Ralph v. Hazen
| Decision Date | 13 September 1937 |
| Docket Number | No. 6817.,6817. |
| Citation | 93 F.2d 68,68 App. DC 55 |
| Parties | RALPH et al. v. HAZEN et al., Com'rs. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William C. Sullivan, of Washington, D. C., for appellants.
Elwood Seal and Walter L. Fowler, both of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
This case relates to the condemnation of certain lands by the District of Columbia for the construction of a viaduct over a railroad grade crossing in the city of Washington.
Prior to the time when this improvement was begun, Michigan avenue between Seventh and Tenth streets North-east in the city of Washington, was crossed at grade by the tracks of the Baltimore & Ohio Railroad. This was well known to be a dangerous grade crossing, and the viaduct involved in the present case was designed to eliminate the dangers incident to it. At the point where Michigan avenue crossed the railroad tracks from the west it became continuous on the opposite side of the tracks with a road better known as Bunker Hill road which extended for some distance to the northeast.
In the construction of the viaduct it became necessary for the District to condemn, among others, certain lands owned by one Robert A. Ralph. The western approach to the viaduct abutted upon lands of the Catholic University of America, and also was near to, but did not abut upon, the lands of the Order of Minor Conventuals. The first of these tracts was upon the north side of Michigan avenue, and the other on the south side. The claims for damages made in this case by Ralph and the two institutions aforesaid arise out of the construction of the viaduct and the approaches thereto.
The authority for the improvement is to be found in an Act of Congress approved February 12, 1931, 46 Stat. 1087 (D.C.Code 1929, Supp. II, 1935, title 12, §§ 67-70) the material portion of which reads as follows:
A proceeding under this act was brought by the Commissioners of the District in the Supreme Court of the District of Columbia (now the District Court of the United States for the District of Columbia) for the condemnation of land necessary for the construction of the viaduct. This proceeding was conducted under the Act of Congress approved March 1, 1929, 45 Stat. 1437 ().
At the time of the institution of these proceedings, Ralph was the owner of certain parcels of land described for tax purposes as 133/47, 133/57 and 133/79 situated near Tenth street and Bunker Hill road, Northeast. Afterwards he acquired by purchase parcel 133/51. A portion of the above-described property was used by Ralph as a 1-stop gasoline station. All of parcel 133/79 was taken in the proceedings; two separate portions were taken from parcel 133/47; the greater part of parcel 133/57 was taken; and a small piece at the rear end of parcel 133/51 was also taken.
No part of the lands of either the Catholic University of America or the Order of Minor Conventuals was taken in the proceeding, but the institutions severally claimed damages for the erection of the viaduct and its approaches and the closing of the railroad grade crossing. It was claimed by them that they were the owners of the fee-simple title to the center of Michigan avenue in front of their property subject to the public right of way over it, and that the approaches for the viaduct would be placed in part in the bed of the road or avenue, upon the land which was thus owned in fee by them.
A jury was impaneled according to the statute and was sworn and instructed in writing, and after due proceedings the jury unanimously returned a verdict awarding damages for the land taken from Ralph, but awarding no damages to the Catholic University of America or to the Order of Minor Conventuals. The court approved and ratified the award of the jury, whereupon the three parties aforesaid severally filed their objections and exceptions to the court's rulings, and these being denied the present appeal was taken.
It is claimed by the appellant Ralph that the damages awarded to him were entirely inadequate and that the verdict is unjust, unreasonable, and unsupported by the evidence, and is contrary to the instructions of the court.
The record discloses that the jury allowed the following damages to Ralph, to wit:
Tract 133/79 (4517.40 Sq. ft.) $1,806.96
Tract 133/51 (50.8 Sq. ft.) 20.32
Tract 133/47 (1467.41 Sq. ft.)
and
(912.8 Sq. ft.) 3,477.96
Tract 133/57 (4271.4 Sq. ft.) 5,339.25
Total damages awarded
to Ralph $10,644.49
It is contended by Ralph that the court correctly instructed the jury that the several parcels belonging to him should be appraised as separate properties unless several contiguous parcels were in the same ownership and the value of any two or more of such contiguous parcels should be found to be greater than the value thereof as a whole, in which latter event the value should be determined according to the grouping reflecting the greatest value. It is contended by Ralph that his properties are in actual use for the single purpose of a 1-stop gasoline service station, and that their value when separately considered was less than when considered as a whole; that it was the duty of the jury to bring in a single verdict for all of such properties, but that the jury erroneously brought in a verdict stating the damages separately as to the several parcels.
In our opinion this contention is not well taken. An examination of the record discloses that the jury might rightfully find in accordance with the court's instructions that tract 133/79 possessed a separate value and added no essential value to the remaining property for garage purposes; that the portion of tract 133/51 valued at $20.32 was not a part of the Ralph properties at the time when the proceedings were instituted but was purchased by Ralph while the proceedings were pending; that tract 133/47 included the property suitable for garage use which was valued at $3,477.96 as a separate parcel; that tract 133/57 might be separated from the garage property without materially diminishing the value of the remaining property for garage purposes. It therefore appears that upon a consideration of all parts of the Ralph property the verdict of the jury in this respect was not erroneous, and its action accordingly was properly ratified by the court.
The appellant Ralph also contends that the assessment of damages by the jury in its verdict was contrary to the weight of the evidence. It should be remembered that the burden of proving value in condemnation proceedings is upon the property owner and not upon the government, and the jury was so instructed by the court. Town of Hingham v. U. S. (C.C.A.) 161 F. 295, 15 Ann.Cas. 105; 20 C.J. 982. We have read with care the testimony of all the witnesses respecting the damages to the Ralph properties. The estimates differ very widely in amount, as appears by the following schedule: Witness Grady's estimate, $7,381.13; Houghton's, $9,207.45; Edmonston's $64,906.75; McKeever's $70,402; Sullivan's $80,640. A study of the record, however, leads to the conclusion that the witnesses who testified to the greater damages included in their estimates not only the actual damages to the property as such, but also prospective damages to the garage business conducted upon the premises by Ralph as a going concern. This is illustrated by the testimony of witness McKeever, who appraised the damages at $70,402, and who said: "* * * After the viaduct is built a gasoline station will be practically valueless because of the fact that traffic will not go through there the way it is planned with the little 17-foot roadway west of the railroad tracks, a gasoline station has got to have traffic, does not think any prudent man will drive...
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