State ex rel. Sharp v. 0.62033 Acres of Land in Christiana Hundred, New Castle County

• Decision Date: 07 December 1954
• Citation: 110 A.2d 1,49 Del. 90
• Parties: , 49 Del. 90 The STATE of Delaware, Upon the Relation of Hugh R. SHARP, Jr., J. Draper Brown, Jr., Benjamin F. Shaw, II, J. Gordon Smith, William P. Richardson, Frank R. Grier and Dallas D. Culver, constituting the State Highway Department of the State of Delaware, Plaintiffs, v. 0.62033 ACRES OF LAND IN CHRISTIANA HUNDRED, NEW CASTLE COUNTY and State of Delaware, Harvey C. Fenimore, Annie F. Fenimore, his wife, John Robinson Fenimore, Helen L. Fenimore, his wife, Thomas C. Hawke, Hilda M. Hawke, his wife, and Unknown Owners, Defendants.
• Court: Delaware Superior Court

Page 1

110 A.2d 1

10 Terry 90, 49 Del. 90

The STATE of Delaware, Upon the Relation of Hugh R. SHARP Jr., J. Draper Brown, Jr., Benjamin F. Shaw, II, J. Gordon Smith, William P. Richardson, Frank R. Grier and Dallas D Culver, constituting the State Highway Department of the State of Delaware, Plaintiffs, v. 0.62033 ACRES OF LAND IN CHRISTIANA HUNDRED, NEW CASTLE COUNTY and State of Delaware, Harvey C. Fenimore, Annie F Fenimore, his wife, John Robinson Fenimore, Helen L Fenimore, his wife, Thomas C. Hawke, Hilda M. Hawke, his wife, and Unknown Owners, Defendants.

Superior Court of Delaware, New Castle County.

Dec. 7, 1954.

Donald W. Booker, Wilmington, for plaintiffs.

James R. Morford and George L. Sands (of Morford & Bennethum), Wilmington, for defendants.

HERRMANN, Judge.

Under the power of eminent domain conferred in 17 Del.C. § 138 ¹, the State Highway Department seeks to take certain real property owned by the defendants.

The proceeding was instituted under the condemnation procedural Statute, 10 Del.C. Ch. 61. The plaintiffs filed a complaint, made a deposit of estimated just compensation and filed a notice of intention to take possession of the property sought to be condemned. See 10 Del.C. §§ 6102, 6105 and 6110. Copies of the complaint, the certificate of deposit and the notice of intention were served upon the defendants simultaneously with the summons. See 10 Del.C. § 6106. The defendants filed answers to the complaint, pursuant to 10 Del.C. § 6107, asserting objections and defenses to the taking. Under the provisions of 10 Del.C. § 6110, the plaintiffs sought an ex parte order granting immediate possession of the property described in the complaint. The Court declined to grant an ex parte order, in the absence of a showing of justifiable emergency, and the Court required the plaintiffs to give notice to the defendants of their intention to present an order for possession. Upon presentation of the order, after notice, the defendants opposed the entry of an order of possession upon the grounds of the objections and defenses stated in their answers, as amended. By 10 Del.C. § 6107, the Court is required to make preliminary disposition of objections and defenses to the taking.

The objections and defenses interposed by the defendants raise the following issues:

1. Is it necessary to take or use certain portions of the defendants' property for any public use or purpose within the scope of 17 Del.C. § 138?

2. Does 10 Del.C. Ch. 61 violate Art. I, § 8 of the Delaware Constitution ² or the due process clauses of the State ³ and Federal Constitutions ⁴, because of failure adequately to secure just compensation to the defendants?

3. Does 10 Del.C. § 6110(a) ⁵ violate the due process clauses of the State and Federal Constitutions because of failure to require notice to the defendants before entry of an order of possession?

The defendants requested trial by petit jury of the issue of necessity for the taking. This request was denied by the Court on the ground that there is no common law or statutory basis for jury trial of any issue at this stage of a condemnation proceeding. There is strong implication in 10 Del.C. § 6107 and § 6108 that the issue of just compensation is the only issue to be decided by the commission. Moreover, it is the general rule elsewhere that the question of necessity for a taking, under the power of eminent domain, is an issue to be determined by the Court without a jury, in the absence of controlling statutory or constitutional provision. Cf. Baxter v. City of Louisville, 224 Ky. 604, 6 S.W.2d 1074, 1077; Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 65 A.L.R. 488; City of Eugene v. Johnson, 183 Or. 421, 192 P.2d 251, 255.

A hearing was held before the Court upon the issue of the necessity of the taking for any proper public use included within the scope of the power of eminent domain conferred by the Legislature upon the State Highway Department in 17 Del.C. § 138. The burden of proof was imposed upon the defendants in view of the presumption of regularity and the prima facie case of necessity for a public use that is presented by a condemnation proceeding instituted under our present Statute by the State government. See 17 Del.C. § 132(c)(4); 10 Del.C. §§ 6107, 6108; compare 6 Nichols on Eminent Domain (3d Ed.) § 26.3; Delfeld v. City of Tulsa, 191 Okl. 541, 131 P.2d 754, 143 A.L.R. 1032; Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 A. 834, 841; Jefferson County v. Clausen, 297 Ky. 414, 180 S.W.2d 297, 300.

It appears that the defendants' land is a triangular-shaped island at Prices Corner created by the intersections of Robert Kirkwood Highway, Center Road and Centerville Road. The Department seeks to take a strip of land, approximately 7 1/2 feet wide, commencing at the intersection of Center Road and Kirkwood Highway and extending southerly along Center Road. The Department also seeks to condemn a strip of the defendants' land along Centerville Road, approximately 30 feet wide ⁶, and it seeks to take a large segment of the apex of the triangle at the intersection of Center and Centerville Roads.

The defendants undertook to show that the flow of traffic does not justify the proposed widening of Center Road or of the boundaries of the intersection of Kirkwood Highway and Center Road. The defendants also adduced evidence to show that most of the land along Centerville Road was being taken for the purpose of developing that two-lane road into a four-lane road at some indeterminate time in the future and that only a small portion of the taking along Centerville Road is necessary for the reconstruction of that road as now proposed. The defendants attempted to show, further, that there was no necessity at all for taking the large segment at the apex of the triangle.

The Department's evidence tends to show that the land along Center Road must be taken in order to carry out its present plan to widen and improve that road and to obtain desirable visibility and accessibility at the intersection of Center Road and Kirkwood Highway. The Department admitted, however, that the extent of the taking along Centerville Road was based, not upon the amount of land needed now for the reconstruction and repaving presently planned, but upon a need forecasted for a future time when it may be found necessary to expand that road from a two-lane highway to a four-lane highway. The Deparment conceded, also, that most of the large segment at the apex of the triangle is not needed now. The Department states, however, that this land will be needed in connection with the future development of Centerville Road so that there might be the desirable visibility and accessibility at the intersection of Centerville Road with Center Road when the former becomes a four-lane highway.

It thus appears from the evidence that there is no present need for most of the land being taken along Centerville Road and at the intersection of that Road with Center Road; that there are no definite plans, resolutions, proposals or appropriations regarding the future construction of a four-lane highway on Centerville Road; and that no one can say definitely and positively when a four-lane highway will become necessary and will be constructed on Centerville Road. The Department's witnesses could only say that, upon the basis of present studies and of planning elsewhere, it is thought that a four-lane highway will probably be needed there at some time within the next three decades and that it would be economically expedient for the Department to obtain the necessary rights of way how before appreciation of property values in the growing area.

As has been noted, the Statute conferring the power of eminent domain upon the State Highway Department limits that power to the taking of property 'necessary to be taken or used' for the public purposes stated in the Statute. 17 Del.C. § 138. When condemnation is sought under such a statute, it is generally held that the question of necessity is a judicial question upon which the property owner is entitled to be heard if he denies necessity. See 2 Lewis Eminent Domain (3d Ed.) § 599. That judicial review is restricted, however, to the function of protecting the landowner against fraud, bad faith or gross abuse of discretion. Generally speaking, when the Legislature delegates the right of eminent domain to a governmental agency for a public purpose, it may also, if there is no constitutional restriction, delegate to such agency the power of determining what property and how much property is necessary for the purpose. Such delegation of power was made in 17 Del.C. § 132(c)(4) wherein the Department is empowered to acquire by condemnation any land which 'in the judgment of the Department' shall be necessary for the purpose of the improvement of State highways. A determination of necessity made under such grant of power will not be disturbed by this Court in the absence of a clear showing of fraud, bad faith or gross abuse of discretion. It is generally held that the necessity, propriety or expediency of appropriating property for public use, the amount or location of the property to be taken and its suitability for the proposed use are all legislative questions and the determination of those matters by a grantee of the power of eminent domain is, in the absence of fraud, bad faith or gross abuse of discretion, final and not subject to review by the Courts. If there is reasonable possibility of need for a proper public purpose, there is no room for further judicial inquiry into the question of necessity for the taking. See 1 Nichols on Eminent Domain (3d Ed.) § 4.11[1-4]; 1 Lewis Eminent Domain (3d Ed.) § 370; 18 Am.Jur. 'Eminent Domain' § 109; 29 C.J.S., Eminent Domain, § 92; City of Eugene v. Johnson, 183 Or. 421, 192 P.2d 251, 255; Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 65 A.L.R. 488; United States v. State of N. Y., 2 Cir. 160 F.2d...