Dow v. State
| Decision Date | 27 January 1967 |
| Citation | 226 A.2d 92,107 N.H. 512 |
| Parties | Charles F. DOW et al. v. The STATE of New Hampshire. |
| Court | New Hampshire Supreme Court |
Upton, Sanders & Upton, Gilbert Upton, Concord, for plaintiff.
George S. Pappagianis, Atty. Gen., and R. Peter Shapiro, Asst. Atty. Gen., for the State.
Appeal from an award of $1,600 in an eminent domain proceeding whereby the State took on April 1, 1963 certain lands of the plaintiffs in connection with the construction of interstate highway 93 in New Hampton. Trial by jury with a view resulted in a verdict for the plaintiffs in the amount of $7,000.
During the course of the trial, the defendant excepted to certain rulings of the Court admitting evidence and allowing portions of the plaintiffs' argument. After verdict the defendant moved to set aside the verdict for the reasons (1) that it is excessive; (2) that it is contrary to and against the weight of the evidence; and (3) that the jury fell into plain mistake. The motion was denied and the defendant's exceptions were reserved and transferred by Grimes, J.
The parties agree that the State took in fee 5.6 acres of land and landlocked another 17.1 acres which the State concedes to be totally worthless after the taking. The chief issues in the case are whether it was error to permit the plaintiffs to introduce evidence of the quantity of gravel on the 5.6-acre piece taken by the State and the quantity of loam on the 17.1-acre landlocked piece, and whether it was error to admit evidence of the gross income from gravel operations by the plaintiffs for a period of eight years prior to the taking. If such evidence is competent, the question is raised as to what foundation must be laid to insure its admissibility so the trier of the facts will not reach an unconscionable verdict based on speculation.
The plaintiffs' evidence concerning mineral deposits on their land (sand, gravel and loam) prior to the taking tends to establish the following facts. The plaintiffs acquired title to the land in 1948. In 1955 they opened a sand and gravel pit on the 5.6-acre tract taken by the State. The pit was operated by others than the plaintiffs until it was taken by the State in 1963. During this period plaintiffs realized a gross income of about $200 to $300 per year from the sale of gravel, except during the year 1957 when 72,000 yards of gravel were sold.
On the landlocked tract the plaintiffs had been growing vegetables for a number of years. The top soil in the area was classified by an expert as 'Ondawa bottom' or a class one soil for agricultural use, and fairly scarce in the general area. Tests indicated that this loam extended to a depth of 12 to 18 inches throughout the entire tract with a probable minimum quantity of 22,425 yards. There was a substantial quantity of gravel and sand left on the tract taken by the State.
It was established that there were some twenty-five dealers in gravel and loam in the general area and that loam was very scarce. There was an active market in the area for both loam and gravel with a going sale price of one dollar and ten cents per yard respectively.
The defendant objected to the introduction of this evidence on the ground that the plaintiffs were endeavoring to use the unit rule approach in establishing the plaintiffs' damages. The plaintiffs contend that the only purpose for which this evidence was offered was to have the land appraised for the most profitable purpose, or advantageous use, to which it could be put at the time of the taking (Emmons v. Utilities Power Company, 83 N.H. 181, 184, 141 A. 65, 58 A.L.R. 788) and to demonstrate the existence of a market for the product of that use. Dover Housing Authority v. George, 107 N.H. 202, 205, 220 A.2d 156.
An expert for the plaintiffs testified that the fair market value of the plaintiffs' property before the taking was $10,000 and that it had no value after the taking since the tract containing the loam was landlocked. In arriving at this figure the witness considered the value of the loam in place on the premises. The State's expert testified that the plaintiffs' property had a fair market value of $1,900 before taking and no value thereafter.
The parties concede that the classic formula for the determination of damages in a land condemnation case is stated in Edgcomb Steel of New England, Inc. v. State, 100 N.H. 480, 486, 131 A.2d 70, 76, in the following language: 'The law has long been settled in this jurisdiction that in eminent domain proceedings the owner of land condemned is entitled to damages for the taking measured by the difference between the value of his land after the taking, and what it would have been worth on the day of the taking if the taking had not occurred.' It is likewise settled law in this jurisdiction that the plaintiffs were entitled to have their property valued at the most advantageous use to which it could be placed on the day it was condemned. Roy v. State, 104 N.H. 513, 516, 191 A.2d 522. It was not seriously disputed that the most advantageous use to which the plaintiffs' property could be put on the day of taking was in selling sand, gravel and loam therefrom.
The precise evidentiary question presented here has not heretofore been considered by this court. In an analogous situation where the State contended that the plaintiffs' experts arrived at their opinion of fair market value before and after the taking by dividing plaintiffs' property into imaginary lots, placed a value on each lot and then added up the separate values to arrive at the figure testified, the Court said if that was all they did the State's contention would be well taken, but this did not appear to be the situation as disclosed by the record. The Court held that although the witnesses explained their testimony as to value by stating the number and value of the lots, their estimates as to the fair market value were not arrived at solely by adding up the value of each lot. Parkinson v. State, 104 N.H. 534, 536, 191 A.2d 361. The Court further observed that '' Parkinson v. State, supra, 536, 191 A.2d 362.
'The rule ordinarily applicable, although there are certain circumstances in which it may not be applied, is that in determining the compensation in eminent domain proceedings the existence of valuable mineral deposits in the land taken constitutes an element which may be considered insofar as it influences...
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