State ex rel. Road Commission v. White , 22 Utah 2d 102 ( 1969 )

HENRIOD, Justice.

This case, reassigned to the author, has to do with a condemnation proceeding where the state took part of the defendants’ land. Part was on one side and part was on the other side of an existing highway. Situate on the land taken were a cafe, dwelling house, an old frame house, and a ten-unit motel.

During the trial, the jury, without the trial court’s knowledge, was permitted, against the court’s suggestion, to view the inside of the structures. This occurred a considerable time after plaintiff or vandals had razed the frame house and extensively had demolished the interiors of the other buildings. Under these circumstances, the defendants contend, and we agree, that the members of the jury well may have been influenced adversely with respect to an objective valuation of the property as of the time of taking. It was for this reason that the trial court cautioned the veniremen not to view the interiors of the buildings.

This court has ruled that in eminent domain proceedings, generally the jury is precluded from basing its verdict on self-obtained evidence not presented at trial.¹

Defendants’ own witnesses’ opinions partially are borne out in support of such conclusion. While normally it is within the province of the jury to believe or disbelieve whom it chooses, nonetheless, we are constrained to conclude that under the facts here, as reflected in the record, including the photo exhibits, that such belief or disbelief was influenced by the improper view of the inside of the structures, such as to call for a new trial as requested by defendants. We believe that City of Chicago v. Koff ² is apropos here when it was observed that:

There is no method by which there may be preserved in a bill of exceptions the evidence of the manner in or extent to which the minds of the various members of the jury were impressed by a view of a building, and where, as here, such changes have taken place as to render a view of no assistance to the jury, for the reason that the condition at the time of the trial does not reflect the value as of the time the petition was filed, it is an abuse of discretion to permit such view.

We think that under the circumstances of this case, including the photographs showing that what the jury saw inside the buildings was nothing short of a ripped-out interior representing a veritable shambles, justifies the conclusion that this case should be remanded for a new trial as to damages for the taking, but not as to severance damages, which latter issue was resolved by the 'jury against the Whites, and which was not an issue on appeal. It is so ordered.

CALLISTER and TUCKETT, JJ., and JOSEPH G. JEPPSON, District Judge, concur. ELLETT, J., being disqualified, does not participate herein.

1 . Provo River Water Users’ Ass’n v. Carlson, 103 Utah 93, 133 P.2d 777 (1943).

2 . 341 Ill. 520, 173 N.E. 666 (1930).