1 Reported in 2 N.W.2d 572.
2 Former opinion officially filed January 2, 1942, but not published, is withdrawn, and this opinion substituted in its place. The state appeals from an order denying a new trial in a trunk highway condemnation proceeding. The principal question presented *Page 63 is whether or not an option to purchase land designated and located for a trunk highway, taken by the commissioner of highways but never exercised, was admissible on the issue of damages for the taking of the land covered by the option.
Lots 17 and 18 of Allison's Second Addition to Sleepy Eye were a part of the estate left by Jens P. Nelson, who died some three years prior to the commencement of the condemnation proceedings here involved. His children, the respondents here, became the owners of their father's interest in the lots. Lot 18 is about 189 feet by 210 feet, lying to the north and across a 20-foot alley from lot 17, which lies 140 feet north and south along the proposed highway and was 70 feet wide (east and west) before the 20-foot strip here involved was taken from its east side by condemnation. December 11, 1939, the commissioner of highways, by order, designated a 20-foot strip to be taken off the east side of the lots for trunk highway No. 4 and on the same day he established a center line for the highway 40 feet east of the west boundary line of the 20-foot strip. December 20, 1939, the state, for a consideration of one dollar, obtained from respondents an option to purchase the 20-foot strip along both lots for $800. March 29, 1940, respondents sold all of lot 17 except the 20-foot strip to a person not a party to these proceedings.
April 22, 1940, the state filed a petition in the district court to take by condemnation the land here involved. Commissioners were appointed and the damages appraised. Their report was filed June 27, 1940, determining respondents' damages as owners of lots 17 and 18 to be $500. They appealed, and the jury awarded them $775 with interest from June 27, 1940.
1. On the trial the court admitted the option in evidence. We think its admission was prejudicial. An option is not a sale. Many considerations may enter into the purpose of acquiring an option, and unless it ripens into a sale it should not be admitted as evidence of value. Under our decisions, it is not even permissible to show the purchase price paid by the condemnor for property similar to that sought to be condemned in the vicinity *Page 64 thereof. Stinson v. C. St. P. M. Ry. Co. 27 Minn. 284,6 N.W. 784; Minneapolis-St. Paul Sanitary District v. Fitzpatrick,201 Minn. 442, 277 N.W. 394, 124 A.L.R. 897; see 2 Lewis, Eminent Domain (3 ed.) § 667, p. 1147.
By commencing the condemnation proceedings, the state in effect repudiated the option and disclaimed any rights thereunder. The only issue before the jury in these proceedings was the damage to respondents' property. There was evidence from which the jury could have found that respondents' damage was only $500. We cannot say that because the jury did not fix the damages at the amount of the option they were not influenced by it in reaching their verdict. Respondents' whole case was built up around the irrelevant option.
2. Damage to that part of lot 17 which was sold before the condemnation was started was not to be considered by the jury in assessing damages for the taking of the strip here involved. The purchaser of lot 17 less the 20 feet here involved was not a party to the appeal from the award, nor apparently was he a party to the proceedings. His part of lot 17 was segregated before these proceedings were started. He may or may not have been entitled to some form of relief if seasonably sought. Such being the case, the statement in this opinion that there was evidence that the damages to respondents did not exceed $500 rests on a firm foundation. Any contention to the contrary is based upon the misconception that the damage to the segregated part of lot 17 could be assessed to these respondents. That that view is a misconception will be seen when we realize that the award herein is no bar to recovery by the grantees of whatever damages the segregated part may suffer by the change of grade if relief for that be sought. Those grantees are not parties hereto.
The measure of damages herein was the difference in value before and after the taking of the tract consisting of lot 18 and the 20-foot strip of lot 17, but excluding that part of 17 which had been sold before the proceedings were started. *Page 65
In fairness to respondents, the highway department might well have given them prompt notice of its determination not to take up the option.
There must be a new trial.
Order reversed.