Lustine v. State Roads Commission

• Decision Date: 16 June 1958
• Docket Number: No. 175,175
• Citation: 142 A.2d 566,217 Md. 274
• Parties: Phillip LUSTINE et al., etc. v. STATE ROADS COMMISSION.
• Court: Maryland Court of Appeals

Page 274

217 Md. 274

142 A.2d 566

Phillip LUSTINE et al., etc. v. STATE ROADS COMMISSION.

No. 175.

Court of Appeals of Maryland.

June 16, 1958.

Harry A. Boswell, Mt. Ranier (Samuel J. DeBlasis, Upper Marlboro, on the brief), for appellants.

T. Thornton Murray, Sp. Atty. for State Roads Commission, Baltimore (C. Ferdinand Sybert, Atty. Gen., Joseph D. Buscher, Sp. Asst. Atty. Gen., and Herbert W. Reichelt, Sp. Atty., Mt. Ranier, on the brief), for State Roads Commission.

Before HENDERSON, HAMMOND PRESCOTT and HORNEY, JJ., and JAMES MACGILL, Special Judge.

JAMES MACGILL, Special Judge.

In this case the lessor landowner and the lessee, taking issue with the trial court on certain rulings in a condemnation proceeding instituted by the State Roads Commission, appeal from the judgment entered on the jury's inquisition in the Circuit Court for Prince George's County.

The landowner had title to a parcel of land containing 53.36 acres and eight adjacent lots in a subdivision known as 'Dupont Heights', in the Sixth Election District of Prince George's County. The 53.36 acre parcel had no frontage on a public road but was served by a road or lane, the status of which is not clear. On or about November 9, 1956, an agreement was executed between the lessor and the lessee whereby the 53.36 acre parcel was leased for a period of three years, for the purpose of mining sand and gravel. The agreement provided for the payment of $1,500 per acre for the gravel removed, and further provided that the premises would be left 'graded for subdivision development in accordance with a grading plan submitted by the lessor and accepted by the lessee'. Areas where such grading had been completed could be released to the lessor prior to the expiration of the three year term.

On January 10, 1957, the State Roads Commission instituted proceedings to condemn, for a controlled access arterial highway, a strip of the property containing 10.30 acres in fee and something less than an acre for easements. The taking left on the north side of the highway approximately 33.44 acres and on the south side approximately 10.19 acres, in addition to a separate triangular parcel containing .55 of an acre. Portions of the eight lots were also within the lines of the right-of-way.

The appellants question the action of the trial court in sustaining exceptions to certain interrogatories addressed to the appellee, but they have not included in the record extract the interrogatories and exceptions referred to, despite the requirements of Rule 828 of the Maryland Rules. This Court has held that it will not consider matters which have not been presented in compliance with this rule. Naughton v. Paul Jones & Co., 190 Md. 599, 604, 605, 59 A.2d 496. Since, however, for the reasons hereinafter stated, this case must be retried, we have examined the interrogatories in the record and are of the opinion that the trial court was correct in its action. The interrogatories excepted to were entirely too general and vague for the framing of answers and in some respects went beyond the rights designed to be afforded by their use.

The appellants contend that there was error in refusing to allow them, during the course of the trial, and as part of their case before the jury, to attempt to show that the determination of necessity and the denial of access by the State Roads Commission was arbitrary, capricious or unreasonable. We find no merit in this contention. Such questions, at most, were for the court, and not the jury, to pass upon. Hyattsville v. Washington, Westminster & Gettysburg Railroad Company, 122 Md. 660, 90 A. 515; Johnson v. Consolidated Gas, Electric Light & Power Co., 187 Md. 454, 50 A.2d 918, 170, A.L.R. 709; Nichols on Eminent Domain, 3d Ed., Sec. 4.105(5); McCarthy v. Bloedel Donovan Lumber Mills, 9 Cir., 39 F.2d 34; St. Clair County Housing Authority v. Quirin, 379 Ill. 52, 39 N.E.2d 363; Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 65 A.L.R. 488, and Davidson v. Commonwealth ex rel. State Highway Commission, 249 Ky. 568, 61 S.W.2d 34.

The appellants complain that the appellee was permitted to introduce hearsay testimony tending to show the existence of a public right-of-way from the property to the Marlboro Pike. The testimony in question was as follows:

'By Mr. Murray: (on direct examination) 'Q. Mr. Bojanowski, are you familiar with the access that that property had prior to the State taking it? A. Well, the only access to that that we found in going over it with the former owner was through this land----

'Mr. DeBlasis: I object. He is beginning to tell us what Mr. Brooks said.

'Mr. Murray: He is not going to say what Mr. Brooks said. He said the only access they were able to find after talking to Mr. Brooks, Your Honor.

'The Court: Go ahead.

'The Witness: (continuing)--on physical inspection was this lane to Marlboro Pike which is approximately 2800 feet from the right-of-way line.'

'By Mr. Boswell: (of the same witness, on cross-examination)

'Q. Could you tell me how you determined that this right-of-way was in use for a number of years?

'Mr. Murray: Objection.

'The Court: Overruled.

'The Witness: I talked with Mr. Brooks----

'Mr. Boswell: I move anything he says in this regard be stricken as hearsay.

'Mr. Murray: He asked him for it.

'The Court: You asked it and now you have got it.'

We think that the answers of the witness on direct examination, even if it is assumed that they amounted to hearsay, tended to establish no more than that there was a road from the property to the Marlboro Pike. There was no implication, at that stage, that the road had the status of a public right-of-way. The answer of the witness to the question put to him or cross-examination was clearly responsive and the court did not err in refusing to strike it. On the basis of the answer a motion could have been made to strike any preceding testimony of the witness tending to establish the lane as a public right-of-way, but this was not done.

The appellants complain that one of their experts was not permitted to testify that he considered income from the lease in placing his value on the property. The witness was permitted to testify, and properly so, as to the rental of $1,500 per acre, as provided for in the lease. He was not permitted, in describing how he arrived at a valuation of the lease, to testify that he considered the 'income stream' of $1,500. It may be that this choice of words, if taken out of context, was unfortunate as indicating business profits, although the witness was entitled to state that he considered such as a factor in reaching his valuation. State Roads Commission of Maryland v. Novosel, 203 Md. 619, 624, 102 A.2d 563. We think that this testimony was admissible and that there was error in excluding it. Pumphrey v. State Roads Commission, 175 Md. 498, 509, 2 A.2d 668.

Appellants make a point of the refusal of the trial court to permit Mr....