State v. Evans
| Decision Date | 27 May 1980 |
| Docket Number | No. 2992-III-1,2992-III-1 |
| Citation | 612 P.2d 442,26 Wn.App. 251 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Appellant, v. Donald M. EVANS and Ramona L. Evans, his wife; Albert T. Evans and Cynthia Ann Evans, his wife; Neal H. Evans and G. Glennette Evans, his wife; Ornia R. Evans and Lucille Evans, his wife; Robert C. Evans, Jr., and Virginia Evans, his wife, d/b/a D & E Livestock Company, a partnership, also d/b/a Evans Bros., a partnership, a/k/a Evans Brothers; Louise E. Gaunt, a widow; Sunnyside Valley Irrigation District; and Benton County, Respondents. |
Slade Gorton, Atty. Gen., Joseph B. Loonam, and Charles S. Secrest, Asst. Attys. Gen., Olympia, for appellant.
Alan A. McDonald, Bryan G. Evenson, Halverson, Applegate & McDonald, Yakima, for respondents.
In this condemnation action, a jury awarded Donald M. Evans 1 $400,000 for the State's taking of 17.58 acres and severance damages to his feedlot because of the construction of Interstate Highway 82 east of Prosser. The State appeals from the judgment entered upon the verdict.
Evans owned 746.67 acres of land consisting of 645.43 acres of undeveloped dry land, 61.29 acres of land devoted to commercial or light industrial, 26.95 acres of irrigated pasture, 12 acres of plum and prune orchards and 1 acre of grapes. Approximately 57.5 acres of the 61.29 acres devoted to commercial or light industrial consisted of two cattle feedlots and improvements. The north feedlot abutting the area of the "take" is the lot in issue, as well as an adjacent feed mill which was located on land not owned by Evans. During the trial the jury had an opportunity to view the property.
Two issues central to this appeal involve (a) the status of the feed mill in conjunction with the feedlot, and (b) the value of the feedlot before and after the taking.
The State frames its first contention as follows:
The Court Committed Reversible Error by Allowing Testimony Which Included the Value of the Feedmill in the Overall Value of the Subject Property Absent Proof That the Respondents Had an Enforceable Interest in the Property Upon Which the Feedmill Was Located.
Evans had leased land adjacent to his own property from Burlington Northern Railroad for about 10 years. On the leased land he built a feed mill where he mixed feed for the cattle in his feedlots. At trial, the State claimed that the land on which the feed mill was located did not belong to Burlington Northern Railroad, but was owned by the United States Bureau of Reclamation. The trial court did not allow the State to raise that issue because neither the Bureau of Reclamation nor the railroad was a party and any adjudication of title would not bind either party.
Before addressing the status and value of the feed mill, we set forth some basic principles on the taking of private property by the State. Private property may not be taken or damaged for public use without just compensation. Washington Constitution Article 1, § 16 (amendment 9). In Lange v. State, 86 Wash.2d 585, 589-90, 547 P.2d 282, 284-285 (1976), the court made several significant statements regarding compensation:
"(J)ust compensation derives as much content from the basic equitable principles of fairness . . . as its does from technical concepts of property law." United States v. Fuller, 409 U.S. 488, 490, 93 S.Ct. 801, 803, 35 L.Ed.2d 16 (1973); . . .
. . . forced to sell, he is not to receive by reason of that fact a lesser amount than the property would fairly bring upon the market." Chelan Elec. Co. v. Perry, 148 Wash. 353, 358, 268 P. 1040 (1928). In carrying out our duty to achieve fairness in condemnation awards, we have recognized that just compensation must be calculated from the standpoint of what the property owner loses by having his property taken, not by the benefit which the property may be to the condemnor. . . .
. . . (J)ust compensation is to be determined by equitable principles and . . . its measure varies with the facts." . . .
In the usual eminent domain proceeding, the property is valued as of the date of the trial.
(Citations omitted.)
The State is required to pay damages not only for that part of a tract taken but is also required to pay for that "diminution in value of the remainder area by reason of the severance therefrom of the parcel appropriated . . ." 4A J. Sackman, Nichols' on Eminent Domain, § 14.1(3) at 14-33 and § 14.21 (rev. 3d ed. 1976); Idaho & Western Ry. v. Coey, 73 Wash. 291, 131 P. 810 (1913); cf. United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55 (1943).
For a property owner to be entitled to severance damages, the courts usually require three elements: ownership, use, and contiguity. Here, the State concedes that as to the entire 747 acres, there are severance damages. However, the State contends that as to the land upon which the feed mill is located, there is a lack of unity of ownership; thus, Evans could not claim damages to the feed mill. State v. Lacey, 8 Wash.App. 542, 507 P.2d 1206 (1973).
We agree with the authority cited by the State that before one may maintain a claim for compensation in an eminent domain proceeding, one must have an enforceable interest, State v. J. R. Leasing Co., 1 Wash.App. 944, 466 P.2d 185 (1970), and the proper procedure is to determine as a preliminary question whether a condemnee has any legal rights or claim in the property for which he seeks damages. Tacoma v. Mason County Power Co., 121 Wash. 281, 209 P. 528 (1922). The State need not admit or prove the nature or extent of title until trial. Chelan Elec. Co. v. Perry, 148 Wash. 353, 356, 268 P. 1040 (1928); Walla Walla v. Dement Bros. Co., 67 Wash. 186, 190, 121 P. 63 (1912). However, implicit in the State's contention here is that if the feed mill were located on the railroad property, evidence as to the use of the mill would be admissible on the issue of severance damages as an adjunct to the feedlots. Its contention here and at trial rested solely on the lack of any enforceable interest on behalf of Evans in the feed mill land. Assuming arguendo the State's contention was correct, Evans' interest in the realty, if any, was of no consequence because the State was not condemning the property upon which the feed mill was located. 2 The issue was whether a feedlot with an accessible feed mill was of greater value than one without an accessible feed mill. Both the State's and Evans' expert testified that access to a feed mill enhanced the value of the feedlot. This was a proper matter for the jury to consider in determining just compensation of severance damages. State ex rel. State Highway Comm'n v. Gray, 81 N.M. 399, 467 P.2d 725 (1970).
The State's motion in limine and its objection during trial to evidence regarding the feedmill was based solely on Evans' lack of title to the land on which the mill was located. The State did not contend at trial, and does not directly contend here, that the value of the mill was irrelevant to the issue of damages. Testimony was admitted, without objection, that the value of the feed mill was $250,000 and it would cost $10,000 to move it. Neither the cost of moving, which is not an element of damages in this proceeding, 3 nor the market value of the feed mill as a separate entity was relevant. Notwithstanding, the State never objected to the valuation on the ground of relevancy. In Marr v. Cook, 51 Wash.2d 338, 341-42, 318 P.2d 613 (1957), the court stated:
We have insisted that unless the specific ground of objection to the admission of evidence is a proper ground, the trial court commits no error in overruling it. White v. Fenner, (1943), 16 Wash.2d 226, 133 P.2d 270.
Without proper objection, there is no basis for appellate review. State v. Boast, 87 Wash.2d 447, 451, 553 P.2d 1322 (1976). After the owner testified to the value of the feed mill, the State's expert in rebuttal, testified to his valuation less depreciation. Had the State properly objected to the owner's testimony of the value on the basis of relevancy, the rebuttal testimony would not constitute a waiver of the right to assign error at the appellate level. However, in the absence of such an objection, the State will not be permitted to raise obliquely the objection for the first time here. Therefore, the State's first contention must be rejected. We find no error.
The State frames its second contention as follows:
The Court Committed Reversible Error by Allowing Respondents' Valuation Witnesses to Limit Their Damage Testimony to Only the Small Portion of the Subject Property Which Had Been Developed Into a Feedlot.
Evans conceded the State's appraisal value of the remaining acreage was accurate; he believed the only issue was the value of the feedlot. Evans' valuation witnesses, other than himself, were owners and operators of feedlots; so far as the record reflects, they would have no expert knowledge of the value of orchards, pasture, commercial, industrial, or undeveloped land. As to the State's contention that there was no after-value testimony of the entire property, we quote the following testimony of Evans on direct examination:
Q . . . I have to ask you in the before situation what do you think that your place is worth?
A Are you talking about the feed lot or the whole?
Q No, the whole thing. . . .
A Well, I believe the whole Evans' Brothers holdings in this particular mapping arrangement here is probably worth a million to a million, two. 4
Q . . . (W)hat do you think your property, again, all of it, will be worth afterwards, after the highway is built?
A Well, I think it will be diminished by the worth of the feed lot, and it is anything connected directly with the feed lot.
Q All right, and how much in dollars? . . .
A . . . I think that feed lot is worth $450,000 right now.
Q And what will it be worth after this freeway goes through in your opinion, Don?
A I don't believe we'll have a feed...
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