State Highway Comm. v. Bailey
| Decision Date | 31 December 1957 |
| Citation | 212 Or. 261,319 P.2d 906 |
| Parties | STATE HIGHWAY COMMISSION <I>v.</I> BAILEY ET AL |
| Court | Oregon Supreme Court |
Proceeding for condemnation of land for limited access highway. The Circuit Court of Curry County, Dal M. King, J., entered judgment on a verdict for defendants and plaintiff appealed. The Supreme Court, Brand, J., held that evidence would be admissible for defendants to show the manner, nature and extent of taking, separation of defendants' land into different tracts and added inconvenience in going about and managing the property, and similar circumstances so far as they cause depreciation in fair market value of land not taken, and in like manner evidence would be admissible for plaintiff to show beneficial effects of rights of access and crossing which tend to minimize the damage.
Reversed and remanded for new trial.
Eminent domain — Pleading — Special benefits
1. In absence of statute requiring special benefits to be specially pleaded, proof thereof is admissible on issue of damages to land not taken, without specially pleading special benefits claimed. ORS 366.380(3).
Eminent domain — Burden of proving amount of damage
2. Defendant in condemnation action must allege value of land taken and damage (reduction in market value) to remainder of tract, and if condemner would show special benefits to reduce such damage it must go forward with the evidence, but burden of proving amount of damage to remainder of tract is upon defendant. ORS 366.380(3).
Stipulations — Condemnation proceeding — Special benefits
3. Any requirement that plaintiff in condemnation proceeding should make offers of proof of special benefits was waived by stipulation of parties, where reply indicated plaintiff's desire to present evidence of special benefits and court's order on motion to strike the reply considered with the stipulation, indicated that any offers of such evidence would be rejected.
Eminent domain — Highway commission — Fee simple
4. The highway commission takes a fee simple title to land condemned. ORS 366.360.
Eminent domain — Special benefits — Set off — Reduce damages — Fair cash market value
5. Special benefits may be set off or employed to reduce the damages to remainder of tract not taken, but cannot be used to adversely affect owner's right to receive the fair cash market value of land actually taken. ORS 366.360, 374.010, 374.035(2), 374.055. Eminent domain — Fair cash market value
6. The fair cash market value of land actually taken includes the land itself and any improvements which are part of the realty.
Eminent domain — Special benefits — Set off — Value of land
7. Special benefits may not be set off against value of land actually seized, but may be set off against injury to residue of the tract or incidental injuries sustained by landowner.
Eminent domain — Jury — Findings — Damages — Benefits
8. It is unnecessary for jury to make special findings as to amounts of damages and benefits in condemnation proceeding.
Eminent domain — Highway commission — Evidence — Special benefits
9. In action to condemn land for limited access highway, highway commission was entitled to present evidence of circumstances tending to show special benefits accruing to parcels by reason of access and crossing rights reserved, and effect of such reservations upon market value of land not taken. ORS 374.055(3).
Eminent domain — Defendants — Manner of location of road — Damages — Plaintiff — Rebut
10. If defendants in condemnation proceeding are permitted to show manner of location of road as bearing on damages, plaintiff may rebut such evidence regardless of rules defining special benefits.
Eminent domain — Items of damages and of special benefits — Depreciation — Market value — Land not taken
11. Damages to land not taken in condemnation proceeding are not to be fixed separately as to each item and then added together, but all items of damages and of special benefit are to be considered together in arriving at amount of depreciation of market value of land not taken.
Eminent domain — Evidence
12. In proceeding to condemn land for limited access highway, evidence would be admissible for defendants to show the manner, nature and extent of taking, separation of defendants' land into different tracts and added inconvenience in going about and managing the property, and similar circumstances so far as they cause depreciation in fair market value of land not taken, and in like manner evidence would be admissible for plaintiff to show beneficial effects of rights of access and crossing which tend to minimize the damage. Const. art. 1, § 18; ORS 366.205, 366.220, 366.320 (2), 366.340, 366.375(1), 366.380, 374.005, 374.010, 374.030, 374.035, 374.055, 374.085, 374.090.
Eminent domain — Benefits — Question for jury
13. Presumptively, construction of limited access highway would result in some special benefits to land, and existence and extent of such benefits would normally be questions for jury upon all evidence and under proper instructions.
Eminent domain — Reject evidence — Special benefits
14. Court can reject evidence of special benefits only when it can say as a matter of law that evidence is so remote and speculative as to show no substantial basis for finding.
Eminent domain — Competent evidence
15. Any competent evidence of matters not merely speculative which would be considered by a prospective vendor or purchaser or which tend to enhance or depreciate value of property is admissible in condemnation proceeding. ORS 35.070, 366.375, 374.055.
Evidence — Expert — Real estate values
16. An expert witness on real estate values need not exclude from consideration any substantial element, plus or minus, which directly affects market value of land, whether or not it also affects the value of other lands.
Eminent domain — Special benefits — Set off
17. Special benefits only may be set off against damages in fixing amount of depreciation in market value of lands not taken.
Eminent domain — "Special benefits"
18. "Special benefits" are those which add anything to the convenience, accessibility and use of property as distinguished from benefits arising incidentally out of the improvement and enjoyed by the public generally; the test is not whether it benefits one or more owners.
See publication Words and Phrases, for other judicial constructions and definitions of "Special Benefits".
Eminent domain — Evidence of general benefits — Not considered
19. Evidence of general benefits, or benefits which are common to the public or which the land of defendants shares in common with lands of others in community which do not abut upon highway, may not be considered in proceeding for condemnation of land for highway.
Eminent domain — Speculative benefits — Speculative damages
20. In condemnation proceeding, speculative benefits or speculative damages may not be considered, but it is the evidence of benefit or damage, not benefits or damages themselves, which is speculative.
Eminent domain — Benefits — Proximate result of improvement — Reasonably probable
21. Only such benefits as are or will be the proximate result of improvement may be considered in condemnation proceeding, and only such benefits as may be shown to be reasonably probable. Eminent domain — Issue of benefits — Particular tract
22. The issue of benefits in condemnation proceeding is limited to the particular tract of which a portion is taken.
Eminent domain — Jury — Consider
23. Jury may consider the entire plan of improvement and probable effect of improvement upon use and value of land condemned, and it may consider all evidence pro and con on that issue, including evidence of improved outlet to market, of higher and better use as for subdivision, residential or commercial purposes, frontage on a better road, modes of access, and in general any substantial evidence that improvement will add to the convenience, accessibility, use and value of land if such benefit is not shared by nonabutting lands.
Eminent domain — Evidence — Special benefits — Other lands
24. In determining admissibility of evidence of special benefits in condemnation proceeding, fact that other lands abutting on the improvement are also specially benefited is immaterial.
See deduction of benefits in determining compensation
or damages in eminent domain cases
18 Am Jur, Eminent Domain §§ 297 et seq
145 ALR 7
29 CJS, Eminent Domain § 274
Appeal from Circuit Court, Curry County.
Frederick A. Morgan, Jr., Assistant Attorney General for Oregon, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Attorney General for Oregon, C.W. Enfield, Assistant Attorney General and Chief Counsel for Oregon State Highway Commission, and Leonard I. Lindas, Assistant Attorney General for Oregon.
J.B. Bedingfield, of Coos Bay, argued the cause for respondents. With him on the brief were J.B. Bedingfield, Jr., and Bedingfield, Grant & Bedingfield, of Coos Bay.
Before PERRY, Chief Justice, and ROSSMAN, BRAND and McALLISTER, Justices.
REVERSED AND REMANDED.
This is an action brought by the State of Oregon by its Highway Commission against Kate L. Bailey, Leslie Zumwalt and Mary Eleanor Zumwalt, husband and wife, and Bernard I. Mather and Alice A. Mather, husband and wife, to condemn land required for a limited access highway. Judgment was entered on a verdict for defendants for $22,000.00 plus interest, and plaintiff appeals. The plaintiff Highway Commission assigns as error the order of the trial court in allowing defendants' motion to strike plaintiff's further and separate reply which alleges purported special benefits to be set off against the damages arising from the condemnation and which order also excluded any evidence in support of those allegations. The contention of defendant is that that reply alleges only general and not special benefits to defe...
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