Edgcomb Steel of New England, Inc. v. State

• Decision Date: 30 April 1957
• Citation: 100 N.H. 480,131 A.2d 70
• Parties: EDGCOMB STEEL OF NEW ENGLAND, Inc. v. The STATE of New Hampshire.
• Court: New Hampshire Supreme Court

Page 70

131 A.2d 70

100 N.H. 480

EDGCOMB STEEL OF NEW ENGLAND, Inc. v. The STATE of New Hampshire.

Supreme Court of New Hampshire.

Argued Jan. 2, 1957.

Decided March 26, 1957.

Rehearing Denied April 30, 1957.

Sheehan, Phinney, Bass, Green & Bergevin and William S. Green, Manchester, for the plaintiff.

Louis C. Wyman, Atty. Gen., Elmer T. Bourque, Asst. Atty. Gen., and George F. Nelson, Special Counsel, Milford, for the State.

McLane, Carleton, Graf, Greene & Brown, Manchester (Stanley M. Brown, Manchester, orally), as amici curiae.

DUNCAN, Justice.

I. The allegations of the plaintiff's petition that it was awarded $174,000 on November 24, 1953 which it agreed to accept were denied by the answer of the State filed on June 19, 1954. For further answer the State alleged that those transactions were 'void' and 'moot' by reason of subsequent negotiations, and a taking of a lesser portion of the plaintiff's land than was contemplated in 1953. A pretrial order was entered on September 22, 1955, following a hearing before Grimes, J., by which it was stipulated that the action was an appeal from the taking of May 20, 1954, which was agreed to be the 'date of taking.'

Shortly before trial, on November 18, 1955, the plaintiff by further pleading denied the allegations of the answer that the earlier proceedings were void and moot, and alleged that its rights by reason of those proceedings had neither been waived nor affected by the subsequent taking of a smaller tract. To this pleading the State replied on November 21, 1955, alleging among other things that no taking had been effected until May 14, 1954, and that prior to filing a return on that date, the commissioners were free to modify or reverse the conclusion to award $174,000, alleged by the plaintiff to have previously been reached.

On the same day and prior to empaneling of the jury, the plaintiff filed its motion for a verdict in its favor for $174,000 with interest from November 24, 1953. The motion was denied subject to exception, and after the jury was drawn, the Court ruled that the only issue for trial was the appeal from the award assessing damages of $20,500 for the taking of May 20, 1954. The plaintiff's motion to amend the prayer of its petition to seek as alternative relief an award of $174,000 with interest was denied.

Later, in the course of the trial but not before the jury, the plaintiff offered by evidence a letter dated November 24, 1953 from the commissioners to the plaintiff stating: 'The Commission * * * award to [the plaintiff] * * * $174,000 for any and all damages by the construction of said highway'; and also offered minutes of a meeting of the Board of Directors of the plaintiff held on November 27, 1953 at which it was voted to accept the award of $174,000. The evidence was offered in support of the position taken at the commencement of the trial, and as proof of 'an admission' by the State 'as to the element of damages * * * involved.' The State's objection to receipt of the evidence was sustained, subject to the plaintiff's exception.

In support of these exceptions the plaintiff argues before this court that the letter of November 24, 1953 was an award, binding upon the State, which operated to vest in the State 'the rights to the land taken * * * subject only to the plaintiff's right of appeal,' and in the plaintiff, the right to payment of the award. It further argues that the plaintiff's acceptance of the award created 'a valid and binding contractual obligation' on the part of the State; and that the action of the Trial Court was 'in effect * * * a nonsuit on the pleadings.'

Assuming the effect of the Trial Court's action to have been as the plaintiff suggests, that action was proper. The plaintiff's petition was essentially an appeal from the taking of May 20, 1954, which was a taking of a tract two hundred feet in width. At the time of the letter received from the Commission in November 1953, a taking of a three hundred foot tract had been under consideration. The alleged award of $174,000 which related to this original proposal was not a taking. The proceedings are governed by RSA ch. 233. See RSA 257:1(b), 8; 236:2. It is not claimed that any return as required by RSA 233:11 'describing the [highway] and the width thereof, and their assessment of the damages' was then filed in support of the $174,000 award, nor is it claimed that any tender of payment of that amount was made, § 12, or that a certificate of such tender was ever filed as required by § 16. RSA 233:12 provides that no land or other property shall be 'appropriated or used' for making a highway until the damages have been paid or tendered as provided by statute.

It is settled that in condemnation proceedings by administrative action, such as these were, the filing with the Secretary of State of the return of the layout and assessment which is required by RSA 233:11 is essential to the legal laying out of the highway. State v. Michaud, 98 N.H. 356, 100 A.2d 899. 'In effect, the return is the laying out.' In re Brown's Petition, 51 N.H. 367, 368. 'The words 'laying out' and 'taking,' in a statute relating to eminent domain * * * have the same meaning * * *.' Littleton v. Berlin Mills Company, 73 N.H. 11, 16, 58 A. 877, 880. The return is a record of the extent of the land being condemned, and no title can vest in the State and no right to damages in the landowner before the return is filed. Even where a highway was actually laid out and later discontinued before being built, the landowner was held entitled to no more than his actual damage. Beard v. Town of Henniker, 70 N.H. 197, 46 A. 738.

The record discloses no taking before that of May 14, 1954 when the commission filed its return of a taking of 200 feet of plaintiff's land, as to which a certificate of tender was filed six days later. RSA 233:11, 16. The date of taking was fixed by agreement of the parties as May 20, 1954. It was a taking of 200 feet. The alleged award of $174,000 was without legal effect. State v. Michaud, supra.

The cases of Clough v. Unity, 18 N.H. 75 and Pollard v. Moore, 51 N.H. 188 relied upon by the plaintiff require no different conclusion. The proceedings there involved were wholly different in nature from those for condemnation by administrative order which are now before us. The former case was brought to enforce rights held to arise upon confirmation by the court of a report awarding damages. The latter case involved the right of the plaintiff to become nonsuit in an action under the flowage act. Both were cases of condemnation by judicial proceeding. See 6 Nichols, Eminent Domain, § 21.11. Even in such a proceeding, no property is transferred merely by the determination of the damages. Nashua & R. Railroad v. Lee, 55 N.H. 568, 570. See Fiske v. Town of Chesterfield, 14 N.H. 240. The proceedings before us are controlled by the provisions of the statute under which the State proceeded, which have previously been considered. What was said in Opinion of the Justices, 98 N.H. 533, 104 A.2d 195 concerning awards was directed to questions concerning the authority of the Governor and Council with respect to awards by a commission, and had no reference to the question of when such awards became binding.

The argument that the transactions of 1953 were admissible to prove a contract obligation is not more convincing. While the statute authorized acquisition of land by purchase, RSA 236:2, there is no suggestion that the plaintiff was prepared to sell, and the letter of the commission which was excluded has none of the attributes of an offer to buy. The plaintiff's vote to accept the 'award' created no rights against the State.

The letter was hearsay evidence, see Maine-New Hampshire Interstate Bridge Authority v. Ham's Estate, 92 N.H. 277, 283, 30 A.2d 7, and inadmissible to prove the value of the 300 foot tract then under consideration. Howe v. Howard, 158 Mass. 278, 33 N.E. 528. See 2 Lewis, Em.Dom., s. 669. It was not an admission by the State but only evidence of the conclusion of another tribunal. Arlington Mills v. Town of Salem, 83 N.H. 148, 159, 140 A. 163. The plaintiff's exceptions are overruled.

II. 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. Wright v. Pemigewasset Power Company, 75 N.H. 3, 6, 70 A. 290; Swain v. Pemigewasset Power Company, 76 N.H. 498, 503, 85 A. 288, and cases cited. 'In the ascertainment of the value of the property invaded, [he] is entitled to have it appraised for the most profitable purpose, or advantageous use, to which it could be put on the day it was taken.' Emmons v. Utilities Power Co., 83 N.H. 181, 184, 141 A. 65, 67, 58 A.L.R. 788; Low v. Railroad, 63 N.H. 557, 3 A. 739. The value to be determined is fair market value, which may properly be defined as 'the price which in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy taking into account all considerations that fairly might be brought forward and reasonably given substantial weight in such bargaining.' Davis v. State, 94 N.H. 321, 52 A.2d 793. The rule is the same whether an entire tract of land is taken, or it is severed by the taking. 'The actual damage caused * * * is not limited to that part which is taken and appropriated to the public use * * * and the injury to the whole tract may much exceed the value of the land actually taken.' In re Petition of Mt. Washington Road Co., 35 N.H. 134, 145-146. See also, Adden v. White Moutains Railroad, 55 N.H. 413, 414.

The applicable principles were not in dispute in these proceedings, but the State by its exceptions questions the admissibility of much of the plaintiff's evidence. It...