State ex rel. State Highway Commission v. Pelletier

• Decision Date: 18 July 1966
• Docket Number: No. 7771,7771
• Citation: 417 P.2d 46,1966 NMSC 141,76 N.M. 555
• Parties: STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Petitioner-Appellant, v. Raymond PELLETIER and any and all Unknown Owners or Claimants in the Premises herein sought to be Acquired, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 46

417 P.2d 46

76 N.M. 555

STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Petitioner-Appellant, v. Raymond PELLETIER and any and all Unknown Owners or Claimants in the Premises herein sought to be Acquired, Defendants-Appellees.

No. 7771.

Supreme Court of New Mexico.

July 18, 1966.

Boston E. Witt, Atty. Gen., Hadley Kelsey, Joseph L. Droege, John C. Worden, Oliver G. ricketson, George D. Sheldon, Richard T. Whitley, William S. Martin, Jr., George E. McDevitt, Special Asst. Attys. Gen., Santa Fe, for appellant

Hannett, Hannett & Cornish, H. Vern Payne, Albuquerque, for appellee.

OPINION

MOISE, Justice.

Appellant-State Highway Commission here appeals from an award of damages to appellee-Pelletier. Involved are two tracts of land referred to by the parties as Tracts 2 and 3. Prior to this condemnation proceeding, Tract 2 was a triangular piece lying south of U.S. Highway 66, containing .283 acres. Tract 2 was totally taken in this proceeding and an award of $2,932.00 made therefor. Tract 3 lay north of the old U.S. Highway 66, and had direct access to both lanes of travel. In this proceeding, .477 acre was taken out of a total of 9.354 acres, leaving 8.877 acres. In addition, direct access to the through highway was cut off. However, the old highway was continued generally in the same position as it was before construction of the four-lane divided highway, and appellee could use it to go either east or west just as he had been able to do before this proceeding was started. Also, access was available to the express lanes via an interchange located some 1700 feet west of appellee's property. The court found that the value of Tract 3 had been reduced by $425.00 because of the taking.

Appellant's first point is directed at the court's refusal to make certain findings requested by it. Without setting them forth, we would note that most, if not all of the requests cover evidentiary matter about which there is no conflict or argument. The only facts which a court is required to find under Rule 52(B)(2) (§ 21--1--1(52)(B)(a)(2), N.M.S.A.1953) are the ultimate facts necessary to support the judgment. Franklin's Earthmoving, Inc. v. Loma Linda Park, Inc., 74 N.M. 530, 395 P.2d 454. We do not consider the findings requested were either ultimate facts, or material to the decision. Accordingly, it was not error for the court to refuse to make them even though they may have been correct. Middle Rio Grande Conservancy District v. Crabtree, 69 N.M. 197, 365 P.2d 442.

By its second point, appellant asserts error in the court's failure to conclude that appellee was not entitled to any damages by virtue of the interference with access to his property. We find no merit in this argument because we see nothing in the record to indicate that any damages were awarded for this reason. In the first place, decision in the case was reserved by the trial court until after our determination of State ex rel. State Highway Comm. v. Danfelser, 72 N.M. 361, 384 P.2d 241, cert. denied, 375 U.S. 969, 84 S.Ct. 487, 11 L.Ed.2d 416, in which case it was held that compensation was not payable for reasonable intereference with access. Certainly, in the light of that case, and in a situation such as is here present where the facts are even more nearly like those in Board of County Com'rs v. Slaughter, 49 N.M. 141, 158 P.2d 859, no one would suggest that any compensation would be allowed for interference with direct access to the main lanes of travel in the new highway, the old highway being left undisturbed and available as before. Additionally, it should be noted that the principal part of the award here is for the total taking of Tract 2. Reasonable access being an incident of ownership of land abutting on a road, State ex rel. State Highway Comm. v. Danfelser, supra, an award of damages for a part of the whole would not be proper when the entire tract is taken. Of course, it could be argued that, in awarding $425.00 in the taking of .477 acre, some consideration must have been given to loss of access. However, when a value of approximately $890.00 per acre on Tract 3 is compared to a value of some $10,360.00 per acre on Tract 2 where, as already noted, there could be no question of deprivation of access or damages therefor, we do not consider that any error was present in refusing the conclusions requested.

In appellant's third point, an attack is made on the testimony as to value of the expert witness presented by appellee, and error is claimed in the trial court's refusal to strike the same. Argument is made concerning claimed patent errors in the testimony of this witness. It is asserted that the expert's testimony is based on a mistaken idea as to the dimensions of Tract 2; an incorrect view of the availability for business purposes of other lands adjacent to the highway; a juggling of per acre and front foot criteria in arriving at value; as well as a misconception of the proper application of the rules for arriving at value for condemnation purposes. The misunderstanding of the appraiser is further described as resulting in errors in (1) the application of the principle of the highest and best use; (2) considering appellee's purposes when he purchased the property; (3) incorrectly applying appraisal methods; and (4) using a front foot method of valuation under the facts of this case.

The difficulty with appellant's position is two-fold. In the first place, no proper attack is directed as required by our rules at the findings of fact made by the trial court, wherein the damages already noted were found. In the absence of such an attack, the findings of the trial court are the facts upon which the appeal must be determined. Hopkins v. Martinez, 73 N.M. 275, 387 P.2d 852; Huthison Lumber Co. v. Boney, 72 N.M. 194, 382 P.2d 525; White v. Wheeler, 67 N.M. 346, 355 P.2d 282. The requested findings discussed above, and the point made in connection with their refusal, are in no sense a substitute for the requirement of a direct attack.

Equally serious is appellant's failure to raise in the trial court and to invoke a ruling on some of the issues here attempted to be presented. It is the rule in this court, oft repeated, that except for jurisdictional matters, issues not urged in the trial court may not be raised for the first time on appeal. Roseberry v. Phillips Petroleum co., 70 N.M. 19, 369 P.2d 403.

Only two issues argued under this point were presented below, viz., should loss of access and the owner's purposes in purchasing the property be considered as an element of damages? The first of these matters is disposed of by what we have said above. The second we now consider.

We quote the following from Transwestern Pipe Line Company v. Yandell, 69 N.M. 448, 454, 367 P.2d 938, 942, concerning the correct measure of damages in a condemnation proceeding:

'In arriving at the proper amount of compensation to be allowed in condemnation proceedings, this court has said that the correct measure of damages is the difference in the value of the property immediately before the taking and the value of the property immediately after the taking, the owner being entitled to the difference in these sums, in addition to a recovery for the various elements of damage to the remaining land not taken but injuriously affected. City of Tucumcari v. Magnolia Petroleum Co., 57 N.M. 392, 259 P.2d 351; Board of County Com'rs of Santa Fe County v. Slaughter, 49 N.M. 141, 158 P.2d 859; 38 A.L.R.2d p. 790; 29 C.J. S. Eminent Domain § 139; that where the taking results in benefit to the lands not taken, then the benefits are to be offset against the damages. Board of Com'rs of Dona Ana County v. Gardner, 57 N.M. 478, 260 P.2d 682; that where there are no benefits and no consequential damages as a result of the taking, then the correct measure of...