This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-832

 

State of Minnesota,

by Mike Hatch, its Attorney General, petitioner,

Respondent,

 

vs.

 

David Dorow, et al.,

Appellants.

 

Filed February 18, 2003

Affirmed

Randall, Judge

 

Brown County District Court

File No. MP 01-019537

 

 

Steven J. Vatndal, Gislason & Hunter, LLP, 424 North Riverfront Drive, Suite 250, Mankato, MN 56001 (for appellants).

 

Mike Hatch, Attorney General, David M. Jann, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent).

 

Considered and decided by Randall, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellants challenge the district court's finding of necessity for a portion of the state's desired taking. Additionally, appellants challenge the exclusion of testimony regarding line-item damages for loss of trees and also the highest and best use of the property in this condemnation case. Because we find no abuse of discretion by the district court, we affirm.

FACTS

Appellants own a farm near Cobden, Minnesota. Respondent, the State of Minnesota, through the Department of Transportation (DOT), sought to take an area along the side of Trunk Highway (TH) 14 to implement snow-control measures. This area consists of a strip of land in fee as well as a permanent and temporary easement on other portions of the property. This litigation centers around two pieces of property, the first of which is a 50-foot by 354-foot strip of land that runs through appellants' front yard. Forty-eight arborvitae trees (the trees) are located on this parcel and must be removed to implement DOT's desired snow-control measures. The second parcel in dispute is approximately 34.3 feet wide by 983.6 feet long. Respondent acquired a permanent easement on the second parcel to build a snow fence and also to store snow in order to prevent drifting problems on TH 14. Appellants claim that the permanent easement destroys the utility of this land. They further claim that because of the parcel's proximity to a railroad line and the trunk highway, it should be valued as commercial, rather than agricultural, real estate.

D E C I S I O N

The district court determined necessity existed as to the entire taking. Dan Gullickson, an Urban and Community Forrester with DOT, recommended removing the trees, regrading the nearby ditch, and erecting a snow fence. Based upon this evidence, the court found the taking proper and ordered the lands transferred to the state under Minn. Stat.  117.042 (2002).

Appellants point out that DOT's outside snow-control expert did not visit the specific property in question, and was told by DOT to assume that the site in question had a snow problem. Further, they note that the expert's opinion was that only a snow wall was needed. Building a snow wall[1] would not require taking as much of the property or destroying the trees. Appellants also claim that the snow wall is not necessary every winter, and other snow control measures could be employed. Finally, appellants note that George Welk, a DOT representative, stated that a valid approach to the snow issue at this location would be to erect a snow wall and take a "wait and see approach" before implementing additional snow-control measures.

Whether the land to be acquired is necessary to accomplish a project's purpose is a question of fact, and on review we determine whether the finding is clearly erroneous. Lino Lakes Economic Dev. Auth. v. Reiling, 610 N.W.2d 355, 359 (Minn. App. 2000). A finding of necessity is clearly erroneous if, after reviewing all the evidence, the court is left with a definite and firm conviction that a mistake has been committed. Housing and Redev. Auth. v. Schapiro, 210 N.W.2d 211, 214 (Minn. 1973). The requisite necessity for a taking is not an absolute necessity; rather, it is sufficient that "the proposed taking is reasonably necessary or convenient for the furtherance of a proper purpose." Lino Lakes, 610 N.W.2d at 359 (quoting City of Duluth v. State, 390 N.W.2d 757, 764-65 (Minn. 1986)).

Gullickson testified that, in his professional opinion, the snow fence was necessary for the safety of the traveling public and would save maintenance costs. Gullickson further testified that he spent "a considerable amount of time studying it, analyzing it" and that it had been a "very challenging project." He also testified that there have been numerous meetings within DOT and site visits during this project. Welk testified that removal of the trees and installation of a snow wall was, in his professional opinion, necessary to fully correct the problem. Welk also testified that "at least half a dozen" professionals, engineers, and landscape experts who have studied snow control explored various design alternatives.

Appellant has failed to show that the district court's finding of necessity was clearly erroneous. The testimony was clear that alternative snow-control measures were considered. Snow-control experts considered construction of a snow fence and removal of the trees a viable solution to the snow-drifting problem on TH 14. Experts testified that these measures will increase vehicle safety and decrease maintenance costs for the state, both of which are legitimate purposes.

The district court excluded appellant's expert appraisal testimony regarding (1) the line item value of the trees removed; (2) noise damages; and (3) highest and best use of the property taken. The court concluded that removing the trees did not render the property unfit for its intended use and, therefore, replacement cost was not an appropriate damage measure. Appellants' expert testimony regarding noise damage was based upon a report entitled the "St. Peter Study," which his expert, James Robinson, produced on the effect of traffic noise on land values in St. Peter, Minnesota. Robinson was unable to produce the report during discovery and the court concluded the state could not effectively cross-examine Robinson without it. Finally, concerning the highest and best use testimony, the court concluded that appellants' claim of a commercial use for the property was "nothing more than hopeful conjecture."

Appellants argue that the trees have significant value in this case. They assert that they are worth $910 each (replacement cost) and provide a "visual screen (12 to 16 feet high) and audio barrier and a more wooded view." Appellants argued that they should be awarded severance damages based on the replacement cost of each tree. Appellants also sought to introduce their expert's testimony of highest and best use. Robinson claimed that, due to small size and irregular shape of the parcel as well as the parcel's access to a highway and railroad line, a property value greater than agricultural land was "within the realm of probability."

Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court's discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). In addition,

evidentiary rulings, including a decision to exclude expert testimony, lie within the sound discretion of the trial court. * * * A trial judge is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion. Even if this court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the trial judge will not be reversed absent clear abuse of discretion.

 

Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990) (citations omitted).

The measure of damages in a partial condemnation case is ordinarily the difference between the market value of the entire tract before the taking and the value of what is left after the taking. Alexandria Lake Area Serv. Region v. Johnson, 295 N.W.2d 588, 590 (Minn. 1980). However, in certain cases, damages have been awarded "on the basis of the cost of restoring the remaining property to a condition that will make it available for use after the taking; i.e., reconstruction costs." Id. at 590 (citations omitted).

Here, appellants argue they should be awarded replacement damages for the trees. Current law does not support a pure line-item damage measure; instead precedent requires a comparison of the market value of the land before and after the taking. Alexandria Lake, 295 N.W.2d at 590. But, evidence of replacement cost may be admissible because it has probative value when determining before and after valuations. The value of the trees is not a separate line item when computing damage, but is one of many factors that may be used to determine the final figure. Because of this, it would not have been an abuse of discretion for the district court to admit appellants' evidence on replacement value for use in determining before and after valuations. That said, we cannot say that the district court abused its discretion by excluding this testimony. See Benson, 455 N.W.2d at 446 (stating "[e]ven though evidence may have probative value, its exclusion may well be within the trial court's discretion") (citation omitted).

The district court's exclusion of Robinson's noise damage and highest use testimony was not an abuse of discretion. The district court determined that, without the St. Peter study, the state could not effectively cross-examine Robinson. This report was the foundation for Robinson's noise damage testimony. We cannot say the district court's decision was outside its "wide latitude" to determine sufficiency of the foundation of expert testimony. Benson, 455 N.W.2d at 446 (citations omitted). The district court's exclusion of Robinson's testimony of highest and best use was within the court's discretion. The district court stated that appellants' claim of a commercial use for the property was "nothing more than hopeful conjecture," noting that appellants failed to show there was a market for commercial real estate in the Cobden area. Before one can claim something is marketable, there must be a market. An unrealized hope that commerce may come to an area in the future is not the standard. Appellants could not show any market for commercial land existing in Cobden at the time of the taking. Thus, the district court did not err by excluding opinion testimony of the land's possible value if treated as commercial land.

Affirmed.

 



[1] Building a snow wall involves the installation of a snow fence, around which snow will build up, thus creating a wall of snow that can help prevent drifting further downwind from the wall.