Summary
In Tenbrook, the Colorado Court of Appeals found the trial court had properly excluded testimony of witnesses relating to matters encompassed by a stipulation.
Summary of this case from Pulliam v. PulliamOpinion
Nov. 30, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 598
Duke W. Dunbar, Atty. Gen., Joseph M. Montano, Chief Highway Counsel, Leonard Ripps, Asst. Atty. Gen., Denver, for petitioners-appellants, Dept. of Highways, State of Colorado.
Frank Delaney, Glenwood Springs, for respondents-appellees.
PIERCE, Judge.
On August 29, 1967, appellants, hereinafter referred to collectively as the 'Highway Department,' filed a petition in condemnation to acquire by eminent domain a parcel of land, owned by appellees, Tenbrooks, to be used in the construction of a portion of Interstate 70 in Glenwood Springs, Colorado. The property sought to be condemned was part of a tract of land having its southern border along the Colorado River. There about 1200 junk automobiles and some used brick stored on the property, then used as an automobile junk and wrecking yard. Interstate 70, a major four-lane highway, was to pass through approximately the southern two-thirds of the Tenbrook property, paralleling the Colorado River at this point. A major diamond interchange, consisting of frontage roads and a ramp leading into the business district of Glenwood Springs, was to be constructed on the property. The northern one-third of the Tenbrook property was not condemned. This residue was adjacent to Interstate 70 on the south and U.S. Highway 6--24 on the northeast. U.S. 6--24, a major highway serving Glenwood Springs and the western slope prior to the construction of Interstate 70, passes directly through the city.
Subsequent to eminent domain proceedings, held before a commission of three freeholders, a certificate of ascertainment and assessment was filed by the commission, evaluating the compensation due the Tenbrooks for the condemnation of their property. The trial court thereafter accepted and approved the commission's certificate granting judgment to the Tenbrooks.
It is the Highway Department's contention that the commission erred in admitting testimony by a real estate appraiser who, they assert, based his valuation of the Tenbrook land on recent sales of real property which were enhanced by the impending construction of Interstate 70, the improvement for which the Tenbrook land was being acquired. We disagree.
It is clearly the rule in Colorado that an owner of land taken in an eminent domain proceeding is not entitled to recover any increase or enhancement in the value of his land attributable to the very improvement for which the land is being acquired. Board of County Commissioners v. Vail Associates, Ltd., 171 Colo. 381, 468 P.2d 842; Williams v. Denver, 147 Colo. 195, 363 P.2d 171. Notwithstanding this rule, however, the admissibility into evidence of recent sales of comparable property is for the trial court or commission to determine. This is a matter of discretion and will not be disturbed upon review unless clearly abused. Wassenich v. Denver, 67 Colo. 456, 186 P. 533. See Board of County Commissioners v. Vail Associates, Ltd., Supra. We find no error here.
Upon cross-examination of Tenbrooks' appraiser, it became apparent that the advent of Interstate 70 may not have caused any enhancement in value of the property used by him as comparable sales. This testimony indicated (1) that while the parcels objected to for use as comparable sales were directly adjacent to and fronted on Highway 6--24, they had no frontage on Interstate 70 and were accessible to Interstate 70 only by way of the diamond interchange; (2) that prior to the construction of Interstate 70, Highway 6--24 was the only route through Glenwood Canyon; and (3) that Interstate 70 would not necessarily increase traffic through the area.
The likelihood that error resulted from the objected-to introduction of comparable sales was further reduced by instructions given the commissioners by the trial court. These instructions specifically stated that enhancement in value resulting from the improvement in question was not to be considered by the commissioners in their determination of the compensation to be granted.
II.
The Highway Department further contends the trial court erred in directing the commission to grant Tenbrooks' motion to strike testimony regarding the cost of removal of the junk automobiles and used brick from the condemned property and the residue. It is the Highway Department's contention that, since Tenbrooks were attempting to show a higher use and consequent higher value of the property, it was proper for the Highway Department to introduce evidence showing that the property's value for certain higher uses would be reduced by the cost necessarily incurred in the removal of the automobiles and brick. The Tenbrooks contend, on the other hand, that the evidence was properly stricken because the parties had entered into a contract fully providing for the removal of the automobiles and brick prior to the hearings in the condemnation proceeding. In this contract, the parties stipulated that matters relating to the removal of the junk automobiles and used brick from the property would not be considered by the commission in determining the amount of compensation to which the Tenbrooks were entitled.
Generally speaking, counsel may stipulate as to evidentiary matters such as the admission, exclusion, or withdrawal of evidence from consideration. 83 C.J.S. Stipulations s 10(7). We therefore find that in this proceeding the trial court properly directed the commission to exclude testimony of witnesses relating to the removal of the junk automobiles and used brick on the property encompassed by the stipulation.
We note, however, that the stipulation included only that part of the Tenbrooks' property condemned as a right-of-way and one strip of the residue designated as parcel E--40. As to that part of the residue to which the stipulation did not apply, we find that the trial court improperly ordered the exclusion of evidence from which the commission could have determined that the market value of the property, at the higher use asserted by the Tenbrooks, was impaired by the cost of removal of the personal property thereon. Any competent evidence which would be considered by a prospective vendor or purchaser or tending to enhance or depreciate the value of property taken, with the exception of an enhancement attributable to the improvement for which the land is condemned, is admissible to aid a jury or commission in fixing the fair market value of the property. Territory of Hawaii, by Sharpless v. Adelmeyer, 45 Haw. 144, 363 P.2d 979; Baltimore v. State Roads Commission, 232 Md. 145, 192 A.2d 271; See 29 A C.J.S. Eminent Domain s 274, Annot., 69 A.L.R.2d 1453; Accord, Colo. M. Ry. Co. v. Brown, 15 Colo. 193, 25 P. 87.
Appellants' further assignments of error are found to be without merit.
Judgment affirmed in part, reversed in part, and remanded for proceedings solely for the purpose of determining if the valuation of the Tenbrook residue, not including parcel E--40, was in fact affected by the presence of the junk automobiles and used brick thereon, and if so, for a revaluation of the above defined residue as of June 24, 1968, in consideration of this factor.
ENOCH and DUFFORD, JJ., concur.