State ex rel. State Highway Commission v. Bassett

• Decision Date: 30 March 1970
• Docket Number: No. 8761,8761
• Citation: 467 P.2d 11,1970 NMSC 51,81 N.M. 345
• Parties: STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Plaintiff-Appellant, v. Carl A. BASSETT, Josephine C. Bassett and Farmers Home Administration, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 11

467 P.2d 11

81 N.M. 345

STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Plaintiff-Appellant, v. Carl A. BASSETT, Josephine C. Bassett and Farmers Home Administration, Defendants-Appellees.

No. 8761.

Supreme Court of New Mexico.

March 30, 1970.

Boston E. Witt, Atty. Gen., Joseph L. Droege, Richard T. Whitley, Sp. Asst. Attys. Gen., Santa Fe, for appellant.

David A. Grammer, Jr., Douglas T. Francis, Albuquerque, for appellees.

PER CURIAM.

Upon consideration of Motion for Rehearing the opinion heretofore filed is withdrawn and the following substituted therefor:

OPINION

MOISE, Chief Justice.

The State Highway Commission appeals from a judgment of $5,317.20 entered in favor of Carl M. Bassett and Josephine C. Bassett, after a non-jury trial of a condemnation action brought by appellant.

Appellees were the owners of a tract containing 73 acres located some distance north of Highway 66 and not abutting thereon. Appellant brought action to condemn a total of 7.596 acres of the southerly portion of appellees' property for the construction of Interstate Highway 40, being a four-lane, divided highway with a service road on the north side and an overpass across the highway at the southwest corner of appellees' property.

At the trial, appellant presented several witnesses who testified concerning the before and after value of appellees' land, basing their opinion of after value on prices received by appellees after the condemnation for acreage adjacent to the overpass, and sales of claimed comparable properties. The testimony was admitted over objection, but the trial judge, in finding 12, stated, 'that there was no admissible evidence submitted by the State to show enhancement of the entire remainder so that the before and after value can be computed by deducting the value of the land taken from the total value before taking.'

Appellant's attack is on this so-called finding. Appellees call attention to other findings, not attacked, which support the conclusion reached and would have us hold as we did in State ex rel. State Highway Comm. v. Pelletier, 76 N.M. 555, 417 P.2d 46 (1966), and in Board of Trustees of Town of Farmington v. Spencer, 75 N.M. 636, 409 P.2d 269 (1965), that no proper attack being made on the findings of before and after value, those findings must be taken as correctly stating the facts, and the appellant could not prevail.

We do not agree with this appraisal of the case. Although the attack is directed at what is denominated as finding No. 12, this so-called finding is not properly a finding of fact. Rather, it is a statement by the court that certain testimony received in evidence was not admissible and, accordingly, was not considered in arriving at the facts otherwise found. It follows that the issue presented is one of law concerning the admissibility and weight to be accorded the particular evidence presented. If relevant and admissible, it would be reversible error for the court to refuse to accord it any weight which, in effect, would amount to its exclusion. See Litzkuhn v. Clark, 85 Ariz. 355, 339 P.2d 389 (1959); Carroll v. Beavers, 126 Cal.App.2d 828, 273 P.2d 56, 59 A.L.R.2d 263 (1954); compare Davey v. Davey, 77 N.M. 303, 422 P.2d 38 (1967).

The particular evidence which was presented, and denied consideration although admitted, concerned actual sales by appellees of two tracts adjacent to the newly constructed highway, and one sale by a third party. Of course, these sales were subsequent to the taking and reflected increased value arising from the construction.

The question here presented is a narrow one. We are called upon to determine if the evidence of sales subsequent to the taking was admissible for the purpose of determining the compensation to which appellees were entitled as of the date of taking. As already noted, the court admitted opinion evidence of the value of the land taken, based on prices received by appellees for acreage adjacent to the property taken, as well as in sales of comparable properties. However, by finding 12, quoted above, the court made it clear that it did not consider that this proof was admissible as a basis for determining benefits to the property remaining after the taking. Accordingly, we must determine whether the court was correct in its expressed view.

The rules governing the question presented are set forth in an annotation appearing in 85 A.L.R.2d 110, and summarized on page 113 as follows:

'The cases involving the question of the admissibility of evidence of the sale price of other real property to prove the value of the real property in controversy reflect two principal views: (1) that the evidence is inadmissible, the minority view; and (2) that the evidence is admissible if the conditions surrounding the two pieces of real property are similar and if the sale of the other real property was neither too remote in point of time nor of such a character as to indicate that it did not represent the true value of the property, the majority view. * * * While there is language in some cases which seems to indicate the existence of a third view that such evidence is admissible in the absolute discretion of the trial judge, it...