State v. Vella

• Jurisdiction: Oregon
• Parties: STATE of Oregon, by and through its State Highway Commission, composed of Ben R. Chandler, Charles H. Reynolds and M. K. McIver, Appellant, v. Thomas VELLA and Jane Doe Vella, husband and wife, if married; and C. W. Abbott and Jane Doe Abbott, husband and wife, if married, Respondents.
• Citation: State v. Vella, 213 Or. 386, 323 P.2d 941 (Or. 1958)
• Court: Oregon Supreme Court
• Decision Date: 09 April 1958

Page 941

323 P.2d 941

213 Or. 386

STATE of Oregon, by and through its State Highway Commission, composed of Ben R. Chandler, Charles H. Reynolds and M. K. McIver, Appellant, v.Thomas VELLA and Jane Doe Vella, husband and wife, if married; and C. W. Abbott and Jane Doe Abbotthusband and wife, if married, Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 29, 1958.

Decided April 9, 1958.

John C. McLean, Salem, argued the cause for appellant.With him on the briefs were Robert Y. Thornton, Atty. Gen., C. W. Enfield, Asst. Atty. Gen., Leonard I. Lindas, and Ralph Wyckoff, Salem.

Hugh B. Collins and Paul W. Haviland, Medford, argued the cause for respondents.

Before PERRY, C. J., and LUSK, WARNER and KESTER, ^* JJ.

LUSK, Justice.

The plaintiff, the State of Oregon, by and through its Highway Commission, brought this action to condemn for highway purposes a strip of land (a part of a larger tract) owned by the defendants, Thomas Vella and Jane Doe Vella, husband and wife, and located in Central Point, Jackson County, Oregon.There were other partiesdefendant but they are no longer in the case.The land taken measures 680 feet by 22 feet, an area comprising .34 of an acre.Plaintiff alleged that the cash market value of the property sought to be taken, including the depreciation of the defendant's remaining property, was not in excess of $7,500.Defendants claimed that their total damage was $21,411.40.The jury fixed the amount of the compensation to which defendants were entitled at $20,171.40, and the court, to which the question of a reasonable attorneys' fee was submitted by stipulation of the parties, allowed a fee of $3,000.Plaintiff has appealed.

We are met at the outset with a motion of the defendants to dismiss the appeal based on the ground that notice of appeal was not given within the time required by the statute.ORS 19.030(2).This motion was denied October 19, 1955, before the case was at issue, with leave, however, to renew it at the hearing.It has been renewed.

The record is as follows: The verdict was returned on March 10, 1955.Thereafter the clerk prepared and mailed to the presiding judge, the Honorable Louis E. Starr, judge pro tempore, at his home in Portland, an instrument entitled 'Order on Trial and Verdict' on a printed form, the blanks in which had been filled in by the clerk with a transcription of the verdict of the jury and a judgment for the amount awarded to the defendants.In form, and having no regard to the special character of the proceeding, it is a valid judgment.The instrument was signed by the judge and mailed back by him to the clerk, who received it on March 15, 1955, and stamped it filed March 15, 1955.But the clerk then altered the filing date with ink so as to make it appear as March 10, 1955.

On March 16, 1955, the purported judgment was entered in the journal of the circuit court.On the same day counsel for the defendants, having no knowledge of the facts just recited, served on counsel for plaintiff a copy of proposed findings of fact and conclusions of law and a copy of a proposed judgment.On March 17, 1955, Judge Starr signed said instruments.They were filed March 19.

The judgment of March 17, 1955, is the judgment from which this appeal has been taken.Notice of appeal was served on counsel for the defendants on May 11, 1955, and filed with the clerk of the circuit court on May 12, 1955.As that was more than 60 days after March 10, 1955, the day on which, according to the defendants, the only valid judgment was entered, it is urged that the notice of appeal came too late to confer jurisdiction on this court.

We judge from the affidavits before us that it is the clerk's view that the statute which provides that a judgment shall be entered on the day the verdict is given (ORS 18.040) is as inexorable as the laws of the Medes and the Persians.But that section is directory, not mandatory, and failure to comply with it is not fatal.Fisher v. Portland Ry., Light & Power Co., 77 Or. 529, 531, 151 P. 735;Skelton v. Newberg, 76 Or. 126, 136-137, 148 P. 53; and even were it otherwise, the clerk would have no authority to alter a true filing date for the purpose of showing that a duty was performed on a day other than the day of actual performance.

Quite apart from the fact that in no event could the earlier judgment, if such it was, be accorded any date other than that of its actual filing, we think that the motion was properly denied because the judgment signed March 17, 1955, is the only judgment which conforms to the requirements of the statute governing state highway condemnation proceedings.

The point is settled by Oregon R. & Nav. Co. v. Taffe, 67 Or. 102, 134 P. 1024, 135 P. 332, 135 P. 515.The applicable statute provided: 'Upon the payment into court of the damages assessed by the jury, the court shall give judgment appropriating the lands, property, rights, easements, crossing, or other connection in question, as the case may be, to the corporation, and thereafter the same shall be the property of such corporation.'L.O.L. § 6866.It was held that, since the plaintiff is guaranteed the right of appeal and payment of the damages found by the court might well be deemed a waiver of the right (seeOregon Electric Ry. Co. v. Terwilliger Land Co., 51 Or. 107, 93 P. 334, 93 P. 930), the proper form of judgment is 'one adjudging the award of damages found by the jury, if the court deems the verdict sufficient, as the amount of just compensation awarded to defendant to be paid by the petitioner for the property sought to be condemned, and that thereafter, when the petitioner shall have paid the money into court, the judgment provided for by section 6866 shall be entered.'67 Or. at page 111, 134 P. at page 1027.

ORS 366.380(5), which is a part of the statutes relating to the condemnation of real property for highway purposes, is similar to the statute involved in the Taffe case.It reads:

'Upon payment into court of the damages assessed by the jury, the court shall give judgment appropriating the lands, property, rights, easements or interests in question to the state; and thereafter the same shall be the property of the state absolutely and may thereafter be used for any public purpose.'

Subdivision (6) of the same section provides that 'Either party to the action may appeal from judgment in like manner and like effect as in ordinary cases * * *.'The judgment referred to is obviously a judgment containing provisions set forth in Subdiv. (5).

The judgment filed March 15, 1955, does not comply with the provisions of this statute under the interpretation which this court placed upon the similar statute in the Taffe case, and it was not, therefore, a valid judgment.The judgment signed March 17, 1955, conforms to the statute and is a valid and proper judgment from which the plaintiff could appeal.

We, therefore, adhere to our previous decision denying the motion to dismiss the appeal.

On the merits plaintiff has assigned three rulings of the court as error, one of which was waived at the hearing.

Exception was taken by the plaintiff to the following instruction given by the court:

'You may also take into consideration in determining the damage to the defendants the depreciation of the fair market value of the property remaining because of such taking by the State, which includes any detriment suffered by the defendants, if you so find there was detriment, to the operation of the business upon the property remaining.'

The exception was based on the ground that 'the measure of damages in an eminent domain proceeding does not include any detriment to the operation of the business on the property.'

Defendants' lands abutted on the Pacific Highway, otherwise known as State HighwayNo. 1, U. S. RouteNo. 99.The strip involved was taken for the purpose of widening the highway.The land was used by the defendants for the operation of a creamery and a drive-in restaurant, and the taking curtailed parking areas for trucks and passenger automobiles with consequent inconvenience in the conducting of these enterprises.There was evidence also that these businesses had suffered loss of revenue since the taking.It was to this set of facts that the challenged instruction referred.

We think that the instruction was erroneous and ground for reversal.

In a condemnation proceeding the measure of damages is the actual cash market value of the land taken and the depreciation in market value of that portion of the tract not actually taken.State Highway Comm. v. Burk, 200 Or. 211, 238-239, 265 P.2d 783, and cases cited.

We deal here with depreciation in market value of the portion of the tract not taken, sometimes called severance damages.Loss of trade or business is not an element of such damages.This is because, as stated in People v. Ricciardi, 23 Cal.2d 390, 396, 144 P.2d 799, 802, '* * * it is only the value of, and damage to, the property itself, which may be considered.A particular business might be entirely destroyed and yet not diminish the actual value of the property for its highest and best use.'See, also, City of Oakland v. Pacific Coast Lumber & Mill Co., 171 Cal. 392, 398, 153 P. 705;City of Los Angeles v. Geiger94 Cal.App.2d 180, 191, 210 P.2d 717;State ex rel. LaPrade v. Carrow, 57 Ariz. 429, 433, 114 P.2d 891;City of Denver v. Bayer, 7 Colo. 113, 128, 2 P. 6;Henderson v. City of Lexington, 132 Ky. 390, 414, 111 S.W. 318, 22 L.R.A.,N.S., 20; President, etc., of Schuylkill Nav. Co. v. Thoburn, 7 Serg. & R., Pa., 411, 421;Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 675, 43 S.Ct. 684, 67 L.Ed. 1167;4 Nichols, Eminent Domain, 3d Ed., 274;29 C.J.S.Eminent Domain§ 162, p. 1031;18 Am.Jur. 899, Eminent Domain, §...