Wishek Inv. Co. v. McIntosh County, 7214

• Decision Date: 19 December 1950
• Docket Number: No. 7214,7214
• Citation: 45 N.W.2d 417,77 N.D. 685
• Parties: WISHEK INVESTMENT CO. v. McINTOSH COUNTY et al.
• Court: North Dakota Supreme Court

Page 417

45 N.W.2d 417

77 N.D. 685

WISHEK INVESTMENT CO. v. McINTOSH COUNTY et al.

No. 7214.

Supreme Court of North Dakota.

Dec. 19, 1950.

Syllabus by the Court

1. Under the provisions of Section 32-1522, RCND 1943 an owner of property taken under the power of eminent domain is entitled to be paid the value of the parcel of land taken, plus damages which will accrue to the remainder of the land by reason of its severance from the portion taken.

2. The ultimate object sought to be obtained in a condemnation suit is the determination of damages resulting to the owner from the taking of his property and that resulting from the severance of a portion, if a portion of a whole is taken. To that end it is proper to consider such adaptability of the land for purposes other than that for which it is used at the time of taking as will in reasonable probability affect its present value.

3. It is a general rule in determining compensation to be paid for farm land taken by eminent domain that the availability for subdivision purposes may be considered, but not the value or price of each proposed lot.

4. When an unplatted, compact, contiguous portion of a larger tract of land lying within corporate limits and adjacent to regularly platted and improved portion of a city has been in part sold to numerous purchasers for use as residence and business lots, and such sales have set a pattern for the subdivision and sale of the portion in lots 25 by 140 feet with ways left for streets and alleys, and the sales already made almost surround and cut off from the larger tract a parcel consisting of slightly less than two half blocks adjacent to a highway, this latter tract will, for the purpose of determining its value in eminent domain proceedings, be considered as a separate parcel and not a part of the larger tract which is used as farm and pasture land.

Edwin J. F. Myers and Max A. Wishek, both of Ashley, for plaintiff and appellant.

Wallace E. Warner, Atty. Gen., Nels G. Johnson, Sp. Asst. Atty. Gen., and B. E. Kretschmar, Ashley, for defendants and respondents.

MORRIS, Judge.

This proceeding involves the acquisition of land by the State Highway Commissioner on behalf of the state for the purpose of widening a state highway. The commissioner, pursuant to the provisions of Section 24-0119, RCND 1943, petitioned the Board of County Commissioners of McIntosh County to ascertain and determine the damage and make an award therefor for the taking of the west 75 feet of the south 1930 feet of the southwest quarter of Section 31, Township 130, Range 69, which includes a strip of land 42 feet wide not heretofore dedicated to highway purposes and containing 1.82 acres. On July 26, 1948, the Board of County Commissioners made an award for the value of the land taken on the basis of $50.00 per acre and amounting to $91.00. It allowed for removing 1930 feet of fence the sum of $12.55, making a total award of $103.55. The plaintiff as the owner of the property taken, being dissatisfied with the award, appealed to the district court, where the total award was increased to $374.48.

The Wishek Investment Company has for over 25 years been the owner of the land in question and of a larger tract of which it was originally a part, all within the corporate limits of the City of Ashley. When the Wishek Investment Company was organized, it acquired this tract bounded on the north by Nebraska Street, on the east by a railroad right of way, on the south by the corporate limits of the City of Ashley, which are coincident with the south line of Section 31, and on the west by the corporate limits that are coincident with the west line of Section 31, and consisting of approximately 40 acres. The plat of the townsite shows this tract to be divided into blocks 366 feet square, except those which border on the railroad right of way, the diagonal location of which produced fractional blocks. The plat shows the blocks to be numbered. The land sought to be taken in this proceeding lies adjacent to the highway and constitutes a strip 42 feet wide and 1930 feet long off the west edge of blocks numbered from north to south as 41, 57, 58, 75 and 76. The larger tract has never been platted into lots and no plat or dedication of streets and alleys appears to have been filed in the office of the register of deeds. For the past several years the plaintiff has sold to various individuals tracts or lots described by metes and bounds, 25 feet wide and 140 feet long. In blocks 41 and 57, and in the west half of the two blocks adjacent thereto on the east, being blocks 42 and 56, the pattern of the descriptions thus sold leaves strips of land 66 feet wide corresponding to extensions of the streets in the platted portion of the city and an alleyway 20 feet wide running north and south through the blocks and back of the tracts conveyed. Title to the strips corresponding to streets and alleys apparently remains in the plaintiff. Whether there has been an implied dedication of these strips, we need not here determine. The prices paid by the purchasers of the tracts range from $100.00 to $200.00 per tract, most of the recent sales being for $150.00. All 12 of the 25 foot tracts or lots in the east half of block 41 have been sold, as well as all the tracts in the west half of block 42, immediately to the east of block 41. In the west half of block 41, which abuts on the highway and embraces a portion of the land sought to be taken, the rear or east half of the two lots on the north next to Nebraska Street have been sold. The Wishek Investment Company still owns the west half of those two lots abutting on the highway. It also owns the remainder of the west half of block 41 and all of the west half of block 57 immediately to the south, with the exception of three 25 foot tracts lying in the southwest corner of block 57 and abutting on the highway, which have been sold to C. J. Kaul on contract for a deed and are now occupied by Mr. Kaul for the storage of equipment for moving buildings. Kaul also bought the corresponding three tracts lying in the southeast corner of the block. Thus he has purchased the south 75 feet of block 57, except the 20 foot alleyway through the middle. The legal title of the Kaul lots remains in the plaintiff. Extending southward from the Kaul property to the corporate limits are blocks 58, 75, and 76. No tracts have been sold from these blocks. It does not appear that any small tracts have been sold from the larger tract of 40 acres except those lying within blocks 41, 42, 56, and 57.

The trial court found that the value of the three lots sold to C. J. Kaul and abutting on the highway is $200.00 per lot, and that the damage for taking 42 feet from the west end of these lots next to the highway was 30 per cent of the value of the lots, making a total damage to the three lots of $180.00. As to the remainder of the entire tract of 40 acres, he found that it was essentially farm land of the value of $100.00 per acre, and fixed the damages for taking the remainder of the 42 foot strip on the basis of that value, which he computed to be $175.00. The trial court also found that the portion of plaintiff's land not taken suffered no severance damage.

The platted portion of the City of Ashley is, with a few minor exceptions, laid out in lots 25 by 140 feet, with streets 66 feet wide and 20 foot alleys running through the center of each block. There is an extremely wide divergence of testimony as to the value of the land taken. The secretary of the plaintiff company testified that the value of the entire tract of 40 acres before taking was $40,000.00 and that after taking the value was reduced to $35,400.00, representing a reduction due to the taking of $4,600.00. One real estate dealer testified that the fair market value of the tract taken was between $1100.00 and $1200.00 per acre. Another real estate dealer estimated the value of the land taken to be $1200.00 per acre and the resultant damage to adjacent property to be about $2000.00 or $2400.00. The county commissioners each testified that they appraised the land taken at $50.00 per acre. An Ashley businessman stated that plaintiff's land was worth $60.00 per acre, both before and after taking of the strip for widening the highway. Another witness engaged in the insurance and real estate business in Ashley testified that the value of the strip taken was $50.00 per acre. A banker from another town in the same county testified that the award of $50.00 per acre made by the Board of County Commissioners was a fair award and about the value of the property. This witness, in referring to the property along the highway, described that portion south of the Kaul property as being low and less valuable than the portion north of the Kaul property, which was high. Other witnesses also testified regarding a depression or slough extending out to the highway and covering an area of some 300 feet north and south. It seems clear that the property in lots 41 and 57 is more valuable than that farther south for two reasons--it is closer to the regularly platted portion of Ashley which extends down to Nebraska Street, the north boundary of the land in question, and that this land is high ground more suitable for building, while south of block 57 the land slopes down into a slough and rises to higher ground again near the south section line.

Compensation for property actually taken and damages for property not taken but injuriously affected by the exercise of the power of eminent domain must be ascertained and assessed pursuant to the provisions of Section 32-1522, RCND 1943.

'The jury, or court, or referee, if a jury is waived, must hear such legal testimony as may be offered by any of the parties to the proceedings and thereupon must ascertain and assess:

'1. The value of the property sought to be condemned and all improvements thereon pertaining to the realty and of each and every separate estate or...