16.50, 10.04629, 3.34, 1.84, 5.97741, 3.94 and 7.49319 Acres of Land, More or Less, in Christiana Hundred, New Castle County v. State ex rel. Smith

• Decision Date: 26 February 1965
• Citation: 16.50, 10.04629, 3.34, 1.84, 5.97741, 3.94 and 7.49319 Acres of Land, More or Less, in Christiana Hundred, New Castle County v. State ex rel. Smith, 208 A.2d 55, 58 Del. 225, 7 Storey 353 (Del. 1965)
• Parties: , 58 Del. 225 16.50, 10.04629, 3.34, 1.84, 5.97741, 3.94 and 7.49319 ACRES OF LAND, MORE OR LESS, IN CHRISTIANA HUNDRED, NEW CASTLE COUNTY and State of Delaware, Conrad Marsh Company, a corporation of the State of Delaware, and Unknown Owner, Defendant Below, Appellant, v. The STATE of Delaware upon the relation of J. Gordon SMITH et al., Constituting the State Highway Department of the State of Delaware, Plaintiff Below, Appellee. 30.85 ACRES OF LAND, MORE OR LESS, IN CHRISTIANA HUNDRED, NEW CASTLE COUNTY and State of Delaware, Newport Land and Improvement Company, a Delaware corporation, and Unknown Owners, Defendant Below, Appellant, v. The STATE of Delaware upon the relation of the STATE HIGHWAY DEPARTMENT, Plaintiff Below, Appellee. 11.20 ACRES OF LAND, MORE OR LESS, 5.86 acres of land, more or less, 15.00 acres of land, more of less, IN CHRISTIANA HUNDRED, NEW CASTLE COUNTY and State of Delaware, Walter E. Erhart, his wife, and Unknown Owners, Defendants Below, Appellants, v. The STATE of Delaware, upon the relation of the STATE HIGHWAY DEPARTMENT, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 55

208 A.2d 55

8 Storey 225, 58 Del. 225

16.50, 10.04629, 3.34, 1.84, 5.97741, 3.94 and 7.49319 ACRES

OF LAND, MORE OR LESS, IN CHRISTIANA HUNDRED, NEW CASTLE

COUNTY and State of Delaware, Conrad Marsh Company, a corporation of the State of Delaware, and Unknown Owner,

Defendant Below, Appellant,

v.

The STATE of Delaware upon the relation of J. Gordon SMITH

et al., Constituting the State Highway Department

of the State of Delaware, Plaintiff

Below, Appellee.

30.85 ACRES OF LAND, MORE OR LESS, IN CHRISTIANA HUNDRED,

NEW CASTLE COUNTY and State of Delaware, Newport Land and

Improvement Company, a Delaware corporation, and Unknown

Owners, Defendant Below, Appellant,

v.

The STATE of Delaware upon the relation of the STATE HIGHWAY

DEPARTMENT, Plaintiff Below, Appellee.

11.20 ACRES OF LAND, MORE OR LESS, 5.86 acres of land, more

or less, 15.00 acres of land, more of less, IN CHRISTIANA

HUNDRED, NEW CASTLE COUNTY and State of Delaware, Walter E.

Erhart, his wife, and Unknown Owners, Defendants Below, Appellants,

v.

The STATE of Delaware, upon the relation of the STATE

HIGHWAY DEPARTMENT, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Feb. 26, 1965.

Consolidated appeals from the Superior Court in and for New Castle county.

Clement C. Wood, of Allmond & Wood, Wilmington, for appellants.

William D. Bailey, Jr., of Bayard, Brill, Russell & Handelman, Wilmington, for appellee.

WOLCOTT, Chief Justice; CAREY, Justice, and SEITZ, Chancellor, sitting.

WOLCOTT, Chief Justice.

These are three appeals, consolidated for argument, from orders entered by the Superior Court in three condemnation actions brought by the State Highway Department. The answers filed by the defendants, Conrad's Company, Newport Land and Investment Company, and Walter and Pearl E. Erhart, set up affirmative defenses and counterclaims seeking in effect to assert claims in trespass against the State for the tortious taking of valuable materials from the land which they claim to own; that a portion of the land claimed by Conrad's Company was being taken for a nonpublic use, and that ten acres of the land claimed by the Erharts was not included in the description contained in the complaint against them.

The State moved to strike the affirmative defenses and dismiss the counterclaims. The Superior Court entered its orders striking the affirmative defenses and dismissing the counterclaims with prejudice to the defendants. It appears that the trial judge, because he considered matters outside the pleadings, treated the State's motions as one for summary judgment. These appeals followed.

The land in question is marshland located in the area along the Christiana Creek between Farnhurst and Newport. The land is being acquired by the State as part of an extensive interchange complex for the Interstate Highway Program.

In 1956, it is alleged by defendants, the State, without knowledge on the part of the defendants, entered upon the lands in question and made test borings which revealed the presence of valuable deposits of sand and gravel. On August 22, 1960 the State commenced condemnation against Conrad's Company and on September 6, 1960 entered into option agreements with the defendants under which the State received the right of immediate entry, in the case of Conrad's Company 'without reservation', and in the case of the other two defendants 'for engineering and construction work.' The options further provided that for a stipulated sum within one year the State could purchase the land in return for the conveyance of fee simple title.

Within the option periods the State ascertained that defendants could not convey good fee simple title. Thereafter, discussions took place with defendants' counsel and attempts were made to obtain title insurance to no avail. Defendants' counsel requested a continuance of the condemnation action against Conrad's Company. Discussions and negotiations apparently continued between the parties after the expiration date of the options, September 6, 1961. In August, 1962, the State commenced condemnation actions against the defendants other than Conrad's Company.

In April, 1963, the defendants learned that sand and gravel had been taken from the lands in question and gave notice to the State that they considered it a trespasser upon the lands and demanded damages resulting from that trespass. On May 24, 1963 the State, pursuant to 10 Del.C., § 6110, filed a Notice of Intent to take possession in all three actions and prayed for an order to that effect nunc pro tunc as of September 6, 1961. Defendants filed their answers and counterclaims on May 29, 1963. As referred to above, the Superior Court ultimately struck their affirmative defenses and dismissed their counterclaims based upon the alleged trespass.

The theory of the defendants that the State is liable to them for damages caused by a trespass is based upon the decision of this Court in State ex rel. Smith v. Fenimore, 3 Storey 439, 171 A.2d 228. In that case we held that the State was liable for damages for a trespass committed in the absence of a condemnation proceeding, and that the landowner could maintain a separate action for damages against the State since Article I, Section 8 Delaware Constitution, Del.C.Ann., providing for compensation for the taking of property, was a self-executing waiver of the State's immunity from suit.

In the Fenimore case the trespass by the State was performed without there having been initially any attempt on the part of the State to acquire the land on which the trespass was committed. Under the circumstances, therefore, we held the State's entry upon the land unlawful and permitted the recovery of damages in the equivalent of a separate action, viz., a counterclaim in a condemnation proceeding.

We think, however, the circumstances of the case at bar differ widely from those in the Fenimore case. At bar these defendants entered into option agreements looking to the ultimate purchase of the land by the State at a fixed price, and at the same time giving to the State the right of immediate entry upon the land for the purpose of constructing the highway interchange contemplated. The options by their terms were to extend for the period of one year. It is obvious that entry upon the land by the State was not a trespass, at least at the time.

In the course of that year it became apparent that the defendants could not convey to the State 'good' title to the land. Thereupon, several means were explored to cure the alleged defect in defendants' titles, all to no avail. In the meantime the State proceeded with the removal of sand and gravel and the construction of the highway interchange. The defendants made no objection to this activity by the State, even after the expiration date of the option; took no action whatsoever to regain possession from the State, but on the contrary continued their efforts to perfect title or to renegotiate the option agreements. However, as hereinafter noted, the defendants apparently knew nothing of the presence of sand and gravel on the land and its removal by the State until 1963.

In August of 1962 State instituted condemnation actions against Newport Land and Investment and the Erharts, an action having been previously instituted against Conrad's Company. It seems apparent that these actions were required because of the inability of the State, at least in the opinion of its counsel, to acquire good title to the land by conveyance. So far as the record shows, the defendants made no objection but apparently continued to acquiesce in the continued occupation of the land by the State and the continuance of construction upon it.

The acquiescence of the defendants continued until April of 1963 when, for the first time apparently, they learned that the land contained valuable deposits of sand and gravel which had been removed by the State. They made claim for payment which precipitated the filing by the State of a motion for possession nunc pro tunc, and the affirmative answers and counterclaims of the defendants.

All of the foregoing makes it quite clear to us that up to the time the existence of sand and...