State v. Christensen

371 P.2d 552, 13 Utah 2d 224, 1962 Utah LEXIS 184
CourtUtah Supreme Court
DecidedMay 17, 1962
Docket9544
StatusPublished
Cited by6 cases

This text of 371 P.2d 552 (State v. Christensen) 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 v. Christensen, 371 P.2d 552, 13 Utah 2d 224, 1962 Utah LEXIS 184 (Utah 1962).

Opinions

WADE, Chief Justice.

The State as plaintiff and appellant here brought this action to condemn .54 of an acre of land belonging to defendants in American Fork, Utah, for the construction thereon of a six-lane highway. The jury awarded defendant $5,500, $1,080 thereof as compensation for the taking of the .54 acre and about which there is no question; and $4,420 severance damages, from which the State brings this appeal.

The Christensens’ lands consist of two adjoining tracts on the south side of Second South Street, and about 27 acres of farm and pasture land beyond the railroad tracks and about three-quarters of a mile to the southeast. The first tract adjoins the south side of Second South Street for 100.5 feet. It extends southward from the street 388 feet. The west boundary line of this tract jogs to the west 33.5 feet, making the south half of this tract 134 feet wide. This tract contains 1.1 acre. Another smaller tract adjoins the east side of the first tract commencing about 105 feet south from Second South Street, and continuing for about 86 feet. This second tract is about 66 feet wide and it contains .24 of an acre. The Christensen home is located near the south side of Second South [226]*226Street on the north end of the first tract. There are sheds and other outbuildings on both of these two tracts of land, and the farm and pasture land has a shed thereon.

The .54 of an acre taken by the State consists of all of the south end of the first and longer tract of land. The land taken commences at the jog to the west of the west boundary line of that tract and runs from that point diagonally across that tract in a southeasterly direction. It thus left the narrow or north end of the first tract with a diagonal south boundary line, together with all of the lot to the east thereof. It also left intact the entire 27-acre farm and pasture land about three-quarters of a mile to the southwest.

Defendants claim severance damages because the taking of the south end of the first tract interfered with their joint operation of all of their three tracts as a convenient unit for their sheep business. They claim that reducing the size of the pasture and the shed facilities on the home tract makes it unsuited for lambing, shearing and pasturing of the rams and other sheep to the best advantage. They further claim that the new highway interferes with their hauling of feed, driving of sheep, and passage in general from the home tract to the farm and pasturing tract and interferes with the highest and best use of their land. They also claim to have suffered damage by the heavy traffic and loud noises from the through highway being built. There is no doubt that there was ample evidence to support the amount of severance damages awarded, although the differences in the amount of such severance damages as testified to by the witnesses for the State and the amount testified to by the witnesses for the defendant were unusually great.

The State urges that the severance damages awarded are greatly excessive resulting from the following prejudicial errors committed during the trial: 1) The State claims that Mrs. Christensen made highly inflammatory and prejudicial statements to the jury while it was viewing the premises at the beginning of the trial. 2) It claims that defendants’ counsel on cross-examination of an expert witness for the State in bad faith asked prejudicial questions concerning the amount of severance damages paid by the State or estimated by such witness, for land lying next to the west of defendants’ property. We consider the foregoing points in the order above stated.

1) The statements made by Mrs. Christensen in the presence of the jury were not inflammatory or prejudicial to the State’s case. The statements in the affidavit of the witness for the State in regard to what Mrs. Christensen said to the jury are in marked conflict with her affidavit on that question.

The affidavit for the State recites that while the jury viewed the premises Mrs. Christensen addressed "the jury at large” saying that “it was difficult to get a full [227]*227picture of the property being acquired and that remaining at the time of the view, together with the sheep operation she and her husband conducted; that it was much prettier in the springtime than at the present time, particularly when the ‘cute’ little lambs were in the pasturing area.” The affidavit further states that when she was cautioned that it was not permissible for her to address the jury, she replied: “ * * * how was the jury to realize the extent to which she and her husband had been hurt if she didn’t explain * * And further, that in answer to a question by a juror she “began to answer and gesture.”

Mrs. Christensen made a counter-affidavit in which she said that the jury viewed the premises when they were covered with snow and were muddy; that the jury had been shown the premises by the bailiff, the attorneys for the State, and Road Department officials before defendants and their attorneys arrived; and at the time when they arrived, some of the jurors were getting back into the parked cars to leave. At that time the attorney for the State was waving his arms in the air showing the jury the premises. On the arrival of the defendants and their attorneys, the attorney for the State came over to Mrs. Christensen and they talked friendly and walked through a gate together out of the presence of the jury. She further states that in answer to questions by the attorney for the State she pointed out the difference in the appearance of their property at that time and in the spring time when they were feeding sheep and lambs. In her affidavit she categorically denied that she addressed the jury at large and denied that the jurors were present when she talked about the premises. She further stated that while she and the attorney were talking out of the presence of the jury, a single juror came in “and hollered to ask her if there was a gateway out of the back of the property,” and she answered, “yes,” whereupon the attorney snapped at her and she said nothing further.

A number of things indicate that the State was not prejudiced by what occurred in the course of the jury’s viewing the premises, a) The State’s attorney and officials saw and heard all that occurred. Yet they made no move for a mistrial, nor did they request the court to instruct the jury thereon or even call the matter to the attention of the court until after the jury returned what the State considered an excessive severance damage award. From this it is clear that the claim of prejudice was made only because of the amount of the severance damages awarded, b) By refusing to grant a new trial, the trial judge showed that he considered the State had not been prejudiced. So he must have found against the State on the facts in dispute, or concluded that regardless of the facts no prejudice was shown. The trial judge, hav[228]*228ing seen and heard the witnesses and the jury, was better able to determine the question of prejudice than we are.1 c) The statements which the State attributes to Mrs. Christensen were obviously true. At most, the State’s claim shows that she was emotionally upset and had strong feelings that she and her husband would have to suffer great damage. However, there is no claim that she misinformed the jury. So we conclude that this event shows possible irregularity but does not show prejudice.

2). Mr.

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State v. Christensen
371 P.2d 552 (Utah Supreme Court, 1962)

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Bluebook (online)
371 P.2d 552, 13 Utah 2d 224, 1962 Utah LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-christensen-utah-1962.