Dore, J.
The State appeals from a jury award of $400,000 to respondent Evans and others for condemnation of 17.58 acres from the respondents' 746-acre ranch to be used for the construction of Interstate 82 in the vicinity of Prosser, Washington. The State's primary assignments of errors are that the court (1) failed to grant the State's [121] motion in limine to exclude testimony as to the value of an adjacent feed mill, (2) erroneously ruled on the admissibility of certain testimony, and (3) erroneously refused one of the State's proposed instructions to the jury. We find prejudicial error, and reverse and remand for a new trial.
I
Prior to trial, the State successfully moved, through a motion in limine, to limit the damage issue as to the value of the property before the taking, minus the market value of the property remaining after the acquisition. The State's chief appraiser, Mellor, testified that the respondents' entire property had a market value of $492,250. According to Mellor, after the taking the respondents would be left with a farm having a market value of $307,786. He testified that Evans was entitled to a just compensation award of $138,750, broken down as follows:
(1) Market value of the 17.58 acres $39,786
(2) Improvements on the 17.58 acres 57,980
(3) Consequential damages 13,968
(4) Cure (water truck, 4,000 gallon 27,000
truck to keep dust down on feedlot)
Total just compensation $138,734
Total just compensation rounded out $138,750
However, the court failed to enforce its valuation order as to respondents. Respondents' appraisers, McMinemee and Golob, were permitted to testify, over objection, as to the replacement value of the two feedlots on the remainder property and nothing else. McMinemee testified that the feedlots were presently worth $450,000 to $500,000 and that, after the taking, the freeway would be within 80 to 100 feet from the north feedlot causing such feedlots to have no value. During cross-examination, McMinemee admitted he was unaware that part of the north feedlot was on land not owned by Evans. Later, McMinemee gave his opinion of market value on the improvements only but not on the land underlying the improvements. McMinemee [122] testified:
Q Did you value the land under that? Under the pens and the feed mill?
A No.
Q You just value improvements?
A The improvements is all.
A Yes, I'm talking about strictly just the corrals and the scales and the mill.
(Italics ours.) The State's motion to strike his testimony was denied.
The respondents' second witness on valuations was Golob, who testified:
Q Well, in other words, did you value the whole? You didn't intend to express an opinion of value of the entire Evans' ownership, did you?
A I was looking at the feedlot, corrals and the mill facility.
Q That's what I thought, and the reason which you found to depreciate them was the proximity of the freeway to the north?
A Right. Yes, this is what I've been following the conversation from, yes.
The trial judge should have stricken the testimony of both McMinemee and Golob. Both were in violation of the court's order that the valuations must be based on the market value of the property before the taking, minus the value of the remainder after the taking, and not on valuations of personal property.
All respondents' appraisal witnesses, McMinemee, Golob and Evans, were permitted to violate the court's order on evaluation, and to testify as to the value of the two feedlots, suggesting by inference that the jury could award the landowner the market value of the two feedlots even though they weren't being condemned. This was prejudicial error.
II
The Trial Court Erred in Admitting Market Value Testimony Regarding the Feed Mill
Respondents owned a feed mill which had been used to [123] serve their feedlots. However, they did not own the underlying property. Paragraph 8 of the State's motion in limine requested the court to exclude any evidence as to land not owned by the respondents in defining the single larger parcel for the purpose of determining just compensation. State counsel, in a supporting memorandum, cited State ex rel. Wirt v. Superior Court, 10 Wn.2d 362, 371, 116 P.2d 752 (1941), for the proposition that condemnees are not entitled to recover damages from any tract except the one over which a private way of necessity was condemned.
The damages for taking a right of way are based on ownership of land actually taken and are limited to lands held under the same title.
Other cases support this contention. State v. Corvallis Sand & Gravel Co., 69 Wn.2d 24, 30, 416 P.2d 675 (1966); Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 97-98, 102 P. 1041, 104 P. 267 (1909).
The trial judge took this issue under advisement and subsequently ruled that the value of the feed mill was admissible and that the State had no standing to raise the ownership issue. The Court of Appeals held that this was prejudicial error because the respondents failed to establish an enforceable interest in the property upon which the feed mill was located. However, it held that the State waived its right to assert an error because it failed to object to testimony concerning the value of the feed mill. This holding is not supported by the record. The testimony shows that the State argued from its initial motion in limine that the State only had to pay for what it was taking and, as they were not taking the feed mill, and as the condemnee had no interest in the land on which the feed mill was located, testimony as to the value of the feed mill was not admissible.
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Dore, J.
The State appeals from a jury award of $400,000 to respondent Evans and others for condemnation of 17.58 acres from the respondents' 746-acre ranch to be used for the construction of Interstate 82 in the vicinity of Prosser, Washington. The State's primary assignments of errors are that the court (1) failed to grant the State's [121] motion in limine to exclude testimony as to the value of an adjacent feed mill, (2) erroneously ruled on the admissibility of certain testimony, and (3) erroneously refused one of the State's proposed instructions to the jury. We find prejudicial error, and reverse and remand for a new trial.
I
Prior to trial, the State successfully moved, through a motion in limine, to limit the damage issue as to the value of the property before the taking, minus the market value of the property remaining after the acquisition. The State's chief appraiser, Mellor, testified that the respondents' entire property had a market value of $492,250. According to Mellor, after the taking the respondents would be left with a farm having a market value of $307,786. He testified that Evans was entitled to a just compensation award of $138,750, broken down as follows:
(1) Market value of the 17.58 acres $39,786
(2) Improvements on the 17.58 acres 57,980
(3) Consequential damages 13,968
(4) Cure (water truck, 4,000 gallon 27,000
truck to keep dust down on feedlot)
Total just compensation $138,734
Total just compensation rounded out $138,750
However, the court failed to enforce its valuation order as to respondents. Respondents' appraisers, McMinemee and Golob, were permitted to testify, over objection, as to the replacement value of the two feedlots on the remainder property and nothing else. McMinemee testified that the feedlots were presently worth $450,000 to $500,000 and that, after the taking, the freeway would be within 80 to 100 feet from the north feedlot causing such feedlots to have no value. During cross-examination, McMinemee admitted he was unaware that part of the north feedlot was on land not owned by Evans. Later, McMinemee gave his opinion of market value on the improvements only but not on the land underlying the improvements. McMinemee [122] testified:
Q Did you value the land under that? Under the pens and the feed mill?
A No.
Q You just value improvements?
A The improvements is all.
A Yes, I'm talking about strictly just the corrals and the scales and the mill.
(Italics ours.) The State's motion to strike his testimony was denied.
The respondents' second witness on valuations was Golob, who testified:
Q Well, in other words, did you value the whole? You didn't intend to express an opinion of value of the entire Evans' ownership, did you?
A I was looking at the feedlot, corrals and the mill facility.
Q That's what I thought, and the reason which you found to depreciate them was the proximity of the freeway to the north?
A Right. Yes, this is what I've been following the conversation from, yes.
The trial judge should have stricken the testimony of both McMinemee and Golob. Both were in violation of the court's order that the valuations must be based on the market value of the property before the taking, minus the value of the remainder after the taking, and not on valuations of personal property.
All respondents' appraisal witnesses, McMinemee, Golob and Evans, were permitted to violate the court's order on evaluation, and to testify as to the value of the two feedlots, suggesting by inference that the jury could award the landowner the market value of the two feedlots even though they weren't being condemned. This was prejudicial error.
II
The Trial Court Erred in Admitting Market Value Testimony Regarding the Feed Mill
Respondents owned a feed mill which had been used to [123] serve their feedlots. However, they did not own the underlying property. Paragraph 8 of the State's motion in limine requested the court to exclude any evidence as to land not owned by the respondents in defining the single larger parcel for the purpose of determining just compensation. State counsel, in a supporting memorandum, cited State ex rel. Wirt v. Superior Court, 10 Wn.2d 362, 371, 116 P.2d 752 (1941), for the proposition that condemnees are not entitled to recover damages from any tract except the one over which a private way of necessity was condemned.
The damages for taking a right of way are based on ownership of land actually taken and are limited to lands held under the same title.
Other cases support this contention. State v. Corvallis Sand & Gravel Co., 69 Wn.2d 24, 30, 416 P.2d 675 (1966); Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 97-98, 102 P. 1041, 104 P. 267 (1909).
The trial judge took this issue under advisement and subsequently ruled that the value of the feed mill was admissible and that the State had no standing to raise the ownership issue. The Court of Appeals held that this was prejudicial error because the respondents failed to establish an enforceable interest in the property upon which the feed mill was located. However, it held that the State waived its right to assert an error because it failed to object to testimony concerning the value of the feed mill. This holding is not supported by the record. The testimony shows that the State argued from its initial motion in limine that the State only had to pay for what it was taking and, as they were not taking the feed mill, and as the condemnee had no interest in the land on which the feed mill was located, testimony as to the value of the feed mill was not admissible.
The reasons for the objection to the introduction of such evidence were clearly elucidated in the affidavit of Pitman and were amply argued in the memorandum brief. The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presen[124] tation. Once the State had made its motion in limine, properly legally supported, and the court had taken under advisement an objection to any testimony arising after-wards, the State need not object further. In the absence of a request from the court that evidence, which was the subject matter of the motion in limine, should be objected to as it comes in, the State had a continuing objection to this testimony until the judge ruled on its motion. Fenimore v. Donald M. Drake Constr. Co., 87 Wn.2d 85, 92, 549 P.2d 483 (1976). The trial court erred in not granting the State's motion in limine in reference to the market value of the feed mill.
Moreover, even if the State had failed to make an objection, there was no waiver. No proper question was ever answered by a witness in reference to the market value of the feed mill. Opening statements of counsel are not evidence. Hypothetical questions posed, on cross-examination of Mellor, failed to elicit a favorable response, as reflected in the Verbatim Report of Proceedings, at page 364:
Q All right, so if we are talking about X plus a $250,000 mill before under your notion of Y plus the $250,000 mill after the construction, why, X is going to equal Y in any event, isn't it?
A I think there would be some difference, but I don't follow the X and Y's but—
It is clear that respondents' attorney mentioned the $250,000 in reference to a hypothetical question. Mellor didn't agree that the feed mill was worth $250,000; that testimony came exclusively from the lips of respondents' attorney in posing a hypothetical question to which Mellor said, "but I don't follow the X and Y's but..."
The second time the value of the feed mill was mentioned was on pages 365 and 366 of the transcript in Mellor's testimony:
Q Well, let's take this example a moment further. The mill added a couple of hundred thousand dollars to the value of this operation and in the market for the cattle yard and the after situation was zilch because of the freeway, then, in addition to what he was losing [125] because of that result presently he'd be also losing the utility of the mill, wouldn't he, unless he wanted to junk it for salvage?
A Under your premise, but not what I would agree with.
Q I'm perfectly comfortable. I've asked you to assume—
A Yes.
Q —the hypothesis that I'm asking you. Just so we're clear, then, that if you'd make that assumption, then, indeed, his damages are greater, are they not?
A If you make that assumption.
(Italics ours.) Again counsel refers to a valuation of $200,000 for the feed mill on a hypothetical question, and again Mellor responds he doesn't agree. Again the value comes in through the statement of the attorney which is not testimony. By no stretch of the imagination did Mellor ever testify, agree or infer that the feed mill was worth $200,000 or $250,000.
The testimony of landowner Evans on this subject came prior to the court giving the State a continuing objection as to any testimony concerning the market value of the mill. Evans stated:
Q What else goes into setting up a cattle yard? We've heard testimony about a mill. What would it cost— realizing that cost isn't the sole guide — but what would it cost to replace that mill that the jury saw?
A Approximately $250,000.
It is to be noted that Evans spoke of the "cost of replacement" of the feed mill, not the "market value" of the feed mill. This is not evidence of market value, and cannot constitute a waiver. Even stronger, in order to lay a foundation, landowner Evans introduced a lease he had entered into with Burlington Northern concerning property not involved in this condemnation. Over objection, Evans testified that he always thought that such lease gave him a lessee interest in the land on which the feed mill was built. This was clearly prejudicial error. The State's objection to this exhibit protected the State from any subsequent testimony as to the feed mill, even if this court wished to equate the "replacement cost of the feed mill" with the "market [126] value of such feed mill". For until Evans established his ownership, or lessee interest in the property on which the feed mill was located, any testimony as to the value of the feed mill was not admissible.
In any event, the State renewed its objection at least once at trial, objected to numerous questions of witnesses concerning it, and moved to strike the appraiser's testimony when it came in over objection. To say the State waived its objection to testimony as to the value of the feed mill is fiction.
Some of the difficulty in resolving the State's motion in limine was caused by the court's ruling that the State did not have standing to raise the issue whether or not respondent had an enforceable interest in the property upon which the feed mill was located and said this was not a title case. In fact, the court not only has the right but the obligation to try questions of title before the question of damages is submitted to the jury. Tacoma v. Gillespie, 82 Wash. 487, 144 P. 697 (1914).
The preliminary question of whether the condemnee has any legal rights or claims in the property for which he seeks damages must be answered before any damages can be awarded. Tacoma v. Mason County Power Co., 121 Wash. 281, 209 P. 528 (1922); State ex rel. Horne v. McDonald, 32 Wn.2d 272, 201 P.2d 723 (1949). The question of title is not collateral to an eminent domain proceeding. Therefore, the court's ruling that the State did not have such standing was erroneous. State v. J.R. Leasing Co., 1 Wn. App. 944, 466 P.2d 185 (1970). In Chelan Elec. Co. v. Perry, 148 Wash. 353, 268 P. 1040 (1928), the court held that it was proper to exclude evidence of value of a dock and other structures located on property which did not belong to the condemnee which would be rendered useless by reason of the project involved. In State ex rel. Wirt v. Superior Court, 10 Wn.2d 362, 116 P.2d 752 (1941), it was held that damages to property which had been farmed in conjunction with property owned by the condemnee by reason of an oral lease cannot be considered in the con[127] demnation proceedings. The State was bound only by record title and was not liable for damages to lands held under oral, unenforceable leases. See also State v. Corvallis Sand & Gravel Co., supra; Grays Harbor Boom Co. v. Lownsdale, supra.
As a result of the court's ruling, value testimony concerning the feed mill (which the State was not condemning) was testified to by one of the respondents' attorneys and permitted to go to the jury. The record is clear that the jury's verdict included the value placed upon the feed mill by respondents' witnesses since the verdict is far in excess of the value testimony given by any witness which did not include the feed mill.
Ill
Reversible Error Not To Instruct Pursuant to WPI 150.11
The trial court committed reversible error by failing to instruct the jury pursuant to WPI 150.11 which provides as follows:
In arriving at the amount of compensation to be paid the respondents, you should not consider anything which is remote, imaginary, or speculative, even though mentioned or testified to by witnesses. The only elements which you should take into consideration are those which will actually affect the fair market value of the property and which are established by the evidence.
By means of several delayed and erroneous trial rulings, respondents' witnesses refused to testify to the "before and after" value of the property, but did testify as to the "before and after" value of the feedlots. This was in violation of the court's pretrial order and its instructions on value. The court refused to permit the State to prove that the feed mill was located on property owned by the United States government. It also allowed testimony, over objection, that respondents were leasing the property under the north feedlot, which lease was filed after the State's lis pendens became a matter of record on the Evans property. All of these rulings, individually and collectively, created [128] great confusion and necessarily required the jurors to speculate as to the meaning of the court's instructions on the measure of damages. On this record, the evidence cried out for instruction WPI 150.11 as a guideline for the jury to eliminate speculation on damages. It was reversible error not to give such instruction.
IV
Judge Roe, dissenting in the Court of Appeals, concluded:
After having carefully read the entire record, I come to an inescapable and abiding conclusion that it was the original purpose of the defendants and their very capable lawyer to include both the value of the feed mill and its enhancing operation in the award and that actually it was included. This is reversible error.
(Italics ours.) State v. Evans, 26 Wn. App. 251, 275, 612 P.2d 442 (1980).
We agree. To compound that error, landowner Evans was awarded the market value of the feedlots, although he still possesses them. Evans testified that he owned two feedlots, of equal size, each located on approximately 20 acres and each containing pens to house and feed 2,500 cattle. One was located approximately one-half mile from the freeway (south feedlot) after the take and one (the north feedlot) was located approximately 100 feet from the freeway after the take. Evans testified that their market value was in the neighborhood of $450,000 to $500,000. It is undisputed that a feedlot located one-half mile from a freeway is not damaged by it; Evans admits that the south feedlot is not affected by the taking. The state appraiser, Mellor, testified that the north feedlot could be cured by the State's buying a water truck to water down the cattle; this would cost $27,000. Evans offered testimony disputing the use of the water truck as a cure. However, he doesn't dispute an effective "cure" would be to simply move the north feedlot some quarter of a mile away (1,320 feet) on the same property by simply removing the pens, which are personal property, to the new location. As the north feedlot is much [129] smaller than the feed mill, which testimony stated could be moved for $10,000, it could presumably be moved for even a lesser figure.
We conclude that the trial court committed prejudicial error in refusing to grant the State's motion in limine to exclude all testimony concerning the value of the feed mill. We further hold that the State's motion in limine, which was properly buttressed by affidavits and legal memorandums, relieved the State from the need to make individual objections to any testimony which was admitted prior to the trial court's ruling on the motion. We set aside the judgment and remand for a new trial, to be conducted in accordance with the provisions of this opinion.
Rosellini, Williams, and Dimmick, JJ., and Swayze, J. Pro Tern., concur.