State Highway Commission v. Olson

• Decision Date: 07 July 1965
• Docket Number: No. 10178,10178
• Citation: 81 S.D. 401,136 N.W.2d 233
• Parties: STATE HIGHWAY COMMISSION of the State of South Dakota on behalf of and in the name of the State of South Dakota, Plaintiff and Appellant, v. Joe M. OLSON and Nan Olson, husband and wife, the Federal Land Bank of Omaha, and Commodity Credit Corporation, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 233

136 N.W.2d 233

81 S.D. 401

STATE HIGHWAY COMMISSION of the State of South Dakota on behalf of and in the name of the State of South Dakota, Plaintiff and Appellant, v. Joe M. OLSON and Nan Olson, husband and wife, the Federal Land Bank of Omaha, and Commodity Credit Corporation, Defendants and Respondents.

No. 10178.

Supreme Court of South Dakota.

July 7, 1965.

Frank L. Farrar, Atty. Gen., Richard A. Duncan, Sp. Asst. Atty. Gen., Pierre, for plaintiff and appellant.

Whiting, Lynn, Freiberg & Shultz, Horace R. Jackson, Rapid City, for defendants and respondents.

BIEGELMEIER, Judge.

This is a condemnation proceeding. References to defendants are to the Olsons as they are the owners of the land and the only parties who appeared. They own eight quarter sections of land in a unit referred to as 1179 acres which they purchased in 1956. A description and the location of this land will be helpful. Three of these quarter sections lie in an east and west tier. Along the south side of these quarters is black topped U. S. Highway No. 12 which separates the above quarters from the south five quarters. The latter are not in one block; rather they are adjacent as Olsons own one quarter just south of the middle quarter of the tier of three above mentioned; they rent the quarter just west of it and own the quarter west of that. The other three quarters join these on the south. It would be seen therefore that Highway 12 divides this unit with 480 acres on the north side of the highway and the balance of 700 acres on the south side.

The buildings and a stock dam are on the east quarter of the three quarters lying north of Highway 12. This quarter and those south of Highway 12 are mainly pasture land. The west two quarters north of Highway 12 are cultivated land. This unit of 1179 acres will be referred to as the home place. Olsons also owned 480 acres of land which they purchased in 1960; it is 15 miles west of the home place.

In 1941 the then owner of the middle quarter of the three north of Highway 12 conveyed a 100 foot strip of land of over eight acres to the State of South Dakota for highway purposes which ran diagonally from the southeast corner of that quarter section to the northwest corner. No highway had been constructed and Olson continued to farm it during the intervening years. As this deed was recorded when Olsons bought the land, their purchase was subject to this right-of-way conveyance to the State. In the present action the State is taking a strip of land 50 feet wide on both sides of this previously acquired right-of-way, being an additional eight or nine acres. The jury returned a verdict of $4,600. From a judgment entered thereon the State appealed. As the record contained no assignments of error the judgment was affirmed. State v. Olson, S.D., 132 N.W.2d 927. In a petition for rehearing the State asked and was granted permission to return the record to the trial court for correction to include assignments of error which had been served but omitted therefrom. The appeal is now before us on the merits.

I. The State claims the lower court erred in admitting testimony with reference to damages to Olsons' land which included the west 480 acres. In answer to a question as to the market value of his farm 'as it stood before they decided to build this highway', Mr. Olson testified his whole joint unit, as he called it, of 1659 acres was worth $65 an acre, and that it was worth $60 an acre 'after the highway goes through', making the damage $5 per acre over the 1659 acres or $8,295. Objections made to this evidence were overruled and motions to strike it denied. In support of this evidence it is said that sufficient foundation was laid to show that these two separate tracts of land were operated and farmed as one unit. The evidence to support unity of use showed crops and hay from the 480 tract were hauled to, stored, and fed to cattle at the home place, and that Olson traded allotments of corn and feed base back and forth from one tract to the other.

The owners' witness Lerud likewise testified as to damages using the 1659 acre figure as his base. On a motion to strike this evidence for the reason that the 480 acres 15 miles west was not contiguous to this unit and no unity of use was shown, the court stated there was no requirement that it be contiguous and under model conditions land could be used 100 miles away and be a part of the same unit. 'It is the use to what you put it. It is not where it is. The motion will be denied'. The evidence of witness Knudson likewise was based on this 1659 acre figure.

Objections had been made to tying the two tracts together; they were overruled. Motions to strike were denied. As to these, counsel for defendant stated to the court and overheard by the jury; 'we can show a unity of use. It is all part of one operation', to which the court said: 'Proceed.' That there would be no mistake as to this, counsel for the State asked to have it clarified whether Olsons' counsel in his questions was talking about the whole unit, that is the 1659 acres, and counsel answered that 'we are speaking of the whole place generally.' Later owners' counsel stated: 'I thought, your Honor, we had shown * * * unity of use * * * we had demonstrated that as they go in this country, the place was being used as a unit.' Court: 'The objection is overruled. Proceed.' Cf. Bean v. Best, 77 S.D. 433, 445, 93 N.W.2d 403, 410. The jury may have easily understood this as an indication not only that unity of use was shown by the evidence, but that the ocurt had determined that such unity of use existed as a matter of law. Thereafter, when speaking of damages the court permitted the damages to be testified to, based on the whole unit, or rather the two units as his joint or unitary farm or ranching operation. We think the court erred in admitting this evidence. In State Highway Commission v. Bloom, 77 S.D. 452, 93 N.W.2d 572, 77 A.L.R.2d 533, hay was grown on a 240 acre parcel of flood irrigated hay land, cut and hauled by truck to the home ranch two or three miles away. The court held where there is no dispute in the facts the question of whether physically separated parcels of land constituted one parcel because of common or unitary use is one of law and the described use was not sufficient to allow it to be considered as basis for damages. The situation is much the same here.

II. The State also complains of the giving of Instructions 4 and 13 and the failure to give its requested Instruction 1A. The instructions are to be considered as a whole and, therefore, these and others pertinent are set out:

'--4--

'The sole issue for your consideration is the amount of defendant's damage. * * *

'--6--

'Where part of an owner's land is taken for a public improvement and the part taken constitutes an integral and inseparable part of a single unit to which the land taken and other adjoining land is put, the owner is entitled to recover the full damage to his remaining property due to such improvement even though portions of the public improvement are located on land taken from surrounding owners. * * *

'--9--

'In a condemnation case the question for the jury is the market value of the property to be taken * * *

'--10--

'In arriving at the value of the entire tract prior to the taking, it may be necessary for you to first determine its fair market value prior to such taking. A fair way to arrive as such market value is to determine what a purchaser is able and willing to pay and what a seller, not forced to sell, is willing to sell for. (Emphasis supplied.) * * *

'--11--

'In arriving at the amount of damages to be awarded to defendants, you shall take into consideration the best and most profitable use and purpose to which the entire tract is adapted; and, if it is adaptable to a particular purpose which makes it more valuable for that purpose, you shall consider such purpose.

'In other words, compensation to the defendants must be reckoned and awarded from the standpoint of what he, the land owner, loses by the taking of a portion of his entire unit. (Emphasis supplied.)

'In arriving at the amount of damages, it is your duty so far as possible to make the defendants whole and to restore them to as good a position as they were in prior to the taking.

'--12--

'The State has heretofore acquired a right of way for highway purposes 100 feet in width the damages resulting from which is not to be considered by you in awarding damages.

'--13--

'You are instructed you may consider inconvenience in fixing damages in this case.'

The State's proposed Instruction 1A, which was refused, read:

'You are further instructed that at the time the Defendant, Olson, purchased the land over which the new highway will extend the State owned, and is now the owner of one hundred feet of the right of way required for such construction, * * * and that in taking the additional lands for highway right of way, as in this action, you can only allow compensation for the additional amount of land taken, and the additional damage that would result to the remainder of the Defendants' land. No compensation can be allowed for the right of way previously purchased for such highway purposes nor for any inconvenience that would result therefrom, but you can allow compensation for the additional taking and additional damage caused by such additional taking.'

Though the jury was not specifically so instructed, the measure of damages is the difference between the value of the property before the taking and its value after the taking; a fortiori, this includes a proper allowance of severance damages. State Highway Commission v. Fortune, 1958, 77 S.D. 320, 91 N.W.2d 675. There an instruction which permitted an award of damages to the 'entire tract' was reversed for including the quoted words.

While the instructions given had the merit of being brief and some of them stated legal principles generally, and the objections to those...