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Show PAGE NINE INTERMOUNTAIN COMMERCIAL RECORD MONDAY, SEPTEMBER 16, 1974 In The Supreme Court of The State of Utah pensation for infringement of his right to3 light and air by a structure in the way, even if it is a proper highway use. own testimony. In view of the fact that the court upon proper request had ordered witnesses to be excluded while other witnesses were testifying and further that the proffered interpreter had already testified in the matter, we do not think the trial court abused his discretion in refusing to permit the daughter to act as an interpreter. No other interpreter. was called in lieu of the daughter, and no request was made for a continuance to secure another. Even if there was error (which we do not think there was), it was harmless, since three witnesses had already testified to the alibi of the defendant. An owner of land abutting on a of view, which constitutes a high- street is also in possession of an easement property right which may not be taken without just U.C.A. 1953, as amended 1963, authorizes compensation.4 Section the Commission to acquire any real property or interests therein for highway purposes including rights of access, air, light, and view. 27-12-- 96, the loss of view occasioned by a proposed public structure to be erected, in part at least upon a parcel of property taken by condemnation from a unit of property, so far as constituting a factor to be considered in determining severance damage, is to be measured by the effect the obstruction of the view, created by the structure, has upon the market value of the residue oi ine unit of property . . . . The judgment is affirmed. . Utah State Road Commission, Plaintiff and Appellant, No. 13504 v. FILED Kiyoshi Miya and Rose Miya, his wife; Prudential Insurance Company of America, Defendants and Respondents. Where the construction and operation of the project for which land was condemned results in interference with the privacy of of abutting owners, it has been held that such loss is an element the in compensadamages which should be considered ascertaining tion to which such abutting owner is entitled 1. Constitution of Utah, Art. I, Sec. 22. 2. Hampton v. State Road Commission, 21 Utah 2d 342, 445 P. 2d 708 (1968); State Road Commission v. Rozzelle, 101 Utah 464, 120 P. 2d 276 (1942). to 3. 2A Nichols on Eminent Domain (3rd Ed.) Sec. 6.445(1) pp. to 6. ) 32, pp. 4. 2 Nichols on Eminent Domain (3rd Ed. Sec. 5. Housing Authority of the City of Seattle, 68 Wash. 2d 485, 413 P. 2d 635, 638 (1966); also see 8.4 A. L. R. 2d 348, Anno: Interference with view as matter for consideration in eminent domain, Sec. 4, p. 360; State v. Allison, Okl. , 372 P. 2d 850 (1962); Pierpont Inn, Inc. v. State,' 70 C. 2d 282, 74 Cal. Rptr. 521, 449 P. 2d .... September 11, 1974 Allan E. Mecham, Clerk 6-3- 07 CALLISTER, Chief Justice; 6-- 74 6-7- 10. 9. Plaintiff initiated this action to acquire under the power of eminent domain the fee title to . 66 acre of land of defendants for highway purposes. Defendants' land is located within the city limits of Clearfield, Utah, and both parties agreed that its highest and best use was for residential purposes. 737 (1969). to Of the land taken . 50 acre was subject to an easement for highway purposes; 6. 4A Nichols on Eminent Domain (3rd Ed.) Sec. 14.2432(1), pp. in addition a . 16 acre triangular shaped piece was acquired. Upon trial before Under Section (2), U.C.A. 1953, as amended 1963, the trial a jury, defendants were awarded $750 for the land taken and $8,000 severance in to refusal not strike the testimony of defendants' expert its did err court damages. Plaintiff appeals and seeks to have the award of all severance damages witness for the reason that relevant factors of severance damage, in ascertainistrickejv ng the fair market value of a remaining parcel, include impairment of light and air, impairment of view, invasion of privacy, and deprivation of access. Defendants' parcel consisted of approximately 44 acres; the southern The judgment of the trial court is affirmed. known as 300 North. boundary of which abutted along an existing The utilities, such as sewer and water,, were installed along the street; an WE CONCUR: expert testified that this abutting land could be sold in 12 acre tracts for F. Henri Henriod, Justice residences which could utilize the existing utilities. This suggested manner of development was similar to other parcels abutting along 300 North; i.e. , A. H. Ellett, Justice the houses were constructed fronting on the street so as, to utilize the existing improvements in the most inexpensive manner. Within the existing J. Allan Crockett, Justice the State constructed a viaduct which attained a maximum height of 25 feet to cross railroad tracks which were situated directly east of defendants' R. L. Tuckett, Justice as the same on were constructed the roads y tract. grade frontage previously existing road so that all of defendants' abutting land retained access 7. Pierpont Inn, Inc. v. State, note 5, supra. to the highway system, although a certain amount of circuity of travel was' created by the improvement. 14-1- 98 14-1- 97 78-34-- 10 ' right-of-w- ay right-of-w- ay One-wa- I Defendants' expert witness testified that there were approximately eight building lots, abutting on the street, that were adjacent to the structure erected by plaintiff. The expert testified that these lots were more valuable than the remaining acreage because they were ready for immediate development with the existing utilities. After construction of the viaduct, the value of the lots decreased since a willing purchaser will not pay as much for a residential lot facing an overpass; the viaduct obstructs the view and interferes with one's privacy. Defendants presently farm the land, and they could have sold the frontage for building lots and retained the remainder for farming. With the construction of the viaduct the entire parcel of land would have to be developed as a subdivision with streets constructed running into the interior portion of the parcel so that residences would not face the giant concrete structure. Even if the entire parcel were developed as a whole, the lots adjacent to the overpass would have to be larger than normal to compensate for the adverse effect on the 000 privacy and view of the owner. Based on the foregoing the jury found that $8, of land reason by in damages had accrued to the remaining parcel of defendants' its severance from the part taken and the construction of the improvement in the (2), U. C. A. 1953. manner proposed by plaintiff, - 78-34-- 10 David Lawrence Dipo, Plaintiff and Appellant, No. 13490 FILED v. September 10, 1974 Doris D. Dipo and George L. Dipo, f Defendants and Respondents. Allan E. Mecham, Clerk CALLISTER, Chief Justice: Plaintiff, David Dipo, beneficiary of a trust created by his late father, A. Fred Dipo, seeks'to enjoin defendant trustees, Doris (mother of David) and George Dipo (an uncle) from using a portion of the trust estate to purchase stock in certain corporations owned or controlled by Fred and his wife, Doris.. The proceeds of the trust were derived from certain insurance policies purchased by Fred upon his life. i On appeal, plaintiff contends that the trial court erred in allowing testi- mony as to severance damages resulting from the construction of the viaduct Plaintiff characterizes the improvement as within the existing right-of-wa- y. the installation of a traffic control device under the police power and claims of 300 that the structure is analogous to a median divider placed in the center severance the North Street. Plaintiff emphasizes that the testimony concerning not from the taking of . 16 acre of damages indicated that said damages resulted Plaintiff urges that the construcland but from the construction of the viaduct. the exercise of the police tion of a viaduct over a railroad crossing is pursuant to flow of traffic and any damages sustained by an power to provide for the orderly abutter are damnum absque injuria. which is used Plaintiff has failed to distinguish betweenjthe police power, used to acquire property to regulate and the power of eminent domain, which is no has owner property right to a free and unfrom private ownership. A property or interference restricted flow of traffic past his premises, and any impairment no private prowith this flow does not entitle the owner to compensation. Thus, the since of a median divider, abutting perty right is taken by the construction of business. his of traffic flow place free in the past owner has no property right as an incidental result of the exerHowever, where a police power is exercised due if the market value of the procise of eminent domain, just compensation is guarantee of just compensation for perty has been diminished. The constitutional use is in no way affected by the taking or damaging of private property for public The rights of the fact that the expropriator is exercising the police power. land of an abutting owner access light, and air are easements appurtenant to the of the owner's estate. on a street; they constitute property rights forming part to reasonable regulation, may These substantial property rights, although subject not be taken away or impaired without just compensation. of such a a The erection of a permanent structure within public highway value of if it diminishes the character as to rank as a proper highway use. evenin the constitutional sense. not in and of itself a damage UnlesI the structure violate, some right appurtenant to the abutting property or owner is not entitled to otherwise inflicts some special and peculiar injury the to abutting property is that of re- -, compensation. One of the rights appurtenant and an abutting owner is entitled to com- ceiving light and air from the highway, It is contended by David that the proposed purchase is not within the of power the trustees, and that, if so consummated, the trustees would so manage the property as to deprive him of income therefrom. With regard to the case at hand, the pertinent provisions of the trust agreement are as follows: TENTH: with Estate of Insured--Upo- n death of Grantor, the Trustees may, within their discretion, purchase assets of the estate at their fair value. The propriety of the purchase, the amount of such assets purchased, and the ascertainment of fair value shall be solely within the discretion of the Trustees, and the Trustees shall incur no liability as a result of any such purchase, whether or not the assets constitute investments which may be legally made by Trustees. Trustees' Powers the administration of the trusts, the Trustees shall have the following powers, all of which shall be exercised in a fiduciary capacity, pri- marily in the interest of the beneficiaries: ELEVENTH: --- In (a) To hold and continue to hold as an investment the property received hereunder, including policies of insurance, and any additional property which may be received by them, so long as they shall deem proper, and to invest and reinvest in any securities or property, whether or not income-producin- g, deemed by them to be for the best interests of the trusts and the beneficiaries hereunder . ' . ... ... (c) To sell and convey any of the property or to the same for for such price or other property, exchange prices and upon such terms as in their discretion and judgment may be deemed for the best iuitJicst of the trusts and the beneficiaries .... (Cont'd, oh Pag I 10) |