Chesapeake v. Allen.

• Decision Date: 02 February 1932
• Docket Number: (No. 7151)
• Citation: 111 W.Va. 481
• Court: West Virginia Supreme Court
• Parties: Chesapeake & Ohio Railway Company v. Grover C. Allenet al.

111 W.Va. 481

Chesapeake & Ohio Railway Company

v.Grover C. Allen et al.

(No. 7151)

Supreme Court of Appeals of West Virginia.

Submitted January 27, 1932.

Decided February 2, 1932.

1. Evidence

Opinion evidence must be based on adequate knowledge regarding the immediate line of inquiry.

2. Emminent Domain

In a condemnation proceeding the landowner cannot realize on possibilities of increased value of his land except insofar as they affect its present market. He is entitled to a consideration of all adventages which the land possesses, but it is the present value alone which must be determined.

Error to Circuit Court, Summers County.

Condemnation proceedings by the Chesapeake & Ohio Railway Company against Grover C. Allen and another. To review the judgment rendered, the condemnor brings error.

Reversed.

Fitzpatrick, Brown & Davis and McDaniel Pur cell, for plaintiff in error.

J. W. Maxwell, for defendant in error.

Hatcher, President:

This is a condemnation proceeding. Several years ago Grover Allen became the owner of a tract of about fourteen acres near the Big Bend tunnel on the C. & 0. railroad. He was desirous of building a house within a few feet of his boundary line, and acquired from a neighbor about two-thirds of an acre adjoining, for use as a back yard. The house was built with stone walls and is estimated to have cost about $9,500. Two years ago he added 29 acres to. his boundary, all of which is valuable only for farming purposes. In this proceeding the railroad company condemns practically all of his back yard (0.653 acre) for the purpose of constructing another tunnel some 140 feet below the surface. The jury alowed and the court confirmed $6,800, for the strip taken and for damages to the residue of Allen's property.

It is a settled rule that opinion evidence must be based on "a special practical acquaintance with the immediate line of inquiry." Wharton, Evidence, sec. 439; 22 C. J., subject Evidence, sec. 604; Rr. Co. v. Coal Co., 75 W. Va. 423, 444, 83 S. E. 1031. In disregard of that rule (a) B. Z. Garden, a witness for Allen, though admitting ignorance of the values of the strip taken and of the house, was permitted to express the opinion that Allen's property would be damaged $7,500 or $8,000 by the taking, because, in the language of the witness, he "wouldn't consider the property worth very much, afterwards, after they had taken that much of the back of his lot, back of his house.' (b) Without showing any knowledge of market values, Allen was permitted to testify that the property was worth (to him) $17,000 before the taking, and $7,000 afterwards. (c) N. T. Payne, a witness for Allen, who had done "right smart" blasting while running a steam shovel in road construction work, and who had observed the effect of blasting in a tunnel, at Greenwood, Virginia, was permitted to say that in his opinion the blasting necessary in driving the tunnel, even though done in a skillful manner would break the walls of Allen's house. The witness did not give the distance below the surface of the Greenwood tunnel, and he did not state that he had observed the effect of blasting on surface structures in the proximity of the Greenwood tunnel. Therefore, he failed to qualify for the opinion he gave. We see no material error in the evidence of Allen's other witnesses. Inconsistencies appear, but they are jury questions.

An instruction given at the request of Allen informed the jury that it might consider "the marketable possibilities"...