State ex rel. Department of Highways v. Pinson

• Decision Date: 01 July 1949
• Docket Number: 3546.
• Parties: STATE ex rel. DEPARTMENT OF HIGHWAYS v. PINSON et al.
• Court: Nevada Supreme Court

207 P.2d 1105

66 Nev. 227

STATE ex rel. DEPARTMENT OF HIGHWAYS v. PINSON et al.

No. 3546.

Supreme Court of Nevada

July 1, 1949

Appeal from Sixth Judicial District Court, Humboldt County; Clark J Guild, Judge.

Condemnation proceeding by the State, on the relation of its Department of Highways, against Victor A. Pinson and others. From the judgment and order denying motion for new trial, the defendants appeal.

Judgment and order affirmed.

See also 201 P.2d 1080.

Carville & Carville, of Reno, for appellants.

Alan Bible, Attorney General, Geo. P. Annand and Homer Mooney Deputy Attorneys General, for respondent.

BADT Justice.

This is an appeal by condemnees from a condemnation judgment and order and from the order denying a new trial. Appellants assert a total failure of proof to support the judgment, both as to the necessity for the taking and as to the compensation. They also contend that they have been deprived of their property without due process of law and without just compensation.

The property condemned, as well as the parcel severed, comprised portions of lands that had been owned by the Pinson family for a great many years and operated by them as a cattle ranch. Portions of the property had already been condemned for a right of way for the Southern Pacific Railroad and later by the Western Pacific Railroad. The present condemnation results in a third taking for a secondary highway connecting with the main highway known as U.S. 40. The Pinsons, strenuously objecting because the taking and the severance both resulted in serious curtailment of their cattle operations, a contention not disputed by the state insisted that there was no necessity for the taking, as the road could skirt their property along the line of the present county road which coincided with an alternate survey proposed by them for the alignment for this secondary highway. The suggestion of this alternate route is the subject of most of the testimony taken concerning the necessity for the taking and is the basis of the main contention of appellants that the necessity for the condemnation does not appear.

The desire of appellants 'to be let alone' so that they might continue their livestock operations without interference as they and their family have done for at least two generations, in their continued engagement in one of the major industries of this state, evokes the sympathetic consideration of this court. These considerations however must give way to the wheels of progress if constitutional guarantees for just compensation and statutory requirements have been met.

Appellants contend that the condemnation of the route through their property grows out of 'convenience,' 'feasibility,' 'economy of construction and maintenance' and not out of 'necessity.' It is true that we find these and similar expressions constantly in the mouths of the state and federal engineers who testified, and it is likewise true that none of these witnesses used the terms 'necessary' or 'necessity' in their testimony. We do find however ample testimony that the alternative route suggested by appellants (the only alternate brought into the case) failed of approval by the state and federal authorities on account of its lack of 'highway safety.' The condemned route 'offers greater safety to the traveling public.' The proposed alternate route had 'excessive grades,' grades up to about 8%, and had a 'considerable angle in it,' and 'sharper curvatures,' a minimum radius of 1000 feet as against the minimum radius of 3000 feet on the condemned route. The grades on the condemned route did not exceed 4%. The proposed alternate was disapproved, among other things, 'in view of the fact of highway safety.' It would have permitted 'poorer vision' and would have been 'extra hazardous.' It would be unsafe except at greatly restricted speeds. Mr. Pinson's engineer, testifying in support of the alternate route, found there is one place a 7 1/2% grade and that to keep it at 6% or under, a cut of approximately 38 feet at the summit would be necessary.

The foregoing examples of the testimony of the state's expert witnesses are sufficient to indicate that the trial court was justified in its finding that the taking was necessary. We may for the purpose of this decision disregard the additional grounds of convenience, feasibility and economy. Nor do we need to indulge the presumption that the most suitable and available location was taken. 29 C.J.S., Eminent Domain, § 269, p. 1250. Or the presumption that the location made by the authorities is necessary and desirable in the light of the subordination of private right to the public good. 18 Am.Jur. 731, Eminent Domain, § 105 et seq. We agree with respondent that the word 'necessity' as used in the statute does not mean an absolute and unconditional necessity as determined by physical causes. If this were so, the purpose of the statute might well be defeated in the great majority of condemnation suits. The word 'necessity' must be deemed to mean a reasonable necessity under all of the circumstances of the particular case. State v. Superior Court, 107 Wash. 228, 181 P. 689; Samish River Co. v. Union Boom Co., 32 Wash. 586, 73 P. 670. The court found that the route in question was designated as Route 18 by Chapter 174, Statutes of Nevada 1945, being Federal Aid Secondary Road No. 613, Project No. S. 613, from Federal Aid Route 1 (U. S. 40), approximately three miles southeast of Golconda, northeasterly to a junction with Getchell Mine Road, approved by the Public Road Commission, March 4, 1946; that the taking was necessary for said highway for the use of the public, and that the location was so made as to be most compatible with the greatest public good and the least private injury; that the use was a public one and the taking necessary; that the Board of County Commissioners of Humboldt County, before the filing of the present complaint, adopted a resolution approving the changes in the routing of this section of State Route 18 as submitted to said Board by the State Highway Department. These findings as to the performance of the acts of official approval are not controverted by appellants except by certain denials on information and belief. The action of the County Commissioners is assailed by appellants for the reason that appellants were not notified of the proposed meeting at which the action was taken. Such attack however is made in connection with the claimed absence of due process, which is briefly discussed later. The compelling reason behind the court's approval of the route chosen by the engineers of the state and the federal government is simply this. There was only one other reasonably possible route, the alternate route suggested by appellants. But that proposed alternate route was not safe. True, the proposed highway was a 'farm and mine to market road' and not a main highway, but the necessity for the safe road cannot be belittled because only one life a year may be saved rather than a hundred.

Appellants likewise contend that the award to them is insufficient, and that the record is devoid of proof to sustain it. Appellants are the owners of Section 16, T. 36 N., R. 41 E., M.D.M. This section is literally cut in two in a northerly and southerly direction by the new highway. A few acres are likewise severed from Section 21 lying immediately to the south. This severed portion is for the most part sagebrush land and was used by the Pinson family in their livestock operations for holding cattle in the spring at a time when they must be removed from the meadows on the Humboldt river and which is yet too early for turning out on the public domain under regulations of the Department of the Interior. It contains some high ground which it is necessary to use in times of flood conditions. Its main use appears to be in fall when the cattle come off the higher ranges and the enclosed field is used for holding, classifying and segregating the livestock in the methods familiar to all cattlemen. There is no doubt but that the severance works not only a hardship but a definite and distinct detriment and damage to appellants in connection with their livestock operations. They also express a perhaps well grounded fear that more of their cattle will be struck by cars and trucks on the highway, and more will be subject to depredations by 'cattle rustlers.' ^[1] They discount any benefit that would result from constructing one or more underpasses under the highway to permit the passage of the cattle back and forth from the severed half section to other portions of their property and to two watering places where the livestock water. They assert that the severed half section becomes worthless to them by reason of its severance and claim their damage in the sum of $7,500.00. The state and the district court accepted the proposition that the severed land would be useless to appellants, and respondent's witnesses fixed a top valuation of $3.00 an acre for the severance, plus $7.00 an acre for the land actually taken for the highway. Adjoining lands of similar character could be purchased for $1.25 an acre. Some restricted use can still be made by appellants of the severed 317.8 acres. Provision was made by the court for the construction of fences and gates, as well as for an additional road to the ranch house of appellants. The court allowed $5.00 an acre for the land severed ($1,589.00) and $10.00 an acre for the land taken ($174.47). No purpose would be served in reviewing the testimony of the parties as to values.

All proper elements offered by any of the parties were apparently taken into consideration, and the findings as to value and damage find ample support in the evidence. We are, in effect asked to say that the trial court...