State Highway Commission v. System Inv. Corp.

• Decision Date: 03 May 1961
• Docket Number: No. 2967,2967
• Citation: 361 P.2d 528
• Parties: STATE HIGHWAY COMMISSION of Wyoming, Appellant (Plaintiff below), v. SYSTEM INVESTMENT CORPORATION, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 528

361 P.2d 528

STATE HIGHWAY COMMISSION of Wyoming, Appellant (Plaintiff below), v. SYSTEM INVESTMENT CORPORATION, Appellee (Defendant below).

No. 2967.

Supreme Court of Wyoming.

May 3, 1961.

Norman B. Gray, Atty. Gen., and Glenn A. Williams and Robert L. Duncan, Special Asst. Attys. Gen., for appellant.

J. M. Butler and H. F. Fellows, Rapid City, S. D., and Beatrice Raymond, Newcastle, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

On July 16, 1958, the State Highway Commission of Wyoming, the appellant in this court, filed in the District Court of Weston County, Wyoming, its petition for condemnation of about eighty acres through the lands of the System Investment Corporation, appellee in this court. Possession of the land sought to be condemned was taken pursuant to an order of the court. On July 16, 1958, H. A. Grieves, Donald Baldwin and J. E. Oliver were appointed as commissioners to assess the damages to the property of appellee herein. The commissioners duly took an oath on August 4, 1958, and on August 23, 1958, made a return of their findings and assessed the value of the property taken at $5,315. In answer to the statement 'Damages, if any, to remaining property, minus benefits, if any, thereto', they wrote 'Nil'. On September 11, 1958, the appellee herein through its counsel filed an exception to the report of the commissioners, asking, among other things, that the proceedings in the instant case be dismissed, that the report of the commissioners be set aside and that, if the proceedings should not be dismissed, new commissioners be appointed to determine the compensation which should be justly awarded to the appellee. The appellant herein filed a motion to confirm the report of the commissioners. This was overruled by the court. The case was set for hearing on September 17, 1959. At the close of the evidence, counsel for the appellant herein substantially renewed their motion that the report of the commissioners be confirmed. The court made its findings of fact and conclusions of law, stating, among other things, the following:

'Findings of Fact

'I.

'The defendant is and was at all times mentioned herein the owner of the LAK Ranch, which consisted of approximately twenty thousand acres and located in Weston County, Wyoming. Under the condemnation proceedings commenced by the plaintiff it took actual possession of the property described in the petition on July 16, 1958, and has been in possession ever since.

'II.

'The area taken for highway purposes by the plaintiff consisted of 80 acres and after the taking of this acreage by the plaintiff approximately 3,500 acres of the ranch will be on one side of the highway with the balance of the ranch on the other side of the highway.

'III.

'The Commissioners appointed to appraise the compensation due the defendant in the Certificate of Award filed by them found the value of the land taken to be Five Thousand Three Hundred Fifteen Dollars ($5,315.00) and further found that there were no damages, after subtracting benefits, to the remaining property. I find that the Certificate of award filed by the Commissioners was clearly erroneous and was produced by a failure on the part of the Commissioners to even attempt to assess any damage to the remaining land.

'IV.

'I further find that the certificate of award filed by the Commissioners was clearly inadequate as the evidence established substantial damages to the remaining land. The Commissioners were not aware of and had no knowledge of the specific plans of construction and that by reason of this lack of knowledge did not have sufficient information to make an intelligent appraisal of the damages to the remaining land.

'V.

'I find that the land of the defendant remaining after the taking of a portion thereof for the highway is substantially damaged by reason of the interference with the operation and use of the property as a ranch and by reason of the interference with the water and irrigation system and by reason of other factors. Under all the evidence I find that right and justice require an order of this Court amending the certificate of award filed by the Commissioners.

'VI.

'I find the value of the eighty acres taken to be Six Thousand Eight Hundred Seven Dollars and twenty cents ($6,807.20);

'I find the damage to the land remaining after the taking to be Forty-one Thousand Three Hundred Six Dollars and eighty cents ($41,306.80);

'I further find that there are no special benefit accruing to the remaining land as a result of the taking of the eighty acres for highway purposes.

'Conclusions of Law

'I.

'Right and justice require the entry of an order amending the certificate of award filed by the Commissioners. The certificate of award should be amended to provide that the value of the eighty acres taken was $6,807.20 and that the damages to the remaining land, after deduction of benefits, to be $41,306.80.

'II.

'The certificate of award of the Commissioners as amended should be confirmed.'

Section 1-767, W.S.1957, provides that the court 'shall make an order appointing three impartial freeholders of the county, not interested in a like question, to ascertain and determine the compensation to be paid to the owners and persons interested for the taking or injuriously affecting such real property for the purposes stated in the petition.' Other sections of the statute applicable herein are as follows:

§ 1-768. * * * The said commissioners before entering upon their duties as such, shall take an oath to faithfully and impartially discharge their duties as such commissioners; and they shall carefully inspect and view the real estate sought to be taken or affected, and shall thereupon, without fear, favor or partiality, ascertain and certify the compensation proper to be made to the owners and persons interested in the real property to be taken or affected as aforesaid.'

§ 1-769. * * * The said commissioners, or a majority of them, shall make, subscribe and file with the clerk of the court in which said proceedings are had, a certificate of their said assessment, in which the said real property shall be described with convenient certainty and accuracy.'

§ 1-770. * * * The award of the said commissioners may be reviewed by the court in which such proceedings may be had, on written exceptions filed by either party, within thirty days after the filing of such certificate; and, upon good cause shown, the court may order a new assessment, or may make such other order as right and justice may require. If no sufficient exceptions be filed within the said thirty days, and if no application be made within such time for a jury trial, as provided in the next succeeding section [§ 1-771], the report of the commissioners shall be confirmed.'

§ 1-771. * * * When an assessment shall have been regularly made by the commissioners, as aforesaid, either party, within thirty days after the filing of the certificate of such assessment, if not satisfied with the award, may demand, and shall be entitled to, a trial by jury in the district court, by filing in the proceeding a written application to that effect, accompanied by an affidavit that such application is made in good faith, and not for the purpose of delay; and that the affiant verily believes injustice has been done the applicant by the award of the commissioners. If such jury trial be so demanded after an assessment is regularly made, then no new assessment by commissioners shall be ordered under the last preceding section [§ 1-770].'

On October 16, 1959, judgment was entered in conformity with the findings of fact and conclusions of law. On November 4, 1959, the appellant herein filed a motion for a new trial, asking that the judgment in the case be set aside and that a new trial be granted because there was error in the assessment of the amount of recovery, the judgment was excessive, and certain errors were committed during the course of the trial in connection with admission of certain evidence. The motion for a new trial was overruled and the case was brought here by the appellant on appeal.

1. It is the contention of counsel for the appellant that under our statutes the court had only the power to determine as to whether or not the report of the commissioners should be affirmed or disaffirmed and to appoint another commission if it deemed that to be proper. They contend that the trial judge had no power to personally increase or decrease the award of the commissioners. In other words, they contend that the court in itself increasing the award acted in excess of its jurisdiction. That being the contention, we must examine and determine it even though, as noted by counsel for appellee in their brief, the specific point involved was not apparently called to the attention of the trial court. Thus it is said in 4 C.J.S. Appeal & Error § 41, pp. 161, 162:

'* * * The appellate court must of its own motion consider whether the cause was within the jurisdiction of the court or tribunal from which the appeal is taken * * *.

* * *

* * *

'* * * Generally, however, the appellate court may in such cases entertain an appeal or writ of error for the purpose of reversing a judgment or order for want of jurisdiction and dismissing the case or directing its dismissal by the lower court, rather than ordering the dismissal of the appeal, or it may set aside the judgment or proceedings, or reverse and remand the judgment or order for further proceedings * * *.'

Counsel for appellee say that this court has heretofore decided that the trial court may modify the award of the commissioners and that is undoubtedly true to some extent. The case referred to is Laramie Valley Ry. Co. v. Gradert, 43 Wyo. 286, 3 P.2d 88; Id., 43 Wyo. 353, 4 P.2d 1096. In that case the report of the commissioners assessed the damages for the land taken and the damages for injury to the remaining...