Curtis v. Maine State Highway Commission

• Decision Date: 28 September 1964
• Parties: Theordore S. CURTIS v. MAINE STATE HIGHWAY COMMISSION.
• Court: Maine Supreme Court

Page 451

203 A.2d 451

160 Me. 262

Theordore S. CURTIS v. MAINE STATE HIGHWAY COMMISSION.

Supreme Judicial Court of Maine.

Sept. 28, 1964.

Needham & Needham, by John H. Needham, Bangor, for plaintiff.

Orman G. Twitchell, Bangor, for defendant.

Before WILLIAMSON, C. J. and WEBBER, TAPLEY, SULLIVAN, SIDDALL and MARDEN, JJ.

TAPLEY, Justice.

On appeal. The defendant, on August 9, 1961, took by the process of eminent domain 2.80 acres of the land of Theodore S. Curtis, the plaintiff in this action. It also took the right to maintain slopes on .09 acres of plaintiff's land. Plaintiff's land is located in Orono, Maine at the junction of Kelley Road and U. S. Route 2. The total land area owned by the plaintiff and affected by the condemnation proceedings comprised 17.07 acres. After the taking there remained 14.27 acres subject to the slope easement. The land had a frontage of 328 feet on U. S. Route 2 and a frontage on the Kelley Road of 736 feet. The land was unimproved and the major portion of it heavily wooded. The amount of just compensation was decided by the Land Damage Board. The instant plaintiff and defendant each appealed from the decision of the Board. The case was tried before a drawn jury at the April Term, 1963 of the Superior Court, within and for the County of Penobscot. The jury verdict favored the plaintiff in the sum of $4500.00. The case is before this court on appeal by the defendant. Defendant's points of appeal are as follows:

'1. The Court erred in allowing the witness Lawrence Perkins to testify as to the cost of construction of water lines on land of Theodore Curtis before the date of taking, August 9, 1961, as such testimony is speculative, immaterial and prejudicial.

'2. The Court erred in allowing the witness Lawrence Perkins to testify as to the cost of constructing water lines on the land of Theodore Curtis after the date of taking, August 9, 1961, and the completion of construction of the improvement, according to the proposals as such testimony is speculative, immaterial and prejudicial.

'3. The Court erred in refusing to strike the testimony of witness Lawrence Perkins.

'4. The Court erred in refusing to give the additional requested instruction of the defendant--appellant, State of Maine, in the form as requested without adding exceptions thereto.

'5. The Court erred in allowing in evidence plaintiff's Exhibit #2 as the same is prejudicial, immaterial and speculative.'

The parties, by agreement, entered an exhibit (plaintiff's Exhibit #1) which purports to be a plan of the land involved, bearing the following words of identification: 'Survey Plan of Archibald Bennoch Lot Orono, Maine.' This plan is based on a survey by one F. M. Taylor, C. E., dated July, 1955.

On the question of just compensation, the plaintiff takes the position that the best and highest use of the property is that of subdivision for the purpose of the construction of high-grade dwellings; that the area is best adapted for that purpose and because of the taking, the necessary installation of a water supply for the benefit of a part of the subdivision would be more expensive and sought, by testimony, to prove it. The major objection on appeal by the defendant is to the court's allowance of this testimony for jury consideration. The defendant objected for the reasons that the nature of the testimony was speculative, prejudicial and immaterial.

The controversy centers around the market value as determinative of just compensation.

The property before the taking consisted of 17.07 acres. The State took by the process of eminent domain 2.808 acres which left remaining 14.27 acres. The taking of the property was for the purpose of the construction of an access road to State Highway #95. The road is so constructed that it bisects property of the plaintiff, thus dividing the proposed subdivision.

The focal point of the case is the admission of the testimony of one Lawrence Perkins which was objected to by the defendant on the grounds that it was too speculative in its nature, immaterial and prejudicial. Mr. Perkins is a supervisor of the Penobscot County Water Company, having to do with the installation of water mains. He testified that before the taking, the pipe, the trenching and the installation of the pipe would cost approximately $2500.00 and that because of the taking, the cost would be increased over the original figure of $2500.00. There is much explanatory testimony as to why the increase would be occasioned by the taking. The principal reason for the increased cost is the necessity of crossing and recrossing the access road by water lines in order to service the lots planned to be created on a portion of the subdivision.

The plaintiff is entitled to just compensation for the taking of his property by the process of eminent domain.

Bangor & Piscataquis Railroad Company v. McComb, 60 Me. 290, 296, 297, speaks of the words 'just compensation' in the following language:

'The words selected are significant,--'just compensation.' These words cover more than the mere value of the quantity taken, measured by rods or acres. They intend nothing less than to save the owner from suffering in his property or estate, by reason of this setting aside of his right of property,--as far as compensation in money can go,--under the rules of law applicable to such cases.

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'The paramount law intends that such owner, so far as that lot is in question, shall be put in as good a condition, pecuniarily, by a just compensation, as he would have been in if that lot of land had remained entire, as his own property.

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'There must be, however, a limit, which will exclude remote, indefinite, or possible damages.'

The owner of the land taken by the process of eminent domain is entitled to an exact equivalent for the injury; he is to be made whole insofar as money can compensate. His right is to receive no more or no less. Chase, et als v. City of Portland, 86 Me. 367.

Just compensation, as the term is used in eminent domain proceedings, is determined by a fair market value. The test is the market value of the land for its best and highest use at the time of the taking or in the foreseeable future. United States v. 3,544 Acres of Land, 3 Cir., 147 F.2d 596.

'* * * a distinction is to be observed between what land may be worth in the future, and what it is now worth in view of the future; and, as no man can foresee the future with any certainty we are allowed to base calculations to some extent on the reasonable probabilities of the future.

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'* * * it is a general principle * * * that, if the future use of land will in all probability be greater and more valuable than its present use, such probability may be an element to be received into the calculation to establish present value.

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'It is the near, immediate future that may influence; the uncertain, indefinite, doubtful future cannot. The doctrine is to be carefully applied.' Portland and Rochester Railroad Company v. Inhabitants of Deering, 78 Me. 61, 66, 67, 2 A. 670, 671.

See also Gilmore v. Central Maine Power Company, 127 Me. 522, 145 A. 137.

For techniques of measuring just compensation in eminent domain proceedings, see note in Boston University Law Review, Volume 42, Page 326.

'When a portion of a tract of land is taken the rule of estimating the damages * * * in the absence of unusual circumstances * * *, is thoroughly settled; it is "the difference between the market value of the whole tract as it lay before the taking, and the market value of what remained of it thereafter and after the completion of the public improvement." * * * Generally speaking, market value is "the price that would in all probability--the probability being based upon the evidence in the case--result from fair negotiations, where the seller is willing to sell and the buyer desires to buy."' Andrews v. Cox Highway Com'r., 127 Conn. 455 17 A.2d 507, 509 (Conn.).

'The land is to be valued according to its highest and best use as shown by the evidence even though the owner may not at the time of the filing of the petition be putting it to such use.' Dept. of Pub. Works & Buildings v. Lambert, et al., 411 Ill. 183, 103 N.E.2d 356, 359 (Ill.).

The land at the time of the taking was unimproved, with a substantial portion of it wooded. According to the testimony the best and highest use to which the property could be adapted was that of a subdivision for the construction of highgrade dwellings. It therefore develops that the market value to be determined as of the day of the taking is not based upon the market value of the property as it was then used but rather its market value based on its potential use as a subdivision.

'In determining the market value of a piece of real property for the purposes of a taking by eminent domain, it is not merely the value of the property for the use to which it has been applied by the owner that...