Opinion
No. 2536
May 27, 1952
Appeal from The District Court, Laramie County, Sam M. Thompson, J.
Affirmed.
For the appellant the cause was submitted upon the brief of Henderson and Thomson of Cheyenne, Wyoming.
For the respondent the cause was submitted upon the brief of Walter B. Phelan and Teno Roncalio, both of Cheyenne, Wyoming.
POINTS OF COUNSEL FOR APPELLANTIt is a well settled law in every portion of the United States that when private property is taken by eminent domain the owner of the property is constitutionally entitled to compensation. It has been held that even though the constitutional prohibition against the taking of property without due process of law does not specify or regulate compensation, just compensation, made or secured, is an essential element of due process of law with respect to the taking of private property for public use. Nichols on Eminent Domain, 3rd Ed. Vol. 1, Sec. 4.8, p. 310-312. In the case of a private road, the report of viewers appointed to assess damages must show that the landowner or landowners had notice of the time and place fixed for such assessment, and it is not sufficient to state that application was made to them for a release thereof. 29 C.J.S. 302, p. 1333. The right to a hearing is not satisfied by an opportunity to file written objections. A hearing, in its essence, implies that he who is entitled to it shall have the right to support his allegations by argument and proof. If a person is not afforded an opportunity to be heard and prepare and present his case, a denial of due process results, even though he may have received actual notice. Nichols on Eminent Domain, 3rd Ed. Sec. 4.103 (4) Vol. 1, pp. 346-347. It is generally held that the right to compensation, being constitutional, is not a liability created by statute within the meaning of the statute of limitations. 18 A.J. p. 1044, Sec. 395. When part of an owner's property is taken for a public use, the owner may be damaged from inability to make the most advantageous use of the remaining land without additional expense. The cost of restoring the remaining land to a condition that will make it available for use, if a reasonable and proper method of meeting the damage caused by the taking is a proper element to consider. There can be no double recovery for an item of expense so, where the cost of restoring a building to its former state has been covered by an allowance for the reduced value of the building, there can be no separate allowance for items expended in a restoration. 18 A.J. Sec. 269, p. 910. That the damages assessed be fair and impartial is the general law. 18 A.J. Secs. 339-340.
POINTS OF COUNSEL FOR RESPONDENTWhen the evidence is conflicting and there is evidence to support the verdict, it will not be disturbed. 2 Lewis on Eminent Domain, 3rd Ed. p. 1246, Sec. 805. If there is any evidence to support a verdict or finding as to damages or compensation, the appellate court will not disturb it, unless it is clearly and palpably or flagrantly against the weight of the evidence. 18 A.J. Sec. 376, p. 1019. The appellate court will presume, in the absence of a showing to the contrary, that the proceedings in the lower court were correct, and matters which are within the discretion of the lower court will not be reviewed where no clear abuse is shown. The usual presumptions in support of the action of the lower court will be indulged by the reviewing court in an eminent domain proceeding. 30 C.J.S. 48. Although subject to appellate review, verdicts and findings of fact in condemnation proceedings will not be disturbed unless clearly erroneous. The award will not be disturbed because of its amount unless it is so grossly excessive or inadequate as to indicate that it resulted from some cause other than the merits, such as passion, prejudice, and the like. 30 C.J.S. 51. The recovery must not exceed the sum fixed by specific proof, where such amount is determined with certainty, regardless of the amount asked in the complaint. Special damages are recoverable to the maximum amount shown by the evidence not exceeding the amount claimed in the petition. Plaintiff is precluded from recovering, but not from proving, a greater sum than that alleged in the petition or complaint. 25 C.J. Sec. 746. Where petition itemizes amount of various damages, recovery is limited to amount specified, notwithstanding the evidence shows greater damage. Chesapeake O. Ry Co. v. Blackburn, 222 S.W. 99, 188 Ky. 456. In general the plaintiff cannot recover greater damages than he has declared for and demanded in his declaration, complaint or petition, with interest, or include amounts not embraced in the averments of the complaint. 15 A.J. 743. Relief will not be granted beyond the fair scope of the plaintiff's allegation and prayer. 41 A.J. 368.
OPINION
A brief statement of the facts herein is contained in the abstract of the record by the appellant herein which is as follows: "This proceeding came to the lower Court on an appeal from an award of the respondent to the appellant for damages incident to construction of a portion of the Chugwater-Cheyenne highway across the lands of the appellant, said lands being located in Sections 15, 22 and 27, Township 19 North, Range 67 West of the 6th P.M., Laramie County, Wyoming. The determination of damages was handled under the statutory proceedings, Section 48-315 to 48-322 inclusive Wyoming Compiled Statutes 1945. The appraisers appointed by the Board of County Commissioners awarded damages in the amount of $1518.50. The Board of County Commissioners awarded damages in the identical amount. On appeal, the Judicial Court of the First Judicial District allowed to the appellant the additional sum of $750 for drilling and equipping a well. The appellant has appealed from the whole of said judgment except the finding of fact that failure to award a well to the appellant on his land isolated by the proposed new highway was discriminatory and the assessment of costs to the respondent."
It will be noted that the proceeding in this case is substantially the same kind of proceeding as was considered by this court in the case of H K D Homesite Co. v. Board of County Com'rs., Wyo. 240 P.2d 885. The testimony in this case is conflicting as the testimony was in that case. It is claimed herein as in that case that the damage allowed was inadequate and the further argument is made that no notice of the time and place of the meeting of the appraisers to assess the damage was given to the appellant. These points were fully considered in the foregoing case of H K D Homesite Co. v. Board of County Com'rs., supra. In accordance with the holding in that case, we must affirm the judgment of the trial court in so far, at least, as it confirms the amount of damages in the sum of $1518.50 as found by the appraisers and Board of County Commissioners and nothing further needs to be added to that point.
The only difference in principle between that case and the case at bar is that in this case the district court awarded the appellant an additional amount of $750 for drilling and equipping a well on a tract of land which was isolated by the proposed highway and erecting a windmill. Counsel for appellant claimed in their brief that the cost of the windmill was much larger than $750 and that the amount allowed therefor should be increased to $1250. Section 48-315 W.C.S. 1945, provides: "If the board of the county commissioners shall determine to establish, lay out or alter any road, they shall appoint a day, not less than thirty (30) days after such determination, on or before which day all objections to the establishment, alteration or vacation of the proposed road, and claims for damages by reason thereof, shall be filed with the county clerk." In accordance with that provision, the appellant herein filed a claim with the county clerk, making a total claim for $2314. In itemizing his claim, he claimed the sum of $750 on account of the expense of the erection of a windmill on the east half of section 27. This is the amount which the trial court allowed to the appellant, stating in the judgment that appellant was limited to the amount which he claimed. Section 48-329 W.C.S. 1945, states that: "The amount of damages to which the claimant shall be entitled on such appeal shall be ascertained in the same manner as in a civil action." It is the contention of the respondent herein that the claim filed herein by the appellant took the place of a pleading and that the ordinary rule should be followed that no more can be recovered by the plaintiff than the amount which he claimed. The authorities seem to bear out the contention. Thus it is said in 23 Cyc. 795, 796: "It is a general rule that a judgment cannot properly be rendered for a greater sum, whether by way of debt or damages, than is claimed or demanded by plaintiff in his declaration or complaint. And it is immaterial that the evidence may prove a greater debt or a greater amount of damage than was alleged by plaintiff." Numerous cases are cited. In 25 C.J.S. 787, it is stated that: "Plaintiff is precluded from recovering, but not from proving, a greater sum than that alleged in the petition or complaint." In 15 Am. Jur., § 309, p. 751, we find it said that: "in general the plaintiff cannot recover greater damages than he has declared for and demanded in his declaration, complaint, or petition." 41 Am. Jr. § 112, p. 368, states: "But relief will not be granted beyond the fair scope of the plaintiff's allegations and prayer." In the case of Chesapeake O. Ry. Co. v. Blackburn, 188 Ky. 456, 222 S.W. 99, the court held that where the petition itemizes the amounts of the various damages, recovery is limited to the amounts specified, notwithstanding that the evidence might show greater damage. But see Clark on Code Pleading (2d Ed.) 266, apparently limiting the rule to cases in which there has been no answer. That situation would not apply in the case at bar. In 29 C.J.S. § 310, p. 1343, we find: "The commissioners or jurors cannot go outside the record evidence in making their award, and when the award exceeds the amount claimed by the landowner * * * it may be set aside." In Matter of Hamilton Place, 67 Misc. 191, 122 N.Y.S. 660, and in Matter of Block Bounded by Ave. A, etc. 66 Misc. 488, 122 N.Y.S. 321, 330, it is held that no greater amount can be allowed than that claimed by the landowner, and in the second of these cases cited, the court stated: "There are usually no formal pleadings in condemnation proceedings * * * and, if there were, the owner could not be allowed more than he claimed in his petition or pleading." In the case of Houston Tap and Brazoria Railways Co. v. Milburn, 34 Tex. 224, the syllabus is as follows: "The rule that more damages cannot be recovered than are claimed by the plaintiff, applies to awards by appraisers, appointed under a railway charter to determine the compensation due to owners of land taken by the company for its road."
It may be that between the time that plaintiff filed his claim and the time of the trial herein, the cost of erecting a windmill had gone up. Inflationary pressure under the impact of enormous Federal expenditures and taxation has been so great that it has been difficult to measure the cost of anything, or at least many things, for any great length of time ahead. Hence it might seem an injustice that a person filing a claim such as that of appellant should be bound thereby. At the same time the board of county commissioners must have a reasonably definite idea as to the probable cost of an improvement in the roads. They might hesitate or refuse to make it, if the probable cost would seem to be too great. Hence the statute requires the filing of claims, and we must give effect thereto. So that it would seem that the appellant must, along with all the rest of us, even if regretfully, bow to the unfortunate situation as we find it in the hope that the benefit which the public at large will receive from the improvement will, in a measure, compensate for the dollars which he has lost through inflation. We think we must affirm the judgment of the trial court, and it is so ordered.
Affirmed.
RINER, J. and ILSLEY, J., concur.