Weaver v. Village of Bancroft

Decision Date19 April 1968
Docket NumberNo. 10151,10151
Citation439 P.2d 697,92 Idaho 189
PartiesJames M. WEAVER, Plaintiff-Appellant, v. VILLAGE OF BANCROFT, Defendant-Respondent.
CourtIdaho Supreme Court

Callis A. Caldwell, Pocatello, for appellant.

Wallace M. Transtrum, Soda Springs, for appellee.

SPEAR, Justice.

James Weaver (appellant herein) brought this suit against the Village of Bancroft (hereinafter 'Village') alleging that he was the owner of certain real property improved by a house and garage, and that prior to the purchase of this property the Village had maintained a certain ditch and placed culverts in said ditch along the road in front of and immediately adjoining his premises. He alleged that thereafter the Village tore out these culverts and widened the ditch, thereby isolating his property and creating a nuisance which lowered the value of his property in the amount of $4,000.

From a determination that the culvert was jointly owned by appellant and the Village, that both were responsible for its upkeep and maintenance and that the Village had honored its responsibility by providing materials and tendering a portion of the labor for reconstruction of the culvert or construction of a vehicular bridge which appellant refused to accept, he appeals.

At the outset of the trial, appellant moved to amend his complaint for the purpose of clarification, so that it included an allegation of substantial impairment to his right of ingress and egress to the described premises by reason of the Village's actions in enlarging the ditch and removing the culvert. Damages were also reestimated in the amount of $5,500. This motion was granted by the court.

The testimony discloses that in 1953 appellant approached Mr. Lester Tolman to see about buying a certain piece of property for the purpose of building a home thereon. At this time there was a ditch located in front of the property, approximately 8 feet wide and 5 to 6 feet deep running along the edge of the property. Appellant advised Tolman that something would have to be done about this ditch before he would purchase.

Appellant and Tolman thereafter went to the Village Board to discuss this problem with them in the early part of 1953, and as a result of this meeting, according to appellant, a portion of the ditch was laid with a steel culvert at each end and then covered with earth. Appellant thereafter purchased the property and began to build his home thereon.

On cross-examination, appellant testified that when he bought this property he was well aware of the existence of this ditch and its purpose, namely, to carry flood waters around the Village. As to the first portion of this culvert which was laid in 1953, appellant did not know where it came from or at whose expense it was purchased, but he assisted Mr. Tolman in the installation work.

Sam Reed, a former resident of the Village who had served on the Village Board from 1943 to 1954, testified that the Board took no action with respect to appellant's request in 1953 and that the Board refused to do anything with the ditch as far as putting in a culvert.

Appellant's home, built out of cinder blocks with a solid concrete-slab floor, was situated on the east side of his property line to the west of the street and drainage ditch. In order to build his house he had to lower the level of the ground immediately abutting the ditch by some several feet approximating 8 to 10 cinder blocks high. In the rear portion of appellant's lot, which was approximately two and a quarter acres, he constructed a barn or shelter for some livestock and installed a gasoline storage tank. At this time, there was nothing to prevent vehicular access from the street to the property: hay and feed for the livestock were trucked into his backyard, as well as wholesale gas for the pump.

In 1962 appellant desired to enlarge his house and make other improvements on the property and so met with the Village Board to see if they would complete the covering of the ditch before he invested more money. As a result of this meeting, the balance of the ditch was laid with concrete tile and covered with earth by the Village.

Thereafter appellant enlarged his home, laid a gravel driveway and built a garage so he could accommodate off-street parking, planted a lawn, and added a retaining wall at one end of his property to protect his children from the exposed portions of the ditch off his premises. Appellant then had vehicular access to and from the street from and to the garage.

During the early part of February, 1963, as a result of severe flooding, the Village removed appellant's culvert and exposed the ditch.

Fred Modersitzki, a member of the Village Board, as well as the Civil Defense Disaster Board, testified he took part in the considerations leading to the removal of appellant's culvert. This decision was ultimately reached in his capacity as Civil Defense Director. He explained that the culvert had partially caved in and was filling up with dirt and other debris causing a severe blockage and backup of the flood waters. Following removal of the culvert, the ditch was substantially enlarged in order to accommodate better drainage for future floods. The ditch was thereafter maintained by the Village.

The enlarged ditch, which was now about 10 feet deep and 20 feet wide with unreinforced vertical walls, effectively cut off all vehicular access to the premises. Pedestrian access was maintained by means of a narrow foot bridge, approximately three feet wide and without railings, built by the Village as a temporary measure. This was appellant's only means of access between his home and the street. Appellant was now forced to leave his car on the street and couldn't make use of vehicular access in order to supply his animals with feed or fill his gas pump.

Appellant's wife testified that they were unable to get the animals over this foot bridge and that feeding them remained quite a problem as the ffed now had to be stored alongside the road on the far side of the ditch. Moreover, there was no other means of access onto the premises as it was completely surrounded by property owned by neighbors. She approximated that the exposed ditch was located about 20 feet in front of the house.

As owner of the property appellant estimated its fair market value, prior to removal of the culvert and enlargement of the ditch, to be $14,500, based upon the amount of money he had put into the place-costs and improvements. Because of the exposed ditch appellant moved his family and sold the premises, for $9,000. He could not obtain a better price.

During cross-examination, appellant was called upon to enumerate those considerations which he took into account in arriving at a $14,500 fair market value. He testified that one of these considerations was a comparison of the price he had paid for his new home in Virginia, Idaho, as well as the money he had expended on the old premises. He did not include the price of his labor in this estimate, but he was unable to break this figure down or substantiate it. His wife had kept the records, but they were not introduced in evidence nor was she interrogated concerning such records either on direct or cross-examination.

D. W. Grimm, a long-time resident of Bancroft, testified that market values for real property were generally down 50% after 1963 because of the floods. In aid of objection, appellant's counsel elicited the following testimony:

'(Q) Are you a real estate man?

'(A) No.

'(Q) Have you ever handled the purchase or sale of property for other people in your life?

'(A) No.

'(Q) Have you ever done appraising professionally?

'(A) Yes.

'(Q) Where?

'(A) Oh, for the Bannock County several years ago.

'(Q) Is this for homes or farm land?

'(A) This was for roads.'

Appellant's objection that Grimm was not qualified as an expert witness was sustained. Thereafter the witness...

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15 cases
  • Merritt v. State
    • United States
    • United States State Supreme Court of Idaho
    • 15 Octubre 1986
    ...owner had a right to regain access to the public road or to be compensated for the taking of access. Weaver v. Village of Bancroft, 92 Idaho 189, 193, 439 P.2d 697, 701 (1968); Hughes v. State, 80 Idaho 286, 295-96, 328 P.2d 397, 402 (1958); Cf. Village of Sandpoint v. Doyle, 14 Idaho 749, ......
  • Howes v. Curtis
    • United States
    • United States State Supreme Court of Idaho
    • 24 Marzo 1983
    ...as he is presumed to be familiar with its value by reason of inquiries, comparisons, purchases and sales." Weaver v. Village of Bancroft, 92 Idaho 189, 193, 439 P.2d 697, 701 (1968); Riley v. Larson, 91 Idaho 831, 432 P.2d 775 (1967); Rankin v. Caldwell, 15 Idaho 625, 99 P. 108 (1908). Howe......
  • State ex rel. Moore v. Bastian
    • United States
    • United States State Supreme Court of Idaho
    • 17 Febrero 1976
    ...weight in that scale. While it is true that defendants have a property interest in access to public streets, Weaver v. Village of Bancroft, 92 Idaho 189, 439 P.2d 697 (1968); Mabe v. State, 83 Idaho 222, 360 P.2d 799 (1961), nevertheless not all impairments of that right by the State are co......
  • Independent School Dist. of Boise City v. Callister, In and For Ada County
    • United States
    • United States State Supreme Court of Idaho
    • 12 Agosto 1975
    ...Idaho 225, 234, 291 P.2d 282 (1955); McLean v. City of Spirit Lake, 91 Idaho 779, 782, 430 P.2d 670 (1967); Weaver v. Village of Bancroft, 92 Idaho 189, 439 P.2d 697, 700 (1968). 'In determining whether the purpose of the statute has been achieved, it must be borne in mind, that 'a substant......
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