State Highway Commission v. Hayes' Estate

Decision Date03 March 1966
Docket NumberNo. 10197,10197
Citation140 N.W.2d 680,82 S.D. 27
PartiesThe 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. John J. HAYES ESTATE, Candace Hayes, Administratrix of Estate of John J. Hayes, Candace Hayes, Monte D. Schell, Charlene L. Schell, and the Equitable Life Assurance Society of the United States, Defendants and Respondents.
CourtSouth Dakota Supreme Court

Frank L. Farrar, Atty. Gen., John B. Wehde, Carl W. Quist, Asst. Attys. Gen., Pierre, for plaintiff and appellant.

Hanley, Costello & Porter, rapid City, for defendants and respondents.


This is an eminent domain proceeding by which the State Highway Commission of the State of South Dakota, hereinafter referred to as the State, has condemned certain land owned by Candace Hayes and her daughter, Charlene L. Schell, hereinafter referred to as the Hayes estate, as a part of the construction of Interstate 90 between Rapid City and Wall, South Dakota. A jury awarded the Hayes estate the sum of $69,337.00 for the property taken and damaged. The State appeals from the judgment entered on such verdict. The amount allowed has not been challenged either by motion for new trial or other proper procedure. In seeking a reversal the State contends the court erred prejudicially by various rulings made during the course of the trial.

Prior to the taking, the Hayes estate ranch consisted of 4,034.61 acres of fee title land. A small amount of additional land was leased and used with the unit. Starting with one quarter section in 1927, Candace Hayes and her husband, who died in 1949, had enlarged and improved the ranch to its size and condition at the time of condemnation. The State took for highway purposes, channel changes, borrow pits, and other construction needs, a total of 168.14 acres of which 8.42 acres was section line. The right-of-way taken for the most part is 300 feet wide and crosses the entire ranch from east to west, a distrance of about 3 1/2 miles, and leaves 1,351 acres with the ranch buildings north of the interestate and the remainder of 2,515 acres south of it. Interestate 90 as it crosses the Hayes property is a two-lane controlled-access divided highway and the outside right-of-way line is fenced. An interchange is located near the east boundary of the ranch. The State constructed a 5 X 7 cattle pass beneath the highway. This is the only means of access for livestock from the north portion to the south portion of the ranch; otherwise they would have to be trucked. The evidence was conflicting as to the feasibility and extent to which the cattle pass could or would be used. Machinery can only be moved from one side of the interstate to the other via an overpass at the interchange.

The ranch before the taking was all contiguous or cornered, somewhat irregularly shaped, and was bordered on the north and west almost in its entirety by the Cheyenne River. U. S. Highway 14-16 formerly was located on the north side of the Cheyenne and traversed a small area of the ranch north of the buildings. There were no restrictions on crossing such highway and the acreage north and east thereof was for the most part cropland with a small part being used for hay and alfalfa, and for winter range.

Monte Schell, the husband of Charlene, has operated the ranch since 1956. In his testimony he gave a detailed description of the ranch, its operation, and the effect of the taking upon its future operability. It was described as a well balanced diversified beef and feeder ranch capable of handling 300 stock cows on a year-around basis. Balance meant it had sufficient summer pasture, winter range, shade, shelter, water, hay land, alfalfa ground, and cropland to sustain its full potential throughout the year with minimum effort and expense. Live water was provided cattle through uninhibited access to the Cheyenne River which since construction of the Angostura Dam maintained a consistent flow through the seasons. In the rougher area of the ranch dams had been construced which were dependent on snow runoff and rainfall for utilization. Two shallow wells were also located on the property; one at the headquarters and the other towards the north portion of the property.

The summer pasture for the most part was located in the west and northwest portions of the ranch adjoining the Cheyenne River. In the southwest portion was a hay meadow of about 120 acres which was flood irrigated and described as 'the heart of the operation' because it served as the source of an abundant supply of hay even in the driest of years; the average being about 300 tons annually. This meadow was isolated by the taking and required construction of access roads to permit future use. The State witnesses said it should be abandoned and reverted to summer pasture and other land should be converted to haying and forage crops. The landowner's witnesses contended otherwise. Travel distance between the hay meadow and headquarters before the taking was 3 1/2 miles over relatively flat terrain; on the new road it would be increased to 10 miles over rough ground.

The normal operation would put the stock in the summer pasture area in late spring or early summer and move them to the east portion and nearer the headquarters in late fall or early winter. The topography of the latter area was such that the rough ground and breaks would serve as natural shelter from prevailing northwesterly winds. Hay and feed crops would be moved from the southwest meadow and other feed producing portions of the ranch to an area near the headquarters where it was easily accessible for winter feeding. Spring calving would also occur in the pasture areas near the headquarters and cattle had free access from the south to the buildings and pens near the headquarters and could be easily nursed, fed and cared for.

The land taken by the State begins where Interstate 90 crosses the Cheynne River south of the town of Wasta and follows the low lying portions of the ranch and meanders between the bottom land and breaks. The route in general traverse the same trail formerly used in traveling from the headquarters to the west and southwest parts of the ranch and in moving hay from the southwest meadow to the headquarters. Two stock dams were destroyed by the construction.

The State contends the trial court erred prejudicially when it permitted the witness Schell to testify to estimated costs of rehabilitating and restoring the ranch to usability after the taking.

The measure of damages in condemnation cases involving a partial taking is the difference between the fair market value of the unit before the taking and the fair market value of what remains after the taking. City of Briestol v. Horter, 73 S.D. 398, 43 N.W.2d 543; State Highway Commission v. Fortune, 77 S.D. 302, 91 N.W.2d 675. In the application of this rule severance damage to the remaining property is included in an award without being designated as such and the amount allowed for the property actually taken is not segregated from the damage to the remainder. In estimating the damages to the remainder, or in other words, the depreciation in value of the part not taken, the landowner is entitled to have the jury informed as to all those facts which legitimately bear upon the market value of the ranch before and after the taking and those factors which would ordinarily influence a prospective purchaser in negotiating for the property. The manner in which the ranch was used before the taking and the manner in which it can be used afterwards is of prime importance. Anything which is directly injurious to its particular adaptability or detracts from its use at maximum efficiency affects market value and is competent and a legitimate factor in establishing total damages sustained within the contemplation of an award of just compensation. 18 Am.Jur., Eminent Domain, Sec. 266.

As a general rule, in determining the diminution in market value of the land not taken, it is proper to take into consideration the expense made necessary by the improvement, 29A C.J.S. Emient Domain Sec. 164, in order to restore the land to its most advantageous use, 18 Am.Jur., Eminent Domain, Sec. 269, or in adjusting it to the changed conditions brought about by the taking. Piam County v. De Concini, 79 Ariz. 154, 285 P.2d 609; Wood v. Wyoming County Court, 100 W.Va. 29, 129 S.E. 747; Currie v. Glasscock County, Tex.Civ.App., 212 S.W. 533; 4 Nichols on Eminent Domain, 3rd Ed., Sec. 14.247.

In Pima County v. De Concini, supra, the court said: 'If the damaged property can be advantageously reconstructed or rearranged, then the cost of such reconstruction or rearrangement is a matter that should be considered by the court or jury in fixing the market value subsequent to the taking. * * * 'We think these matters were properly received in evidence as descriptive of the injury inflicted, and the burden imposed on the property by the occupation of it for railroad purposes, and that they were for the consideration of the jury, not as specific items of claim, but as affecting market value.' The rule also is that in arriving at the market value of land which has been damaged by the exercise of the right of eminent domain the court has a right to admit evidence of possible expenditures which, if expended, would diminish the damages.' However, the court said the expenditures must not exceed the difference in market value before and after the taking. Such would not occur in the instant case.

In the light of these principles we review the record on appellant's claim of prejudicial error. The witness, Monte Schell, emphasized constant availability of 'live water' from the Cheyenne as a major element in the before value of the ranch and its loss or marked curtailment of use as of primary significance in fixing the after value. Without objection by the State, he testified to a dearth of a water...

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