This is a highway-condemnation action and was consolidated for purpose of trial with Hurkman v. State, ante, p. 634, 130 N.W.2d 244, which action is also before the court on appeal but with different issues involved.

In motions after verdict the plaintiffs moved for a new trial. The motion was denied and judgment was entered in favor of plaintiffs upon the verdict.

Plaintiffs owned a 79-acre dairy farm one-half mile north of the village of Little Chute on County Trunk Highway N in Outagamie county. The state took 15.5 acres of plaintiffs' land, a strip 220 feet wide off the south boundary for the relocation of U.S. Highway 41, a no-access highway, and a triangular-shaped parcel at the southwest corner of the plaintiffs' land for the purpose of forming the northeast quadrant of the diamond-shaped interchange between Highway N and Highway 41. In addition, the grade of Highway N was changed so that it passed over Highway 41. This change of grade destroyed access to Highway N from about three quarters of the border of plaintiffs' farm.

The case for plaintiffs consisted of the testimony of Owen Hietpas and expert witnesses, George Simon and Herman Jennerjohn (who also testified in Hurkman v. State, supra). Plaintiff Owen Hietpas testified that after the taking he had stopped farming. He thought the fair market value of his farm before taking was $47,000 and after taking $30,000. Witness Simon testified to a value before taking of $48,000 and a value after taking of $30,000. Witness Jennerjohn testified to a before-taking value of $40,000 and an after-taking value of $25,000. All plaintiffs' witnesses thought that the land prior to the taking and the change of grade had considerable value for residential purposes.

Defendant used Carlton Wieckert and Willis W. Capps for its expert witnesses on value. Wieckert testified to a value before taking of $21,000 and the same value after taking. He thought there was little residential potential on the farm prior to taking. After the taking he felt the increased commercial potential due to plaintiffs' location on one quadrant of the interchange made up for the value of the land taken.

Capps was of the opinion the farm was worth $28,000 before taking and the same amount after taking. Like Wieckert he felt that the special benefits were sufficient to offset the value of the land taken. Neither witness could arrive at any value after taking excluding special benefits.

The same comparable sales were introduced with respect to the Hietpas property as in the Hurkman Case, supra. Defendant also introduced the testimony of Mr. Rolfe B. Sawtelle, former chief of the right-of-way section of the highway commission, and Mr. Howard E. Jacques, the supervisor of right-of-way acquisition for the state highway commission in the Green Bay district. Mr. Sawtelle testified generally concerning the increase of the value of land in interchange quadrants on no-access highways. Most of his testimony concerned the belt line outside Madison. His testimony was permitted over vigorous objection by all the plaintiffs in the consolidated cases. Mr. Jacques testified to commercial development along Highway 41, both before and after relocation. He identified photos of the intersections of Highway 41 and U.S. Highway 10 and Highway 41 and State Highway 125. U.S. Highway 10 and State Highway 125 both intersect Highway 41 in the vicinity of Appleton. Mr. Jacques testified that in 1952 when Highway 125 was built all the land surrounding it was zoned agricultural. Since that time the land had been rezoned to adapt it to its highest and best use. He assumed that similar zoning changes would be made in this case. Objection to this testimony by counsel for Mr. and Mrs. Hietpas was overruled.

Plaintiffs produced Mr. Joseph H. Doerfler on rebuttal. In his opinion any commercial value to the Hietpas farm by reason of the construction of the interchange was highly speculative.

The case was submitted to the jury on a special verdict. The jury found the value of the Hietpas farm before taking to be $28,000 and the value after taking to be $21,000. Plaintiffs appeal.

BEILFUSS, J.

Three issues are presented on this appeal:

(1) Are benefits, if any, resulting to the Hietpas property by reason of the construction of the interchange general or special benefits?

(2) Was it prejudicial error to admit testimony of value for commercial use without showing a reasonable probability that zoning would be changed so as to permit that use?

(3) Was it prejudicial error to admit testimony concerning increase of value in properties constituting the quadrants of interchanges near Madison and Appleton because those areas were not comparable to Little Chute?

Special Benefits.

One of the principal contentions of the plaintiffs is that the benefits occurring to land by virtue of the public improvements, if any, were not special but general benefits as a matter of law and therefore not an offset.

Pertinent portions of sec. 32.09, Stats. 1961, are as follows:

"RULES GOVERNING DETERMINATION OF JUST COMPENSATION. In all matters involving the determination of just compensation in eminent domain proceedings, the following rules shall be followed:

"(3) Special benefits accruing to the property and affecting its market value because of the planned public improvement shall be considered and used to offset the value of property taken or damages under sub. (6), but in no event shall such benefits be allowed in excess of damages described under sub. (6).

"(6) In the case of a partial taking, the compensation to be paid by the condemnor shall be determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication [to enumerated items of damage], . . ."

Plaintiffs argue in this action as the landowners did in Petkus v. State Highway Comm., ante, p. 643, 130 N.W.2d 253, that special benefits must be restricted to actual physical improvements of the land as stated in Washburn v. Milwaukee Lake Winnebago R. R. Co. (1884), 59 Wis. 364, 18 N.W. 328. In the Petkus Case, supra, we extended the definition of special benefits to include "enhanced value because of more advantageous adaptability for use." Special benefits accruing to land not taken in eminent-domain proceedings, which may be set off against damages if they enhance the market value immediately after taking of the land remaining, include physical improvements to the land, imminent adaptability of the land to a higher and better use from an economic standpoint because of proximity to the public improvement; and immediate adaptability by reason of proximity to the improvement to a use which was relatively remote in point of time before the taking, even though such use may have, to some degree, affected the market value of the land. Petkus v. State Highway Comm., supra.

Assuming the evidence presented on the question of special benefits to be otherwise admissible, we conclude the question of whether there was a special benefit and the extent thereof was for the jury and not a question of law as contended by the plaintiffs.

While the burden of proof as to damages in eminent domain rests upon the landowner, we consider the existence of special benefits to be a matter of affirmative defense. As to such benefits the burden of proof is upon the condemnor. The condemnor must show that the claimed special benefits are direct, immediate, and certain, both as to time and place; not remote or speculative.

In those cases where the question of special benefits is at issue, the form of verdict customarily used inquiring only as to the fair market value before and after the taking need not necessarily be changed to include a separate question on special benefits. We deem the burden of proof for this affirmative defense can be adequately covered in the court's instructions to the jury.

Zoning Change.

The defendant was permitted over objection to offer proof of a possible zoning change to permit an anticipated higher use of land after taking assuming the completion of the public improvement. The witness, Mr. Jacques, testified that he assumed zoning changes would be made to accommodate a higher use of the land. We conclude the trial court erroneously overruled the objection.

A prospective use prohibited by zoning regulations may not be considered. However, if it can be shown that there is a reasonable probability that the zoning regulations will be changed in the immediate future to accommodate such use, the trier of the fact may consider the prospective use in its consideration of special benefits. 4 Nichols, Eminent Domain (3d ed.), p. 236, sec. 12.322; 1 Orgel, Valuation Under Eminent Domain (2d ed.), p. 167, sec. 34; Anno. 173 A.L.R. 265.

In order to lay a proper foundation for the admission of testimony showing special benefits by reason of changed use to land remaining after a taking, it is necessary for the party claiming the special benefit to show that zoning regulations governing the land in question presently permit the changed use or that a reasonable probability exists that zoning in the near future will accommodate such a use. A mere possibility, or an assumption on the part of the witness is not enough and must be rejected as being speculative.

Evidence of Other Land Specially Benefited.

Over vigorous objection Mr. Sawtelle and Mr. Jacques were permitted to testify as to commercial development and enormously increased market value to land adjacent to access points on no-access highways in the Madison and Appleton areas. The objection was upon the ground of remoteness, namely, there was no showing of similarity either geographically or economically with the area surrounding Little Chute. We conclude the objection was well taken and should have been sustained.

It might have been possible for the state to lay a statistical foundation, that is, to show that the interchanges studied were selected at random; that they included the whole range of municipal-growth pattern in the state; and that a statistical trend with sufficiently high confidence limits was observed or that a statistically valid correlation existed between the economic area studied and the observed increase in market values. Nothing of this nature was done here.

We have determined that the record reveals erroneous rulings on the evidence. As set forth in sec. 274.37, Stats. 1961, the judgment is not to be set aside nor a new trial ordered unless the errors were prejudicial.

Sec. 274.37, Stats., reads:

"JUDGMENTS; APPLICATION TO REVERSE OR SET ASIDE; NEW TRIAL; REVERSIBLE ERRORS. No judgment shall be reversed or set aside or new trial granted in any action or proceeding, civil or criminal, on the ground of misdirection of the jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure the new trial."

The plaintiffs' real complaint is not that after-taking value was too high, but the before-taking value was too low. The evidence shows before-taking values ranging from $48,000 to $21,000 and after-taking values from $30,000 to $21,000. The jury found the before-taking value to be $28,000 and the after-taking value to be $21,000. The improper testimony as to special benefits contemplating the completion of the improvement could not have affected the jury's determination of the before-taking value. The errors in admission of testimony were not prejudicial to the plaintiffs. The verdict is supported by credible evidence and a new trial should not be ordered.

By the Court. — Judgment affirmed.