Townsend v. State

• Decision Date: 30 June 1950
• Citation: 43 N.W.2d 458,257 Wis. 329
• Parties: TOWNSEND et al. v. STATE.
• Court: Wisconsin Supreme Court

Page 458

43 N.W.2d 458

257 Wis. 329

TOWNSEND et al. v. STATE.

Supreme Court of Wisconsin.

June 30, 1950.

William J. Sauer, La Crosse, for appellants.

Thomas E. Fairchild, Atty. Gen., Warren H. Resh, Asst. Atty. Gen., John S. Coleman, Dist. Atty., La Crosse, for respondent.

FRITZ, Chief Justice.

The basic issue in the above stated proceedings for the taking of some part of plaintiffs' farm for highway purposes has been the amount of their damages. The opinions of the expert witnesses as to the amount of said damages varied from $6,000 to $13,000. The circuit court jury found that $29,000 was the fair market value of plaintiffs' farm immediately before taking a part thereof for highway purposes on April 6, 1948; and that $22,500 was the fair market value after the taking; which resulted in damages of $6,500, for which judgment was entered.

On their appeal plaintiffs contend: (1) There was no credible evidence to sustain the jury's verdict; (2) that in a condemnation case the court may not charge the jury to offset benefits when no evidence of benefits was adduced; (3) that the benefits to be offset are limited to special benefits peculiar to the owner and not enjoyed in common by the community; (4) and that there should be a discretionary reversal and new trial ordered in the interests of justice.

Upon our review of the evidence it is our conclusion that there was evidence which the jury could consider credible and sufficient to sustain its findings, although there were conflicts in the evidence in many respects. Thus there were issues as to the value of the farm and the amount of the damages thereto by taking part thereof for the new highway; and whether a cattle pass or passes should be constructed as provided in sec. 84.06(9), Stats., and the cost thereof, although the plaintiff Townsend himself testified that such underpass would not be necessary and he did not want such pass. Likewise there were issues as to whether there were general benefits and also special benefits to plaintiffs by reason of the new highway. There was testimony that the pasture on the farm was previously separated from the building site by a knoll or hill that obstructed the vision directly north of the side road by which the cattle are brought to pasture, and that the new highway had removed this knoll and greatly improved the vision so that it is possible to see at least a mile to the south and a half mile to the north; and that there were other special benefits such as getting back a parcel of land formerly occupied by the old road; and whether there were general benefits and an increase in the value of the farm by reason of its bordering on an improved trunk highway. Plaintiffs contend that in its instructions the court erred in permitting the jury to offset benefits against plaintiffs' damages for the taking of some of their land. On that particular subject the court in the course of its instructions to the jury said: '* * * to determine the amount of damages suffered by R. C. Townsend and his wife, after you have also considered the benefits, if any, you find that will inure to the plaintiffs, by reason of the location of the highway. * * * if' the plaintiffs 'are being affected in their property rights peculiarly and differently than other citizens of the State of Wisconsin, you should, by your vote see to it that the plaintiffs are not made poorer after the taking of their property for public purposes. * * * In fixing these damages, * * * you will consider * * * any benefits that may accrue to the owners of this land by having the farm bordering on a trunk highway, by placing the highway adjacent to the farm so the produce of the farm may be more economically and more easily brought to market, and any benefit that you find might accrue to the plaintiffs must be considered and may properly be considered and deducted from the damages that you find have been sustained by the owners of the property.'

Plaintiffs contend there was reversible error in this instruction because there was no evidence of benefits, and the instruction was too broad in its definition of benefits, because it did not limit the deductible benefits to special benefits accruing to the plaintiffs, instead of including all general benefits accruing to the community, such as the ease of moving produce of the farm to market. The instruction as to special benefits was clearly applicable in so far as there was evidence as to special benefits in the respects stated above. But plaintiffs contend that the court erred in instructing that the value of such general benefits as accrue to the community in common can also be offset against the damages sustained by plaintiffs. In support of plaintiffs' contention they rely upon the statement in Schildknecht v. City of Milwaukee, 245 Wis. 33, 13 N.W.2d 577, 578, that--'Generally in condemnation proceedings the amount of recovery is the difference between the value of the property...