Monongahela West Penn Public Service Co. v. Monongahela Development Co.

• Decision Date: 09 March 1926
• Docket Number: 5441.
• Citation: 132 S.E. 380,101 W.Va. 165
• Parties: MONONGAHELA WEST PENN PUBLIC SERVICE CO. v. MONONGAHELA DEVELOPMENT CO.
• Court: West Virginia Supreme Court

132 S.E. 380

101 W.Va. 165

MONONGAHELA WEST PENN PUBLIC SERVICE CO. v. MONONGAHELA DEVELOPMENT CO.

No. 5441.

Supreme Court of Appeals of West Virginia.

March 9, 1926

Submitted March 2, 1926.

Syllabus by the Court.

If a tract of land has been laid out in lots, and has lost its continuity as a tract, then the lot and not the tract becomes the basis of valuation in a condemnation proceeding.

The platting of a tract into lots and streets, and the staking of the lots and the marking of the streets, do not necessarily destroy the integrity of the tract. Some further act on the part of the owner is requisite whereby he treats the lots as independent units.

So long as the unity of a tract is maintained, the jury in such proceeding may take into consideration its adaptation to lot purposes; but it is the tract as a whole and not the lots into which it might be divided that should be valued.

If the land sought to be taken is valuable for two purposes, and the use for one purpose excludes the use for the other, only the value for one use may be recovered.

An instruction directing the jury to consider such prospective damages to land as are the natural, necessary, and reasonable incidents of the work to be constructed, and capable of ascertainment at the time of construction, should limit the consideration of the jurors to such damages as appear from the evidence.

The rule announced in point 12 of the syllabus in Ry. Co. v. Coal Co., 83 S.E. 1031, 75 W.Va. 423 does not apply to sales of other rights of way in the same vicinity as the expropriated land, if such sales were the result of the free exercise of intelligent judgment, and were not influenced by fear of litigation.

Error to Circuit Court, Monongalia County.

Eminent domain proceeding by the Monongahela West Penn Public Service Company to condemn a right of way across the land of the Monongahela Development Company. After both parties excepted to a report of commissioners assessing damages, a judgment was entered on a verdict for the defendant, and the applicant brings error. Judgment reversed; verdict set aside; and a new trial awarded.

See also, 127 S.E. 23, 98 W.Va. 136.

James A. Meredith, of Fairmont, and Cox & Baker, of Morgantown, for plaintiff in error.

Minter L. Wilson and Donald G. Lazzelle, both of Morgantown, for defendant in error.

HATCHER J.

In March of 1923 the Monongahela Development Company, the defendant herein, acquired about 65 acres of land in Monongalia county, situate 2 miles from the University of West Virginia, on the hard-surface road between Morgantown and Star City. The purchase price was $36,000. In September of the same year the defendant paid $3,000 for a narrow strip which added little to its acreage, but materially increased its frontage on the Star City road.

The Monongahela West Penn Public Service Company, the applicant herein, filed a petition in the circuit court of said county in October of 1923, for the purpose of condemning a right of way across the land of the defendant, 50 feet in width, and 917 feet in length, upon which it proposed to erect towers for carrying high power electric wires.

The taking of this easement was opposed by the defendant, but the circuit court adjudged that the case was one in which the applicant had the legal right to condemn the right of way described in the petition, and appointed commissioners to ascertain just compensation, etc. The commissioners returned a report of December 17, 1923, in which they awarded the defendant $8,900. Both the applicant and the defendant excepted to the report. On December 20, 1923, the applicant paid into court the said sum of $8,900, and took possession of the right of way.

The case was tried before a jury in 1925, when a verdict of $11,150 was rendered in favor of the defendant. In answer to certain interrogatories, the jury found that $5,500 was just compensation for the right of way taken by the applicant; that $5,600 was allowed as damages to the residue of the land; and that nothing was allowed on account of fear of danger to persons or property. The case is here upon petition of the applicant.

The evidence discloses that a survey of the 65 acres was made in April, 1923, and in May, 1923, plats were prepared showing a division of the tract into two separate sections entitled "Suncrest" and "Fairfield" respectively. Approximately 17 acres were included in the Fairfield section, and the balance of the tract was attributed to Suncrest. The strip taken by the applicant passes through Suncrest only. Suncrest was subdivided into about 172 lots, and 132 lots appear on the plat of Fairfield. A public lot sale was held of Fairfield lots in September, 1923, when about 72 lots were sold. The price received amounted to approximately $2,700 an acre. Prior to December 20, 1923, the lots shown on the plat of Suncrest had been staked and the streets marked and partly graded, but seemingly no lot had at that time been sold in that section. It does not appear whether the plat of Suncrest had been put on public record, or whether there had been any other dedication of its streets to public use. In the early part of 1924 the defendant made another plat of Suncrest. Several streets were changed from the original plan , and the number of lots was largely increased. Witnesses for defendant testified that the 65-acre tract was purchased for the purpose of developing a suburb of Morgantown; that the tract is generally smooth, and very beautiful for a suburban section; that the most advantageous use to which the land in Suncrest could have been applied on December 20, 1923, was for building purposes; that the easement taken by the applicant embraced a fraction over an acre, and would be worth about $50 for agricultural purposes. The opinions varied as to the amount of compensation due the defendant. The lowest estimate made by defendant's witnesses of the value of the acre taken was $14,000, the highest $23,000. The lowest estimate of damages to the residue was $17,000, and the highest $69,000. Opinions were also given of the value of the tract before the taking and its value afterwards. All such estimates, whether as to compensation, damages, or tract valuations, were apparently based on lot values. One of defendant's witnesses said:

"I have been in the lot sale business long enough to not kid myself into figuring lot property on a farm basis."

Other witnesses specifically estimated damages on a "lot proposition," or at so much "per lot," or to "every lot in Suncrest," or to "each lot south of Rotary street," or to the "balance of the lots." No evidence was given of any increase in population in the neighborhood of Suncrest, of the establishment of any new industries there, of growth of Morgantown, or of anything whatsoever to make building lots in demand at Suncrest. There was no testimony of any inquiry concerning or market for these lots. One of defendant's witnesses admitted that "surrounding this particular tract *** were many hundreds of acres *** as good as that."

Witnesses for applicant placed the value of the land taken at from $2,000 to $2,500, and the damages to the residue at from $700 to $2,000. Two of applicant's witnesses estimated the total damage to defendant at about $6,000.

One of defendant's witnesses testified on his examination in chief that in his judgment a just compensation to defendant for the easement actually taken by the applicant "would run about $16,000," and that damages to the residue of the property of defendant was $69,000. On cross-examination this witness as asked what he considered the fair market value of the easement, "excluding any effect its taking may have had upon the rest of the land." He replied, "It is an impossible question in my opinion." The same question was then repeated to the witness, was objected to by defendant, the objection sustained, and exception noted. Upon re-direct examination this witness was again asked to give his "judgment and opinion" of the market value of the land over which the easement was taken "to include only acreage under said easement." This question was objected to by applicant, the objection overruled, and exception taken. The witness again answered $16,000. This witness had fixed two separate valuations; one of compensation for the land directly taken, the other of damages to the land not included in the easement. Upon these valuations the applicant had the right to fairly cross-examine him. If, as the witness intimated, he could not exclude from his estimate of the 50-foot strip the effect its taking had on the rest of defendant's land, then he was by his own admission unqualified to express an opinion on the separate value of the land taken for the easement, and it was error for the court to permit him so to do.

In admitting a map of Fairfield in evidence identified as Funderburk No. 4, and not proved to be correct, the trial court said in effect that the map could be introduced to aid the jury in understanding the location of the Fairfield lots and that evidence of sales of the Fairfield lots would be received for the purpose of showing the actual value of the lots at the date they were sold. Both the admission of the map and the remarks of the court are alleged as error, if the introduction of the map was error because its correctness was not proven, it was harmless error. We see no error in the remark of the court. The Fairfield lots were adjoining the Suncrest lots. The sale of those lots was held just three months before the taking of the Suncrest property. The price they actually brought is likely the best evidence of their value at the date of sale. Sales of property in the same neighborhood as land condemned and not too remote in time are admissible on the...