Restaurants, Inc. v. City of Wilmington

• Decision Date: 21 January 1971
• Citation: 274 A.2d 137
• Parties: RESTAURANTS, INC., a Delaware corporation, Defendant Below, Appellant, v. The CITY OF WILMINGTON, a municipal corporation of the State of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 137

274 A.2d 137

58 A.L.R.3d 577

RESTAURANTS, INC., a Delaware corporation, Defendant Below, Appellant, v. The CITY OF WILMINGTON, a municipal corporation of the State of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Jan. 21, 1971.

Upon appeal from Superior Court. Affirmed.

William D. Bailey, Jr., of Bayard, Brill & Handelman, Wilmington, for defendant below, appellant.

Victor J. Colombo, Asst. City Sol., for plaintiff below, appellee.

WOLCOTT, C.J., CAREY, J., and MARVEL, Vice Chancellor, sitting.

MARVEL, Vice Chancellor:

The City of Wilmington having condemned property at 1620 King Street under authority of the provisions of § 1--101 of the Code of Wilmington and Title 10 Del.C. §§ 6101 and 6102 for the purpose of establishing a firehouse on such site, the lessee of the premises, Restaurants, Inc., the defendant and appellant in this section, and the owners of the premises negotiated a partial settlement with the City concerning the value of the owner's fee simple interest in the property as well as that of the tenant's unexpired leasehold interest. Appellant not being satisfied with the amount thus made available to it, went on unsuccessfully to contend in the Superior Court that the condemnation award to be paid it should include additional compensation for loss of its restaurant business and liquor license. The sole issue to be decided in this appeal is whether or not such additional elements of loss are compensable in an eminent domain proceeding.

Section 8 of Article I of the Constitution of Delaware, Del.C.Ann., requires that compensation be paid for the taking of real estate interests in condemnation proceedings but does not serve as a basis for recovery for the loss of a business being carried on at condemned premises although evidence concerning a business carried on at the site of a condemned property is admissible in such a proceeding so long as such evidence is sought to be introduced solely to establish the market value of the real estate in controversy, Wilmington Housing Authority v. Nos. 312--314 East Eight Street, 5 Storey 252, 191 A.2d 5, Improved Parcel of Land, etc. v. State ex rel. State Highway Dept., Del.Supr., 201 A.2d 453, 0.744 of an Acre of Land v. State ex rel. State Highway Department, Del.Supr., 251 A.2d 341, and 5A Thompson on Real Property, § 2582, p. 62 (1970 Supp). And this is so even where a business cannot be successfully relocated, State v. 0.622 Acres of Land, Del.Super., 254 A.2d 57, United States ex rel. Tennessee Valley Authority v. Powelson, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390, and Amoskeag-Lawrence Mills, Inc. v. State, 101 N.H. 392, 144 A.2d 221.

Defendant nonetheless argues that the circumstances presented in the case at bar require that an exception here be made to established principles of law governing condemnations, pointing out...