Chesapeake v. Allen.
| Decision Date | 30 May 1933 |
| Docket Number | (No. 7401) |
| Citation | 113 W.Va. 691 |
| Court | West Virginia Supreme Court |
| Parties | Chesapeake & Ohio Railway Company v. Grover C. Allenet al. |
The primary object of having a jury view premises in question is to display the local situation so that the jury may better understand the record evidence. The view is not to furnish essential evidence dehors the record.
Where the record contains no substantial testimony in support of the quantum of a verdict, it will be set aside.
Error to Circuit Court, Summers County.
Condemnation proceeding by the Chesapeake & Ohio Railway Company against Grover C. Allen and others. To review the judgment rendered, the condemnor brings error.
Reversed; verdict set aside; new trial awarded.
Fitzjatrick, Brown & Davis and McDaniel Purcell, for plaintiff in error.
Maxwell, Sayre & Bowers, for defendants in error.
This is a review of the second judgment obtained by Grover Allen in a condemnation proceeding brought against him by the Chesapeake & Ohio Railway Company. Our opinion on the first judgment is reported in 111 W. Va. 481.
Allen owns 43 acres of land adjacent to the Big Bend tunnel of the railroad. He paid $400.00 for 14 acres in 1926, and $2,000.00 for the balance (29 acres) in 1930. The latter tract had improvements when he acquired it which he values at $1,500.00; so the 43 acres exclusive of improvements cost him $900.00 (about $21.00 an acre). The 43 acres is valuable for farming and was said to be marketable if cut into small farms. Allen built a stone residence on tins tract several years ago. The residence was located about 80 feet from the C. & O. right of way as it then existed. In this proceeding, the railway company has condemned a strip of 0.653 acres, situate between its former right of way and the residence. The strip embraces the greater part of Allen's back yard, extending to within seven feet of his back porch. During the progress of this litigation another tunnel has been constructed through the strip, 138 feet below the surface. There was no subsidence of the surface. Upon the second trial, the jury returned a verdict for Allen of $8,500.00, which the circuit court con- firmed. The railway company was awarded a writ of error.
The market value of the strip taken was fixed at $200.00 an acre only one witness testifying thereto. R. C. Haynes, a witness for Allen, was explicit that the residue of the farm excluding the residence was worth $150.00 an acre before the strip was taken and was worth the same afterwards. No witness testified that the residue (excluding the residence) was injured for farming or for small farm sales in any way by the taking of the strip. Since the strip is along an exterior boundary line, it is not apparent how the residue of the land itself could be affected by the taking. The enormous appreciation in the value of the land during the present business depression, over its purchase price, is not explained or is it important. The verdict ($8,500.00) presumably consists of only two items, $130.60 ($200.00 an acre multiplied by 0.653 acres) for the strip and $8,369.40 (the balance of the verdict) for damages to the residence. Allen would sustain that balance by the evidence of himself and three other witnesses. Haynes, B. Z. Garden and Harrison Lawrence.
Allen said he had acquired a knowledge of the market value of property in the neighborhood from sales made by his neighbors, and was of opinion that the fair market value of his land on June 16, 1931, the date when the strip was taken, was $17,000.00, and immediately afterwards the value was $7,000.00. He testified that the blasting in the tunnel "cracked the walls in my house both plaster and the outside, the stone walls." He did not describe the number or the dimensions of the cracks but said "the damage" took away "the entire value of my house". He qualified that assertion by saying "the damage * * * destroyed the sale value" of the house. (At the former trial he stated that he had made no effort to sell it.) He admitted the plaster had cracked some before the tunnel was commenced and has continued to crack since the tunnel was completed; that he was still living in the residence; and that the only present ill effect from the cracks was leakage of some water into the basement,
Haynes was of opinion the market value of the residence before the taking was nine or ten thousand dollars, though he did not claim to know "just exactly the value of the house", and thought perhaps it was damaged about $4,500.00.
Carden owned a tract near Allen and had sold some real estate in Allen's neighborhood. He was of opinion that the fair market value of Allen's property before the taking was $16,000.00 and afterwards was $9,000.00. He made no specific reference to the residence.
Lawrence is an experienced building contractor. He made a careful examination of the residence and estimated its reconstruction cost, new, at $9,235.42. He was not questioned as to the present condition of the house or as to repairing it,
The following evidence on behalf of defendant was not controverted. C. B. Porter, defendant's resident engineer with long observation of stone work, was of opinion that the cracks in the walls (being in the mortar) did not weaken them to any extent and that it would be "a long time" before the walls would suffer any from the effects of water entering the cracks. W. E. Meador, a contractor and builder of long experience, was of opinion that the cracks in the plaster came from improper construction, saying: He further said that the cracks both in the plaster and in the walls could be repaired so that the house would be as good as it ever was at a cost of about $250.00.
Counsel for Allen contends that the jury must have disbelieved Meador. If so, the disbelief was seemingly arbitrary. Faulty construction of the house is definitely established by Allen's own admission that cracks appeared in the house before the blasting commenced and have continued to come since the blasting ceased. Allen's own witness Lawrence, concurred in Meador's opinion of the joists, saying they were "light". Moreover. Lawrence was in position, because of his thorough examination of the house, to have controverted Meador's estimate of the cost of repairs had it been too low. Allen's failure to question Lawrence on that subject weighs heavily against him. We are impressed that Allen did not care to develop the damage from blasting except superficially. His indifference thereto may be explained in two ways. First, the entire damage from the cracks amounted to but $250.00 (according to the unchallenged estimate of Meador) and only part of that estimate can be attributed to...
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