People Ex Rel. Department of Public Works v. Campus Crusade for Christ, Inc.

TAMURA, J.

Defendant appeals from a judgment adjudging that it suffered no damage when the state obtained an order of immediate possession of certain access rights to a parcel of land owned by defendant and subsequently abandoned the proposed acquisition before trial.

Plaintiff filed an action in eminent domain to acquire several parcels of land, including 3,094.79 lineal feet of access rights (leaving an access opening at each end) to a 63-acre parcel of undeveloped land owned by defendant and obtained an order of immediate possession. Subsequently plaintiff filed an amendment to the complaint deleting the access rights. Following a trial on the remaining parcels, the court determined that the amendment constituted an abandonment of the access rights and, in accordance with the stipulation of the parties, ordered that plaintiff pay defendant attorney and appraisal fees in the amounts agreed upon by the parties and directed that “the issue of damages, if any, by the possession of the access . . . for the period December 12, 1962, to March 10, 1965,” be tried by the same judge, without a jury, who tried the principal action.

At the trial on the issue of damages, defendant's appraiser testified that the topography of the 63-acre parcel was such that the access points reserved in the order of possession were the only practical access but they were inadequate for the development of the property to its highest and best use, namely, estate type residential development. In his opinion the fair market value of the 63 acres in its “before” condition was $5,000 per acre and in the “after” condition $2,000 per acre so that had the access rights been permanently taken, the damage to the 63-aere parcel would have been $189,000. From this he testified that in his opinion the damage to the 63-acre parcel for the effective period of the order of immediate possession (2 years and 3 months) was equal to 7 percent interest on $189,000 for that period, or $29,767.

Plaintiff’s appraiser testified that the highest and best use of the 63 acres ivas low density residential development some 5 or 10 years hence. He testified that development would be costly because of the terrain and the necessity of providing water and other utility services. In his opinion the fair market .value of the property in the “before” condition was $500

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