Chesapeake & O. Ry. Co. v. Johnson, 10414

• Decision Date: 04 March 1952
• Docket Number: No. 10414,10414
• Citation: 137 W.Va. 19,69 S.E.2d 393
• Court: West Virginia Supreme Court
• Parties: CHESAPEAKE & OHIO RY. CO. v. JOHNSON et al.

Page 393

69 S.E.2d 393

137 W.Va. 19

CHESAPEAKE & OHIO RY. CO. v. JOHNSON et al.

No. 10414.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1952.

Decided March 4, 1952.

Syllabus by the Court.

1. 'Error, predicated upon the introduction of improper evidence which has been permitted to go to the jury without objection or exception, cannot be considered in the appellate court.' Point 4, syllabus, Williams v. Lincoln County Court, 90 W.Va. 67 .

2. 'In cases of this character, courts rarely disturb verdicts of juries, if founded upon any reasonable view of conflicting evidence as to what amount is a just compensation for the owner, proprietor or tenant of lands, where no substantial error has been committed by the trial court in the admission or exclusion of evidence.' Point 8, syllabus, State Road Commission v. McMurray, 103 W.Va. 346 .

3. '* * * a view is for the purpose of informing the jurors upon any pertinent inquiry being made in the trial of the case, and the things which they observe upon such view, so far as they are pertinent to show anything proper to beproved, are to be considered by them the same as any other evidence introduced in the case.' Part Point 3, syllabus, State v. McCausland, 82 W.Va. 525 .

4. It is not prejudicial error to refuse to give unto the jury an instruction, though it state a correct applicable principle of law, if the principle stated in the instruction refused is adequately covered by an instruction given.

5. 'Without qualifying in some degree to do so a witness should not be permitted to give his opinion as to value or damages in a proceeding to take or damage land for public purposes.' Point 10, syllabus, Buckhannon & N. Railroad Co. v. Great Scott Coal & Coke Co., 75 W.Va. 423 .

T. G. Nutter, Charleston, for plaintiffs in error.

Fitzpatrick, Strickling, Marshall & Huddleston, C. W. Strickling and George A. Fesenmeier, all of Huntington, for defendant in error.

GIVEN, Judge.

This proceeding in eminent domain was instituted by The Chesapeake and Ohio Railway Company, defendant in error, for the purpose of acquiring title to a lot of land situated in Huntington. Elizabeth Johnson, plaintiff in error, was the owner of the land title to which was sought to be acquired, being the rear or northerly thirty by thirty feet of Lot 4 of Block 181, Addition No. 1, in Huntington. A previous writ of error granted to the condemnor was before this Court. The opinion disposing of the questions before the Court on that writ of error is reported in W.Va., 60 S.E.2d 203, 210. Upon the second trial to a jury, a verdict fixing the amount of just compensation to which the owner was entitledt was returned, in the amount of $800.

The several assignments of error of the landowner upon this writ of error are included in three propositions: (1) Was it error for the trial court to have admitted certain evidence relating to values and sales of certain properties in the vicinity of the land being condemned? (2) Was the verdict inadequate or clearly against the preponderance of the evidence; and (3) Did the court commit error in refusing to give to the jury Instructions Nos. 1, 3, 4, 5, 6, 7, and 9, or any of them, offered by the landowner?

Arden Trickett, a witness for condemnor, in answer to questions propounded by the condemnor, gave testimony relating to the purchase by him, as a representative of the condemnor, of a number of properties in the vicinity of the land being condemned. The testimony disclosed that the properties were acquired by Mr. Trickett in 194m and 1948, the location of the different properties, the price paid for each, and other pertinent facts. Included in the properties so purchased by him was the rear thirty feet of all lots other than Lot 4 in Block 181. No objection whatever was made to the introduction of any of this evidence.

The landowner contends that this evidence was inadmissible and, also, that objection thereto was not necessary. Upon the former writ of error this Court held that such evidence was admissible. Upon the first trial, however, as pointed out in the prior opinion, '* * * Though damage to the residue of the land could have been shown by the defendants and benefits to accrue to such residue could have been established by the applicant, neither was in fact done or attempted by the landowner or by the applicant. In consequence no damage to the residue was involved.' Upon the second trial the landowner did attempt to prove damages to the residue, several witnesses testifying as to the amount of damages resulting into the residue from the taking. Therefore, it is clearly apparent that the evidence was objectionable. See Baltimore & Ohio Railroad Company v. Bonafield's Heirs, 79 W.Va. 287, 90 S.E. 868; Buckhannon & Northern Railroad Company v. Great Scott Coal & Coke Company, 75 W.Va. 423, 83 S.E. 1031.

It is well established, however, that where evidence is permitted to go to the jury without any objection thereto, any error in the admission thereof will be deemed to have been waived. In Williams v. Lincoln County Court, 90 W.Va. 67, 110 S.E. 486, 487, Point 4, syllabus, this Court held: 'Error, predicated upon the introduction of improper evidence which has been permitted to go to the jury without objection or exception, cannot be considered in the appellate court.' See State v. Files, 125 W.Va. 243, 24 S.E.2d 233; State v. Driver, 88 W.Va. 479, 107 S.E. 189, 15 A.L.R. 917; Colebank v. Garage Co., 75 W.Va. 389, 84 S.E. 1051. The necessity for an objection to inadmissible evidence is apparent, whether the evidence be offered on the first trial or a subsequent trial, as in the instant matter. Without an objection the trial court would have no opportunity to pass upon the admissibility of the evidence. To permit evidence to go to the jury without objection to its admissibility, is tantamount to a representation to the court that such evidence is admissible.

Was the verdict inadequate or against the plain preponderance of the evidence, as it relates to the amount of just compensation to be paid to the landowner? In eminent domain proceedings the rule requiring courts to uphold verdicts unless clearly against the plain preponderance of the evidence, is applied with more forcefulness than in other proceedings. 'In cases of this character, courts rarely disturb verdicts of juries, if founded upon any reasonable view of conflicting evidence as to what amount is a just compensation for the owner, proprietor, or tenant of lands, where no substantial error has been committed by the trial court in the admission or exclusion of evidence.' Point 8, syllabus, State Road Commission v. McMurray, 103 W.Va. 346, 137 S.E. 530, 531; County Court of Mingo County v. Chattaroy Coal Co., 105 W.Va. 321, 142 S.E. 430.

Testimony of seven witnesses of the landowner related to the market value of the property taken, at the time of the taking, or damages to the residue. The landowner testified to the effect that the then market value of the land taken was $2,700; that the amount of damages to the residue was $1,500; and that the garage building situated upon the property taken, at the time of the taking was renting for $5 per week. One witness testified to the effect that the reproduction cost of the garage building was $1,950 to $2,000, and that proper depreciation on the garage building was $250. One witness gave, as his opinion, that the market value of the property taken was $3,000, and another placed the market value of the property taken at $2,500. The three other witnesses gave as their opinions that the amount of just compensation to which the owner was entitled was $4,000, $4,100 and $4,000, respectively.

Testifying on behalf of the condemnor, Arden Trickett stated, in effect, that the amount of just compensation to which the landowner was entitled, including the market value of the property taken and any damages to the residue, was $800. Grady Risen, a real estate...