State ex rel. Rich v. Bair
| Decision Date | 06 October 1961 |
| Docket Number | No. 8816,8816 |
| Citation | 365 P.2d 216,83 Idaho 475 |
| Parties | STATE of Idaho, on relation of Roscoe C. RICH, Leonard K. Floan, and Wallace C. Burns, Idaho Board of Highway Directors, Plaintiff-Respondent, v. La Mont L. BAIR and Lillian B. Bair, his wife, Defendants, and Dale Wood and Edith Mae Wood, his wife, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Robert M. Kerr, Jr., Blackfoot, for appellants.
Frank Benson, Atty. Gen., on motion; Wm. R. Padgett, Chief Legal Counsel for Idaho Dept. of Highways, Anton Hohler, Andrew M. Harrington, Boise, for respondent.
Respondent, the State of Idaho, on relation of the Board of Highway Directors, filed its petition for rehearing after release of the initial opinion in this matter. The petition was granted, and the original opinion is withdrawn and this opinion substituted therefor.
The State of Idaho instituted this action to condemn a seventeen foot strip of land, and an adjoining five foot slope easement in Blackfoot, Idaho. Fixtures incident to a service station were on the land condemned, and the buildings of the service station on the remaining ground. The appellants are the owners of the property, other defendants having disclaimed any interest.
The highway improvements, for which this land was sought by the State, has now been completed, and the land and easement involved occupied by the State.
The State's complaint alleged, among other things, that prior to commencement of the action the State Highway Board had sought in good faith to purchase the land and easements, had sought to settle for the resulting damages, and was unable to make any reasonable bargain or make any settlement for the damages. The appellants by their answer denied these allegations, directly raising the issue of compliance with I.C. § 7-707(6) which requires good faith negotiations prior to filing the condemnation action. Appellants also claimed damages for the taking in the amount of $19,500.
This action was heard by the trial court in two stages, first before the court without a jury on the issue of the pre-action attempt to purchase in good faith, and secondly, before a jury on the question of the damages. On the first stage of the hearing the court found for the State, and on the second, the jury returned a verdict in favor on appellants for a total damage of $10,200. From the judgments entered and from certain rulings and orders of the trial court, the appellants have appealed.
Prior to trial, appellants, by interrogatories, sought to obtain copies of reports prepared by the State's appraisers, the appraisal figure of each appraiser, together with the computations, comments and circumstances reported. By another interrogatory they also sought to elicit what the appraisers considered as the highest and best use of the premises in the computation of each appraisal. The State objected to these interrogatories, and the court sustained the State's objections. Appellants assigned error in this ruling, citing the Federal cases of United States v. Certain Parcels of Land, etc., D.C., 15 F.R.D. 224, and Carpenter-Trant Drilling Co. v. Magnolia Petroleum Corp., D.C., 23 F.R.D. 257. These cases held, in effect, that appraisals are not privileged, nor are they the work product of attorneys, when they are prepared by the client in the usual course of procedure prior to litigation. These cases were decided under Federal Rules of Civil Procedure, Rule 26(b), 28 U.S.C.A. These cases are not applicable, for Idaho, in adopting this rule, added inter alia, the following:
'* * * nor shall the deponent be required to produce or submit for inspection any part of a writing which reflects * * * except as provided by rule 35 the conclusions of an expert.' I.R.C.P. 26(b). (Emphasis added.)
These interrogatories sought information dealing with the conclusions of the appraisers, who for the purposes of this litigation are considered as experts within the purview of I.R.C.P. 26(b). City of Chicago v. Harrison-Halsted Building Corp., 11 Ill.2d 431, 143 N.E.2d 40. The trial court was correct in this ruling.
Appellants assign error in certain of the court's rulings in the hearing conducted on the issue of good faith negotiations by the State. They most strenuously question the finding by the court that such negotiations were sufficient to comply with the requirements of I.C. § 7-707(6).
The State, on the other hand, contends that this court, in State v. Styner, 58 Idaho 233, 72 P.2d 699, 702, held that the mere act of making a good faith offer to an owner by letter is sufficient to satisfy the requirements of I.C. § 7-707(6). It is argued that the evidence presented here more than meets the requirements of the statute and the standard suggested by the case of State v. Styner, supra. With this contention we cannot agree. In the Styner case, this court, without further discussion, held that where there was no evidence that the offer had not been made in good faith, and where the plaintiff did negotiate with the property owners, the pleadings and proof were sufficient, there having been no citation of 'effective authorities to the contrary.'
During the hearing before the court on the 'good faith' issue, appellants cross-examined State's witness Millegan, seeking the same general type of information sought by the interrogatories previously submitted and rejected. The trial court sustained objections to this cross-examination as not tending to prove or disprove the matter of good faith. While the scope of cross-examination is largely within the discretion of the trial court, wide latitude should be allowed. Johnson v. Richards, 50 Idaho 150, 294 P. 507; State of Idaho v. Dunclick, Inc., 77 Idaho 45, 286 P.2d 1112.
When applicable, I.C. § 7-707(6) requires an allegation by the plaintiff of two items; First, that plaintiff sought, in good faith, to purchase the property and settle for severance damages; Second, that plaintiff was unable to make any reasonable bargains therefor, or settlement of such damages. If these allegations of the complaint are controverted by the answer, as in the instant case, the burden of proof is on the plaintiff, as in other causes. Evidence tending to prove or establish good faith [or lack of good faith] in the attempt to 'purchase the lands so sought to be taken' or to 'settle * * * for the damages', are relevant and material to the first issue. All matters tending to prove or establish inability [or ability] to make a reasonable bargain or settlement are likewise relevant and material to the second issue. The matters concerned in the cross-examination of State's witness Millegan were material and relevant to the issues before the court, and it was erroneous for the court to limit this cross-examination as was done.
The court refused to admit appellants' exhibit No. 1, a copy of a right of way contract which had been used by Millegan to refresh his memory. This exhibit was shown to have been used in the initial negotiations with appellants and was relevant to the issue. Refusal to admit it was error.
On the initial hearing an offer of proof was made by appellants to rebut certain testimony given by Millegan, who had testified that the customary procedures had been employed in negotiating with appellant. The offer of proof was to show the procedures actually employed by the State's right of way agents in dealing with the witness, and to corroborate procedures testified to by appellants. Denial of this offer of proof is also assigned as error. The matters offered to be proven by this witness were relevant and a proper subject of rebuttal testimony, and should have been received by the court. Cornell v. Harris, 60 Idaho 87, 88 P.2d 498.
Because of the errors in limiting the cross-examination of witness Millegan and in refusing appellants' offer of rebuttal testimony and admission of appellants' exhibit No. 1, this matter must be reversed for further proceedings on the issues presented as to the negotiations had prior to the commencement of this action.
A new trial being required because of errors, previously discussed, we need not consider ...
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