TACCHINO v. STATE EX REL. DEP'T HWYS

ZENOFF, J., with whom BATJER, J., agrees, dissenting:

The property involved was best suited for industrial uses and had been divided into a number of "blocks" for industrial subdivision purposes. During the trial the Tacchinos presented evidence tending to show their intention to further subdivide the "blocks" into "lots" and the initial steps taken in pursuance of that plan. They contend that they had an active subdivision, that the use of their land for subdivision purposes was not remote or speculative and that therefore evidence as to the number and value of the lots into which the property could be divided is admissible. The Tacchinos readily admitted that industrial property, such as theirs, is not conducive to being subdivided into equal lots because of the varying requirements of prospective industrial purchasers. In light of this admission it is curious that they now contend they should have been allowed to present evidence of valuation based upon the number of lots into which the property could have been divided.

The Tacchinos, in spite of the order preventing such evidence, were somehow successful in getting into evidence their Exhibit No. 2 which was a tentative plat prepared in 1953 showing a possible plan to develop the property and their Exhibit No. 3 which likewise was a tentative plat. Both of these exhibits showed how the blocks in question could have been broken down into lots for purposes of the proposed subdivision. In addition there was much testimony that smaller parcels command a greater price per square foot than larger parcels.

Evidence of the possible breakdown of the parcels into lots may be viewed as offered for two possible purposes: (1) to show the adaptability of the land for subdivision use, or (2) to assist the jury in arriving at the valuation of the condemned property.

1. When the land involved is readily adaptable to subdivision purposes that fact may be taken into consideration in fixing its market value, City of Medina v. Cook, 418 P.2d 1020 (Wash. 1966), but the uses to which the land may thus be adapted must be reasonably probable and not entirely remote or speculative. People ex rel. Dept. Pub. Wks. v. Silveira, 236 Cal.App.2d 604 (1965). If, however, as in this case, the parties agree as to the highest and best uses to which the property is adaptable, such evidence is merely cumulative and could create substantial danger of undue prejudice. People ex rel. Dept. Pub. Wks. v. Princess Park Estates, Inc., 270 Cal.App.2d 876 (1969). In this case there is no dispute that the land is adaptable and suitable for an industrial subdivision and evidence thereof was properly excluded because the adaptability of the land for such use was not in issue. People v. Chevalier, 340 P.2d 598, 604 (Cal. 1959); Lower Nueces River Water Supply District v. Collins, 357 S.W.2d 449, 452 (Tex. 1962).

2. We feel the offered evidence was properly excluded if viewed as offered for the purpose of assisting the jury in arriving at the valuation of the condemned property. Evidence of what the owner might plan to do with his property is not to be considered by the jury as enhancing its market value. Redwood City Elementary School Dist. v. Gregoire, 276 P.2d 78, 83 (Cal. 1954). The owners of the land sought to be condemned are entitled to recover the value of the land at its highest and best use, but where the entire parcel of land is taken as a unit as of the time the action is commenced the proper measure of compensation is what a willing purchaser would be willing to pay for the parcel at the time of the taking, in its then condition and not what a number of purchasers might, in the future, be induced to pay for the land as divided into lots. Department of Highways v. Schulhoff, 445 P.2d 402 (Colo. 1968); City of Caldwell v. Roark, 437 P.2d 615 (Ida. 1968). If such evidence were allowed, the jury would be carried far too deeply into the realm of speculation. The jury is not to speculate as to the kind and number of prospective industrial purchasers or the size of the lots each might require. Nor may it conjecture as to how the land could best be divided into building lots, how fast they could be sold or at what price per lot. Lower Nueces River Water Supply District v. Collins, supra.

Such improper speculation and conjecture by the jury was effectively prevented by the preliminary order entered by the trial judge. The majority's bland idioms such as "[p]rivate property shall not be taken for public use without just compensation having been first made or secured" and "[i]n line with this underlying concept we have ruled that prejudgment interest must be paid to the condemnee when the taking occurs before judgment" (citing Saunders v. State, 70 Nev. 480, 485, 273 P.2d 970 (1954)) find no disagreement in us if they are relevant to the main issue, but this case does not deal with prejudgment interest. It concerns itself solely with the propriety of certain evidence of a proposed industrial subdivision for its prospective value on a per lot basis, the admission of which amounts to nothing more than outright speculation.

Our protest is founded on cases which even Dash v. State, 491 P.2d 1069 (Alaska 1971), relied upon as authority by the majority, acknowledges as the weight of authority. See also 4 Nichols, Eminent Domain, Sec. 12.312[2] (rev. 3d. ed. 1971), referring to the cases supporting our position as being the law of the overwhelming number of jurisdictions. The majority relies on a small handful of cases which strike only a glancing blow to this issue. In fact, of the Nevada cases referred to in the majority opinion none raised our problem as an issue. In Clark County School Dist. v. Mueller, 76 Nev. 11, 19, 348 P.2d 164 (1960), while per lot and per acre valuation were presented to the trial court the propriety of the evidence was not contested.

Only Dash v. State, supra, from Alaska, can be called a true authority and in that case there was an indication that the court had available as an aid in valuation some already subdivided industrial property in the area immediately adjacent to the property in question. Justice Batjer and I resist the departure of this court from a well-settled line of authorities that would keep the complex problems of evaluation in condemnation cases within the bounds of reasonableness.

For the foregoing reasons we would affirm the judgment of the trial court.