Maryland Community Developers, Inc. v. State Roads Commission

• Decision Date: 04 March 1971
• Docket Number: No. 306,306
• Citation: 261 Md. 205,274 A.2d 641
• Parties: MARYLAND COMMUNITY DEVELOPERS, Inc. v. STATE ROADS COMMISSION of Maryland.
• Court: Maryland Court of Appeals

Page 205

261 Md. 205

274 A.2d 641

MARYLAND COMMUNITY DEVELOPERS, Inc. v.STATE ROADS COMMISSION of Maryland.

No. 306.

Court of Appeals of Maryland.

March 4, 1971.

Samuel C. Steelman, Jr., and C. L. Fossett, Jr., Hyattsville (Beatty & McNamee, Hyattsville, on the brief), for appellant.

Carl Harrison Lehmann, Sp. Atty. (Joseph J. Bonner, Sp. Atty., Upper Marlboro and Francis B. Burch, Atty. Gen., and Joseph D. Buscher, Sp. Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before HAMMOND, C. J., and

BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH, and DIGGES, JJ.

SMITH, Judge.

A landowner here yells, 'Foul!' relative to a jury trial in a condemnation case that produced for him a verdict of only slightly over $8,600.00 per acre when its appraiser placed a value of approximately $22,000.00 per acre.Finding no foul, we shall affirm the judgment.

The facts are basically undisputed.In 1962appellant, Maryland Community Developers, Inc.(landowner), purchased a tract of land comprising approximately 38 acres in Prince George's County about four miles north of College Park and midway between U. S. Routes 1 and 29, north of the intersection of Powder Mill Road and Beltsville Road.This litigation was produced by the construction of Interstate Route 95, an eight-lane superhighway between Washington and Baltimore.The landowner complains to us, (1) because the trial judge permitted the State Roads Commission(the Commission) to call the landowner's president as a witness and from him ascertain that the purchase price of the land in 1962 was approximately $4,500.00 per acre, (2) because the trial judge admitted into evidence a 1961 aerial photograph, and (3) because a jury trial was required in the absence of agreement by all parties to a court trial.The landowner further contends that the record taken as a whole demonstrates the substantial injustice brought about by the court's rulings on the first and second points.

I and II

The Commission relied upon First Nat'l Realty Corp. v. S. R. C., 255 Md. 605, 258 A.2d 419(1969).In that case the president of the landowner was called as an adverse witness and was obliged to testify as to the purchase price.On cross-examination he testified as to subsequent expenditures.There was no cross-examination in this case, with an initimation to us by counsel that they dared not cross-examine lest they waive the objection they had made to the original questions.This fear was unfounded.MacEwen v. State, 194 Md. 492, 504-505, 71 A.2d 464(1950), andWolfinger v. Frey, 223 Md. 184, 193, 162 A.2d 745(1960).

The landowner argues that the probative value of neither the purchase price nor the 1961 aerial photograph was established.The aerial photograph was followed up with a 1964 and a 1969 photograph.The photographs were admitted on the strength of Hance v. State Roads Comm., 221 Md. 164, 156 A.2d 644(1959).In that case the objection was made that the photograph did not fairly represent the conditions as they existed on the day of valuation.Judge Prescott commented for the Court:

'The fallacy of this claim is that the photographs were not offered as representations of conditions as they existed on March 4, but as true representations of conditions as they existed when the pictures were actually taken, which, as we have pointed out above, was followed by testimony of the condition of the property, including the improvements, down to the time of the inspection thereof by the jury.'Id. at 172, 156 A.2d at 648.

This Court there failed to find from the record that the trial judge had abused his discretion.

The landowner here argues that there was no attempt 'other than (by) the bare introduction' of the subsequent photographs to connect the 1961 photograph by testimony with the development which occurred in 1964 and 1969, the dates of the other two photographs.Counsel for the Commission in his opening argument before the jury commented on the $4,500.00 per acre purchase price 'back in 1962', said the landowner had 'a right to a reasonable profit of money', but went on to add that he did not 'believe (the landowner had) a right to raid the treasury.'The landowner says all of this adds up to unfairness.

In First Nat'l Realty Judge Singley said for the Court:

'But even assuming, arguendo, that the admission of the evidence was error we do not think that this would justify a reversal.As Judge Prescott, speaking for this Court in Hance v. State Roads Comm'n, 221 Md. 164, 156 A.2d 644(1959), said:

'Courts are reluctant to set aside verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice.This is especially true in condemnation proceedings.Such cases usually consume much time in trial, and are expensive in nature.As a rule, they are determined by a myriad of different items of evidence.The exclusion or admission of small items of evidence of doubtful materiality are not likely to be of great importance in the outcome of the case, and most courts refuse to set aside a verdict in cases of this kind, for error in the rulings on questions of evidence, unless, as indicated above, substantial prejudice be shown. * * *.'221 Md. at 176, 156 A.2d at 650.

See alsoState Roads Comm'n v. Kuenne, 240 Md. 232, 235, 213 A.2d 567(1965).No such prejudice has been shown to exist in this case.'Id.255 Md. at 610, 258 A.2d at 422.

These comments are equally applicable here.See alsoBelworth, Inc. v. City of Baltimore, 256 Md. 369, 374, 260 A.2d 284(1970).

The weight of the evidence was for the jury.A purchase price for a property being condemned about six years before the date of valuation for condemnation purposes (April 5, 1968, in this instance) is not so remote as to be without relevance.In any event, by use of the 1961, 1964, and 1969 photographs, counsel for the landowner could well have graphically demonstrated to the jury the change in conditions-and, therefore, the difference in values-between 1962 and the 1968 valuation date.In Belworth Judge Digges said for the Court:

'Sales of the land in question may be admissible to show market value, Mayor & City Council of Baltimore v. Smith & Schwartz Brick Co., 80 Md. 458, 31 A. 423(1895), but whether any particular sale is admitted rests in the sound discretion of the trial court.In Baltimore City v. Schreiber, 243 Md. 546, 551, 221 A.2d 663(1966), we stated:

'There are a myriad of circumstances to be considered in each case in determining if the time the purchase price was paid was too remote to have any probative value in aiding the jury's ascertainment of present fair market value.Such circumstances include: degree of change in the condition of the property, changes in the condition of the surrounding property or in the character of the neighborhood, economic growth in the area, etc.'

We have indicated that if there exists a question in the trial judge's mind as to the probative value of any sale, the better rule is to admit it, leaving the weight to be given to that sale to the jury in light of such distinguishing factors as may be brought to its attention by cross-examination or otherwise.This rule has been enunciated both with regard to sales of the land in question, Baltimore City v. Schreiber, supra, and also to comparable sales in the neighorhood Lustine v. State Roads Comm., 217 Md. 274, 142 A.2d 566(1958), but nowhere have we established a hard and fast standard either for admission or exclusion of such evidence.'Id. at 373-374, 260 A.2d at 287.

In Baltimore v. State Roads Comm., 232 Md. 145, 147-148, 192 A.2d 271, 273(1963), photographs taken in 1949 were admitted as relevant to a 1956 date of taking in a 1962 trial.There Chief Judge Brune commented, 'The admission of the photograph was within the discretion of the trial court * * * and we find no abuse of discretion.'

We find no abuse of discretion upon the part of the trial judge in admitting the 1962 selling price and the 1961 photograph.The only basis for a conclusion relative to 'substantial injustice' apparently is the variance between the landowner's appraisal and the verdict.The verdict was almost in the middle of the Commission's appraisals.It is a fact of life that appraisers for landowners and condemning authorities rarely see the same value in any given property.The fact that a jury accepts one appraisal rather than another surely could seldom add up to substantial injustice.

III

When the case was called for trial, counsel for the landowner made the point that neither the plaintiff nor defendant had requested a jury trial and requested removal of the case from the jury calendar on that ground, contending that the 'statute' requiring a jury trial is unconstitutional.

Maryland Rule U15 requires a jury trial in eminent domain proceedings unless 'all of the parties concerned file a writing submitting the case * * * to the court for determination without a jury.'The landowner points to the fact that Maryland Rule 343 in other civil proceedings provides for trial 'before the court without a jury, unless an election in writing separate and distinct from the pleadings be filed, in person or by attorney, for a trial by jury * * *.'It sees this difference in proceedings as 'unreasonable, arbitrary, and capricious' and says it 'is discriminatory as against parties to an eminent domain proceeding because those parties are denied the opportunity to elect by themselves,...