State By and Through Its Engineering Com'n v. Peek

• Decision Date: 23 December 1953
• Docket Number: No. 7867,7867
• Parties: d 263 STATE, By and Through Its ENGINEERING COMMISSION, et al. v. PEEK et al.
• Court: Utah Supreme Court

Page 630

265 P.2d 630

1 Utah 2d 263

STATE, By and Through Its ENGINEERING COMMISSION, et al. v. PEEK et al.

No. 7867.

Supreme Court of Utah.

Dec. 23, 1953.

C. C. Parsons, A. D. Moffat, Calvin A. Behle, Salt Lake City, for appellants.

E. R. Callister, Atty. Gen., Jesse R. S. Budge, Special Atty. Gen., for respondents.

WADE, Justice.

Action by State of Utah through its Engineering Commission to condemn a tract of land near the 'This is the Place' monument for State Park purposes. This appeal concerns only the part of such tract which belongs to the Charles H. Deere Estate now being held in trust by Burton F. Peek and Charles D. Wiman, appellants here. The tract comprises more than 200 acres. The first Special Session of the 1951 Legislature directed the Commission to condemn this tract forthwith. It lies across the entrance of Emigration Canyon, east of Salt Lake City and is traversed from east to west by State Road No. 65, which goes up the bottom of the Canyon, the walls of which rise abruptly on each side to more level ground.

Several roads and drives pass over parts of the tract and part of the north side of the tract has recently been platted into residential subdivisions with lots, blocks and appropriate roads, drives and circles. A few homes had been built on some of the lots which defendants had previously sold. A business district was planned to adjoin State Road No. 65; another part on the south side of the road where the canyon is wider than usual had been improved and was being operated as a miniature golf course with other amusements. On the north side of the canyon and east of the residential district high above the road was a spring area, where defendants had developed a water works, with a concrete reservoir, metal water tanks, fire hydrants and pipelines to furnish water for the subdivision, and other property.

Plaintiffs, by their complaint, divided the tract to be condemned into 28 parcels, each parcel belonging to a different defendant. Appellants' property was designated Parcel No. 28, and contained about three-fourths of the entire tract. Except for the fact that it is intersected by State Road No. 65, and Kennedy Drive, it is all within one closed boundary line, every part is contiguous with another part, it covers parts of all the various sections of the whole tract, and there is an isolated block of adjoining lots scattered over the platted residential subdivisions on the north side of the State Road. Adjoining the State Road on the south near the east boundary line was the miniature golf course and a parcel protrudes into the condemned property from the north side near the center of the tract containing several acres which were planned as a future residential subdivision. The condemned tract was in almost every stage of development--from occupied residences on completely hard surfaced drives with curb and gutter to mountain sides, in their native state, some of which are probably incapable of being used or improved. But none of this appellants' property was occupied by any building or improvements except for roads, streets, drives, the water system and other public utility improvements.

Prior to the trial the appellants made a motion that their property be severed into six different parcels in accordance with the nature and kind of property and the uses to which they claimed that the various parcels were adapted. The court thereafter did divide such property into two parcels, making parcel I the same as appellants' proposed parcel I, and all the rest of appellants' property was made into parcel II. The accompanying map shows the property which was condemned together with the roads and drives as they existed and the planned roads and drives. The parts in white are properties which do not belong to these defendants; the parts in black are parcel No. I and in perpendicular lines are parcel No. II.

Appellants contend, (1) that the court improperly refused to allow interest on their judgment from the date of service of summons in the action, (2) that the court improperly refused to allow them either by direct evidence or cross-examination to show the sale price of comparable property, or to test the credibility of plaintiffs' witnesses by inquiring into the value placed on the various parts of appellants' property by plaintiffs' witnesses, (3) that the court improperly excluded expert testimony of the value of their waterworks system, (4) that the court improperly refused to divide appellants' property into more than two parcels, and (5) that the court improperly excluded the issue of severance damages.

Appellants are not entitled to interest on the judgment prior to the time when actual possession was taken. This court has uniformly so held. ¹ Appellants argue that this case is different from those cases in that here their property being unoccupied it cannot produce income, rents or profits except from the development and sale of the lots and that any improvement after the service of summons cannot be included in the recoverable damages and that the possibility of obtaining buyers for this property was by the service of summons eliminated. That argument is true to a greater or less extent in every condemnation case. Where the owner beneficially uses the property, either as a home or in his business, or where the property is rented until possession is taken, the commencement of an action to condemn only slightly interferes with the owner's use of the property prior to that time. But even in that kind of a case the possibility of the property being bought and sold on the open market is practically eliminated by the service of summons in a condemnation case.

The case of Oregon Short Line R. Co. v. Jones, supra, where this question was carefully considered and initially decided in this state, was in many respects similar to this case. There the property condemned was apparently unoccupied vacant lots; the appellants there, as here, argued that under Section 3599, R.S.1898 (now Section 78-34-11, U.C.A.1953), ² the right to compensation accrues and is due on the date of the service of summons and that no improvements placed on the property after that date can be included in the damages and thus the service of summons constitutes such an interference with the owner's full enjoyment of the property as to amount to a taking within the meaning of our constitution where it provides that 'Private property shall not be taken or damaged for public use without just compensation.' ³ The court in that case conceded that property might be damaged by a public improvement although not actually taken, in which case the owner would be entitled to damages, it being held that Section 3599 fixed 'the time with reference to which compensation is to be computed, rather than fixing the time of the taking, or when the property shall be deemed to have been taken.' [29 Utah 147, 80 P. 734] The court concluded that under our statute, as to property which is actually taken as distinguished from property which is damaged by a public improvement, interest on the award is allowed only from the date of the actual taking and not from the service of summons.

Appellants further argue that failure to allow such interest constitutes a taking of private property for a public use without just compensation, in violation of Article I, Sections 7 ⁴ and 22 ⁵ of the Utah Constitution and the Fourteenth ⁶ and Fifth ⁷ Amendments to the Federal Constitution. There are many cases which allow interest from the beginning of the condemnation proceedings even though the owner retains possession. Such cases require him to account for the income, rents and profits of the land during that period. Some of them cite the above mentioned Federal Constitutional provisions and State Constitutional provisions similar to ours above cited in support of such holding. ⁸ Some of such cases require a showing on the part of the land owner that he has been deprived of profits during the period in question ⁹ which he would have made had the suit not been commenced, and that such profits were not included in the damages which were awarded. ¹⁰ The record here does not show that such proof was made in this case. Appellants have cited no case and we have found none which holds that where under the state law the taking occurs when the possession of the property is actually surrendered, and not when the suit was commenced, that the failure to allow interest from the time of the commencement of the action constitutes a violation of these constitutional provisions, but a number of courts, including the Supreme Court of the United States, have held to the contrary. ¹¹ So we will adhere to our previous rule that interest is recoverable only from the time of taking possession of the property.

The trial court excluded on both direct and cross-examination evidence of the purchase price paid in recent sales of property similar to parts of appellants' property. It also excluded on both direct and cross-examination evidence of the value of the various elements, items and parts of appellants' property being condemned in this action. The court rejected appellants' offer to show by its own witnesses the purchase price paid to them in sales made prior to the commencement of this action of some of the lots owned by others now being condemned which are located intermittently between the lots which belong to appellants and are now being condemned in this action. It also rejected their offer to prove by their witnesses the price paid in a recent sale as acreage of a neighboring subdivision before it had been platted or developed into a residential subdivision, and rejected their offer to prove by their own expert witness the value of their waterworks system which is a part of the property being condemned. On cross-examination of respondents' expert witnesses of the value of appellants' property, after allowing them to testify that certain parts were considered...