Honig v. Director of Public Works for State of R. I.
| Decision Date | 28 October 1969 |
| Docket Number | No. 676-A,676-A |
| Citation | 106 R.I. 199,258 A.2d 73 |
| Parties | Nathan M. HONIG et ux. v. DIRECTOR OF PUBLIC WORKS FOR the STATE OF RHODE ISLAND. ppeal. |
| Court | Rhode Island Supreme Court |
This petition for assessment of damages by a jury was brought under the provisions of G.L.1956, chapter 6 of title 37, as amended. The case was heard before a justice of the superior court sitting without a jury, the plaintiffs having by stipulation waived their right to a trial by jury. At the close of the plaintiffs' case, the state rested without presenting any evidence. After the hearing, the trial justice rendered a decision in favor of the plaintiffs on the basis of which a judgment was entered awarding the plaintiffs damages in the sum of $12,700 700 plus interest from the date of condemnation. The case is before us on the state's appeal from such judgment. We affirm. Murphy v. Director of Public Works, R.I., 238 A.2d 621.
The narrow issue raised by this appeal is whether the taking of the front portion of their property deprived plaintiffs of all access thereto at the time of the condemnation. The answer depends upon whether the condemnation was for freeway purposes or for state highway purposes.
Pursuant to the procedures prescribed by G.L.1956, chapter 10 of title 24, and chapter 6 of title 37, the state filed in the office of the recorder of deeds of the city of Cranston a description of certain real property and a plat thereof together with a statement setting forth that the property therein described was being condemned in fee simple for highway and freeway purposes. The statement of the taking alleges that the property being condemned is shown upon a plat entitled 'Rhode Island Department of Public Works, Division of Roads and Bridges, Freeway No. 18, Cranston, Huntington Expressway Ext. from Reservoir Avenue to Interstate Route 95, 2 Sheets, Sheet No. 2, Plat No. 1307,' which plat is duly recorded in the land records of the city of Cranston. The condemnation was initiated for the purpose of extending the Huntington Expressway to route 95 of the interstate highway system.
A certified copy of the original condemnation map is in evidence as plaintiffs' exhibit No. 1 and a certified copy of the document containing the description and statement of taking is in evidence as plaintiffs' exhibit No. 2. For convenience we shall hereinafter sometimes refer to exhibit No. 1 as 'Plat No. 1307' and to exhibit No. 2 as 'the description and statement of taking.'
The plaintiffs owned property at 2 Beacon Circle in the city of Cranston, consisting of a lot of land 6,561.45 square feet in area, together with buildings and improvements thereon, including a house and attached garage. The property fronted only on Beacon Circle. The state condemned only the front portion of plaintiffs' land. The part taken was triangular in shape, was 963 square feet in area, fronted along Beacon Circle, and ran the entire width of plaintiffs' property along Beacon Circle. The only means of ingress to and egress from plaintiffs' property by paved road would be by way of Beacon Circle. This the defendant admits in its brief. The portion taken in designated as parcel numbered 37 on plat No. 1307.
The plaintiffs are seeking damages for the value of the land taken and, in addition, severance damages to their remaining land. They base their entitlement to the latter principally upon their claim that the taking of the front portion of their land deprived them of all access to their property.
The only witnesses who testified were Nathan M. Honig, one of the plaintiffs, and Ralph A. Pari, plaintiffs' real estate expert.
Mr. Honig testified that he had received a letter dated August 9, 1963, from the department of public works notifying him that the state had condemned property belonging to him for freeway purposes. The letter was admitted in evidence, over the state's objection, and marked as plaintiffs' exhibit No. 4.
Mr. Pari testified that in his opinion, based upon comparable sales in and around the general area, the value of plaintiffs' property immediately before the taking was $16,900 and that, if plaintiffs' land became landlocked as a result of the taking, the loss of value to their property would be approximately 75 per cent, or $12,700.
During Mr. Pari's direct testimony, the parties stipulated that, if the right of access had not been destroyed by the taking, the severance damages to plaintiffs' property would amount to $5,350. Mr. Pari stated that in his opinion this would be a fair and reasonable adjustment. The state presented no witness to contradict Mr. Pari's testimony; neither did the state impeach his testimony during cross-examination.
It is undisputed that the written description and statement of taking describing by metes and bounds the area condemned, does not differentiate between a freeway line and a state highway line. That document describes only the outmost boundary line of the whole condemnation area within plat No. 1307 and states that the taking is for freeway and highway purposes. This is conceded by the state. It appears that plat No. 1307 follows the same metes and bounds description as contained in the description and statement of taking, but contains notations attempting to differentiate freeway lines from state highway lines.
The plaintiffs offered in evidence as plaintiffs' exhibit 3 a copy of a plan prepared by the state department of public works showing the proposed construction of a cul-de-sac. It appears from the transcript that, since the condemnation, a culde-sac had been constructed as a continuation of Beacon Circle past plaintiffs' property. However, it was conceded by the state that there was no evidence that any such plan was in contemplation at the time of the condemnation. The trial justice noted that the state was under no obligation to construct the cul-de-sac at the date of condemnation.
The plaintiffs argued in the superior court that the rights of the state must be found within the four corners of the description and statement of taking and that so viewed their property was completely landlocked. The plaintiffs pointed out that what the state had done was to draw a line directly across the front of plaintiffs' property; that this line was so located that plaintiffs could not get out of their property to the north or to the west without crossing state property; and that they could only get out to the east and the south by going across property of others. The trial justice accepted plaintiffs' argument and stated that as of the time of condemnation plaintiffs were deprived of any access to a public highway. He pointed out that they were bound on two sides by state property with no right of access and on the other two sides by private property. In the circumstances he held that the case at bar was controlled by our decision in Murphy, supra. Counsel for the state conceded that the foregoing facts were correct and, in reply to a question by the trial justice, he agreed that this case fell within the Murphy case. Accordingly, the trial justice allowed plaintiffs to present expert testimony as to the value of their property on the assumption that it lacked access to any public highway.
In his decision the trial justice made the following pertinent observations. He was faced with the fact that the taking was described in a written instrument and statement of condemnation as being for freeway and highway purposes and by a map pursuant to the provisions of G.L.1956, § 37-6-14. The written description by metes and bounds contained no distinction whatever between any lines as being for freeway purposes or highway purposes. There are designations on the map of a possible distinction between a freeway line and a state highway line; an arrow indicates that the line, which runs across the front of plaintiffs' property as it continues northerly and crosses Beacon Circle, is a state highway line; another arrow indicates that the line which is closer to the edge of the freeway is a freeway line.
He stated that as a matter of law, if this condemnation were for highway purposes only, plaintiffs would lose no access to a public highway, but that if the line of taking across plaintiffs' property was a freeway line, they would lose all right of access to the highway beyond it, would become landbound, and would have no means of access to their property from a public highway. He pointed out that there was a difference in the measure of damages, depending upon whether the taking was for freeway purposes or for state highway purposes. He also stated that, if the access was completely lost, the case at bar would be governed by our recent decision in Murphy, supra, which, he case at bar clearly from our decision in Sullivan v. Marcello, 100 R.I. 241, 214 A.2d 181.
The trial justice recognized that § 37-6-14 required the filing of both the map and the document containing the description and statement of taking. He ruled that condemnation instruments must be construed strictly against the state. With regard to the question of whether the map in combination with the description and statement of taking had brought about a freeway line adjoining plaintiffs' property, or a highway line, thus enabling them to have access, he held that at best there was doubt and that, therefore, the instruments should be construed against the state. On the record before him he found that the line bordering on plaintiffs' property was a freeway line; that plaintiffs were deprived of all access to a public highway; and that they had suffered damages in the amount of $12,700 plus interest.
The trial justice suggested that the judgment also contain a finding by him that, if this was a highway line and...
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Narciso v. State, 1922-A
...to do are not material unless such intention is set forth in binding terms in the condemnation documents. Honig v. Director of Pub. Works, 106 R.I. 199, 258 A.2d 73 (1969); Sullivan v. Marcello, 100 R.I. 241, 214 A.2d 181 (1965). The procedure followed by the trial justice in rejecting the ......
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Bogosian v. Woloohojian, Civ. A. No. 88-0373 (B).
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