City of Baltimore v. Schreiber

• Decision Date: 21 July 1966
• Docket Number: No. 553,553
• Citation: 243 Md. 546,221 A.2d 663
• Parties: CITY OF BALTIMORE v. Frank SCHREIBER et al.
• Court: Maryland Court of Appeals

Page 546

243 Md. 546

221 A.2d 663

CITY OF BALTIMORE v.Frank SCHREIBER et al.

No. 553.

Court of Appeals of Maryland.

July 21, 1966.

Robert C. Harrison, Asst. City Sol.(Joseph Allen, City Solicitor and Clayton A. Dietrich, Chief Asst. Sol., Baltimore, on the brief), for appellant.

No appearance for appellee.

Before HARMMOND, HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.

MARBURY, Judge.

This is an appeal by the Mayor and City Council of Baltimore(hereinafter referred to as the 'City') from a judgment entered upon an inquisition returned by a jury assessing the fair market value of several parcels of land with improvements thereon of which one of the appellees, ¹Frank Schreiber, is the leasehold owner-they are all subject to annual ground rents.The subject properties are six separate rental properties which have been condemned for the purpose of a Baltimore Urban Renewal Project known as Madison Park North, and they are located at Nos. 1005, 1013, 1015, 1017, 1019, and1021 West North Avenue (referred to hereinafter by number only).At the condemnation trial, over which Judge Joseph L. Carter presided, both the condemnor's and the condemnees' expert witnesses treated, for purposes of dollar evaluation, the five properties located at Nos. 1013-1021 as one property, and treated No. 1005 separately.

The City's two real estate experts agreed in their testimony that Schreiber's leasehold interest in No. 1005 was worth $7,000 and they were only $200 apart in their evaluation of his like interest in Nos. 1013-1021, i. e., one said it was worth $8,800 and the other valued it at $9,000.The appellees presented but one real estate expert who opined that the fair market value of Schreiber's interest in No. 1005 was $12,500, and that of Nos. 1013-1021 was.$19,000.The leasehold owner Schreiber took the stand and testified that in his opinion his interest in 1005 was worth $12,500.He also testified, over the strenuous objection on the part of the appellant's counsel, that he had paid $8,500 for No. 1005 in 1955.In regard to Nos. 1013-1021 Schreiber made no direct estimate of what he thought the property was worth, but did testify, again over objection, that he had paid $14,100 for his interest in those properties back in 1956, and that he had made approximately $4,500 capital improvements on them soon thereafter.

In his testimony appellees' expert witness remarked, when discussing the highest and best use of the property, that back in 1955 Mr. Schreiber had installed in No. 1005, where a store once had been, his own real estate office.There was no testimony that the office was still there and in fact no further mention was made of it, but when Mr. Schreiber took the stand, he was asked if it would be necessary for him to move his business when the City condemned his land.This question was objected to by appellant's counsel, Judge Carter properly sustained the objection, and the question was not answered.

The jury viewed the properties here in question and before retiring to consider the amount of their awards they were given explicit, easily understood, and accurate instructions by Judge Carter in regard to the factors which they should consider in arriving at their fair market value of the leasehold interest in the properties.The jury returned its inquisition awarding the total amount of $22,950 which was broken down by it as $9,250 for No. 1005, and $13,700 for Nos. 1013-1021, the total being approximately 40% higher than the estimate of the value of the appellees' interest made by the City's experts.

Raised on this appeal are three questions: (1) Was Schreiber properly allowed to testify as to what he had paid for these properties some nine and ten years before the condemnation proceedings; (2) under the facts of this case was it necessary for the trial judge to instruct the jury that moving costs and good will were not to be considered by it in determining fair market value; and (3) was Schreiber properly allowed to testify to capital improvements on Nos. 1013-1021 inasmuch as he did not also testify as to the amount of their depreciation.

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.Pumphrey v. State Roads Commission, 175 Md. 498, 2 A.2d 668;Williams v. New York, P. & N. R. Company, 153 Md. 102, 137 A. 506.Moreover, we are aware that the well established rule is also that whether the condition of remoteness and other conditions have been met or not rest mainly in the sound discretion of the trial judge, and will not ordinarily be disturbed on appeal.See cases cited at pages 811-812 of 55 A.L.R.2d.Nevertheless, the appellant contends that reversible error was committed below when the owner of the leasehold was permitted to testify as to what he paid for No. 1005 back in 1955 and then later permitted to testify as to what he paid for Nos. 1013-1021 in 1956, since these purchases are assertedly too remote in point of time to be of any probative value in the jury's determination of the fair market value at the time of trial.

There is no fixed period of time in which the purchase price of property sought to be condemned should be either admitted or excluded from evidence.Cf.Taylor v. State Roads Comm., 224 Md. 92, 94, 167 A.2d 127, where the same thing was said in regard to the time limit on comparable sales in the neighborhood.There are a myriad of circumstances to be considered in each case in determining if the time the purchase price was paid was too remote to have any probative value in aiding the jury's ascertainment of present fair market value.Such circumstances include: degree of change in the condition of the property, changes in the condition of the surrounding property or in the character of the neighborhood, economic growth in the area, etc. Re Ellis(Ohio App.1955), 124 N.E.2d 424, revd. on other groundsRe Ohio Turnpike Comm., 164 Ohio St. 377, 131 N.E.2d 397, app. dismd.Ellis v. Ohio Turnpike Comm., 352 U.S. 806, 77 S.Ct. 51, 1 L.Ed.2d 39.Consequently, the better rule seems to be that if, in the sound discretion of the trial judge, the time is not so remote as to detroy 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.Cf.Taylor, supra, 224 Md. at page 95, 167 A.2d 127, andLustine v. State Roads Comm., 217 Md. 274, 142 A.2d 566, which dealt with the rule in regard to remoteness of comparable sales in the neighborhood.United States v. Becktold(C.A.8th Mo.1942)129 F.2d 473;Re Appropriation of Easement For Highway Purposes, 118 Ohio App. 207, 193 N.E.2d 702;State Highway Comm. v. Jones, 237 Or. 372, 391 P.2d 625;Epstein v. City and County of Denver, 133 Colo. 104, 293 P.2d 308, 55 A.L.R.2d 783;Lembo v. Town of Framingham, 330 Mass. 461, 115 N.E.2d 370.From the examination of the record before us, we can not say that the price Schreiber paid for No. 1005some ten years before condemnation or the price paid nine years before that date for Nos. 1013-1021 was so remote in point of time as to have no probative force in regard to present fair market value, and thus we find no abuse of discretion on the part of the trial judge in failing to sustain objections to this testimony.

The necessity for, and not the undisputed correctness of, the City's two proposed prayers for instructions to the jury...