State ex rel. Road Commission v. Hooper

ELLETT, Justice. The appellant owned a strip of land 1,630 feet long by 33 feet wide upon which it had constructed a concrete canal and a twelve foot service roadway. The respondent constructed a freeway over and across the appellant’s land and in doing so condemned 7[4 feet of the roadway for a distance of 270 feet. This left only 4i/£ feet for travel upon the road thus effectively destroying it for vehicular traffic. The trial court, sitting without a jury, awarded $450 for the land taken but gave nothing as severance damages, and this appeal is from the failure to award severance damages only. Section 78-34-10, U.C.A.1953, so far as material, reads: The court * * * must hear such legal evidence as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess: >¡c (2) If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff. [Emphasis added.] Here a 12 foot road is rendered itseless because of the taking of a part of it out of the middle. The actual value of the land [251] condemned as determined by the court seems to have been properly assessed, as neither party makes any complaint in that regard. However, there is a damage to the land not taken which is directly related to the taking of a part of the road. The respondent relies upon a case recently decided by this court1 which at first blush, appears to be controlling here. However a close look at that case shows that it is not in point. There the landowner also owned a canal and parallel service road. Highway 91 crossed the canal and the landowner in traveling along the service road crossed the highway. When the state converted Highway 91 into a non-access freeway the landowner had to travel on a side road some distance in order to cross under the freeway and then return on the other side of the freeway to his service road. Such damages as the landowner there suffered resulted not from the taking but from not being permitted to cross the freeway. His damage would have been exactly the same if, instead of a non-access freeway, a median strip had been placed as a safety measure in the center of the old highway. The extra travel was therefore not related to the actual taking of a small strip of land in the Sugar case as it was in the instant matter. The judgment is reversed as to the severance damage only, and the case is remanded to the district court to determine the amount thereof. Costs are awarded to the appellant. TUCKETT, J., concurs. Footnotes [1] State Road Commission v. Utah Sugar Co., 22 Utah 2d 77, 448 P.2d 901 (1968).