State ex rel. Moore v. Bastian

Decision Date17 February 1976
Docket Number11762,Nos. 11720,s. 11720
PartiesThe STATE of Idaho ex rel. Carl C. MOORE et al., Plaintiffs, Appellants and Cross-Respondents, v. Arlon L. BASTIAN and Una Bastian, husband and wife, Defendants, Respondents and Cross-Appellants, and Albertson's, Inc., Defendants and Respondents.
CourtIdaho Supreme Court

Anton Hohler, Legal Counsel, Boise, for appellants.

Lloyd J. Webb of Webb, Pike, Burton & Carlson, Twin Falls, for Arlon and Una Bastian.

Richard R. Reed of Doerr & Reed, Twin Falls, for Albertson's, Inc.

SHEPARD, Justice.

This is an appeal from a judgment following jury trial in an eminent domain action. The action was brought on behalf of the State of Idaho to condemn certain real property in the city of Twin Falls for the purpose of improving a portion of the state highway system. The property sought to be condemned was a small portion of a parcel of land owned in fee by defendants Arlon and Una Bastian. The tract was used as a grocery supermarket and parking lot by Albertson's, Inc., who leased it from the Bastians.

The property was bounded on the south by Addison Avenue and on the west by Washington Street, both of which streets were to be widened for the accommodation of additional lanes of traffic. The property is bounded on the east by Adams Street and on the north by an alley.

The total property consists of approximately 44,388 sq. ft., extending approximately 280 ft. along Addison Avenue and 160 ft. along Washington. The State sought to condemn approximately 8,466 sq. ft. of the property consisting of a strip approximately 21 ft. wide along Addison and approximately 11 ft. wide along Washington.

There is no dispute but that the State is required to pay just compensation not only for the value of the strip of land actually taken, but is also required to compensate for damages, if any, which that severance will cause to the remainder portion of the property. Idaho Constitution art. I, § 14; I.C. § 7-711; Big Lost River Irrigation District v. Zollinger, 83 Idaho 401, 363 P.2d 706 (1961). In addition to defendants' claims for compensation for the property actually taken and the damages accruing to the remainder, however, they also sought damages for the depreciation in the value of the remainder land by reason of expected traffic diversion from controls with the State proposed to place on both Addison and Washington in concert with the widening process. The State proposed to construct a raised center-line median along Addison Avenue, which median would prohibit traffic on that street from turning left across the flow of traffic at any point except at the street intersections. On Washington Street the State proposed to paint a yellow, double-line median, the effect of which the trial court never resolved, despite objections and argument thereon. In our view that question is not material, as in any event all traffic could nevertheless reach defendants' property from either Washington or Addison by travelling no more than one-half to two blocks around the property.

Defendants tendered evidence to show that these traffic control devices would discourage customer patronage at the Albertson's store and thus injure the value of land remaining following the actual take. To the admission of that evidence the State unsuccessfully objected arguing that such was merely a police power regulation and hence any damages which resulted would be noncompensable. The evidence of both defendants relating to damages to the remaining property following severance of the part actually taken was based in part on the impact of these median traffic control devices. The State requested an instruction advising the jury not to award damages for any injury they might find to have been caused by the construction of these traffic control devices, but that instruction was refused. We hold that the denial of the State's requested instruction was prejudicial error. The taking of defendants' property through the process of eminent domain and the consequent damage to the remaining property had no necessary relationship to the median construction. The placement of the medians and any consequent injury such might cause are the results of an exercise of the State's police power rather than a taking under its power of eminent domain. As stated in State v. Ensley, 240 Ind. 472, 164 N.E.2d 342 at 349 (1960):

'The widening of the highway followed by its subsequent transformation into a highway with a divider strip in the center, though contemporaneous with and part of the same construction program, are separate improvements with respect to the appropriation of appellee's property.'

See also Walker v. State, 48 Wash.2d 587, 295 P.2d 328 (1956); see also Johnson v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964); and Smith v. State Highway Commission, 185 Kan. 445, 346 P.2d 259 (1959). As stated in Johnston:

'* * * The court must weigh the relative interests of the public and that of the individual, so as to arrive at a just balance in order that government will not be unduly restricted in the proper exercise of its functions for the public good, while at the same time giving due effect to the policy of the eminent domain clause of insuring the individual against unreasonable loss occasioned by the exercise of governmental power.' 87 Idaho at 53, 390 P.2d at 295.

Courts have traditionally recognized that governmental acts primarily concerned with public safety and arbitration of social conflict are entitled to great weight in that scale. While it is true that defendants have a property interest in access to public streets, Weaver v. Village of Bancroft, 92 Idaho 189, 439 P.2d 697 (1968); Mabe v. State, 83 Idaho 222, 360 P.2d 799 (1961), nevertheless not all impairments of that right by the State are compensable or per se unreasonable. James v. State, 88 Idaho 172, 397 P.2d 766 (1964); Breidert v. Southern Pacific Co., 61 Cal.2d 659, 39 Cal.Rptr. 903, 394 P.2d 719 (1964). That right of access does not encompass a right to any particular pattern of traffic flow or a right of direct access to or from both directions of traffic and we find no compensable impairment of access here. All who wish to reach defendants' property could do so with relatively minor inconvenience. James v. State, supra; Mabe v. State, supra; State v. Ensley, supra; Walker v. State, supra; see also Snyder v. State, 92 Idaho 175, 438 P.2d 920 (1968); Hagman, Urban Planning, pp. 325, 326 (1971); Sax, Takings and Police Power, 74 Yale L.J. 36 (1964).

Although the error above discussed is prejudicial and requires reversal, other issues raised in appeal require discussion to prevent the repetition of error upon remand. The jury was instructed that compensation for the strip of land actually taken (as contrasted to the severance damages which would result to the remaining land) was 'the difference between the market value of the entire parcel of land before the taking and the market value of the remainder after the acquisition * * *.' Such was incorrect. I.C. § 7-711; State v. Dunclick, Inc., 77 Idaho 45, 286 P.2d 1112 (1955); see also Big Lost River Irrigation District v. Zollinger, supra.

It was the State's theory of the case at trial and is its theory on appeal that the compensation for the value of the land taken and the damages to the remaining property by reason of severance should be assessed in total and only thereafter should that total award be apportioned between the lessor Bastian and the lessee Albertson's. The State sought a jury instruction to the effect, but it was denied. The denial of that instruction was error. Great Atlantic & Pacific Tea Company v. State, 22 N.Y.2d 75, 291 N.Y.S.2d 299, 238 N.E.2d 705 (1968); State v. Burk, 200 Or. 211, 265 P.2d 783 (1954); McQuillan on Municipal Corporations § 32.85 (3d ed. 1964); 4 Nichols, Eminent Domain § 12.42 (3d ed. 1975). The mere fact that ownership of land is divided among different persons and of owners of various interests in the title including leasehold does not in and of itself enhance the value of the property. 4 Nichols, supra; 1 Orgel, Valuation Under Eminent Domain, § 107 (2d ed. 1953).

At trial the expert witness testifying on behalf of Albertson's indicated opinion as to the value of Albertson's leasehold interest in the property and the damage that would result thereto. He computed those damages by comparing capitalized and discounted net profits prior to the taking of the property with those to be expected after the taking of the property. The State argues that such type of testimony allowed Albertson's compensation for its lost profits as well as for the damage resulting from the taking of the property. See State v. V-1 Oil Company, 94 Idaho 456, 490 P.2d 323 (1971); City and County of Denver v. Hinsey, 177 Colo. 178, 493 P.2d 348 (1972); 1 Orgel, Valuation Under Eminent Domain § 155 et seq. (2d ed. 1953); 4 Nichols, Eminent Domain § 12.312(1) (3d ed. 1975). We do not agree that such result necessarily followed in the case at bar. Albertson's as lessee of the property, a portion of which was taken herein, is entitled to be compensated for the damages resulting to the fair market value of its leasehold interest. I.C. § 7-711; see Annot., 3 A.L.R.2d 286 (1949). The fair market value of Albertson's interest in the property is the amount of money that a reasonably prudent purchaser would normally pay for such leasehold interest considering the rental obligation that they would thereby assume. City of Chicago v. Shayne, 46 Ill.App.2d 33, 196 N.E.2d 521 (1964); Onego Corp. v. United States, 295 F.2d 461 (10 Cir. 1961); Note, Eminent Domain, Compensation for Leasehold Interest Where No Provision in Lease, 48 Marq.L.Rev. 90 (1964); Annot., 3 A.L.R.2d 286 (1949).

Although the loss of business profits are not compensable as such in eminent domain actions, evidence thereof may be admissible if it bears upon the fair market value of property actually taken and the...

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