Coon v. State Highway Bd.

• Decision Date: 01 June 1965
• Docket Number: No. 580,580
• Citation: 125 Vt. 89,211 A.2d 234
• Parties: Dennis E. COON and Dorothy Coon v. STATE HIGHWAY BOARD.
• Court: Vermont Supreme Court

Page 234

211 A.2d 234

125 Vt. 89

Dennis E. COON and Dorothy Coon v. STATE HIGHWAY BOARD.

No. 580.

Supreme Court of Vermont.

June 1, 1965.

Robert H. Brown, St. Albans, for plaintiffs.

Keith E. King, Montpelier, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

This is a highway condemnation case appealed to the Franklin County Court under the provisions of Chapter 5, Title 19, V.S.A. The State Highway Board initially awarded $750.00 for the taking. Upon an appeal to the county court, and a trial by jury, the latter returned a verdict of $750.00. The land so taken is located in Highgate, Vermont. The taking took place August 2, 1962.

Following the verdict, and before judgment, plaintiffs filed a motion to set aside the verdict and for a new trial, bringing to the trial court's attention the claims of error. Plaintiffs' motion was denied. Ninety-five percent of the initial award had already been paid the plaintiffs under the provisions of 19 V.S.A. § 230, as amended. Judgment was therefore entered on the verdict for the plaintiffs to recover the balance of 5% diminished by costs of $7.00 taxes and allowed against the plaintiffs. The plaintiffs have appealed on five separate issues.

The State acquired two contiguous parcels of land, one containing 9.1 acres, and one of 1.7 acres, a total of 10.8 acres, which had been used and operated by the plaintiffs as a sand pit for about eight years. The sand in this pit was a good quality of bank run sand and suitable for purposes of concrete or mortar, and of certain grades of asphalt. The sand was quite free from soil, clay and silt. It was clean and considered a valuable type of sand for concrete purposes. No buildings were located on the premises. There appears to be no question but that the premises before the taking had a highest and best use as a sand pit and sand producing land.

The land taken was a part of a larger tract containing between 17 and 18 acres. After the taking there was left about 6 or 7 acres, consisting of a small piece of land westerly of that condemned, and also a lot of land of about 5.9 acres. These two parcels were separated by land taken by the State, and in most part covered with sand, brush, and small trees.

Plaintiff, Dennis Coon, had been in the general trucking business for about 20 years, and also dealt in gravel and stone. In addition to the foregoing he sold, loaded, and trucked sand and fill from his gravel pit. This had continued since 1956. His equipment consisted of two dump trucks, one small truck, two tractor loaders and a bulldozer. Plaintiffs sold approximately 2000 yards of sand each year out of their sand pit--that is about 100 yards of fill, and 1000 yards of cement sand and sand for other purposes. The basic charge for fill sand in the pit was 15 cents a cubic yard, before loading. The charge for other sand in the pit was 55 cents per cubic yard, before loading. Additional charges were made for loading and trucking by the plaintiffs.

The entire property was purchased by the plaintiffs in 1955 at a cost of $600.00. Mr. Coons expressed the opinion that the fair market value of the property before the taking was between $6,000 and $7,000 and that the remaining land was worth about $400. The State's evidence was to the effect that the market value of the property before the taking was $900 and that the remaining property had a value of $150.

By reason of plaintiffs' sand pit operations they sought in this action to recover, among other items of damage, for business loss under 19 V.S.A. § 221(2) which in part reads:

'Damages resulting from the taking or use of property under the provisions of this chapter shall be the value for the most reasonable use of the property or right therein, and of the business thereon, and the direct and proximate lessening in the value of the remaining property or right therein and the business thereon.'

During the trial, the court, in response to a request by the defendant, ruled that the bare taking of land upon which there was an operating sand pit did not involve a compensable business loss. The court indicated to plaintiffs' counsel that if plaintiffs were seeking to recover business loss, above and beyond the value of the land with its sand deposit in place, evidence to this end would be excluded. To this ruling counsel for the plaintiffs made no response. On this issue see, Penna v. State Highway Board, 122 Vt. 290, 170 A.2d 630; Record v. Vermont State Highway Board, 121 Vt. 230, 237, 154 A.2d 475. The court charged that the measure of damage was the difference in value of the land before and after the taking. No reference was made to business loss. The instructions were not excepted to by plaintiffs, and therefore not for consideration on appeal. Loomis v. Abelson, 101 Vt. 459, 463, 144 A. 378; O'Brien v. Dewey, 120 Vt. 340, 346, 143 A.2d 130. The issue of business loss is not for this Court's consideration.

Plaintiffs' next assignment of error relates to the exclusion of the opinion evidence of Lucien A. Demers of St. Albans, Vermont. This witness testified that he owned a sand pit, and had been engaged in highway construction for about 15 years. On being asked as to the market value of the Coon pit, objection was interposed by the State, and the objection sustained. The competency of this witness was a preliminary question for the trial court. While Mr. Demers was familiar with the Coon property, we cannot say that the exclusion of his opinion evidence was erroneous, nor was founded on an error of law. Farr v. State Highway Board, 122 Vt. 156, 160, 166 A.2d 187.

Mr. George C. Stanley qualified as a contractor and engineer familiar with asphalt, sand, and concrete of all kinds. He testified that he made borings on plaintiffs' land, took samples, and at a five foot depth on parcels containing 10.8 acres taken by the State, estimated the presence of 86,400 cubic yards of good quality sand. He also estimated that there was...