Opinion
Walter L. Wagenhals, City Atty., Gary L. Johansen, Asst. City Atty., Boulder, for petitioner-appellant.
Reynolds, Connell & Moran, John M. Banman, Boulder, for respondent-appellee.
ENOCH, Judge.
The City of Boulder, plaintiff, appeals from a judgment entered in favor of Orchard Court Development Company, respondent, in a condemnation action initiated by the City. We affirm.
The City brought this action to condemn a small strip on respondent's land needed for a street widening project. The parcel in question consists of 3200 square feet of land which, prior to the widening of the street, was part of a mobile home park owned and operated by respondent. The improvements on the land consisted of 290 lineal feet of mature lilac hedge; four apple trees, which were eight to twelve inches in diameter; two shade trees; and one ornamental shrub. Prior to the taking, this vegetation shielded the trailer court from the noise and aesthetic discomforts of the street.
The issue of compensation was tried to a panel of commissioners appointed by the trial court. By stipulation, the parties agreed that no evidence relating to benefits to the residue would be presented to the Commission. Respondent called the City's appraiser to testify as a hostile witness. The appraiser stated that the fair market value of the parcel taken was $2,800. When asked to explain the basis for this estimate, the appraiser testified that he had valued the entire property prior to taking and assigned a square-foot value to the parcel taken, based on sales of unimproved properties with the same zoning. This process resulted in a valuation of $1,900 for the 'raw' land, to which the appraiser added $890, his estimate of the replacement cost of the shrubbery on the strip taken. Respondent called a second witness who testified solely on the replacement cost of the shrubbery. His estimate was based on a formula which is used in determining the value of destroyed trees for the purpose of insurance recoveries and income taxes. The formula takes into consideration the number of square inches in a cross-section of the actual tree being appraised. Over the objection of the City, this witness testified that the replacement cost of the shrubbery on the property taken was $8,378. On voir dire examination, counsel for the City established that the witness' estimate was not based in any way on land values or the amount by which the shrubbery enhanced the fair market value of the parcel. Respondent also presented evidence, over the City's objection, on the replacement cost of a fence which was damaged during the widening of the street.
After hearing all the evidence and viewing the property in question, the Commission found that the fair market value of the land taken was $8,200 and that there were no damages to the residue. The trial court entered judgment in accordance with these findings, and the City appeals.
The City raises three contentions: (1) The Commission erred in admitting evidence of the replacement cost of the trees, where the evidence was not linked with market value; (2) the Commission erred in receiving evidence on the replacement cost of the fence which also was not tied to market value; and (3) the award is not supported by competent evidence and is excessive as a matter of law.
The proper measure of damages in Colorado for a partial taking is the fair market value of the property actually taken, plus the difference, if any, between the damages and the benefits to the residue. C.R.S.1963, 50--1--17; 1967 Perm.Supp., C.R.S.1963, 50--1--18. The primary issue here is not the measure of damages, but rather what kind of evidence may be introduced by the landowner to prove damages under the accepted measure. The necessity of distinguishing between these two issues was clearly recognized by the Supreme Court, which stated in Dandrea v. Board of County Commissioners, 144 Colo. 343, 356 P.2d 893: 'There should be no confusion between the measure of damages and evidence admissible to show damages.'
With this basic premise in mind, we turn to the question of whether evidence of the replacement cost of the trees and hedge was properly admitted. It is well established that the replacement cost of improvements on the land is not the measure of damages in condemnation cases where there is a market value for the property taken. Dandrea v. Board of County Commissioners, Supra; see Mustang Reservoir, Canal & Land Co. v. Hissman, 49 Colo. 308, 112 P. 800. Nor may market value be established by evidence which itemizes the separate values of attributes of the property, such as buildings, trees, subsurface minerals, etc. United States v. Meyer, 113 F.2d 387 (7th Cir.), cert. denied, 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed. 459; Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P.2d 315; 29 A C.J.S. Eminent Domain s 136(8). See also Montgomery Ward & Co. Inc. v. City of Sterling, Colo., 523 P.2d 465; and Dept. of Highways v. Schulhoff, 167 Colo. 72, 445 P.2d 402. There must be evidence of the market value of the property as a unit. However, evidence of elements of damages, such as cost of restoration and estimates of replacement value, are admissible if 'they would have a bearing on and influence opinion as to value.' Dandrea v. Board of County Commissioners, Supra; see Farmers' Reservoir & Irrigation Co. v. Cooper, 54 Colo. 402, 130 P. 1004. In Wheeling Electric Co. v. Gist, 154 W.Va. 69, 173 S.E.2d 336, the court stated:
'While such values cannot be itemized and then added together in order to arrive at a greater figure than the market value, a qualified witness may obtain the necessary information as to the value of the various elements involved in the land taken and testify as to the value as a whole.'
In this case, a foundation for the admission of the nurseryman's testimony was provided by the previous testimony of the appraiser. The appraiser gave an expert opinion on the market value of the strip of land taken by the City. In explaining that estimate, he described several factors which he had taken into consideration in forming his opinion, one of which was the replacement cost of the trees and hedge. This was a legitimate consideration, since the vegetation obviously enhanced the market value of the property to some degree. The nurseryman's testimony was admissible in rebuttal of one of the factors weighed by the appraiser in determining market value. Of course, absent such a foundation, the nurseryman's testimony would not have been admissible because there would have been nothing to link replacement costs to market value. See City and County of Denver v. Hinsey, 177 Colo. 178, 493 P.2d 348.
Neither party included the instructions of the trial court in the record on appeal. We must therefore assume that the commissioners were properly instructed on the measure of damages and that they limited their consideration of the testimony on replacement cost of the vegetation to its effect on the market value of the property taken. See Farmers' Reservoir & Irrigation Co. v. Cooper, Supra; see also Kistler v. Northern Colorado Water Conservation District, 126 Colo. 11, 246 P.2d 616. Under the same reasoning, evidence of the replacement cost of the fence was not admissible because it was not connected by other testimony to the market value of the parcel taken. However, if the commissioners were properly instructed as to how they were to consider the fence replacement evidence in determining the amount of damages to be awarded, the admission of this evidence would not be reversible error. In the absence of the instructions in the record, we must assume that the commissioners were properly instructed, and thus, the admission of this evidence is not reversible error.
The City's final contention is that the verdict is excessive as a matter of law. We do not agree. There is substantial evidence in the record to support the finding of the commissioners. Board of Directors v. Calvaresi, 156 Colo. 173, 397 P.2d 877.
Judgment affirmed.
COYTE and RULAND, JJ., concur.