State ex rel. Rich v. Halverson

• Decision Date: 15 August 1963
• Docket Number: No. 9225,9225
• Citation: 384 P.2d 480,86 Idaho 242
• Parties: The STATE of Idaho ex rel. Roscoe C. RICH, Ernest F. Gaffney and Wallace C. Burns, Idaho Board of Highway Directors, Plaintiffs-Appellants and Cross-Respondents, v. Milo HALVERSON and Ruth Halverson, his wife, Defendants-Respondents and Cross-Appellants.
• Court: Idaho Supreme Court

Page 480

384 P.2d 480

86 Idaho 242

The STATE of Idaho ex rel. Roscoe C. RICH, Ernest F. Gaffney and Wallace C. Burns, Idaho Board of Highway Directors, Plaintiffs-Appellants and Cross-Respondents, v. Milo HALVERSON and Ruth Halverson, his wife, Defendants-Respondents and Cross-Appellants.

No. 9225.

Supreme Court of Idaho.

Aug. 15, 1963.

Faber F. Tway, Chief Legal Counsel, Dept. of Highways, State of Idaho, Andrew M. Harrington, Boise, for appellants.

Stephen Bistline, Sandpoint, Thomas A. Mitchell, Coeur d'Alene, for respondents.

McQUADE, Justice.

This is an eminent domain proceeding brought by the State to condemn a tract of .23 acres owned by the respondents, Milo Halverson and Ruth Halverson, for highway purposes. This tract, herein sometimes referred to as the triangle tract, is located at the junction of U. S. Highway No. 95 and State Highway No. 1, some sixteen miles north of Bonners Ferry, Idaho; situate thereon is a building used for a service station, tavern and novelty shop. As such the property is being put to its highest and best use. Therefore, the dispute in this case centers around the amount of compensation the Halversons should receive for their property; the proper means by which the market value of the property may be established; and the right of the Halversons to receive additional damages for alleged loss in value of another non-contiguous parcel of land resulting from the taking by the State of the triangle tract.

For such additional damages defendants sought to prove that they were owners of a tract on which their home is situate. This tract, referred to as the home tract, is located south of the highway junction and is not contiguous to the triangle tract. Respondents sought to establish, by oral testimony, that they owned the home tract. The State objected to the admission of such testimony on the grounds that record title was the best evidence. When this objection was sustained, the respondents made an offer to prove that Milo Halverson and his two brothers purchased the property in 1947 and took title as tenants in common; that thereafter these owners entered into an agreement whereby this property and other property was divided; that pursuant to this agreement, the home tract was to be conveyed to Milo Halverson; and that due to surveying errors this conveyance had not been completed. The trial court denied the offer. Thereafter, respondents offered to prove that the damage to the home tract resulting from the taking of the triangle tract would be $4,000.00. This offer was also denied.

On the question of value of the triangle tract, Milo Halverson testified that in his opinion, the land and improvements had a fair market value of $30,000.00; Frank Lenhart, on oil products distributor testified over the objection of the State that in his opinion the fair market value of the property was $30,000.00. J. H. McNally, a banker, testified also over the objection of the State, that in his opinion the market value of the property was $28,000.00, and Dale Lee, a real estator, stated that in his opinion the property had a market value of $32,750.00.

Testifying for the State were C. Don Kerby and Ward Tifft, both appraisers. Kerby was of the opinion that the property had a market value of $14,000.00.

At the conclusion of the evidence the jury returned a verdict fixing compensation to be allowed the Halversons for the triangle tract at $25,000.00. Respondents thereafter filed a motion for a new trial contending that the trial court erred in refusing to allow proof of damages to the home tract.

The State moved for a new trial contending the trial court erred in refusing to give certain requested instructions; in allowing Frank Lenhart to testify as to the value of the triangle tract because he was not qualified as an expert appraiser; in allowing cross examination of appraisers testifying for the State, by hypothetical questions when such questions were not based upon facts in evidence; and in allowing in evidence opinions of the market value by other witnesses of respondents when such opinions were based upon gross sales and income derived from the property.

The trial court denied the respective motions for a new trial and entered judgment in accordance with the verdict of the jury. The State appealed from the judgment and from the order denying a new trial. Respondents cross appealed from the order denying their motion for a new trial.

The State contends that the trial court erred in overruling its objections to Lenhart's and Lee's opinions concerning the fair market value of the property upon the grounds that those witnesses were 'not qualified to express such expert opinion' in that they were not familiar with property values in the area.

Lenhart testified that he had lived in Bonners Ferry for 32 years, during which time he was engaged in the garage, service station and wholesale petroleum businesses. In addition, Lenhart was a director of a Bonners Ferry Bank and served on that Bank's loan committee. Lenhart stated that he was not an appraiser but that he was familiar with the triangle tract and general property values in the Bonners Ferry area.

Lee, who resided at Sandpoint, Idaho, stated that he was an insurance broker and in the real estate business. While Lee had received no special formal training as an appraiser, he testified that he had previously appraised property on a number of occasions. Lee, in his real estate business, dealt with all types of property. Both Lee and Lenhart had personally inspected the property involved herein, in an effort to determine its market value.

In Idaho-Western Ry. Co. v. Columbia Conference of Evangelical Lutheran Augustana Synod, 20 Idaho 568, 119 P. 60, 68 L.R.A.,N.S., 497, the following statement, equally applicable herein, appears:

'In the first place, appellant urges that the witnesses who were called on behalf of respondent to testify as to the value of the property to be taken and the damage that would be sustained were not qualified and competent to testify upon the subject of value. We do not consider that the objection is well taken. The appellant had the privilege of cross-examining these witnesses which it exercised to the full extent, and this examination disclosed the extent of the knowledge and information that the several witnesses had on the subject of values, and the reasons which led them to make the estimates they did. The jury was competent, and, indeed, that was its province, to determine...