State v. Hoblitt

• Decision Date: 19 May 1930
• Docket Number: 6669.
• Citation: 288 P. 181,87 Mont. 403
• Parties: STATE et al. v. HOBLITT et al.
• Court: Montana Supreme Court

288 P. 181

87 Mont. 403

STATE et al. v. HOBLITT et al.

No. 6669.

Supreme Court of Montana

May 19, 1930

Appeal from District Court, Ravalli County; James M. Self, Judge.

Condemnation proceeding by the State and others against A. T. Hoblitt and others. From the judgment defendants appeal.

Affirmed.

Harry H. Parsons, of Missoula, for appellants.

L. A Foot, Atty. Gen., S. R. Foot, Asst. Atty. Gen., and John W Bonner, of Helena, for respondents.

MATTHEWS J.

In November, 1928, the state highway commission established a state highway from Florence to Hamilton, in Ravalli county and, in August, 1929, commenced proceedings to condemn a right of way across a tract of land owned by A. T. Hoblitt and wife and mortgaged to the Federal Land Bank of Spokane. The Hoblitt ranch consists of 147 acres lying east of the Northern Pacific Railway right of way and a 10-acre tract lying west thereof and used as a cow pasture. The land taken consists of 2 1/2 acres of the 10-acre tract lying adjacent to the railway right of way.

In the condemnation proceeding, the prescribed procedure was followed, and a commission awarded defendants $1,000 damages, from which award they appealed to the district court, where a jury awarded them but $800, and, on the verdict, judgment was entered. Defendants moved for a new trial, which motion was denied, and they have appealed from the judgment.

Contending that the verdict is not warranted by the evidence, defendants specify error on the entry of judgment and the denial of a new trial. Error is also specified on the giving of instruction No. 15, hereinafter set forth.

The plaintiffs' testimony is directed solely to damages resulting to the isolated 10-acre tract, and is to the effect that the land taken has a value of from $50 to $75 per acre and the remainder of the tract was damaged to some extent. One A. L. Johnson placed the value of the land at $50 per acre, and stated "as to the balance of the land [the 10-acre tract] there is damage, there is no question about that * * * the way the road runs I would value the damages at one hundred dollars per acre." Counsel for defendants insists that by this testimony the plaintiffs fixed the damage to the tract at $1,000, but it is clear that the witness merely doubled the value of the land taken to cover the damage to the remainder; it would be absurd to say that the damage to an isolated tract of land used only for a cow pasture is double the market value of the tract.

As to this tract, Hoblitt and his witnesses fixed the market price at $200 per acre for the land taken and the damage to the remainder at from $100 to $125. In doing so, the witnesses testified as to the returns per acre if converted into a Bing cherry orchard, if cut up into town lots, and if planted to strawberries, celery, onions, or potatoes. It was then shown that Hoblitt has an ample water right for its irrigation. The defendants, however, did not confine their testimony to the damage done to the 10-acre tract, but asserted that the entire ranch was damaged to the extent of 20 per cent. of its market value and fixed the total damage at from $3,000 to $5,000, for the following reasons:

The Hoblitt ranch is now crossed by a highway which parallels the railway some 350 feet distant; between the two stands the dwelling house facing the road, with lawn and shade trees thirty-five years old in the front and an orchard and outbuildings in the rear. The house is a substantial nine-room structure, to which have recently been added two porches. The barns and corrals stand across the road from the house. Hoblitt is engaged in farming, dairying, and raising of cattle, horses, and hogs for market, for which enterprises the present arrangement is very convenient, as travelers on the highway often see his stock in the corrals and stop to make purchases, and his milk is taken up and the cans returned practically at the milking place. If the road is changed from its present position to the location of the new road across the tracks, Hoblitt's market for stock will be damaged, the scenic effect of the residence inclosure injuriously affected, depreciating the market value of the ranch; milk cans will have to be carried a distance of 350 feet, and he will be compelled to open an additional gate and have assistance in getting his cows into and out of the pasture on account of the danger in crossing the highway, on which it is said cars pass in summer at the rate of one a minute. Hoblitt and some of his witnesses are of the opinion that, to make the residence livable and the ranch salable, in the event of the change, the house would have to be reversed, necessitating the destruction of the shade trees and orchard and an entire readjustment within the inclosure.

This is the gist of the evidence on which the jury awarded defendants $400 compensation for the land actually taken, and $400 consequential damages, and it must be assumed that, if the damages caused by the establishment of the new road across defendants' land are alone recoverable, the jury considered and made an award for all such damages proved.

1. The paramount question for determination is as to what items of damage, shown by the evidence, should have been considered by the jury.

The Constitution of this state (section 14, art. 3) declares: "Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner." "The constitutional provision cannot be carried out, in its letter and spirit, by anything short of just compensation for all the direct damages to the owner of the lot, confined to that lot, occasioned by the taking of his land. The paramount law intends that such owner, so far as that lot is in question, shall be put in as good condition, pecuniarily, by a just compensation, as he would have been in if that lot of land had remained entire, as his own property." 2 Lewis on Eminent Domain (3d Ed.) 1176.

Ordinarily damages may be awarded only for injury done to the particular lot or tract of land from which the right of way strip is taken, and the above rule is applied in ascertaining the award to be made by a determination of the value of the acreage taken, and the depreciation in value of the remainder of the particular tract, regardless of what other lands the owner may possess (section 9944, Rev. Codes 1921; Lewis and Clark County v. Nett, 81 Mont. 261, 263 P. 418), but, even where two tracts are separated by a highway or water course, or, as here, by a railway, if they are used jointly by the owner in a single enterprise and the whole plant is depreciated in value by the proposed improvement, the direct damages suffered may be compensated (20 C.J. 736).

Here the 10-acre tract is isolated from the ranch proper and forms but an inconsiderable portion thereof, but, as it is used for the pasturing of dairy cows, milked upon the ranch, the additional inconvenience and danger in the use of the pasture after the highway is constructed would furnish an item of damages to be considered. Gaddis v. Cherokee County, 195 N.C. 107, 141 S.E. 358; Texas Electric Service Co. v. Perkins (Tex. Com. App. 1930) 23 S.W.2d 320.

An item of damages which would enter into the depreciation of the value of the 10-acre tract-on which there is no testimony-is the cost of constructing a fence along the highway to maintain the inclosure. Lewis and Clark County v. Nett, above.

As to the inconvenience to which Hoblitt will be put in carrying milk cans to the new road, loss of a market place for stock, and the damages, generally, claimed as resulting from a change in the highway, they will accrue by reason of the discontinuance of the present road rather than the construction of the new, as to which there is nothing in the record on which we can say, except inferentially, that the new highway has any connection with the old road. Counsel for plaintiffs did, however, ask one of the defendants' witnesses if the elimination of a dangerous curve and two railroad crossings was not an improvement, and, assuming that such was the purpose of the highway commission in throwing the highway to the west of the railroad, we may further assume that at some future time the present road will be discontinued as a county road.

The highway commission is empowered, "in conjunction with the board of county commissioners of the several counties of the state," to designate what public roads shall be state highways; the establishment and construction of such highways, under federal aid projects, is under the control of the state highway commission, and it is authorized to make changes in state highways (sections 1788 to 1796, Rev. Codes 1921), but nowhere in the act granting powers to the commission (chapter 139, part 3, Political Code 1921,§§ 1783-1802) is the commission empowered to discontinue or abandon a county road superseded by a state highway. The power to lay out and establish, construct, or maintain highways does not confer power to vacate them. Texarkana v. Leach, 66 Ark. 40, 48 S.W. 807, 74 Am. St. Rep. 68; Coker v. Atlanta, K. & N. Ry. Co., 123 Ga. 483, 51 S.E. 481. The power to discontinue a public highway is vested in the board of county commissioners of the county on petition of freeholders of the road district. Section 1635, Rev. Codes 1921. The establishment and construction of the new highway is therefore entirely separate and distinct from the matter of the discontinuance of the present road, and the two acts are under divergent authority. The present action has only to do with the establishment of the state highway.

In cases involving the closing of city or town streets, with reference to which lots have been sold, there seems to be a divergence of opinion as to whether...