Hetland v. Capaldi
| Decision Date | 28 March 1968 |
| Docket Number | No. 136-A,136-A |
| Parties | George HETLAND v. John F. CAPALDI, Director of Public Works. ppeal. |
| Court | Rhode Island Supreme Court |
This petition for the assessment of damages provided for in G.L.1956, § 37-6-18, was brought to recover damages for the taking of a portion of the petitioner's land for highway purposes. The petition was heard by a justice of the superior court sitting without a jury, who gave decision, and entered a judgment, for the petitioner in the amount of $1,384.96 plus interest and costs. The director of public works for the state of Rhode Island, hereinafter referred to as the respondent, now prosecutes an appeal from that judgment to this court.
It appears that petitioner was the owner of a lot of land located on the westerly side of Point Road, so called, in the town of Portsmouth. Point Road, conceded to have been a dead-end private way, extended northerly from Route 138 in that town along a small peninsula that extended northward into the Sakonnet River. It is not disputed that the state, in connection with the erection of a bridge between the northerly end of the peninsula and other land lying near Island Park, took by eminent domain the private way and a narrow strip of land on each side of said private way.
The petitioner's lot was bounded on the east by the westerly side of the private way and included in the land taken by respondent for highway purposes was a strip of petitioner's lot about 5 feet wide that had abutted on the private way. It was agreed that the strip so takne contained 354 square feet and that it had a fair market value of $106.20.
One Bruce E. Kerney, whose qualification as an expert in real estate was conceded, testifying on behalf of petitioner, stated that the value of petitioner's land and the residence thereon prior to the taking was $6,500. This witness further testified that, in his opinion, the value of the property after the taking was $5,115.04 and that the amount of the depreciation in value resulting from the taking was $1,278.76. In reaching his decision, the trial justice combined the value of the land actually taken with the depreciation thus testified to and awarded the amount of $1,384.96. This witness further testified that the depreciated market value of petitioner's property after taking resulted from the loss of seclusion and privacy that followed the elimination of the private way and its replacement with a public road. The respondent moved to strike the testimony relating to the loss of seclusion and privacy, and this motion was denied by the trial justice.
The respondent, as we understand him, argues that the loss of privacy resulting from an exercise of the power of eminent domain is not compensable as such and that even where a portion of a petitioner's land is taken, the destruction thereby of the secluded character of the remaining land may be considered in a determination of severance damages only in exceptional and peculiar circumstances. The petitioner, on the other hand, disclaims expressly that he is seeking damages for the loss of privacy per se. He argues that the taking of the strip along the easterly end of his lot for the purpose of constructing a public highway deprives the remaining land of its secluded character and that this loss of seclusion is a proper element to be considered in a determination of the severance damages to which he is entitled.
We are of the opinion, however, that the measure of damages to be applied in these cases of partial taking is the extent to which the fair market value of the remaining land has been depreciated as a result of the taking, and the prime issue with which we are confronted in this case is whether evidence of the loss of privacy or seclusion may properly be considered in a determination of the fair market value of the land remaining after the taking.
It is well settled that the measure of damages applicable in a case involving a partial taking is the value of the land taken at the time it is taken, together with any special or peculiar damages which result to the remaining land, or, to put it otherwise, the owner of such land is entitled to full compensation for such damages as he sustains by reason of the taking. D'Angelo v. Director of Public Works, 89 R.I. 267, 152 A.2d 211; Greene v. State Board of Public Roads, 50 R.I. 489, 149 A. 596. In Taber v. New York, Providence & Boston R.R. Co., 28 R.I. 269, 278, 67 A. 9, 13, we said: 'The authorities are agreed that where part of the tract is taken, just compensation includes not only the value of that which is taken, but damages, if any, to the remainder.'
Such damages are to be ascertained by establishing the difference between the value of the land prior to the taking less its value after the taking. Johnston v. Old Colony R.R. Co., 18 R.I. 642, 29 A. 594; Eijay Realty Co. v. Argraves, 149...
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