Transwestern Pipe Line Co. v. Yandell

• Decision Date: 20 December 1961
• Docket Number: No. 6926,6926
• Citation: 1961 NMSC 173,69 N.M. 448,367 P.2d 938
• Parties: TRANSWESTERN PIPE LINE COMPANY, Petitioner-Appellant, v. Cecil E. YANDELL et al., Respondents-Appellees.
• Court: New Mexico Supreme Court

Page 938

367 P.2d 938

69 N.M. 448

TRANSWESTERN PIPE LINE COMPANY, Petitioner-Appellant, v. Cecil E. YANDELL et al., Respondents-Appellees.

No. 6926.

Supreme Court of New Mexico.

Dec. 20, 1961.

Rehearing Denied Feb. 1, 1962.

Smith, Smith & Tharp, Clovis, Vinson, Elkins, Weems & Searls, James W. McCartney, Houston, Tex., for appellant.

Dan B. Buzzard, Clovis, for appellee.

COMPTON, Chief Justice.

This is a condemnation action whereby appellant, a natural gas company, sought to acquire by its powers of eminent domain under the Natural Gas Act, 15 U.S.C.A. Sec. 717 et seq., rights of way and easements 66 feet in width across the irrigated farm properties of appellees and others. Appellant will be referred to herein as petitioner and the appellees will be referred to as respondents.

After filing of notice of suit and bond, the court, in accordance with our Eminent Domain Statutes, Secs. 22-9-1 to 22-9-38, 1953 Comp., appointed commissioners to assess the damages sustained by the several respondents and ordered possession to the petitioner, following which pipelines were constructed beneath the surface of the lands. Thereafter, the commissioners filed their report, to which the petitioner objected and excepted. Upon a hearing, the court confirmed the commissioners' report. Appeal therefrom was taken by petitioner to the district court where the issues of compensation and damages were tried de novo to a jury. Prior to the jury trial, however, several of the original respondents reached a separate agreement with the petitioner, and as to them no adjudication is involved here.

The jury found for respondents and judgment was entered on the verdict confirming the awards of the rights of way and easements to the petitioner and awarding damages to the respondents. The judgment also included a provision that any future damages arising out of the repair, maintenance, operation or construction of a gas line within the rights of way would be paid for by petitioner. Motion was made to reform and correct the judgment to conform to the obligations petitioner alleged it offered to assume as to future damages, but the motion was overruled. Petitioner also moved for a remittitur which likewise was overruled. Appeal to this court was taken and eleven points assigning error to the court below are relied upon by petitioner as grounds for reversal of the judgment. Obviously, the questions raised will unduly extend this opinion.

The first point advanced by petitioner is that the court erred in confirming the report of the commissioners and refusing to order a reappraisal under Sec. 22-9-6 of the Eminent Domain Statute, supra. In view of our disposition of this point, it is not necessary to go into the reasons urged by petitioner in support of a reappraisal. Section 22-9-8, supra, provides that after final confirmation of any report, an appeal from the order of the court confirming the report, limited to the issue of the amount of compensation and damages, may be taken by any interested person, and the cause shall be tried de novo, the parties being entitled to a trial by jury as in other civil cases. El Paso Electric Co. v. Milkman, 66 N.M. 335, 347 P.2d 1002. The order confirming the report becomes final unless an appeal is taken therefrom. State ex rel. State Highway Commission v. Marquez, 67 N.M. 353, 355 P.2d 287.

The Eminent Domain Statute, therefore, specifically provides for the procedure to be followed by parties seeking relief from the action of the court in confirming the reports of commissioners. This appeal to the district court for a trial de novo is, in effect, not an appeal in the usual sense, but rather a notice of dissatisfaction with the award of compensation and damage by the commissioners and a request for a new award to be made by a jury and the court, and the trial de novo is not the beginning of a new action but a continuation of the proceeding from the time of filing of the original petition in condemnation. State ex rel. Weltmer v. Taylor, 42 N.M. 405, 79 P.2d 937. The petitioner here having followed the procedure outlined in the statute for giving notice of dissatisfaction with the court's action in confirming the report, the report, as well as the action of the court in confirming it, became functus officio. Since the report forms no part of the final judgment rendered by the court on the verdict at the trial de novo, we are not here concerned either with the contents of that report or with any question relating to the discretion of the court in confirming it. The cases cited by petitioner in support of his contention on this point do not deal with the particular situation involved here.

Under points II to V raised by petitioner, which are grouped and argued together, it is asserted that the court erred in rendering judgment on the verdict because the jury entertained an erroneous view of the measure of just compensation in awarding 'full fee value' for the easement areas taken, plus additional elements of damage; that the verdict amounts to a double or multiple payment of damages.

The damages awarded to the respondents by the jury, and on which judgment was entered by the court, consisted of the highest figure testified to as market value of the lands condemned for the easements, plus (a) additional amounts to restore the properties to their original condition, (b) damages for loss of crops as a result of the construction of the gas lines, and (c) the provision as to future damages set forth above.

The substance of petitioner's claim may be stated thusly: (1) that where only easements are taken in the properties, leaving respondents with substantial benefits and uses therein, it was error for the jury to award the 'full fee value' for the easements, and for the court to render judgment thereon, because the award is excessive as a matter of law; and that for this error alone, reversal and remand are required; but (2) having awarded the 'full fee value' for the easements taken, it was error for the court to render judgment on the 'total of all elements of damage' when portions of such damage were attributable to the easement areas, thereby causing the award to result in a double recovery.

The respondents, however, say that petitioner having failed below to move for a new trial or judgment non obstante veredicto cannot now claim error on the part of the court in rendering the judgment. Their contention cannot be sustained. Rule 20 of the Rules of this court specifically provides that it is not necessary to file a motion for new trial in any cause in order to preserve for review errors committed by the trial court. And a motion for judgment non obstante veredicto does not challenge the sufficiency of the evidence to support the findings of the jury but simply admits, for the purpose of the motion, the existence of those facts while asserting that, based thereon, the verdict should have gone the other way. Michelson v. House, 54 N.M. 197, 218 P.2d 861. However, petitioner's motion for remittitur does directly challenge both the excessiveness of the verdict as a matter of law and the sufficiency of the evidence to support such a verdict in that it alleged a double recovery; the amounts that the verdict was excessive; and, whether the amounts awarded were supported by the law or by the evidence.

This court has held that in determining whether a verdict is excessive, it does not weigh the evidence but determines the excessiveness as a matter of law; that where the trial court has allowed the verdict to stand, this court will look to see whether the evidence, viewed in the light most favorable to upholding the verdict, affords substantial support for the verdict and if it does the verdict must be affirmed. If it does not, and the sole issue is one of damages, all other issues having been fully and fairly litigated, a remittitur may be ordered. Vivian v. Atchison, Topeka and Santa Fe Railway Co., 69 N.M. 6, 363 P.2d 620. With these rules in mind, we proceed to a discussion of other applicable rules.

In arriving at the proper amount of compensation to be allowed in condemnation proceedings, this court has said that the correct measure of damages is the difference in the value of the property immediately before the taking and the value of the property immediately after the taking, the owner being entitled to the difference in these sums, in addition to a recovery for the various elements of damage to the remaining land not taken but injuriously affected. City of Tucumcari v. Magnolia Petroleum Co., 57 N.M. 392, 259 P.2d 351; Board of County Com'rs of Santa Fe County v. Slaughter, 49 N.M. 141, 158 P.2d 859; 38 A.L.R.2d p. 790; 29 C.J.S. Eminent Domain Sec. 139; that where the taking results in benefit to the lands not taken, then the benefits are to be offset against the damages. Board of Com'rs of Dona Ana County v. Gardner, 57 N.M. 478, 260 P.2d 682; that where there are no benefits and no consequential damages as a result of the taking, then the correct measure of damages is the reasonable market value of the land taken. Middle Rio Grande Conservancy District v. Crabtree, 69 N.M. 197, 365 P.2d 442. These rules have been followed by this court in cases involving condemnations of land in fee. We think they are equally applicable to condemnations for easement purposes.

Our review of a voluminous record, therefore, is limited to a determination whether the verdict is supported by substantial evidence, and in doing so we must view the evidence in a light so we must view the verdict. We find testimony for both parties relating to the market value of the various tracts of land before the taking, and the value of the tracts after the taking and of the easements thereon; the damage to the lands not taken but adversely affected, including crop loss; and detailed testimony and evidence with respect to the amount of acreage on each tract necessary for restoration by way of filling, leveling, rock...