State ex rel. Rich v. Fonburg, 8592

• Decision Date: 17 July 1958
• Docket Number: No. 8592,8592
• Citation: 80 Idaho 269,328 P.2d 60
• 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. AI FONBURG, a widower, Walter Fonburg and Betty Doris Tiede, a minor, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 60

328 P.2d 60

80 Idaho 269

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. AI FONBURG, a widower, Walter Fonburg and Betty Doris Tiede, a minor, Defendants-Appellants.

No. 8592.

Supreme Court of Idaho.

July 17, 1958.

Cox, Ware, Stellmon & O'Connell, Lewiston, for appellants.

Graydon W. Smith, Atty. Gen., Wm. R. Padgett, Asst. Atty. Gen., for respondents.

KEETON, Chief Justice.

This is an eminent domain proceeding brought by the State and its Board of Highway Directors, to condemn in fee simple absolute, 12.76 acres of defendant's farm, for highway purposes. The complaint also prays that defendant's access to said road from the land which the proposed highway crosses, be prohibited and restrained.

There is now in existence U. S. Highway No. 95, running to and from Culdesac, Winchester and other points, and defendant formerly enjoyed access to said highway at the Western Boundary of his land. The new road, when constructed, will eliminate the section of highway No. 95, where it now abuts and crosses defendant's land, and will destroy the existent easement for ingress and egress from his land to said highway No. 95, and connecting points, formerly enjoyed.

It is proposed that the present highway No. 95, when the new highway is constructed, will be abandoned in certain particulars. The new road, when constructed, will eliminate a part of highway No. 95, where it abuts defendant's land.

The proposed four-lane, limited access road is to be constructed along the north side of defendant's land and south of the Camas Prairie Railroad, and a spur line connected thereto. Said right of way and railroad were, prior to the present proceedings, contiguous to defendant's land through which the right of way being condemned runs. Defendant will be prevented from crossing the new highway from his land to the railroad, except by a circuitous route permissible at one point. The farm of defendant, across which the new road runs, borders on highway No. 95 and said railroad.

Located on the land being taken are certain improvements, namely, a barn, fence, shed, corral, well and loading chute. These improvements were formerly used in connection with defendant's farm and business.

Defendant also owns land non-contiguous to the land through which the new road crosses, namely, a residence and farm land, located in or near Culdesac, and north from the railroad track, his dwelling being approximately 600 to 1,000 feet distant from the land taken.

On a hearing had in the district court the trial judge held that the use to which the property sought to be condemned will be put is a public use and one authorized by law; that the necessity for the taking was established, and 'There is also condemned and taken herein all rights of access to and from all properties abutting upon the above described parcel No. 24 [land of defendant, which the road crosses], and such rights of access, if any, existing heretofore are extinguished and the usage of any such access is hereby prohibited.'

After the findings of necessity and the public use to which the land and other rights sought to be condemned were to be put, the issue of damages was tried before a jury, and on its verdict, judgment entered for defendant for damages found.

Defendant made a motion for a new trial on grounds that objection to certain offered evidence had been sustained that should have been overruled, and the refusal of the court to give certain requested instructions. From the judgment entered and the order denying the motion for a new trial, defendant Al Fonburg, the landowner, appealed.

In assignments of error, appellant challenges the right of plaintiff to condemn property for the purposes intended, claims that there is no legal authority to condemn defendant's right of ingress and egress to his property abutting the proposed new highway; also error in receiving certain evidence, sustaining objection to other offered evidence, and certain instructions given and others refused.

We shall first address our attention to the contention that the State has no authority to prohibit access to a public road by a landowner through whose land the road is constructed.

By the provisions of subd. 9, Ch. 260, 1955 S.L., the Board of Highway Directors is empowered to purchase, condemn, or otherwise acquire real property in fee, including rights of direct access from property abutting highways with controlled-access, deemed necessary by the Board for present or future state highway purposes.

This provision was amended by Ch. 227, p. 520, 1957 S.L., now codified as Sec. 40-120 I.C. (Supp.), by the terms of which the Idaho Board of Highway Directors is given power to:

'(9) Purchase, condemn or otherwise acquire (including exchange), * * * any real property, either in fee or in any lesser estate or interest, rights-of-way, easements and other rights * * * and rights of direct access from the property abutting highways with controlled-access, deemed necessary by the board for present or future state highway purposes. The order of the board that the land sought is necessary for such use shall be prima facie evidence of such fact.'

The amendment was not in effect when this action was commenced, February 1, 1957, but was in effect when the action was tried.

By the provisions of Sec. 7-701, I.C., among the uses that the right of eminent domain may be exercised, specifically provided, among other things, for the construction of roads.

If appears from a reading of these statutes that the State is authorized to do what it proposes to do in this proceeding, namely, to condemn land to be used for a limited access highway and acquire the fee title to privately owned property, limiting or curtailing entry of an adjoining landowner which would ordinarily be appurtenant to the land not taken.

The statute quoted specifically provides for the taking of land for a controlled-access highway, deemed necessary by the Board of Highway Directors.

The power of eminent domain extends to every kind of property authorized by law within the jurisdiction of the State, when taken for a public use, including the right of access to and from a public highway.

The contention made here that access to a public highway by an adjoining landowner cannot be prohibited, has been presented to other courts for determination, and while the rules adopted as applicable to the situation are not in all respects in accord, we think the following cases sustain the contention that the land and easements, including access formerly enjoyed by the landowner and sought to be taken in this proceeding, may be acquired and taken in the manner attempted: State, By and Through State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783; State v. Calkins, 50 Wash.2d 716, 314 P.2d 449; State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57; Petition of Burnquist, 220 Minn. 48, 19 N.W.2d 394; Carazalla v. State, 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276.

Appellant further assigns as error the receiving in evidence of exhibit No. 2. This is an order of condemnation made by the Board of Highway Directors, by which the Board concluded that the construction of the highway across defendant's land, in the manner proposed, is necessary for a public use and because of the inability to settle with the landowner, the condemnation proceedings were ordered. The order of the Board that the land sought in this proceeding is necessary for a public use is prima facie evidence of such fact. Sec. 40-120, I.C. (Supp.), subd. 9. The resolution and order were properly admitted in evidence.

Prior to the institution of the action and while negotiating a settlement, the State offered, among other considerations, to build a cattle underpass at station 676 plus 50. The offer was not accepted by defendant. No settlement was made and in the construction of the highway, the underpass was not a part of the plans. Defendant contends that a cattle chute should be constructed by the State.

When, as here, an offer of settlement was by the landowner refused, the State is not bound by the offer, and could not, after such refusal, be required as part of its plans and specifications to construct an underpass. The offer of the State, if made, was nothing more nor less than an offer of compromise, and an attempt to settle the issue of damages with the landowner.

If a cattle underpass were shown to be necessary, its nonconstruction could be compensated for in damages, if any such were proved.

Defendant Fonburg was asked the question 'Will you state whether you asked the State to provide you with an access road?'

Objection to the question was sustained and the ruling is assigned as error.

The landowner could not require the State, over its objection, to construct an access, or any road different from the one proposed in its plan of construction, and objection to evidence offered in this regard was properly sustained.

The contention of appellant in assignments of error and arguments here made, that his residence in Culdesac, and ownership of land non-contiguous to and disconnected with the land sought to be condemned should be considered as an element of severance damage is not sustainable.

The different parcels of defendant's land, separated and located at a distance, one from the other, one south of the track and the other north, are not severed by the proposed...