had by way of reversion in the old county road. The part of the latter which crossed the defendants' land was about two acres in extent.

The defendants deemed that the part of their land which lay on the side of the road opposite from their home and milking barns afforded for eight months of the year superior pasturage and, therefore, they drove their cows across the road four times each day during eight months of the year. Since the old road was improved to a width of only thirty feet and was winding, thereby precluding fast traffic, the defendants did not find that the task of driving their cows across it was difficult or hazardous. But the improved road has a greater width, is comparatively straight, and a part of it which passes over the defendants' property is 190 feet wide for a short stretch. At that point the defendants cross it with their cows. They contend that driving their cows across the new road is difficult and hazardous. They therefore argue that they are entitled to compensation not only for the land taken but also for damages to the remainder caused by the alleged increased hazard. We add that the matters just mentioned were submitted to the jury. The state offered no evidence upon the subjects of damage and land value. Those issues were resolved upon the evidence presented by the defendants.

We will now turn to the assignments of error. We have quoted them. The first two are based upon contentions that the description of the property which the state sought was 'so indefinite, uncertain, ambiguous and vague' that the defendants could not identify the land which the state sought. The complaint described the defendants' farm by metes and bounds. The defendants do not criticize that description. After the complaint had described in the manner just indicated the entire farm it then described in the following terms the part which the plaintiff sought to acquire:

'A parcel of land lying in Section 9, Township 5 South, Range 10 West, Willamette Meridian, Tillamook County, Oregon, and being a portion of that property described in that deed to Anton Hurliman and Margaret Hurliman, recorded in Book 155, Page 168 of Tillamook County Records of Deeds, the said parcel being that portion of said property included in a strip of land variable in width, lying on each side of the center line of the Little Nestucca Highway as said highway has been relocated, which center line is described as follows:

'Beginning at Engineer's center line Station 71-/00, said Station being 38.8 feet North and 24.6 feet East of the center of said Section 9; thence South 5~06' West, 508.73 feet; thence on a spiral curve left (the long chord of which bears South 0~36'08"' West) 450 feet; thence on a 954.93 foot radius curve left (the long chord of which bears South 20~44'45"' East) 411.53 feet; thence on a spiral curve left (the long chord of which bears South 42~05'38"' East) 450 feet; thence South 46~35'30"' East, 1579.74 feet to Station 105-/00, the Northeasterly line of said strip of land crossing the Northerly line of said property approximately opposite Station 71-/35.

'The widths in feet of the strip of land above referred to are as follows:

                                         Width on North      Width on South-
                                        easterly Side of     westerly Side of
                 Station to Station        Center Line         Center Line
                71-/00     76-/08.73         40 feet                  40 feet
                76-/08.73  78-/00     40 feet in a straight
                                         line to 45 feet              40 feet
                78-/00     80-/58.73  45 feet in a straight
                                         line to 50 feet              40 feet
                80-/58.73  84-/70.26         50 feet                  40 feet
                84-/70.26  87-/00     50 feet in § straight
                                         line to 45 feet              40 feet
                87-/00     89-/20.26  45 feet in a straight
                                         line to 40 feet              40 feet
                89-/20.26  104-/00           40 feet                  40 feet
                

'Also that portion of said property lying Southwesterly of said center line, easterly of the existing Little Nestucca Highway and northerly of a county road running easterly and westerly through the South half (S 1/2) of said Section 9.

'The parcel of land to which this description applies contains 2.30 acres, outside of the existing right of way.'

It will be noticed that the description of the 2.3 acre parcel which the state sought to acquire employed in large part a center line which the pleading traced...