Narciso v. State, 1922-A

• Decision Date: 22 November 1974
• Docket Number: No. 1922-A,1922-A
• Citation: 328 A.2d 107,114 R.I. 53
• Parties: Anthony J. NARCISO et al. v. STATE of Rhode Island et al. ppeal.
• Court: Rhode Island Supreme Court

Page 107

328 A.2d 107

114 R.I. 53

Anthony J. NARCISO et al. v. STATE of Rhode Island et al.

No. 1922-Appeal.

Supreme Court of Rhode Island.

Nov. 22, 1974.

[114 R.I. 66] Crandall, Longolucco, Parrilla & Lenihan, James J. Longolucco, Westerly, for petitioners.

Stephen F. Mullen, Chief Sp. Counsel, Providence, for respondents.

OPINION

DORIS, Justice.

This is a petition under the provisions of G.L.1956 (1969 Reenactment) ch. 6 of tit. 37, and G.L.1956 (1968 Reenactment) ch. 10 of tit. 24, for the assessment of damages resulting from a taking for highway purposes of a portion of the petitioners' land by the respondent, and for severance damages to the remainder of said land. The case was heard before a justice of the Superior Court sitting without a jury. The only issue was that of the assessment of damages. The trial justice awarded the petitioners the sum of $44,977.10 as compensation for the portion of petitioners' land taken and severance damages to the remainder of said land. The case is before us on the respondent's appeal from the judgment entered pursuant to such award.

On May 8, 1970, the statement of the taking and the accompanying condemnation plat designated as the 'Westerly By-Pass from Connecticut State Line to U.S. Route 1,' was filed and recorded by respondent in the office of the Town Clerk of Westerly.

The petitioners owned property located at the corner of Brookside Drive and Nooseneck Hill Road, Route 3, in Westerly. The petiioners operated thereon a service station, automobile repair garage, and grocery store, commonly known as 'Narciso Brothers', which fronted on the westerly side of Nooseneck Hill Road. The property consisted of 9,900 square feet, and the state took approximately 793 square feet located at the northeasterly corner of the property to construct slopes for drainage from the proposed highway. This taking by respondent would have necessitated the removal and relocation of an underground gasoline storage tank and an overhead light fixture.

On October 27, 1971, a nonjury trial commenced with both parties stipulating that the petition was duly filed in proper time; the petitioners were the owners of the subject property; the land actually taken was 793 square feet; the condemnation by the state was in accordance with the statutes; and the only issue was the nature of the damages suffered by petitioners and the value of such damages.

The petitioners presented Oscar Chapman, Acting Director of the Department of Public Works of the Town of Westerly, for the purpose of identifying Sheet No. 17 of Westerly By-Pass, Plat No. 1542, which contained petitioners' land. He testified that Plan No. 7 of the map entitled 'Drainage and Utilities' depicted a proposed island directly in front of the service area, a proposed center island along Nooseneck Hill Road to the north of the station, a proposed new rotary at the intersection of Nooseneck Hill Road and Upper High Street, and a proposed curbing in front and along the side of the station, none of which existed prior to May 8, 1970, the date of condemnation.

Anthony J. Narciso, one of the petitioners, testified that the area from which the land was taken was used as a gasoline service station, as a repair garage, and for retail sales of automobile accessories and groceries. The property was purchased by petitioners in 1952 or 1953 and improved by them to its present condition. Mr. Narciso also testified as to the traffic patterns in the area, and stated that 25 to 30 percent of petitioners' gasoline sales were to dump trucks and over-the-road trailers that could easily be served because there was neither curbing nor islands in front of the station area at the time of condemnation.

Russell Lenihan, a real estate agent in the Westerly area, then testified as a qualified expert in the appraisal of real estate. Using the comparable sales method, he determined the value of the property to be $128,506 before the taking. He stated that petitioners' property would suffer 75 percent severance damage because of the placement of the curbing, islands, dividers and intersection. He valued the property after the taking at $32,126.50, resulting in a loss in value of $96,379.50.

Peter A. Laudati III, testified as an expert witness for the state. Using the comparable sales method for appraisal of the land and the cost less depreciation method for the building and improvements, he valued the property at $46,750 before the taking. After taking, his valuation on the land reflected a 20 percent downward adjustment because the proposed curbing, islands, median strips, and intersection would limit the access to the subject property so that its highest and best use would no longer be as a service station but as a small business site. As a result, he set a value of $20,500 for the property after taking. This resulted in a loss in valuation of $26,150. To this, he added $850 for the cost to move and relocate a fuel storage tank and an outside electric light fixture, for a total loss in valuation of $27,000.

The trial was then recessed at the request of counsel for both parties. Conferences were held at which attempts were made to resolve the differences between the parties.

On a motion by the state to reopen, the hearing resumed March 20, 1972. Francis Perry, Supervising Engineer, State Department of Transportation, testified and introduced into evidence a compositve map of the area in front of the subject property representing the changes requested by petitioners and showing what the state could do, and also a copy of the department's plan on curb cuts allowed on state highways. Mr. Perry gave his opinion as to how the flow of traffic would be affected by the islands, medians and curb cuts. He gave his opinion as to how vehicles seeking access tot he gas station would be affected.

Mr. Laudati was recalled to the stand by the state, and he testified that as a result of information obtained from Mr. Perry, he had revised his opinion of damages suffered and set the amount at $2,800.

Mr. Lenihan was recalled to the stand by petitioners and he referred to the maps and information he had obtained in making his appraisal. He said he believed traffic coming north on Route 3 could not make a left turn and enter the gas station on the subject property. He indicated, however, that the testimony of Mr. Perry did not change his opinion about the damages sustained by petitioners.

The trial justice in her decision did not consider the testimony and exhibits introduced at the hearing on March 20, 1972, limiting her consideration only to exhibits introduced at the earlier hearing which described the taking and the state's intention as of the date of condemnation. The extent of the taking is determined as of the date of taking, and the good faith of the state and the extent of what it intended 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 later exhibits was correct.

In determining the measure of damages, the trial justice found it significant that Mr. Lenihan's and Mr. Laudati's first appraisals were in agreement that the subject property's highest and best use after the condemnation was affected by reason of the change in access created by the partial taking.

The trial justice held that petitioners proved upon a fair preponderance of the evidence that the subject property had a fair market value of $128,506 at the date of condemnation, and that by virtue of the taking it had a fair market value of $83,528.90 after the condemnation, the measure of damages therefore being $44,977.10.

The instant appeal was originally argued before us on October 2, 1973. On February 28, 1974, we ordered the case placed on the calendar for reargument and requested the parties to brief and argue the following questions: 'Are the severance damages awarded by the trial justice to the plaintiffs attributable solely to the state's taking of a portion of their property? If not, is diminution in the value of the property caused by the diversion or circuity of traffic compensable when it is associated with a partial taking of one's property?' In accordance with our direction, the parties submitted supplemental briefs and we heard oral arguments on May 10, 1974.

The general rule in this state is that where, in an exercise of police power, the right of access to land abutting upon a highway is impaired or diminished, such act is not a confiscatory taking requiring compensation unless the impairment or diminution is so substantial as to leave the property owner without reasonable access to his property. Aust v. Marcello, 112 R.I. 381, 310 A.2d 758 (1973); Allen & Reed, Inc. v. Presbrey, 50 R.I. 53, 144 A. 888 (1929).

Before condemnation, petitioners had complete access to the highway. The map filed with the condemnation instrument on May 8, 1970, makes it clear that the state planned to install the following: curbing in front and along one side of the property so that petitioners would be allowed no more than one 27-foot cut in the curb in front and one 27-foot cut in the curb along the side for ingress and egress; an island immediately in front of the station; a median divider in the highway located almost directly in front of the station; and an intersection to the immediate north of the station. The net result would be a complete rerouting of the traffic so that only those vehicles traveling south from Potter Hill Road would have unobstructed access to the station. All other traffic would have to travel by the station, go around the intersection to the north, and turn back tot he south to get to the station. All egress from the station would have to be by the curb cut on Brookside Avenue which would necessitate another series of complicated...