Murphy v. Director of Public Works

• Decision Date: 20 February 1968
• Docket Number: No. 146-A,146-A
• Citation: 238 A.2d 621,103 R.I. 451
• Parties: Mary V. MURPHY v. DIRECTOR OF PUBLIC WORKS for the State of Rhode Island. ppeal.
• Court: Rhode Island Supreme Court

Page 621

238 A.2d 621

103 R.I. 451

Mary V. MURPHY v. DIRECTOR OF PUBLIC WORKS for the State of Rhode Island.

No. 146-Appeal.

Supreme Court of Rhode Island.

Feb. 20, 1968.

Roberts & McMahon, William F. McMahon, Providence, for plaintiff-appellee

Arthur N. Votolato, Jr., Providence, Alexander G. Teitz, Newport, Office of Special Counsel, for defendant-appellant.

OPINION

PAOLINO, Justice.

This petition for assessment of damages by a jury was brought under the provisions of G.L. 1956, title 37, chap. 6, as amended. The plaintifff waived a trial by jury ¹ and sometime after the petition was brought, the defendant was allowed to file an answer and counterclaim. The plaintiff filed an answer to the defendant's counterclaim and when the pleadings were closed the case was heard by a justice of the superior court sitting without a jury. He rendered a writtin decision in favor of the plaintiff, on the basis of which a judgment was entered denying the defendant's counterclaim and awarding the plaintiff damages in the sum of $46,500 plus interest from the date of condemnation, as well as costs. The case is before us on the defendant's appeal from such judgment.

The Condemnation

We note at the outset that the taking involved in this case is the same as that which was before us only recently in Sullivan v. Marcello, 100 R.I. 241, 214 A.2d 181. The documents admitted in evidence in Sullivan, supra, were all introduced in evidence in the case at bar by stipulation. On or about January 28, 1964, defendant, pursuant to the provisions of G.L. 1956, title 37, chap. 6, and title 24, chap. 10, filed condemnation documents describing the property which was being condemned together with a statement that the property therein described was being condemned in fee simple for highway and freeway purposes. The taking included the George M. Cohan Boulevard, a public highway in the city of Providence, hereinafter referred to as the boulevard. The statement of taking describes by metes and bounds all of the boulevard up to the northerly curbline thereof. On May 15, 1964, defendant filed amended documents of taking, adding to the original documents a description of all easements in the boulevard and a statement that such easements were taken, including plaintiff's easement in and to the boulevard; notice thereof was given to plaintiff and others abutting on the northerly saide of the boulevard. It is undisputed that no offer of compensation was ever made to plaintiff by defendant.

Plaintiff's Real Estate

The plaintiff's real estate abuts the northerly line of the boulevard. The property consisted of a 6,000-square-foot parcel of land with two buildings on it; one was a two-story building with a furniture store on the ground floor and professional offices above; the other was a three-tenement house attached to the store building. The plaintiff's property is only a short distance from the property involved in Sullivan, supra. It fronts only on the boulevard, being situated approximately in the center of the block, with but one abutter on each side between it and the two side streets. Similarly, behind or to the north, there is one abutter between plaintiff's property and the street to the north of said abutter's property. Although the condemnation included the boulevard up to plaintiff's lot line, it is admitted that no actual part of her land was taken. But the condemnation left her property without access to any public highway, since it bordered on no other street.

The plaintiff based her claim for damages on the ground that the taking of the boulevard deprived her property of all access to the boulevard and left it without access to any public highway. The narrow question presented for determination by the trial justice related to the damages, if any, suffered by plaintiff's property as a result of its loss of access to the boulevard.

At the commencement of the trial, the trial justice granted defendant's motion to file an answer and a counterclaim. The counterclaim alleges that if the trial justice should enter a decision awarding damages to plaintiff plus interest from January 20, 1964, plaintiff should pay to defendant a reasonable amount for use and occupancy of the premises from that date to the date of the payment of damages which may be awarded plaintiff. The plaintiff interposed no objections to the filing of the counterclaim, but reserved the right to object to the same upon the merits and expressly stated that she would challenge the constitutionality of the pertinent portion of G.L. 1956, § 37-6-23, as amended, upon which defendant relied. in reply to defendant's counterclaim, plaintiff filed an answer denying defendant's right to the alleged counterclaim on the grounds that (1) there was no authority for the payment of rent for use and occupation of a public highway and (2) that defendant at no time acquired title to the premises owned by plaintiff.

No evidence was introduced relative to the alleged value of plaintiff's use and occupation of the highway. The plaintiff's real estate expert, Paul W. Carter, testified that in his opinion the value of plaintiff's property before the taking was $64,500; that he considered access to the boulevard totally eliminated by the taking, thereby landlocking plaintiff's property; and that plaintiff's property had been reduced in value 75 per cent by loss of access, making the value after taking $16,400, for a difference of $48,100, the amount of damage which he estimated to be present.

The defendant's real estate expert, Ralph A. Pari, testified that in his opinion the vaule of the property prior to condemnation was $60,000; that, assuming an actual loss of all access, it had lost 75 per cent of its value as a result of the taking, or a total of $45,000, the figure at which he put the damage.

During the course of the trial defendant attempted to introduce certain evidence to establish that, at the time of the taking, plans were in existence and a contract had been let for the construction of a frontage road upon a portion of the boulevard and that the existence of such plans for a frontage road would affect the damages suffered by plaintiff. The trial justice excluded this evidence on the authority of our decision in Sullivan, supra. The defendant then made offers of proof under oath as to the testimony excluded by the trial justice.

After the hearing, the trial justice rendered a written decision in which he carefully reviewed the evidence and examined in depth the law applicable to the issues raised by the parties. He commented favorably upon the testimony offered by the two real estate experts and on the basis of their testimony found that the damage suffered by plaintiff as the result of the loss of access from her property to the abutting highway was $46,500. In so doing, he made it clear that he was relying on our decision in Sullivan, supra. He ruled that plaintiff was entitled to interest on the award from the date of condemnation until the date of payment and that defendant was not entitled to anything on his counterclaim for use and occupancy because he had not complied with the statutory conditions precedent to the charging of rent for such purpose. Accordingly, he denied the counterclaim. The award was made subject to any adjustments which might possibly exist. A judgment in accordance with his decision was entered.

The questions raised by this appeal relate (1) to the evidentiary rulings by the trial justice excluding testimony pertaining to an intention to construct a frontage road abutting plaintiff's property, (2) to the question of plaintiff's entitlement to interest and (3) to defendant's counterclaim for use and occupancy of the highway. The defendant has briefed and argued these questions under three main points and, for convenience, we shall treat them in like manner.

Point I

We consider first defendant's contention that the trial justice erred in excluding evidence of plans for a frontage road. By his offer of proof defendant proposed to show that the plans for a frontage road on the north side of the boulevard originated with the earliest thinking in connection with this project; that the frontage road was shown on the exhibit plans at the public hearing prior to condemnation; that the plans called for the connection of this frontage road with the city's highway system and with Route 195, although this would be admittedly somewhat circuitous; that the plans for the construction contract incorporating the frontage road were started in the public works department long before it reached the public hearing stage; and that these would be available to any interested person.

In excluding such evidence the trial justice relied on our decision in Sullivan, supra, at 254, 214 A.2d at 188, and referred specifically to the following language:

'In short, in cases like this if compensation is to be just it must be measured by what the condemnor can do and not by what he intends to do, it being the rule that the damages are to be assessed on the most injurious method of construction that is reasonably possible. * * * If as of the time of condemnation the condemnor has the power, even though not the intention, to destroy a right of access, the condemnee's damages are to be determined as if the right were destroyed. To give a condemnee less would be to deny him the right guaranteed to him by ...