State ex rel. Rich v. Dunclick, Inc.

• Decision Date: 14 July 1955
• Docket Number: No. 8213,8213
• Citation: 77 Idaho 45,286 P.2d 1112
• Parties: The STATE of Idaho, on relation of Roscoe C. RICH, Leonard K. Floan, and David P. Jones, Idaho Board of Highway Directors, Plaintiff-Respondent, v. DUNCLICK, Inc., formerly Mortarless Block, Inc., a corporation; and Reconstruction Finance Corporation, a corporation of the United States of America, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 1112

286 P.2d 1112

77 Idaho 45

The STATE of Idaho, on relation of Roscoe C. RICH, Leonard K. Floan, and David P. Jones, Idaho Board of Highway Directors, Plaintiff-Respondent, v. DUNCLICK, Inc., formerly Mortarless Block, Inc., a corporation; and Reconstruction Finance Corporation, a corporation of the United States of America, Defendants-Appellants.

No. 8213.

Supreme Court of Idaho.

July 14, 1955.

Jeppesen & Jeppesen, Boise, for appellants.

Graydon W. Smith, Atty. Gen., and Allan G. Shepard, Asst. Atty. Gen., for respondent.

KEETON, Justice.

Respondent instituted this action to secure by condemnation certain real property belonging to appellant, Dunclick, Inc. The land sought to be taken is a part of a larger tract. Appellants claim damages for the value of the part taken and which will accrue to the portion not sought to be condemned by reason of its severance from the portion taken, and the construction of the improvement (highway) in the manner proposed.

The issue of the value of the property condemned and the damages which will accrue to the portion not sought to be taken by reason of its severance was submitted to a jury, verdict rendered, and judgment entered.

The testimony disclosed that the parcel of land taken was an integral part of an entire unit used for the manufacture of concrete blocks, pumice products and pipe, and the part taken was used principally for storage and seasoning of the finished manufactured products. Appellants own no other storage site in the manufacturing area.

Adjacent to appellant's manufacturing plant is a tract of land owned by the State of Idaho and it is the contention of respondent that such other land is available to appellant for a storage site--under what conditions does not appear--the contention being that appellant and respondent could exchange lands, the tract owned by the State of Idaho being deeded to appellant as a storage site in lieu of the land taken by respondent.

In furtherance of this theory respondent's attorney in his opening statement to the jury said in part:

'Then we will directly attack the question brought out by defendants: 'Is there any other available land?' I think you folks realize by now the importance of that.'

The statement was objected to as argumentative and not proper. The court ruled: 'Well, I think it is. He is just telling what they intend to prove, and it depends on the proof.' The testimony of appellants' witness to which respondent's attorney was referring was evidently a statement by the witness Dundas that appellants owned no other storage area. The question was 'Now is there any other available storage in the plant? A. There is not.' The witness testified that the storage area owned by appellants was used to capacity.

Mr. Shepard continuing:

'The plaintiff [respondent] will bring before you witnesses to prove that there is other available land; that there was and that there is now, today, other available land. These witnesses * * * will prove to you that the defendants [appellants] and their corporation officers knew and now know that there is other available land; that the defendants [appellants] and their corporation officers not only knew that the property was available but planned upon using it * * *.'

In furtherance of respondent's theory he made an offer of proof to which objection was properly sustained, to the effect that certain witnesses would testify if permitted to do so to the availability of such other land and that a deed to the same had been tendered to appellant Dunclick, Inc.

The consideration to be paid, or conditions under which the conveyance tendered could or would be made to appellants, the cost of improving the claimed available land to make it adaptable to appellants' use, the cost of readjustment to appellants' plant to make practical use of the new location, or what sum would necessarily be required to be expended in order to rehabilitate the property for such use and replace the plant in status quo ante capiendum were not shown. If respondent desires to prove facts for the purpose of mitigating or minimizing the damages sustained to the remainder, proof of availability of other land adjacent to appellants' plant, standing alone with nothing more, is insufficient for such purpose. If other available land can be acquired and proof is submitted proving that the acquiring of such land and the adjustment of appellants' plant as above outlined would minimize the damages, such evidence should be received to so minimize or lessen the damages sustained. City of St. Louis v. St. Louis, I. M. & S. R. Co., 272 Mo. 80, 197 S.W. 107, and authorities therein cited.

Over objection certain witnesses were permitted to testify on behalf of respondent as to the availability of such other land, which could be acquired by appellants in lieu of the part taken.

We quote from the transcript from the cross-examination of the witness Dundas 'Q. Is there any other land available for storage outside the limits of the present plant, Mr. Dundas?

'Mr. Jeppesen [appellants' attorney]: If your Honor please, I want to interpose for the record an objection to that question, as being immaterial to the controversy here on trial.

'The Court: The objection will be overruled. He may answer.

* * *

* * *

'A. Yes, there is lots of land but it is not desirable land.'

The land referred to was shown on Exhibit 2 as belonging to the State of Idaho.

In cross-examination of the witness Truax respondent's counsel asked:

'Q. Now assuming you had that area available to you for storage space and that this area wasn't disturbed other than this small corner, and assuming, as you have said, that the value of the plant before the taking was $225,000, would you not give more than $12,000 for what was left,--the manufacturing plant and this area here?' (Indicating.)

The question was objected to on the ground it was immaterial. The court ruled: '* * * but I think the question is improper, as to what he would give fo it.'

'Mr. Jeppesen: Furthermore it is immaterial to the issue now.'

The part of the question as to what the witness would give for said property was then stricken.

'Mr. Shepard: May I consider my next question to be the same as the last with the exception of this Phrase 'What value would you place on it'?'

Mr. Jeppesen, appellants' counsel, objected to the question as immaterial and the court overruled the objection.

In the cross-examination of the witness Modi, the following questions were asked:

'Q. * * * if other land were available relatively cheaply in the same area then the fact that this was attached to a plant would not in and of itself be important? A. That is right.

'Q. And if it were taken away he could use other property or get other property? (referring to appellant) A. Yes.

'Mr. Jeppesen: * * * I ask that that be stricken for the purpose of an objection.

'The Court: The objection will be overruled. The answer may stand.'

In the cross-examination of respondent's witness Anderson by appellants' counsel, witness stated that his appraisal of the damage appellants would suffer was based on other property being available in lieu of that taken.

An examination of the transcript clearly indicates that it is respondent's theory that other land adjacent or contiguous to appellant's plant, not owned by it, could be acquired by appellant and substituted for the land taken. Further parts of the transcript and testimony admitted could be quoted indicating this theory.

Respondent in its brief argues that such testimony of the availability and substitution of other land for that taken is a proper matter to be submitted to the jury.

Under our constitution and statutes, Art. 1, § 14, Idaho Constitution and sections 7-711 and 7-714 I.C., a defendant in a condemnation suit is entitled to be paid in money the value of the property so taken and the damages which will accrue to the part not taken because of its severance. Ryan v. Weiser Valley Land & Water Co., 20 Idaho 288, 118 P. 769; Jeffery v. Chicago & M. Electric R. Co., 138 Wis. 1, 119 N.W. 879; 29 C.J.S., Eminent Domain, § 191b, p. 1089.

The condemnor cannot force an exchange of land, nor require the condemnee to purchase other lands in lieu of that taken, nor pay for the land taken and damages to the remainder in anything except cash. The law applicable to the damages which appellants will sustain due to the taking does not contemplate an exchange of property, nor can respondent require that appellants purchase or accept other land in lieu of that taken or move the plant, or any part of it, to a new location. The evidence proving damage which will be sustained by appellants and testified to by respondent's appraisers was all based on the theory that there was other suitable available land.

The question of damages was submitted for decision in an atmosphere which could well lead the jury to believe by inference, testimony, or otherwise, that there is suitable available land which should be accepted by appellants in lieu of the land taken either in payment or part payment of the damages sustained.

Instruction No. 2, assigned as error, reads as follows:

'The defendant has admitted that the plaintiff has sought in good faith to purchase the land sought to be taken and settle for the damage which might result to its property by reason of the taking thereof, and that the parties were unable to agree upon a settlement.'

The only province of the jury in the matter before us is a determination of a question of damages. The attempt on the part of respondent to purchase in good faith the land sought to be taken before the bringing of the action and to settle for the resulting damage is not a question to be submitted to the jury. The legal proposition contained in the instruction was exclusively a matter for the court to determine.

In instruction No. 3, after advising the jury that appellants were entitled to recover the fair market value of the land sought to be...