State Dept. of Highways v. Jennings

• Decision Date: 30 August 1968
• Citation: State Dept. of Highways v. Jennings, 58 Tenn.App. 594, 435 S.W.2d 481 (Tenn. App. 1968)
• Parties: The STATE of Tennessee, DEPARTMENT OF HIGHWAYS, Charles Speight, Commissioner, Plaintiff-in-Error, v. E. Hazel JENNINGS, Oteelia J. Adamson and the Metropolitan Government of Nashville, Davidson County, Tennessee, Defendants-in-Error.
• Court: Tennessee Court of Appeals

Page 481

435 S.W.2d 481

58 Tenn.App. 594

The STATE of Tennessee, DEPARTMENT OF HIGHWAYS, Charles Speight, Commissioner, Plaintiff-in-Error, v. E. Hazel JENNINGS, Oteelia J. Adamson and the Metropolitan Government of Nashville, Davidson County Tennessee, Defendants-in-Error.

Court of Appeals of Tennessee, Middle Section.

Aug. 30, 1968 Certiorari Denied by Supreme Court Dec. 12, 1968.

George McCanless, Atty. Gen., and Taylor & Schlater, Nashville, for plaintiff-in-error.

L. Kenneth Johnson, Nashville, for defendants-in-error.

OPINION

PURYEAR, Judge.

This is a condemnation case in which the State filed a petition on June 1, 1967, for the purpose of taking the major portion of property consisting of a house and lot location in Davidson County, Tennessee, on the two mile pike near Goodlettsville, which property was owned by the defendants-in-error, E. Hazel Jennings and Oteelia J. Adamson, as tenants in common. The Metropolitan Government of Nashville and Davidson County, Tennessee, was made a party defendant only for the purpose of clearing the property of tax liens.

The property was taken for the purpose of constructing Interstate Highway No. 65 and the order of taking is dated June 16, 1967. Although the entire property of the defendants was not taken, it is conceded that the remaining portion thereof, which was not taken, has little or no value, since it remains inaccessible, except from property of adjoining landowners, and, therefore, the defendants are entitled to the market value of their entire property, consisting of a house and a lot, as just compensation for the taking.

Contemporaneously with filing of such petition the State deposited with the Clerk of the trial court the sum of $10,020.00.

The defendants, Hazel Jennings and Oteelia J. Adamson excepted to the amount paid into Court by the State and demanded a trial by jury for the purpose of fixing the amount of compensation to be paid to them.

The case was tried by the Honorable Roy A. Miles, Circuit Judge, and a jury on October 17, 1967, as a result of which the trial jury awarded the defendants $20,000.00 as compensation for the taking of their property, this amount being the total awarded for value of land taken and incidental damages to the remaining property.

Within the proper time, the State filed a motion for new trial, which was overruled, from which judgment, overruling its motion for new trial, the State has appealed and assigned errors as follows:

'1. The verdict is contrary to the weight and preponderance of the evidence.

2. The verdict is excessive.

3. The Court erred by admitting into evidence the testimony of the property owners' appraiser, Mr. Fred Dance, relative to commercial sales near the subject residential property as comparable sales, Mr. Dance having admitted that these commercial sales were zoned residential prior to the announcement of the highway and that the enhancement in their value was due solely to the highway and its interchange, for which the subject property was taken.

4. The Court erred in admitting into evidence the expert testimony of Mr. Fred Dance as to the fair market value of the subject property, which was zoned Residential, as his opinion was admittedly based on commercial value of nearby tracts, the value of which were enhanced solely by the location of the highway and had no reasonable prospect of commercial zoning prior to announcement of the highway.

5. The Court erred in declining to additionally charge the jury, as requested by the Petitioners as follows:

'Petitioner's Special Request No. 1.

'I charge you further, Ladies and Gentlemen of the Jury, the value of land condemned should be fixed as of the date of condemnation proceeding and with reference to the loss the owner sustains, considering the land in its condition and situation at the time it is taken and not as enhanced by the purpose of which it was taken."

Upon trial of the case, the defendant, E. Hazel Jennings, testified that the property consisted of a residence containing for rooms and a bath, together with a hallway, with a garage on the rear portion of the lot, which was not taken. This witness testified that the value of the entire property was $20,000.00.

The defendant, Oteelia J. Adamson, did not testify but it was stipulated by counsel that if she did so testify, her testimony would be the same as that of her sister, E. Hazel Jennings.

The only other witness who testified in behalf of the defendants was Mr. Fred Dance, an expert witness, engaged in the real estate and appraisal business in Davidson County, Tennessee. The witness testified that, as of the date of taking, total market value of the property taken and incidental damages to the remaining portion was $30,854.00.

Mr. Dance testified that although the property in question here was zoned as residential property, he based his estimate of $30,854.00 upon the fact that it and other nearby property, which had also been zoned 'residential', had acquired some commercial value by reason of the fact that it was located near the proposed interchange between two mile pike and Interstate Highway 65, and, therefore, he placed his valuation upon a commercial basis rather than residential.

Mr. Dance also testified that in arriving at his estimate of the value of the property in question, he considered comparable sales of nearby property which had been sold for commercial purposes since the Interstate Highway had been planned and the location thereof ascertained.

On this phase of the matter Mr. Dance's testimony is as follows:

'Q. What I'm getting at is this, Mr. Dance: this highway wasn't laid down on commercial property. It was planned out on residential property and after the highway was announced and set, then came along some of the property owners, who were going to be suitably located, and got the property zoned commercial to be used in connection with the highway.

A. Well, you make the prices.

Q. Isn't that what happens?

A. Certainly. That makes desirability; that's what makes business.

Q. Now, is it your position, then, that every time a piece of interstate highway is planned and some property near it is zoned commercial in connection with this use, that every piece of land, in the vicinity that highway covers then, should have a fair market value for purposes of condemnation at commercial prices?

A. If it's near enough to it. Now, my experience in traveling around over these ramps--off and on ramps--is that that happens for quite a distance.

Q. And it's your opinion, then, for purposes of condemnation, the fair market value of every piece of land taken for the highway near these interchanges--

A. Goes a way up.

Q. --should become commercial value?

A. Yeah.

MR. SCHLATER: That's all.

A. If the owners desire it.' (B. of E. pp. 42, 43)

'Q. (By Mr. Schlater) Mr. Dance, prior to the interstate highway being announced and planned out through this area, this was a residential area, was it not?

A. Yes. I think maybe there was one commercial or two commercial items east of it.

Q. Right. But they had been there for years--

A. Been there a long time.

Q. --prior to the zoning of any kind? This area was zoned residential and every lot along there, except one or two possible businesses that had been there for years, were approximately halfacre lots, hourses side by side along the road there in this immediate vicinity; is that right, sir?

A. As I remember it, yeah.

Q. Now, after the highway was announced, Mr. Dance, I'm going to ask you if, as it's been the pattern all over the state and all over the country, people rush out to try to buy land near the interchanges, because they know that this is potentially valuable property to oil companies and prospective business or commercial uses?

A. Yeah, that's the general procedure.

Q. And that's just what happened out here, wasn't it?

A. It did happen.' (B. of E. pp. 58, 59)

The only witness who testified on behalf of the State was Mr. Floyd Adkisson, Sr., who was engaged in the real estate and appraisal business. This witness testified that, in his opinion, the value of the property taken and incidental damages to the remaining property was $9,950.00 at the time of taking and that his valuation was made upon the basis that the property in question was residential and not commercial property.

Mr. Adkisson did not take into consideration any enhancement in value caused by the construction of the Interstate Highway, which had been...