Chesapeake & O. R. Co. v. Johnson, 10220

• Decision Date: 05 July 1950
• Docket Number: No. 10220,10220
• Court: West Virginia Supreme Court
• Parties: CHESAPEAKE & O. R. CO. v. JOHNSON et al.

Page 203

60 S.E.2d 203

134 W.Va. 619

CHESAPEAKE & O. R. CO. v. JOHNSON et al.

No. 10220.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1950.

Decided July 5, 1950.

Syllabus by the Court.

1. When land improved with a suitable building is taken in a condemnation proceeding the true measure of compensation for the land and the building so taken is the market value of the land as enhanced by the building located upon it at the time of the taking; and evidence of the reproduction cost of the building, separate and apart from the land upon which it is located, is inadmissible.

2. In a condemnation proceeding in which land improved with a suitable building is taken, evidence of the reproduction cost of such building, less proper deductions for depreciation, as an element of the market value of the land in its entirety as enhanced by the building, at the time the land is taken, is admissible.

3. In a condemnation proceeding in which a part of a lot, improved with a suitable building, is taken and in which, in addition to the market value of the land taken, damage to the residue and benefits to accrue to such residue from the work to be constructed may be, but are not, claimed or proved by any of the parties, and, in consequence, damage to the residue is not involved in such proceeding, evidence of the price voluntarily paid by the applicant for other land similarly situated in the vicinity of the land taken is admissible.

4. An instruction which correctly states principles of law is properly refused if any of the principles stated is not based upon the evidence.

Fitzpatrick, Strickling, Marshall & Huddleston, Huntington, George A. Fesenmeier, Huntington, for plaintiff in error.

Daniel W. Ambrose, Huntington, T. G. Nutter, Charleston, for defendants in error.

HAYMOND, Judge.

In this eminent domain proceeding instituted in the Circuit Court of Cabell County, the applicant, The Chesapeake and Ohio Railway Company, took by condemnation the rear or northerly thirty by thirty foot portion of Lot 4, in Block 181, owned by the defendant, Elizabeth Johnson, in Addition No. One, in Huntington, Cabell County, West Virginia. William E. Cecil, described as the husband of Elizabeth Johnson, and Nora Prince, widow, Nora Prince, administratrix of the personal estate of James G. Prince, deceased, and Twentieth Street Bank, a corporation, trustee, former holders of liens upon the real estate involved, were also made defendants in the proceeding. By order entered May 13, 1948, the circuit court held that the applicant had the lawful right to take the property sought to be acquired by it, and appointed commissioners to ascertain the compensation to which the landowner is entitled, including damage to the residue beyond all benefits to accrue from the work to be constructed. The commissioners awarded $860.00, and the applicant, upon giving bond, took possession of the property. The landowner, Elizabeth Johnson, excepted to the report of the commissioners and the question of compensation was submitted to a jury. The jury returned a verdict of $1,850.00 in favor of the defendant Elizabeth Johnson, the landowner. The court overruled the motion of the applicant to set aside the verdict and grant a new trial and, by order of February 14, 1949, entered judgment upon the verdict. To that judgment this Court awarded this writ of error upon the petition of the applicant.

To reverse the judgment, the applicant assigns as error the action of the trial court: (1) In admitting evidence offered by the defendants of the undepreciated reproduction cost of a garage building on the land taken by the applicant; (2) in refusing to permit the applicant to introduce evidence of voluntary sales to it of other property similarly situated in the immediate vicinity of the property taken in this proceeding; and (3) in refusing to give an instruction, designated Petitioner's Instruction No. 1, offered by the applicant.

The dimensions of Lot 4, in Block 181, in its entirety, are thirty feet in width and one hundred and eighty five feet in depth and the lot is located between 18th Street and 19th Street in the City of Huntington. The land fronts on 8th Avenue and extends back to an alley in the rear. The front portion is improved with a dwelling house. On the rear portion taken by the applicant was a three stall concrete block garage which the applicant removed or destroyed before the case was tried to a jury. In consequence, no view by the jury was had of he premises before the garage was destroyed. There was also a small chicken house, not attached to the garage, on the portion of the land taken by the applicant.

Upon the trial the defendants offered the testimony of four witnesses and the defendant, Elizabeth Johnson, as to the value of the portion of the lot and that garage taken by the applicant. Two of these witnesses and the defendant respectively testified that the market value of the property taken was $2,500.00, $2,600.00 or $2,700.00, and $2,700.00 or $2,800.00. Two witnesses produced by the applicant respectively testified that the market value of the property condemned by it was $660.00 and $800.00. Some of the witnesses for the respective parties gave separate values for the land and the garage which they included in their opinion of the value of the property, and one of the witnesses who testified in behalf of the defendants included in his opinion of the value of the property taken the replacement value of the garage, without any reference to depreciation, and the value of the lot. Two of the four witnesses for the defendant, one an architect and the other an experienced building contractor, did not express an opinion as to the market value of the portion of the lot and the garage, but testified, over the objection of the applicant, to the undepreciated reproduction cost of a new building to be constructed of similar materials and to be of the same size as the garage taken and removed by the applicant, which had been erected about twenty years before the institution of this proceeding. They did not know the market value of the property. The arthitect who was acquainted with the garage testified, without making any allowance for depreciation, that his estimate of the cost of constructing a new building was $1,909.08. The contractor had never seen the garage taken by the applicant but, at the request of the defendant, Elizabeth Johnson, he made an estimate of the cost of a new structure of the same kind upon information given to him by her of the character of the former building. In his opinion, which made no allowance for depreciation, the construction cost of a new building to replace the garage taken and removed was $2,213.45 at the time of the taking. Upon the conclusion of the examination in chief of this witness, the applicant moved to strike his testimony. The court overruled the motion to strike but stated: 'I will sustain the motion if it is not connected up.' One of the attorneys for the defendant replied: 'We will connect it up, your Honor'. No evidence for that purpose, however, was subsequently offered by the defendants and the foregoing testimony of the witness was permitted to go to the jury. At the conclusion of the evidence introduced by the defendants, the court overruled a motion by the applicant to exclude all the evidence of the value of the property introduced by the defendants except the testimony of the defendant Elizabeth Johnson. After the evidence introduced in behalf of the respective parties had been completed, the jury viewed the premises in the cndition in which they remained after the garage had been removed.

During the trial the defendants made no effort, and introduced no evidence, to prove any damage to the residue; and the applicant did not contend, or offer to prove, that any benefits would accrue to the residue from the work to be constructed upon the land taken. The inquiry as to value was limited to the value of the land actually taken and the agrage on that portion of the lot.

In a condemnation proceeding to take a part of a tract or parcel of land, the true measure of compensation to which and landowner is entitled for the land taken and for damage to the residue, is the market value of the land taken, at the time of the taking, and the difference between the market value of the residue of the land not taken immediately before, and the market value of such residue immediately after, the taking of the land appropriated, beyond all benefits which accrue to such residue from the work to be constructed or the purpose to which the land is to be appropriated; and such benefits are to be determined as of the time of such taking and are to be considered and included in the latter value. Strouds Creek & M. Railroad Co. v. Herold, 131 W.Va. 45, 45 S.E.2d 513; State, by State Road Commission v. Evans, 131 W.Va. 744, 50 S.E.2d 485. See also Tennessee Gas Transmission Co. v. Fox, W.Va., 58 S.E.2d 584; State, by State Road Commission v. Boyd, 129 W.Va. 715, 41 S.E.2d 665; State v. Sanders, 128 W.Va. 321, 36 S.E.2d 397.

In Baltimore & Ohio Railroad Co. v. Bonafield's Heirs, 79 W.Va. 287, 90 S.E. 868, 871, on the question of damage to a building of the landowners apparently located on other property adjoining the land taken, this Court said:

'In ascertaining the damages to defendants' building it was proper to take into consideration its value, the more valuable it was the greater would be the damage to it; and, in ascertaining its value, evidence of the original cost of its construction could properly be considered, notwithstanding it had been built some years before this proceeding was instituted, but the probative value of such evidence depends upon the extent of deterioration of the building, if any, and the comparative cost of labor and material now, and at the time the building was erected.'

In Gauley & Eastern Railway Co. v. Conley, 84 W.Va. 489, 100 S.E. 290, 292, 7 A.L.R....