State ex rel. McKelvey v. Styner, 6378

CourtUnited States State Supreme Court of Idaho
Citation72 P.2d 699,58 Idaho 233
Docket Number6378
PartiesTHE STATE OF IDAHO, on Relation of G. E. MCKELVEY, Commissioner of Public Works of the State of Idaho, Respondent, v. E. O. STYNER and HARRIET A. STYNER, Husband and Wife; HARRY FRAZIER and AGNES C. FRAZIER, Husband and Wife, et al., Appellants
Decision Date17 September 1937


1. Statute permitting state and a municipality to contract for joint construction of a highway through municipality and to bring a joint or several suit to condemn land for highway gave state suing alone the right to condemn right of way for highway within city limits. (I. C. A., sec. 39-2108, as amended, Sess. Laws, 1935, 2d Ex. Sess., chap. 4, sec. 3.)

2. In condemnation proceeding by state to acquire right of way for highway, allegation that state tried in good faith to purchase property was sufficient to support proceedings where municipality which had contracted jointly with state for construction of highway necessitating condemnation had tried in good faith to purchase property.

3. In proceeding to condemn property for a highway, evidence as to structural and reproduction costs and value of buildings on land was admissible to determine market value of entire property.

4. In proceeding to condemn property for a highway, the broadest latitude should be allowed in admission of evidence to show value of property.

5. In proceeding to condemn property for a highway, evidence of rental, position, and accessibility of the property to railroad and most valuable possible use were admissible to determine market value of property.

6. In proceeding to condemn property for a highway, evidence of the price paid for property when purchased from an estate was inadmissible since such sale was in the nature of a forced sale and not pertinent in proving market value.

7. In proceeding to condemn property for a highway, evidence of amount of an assessment of value for tax purposes was inadmissible since amount did not prove the market value.

8. In proceeding to condemn property for a highway, evidence of property's location and the flow of traffic near it could be considered in determining market value of property, and hence was improperly rejected.

9. In proceeding to condemn property for a highway, evidence of zoning ordinance restricting use of surrounding property was admissible as bearing on market value of property.

10. In proceeding to condemn property for a highway, photographs of the property were admissible in evidence.


11. Where no valid judgment of condemnation of property for highway was ever entered, in that original entry contained a clerical error and purported correction by final order of condemnation was ineffectual, property owners could review verdict and judgment although they appealed only from final order. (I. C. A., secs, 13-701 to 13-720.)

12. State which was responsible for an incorrect method of correcting a clerical error in a judgment of condemnation of property for a highway could not take advantage of mistake so as to preclude property owners from obtaining a review of the judgment.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Proceeding in eminent domain. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded for a new trial. Costs awarded to appellants.

Guy W Wolfe and J. H. Felton, for Appellants.

The department of public works has the power only "to lay out, build, construct, and maintain state highways," not to "create," "open," or "establish." (Sec. 65-3101, I. C. A., as amended by 1935 Session Laws; Crawford v. City of Bridgeport, 92 Conn. 431, 103 A. 125.)

State highways within the corporate limits of a municipality are defined as "highways designated and taken over improved, constructed, reconstructed, repaired, or maintained within the limits of incorporated cities and villages." (Secs. 39-2101, 49-1141, I. C. A., as amended by Session Laws of 1935.)

The supervision and control of municipalities over public highways, streets, and alleys within the corporate limits is held to be exclusive. (City of Kellogg v. McRae, 26 Idaho 73, 141 P. 86; Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850; City of Genesee v. Latah County, 4 Idaho 141, 36 P. 701.)

In determining market value the jury may consider its value for certain purposes. (Idaho Farm Dev. Co. v. Brackett, 36 Idaho 748, 213 P. 696; Salt Lake City v. East Jordan Irr. Co., 40 Utah 126, 121 P. 592.)

The most valuable use may be considered. (Idaho-Western Ry Co. v. Columbia, etc., 20 Idaho 568, 119 P. 60; Marin Water etc. Co. v. State R. Com., 171 Cal. 706, 154 P. 864, Ann. Cas. 1917C, 114; Ham v. Northern P. Ry. Co., 107 Wash. 378, 181 P. 898.)

Rental value should be considered as an element of value. (Citizens Sav. Bank etc. Co. v. Fitchburg Mutual F. Ins. Co., 87 Vt. 23, 86 A. 1056; Adams & Sullivan v. Sengel, 177 Ky. 535, 197 S.W. 974, 7 A. L. R. 268; Weyer v. Chicago etc. R. Co., 68 Wis. 180, 31 N.W. 710.)

Replacement is an element to be considered in determining value or damage. (St. Louis v. St. Louis etc. R. Co., 272 Mo. 80, 197 S.W. 107; Russell v. St. Louis etc. R. Co., 71 Ark. 451, 75 S.W. 725.)

J. W. Taylor, Attorney General, Ariel L. Crowley and E. G. Elliott, Assistants Attorney General, W. A. Brodhead and Weldon Schimke, for Respondent.

A state highway within a municipality is a highway within such municipality which has been designated, by the department of public works of the State of Idaho, and taken over, improved, constructed, reconstructed. repaired, or maintained by the department. (Sec. 39-2101, I. C. A., as amended, 1935, 2d Ex. Session, chap. 4, p. 10.)

The State of Idaho may bring eminent domain proceedings to obtain right of way for state highways. (Sec. 39-2108, I. C. A., as amended, 1935, 2d Ex. Session, chap. 4, p. 11.)

The real party in interest statute is inapplicable when the party who may bring the action is designated by statute. (State ex rel. Murray v. Pure Oil Co., 169 Okla. 507, 37 P.2d 608.)

Actual sales consummated within a reasonable length of time last past are competent evidence of value. (2 Lewis on Eminent Domain, p. 1144, sec. 664; State ex rel. v. Spokane County Superior Court, 55 Wash. 64, 104 P. 148, 149; City of La Grande v. Rumelhart, 118 Ore. 166, 246 P. 707, 708.)

Cost of moving personal property, or damage to it, is not a proper element in fixing compensation. (Sec. 13-711, I. C. A.; 2 Lewis on Eminent Domain, p. 1277, sec. 728; Central P. R. R. Co. v. Pearsons, 35 Cal. 247, 263; 10 R. C. L. 143, sec. 124.)

GIVENS, J. Morgan, C. J., and Holden, Ailshie, and Budge, JJ., concur.



--This action was instituted to condemn and secure by the exercise of the right of eminent domain certain real property belonging to appellants as a part and link in the Moscow-Troy highway known as National Recovery Secondary Project No. 190 (1935). The State and City of Moscow collaborated in connection therewith, the city to provide the funds to procure the right of way and maintain the portion thereof within the city limits; the State to reconstruct and surface the road.

The question of necessity and attendant questions as to the correctness of the judgment decreeing necessity, and the validity or invalidity of appeal therefrom, or scope in connection therewith in the present appeal, are disposed of by the stipulation as to paragraphs 5 and 6 of the complaint as follows:


"That the tracts or strips of land herein sought to be condemned are to be used for a right of way for laying out, building, constructing, improving, altering and extending one of the state highways of the State of Idaho; that the said highway is a part and link of the established highway system of the State of Idaho, known as the National Recovery Secondary Highway Project 190-A (1935), Moscow Troy Highway; that said highway is a portion of the federal and state highway system in the State of Idaho, and is to be used for travel by the general public; that the highway to be constructed upon said lands is necessary for the safety, convenience, and necessity of the general public; that the same will be a public highway, and the use thereof by the public will be a public use; that the lands sought herein to be condemned are required and are necessary for the laying out, construction and maintenance of such highway for such public use, and the taking of such lands and private property is necessary for such use, and such taking is for a public use, and that the plaintiff herein is in charge of the use for which the property hereinafter described is sought to be condemned.


"That the location and survey of said highway as hereinafter described was made by or under the direction of the plaintiff herein, and that the same is located in such manner as will be most compatible with the greatest public good and the least private injury."



"Agree that the allegations of Paragraphs . . . . V, VI, . . . . of the plaintiff's complaint are true; . . . ."

the stipulation reserving only one question for the court and one for the jury:

"It is further stipulated that the issue of the sufficiency and competency and materiality of said offer of purchase shall be decided by the judge of the court prior to the submission of the question of damages to the jury that the only question to be submitted to the jury is as to the amount to which the defendants are entitled by reason of the taking of the defendants' property by virtue of the proceedings had in this cause, and that the defendants shall have the opening and closing at the trial thereof."...

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