Gauley v. Conley.

• Decision Date: 16 September 1919
• Citation: 84 W.Va. 489
• Parties: Gauley & Eastern Railway Co. v. C. A. Conley et al.
• Court: West Virginia Supreme Court

84 W.Va. 489

Gauley & Eastern Railway Co.

v.C. A. Conley et al.

Supreme Court of Appeals of West Virginia.

Submitted September 9, 1919.

Decided September 16, 1919.

1. Eminent Domain Market Value of Property Evidence.

In a proceeding to condemn private property for public use, evidence of past annual profits derived from a business conducted on the property, in the form of net income arising from such business, offered as an index to the market value of the property, is ordinarily inadmissible, because the extent to which such income arises out of the property used is uncertain, it being dependent upon the capital invested, business conditions obtaining and the trading skill and business capacity of the owner, as well as adaptability of the property to the business. (p. 492).

2. Same Removal of Business from Condemned Property Disadvantage of New Location Admissibility of Evidence.

If, in such case, the business is to be continued at another location and on property different from that involved in the proceeding, evidence of the relative inconvenience and disadvantages of the new location is inadmissible, because the constitutional guaranty of indemnity does not extend to the business conducted upon the property taken. (p. 492).

3. Same Removal of Business Construction of New Building Damages.

Nor, in the event of the erection of a new building on a different piece of land, in which such business is to be continued, can the cost thereof be included in the compensation or damages awarded; or proved as tending to show the value of the old building, in the absence of disclosure of like or closely similar construction and conditions in all respects. (p. 495).

4. Same Damages Evidence Contiguous Lot.

In such case, the admission of evidence of damages to a lot not involved in the proceeding nor used in connection with the property proceeded against, though contiguous to it, is erroneous, (p. 496).

5. Same Damages Evidence Offer to Owner.

It is also erroneous, in such case, to permit the land owner to prove an inquiry to him by an agent and attorney of the condemnor, as to whether he would accept a named sum of money, in payment of compensation for the property to be taken and damages to the residue, without proof of the agent's authority to fix and determine the amount of such compensation and damages. Evidence of such an inquiry is also inadmissible because it does not fairly tend to prove an admission as to the value of the property. (p. 496).

6. Same Taking of Part of Lot Proof of Value.

Ordinarily, when only a part of a lot or parcel of land is taken under the power of eminent domain, the proof of value should be limited to the part actually taken, and, as to the residue, the evidence should be limited to damages; but, when virtually all of the property is taken and the remnants are relatively worthless, the value of the entire tract or lot may be established and an allowance made for the value of the remnants, (p. 496).

7. Same Damages Evidence Other Suitable Property.

After the right to take the property has been adjudicated and acquiesced in, it is inadmissible to prove, upon the inquiry as to compensation and damages, that the condemnor could have obtained other property equally as well suited to its purposes, (p. 496).

8. Evidence Opinion Value of Property.

Upon such a trial, a witness cannot base his opinion as to the value of the property upon "the possibility or impossibility of securing other locations'" for the business conducted upon it. (p. 496).

9. Eminent Domain Value of Property Evidence Assessment.

To be admissible, by virtue of sec. 115, ch. 29 of the Code, as evidence of the value of property proceeded against under the power of eminent domain, the assessment thereof for purposes of taxation, last certified before the beginning of the proceeding, must be limited to the property so proceeded against and must not include it and other property as a single or combined piece, unless the property is of uniform value and appears to have been assessed by the acre or by the lot. (p. 498).

Error from Circuit Court, Fayette County.

Condemnation proceeding by the Gauley & Eastern Railway Company against C. A. Conley and others. Verdict and judgment for defendants, and plaintiff brings error.

Reversed and remanded.

W. N. King, Leroy Allebach, and Billon & Nuckolls, for plaintiff in error.

Magee McClung and C. R. Summerfield, for defendants in error.

Poffenbarger, Judge:

The verdict and judgment in this condemnation proceeding by a railway company to take, for its purposes, a portion of each of two small lots on one of which there was a horse and a mule barn and on the other a department store building, both in use at the time, are for $14,000.00, and the applicant complains of them.

The dimensions of the barn lot were, substantially, forty by eighty feet, and, of the other lot forty by fifty-four feet. The railroad right of way line cut into both lots to a depth of about thirty feet and ran through the building on each. Each of the structures was a two-story frame building, the former about fifty-four by thirty-seven feet and the latter about thirty-six by fifty feet. On account of the unfavorable topography of the ground, the building sites had to be prepared at considerable expense, by the blasting out and hauling away of rocks and the construction of retaining walls. The barn seems to have been built in 1911, and the store house in 1914. Up to a date prior to August, 1917, the time of the institution of this proceeding, the two defendants, C. A. Conley and E. D. Kincaid, were partners trading in horses and mules, and conducted their business in the barn just described. At the latter date, Conley, having bought out Kincaid, was conducting the horse and mule business alone. They, however, were owners in common of the two lots, and Conley was paying Kincaid $25.00 per month, as rental for his interest in the lot on which the barn stood, and the store building paid a rental of $60.00 per month.

The commissioners appointed in the usual way ascertained the compensation and damages respecting the lot on which the barn was at $4,800.00 and the lot on which the store building was at $5,500.00, making a total of $10,300.00. The railroad company paid this amount into court and obtained an order authorizing it to take possession of the property. The owners excepted to the report of the commission and demanded a trial by jury, solely on the question of the amount of compensation and damages, they having acquiesced in the court's decision affirming the right of the applicant to take the property for its railroad purposes, on payment of proper compensation and damages.

All of the numerous assignments of error, except two, are based upon rulings admitting evidence over objections of the plaintiff in error. One of the others denies the propriety of an instruction because it is based upon evidence alleged to be inadmissible, and the overruling of a motion to set aside the verdict, for insufficiency of the evidence and as being contrary to the clear and decided preponderance of the evidence, is the subject matter of the last one.

In the beginning of the trial, the court refused to permit the owners of the property to prove the net income and profits of the horse and mule business conducted in the barn on one of the lots, for the year immediately preceding the month of August, 1917, the date of the institution of this proceeding; but later, such evidence was admitted over an objection interposed by the applicant. In the argument submitted here in support of the court's final ruling upon the question, it is frankly admitted that such profits cannot be included in the verdict as an element or item of compensation or damages, but it is earnestly insisted that profits actually derived from business conducted on the property may be proved as one of the circumstances tending to show its market value. The distinction between the two offices of proof is obvious, but it does not overcome the objection to the evidence in question. There is a clear disstinction, but it is not coextensive with the difference. The rental value is always admissible because it is almost as fixed and certain as the market value of the property. The profits derive from a business conducted upon the property are uncertain and speculative in character, because the question of profit and loss, or the amount of profit, in the event of any, depends more upon the capital invested, general business conditions and the trading skill and business capacity of the person conducting it, than it does upon the location of the place of business. Profits already derived from a business may not be speculative, in the true sense of the term, but they would, nevertheless, constitute an uncertain measure of the value of the property upon which the business was carried on. The argument submitted in support of the admissibility of this evidence is plausible, but it is not in harmony with our decisions nor with the weight of authority throughout the country. B & N. Railway Co. v. Great Scott Coal & Coke Co., 75 W. Va. 423; Shenandoah Valley Ry. Co. v. Shepherd, et als. 26 W. Va. 672'; Richmond &c Railroad Co. v. Cltamblin, 100 Va. 401; Braun v. Met. West Side Elevated Railroad Co., 166 111. 434; Dupuis v. C. N. & W. Railway Co., 115 111. 97; Saner v. The Mayor, 44 App. Div. (N. Y.) 305; Matter of Gilroy, 26 App. Div. (N. Y.) 314; Newton v. Armstrong, 19 N. Y. Supp. 573; Edmands v. Boston, 108 Mass. 535; Cobb v. Boston, 109 Mass. 438; Becker v. P. R. T. R. Co., 177 Mass. 252; Kossler v. Railway Co., 208 Pa. St. 50. Several of these cases specifically deny the admissibility of evidence of past profits derived from the land taken. Others rule out proof of...