State ex rel. Department of Highways v. Olsen
| Decision Date | 18 April 1960 |
| Docket Number | No. 4172,4172 |
| Citation | 351 P.2d 186,76 Nev. 176 |
| Parties | STATE of Nevada on Relation of its DEPARTMENT OF HIGHWAYS, Appellant, v. Ruth Garfinkle OLSEN and William Hadley, Respondents. |
| Court | Nevada Supreme Court |
Roger D. Foley, Atty. Gen., William E. Freedman and Earl Monsey, Deputy Attys. Gen., for appellant.
Ernest S. Brown, Reno, for respondent Olsen.
William L. Hammersmith, Reno, for respondent Hadley.
This is an appeal from the judgment of the trial court assessing damages in favor of respondent Olsen resulting from the taking of a parcel of land owned by her, and in favor of respondent Hadley for the taking of an easement owned by him over a portion of the parcel taken from Mrs. Olsen. The easement referred to was used for access to a larger parcel which Hadley leased from Olsen. Thus the question of the value of the taken access became the question or issue of the reduction of the value of the Hadley lease. 1 Condemnation was sought of a parcel of land fronting on the south 128.35 feet on the north line of East Second Street some 300 feet west of Kietzke Lane, 2 and with a depth (subject to some variation) of 150 feet. The parcel thus sought to be dendemned comprised 452 of an acre, and is a portion of a larger parcel owned by Olsen, adjacent to it on the north. Condemnation was sought, in addition to the .452 of an acre owned by Olsen, of the Hadley easement above referred to. Such easement is over a parcel of land 15 feet wide, traversing part of the Olsen property from the northerly line of East Second Street, in a northerly direction, to the larger parcel leased by Olsen to Hadley, and furnishing access to such leased parcel. Such easement was granted to Hadley in connection with and by reason of the Olsen-Hadley lease. Such Hadley lease was for a 10-year period at a monthly rental of $125. At the time of the taking of possession by appellant under an order of immediate occupancy in this proceeding, the unexpired term of said lease was 4 years, 4 1/2 months. The leased property included a large building, to which was attached a smaller frame building. The intended use of the leased property was the storage and sale of gasoline and oil, and more particularly as a truck service station.
The trial court found: The court further found that Hadley was the owner of a subsisting lease with a remaining term of four years, four and one-half months; that he had leased the premises for the specific purpose of using the same for a truck service station; that the easement granted to him for access had been totally destroyed by the condemnation proceedings, and that the original purpose of his lease of the premises had likewise been destroyed; that the market value of his lease for the remaining term was $14,400; that he had installed wiring for the purpose of his lease in the sum of $300, and a gas pump and tanks of the value of $1,200; that his leasehold had been entirely destroyed for the purpose for which it was originally intended. The judgment awarded him damages in the sum of $15,900 in accordance with the foregoing figures.
Appellant states: 'The only issue pertinent to this appeal presented at the trial was the question of damages to the respondents resulting from the taking of the parcel owned by Mrs. Olsen and the easement appurtenant to the Hadley leasehold.' Respondents pinpoint the issue a little more finely as follows: 'This being true, then the question of this appeal might be stated, was there substantial evidence in the record to support the judgment and damages, and was the judgment right in law?'
The following table (round figures being used) will show the difference in the values placed on the respective parcels by the parties to this appeal, and by the court.
Per Per Per
Aplt. Respts. Court
Value of entire Olsen prop-
erty including that taken by
state and that leased Had-
ley, 2 1/3 A. 89,000 93,000
Value of front footage taken 154 250 250
Total value of the property
taken including improve-
ments 31,000 72,000 43,400
Severance damage nil 10,000 5,000
Benefit to larger parcel not More than
taken sufficient to nil nil
offset damage
Damage to Hadley's lease-
hold interest, including im-
provements and market value
of easement taken 9,100 15,900 15,900
As to the front footage valuation, Mrs. Olsen testified to a recent sale of adjoining property for $70,000. Mr. Chambers, the state's expert witness, confirmed and identified this sale as sale of a parcel immediately to the east of Mrs. Olsen's parcel, at approximately $280 a front foot, but which had a depth of over 500 feet, as against a depth varying from 150 feet to 180 feet on Mrs. Olsen's property.
The only witnesses testifying as to values of the property taken were Mrs. Olsen on her own behalf and Mr. Lawrance G. Chambers, Chief appraiser for the state highway department, on behalf of appellant. Mrs. Olsen had owned this property for ten years, owned other business properties in Reno and leased the same, was aware of market values of her own and surrounding properties and had compared recent sales of nearby lands. Mr. Chambers was a civil engineer and had made numerous investigations of values for the state highway department. Both were competent witnesses. At the trial the plaintiff questioned Mrs. Olsen's competency to testify, but she was undoubtedly a competent witness. Vol. III Wigmore on Evidence, 3rd Ed., § 714; Spring Valley Water-Works v. Drinkhouse, 92 Cal. 528, 28 P. 681.
Prior to the making of the formal findings, the court filed a written opinion in which it considered the testimony of both Mrs. Olsen, on the one hand, and Mr. Chambers on the other, the qualifications of both witnesses, and the testimony given by them, respectively, with regard to the several items of value. It would appear then that, as might well have been expected, the evidence was in conflict and that the court had given this conflict its careful consideration, had weighed the testimony and had rejected in part both the higher figures to which Mrs. Olsen had testified and the lower figures to which Mr. Chambers had testified. It cannot be said that there is not substantial evidence to support these findings of value, and in the absence of reversible error on the part of the court, we shall not disturb the findings.
NRS 37.110 requires the court to ascertain and assess (1) the value of the property sought to be condemned and the improvements; (2) if the property sought to be condemned constitutes only a part of a large[r] parcel, the damages which will accrue to the portion not sought to be condemned, by reason of the severance, and the construction of the improvement in the manner proposed by the plaintiff; and (3) separately, how much the portion not sought to be condemned, and each estate or interest therein, will be benefited, if at all, by the construction of the improvement proposed by the plaintiff; 'and if the benefit shall be equal to the damages assessed, * * * the owner of the parcel shall be allowed no compensation except the value of the portion taken; but if the benefit shall be less than the damages so assessed, the former shall be deducted from the latter, and the remainder shall be the only damages allowed in addition to the value of the portion taken.'
(1) Appellant's first assignment of error is that the court's award was made without regard for the construction of the improvement in the manner proposed by the state and without separately ascertaining and assessing the benefits to the remaining property resulting from the improvements proposed; and that this was a direct violation of the statutory provision quoted above.
As to the court's failure to make findings relative to the benefits inuring to the remaining property, it is our construction of the findings that the court's failure or refusal to make a finding of benefits was equivalent to a finding that there were no benefits, Peterson v. Wiesner, 62 Nev. 184, 193, 146 P.2d 789. In any event, the court's failure or refusal to find benefits, followed by the conclusions and judgment in which no benefits were allowed, clearly implies a finding that there were no benefits. Dillon v. Dillon, 68 Nev. 151, 227 P.2d 783.
(2) Nor do we find support for the contention that the award of severance damages finds no support in the evidence. It will be noted from the table that Mrs. Olsen claimed a severance damage of $10,000 and that the court allowed on this item the sum of $5,000. It will be recalled that the taking of the unleased property included the taking of the easement running from East Second Street northerly across the unleased property for access to the leased parcel. It was on the basis of the taking of this easement that Mrs. Olsen testified to the severance damage of $10,000. (The question of the impact and effect upon this situation of the proposed future frontage road abutting the east boundary of the leased parcel and the access road from Second Street to the leased parcel is treated below.) She said: ...
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...by NRS 125.140.' Findings may be implied if the record is clear and will support the order or judgment. State ex rel. Dept. of Highways v. Olsen, 76 Nev. 176, 351 P.2d 186 (1960); Chisholm v. Redfield, 75 Nev. 502, 347 P.2d 523 (1959). When the record is unclear, or devoid of any evidence i......
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...& Terminal Corp. v. Oldetyme Distillers Corp., 300 Mass. 499, 15 N.E.2d 829, 118 A.L.R. 965.3 But cf. State ex rel. Dept. of Highways v. Olsen, 76 Nev. 176, 351 P.2d 186, citing with approval People ex rel. Department of Public Works v. Schultz Co., 123 Cal.App.2d 925, 268 P.2d 117.4 Though......
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