State ex rel. Smith v. 0.15 Acres of Land, More or Less, in New Castle Hundred, New Castle County
| Decision Date | 29 August 1960 |
| Citation | 53 Del. 58,164 A.2d 591 |
| Parties | , 53 Del. 58 STATE of Delaware Upon the Relation of J. Gordon SMITH et al., constituting the State Highway Department of the State of Delaware, Plaintiff, v. 0.15 ACRES OF LAND, MORE OR LESS, IN NEW CASTLE HUNDRED, NEW CASTLE COUNTY and State of Delaware, Harvey Mintzer, and Harvey Mintzer, trading as Toppers Drive-In Restaurant and Unknown Owners, Defendants. |
| Court | Delaware Superior Court |
Daniel L. Herrmann and William D. Bailey, Jr. (of Herrmann & Duffy), Wilmington, for plaintiff.
Jackson W. Raysor, Georgetown, for defendants.
This is a condemnation case wherein the State Highway Department of the State of Delaware (State) has moved to set aside the award of a condemnation jury of commissioners on the basis that there was no competent evidence adduced by the defendants, Harvey Mintzer and Shirley Mintzer (lessees), as to value for the taking of their leasehold, Toppers Drive-in Restaurant, a luncheonette business operated by them on the southbound lane of the duPont Highway (Route 13), near the junction of the western controlled highway leading from the Delaware Memorial Bridge. The only question raised by the State relates to the competency of Harvey Mintzer, one of the owners of the lease, to testify as to the fair market value of the leasehold.
The building in which the restaurant was located contained about 525 square feet and was leased to the Mintzers by Mr. Sidney Bicow, for use as a luncheonette, at a rental of $175 a month. Although the lease did not specifically mention any land area which was to be used as access to and from the restaurant, it was nevertheless understood that the land which had been previously leased by Mr. Bicow to the Socony-Vacuum Company could be used by invitees of the luncheonette operated by the Mintzers for access to and from the restaurant and for parking space.
Upon the trial of the case, the attorney for the defendants produced one of the owners of the leasehold, Mr. Mintzer, as the only witness who testified for the defendants on the question of value. The lease provided for a rental of $175 per month. Mr. Mintzer, the operator of the leasehold, testified that, in his opinion, the leasehold had a fair market value of $275; that is, that the leasehold had a market value of $100 more than the agreed rental. Prior to stating his estimated value of the leasehold, the leasehold owner explained that he had been in related businesses for 10 years, and inferred that he had some approximate idea of two or three rental or land values on the duPont Highway. Furthermore, he testified, without objection, as to the gross receipts of the business and its expenses during the period of its operation from June 1956 through September 1958.
The State produced two real estate experts. Mr. Robert E. Hickman, President of the Emmett S. Hickman Company, a general real estate brokerage business, testified that, in his opinion, the leasehold had a fair market value of $175 per month. Mr. Hickman did not know the rental value of comparable property on Route 13, but he arrived at a rental value as to this property by comparing it with the rental values of properties on the Kirkwood Highway, a highway many miles from Route 13. He then determined that the square footage rental of properties on Route 13 was worth twice as much as the properties on the Kirkwood Highway and consequently he arrived at the square foot value of properties on the duPont Highway. The other expert witness called by the State was a Mr. Arnold Goldsborough, a realtor, who testified that the fair rental value of the property for the unexpired term of the lease was less than the agreed rental stated in the lease, somewhere between $150 and $175 per month. He arrived at his conclusion by comparing commercial rentals at Fairfax, a community many miles from the defendants' luncheonette, with rentals on the duPont Highway, and then determining that rentals at Fairfax had a fair market value that was double the value of commercial properties on duPont Highway.
The jury was instructed that the just compensation and measure of damages to which the lessees, herein, were entitled was the fair market value of the remainder of the leasehold, as of the date of the taking, to the extent that the fair market value exceeded the rental which was reserved in the lease. Thus, if the fair market value exceeded the rental, the lessees would be entitled to recover the excess. If it did not exceed the rent reserved, the lessees would be entitled to nothing. Annotation, 3 A.L.R.2d 286, 292. Consequently, on the testimony of the State's experts, the tenants would not be entitled to any recoverable damages since the fair market value of their leasehold interest was the same as or less than the rent reserved in the lease at the time of the taking. Therefore, the award of $1,650 made to the defendants by the jury had to be based on the testimony of the leasehold operator, Mr. Harvey Mintzer. The maximum recovery that could have been allowed on the owner's testimony as to market value was $3,300, that is, $100 a month for 33 months, the balance remaining of the lease term. The jury awarded the defendants one-half of this amount, or $1,650.
The State Highway Department argues that the testimony of the owner of the leasehold should have been excluded because, it contends, he was able to testify for the sole reason that he was the owner of the leasehold and that he had neither the knowledge nor qualifications to express an opinion.
The doctrine that an owner of a chattel is qualified by reason of that relationship alone to give his estimate as to its value is supported by the great weight of authority. Annotation: 37 A.L.R.2d 967 (). In Ligon v. Brooks, 9 W.W. Harr. 113, 196 A. 200, this Court, permitting an owner of an automobile to testify as to its fair market value, quoted with approval the rule laid down in Chamberlayne's Modern Law of Evidence § 2143, which was to the effect that an owner may submit his estimate of the value of personal property where it may fairly be termed of the common, usual, and ordinary kind, for the reason that his relation to his property is such that it may be fairly regarded as creating, in and of itself, possession of special knowledge with respect to its value, and that while the weight of such evidence necessarily depends upon the circumstances and is for the jury to determine, it seems that in most cases no showing of special skill is required to admit the estimate of the owner as to value. Also, in Fidanque v. American Maracaibo Co., 33 Del.Ch. 262, 92 A.2d 311, our Chancery Court expressed its opinion that the owner of personal property is...
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