State v. Ward , 41 Wash. 2d 794 ( 1953 )

Mallery, J.

This is a condemnation proceeding to acquire a right of way in Lewis county, near Centralia, for a limited access highway known as primary state highway No. 1.

The appellants own a farm through which the right of way will run. The state will acquire 5-2/10 acres, which will leave all of appellants’ farm buildings on a small tract of 5-1/10 acres on the easterly side of the proposed highway. Thirty-nine and five tenths acres of the farm will he to the west of it.

The plan of the proposed limited access highway includes a service road along the westerly edge of the right of way for use of the appellants in common with all other landowners on that side. The property to the east is served at present by a road which will continue to be available.

The appellants’ land to the west is low and has no suitable building' sites. The highway plan does not include an underpass. The distance from appellants’ property on the west side of the highway to the part on the east of it will be 7,120 feet by the closest available route. This will, of course, have a considerable effect upon the feasibility of operating the farm as a unit.

The state introduced in evidence its complete plan for constructing the highway through appellants’ property. It produced competent expert testimony as to the value of appellants’ farm as a unit in its present condition. It also produced evidence of the value of both parcels of property remaining after the construction of the highway with the service road as planned. The aggregate value, after the construction of the highway, was found by the jury to be fourteen thousand dollars less than its existing value. Appellants appeal from a judgment in that amount.

The amount of the judgment to be paid by the state to a landowner in a condemnation case is prescribed by RCW 8.04.080 [cf. Rem. Rev. Stat, § 894] as:

“. . . compensation . . . for the taking . . . thereof, together with the injury, if any, ... to the remainder of the lands, . . . after offsetting against . . . such compensation and damages the special benefits . . . accruing to such remainder by reason of . . . the use by the state of the lands ...”

Not only is some of appellants’ land taken, but their right of access to the highway from the remaining lands is also being condemned. Lack of access, of course, has a bearing upon the extent of the damage done to the remainder of the land, as well as upon the diminution of special benefits which ordinarily accrue to abutting land from the right to use the highway. The limited access feature of the highway must, therefore, be presented to the jury together with all other features of the proposed construction, such as service roads, to enable it to properly assess all the. elements of damage and special benefit that will result therefrom.

Appellants contend that the trial court erred in admitting evidence of the plan of the service road to be built on the west edge of the proposed highway. They contend that they should be paid damages in money as if there was not going to be a service road. Their theory is that evidence of such a plan invites the jury to substitute the service road in place of a money payment for the severance damages to appellants’ farm resulting from cutting it into two unconnected parcels. They rely upon State v. Smith, 25 Wn. (2d) 540, 171 P. (2d) 853, in which the state was not permitted to construct a water tank as a substitute for one destroyed, but was required to make _ restitution for the amount of the damages in cash.

There is no such question of substitution in the instant case. This is readily apparent when we realize that access to the land on the west side of the highway was not over any highway or road. Indeed, the road which served the entire farm did not lead from the buildings to the land in question. Nor is it contended by the state that the service road will give access between the two parcels of appellants’ property. It is, therefore, not a substitute for severance damages. Without the service road, however, the land in question would be landlocked and practically valueless. Thus, the service road avoids the damage which a lack of access would cause. This is mitigation, not substitution.

The amount of damage which the entire project will do to appellants’ land on the west side of the highway depends upon whether or not there will be a service road. The plan for it was therefore admissible in evidence for the guidance of the jury.

The trial court committed no error in declining to give appellants’ requested instructions. The substance of those which correctly stated the law was in fact given. Those requested for the purpose of injecting speculation about an underpass to connect the remaining parcels of land were properly refused. It is the exclusive prerogative of the state to determine the details of the plan for the highway. The damages suffered and to be paid for are those occasioned by the particular plan it adopts. It would have been error to have instructed the jury with regard to such hypothetical situations as exist only in appellants’^ minds.

The judgment is affirmed.

Hill, Hamley, Donworth, Finley, Weaver, and Olson, JJ., concur.