               IN THE SUPREME COURT OF THE STATE OF IDAHO
                              Docket No. 43452


ADA COUNTY HIGHWAY DISTRICT, a )
body politic corporate of the State of Idaho, )
                                               )
       Plaintiff-Appellant,                    )
                                               )     Boise, February 2017 Term
v.                                             )
                                               )     2017 Opinion No. 47
BROOKE VIEW, INC. dba THE )
SENATOR, INC., an Idaho corporation,           )     Filed: May 23, 2017
                                               )
       Defendant-Respondent,                   )     Stephen W. Kenyon, Clerk
                                               )
and                                            )
                                               )
BENCH SEWER DISTRICT; JOE J. HON )
AND WILLIAM A. HON dba FRANKLIN )
WATER          COMPANY;         OVERLAND )
WATER COMPANY, an Idaho company; )
TILLIE MAE SAXTON, a widow; )
VINCENT LEE HUMPHREYS and )
ESTHER C. HUMPHREYS, husband and )
wife; KENNETH RICHARDSON and )
EFFIE R. RICHARDSON; and all )
unknown lessees and tenants in possession )
of any or all of the property which is subject )
to this action, and any other person or )
entity, who has or may have an interest in )
and to the property which is subject of this )
action, referenced for convenience by the )
fictitious designations of DOES 1 )
THROUGH 10,                                    )
                                               )
       Defendants.                             )
_____________________________________ )

      Appeal from the District Court of the Fourth Judicial District of the
      State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.

      The judgment of the district court, as well as the award of attorney
      fees and costs are vacated. This case is remanded for further proceedings
      in accordance with this Opinion. Costs on appeal are awarded to ACHD.
                                               1
       Holland & Hart, LLP, Boise, and Jones Gledhill Fuhrman Gourley,
       P.A., Boise, attorneys for appellant. Mary V. York argued.

       Davison, Copple, Copple & Copple, Boise, attorneys for respondent.
       Heather Cunningham argued.
                               ________________________

JONES, Justice

                                      I. NATURE OF THE CASE

       In a case arising out of Ada County, the Ada County Highway District (“ACHD”)
appeals a district court judgment awarding $148,390.21 plus prejudgment interest and attorney’s
fees to Brooke View, Inc. d/b/a The Senator (“Brooke View”) as just compensation for a parcel
of property that ACHD condemned and took possession of under the State’s eminent domain
powers. ACHD argues on appeal that the district court misconstrued the law when it allowed
Brooke View to recover the cost to repair damage to a wall on Brooke View’s property, which
the jury found had been caused by the construction of improvements on the taken parcel.
                          II. FACTUAL AND PROCEDURAL BACKGROUND
       Respondent, Brooke View, is an Idaho corporation that owns an undivided interest in
certain property located at 421 South Curtis Road in Boise, Idaho (the “Property”). The Property,
which is approximately 20 acres, is the site of a housing development for senior residents. The
development sits behind a serpentine concrete block entrance wall (the “Wall”), which is covered
in stucco on one side and an intricate pattern of decorative brick on the other.
       In early 2012, ACHD embarked on Project No. 809028, also known as the Safe Routes to
School project (the “Project”). The goal of the Project was to design and build sidewalks and
walkways in order to provide students with safe walking routes to and from nearby schools. The
improvements undertaken as part of the Project included not only the installation of sidewalks,
but also the construction of a storm drainage system which included digging an “infiltration
trench.” The infiltration trench is five to six feet wide and eleven to twelve feet deep. It is located
approximately six feet from the Wall.
       On March 1, 2012, ACHD offered Brooke View $7,738.47 (which it later increased to
$8,512.32) as just compensation for a 1,425 square foot section of the Property (the “Taken
Property”), which was needed to complete the Project. Brooke View rejected the offer.

                                                  2
        On April 30, 2012, Dianne Miller (“Miller”), the president and owner of Brooke View,
contacted ACHD to express concern that the Project could cause damage to the Wall and the
surrounding landscaping. After meeting with Miller, ACHD’s project manager, engineer, and
right-of-way specialist determined that the Project would not damage the portion of the Property
not required to complete the Project (the “Remaining Property). It does not appear that ACHD
ever investigated the possibility of damage to the Wall beyond this preliminary assessment.
        On June 20, 2012, ACHD issued an order of condemnation with respect to the Taken
Property. 1 By that issuance, ACHD sought to exercise its power of eminent domain under Idaho
Code section 7-701 to acquire a fee simple interest in the Taken Property as well as a temporary
construction easement on an additional 2,706 square feet of the Remaining Property. While the
Wall itself was not condemned, the temporary easement included a significant portion of the
Wall. On July 11, 2012, ACHD filed a complaint with the Ada County district court seeking to
effectuate its order of condemnation. On August 7, 2012, the parties stipulated to allow ACHD to
take possession of the Taken Property. On August 23, 2012, the district court entered an Order
for Possession of Real Property effectuating the stipulation.
        In October, 2012, ACHD began construction. On November 1, 2012, a resident on the
Remaining Property discovered a crack in the Wall and notified Miller. Thereafter, Miller
located multiple cracks in the Wall. Following the discovery of these damages, the focus of the
litigation shifted from the value of the Taken Property to the cause of the damage to the Wall and
whether the cost of repairing that damage could legally be recovered as part of just
compensation.
        On August 8, 2013, ACHD filed a motion for summary judgment in which it asserted that
physical damage occurring during construction is not part of just compensation, and instead must
be pursued in tort. The motion was denied.
        On October 3, 2013, ACHD filed another motion for summary judgment as well as a
motion for reconsideration of its prior motion for summary judgment. It filed a single
memorandum in support of both motions, in which it again argued, inter alia, that any theory
that Brooke View had for damage to the Wall caused during construction was compensable only


1
  At trial, the parties stipulated that ACHD had actually taken an additional 131.2 square feet of the Property. The
final size of the Taken Property was determined to be 1,566.07 square feet.


                                                         3
in tort. On December 2, 2013, the district court denied both motions. It stated in its denial of
ACHD’s third motion for summary judgment that:
        [T]he Defendant, Brooke View, Inc.’s assertion that ACHD’s “Safe Route to
        School” project of Curtis Road . . . caused physical damage to the entrance way
        walls on the remaining Brooke View property, via underground water trespass,
        vibration, or taking of lateral support, are encompassed within and a part of the
        ACHD eminent domain claim and no counterclaim or affirmative defense must be
        pled by the defendant, Brooke View, Inc. to assert the same.
The district court further held that:
        [T]he Defendant, Brooke View, Inc. is not required to prove the specific
        mechanism of how the Brooke View entrance way walls were allegedly
        physically damaged, but rather simply that construction of the improvement in the
        manner proposed by the Plaintiff pursuant to the Project was the cause of the
        alleged physical damage; and … No evidence of negligent or defective
        construction of the Project, or deviation from how the Project was proposed to be
        constructed, will be permitted at the trial absent a counterclaim by Brooke View,
        Inc. as to the same.
        On December 15, 2014, ACHD filed another motion for partial summary judgment or, in
the alternative, motion in limine. In its memorandum in support, ACHD argued, inter alia, that
“Brooke View cannot meet its burden of proof as to proximate cause.” ACHD further argued that
it had immunity for any damages caused to Brooke View under the Tort Claims Act (Idaho Code
section 6-904(7)). On February 26, 2015, the district court denied ACHD’s motion. In its order,
the district court reasoned that “[t]his is a constitutional claim, not a tort claim, and tort
principles do not apply. The defendant has to prove damages were caused, but they do not have
to prove proximate cause of the mechanism of damage.” The district court further held that
because any damages caused during construction implicated a constitutional claim rather than a
tort claim, Idaho Code section 6-904 (the “Tort Claims Act”) was inapplicable.
        On April 6, 2015, the parties went to trial. Over the course of the trial the district court
repeatedly reemphasized that: (1) damages caused during construction were part of just
compensation; and (2) there was no tort claim at issue, and accordingly, tort issues were not
relevant. Despite multiple admonitions from the district court, ACHD maintained its position that
damages caused during construction were not compensable during a condemnation action.
ACHD did not submit any evidence in support of any valuation; instead conceding that Brooke
View was entitled to just compensation in the amount of $8,512.32.


                                                 4
       On April 23, 2015, the jury unanimously returned a verdict in the amount of $146,291.68.
This number was reached by adding the fair market value of the Taken Property ($3,915.18), the
fair market value of the temporary easement ($676.50), the value of improvements taken
($700.00), and the value of the cost to cure the damage caused to the Wall ($141,000.00).
       On June 12, 2015, the district court entered a judgment on the verdict in the amount of
$148,390.21 and prejudgment interest of $48,792.66. On August 27, 2015, the district court
granted Brooke View’s motion for attorney’s fees and costs, awarding $744,243.56 in attorney’s
fees, $44,051.46 in non-discretionary costs, and $365,703.63 in discretionary costs.
                                       III. ISSUES ON APPEAL
1.     Did the district court err when it included recovery for physical damages to the Wall as
       part of just compensation for the Taken Property?
2.     Did the district court err in its jury instructions?
3.     Did the district court err in admitting testimony and other evidence of events, activities,
       and damages that occurred during the construction of improvements on the Taken
       Property?
4.     Did the district court err in awarding Brooke View attorney’s fees, costs as a matter of
       right, and discretionary costs?
                                    IV. STANDARD OF REVIEW
               We exercise free review over statutory interpretation because it is a
       question of law. State v. Dunlap, 155 Idaho 345, 361, 313 P.3d 1, 17 (2013). Our
       objective when interpreting a statute is “to derive the intent of the legislative body
       that adopted the act.” Id. (quoting State v. Schulz, 151 Idaho 863, 866, 264 P.3d
       970, 973 (2011)). Statutory interpretation begins with the statute’s plain
       language. Dunlap, 155 Idaho at 361, 313 P.3d at 17. This Court considers the
       statute as a whole, and gives words their plain, usual, and ordinary meanings.
       When the statute’s language is unambiguous, the legislature’s clearly expressed
       intent must be given effect, and we do not need to go beyond the statute’s plain
       language to consider other rules of statutory construction. Id. at 361–62, 313 P.3d
       at 17–18.
State v. Leary, 160 Idaho 349, 352, 372 P.3d 404, 407 (2016) (quoting State v. Owens, 158 Idaho
1, 3, 343 P.3d 30, 32 (2015)).
       If the words of the statute are subject to more than one meaning, it is ambiguous
       and this Court must construe the statute “to mean what the legislature intended it
       to mean. To determine that intent, [this Court] examine[s] not only the literal
       words of the statute, but also the reasonableness of proposed constructions, the
       public policy behind the statute, and its legislative history.”



                                                   5
Doe v. Boy Scouts of America, 148 Idaho 427, 430, 224 P.3d 494, 497 (2009) (quoting State v.
Doe, 147 Idaho 326, 328, 208 P.3d 730, 732 (2009)).
                                                  V. ANALYSIS
A.      The district court erred in its interpretation of just compensation under Idaho Code
        section 7-711(2)(a). 2
        Prior to the trial in this case, the district court held that Brooke View’s claims of damage
caused to the Wall during construction on the Taken Property were “encompassed within and a
part of the ACHD eminent domain claim and no counterclaim or affirmative defense must be
pled by the defendant, Brooke View, Inc. to assert the same.” We hold that this conclusion was
error. Damages accruing during construction are not properly part of just compensation and must
be pursued separately in tort. We further hold that any decisions by the district court in reliance
on its initial error were themselves error, including with respect to the admission of evidence,
jury instructions, and award of attorney’s fees and costs.
        Article I, Section 14 of the Idaho Constitution imbues the State with the power of
eminent domain. It provides as follows:
                RIGHT OF EMINENT DOMAIN. The necessary use of lands for the
        construction of reservoirs or storage basins, for the purpose of irrigation, or for
        rights of way for the construction of canals, ditches, flumes or pipes, to convey
        water to the place of use for any useful, beneficial or necessary purpose, or for
        drainage; or for the drainage of mines, or the working thereof, by means of roads,
        railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other
        necessary means to their complete development, or any other use necessary to the
        complete development of the material resources of the state, or the preservation of
        the health of its inhabitants, is hereby declared to be a public use, and subject to
        the regulation and control of the state.

2
 As an initial matter, it is proper for this Court to consider ACHD’s arguments with respect to the meaning of the
word “construction” in Idaho Code section 7-711 in light of Idaho Code sections 7-712 and 6-904(7). Brooke View
asserts that these arguments are new on appeal and therefore should not be considered, citing Crowley v. Critchfield,
145 Idaho 509, 512, 181 P.3d 435, 438 (2007). Brooke View’s position is without merit. Crowley stands for the
proposition that substantive issues cannot be raised for the first time on appeal. The Appellant in Crowley attempted
on appeal to challenge a verdict as inconsistent without having made such a challenge at the time the verdict was
entered. Id. The issue of whether the verdict was inconsistent was an entirely new issue on appeal.
          Here, early in the proceedings before the district court ACHD adopted the position that damages caused
during construction were not recoverable as part of just compensation. ACHD argued this position repeatedly,
despite being admonished numerous times by the district court to stop doing so. There is no question that ACHD
clearly raised the relevant issue before the district court. ACHD’s specific arguments in support of its position may
have evolved since the trial, but the issues on appeal and ACHD’s position with respect to them remain the same.




                                                         6
                   Private property may be taken for public use, but not until a just
           compensation, to be ascertained in the manner prescribed by law, shall be paid
           therefor.
Idaho Const. art. I, § 14 (emphasis added).
           The calculation of the “just compensation” required for an exercise of eminent domain
under Section 14 of the Idaho Constitution is governed by Idaho Code section 7-711 et seq.
Idaho Code section 7-711 provides in relevant part as follows:

                   The court, jury or referee must hear such legal testimony as may be
           offered by any of the parties to the proceedings, and thereupon must ascertain and
           assess:
                   1. The value of the property sought to be condemned, and all
           improvements thereon pertaining to the realty, and of each and every separate
           estate or interest therein . . .
                   2. If the property sought to be condemned constitutes only a part of a
           larger parcel: (a) the damages which will accrue to the portion not sought to be
           condemned, by reason of its severance from the portion sought to be condemned,
           and the construction of the improvement in the manner proposed by the plaintiff . .
           ..
I.C. § 7-711 (emphasis added). This language is nearly identical to the language used in An Act
to Establish a Code of Civil Procedure for Idaho Territory, § 861, 1881 Idaho Sess. Laws, 1, 194,
which was the precursor to Idaho Code section 7-711. 3



3
    Section 861 provided as follows:
                     The Court, jury, or referee must hear such legal testimony as may be offered by any of
           the parties to the proceedings, and thereupon must ascertain and assess:
                    1. The value of the property sought to be condemned, and all improvements thereon
           pertaining to the realty, and of each and every separate estate or interest therein; if it consists of
           different parcels, the value of each parcel and each estate or interest therein shall be separately
           assessed;
                    2. If the property sought to be condemned constitutes only a part of a larger parcel, the
           damages which will accrue to the portion not sought to be condemned, by reason of its severance
           from the portion sought to be condemned, and the construction of the improvement in the manner
           proposed by the plaintiff;
                     3. Separately, how much the portion not sought to be condemned, and each estate or
           interest therein, will be benefited, if at all, by the construction of the improvement proposed by the
           plaintiff; and if the benefit shall be equal to the damages assessed, under Subdivision 2, the owner
           of the parcel shall be allowed no compensation except the value of the portion taken; but if the
           benefit shall be less than the damages so assessed, the former shall be deducted from the latter,
           and the remainder shall be the only damages allowed in addition to the value;


                                                             7
At the time the applicable wording was originally enacted, the word “manner” meant:
         1. Form; method; way of performing or executing.
         Find thou the manner and the means prepare.
         ....
         3. Sort; kind.
         Ye tithe mint and rue, and all manner of herbs. Luke 11:42.
         They shall say all manner of evil against you falsely—Matthew 5:11.
         In this application, manner has the sense of a plural word; all sorts or kinds.

Noah Webster (1828), http://webstersdictionary1828.com/Dictionary/construction. Thus, the
meaning of the phrase could mean either the method of constructing the improvement or the kind
of improvement to be constructed. 4 The phrase in context shows that the latter meaning is
correct.
         Section 861 provided a cause of action to recover damages to the portion of the property
not to be condemned if that portion of the property was injuriously affected by the severance and
the proposed construction. This section stated that the trier of fact must ascertain and assess “the
damages which will accrue to the portion [of the larger parcel] not sought to be condemned, by
reason of its severance from the portion sought to be condemned, and the construction of the
improvement in the manner proposed by the plaintiff.”
         The cause of action for damages for injury to the remaining portion of the larger parcel
accrued as of the date of the issuance of the summons, not on the date of some injury that was
caused to the remaining property during the construction project. Section 862 of the legislation
stated, “For the purpose of assessing . . . damages, the right thereto shall be deemed to have


                  4. If the property sought to be condemned be for a railroad, the cost of good and
         sufficient fences along the line of such railroad, and the cost of cattle guards where fences may
         cross the line of such railroad;
                  5. As far as practicable, compensation must be assessed for each source of damage
         separately.
4
  Brooke View argues that the word “construction” simultaneously means both the process of construction and the
thing constructed. There appears to be no context in the English language in which this is actually true. Rather, the
two definitions are mutually exclusive in use. A person cannot, using a single utterance of the word “construction,”
refer to both a completed edifice and the process of constructing said edifice. The word “construction” can be used
twice in the same sentence, each time having a different meaning, but each individual use will mean one or the
other. It is not surprising then, that despite claiming that the word “construction” is “not typically used to mean only
one of two mutually different things” Brooke View does not provide a single example of the word used in context to
convey both definitions simultaneously.




                                                           8
accrued at the date of the summons . . . .” 5 If the purpose of Section 861 was to provide a cause
of action for an injury to the remaining property caused by something that occurred during the
construction process, the legislature would not have provided that the cause of action accrued
upon the issuance of the summons in the condemnation case. There are many occurrences during
a construction project that could possibly injure the remaining property, depending upon the
nature of the remaining property and other factors. When the summons was issued, one would
not know whether the remaining property would be injured by something that may later occur
during the construction process or the extent of such possible injury. If the legislature had
intended that Section 861 provide a cause of action for injuries to the remaining property that
were caused during the construction project, it would have provided that such cause of action
accrued when such injury occurred, not when the summons was issued in the condemnation case.
It would not have provided that a cause of action for such injury accrued before the injury even
occurred.
           In addition, Section 862, which is substantially similar to the current Idaho Code section
7-712, did not provide that the amount of damages recoverable was based upon an injury to the
remaining property that was caused during the construction project. Rather, it provided that the
actual value of the remaining property as of the date of the issuance of the summons was the
basis for the damages recoverable. The statute stated, “For the purpose of assessing . . . damages,
. . . its actual value, at that date [the issuance of the summons] shall be . . . the basis of damages
to property not actually taken, but injuriously affected, in all cases where such damages are
allowed . . . .” If the legislature had intended to provide a cause of action in the statute for injury
to the remaining property during the construction process, the value of the remaining property on
the date the summons was issued would not be the measure of damages. The actual value of the


5
    Section 862 provided:
                    Sec. 862. For the purpose of assessing compensation and damages, the right thereto shall
           be deemed to have accrued at the date of the summons, and its actual value, at that date shall be
           the measure of compensation for all property to be actually taken, and the basis of damages to
           property not actually taken, but injuriously affected, in all cases where such damages are allowed,
           as provided in the last section. No improvements put upon the property, subsequent to the date of
           the service of summons, shall be included in the assessment of compensation or damages.
An Act to Establish a Code of Civil Procedure for Idaho Territory, § 861, 1881 Idaho Sess. Laws, 1, 194–95.




                                                           9
property would not necessarily have any correlation to any damage caused to it during the
construction process. 6
         Finally, the damages recoverable under Section 861 were those allowable under Section
862. Section 862 stated, “For the purpose of assessing . . . damages, . . . its actual value, at that
date shall be . . . the basis of damages to property not actually taken, but injuriously affected, in
all cases where such damages are allowed, as provided in the last section.” (Emphases added.)
The last section was Section 861. The value of the remaining property at the time the summons
was issued is the basis of damages in all cases where damages are allowed as provided in
Section 861. Therefore, the measure of damages set forth in Section 862 were the damages
allowable under Section 861. Section 861 did not provide for the recovery of other damages.
         This interpretation of the language in Section 861 as only allowing for damages to the
value of remaining property resulting from the severance, and not accruing during the process of
construction, is in accord with our prior decisions. In 1911, this Court issued its opinion in
Idaho-Western Ry. Co. v. Columbia Conference of Evangelical Lutheran Augustana Synod., 20
Idaho 568, 119 P. 60 (1911). In Idaho-Western, the State sought to acquire a 100 foot wide strip
of land in Coeur d’Alene Idaho to be used for “railroad purposes.” Id. at 573, 119 P. at 61. Prior
to the eminent domain action, the strip of land was part of the campus of Coeur d’Alene College.
Id. Offers of just compensation were rejected and the case proceeded to trial. Id. At trial, the
president of the college, Dr. Jeperson, testified that the noise of locomotives and trains passing
back and forth over the ground so near to the college would have a detrimental effect to the
students’ studies. Id. at 574, 119 P. at 61–62. Numerous other professors testified to the same

6
  Furthermore, as of the date of the summons, the property owner will be informed of the planned improvement and
its planned uses. Accordingly, the owner will be able to calculate damage to the value of his or her property on that
date in consideration of the future improvement and its planned uses.
          By contrast, damage occurring during construction does not affect the value of the remaining property until
it actually occurs and thus cannot be calculated as of the date of the summons. The case here is a good example.
Although Miller expressed concerns to ACHD, prior to construction, that the Wall could be damaged during the
construction process, Miller’s own experts testified that the planned improvements could have been constructed
without damaging the Wall. Indeed, Miller presented testimony that there were numerous steps that could have been
taken to prevent or mitigate the damage. It was not until well after the damage had actually occurred, and after
substantial expert analysis, that it became evident that the damage to the Wall was “most likely” caused by
vibrations during the compaction process. It follows that any damage to the value of the remaining section of the
Property occurring during construction cannot be said to have occurred or accrued at the time of the summons, and
could not have been calculated at that time.




                                                        10
effect. Id. at 575, 119 P. at 62. The jury returned a verdict of $5,000 for the value of the property
to be taken and $3,900 as the amount of damage that would be sustained to the remainder of the
property by reason of the severance. Id. at 574, 119 P. at 61–62. The State appealed, arguing that
harm to the college due to noise was not a proper part of severance damages and that testimony
as to the effects of such noise was not relevant. Id. In addressing this argument, the Court
analyzed Section 5220 of the Revised Codes, which used language identical to the pertinent
language in Idaho Code section 7-711. Id. at 581, 119 P. at 64. The Court held that:

       The noise usually incident to the operation of railway trains should not be
       considered as an element of damage in the ordinary case, for the reason that such
       a purpose is lawful and condemnation is allowed therefor, and the noise of
       operating a railroad goes along with the use. Where, however, the property is
       already devoted to such a special and peculiar use that the taking of a part brings
       the use and incidental noise so near as to render the noise a private nuisance to the
       owner of the remaining property, except for the condemnation, and greatly
       depreciates its value for such special use or renders it valueless, this element
       ought to be considered in ascertaining the damage that will be suffered to the
       remaining property after the severance.
Id. at 585–86, 119 P. at 66. Thus, Idaho-Western definitively established that damage to the
value of remaining property resulting from the planned improvement and the planned uses
thereof are properly part of just compensation. It follows that the word “construction” in Idaho
Code section 7-711 must refer to the completed improvement.
       There is no Idaho case law supporting Brooke View’s assertion that “construction,” as
used in Idaho Code section 7-711, should be interpreted as the process of construction. The only
Idaho case addressing damages caused during construction held that the land owner’s claims for
damages caused during construction had to be pursued in tort. See Campbell, 34 Idaho, 601,
604–05, 202 P. 1065, 1066 (1921). In Campbell, the Oregon-Washington Railroad & Navigation
Company condemned a right of way across a property owner’s land in order to construct a
railroad. Id. The property owner argued that he should be compensated for the fact that
construction of the railroad “resulted in turning the water of [the taken property] through their
land and carrying certain poisonous matter into a fresh water stream on their remaining land.” Id.
Citing C.S. 5415, which is identical to Idaho Code section 7-711, this Court held that the alleged
damages were not part of just compensation. It reasoned as follows:
               The damages thus complained of were occasioned by construction of the
       railroad on land outside of the tract owned by appellants and did not in any way

                                                 11
       result from the taking of appellant’s land. Besides, they accrued long after the
       date of the issuance of summons and were not damages which at that date could
       have been anticipated as a result of the construction of respondent’s railroad, and
       therefore were not deemed by law to have accrued at that date . . . If respondent
       was liable for such damages, they could be recovered only in a separate action.
Id.
       Brooke View argues that this case can be distinguished from Campbell because in that
case “1) the damages occurred outside the area of the take; 2) the damages were along the lines
of a tort; obviously a condemnor would not propose construction that caused poison to enter a
freshwater stream, and 3) it was not foreseeable from the project proposed.” The problem with
Brooke View’s argument is that each of the identified factors is also present here; thus, Brooke
View fails to distinguish Campbell from the case at hand. First, in this case, as in Campbell, the
damages occurred outside of the take. While part of the Wall was inside of the temporary
easement, the damage was not limited to that part of the Wall. Most, if not all, of the damage to
the Wall occurred to portions that were on the Remaining Property, which was not part of the
temporary easement. Second, as in Campbell, the damages at issue in this case are along the lines
of those recovered in tort. Although we take no position as to whether Brooke View could
successfully pursue a tort claim against ACHD, there is nothing fundamentally different about
the poisonous matter stemming from the construction in Campbell and the vibrations stemming
from the construction here. Further, just as a non-negligent condemnor in Campbell would not
propose construction causing poison to enter a freshwater stream, a non-negligent condemnor in
this case would not propose construction that would cause damage to a wall on the neighboring
property. Finally, it is far from clear that the damages here were any more foreseeable than those
in Campbell. Not even Brooke View’s experts, with the benefit of hindsight, had a settled theory
as to what caused the damage to the Wall.
       Between Idaho-Western and Campbell, this Court’s precedent leads us to conclude that
Idaho Code section 7-711 includes damage to the value of the Remaining Property as a result of
planned improvements to the Taken Property and their planned uses, but does not include
physical damages to the Remaining Property occurring during the construction process.
       This conclusion is further supported by precedent set by this Court providing for
attorney’s fees in eminent domain cases. In Ada County Highway Dist. v. Acarrequi, this Court



                                               12
determined that attorney’s fees in eminent domain cases should be granted in consideration of
the following:
       [G]iven the entire theory of eminent domain, i.e., that a jury will determine the
       just compensation to be awarded the condemnee, we must, it seems, assume that a
       jury verdict at least approximates the fair market value of the property taken and
       the damages which will result to the remainder. We are convinced that such is at
       least a more reliable indicator than the wide and wild variations in value which
       will be testified to in any given case by the expert witnesses brought forward by
       each party. As a point of beginning, we postulate that a jury in a condemnation
       action, attempting to choose among highly divergent evidence as to value, can
       only be expected to arrive at the “real” just compensation to which a condemnee
       is entitled within a margin of error of plus or minus ten per cent. Hence, we would
       deem that in considering the award of attorneys’ fees to a condemnee, a
       condemnor should have reasonably made a timely offer of settlement of at least
       90 per cent of the ultimate jury verdict. We also deem that an offer would not be
       timely if made on the courthouse steps an hour prior to trial. An offer should be
       made within a reasonable period after the institution of the action, to relieve the
       condemnee not only of the expense but of the time, inconvenience and
       apprehension involved in such litigation, and also to eliminate the cloud which
       may hang over the condemnee’s title to the property.
105 Idaho 873, 878, 673 P.2d 1067, 1072 (1983). In short, this Court has pinned attorney’s fees
to whether or not the condemnor makes a settlement offer well before the time of trial which is
within 90% of the eventual just compensation determination arrived at by the jury. This makes
sense, so long as just compensation is limited to the value of the taken property, and the damage
to the value of the remaining property, which can be calculated as of the time of the taking.
However, this system of attorney’s fees breaks down if damages during construction are included
in just compensation. If that were the case, the condemnor would need to be able to foresee
construction damages before the trial and tailor offers of settlement to those damages. Requiring
a condemnor to predict construction damages is simply untenable prior to construction. This is
especially true considering that there is no rule that the construction of an improvement must
occur immediately after a taking. A situation could easily arise in which damages during
construction occur years after the taking. This Court would not require condemnors to wait years
in order to determine whether attorney’s fees are owed. It would be entirely inequitable to the
condemnor to expect it to be able to predict such unintended damages at the time of the taking,
and then factor them into a settlement offer. Accordingly, the system of attorney’s fees that this
Court has set into precedent also supports our conclusion today that damages occurring during
construction are not part of just compensation.
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       Brooke View next asserts that if just compensation does not include the damage to the
Wall, it would be inequitably left without legal recompense because it would be unable to prevail
under a tort theory. This Court takes no position as to whether Brooke View might be able to
recover in a tort action. To make such a determination would be improper, especially considering
that the district court specifically forbade the parties from presenting evidence that would be
relevant in a negligence case. However, whether Brooke View could prevail under a tort theory
does not dictate whether limiting Brooke View to tort theories is equitable or inequitable. To the
contrary, our interpretation of Idaho Code section 7-711 leaves Brooke View in exactly the same
position as any other party whose property is damaged during a road improvement project.
       Imagine two neighbors, each with identical walls on their property. ACHD embarks on
an improvement project. ACHD must take a small portion of neighbor A’s property, but none of
neighbor B’s. During construction, both neighbors’ walls are damaged in the exact same way.
This Court’s interpretation of section 7-711 (in which damages accruing during construction is
not part of just compensation) leaves the two neighbors in exactly the same position. Both can
bring tort actions against the State for the damage to their walls. In certain cases ACHD may be
protected from those actions under the Tort Claim Act or under other tort principles. In such
cases, the two neighbors are affected in the same way. This result is equitable under the law.
       Conversely, under Brooke View’s suggested interpretation of section 7-711, neighbor B
(who had no property taken) must bring an action in tort and contend with all available tort
defenses, while neighbor A is able to recoup any damage as part of just compensation and avoid
any defenses that would be available in tort. The fact that neighbor A had a small part of
property taken should not separate her from neighbor B when it comes to bringing claims for the
same damage caused in the same way. To allow such a discrepancy would not promote equity, it
would simply be giving neighbor A a workaround to Idaho’s tort law.
       Finally, if this Court were to adopt the district court’s interpretation of Idaho Code
section 7-711(2)(a) it would not only result in the nullification of tort principles in the eminent
domain context but it would severely impede the State’s ability to contract. If the State is
automatically held liable for all damage caused during construction, regardless of negligence or
any tort defenses that might be available, it stands to reason that the indemnification agreements
that it enters into with contractors and tradespeople would become unenforceable. Any damage
caused by contractor negligence, no matter how egregious, would be attributed to the state
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without any finding of negligence. Such a rule would force ACHD into the unjust position of
being legally responsible for consequences of third party actions over which it had no control
and for which it would otherwise have been indemnified. We find that there is no justification to
abandon the tort and contract frameworks simply because the construction of an improvement
occurs as part of a project in eminent domain.
       In sum, we interpret Idaho Code section 7-711(2)(a) as providing that just compensation
includes any decrease in the value of remaining property based on the future existence of any
planned improvements and the planned uses of those improvements. Conversely, just
compensation does not include any physical damages that accrue to the remaining property
during the construction of any improvements. Claims for such damages must be brought in tort.
B.     The instructions submitted to the jury were error that prejudiced ACHD.
               This Court reviews jury instructions to determine whether the instructions,
       as a whole, fairly and adequately present the issues and state the law. Newberry v.
       Martens, 142 Idaho 284, 287, 127 P.3d 187, 190 (2005). A requested jury
       instruction must be given when it is supported by any reasonable view of the
       evidence. Craig Johnson Constr., L.L.C. v. Floyd Town Architects, P.A., 142
       Idaho 797, 800, 134 P.3d 648, 651 (2006) (citing Bailey v. Sanford, 139 Idaho
       744, 750, 86 P.3d 458, 464 (2004)). An instruction is not to be given if it is an
       erroneous statement of the law, not supported by the facts, or adequately covered
       by the other instructions. Id. Reversible error occurs when an instruction misleads
       the jury or prejudices a party. Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho
       46, 51, 995 P.2d 816, 821 (2000) (citing Lawton v. City of Pocatello, 126 Idaho
       454, 462, 886 P.2d 330, 338 (1994)).
Vanderford Co., Inc. v. Knudson, 144 Idaho 547, 555, 165 P.3d 261, 269 (2007)
       Jury instruction 20 was error because it contained the district court’s erroneous
interpretation of the law:
              In this case, Brooke View claims the taking and the construction of the
       ACHD improvement project in the manner proposed by ACHD caused its
       remaining land to decrease in market value. Brooke View has the burden of
       proving construction of the ACHD improvement project in the manner proposed
       by ACHD caused damage to its property or improvement on that property.
       Brooke View does not have to prove the mechanism for how such damage, if any,
       occurred.
               If you find Brooke View has met its burden of proof, Brooke View is
       entitled to the lesser of the decrease in the market value of the remaining property
       or the cost to cure any proven damages, but not both. Cost to cure is the amount
       required to restore the property to the condition it was in before it was damaged.


                                                 15
The language used in this jury instruction invites the jury to include physical damage that
occurred to the Property during the construction process in the calculation of just compensation.
This is evident from the phrase “caused damage to its property or improvement on that
property.” As explained above, physical damage caused during construction is not properly part
of just compensation, but rather must be pursued in tort. Accordingly, instruction 20 was error.
         Jury instruction 27 was also error:
                 For purposes of your decision you are to assume ACHD is responsible for
         all construction work performed as part of the Curtis Road Project.
The party responsible for the “construction work” is not relevant to the jury’s calculation of just
compensation damages. Identifying this as an issue would lead the jury to believe that damages
caused during construction are part of just compensation.
         These instructions, to the extent that they led the jury to consider physical damages
occurring during the construction process, prejudiced ACHD. The lion’s share of the final
judgment amount awarded in this case was for the cost to cure damages occurring during
construction. The inclusion of such damages constitutes prejudice.
C.       The district court erred in admitting testimony and other evidence of events,
         activities, and damages, that occurred during the construction of improvements on
         the Property
         To the extent that the district court admitted testimony and other evidence of events,
activities and damages that allegedly occurred during the construction of improvements, the
district court committed error. As explained herein, physical damage caused to property not
taken, during construction does not factor into just compensation. The admission of evidence
relating to such damages that is not otherwise relevant to the calculation of just compensation is
error.

D.       The district court’s award of attorney’s fees to Brooke View is vacated.
         Because Brooke View is no longer the prevailing party below, the district court’s award
of attorney’s fees and costs must be vacated.

                                          VI. CONCLUSION
         We hereby vacate the district court judgment and the award of attorney’s fees and costs.
We remand for further proceedings in accordance with this opinion. Costs on appeal to ACHD.

         Chief Justice BURDICK and Justices EISMANN, HORTON and BRODY CONCUR.

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