Record v. Vermont State Highway Bd., 1144

• Decision Date: 01 September 1959
• Docket Number: No. 1144,1144
• Citation: 121 Vt. 230,154 A.2d 475
• Court: Vermont Supreme Court
• Parties: Donald W. RECORD and June L. Record v. VERMONT STATE HIGHWAY BOARD.

Page 475

154 A.2d 475

121 Vt. 230

Donald W. RECORD and June L. Record v. VERMONT STATE HIGHWAY BOARD.

No. 1144.

Supreme Court of Vermont.

Sept. 1, 1959.

Fitts & Olson, Brattleboro, for plaintiff.

Frederick M. Reed, Atty. Gen., Louis P. Peck Legal Asst. to Atty. Gen., John D. Paterson, Montpelier, John S. Burgess, Brattleboro, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SHANGRAW, Justice.

This is a land condemnation case. The State, acting through the Vermont State Highway Board, pursuant to No. 242 of the Acts of 1957, now 19 V.S.A. Chapter 5, Condemnation, took by eminent domain a tract of land owned by the appellants, Donald W. Record, and his wife, June L. Record, hereafter referred to as the petitioners, and awarded the petitioners $27,000 damages. An appeal from the award was taken to the Windham County Court. Trial by jury was waived and the matter was heard by the court. The court made findings of fact and entered judgment thereon for the petitioners to recover $32,000 damages, and interest from June 17, 1958. The case is here on petitioners' exceptions: (a) to some of the findings of fact; (b) to the refusal of the court to find facts as requested; (c) to the admission of certain evidence; (d) to the failure of the court to strike certain testimony; (e) to the ruling of the court concerning damages; and (f) to the judgment.

The material facts as found, and unexcepted to, are summarized as follows: The petitioners are proprietors of three trailer parks in the Brattleboro area. They first owned a trailer park of about 37 lots at West Brattleboro known as Glen Trailer Park. In October 1955 they purchased approximately sixteen acres of undeveloped land located about one-fourth mile westerly of the Putney road (*U. S. Route 5) and easterly and northerly and below the grade of the so-called Black Mountain road. The petitioners developed a portion of this land into trailer sites or lots by building a gravel roadway and making other improvements. At the time of the taking, these improvements generally consisted of a water supply connected to the Village of Brattleboro water system, sewage facilities, sewage line emptying into a 5000 gallon septic tank, telephone service, electricity and gas available at each trailer lot. There was also a concrete block building, housing hot water heaters and washing machines for the use of the trailer park tenants. The taking bisects this building and requires its removal. Petitioners presented no evidence of cost of the land. The estimated installation or construction costs (replacement costs) of the utilities, consisting of sewer line, water lines, riser tile, meter pit, septic tank and restoring the lawn sod, was found to be $12,207.14, and for the laundry or wash building the sum of $4,211. The gas line installation also cost $900. There has been little, if any, depreciation of the various utilities from the date of their installation in the trailer park to the date of the taking. This development was called Black Mountain Park. The most reasonable use of the property was for a house trailer park. The developed portion of the park was well laid out. At the time of the taking of a portion of the land by the State on June 17, 1958, there were fifty trailer lots developed and available for use, all of which were then rented and had been for several months previous thereto. The level land, horseshoe in shape, available for a trailer park, lays around a high knoll or ridge covered with growing trees and is an ideal location for a trailer park. Of the fifty developed trailer lots nine were southerly of the high knoll and forty-one were easterly thereof. At the time of the taking petitioners were receiving $18 per month from each trailer lot.

The Black Mountain Park land taken in fee by the State was 11.3 acres, which included all of the fifty trailer lots except nine lots located southerly of the high knoll. The use of all but four of these nine lots will be lost. There are about two to three acres of land easterly between the developed section of the park and the brook which were not developed into lots and without roadway and facilities. This land is within the taking by the State. Twenty-four trailer lots could reasonably have been placed in that location. Certain slope rights were also taken.

In August 1958, the petitioners opened a third trailer park in West Brattleboro, known as Mountain Home Park. Just before, or at the time of the taking there were fifty trailer parking lots rented at Black Mountain Park and thirty-seven lots rented at Glen Park, at $18 per month. At the time of the hearing on October 28 and 29th, 1958, Mr. and Mrs. Record had ninety seven trailer parking lots rented at their three trailer parks, 29 at Black Mountain Park, 37 at Glen Park, and 31 at Mountain Home Park. The court found there were no other trailer parks in Brattleboro and vicinity, other than the three owned by the petitioners, except a small five lot area on the Putney road owned by other parties. The nearest trailer park is some miles away at Keene, New Hampshire.

The findings of fact to which exceptions were taken by the petitioners, briefed, and here considered are:

'(17) Since the taking on June 17, 1958, the petitioners have developed 25 trailer parking lots on the remaining land not taken by the state which is in the northwesterly area of the land owned by petitioners. The land not taken includes part of the high knoll. These trailer lots are larger than the 50 lots first developed so as to provide a space of between 45 to 55 feet rather than 32 to 35 feet between the trailers.

'(18) On the date of the taking by the State, the petitioners had no trailer lots developed and no trailer business established on the remaining land not taken except the nine lots mentioned in findings No. 6 and No. 12. (No. 6 refers to the 50 developed trailer lots, nine southerly of the high knoll, and 41 easterly thereof. No. 12 again relates to said nine lots, stating that petitioners will lose the use of all but about four of these lots.)

'(19) In August 1958, the petitioners opened up a third trailer park, (Mountain Home Park) in West Brattleboro on a 100-acre farm previously purchased by them for this purpose and for future development and expansion.

'(22) The petitioners have re-established their trailer park business lost by the taking of the 11.3 acres through and by the development of the new trailer lots on (1) the remaining land at Black Mountain Park and (2) the 100-acre farm in West Brattleboro, (Mountain Home Park). The displaced trailers were removed to these new lots.

'(23) The State did not take by condemnation either the trailer park business of the petitioners at Black Mountain Park or the profits derived therefrom.

'(24) The court is unable to find on the evidence in the case that the petitioners have lost to any extent, if at all, any business of profits as a direct or proximate result of the taking of the 11.3 acres.

'(26) There has been no decrease in the value of petitioners' trailer park business directly or approximately caused by the taking.

'(29) The fair market value of the petitioners' property before the taking, considering the value for the most reasonable use of the property and of the business thereon is $35,000.

'(30) The fair market value of the remaining land after the taking is $3,000.

'(31) The damages resulting to the petitioners from the taking of the 11.3 acres and slope rights considering the value for the most reasonable use of the property and of the business thereon and the direct and proximate lessening in value of the remaining property not taken and the business thereon is $32,000.

'(32) The sum of $32,000 is fair, just and adequate compensation to the petitioners for the damages directly and proximately resulting by the taking of their said property and rights therein by the State.'

The petitioners, during trial, proceeded on the theory that damages in this case should be determined by the method of capitalization of net income. Certain requests for findings were filed by them and denied by the court. Those excepted to and briefed are summarized as follows: Nos. 25, 26, and 27 relate to the value of $45,000 placed on the developed lots in the Black Mountain Park by a 16% capitalization rate (6% interest and 10% return of capital). Nos. 29, 30, 31, and 32 concern evaluating the net income per year for capitalization purposes of the 49 undeveloped trailer sites at $144.50 per site, a total of $7,090, applying a capitalization rate of 18 1/2% (6% interest and 12 1/2% return of capital) indicating an overall value for these undeveloped sites of $38,750, diminished by the cost of $11,270 for development, resulting in a net capitalized value of $25,831. No. 33 states that the reversion value of all of the petitioners' land at the end of ten years may be fairly determined at $6,139. No. 34 requests that the value of the remaining land consisting of nine developed lots and twenty-four undeveloped lots, and a portion of the road, be determined at $13,490. The value of the nine developed lots is nil because not usable for trailer sites. No. 35 pertains to a request that petitioners' damage to undeveloped locations within the land taken be determined at $18,526, or in round figures at $18,500. No. 36 requests that the total damage be determined at $63,500.

The petitioners, in their brief, present the following general grounds in support of their claims: (A) 'The Court has failed to grant to the petitioners just, full, and adequate compensation for the damages resulting from the taking of the business on their premises and the direct and lessening in value of the business on their remaining property.' (B) 'The establishment of other sites for trailers displaced by the taking is not material to the assessment of damages for the taking of the business on the petitioners' premises.' (C) 'Where...