State Road Commission v. Rohan, 12216

• Decision Date: 27 July 1971
• Docket Number: No. 12216,12216
• Citation: 487 P.2d 857,26 Utah 2d 202
• Parties: d 202 STATE ROAD COMMISSION, Plaintiff and Appellant, v. Walter C. ROHAN et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 857

487 P.2d 857

26 Utah 2d 202

STATE ROAD COMMISSION, Plaintiff and Appellant, v. Walter C. ROHAN et al., Defendants and Respondents.

No. 12216.

Supreme Court of Utah.

July 27, 1971.

Vernon B. Romney, Atty. Gen., John S. McAllister, Stephen C. Ward, Asst. Attys. Gen., Salt Lake City for plaintiff-appellant.

Jack Fairclough, Salt Lake City for defendants-respondents.

CROCKETT, Justice:

The State Road Commission, in eminent domain proceeding, took about one fifth (2,000 square feet) from the rear of a 10,000-square-foot residential lot of the defendants located near 33d South and Wasatch Boulevard in Salt Lake City to accommodate a new freeway. Upon plenary trial a jury fixed damages in the sum of $4,200 which is well within the defendants' expert testimony. The Road Commission appeals contending that it was error to allow defendants' expert, in appraising the decrease in value to the remaining property, to consider noise from the new freeway.

There is no dispute about the fact that the owner of property which is taken for a public use is entitled to 'just compensation' for the property taken; ¹ nor that he is further entitled to severance damages, that is, 'the damages which will accrue to the portion not * * * (taken) * * * by reason of its severance from the portion * * * (taken) * * * and the construction of the improvement * * *.' ²

The rule as generally recognized is that the amount awarded for the property taken should be its fair market value; and that the severance damage should be the difference between the market value of the property before as compared with after the taking, and the construction of the improvement. ³ The parties have not voiced any disagreement about the accuracy of the foregoing statements.

The problem here presented, arising from the Road Commission's contention that it was improper to permit the defendants' expert to take into consideration and testify concerning diminution in value because of increased noise from the new highway, is based on rulings in certain of our cases that 'consequential' damages, or what perhaps could be more aptly described as 'remote' damages, are not recoverable. ⁴ It is reasoned that if damages could be recovered for any asserted lessening of value of property claimed to be attributable to a public improvement, almost insuperable difficulties would arise: in determining how far away from such public improvement the effect of such inconvenience or annoyance would extend to a measurable degree upon the property, and upon its uses, real, potential or imagined, and in arriving at the proper amount of compensation for claimed diminution in values. Added to this is the fact that the multiplicity of such claims, and the responsibility of seeing that they are adjudicated and paid, would place such burdens upon the public entities involved, and upon the courts, as to seriously curtail, or in many instances entirely prevent, the making of needed public improvements.

It is from a consideration of all of the foregoing factors, together with the necessity and desirability of seeing to it that there is a practical means for the creation and maintenance of such facilities, that under our law and previous adjudications it is not now open to question that it would be improper to segregate out and evaluate as a separate item of damage any such intangible factor as noise.

The principle just stated is well illustrated in Jordan v. Utah Ry. Co., ⁵ cited and relied upon by the plaintiff. That is a very good case to point out what we regard as a valid distinction between the correct application of the basic rule we have discussed above, and plaintiff's attempt to apply it to the instant situation. There recovery of damages was allowed for smoke and cinders impelled upon the plaintiff's home by passing trains, but damages for noise were disallowed. It was pointed out that the former were physical harms which impinged directly upon the plaintiff's home. Whereas, the noise from the trains was something of an intangible nature such that there was no physical impact upon the plaintiff's property, but rather pervaded all of the property in the area, and that for the annoyance of that character, not being peculiar and special to the plaintiff, no recovery could be allowed.

Another case cited by plaintiff which deserves comment is State By and Through State Road Commission v. Williams. ⁶ There the value of the land taken was fixed at $750, the severance damage to the home at $3,200, and that there was a further depreciation in the sum of $3,900 because of noise from traffic on the new highway closer to the home. However, based on the reasoning of the Jordan case just referred to, the trial court ruled that the latter could not be allowed as an isolated and separate item of damage. We affirmed. Whatever impression may be gained from language excerpted from the total context of that decision, the thrust of its rationale is not intended to be any different than we declare herein: that there should not be any attempt to isolate and appraise as a separate item of damage any loss of value due to noise or any other such intangible factor; and this is true even where there has been an actual taking of property. Any such attempt to so segregate and place a separate money value on the effect the factor of noise would have upon property would inevitably involve the uncertainty and impracticability above referred to in this decision. This should not be done either for the purpose of making an award of a separate item of damage, as was dealt with in the Williams case, nor for the purpose of fixing a separate amount to be deducted from the severance damage to the remaining property as plaintiff contends here.

On the other hand, in order to correctly evaluate the severance damages, i.e., the damage to the remaining property, it is obvious that it should be viewed in the composite as it will be after the taking and after the improvement has been constructed. In making the appraisal, it is not only permissible but necessary to consider all of the facts and circumstances that a prudent and willing buyer and seller, with knowledge of the facts, would take into account in arriving at its market value. ⁷ The testimony of the defendant's expert which is here under attack indicates that he conformed to that formula. He properly and candidly included the facts that the new freeway adjacent to the property, with the attendant increase in traffic and noises, were among the factors considered in making his appraisal. But there was no attempt to segregate and place a separate money value thereon. We think the trial court was well advised in admitting his testimony and that no prejudicial error was committed.

Affirmed. Costs to defen...