Home/Utah Supreme Court/State Ex Rel. Engineering Commission v. Peek

State Ex Rel. Engineering Commission v. Peek

265 P.2d 630, 1 Utah 2d 263, 1953 Utah LEXIS 260
CourtUtah Supreme Court
DecidedDecember 23, 1953
Docket7867
StatusPublished
Cited by30 cases

This text of 265 P.2d 630 (State Ex Rel. Engineering Commission v. Peek) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Engineering Commission v. Peek, 265 P.2d 630, 1 Utah 2d 263, 1953 Utah LEXIS 260 (Utah 1953).

Opinion

WADE, Justice.

Action by State of Utah through its Engineering Commission to condemn a tract of land near the “This is the Place” monument for State Park purposes. This appeal concerns only the part of such tract which belongs to the Charles H. Deere Estate now being held in trust by Burton F. Peek and Charles D. Wiman, appellants here. The tract comprises more than 200 acres. The first Special Session of the 1951 Legislature directed the Commission to condemn this tract forthwith. It lies across the entrance of Emigration Canyon, east of Salt Lake City and is traversed from east to west by State Road No. 65, which goes up the bottom of the Canyon, the walls of which rise abruptly on each side to more level ground.

*266 Several roads and drives pass over parts of the tract and part of the north side of the tract has recently been platted into residential subdivisions with, lots, blocks and appropriate roads, drives and circles. A few homes had been built on some of the lots which defendants had previously sold. A business district was planned to adjoin State Road No. 65; another part on the south side of the road where the canyon is wider than usual had been improved and was being operated as a miniature golf course with other amusements. On the north side of the canyon and east of the residential district high above the road was a spring area, where defendants had developed a water works, with a concrete reservoir, metal water tanks, fire hydrants and pipelines to furnish water for the subdivision, . and other property.

Plaintiffs, by their complaint, divided the tract to be condemned into 28 parcels, each parcel belonging to a different defendant. Appellants’ property was designated Parcel No. 28, and contained about three-fourths of the entire tract. Except for the fact that it is intersected by State Road No. 65, and Kennedy Drive, it is all within one closed boundary line, every part is contiguous with another part, it covers parts of all the various sections of the whole tract, and there is an- isolated block of adjoining lots scattered1 over the platted residential subdivisions on the north side of the State Road. Adjoining the State Road on the south near the east boundary line was the miniature golf course and a parcel protrudes into the condemned property from the north side near the center of the tract containing several acres which were planned as a future residential subdivision. The condemned tract was in almost every stage of development — from occupied residences on completely hard surfaced drives with curb and gutter to mountain sides, in their native state, some of which are probably incapable of being used or improved. But none of this appellants’ property was occupied by any building or improvements except for roads, streets, drives, the water system and other public utility improvements.

Prior to' the trial the appellants made a motion that their property be severed into six different parcels in accordance with the nature and kind of property and the uses to which they claimed that the various parcels were adapted. The court thereafter did divide'such property into two parcels, making parcel I the same as appellants’ proposed parcel I, and all the rest of appellants’ property was made into parcel II. The accompanying map shows the property which was condemned together with the roads and drives as they existed and the planned roads and drives. The parts in white are properties which do not belong to these defendants; the parts in black are parcel No. I and in perpendicular lines are parcel No. II...

Appellants contend, (1) that the court improperly refused to allow interest on their judgment from the date of service of sum *267 mons in the action, (2) that the court improperly refused to allow them either by direct evidence or cross-examination to show the sale price of comparable property, or to test the credibility of plaintiffs’ witnesses by inquiring into the value placed on the various parts of appellants’ property by plaintiffs’ witnesses, (3) that the court improperly excluded expert testimony of the value of their waterworks system, (4) that the court improperly refused to di-' vide appellants’ property into more than' two parcels, and (5) that the court improperly excluded the issue of severance damages.

Appellants are not entitled to interest on the judgment prior to the time when actual possession was taken. This *268 court has uniformly so held. 1 Appellants argue that this case is different from those cases in that here their property being unoccupied it cannot produce income, rents or profits except from the development and sale of the lots and that any improvement after the service of summons cannot be included in the recoverable damages and that the possibility of obtaining buyers for this property was by the service of summons eliminated. That argument is true to a greater or less extent in every condemnation case. Where the owner beneficially uses the property, either as a home or in his business, or where the property is rented until possession is taken, the commencement of an action to condemn only slightly interferes with the owner’s use of the property prior to that time. But even in that kind of a case the possibility of the property being bought and sold on the open market is practically eliminated by the service of summons in a condemnation case.

*267

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Bluebook (online)
265 P.2d 630, 1 Utah 2d 263, 1953 Utah LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-engineering-commission-v-peek-utah-1953.