State, by State Road Commission, v. Snider
| Decision Date | 12 October 1948 |
| Docket Number | 10028. |
| Citation | 49 S.E.2d 853,131 W.Va. 650 |
| Parties | STATE, by STATE ROAD COMMISSION, v. SNIDER et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. The cost of repairs to, and alterations of, structures on land, damaged but not taken in a proceeding in eminent domain, and the construction of a retaining wall and fill thereon, all of which are necessary to preserve the property from further injury and fit it for use and enjoyment, may be shown as elements of damages to be considered by the jury. But such cost is only a fact tending to show damages and is not the measure thereof.
2. It is not error to adjudge interest on a verdict returned in a proceeding in eminent domain, instituted by the State of West Virginia, from the date thereof where no prior entry has been made on the land.
3. A verdict returned in a proceeding in eminent domain, the amount of which is sustained by competent evidence, will not be set aside as excessive.
Ira J Partlow, Atty. Gen., and Eston B. Stephenson, Asst. Atty Gen., for plaintiff in error.
H. F Day and Walter G. Burton, both of Princeton, for defendants in error.
This is a proceeding in eminent domain, instituted in the Circuit Court of Mercer County by the State of West Virginia, acting by the State Road Commission, against J. M. Snider and Henrietta Snider, his wife. The purpose of the proceeding is to acquire easements over certain lands belonging to J. M. Snider for the widening and reconstruction of a certain state road, which is a part of the primary system of roads, known as 'Project U. G. 304(3), Princeton Overhead and Approaches' located on Thorn Street in the City of Princeton. Hereinafter the State will be designated as 'applicant' and Snider will be designated as the 'land owner', his wife having been joined in the proceeding only by reason of her inchoate right of dower in the land.
Upon the filing of a petition and after notice to the land owner, the trial court appointed commissioners to ascertain the just compensation to the land owner for the land taken, as well as damages to the residue. The commissioners reported to the court that in their opinion the sum of twenty-nine thousand dollars would be just compensation therefor. The applicant and land owner excepted to the report of the commissioners, and thereafter a trial by jury was had, which resulted in a verdict in the sum of $37,500. The court, having overruled a motion to set aside the verdict and grant the applicant a new trial, entered judgment on the verdict, together with interest thereon from the date of the verdict and the costs of the proceeding. To review that judgment, applicant brings the proceeding to this Court by writ of error.
J. M. Snider was the owner of two lots or parcels of land, hereinafter designated as 'Lot No. 1' and 'Lot No. 2', situate at the corner of Hines Avenue and Thorn Street. Lot No. 1, conveyed to J. M. Snider by deed dated the 15th day of December, 1921, is situate at the corner of Hines Avenue and Thorn Street, and abuts on Thorn Street for a distance of 163 feet, extending back along Hines Avenue 137 feet to an alley more or less paralleling Thorn Street. The record contains no clear description of Lot No. 2. However, it seems that Lot No. 2 is an irregularly shaped lot or parcel of land, adjoining Lot No. 1, and abutting 54 feet on Thorn Street and extending in a southerly direction an approximate distance of 100 feet.
Located near the center of land owner's property and abutting on Thorn Street are two two-story adjoining brick buildings, one of which is 40 feet deep and fronts 36 1/2 feet on Thorn Street, and the other of which is 128 feet deep and fronts 30 feet on Thorn Street. Adjoining these buildings is a shed, which is approximately 15 feet wide by 75 or 80 feet deep. On the corner of land owner's Lot No. 2 farthest from Hines Avenue is an old frame building fronting 25 feet on Thorn Street and running back therefrom 49 feet.
At the time of the trial J. M. Snider had possession of the properties and conducted thereon the business of selling lumber and farm equipment and machinery. He had two driveways constructed on his land entering from Thorn Street on either side of the brick buildings.
By this proceeding applicant seeks to condemn for road purposes three parcels of land situate on Thorn Street. Parcel No. 1 is a strip of land, more or less in the shape of an elongated right triangle, the hypotenuse of which is approximately 205 feet, the base approximately 203 feet, and the altitude 10.5 feet. The area of this parcel is 1,076 square feet, more or less.
The second parcel is a strip of land more or less in the shape of a right triangle, the two sides of which are approximately 12 and 8 feet, respectively, the other side being a curved line connecting the two sides and concave to the right angle. The area of the second parcel is 48 square feet, more or less.
The third parcel is to be used for a 'construction easement' according to the petition filed in this proceeding, but the duration of such easement and the exact purpose for which it is to be used are not specified. The said third parcel commences at the right of way line established by the first and second parcels hereinabove described, and runs back into the land owner's property for varying distances, ranging in depth from 7 feet on Hines Avenue to 15.5 feet, more or less, at the western end of land owner's land. The area of the third parcel is approximately 2,750 square feet.
When reconstructed Thorn Street will serve as one of the approaches to a bridge to be erected by the State Road Commission over the railroad yards of The Virginian Railway Company in the City of Princeton. By such reconstruction the elevation of Thorn Street will be raised approximately two feet at the intersection of Thorn Street and Hines Avenue, and gradually increases from such intersection along the southern line of Thorn Street to an elevation of between nine and ten feet at the western line of land owner's property. The proposed elevation of Thorn Street on the eastern side of the brick buildings will be approximately 3.3 feet, increasing to 6.5 feet on the western side of said buildings. Altogether about seventeen feet of the front part of the brick buildings will be included in the parcels sought to be taken, and it is conceded that the frame building on the western side of land owner's property will be a total loss as a result of the proposed work. There is some testimony to the effect, and it seems a reasonable assumption to make, that the two driveways entering land owner's property from Thorn Street on either side of the brick buildings cannot be used because of the increased elevation of Thorn Street along the northern line of the residue of the property.
The oral testimony introduced by the land owner is not uniform as to the value of the land and the amount of compensation due the land owner. It is principally opinion evidence, and witnesses testifying had varied opinions as to the value of the residue of land owner's property above and beyond all benefits after the taking of the land and the completion of the improvements contemplated by applicant.
Three witnesses were interrogated relative to the fair market value of the property sought to be taken, as well as the fair market value of the residue of the land, after construction work has been completed over and above all benefits that might be derived by the land owner from the construction of the improvements. Two of such witnesses testified that the present value of the land was $70,000, and the market value of the residue of the property, after completion of the contemplated improvements, allowing for all benefits, would be $15,000. The other witness testified that the same values, respectively, would be $73,300 and $25,300.
Six witnesses, including J. M. Snider, were asked questions, the purpose of which was to obtain their opinions as to the 'fair and just compensation to Mr. Snider for the land taken by the proposed proceeding and damages to the residue of his land, if any, over and beyond all benefits that he may derive by reason of the construction of this road.' The responses to said questions made by said witnesses were, respectively, $49,000; $65,500; $57,000; $60,000; $50,000; and $71,851.68. Each of said six witnesses, in support of his opinion as to the amount of damages, made estimates of the then fair market value of the entire land and the fair market value of the residue of the property over and above all benefits after the reconstruction of the street. Two other witnesses gave their opinions as to the fair compensation for the land taken and damages to the residue of the property over and above all benefits. Each of said two witnesses made a detailed breakdown of the various items on which they based their estimate. The items included by them involve the cost which the land owners would have to incur in order to place the property in the same condition in which it was at the time of the trial. The two witnesses made estimates of the compensation and damages, respectively, as $62,389.56 and $59,437.00.
Another witness estimated the present value of the property, but was unable to estimate or give his opinion as to the value of the residue after completion of reconstruction of the street, less benefits. Said witness did, however, estimate the cost of restoring the three buildings, which he considered would be completely lost by reason of the taking of the land and the reconstruction of the street.
Some of the witnesses admitted on cross-examination that portions of their estimates were based on the cost of filling the residue of land owner's property so as to...
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