Court of Appeals (dissenting) .
I concur in the reasons stated by Justice Moise in support of his dissent. I do, however, wish to add the following thereto in support of my dissent from the majority opinion.
The majority announce, and correctly so, that1 this court is committed to the “before and after rule” as the proper measure of damages, but then conclude their opinion by stating that: “no testimony concerning compensable elements of damage has been pointed out to us except the value of the land taken. The damages recoverable herein may, accordingly, not exceed the value of the land taken.”
The only conclusion I am able to reach from this language is that, if only a portion of the condemnee’s property is taken for highway purposes, the “before and after rule” is no longer the applicable rule, but a new rule is now to be applied. This rule is: The condemnee is entitled (1) to the value of the lands actually taken, and (2) to such specific damages as may be occasioned to the remainder of the lands by the taking, but excluding depreciated market value by reason of (1) impaired ingress and egress, (2) increased circuity of travel between the traffic lanes of the main highway and the remaining lands, (3) impaired ability to move from one portion of the remaining lands to other portions thereof by reason of the division of the lands by the highway, and (4) loss of use of the remaining lands and improvements thereon, to whatever degree, by reason of a division of the lands by the highway, and the impairment of their use as an economic unit. These are the elements of damage involved in the present case, which the majority say are not compensable.
It is true the lands were divided by the old highway, but the appellees had reasonably free movement across the same from one portion of their lands to the other portions thereof.' This they no longer have.
Some of the recent decisions by this court demonstrate clearly that the application of the “before and after rule,” for the purpose of ascertaining the damages to which a -condemnee is entitled, when only a portion of his property is actually taken by the condemnor, requires that the fair market value of the entire property immediately before the taking be ascertained, that the fair market value immediately after the •taking of that portion of the property which is not actually taken be ascertained, and that the condemnee then be awarded as his -damages the difference between these “before and after” fair market values, if there be a difference, and if the “after” fair market value be less that the “before” fair market value. Board of Trustees v. B. J. Service, Inc., 75 N.M. 459, 406 P.2d 171 (1965); Board of Trustees v. Spencer, 75 N.M. 636, 409 P.2d 269 (1965); State ex rel. State Highway Comm. v. A. T. & S. F. Ry., 76 N.M. 587, 417 P.2d 68 (1966). A determination of the fair market value of the remaining lands immediately after the taking will necessarily include the benefits, if any, accruing to the remaining lands by reason of any proposed construction by the condemnor, and will also necessarily include the damages, if any, caused to the remaining lands by reason of the taking and by reason of any proposed construction by the condemnor. Board of Trustees v. B. J. Service, Inc., supra; Board of Trustees v. Spencer, supra.
The court’s instruction No. 3, which has not been attacked and which is as follows, is in accord:
“In this case only a part of the defendant’s property was taken. The ‘just compensation’ to which defendant is entitled is the difference between the fair market value of his property immediately before and immediately after the taking, the date of taking being May 8, 1962.”
Since no attack has been made upon this instruction, this is the law of this case. American Tel. & Tel. Co. v. Walker, 77 N.M. 755, 427 P.2d 267 (1967); State ex rel. State Highway Commission v. A. T. & S. F. Ry., 76 N.M. 587, 417 P.2d 68 (1966); Sanchez v. Board of County Commissioners, 63 N.M. 85, 313 P.2d 1055 (1957). Thus, in my opinion, this court cannot properly reverse and remand the case for a new trial with directions to change the measure of damages from that stated in the instruction to that of the value of the lands taken.
I am unable to accept the majority opinion for a further reason. Although the majority do not so state in their opinion, I submit that the logical application of the reasoning of their opinion, to a determination of the compensable value of the lands actually taken, compels a deduction from the fair market value of these lands, as of the time of the taking, of that portion of such fair market value as was attributable to the presence of the existing highway and the traffic thereon. If it is proper to deduct certain elements from the “after valué,” then why not deduct these same elements from the “before value”? If the public need not compensate the condemnee for this loss in the one instance, then why in the other ?
I am unable to square the majority view with my understanding of the constitutional enjoinder that “private property shall not be taken or damaged for public use without just compensation,” or with the “before and after rule,” so repeatedly declared by this court to be the proper measure of damages, where only a portion of the condemnee’s property is taken.
For the reasons stated, I dissent.