State Highway Commission v. Arnold

343 P.2d 1113, 341 P.2d 1089, 218 Or. 43, 1959 Ore. LEXIS 361
CourtOregon Supreme Court
DecidedJuly 1, 1959
StatusPublished
Cited by45 cases

This text of 343 P.2d 1113 (State Highway Commission v. Arnold) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Highway Commission v. Arnold, 343 P.2d 1113, 341 P.2d 1089, 218 Or. 43, 1959 Ore. LEXIS 361 (Or. 1959).

Opinions

O’CONNELL, J.

The plaintiff brought an action to acquire by condemnation the defendants’ interest in 21.52 acres of land located in Klamath County. Prom a verdict and judgment for $13,250 the plaintiff appeals.

The defendants’ interest in the property involved consisted of a leasehold interest in the surface and the mineral rights. The plaintiff had previously acquired the fee subject to the foregoing interests.

The property taken includes one-third of a cinder cone, described as “Buckeye Butte,” which is a geological formation of volcanic origin made up of a mineral aggregate useful for certain construction purposes including the surfacing of roads. The plaintiff acquired the property to obtain cinders for use on the highways in the immediate surrounding area.

There are a considerable number of similar cones in the area. Most of these are unopened as was Buckeye Butte at the time of the taking. Some of the cones are operated commercially although the closest of these are near Bend to the north and Klamath Palls to the south, each of these cities being approximately sixty miles from Buckeye Butte.

There is no large population center near the property taken which would serve as a market for cinders. The town of Chemult with a population of approximately 150 is a few miles to the north.

The Southern Pacific Company and several logging companies have opened cones in the vicinity for the [49]*49purpose of obtaining cinders for use as ballast and the surfacing of roads. The tracks of the Southern Pacific Company pass near the cone paralleling Highway 97.

At the trial the plaintiff took the position that there was no market for cinders in the vicinity and that the property taken had value only for grazing purposes which value was nominal. The defendants put a value of $130,000 on their interest.

The plaintiff admitted that the cinders in the Buckeye Butte deposit were of good quality for road surfacing purposes and that because of its location near the junction of two highways the cone was particularly desirable and valuable to it for such purposes. The plaintiff’s principal contention is that there was no market value for the condemned property; that the special value of the property to the taker cannot be considered and that the jury was permitted to base its verdict upon this special value.

We shall first address our attention to the evidence upon the basis of which the jury could properly conclude that there was a market for cinder cones at the time of the taking, or in the absence of such a market whether the property had compensable value.

It is uniformly recognized that the special value of the property to the taker is not the proper measure of compensation. 3 Nichols on Eminent Domain (3d ed) §8.61; 1 Orgel on Valuation Under Eminent Domain (2d ed) § 81; Oregon R. S Nav. Co. v. Taffe, 67 Or 102, 134 P 1024, 135 P 332, 135 P 515 (1913). The state contends that the value to the taker cannot properly be considered even though the property has value based upon considerations other than the taker’s need.

One of the defendants’ witnesses testified that in estimating the value of the cone he took into consid[50]*50eration the fact that the state was preparing to relocate and repair the highway in the vicinity. When the witness was asked “How much of your market is attributable to the fact the State needed the cinders for a project begun in 1951, and the balance”, he replied that he did not “know exactly” and that he did not make a segregation of these values. The plaintiff assigns as error the trial court’s refusal to grant plaintiff’s motion to strike the witness’ testimony because it improperly contained a noncompensable item which could not be segregated from the total. We think that the motion was properly overruled. We do not agree with the assumption underlying the state’s objection. It is stated broadly enough to assert that the value to the taker is not a valid factor in any circumstance, and that the market which is looked to in measuring market value is the market exclusive of the state. But this is not an accurate statement of the law. In estimating the value of the property it is entirely proper to consider the state’s need for it if that need is not a special factor influencing the value which is placed upon it in the market. If the state’s need for the property is in competition with other similar demands for it the state’s participation in the market may be considered in arriving at the value of the condemned property. This idea is expressed in United States v. Boston, Cape Cod & N.Y. Canal Co., 271 F 877, 893 (1st Cir. 1921), as follows: ’

“We are of the opinion that, in ascertaining the market value of the property taken in a condemnation proceeding the utility or availability of the property for the special purpose of the taker cannot be shown, if the taker is the only party who can use the property for that purpose. If, however, the property has a special utility or availability, not only to the taker, but to other parties who could use [51]*51the property for the particular purpose intended by the taker, then this utility or availability may be shown.”

In Oregon R. S Nav. Co. v. Taffe, supra, essentially the same principle is announced:

“* * *= The fact that the plaintiff desired the property for a railroad right of way would not preclude defendants’ recovery measured by its adaptability for that use, if such adaptability added to its market value generally. The particular value of the tract to plaintiff by reason of the location of the tract to its road, and considered with reference to plaintiff’s connecting tracks, its established business, and its urgent need, should not be considered by the jury, nor shown by the evidence; but we understand no such evidence was admitted. The paragraph of 15 Cyc. 757 quoted by plaintiff in its brief further says: ‘Some courts have gone so far as to say that in estimating the value of the land taken for a public use its value for such use cannot be considered; but the weight of authority is contrary to such a rule. There is a recognized difference between estimating damages by the value of the property to the person or corporation exercising the right of condemnation and considering the availability or adaptability of a piece of land for the purpose for which it is condemned as an element of value which would attract any buyer for that purpose. The true rule is that any use for which the property is capable may be considered, and if the land has an adaptability for the purposes for which it is taken, the owner may have this considered in the estimate as well as any other use for which it is capable.’ This, we understand, is the correct rule, and is well supported by the cases, * * 67 Or 102, 114, 134 P 1024, 1028.

If, in the present case, it is solely the state’s need which creates the market then, of course, this special need must be excluded in the evaluation of the property. [52]*52United States v. Cors, 337 US 325 (1949); see 4 Nichols on Eminent Domain, § 12.315. However, only the special valne which the property has to the taker cannot be considered by the trier of fact. Where the basis for value to the taker is the same as it is with respect to others, the jury is entitled to consider the fact that the state is a part of the market. Olson v. U. S., 292 US 246 (1934); Mississippi & R. R. Boom Co. v. Patterson,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Brown
430 P.3d 160 (Court of Appeals of Oregon, 2018)
Mall v. Horton
423 P.3d 730 (Court of Appeals of Oregon, 2018)
State v. Rogers
4 P.3d 1261 (Oregon Supreme Court, 2000)
State Ex Rel. Department of Transportation v. El Dorado Properties
971 P.2d 481 (Court of Appeals of Oregon, 1998)
City of Eugene v. Kokkeler
893 P.2d 1054 (Court of Appeals of Oregon, 1995)
Dept. of Trans. v. Lundberg
825 P.2d 641 (Oregon Supreme Court, 1992)
Mathias v. Department of Revenue
11 Or. Tax 347 (Oregon Tax Court, 1990)
Vezey v. State
798 P.2d 327 (Alaska Supreme Court, 1990)
Joseph Hydro Associates, Ltd. v. Department of Revenue
10 Or. Tax 277 (Oregon Tax Court, 1986)
Barrett v. Coast Range Plywood
661 P.2d 926 (Oregon Supreme Court, 1983)
State v. Stringer
633 P.2d 770 (Oregon Supreme Court, 1981)
Northwest Natural Gas Co. v. Georgia-Pacific Corp.
630 P.2d 1326 (Court of Appeals of Oregon, 1981)
City of Portland v. Nudelman
608 P.2d 1190 (Court of Appeals of Oregon, 1980)
Kimball v. Little River Lumber Co.
606 P.2d 660 (Court of Appeals of Oregon, 1980)
Gerlinger Industries Corp. v. Oregon Department of Transportation
600 P.2d 428 (Court of Appeals of Oregon, 1979)
UNIFIED SEWERAGE AGENCY OF WASH. CTY. v. Duyck
576 P.2d 816 (Court of Appeals of Oregon, 1978)
Galego v. Knudsen
573 P.2d 313 (Oregon Supreme Court, 1978)
General Construction Co. v. Oregon State Fish Commission
554 P.2d 185 (Court of Appeals of Oregon, 1977)
Myers v. Cessna Aircraft Corporation
553 P.2d 355 (Oregon Supreme Court, 1976)
State v. DeGregory
203 S.E.2d 794 (Supreme Court of North Carolina, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
343 P.2d 1113, 341 P.2d 1089, 218 Or. 43, 1959 Ore. LEXIS 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-highway-commission-v-arnold-or-1959.