State v. Harvey Real Estate

• Citation: 2002 UT 107,57 P.3d 1088
• Decision Date: 05 November 2002
• Docket Number: No. 20001149, No. 20010005.
• Parties: STATE of Utah and its Agency the Utah Department of Transportation, Plaintiff and Appellee, v. HARVEY REAL ESTATE, a limited partnership, Defendant and Appellant.
• Court: Supreme Court of Utah

57 P.3d 1088

2002 UT 107

STATE of Utah and its Agency the Utah Department of Transportation, Plaintiff and Appellee, v. HARVEY REAL ESTATE, a limited partnership, Defendant and Appellant.

Nos. 20001149, 20010005.

Supreme Court of Utah.

November 5, 2002.

Mark L. Shurtleff, Att'y Gen., Steven F. Alder, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Robert E. Mansfield, Todd D. Weiler, Craig R. Kleinman, Salt Lake City, for defendant.

HOWE, Justice:

INTRODUCTION

¶ 1 We granted a petition for interlocutory appeal filed by defendant Harvey Real Estate, a limited partnership, to review the trial court's determination that defendant was not entitled to introduce certain evidence in an eminent domain proceeding. We also granted a cross-petition filed by plaintiff Utah Department of Transportation (UDOT) to review the trial court's ruling that UDOT had abandoned a perpetual right-of-way it had over part of the Harvey property.

BACKGROUND

¶ 2 Harvey Real Estate owns approximately 160 acres of vacant land in Davis County, Utah. Until 1999, the west edge of the property abutted Highway 89, a major transportation route. Approximately 85 feet of the north edge of the property abuts Old Mountain Road. The intersection of these two roads lies directly adjacent to the property's northwest corner.

¶ 3 Through the years, Highway 89 has undergone several expansions designed to compensate for increases in traffic. Several of these expansions have resulted in the condemnation of portions of the Harvey property by UDOT or its predecessor, State Road Commission of Utah. In 1936, pursuant to a condemnation proceeding, Harvey's predecessor in title granted the State Road Commission a perpetual right-of-way over a section of the property abutting Highway 89 (the right-of-way). The stated purpose of the right-of-way was to grant UDOT a "perpetual Right-of-way for highway purposes," and for many years the land was used accordingly. In a 1947 condemnation action, the State Road Commission acquired fee title to most, but not all, of the land subject to the 1936 easement. The State Road Commission later erected a fence a fixed distance from the centerline of the highway separating the fee title property from the property that remained subject to the 1936 right-of-way. This fence has remained in place, and UDOT has not used the strip of property still subject to the right-of-way since about 1951. The strip has been used by Harvey and others for grazing and other private purposes.

¶ 4 The Harvey property has direct access to Old Mountain Road at the northwest corner of the property along approximately 85 feet of frontage. In 1947, Highway 89 was made a limited access highway where it bordered the Harvey property. Therefore, from that year until 1999, the property's only direct access to Highway 89 was through a single wide, gated agricultural entrance approximately 1,000 feet to the south of the intersection.

¶ 5 In 1999, in order to decrease the number of accidents on Highway 89, UDOT closed the Highway 89/Old Mountain Road intersection, thus cutting off access to Highway 89 from Old Mountain Road. UDOT also determined to build a frontage road from the intersection to the Cherry Hill interchange, which is approximately .5 miles south of the intersection. The frontage road completely separates the Harvey property from Highway 89, eliminating direct access to the property from the highway.

¶ 6 Accordingly, this condemnation action was brought in 1999 by UDOT to acquire approximately 1.36 acres of the Harvey property which UDOT needed to construct the frontage road from the intersection to the Cherry Hill interchange. Believing that it still owned a right-of-way over the remaining strip of the 1936 right-of-way, UDOT did not seek to condemn it. Harvey contested the existence of the right-of-way, arguing that the State had abandoned it when the State separated the right-of-way from the highway by means of a fence. After a hearing on the matter, the trial court concluded as a matter of law that UDOT's predecessor, the State Road Commission, had "abandoned all right to future use and all ownership in the Balance of the 1936 Right-Of-Way and discontinued using that property for highway purposes" and that, consequently, Harvey owned the strip free of any right-of-way held by UDOT.

¶ 7 Thereafter, UDOT filed a motion in limine seeking to preclude Harvey from presenting expert testimony at trial that the closure of the Old Mountain Road/Highway 89 intersection will substantially decrease the value of the remaining Harvey property. The trial court granted the motion. It concluded that evidence of alleged damages from the intersection closure was not admissible because any damages sustained by Harvey were not the result of the loss of land to be used in building the frontage road and thus did not qualify as severance damages. We granted Harvey's interlocutory appeal and UDOT's cross-appeal.

ANALYSIS

¶ 8 Harvey contends that the trial court erred and contravened Utah Code Ann. § 78-34-10 (1996) in not allowing it to present evidence of the damages it will sustain from the closure of the Highway 89/Old Mountain Road intersection. UDOT, in its cross-appeal, asserts that the trial court erred by ruling that the remaining strip of the 1936 right-of-way had been abandoned by UDOT and its predecessor. We address each issue in order.

I. SEVERANCE DAMAGES

A.

¶ 9 Section 78-34-10 provides in part:

The court, jury or referee must hear such legal evidence as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess:

...

(2) if the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff.

The trial court ruled that under this section Harvey could not present evidence of any damage caused by the closure of the Highway 89/Old Mountain Road intersection because the closure was not caused by the severance of Harvey's property. Harvey argues against this result, contending that by limiting the evidence of severance damages to "those harms flowing only from the actual taking itself," the trial court ignored the statutory language allowing Harvey to present evidence of damages stemming from "the construction of the improvement in the manner proposed." We disagree.

¶ 10 Section 78-34-10 gives a landowner the right to present evidence of damages caused by the construction of the improvement made on the severed property. It does not give the landowner the right to present evidence of damages caused by other facets of the construction project. Were the opposite true, a landowner would be entitled to present evidence unrelated to the taking. For example, where property was taken for a multi-mile-length road construction project, a landowner would be entitled to present evidence of all damages conceivably stemming from the road construction, even those damages attributable to construction occurring miles away. This would defeat the purpose of our eminent domain statutes, which are designed to compensate the landowner only for his loss of property rights. Contrary to Harvey's argument, this interpretation does not render any part of section 78-34-10 meaningless; evidence of damage caused by both the severance alone and construction on the severed property may be presented.

¶ 11 We held essentially the same in Utah Department of Transportation v. D'Ambrosio, 743 P.2d 1220, 1222 (Utah 1987), although we did not reference section 78-34-10(2). There we stated that "[s]everance damages are those caused by the taking of a portion of the parcel of property where the taking or the construction of the improvement on that part causes injury to that portion of the property not taken." (Emphasis added.) Our holding today also accords with the well-established common law principle that severance damages "may be made for any diminution in the value of [an owner's non-condemned land], as long as those damages were directly caused by the taking itself and by the condemnor's use of the land taken." 26 Am.Jur.2d Eminent Domain § 368 (1996) (emphasis added); see also 8A Nichols, Eminent Domain § 16.02[1] (3d ed.2002) (stating "severance damages may be defined as damages or diminution in the value of the remainder resulting from the taking of a portion of a tract of land" (emphasis added)). We have explicitly adopted this principle in Utah. See City of Hildale v. Cooke, 2001 UT 56, ¶ 3

& n. 1, 28 P.3d 697 (stating "severance damages may occur where a partial taking to a parcel of land causes harm to the portion of the property not condemned" (emphasis added)); State by Rd. Comm'n v. Stanger, 21 Utah 2d 185, 186, 442 P.2d 941, 942 (1968) ("[S]everance damages were those suffered by a devaluation of the owner's property not taken, the causa causa causans of which was the actual taking of a part of a unit of property, the whole of which he previously owned.").

¶ 12 Harvey has not shown that any damage sustained by the closure of the intersection has been caused by the severance of its land. Indeed, it recognizes that it is "[s]eeking damages for devaluation of its property as a result of loss of access" to Highway 89. Harvey seeks to establish a causal connection between its alleged damages and the taking by arguing that the closure of the Highway 89/Old Mountain Road intersection was made possible only by the taking of Harvey's property, the inference being that the taking caused the closure. UDOT could have chosen to close the intersection independently of the taking, however. The taking may be somewhat related to the closure, but it did not cause the closure, nor did it cause the damages that Harvey claims as a result of the closure. As the trial court correctly observed, owners of neighboring...