Board of Ed. of Montgomery County v. Hughes, 154

• Decision Date: 29 March 1974
• Docket Number: No. 154,154
• Citation: 317 A.2d 485,271 Md. 335
• Parties: BOARD OF EDUCATION OF MONTGOMERY COUNTY v. Herbert H. HUGHES et al.
• Court: Maryland Court of Appeals

Page 335

271 Md. 335

317 A.2d 485

BOARD OF EDUCATION OF MONTGOMERY COUNTY v. Herbert H. HUGHES et al.

No. 154.

Court of Appeals of Maryland.

March 29, 1974.

Roger W. Titus and Robert S. Bourbon, Rockville, (John T. Horton, Rockville, on the brief), for appellant.

Carl Harrison Lehmann, Upper Marlboro, for appellees.

Argued before MURPHY, C. J., and BARNES, ^* SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

SMITH, Judge.

In what will be an unsuccessful attempt to obtain a new trial on the issue of damages in a condemnation proceeding, appellant, the Board of Education of Montgomery County (the Board), here objects to testimony of the owner as to what he paid for the whole tract and, also, to testimony of one of the owner's appraisers relative to what he considered to be an integral part of fair market value, namely the value of the income to be derived from the land pending its full development. The amount of damages is the only point at issue, since public necessity for the acquisition was admitted by the owner and stipulated to at the trial.

Herbert H. Hughes, one of the appellees, owns the land in question. The other appellees are the trustees of a deed of trust which is a lien on the subject property. Hughes, therefore, is the one vitally interested. His 10.4 acre tract of land is located between Germantown and Gaithersburg in the Middlebrook area of Montgomery County, between Maryland Route 355 and Route I-70S In fact, Route 355 is the eastern boundary of the whole parcel. The Board sought to condemn the back 3.4789 acres for the site of a future school to be known as Urbana Elementary School. The property owner retained the portion of the land fronting on the highway. In essence, it may be said the Board's chief complaint is its state of shock at a jury verdict of $83,500, or about $24,000 per acre, which seems a bit high to it for unimproved back land in Montgomery County even in this present day and age.

Since this is an eminent domain case in which the points raised on appeal have to do with the admission of evidence, we shall evaluate the objections in the light of Hance v. State Roads Comm., 221 Md. 164, 156 A.2d 644 (1959), where Judge Prescott said for the Court:

'Courts are reluctant to set aside verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice. This is especially true in condemnation proceedings. Such cases usually consume much time in trial, and are expensive in nature. As a rule, they are determined by a myriad of different items of evidence. The exclusion or admission of small items of evidence of doubtful materiality are not likely to be of great importance in the outcome of the case, and most courts refuse to set aside a verdict in cases of this kind, for error in the rulings on questions of evidence, unless, as indicated above, substantial prejudice be shown. 5 Nichols, (Eminent Domain), Sec. 18.1(2).' Id. at 176, 156 A.2d at 650.

To like effect see Md. Community Dev., Inc. v. S. R. C., 261 Md. 205, 208, 274 A.2d 641 (1971); Belworth, Inc. v. City of Baltimore, 256 Md. 369, 372, 260 A.2d 284 (1970); First Nat'l Realty v. S. R. C., 255 Md. 605, 610, 258 A.2d 419 (1969); and State Roads Comm. v. Kuenne, 240 Md. 232, 235, 213 A.2d 567 (1965).

i

Under the provisions of Maryland Code (1957, 1973 Repl.Vol.) Art. 21, § 12-104, the value of the land was determined as of the date of trial, June 5, 1973, since there had been no prior taking. The Board complains because the owner was permitted to testify, over objection, that he paid $247,500 for the whole tract when he bought it in December, 1965. It urges that this testimony was not admissible since 'the sale occurred seven and one-half years prior to the time of taking and did not cover substantially the same property which is the subject of the condemnation proceedings.'

In Baltimore City v. Schreiber, 243 Md. 546, 551, 221 A.2d 663 (1966), we permitted a property owner to testify as to the purchase price. Judge Marbury there reviewed the authorities for the Court. The Board regards as significant his statement for the Court:

'The general rule in this country and in this state is that 'evidence of the price paid for condemned real property on a sale prior to eminent domain proceedings is admissible in the proceedings at least where the sale is voluntary, is not too remote in point of time, or is not otherwise shown to have no probative value.' (Emphasis added.) Anno. 55 A.L.R.2d 793-812, and cases therein cited at pages 794-797.' Id. at 551, 221 A.2d at 665.

It also sees significance in the further statement in that case:

'(T)he better rule seems to be that if, in the sound discretion of the trial judge, the time is not so remote as to destroy its probative value in regard to the issue of present fair market value, then he should admit the testimony and leave the weight of the evidence for the consideration of the jury, along with such distinguishing factors as may be brought to the attention of the jurors on cross-examination or otherwise.' Id. at 552, 221 A.2d at 666.

In Schreiber, the Court held that evidence of the purchase price 10 years prior to condemnation as to one parcel and nine years before that date as to another was not 'so remote in point of time as to have no probative force in regard to present fair market value, and thus (it found) no abuse of discretion on the part of the trial judge in failing to sustain objections to this testimony.' The Board suggests, however that in this case 'a new condition is presented which has not heretofore been considered by this Court.' It says that here 'evidence was introduced as to the seven-and-one-half-year old purchase price of the 10.04-acre tract of which the subject property was only a small part. Furthermore, the entire tract contained far more desirable land at the time of the earlier sale fronting on a state road and was improved by and benefited from the operation of a trailer park and restaurant business.'

The ancient Preacher of more than 2000 years ago, said by some to have been King Solomon, ¹ one of the wisest and noblest of men, and said by others to have written as much as 700 years after Solomon, ² said, '(T)here is nothing new under the sun.' ³ Just a bit less than 200 years ago the similar observation was made, 'There is nothing new except what has been forgotten.' ⁴ Thus, it is not surprising that the Board's proposition here is not new and that our earlier consideration of it has been overlooked or forgotten.

In Williams v. New York, P. & N.R.R., 153 Md. 102, 137 A. 506 (1927), cited in Schreiber, a railroad company sought to condemn land near Salisbury in Wicomico County. The trial court excluded testimony of one of the defendants 'in regard to a recent sale to him of a portion of the land sought to be condemned, and the price agreed to be paid by him, and his payments on account of the purchase money.' Judge Adkins said for the Court:

'There was reversible error in these rulings. It was said in Baltimore v. Smith, 80 Md. 458, 31 A. 423: 'We think therefore, that the prices realized at sales of the land in question and of similar land in its vicinity, made within a reasonable period of time theretofore, being voluntary and not forced sales, are admissible in evidence, either on direct or cross-examination of witnesses conversant with the facts.' There is nothing in the record to indicate that this sale was not made in good faith; and if it was, there could not well be more relevant testimony as to the value of the property.' Id. at 110, 137 A. at 509.

The objection of the Board here overlooks the measure of damages in a partial taking, a point that did not escape the trial judge (McAuliffe, J.). He said:

'The valuation schedule formula requires a consideration of the value of the entire tract before the taking and after the taking. Therefore, the value of the entire tract is relevant to the proceedings, is it not?'

Chief Judge Brune said almost precisely the same thing for the Court in Baltimore v. State Roads Comm., 232 Md. 145, 192 A.2d 271 (1963):

'(I)n condemnation cases, the value of what is taken is ordinarily to be determined in a case of partial taking by the difference between the fair market value of the entire tract before the taking and the fair market value of what is left after the taking. See Veirs v. State Roads Comm., 217 Md. 545, at 554-555, 143 A.2d 613, at 617-618, and cases there cited . . ..' (Citing cases.) 235 Md. Id. at 152, 192 A.2d at 276.

The elapsed time between the date of purchase in this case and the date as of which fair market value was to be determined was less than that approved by us in Schreiber. Evidence as to the purchase price of the entire tract was relevant, since the jury was obliged to determine the difference between the fair market value of the entire tract before the taking and the fair market value of the remaining tract after the taking. Accordingly, there was no abuse of discretion on the part of the trial judge in admitting into evidence the testimony of the owner as to the sum he paid for the purchase of the whole tract at a time seven and one-half years prior to the date of trial.

ii

The second point of controversy concerns testimony of an expert for the landowner.

At the time of trial the whole tract was zoned R-R. Under the Montgomery County zoning ordinance the R-R zone generally called for single-family, detached dwellings on lots having a minimum size of 20,000 square feet. The area involved is covered by the Germantown Master Plan. It recommends future R-30 zoning for part of the tract and R-20 zoning for the remainder. Both zones permit multiple family residential construction. The R-30 zone allows a maximum of one dwelling unit per 3,000 square feet of land. The R-20 zone allows a denser construction of one dwelling unit per 2,000 square feet of land.

Appraisers for the Board and the owner were in agreement that there was a...