State Road Commission v. Ferguson

Decision Date07 July 1964
Docket NumberNo. 12298,12298
Citation148 W.Va. 742,137 S.E.2d 206
CourtWest Virginia Supreme Court
PartiesThe STATE ROAD COMMISSION of West Virginia, a corporation, et al. v. Reuben FERGUSON et al.

Syllabus by the Court

1. Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal.

2. Where a motion to strike certain evidence, which has been admitted without objection, recalls and distinctly points out the objectionable answers or statements, such motion should be sustained.

3. Compensation for land acquired in a condemnation proceeding should be ascertained and determined on the basis of its value at the time it is taken.

4. 'So long as the unity of a tract is maintained, the jury in such proceeding may take into consideration its adaptation to lot purposes; but it is the tract as a whole and not the lots into which it might be divided, that should be valued.' Point 3, Syllabus, Monongahela West Penn Public Service Company v. Monongahela Development Company, 101 W.Va. 165.

5. In determining the value of property in a condemnation proceeding, evidence which requires the jury to engage in speculation and conjecture should not be admitted, and a proper objection to the introduction of such evidence should be sustained.

6. In a condemnation proceeding, evidence of the price paid for similarly situated and comparable property is admissible in determining the value of the property taken.

7. Evidence of the price for which a lot in an existing subdivision was sold may not be admitted to prove the value of a tract of land which is not a subdivision.

Anthony G. Halkias, Charleston, for plaintiffs in error.

Greene, Morgan & Ketchum, Edward H. Greene, Claude M. Morgan, Chad W. Ketchum, Huntington, for defendants in error.

CAPLAN, Judge.

This is a proceeding in eminent domain, instituted in the Circuit Court of Wayne County by The State Road Commission of West Virginia, a Corporation, and Burl A. Sawyers, State Road Commissioner, petitioners, against Reuben Ferguson and Rosie Marie Ferguson, his wife, defendants, wherein the petitioners seek to condemn for highway purposes 10.22 acres of a tract of land owned by the defendants. This land is situate in Ceredo District, near the City of Ceredo, Wayne County.

The parties having been unable to agree as to the amount of compensation to be paid for the land actually taken and for the damage to the residue, this proceeding was instituted. Upon the trial of this case, the jury returned a verdict of $45,000.00, as just compensation to Reuben Ferguson and Rosie Marie Ferguson for the land taken and for the damage to the residue. The petitioners filed a motion to set aside the verdict of the jury and for the award of a new trial. This motion was overruled and a writ of error was sought in and awarded by this Court.

The testimony of the property owners reveals that they acquired this property in 1950 and approximately two years later constructed a house thereon. The defendants lived there for three years, when their house was destroyed by fire. Sometime thereafter they moved to Florida where they have resided for the past five years, and where Reuben Ferguson has been employed as a construction worker.

Rosie Marie Ferguson, one of the defendants, testified as to the desirability of this property as a subdivision. She related that although their property was located on top of a hill, a rock base road made it accessible during both winter and summer months. Also, she noted that when they lived there all utilities were available to them. She stated that she and her husband had, for a long period of time, planned to develop this land as a subdivision and to construct twenty-five to thirty houses therein. In furtherance of this purpose she and her husband said that they were systematically saving money. Their testimony reveals, however, that nothing had been done to consummate this plan except they had employed an engineer to make a plat setting out the proposed lots. It was readily admitted on cross-examination that this plat was not made until sometime after it had become known that the road commission intended to acquire the property. This is made more evident by the fact that the defendants' plat was made from the road commission's map of the property.

Several witnesses appeared on behalf of the defendants during the trial in relation to the valuation of the subject property. One witness, Noah Chafin, a carpenter by trade, testified that in his opinion the fair market value of the property taken was $68,000.00. He arrived at that figure by considering the defendants' land as a subdivision of lots and by placing a valuation of $2,500.00 upon each lot. The petitioners did not object to this testimony on direct examination. On cross-examination, however, this witness was interrogated as to the dimensions of the lots and as to whether these lots had actually been laid out on the ground or had been offered for sale. When the witness indicated that he had only seen a map and did not know whether the lots had actually been offered for sale, the petitioners made a motion to strike his testimony. This motion was overruled.

Victor Lewis Pratt, Testifying on behalf of the defendants, stated that the fair market value of the property was $65,000.00. He arrived at that figure in the same manner as did the witness Chafin, that is, on the basis of the value of individual lots in a subdivision. Again, counsel for the petitioners did not voice any objection during direct examination. On cross-examination the witness' answers made it clear that nothing had been done on the land to indicate that lots had been laid out or offered for sale, and that this was not an existing subdivision. At this point, counsel for the petitioners moved to strike this testimony, which motion was overruled.

The witness Pearl Booth, an insurance man and a former assessor of Wayne County, testified that the property was favorable adapted for cemetery purposes. Based on the number of cemetery lots which the property could contain, he placed a valuation of $345,300.00 thereon. This witness also testified that the next best and most profitable use of the property would be that of a subdivision. Placing a valuation of $2,500.00 per lot, he indicated that a fair market value for this property, after deducting certain expenses for roads and other necessary improvements, was $52,500.00. No objection was made to this testimony.

Frank Canterbury, Clerk of the County Court of Wayne County, appeared in this proceeding on behalf of the defendnats. Referring to a deed book from his office, he testified that a lot in Oakview Heights, an existing subdivision located near the defendants' property, sold for $3,000.00. Counsel for the petitioners objected to this testimony on the ground that the piece of property about which this witness was testifying is a lot in an existing subdivision. This objection was overruled by the court and the testimony was allowed to go to the jury.

Willard Varnum, a real estate broker and a qualified appraiser, appeared on behalf of the petitioners in this proceeding. He testified that he went upon the property for the purpose of making his appraisal. He further said that he compared this property with the recent sale of comparable property in the area. Basing his valuation on the acreage of this property as a unit, he testified that the fair market value therefor was $5,825.00. He stated that 'the highest and best use was a potential subdivision'. He further related, however, that this was not an existing subdivision.

The petitioners assign as error the trial court's action in (1) overruling their motion to strike the testimony of Chafin and Pratt; (2) allowing, over their objections, the testimony of Canterbury to go to the jury; (3) permitting the defendants to introduce evidence relating to the value of the subject land based on its value as cemetery lots, when in fact the land was not a cemetery; and (4) overruling petitioners' motion to set aside the verdict of the jury and award a new trial.

Inasmuch as no objection was made, during direct examination, to the testimony of witness Chafin, objection to such evidence will not be considered here. Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal. Blain v. Woods, 145 W.Va. 297, 115 S.E.2d 88; Chesapeake and Ohio Railway Company v. Johnson, et al., 137 W.Va. 19, 69 S.E.2d 393; Baker v. Gaskins, et al., 124 W.Va. 69, 19 S.E.2d 92; Harmon v. Spurlock, 121 W.Va. 633, 5 S.E.2d 797; 1 M.J., Appeal and Error, Section 1039 Nor were the objections saved by the motion to strike. This motion was made after a brief cross-examination and failed to point out specifically the testimony that was objectionable. As stated in 7 M.J., Evidence, Section 298, '* * * a party who asks to have evidence excluded, which has been admitted without objection, must recall and point out distinctly the objectionable answers or statements, or the court may properly overrule the motion to exclude.' See Vale v. Suiter & Dunbar, 58 W.Va. 353, 52 S.E. 313.

The petitioners failed to object to the introduction of evidence relating to the fair market value of the subject property based on the aggreagre value of cemetery lots. For the reasons stated above, this objection will not be considered on this appeal.

We come now to the testimony of Victor Lewis Pratt, who appeared on behalf of the defendants. Although no objection was made thereto on direct examination, the matters raised on cross-examination and the subsequent motion to strike that testimony distinctly pointed out what the petitioners considered to be objectionable. The motion to strike in this instance, unlike that made...

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